## Current Law

A complete encyclopedia

of new law

Volume III.

ABATEMENT AND REVIVAL

TO

INDIAANS

GEORGE FOSTER LONGSDORF, Editor

WALTER A. SHUMAKER, Associate

ST. PAUL, MINN.

KEEFE-DAVIDSON COMPANY

1905.

Copyright, 1904, 1904, 1904, 1905, 1906, 1900

BY

KEFFE-Davidson Co.

TOPICAL INDEX.

Use the index in your latest number. Ignore all previous indexes in volumes and numbers. The latest index eltes by volume and page to the latest treatment of any subject. You do not have to study classification for 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 find its latest treatment and also a volume and page citation to the same points in earlier volumes. Black figures refer to volumes; 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 mls anything.

\*\*A. ACCOUNTING, ACTION FOR, 3, 24. See, also, Estates of Deedents, 3, 1304; Guardianship, 3, 1574; Partnership, 2, 1106; Trusts, 2, 1924. ACCOUNTTS STATED AND OPEN ACCOUNTTS, 3, 27. ACCRETION, see Riparian Owners, 2, 1522. ACCUNTULATIONS, see Trusts, 2, 1924; Perciquities, 2, 1173. ACKNOWLEDGMENTS, 3, 31. ACTIONs, 3, 35. See, also, 'Causes of Action, etc., 3, 663; Forms of Action, 3, 1494; Pleading (joinder of actions), 2, 1193. ACTOF GOOD, see Carralers, 3, 591; Contracts, 3, 840; Insurance, 2, 479; Negligence, 2, 996. ADDITIONAL ALLOWANCES, see Costa, 3, 940. ADEMPTION OF LEGACIES, see Wills, 2, 2076. ADJOINING OWNERS, 3, 36. See, also, Fences, 3, 1422. ADJOURNENTS, see Courts, 3, 971; Contiunae and Postponement, 3, 801. ADMINISTRATION, see Estates of Decedents, 3, 1239; Trusts, 2, 1924. ADMIRALTY, 3, 40. ADMIRASSIONS, see Indictment and Prosecution, 2, 307; Evidence, 3, 1359; Pleading, 2, 1178; Trial, 2, 1907. ADOPTION OF CHILDREN, 3, 45. ADULTERATION, 3, 47. ADULTERATION, 3, 48. ADVANCEMENTTS, see Estates of Decedents, 3, 1324; Willis, 2, 2076; Trusts, 2, 1924. ADVERISE POSESSION, 3, 51. ADVERISE CONTRracts, see Contracts, 3, 805. ADVICCE OF COUNSEL, see Attorneys, etc., 3, 376; Malicious Prosecution, 2, 767, and other torts involving malice; Witnesses (as to Privileged Nature of Communications), 2, 2176. AFFIDAVITS, 3, 65.

**AFFIDAVTS OF MERITS OF CLAIM OF DEFENSER, 3, 66.**

**AFFIDAVTS** **OF MERITS OF CLAIM OF DEFENSER, 3, 66.**

**AFFIDMATIONS, see WTinesses, 2, 2163; Ju-ry, 2, 683.**

**AFFRAY, 3, 68.**

**AGENCY, 3, 68.**

**AGENCY IMPLIED FROM RELATION OF PARTHES \[Special Article\], 3, 101.**

**AEGISTMENT, see Animals, 3, 162; Liens, 2, 786.**

**AGERED CASE, see Submission of Controversy, 2, 1761; Appeal and Review, 3, 167; Stilupations, 2, 1740.**

**AGRICUATURE, 3, 137.**

**AIDER BY VERDICT, ETC., see Indiement and Prosecution, 2, 307; Pleading, 2, 1178.**

**AALIBI, see Criminal Law, 3, 979; Indiement and Prosecution, 2, 307.**

**AALIENS, 3, 138.**

**AALIONY, 3, 146.**

**AALIORATION OF INSTRUMENTS, 3, 154.**

**AIMESADORES AND CONSULT, 3, 158.**

**AMBIGITY, see those parts of titles like Contracts, 3, 827; Statutes, 2, 1707; Willis, 2, 2076, which treat of interpretation.**

**AMBEMDENTS, see Indiement and Prosecution, 2, 307; Pleading, 2, 1178; Equity, 3, 1210, and procedure titles generally.**

**AMICUS CURIAE, 3, 158.**

**AAMOTION, see Associations and Societies, 3, 346; Conporations, 3, 899.**

**AMOUNT IN CONTROVERSY, see Appeal and Review, 3, 167; Jurisdiction, 2, 604; Costs, 3, 940.**

**ANACIENT DOCUMENTS, see Evidence, 3, 1865.**

**AIMALS, 3, 159.**

**ANNUTIES, 3, 165.**

**ANOTHER SUIT PENDING, see Abatement and Revival, 3, 1; Stay of Proceedings, 2, 1785; Jurisdiction, 2, 604.**

**ANSWERS, see Equity, 3, 129; Pleading, 2, 1178.**

**ANTENTUITIAL CONTRracts AND SETTLEMENTES, see Husband and Wife, 3, 1670.**

**ANTI-TRUST LAWS, see Combinations and Monopolles, 3, 706.**

**APPEAL AND REVIEW, 3, 167.**

**APPEARANCE, 3, 300.**

**APPEALATE COUTRTS AND JURIBDICTION, see Appeal and Review, 3, 167; Jurisdiction, 2, 604.**

**APPLICATION OF PAYMENTS, see Payment and Tonder, 3, 1168.**

**APPOINTEMENT, see Officers and Public Employes, 2, 1069; Bstates of Desedents, 3, 1245; Trusts, 2, 1924, and the like; Powers, 2, 157.**

**APPORTIONMENT LAWS, see Elections, 3, 1165; Officers, etc., 2, 1069; States, 2, 1703.**

**APPRENTICES, 3, 303.**

**ARBITRATION AND AWARD, 3, 303.**

**ARCHITECTS, see Building and Construction Contracts, 3, 556.**

**ARCOUNTY OF COUNSEL, 3, 306.**

**ARMY AND NAVY, see Military and Naval Law, 2, 890.**

**ARARAGINMENT AND PLEAS, see Indiement and Prosecution, 2, 307.**

**ARREST AND INMING OVER, 3, 312.**

**ARREST OF JUDGMENT, see New Trial and Arrest of Judgment, 2, 1037.**

**ARREST ON CIVIL PROCESS, see Civil Arrest, 3, 700.**

**ARSON, 318.**

**ASSAULT AND BATTERY, 3, 319.**

**ASSIGNMENTS, 3, 326.**

**ASSIGNMENTS FOR BENEFIT OF CREEDTORS, 3, 337.**

**ASSIGNMENT OF ERRORS, see Appeal and Review, 3, 167; Indiement and Prosecution, 2, 307.**

**ASSIGNMENTS, WERT OF, 3, 345.**

**ASSOCIATIONS AND SOCETIES, 3, 346.**

**ASSUMPSTI, 3, 348.**

\*\*ASSUMPTION OF OBLIQATIONS, see Nova-Iton, BILLS IN EQUITY, see Equity, 3, 1210; and to the special rellef prayed see such titles as Judgments, 2, 581; Quieting Title, 2, 1386.

BILLS OF LADING, see Carriers, 3, 595; Sales, 2, 1527; Negotiable Instruments, 2, 1013.

BILLS OF SALE, see Sales, 2, 1527; Chatted Morteges, 2, 682; Fraudulent Conveyances, 3, 1535.

BIRTH REGISTERS, see Census and Statistics, 3, 866; Evidence, 3, 1334.

BLACKMAIL, 3, 507.

BLENDED PROPERTIES, see Accession and Confusion of Property, 3, 15; Conversion as Tort, 3, 866; Conversion in Equity, 3, 876; Trusta, 3, 1924; Wills, 2, 3076.

BOARD OF HEALTIT, see Health, 3, 1591.

BOARDS, see Officers and Public Employees, 2, 1069, also see various titles like Counties, 3, 969; Municipal Corporations, 2, 940.

BODY EXECUTION, see Civil Arrest, 3, 701.

BONA FTDES, see Negotiable Instruments, 2, 1013; Notice and Record of Title, 2, 1053.

BONDS, 3, 607. See, also, Municipal Bonds, 2, 931; Counties, 3, 968; Municipal Corporations, 2, 940; States, 2, 1703.

'BOTTLE' AND "CAN" LAVES, see Commereere, 3, 711.

BOTTOMRY AND RESPONDENTIA, see Shipping and Water Traffic, 2, 1648.

BOUGHT AND SOLD NOTES, see Frauds, Statute of, 3, 1527; Brokers, 3, 555; Factors, 3, 1416.

BOUNDARIES, 3, 518.

BOUNDARIES, 3, 524.

BRANDS, see Animals, 3, 165; Commerce, 3, 711; Forestry and Timber, 3, 1468; Trade Marks and Trade Names, 2, 1881.

BREACH OF MARRIAGE PROMISE, 3, 525.

BREACH OF THE PEACE, see Disorderly Conduct, 3, 1111; Surety of the Peace, 2, 1776.

BIRIERY, 3, 527.

BRIDOES, 3, 529.

BROKERS, 3, 535.

BUILDING AND CONTRUCTION CONTRacts, 3, 550.

BUILDING AND LOAN ASSOCIATIONS, 3, 561.

BUILDINGS AND BUILDING RESTRITIONS, 3, 672.

BUILDING OF PROOF, see Evidence, 3, 1337.

BURIDERARY, 3, 578.

BURNT RECORDS, see Restoring Instruments and Records, 2, 1520.

BY-LAWS, see Associations and Societies, 3, 347; Corporations, 3, 912.

C.

CALENDARS, see Dockets, etc., 3, 1140.

CANAALS, 3, 583.

CANCELLATION OF INSTRUMENTS, 3, 584.

CANVASS OF VOTES, see Elections, 3, 1173.

CAPITAL, see Corporations, 3, 899; Partnership, 2, 1106; Banking and Finance, 3, 403.

CARLISLER TABLES, see Damages, 3, 1030; Death by Wrongful Act, 3, 1040; Evidence, 3, 1366.

CARRIERS, 3, 591.

CARRYING VWAPONS, see Constitutional Law, 3, 793; Weapons, 2, 2071.

CAR TRUSTS, see Railroads, 2, 1382.

**CASE, ACTION ON, 3, 663.**

CASE AGREED, see Appeal and Review, 3, 167; Submission of Controversy, 2, 1767.

CASE CERTIFIED, see Appeal and Review, 3, 167.

CASE SETTLED, see Appeal and Review, 3, 167.

CASH, see Payment and Tender, 2, 1158.

CATCHING BARGAIN, see Assignments, 3, 326; Estates of Decedents, 3, 1383; Life Estates, Remainders and Reversions, 2, 741; Fraud and Undue Influence, 3, 1520.

CAresses OF ACTION AND DEFENNESS, 3, 663.

CENTETERIES, 3, 665.

CENSUS AND STATISTICS, 3, 666.

CERTIFICATE OF DOUBT, see Appeal and Review, 3, 167; Indictment and Prosection, 2, 378.

CERTIFICATES OF DEPOSIT, see Banking and Finance, 3, 417; Negotiable Instruments,
CIVIL SERVICE, see Officers and Public Employes, **2**, 1069.

CLEARING HOUERS, see Banking and Finance, **3**, 403.

**CLERKS OF COURT, 3, 702.**

CLOUD ON TITLE, see Covenants for Title, **3**, 973; Quieting Title, **2**, 1366; Vendors and Purchasers, **2**, 1976.

ULUBIS, see Associations and Societies, **3**, 346.

CODICILS, see Wills, **2**, 2077.

COINOVIT, see Confession of Judgment, **3**, 719.

COILLEGES AND ACADEMIES, **3**, 705.

COLLISION, see Shipping and Water Traffic, **2**, 1654.

COLOO OF TITLE, see Adverse Possession, **3**, 51.

COMBNIATIONS AND MONPOOLIES, **3**, 706.

COMBNIATIONS, see Arrest and Binding Over, **3**, 312; Contempt, **3**, 800; Indictment and Prosecution, **2**, 307; Fines, **3**, 1424.

COMMON AND PUBLIC SCHOOLS, **1**, 544.

COMMON LAW, **3**, 717.

COMMONNITY PROPERTY, see Husband and Wife, **3**, 1676.

COMPARATIVE NEGLIGENCE, see Negligence, **2**, 996.

COMPALANT FOR ARREST, see Arrest and Binding Over, **3**, 312.

COMPALINTS IN PLEADING, see Pleading, **2**, 1178.

COMPSUITION WITH CREDITROS, **3**, 718.

COMPUNDING OFFENSES. No cases have been found during the period covered.

CONCELALED WEAPONS, see Weapons, **2**, 2071.

CONCELALENT OF BIRTH OR DEATH. No cases have been found during the period covered. See **1**, 558.

CONDEMNATION PROCEEDINGS, see Bminent Domain, **3**, 1200, 1205.

CONDITIONAL SALES, see Chatted Mortga-gas, **3**, 682; Fraudulent Conveyances, **3**, 1535; Sales, **2**, 1527.

CONFESSION AND AVOIDANCE, see Pleading, **2**, 1178.

CONFESSION OF JUDGMENT, **3**, 719.

CONFESSION, see Indictment and Prosecution, **2**, 307.

CONFEICATION, see Constitutional Law (Due Process), **3**, 712; Fish and Game Laws, **3**, 1430.

CONFLICT OF LAWS, **3**, 720.

CONFURUSION OF GOODS, see Accession and Confusion of Property, **3**, 15.

CONNECTING CARRIERS, see Carriers, **3**, 591; Railroads, **3**, 182.

CONSIDERATION, see Contracts, **3**, 809.

CONSOLIDATION (of actions), see Trial, **2**, 1907; (of corporations) see Corporations, **3**, 880.

CONFENACY, **3**, 726.

CONSTABLES, see Sheriffs and Constables, **2**, 1640.

CONSTITUTIONAL LAW, **3**, 730.

CONSULTS, see Ambasadors and Consula, **3**, 158.

CONTEMPT, **3**, 795.

CONTINANCE AND PostPONEMENT, **3**, 801.

CONTRACT LABOR LAW, see Allens, **3**, 128.

CONTARCTS, **3**, 805; with Special Article, **3**, 861.

CONTRACTS OF AFFREIGHTMENT, see Carriers, **3**, 551; Shipping and Water Traffic, **2**, 1648.

CONTRACTS OF HIRE, see Bailment, **3**, 400.

CONTRACTS VOID BECAUSE INTERFEING WITH THE PUBLIC SERVICE (Special Article), **3**, 861.

CONTRIBUTION, **3**, 885.

CONTRIBUTORY NEGLIGENCE, see Negligence, **2**, 996.

CONVERSION AS TORT, **3**, 886.

CONVERSION IN EQUITY, **3**, 876.

CONVricts, **3**, 878.

CORAM NOBIS AND CORAM VOBIS, see Appeal and Review, **3**, 167. The various statutory substitutes for the remedy by writ Coram Nobis are usually considered as part of the law of judgments. See Judgments, **2**, 851.

CONORErs, **3**, 879.

CORPRORATIONS, **3**, 880.

CORPSES AND BURIAL, **3**, COVENANTS FOR TITE, 3, 978. COVERTURE, see Husband and Wife, 3, 1669. CREIDITY INSURANCE, see Indemnity, 3, 1698; Insurance, 2, 479. CREIDITORS' SUIT, 3, 976. CREIMINAL CONVERSATION, see Husband and Wife (civil liability), 3, 1686; Adultery (crime), 3, 48; Divorce (ground), 3, 1128. CRIMINAL LAW, 3, 979. CREOPS, see Agriculture, 3, 137; Emblements and Natural Products, 3, 1187; Landlord and Tenant (renting for crop), 2, 680. 683; Chattel Mortgages (mortgages on crops), 3, 688. CROSS BILLS AND COMPLAINTS, see Equitity, 3, 1286; Pleading, 2, 1178. CROSSING, see Highways and Streets, 3, 1610; Railroads, 2, 1382. CRUEL AND UNUSUAL PUNISHEMENTS, see Constitutional Law, 3, 780; Criminal Law, 3, 985. CRUELITY, see Animals, 3, 159; Divorce, 3, 1128; Infants, 2, 392; Parent and Child, 2, 1089. CUMULATIVE EVTDENCE, see Trial (reception and exclusion of evidence), 2, 1912; New Trial, etc. (newly discovered cumulative evidence), 2, 1045. CUMULATIVE PUNISHEMENTS, see Criminal Law, 3, 985. CUMULATIVE VOTES, see Corporations, 3, 880. CUMULATIVE ACTS, see Statutes, 2, 1707. CURTESY, 3, 987. CURTOS AND USAGES, 3, 988. CURTOS LAWS, 3, 990. D. D. DAMNLOASES, 3, 997. DAMNLOASQUE INJURIA, see Causes of Action, 3, 683; Torts, 2, 1875; compare Negligence, 2, 996. DAMS, see Navigable Waters, 2, 989; Riparian Owners, 2, 1522; Waters and Water Supply, 2, 2034. DATE, see titles treating of the various instruments as to the necessity and effect of a date; see Time, 2, 1871, as to computation. DAYS, see Holdayas, 3, 1630; Sunday, 2, 1772; Time, 2, 1871. DEAD BODIES, see Corpses and Burial, 3, 939. DEAF MUTS. No cases have been found during the period covered. Compare Fraud and Undue Influence, 3, 1524; Incompetency, 3, 1596; Negligence, 2, 996. DEATH AND SURVIVORSHIP, 3, 1033. DEATH BY WRONGFUL ACT, 3, 1034. DEATH CERTIFICATES, see Census and Statistics, 3, 686; Fraternal, etc. Associations, 3, 1517; Insurance, 2, 479. DEBENTURES, see Corporations, 3, 880; Rallroads, 2, 1382. DEBT, see titles descriptive of the various instruments and agreements predicated on debt or evidencing debt (Accounts Stated, etc., 3, 27; Contracts, 3, 805; Bonds, 3, 507; Negotiable Instruments, 2, 1013; Chattel Mortgages, 3, 682; Mortgages, 9, 906; Implied Contracts, 3, 1690, and the like), also titles relating to proceedings for liquidation of affairs of persons or corporations (Bankruptcy, 3, 484; Assignments for Benefit of Creditors, 3, 343-345; Corporations, 3, 880; Estates of Decodents, 3, 1257-1283; Parmeter ship, 2, 1106, and the like), titles relating to transfer or discharge of debt (Assignments, 3, 326; Accord and Satisfaction, 3, 17; Novulsion, 2, 1061; Releases, 2, 1498, and titles relating to specific kinds of debt or security), also titles descriptive of remedies for collection of debts (Assumpsit, 3, 348; Creditors' Sult, 3, 976; Forms of Action, 3, 149, and code remedies as applied in substantive titles already enumerated), also titles relating to corporations or associated persons, or to classes of persons not sui juris (Asso-clations, etc., 3, 346; Partnership, 2, 1106; Corporations, 3, 880; Infants, 2, 392; Husband and Wife, 3, 1689; Insane Persons, 2, 454; Guardinship, 3, 1573; Trusts, 2, 1924, and the like). DEBT, ACTION OF, 3, 1045. DEBT's OF DECEDENTS, see Estates of Decedents, 8, 128. DECEIT, 3, 1045. DECDARATIONS, see Evidence, 3, 1359;
DETINNE, 1, 324. No cases have been found during the period covered by volume 3. DEVIATION, see Carriers, 3, 591; Marine Insurance, 2, 792; Shipping and Water Traffic, 2, 1648.

DILATORY PLECAS, see Abatement and Reviewal, 3, 167; Pleading, 2, 1178.

DIRECTING VERDICT AND DEMURERE TO EVIDENCE, 3, 1093.

DISCALIMERS, see Causes of Action and Defenses, 3, 663; Costs, 2, 940; Pleading, 2, 1178.

DISCONTINANCE, DISMISSAL AND NONSUIT, 3, 1097.

DISCOVERY AND INSPECTION, 3, 1106.

DISCRETION, see articles treating of procedure or relief resting in discretion. Review or control of discretion, see Appeal and Review, 3, 167; Mandamus, 2, 771; Prohibition, Writ of, 2, 1278; Certitoral, 3, 667.

DISPFRANCHISEMENT, see Elections, 3, 1165.

DISMISSAL AND NONSUIT, see Discontinuance, etc., 3, 1097.

DISCORDERLY CONDUCT, 3, 1111.

DISCORDERLY ROUESS, 3, 1111.

DISSOLUTION, see Corporations, 3, 893; Partners, 2, 1106.

DISTRESS, see Landlord and Tenant, 2, 668.

DISTRICCT ATTORNERS, see Attorneys and Counselors, 3, 393.

DISTRICCT OF COLUMBIA, see Territories and Federal Possessions, 2, 1868.

DISTRIBANCE OF PUBLIC ASSENBLAGES, 3, 1112.

DITRCH AND CANAL RIGHTS \[Special Article\], 3, 1112.

DIVIDDEND, see Corporations, 3, 903; Bankruptcy, 3, 434; Assignments, etc., 3, 337; Insolvency, 2, 459.

DIVISION OF OPINION, see Appeal and Review, 3, 167; Judgments, 2, 581; Stare Decisions, 2, 1698.

DIVORE, 3, 1127.

DOCKETS, CALENDARS, AND TRIAL LISTs, 3, 1140.

DOCCDIENTS IN EVIDENCE, see Evidence, 3, 1364; Indictment and Prosecution, 2, 307.

DOMICILE, 3, 1142.

DOWER, 3, 1144.

DRAINS, see Sewers and Drains, 2, 1628; Waters and Water Supply, 2, 2034; Public Works, etc., 2, 1328.

DRUQS; DRUGIGISTS, see Medicine and Surgery, 2, 887; Polsons, 2, 1252.

DRUNKENNESS, see Intoxicating Liquors, 2, 554; Habitual Drunkands, 2, 159; Incometency 3, 1696.

DUBELING, 3, 1147.

DUE PROCESS, see Constitutional Law, 3, 772.

DUPICICITY, see Pleading, 2, 1178.

DUREES, 3, 1147.

DTING DECLARATIONS, see Homicide, 3, 1658.

E.

EASEMENTS, 3, 1148.

EECCLESIASTICAL LAW, see Religious Societes, 2, 1502.

EIGHT HOUR LAWS, see Master and Servant, 2, 801; Constitutional Law, 3, 758, 764; Public Works, etc., 2, 1828; Officers and Public Employayes, 2, 169.

and Public Employayes, 2, 169.

EJECTMENT (and Writ Entry), 3, 1157.

ELECTION AND WAIVER, 3, 1177.

ELECTIONs, 3, 1165.

ELECTRICITY, 3, 1181.

EMBEEZZEMENT, 3, 1186.

EMBEEZEMENTS AND NATURAL PRODUCTS, 3, 1187.

EMBERACERY. No cases have been found during the period covered.

EMBZEMENT DOMAIN, 3, 1189; see Special Article, 3, 1112.

ENTRY, WRIT OF, see Ejectment, etc., 3, 1157.

EQUITABLE ASSIGNMENTS, see Assignments, 3, 331.

EQUITABLE ATTACHMENT, see Attachment, 3, 365.

EQUITABLE DEFENSBS, see Equity, 3, 1210.

EQUITY, 3, 1120.

ERROR CORAM NOBIS, see Judgments, 2, 581.

ERROR, WRIT OF, see Appeal and Review, 3, 167.

ESCAPE AND RESCUE, 3, 1236.

ESCHEAT, 3, 1237.

ESCROWS, 3, 123
EXPRESS COMPANIESS, see Carriers, **3,** 591; Railroads, **3,** 1382; Corporations, **3,** 880.

EXTORITION, **3,** 1414. See, also, Blackmail, **3,** 507; Threats, **2,** 187L

EXTRADITION; **3,** 1414.

F. F.

VIII

TOPICAL INDEX.

HAWKERS AND PEDDLERS, see Pedding, **2,** 1165.

HEALTH, **3,** 1590.

HEARING, see Appeal and Review, **3,** 167;

Equty, **3,** 1233; Motions and Orders, **2,** 929; Trial, **2,** 1907.

HEARSAY, see Evidence, **3,** 1355; Indictment and Prosection, **2,** 334.

HEIRS, DEVISERS, NEXT OF KIN AND LEGATERES, see Descent and Distribution, **3,** 1081; Estates of Decedents, **3,** 1238; Willis, **2,** 2076.

HERD LAWS, see Animals, **3,** 159.

HIGHWAYS AND STREETS, **3,** 1593.

ROLDAYS, **3,** 1630.

HOMESTEADS, **3,** 1630.

HOMESTEADS, **3,** 1643.

HOMESE RACING, see Betting and Gaming, **3,** 501.

HOMESE, see Animals, **3,** 159; Sales (warranty), **2,** 1843.

HOSTTALLS, see Asylums and Hospitals, **3,** 352.

HOUSERS OF REFUGE AND REFORMATO-RIES, see Charitable, etc., Institutions, **3,** 169.

**HUSBAND AND WIFE, 3,** 1669.

I.

ICE, see Riparian Owners, **2,** 1522; Waters and Water Supply, **2,** 2034.

ILLEGAL CONTRACTS, see Implied Contracts, **3,** 1694; Contracts, **3,** 805.

IMMIGRATION, see Aliens, **3,** 138; Domileile, **3,** 1142.

IMPATHING OBLIGATION OF CONTRACT, see Constitutional Law, **3,** 765.

IMPEACHMENT, see Officers, etc., **2,** 1069;

Witnesses, **2,** 2163; Examination of Witnesses, **3,** 1383.

\*\*IMPLIED CONTRACTS, **3,** 1690.

IMPLIED TRUSTS, see Trusts, **3,** 1924.

IMPLIED WARRANTANTIES, see Sales, **2,** 1527.

IMPOUNDING, see Animals, **3,** 159.

IMPRISONMENT FOR DEBT, see Civil Arts, **3,** 700; Constitutional Law, **3,** 764.

IMPROVEMENTS, see Accesson and Confusion of Property, **3,** 15; Element, etc., **3,** 1165; Implied Contracts, **3,** 1690; Landord and Tenant, **2,** 668; Partition, **2,** 1057; Public Works and Improvements, **2,** 1238; Trespass (to try title), **3,** 1908.

\*\*INCEST, **3,** 1695.

INCOMPETENCY, **3,** 1696.

INDEPENCY, \*\*LEWDNESS AND ORSCENTITY, **3,** 1697.

INDEPANITY, **3,** 1698.

INDEPENDENT CONTRACTS, **3,** 1702.

INDEPENDENT CONTRACTS UNDER ENTLOverse' LIABILITY ACTs (Special Article), **3,** 1704.

\*\*INDIAINS, **3,** 1706.

INDICTENT AND PRESECUTION, **2,** 307.

INDORISING PAPERS, see Motions and Orders, **2,** 929; PleadIn, **2,** 1178.

INFAMOUS CRIMES, see Indictment and Prosection, **2,** 307; Witnesses, **2,** 2163.

INFMANTS, **2,** 382.

INFORMERS, see Penalties and Forfeitures, **2,** 1166.

INJUNCTION, **3,** 397.

INNS, RESTAURANTS AND LODGING HOUSERS, **2,** 453.

INQUEST OF DAMAGES, see Trial, **2,** 1907.

INQUEST OF DEATH, **2,** 454.

INSANE PERSONS, **2,** 454.

INSOLVENCY, **2,** 459.

INSPECTION, see Discovery and Inspection, **3,** 1107.

INSPECTION LAWS, **2,** 460.

INSTRUCTIONs, **2,** 461.

INSURANCE, **2,** 479.

INTEST, **2,** 474.

INTEST, **2,** 547.

INTRANIA REVENCE LAW, **2,** 550.

INTRANTRANIONAL LAW, **2,** 552

**JUDGMENTS, 2, 581.**

JUDICAL NOTICE, see Evidence, **3, 1135; Pleading, 2, 1178.**

JUDICAL SALES, **3, 601.**

JURISDICTION, **2, 604.**

JURY, **2, 633.**

JURSTICES OF THE PEACE, **2, 661.**

K.\*\*

KIDNAPPING, **2, 668.**

L.\*\*

LABELS, see Commerce (unlabeled goods), \*\*3, 711; Food (unlabeled food products), **3, 143; Trade Marks and Trade Names, 2, 1881.**

LABOR UNIONS, see Trade Unions, \*\*2, 1888; Associations and Societies, \*\*3, 346; Conpiracy (boycothings), **3, 726; Injunctions, 2, 397.**

LACHES, see Equity, **3, 1218.**

LAKES AND PONDS, see Navigable Waters, \*\*2, 988; Waters and Water Supply, **2, 2034.**

LANDLORD AND TENANT, **2, 668.**

LAND PATENTS, see Public Lands, **3, 1295.**

LARCENY, **2, 696.**

LASSUTOUSNESS, see Indecency, Lewdness and Obsentity, **3, 1698.**

LATERAL RAILROADS, see **E**minent Domain, \*\*1, 1002; Railroads, **2, 1382.**

LATERAL SUPPORT, see Adjoining Owners, **3, 86.**

LAW OF THE ROAD, see Highway and Streets, **3, 1610.**

LEASES, see Landlord and Tenant, \*\*3, 668; Baliment (hiring of chatlets), \*\*3, 400; Sales (conditional sale and lease), **2, 1584.**

LEGACIES AND DEVISIES, see Estates of Decedents, \*\*3, 1238; Willis, **2, 2076.**

LEGAL CONCLUSIONS, see Pleading, **2, 1178.**

LEGATEEES, see Estates of Decedents, \*\*3, 1238; Willis, **2, 2076.**

LETTERS, see Postal Law, \*\*2, 1253; Evidence (letters as evidence), \*\*3, 1364; Contracts (letters as offer and acceptance), **3, 808.**

LETTERS OF CREDIT, see Banking and Finance, \*\*3, 418; Negotiable Instruments, **2, 1013.**

LEVERS, see Waters and Water Supply, \*\*2, 2034; Navigable Waters, **2, 989.**

LEWDNESS, see Indecency, Lewdness and Obsentity, **3, 1697.**

LIBEL AND SLANDER, **2, 706.**

LICENESS, **2, 730.**

LICENESS TO ENTER ON LAND, **2, 734.**

LICENS, **2, 736.**

LIFE ESTATES, REVERSIONS AND REMANDERS, **2, 741.**

LIFE INSURANCE, see Fraternal Mutual Benefit Ass'ns, \*\*3, 1499; Insurance, **2, 179.**

LIGHT AND AIR, see Adjoining Owners, \*\*3, 86; Essements, \*\*3, 1148; Injunctions, \*\*2, 397; Nuisance, **2, 1062.**

LIMIMATION OF ACTIONS, **2, 746.**

LIMITED PARTNERSHIP, see Partnership, \*\*2, 1106; Joint Stock Companies, **2, 576.**

LIQUIDATED DAMAGES, see Damages, \*\*3, 998; Penalties and Forfeitures, **2, 1166.**

LIS PENDENS, **8, 762.**

LITEPARY PROPERT, see Property, \*\*3, 1279; Copyrights, **3, 878.**

LIVERY STABLE KEEPERS, see Animals, **3, 159;**

Baillment, \*\*3, 400; compare Health, **3, 1590;**

LICenses, \*\*2, 730; Nuisance, **3, 1062.**

LIVE STOCK INSURANCE, see Insurance, **3, 479.**

LLOYD'S, see Insurance, **2, 479.**

LOAN AND TRUST COMPANIES, see Banking and Finance, **3, 417;**

Corporations, **3, 880.**

LOANS, see Ballment, \*\*3, 440; Banking and Finance, **3, 426;**

LORGAN, see \*\*1694; Mortgages, **2, 906;**

LOCAL IMPROVEMENTS AND ASSESS-MENTS, seeMERGER OF CONTRACTS, see Contracts, 3, 885.

- MERGER OF ESTATES, see Real Property, 2, 1462.

- MILITY AND NAVAL LAW, 2, 890.

- MILLITLA, see Military and Naval Law, 2, 890.

- MILLLS AND DAMS, see Waters and Water Supply, 2, 2034.

- MINERS AND MINERALS, 2, 893.

- MINITERS OF STATE, see Ambassadors and Consuls, 3, 158.

- MINUTES, see Judgments, 2, 581.

- MISOINDER, see Parties, 2, 1092; Pleading, 2, 1178; Equity, 3, 1231.

- MISTAKE AND ACCIDENT, 2, 903.

- MONEY COUNTS, see Assumpsit, 3, 350.

- MONEY LENT, see Implied Contracts, 2, 1652; Assumpsit, 3, 348.

- MONEY PALD, see Implied Contracts, 3, 1692; Assumpsit, 3, 350.

- MONEY RECEIVED, see Implied Contracts, 3, 1692; Assumpsit, 3, 350.

- MONOPOOLIES, see Combinations and Monopoles, 3, 710.

- MORTALITY TABLES, see Damages, 3, 1030; Evidence, 3, 1366.

- MORTGAGES, 2, 905.

- MOTIONS AND ORDERS, 2, 893.

- MULTIFARIIOUSNESS, see Equity, 3, 122.

- MULTIFELICITY, see Equity, 3, 1216.

- MUNICIPALIDS AND RELLIFES, see Municipal Bonds, 2, 931; Municipal Corporations, 2, 940; Railroads, 2, 1382.

- MUNICIPAL BODNS, 2, 931.

- MUNICIPAL COOPERATIONS, 2, 940.

- MUNICIPAL COPURTATIONS, 2, 940.

- MUNICIPAL COPURTATIONS, 2, 851; Jurisdiction, 2, 604.

- MURDER, see Homelide, 3, 1644.

- MUTUAL ACCOUNTS, see Accounting, Actions for, 3, 24; Accounts Stated, etc., 3, 27.

- MUTUAL INRURANCE, see Fraternal Mutual Benefit Ass'ns, 3, 1499; Insurance, 2, 479.

- N.

- \[3\]POROROR LATING, see Coats (in forn par parperis), **3, 940**.

- \[4\]P PUBLICATION, see Newspapers, **2,** 1037; Process, **2,** 1259; Libel and Slander, **2,** 705.

- \[1\]**PUBLIC CONTRacts, 2,** 1380.

- \[2\]**PUBLIC LANDS, 2,** 1295.

- \[3\]**PUBLIC WORKS AND IMPROVEMENTS, 2,** 1328.

- \[4\]\*\*PUIS DARREIN CONTINUANCE, see Pleading, **2,** 1178.

- \[5\]\*\*PURCHASE MONEY MORTGAGES, see Mortgages, **2,** 905; Vendors and Purchasers, **2,** 1976.

- \[6\]**Q.**

- \[7\]**QUESTIONS OF LAW AND FACT, 2,** 1361.

- \[8\]**QUESTING TITLE, 2,** 1366.

- \[9\]**QUO WARRANTO, 2,** 1377.

- \[10\]\*\*RACING. No cases have been found during the period covered. Compare Betting and Gaming, **3,** 501.

- \[11\]**RAILROADS, 2,** 1382.

- \[12\]**RAPE, 2,** 1453.

- \[13\]\*\*RATIFICATION, see Agency, **3,** 68.

- \[14\]\*\*REAL ACTIONS, see Ejectment, etc., **3,** 1157; Forcible Entry and Unlawful Detainer, **3,** 1435; Venue and Place of Trial, **2,** 2000.

- \[15\]\*\*REAL COVERNANTS, see Covenants for Title, **3,** 973; Buildings, **3,** 574; Easements, **3,** 1148.

- \[16\]**REAL PROPERT, 2,** 1482.

- \[17\]\*\*REASONABLE DOUBT, see Indictment and Prosecution, **2,** 307.

- \[18\]\*\*RECENTRORS, see Attachment, **3,** 367; Executions, **3,** 1402.

- \[19\]**RECEIVERS, 2,** 1465.

- \[20\]\*\*RECEIVING STOLEN GOODS, **2,** 1480.

- \[21\]\*\*RECITALS, see Estoppel, **3,** 1827; Municipal Bonds, **2,** 331; Statutes, **2,** 1707.

- \[22\]\*\*RECOGNIZANCES. No cases have been found during the period covered. See Ball, Civil, **3,** 894; Ball, Criminal, **3,** 896.

- \[23\]\*\*RECORDARI, see Justices of the Peace, **2,** 651.

- \[24\]\*\*RECORDING DEEDS AND MORTGAGES, see Notice and Record of Title, **2,** 1053.

- \[25\]\*\*RECOGNDS, **2,** 1482.

- \[26\]\*\*REDEMPTION, see Executions (sales), **3,** 1405: Foreclosure of Mortgages on Land, **3,** 1452; Judicial Sales, **2,** 601; Mortgages, **2,** 905.

- \[27\]\*\*RE-EXCHANGE, see Negotiable Instruments, **3,** 1013; Banking, etc., **3,** 403.

- \[28\]**REFERENCE, 2,** 1484.

- \[29\]**REFORMATION OF INSTRUMENTS, 2,** 1492.

- \[30\]\*\*REFORMATORIES, see Charitable and Correctional Institutions, **1,** 507.

- \[31\]\*\*REGEISTERS OF DEEDS, see Counties, **3,** 961; Notice and Record of Title, **2,** 1053; Officers, etc., **2,** 1069.

- \[32\]\*\*REHEARING, see Appeal and Review, **3,** 167; Equity, **3,** 1282; New Trial, etc., **2,** 1037.

- \[33\]\*\*REJOINDRERS, see Pleading, **2,** 1178.

- \[34\]**RELEASES, 2,** 1498.

- \[35\]\*\*RELIEF FUNDS AND ASSOCIATIONS, see Fraternal, etc., Associations, **3,** 1499; Master and Servant, **2,** 801; Railroads, **2,** 1382.

- \[36\]**RELIGIOUS SOCETTES, 2,** 1502.

- \[37\]\*\*REMAINDERS, see Life Estates, etc., **2,** 741; Perpetuities, **2,** 1173; Wills, **2,** 2076.

- \[38\]\*\*REMEDY AT LAW, see Equity, **3,** 1213.

- \[39\]\*\*REMITTUTR, see Appeal and Review, **3,** 167; Judgments, **2,** 581; New Trial

**REWARDS, 2, 1521.**

**RIGHT OF PROPERTY, see Replovin, 2, 1514. Compare Attachment, 3, 353; Executions, 3, 1403, as to claims by third persons against a levy.**

**RIOP, 2, 1522.**

**RIPARIAN OWNERS, 2, 1522.**

**ROBREY, 2, 1524.**

**RULES OF COURT, see Courts, 3, 972. Compare titles treating of practice to which rules relate u. g., Appeal and Review, 3, 167.**

**S.**

**SAFE DEPOSITS, see Warehousing and De-posits, 2, 2029; Banking and Finance, 3, 423.**

**SALES, 2, 1527.**

**SALVAGE, see Shipping, etc., 2, 1648.**

**SATIFICATION AND DISCHARGE, see Accord and Satisfaction, 3, 17: Contracts, 3, 836; Judgments, 2, 581; Mortgages, 2, 905: Payment and Tender, 2, 1185; Release, 1, 1488.**

**SAVING QUESTIONS FOR REVIEW, 2, 1590.**

**SAVINGS BANKS, see Banking, etc., 3, 415.**

**SCANADAL AND IMPERTINENCE, see Equiv, 3, 1222: Pleading, 2, 1178.**

**SCHOOL LANDS, see Public Lands, 2, 1296.**

**SCHOOLS AND EDUCATION, see Common and Public Schools, 1, 544; Colleges and Academies, 3, 705.**

**SCHE FACIAS, 2, 1618.**

**SEALS, see Names, Signatures, and Seals, 2, 588. Compare titles relating to instruments whereof seal is required.**

**SEAMEN, see Shipping, etc., 2, 1648.**

**SEARCH AND SEZSURE, 2, 1618.**

**SECRET BALLOT, see Directions, 3, 1172, 1175.**

**SECURITY FOR COSTS, see Costs, 3, 940.**

**SECUCTION, 2, 1619.**

**SENTENCE, see Indictment and Prosecution, 2, 307.**

**SEPARATE PROPERTY, see Husband and Wife, 3, 1669.**

**SEPARATE TRIALAS, see Trial (civil), 2, 1908; Indictment and Prosecution (criminal), 2, 344.**

**SEPARATION, see Divorce, 3, 1127.**

**SEQUESTRATION, 2, 1622.**

**SERVICE, see Process, 2, 1259.**

**SET-OFF AND CONUTERCLAIM, 2, 1624.**

**SETTLEMENT OF CASE, see Appeal and Review, 3, 167.**

**SETTLEMENTS, see Accord, etc., 3, 23; Ens- tates of Decedents, 3, 1304; Guardian, 3, 1574; Trusts, 2, 1924.**

**SEVERANCE OF ACTIONS, see Pleading, 2, 1178; Trial, 2, 1907.**

**SEWERERS AND DRAINS, 2, 1628.**

**SHAM PLEDANINGS, see Pleading, 2, 1178.**

**SHELLERY'S CASE, see Real Property, 2, 1279; Deceds of Conveyance, 3, 1062; Wills, 2, 2076.**

**SHERIFF'S SALES, see Executions, 3, 1404; Judicial Sales, 2, 601.**

**SHERIFF AND CONSTABLES, 2, 1640.**

**SHERIFF and WATER TRAFFIC, 2, 1648.**

**SIGNATURERS, see Names, etc., 2, 988.**

**SIMILLTER, see Pleading, 2, 1178.**

**SIMULTANBOUS ACTIONS, see Election and Waiver, 3, 1177.**

**SLAVES, 2, 1676.**

**SLEEPING CARRS, see Carrters, 3, 591; Railroads, 2, 1382; Taxes, 2, 1786.**

**SOCITIES, see Associations and Societies, 3, 346.**

**SODOMY, 2, 1677.**

**SPANISH LAND GRANTS, see Public Lands, 2, 1285.**

**SPECIAL INTERROGATORIES TO JURY, see Verdets and Findings, 2, 2009.**

**SPECIAL JURY, see Jury, 2, 633.**

**SPECIAL VERDICT, see Verdicts and Findings, 2, 2009.**

**SPECIAL JURY, see Jury, 2, 633.**

**SPECIAL VERDICT, see Verdicts and Findings, 2, 2009.**

\*\*ISS, 2, 16SUICIDE, 2, 1772. SUCCESS, see Descent and Distribution, 3, 1081; Estates of Decedents, 3, 1238; Taxes (succession taxes), 2, 1838; Wills, 2, 2076. SUMMARY PROCEDINGS, see Landlord and Tennat, 3, 668. SUMMARY PROSECTIONS, see Indictment and Proscontion, 3, 391. SUMMARYONS, see Process, 2, 1559. SUMMARY, 2, 1772. SUPERSEDEAS, see Appeal and Review, 3, 167. SUPPLEMENTAL PLEADINGS, see Equity, 3, 1225; Pleading, 2, 1178. SUPPLEMENTARY PROCEEDINGS, 2, 1774. SUPCHARGING AND FALSEIFYING, see Acounting, actions, for, 3, 24; Bistates of Decedents, 3, 1238; Trusts, 2, 1924. SUPERSEDEAS, see Appeal and Review, 3, 167. SUPPLEMENTAL PLEADINGS, see Equity, 3, 1225; Pleading, 2, 1178. SUPPLEMENTARY PROCEEDINGS, 2, 1774. SUPCHARGING AND FALSEIFYING, see Acounting, actions, for, 3, 24; Bistates of Decedents, 3, 1238; Trusts, 2, 1924. SUPERSEDEAS, see Wraters, etc., 2, 1776. SUPERSEDE, see Waters, etc., 2, 2034; Highways, etc., 2, 1614; Ralroads, 2, 1882. SUPPLUSAAGE, see Equity, 3, 1210; Pleading, 2, 1178. SURROGATES, see Courts, 3, 970; Estates of Decedents, 3, 1238; Wills, 2, 2076. SURVEYORS, see Counties, 3, 959; Bonndarlea, 3, 519. SURIVIVORSHIP, see Death and Survivorship (presumptions), 3, 1033; Deeds, etc., (Interpretation), 3, 1062; Wills, 2, 2076. SUSPENSION OF POWER OF ALLENATION, see Perpetuities, 2, 1178. T. T. TAKING CASE FROM JURY, see Directions-Verdict, etc., 3, 1093; Discontinuance, Dismissal and Nonsnitt, 3, 1097; Questions of Law and Fact, 2, 1381. TAXES, 2, 1786. TELEGRAPHS AND TELEPHONES, 2, 1843. TELEMENTS IN COMMON AND JOINT TENTS, 2, 1862. TENDER, see Payment and Tender, 2, 1158. TERMS OF COURT, see Courts, 3, 971; Dockets, Calendars and Trial Lists, 3, 1140. TERHRYORIES AND FEEDERAL POSSESION, 2, 1868. TESTAMENTARY CAPACITY, see Wills, 2, 2076. THEATERS, see Building and Construction Contracts, 3, 550; Exhibitions and Shows, 3, 1412. THREATS, 2, 1871. TICKETS, see Carriers, 3, 628. TIME, 2, 1871. TIME TO PLEAD, see Pleading, 2, 1178. TOIL ROADS AND BRIDGES, 2, 1872. TORTS, 2, 1876. TOWAGE, see Shipping, etc., 2, 1648. TOWNS; TOWNShips, 2, 1877. TRADE MARKS AND TRADE NAMES, 2, 1881. TRADE UNIONS, 2, 1888. TRANSFER OF CAUSES, see Dockets, etc., 3, 1142; Removal of Causes, 2, 1506. TRANSFENTORYACTIONS, see Venue and Place of Trial, 2, 2000. TREASON. No cases for this topic appeared during period covered. TREATIES, 2, 1889. TREPASS, 2, 1891. TREPASS ON THE CASE, see Trespass, 2, 1891. TREPASS TO TRY TITLE, see Trespass, 2, 1891. TREPASS TO TRY TITLE, see Trespass, 2, 1891. TRIAL, 2, 1907. TROVER, see Conversion as Tort, 3, 866; Asumpst (waiver of tort), 3, 848; Implied Contracts (waiver of tort), 3, 1695. TRUST COMPANERS, see Banking and Finance, 3, 417. TRUST DEEDDs, see Mortgages, 2, 905; Trusts, 2, 1924. TRUSTs, 2, 1924. TURNPIKES, see Highways and Streets, 3, 1593; Toll Roads and Bridges, 2, 1872. U. ULTRA VIRES, see Corporations, 3, 889; Municipal Corporations, 2, 940. UNDERTAKINGS. No cases for this topic appeared during period covered. See titles of particular proceedings in which the giving of an
egin{tabular}{c c} & W. \\ WAIVER, see Election and Waiver, **3**, 1179. & WINDING UP PROCEEDINGS, see Corporations, **3**, 893; Partnership, **2**, 1106. \\ WAREHOUSING AND DEPOSITS, **2**, 2029. & WITHDRAWING EVIDENCE, see Trial, **2**, 1907; Harmless and Prejudicial Error, **3**, 1879. \\ WARRANTY, see Covenants for Title, **3**, 974; Sales, **2**, 1527. & WITHDRAWING PLEADINGS OR FILBS, See Pleading, **2**, 1178; Records, **2**, 1482. \\ WASTE, **2**, 2034. & WOTERS AND WATER SUPPLY, **2**, 2034; with Special Article, **3**, 1112. \\ WAYS, see Easements, **3**, 1148; Eminent Domain, **3**, 1189. & WEAPONS, **2**, 2071. \\ WEIGHTS AND MEASURES, **2**, 2073. & WHARVES, **2**, 2074. \\ \\end{tabular}

## Current Law.

(Copyrighted 1904, by Keete-Davidson Company.)

VOLUME III SEPTEMBER, 1904. NUMBER 1.

**ABSTRACT AND REIVVAL.**

$\\lx@sectionsign$ 1. Causes for Abatement (1). $\\lx@sectionsign$ 3. Survivability of Causes of Action $\\lx@sectionsign$ 2. Rasting Objections; Waiver (S). (10). $\\lx@sectionsign$ 4. Revival and Continuation (10).

\_Scope.--\_It is not attempted here to treat of criminal prosecutions,1 nor of bills of revivor,2 or revival of judgments,3 or of statute barred causes of action.4 Various writs are abatable for defects, which matters are not germane to this title.5

$\\lx@sectionsign$ 1. \_Causes for abatement.6--_The pendency of another action_ between the same parties,7 and for the same cause,8 and prior in time,9 is ground for abatement.

Footnote 1: The author is grateful to the anonymous referee for the support of this paper.

Footnote 2: The author is grateful to the anonymous referee for the support of this paper.

Footnote 3: Curr. Law--1

1. Indictment and Proscution, 2 Curr. L. 307. $\\lx@sectionsign$ 2. Equity, 1 Curr. L. 1066, et seq. $\\lx@sectionsign$ 3. Judgments, 2 Curr. L. 598. $\\lx@sectionsign$ 4. Limitation of Actions, 2 Curr. L. 757. $\\lx@sectionsign$ 5. Attachment and like titles. $\\lx@sectionsign$ 6. See 1 Curr. L. 1. $\\lx@sectionsign$ 7. Where a party is plaintiff in one action and defendant in a subsequent one relating to the same subject-matter in which she sets up in defense the same matters she alleged in her compliant, a plea of prior action pending is not available as against the defense. Rodney v. Gibbs \[Mo.\] 82 S. W. 187. The pendency of a prior action between the same parties is ground for abatement. Cahill v. Cahill \[Conn.\] 57 A. 284. It is between the same parties when the defendant is the successor in interest of the defendant in the former suit. Wetzstein v. Boston & M. Consol. Copper & Silver Min. Co., 28 Mont. 451, 72 P. 865. The issues in a suit in partition were identical and the real parties in interest the same, though In the later case the plaintiff had joined some nominal parties. Gulin v. Elliott \[Iowa\] 88 N. W. 625. The pendency of an appeal by a creditor from a judgment in favor of a garnishee is not ground for abatement of an action brought in the same court against the garnishee by the debtor, but such action should be postponed until the appeal is decided (Rleiden v. Kothman \[Tex. Civ. App.\] 73 S. W. 425); nor can a suit by an administrator be pleaded in abatement to a suit by the helrs undeir circumstances of this case (Row v. Johnson, 25 Ky. L. R. 179, 78 S. W. 96). $\\lx@sectionsign$ 4. _Revival and Continuation (10)._

$\\lx@sectionsign$ 5. Where one had filed an intervening petition asking to have claims allowed out of the assets in the hands of a receiver, and after an order of the court so directing, creditors brought suit in a state court therefore, and then filed a supplemental intervener-ing petition asking that their claim be cleared a preferential one, one suit could not be pleaded in abatement to the other. Trimble v. Kansas City P. & G. R. Co. \[Mo.\] 79 S. W. 678. Tendency of a suit by an executive on a benefit insurance policy, claiming that children of the insured were entitled to $\\lx@sectionsign$ 3 Curr. Law--1

$\\lx@sectionsign$ 6. Curr. Law--1

$\\lx@sectionsign$ 7.

## 2 Abstract and revival $\\lx@sectionsign$ 1.

They must be so far identical that a recovery in one action would bar a recovery in the other,\[10\] or the proof in one would sustain the other.\[11\]

In Oregon, an action is pending after the complaint is filed.\[12\] The mere fact that a summons has been served,\[13\] or that an action has been begun in which there are several co-defendants,\[14\] does not show a pendency,\[15\] but an action is still pending, though appealed.\[16\] Real actions are pending, though a party has died.\[17\] If discontinued or otherwise terminated, the suit or action is no longer pending,\[18\] but

recover his homesetad interest is not abated because of an action pending by his mother to recover her rights. Upton v. Gerber \[Michel.\] 98 N. W. 854. A pending suit against legates and creditors of an estate for settlement of the estate in which deceased's agent is made a party in order to dispose of a claim due the agent by the estate cannot be pleaded in bar of a suit by the personal representative of the estate against such agent for an accounting. Causes of action are not identical. Botto's Etr v. Bockoven \[Neb.\] 98 N. W. 406. An Ky. L. R. 2130, 80 S. W. 174. A rule to open judgment held under advisement is a bar to a bill in equity for the same relief. Free-man v. Lafterty, 207 Pa. 32, 66 A. 230. A piea of pendency of an appeal from the vacation of an attachment is no defense to an action on the attachment bond unless coupled with 28 Mont. 461, 72 P. 866. An accounting was an allegation that there was also a stay of an proceedings. Powell v. Bursky, 39 Misc. 633, 39 N. Y. S. 480. Where rights of an insured's children and his executor could not be deter- or a milling claim, the survey of which con-mined in an action at law brought by the widow on the policy, they having no present right of action, such action was no bar to brought a suit in support of each. The sur-s suit to cancel the policy for fraud. Mutual Life Ins. Co. v. Blair, 130 F. 971. Where equity has obtained jurisdiction of parties and subject-matter to cancel an insurance policy for fraud, the fact that the insured Did before answer, and that an action at law was then commenced on the policy in which all the company's defenses in the equality of jurisdiction to proceed with the controversy. Id. Where insured died after commencement of an action to cancel the policy for fraud but before answer, whereupon an action on the policy was brought, a plea in bar "allegging the insured"s death and the pendency of such action at law was not available to present the objection that the client to support the plea of the penalty was not sustainable for want of equity.

In Oregon, an action is pending after the complaint is filed.\[13\] The mere fact that a summons has been served,\[13\] or that an action has been begun in which there are several co-defendants,\[14\] does not show a pendency,\[15\] but an action is still pending, though appealed.\[16\] Real actions are pending, though a party has died.\[17\] If discontinued or otherwise terminated, the suit or action is no longer pending,\[18\] but

recover his homesetad interest is not abated because of an action pending by his mother to recover her rights. Upton v. Gerber \[Michel.\] 98 N. W. 854. A pending suit against legates and creditors of an estate for settlement of the estate in which deceased's agent is made a party in order to dispose of a claim due the agent by the estate cannot be pleaded in bar of a suit by the personal representative of the estate against such agent for an accounting. Causes of action are not identical. Botto's Etr v. Bockoven \[Neb.\] 98 N. W. 406. An Ky. L. R. 2130, 80 S. W. 174. A rule to open judgment held under advisement is a bar to a bill in equity for the same relief. Free-man v. Lafterty, 207 Pa. 32, 66 A. 230. A piea of pendency of an appeal from the vacation of an attachment is no defense to an action on the attachment bond unless coupled with an allegation that there was also a stay of an allegation that there was also a stay of an allegation that there was also a stay of an allegation that there was also a stay of an allegation that there was also a stay of an allegation that there was also a stay of an allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there was also a allegation that there3 Cur, Law. ABatement AND REVIVAL SS 1. 8

failure to prosecute an action during the period of the Civil War did not destroy its pendency.\[19\] The plea is good as to one of several counts.\[20\]

The pendency of a suit in a state court is not a bar to one on the same cause of action in a Federal court,\[21\] and diversity of citizenship does not change this rule

119 Ga. 185, 45 S. E. 588. Where a statute 100, 6 F. 833; Chamberlain v. Eckert, 2 Diss. gave a creditor the election to charge a stockholder with the amount of the Judge-7. Morto, Co. v. Follasbee, 9 Bis. 452, 14 F. ment recovered against the corporation on a 125; Union Mut. Life Ins. Co. v. University debt, or to proceed against the stockholder of Chicago, 10 Bis. 191, 6 F. 443; In r e Bin-on the debt, a reversal of the judgment at- 125; Inger, 7 Blatendt. 168, Fed. Cas. No. 141; er proceedings have been commenced there. Campbell v. Emmerson, 2 McLean, 30, Fed. on leaves the creditor free to proceed on the 8. No. 2,551; Certain Logs of Mahogany, 2 debt. Thomas v. Remington Paper Co., 67 Summ. 858, Fed. Cas. No. 2,559; Wadleigh v., Kan. 599, 73 P. 999, Where a bill to fore- 165, Fed. Cas. No. 17,031; close a mortgage was dismissed without 1997; Vapor v. Field, 4 Woots, 152, 16 F. 21; Lor-prejudice to plaintiff's right to try the valid- 125 of a feed, a ples of former suit pending 1997; Vapor v. Chesapeke & O. Canal Co., 4 in a subsequent action to set aside the deed 1997; Vapor v. Hill, 10 Sawv. cannot be sustained. Parlin & Orendorff Co. 394, 22 F. 28; Parsons v. Greenville & C. v. Hutson, 198 Ill. 389, 65 N. E. 8. A supplimentary intercoming petition was an 1997; Vapor v. Hompst. 198, Fed. Cas. No. 10,776; abandonedment of the first intervening petition. No. 5,792; Union Bank v. Jolly's Adm'rs, 18 tion, so it was not pending. Trimble v. Kansas City, P. & O. R. Co. \[Mo.\] 79 S. W. \[U. S.\] 170; Wallace v. McConnell, 18 Pet. 678. While an appeal was pending, a new one was taken and thereafter a motion to 204; Cook v. Burley, 11 Wailen \[U. S.\] 659; Glinnis was served by the respondent, but on oral argument the apellants' counsel 1997; Vapor v. Hill, 10 S. 648; Glinnis, 132 U. S. 647; Hughes v. Elsher, 5 the prosecution of the later appeal was not prevented. Noble v. Whitton \[Vwash.\] 76 P. 95. Future to press suit between 1864 and 1870; Water v. Hompst. 1987; Water v. Hompst. 1987; Water v. Hompst. 1987; Water v. Hompst. 1987; Water v. Hompst. 1987; Water v. Hompst. 1987; Water v. Hompst. 1988; Water v. Hompst. 1988; Water v. Hompst. 1988; Water v. Hompst. 1988; Water v. Hompst. 1989; Water v. Hompst. 1989; Water v.

## 4 ABATEMENT AND REVIVAL SS 1. 3 Cur. Law.

where the state court is without jurisdiction to enforce the remedy demanded."2 but where a prior action involving the same issues has been removed to a Federal

Haneock Steel & Iron Co., 11 Phila. (Pa.)

ment of a suit in another: Smith v. Atlantic 602; McRee v. Brown, 45 Tex. 503; Onieda Munt. Fire Ins. Co., 22 N. H.: H. Radford v. County Bank v. Bonney, 101 N. Y. 178, 4 N. Polson, 14 F. 97; Maillet v. Dexter, 1 Curt. E. 382; Russell v. Alvarez, 5 Cal. 48; Seymour v. 178, Fed. Cas. No. 8,888; Memphis City v. v. Bailey, 66 Ill. 288; Bullings v. Goodyear Dean, 8 Vall. U. S. 64; Central R. Co. v. Dental Vuleaite Co., 36 Mich. 313; Vill

## 3 Cur. Law. ABatement and revival 1.

court and is there pending, a state court will suspend trial pending its termination \[23\]. The pendency of an action in which the right sought to be determined can not be litigated and which must be dismissed for want of jurisdiction is not a bar to a subsequent action.\[24\] An action in a state court against receivers appointed by a Federal court will not abate by the transfer of the property and discharge of the receivers.\[28\] An action by stockholders on behalf of themselves and other stockholders against the corporation for an accounting and to set aside a mortgage is not dismissible because a director had commenced an action for the same relief;\[28\] but the trial should have been deferred until a determination of the other action.\[27\] A suit by a receiver against a stockholder for an assessment is not a bar to a suit by the stockholder as a depositor to recover the amount of a deposit.\[28\] The rule of his pendens has no application where it is sought to abate the prior suit.\[29\]

- **signment set aside as fraudulent, and that** **national court against the resident executor a receiver had been appointed in such suit, and other legates and helps to recover such** **site was no bar to the billi in the national court to subject land in court, especially as the plaintiff was not a** **the hands of heirs to the payment of their** **party in the state court. A billi in equity** **in** **ancestor's debt, it was held that** **proceed-a state court to prevent creditors from obtaining more than their share under a genuine** **limiting the time within which creditors** **oral assignment, by reason of their having** **securities, is not abated by a suit pending** **of the administrator before the filing of the** **share plaintiffs in the district court to bill, did not bar the action in the national court, it the complainant did not prove his** **ment as fraudulent and void: Wurtz v, Hart,** **claim in the state court, and allowed the** **time limited for the proof of claims to ex-** **by a nonresident creditor to set aside a** **trust** **dead made by his debtor, it is no detone that prior proceedings are pending in** **ad by any provision of the state law requiring** **c** **state court under an assignment for creditor** **made by the debtor: Gould v. Millan-** **court and present their claims: Chewett v.phy Planning-Mill Co., 32 F. 181. And the** **journalistication of a national court, previously acquired, cannot be ousted by proceedings** **in** **in** **discovery in state courts, if the parties** **force the rights of a distribute in the es-invoking such jurisdiction have not part-** **tet. a plea in** **h** **in** **abstment merely alleging the** **transited** **in** **the** **in** **discovery proceedings:** **pendency of prior proceedings in the** **probate court of another state, without distinctly** **admiralty against** **a** **vessel is no bar to an** **stabment suit at low in a state court against the owners for the same cause of** **action: Wolf v. Cook, 40 F. 432. In an action for** **freight money brought in a state court, it is not a sufficient answer to allege that the vessel has been libeled for the non-delivery of** **freight in a national court, as both actions may proceed at the same time without danger of a clash of jurisdiction:** **Russell v. Alvarez, 6 Cal. 48. In an action in a state court for services in fitting out a vessel, defendant cannot pleal in abate-** **ment the pendency of an action in** **rem for the same matter in a national court: People** **v. Judges of Wayne County, 27 Mich. 406. 16** **Ama. Rep. 195. A suit in a state court by re-plevin or attachment against a vessel cannot** **supersede the right of a court of admiralty to proceed by a suit in term to enforce a right or llen against such vessel: Certain** **Logs of Mahogany, 2 Sums. 585, Fed. Cas. No. 2,559: The Kalorama, 10 Wall, \[U. S.\] 204; Calne v, Seattle & N. R. Co., 12 Wash. 596, 41 F. 904.**

- **Probate matters: The pendency of a suit in a state court for the construction of a will cannot be pleaded in abstement or bar of a similar suit involving the same will in a national court: Loring v. Marsh, 2 Cliff. 311, Fed. Cas. No. 8,514. The pendency of administration proceedings in a state probe court does not bar proceedings in national courts involving the same issues: Holton v. Guinn, 76 F. 96.** **Pending the settlement of an estate in a state debate court, a citizen of another state, who is a legate under the will, may maintain a suit in a** **state court** **of** **the** **state court** **of** **the** **state court** **of** **the** **state court** **of** **the** **state court** **of** **the**state court\*\* \*\* * 3 Cur. Law. **ABatement and revival SS 1.**

_If the subject-matter of the controversy has ceased to exist,_ the suit will be dismissed; \[30\] but mandamus to enforce an officer's personal duty does not abate by expiration of his term, \[81\] though the contrary is true of an official duty unless expressly prevented by statute. \[82\] An action against a public administrator which is in its nature purely personal abates with his resignation, \[83\] nor can his successor be substituted, \[84\] and the discharge or removal of an administrator or executor acting as party plaintiff does not abate the action. \[85\] Under statutes providing that no action shall abate by the transfer of any, interest therein, bankruptcy proceedings do not operate to abate an action. \[88\] The appointment of a receiver does not abate a suit, \[87\] but a suit by a receiver under leave of court is abated by the annulment of his authority to sue, and no continuation by his successor is possible. \[88\] An action by a guardian for sale of a minor's real estate does not abate by his resignation and failure of his successor to be substituted. \[89\] The objection that he is not the real party in interest cannot be raised against an unconditional assignee, though his assignors may be shown to retain an interest in the cause of action. \[90\]

_Death of a party_\[41\] before judgment\*\*\[42\] abates the action, but the death of a co-plaintiff does not, \[83\] and a suit in equity is not abated, but merely suspended. \[44\] The death of a principal in an action for a penalty abates the action as to suretics on his bond, \[48\] but a criminal prosecution does not abate on the death of the prosecuting witness. \[46\]

Mfg. Co., 84 App. Div. 333, SS N. Y. S. 313. \*\*36.\*\*Wiley v. Jewett Bros. & Co. \[Iowa\] Compare Stay of Proceedings, 2 Curr. L. 1736. \*\*98 N. W. 114. \*\*98.\*\*It was set up that the deposit was used to pay the depositor's subscription, receiver has been appointed for a corpora-which subscription was denied. \[89\] Note that Banking Co.'s Receiver v. Adams, 24 Ky. \*\*106.\*\*L. R. 2083, 72 S. W. 1125. \*\*90.\*\*An action brought under the landlord and tenant act to recover rent and the possession of premises will not be abated by the institution of a subsequent action of forcible entry and detanner for the recovery of the same premises. \[90\] Number Comm. Co. \[91\] The court approves the new guardian's had expired. \[92\] N. W. 1000. \*\*31.\*\*To compel a probate judge to report and turn in fees in excess of maximum salary allowed by jaw. \[93\] Finley v. Terr., 12 Okl. 621, 78 F. 273. \*\*4.\*\*A writt of mandamus by an employee of a city to procue his reinstatement by the head of the department does not abate because the head of the department goes out of office. \[94\] The court approves the new guardian's had expired. \[95\] N. W. 1000. \*\*32.\*\*To compel a probate judge to report and turn in fees in excess of maximum salary allowed by jaw. \[96\] Finley v. Terr., 12 Okl. 621, 78 F. 273. \*\*A writt of mandamus by an employee of a city to procue his reinstatement by the head of the department does not abate because the head of the department goes out of office. \[97\] The court approves the new guardian's had expired. \[98\] N. W. 1000. \*\*33.\*\*To compel a probate judge to report and turn in fees in excess of maximum salary allowed by jaw. \[99\] Finley v. Terr., 12 Okl. 621, 78 F. 273. \*\*A writt of mandamus by an employee of a city to procue his reinstatement by the head of the department does not abate because the head of the department goes out of office. \[99\] The court approves the new guardian's had expired. \[99\] N. W. 1000. \*\*34.\*\*To compel a probate judge to report and turn in fees in excess of maximum salary allowed by jaw. \[99\] Finley v. Terr., 12 Okl. 621, 78 F. 273. \*\*A writt of mandamus by an employee of a city to procue his reinstatement by the head of the department does not abate because the head of the department goes out of office. \[99\] The court approves the new guardian's had expired. \[99\] N. W. 1000. \*\*35.\*\*To compel a probate judge to report and turn in fees in excess of maximum salary allowed by jaw. \[99\] Finley v. Terr., 12 Okl. 621, 78 F. 273. \*\*A writt of mandamus by an employee of a city to procue his reinstatement by the head of the department does not abate because the head of the department goes out of office. \[99\] The court approves the new guardian's had expired. \[99\] N. W. 1000. \*\*36.\*\*The court approves the new guardian's had expired. \[99\] N. W. 114. \*\*37.\*\*The court approves the new guardian's had expired. \[99\] N. W. 114. \*\*38.\*\*The court approves the new guardian's had expired.

The _dissolution of a corporation_ does not abate an action brought by it." In Alaska, an action to determine adverse claims to mining property does not abate on the death of one of several parties plaintiff or defendant.\[48\] Under Maryland statutes, an action to annul a fraudulent conveyance does not abate on the death of the vendor, though the vendee was her only heir.\[49\] An action by a trustee to preserve the estate does not abate by the death of the cestui que trust where the corpus of the estate was to go on his death to remaindermen.\[50\]

A _misjoinder_ is ground for abatement,\[51\] as, is nonjoinder.\[52\] There is no misjoinder of causes when the plaintiff has one connected interest centering in the point in issue.\[88\]

_Jurisdiction._-Lack of jurisdiction is ground for abatement,\[54\] unless a party has submitted thereto,\[58\] but where it must be established by evidence aliunde, a plea thereof may be united with other defenses without waiving the right to insist on lack of jurisdiction,\[58\] but this rule does not extend to cases where such plea is joined with a cross petition or counterclaim which necessitates a trial on the merits of the issues tendered.\[57\] Where the reversal of a judgment upon appeal will cause an action to abate, an appellate court has no power to impose terms by which the judgment may stand as security for any future recovery.\[58\] Some jurisdictions require the payment of costs as a condition precedent to maintaining a new suit.\[59\]

## 2 Raising objection; waiver.\[50\]

It is no defense that the former action was abatable if the right to raise that objection has been waived.\[51\] Appearance waives defects in process,\[62\] and an objection that does not go to the jurisdiction of the court, if not made by demurrer or answer, is deemed to have been waived.\[63\] A misjoinder

47, P. L. 1896, p. 295, $ 53, continuing cor-

porations after their dissolution as bodies and the cause of action arose in such county, corporate for purpose of prosecuting or defending suits against them. L. Bucki & Son

of his domileto is well founded. Pearson v. Lumber Co. v. Atlantic Lumber Co. \[C. C. A.\]

128 F. 332.

48. Rev. St. # 956 (U. S. Comp. St. 1901, p. 873) and Hill's Ann. Laws Or. # 88, 370,

p, providing that such action survived the death of a party thereto. Mackay v. Fox \[C. C. A.\] 121 F. 487.

49. The action was brought by a creditor of the vendor against both vendor and vendee. Sinclair v. Auxiliary Reality Co. \[Md.\]

67 A. 644.

50. People's Nat. Bank v. Cleveland, 117

Ga. 908, 44 S. E. 20.

51. Teotice v. Kent, 12 Okl. 674, 73 P. 310.

Aetton to determine adverse claims to mining property not subject to dismissal because parties joined as plaintiffs and patted with their Interests in the subject-matter. Mackay v. Fox \[C. C. A.\] 121 F. 487.

52. In New York, demurrer will lie for nonjoinder, but not for misjoinder (Code Civ. Proc. $ 4881). Adams v. Shingrall, 87 App.

Div. 312, 84 N. Y. S. 328. Action to determine adverse claim to mining property not subject to dismissal because a person who acquired an interest two years after the action was commenced was not joined as plaintiff. Mackay v. Fox \[C. C. A.\] 121 F. 487.

487. An answer pleading a defect of parties without specifying the defect is ineffectual. Hawkins v. Mapes-Reev Const. Co., $2 App.

Div. 72, 81 N. Y. S. 794.

53. Equitable petition against a foreign and domestic corporation in the latter of which plaintiffs owned shares of stock which the former held as transferee. People's Nat. Bank v. Cleveland, 117 Ga. 908, 44 S. E. 20.

And see Parties, 2 Curr. L. 1092.

54. Where defendants domileto is in a * 3 Cur. Law. ABatement and revival SS 2. either of actions\[54\] or parties\[65\] must be taken advantage of by plea in abatement, or where it appears from the face of the pleading, by special exception, which must be filed prior to the answer to the merits,\[66\] as a plea in abatement is waived by first pleading to the merits,\[67\] and though pleas in abatement and bar may be filed at the same time, the former should be first tried, as they are waived by proceeding to trial on the merits.\[68\] Where a plea in abatement is interposed, the party must stand on the plea and review the adverse judgment on error or the point will be waived.\[69\] Issues on the merits can be raised only by pleadings in bar, not by pleas in abatement.\[70\] A plea of nonjoinder of proper parties defendant must point out the defect or show that a complete determination could not be had without the presence of an additional party.\[71\] The plea in abatement must be promptly filed\[72\] within the time allowed by rule of court,\[73\] verified,\[54\] and relied upon,\[69\] though by reserving its plea to the jurisdiction in an answer to the merits, rights in abatement are not waived.\[74\] A plea in abatement is not defective for failing to state that another action pending was for the same relief.\[75\] The matter of abatement relied on must be specifically alleged.\[69\] Mandamus will not lie to compel a circuit judge to reinstate a plea of

fects in the process or service thereof. Sny- good as a plea in bar, but at most tends to plead a payment pro tanto. Dickerson v. Gerva,\[80\] A. Gerva,\[81\] A. Gerva,\[82\] A. Gerva,\[83\] A. Gerva,\[84\] A. Gerva,\[85\] A. Gerva,\[86\] A. Gerva,\[87\] A. Gerva,\[88\] A.

batement stricken from the files on the ground that the right to maintain it was waived."

## 3 Survivability of causes of action

The rule being general that only those causes of action survive which are assignable, the reader should note also the cases cited in dealing with the law of assignability.\[81\] The law of the place where the cause of action arose governs.\[82\]

_Personal actions\[83\]_ in tort do not survive at common law.\[84\] Hence the right to maintain such an action after the death of the injured party depends upon statutory authority, and its scope and effect are questions of legislative intention.\[85\] A statute providing that certain "actions at law" shall survive does not include causes of action.\[86\] A cause of action for wrongful death does not accrue to the personal representative or next of kin unless the deceased could have maintained an action for the wrongful act or neglect, had death not ensued.\[87\] A cause of action for a penalty\[88\] or for unlawfully keeping intoxicating liquors,\[89\] or for breach of promise of marriage,\[90\] does not survive the death of the defendant. A cause of action for the mutilation of the dead body of the husband does not survive the widow.\[91\] An action on a cause which does not survive will not be retained for the determination of the question of costs.\[92\]

_Real actions_, such as for the recovery of land,\[93\] or for injury to land,\[94\] or for trespass when the benefit of the trespass accrues to the estate of the trespass,\[95\] survive. If any part of the promises made in consideration of a contract to convey land have been performed, an interest is created which is a survivable cause of action.\[96\] An action to foreclose a mechanic's lien survives and may be continued against the successors in interest of a deceased owner, since the successors take subject to the lien and cause of actions and proceedings had to enforce the same prior to the owner's death.\[97\]

A _partnership cause of action\[98\]_ survives the dissolution of the partnership.\[98\]

## 4 _Revival and continuation.\[1\]_-The trial court during term may of its own\_

\[1\]
\[2\]
\[3\]
\[4\]
\[5\]

\[6\]

\[7\]

\[8\]

\[9\]

\[10\]

\[11\]

\[12\]

\[13\]

\[14\]

\[15\]

\[16\]

\[17\]

\[18\]

\[19\]

\[17\]

\[18\]

\[19\]

\[17\]

\[18\]
motion revive an action when appellant dies after a short transcript has been signed, but before the bill of exceptions is filed.\* A revivor is not necessary in a partition suit where a co-plaintiff acquires all the deceased plaintiff's interest by devise.\* A foreclosure is not a money judgment within the meaning of a statue providing for the enforcement of a decree for the payment of money, when rendered before defendant's death, without reviving such decree.\* Upon the death of one of several defendants, the action does not stand for trial as to the others, until revived against his representatives or abated as to them.\* Under the Federal statutes, where there are two or more plaintiffs or defendants in a suit where the cause of action survives, and one dies, the action does not abate, but the death being suggested upon the record, it will proceed at the suit of the surviving plaintiff against the surviving defendant.\* The right to a serie facias from a Federal court to revive an action is subject to the limitation of time imposed by state statutes.\* Motions to intervene must be filed before judgment.\* A cause of action which does not survive cannot be continued for the benefit of one who might have a cause of action for the same act.\* A party cannot obtain a continuance on the ground that a receiver has been appointed for the plaintiff.\* To continue an action brought by the injured party under a statute giving survivability "for personal injuries other than those resulting in death," it must be alleged and shown that the injuries did not result in death.\* For purposes of revival, parties plaintiff and defendant are not changed by pleading a set-off.\* _Substitution of parties._*\_\*\*-**The practice by which substitution or amendment of parties is effected pertains to the law of parties,* and to appeal where the cause has been or is in process of being sent up.* In case of the death of a party defendant, it devolves on the plaintiff to cause a substitution of the proper representative,* and the substitution should be made in the trial, not in the appellate court.\* An action cannot be dismissed on motion for failure to substitute the proper party for a deceased party to the action,\* though an order may be obtained on proper notice, requiring the suit to be revived within a time fixed, or be dismissed.\* Actions should be revived and prosecuted in the name of the

## 12 ABatement and Revival $ 4.

3 Cur. Law.

executor or administrator and not of a device,\[20\] nor of the heirs,\[21\] unless the action is in reference to rights in reality only.\[22\] In Minnesota, an action for damages for personal injuries, commenced by the person injured, may at his death be continued by the personal representative as an action for wrongful death for the benefit of the widow and next of kin.\[23\] Heirs at law cannot be substituted in a cause of action in reference to personal property.\[24\] But in a controversy involving the title to real estate, the heirs are necessary parties.\[25\] In many states substitution of a pendente like transferee\[26\] or assignee\[27\] is unnecessary. An action against a husband and wife, abated by death of the husband, cannot be revived by joining the wife and administrator, but a separate suit must be brought against the administrator.\[28\] If the object of an ejecment action is a homestead, it should not be revived against the administrator of the occupant, but against persons who succeed to the homestead.\[29\]

## 13 ABduction.

The statute of Missouri provides a punishment for any person who shall take away any female under the age of 18 years, from any person having legal charge of her person, either for the purpose of prostitution or concubinage.\[30\] This statute is held to define two distinct crimes which cannot be charged in a single count in an indictment.\[31\] The gravamen of the offense is the intent with which the female

## 14 Sharp v. Palse, 71 Ark. 342, 74 S. W.

\[state cannot be maintained after the death 296. The fact that a person is a device of a deceased plaintiff will not entitle such by the author, without amending the petleston substituting the widow and heirs, person to be substituted instead of the ex-ecutor.\[Id. Revival of an action in tort by Pikov for wrongful death of her husband.\]

\[state\] C. K. W. W. 844. In New York, 207 Pa. 118. 56 A. 350. Inresponse (to real estate) the administrator must continue. Rowe v. Cape Fear Lumber Co., 133 N. C.

\[state\] C. K. W. W. 843, 45 S. W. 844. In New York, a tenant in common who by devise takes his deceased co-tenant's share and is made sole executor by the author, on motion, continue an action in his own name relating to the estate for the full amount of the injuries to both interests, McPhillipe v. Fitzgerald, 76 App. Div. 15, 78 N. X. 8. 631.

\[state\] C. K. W. W. 844. In New York, 207 Pa. 118. 56 A. 350. Inresponse (to real estate) the administrator must continue. Rowe v. Cape Fear Lumber Co., 133 N. C.

\[state\] C. K. W. W. 845. In New York, a tenant in common who by devise takes his deceased co-tenant's share and is made sole executor by the author, on motion, continue an action in his own name relating to the estate for the full amount of the injuries to both interests, McPhillipe v. Fitzgerald, 76 App. Div. 15, 78 N. X. 8. 631.

\[state\] C. K. W. W. 846. In an action against one to determine rights to an esment where no damages were asked, his administrators were not proper parties to the suit on his death pendente. Stolte v. Tuska, 83 App. Div. 426, 82 N. Y. S. 83.

\[state\] C. K. W. W. 847. In Minnesota, an action for damages for personal injuries, Anderson v.

\[state\] C. K. W. W. 848. In Minnesota, an action for damages for personal injuries, Anderson v.

\[state\] C. K. W. W. 849. In Minnesota, an action for damages for personal injuries, Anderson v.

\[state\] C. K. W. W. 840. In Minnesota, an action for damages for personal injuries, Anderson v.

\[state\] C. K. W. W. 841. In Minnesota, an action for damages for personal injuries, Anderson v.

\[state\] C. K. W. W. 842. In Minnesota, an action for damages for personal injuries, Anderson v.

\[state\] C. K. W. W. 843. In Minnesota, an action for damages for personal injuries, Anderson v.

\[state\] C. K. W. W. 844. In New York, a tenant in common who by devise takes his deceased co-tenant's share and is made sole executor by the author, on motion, continue an action in his own name relating to the estate for the full amount of the injuries to both interests, McPhillipe v. Fitzgerald, 76 App. Div. 15, 78 N. X. 8. 631.

\[state\] C. K. W. W. 845. In Minnesota, an action for damages for personal injuries, Anderson v.

\[state\] C. K. W. W. 846. In Minnesota, an action for damages for personal injuries, Anderson v.

\[state\] C. K. W. W. 847. In Minnesota, an action for damages for personal injuries, Anderson v.

\[state\] C. K. W. W. 848. In Minnesota, an action for damages for personal injuries, Anderson v.

\[state\] C. K. W. W. 849. In Minnesota, an action for damages for personal injuries, Anderson v.

\[state\] C. K. W. W. 840. In Minnesota, an action for damages for personal injuries, Anderson v.

\[state\] C. K. W. W\* 3 Cur. Law. ABSENTTES.

is taken,\[22\] which intent may be gathered from the facts and circumstances connected with the taking.\[38\] The California statute makes punishable the act of taking away any female under the age of 18 years from her father for the purpose of prostitution.\[34\] The crime is committed where the criminal intent is formed, though the taking of the female originally may have been for a proper purpose.\[48\] Under the Iowa statute against forcible deflement, the taking of the person for such purpose must be unlawful and against the woman's will, and the indictment must so allege.\[49\]

## 0.4 ABORTION.

The one furnishing the instrument or prescribing the medicine to procure mis-carriage is guilty as principal, though not present when the instrument was used or medicine taken.\[48\] One who employs another to perform an operation to produce an abortion and arranges for it and otherwise assists, is an accessory and may be punished as though he were the principal offender.\[50\] The victim of an attempt to produce an abortion is not strictly an accomplice of the one accused of the crime.\[51\]

_Evidence.\[49\]_--Illicit relations between defendant and the victim may be shown,\[41\] but not his acquittal of seducing her.\[42\] Dying declarations of the victim are admissible,\[48\] and her statements to a physician have been held not to be privileged;\[44\] but a statement that a certain drug caused her miscarriage has been excluded as a mere conclusion.\[45\] Previous abortions attempted by the victim herself,\[44\] or by others not connected with defendant,\[47\] or similar offenses by defendant upon other women, are inadmissible.\[48\] Physical appearances after the mis-carriage, together with statements of me victim before the alleged abortion, have been held sufficient to establish the corpus delici.\[49\]

## 0.5 In Indiana, a statute\[51\] provides for the appointment by the probate court\[52\]

- 572; People v. Powell, 4 N. Y. Cr. R. 585. And see 1 Curr. L. 6, n. 93.
- 32. State v. Adams \[Mo.\] 78 S. V. 685.
- 33. She is 14hole for other crimes \[Gen. St. 1902, SS 1155, 1156, 1157\]. State v. Carey viction for abduction reversed and new trial
- 40. See 1 Curr. L. 7, n. 15-21.
- 41. To show a motive. State v. Carey v. Carey
- 56 A. 632.
- 42. State v. Carey \[Conn.\] 56 A. 632.
- 43. Dying declaration of the victim as to acts and words of the accused when he was alleged to have brought the Instrument, and woman-keeper of a baudy house, who testl-hed to protect herself. People v. Masterson, 160 Ind. 464, 67 N.
- 58 N. Y. 8. 747.
- 33. State v. Adams \[Mo.\] 78 S. V. 685. The criminal intent being shown, the defense of a common-law marriage failed. Id.
- 34. Pen. Code, 6 j 267. People v. Lewis, 141 Cal. 643, 76 P. 189.
- 35. People v. Lewis, 141 Cal. 543, 75 P.
- 189. State v. Hromadko \[Iowa\] 99 N. W.
- 560.
- 37. Seifert v. State, 160 Ind. 464, 67 N. E.
- 100. Acts Gen. Assem. 1883, p. 547, entitled "An act to amend the criminal law by providing for the punishment of abortion," is unconstitutional so far as it provides a punishment for persons who shall advise the commission of the crime, because not cx-pressed in the title. State v. Fields \[S. C.\] 46 S. E. 771.
- 38. Gen. St. 1902, SS 1583. State v. Carey \[Conn.\] 56 A. 632.
- 39. She is 14hole for other crimes \[Gen. St. 1902, SS 1155, 1156, 1157\]. State v. Carey
- 40. See 1 Curr. L. 7, n. 15-21.
- 41. To show a motive. State v. Carey
- 56 A. 632.
- 42. State v. Carey \[Conn.\] 56 A. 632.
- 43. Dying declaration of the victim as to acts and words of the accused when he was alleged to have brought the Instrument, and when told of her pregnancy, held admis-sible, Seifert v. State, 160 Ind. 464, 67 N. E.
- 58. 100.
- 44. Statements by victim to a physician, tending to show innocence of accused, held, under the circumstances of this case, to be not privileged. Seifert v. State, 150 Ind.
- 464, 67 N. E. 100.
- 45. Stanley v. State \[Tex. Cr. App.\] 73 S. W. 400.
- 46. State v. Carey \[Conn.\] 56 A. 632.
- 47. State v. Crofford, 121 Iowa, 395, 96 N.
- 589. Evidence of a request by defendant's co-conspirator to another physician to commit a prior of an administrator, and on his death of an administrator de bonis non\*\* for persons absent from the state for a specified period,\*\*\[34\] **having the same powers and subject to the same duties and liabilities as an administrator of the estate of a decedent.**\[55\] **ABSTRACTs OF TITLE.**

In some jurisdictions an abstract of title is required as auxiliary to the petition in certain real actions.\*\*\[56\] **The duty of furnishing abstracts may by terms of contract become condition precedent to sale of land.**\[57\] **An abstractor is not a guarantor of the title, but is liable for errors caused by failure to exercise ordinary care:**\[58\] **but only in case such errors result in loss.**\[59\] **The measure of damages is the difference between what the purchaser paid for the property and the present worth of what he actually received.**\[60\] **In a suit by an abstractor for compensation, the following elements of value enter: First, the use of the capital invested; second, the services of the abstractor in preparing the abstract; third, the liability of the abstractor to the purchaser of the abstract for damages resulting from defects therein.**\[61\] **Records of judgments are usually open to the inspection of abstractors,**\[62\] **and mandamus will lie to compel a clerk of court to**

**ceedings against nonresidents generally are treated in such topics as Attachment, 1. Curr. L. 239; Process, etc., I Curr. L. 1259. See, also, Foreign Corporations, 1 Curr. L. 40.**

**51. Burns' Rev. St. 1901, 2 2385 et seq.**

**52. In order to give the probate court jurisdiction to appoint such administrator, it is not necessary that the absente should at any time have been a resident of the county where the proceedings are instituted, but it is sufficient if he has been a resident of the state and has left property in the county. Rompy v. State \[Ind. App.\] 67 N. E. 959.**

**53. In case of the death of such administrator, an administrator de bonis non may be appointed who has authority to collect the personal assets of the absente, whether he is living or dead, and can maintain an action against the autetics on the administrator's bond for money wrongfully converted by him. Rompy v. State \[Ind. App.\] 67 N. E. 958.**

**54. The validity of a proceeding to appoint an administrator of the estate of an absente is not affected by the fact that he is still alive. Rompy v. State \[Ind. App.\] 67 N. E. 998. The sureties on the bond of such administrator, in an action thereon to recover for the conversion of money received by him in his official capacity, are stepped to assert, against the reclats of the bond, that the absente was not deceased or that th administrator was not in fact the administrator of his estate, or that his appointment was invalid, or that he was not subject to all the liabilities and duties of an administrator of a decedent's estate, in relation to the personal property that came into his hands as such administrator, by reason of his appointment as such, and the execution of such bond. Id.**

**55. Rompy v. State \[Ind. App.\] 67 N. E. 998. The acts of such administrator are made binding on such absente, should he return, as if they were his own acts, if they are performed in good faith and without fraud. Id.**

**56. See Trespass, 2 Curr. L. 1891 (trespass to try title).**

**57. Hutchinson v. Coonley, 209 Ill. 437, 70 N. E. 686.**

\*\*58. Kenthan v. St. Louis Trust Co. \[Mo. App.\] 73 S. W. 384. Negligence not to note a judgment lien in the abstract. Benkert v. Title G. T. Co., 102 Mo. App. 267. 76 S. W. 641. Not negligence in examining a trans-

\*\*64. Not negligence in examining a trans-

\*\*59. An abstractor is not liable for fail-

\*\*50. An abstractor is not liable for fail-

\*\*51. An abstractor is not liable for fail-

\*\*52. An abstractor is not liable for fail-

\*\*53. An abstractor is not liable for fail-

\*\*54. Not negligence in austract if such

\*\*55. How many works are needed to make the

\*\*56. Not negligence in austract if such

\*\*57. Not negligence in austract if such

\*\*58. Not negligence in austract if such

\*\*59.

## 8 Cur. Law. Accession and Confusion of Property.

deliver transcripts of judgments on his docket to any abstractor for use in his business upon tender of the fees prescribed by law.\[68\] An abstract cannot be assumed to be false from the fact that it does not recite that it was made by a bonded abstractor.\[64\]

## 9 Accession and Confusion of Property.

Confusion of goods, if committed with fraudulent motive, subjects the transaction to an inflexible rule, rigorously enforced, that the wrongdoer shall not profit by, nor the innocent party suffer from, the wrong,\[65\] and where one mingles property of another with his own, he is estopped to assert title to any particular part of such mixture,\[66\] and the burden of identifying his own is cast upon him;\[67\] but if the

## 10 **43**. State v. Scow \[Minn.\] 100 N. W. 382.

grave doubt or serious question of validity.

64. An unauthenticated abstract was the only evidence to show privity between a grantor and one holding under mortgage

It was held that one employed to examine foreclosure. It was admitted without objection and assumed to be regular. It was the plaintiff was not liable where a fee was held sufficient to show privity. Goddard v.

Carke \[Neb.\] 96 N. W. 350.

NOTE.-Linbility of exammer of abstract

Where an exammer of titles has received

file is not, however, obliged to advise his special instructions as to how the exammer of the security from

in tandem is to be made, he is liable for any

as preliminary point of view. Cohn v. Heus-

less resulting from his failure to carry

them out, Gilbert v. Williams, 8 Mass. 61,

aimner undertakes to record papers, and

57. Apart from instructions, the exammer

is liable to the client for any minglevance

vene, he will be liable for such delay. Mill

or unreasonable neglect. He must act in

jer v. Wilson, 24 Pa. 114. If the exammer

good faith and to the best of his skill and

knowledge (Id.: Varnum v. Martin, 15 Plek.

\[Mass.\] 140; Wilson v. Cohn, 2 Cush. \[Mass.\]

pensation (Cavery v. McOwen, 123 Mass.

316: Holman v. King, 7 Mete. \[Mass.\] 384),

574: Varnum v. Martin, 15 Plek. \[Mass.\]

and he must employ all usual and proper

440), and, in an action for services, evidence

methods to effect his commission, and mere

good faith will not excuse lack of ordinary

and the owner was later obliged to re-

skill and prudence. Denborn v. Dearborn,

15 Mass. 316; Thomas v. Sebe, 80 Iowa, 237,

45 N. W. 635; Sav. Bank v. Ward, 100 U. S.

195: Bowman v. Taliman, 27 How. Pr. \[N.

Y.1 212, 264; Byrnes v. Palmer, 18 Applic. Div.

J, 45 N. Y. S. 479; Fay v. McGuire, 20 App.

Div. 569, 47 N. Y. S. 286; Lawall v. Groman,

amination of Land Titles, 80.

180 Pa. 532, 37 A. 98. An abstract of title

is presumed to cover suits as well as con-

vances. Thomas v. Schee, 80 Iowa, 237,

15 N. W. 635. It is not every error, how-

ever, for which the attorney is liable. Thus,

15 In table to the plaintiff for one-fourth of the

an error of judgment upon a doubtful quest-

profits of all gas so mingled. Stone v. Martin in the construction of statutes would

not be regarded as evidence of negligence or

want of skill \[Gilbert v. Williams, 8 Mass.

61, 67; Morrill v. Graham, 27 Tox. 646; Sav.

principal attached to the entire stock until

Rank v. Ward, 100 U. S. 195, 199), while a

the value of the goods was returned to

disregard of a plain stutter provision (Cav.

him or properly accounted for. A stock of

erly v. McOwen, 123 Mass. 574); of well def-

mechanics and storextures sent to an

fined rules of law or practice (Goodman v.

agent to sell. Lance v. Butler \[N. C.\] 47

Walker, 30 Ala. 482; Hillegas v. Bender, 78

8. E. 488. Such agents' mortgage acquired

Ind. 225; Citizens' L. F. & Sav. Ass'n v. Fried-

no title. After an agent mixed his own

ley, 123 Ind. 143, 23 N. E. 1075; Breedlove

v. Turner, 9 Mar. \[O. S.: La.\] 353; in re

cuted a chatter mortgage on the whole. Id.

Cstate of A. B. I'lue \[N. Y.\] 247), would

Go. Where a landlor mingled pinches of

be such evidence. It seems that the attor-

oeu belonging to a tenant and subjectother party appropriates the whole, he is liable to the extent to which this burden can be sustained.\[68\] There is no confusion within this rule as long as the property is capable of easy identification.\[69\]

_A form of accession\[70\]_ results from giving the character of fixtures to improvements on land;\[71\] but one entering land under color of title and in good faith, and making improvements\[72\] is entitled, when dispossessed by the holder, of a superior title to recover their value, and the right is the same whether the remedy is sought in law or equity;\[73\] but recovery cannot be had for the value of improvements placed on the land during a period when the title was in dispute,\[74\] or one was not in possession under color of title,\[75\] or where by statute it is only allowed as a set-off against damages.\[76\]

amount, he cannot complain that a verdict not whether the property be movable or is too large, it being presumed that the party, to taking the ore knew the exact amount.

An instruction that one was entitled to re- Stetson, 7 Cush, \[MAss.\] 485. A wrongdeer over the value of the entire mixture was

canton by changing the form change the erroneous. Maloney v. King \[Mont.\] 76 P.4.

title (Single v. Schneider, 24 Wis., 299), nor 68. Where a mortgagor of logs confuses can a tressasser acquire title to crops which them with logs of a third party and the latter converts them into cash, he is liable

Kan. 151); but it is held otherwise if he to the mortgage as for money had and re- plant on railroad right of way (Lindsay v.

evolved to the extent of the mortgage in-

Winnoa & St. Peter R. Co., 29 Minn, 411).

debtedness. Illinois Trust & Sav. Bank v.

If a tressasser convert the property into a Alexander Stewart L. Co., 119 Wis., 54, 94 N.

different species, he may claim title. Sills-

W. 777.

bury v. McGoun, N. Y. 37, But the mod-

69. Not in case of branded cattle. McGunst & St. C. A.\] 130 P. 659.

a change of species are few and it seems im-

70. See 1 Curr. L., 7.1, p. 29-34.

logs are concerned; thus where logs were

72. Darnell V, Jones' Extra, 23 Ky. L. R.

saved into shingles (Betts V. Lee, 6 John., 2909, 72 S. W. 1108). One who hin good faith

\[N. Y.\] 349), or boards (Ricketts V, Dorrell, makes valuable improvements on land of

55 Ind. 470; Davis v. Easley, 13 Ill. 192), which he is in possession, under the belief

or where wood was converted into charcoal

that he is in the owner, may recover the value

(Curtis v. Groat, & Johns. \[N. Y.\] 168).

of such improvements when he is dispospos-

And in no event is the species changed if

sessed by one holding the better title

(Rev. St. (Mo.) 1899, & 3071). Kelly v.

Wooden-Ware Co. v., 106 U. S. 432; Gebhart \[Mo.\] 79 S. W. 437. Taxes, Insur-

Snyder v. Vaux, 2 Rawle \[Pa.\] 423; Potter

ance, improvements, necessary reparla and

v. Mardre, 74 N. C. 36). If, however, one

agents' commissions deducted from the rent

take property innocently, believing he had

collected in an assessment of mesne profits

a right to do so, the owner is confined to

in an action of ejecment (Muthership v.

a recovery of its value at the time it was

McCabe, 22 Pa. Super. Ct. 587), or clearing

converted. Carpenter v. Lingenfelter, 42

the land and paying the taxes thereon

Neb. 728. The party so taking acquires

(George v. Delaney, 111 La. 760, 35 So. 894).

title if he bestows labor thereon greatly dis-

73. Darnell V, Jones' Extra, 24 Ky. L. R.

proportionate to Its value when taken.

2909, 72 S. W. 1108.

74. After commencement of a suit to set

473: Eastman v. Harris, 4 La. Ann. 193. So

side a conveyance made in consideration of

one in possession of land under color of

future support, the husband of the grantee

title is entitled to the erpos sown. Martin

added improvements. Keister v. Cubine, 101

v. Thompson, 62 Cal. 618. The doctrine that

Va. 768, 45 S. E. 285.

875. Value of improvements refused to de

denant in an action to recover real estate

Cal. 154), especially when the owner is

where he was not a bona fide "holder of the

willing to indermity him (Veymouth v. Chilremises under a color of title believed by

cago & N. W. R. Co, 17 Wis. 560). A pur-

him to be good, * 3 Cur. Law. ACCORD AND SATISFACTION SS 1A.

**ACCORD AND SATISFACTION.**

- 1. The Accord (17). C. Fraud, Mistake and Duress (22). A. In General (17).
- 2. Satisfaction or Discharge (23). B. The Consideration (20).
- 3. Pleading, Issues, and Proof (23).
- 1. The accord. A. In general."--Accord and satisfaction is the acceptance of something agreed upon in settlement of a debt or obligation," or the adjustment of a disagreement as to what is due from one party to another, and the payment of the amount so agreed upon."

Where a note is accepted from one who is substituted for the original debtor, the transaction is a novation, and the original debt is abrogated." The acceptance of a new note from one of two obligors will not of itself work a novation in the absence of an understanding of the parties that the original obligation is to be thereby extinguished." An oral contract of novation is not void within the statute of frauds, because the original debt is abrogated."

The effect of an accord and satisfaction, when executed, is to extinguish the antecedent liability." It does not become operative until made so by its terms." It can only be repudiated or rescinded by mutual consent." Substantial compliance with the terms of such an agreement by the debtor will enable him to enforce it against his creditor," or the creditor may be estopped by accepting profefered payments to claim noncompliance by the debtor." It has all the force of

- 7. See 1 Curr. L. 8.
- 78. Militzer v. Supreme Council A. L. H.,

complete defense as showing that suit was brought before terms of the settlement had 41 Misc. 512, 56 N. T. S. 23.

- 79. More payment of an amount called a

Baines Grocery Co. (Tex. City. App.) 72 S.

- "balance" upon an account rendered and its

v. 260. Composition agreement held a good retention by the creditor is not an accord

defense. But recovery permitted to stand and satisfaction. Harrison v. Henderson, 67

In this case, because verdict of jury was

Kan. 194, 72 P. 875. Execution of lease by

only for amount to which plaintiff was en-

defenant to plaintiff or mining property,

titled by agreement. Talcett v. Janasson,

with provision that royalties should be

- 85 N. T. S. 833. Where, before trial of a

credited on plaintiff claim against defend-

suit to reform a contract, the parties ex-

ant, held not an accord and satisfaction.

cate a new contract embodying the desired

Boston Newmarket Gold Min. Co. v. Orme

(Colo. App.) 71 P. 885. A written acknowledgment of the payment of a definite sum in

v. 67. The court does not wholly lose juris-

settlement of a contract, with salary, inter-

set and allowance, is not conclusive evidence of an accord and satisfaction. It is

nothing more than a receipt. Komp v. Raymond, 175 N. T. 103, 67 N. E. 113. Signing

receipt for weekly salary, before dismissal

but after notice thereof, was not a release

inadmissible in evidence to affect the mat-

of damages for breach of contract. Eysson

v. Zlegfeld, 22 Pa. Super. Ct. 79.

80. That the amount of the note was

greater than the original liability would

not wholly defeat recovery thereon. Dillard v. Dillard, 118 G. 91, 44 S. E. 885.

81. Cutting v. Whittemore \[N. H.\] 54 A.

01.

01. Griffin v. Cunningham, 183 Mass. 505,

67 N. E. 660.

83. Boston Newmarket Gold Min. Co. v.

Orme \[Colo. App.\] 71 P. 885. A settlement

of pending litigation, freely made, after

competent advice, is binding and bars

ther action on the claim. Middlesex Banking Co. v. Fleid \[Miss.\] 87. No. 138. Where

D. paid S. money to support him, and becoming dissatisfied, demanded the money back

and thereupon a settlement was made, D. re-

ceiving a certain sum and releasing S. from

liability, D. has no claim against S. Downer v. Bassman \[VWs.\] 98 N. W. 430. Composite between debtor and creditor held a

- 3 Curr. Law--2

complete defense as showing that suit was

- 78. Militzer v. Supreme Council A. L. H.,

brought before terms of the settlement had

1 Misc. 512, 56 N. T. S. 23.

been compiled with W. Y. Taylor Co. v.

79. More payment of an amount called a

Baines Grocery Co. (Tex. City. App.) 72 S.

"balance" upon an account rendered and its

v. 260. Composition agreement held a good

retention by the creditor is not an accord

defense. But recovery permitted to stand

and satisfaction. Harrison v. Henderson, 67

In this case, because verdict of jury was

Kan. 194, 72 P. 875. Execution of lease by

only for amount to which plaintiff was en-

defenant to plaintiff or mining property,

titled by agreement. Talcett v. Janasson, an adjudication and cannot be attacked collaterally, or for error of law or lesion, in a direct action," but if a collateral attack be met, the court will decide questions of its validity and effect in order to end litigation."

A release of one of two joint tort fessors releases the other." The discharge of all joint debtors is commensurate with that of any."

A writing is not necessary." An accord and satisfaction is implied from acceptance and retention of a sum tendered in full," notwithstanding the protest of the creditor that he does not accept it in full." But if it be shown that such tender and acceptance is not in full, there is no accord and satisfaction."

88. Written release of claim for injury

01. A release in terms of one of two part-held valid and enforced. Russ v. Union Oil

ners of his share of a partnership debt op-Co. \[La.\] 36 So. 937. An .executed agreement of settlement confirming title in persons according to the terms of certain deseds

effectually settles the title, regardless of

frand or want of consideration as to the original deeds. Hence the question of fraud

or consideration need not be considered,

where such settlement has been made. Adams v. Hopkins \[Cal.\] 77 C. 712.

89. Russ v. Union Oil Co. \[La.\] 36 So. 937.

01. Plaintiff was injured in a collision between a street car and an express company's wagon. Held, a release of the express company released the street car

pany also. Hubbard v. B. Louis & M. R. Co., 173 Mo. 249, 72 S. W. 1073. A release of two defendants in a suit for damages for malicious interference with plaintiff's business held a bar to an action against the others. Dulaney v. Buffum, 173 Mo. 1, 78 S. W. 115.

NOTE. Effect of release of one joint tort

feasor on liability of the other: The general rule that a technical release of one joint tort fessor releases the other was laid down by Jittleton (2 Co. Litt, $ 376), and followed by the early English cases (Patridge v. Emson, Nov. 62, Kiffun v. VIII, 4 Mod. 380), and in the United States (Urton v. Price, $ 7 Cal. 270). And It is said that an accord and satisfaction with one joint tort fessor has the same effect as a technical release. Bailey v. Berry, 8 Am. Law

168. Byder v. Witt, 99 Tenn. 618, 42

001. W. 441. But the courts are coming to hold that when a release given to one joint tort fessor is not under seal, it may be treated as any other written instrument not under seal, and the consideration may be inquired into, though the body of the instrument may not be varied or contradict-

ed by parol; and when the damages are capable of proof or computation, and are not fully satisfied by the consideration, such a release is held a bar only pro tanto to the liability of the other joint tort fessor. Ellis v. Esson, 50 Wis. 138, 6 S. W. 518, 36 Am. Rep. 830. The court will seek for the intention of the parties from the words used and give effect to the instrument accordingly. Bloss v. Plymale, 3 W. Va. 393, 100 Am. Dec. 762; Irvine v. Millbank, 56 N. Y. 635. But if the release, though not under seal,

168. Byder v. Hillbank, 56 N. Y. 635.

001. But if the release, though not under seal,

001. By * 3 Cur. Law. ACCORD AND SATISFACTION SS 1A. Acceptance of a sum due under a contract does not amount to a settlement of a claim for damages for breach of the contract." The general rules of construction of contracts apply to contracts of accord and satisfaction." Only parties in interest may make binding contracts of accord and satisfaction." A settlement reached between a guardian and ward, after the ward has become of age, in the absence of fraud and misrepresentation, is valid." A sole beneficiary of a suit, under no disability, may settle.1 One of several joint creditors may lawfully enter into an accord and satisfaction with the debtor, and thus discharge the debt.2 Parties to an action may make a binding and valid settlement of the matters in dispute, without consulting the attorneys on either side." An attorney cannot settle or compromise a suit or claim without special authority,4 and the client will not be bound by a ratification, without full knowledge of the facts." A compromise of a claim by an executor, administrator or guardian, without an order of the court, where the statute requires it, is without authority and void." A contract of accord and satisfaction signed by a wife, after being signed and approved by her husband, is binding upon her, so far as her coverture is concerned." Satisfaction is only effective as to the parties to the accord." The discharge

ner v. Supreme Lodge K. and L. of the Gold-en Star, SS 8 N. Y. S. 786. Horse v. Callicott \[Miss.\] 35 So. 761. A 95. Mere tender and acceptance of a check, with no declaration that acceptance must be in full, does not constitute accord and satisfaction. Asher v. Greenleaf \[Kan.\] 74 P. 633. Payment of a draft, without knowledge of the amount actually due, does not constitute a settlement of an account, so as to preclude recovery of overcharges. D. Sullivan & Co. v. Owens \[Tex. Civ. App.\] 78 S. W. 373. Acceptance of a check for a less amount than that claimed, with notice to the debtor that it was not accepted in full settlement, held no accord and satisfaction. Mack v. Miller, SS 7 App. Div. 359, SS 8 N. Y. S. 440. 96. Marr v. Burlington, C. R. & N. R. Co., 121 Iowa, 117, 96 N. W. 716. Tender and acceptance of a sum admittedly earned is no satisfaction of a breach of contract of employment. Walston V. Calkins Co., 119 Iowa, 156, 93 N. W. 49. Whether plaintiff wavled his right to additional pay by accepting, with objection, part payment, held a question for jury. Stevens v. Mish. Soap Works \[Mich.\] 96 N. W. 435. 97. When the evidence as to a release is uncontroverted, the construction thereof is for the court. Tuebe v. Gulf, C. & S. F. R. Co. \[Tex. Civ. App.\] 77 S. W. 442. The intention of the parties will govern. Contract of accord and satisfaction by attorneys construed. Sweeny v. Kellogg, 90 App. Div. 644, 85 N. Y. S. 683. Contracts construed as not operating as an accord and satisfaction of a decree, and sale under decree permitted, payments made being credited. Tabor Mines & Mills Co. v. Newell \[Colo. App.\] 72 P. 804. Family settlement constructed, holding that the posterior clause determined the amount of interest assigned. Lasley v. Preston \[Mich.\] 93 N. W. 253. An agreement by judgment creditors not to enforce a judgment until a claim of a third party against them was settled, held too indefinite for enforcement and lacking in consideration. Burton v. Kipp \[Mont.\] 76 P. 563. 98. There is no consideration in such case. Honse v. Callicott \[Miss.\] 35 So. 761. A discharged administrative has no power to authorize a settlement of a claim against the estate. Upton v. Dennis \[Mich.\] 94 N. W. 728. 99. Norris v. Norris, SS 85 App. Div. 113, SS 8 N. Y. S. 77. 1. Widow settled suit for damages for husband's death, administrator not jolning. Mattoon G. L. & C. Co. v. Dolan, 105 Ill. App. 1.

or release of one joint dctor does not release the right of action against the others, unless such an intent affirmatively appears.\*

(SS 1) _B. The consideration._\[10\]--The accord must rest upon a sufficient consideration or be under seal.\[11\] The consideration must be something in the nature of a benefit to the creditor or party relinquishing the claim or a detriment to the other party.\[12\] Thus an agreement to forbear suit,\[13\] or extend time of payment,\[14\] the compromise of doubtful claims, asserted in good faith,\[15\] without regard to the final decision as to the validity of such claims,\[16\] unless absolutely unsustainable at law or in equity,\[17\] or an agreement not to go into bankruptcy or make an assignable .

A compromise in a suit to enforce liability on stock will not release a subsequent transaction of the stock from liability thereon. People's Home Sav. Bank v., Riekart, 139 Cal. 285, 13 P. 858. A compromise of a bona dide controversy as to a plaintiff and defendant whereby plaintiff took a sum of money and dismissed his appeal did not affect or benefit an intervener whose rights were concluded by the judgment. Kline v. Mohr, 142 Cal. 673, 76 P. 650.

- Code Cty. Proc. N. Y. 1942. Booth Bros, A. H. I. Granite Co. v., Baird, 83 App. Div. 495, 82 N. Y. S. 432. One partner and Joint debtor released by compromise after judgment recovered against him: held, other partner not released from residue of demand. Siefke v. Minden, 40 Misc. 631, 83 N. Y. S. 71.

- See 1 Curr. L. 9.

- Release of claim held invalid, because no consideration, etc. Muschel v. Austern, 84 N. Y. S. 956. Where a settlement is made by a debtor with a certain creditor, separate from any general settlement with other creditors, the burden is on the debtor to show a new agreement upon a sufficient consideration. Weinberg v. Novick, 88 N. Y. S. 168.

- A compromise agreement by which each party absolutely understakes to do certain things for the benefit of the other. New Haven Mfg. Co. v. New Haven P. & B. Co. \[Conn.\] 55 A. 604. One dollar and an agreement to employ for a definite time held sufficient. Quebec v. Gulf, etc., R. Co. \[Tex. Civ. App.\] 77 S. W. 442. Agreement to supply all broken parts and settle all accounts and by other party to pay on agreed terms for machinery, held to have consideration. New Haven Mfg. Co. v. New Haven P. & B. Co. \[Conn.\] 55 A. 604.

- An agreement to forbear to use on a claim on the debtor's promising to pay, and paying part of the claim at once, and the balance when convenient. Samuel Cupples Woodenware Co. v. Dreyfus, 102 Mo. App. 463, 76 S. W. 734.

- Extension of time of payment is sufficient consideration to support a release of claims for damages. William Deering & Co. v. Walker \[Neb.\] 96 N. W. 517.

- Note: "As a result of the authorities, a doubtful or disputed claim, sufficient to constitute a good consideration for an exectory contract of compromise, is one honesty and in good faith asserted, arising from a state of facts upon which a cause of action can be predicated, with the reasonable belief on the part of the party asserting it that he had a fair chance of sustaining his claim, and concerning which an honest controversy may arise, although in fact the claim may be wholly unfounded." Beach, Cont. # 175, ment," have been held sufficient consideration to support some form of accord and satisfaction. The settlement of a liquidated, undisputed liability, by payment of a sum less than that due, lacks consideration, and is void," unless there be a new, binding agreement upon a sufficient consideration.20 This general rule, however, is confined strictly to the cases falling within it,21 and even small circumstances of variation have been held sufficient to prevent its application.22 Thus, a payment in advance, no matter how short the time,23 or acceptance from an insolvent debtor of part payment in full satisfaction of a claim, is founded on such consid-

compromise Is void for want of considera-

18. Debtor agreed not to go into voluntary bankruptcy and creditor knew debtor

01. Hatzel v. Moore, 120 F. 1015: Standard

01. Sewing Mach. Co. v. Gunter \[Va-1\] 46 S. E. 690. Part payment of liquidated, undisputed

01. Hatzel v. Moore, 120 F. 1015: Standard

01. Seward Mach. Co. v. Gunter \[Va-1\] 46 S. E. 690. Part payment of liquidated, undisputed

01. Hatzel v. Moore, 120 F. 1015: Standard

01. Seward Mach. Co. v. Gunter \[Va-1\] 46 S. E. 690. Part payment of liquidated, undisputed

01. Hatzel v. Moore, 120 F. 1015: Standard

- 22 ACCORD AND SATISFACTION SS 1C. 3 Cur. Law.

eration that the entire debt is thereby satisfied.\[24\] The rule has no application to payments by a third party.\[25\] An agreement to discharge an indebtedness by payment of a less sum than is actually due is governed by the same rules as other contracts, when based on a sufficient consideration.\[24\]

If the sum due is in dispute or unliquidated, the payment of a sum less than that claimed, upon condition that it is to operate as full payment, is a good accord and satisfaction.\[27\]

If there be a sufficient consideration, it is immaterial that it moves to\*\* or from\*\* a third party, if at the request of a party to the accord.\[29\]

Payments made under an agreement void for want of consideration (or for other reasons) may be applied on the debt.\[21\]

(SS 1) \_C. Fraud, mistake and duress.\[32\]--An accord and satisfaction may, in a court of law or in equity, be set aside for fraud or misrepresentation in the execution or in the inducement to the execution of the contract.\[33\] A misrepresentation as to the legal effect of a release,\[34\] or as to its contents amounting to a mere 24.\_Engebretson v. Seiberling \[Iowa\] 98 N. N. \[the time his agent. Wagoner v. Silva, 129 V. 319. 25. 26. 27. 30. 206. 39. 55 A. 1064. And see 1 Curr. L. 9, n. 57. 26. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 30. 31. 33. 34. 35. 37. 39. 31. 34. 36. 38. 39. 32. 34. 39. 33. 35. 37. 38. 39. 30. 31. 34. 39. 35. 39. 36. 37. 39. 38. 39. 31. 39. 32. 33. 34. 35. 39. 36. 37. 38. 39. 39. 30. 31. 34. 39. 31. 35. 39. 32. 33. 36. 37. 39. 38. 39. 31. 39. 32. 34. 39. 33. 35. 39. 34. 36. 37. 39. 38. 39. 39. 30. 31. 34. 39. 32. 35. 39. 31. 36. 39. 32. 33. 37. 38. 39. 31. 39. 32. 34. 39. 35. 39. 36. 37. 39. 38. 39. 39. 31. 39. 32. 33. 34. 39. 35. 39. 36. 37. 39. 38. 39. 39. 31. 39. 32. 34. 39. 33. 35. 39. 37. 39. 38. 39. 39. 30. 31. 34. 39. 32. 35. 39. 33. 36. 37. 39. 38. 39. 39. 31. 39. 32. 34. 39. 35. 39. 36. 37. 39. 38. 39. 39. 31. 39. 32. 34. 39. 33. 35. 39. 37. 39. 38. 39. 39. 31. 39. 32. 34. 39. 35. 39. 36. 37. 39. 38. 39. 39. 39. 31. 39. 32. 34. 39. 33. 35. 39. 37. 39. 38. 39. 39. 39. 31. 39. 32. 34. 39. 35. 39. 36. 37. 39. 38. 39. 39. 39. 31. 39. 32. 34. 39. 39. 33. 34. 39. 35. 39. 36. 37. 39. 38. 39. 39. 39. 31. 39. 32. 34. 39. 39. 32. 34. 39. 35. 39. 36. 37. 39. 38. 39. 39. 39. 39. 31. 39. 32. 34. 39. 39. 33. 34. 39. 35. 39. 37. 39. 39 3 Cur. Law. ACCORD AND SATISFACTION SS 3.

promise,\[48\] will not render it void. If a release has been procured by fraud, it is not necessary for the plaintiff to pay into court the money received for its execution in order to have it set aside.\[36\] If a release is not supported by a consideration, it is immaterial whether it was fraudulently obtained, or whether the one giving it knew its contents.\[37\]

If parties act under a mistake\[88\] or misconception of rights,\[88\] the accord and satisfaction may be set aside. But a mutual mistake,\[40\] or one induced by negligence,\[41\] or a failure to draw a proper inference from facts communicated,\[48\] is no ground for relief.

Restitution is necessary when an accord and satisfaction is sought to be rescinded on the ground of fraud or bad faith.\[48\]

SS 2. \_Satisfaction or discharge.\[44\]--\_The satisfaction consists in the performance of the agreement by one party and its acceptance by the other. An agreement for an accord and satisfaction, which has never been executed, is ineffectual as an accord and satisfaction.\[45\] But though an accord, without performance according to its terms, is nonenforceable,\[48\] it may in a proper case become available as an equitable defense.\[47\] A tender of satisfaction is not sufficient.\[48\] Prior claims are presumed to be included in a settlement.\[49\] But claims not sued on and not included in a settlement may be subsequently sued on.\[49\] A release in general terms of all claims for personal injuries will include an injury not known to exist when the release was given.\[51\]

SS 3. \_Pleading, issues, and proof.\[52\]--\_An accord and satisfaction cannot be proven under a general denial, but must be specially pleaded.\[53\] Where, after suit

34, 55. Jackson v. Pa. R. Co., 69 N. J. Law,

75, 54 A. 532.

36. Jones v. Gulf, etc., R. Co. \[Tex. Civ. App.\] 73 S. W. 1082.

01. Woodall v. Pac. M. L. Ins. Co. \[Tex. Civ. App.\] 79 S. W. 1090.

01. Mistake of law and fact--Surprise.

Order of United Commercial Travelers v. McAdam \[C. C. A.\] 126 F. 358.

39. A compromise agreement in a mort-gage foreclosure suit, vacated because entered into owing to a mutual mistake or misconception of the rights of the parties. N. Y. Security & T. Co. v. Shoenberg,

89 N. Y. E. 14.

40. Russell v. Stevenson \[Wash.\] 75 P.

$27. A settlement made in ignorance of the existence of certain assets, held to bar a party to the settlement from participation in those assets. Dorman v. Dorman \[Mass.\] 69 N. E. 1043.

41. One who signs a written release, without reading it when he might have done so, will be held to have executed it with full knowledge of its contents. Atchison, T. & S. F. R. Co. v. Vanondstrand, 67 Kan.

386, 73 P. 118.

42. Daly v. Busk Tunnel R. Co. \[C. C. A.\] 129 F. 513.

01. Johnson v. Shreveport Vureworks Co., 109 La. 268, 23 B. 30. 309. In an action to set aside an agreement of settlement, it is necessary to restore or offer to restore what has been received thereunder; not so where one party has secured an unwarrant credit by fraud. Price v. Stout, 84 App. Div. 334,

82 N. Y. E. 935.

44. See 1 Curr. L. 11.

01. Prest v. Cole, 183 Mass. 283, 67 N. E.

01. Evidence held to show that an agreement to settle was abandoned, and hence

defense was not good. Seattle Brew. & Malt. Co. v. Donofrio \[Wash.\] 74 P. 823.

36. Jones v. Gulf, etc., R. Co. \[Tex. Civ. App.\] 73 S. W. 1082.

01. Woodall v. Pac. M. L. Ins. Co. \[Tex. Civ. App.\] 79 S. W. 1090.

01. Bradley v. Leavitt \[N. J. Err. & App.\] 55 A. 731.

01. Prest v. Cole, 183 Mass. 283, 67 N. E.

01. Upton v. Adeline Sugar Factory Co.,

109 La. 670, 33 So. 725; Mullins v. Vanarsdal,

25 Ky. L. R. 1979 S. W. 224. In an action by an assignee to recover for work done under a contract, defendant could not set up alleged defects in the work, after having made a settlement with the contractor subsequent to the assignment of the claim, the defects being apparent when the settlement was made. Pisani v. Jordan, 85 N. Y. S. 375.

50. Vanuzem v. N. Y. Life Ins. Co., 122 F. 107. Equitable title to land, in a son, under a trust deed from his father, held not to be released by an agreement where, by the son released all claims or demands against his father. Suit v. Stult, 97 M. 839,

55 A. 832.

51. Quebec is brought, a settlement is arranged, which defendant refuses to carry out, plaintiff cannot set up the settlement in a supplemental complaint.\[44\]. Frand cannot be pleaded generally. Facts sufficient to constitute it must be set out.\[55\]

The defense of accord and satisfaction must be clearly established,\[56\] but when shown to have been made, the burden is upon the party seeking to avoid its effect, and have it set aside, to show the necessary facts.\[57\] Fraud\[58\] or mistake\[69\] must be established by "clear and satisfactory" proof.

Parol evidence is admissible to show the inducements offered to secure the execution of a release,\[60\] but not to vary or contradict its terms by showing an oral contemporaneous agreement.\[61\] A written instrument which is a mere receipt and not a release may be modified, explained or contradicted by parol evidence.\[62\]

Fraud and knowledge are questions for the jury.\[68\]

**ACCOUNTING, ACTION FOR.**

**1. Nature of Remedy and Jurisdiction of Comtris (24).**

\*\*1.

**3** Cur. Law. ACCOUNTING, ACTION FOR SS 1.

**covery and the mutuality of their accounts,**${}^{ ttt est}$ and the existence of a fiduciary or partnership relation, are given as grounds for a bill in equity for an accounting, although the validity of the first two grounds mentioned has been much impaired by the modern practice of reference for the examination of accounts.**${}^{ t est}$ No right to maintain a bill in equity for an accounting results from the fact that a claim contains many items,**${}^{ t est}$ that the plaintiff does not know how much he is entitled to,**${}^{ t est}$ that there are set-offs,**${}^{ t est}$ **or that the claim is for a share of profits in a case where there was no complication or fiduciary obligation,**${}^{ t est}$ **or where the accounts are all on one side and no discovery is sought.**${}^{ t est}$ **A claim for a definite sum as the price of an interest in a business sold by one partner to another cannot be recovered by a bill for an accounting.**${}^{ t est}$ **A bill for the sole purpose of redeeming a pledge,**${}^{ t est}$ **or of obtaining a discovery,**${}^{ t est}$ **cannot be maintained, nor will it be allowed where there is an adequate remedy at law.**${}^{ t est}$ **Delay in bringing a suit to settle a partnership business may result in an equal division of the costs,**${}^{ t est}$ **or, in some cases, cause the claim to be barred by the statue of limitations.**${}^{ t est}$ **The right to a bill for an accounting may also be lost by an acceptance and settlement of an account rendered in the absence of fraud, accident or mistake,**${}^{ t est}$ **or, in**

**65. Eillison v. Dunlap, 25 Ky. L. R. 1495,**

**the items being neither numerous nor tech- 78 S. W. 165. The jurisdiction of equity**

**real. De Bevoise v. H. & W. Co. \[N. J.**

**cover matters of account is based on the**

**Eq.1. 58 A. 91.**

**completed character of the account, the**

**of the account, the**

**of discovery and the existence of a**

**70. Pollak v. H. B. Clafin Co., 188 Ala.**

**fludary or trust relation. Graham v. Cunmings, 208 Pa. 516, 57 A. 943; Alexander v.**

**71. Oden v. Lockwood, 136 Ala. 514, 83 So. Mason, 125 F. 830. Defendant had received**

**85. Hart v. Garrett Co., 87 App. Div. 538, many promissory notes for collection which**

**were for the most part paid in kind, which**

**had to be converted by him into cash.**

**71. E. 358.**

**vine v. Epstein \[Fla.\] 33 So. 1003. Debits**

**were sums received for the sale of land, and**

**not the appropriate remedy, and an action the credits payments for land, taxes and**

**other purposes. McClinotc v. Thweatt, 71 Ark. 323, 73 S. W. 1093.**

**66. \[Sprigg v. Com. Title Ins. & Trust Co., 206 Pa. 548, 6, 33, 78 A. 91.**

**67. Lee v. Washburn, 80 App. Div. 410, 80 Ap. Div. 800 N. Y. S. 1040.**

**80 N. Y. S. 1040.**

**See Reference, 2 Curr. Law, 1484. Although the modern practice in law courts of**

**the modern practice in law courts of**

**because of the Inventory being improperly**

**of allowing Interrogators to the opposing**

**taken. De Bevoise v. H. & W. Co. \[N. J. Eq.\]**

**party before trial obviates the necessity of a**

**bill in equity so the first two grounds. Lee v. Washburn, 80 App. Div. 410, 80 N. Y. S. 81.**

**72.**

**Note: An accounting may be had in**

**polyers against liability to their employees;**

**equity by one partner against the other**

**the premiums to be determined from the pay without a final winding up or dissolution**

**roll. An estimate was made in the beginning**

**(MIller v. Freeman, 51 L. R. A. 504, 111 Ga.**

**thing and premiums paid thereon, differences**

**654, 36 S. E. 961), and creditors for whose**

**benet an assignment has been made are**

**bate or additional payment. The employers entitled at all times to be informed of the**

**refused to make a statement in regard to progress of affairs (State v. Johnson, 103 WIs. 651, 79 N. W. 1081, 51 L. R. A. 33),**

**and upon the voluntary dissolution of a**

**building association, the principle of accounting with members is the same whether**

\*\*

## 26 Accounting, Action for $ 2.

3 Cur. Law. Louisiana, by an "authentic act."" The right cannot be used as a defense to an action upon a promissory note,"1 or in an 'equitable proceeding as basis for a cross bill by a person not a necessary party to the suit."2 Statutory actions of account between officers of corporations do not apply to foreign corporations in the absence of special provision to that effect."3 In Alaska, as in Missouri and Maine, when a partner dies the probate court has exclusive jurisdiction of an action for an accounting against his estate."4

SS 2. \_Persons liable and entitled to accounting.\_58--Liability of particular classes of persons to account is specifically treated in appropriate titles."8 Trustees and other fiducialaries may be compelled to account by a bill in equity."7 Partners have the same remedy against each other"8 after the cessation of the dealings in which they were jointly interested,"9 and before their account has been stated."9 A person by fraudulent conspiracy with one partner getting possession of the assets of the firm may, together with the fraudulent co-partner, be compelled to account."1

SS 3. \_Procedure before reference or without reference.\_92_Parties.\_93--A bill for an account against different parties on different causes of action is demurrable,"9 as is a bill seeking to review a consent decree for alimony."5 A bill for an accounting for the removal of a trustee appointed in a suit for divorce and seeking to review a consent decree for alimony and for adjustment of certain partnership matters between the parties is multifarious."

\_Pleading and evidence.\_97--Complainant in a bill for an accounting must allege that something is due him." If the bill demands an account on the ground of a partnership only, it cannot be maintained on any other theory."9 Debits due from plaintiff to defendant in an action on an alleged mutual account need not be pleaded with the same particularity as debts due from defendant to plaintiff for which recovery is sought." An account rendered, not objected to within a reasonable time, is prima facie correct." The report of a corporation expert, incorporated in the records of the corporation, is not competent evidence of the value of its stock."

80. Glennon v. Vatter, 109 La. 942, 33 So. 930. 81. Herbert Kraft Co. v. Bryan, 140 Cal. 73, 73 P. 746. 82. Memphis News Pub. Co. v. Southern R. Co., 110 Tenen. 684, 75 S. W. 941. 83. Miller v. Quincy, 88 App. Div. 629, 85 N. Y. S. 310. 84. 85. 86. 87. 88. 89. 88. See 1 Curr. L. 314. 86. 88. See Estates of Decedents. 1 Curr. L. 1090: Guardianship. 2 Curr. L. 148; Trusts, 2 Curr. L. 1924, etc. 87. 88. Deceil v. Hazelhurst O. M. & F. Co. \[Miss.\]. 36 So. 761: Jordan v. Underhill, 91 App. Div. 124, 86 N. Y. S. 620; Hotel Register Co. v. Osborne, 84 App. Div. 307, 82 N. Y. S. 609. Pretended joint-purchaser getting secret commission. Gates v. Paul, 117 Wis. 170, 94 N. W. 55. Defendant received a fund to invest In business turning over part of profit. Rogers v. Wheeler, 89 App. Div. 435, 85 N. Y. S. 981. 88. Adams v. Elwood, 178 N. Y. 106, 68 N. E. 126; Tregeva v. Mills \[Vbyo.\] 72 P. 578. 89. Bluntzer v. Hirsch \[Tex. Civ. App.\] 75 S. 89. W. 526. 90. Schulsinger v. Blau, 84 App. Div. 290, 82 N. Y. S. 686. 91. Green v. Tuchner, 87 App. Div. 314. 84 N. Y. S. 345. Where a patentee gave a manufacturer the right to manufacture the article, he to receive a royalty, and a large number of the articles had been manufactured and an accounting for the royalties refused, held, the contract did not create a partnership or joint adventure or any relation which justified an application to require the manufacturer to account in equity. Henderson v. Dougherty, 88 N. Y. S. 665. 92, 93. See 1 Curr. L. 14. 94. Case V. N. Y. M. St., & L. Ass'n, 88 App. Div. 638, 86 N. Y. S. 104. 95. A bill for an accounting, for the removal of a trustee appointed in a suit for divorce and seeking to review a consent decree for alimony, is demurrable as the consent decree was not subject to attack. Bonney v. Lamb \[Ill.\] 71 N. E. 375. 96. Bonney v. Lamb \[Ill.\] 71 N. E. 375. 97. See 1 Curr, L. 14. 98. Gould v. Barrow, 117 Ga. 458, 43 S. E. 702. 99. Kirkwood v. Smith, 82 App. Div. 411. 81 N. Y. S.

3 Cur. Law. ACCOUNTS STATED SS 1. 27

_Judgment or decres._\[4\]--After stating the account, a court of equity will enforce a settlement without requiring the prevailing party to bring suit,\[5\] and, besides distributing a fund in court, may order a partner to account for commissions he has received for the firm.\[6\] Where the bill of complaint and the evidence indicate that there were no profits, it is error to order the defendant to account.\[1\] Instead of appointing a receiver, the court may accept a bond with sureties from defendant, conditioned to comply with any order of the court.\[8\]

SS 4. _Reference and proceedings thereon._--If the defendant denies the right to an accounting, one should not be ordered except after hearing by an interlocutory decree.\[9\]

_Stating the account; items._\[10\]--The time of the final accounting in the suit is the time up to which the accounting should be made.\[11\] In an accounting of the holder of land, the respondent should be allowed interest upon money rightfully expended by him to take up prior mortgages.\[12\] If a partner contributes to the firm the use of real property, taxes upon that property are not chargeable to the firm.\[13\]

SS 5. _Proceedings on coming in of report._\[14\] Where the reference to a master for an accounting, the investigation, his report, and the confirmation thereof, all occurred within two hours, while the dealings covered more than six years, the case will be sent back for a proper trial.\[15\]

## 1. Nature and Elements of the Several

SS 2. Remedies on Account Stated (29).

**Kinds of Accounts (27).**

SS 2. Binding Effect, Rights and Labilities (29).

SS 1. _Nature and elements of the several kinds of accounts._\[16\]--To make an account stated, there must be a mutual agreement between parties and an assent to the account as rendered,\[17\] based on previous dealings and transactions between

11. Standard Fireproofing Co. v. St. Louis

**S.** Yarwood v. Billings, 31 Wash. 542, 72

**S.** M. F. P. Co., 177 Mo. 559, 76 S. W. 1098.

**P.** 104.

**G.** McGinn v. Benner, 22 Pa. Super. Ct.

**13.** Hart v. Hart, 117 Wis. 639, 94 N. W. 134.

**7.** Merrill v. Miller, 28 Mont. 134, 72 P. 423.

**8.** Cary Bros. v. Dalhoff Const. Co., 126

**16.** See 1 Curr. L. 15.

\*\*Aulditor's fee may, under statute, be ap-

**17.** Moore v. E. Holtooway & Co., 183 Ala.

**14.** Moore v. 448, 35 So. 453. To constitute an account

**Diekenson.** 117 Ga. 887, 45 S. E. 241. Where

**one owned patents for the manufacture of**

\*\*was to the balance struck upon a final ad-

**powder and induced another to furnish cap-**

\*\*Justment of the whole account. Hall v. New

**ital for manufacturing, and each party kept**

**Yorik Bruck & Pav. Co., 88 N. Y. S. 582. In**

**the property invested in their respective**

**order to constitute an account stated, there**

**names, and the party who furnished the**

\*\*must be either an express or implied admds-

**capital sold the entire assets to a new cor-**

**son of a balance due. Statement of balance**

**portion, in an action for an accounting, due in presence of debort without objection**

\*\*wilmer, 89 Misc. 588 N. Y. S. 873; Har-

\*\*wilmer, 89 Misc. 588, 80 N.

the parties,18 and upon a sufficient consideration.19 It need not be in writing in the absence of statute.20 Accounts in a bank pass book with vouchers returned is an account stated.21 The failure to object to an account rendered within a reasonable time is an admission of its correctness,22 as where a depositor receives his bank book duly balanced and canceled checks,22 unless sent to one who has never had any dealings with the sender,24 or the party sought to be charged is not made a party to the account.28 A party to whom an account is sent is given a reasonable time in which to examine and object thereto, and what is a reasonable time depends on the usual course of business between the parties and is a question of law.26 The mere silence of an administrator, when an account against his intestate is presented, does not authorize an inference that he has thereby stated the account and relieve the claimant from establishing it in the usual way or put upon the estate the burden of affirmatively establishing mistake or error.27 A statement of a sum which will be accepted in compromise is not an signee of an account for labor and materials, 586; Frees v. Truitt, 2 Colo. 489). Whether testimony by the assignor that he present-ed the bill and the defendant said he would send a check, which was denied by the defendant, is insufficient. Munler v. S. Aron-son & Co., 88 N. Y. S. 1006.

Footnote 28: https://www.frees.com/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/frees/freesrees/frees/frees/freesrees/frees/freesrees/frees/freesrees/freesrees/freesrees/freesrees/freesrees/freesrees/freesrees/freesrees/freesrees/freesrees/freesreesrees/frees * 3 Cur. Law. ACCOUNTS STATED SS 3. account stated,\[28\] nor is a confession of an amount due,\[29\] nor the mere furnishing of an account not given with a view to ascertaining the balance due,\[30\] nor the mere sending of statements.\[31\] An account charged in one item is not subject for a judgment as a book account.\[32\] Where there was no promise to pay in consideration of an extension of time, an instruction based upon such promise is erroneous.\[33\] An assignor of an account cannot settle after the transfer of which the debtor has notice.\[34\]

- 4. 5. 6. _Binding effect, rights and liabilities.\[35\]_--A stated account never gives one claiming under it the benefit of an absolute estoppel, but it may be impeached for fraud, mistake or error,\[38\] the burden of which is on the party impeaching,\[37\] and the evidence must be clear and satisfactory,\[38\] and can only be opened to the extent that fraud or mistake is clearly shown,\[39\] and an express exception of errors makes no difference, as that is always implied.\[40\] One rendering an account stated is bound thereby until a defect is specifically pointed out and objected to.\[41\] Though an account stated be proved, yet if it appear that it is wholly unfounded, there can be no recovery,\[42\] and where a claim is absolutely unsustainable, its compromise will constitute no sufficient consideration.\[43\] An account stated may be settled by payment of a smaller sum than that agreed upon.\[44\] Failure of an administrator to object to an account stated which is presented against the estate will not excuse establishment in the usual way.\[45\] An administrator's or executor's account when approved is a stated account, within rule as to surcharging and falsifying.\[45\]
- 3. _Remedies on account stated.\[47\]_--An action on a stated account is based on a new promise to pay into which all prior transactions are merged.\[48\] The 28. Coons v. Sanguinett, 86 N. Y. S. 367
- 29. _Wheeler v. Baker \[Mich.\]_ 93 N. W. 67; Noyes v. Smith \[Tex. Civ. App.\]\_ 77 S. 1059. 30. \_Harrison v. Henderson, 67 Kan. 202. 17 P. 878. 31. \_The sending of statements of account to a president of a corporation for goods sold him before the incorporation could not make him liable for the indebtedness. William Allen & Co. v. Sornset Hotel Co., 88 N. Y. S. 944. _A promise to pay an indebtedness made by a debtor after he became president of a corporation which succeeded to his business, even if made by him as president, is not binding on the corporation. Id._ 32. _Fee for legal services. Taylor v. Adicks \[Del. Superj.\]_ 55 A. 1010. _A charge for money loaned may be properly included in an open account for board, washing and attendance during a sickness. Miller v. Armstrong \[Iowa\]_ 98 N. W. 561. _An account which may be proved by afflawt, under art. 2266 of Tex. R. S. of 1879 must be for the value of personal property sold and delivered. Oden & Co. v. Vaughn Grocery Co. \[Tex. Civ. App.\]_ 77 S. W. 967. 33. _Where a general manager said that the directors would have to act upon the matter, it was merely the expression of a strong opinion that the directors would pay. Daytona Bridge Co. v. Bond \[Fla.\]_ 36 So. 445. $A$. _An instruction assuming this is erroneous. Ivy Coal & Coke Co. v. Long \[Ala.\]_ 36 So. 722. 35. $I$. _Curr. L. 16. 36. _Daytona Bridge Co. v. Bond \[Fla.\]_ 36 So. 445: Batson v. Findley, 52 W. Va. 343, 43 S. E. 142; Wonderly v. Christian, 91 Mo. App. 158; Leldish v. Keever \[Neb.\]_ 96 N. W. 106. _Inventory, Mine & Smpatter Sup._ 37. $A$.

three years' limitation applies to accounts stated and verbally or tacitly acknowledged, as well as open accounts.\[49\]

_Pleading.\[50\]_--A bill to reform an account for error must allege the mistakes distinctly.\[51\] An itemized copy need not be set forth in the pleadings.\[52\] One who objects to a stated account must allege an omission or deny the correctness of its items.\[53\] It is sufficient to require an affidavit of defense if the substance of the claim is set forth.\[54\] Payment as a defense must be specially pleaded.\[55\] Refusal by the judge to strike out credits and disputed items in plaintiff's account is not error.\[56\] Where the issue is one of balancing of opposing accounts, one may have a special exception if the items of an account are not specific enough.\[57\] Where a cause of action is on an account which one claims as assignee, an amendment declaring on an account stated immediately between the parties is a departure.\[58\]

_Evidence and questions of fact.\[59\]_--The proof must show that there was a meeting of the minds as to the balance due.\[50\] The account stated and unqualified approval of defendant must be shown.\[61\] It is not error to admit in evidence an account signed by both parties.\[62\] In an action on account stated, evidence of an arrangement between plaintiffs and defendants to pay plaintiff a certain sum and of certain payments made constitutes a prima facie case.\[63\] Where issue raised is as to the existence of a settlement, the defendant cannot surcharge and falsify it,\[64\] but any facts tending to show its improbability are competent.\[65\] Evidence of an account rendered by a third party to the defendant is not sufficient proof of the allegations of the complaint.\[65\] Evidence of a stenographer to whom was dictated a memoradum of a balance due in the presence of both parties is competent.\[67\] Where an issue arises as to an account, the best evidence is the books of account.\[68\] A statement of account in which a purchaser lists articles at what seller claims to be the agreed price is, in the absence of mistake, conclusive evidence that the prices had been agreed upon.\[69\] An ex parte statement of an account with an affidavit attached is not admissible in evidence against the other party.\[70\] In an action 40. Acts La. 1888, No. 78, amending and re-enacting Rev. Civ. Code, Ala. art. 3538. Plumbing Co. \[Neb.\] 93 N. W. 204. Bliet v. Sheet. 109 La. 302, 33 Sc. 322; Moore v. Crosthwait, 135 Ala. 273, 33 Sc. 28. 75, 74 P. 507. 85. See I Curr. L. 16. 851. Patson v. Frillley, 52 W. Va. 243, 43 S. E. 142. 852. Code Civ. Proc. $ 743, providing that it is not necessary for a party to set forth in his pleadings items of an account, but must on demand furnish the adverse party with a copy of the account, does not apply to actions on accounts stated, but only to open accounts. Martin v. Eclipse \[Mont.\] 77 P. 427. 853. Tate v. Gairdner, 119 Ga. 113, 46 S. E. 73. 854. Bridgeman Bros. Co. v. Swing, 205 Pa. 479, 55 A. 26. 855. Action on an account. Lord v. Graveson, 4 Ohio C. C. (N. S.) 265. 856. Stagg v. St. Jean \[Mont.\] 74 P. 740. 57. Malin v. McCutcheon \[Tex. Civ. App.\] 76 S. W. 586. 85. 85. Try Coal & Coke Co. v. Long \[Ala.\] 86 So. 722. 850. See I Curr. L. 16. 86. Upon dissolution of a partnership, the evidence failed to show that there had been an accounting and a balance found due. Hall v. New York Brick & Pav. Co., 88 N. Y. S. 852. 852. 853. 854. 855. 856. 857. 858. 859. 860. 861. Canhill-Swift Mfg. Co. v. Morrissey re-enacting Rev. Civ. Code, Ala. art. 3538. Plumbing Co. \[Neb.\] 93 N. W. 204. 862. Miller v. Campbell Comm. Co., 18 Okl. 75, 74 P. 507. 863. Sturgeon v. Wightman, 32 Wash. 195. 872. P. 1045. 874. Wonderly v. Christian, 91 Mo. App. 1851. Columbia Brewing Co. v. Berney, 90 Mo. App. 96. 885. Baker v. Griffin, 86 N. Y. S. 679. 886. Kaufmann v. Judah, 78 App. Div. 632. 88. X. S. 494. 897. Converse v. Scott, 137 Cal. 239, 70 P. 13. 898. Rogers v. O'Barr \[Tex. Civ. App.\] 76 S. V. 593. 89. 89. Ketchum v. Stetson & P. Mill Co., 33 Wash. 92, 73 P. 11 * 8 Cur. Law. ACKNOWLEDGMENTS SS 1.

- for balance due on an account stated, evidence of a witness that defendant fully understood that he was to pay the balance is objectionable as a conclusion." In an action on a guaranty, an account between principal and obligee made before suit brought is admissible in evidence against the guarantor, if the latter failed to deny its correctness."
- SS 4. _Remedies on open accounts._"--It is error for court to instruct the jury in an action upon an open account that the plaintiff might recover such sum as the services rendered were reasonably worth." In an action to recover balance due on an open account, a credit sheet which is ambiguous as to whether items are credits or debits will not justify the court in directing a verdict for defendant."
- An action on a book account for goods sold would not lie to recover upon an implied liability." The mode of proof provided by statute in a suit upon an open account does not apply to an action for damages, although an itemized list with values of damaged articles is attached to the summons and.sworn to as correct." Interest will be allowed from the time the account is due," or from time of bringing suit." An action is not barred where there has been a partial payment within the statutory period." Entries to be admissible need not be made in a regular account book," and non-entry is admissible to rebut evidence of payment." In an action on an account for commissions for selling land transferred to plaintiff, it was proper to cross-examine the assignor relative to the negotiations."

**ACKNOWLEDGMENTS.**

- 1. Nature, Office and Necessity (31).

- 2. \*\*Differs Who May Tinke (32).

- 3. \*\*Taking Acknowledgements (33).

- 4. \*\*Cerfience of Acknowledgement (33).

- SS 1. _Nature, office and necessity._"--Acknowledgment is not necessary as between the parties," or to constitute a grantee a bona fide purchaser as to third

- 80. Florence & C. C. R. Co. v. Tennant (Colo.) 75 P. 410.

- 81. Entries in a book relating to deliver-evidence if endorsed by the plaintiff on the memorandise, although containing summons, and compliant has no application to a suit in which the complaint alleges a sum due from defendant by account stated being the only book kept and the entries being made at the time of deliveries. Handy & sold at an agreed price. Moore v. E. Holdo-

- 82. In an action on book account, in rebuttal of evidence of payment, the books, showing no credits for such payment, are admissible in connection with evidence that the usual course of business at the store was that the payments if made would probably have been credited on the book. Handy & Co. v. Smith (Conn.) 68 A. 694. Exclusion of

- 83. In an action on book account, in rebuttal of evidence of payment, the books, showing no credits for such payment, are admissible in connection with evidence that the usual course of business at the store was that the payments if made would probably have been credited on the book. Handy & Co. v. Smith (Conn.) 68 A. 694. Exclusion of

- 84. In such a case, the author would have been made with credited therein

- 85. Try Coal & Coke Co. v. Long \[Ala.\] 36 So. 722. Evidence as to what induced defend-ant to make the sale is admissible. Id.

- 84. See 1 Curr. L. 17.

- 85. Title passes as between the parties and as to all having notice thereof. Deed of settlement between helfs. Slattery v. Slattery, 120 Iowa, 717, 95 N. W. 201. An unacknowledgeed chattel mortgage. Brown v. Koenig, 93 Mo. App. 563, 74 S. W. 407. Made before an interested party. Schwartz v.

## 33 Acknowledgments & 2.

8 Cur. Law.

parties;" but it is necessary to make a deed admissible as evidence," or to entitle an instrument to be recorded," or to convey," or incumbent the homesetad," which fact must appear from the instrument itself in the form of a certificate of the officer before whom it was taken," and cannot be proven by parol." A contract not acknowledged as required by law is unenforceable," and an unacknowledged plat does not constitute a dedication, either common law or statutory." A chattel mortgage need not be acknowledged by both husband and wife." Where justice requires, equity will aid want of acknowledgment by its decree."

2. Officers who may take."--Some courts hold that the taking of an acknowledgment is a ministerial act and may be performed by any one qualified to act as notary," and an interested person may take it," but the rule that an interested party cannot take obtains in Alabama," Iowa," Illinois" and Nebraska," but

Woodruff \[MiCh.\] $ N. W. 1067. A deed of

chase. The lessee had made valuable imwater rights unacknowledged and unrecorded.

provements. A witness saw the trustee sign, ed. Whalon v. No. Platte Canal & C. Co.

seal and deliver the instrument. The want

\[Vyy.\] $ P. 935.

of acknowledgment was not allowed to de-

8. As to third persons, acknowledgment

taken by an interested party. Derrett v. J. Eq.4 56 A. 371.

Britton \[Tex. Civ. App.\] $0 S. W. 562.

97. See 1 Cur. L 18.

01. Schwartz v. Woodruff \[MiCh.\] $3 N. W. 1067. A defective acknowledgment. Ed-

by president and chief executive of mortgage company. Keene Guarantary Sav. Bank

88. An unacknowledged mortgage is not

v. Lawrence, 32 W. 572, 73 P. 630.

until to record and is not constructive

note if recorded. Acknowledgment of a

whether the act of taking an acknowledgment mortgage taken before one of the

partnership mortgages. Farmers' & Merchant's Bank v. Stockdale, 121 Iowa, 748, 86

asachusetts, Minnesota, New Hampshire. New

N. W. 132. Forged acknowledgment to a

dead. Finley v. Babb, 173 M. 257, 73 S. W. 180. A statute providing that a deed

of record should be constructive notice

whether acknowledged or not has no appleation to a deed void because the ac-

labelled and in Tennessee a quasi judicial

knowledgment was forged. Finley v. Babb, 173 M. 257, 73 S. W. 180. A separate instrument acknowledging satisfaction of a

mortgage and payment of the debt, but

which is not acknowledged, is not entitled

to record and the recording thereof is not

constitutive notice. First Nat. Bank v. National Live Stock Bank \[Okl.\] $6 P. 130.

89. In Alabama, a deed to the homesetad without the voluntary signature and as-

sent of the wife shown by her priv examination, before an officer authorized to take

acknowledgments, is void. Slamp y. Hanners, 137 Ala. 199, 31 S. 900. A deed to-

u. Toledo Loan Co., 68 Ohio, 870, 67 N. R.

homesetad must be executed and acknowledg

edged by husband and wife. Teske v. Dittbermer \[Neb.\] $8 N. W. 57.

90. Contract to convey the homesetad.

Solt v. Anderson \[Neb.\] $9 N. W. 678.

91, 92. No certificate of acknowledgment.

Solt v. Anderson \[Neb.\] $9 N. W. 678.

93. A married woman executed a contract to convey land. Held, the purchaser could not compel conveyance from a subsequent

grantee who took with notice of his contract. Ten Eyek v. Savville, 64 N. J. Eq. 611, 54 A. 810.

94. Plat of a tract of land showing lots, blocks and streets. The city was restrained from opening the streets. Nodine v. Union, 42 Or. 613, 72 P. 682.

01. An Iowa statute requiring husband

and wife to sign a chattel mortgage. Brown v. Koenig, 99 Mo. App. 658, 74 S. W. 407.

96. A trustee had power to convey the

property by deed duly acknowledged. He

leased to one and gave him a right to pur-

97. See 1 Cur. Law.

01. See 1 Cur.

- 3Cur. Law.

even here the notary must have a beneficial interest in upholding the transaction after it is made.\* An acknowledgment and certificate thereof taken by a de facto officer before removal are valid.\* A United States consul,\* or a deputy clerk of court,\* may take.

SS 3. \_Taking acknowledgments.*--In the absence of statutory provisions, the law does not permit an officer to take the acknowledgment of a stranger without satisfactory proof of his identity.* An officer cannot lawfully take the acknowledgment of a person whose name is not at the time affixed to the instrument.\* No particular form of acknowledgment is necessary.\* **SS 4. _Certificate of acknowledgment._*The contents of a certificate are prescribed by statute.* It is a presumption that officers perform their duty so a certificate not made in strict conformity with a statute is liberally construed,* and a substantial compliance is all that is required.* A mere clerical error in a certificate will not destroy its validity.\* The certificate of acknowledgment of a writing not required to be recorded is no evidence of its execution.\* Words

- 4. A mortgage on a homested acknowul-redged before a notary who was an officer and stockholder of the corporation mortgage. Chadron Loan & Bldg. Ass'n v. 18 sufficient if the person acknowledges it.

- First Nat. Bank v. Glenn \[Idaho\] 71 P. 623.

- 5. An officer for a loan company which was agent for the loaner has not such in-terest. Gilbert V. Garber \[Neb.\] 85 N. W.

- 1030. A cashier who owns no stock in the bank may take an acknowledgment of a mortgage to the bank. Banking House of a Custetter v. Stewart \[Neb.\] 88 N. W. 34.

- 6. A certificate made by a notary after he had forted his office by accepting the office of judge of a criminal court. Old Dominion Bldg. & Loan Ass'n v. Sohn \[W. Va.\] 46 S. E. 222.

- 7. A consul of the United States is authorized to take at his consulate an acknowledgment of a deed to reality situated in this state, and his certificate under official seal is evidence of his acknowledgment \[CIV. Code 1895, $ 3621\]. Long v. Powell \[Ga.\] 48 S. E. 185.

- 8. Under statute providing that clerks of court shall have power to appoint deputes, the privy examination of a married woman annexed to a deed is sufficient to convey her interests, though made by a deputy in the absence of his principal, but purporting to have been taken and signed by the principal officially in his own person. Willerson V. Dembinson \[Tenn.\] 80 S. W. 185.

- 9. See 1 Cur. L. 19.

- 10. The certificate did not state that the person making it was known to the officer taking. Deserst Nat. Bank v. Kidman. 25 Utah, 379, 71 P. 873. An acknowledgment in which the notary certifies "Fersonally appeared before me the within named -- to me known and acknowledged the," etc., Is defective. Freedman v. Ophemkin, 80 App. Div. 487, 81 N. Y. 8. 110. A certificate of authen-tication in which the clerk of court instead of certifying that he is well acquainted with the indarry's handwriting, but verify believes his signature to be genuine is defective. Id. The cath of a subscribing witness "that he saw the grantor who executed the foregoing acknowledged in his presence" is insufficient to prove the deed for record, as not stating that he saw him perform the neces-sary acts and that he signed at grantor's

- 8 Cur. Law--3 added to the certificate detract nothing from the effect of the instrument properly acknowledged.19

- 5. _Authentication of officer's authority.20_

- 6. \_Operation and effect.21--It is the policy of the law to uphold certificates and they will be liberally construed if the substance be found and the statute has been substantially followed.22 The certificate of acknowledgment cannot be impeached except for fraud, collusion or imposition,23 and the evidence must be clear, convincing and satisfactory.24 The testimony of interested witnesses unsupported by other positive and credible evidence will not be allowed to overcome the certificate.24 A notary who takes an acknowledgment cannot give testimony impeaching it.24 An officer's certificate is more to be relied on than his memory after several years.27 The burden of impeaching a certificate is on the party claiming that it is false and fraudulent.28 An acknowledgment to the execution of an instrument carries with it the adoption of the signature thereto.29

- 7. \_Defects and invalidities.29--A defect in an acknowledgment may be fatal to the title.21 A legislative act curing defective acknowledgments is not retroactive,23 and cannot affect the rights of third parties, vested at the time it takes 19. Mortrage on homesetad property ac- when her husband and the notary were knowledged, added to the certificate was cate. Swett v. Large \[Iowa\] 97 N. W. 1104. "Homestad and dover being relinquished" by the wife. Burnside v. Mealer \[Ky\] 80 When mortgasors of a homesetad denied s. W. 785. "A foreign acknowledgment stating the tancy and mortgase testified that she did, venue as of a canton and city of Switzerland" evidence held insufficient. McGuire v. Wiliand and the officer as capsular agent of the \[Neb\] 99 N. W. 244. "Cited States at that place, held to comply with the real property law of New York. "The term of 3 Cur. Law.ACTIONS.

cffect.\[32\] Whether a seal is necessary depends on statute.\[33\] An acknowledgment by a married woman that it was her own act and deed is void under a statute requiring that she acknowledge that she signed willingly.\[34\]

## 6.4 Actions.

Only general questions relating strictly to Actions are treated. Causes of Action and Defenses and Forms of Action are distinct matters which are treated elsewhere.\[35\] The word "action" is used in statutes with varied meanings.\[36\] Motions have been held to come within the purview of that term,\[37\] as have special proceedings,\[38\] though for most purposes it is otherwise, but proceedings before a county board of supervisors are not actions.\[39\]

a Ilen acquired before It was passed. Fugman van J.irl Washington Bldg. & Loan Ass'n, the edes: In addition to the proceedings 203 III. 1176, 70 N. E. 644.

83. A trust deed to a homestead was vold because the notary who took the acknowil-tion and Ilke proceedings. In re Waerly edgment was interested; a subsequent trust deed to another party was valld: a curative fact. (Brown) 420; In re Broadway & Seventh stead was subsequently abandoned. Held, Ave. R. Co., 69 Hun, 276; In re City of the second trust deed was the prior line. Id.

Brocklyn, 148 N. Y. 107, 42 N. E. 418; In re Grade Crossing Corna, 26 App. Div. 271, 46 knowledgment of a deed in 1843 was without a seal was immaterial, no seal being re-under consolidation act. In re City of N. Y., utlred prior to 1846. Riviere v. Wilkens, 31

Tex. Civ. App. 454. 72 N. W. 608. Statutes

ceedings by street surface railroad comma-requiring a produce judge to affix his seal

pany to extend its lines. Hormellville El. R. Co., Y. New York, K. E., & W. R. Co., 83

husband and wife who conveyed land in a county other than his residence has no ap-plocation to the deed of an unmarked man.

Westfeldt v. Adams \[N. C.\] 47 S. E. 816.

A commissioner of deeds for North Carolina.

36, 18 N. Y. S. 120. Proceedings to extend

line, residing in another state, is not required to affix his seal to the certificate account. In re City of N. Y., 27 N. Y. St.

two!fending the execution of a deed con-veying land in North Carolina. Johnson v.

Duvall \[N. C.\] 47 S. E. 611.

35. Temann, V. Cobb \[Tex. Civ. App.\] 80

01. The absence of certificate of offlai character of notary who purported to have taken the acknowledgment of the execution of a receiver's bond which was ad-mitted in evidence la not cause for reversal

Cent. R. Co. v. Marvin, 11 N. Y. (I. Kern.) of judgment of foreclosure at the suit of such receiver. Livingston v. Eaton, 90 App. Div. 251, 85 N. Y. 80.

Evidence in re-arad to a second acknowledgment to a deed held inadmissible to show when the deed was executed. Bogart v. Moody \[Tex. Civ. App.\] 178 N. W. 638.

36. See those titles.

01. See Equity, I Cur. L. 1048; Limita-tion of Actions, 3 Curr. L. 146; Jurisdiction,

2 Curr. L. 604.

38. Crissey v. Morrill \[C. C. A.\] 125 F.

01. Under statutes where a notice takes the place of the writ and declination, a motion for a judgment for money Is an action at law. Reed v. Gold \[Ya.\] 45 S. E. 868. A

proceeding for leave to issue execution on a judgment changing lands with overtyle In partition is an "action," as the term "action".

39. In each of the 113 The manner of commencing41 an action varies in the different states; in some it is commenced by the issuance of a summons,42 in others by the service of the summons,43 when the original notice therefor is given to the sheriff, not from the time of filing amendments to supply omissions in the original petition,44 and in others by the filing of the complaint.45 The right of action must be complete when the action is commenced.46 An appellant is in court by the appeal, no other service being required.47_An action may be terminated48 by consolidation.49\_

## 111 Adjoining Owners.

Rights in respect to party walls are treated in a separate title.50 An adjoining owner is not liable for damages caused in the use of his property unless it is the * 8Cur. Law. ADJOINING OWNERS.

result of negligence,\[81\] but he must use his own land with reference to the rights of others,\[82\] and an offensive occupation cannot be carried on to the very great annoyance of one dwelling immediately near.\[88\] He may enjoin the maintenance of a bawdy house,\[54\] though the premises were so used before he purchased his property,\[86\] and was tolerated by the municipal authorities,\[86\] and was a public nuisance.\[87\] An owner who is specially damaged by a nuisance may recover therefor.\[88\] He may divert percolating waters.\[89\] If one maintains proper eave troughs, no right of action accrues to an adjoining owner if injury results from extraordinary rainfall.\[90\] He may cut off overhanging branches of trees at the line and dig out the roots penetrating his soil, but he may go no farther,\[61\] unless the adjoining owner consents,\[82\] trees standing on the line being common property.\[88\] He is liable for damages by the fall of a dangerous structure maintained on his premises.\[84\] The fact that a railroad company piled ties on its right of way so as to obstruct the view of an abutting owner was not an infringement of his rights,\[85\] but where water seeped through, gathered in pools underneath and emitted noxious odors causing malaria, it was.\[86\] A contract between adjoining owners for an easement must be in writing.\[87\] \_Lateral support.\[88\]--An adjoining owner may be restrained from depriving land in its natural state from lateral support,\[89\] but where an owner had deprived his own land of its cohesive force and on being deprived of its lateral support by an adjoining owner it fell, he was not entitled to recover for damage so caused,\[89\] therefore unless provided by statute, an owner making excavations is only required

- 50Party Walls, 2Curr. L. 1134.
- 51A railroad company bought a tenement and in tearing it down the doors in a partition wall were left unprotected and the adjoining owner's property was damaged. Fisher v. Seepad Air Line R. Co. \[Va.\] 46S. E. 381. Persons owning lots adjoining a railroad cannot recover damages for annoyance consisting of noise and smoke unless it is the result of negligence. Id. \[S2\]. Froelicher v. Oswald Ironworks, 111 La. 705, 35 So. 821.
- 53B. Engler making. Froelicher v. Oswald Ironworks, 111 La. 705, 35 So. 821.
- 54Ingersoll v. Rousseau \[Wash.\] 76P.
- 55Such right being a property right running with the land and the injury being a continuing one. Ingersoll v. Rousseau \[Wash.\] 76P. 513. A change in the construction was no defense because it did not do away with the injury. Id.
- 56Ingersoll v. Rousseau \[Wash.\] 76P. 513.
- 57He was compelled to witness indocent conduct and listen to indocent nodes and thereby suffered a special injury. Ingersoll v. Rousseau \[Wash.\] 76P. 513. See also Nuisance, 2Curr. L. 1062.
- 58The fact that adjoining lot owners, similarly situated, have not joined in nor brought suit on their own account for damages for the creation of a fire tower in a public square does not prejudice the rights of one who does bring action. Fessler v. Union (N. J. EG.) 56A. 272.
- 59The digging of a well which destroyed the well of an adjoining owner. Houston & T. Cent. R. Co. v. East \[Tex.\] 81S. W. 279.
- 60Extradimentary raistorms causing a to support the land of an adjoining owner in its natural state and not to support the buildings thereon,71 and is not liable for injuries thereto,72 or persons thereon78 in the absence of negligence, and the mere fact that the wall cracked while the excavating was being done raises no presumption of negligence.74 If he is negligent, the fact that an independent contractor performed the work will not relieve him,78 though it has been otherwise held;78 but an independent contractor who is negligent is not liable.77

3 Cur. Law. ADJOING OWNERS.

Common ways and appurtenances."--One may not interfere with an easement obtained from a common grantor,\[88\] nor construct a stairway leading to his basement so as to make a landing place of the sidewalk in front of an adjoining owner." A tenant may maintain an action for obstructing a common way."

Spite fences."--An unnecessary and unreasonable use of land to the injury of another is not a property right," but that a fence was erected to annoy and from motives of malice is not sufficient to give an adjoining owner a cause of action."

Line fences.--Where a boundary line between adjoining owners is disputed, the propriators may by verbal agreement fix the line which if acted on by them

of an adjoining owner. Norwalk Heating & and there was an unobstructed view there-Lighting Co. v. Vernam, 76 Conn. 662, 55 A. from across an adjacent lot to a side street, 168. The possession and occupancy of a structure projecting over the land of another, but not touching it, is not an ouster within the meaning of a statute, declaring the purpose named. Giller v. West \[Ind.\] 69

couvances of land of which the vendor is ousted to be void. Id.

S5. For the unlawful construction of a wall on his premises. Graves v. Broughton \[Mass.\] 69 N., E. 1083.

S6. Where surveyors for one owner testified that a wall did not extend over the line and surveyors for the other party testified that it extended over three-fourths of an inch.

Russell v. State \[Ind. App.\] 69 N. E. 482. A concealment, Ipser v. Rosenbaum, 25 Ky., L. R. 2202, 80 S. W. 187.

S7. See 1 Curr. L. 22, n. 8, 9.

S8. Where adjoining owners have an easement over an allergy, one of them cannot excavate the alley to obtain access to hls building and light and air for his basement, un-intended the inclusive for the purpose of excessing his horses, and that he had erected substantially interfere with the right of passage. Mershon v. Fidelity Ins. Trust & Safe Deposti Co., 208 Pa. 292, 67 A. 569.

S9. One caused an opening to be made in the sidewalk in front of his building, which extended to within 10 inches of his line, and the railling guarding it to within 22 inches of the line. The view to an adjoining owner gives no right of action to the person's windows was obstructed by people stopping at the head of the stairs. Perry v. Castner \[Iowa\] 100 N. W. 84.

pe. A common hallway affording entrance to two hotels on separate lots had been used in common by the propriators under an agreement. One of them constructed fire proof shutters in the hallway and prevented the tenant of the other from using it. Held, under a statute relative to the construction of any structure intended to spite or annoy an adjoining owner, the tenant could maintain an action without joining his landford.

Vinas v. German 8, & L. Soc., 31 Wash. 365.

72 P. 66. A contract for joint use of a hallway between two hotel buildings provided that all matters in dispute should be left to arbitration. Held, that where one had placed obstructions in the hallway which had been repeatedly removed by the other, he was es-tapped to set up against a petition to enjoin such act that arbitration had not been proposed and refused. Id.

91. See 1 Curr. L. 22, n. 11.

01. A statute declaring any fence exceeding five feet in height and erected to annoy an adjoining owner to be a private nuisance, and giving the injured person damages was held constitutional. Horan v. Byrnes \[N. H.\] 54 A. 945.

01. Where a lot was used for gardening will be enforced by the courts."4 At common law an adjoining owner has no right to build his fence beyond his own land,"5 and if he builds it within his line, adjacent owners may not encroach on his property."5 The burden is on an adjoining owner to show that a line fence built partly on his land is unreasonable for the purposes intended."

_Measure of damages."6--Speculative damages cannot be recovered for an encroachment,"8 but compensatory," and in case malice is shown, punitive damages may be recovered."_

**ADMIRALITY.**

**SS 1.** _Jurisdiction and Courts (40)._ Maritime Contracts (41).\_ Maritime Torts (41).\_

**SS 2.** _Remedies and Remedial Rights (42)._

**SS 3.** _Preetec and Procedure (42)._

**SS 4.** _Apencils and Subsequent Proceeding._

**SS 4.** _Precedes on Appeal (44)._

This topic includes only admiralty jurisdiction and practice.\_ The law of maritime traffic and of navigation is treated elsewhere."\_

**SS 1.** \_Jurisdiction and courts.\_4--Courts of admiralty of the United States take cognizance of any case within the general maritime law whenever the res or person to be affected is within the reach of its process." Hence they have jurisdiction of an action in personam against the owner of a foreign ship to recover for injuries sustained by an American passenger on the high seas," and may, in their discretion, entertain a suit by an alien seam against a foreign ship to recover damages for the

**Knickerbocker, 103 Cal. 111, 37 P. 192.** Un-\*\*: 3 Cur. Law. ADMIRALITY SS 1. failure of the master to provide him with proper care, nursing and medical treatment after his accidental injury while in the service of the ship.7 That a vessel is engaged in commerce wholly within a state does not exclude it from admiralty jurisdiction.8 State statutes cannot extend or restrict the admiralty jurisdiction exclusively vested in the Federal courts, but can only operate to furnish an additional remedy.9 A canal forming part of a continuous highway for interstate and foreign commerce, though wholly within a state, is a navigable water of the United States and its canal boats are ships within the maritime law.10 _Maritime contracts.11_--In order that a court of admiralty may have jurisdiction over a contract, it must be essentially and wholly maritime in its character. It must relate to the trade and business of the sea, and must provide for maritime services, maritime transactions, or maritime casualties,12 but it is immaterial whether it is to be performed on land or water.18 _Maritime torts.14_--The fact of locality alone does not give the court jurisdiction of an action for tort, committed on the high seas or other navigable waters, but it must further appear that the tort was maritime in character.15 \_There is jurisdiction in rem of a libel for negligent towage in the absence of a contract, for the liability is founded in tort.16 _Where the injury to a vessel is done upon the land, though it originated upon the water, the damage is not a subject of admiralty jurisdiction,17 but the fact that_ _7. The Troup \[C. C. A.\] 128 F. 856._ _of maritime insurance, and hence of a suit on an accepted application for such insurance, or binding slip. Kerr v. Union Marthez jurisdiction. Rev. St. Me. c. 93, $ 7, giving in on vessels for use of vibrant, does not give court of admiralty jurisdiction of suit in rem to recover for rent of wharf. The James T. Furber, 129 F. 808. Remedy may be enforced by Federal courts only when contract is maritime. The Mary F. Chisholm, 129 F. 814._ \_10. Proceedings in rem to enforce a libel for repairs are within exclusive jurisdiction of admiralty, though had under state statute. Perry v. Haines, 191 U. S. 17, 24 S. Ct. 8. **11.** See 1 Curr. L. 23, n. 22-26. **12.** Lease of space at a wharf for use of vessel at fixed annual rental is lease of reality and not maritime contract. The James T. Furber, 129 F. 808. The test to be applied is, does the suit arise from the necessities of navigation or from any matters relating to the commerce of the sea? Sale to fishermen of tobacco, clothing, and other articles of personal use held not maritime in character. The Mary F. Chisholm, 129 F. 814. A mere contract to procure insurance is not maritime. Reilance Lumber Co. v. Rothschild, 127 F. 745. Contract to furnish material to build a floating deck, retaining a liben thereon (Arnold v. Eastin's Trustee, 25 Ky. L. R. 895, 76 S. W. 855), and claims for a stipulated commission for obtaining a charter and for an attendance fee, are not maritime (Richard v. Holman, 123 F. 734). A contract by master of steamboat to collect and transport certain cotton seed from one port to another within a reasonable time, for freight specified, is a maritime contract, and shipper is entitled to recover in admiralty for breach thereof. Florence Cotton Oil Co. v. Alabama Towboat Co. \[C. C. A.\] 128 F. 915. Has jurisdiction of suits on contracts and their implications.

the vessel takes ground with the recession of the tide does not oust the admiralty jurisdiction.\[18\]

A statute authorizing submission to a district court of the claim of a British steamer sunk by a war vessel of the United States to hear, determine and render judgment in compliance with the rules of admiralty, confers jurisdiction to render a decree against the United States for damage caused by violation of the navigation rules, though due to the exigencies of war.\[19\]

Apart from statute, there is no right of action in admiralty for wrongful death.\[20\]

SS 2. _Remedies and remedial rights.\[21\]_--There is a sharp distinction between an action in personam with concurrent attachment and a proceeding in rem. The latter is distinctively maritime.\[22\] Fault on the part of those in control must be imputed to the ship to give jurisdiction in rem.\[23\]

Statutes of limitation, as such, are not enforced by courts of admiralty, but, in the absence of exceptional circumstances, they will generally be followed by analogy.\[24\] Failure of one having a claim in rem against a foreign ship to seek other property of its owners to attach and waiting till her second trip to the port is not laches.\[25\]

SS 3. _Practice and procedure. A. Pleading, process, etc.\[26\]_--Courts of admiralty are liberal in their treatment of pleadings, and averse to sustaining technical objections calculated to prevent the determination of causes according to their essential merits, but this liberality should not be so exercised as to prejudice either party.\[27\]

Claims for demurrage should be specific,\[28\] and damages resulting to the owners from the cancellation of a charter party cannot be recovered in a libel by the master of the vessel, unless the same are alleged.\[29\]

If a libellant has a good cause of action on one or the other of two theories practically inconsistent, and is doubtful which is correct, he may with proper allegations plead in the alternative.\[20\]

A set-off is not cognizable in admiralty except in so far as it relates to the particular transaction which is the subject of the libel, and goes to reduce or overcome the original demand.\[31\]

1S. Vessel stranded by ebbing of tide within ethwork and embankments built for filling up Island in East River, New York. HeId, that court had jurisdiction, the water being navigable. Dalley v. City of New York, 128 F. 796. 19. 19. 19. 19. 19. 19. 19. 19. 20. 19. 20. 19. 21. 23. 22. 23. 24. 25. 26. 27. 28. 29. 29. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 21. 24. 28. 29. 22. 23. 24. 25. 26. 27. 28. 29. 20. 21. 24. 28. 29. 23. 20. 22. 23. 24. 26. 28. 29. 20. 23. 21. 24. 29. 22. 23. 24. 25. 26. 27. 28. 29. 20. 23. 24. 28. 29. 21. 22. 23. 25. 26. 27. 28. 29. 22. 23. 24. 28. 29. 23. 25. 27. 28. 29. 20. 24. 29. 25. 28. 29. 21. 22. 26. 29. 23. 24. 29. 25. 26. 27. 28. 29. 28. 29. 20. 21. 22. 23. 24. 29. 23. 25. 26. 27. 28. 29. 21. 22. 23. 28. 29. 22. 24. 29. 23. 25. 27. 28. 29. 24. 28. 29. 25. 28. 29. 26. 29. 27. 28. 29. 28. 29. 29. 20. 21. 22. 23. 29. 21. 22. 23. 24. 29. 25. 26. 27. 28. 29. 28. 29. 21. 22. 23. 24. 29. 25. 26. 27. 28. 29. 28. 29. 21. 22. 23. 24. 29. 25. 26. 27. 28. 29. 29. 21. 22. 23. 24. 29. 26. 28. 29. 21. 22. 23. 24. 29. 25. 27. 28. 29. 22. 29. 23. 26. 28. 29. 24. 29. 25. 27. 29. 28. 29. 29. 21. 22.

- 3Cur. Law. ADMIRALITY SS 3. Parties other than intervening claimants are not entitled to file exceptions to a libel for breach of a maritime contract. \[32\] After seizure under process, earnings of a vessel prior to the sale under an agreement between the chartrerer and the marshal approved by the court should be paid into court and applied on the libellant's claim. \[33\] On the death of a libellant in prize who applies on behalf of himself and others of the navy, another interested person who is present by counsel may be substituted. \[34\] (SS 3) \_B. Evidence, proof and hearing, and decree. \[35\]--The mere fact that libellant, who instituted a suit in forma pauperis, purchased the vessel for a certain sum is insufficient to establish the fact that he possessed property at the time the suit was instituted, or had acquired any since that time, justifying the court in requiring him to give security for costs, there being no proof that his affidavit of poverty is false. \[80\]_Interrogatories_ may be addressed to officers of a corporation libelse not only as to their personal knowledge, but their official information. They must not unduly pry into an opponent's case. \[7\] The only ground of objection that can be interposed to them when they tend to elicit facts bearing on the case is that the answers may expose the party making them to prosecution or punishment for crime, or for a penalty, or forfeiture of his property for a penal offense. \[38\] The _defense_ of contributory negligence on the part of libellants, when relied upon, must be affinatively proved by a preponderance of evidence. \[39\] Foreign laws relied on, when different from our own, must be pleaded and proved, \[40\] and greater weight will be given to affirmative than to negative test-mony. \[41\] Where the trial is before the court, all testimony offered should be admitted, subject to objection, unless so clearly irrelevant or immaterial that there can be no doubt of its inadmissibility. \[42\] _Hearsay evidence_ will be treated as of no probative force, though no objection is taken thereto until exceptions are filed to the report of the commissioner before whom it was introduced. \[43\] Parties who have _deposited a fund_ in the registry of the district court, in admiralty, will not be allowed to withdraw a portion thereof and substitute a bond therefor. \[44\] Where, pending cross actions for collision, the parties have stipulated that diminish or reduce a claim for maritime services, unless the damages upon which it is based arise out of the same transaction, the same business. Dana v. Cosmopolitan In suit to recover or extra repairs not specified fn contract, but contemplated therein, held, that the owner could set off claims for damages resulting from failure to commplete the contract in the manner required by the contract. Davidson v. Green, 127 F. 999. \[32\] Florence Cotton Oil Co. v. Ala. Tow- bouf Co. \[C. C. A.\] 128 F. 915. \[33\] The C. W. Cowles, 124 F. 458. \[34\] Rear Admiral Taylor substituted for Rear Admiral Sampson who died pending appeal from the condemation. U. S. v. Sampson, 187 U. S. 436, 23 S. Ct. 216, 47 Law. Ed. 248. \[35\] See 1 Curr. L. 24. \[36\] The "Our Friend." 131 F. 395. \[37\] Under rule 23. Bock v. International Nav. Co., 124 F. 171. \[38\] Libellants are entitled to the production of such facts as will prove their case, * 45. The N. & W. 2, 127 F. 613.
- 46. See 1 Curr. L. 25, n. 61-64.
- 47. Conclusion of commissioner based on conflicting evidence. Watts v. U. S., 129 F. 58 can be recovered unless the appellate 222. Where evidence doubtful or inferences uncertain. Appeal of C. A. J 124 F. 63.
- 48. The Ida G. Farren, 127 F. 766.
- 49. The W?authon, 122 F. 719.
- 50. See 1 Curr. L. 25, n. 70-75.
- 51. The Mary F. Chisholm, 129 F. 814: Reliance Lumber Co. v. Rothschild, 127 F. 745.
- 52. Cross libel appeared not to entitle to an affirmative judgment. Morse Iron Works & Dry Dock Co. v. Luckenbach, 123 F. 332.
- 53. Rev. St. $ 824. The L. F. Munson, 127 F. 767.
- 54. See Interest, 2 Curr. L. 547.
- 55. No such delay in bringing cause to hearing as to make it unjust. Harrison v. Hughes, 119 F. 957.
- 56. Interest not recoverable under general rule or under statutory rule governing suits in court of claims. Watts v. U. S., 129 F. 222.
- 57. The district court cannot allow Interest on a final decree wherein damages 3. Cur. Law. ADOPTION OF CHILDREN SS 1. 45

The point that libellant is a minor and hence not entitled to sue cannot be first raised on appeal."

The appellate court will not review the action of the lower court in assuming jurisdiction of a suit by an alien seaman against a foreign vessel for damages for failure to furnish care and medical attendance, unless it appears that such court has exercised its discretion on wrong principles, or that it has acted so absolutely different from the views of the appellate court that the latter is justified in saying that discretion has been wrongly exercised."

One of two defendants who failed to appeal from a judgment against both and was not served with notice of severance cannot, by appearing after the time for appeal has expired and waiving service of citation, perfect the otherwise defective appeal."

A motion for a rehearing on the ground of new evidence must be supported either in the court below or under the admiralty rule in the appellate court by an afflavit as to what that evidence would be."

ADOPTION OF CHILDREN. **1. Adoptive Aets and Proceedings (45). $\\lx@sectionsign$ 2. Consequences of Adoption (46). $\\lx@sectionsign$ 1.**\_Adoptive acts and proceedings.\_1--The decree in adoption proceedings has the force of a judgment and will be sustained where there has been a substantial compliance with the requirements of the statute.$2$ Orders of adoption are for the benefit of the child, affect his status, are in the nature of judgments in rem, and cannot be collaterally attacked.$3$ Proceedings wherein the record shows on its face that the statute was not complied with are void.$4$ The parent's consent must be obtained,$5$ or he must be given notice of the proceedings.\_6

Footnote 120: $\\lx@sectionsign$ 24
_Contracts of adoption._--Oral contracts to adopt children and make them heirs will be specifically enforced when sustained by clear and convincing proof, after performance by one party, and when to refuse specific performance would perpetuate a fraud.\[8\] A contract to adopt not executed or recorded in accordance with the statute will not confer on child the right of inheritance,\[9\] but may affect its custody.\[10\]

**SS 2.**_Consequences of adoption._\[11\]--The custody of a child properly belongs to the adoptive parents.\[12\]

Heirship by adoption being unknown to the common law,\[13\] it can be created only by a constitutional law by which relations of "paternity and affiliation are recognized as legally existing between persons not so related by nature."\[14\] Under some statutes, the adopted child may inherit directly from the person adopting it, but not from the kindred of such person by right of representation.\[15\] But it was held, under the Massachusetts statute, that an adopted child may inherit from a brother by adoption,\[14\] and, in Maine, though the right of inheritance is denied by statute, such child may collect life insurance payable to a "child" of the deceased.\[17\]

rendered her child born in Massachusetts it has been held that the parent may estop to a charitable institution, for adoption, himself to revoke. Verser v. Ford, 37 Ark. and notice was given by publication, to the father, a resident of Scotland, who did not consent to the adoption. Stearns v. Allen, 183 Mass. 404, 67 N. E. 349.

**7.** See 1 Curr. L. 27, n. 18-15.

**8.** Evidence considered and held insurmentent to warrant specific enforcement. Grant-ham v. Gossett \[Mo.\] 81 S. W. 895. Void articles of adoption are not of themselves evidence of a contract by which the adopted person is to Inherlt property. Alphing v. Ward \[\[Me.\]\] 100 N. W. 609.

**9.** Where the written contract of adoption was never signed or recorded, but the parties acted as if there were a valid contract, the child cannot inherit as her. McColpin v. McColpin's Estate \[Tex. Civ. App.\] 75 S. W. 824. The mere contract to adopt, followed by assumption of the relation, but not by dling of papers, is not a sufficient compliance with statute to establish right of inheritance. Jordan v. Abney \[Tex.\] 78 S. W. 486.

**10.** Parent may confer on another the right to custody of child without execution of adoption papers, but it will be presumed that the right is temporary. Miller v. Mill-per \[Iowa\] 98 N. W. 601.

**Note:** Except as sanctioned by statute, contracts for the transfer of parental authority and responsibility are deemed against public policy. State v. Baldwin, 5 N. J. Ego. 454: State v. Clover, 16 N. J. Law, 419: Weir v. Marley, 99 N. 404, 12, 80 N. 78, 6 L. R. A. 671: In re Scarritt, 76 Mo. 565, 43 Am. Rep. 768: Chapsky v. Wood, 26 Kan. 650: Washaw v. Qmble, 50 Ark. 351, 7 S. W. 389: Johnson v. Terry, 34 Canon. 259), though a few cases seem to tend to the contrary doctrine (Gillis v. Jesup, 11 Busch \[Ky.\] 403: Coffee v. Black, 82 Va. 567: Bonnett v. Bonnett, 61 Iowa, 199, 16 N. W. 91). And in New Hampshire (State v. Libbeck, 44 N. H. 321) if has been held that such a transfer might be made by deed, but not by parol. Where such a transfer is void, it may be revoked by the parent. McGlennan v. Margowski, 90 Ind. 150; State v. Reinf. 29 W. 7a. 751: De Jarnett v. Harper, 45 Mo. App. 415. But 3. Cur. Law. ADULTERATION SS 2. The right to inherit may be defeated by a testamentary provision, unless there was an agreement to the contrary,\[13\] and the right of inheritance will be recognized in other states than the one where the adoption took place.\[19\] The creditors of a parent cannot reach the property of an adopted child on the ground that the child's maintenance has been provided for by the parents.\[20\]

**ADULTERATION.**

\*\*SS 1. Legislation and Regulation (47). | 3. Enfareement and Prosecution (48). | 3. The Offense (47). | 3. | 1. \_Legislation and regulation.\[23\]--Laws to prevent the manufacture or sale of adulterated food products, where there is no discrimination in favor of particular persons,\[23\] are constitutional,\[23\] though they provide for inspection fees,\[24\] or apply to imported articles,\[28\] or discriminate in favor of a certain article,\[26\] and present no question under the Federal constitution.\[27\] The scope of such laws cannot be enlarged under the guise of making regulations to enforce them.\[38\] | 3. \_The offense.\[23\]--Coloring lemon,\[39\] or vanilla extract,\[31\] or oleomargarine, by addition of any foreign ingredient,\[39\] to conceal damage, or to make the article

surance was taken out, and Me. Rev. St. 25. N. Y. Laws 1893, c. 661, j 41, prohiblt-1871, c. 67, j 80 provided that an adopted child shall be the child of the adopters for all purposes except as to the right of In- | 3. | 3.

appear of greater value, is an adulteration," and in the case of spirits, an offense against the Federal revenue laws." Milk is adulterated by the addition of water," but vinegar is not, as it is not rendered deleterious thereby." A statute providing a penalty for the sale of linsed oil which would not sustain a certain test applies to boiled as well as raw oil." A regulation against holding, keeping or offering for sale does not forbid the mere possession of adulterated commodities." The laws as to adulteration are not designed to prevent improvements in manufacture," nor do they require the use of prejudicial words on labels, so long as the ingredients are truthfully described."

SS 3. _Enforcement and prosecution._"--The complaint is sufficient if it uses terms which have been defined by statute," and will be held to charge a first offense, unless otherwise indicated." The sale of a number of packages may be charged as one offense."

ADDULTERY.

**SS 1. The Offense (48). : & 2. Evidence (49). : & 3. The Indictment (49). : & 4. Practice and Trial (51).**

Only the criminal offense is included."

SS 1. _The offense._"--Adultery was not a crime at common law." The statutory offense is regarded as primarily against the family, and is generally regarded as the sexual violation of the marriage relation, regardless of the sex of the offender." Cohabitation or habitual intercourse is required in most states." Adult-

**SS3. Mich. Comp. Laws, & 6012 does not** "Corn Syrup," with the name and amount preclude use of harmless coloring matter. People v. Jennings \[Mich.\] 94 N. W. 216, with where one of the ingredients is truth, **34. The addition of coloring matter, such as earamel, to spirits after barrels have been** is synonymous with glucose. People v. Har-stamped, is a violation of U. S. Rev. St. **3** \[Mich.\] 97 N. W. 402, 3465, which subjects to forfeiture every barrel that contains "anything else" than the contents which were therein when it was stamped. U. S. v. Three Packages of Distilled Spirits, 126 F. 62. 35. Sale of milk containing no more than 10.61 per cent of solids is an offense under 86 - Ohio Laws, p. 229, which provides that milk containing less than 12 per cent of solids shall be deemed to be adulterated. State v. Smith \[Ohio\] 68 N. W. 1044. See 1 Curr. L. 28, n. 20, 38. The addition of water to vinegar is not in violation of N. Y. Laws 1893, p. 667 (H 50-52), penalizing the manufacture of vinegar not made from pure apple juice. People v. Heinz, 90 App. Div., 408, 86 N. Y. 8, 141. 37. Both terms were used in an amend-act, but "boleed" was omitted in an amend-\*\* package to constitute a separate offense. 641. 38. People v. Timmerman, 79 App. Div. 8, 143. 566, 80 N. Y. S. 285. N. Y. City Sanitary Code, & 63. 39. Mich. Comp. Laws, & 6012, providing an article should be deemed adulterated "If any valuable or necessary ingredient has been wholly or in part abstracted from it," is not meant to prevent improvement in manufacture, nor does it apply to an ingredient which may be disensed with, without injury to the food. People v. Jennings \[Mich.\] 94 N. W. 216. 40. Mich. Pub. Acts 1903, No. 123 forbids sale of syrup mixed with glucose unless package is branded "Glucose Mixture" or 75 Vt. 293, 54 A. 1081. A married man hav 3 Cur. Law. ADULTERY SS 3.
49

tery is a felony, and an offense against the state as well as against the innocent spouse, notwithstanding the statutory requirement that the prosecution therefor can only be commenced on the complaint of the innocent spouse.\[60\] The acquittal of one of two defendants, charged with having committed adultery together, does not preclude the conviction of the other.\[51\] The consent of the female is not necessary to constitute the crime.\[52\] One may aid and abet in adultery without participating in the act,\[53\] and there is such a crime as conspiracy to commit adultery.\[54\] Illicit cohabitation is a crime at common law, and is generally made so by statute.\[58\]

SS 2. \_The indictment.\[56\]--An indictment for adultery which fails to state that the particeps criminis was a married woman,\[57\] or that does not state that she was an unmarried woman, is insufficient.\[58\] Such defect is not cured by the verdict, and is available on motion in arrest of judgment, it not being implied or in-ferable from the finding of facts whether she was married or unmarried.\[59\] It is sufficient if the indictment charges defendant with having unlawfully committed the crime by having unlawful intercourse.\[60\] An indictment for conspiracy to commit adultery need not allege that defendant knew that the female in the case was a married woman.\[51\]

SS 3. \_Evidence.\[62\]--The fact of illicit intercourse need not be established by direct proof, but may become a legitimate inference or conclusion to be drawn

ing sexual intercourse with an unmarried

SL. Under Code North Carolina $$$ 1041, woman is guilty of adultery under the Laws

providing that the testimony of one shall of Iowa (Code 1897, $$$ 4932). State v. Hasty,

not be competent against the other. State

121 Iowa, 507, $$$ 96 N. V. 1115.

Sq. State v. Clemenson \[Iowa\] 99 N. V. 139.

Note In general, it is sufficient if either

- 3. 3 Cur. Law.

from circumstantial evidence. \[63\] Whenever an act of illicit intercourse is shown by the evidence within the period of time covered by the indictment, evidence of facts or circumstances which tend to show cohabitation between the parties anterior or subsequent to such period of time is relevant and admissible. \[64\] Sufficiency of the evidence to sustain a conviction. \[65\] Defendant may show his purpose in taking the woman to the place where the crime is alleged to have been committed. \[66\] In a criminal prosecution of another for adultery with his wife, the husband may testify as to the fact of their marriage and as to incriminating circumstances, \[67\] and the fact of marriage may be proved by general reputation and the declarations of the parties. \[68\] Defendant cannot be convicted of a conspiracy to commit adultery unless it appears that his co-conspirators knew that the woman in question was married. \[69\] It is not sufficient to show a single, or even occasional acts of sexual intercourse, in order to sustain a conviction for lewd or lascivious cohabitation, but the commission of such act or acts must be shown under such circumstances as to indicate an abiding or cohabiting together in a relationship like that of husband and wife. \[70\] The relationship of mistress and hired

- 63. Hill v. State, 137 Ala. 66, 34 So. 406. \[\] errne was committed in the county, In view Direct proof of sexual intercourse is not necessary to justify a conviction for adult- had detected them in the act in said county tery, but it is sufficient to show circum-santances from which the guilt of the parties born, and evidence tending to show that they be inferred, such as sleeping in the germ room, acting apparently as if they were husband and wife, being frequently in each other's company, and such circum-santances as would show opportunities for an adultterous relation to exist, etc. United States v. Grlego \[N. M.\] 72 P. 20. \[\] 64. In a prosecution for living In a state of adultery or formation it was proper to show that defendant's paramount was still living in the place where the offense was alleged to have been committed, and that defendant had furnished her with groceries and provisions. Hill v. State, 137 Ala. 66, \[\] 64 So. 406. Evidence of acts tending to satisfy, stop over her as if in the act of show adulterous connection, and anterior to the statute of limitations, is admissible for a contract of adultery. Manuel v. State \[Tex. in support of evidence of the commission of the act charged. Nearness of time is a circumstance affecting the effect of the evidencourt. United States v. Grlego \[N. M.\] 72 P. 20. On prosecution for adultery, a photograph of defendants's as gathers a theater where the offense was alleged to have been committed under sanctuary state, although it was taken several years before the trial. State v. Harty, 121 Iowa, 507. \[\] 65. \[\] 66. It was error to refuse to allow de-defonant to show that his alleged paramour dance and not its competency. United States v. Grlego \[N. M.\] 72 P. 20. On prosecution for adultery, a photograph of defendants's as gathers a theater for the state tending to show that the woman with whom defendant lived in another state, although it was taken several years before the trial. State v. Harty, 121 Iowa, 507. \[\] 67. The rule that neither husband nor wife can testify for or against the other is confined to cases where the testimony would sidling in the locality where defendant is alleged to have lived with her, which state that they lived together as man and wife, and had had a child born to them, are admissible in connection with the father's test-timony that he had read them to defendant, who admitted certain of the statements therein. Id. Evidence that defendant attended the burial of the woman with whom it was alleged he had been living In adultter, and that he caused a tombstone to be erected over her grave with a description thereon in which she was described as his wife, is admissible. Id. That defendant's alleged paramour gave birth to a child outside of the county where he was prosecuted for adultery might be considered by the jury in determining whether the * 3Cur. Law. ADVERSE POSSESSION SS 1.

man between the parties does not necessarily exclude the relationship of lewd and lascivious cohabitation, but both may exist at the same time.\[11\]

SS 4. _Practice and trial.\[13\] Instructions.\[16\]--In a prosecution for adultery, it was not error to refuse to require the state to elect the transaction it would rely on, where the only direct evidence of the crime was the testimony of one witness that she had once detected defendant in the act, at a time within the statute of limitations.\[14\] Counsel should not be permitted to refer to defendant in his argument in a manner calculated to prejudice the jury against him.\[18\]_

ADVERSE POSSESSION.

**1 1. Estates and Property Subject to Adverse Possesent (51).**

**2 2. Against Whom Available (52).**

**3 3. To Whom Available (53).**

**4 4. Definition and Essential Elements (54).**

**5 5. HostIIity (55).**

**5 6. Continuity (55).**

**5 7. Duration (57).**

**6 8. Color of Title (58).**

**7 9. Payment of Taxes (00).**

**8 10. Area of Possession (00).**

**9 11. Swilleenery of Possession (61).**

**9 12. Pleading, Evidence and Iastructons (63).**

**10 13. Nature of Title Acquired (64).**

**11 1.** \_Estates and property subject to adverse possession.\[70\]--As a general rule, all private estates in land are subject to adverse possession; thus a lower right\[77\] or an easement may be lost\[18\] or acquired,\[78\] and one may hold adversely to the surface and not as to underlying minerals;\[50\] but adverse possession does not operate against public property, federal\[81\] or state,\[82\] nor property held for public use.\[83\] Thus title cannot be acquired to a street\[84\] or highway,\[85\] nor of a railroad right of way,\[86\] nor lands reserved for depot grounds;\[87\] but it has been held that an

warned on the examination that he need not err. Peden v. Crenshaw \[Tex. Civ. App.\] 81 criminate himself. State v. Simpson, 133 N. S. W. 369.\*\*

**71. State v. Cassida, 67 Kan. 171, 72 P.**

**72. See 1 Curr. L. 30.**

**73. An instruction to the effect that if the jury found that defendance occupied a sleeping apartment alone, as a sleeping room, "that circumstance alone raises a pre-sumption of guilt," is rendering \[11\].**

**74. Take from defendant the presumption of in-no.**

**75. State v. Cassida, 67 Kan. 171, 72 P.**

**76. See 1 Curr. L. 30.**

**77. State v. Cassida, 67 Kan. 171, 72 P.**

**78. See 1 Curr. L. 30.**

**79. See 1 Curr. L. 31.**

**79. See 1 Curr. L. 32.**

**79. An instruction to the effect that if the jury found that defendance occupied a sleeping apartment alone, as a sleeping room, "that circumstance alone raises a pre-sumption of guilt," is rendering \[11\].**

**79. See 1 Curr. L. 33.**

**79. See 1 Curr. L. 34.**

**79. See 1 Curr. L. 35.**

**79. See 1 Curr. L. 36.**

**79. See 1 Curr. L. 37.**

\*\*79. See 1 Curr. L.

estoppel may arise,\[88\] but not by a mere failure to assert a right.\*\* Though the statute applies only to suits, and the issuance of a tax deed is not a suit, yet the tax certificate will be void where a deed would fail because of lapse of time.\*\*

SS 2. _Against whom available._\*\*11--\*\*Adverse possession may give good title against a city,\[92\] or against an entryman\[88\] or one holding under the Federal government by grant before patent has issued.\*\*14 especially if a confirmatory grant relates the patent back.\[95\] Adverse possession runs against a grantee of the Federal government from the date of the grant,\[96\] and is not interrupted by a controversy before the Department of the Interior which it had no jurisdiction to entertain.\*\*15 While a dower right may be barred,\[97\] adverse possession of land as against a husband does not operate to extinguish it.\*\*16 Adverse possession runs against a co-tenant who has been ousted,\[1\] if there has been an assertion of ownership\[2\] of such a nature as to impart notice that disseizin is intended.\*\*17 Occupancy of the premises, appropriation of the rents and profits and payment of taxes is not sufficient.\*\*17 Occupation by one claiming whole under husband, held adverse to wife who had been awarded part as alimony.\[9\] Possession by a purchaser, under an executory contract of sale, made by the husband alone of land owned in joint tenancy by husband and wife is not adverse to the wife,\[9\] nor as against her children until the husband's death.\[7\] The statute of limitations does not begin to run against a cestui que trust in favor of a trustee in possession until the cestui que trust has learned or from the circumstances should have learned that the trustee asserted a claim adverse to his.\[9\] Adverse possession against a trustee\[9\] may bar the cestui que trustents.\[10\] It is not available against a remainderman during the life of the life by a city of right of way under a dedica-Blankenhorn v. Lenox \[Iowa\] 98 N. W. 656. 2. Conflicting evidence as to possession of Durham v. Southern R. Co., 121 F. 894. 87. Kansas City & N. Connecting R. Co., v. Baker \[Mo.\] 82 S. W. 85. 88. By reason of improvements extending into the street. Markham v. City of Anamosa \[Iowa\] 98 N. W. 493: Crigier v. City of Mexico, 101 Mo., App. 624, 74 S. W. 884. 89. City of Columbia v. Bright \[Mo.\] 79 S. W. 151. 90. Crocker v. Dougherty, 139 Cal. 511, 73 P. 429. 91. See I Curr. L. 31. 92. Schneider v. City of Detroit \[Mich.\] 98 N. W. 258. In Kentucky, limitations run against the right of a city to recover streets in possession of another after notice to the council that the possession is adverse. Davis v. City of Clinton, 25 Ky. L. R. 2021, 79 S. W. 259. 98. Burton's Helrs v. Carroll, 96 Tex. 320, 72 S. W. 581. 94. Tolteo Ranch Co. v. Cook, 191 U. S. 522, 24 S. Ct. 166. Claim based on occupancy and settlement confirmed by act of Congress. Joplin v. Chachere, 192 U. S. 94, 24 S. Ct. 214. 95. Cockran O11 & Development Co. v. Arnaud, 111 L. 683, 35 So. 747. 96. 97. Sage v. Rudnick \[Minn.\] 100 N. W. 106. 98. Butcher v. Butcher \[Mich.\] 100 N. W. 604. 99. Lucas v. Whitacre, 121 Iowa, 251, 96 N. W. 776. 1. Entering under a bond for a deed to all the land from one co-tenant is an ouster. Rose v. Ware, 24 Ky. L. R. 2321, 74 S. W. 188. Occupation under deed from another. 188. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 39. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 51. 53. 59. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 69. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 81. 83. 85. 89. 82. 84. 86. 88. 89. 80. 81. 84. 86. 8 tenant," but this rule supposes an uninterrupted continuation of the relation of life tenant and remainderman, and under statutes giving to a remainderman, who knows that his rights are disputed, a right of action, the bar of the statute may be invoked." It is available against one having a tax certificate and entitled to a deed thereon13 or the issue of a tenant in tail.14

Title by adverse possession cannot be acquired against a minor,15 but he must assert his right within the period allowed, after the disability is removed,16 and a minor heir is barred by limitations by failure of his guardian to sue within the period.17 In Kentucky, adverse possession commences to run against a wife from the date of her husband's deed.18 The statute begins to run against heirs at law at the death of the ancestor where there is no intervening life estate.19 The death of one holding the legal title to property, but out of possession, does not stop the running of limitations as against his interest.20

SS 3. \_To whom available.21--\_The public22 or a municipality23 or the Federal government may acquire title by adverse possession.24 Title divested by judgment may be acquired by the judgment debtor who remains in possession.25 Adverse possession is not available to a lessee26 or a sublessee27 during the continuation of the lease, and to be available thereafter, there must have been a disclaimer of the paper title.28 An agent cannot acquire title as against his principal,29 nor a life tenant as against the reversioner.29 A widow may hold adversely against the heirs of her husband,21 even though she be executrix of his estate;22 but possession

Wieas v. Goodhue \[Tex. Civ. App.\] 79 S. W. 25. The judgment debtor remained in possession for more than the statutory period.

11. Porter v. Osmunu \[Mich.\] 97 N. W. Pendleton v. McMathas \[Tex. Civ. App.\] 75 756: Beaty v. Clymer \[Tex. Civ. App.\] 75 S. W. 349. One claiming under foreclosure W. 540. The life tenant conveyed to one who had put up valuable improvements.

Footnote 29: Some evidence that he asserted a claim to the land, but none that he repuditated his agency or tenancy. Richardson v. Bruce \[Tex. Civ. App.\] 75 S. W. 855.

Wieas v. Goodhue \[Tex. Civ. App.\] 79 S. W. 25. The judgment debtor remained in possession for more than the statutory period.

12. S. W. 349. One claiming under foreclosure W. 540. The life tenant conveyed to one who had put up valuable improvements.

Footnote 29: Some evidence that he asserted a claim to the land, but none that he repuditated his agency or tenancy. Richardson v. Bruce \[Tex. Civ. App.\] 75 S. W. 855.

Wieas v. Goodhue \[Tex. Civ. App.\] 79 S. W. 25. The judgment debtor remained in possession for more than the statutory period.

13. Porter v. Osmunu \[Mich.\] 97 N. W. Pendleton v. McMathas \[Tex. Civ. App.\] 75 756: Beaty v. Clymer \[Tex. Civ. App.\] 75 S. W. 349. One claiming under foreclosure W. 540. The life tenant conveyed to one who had put up valuable improvements.

Footnote 30: The author is grateful to the author.

of an administrator is not adverse to the heirs,33 and a repudiation, in order to give it an adverse character, must be brought to the knowledge of the heirs; mere notice is not sufficient:34 but where an administratrix purchased land at her own sale, 4 adverse possession by her for the statutory period was a bar to a bill for partition.45 A downress cannot hold adversely to the heirs of her deceased husband,46 until she has divested herself of such right.47 Where husband and wife are in possession, one cannot acquire title as against the other,38 nor can a wife acquire title to the community property by adverse possession, though her husband has abandoned her without cause.39 Limitations do not run in favor of one not in possession.40 The possession by a railroad company of a right of way is not adverse to rights remaining in the owner of the fee.41

Footnote 39: The * 3Cur. Law.ADVERSE POSSESSION SS 5.

and whether a pur-hase was bona fide is a question for the jury.\[53\] More lapse of time unaccompanied by adverse possession will not bar a right to recover.\[54\]

SS 5.\_Hostility.\[55\]--Possession must be hostile\[56\] and exclusive,\[57\] and inconsistent with the right of the holder of the paper title,\[58\] and there must be an intention to hold in hostility to the true owner.\[59\] Naked possession must be adverse as to the whole world, including the supposed owner.\[60\] A son who resides with his mother on land in which she has a dower right, under an agreement that she is to make her home with him, is not in possession adverse to her rights.\[61\] Where a party claims to own and hold possession up to a certain line, his possession is adverse;\[62\] but if he disclaims ownership except to the true line, wherever that may be, it is not.\[58\] Holding under a mistake as to the true boundary may be adverse.\[64\] It is not necessary for one in possession claiming adversely to know in whom the true title is,\[65\] and the fact that an owner does not know that another is in adverse possession is immaterial.\[66\] One claiming title by adverse possession may purchase a tax dead to the premises before the statute has run without ac knowledgeing a superior title;" but if he accept payment of the same from the second owner, such act is a recognition of the superior title." Adverse possession of the land of one is not adverse as to the land of another on the theory that possession of part is possession of all." Where a grantor remains in possession," especially where he reserves a license to cultivate the land," or where a mortgagor holds after foreclosure," it is presumed subservient to the rights of the purchaser, until knowledge of his intent to hold adversely is brought home to his grantee by some unequivocal act." The possession by a party entering under a verbal contract to 'purchase is not adverse to his vendor." A permissive entry cannot ripen into title."

SS 6. \_Continuity."--Possession must be continuous and uninterrupted" to toll the right of entry of the owner of the legal title," and whether possession has been continuous, open _and_ notorious for the statutory period is a question for the jury."

Various circumstances have been held sufficient to break the continuity, thus, mitigating the right to the title," joining in a petition for vacation of a street," acknowledging a superior title," admission that it was liable in damages for maintaining its right of way;" but vacating for a short period will not destroy continuity," nor will a temporary interruption of the use of an easement."

67. Zweibel v. Meyers \[Neb.\] 95 N. W. W.

01. One who had purchased a tax certificate when notified of the redemption (where he made the money from the country treasurer and recepted in the redemption (where he made the owner claiming to redeem was before his eyes. Zweibel v. Meyers \[Neb.\] 95 N. W. 597.

01. Where an occupants' boundary covers adjoining lands of separate owners. McNeley v. South Penn Oil Co., 62 W. Va. 616, 44 S. E. 608.

01. A railroad company did not disturb a dooryard over which their right of way passed. Chicago, M. & St. P. R. Co., V. Snyder, 120 Iowa, 532, 95 N. W. 183; Kelly v. Palmer \[Minn.\] 97 N. W. 578. Where a father conveyed to his son but remained in possession and improved the land, evidence held insufficient to show that he held adversely. Luckhart v. Luckhart, 120 Iowa, 248, 94 N. W. 461.

01. In a grant of a railroad right of way. Chicago & S. E. R. Co. v. Wood, 30 Ind. App. 650, 66 N. E. 923.

01. Under an alleged agreement that the foreclosure purchaser held title by their consent, subject to their right to a reconveyance when he was reimbursed. Martin v. Martin \[Iowa\] 94 N. W. 438.

01. If he asserts claim to title in hlm-self and his claim is made known to his grantee. The assertion may be by acts. Kelly v. Palmer \[Minn.\] 97 N. W. 578. Nothing in the evidence showing such act. Pierce v. Barney \[Pa.\] 58 A. 152; Hindley v. Metropolitan El. R. Co., 42 Misc. 68, 8 N. Y. S. 561.

01. A decade was not to be executed until the purchase price was paid. Manning v. Kansas & T. Coal Co. \[Mo.\] 81 S. W. 140.

01. To hide the unsightly appearance of the side of a wall, adjoining owners mutually agreed that the owner of the wall should vener it, which he did, covering four inches of the ground of his neighbor. The wall has stood for the statutory period. Subsequent grantees claim title to such strip 3 Cur. Law. ADVERSE POSSESSION SS 7.

Continuous occupancy for the statutory period raises a presumption that its commencement was under a claim of right."4 A purchaser of the interest of one who has not been in adverse possession for the statutory period does not acquire a title superior to the holder of the paper title."4

\_Tacking."--\_A privity must be shown between adverse claimants before the possession of one can be tacked to that of the other,"8 but it is immaterial whether any valid titles were created by the transfers,"9 and this privity may exist by descent;"1 thus possession of the ancestor inures at his death to the benefit of his heirs at law,"2 and the possession of the widow can be tacked to that of the husband in order to complete title in the heirs;"8 but possession under a perfect title cannot be tacked to possession continuing after such title has been divested."4

SS 7. \_Duration.\_69--\_The possession must have been for the statutory period,"8 but it is not necessary that it be the one next before bringing the suit."7 The period is fixed by statute in the several states."

The period may be extended for those under disability," or lessened if an entry is under color of title. In Washington it must be actual paper title.1 That the _Texas_ three or five-year statute may apply, there must be possession under color of title,2 but any instrument in the form of a dead, not void on its face,

Ritchards v. Haskins \[Neb.\] 100 N. W. 151. \[Alsability of claimants. Rose v. Ware, 25 85. A third party placed obstructions in Ky. L. R. 94, 76 S. W. 505. In South Da-the road, there was no intention to aban-kota, claim and color of title and payment don the way. Cavanaugh v. Wholey \[Cal.\] of taxes for 10 years. Murphy v. Pierce \[S. D.\] 95 N. W. 952. Evidence held to show that accidents made to an island had not 20 years: they had no paper title. Illinois Steel Co. v. Jeka, 119 Vlts, 122, 95 N. W. 97. \[Clinted New Jersey R. & Canal Co. v. claimed to the thread of the stream. McDonald Fatult Jar Co. \[N. J. Eq.\] 65 A. \[Clinted New Jersey R. & Canal Co. v.

## 5 Adverse Possession $ 7.

3 Cur. Law.

is sufficient.The Texas five-year statute does not apply to one holding under a void tax sale.4 In _Louisiana_ one who acquires color of title in good faith may have the benefit of the 10 year statute;5 but an entry under a void tax sale is insufficient for the application of the three or five-year statute.6 Under _Wisconsin_ 10-year statute, it matters not how invalid the instrument may be or how complete the claimant's knowledge of its invalidity.7 An assignment of a certificate of entry in terms conveying the land is sufficient.8 Under _Arkansas_ two-year statute, a tax sale for the manifest purpose of defranding the heirs is insufficient.9 In _South Dakota_, the possession must have been for the full statutory period.10 The _Mississippi_ three-year statute does not apply to a sale of land which was exempt,11 but the 10-year statute applies to one who enters in good faith.12 Laches will not defeat a suit for land when the adverse claimant is not in actual possession and the statute applicable has not run.13

Footnote 13: The _Mississippi_ is a _Missippi_, which is a \_Missippi 3 Cur. Law. ADVENSE possession SS 8.

or a deed to adjacent land which does not describe the tract in controversy,\[17\] or a deed under a void judicial decree,\[18\] or a deed from husband to wife, or a void administrator's,\[19\] or tax deed,\[20\] a contract of sale,\[21\] even if it be oral,\[22\] is sufficient; but a contract giving an option to purchase is not color of title so as to give constructive adverse possession coextensive with the description in the conveyance,\[23\] and one entering under a bond for a title must give notice.\[24\] A deed conveying title to one, does not constitute color of title after his estate has been divested.\[28\]

It may be contained in several instruments,\[29\] but the occupant must rely on his color of title in good faith,\[27\] and the boundaries must be recited.\[28\]

Color of title is not essential,\[30\] but where one enters without color of title, his possession is limited to the land actually occupied.\[31\] but in Texas, may be extended to include 160 acres,\[32\] which must be described in the pleading.\[33\]

Color of title may be proved by parol evidence.\[34\]

17. Where one purchased a lot which had session after his title had been divested. Wilson v. Brown, 184 N. C. 400, 46 S. E. 762. of both parties that the lot should extend to the street, a deed to such lot was color of title to a strip intervening between the boundary of the lot and the street, as described in the deed. Hesser v. Selpmann \[Vash.\] 76 P. 295.

01. Decree void because the court is without jurisdiction, and no sufficient description. Waldron v. Harvey \[W. Va.\] 46 S. E. 603.

01. A deed by husband to wife, executed prior to the married woman's act. before he had possession. An administrator's deed which does not support on its face to have been executed under order of a court. Street v. Collier, 118 Ga. 470, 45 S. E. 294. Proceeding for sale included a homested. Hatch v. Lusignan, 117 Wis. 428, 94 N. W. 332.

01. A tax deed void because the tax collector proceeded under a repealed statute. Treece v. American Assm \[C. C. A.\] 122 F. 588. Code Civ. Proc. $ 47, providing that when entry is made under claim of title founded on a written instrument, the property shall be deemed to be held adversely. Murphy v. Dafoe \[S. D.\] 99 N. W. 86. Deed from heirs of a homesteader and a tax deed executed within five years of issuance patent. Murphy v. Pierce \[S. D.\] 95 N. W. 925.

01. The purchase price not having been paid. Chesterman v. Bolling \[Va.\] 46 S. E. 470. An exectory contract of sale from one co-tenant. Meschey v. South Penn. O11 Co., 52 W. Va. 616, 44 S. E. 508.

01. Where on an exchange of land between father and daughter, the daughter failed to make a deed, but the father went into possession and held for 15 years. Miller v. Witerman \[Key.\] 80 S. W. 517.

01. A railroad company had an option to purchase land. It entered a part and acquired title by adverse possession, and claimed the rest of the tract, though they never had possession. Louisville & N. R. Co. v. Gulf of Mexico Land & Imp. Co. \[Mis.\] 32 So. 845.

01. One entering land under bond for a title does not hold adversely until by stipulation he agrees to quitclaim to the owner the premises described in the title bond. Brownlee v. Williams \[Coi.\] 77 P. 250.

01. A judgment debtor continued in pos-

01. A judge of the art of the
    **SS 9.**_Payment o' taxes._\*\*34--\*\*When payment of taxes will constitute adverse possession is regulated by statute.35 Payment of taxes alone is insufficient.36

**SS 10.**_Area of possession._\*\*37--\*\*Arousal possession of a part of a tract under color of title to all gives constructive possession to the extent of the boundaries of the deed,38 except such part as may be in the actual adverse possession of another,39 but to avail the possession must be continued for the statutory period,40 and in Texas the instrument containing color of title must be recorded.41 Possession of a tract of land with title to a part and usufruct as to the rest carries possession of the whole.42 Where one's title had been divested by sheriff's sale, his subsequent possession of a portion of the land could not be extended to the boundaries described in the deed under which he claimed prior to the sale.43 Where a title is void as to part of the land conveyed, but the grantee occupies a portion thereof to which he actually has title, such fact does not give him constructive possession of the other part.44 Where two patents lap, actual possession of part of the lap by the senior patentee is adverse as to the whole of it as against the junior patentee,45 but where the holder of the junior patent takes actual possession of part of the interference, his possession is limited to his actual enclosure.46 Adverse possession of one lot in a platted tract will not constitute adverse possession as to the others.47

session was vested in claimant. Blanken-horn v. Lenox \[Iowa\] 98 N. W. 566.

**34.** See 1 Curr. L 58.

**35.** In Illinois, payment for seven successive years on wild land by a person having enlor of title and provided claimant takes possession after such period. White v. Harris, 206 Ill. 384, 99 N. E. 519. In Vashington, payment of taxes on wild land for seven years under color of title. Philica dellphia Mortgages & Trust Co. v. Palmer, 32 Wash. 455, 73 P. 501. Under South Da-kota. statute, providing that actual possession under color of title, and payment of taxes for 10 years, vests title in the ocean, pant, a payment of all legal taxes for the 10 successive years is sufficient, and a fall-ure to pay for one year, though such payment was made the year following. Is not fatal to the claim. Murphy v. Redecker \[B.\] D.\] 94 N. W. 697.

**36.** Where one had been on premises that he supposed he owned under a tax deed, but had done nothing except to pay taxes for 10 years. It was insufficient to establish adverse possession. Severns v. Costello \[Arlig.\] 71 P. 930.

**37.** See 1 Curr. L 38.

**38.** Deed by a city of an alley to which it had no title. Peden v. Crenshaw \[Tex. Civ. App.\] 81 S. W. 369. The true owner having no actual possession of any part. Crill v. Hudson, 71 Ark. 380, 74 S. W. 299. Possession of five acres inclosed, with claim of one hundred and sixty acres. Fisher v. Giddings \[Tex. Civ. App.\] 74 S. W. 85. Possession of part under bond for a deed to all. Ellis v. Le Dow, 96 Tex. 532, 74 S. W. 628. Land patented to "A" was afterward patentement, "D" who went into possession of part of it; later "A" entered peaceably on it and persons in possession of parts of it took leases from him. Held, that the possession of all the land embraced in the patent was restored to "A" so as to stop the running of limitations as to any. Schlossnagle v. Kolb, 87 Md. 285, 64 A. 1006. An entry of a part of a tract under a deed containing 1 3 Cur. Law. ADVERSE POSSESSION SS 11. 61

If a tenant be placed in possession of a tract of land and no boundaries are inserted limiting the possession to a prescribed part of the tract claimed by the landlord, his possession would be of the whole tract, though he occupied but a part thereof;\*\* but if the lease be to a defined part of the larger tract, the possession will not avail the landlord beyond the boundaries of the parcel claimed and held by the tenant.\*\* Kentucky statute of limitations in respect to adverse possession is liberally construed in favor of actual settlers on account of the loose practice of the state in issuing patents for conflicting grants.\*\*60

SS 11. _Sufficiency of possession._\*\*51--In order that adverse possession be effective, there must be a claim of title hostile to the real owner,\*\*52 \*\*and ownership in the claimant.\*\*53 \*\*Naked possession without color of title is sufficient.\*\*54 \*\*Mere occupancy by the legal owner of the land is sufficient as against one having a tax certificate entitling him to a dead thereon.\*\*55 \*\*One can have no constructive possession under a void ded,\*\*56 \*\*and in some states is regulated by statute,\*\*57 \*\*and it may be presumed from circumstances.\*\*56

47. Missouri, K. & T. R. Co. v. Allen, 67

Fights, and though he told the leasor thereafter that he repudulated the contract, he

48. Creece v. American Ass'n \[C. C. A.\]

01. A tenant enclosed land beyond his boundaries. The terms of the lease were not clear. Treece v. American Ass'n \[C. C. A.\]

Evidence held to show that one who had

A.\] 122 F. 598.

50. Relative to area of possession, etc. Scott v. Mineral Development Co. \[C. C. A.\]

claiming title thereto, had acquired title,

130 F. 497.

51. See l Curr. L. 34.

01. Beer v. Plant \[Neb.\] 96 N. W. 348. Possession by the widow for the statutory

Raking and haulling straw off from land for

period of premises formerly occupied by her

one or two years and cultivating an acre or

husband as a homestead is presumed to be

two occasionally in InsImclient. Prevatt v. an election by her to take a life interest

Harelson, 132 N. C. 250, 43 S. E. 800. En-

theren and therefore not adverse to the

try and erection of buildings which were

helirs. Hult v. Hult \[Iowa\] 98 N. W. 123.

shortly afterward abandoned, insufficient.

Where a husband purchases a mortgage

Johnston v. Albuquerque \[N. M.\] 72 P. 9.

given by his wife on her separate estate,

Entry under a void ded, followed by actual

she has no adverse possession while they

nev possession in common and she does

and paying the taxes for the statutory period.

not deny his rights under the mortgage.

Skinner v. Hale \[Conn.\] 86 A. 524.

S3. One cannot acquire title to land by

thuous occupation for the statutory period

adverse possession while acknowledging the

the tite to it in another. Truman v. Raybuck,

207 Pa. 357, 56 A. 944.

54. Evidence, that one claimed title, held

sufficient. Abner v. Creech, 25 Ky. L. R.

1981, 79 S. W. 247.

55. Where the owner of the legal title

conveyed to another who had possession

for the statutory period. Crocker v. Dough-

erty, 139 Cal. 521, 73 P. 429.

56. Judicial sale void because without

jurisdiction: the purchaser did not take possession. Waldron v. Harvey \[W. Va.\] 46 S. E. 603.

Held sun@client: Surveying wild land, warning

ing trespassers, cutting firewood. Protecting the birds and fish is sufficient. Bogami

sogngnv. Pacffe Imp. Co., 111 La. 1685, 36 So. 129.

A company purchased a lne of road under

judicial sale, and took possession. There

was a mortgage on the road which the pur-

chasers never recognized. Held, under WIs-

consin 10-year statute the purchaser had held

adversely to the mortgage and the action

to enforce it was barred. Gunnison v. Chi-

cago, M. & St. P. R. Co. \[C. C. A.\] 130 F.

255. Where one took possession under a

contract of sale which reserved the mineral

S. W. 766. Acts of exclusive use and con-

thus occupation for the statutory period

when such use and occupation are accompanied by a claim of ownership. Lesai pre-

sumption of ownership is not distilled by

slight evidence that the claimant went into

possession by consent of the record owner.

Flanagan v. Mathieson \[Neb.\] 97 N. W. 287.

Maintaining a cemetery on land by United

States is sufficient. City of El Paso v. P. Ft.

Dearborn Nat. Bank, 96 Tex. 496, 74 S. W.

21. Possession by a mortgage of mortgage

gaged premises to the exclusion of the mortgage and in denial of his rights for the

statory period bars the
Enclosure is not necessary,6 but where the boundary is a stream, to constitute it such within the meaning of the statute, it must be of such depth as to constitute a barrier.64 That one in adverse possession allows another to use the premises does not

held to show that one had been in open, no-

ent timber, and had told them to tear down

torus and uninterrupted possession for

his fence. Held insulfment, Mitchell v.

the statutory period. Southworth v. Brown-

Bond \[Miss.\] 36 So. 148: Evidence of pastur

low \[Miss.\] 36 So. 522. Evidence held to

ing on land and selling - " therefrom con-

show that one who had been in possession

sidered in connection with acts apparently

of a tract under well marked boundaries

exknowledging a superior title, held Insuffment:

for 40 years had acquired title. Levy v.

Gause \[La.\] 36 So. 684. Evidence held to

show that one had a perfect chain of title,

but having been in possession for the statutory period. his plea of prescription was

good. Ours v. Gray \[La.\] 36 So. 326. Evi-

dence held to show that one who entered a

part of a street which had never been dedi-

cated had acquired title. City of South Omn-

ha v. Meechan \[Nb.\] 98 N. W. 691. Evi-

dence held to show that one had been in

compressed and had acquired prescriptive

title. Waters v. Durrence, 119 Ga. 384. 47 S. E. 216. Evidence held to show that land

in controversy had been subject of a Span-

ish grant to private individuals prior to the

time it had been ended to the United States,

that other parties had acquired title by

prescription and a patent of the United States

passed no title. Wilson v. Knight \[Fla.\]

37 So. 186.

**Held Insuffment:** Where one had cut some

timber on land and built a house thereon, evi-

dence held insulfment to show that the had

been in adverse possession for the statutory

period. Greer & Co. v. Raney \[Ga.\] 47 S. E. 939. Evidence that one had been in possession of

all the taxes and has been in actual, open and

land under color of title many years ago held

insufficient to show that such possession had

ripened into a prescriptive title. Waters v. Durrence, 119 Ga. 394, 47 S. E. 216. A she-

ifTs'd eded is of itself no evidence of adverse

possession. Prevatt v. Harreison, 132 N. C.

350, 43 S. E. 800. More claim of ownership

based on no color of title must be by enclo-

of vacant land by an adjoining owner and

the driving away of trespassers not suffi-

client (Snowder v. Lorce, 122 F. 493), nor is

the mere act of requesting a third person to

go on the land and keep off intruders (Jackson Lumber Co. v. McCreary, 137 Ala. 278, 34

so. 850), and adverse possession of wild land

is not shown by evidence that one had it sur-

veyed, paid taxes on it for a few years and

at times cut timber on it (White v. Harrin,

206 Ill. 384 69 N. E. 519). Where one went

on land, fenced 30 out of 240 acres, built a

house and other improvements thereon which

remained six or seven years, but it was not

shown who occupied the premises during the

thene the Improvements were there, held

sufficient to show adverse possession under

the five-year statute. Buster v. Warren \[Tex.

Civ. App.\] 89 S. W. 1063. Where one included

land in controversy together with a large

tract of other land to which he did not claim

title, and there was nothing to show the extent of the land he did claim, such posses

sion was insufficient. Nolan v. Mundine \[Tex.

Civ. App.\] 79 S. W. 638. One entered

der a void tax dead, was in possession

vours years, then the land was vacant 12 years.

during which time be paid no taxes, but

sionally cut some wood on the land and once

tried but failed to rent it. Held possession

insufficient. Brown v. Hartford, 173 Mc. 183,

73 B, W. 140. One had fenced part of a

ther tract but knew others came there and

the remaining author.

11.

3 Cur. Law.

In conclusion, the author is not

the author is not
3 Cur. Law. ADVERSE POSSESSION SS 12.

affect his possession. \[61\] One who owns and lives upon a tract cannot be in actual possession of another tract. \[42\] Possession with intent to acquire title must, at least in the beginning, be actual; mere paper title without such possession is insufficient. \[63\] Whether title has been lost by adverse possession is a question for the jury. \[64\] even where there is evidence tending to show possession of a portion of the lot in controversy. \[65\]

Possession without color of title must be actual as contradistinguished from constructive. \[66\]

SS 12. _Pleading, evidence and instructions. \[67\] Pleading. \[68\]_--The statute of limitations is a defense and must be pleaded, \[69\] as must a fact relied on to remove the bar of limitations. \[70\] An allegation that one "is now and she and her grantors have been in the actual, open, notorious and adverse possession, under claim of right for more than 10 years past" is sufficient. \[71\] The term "openly" shows that the use was notorious and not clandestine. \[72\] The term "adverse" implies hostility. \[73\] It is not necessary to use the term "exclusively. \[74\] The term "under claim of right and adversely" implies that the use was under claim of title as their own. \[75\] Alleging that the land was "occupied" is an allegation of "actual possession. \[76\] Whether possession of land is hostile and adverse is not a conclusion of law but an ultimate fact, \[77\] and is a question for the jury. \[78\]

was fenced on three slides with a stream on \[\]murrer. Johns v. Cumberland Tel. & T. Co. the fourth. There was no evidence relative \[Ky.\] $0 S. W. 165.

to the size of the stream and it was held that \[70\]. Shirey v. Clark \[Ark.\] $1 S. W. 1057.

an inclosure was not shown. Cochran v. \[71\]. Exclusivelyness and hostility are im-Moerer, 31 Tex. Civ. App. 495, 72 S. W. 1031.

61. One in possession of anley under a \[\]murrer. In pleading adverse possession to an void deed sought to incluse the entire alley.

canment in a ditch. Abbott v. Pond, 143 An action to prevent the obstruction was \[\]carl. $93, 76 P. 60.

compromised by the claimant allowing it to \[73\]. It was not necessary to use the term remain open. Held, this did not affect his constructive possession. Peden v. Crenshaw \[Tex. Civ. App.\] $1 S. W. 369.

62. Where an adjoining owner acted as \[\]agent for one and kept trespasserstein off the land, etc., it did not constitute actual possession for the owner. Chenault v. Quisenberry \[Ky.\] $1 S. W. 590.

01. Under void tax sale. George v. Cole, 109 La. $16, $38, 78. 14.

01. When use has been made of a railroad right of way inconsistent with the easement therein. HHI v. Southern R. \[S. C.\] $6 S. E.

01.

01. Haigler v. Pope \[Tex. Civ. App.\] $7 S, 409.

01. Hamilton v. Flourney \[Or.\] $74 P. 483.

01. One who claims by adverse possession with-out color of title must show actual possession of a part of a tract definitely described in his pleading. Giddings v. Fischer \[Tex.\] $7 S. W. 209. Where an illiterate negro- entered on land under a pard gift from his employer and cultivated it for 30 years, though there was some evidence that there was an entry at times by the owner of the record title, it was held he had acquired title.

Dvorsky v, WWatkins \[Neb.\] $8 N. W. 1039.

67. See 1 Curr. L. 39. n. 56-62.

01. Roberts v. Decker \[Vis.\] $7 N. W. 519; Shirey v. Clark \[Ark.\] $1 S. W. 1057. Anwer held to plead the statute jointly and severally as to each of several defendants. Henning v. Wren \[Tex. Civ. App.\] $7 S. W.

01. Answer allegging that one had been in possession for 6 years past was bad on de The burden of proving all elements of adverse possession is on him who asserts the claim."

\_What is admissible."\_Evidence that the land was generally reputed to belong to one claiming title by adverse possession and that he used it under claim of ownership is admissible." A deed though ineffectual, except as between the parties to pass title, is evidence of the nature of the use in reference to the right claimed to be exercised thereunder." Deeds from those under whom one claims are admissible to show adverse possession."

\_Instructions."\_The question of adverse possession being for the jury, an instruction that a possession is not adverse is erroneous," as is also a charge that adverse possession in order to give title must show facts that will satisfy the legal definition;" but when the facts clearly show adverse possession, the court may direct a verdict." It is not necessary to restate all the elements of adverse possession where they have been set forth in a previous instruction." Where one claimed title by 20 years' adverse possession, an instruction as to color of title and possession for 7 years was not prejudicial, though there was no such issue in the case." An instruction that possession must be such as "will bring to the knowledge of the real owner the fact that one is claiming adversely" is not proper."

Adverse possession cannot be relied on on appeal where there was no plea thereof in the court below."

SS 13. _Nature of title acquired."_--A title acquired by adverse possession is indefeasible," wholly independent of any other title," and is not divested except by the usual formalities of conveyancing." It is not lost by a subsequent survey."

79. Dignan v. Nelson, 26 Utah, 186, 72 P.

utory period. Owens v. Merideth, 25 Ky. L.

936: Pittman v. Weeks, 132 N. C. 81, 43 S. E.

R. 1485, 78 S. W. 145.

58. In charging as to a possession to be tacked. Williams v. Shepherdson \[Neb.\] 95 N. W. 827.

for the statutory period. Altschul v. Casey

89. Pittman v. Weeks, 132 N. C. 81, 43 S. E. 682.

01. It is sufficient if it be such as should be presumed to do so. Williams v. Shepherdson \[Neb.\] 95 N. W. 827.

01. Shirev v. Clark \[Ark.\] 81 S. W. 1057.

01. See 1 Curr. L. 39.

01. Holcomb v. Combs, 25 Ky. L. R. 557.

01. Lusk v. Peiter, 101 Va. 970, 45 S. E. 333.

01. Phillips v. Watuppa Reservoir Co., 184 Mass. 404, 68 N. E. 848.

01. Adverse possession for the statutory

01. Crawford v. Arnold \[Tex. Civ. App.\] 78 S. W. 244. Where title of land was put in issue, evidence that a party and his wife went into possession 30 years prior to the action, under a deck to the wife, was admissible. Bullock v. Lake Drummond Canal & Water Co., 132 N. C. 179, 43 S. E. 593.

01. See 1 Curr. L. 41.

01. Rabbermann v. Carroll, 207 III. 253.

69 N. E. 759.

86. Abstract and misleading. Sherrard v. Cudney \[Michel.\] 96 N. W. 15.

01. Where one had been in possession by

temants under leases for forty years of a

part of an island and in actual possession

for twenty years of another portion, and

nineteen years before suit was brought, and

had sold a right of way to a railroad com-

pany. McKee v. Grand Rapids \[Michel.\] 95 N. W. 85. Eight witnesses testify without con-

tradition or questioning of their credibility

to claimant's adverse possession for the statutory

94. Granot's actual title or prior convey-

01. S. Surveys subsequently made by agreement between the adverse claimant and the one whose title had been divested. Logsden

v. Dingge \[Ind. App.\] 69 N. E. 409. An en-

tryman devised land and his deviseses remained in possession for the statutory

101. They acquired title superior to that acquired by the entryman's heirs to whom pat 3 Cur. Law. AFFIDAVITS. The statute of limitations with reference to real property is neither a statute of presumptions nor of repose, but the adverse possession of land for the statutory period operates as a grant." Statutes of limitations, as a general rule, are not given a retroactive effect."

AFFIDAVITS. The statute of limitations with reference to real property is neither a statute of presumptions nor of repose, but the adverse possession of land for the statutory period operates as a grant." Statutes of limitations, as a general rule, are not given a retroactive effect."

## 66 AFFIDAVITS OF MERITS.

3 Cur. Law.

_Admissibility of affidavit in evidence and effect thereof.\[19\]_--An affidavit is not admissible in proof until its execution is proved.\[20\] That part of an affidavit which is hearsay will be excluded.\[21\] Where an affidavit does not state whether it is based on personal knowledge or information, where the affiant could not lawfully have personal knowledge, it will be presumed to be based on information alone.\[22\] Numerical preponderance has like weight as in case of other evidence.\[23\] Affidavit purporting to have been made by a father is incompetent for the purpose of proving age of son.\[24\] Affidavit alleging citizenship has no probative force in establishing naturalization of an alien.\[25\] Affidavits are proper mode of taking proof upon motions or petitions.\[26\]

## 7 AFFIDAVITS OF MERITS OF CLAIM OR DEFENSE.

An affidavit of defense may be used to support a motion to open judgment,\[27\] to obtain an extension of time to answer or demur,\[28\] and to throw the burden of proof on the opposite party;\[29\] but it cannot be used to assert technical objections to the pleadings.\[20\] The ordinary rules of courts requiring affidavits of defense do not vio-

394. The necessity of stating a venue at Mich. 7, 48 N. V. 646, and the note thereto as all is reluctantly confessed by the authorities (Bean v. Ayers, 67 Me. 487; Briggs v. Nan- tucker Bank, 55: Sullivan v. Hall, 86 Mech. 7, 48 N. V. 646, 13 L. R. A. 556), it has been held that the omission of venue from a naturality public is just done not render part of which is hearsay, is not error, there of whose appointment is required to be kept in the office of the secretary of state (Sullivan v. Hall, 86 Mech. 7, 48 N. V. 646, 13 L. R. A. 551), but the omission of venue in a formalot?s affidavit in a formalot?s affidavit in a formalot?s affidavit in a formalot?s affidavit in a formalot?s affidavit in a formalot?s affidavit in a formalot?s affidavit in a formalot?s affidavit in a formalot?s affidavit in a formalot?s affidavit out of eight jurors filed is fatal (People v. De Camp, 12 Hun \[N. Y. 4107\]; 375; Cook v. Stats, 18 Barb, \[N. Y. 4107\]; Lane v. Morse, 69 How. Pr. \[N. Y. 394\]. The objection to the omission of venue can be cured by amendment (Clement v. Ferenbach, 1 City Ct. R. \[N. Y. 57\]), and under the strict rules of the common law might be taken adl. 314, 69 N. E. 36, 13 L. R. A. 556).

Surtag of by denumer (Sullivan v. Hall, 86 Mech. 7, 48 N. V. 646, 13 L. R. A. 556).

Surtagfultion frequently depends upon the affidavit, and it is lacking in an essential requisite, all subsequent proceedings found- ed upon it are void unless the defect is valued. People v. De Camp, 12 Hun \[N. Y. 378\].

The jurat, when the deposition is taken by a notary acting out of his home county, should have attached to it the name of the county for which the rotary was appointed and in which he resides, and also a statement that his certificate is filed in the county in which the venue is laid and the act performed, though an omission to make such designation will not render the verification & Cole Co., 205 IH1 482, 68 N. E. 550.

Vold. Produce Bank v. Baldwin, 49 How. Pr. \[N. Y. 277\]; Estate of Klim, 2 City, Proc. R. \[N. Y. 71\]; Sullivan v. Hall, 86 Mech. 7, 46 N. V. 646, 13 L. R. A. 556; Smy. Not. Man. p. 57.

The jurat should be in proper form and subscribed by the officer before whom it is made. If the jurat be all right in the original. It is immaterial as to the copy served order granted without such affidavit having (Marker v. Cook, 40 Barb. \[N. Y. 254; Liv- mignston v. Cheetham, 2 Johns. \[N. Y. 4179\]; Union Furnace Co., 3 Shepherd, 2 HH \[N. Y. 410\]; though the case of Graham v. Mc- Coun, & How. Pr. \[N. Y. 383, seems to hold the contrary, \[N. Y. 383, 12\]; seem to hold \[N. Y. 369\].

The jurat should be in proper form and subscribed by the officer before whom it is made. If the jurat be all right in the original. It is immaterial as to the copy served order granted without such affidavit having (Marker v. Cook, 40 Barb. \[N. Y. 254; Liv- mignston v. Cheetham, 2 Johns. \[N. Y. 4179\]; Union Furnace Co., 3 Shepherd, 2 HH \[N. Y. 410\]; the opposite party is a 3 Cur. Law. AFFIDAVITS OF MERITS.

late the right of trial by jury, \[31\] nor is a rule requiring administrators and executors, guardians and others sued in a representative capacity to file affidavits of defense invalidid. \[22\] An affidavit of defense should set forth fully and fairly facts sufficient to show prima facie a good defense; \[33\] stating that a person has been "duly notified" is insufficient. \[34\] Stating facts substantially in the language of the statute is generally sufficient, \[35\] but if it fails to state a defense, either from omission of essential facts or from manifest evasiveness in the mode of statement, it will be insufficient to prevent judgment. \[8\] In some states a rule judgment may be taken against a defendant for that portion of the affidavit of defense which :s insufficient; \[37\] but the court cannot make the rule absolute without an adjudication as to what portions of the affidavit are insufficient. \[8\] Where an officer of a corporation makes an affidavit of defense for the latter, it is unnecessary for him to set forth his information and belief. \[8\] Failure of the profinonotary to sign the jurat does not generally vitiate the affidavit. \[40\] For the purpose of determining its sufficiency the allegations in an affidavit of defense must be taken to be true. \[41\] But where the affidavit is not filed in time and comes before the court on a rule to open a judgment regularly entered, the court may examine the. averments and require further evidence as to facts, as in other cases of application to open

on a motion to open judgment, an affidavit of \[Somerton Hills Cemetery, 205 Pa. 552, 56\] defense was filed stating "that it does not appear from the plaintiff' statement of claim woman on her contract of surestyship, the that the note was stamped." Field an argument of claim averring that the con-mentative denial and a technical objection tract was made in New York, where it was to the pleading. Hunter V. Forsyth, 206 Pa. \[41\] valid, and the affidavit of defense not deny-466, 55 A. 26.

31. A rule authorizing judgment for plain- tred for plaintiff. Peter Adams Paper Co. v. Cassard, 208 Pa. 267, 57 A. 864. On a actre tense in actions ex contractu in which plain- tred for plaintiff has filed a supporting affidavit. action an affidavit of defense is filed, the court can against principal and suresty on a bond is an action ex contractu within the meaning appears from these papers that the receg-of above rule. Fidelity & Deposit Co. v. U. S., 187 U. S. 315, 23 S. Ct. 102.

01. Heffrich v. Greenberg, 206 Pa. 516, 56 A. 45.

01. Andrews v. Blue Ridge Packing Co., 206 Pa. 370, 55 A. 1098. See 1 Cur. L. 43, was notified. Stephenson V. Supreme Coun- n. 20-26. Under rule 73 of the supreme court of the District of Columbia. Fidelity & De- posit Co. v. U. S., 187 U. S. 315, 23 S. Ct. 120. Under Baltimore City Charter, 312. If the whole claim sworn to by plaintiff is disputed, then it must be distinctly stated in defend- and's affidavit that it was disputed; it need not state what is due nor that defendant will be able to produce evidence to sustain his contention. E. J. Codd Co. v. Parker, 37 Md. 319, 55 A. 623.

Assm judgment.41 The sufficiency of an afflavit of defense depending upon the construction of other instruments, the court will not construe the instruments but will allow the case to proceed to trial.48 Where the defense set up in an afflavit of defense is probably good, but is insufficiently stated, a supplemental afflavit is properly allowed.44 Generally, amendments to the afflavit may be allowed,45 it lying in the discretion of the court to permit an extension of time in order to amend.46 Objections to allowing amendments to47 or to defects in48 afflavits cannot be taken for the first time on appeal.49

**AFFRAY.**

An affray is the mutual fighting of two or more persons by consent, in a public place.40 It consists of mutual assaults, of which one person may be convicted, where the other may be acquitted or not put on trial.41 The use of profane and violent language by two persons, each to the other, although in a public place, is not sufficient to constitute an affray.52 Self-defense is available as a defense in a prosecution for an affray.53

**AGENCY.**

\[INCLUDES SPECIAL ARTICLE ON AGENCY FROM RELATION OF PARTING.\]

**I. The Relation between the parties (69).**

**A. Competency to Act as Agent or to**

**C. Particular Kinds of Agencies (83).**

**B. Creation and Existence of the Relation (69); also Special Article,**

**E. Undisclosed Agency (88).**

**A. Agency from Relation of Particles (101).**

**C. Implied Agency (71).**

**D. Evidence of Agency (72).**

**B. Estoppel to Assort or Deny Agency (74).**

**F. Termination of Relation (75).**

**I. Rights and Liabilities of Principal as-to Third Persons (76).**

**A. Actual or Implied Authority to Blind Principal (76). Evidence and Proofs (78).**

**B. Apparent Authority and Unauthorized or Wrongful Acts of Agent;**

**A partner is the agent of the firm.54**

**A.**

**A. Hunter v. Forayth, 205 Pa. 466, 55 A.**

**261.**

**43. As to whether a bond was conditional or not. Kerr v. Culver \[Pa.\] 67 A. 1106.**

**44. Andrews v. Blue Ridge Packing Co., 206 Pa. 370, 55 A. 1059.**

**45.**

**46.**

**47.**

**48.**

**49.**

**48.**
3 Cur. Law. AGENCY SS 1B. 69

broker and the owner of property who employs him is primarily that of principal and agent. \[95\] The principles especially applicable to these and other particular kinds of agencies are treated under other titles. \[96\]

SS 1. \_The relation between the parties. A. Competency to act as agent or to employ agents. \[97\]--The marriage relation does not disqualify one of the parties to it from acting as agent of the other. \[98\] But a married woman cannot appoint an agent for real estate owned by her in fee, nor have such agent in her husband. \[99\] An executrix may employ an agent to buy land on commission. \[99\] One conducting a sale under a trust ded as agent of the trustee may buy as agent of the beneficiary. \[91\] The governor of New Hampshire may appoint an agent to prosecute claims against the United States for public defense or payment of troops. \[92\]

(SS 1) \_B. Creation and existence of the relation. \[99\]--The contract of agency must have the elements essential to the validity of all contracts, \[94\] must be consistent with public policy, \[96\] and properly executed. \[99\] In most states an agency relating to reality must be in writing, \[97\] in which the particular land is identified; \[98\] in North Carolina, it seems, written authority is unnecessary. \[99\] An offer to sell, accepted by the attorney of the buyer, is a valid contract as against the seller, though the attorney's authority was not in writing. \[99\] Some statutes re-

SS5. Cadigan v. Crabtree \[Mass.\] 70 N. E. \[Mass.\] 70 N.

quire a power of attorney respecting reality to be properly acknowledged?" or recorded in the county where the land is situated.\[12\]

Agency is a mixed question of 'law and fact,\[78\] to be determined by the jury under proper instructions,\[74\] when the agent's authority is not in writing.\[78\] Where there is no conflict in the evidence, the question of the existence of the relation is for the court.\[78\] Whether the relation created is that of principal and agent,\[79\] or vendor and purchaser,\[78\] must be determined from the entire contract and

71. Sufficiency of foreign acknowledgment given so as to charge the bank with the fraud. Hyatt v. Zion \[Va.\] 48 S. E. 1.

$ 250, snbd. 2 (Lave 1901, p. 1476, c. 611).

$ 75, Lough v. John Davis & Co. \[Vwash.\] 77

Jordan v. Underhill, 91 App. Div. 124, 86 N.

$ 76. Whether goods were bought from an-

$ 72. A power of attorney concerning a sale of land cannot be recorded in a county where none of the land is situated; a copy of the

$ 250, snbd. 2 (Lave 1901, p. 1476, c. 611).

$ 73. Ownly, 91 App. Div. 124, 86 N.

$ 74. A power of attorney concerning a sale of land cannot be recorded in a county where none of the land is situated; a copy of the

$ 250, snbd. 2 (Lave 1901, p. 1476, c. 611).

$ 75, Lough v. John Davis & Co. \[Vwash.\] 77

$ 77. A power of attorney concerning a sale of land cannot be recorded in a county where none of the land is situated; a copy of the

- 3 Cur. Law. AGENCY SS 1C.

from the surrounding circumstances and situation of the parties." The exclusive right of sale in certain territory\[80\] may properly be considered as a condition subsequent in a contract of sale."

_Intermediaries._"--A mere intermediary is not an agent," and cannot be held liable as such when the capacity in which he acts is disclosed." Dual agencies are void only when the fact of representation of both parties is not known to each." Where ship materials are left with an agent to be sold and he uses them in building a vessel of which he is also agent, the owner is entitled to a lien on the vessel."

(SS 1) _C. Implied agency._"--The fact of agency or its extent may be presumed" from the conduct of the parties," or their usual course of business," or from lapse of time," so as to protect a third party acting in good faith and with reasonable prudence." The presumption does not arise from conduct of the parties when the interests of the alleged principal and agent are adverse."

- 79. Osborne & Co. v. Josselyn \[Minn.\] * 72AGENCY SS 1D. 3Cur. Law. It will not be presumed from the mere existence of the marital relation," though that fact may go to the jury on the issue of agency." Once the agency is shown, the relation is presumed to continue." See also a special article in this number on agency implied from relation of parties." (SS 1) \_D. Evidence of agency."--\_P_arol evidence is admissible to prove an agent's authority," unless in writing.1 Neither the extent,2 nor the fact of agency, can be shown by declarations or admissions of the alleged agent,3 not brought home to or ratified by the principal.4 But it is not error to admit declarations,5 or other testimony by the agent,6 when the agency has already been shown or is admitted, when such evidence is admitted for purposes of corroboration only,7 and testimony by the agent as to previous conduct is competent on the issue of due care by a person dealing with him." Statements and declarations of the alleged principal are evidence of the most satisfactory character." A witness may testify to his own appointment to an agency or the appointment of the company with which he is connected.10 Evidence of actual transactions between the parties,11 or tending to show a course of dealing,12 or letters between

by a surety will not be presumed to have several in absence of his master cannot be been for the payee as principal. Judkins

v. Burr, 1 Neb. Unoff. 267, 95 N. W. 475. 94. Agency of the husband in management

ness. Clark v. Folscort, 67 Kan. 446, 73 of the write's separate property. Wagoner v. Silva, 139 Cal. 559, 73 P. 433. 95. Brown v. Woodward, 75 Conn. 254, 53 A. 112. 96. Where a tenant was not notified to pay rent to any other than the landora jaintes, who is shown to have had authority to take rent "from some tenants when they first moved in," payment to the jaintes was will bind the landord. Gross v. Owen, 85 N. Y. S. 255. 97. Post, p. 101. 98. See 1 Curr. L. 45. 98. Lough v. John Davis & Co. \[Vwash.\] 77 P. 732. 1. A letter of appointment submitted to the agent for alterations and by him returned to the principal with desired changes, on being again sent to the agent, is the contract and cannot be changed by parql evidence of prior negotiations. Davis v. Pfledify Fire Ins. Co., 288 Ill. 375, 70 N. E. 389. Lack of terms as to duration will not make a written contract of agency so uncer- tain as to admit parql evidence. Id.

2. Grant v. Humericke\[Iowa\] 94 N. W. 510. Incompetent to show authority or its extent. Walmsley v. Quigley \[C. C. A.\] 129 F. 638. Error to admit agents declarations that he was state agent, other evidence tending to show he was a traveling salesman

with IImted powers. Adultman & Taylor Mach. Co. v. Cappleman \[Tex. Civ. App.\] 81 S. W. 1243. 9. Bureau v. Bogart \[Colo. App.\] 72 P. 605; Waters-Pierce Oil Co. v. Jackson Junior 822. 98 Mo. App. 242, 73 S. W. 272; Deckman v. Worflich, 24 Ky. L. R. 2340, 73 S. W. 1119; Tabet v. Powell \[Tex. Civ. App.\] 78 S. W. 97: Smith v. Browne, 133 N. C. 365, 43 S. E. 935; Dyer v. Winston \[Tex. Civ. App.\] 77 S. W. 227; Esaaland v. Masry (Tex. Civ. App.\] 81 S. W. 574. As against the principal. Chiles v. Southern R. (S. C.) 48 S. E. 255. Conversation had by a third person with an alleged agent is hearsay and inadmissible on the issue of agency. Broadstreet v. Hall

in LIME being applied only to the terms on which the agent might deal with third 3 Cur. Law. AGENCY SS 1D. 73

the parties,\[13\] tending to show agency, are competent, but proof of general reputation is inadmissible.\[14\]

Proof of the agency, whether express or implied, must be clear and satisfactory in order to bind the principal.\[15\] Cases dealing with admissibility\[16\] or sufficiency\[17\] of evidence as to agency in particular instances are grouped in the notes.\[18\]

persons, in an action for fraud against the \[18\] Neb. Unoff. 839, 95 N. W. 615. To show that agent, negotiations between the parties may \[18\] an agent for sale of realty acted for the purchover to show existence of the agency \[18\] chaser and not the owner. Callaway v. Will. at a later period. Barbar v. Martin \[18\] soon, 141 Cal. 421, 74 P. 1035. Authority of 93 N. W. 722.

agent to list land with reel estate agent for sale at a certain net price to the principal. H.\] 54 A. 385. Between principal and agent, \[18\] and between the agent and third persona, \[18\] principal negotiations for a contract regarding \[18\]. May 140. That a person had handled plain- \[18\] if's machines, taking notes payable to plain- \[18\] the idl himself, \[18\] finding of the agency was \[18\]. May 141. Evidence held to warrant conclusion that \[18\] a contract of sale, to a nephew of the an agent. Cronso v. Bowser Mill. Co. \[18\], \[18\]
(SS 1) _E. Estoppel to assert or deny agency._\[19\]--The principal's admission," or his acquiescence and acceptance of benefits from the agent's acts,\[21\] will estop him to deny the agency, if the other party has acted in reliance on the acts creating the estoppel.\[21\] Acceptance by the principal of one contract of an unauthorized agent will not estop the principal from denying his authority to make a similar "James E. Leps, agent for A. Co." is against 3519. Dover v. Pittsburgh Oll Co.. \[Cal.1\] 77 Leps alone, the words "agent for" being merely descriptive. Armour Packing Co. v. Loval, 118 Ga. 164, 44 S. E. 99. Assignment of a mortgage by a general corporate officer, with corporate seal attached, is prima facie v. Northington v. Granade, 118 Ga. 584, 45 evidence of his authority. Wilson v. Neu. 1 Neb. Unoff. 42, 95 N. W. 502. That one addressed an envelope will not show him to be bound by the letter contained giving authority to an agent where he denies knowledge of the contents. Darr v. Darrow, 120 Iowa, 29, 94 N. W. 245. A power of attorney "to release a mortgage " " for $40,000 000" does not make the payment of $40,000 a condition, but the mention of that sum simply describes the mortgage. Adams v. Hopkins \[Cal.1\] 77 P. 712. The acceptance by one road of a ticket sold by another is some evidence that the latter acted as the agent of the former in the sale. Chiles v. Southern R. \[S. C.\] 48 S. E. 252. Where an agent signs a memorandum of payment for ready as agent, describing it as "belonging to" one of his two principals, the words were part of the description and did not limit the agency, so that the two owners may be used as principals of the one mentioned. Tobin v. Larkin, 183 Mass. 838, 67 N. E. 340. Where an offer to sell machinery was made to G. & Co. "(for the N. Umbrella Co.)" and G. & Co. and others signed the acceptance, such signature should the signers personally and not as agents of the umbrella company. Gill v. General Elec. Co. \[C. C. A.\] 129 F. 349. Evidence as to existence of undisclosed principals liable for agent's purchase of railroad property at mortgage sale. Ranger v. Thalamus, 39 Misse. 420, 80 N. Y. S. 19. That an agent was a del credere factor cannot be inferred from the mere fact that the names of customers were not disclosed to the principal. See Factors, 1 Curr. L. 1200. Cushman v. Snow (Mass.) 71 N. E. 529.

19. See 1 Curr. L. 47.

01. Where the principal admits that negotiations with a representative were with him, and that a valid bond was delivered. he cannot deny the agency. Stearns v. Shepard & M. Lumber Co.. 91 App. Div. 49, 86 N. Y. S. 391. Where an exporter made a consular declaration that his consignree was a purchaser and recited the purchase in an invelice accompanying such declaration and the goods were entered in the custom house in the consignee's name, the exporter was estopped to assert, as against a purchaser from the consignee, in reliance on the custom house title and consular declaration, that the latter was only his agent; the estoppel extended to the consignee's agent acting under the exporter's orders. Shmar v. Shea, 89 App. Div. 84, 85 N. Y. S. 457. The brother of the owner of stock pledged it as security for his debt, and when notified by the corporation, the owner said it was all right. The stock was sold to a bena flde purchaser to satisfy the debt. Held, the owner was estopped to deny his brother's agency (Cvr. Code (ostensible agency) # 2307, 2317, 515, 5 3. Cur. Law. AGENCY SS 1F. subsequent contract.23 The principal may be estopped to deny a subagency by acts of his general agent24 if such acts are brought home to him.25 The agent, in like manner, may be estopped by his own acts from denying his representative capacity.26

(SS 1) \_F. Termination of relation.27--An agency for an indefinite time is terminable at will.28 If the contract of agency be for a fixed period,29 or the agency be coupled with an interest,30 it is revocable, but the principal will be liable for the damages caused by wrongful revocation.31 In this sense an agency coupled with an interest given for a valuable consideration or as part of a security is called irrevocable.32 While it is the general rule of law that the death of the principal revokes the agency, when not coupled with an interest,33 this rule is held not to apply as against those dealing in good faith with the agent, without knowledge of such revocation and within the scope of his actual and ostensible authority.34 Commission or reward to be given an agent for his services does not alone make his employment an agency coupled with an interest.35 Violation of his contract,38 or disregard of instructions37 by the agent, is sufficient ground for his discharge by the principal. The withdrawal38 or disposal39 of the sub-

23. Purchase of lumber by one falsely 30. Milligan v. Owen \[Iowa\] 98 N. V. pretending to act as agent. Owens v. Hughes 792: Miller v. Home Ina. Co. \[N. J. Law\] 58 \[Tex. Civ. AppJ. 71 S. V. 783. A. 98. 24. Where a general agent accepted a bond by advancements made under it, his 792: Rowan & Co. v. Hull \[W. Va.\] 47 S. E. principal could not deny the authority of a 92. 32. Insurance broker holding a policy as Bank v. Aetna Indemity Co. \[Wash.\] 74 P. secutrity for premium advanched and given 500. 25. That barrels of whisky in an alleged agent with an interest. Miller v. Homo Ins. principal's name were found in his warehouse 58 A. 98. A power of attor- will not estop him from denying. in an action for the price of whisky, that the agent not coupled with an Interest, or based on a hand authority to purchase. Hackett v. Van Frank \[Mc. AppJ. 79 S. V. 1013 126. One who has conveyed land as attor-

01. One who has conveyed land as attor-

ney in fact of another is estopped from Burlalo Land & Exploration Co. v. Strong curing the agency. Wilters v. Ernst \[Tex. Civ. AppJ 70 S. W. 443. Where an agent has

33. Brown v. Skottland \[N. D.\] 97 N. V. held possession of personality for three years 543. In such capacity for his principal to whom it was sold, he cannot claim it as his own

01. Conduct of administrator held to have

on the ground that the sale was in further-

ance of restraint of trade or void as argument

83. Purchase of Laws and
    JETP 10 * 8 Cur. Law. AGENCY SS 2A. written authority. \[66\] When the agent's powers are not conferred by a writing, they must be ascertained from the scope and character of the business which he is authorized to transact, \[87\] but cannot include illegal acts. \[88\] Implied powers may arise from a course of dealing \[89\] or conduct of the parties, \[60\] who may be estopped to deny that an act was without the authority of the agent. \[81\] Implied agency of a wife to purchase necessaries does not extend to articles not necessary to the household. \[82\] Third persons may rely on the principal's statements as to the agent's authority. \[83\] Under a statute requiring signature of the writing by the party to be charged, a signature by his agent is insufficient. \[84\] Termination of the agency terminates the authority, \[66\] except as to third persons without notice. \[88\] Declarations or admissions of the agent made without authority, \[87\] or as to matters outside the scope of his authority, \[88\] or after termination of the agency, \[89\]

- 56. Osborne & Co. v. Ringland & Co., 122 Iowa, 329, 98 N. W. 116. \[81 B. V. 663\] 57. Whether agents of an indeminity com- pany who took shipbuilding plant to finish a contract on default of the builder had pow- er to borrow money to complete it, held to be for the jury. Ladd v. Acta Indeminity the agent's acts where the principal repre- Co., 128 F. 298. Authority to borrow money must be expressly given or necessarily im- piled from the nature of the agents' duties. \[88\] It has a member of a state insurance agent termed a "eashler." had no implied authority to indorse and discount drafts for his principal. Exchange Bank v. Throwed 118 Gn. 433, 46 S. E. 316. Where a clerk had admitted authority to act as agent for his employers in charterning vessels for their trade, if he did not make known to third persons with whom he was dealing that he was not acting for his employers in sign- ing a memorandum of charter at their place of business in his own name, they are bound. Rainey v. Potter \[C. C. A.\] 120 F. 651. \[88\] The agent of the owner of premises is not presumed to have authority to lease for an illegal purpose. Stover v. Flower, 120 Iowa, 614, 94 N. W. 1100. \[89\] Authority of corporate agents to com- traot. Smith v. Bank of New England \[N. H.\] 54 A. 385. The course of dealing between the principal and his agent may be shown on the issue of his general agency to represent the principal as to sales. Continental Tobacco Co. v. Campbell, 52 Ky. L. R. 659. \[70\] 76 S. W. 125. A corporation cannot be bound by acts of agents or officers without express authority or such a course of dealing \[89\] or conduct of the parties, \[89\] who may be estopped to deny that an act was without the authority of the agent. \[89\] Implied agency of a wife to purchase necessaries does not extend to articles not necessary to the household. \[89\] Third persons may rely on the principal's statements as to the agent's authority. \[89\] Under a statute requiring signature of the writing by the party to be charged, a signature by his agent is insufficient. \[89\] Termination of the agency terminates the authority, \[89\] except as to third persons without notice. \[89\] Declarations or admissions of the agent made without authority, \[89\] or as to matters outside the scope of his authority, \[89\] or after termination of the agency, \[89\]
- 56. Osborne & Co. v. Ringland & Co., 122 Iowa, 329, 98 N. W. 116. \[89\] 81 B. V. 663. \[90\] 87. Whether agents of an indeminity com- pany who took shipbuilding plant to finish a contract on default of the builder had pow- er to borrow money to complete it, held to be for the jury. Ladd v. Acta Indeminity the agent's acts where the principal repre- Co., 128 F. 298. Authority to borrow money must be expressed given or necessarily im- piled from the nature of the agents' duties. \[89\] 81 B. V. 663. \[91\] 81 B. V. 663. \[92\] 81 B. V. 663. \[93\] 81 B. V. 664. \[94\] 81 B. V. 665. \[95\] 81 B. V. 666. \[96\] 81 B. V. 667. \[97\] 81 B. V. 668. \[98\] 81 B. V. 669. \[99\] 81 B. V. 669. \[90\] 81 B. V. 660. \[91\] 81 B. V. 661. \[92\] 81 B. V. 661. \[93\] 81 B. V. 662. \[94\] 81 B. V. 663. \[95\] 81 B. V. 664. \[96\] 81 B. V. 665. \[97\] 81 B. V. 666. \[98\] 81 B. V. 667. \[99\] 81 B. V. 668. \[90\] 81 B. V. 66

## 78 AGENCY $ 2A.

3 Cur. Law.

do not bind the principal, but declarations and admissions within the scope of the agent's authority are binding.\[70\]

\_Evidence and proofs.\[71\]--\_The admissions or declarations of the agent are received in evidence against the principal, not as admissions or declarations merely, but as parts of the res gestae,\[72\] and only such as accompany the transaction in which the agent acted can be proved.\[73\] Declarations of the alleged agent are inadmissible to show the extent of his authority,\[14\] but a general agent of a

The principal is bound only by acts and

disclarations of his agent as to matters with

in the scope of his general employment or

R. Co. 65 S. C. 148, 43 S. E. 88. There being

specially intracted to him. \[Huebner V. Ertie

Fudence tending to show that the agent

R. Co., 69 N. J. Law, 327, 55 A. 273. Statements of corporate officers that the corpora

such, his declarations were admitted. though

tion had agreed to pay obligations of an

under a week or more after the transaction

other corporation whose assets it took over

in suit. Cooper Grocer Co. v. Britton \[Tex.

cannot be shown to prove the agreement,

there being no evidence of authority. Cen

T. See 1 Curr. L. 49.

120 F. 925. The superintendent of a prune

ranch, whose duties are general management

and preparation of the fruit for market,

but who cannot sell, cannot bind his em

ployer by admissions as to the condition of

fruit sold \[Civ. Code, $ 2295 and $ 1870. subd.

51. Peterson Bros, v. Mineral King Fruit

Co., 140 Calab $24, 74 P. 162. The hired manager

of a hotel cannot bind his employer by

admissions concerning a trepass by a serv

ant on a guest after its commission, Clancy

v, Barker \[Neb.\] 98 N. V. 440.

#5. Admissions of an agent, made two or

three weeks after termination of the agency,

as to a transaction, are inadmissible to

prove it. Small v. McGovern. 117 Wis.

608, 94 N. W. 651. Statements of an

agent after termination of the relation

will not bind the principal where the person

to whom they were made knew the agency

had terminated. Hill Bros. v. Bank of Sene-

ca, 100 Mo. App. 286, 73 S. V. 307.

70. Tauber V, Powell \[Tex. Civ. App.\] 78 S.

W. 997. Sufficiency of evidence of authority,

Hill Bros, v. Bank of Senees, 100 Mo. App.

230, 73 S. W. 307. Admissions and represen

tations of a corporate agent, acting within

the scope of his authority, as to matters in

his care, will bind the corporation. White

Hall Co. v. Hall \[Va.\] 46 S. E. 239. Managers and soliectors of packing houses to

transact all their business of selling in the

state may bind their principals by statements while engaged in making a compl

nation to control prices, so that such statements may be shown in quo warrant pro

proceedings for violation of their corporate privi

ieges \[Rev. St. 1899, $ 3956, $ 3966\]. State

v. Armour Packing Co., 173 Mo. 256, 73 S. V. 646. Declarations of an attorney's son,

ployed as a clerk in his office in actual charge

of collection of an account, and who drew

attachment papers afterward filed with the

attorney's approval, are admissible against

the client in a suit for wrongful attachment

Lord, Owen de Co. v. Wood, 120 Iowa, 303, 94

N. W. 842. In an action on a contractor balance on right to manafecture machinery,

evidence of a statement of an employee of

defendant in charge of the machines that

they worked nicely and were satisfactory is

admissible as made by an agent within the

scope of his authority. Stechner Lithographic

Co. v. Inman, 175 N. Y. 124, 67 N. E. 213. Report by agent on condition of work

formed by principal under a contract is ad

of the form of the form machine company, whose authority is not in writing, is a competent witness as to what authority he has.\[75\]. Where evidence was offered in an action against a principal on a contract made by an agent, to show that the principal's officers knew or should have known of the agent's acts, the defendant could prove the agent's actual authority and its ignorance of the contract.\[76\] As to the admissibility,\[76\] sufficiency,\[76\] or effect\[80\] of certain evidence in particular cases, see the notes.

(SS 2) _B. Apparent authority and unauthorized or wrongful acts of agent; torts.\[81\]_--\_Acts of an agent within the apparent scope of his authority are binding on the principal,\[82\] and limitations of the agent's authority not brought to the

thority is not conclusive on the question & Myers Co., SS 8. N. Y. S. 493. Authority whether certain acts operate as " a waiver" to

a defense by the principal. Getchell & M. by the principal and to release the lien. Lumber & Mfg. Co. v. Peterson \[Iowa\] 100

N. W., SS50.

32 N. W., SS55. Sufficient to show power to

75. Reeves & Co. v. Bruening \[N. D.\] 100

N. W. 241.

76. This may include evidence showing

that the superintendent gave no information regarding modification of the contract

credit. Hackett v. Van Frank \[Mo. App.\] 79

alleged while dealing with his principal.

S. W. 1013. Sufficient to show authority of

Parr v. Northern Electrical Mfg. Co., 117

Vis. 278, 93 N. W. 1099.

77. A statement of account rendered by

segents after discharge is admissible to prove

their authority to make a settlement for the

bination Gold Min. Co. v. Princess Allee

principal with a third person. Hill Brox. v. Bank of Seneca, 100 Mo. App. 230, 73 S. W.

ficient to show that a brother of one injured

507. On the Issue whether an agent to buy

in a railroad collision had "full charge" of

and sell beer could buy whisky on credit, evi-

his claim and was not limited merely to a

defence of a sale of beer by him is inadmissible

hoke. Hackett v. Van Frank \[Mo. App.\] 79

Powell \[Tex. Civ. App.\] 78 S. W. 997.

S. W. 1013. A note endorsed by a corpora-

79. Evidence did not show authority of

tion by its secretary is not admissible in evi-

agent to contract to furnish water for irreliance in an action against the corporation

ation. Anderson v. Adams. 43 Or. 621, 74

without proof of the secretary's authority.

P. 215. Evidence insufficient to show author-

Karsch v. Pottier & S. Mfg. & Imp. Co., SS 1

ity at agent sent to get mortgaged goods, to

App. Dlv. 230, 81 N. Y. S. 782. A cablegram

from one who gave a power of attorney to

Nat. Bank v. Wright \[Mo. App.\] 78 S. W.

the attorney in fact is admissible to ex-

86. Insuffent to show that machine shop

plain the written power where it tended only

to define the duties of the attorney and not

to change the written power. Mur v. West-

contract liability. Par v. Northern Electri-

cott \[Vwash.\] 75 P. 1107. Where insured contends in an action on a policy that the com-

80. The fact that one is a treasurer of a

pany's agents waived a requirement therein,

corporation does not give him authority to

evidence by them that they had no other

authority than that given in their commissions

consons was admissible. Robinson v. Aetna

Cr., SS 44 App. Div. 83, 82 N. Y. S. 765. That

Fire Ins. Co., 135 Ala. 650, 34 So. 18. The

act of showing a letter containing false rep-

its authorized agent is prima facie evidence

resentations as to reality to be sold to the

that the bank executed it. First Nat. Bank

v. Wright \[Mo. App.\] 78 S. W. 686. A letter

for that purpose, is binding on the vendor

to a real estate agent indicating receipt of

and the letter is admissible in evidence on

the issue of fraud. Ettlinger v. Weil, 87 N. Y. S. 1049. Where it appears that an agent

has a written commission, a blank commits-

sion, identified by the agent as "like" the

commission held by her, is incompetent evi-

demce on the question of her authority. Getchell & M. L. & Mfg. Co. v. Peterson \[Iowa\]

100 N. W. 850.

78. Authority of son signing father's name

to guaranty. Peterson v. Wolf, 1 Nab. Unfort

242, 96 N. W. 332. Authority of agent to re-

quest a bid by a third person at an execution sale for his principal. Cassidy v. Taylor

Brew. & Maid Co., 78 App. Div. 242, 78 N. Y. S. 595. To show not only apparent but

actual authority to receive Insurance premiums. Globe & R. Fire Ins. Co. v.

knowledge of third persons do not affect them," though binding as between principal and agent." The rule extends to a subagent, -properly employed, though paid by the agent." But if such limitations are known to the third party, the principal is not bound beyond the authority actually conferred," and persons dealing with agents of limited powers must generally inquire as to the extent of a person.

facts putting it on inquiry. Indian River \[\] ments without the tenant's consent, and State Bank v. Hartford Fire Ins. Co. \[Fla.\] ther acts were within their apparent au-35 So. 228. Waiver of a crop Ilean within the thortry, the landford was liable. Wusthoff apparent authority of the landford's agent will bind the latter, though without consid-an agent acted contrary to his instructions creation. Wimp v. Early \[Mo. App.\] 78 S. W. \[\] in agreeing that goods proving unsatisfac-348. The master of a vessel was justified in relying on representations of a dock own-rial where he had apparent authority to er's agent as to the berth at a whart, though mak the agreement. Eastern Mfg. Co. v. his vessel was injured on a rock by reason thereof, where the owner had no other representative on the adctioner's intentions to officers are not admissible as against one dealing with them within their apparent authority. Garfield & Proctor Coal Co. v. Rockland-Rockport Lime Co., 184 Mass. 60, 67 N. E. 863. A contract for shipment of freight made by a traveling freight agent with general authority to solicit freight business and special authority to contract for shipment on special conditions as to movement of trains, without disclosing the limitations on his authority. Rosenbaum v. on his authority will bind the carrier as within the apparent authority of the agent. Baker v. Chicago G. W. R. Co. \[Minn.\] 97 N. W. 650. A judgment creditor is bound by payment to his agent if the agent had actual or apparent authority to receive it. Osborne & Co. v. Gatewood \[Tex. Civ. App.\] 74 S. W. \[\] 72. Attorney having been given authority to revoke an offer, it was immaterial wheth- or that authority was given directly by the principal or by another for him. Ratterman v. Campbell \[Ky.\] 80 S. W. 1155.

**88.** Fidelity Mint F. Ins. Co. v. Lowe \[Neb.\] 98 N. W. 743; Day & Free Lumber Co. v. Blkby \[Neb.\] 93 N. W. 88; Getchell & M. Lumber & Mfg Co. v. Peterson \[Iowa\] 100 contract restricting the powers of local N. W. 850; Dreyrus &. Goss, 87 Kam. 57, 72 P. 537; Chaffe v. Baratarin Camino Co. \[La.\] 36 So. 943. Apparent authority of trainmas-ter to issue an order to conductor of freight train to carry a physician where neither conductor nor physician knew or had reasonable cause to believe that such order was issued without authority of the super-intendent. Dysart v. Missouri, K. & T. R. Co. 112 F. 228. Declarations by the principal to his agent, not communicated to a third party, are not binding on such third party. Gough v. Loomis \[Iowa\] 93 N. W. 295. One dealing with an officer of a corporation is not bound to know the limits of the officer's authority as to a matter where the corporation has power to act. Groeltz v. Armstrong \[Iowa\] 99 N. W. 129. Where a bookkeeper had authority to induce certain checks in blank parsible by a bank and coming monthly to his employer, in order that they might be deposited to the latter's credit, a bank paying such checks without knowledge of the limitation is not Iiable for the amount of a check negotiated to others by the bookkeeper after Indering it in blank, the fact that it contained the additional informers of such third persons not amounting to a fact putting the bank on inquiry. Vedge Mines Co. v. Denver Nat. Bank \[Colo. App.\] 73 P. 873. Where a tenant had no notice that contractors had exceeded their authority in making improve- of their authority." Persons dealing with agents are warranted in deducing the scope of the agent's apparent authority from the business he is permitted to conduct," or the manner in which he is permitted to conduct it," or from the nature of the agency." The possession of the evidences of indebtedness may invest one with apparent authority to receive payment." Possession of property may" or may not" confer apparent authority according to circumstances.

_Evidence and questions of fact._"-Apparent authority may be shown by showing a custom," or other similar acts," but proof of general reputation is inadmissible." Apparent authority is usually a question of fact," if there is any

87. Brittain v. Westhall \[N. C.\] 47 B. E. \[N. W. 819. An agent with authority to sell 615. One dealing with an agent is bound \[in a certain locality has presumed authority that his permit to having as to the agents's authors\] to sell according to local customs, as to performity. Sexarith v. Siegel-Cooper Co., 88

sons ignorant of limitations on his authority. N. Y. S. 925. Those dealing with a bank \[Malloy Commission Co. v. Elwood, 120 Iowa, cashier who obligated the bank as surved on 632, 96 N. W. 176. A sales agent has a repelure undertaking are required to ascertain his authority to act, it not being with-in his apparent authority. Sturdevant Bros.

for credit, and it is immaterial whether the & Co. v. Farmers' & Merchenant' Bank \[Neb.\]

% N. W. 819. A special power must be strict-ly pursued so that one dealing with such \[538. If a conditional sale of goods to a special agent risks may results from an authorized acts. MacDonald v. O'Neill, 21

only, the etrailer has apparent authority to p. Super. Ct. 354.

88. Wimp v. Early \[Mo. App.\] 78 S. W. 343. Apparent authority to indorse checks. National Park Bank v. American Exch. Nat. 255 Ky. L. R. 258, 75 S. W. 221. Bank, 40 Misc. 672, 8 N. Y. S. 243. Ocstin-ble or apparent authority to act as agent may \[Merge's attorney. O'Longhlin v. Billy, be conferred if the party to be charged as 88 N. Y. S. 567. The execution and delivery principal affirmatory or intentionally, or by lack of ordinary care, causes or allows third persons to trust and act upon such apparent agency. Blankle Tea & Coffee Co. v. Trade Exhibit Co. \[Neb.\] 98 N. W. 714. Recognition by the principal of acts of the agent similar to those in controversy. Heid, that agent had apparent authority to receive payment without item on a judgment. Osborne & Co. v. Gate-wood \[Tex. Civ. App.\] 74 B. W. 72. That an undisclosed principal of a loan agent, who was directed to make the loan, taking notes, coupons and mortgage in his own name, alowed the agent to collect interest, tends strongly to show his authority to receive and receipt for payment of the note and to satisfy the mortgage. Cheshire Provident

Inst. v. Vandergrift, 1 Neb. Unoff. 339, 96

N. Y. 615.

89. An agent placed in entire charge of a lumber yard had power to endorse checks \[Mars. No. W. 884.

given in payment for lumber. Morris v. Hof-ferberth, 81 App. Div. 512, 81 N. Y. S. 403.

A sales agent carrying samples has apparent authority to warrant that goods sold will conform to the samples (Dreyfus v. Goss, 67 Kan. 57, 72 P. 537); but not to collect pay.

ment for goods (Id.). Evidence as to whether the scope of the agency was suff-clent to give apparent authority to wavge a crop lien for the principal should be admit-ted where the powers of the agent did not necessarily go beyond leasting of the land.

Wimp v. Early \[Mo. App.\] 78 S. W. 343.

90. An agent of a purchaser of land has apparent authority to state the Identity and

he made other similar contracts which the character of the purchaser. Thompson v.

Barnry, 134 Mass. 429, 68 N. E. 674. The cash-ler of a banking corporation has no apparent authority to obligate the bank as surved on 69. Testimony that one was known gen-co. v. Farmers' & Merchenant' Bank \[Neb.\] 95

S Cur. Law-6 evidence of agency." Knowledge of the agent's authority by one dealing with him is usually a question for the jury.1

_Unauthorized and tortious acts._"-Acts of an agent without the scope of his authority will not bind his principal unless ratified by him;" especially wrongful acts done deliberately to expose the principal to liability," or for the agent's own benefit," and where the third person participates in the fraud," or the act

financial agent of the payee of a note is irrelevant and delivering the ded before acceptance of relevant on the issue of his authority to title and deposit of price, the grantee know-collect the note. Union Trust Co. v. Meeting that deed was executed in blank. Lund Keon \[Conn.\] 67 A. 109.

98. Union Trust Co. v. McKeon \[Conn.\] 67

01. Identity of agent and his author- \[v. Haddell\] 68 N. Y. S. 385.

01. Whether one receiving payments on a note was the apparent agent of the payee. Union Trust Co. v. McKeon \[Conn.\] 67 A. 109. The question whether an examining physician for a railroad relief department had authority to employ another physician to treat an injured employee is a question for the jury in an action by the employe for negligent treatment. Haggerty v. St. Louis, K. & N. W. R. Co., 100 Mo. App. 424, 74 S. v. 456.

01. The issue of ostensible agency cannot be submitted to the jury without evidence of agency. Wendel v. Mallory Commission Co. \[Iowa\] 58 N. W. 612.

01. Held to be for jury whether transaction whereby a trader took planos on cred- it from an agent was with knowledge and fraudulent. Kops Bros. Co. v. Smith & Co. \[Mich.\] 100 N. W. 169.

01. See 1 Curr. L. 51.

01. Heath v. New Bedford Safe Deposit & Trust Co., 184 Mass. 481, 69 N. E. 215. Alteration of a contract of sale made by a traveling salesman before transmission to the principal is the act of a stranger which will not invalidate it as between the parties. Equitable Mfg. Co. v. Allen \[Vt.\] 65 A. 87. A clerk who makes contracts for his employer as an agent without authority with one having knowledge of his employment cannot bind his principal by acceptance of the contract for his principal in the course of his clerical duties. Bartlett v. Bartlett & Son Co., 116 Wits. 460, 93 N. W. 473. A promise of an agent to repayent where he had rented the premises for an illegal purpose without authority will not bind his principal unless ratified by him;" especially wrongful acts done deliberately to expose the principal to liability;" or for the agent's own benefit," and where the third person participates in the fraud," or the act

financial agent of the payee of a note is irrelevant and delivering the ded before acceptance of relevant on the issue of his authority to title and deposit of price, the grantee know-collect the note. Union Trust Co. v. Meeting that deed was executed in blank. Lund v. Thackery \[S. D.\] 59 N. W. 856. The promp- \[se of a traveling agent to pay commissions on sales to third persons assisting therein will not bind his corporate principal. Jones V. Kelen, 40 Misc. 221, 81 N. Y. S. 648. Where an agent to rent land contracted for its sale without authority, and, after the purchaser entered and made improvements without the owner's knowledge, the latter repuditated the contract, he was not liable for the improvements. Topiff v. Shadwell \[Kan.\] 74 P. 1120.

Payment of part of purchase money for land to an agent not authorized to receive it and taking possession after notice that the owner had sold to another will not affect a sale. Chandler v. Franklin, 65 S. C. 544, 44 S. E.

70. Taking of clothing by a fire insurance agent in part payment of a premium was a fraud on the company and it was not bound. Volv. Firemen's Ins. Co., 133 N. C. 179, 45 S. E. 547. But a deed executed by one purporting to be attorney in fact but without authority constitutes color of title. Street v. Collifer, 118 Ga. 470, 45 S. E. 294. An unauthorized option given on reality will not bind the owner, without ratification. Tribbs v. Zirkle \[Vt. Va.\] 46 S. E. 701. Delivery of policy to insurance agent for cancellation under unauthorized terms is cancellation with- \[v. Va.\] 46 S. E. 181. A principal may recover from the buyer property sold by an agent who without authority received payment by cancellation of his own debt owed to the buyer.

3 Cur. Law. AGENCY SS 2C.

is for an illegal purpose." But fraud, misrepresentation or concealment by the agent may be imputed to the principal," so as to affect his rights" or liability," and the principal may be held for his agent's default.\[11\] The principal is liable for an agent's fraud in which he participates.\[12\] A commercial agency is responsible in libel for acts of its agents in the course of its business.\[13\] Negligence of a compulsory pilot cannot be imputed to a ship owner, nor a charterer, where the pilot is his agent.\[14\]

(SS 2) \_C. Particular kinds of agencies.\[18\]--\_The powers of a general agent are to be determined by the scope of his agency,\[16\] while a special agent has only such power as is expressly conferred,\[17\] or necessarily implied from authority expressly given.\[18\] The general principles are further illustrated by the cases grouped in the notes.\[19\]

Striving Woolen Mills Co. \[Iowa\] 94 N. W. \[Wash\] 75 P. 1107. An agent having general supervision of a farm and under directions to den in executing a mortgage on corporate property, in which the mortgage participant-dipal fliable by cutting a drain through a highway so that crops of another land owner v. McIntire, 183 Mass. 867, 67 N. E. 320.

7. Payment of rent on an agent of the owner of premises for an illegal purpose arises no right of recovery against the owner for failure to make a lease. Stover v. Flow- or, 120 Iowa, 514, 94 N. W. 1100.

1. Fraudulent acts of a corporate president in executing a mortgage on corporate property, in which the mortgage participant-dipal fliable by cutting a drain through a highway so that crops of another land owner v. McIntire, 183 Mass. 867, 67 N. E. 320.

1. Payment of rent on an agent of the owner of premises for an illegal purpose arises no right of recovery against the owner for failure to make a lease. Stover v. Flow- or, 120 Iowa, 514, 94 N. W. 1100.

1. Fraud of an insurance agent in writing false answers instead of the true ones given by an applicant for insurance will be imputed to the company and it will be stopped by his authority was not affected by a contract with nets. Fidelity Mut. F. Ins. Co., v. Lowe \[Neb.\] 93 N. W. 749; Otte v. Hartford Life Ins. Co., 88 Minn. 423, 93 N. W. 608. One induding an-, other to purchase from his agent is liable for the agent's fraud, though not authorizing it.

Phings v. Mallory Commission Co. \[Mo. App.\]

78 S. W. 1097.

9. Hyatt v. Zion \[Ya.\] 48 S. E. 1.

1. Vendor could resend when the agent of the purchaser represented the latter to be a man of means, with small family, whom in fact it was a Catholic conformation. Thompson v. Barry, 184 Mass. 429, 68 N. E. 674.

1. Where a mortgage delivered a bond and mortgage and funds to a broker to pay off a prior mortgage, he was liable to the new holder of the mortgage for the entire loan on appropriation by the broker to his own use. Henken v. Schwicker, 174 N. Y. 288, 66 N. E. 971.

1. Evidence showed participation of principals in frauds by agent in making a sale of patents. Felt v. Bell, 205 11, 213, 68 N. E. 794.

1. Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668.

1. Crisp v. United States & A. S. S. Co., 144. Crisp v. United States & A. S. S. Co., 124 F. 748.

1. See 1 Curr. L. 52.

1. Payment to a local agent of a foreign loan association is payment to it. Hoskins v. Rochester Sav. & Loan Ass'n \[Mich.\] 95 N. W. 566. Where a general agent was acting within the scope of his authority, his consent to execution of a bond for his principal by a subordinate agent must be deemed to have been made with the principal's knowledge and consent. Paefine Nat. Bank v. Aetna Indenntry Co., 33 Wash. 428, 74 P. 50. Authority by power of attorney to take charge of bank property and do all things necessary to the business gives power to dispose of bank furniture for benefit of creditors wheith:
   (SS 2) _D. Ratification by principal.20_--One may ratify a previously unauthorized act, done in his behalf, which he himself might have and may still

thority to employ an agent necessarily Im-

leases, give possession, and collect the first

plies authority to agree with him as to com-

month's rent, has authority to make reprehensation. Opinion of the Justices \[N. H.\] 54

sentation as to the fireproof condition of the

A. 950. A brother given full authority to set-

bulding so as to bind the owner, and such

tle a claim for personal injuries against a

representations, made in good faith, bound

railroad had authority to employ an attorney

his principal, though in fact false. Matteson

to collect the claim for a contingent fee of

v. Rice, 116 Wis. 328, 92 N. W. 1109.

half the amount of recovery, assigning half

Fower to buy or sell personality: In the

the cause of action as security. Tabet v.

absence of authority conferred, or a valid

Powell \[Tex. Civ. App.\] 78 S. W. 997. One in

usage, an agent cannot sell on credit. Kops

charge of goods to tender them to the buyer

Bros. Co. v. Stephen B. Smith & Co. \[Mich.\]

for inspection had presumptive authority to

100 N. W. 169. An instruction to sell goods

bind the seller by a refusal to do so in

store of contrary evidence. Pittsburgh Plate

informed a buyer that he might pay on actual

Glass Co. v. Kerlin Bros, Co. \[C. C. A.\] 122 F.

delivery. Bristol v. Monte, 79 App. DIV. 67,

414.

80 N. Y. S. 52. That a selling agent could

not procure an order without taking goods

vendor of reality cannot accept other than

In exchange will not authorize him to sell

cash payment of part of the price contrary to

where he was to sell on cash or credit and

the contract. Wilkin V. Voss, 120 Iowa, 500,

94 N. W. 1123. The word "his" in a power of

thirty only to purchase, pay for and ship

convenage of any and all lands which may

come Into "his" possession by reason of addi-

tional homeset entry refers to the husband.

the absence of custom or proof of authority,

Finnegan V. Brown, 90 Minn. 396, 97 N. W.

144. An attorney In fact to sell, convey and

sold. Ellner v. Priestley, 39 Misc. 535, 80 N.

mortrage may execute a trust deed of the

principal's individual property to secure a

debt of a firm of which he is a member. Muth

payment and arrange for unlawful interest

v. Goddard, 28 Mon. 237, 72 F. 621.

Instructions by an owner of reality to his agent

to sell at a certain price, "It being understood

that this year's rents will come to us," will

not allow a sale at such price without reser-

roy Grocery Co. v. Potter \[Ala.\] 86 S0, 12.

vation of rent. Philadelphia Morris. & Trust

Co. v. Hardesty \[Kan.\] 76 F. 1116. Paroul

lumber in payment without special authority.

thirty to find a purchaser of real estate does

3. A. Fay & Eagan Co. v. Causey, 131 N. C.

not give authority to sell or to receive payment

sent. Smith v. Browne, 132 N. C. 365, 43 S.

by an authorized express warranty of goods

E. 916. Letter from owner to agent asking

sold, made by an agent, he is not bound by

further information as to a prospective sale

a warranty as to other qualities expressly

and when deed should be made out, held not

rediting that it is made on the agent's ind-

to be evidence of authority to sell. Smith v.

Brownne, 132 N. C. 365, 43 S. E. 916. A written

power to sell land does not include the power

to give an option unless so expressed. Tibbs

v. Zirkle \[Vv.\] 46 S. E. 701. A power to

sell property does not confer the power to

bind the principal by a contract of sale in

writing. Giving agents signed memorandum.

with description of land and a price does not

econfer such power. Donnan v. Adams, 30

checks, signed in his own name, give his

Tex. Civ. App.\] 615, 71 S. W. 580. A power of

attorney construed as not conferring the

agent has opened a bank account in his name.

power to sell land. Bean v. Bennett \[Tex. Civ. App.\] 80 S. W. 662. A sale of land by a

donee of a power of attorney for an unauthorized purpose does not pass title. Hunter

or v. Eastham \[Tex. Civ. App.\] 81 S. W. 336.

Power to lease: Power to lease any of

principal's property wherever situated,

includes power to extend a lease. Pittsburg

Mfg. Co. v. Fidelity Title & Trust Co., 207

Pa. 223, 56 A. 436. Authority to lease premises and collect rents does not imply authority lawfully do, or might and may still lawfully delegate to another." Ratification is usually established by implication from the conduct or acts of the party to bind the principal by a tender of the ma- \[S. W. 178. In absence of other evidence, the online to the buyer on the latter's rescission president and secretary of a corporation are of the sale. Parsons Band Cutter & Self presumed to have had authority to execute a Feeder Co. v. Mallinger, 122 Iowa, 703, 98 N. \[J. E. 1328, 72 S. W. 758.\]. When the contract of sale so etplu- \[J. E. 1328, 72 S. W. 758.\]. Manager lates, the sales agent has no power to mate- \[J. E. 1328, 72 S. W. 758.\]. Manager rially change the terms of the contract within- \[J. E. 1328, 72 S. W. 758.\]. Out ratification by the principal. Larson v. \[J. E. 1328, 72 S. W. 758.\]. Miningapolis Thes Machine Mach. Co. \[Minn.\] 98 N. W. 623. Promoting contracts for election of buildings is within the scope of the an- \[J. E. 1328, 72 S. W. 758.\]. A corporate of- \[J. E. 1328, 72 S. W. 758.\]. A second agent with authority to draw for timber bought and received cannot make the principal? liable to the tranefree of a draft drawn for timber which had no exist- \[J. E. 1328, 72 S. W. 758.\].

**Authority to receive payments or collected money:** Authority to receive payment does not authorize its receipt before maturity. City Nat. Bank v. Goodloe-McGelland Comm. \[J. E. 1328, 72 S. W. 758.\]. A general power as managing mission Co., 93 Mo. App. 123. Authority to receive interest does not imply authority to receive principal. Thompson v. Shehler, 1 Nat. Bank v. Kircley, 43 Fia. 376, 32 So. 881.

**NB. Unfort.** 550, 95 N. W. 854. A hand agent by a veto authority to corporate cannot accept part payment by check unless his principal has acquessed therein. Orns- \[J. E. 1328, 72 S. W. 724.\]. Authority to collect rents for a landior does not imply authority to make rental contracts. Dicekman v. Weirlich, 24 Ky. L. R. 2340, 73 S. \[J. E. 1328, 72 S. W. 7111.\]. An agent authorized to take a certain amount as part payment on land cannot accept Mexican money. Edwards v. Davidson \[Tex. Civ. App.\] 79 S. W. 48. Authority to collect monews for a principal gives no authority to relinquish rights or recognize address claims in property mortgaged to the principal without express direction. Johnson \[J. E. 1328, 72 S. W. 758.\].

**Pover to make or obtain loans:** Proof of a corporation president cannot bind the cor-authority to make a loan is not evidence of \[J. E. 1328, 72 S. W. 758.\]. A corporation to have been made authority to collect either principal or inter- \[J. E. 1328, 72 S. W. 758.\]. Evidence held not to show that a broker was the agent of a lender in receiving payments on the loan. Ornteri e v. Ivory, 203 S. W. 758.\].

**NB. Unfort.** 550, 95 N. W. 758.\]. A second agent is a lender in receiving payments on the loan. Ornteri e v. Ivory, 203 S. W. 758.\]. A third agent is a lender in receiving payments on the loan. Ornteri e v. Ivory, 203 S. W. 758.

in whose behalf the agency is assumed, inconsistent with an inteaction not to ratify.\[22\] It may be by mere acquiescence or failure to act,\[23\] for a considerable length of time,\[24\] or by positive acts, such as the adoption,\[25\] acceptance,\[26\] or

94 N. W. 945. One sent by a seller of goods to repair defects therein has no authority to the manner of payment. Allen v. Corn Exch. Vary conditions of the sale as to acceptance. Bank, 87 App. Div. 335, 84 N. Y. S. 1001. Evil-Massilon Engine & Thresher Co. v. Schirmer

dence held sufficient to show a knowledge \[Iowa1 93 N. W. 599. An authorization and request by mortgages to hanl mortgaged and ratification of the act of receiving pay-goods to a warehouse will not give authority

ment. Platt v. Schmitt, 117 WIs. 489, 94 N. W. 345.

sob, more are the mortgages bound by no-te to one so authorized. Zorn v. Livesely

with knowledge of an illegal contract made \[Or.\] 15 P. 105. Authority to contract for a supply of steam from a boiler does not imply

is insufficient regardless of the application authority to buy and pay for coal to heat the

of the general rule of ratification to such boiler. Union Hosiery Co. v. Hodgson \[N.\] acts of corporate agents. Oliver v. Rahway

H.1 57 A. 384. An inspector appointed by a

Ice Co., 64 N. J. Eq. 596, 54 A. 460. Silence

bruchaser of lumber to tally and inspect it

has no authority in his special agency to

by an agent were seized in his principal's

wavive inspection or delegrate his authority to

hands for the latter's debts, amounts to

another. Campbellvillville Lumber Co. v. E. R.

rational of the agent's unauthorized pur

Spotswood & Son, 24 Ky. L. R. 243, 74 S. W.

chase. Owens Pottery Co. v. Turnbull Co.

235. Letters from principal construed as not

001. Using agent authority to agree to furnish

ment as to settlement of a debt due a bank,

water for irrigation purposes. Anderson v.

Andams, 43 Or. 621, 74 P. 115. A letter of at-

not fulfilled by the bank, acquiescence of

torney authorities execution of bonds for

"performance of contacts other than insur-

by the cashter for two years was a ratifica-

ance policies" authorizes execution of a bond

tion of the latter's acts. Pease v. Francis

for performance of a contract to rerapy money

\[R. L.\] 55 A. 686. Acouseence of an in-

advanced to a building contractor. Pacific

Tart In a transaction made for him, with

Nat. Bank v. Atena Indemnity Co., 33 Wash.

488, 74 P. 580.

coming of age was a ratification. Manson

20. See 1 Curr. L. 56.

01. Commercial creditors held to have rat-

ited the contract made by a purchaser with

the debtor requiring him to deposit money

and without objection, amounts to ratifica-

sufficient to meet their claims. Alexander

v. Wade \[Mo. App.\] 80 S. W. 19. If the un-

authorized act involved a crime, or was a

and receiving payment thereon. Day v. Mil-

transaction opposed to public policy, it can-

not be ratified. Daughters of American

endiscposed principal for three years with

Revolution v. Schenley, 204 Pa. 57, 54 A.

knowledge of an act of his agent tends to

366. An execurrix may ratify the contract

show full authority to act. Cheshire Provi-

of one assuming to act as her agent for

dent Inst. v. Vandergrift \[Neb.\] 95 N. W. 615.

commissions to another in the purchase of

Slience of a principal for over two years

lands. Dyer v. Winston \[Tex. Civ. App.\]

after his agent orally reselended a contract

77 S. W. 227.

22. Mortgage held to have ratified agency

agents' act. Henderson v. Beatty \[Towal\] 99

to receive payments on mortgage debt. Bal-

lard v. Nye, 128 Cal. 588, 72 P. 156. The

payees on drafts, received proceeds of the

act of the lesser in accepting a tenant was

sale on Indersements of such drafts made

not inconsistent with an intention not to

ratify the act of a subagent, securing the

until several years after payment and after

ment. McGowan v. Treacy, 84 N. Y. S. 497.

23. Directors of a corporation by talling

have granted original authority to make the

to take any action regarding a sale of its

indorsorsent. Allen v. Corn Exch. Bank, 87

property by the secretary, who had authority to sell, must be presumed to have ratified

25. Plaintiff secured a purchaser, on re-

ded his acts. Alaska & C. Commercial Co. v. Solner \[C. C. A.\] 123 F. 855. Failure of

out the contract made with the purchaser

a principal, on learning the facts of a

## 8 Cur. Law. AGENCY SS 2D.

execution of a contract made through the alleged agent, \[37\] or the acceptance of benefits resulting from the unauthorized act. \[28\] The presumption of ratification may be negatived by express declarations of the principal. \[29\] There may be a ratification regardless of former limitations of the agent's authority. \[30\] The principal must have full knowledge of all material facts at the time of ratification, \[31\] but if the situation is such as to put him upon inquiry, he will be pre-the order for the new machine, with knowl-edg. Schull v. New Birdsall Co. (S. D.) SS5 v. Alaska Packing Co., 48 Or. 429, 73 P. 337. N. W. 276.

**27.** Execution by the principal of a com-tract made by the agent in excess of his authority amounts to ratification. Short v. Stephens, 92 Mo. App. 151. Subsequent execution by a wife of a contract for exchange of reality with full knowledge of arrange-ments by her husband with a broker for the exchange was a ratification of the broker's net in securing the contract of exchange. Charles v. Cook, 88 App. Div. 81, 84 N. Y. S. 867.

**28.** Where a lease for more than a year is made by an agent without authority in writing as required by statute, receipt of Denninger v. Pitsfield Shoe Co., 204 Ill. 145, rents by the owner with knowledge of the facts will give original validity to the trans-action. Kriz v. Peege, 119 Wis. 105, 95 N. V. 108. Acceptance of results with knowl-edg. First Nat. Bank v. Bower \[Neb.\] 98 N. W. N. W. N. W. N. W. N. W. N. W. N. N. W. N. N. W. N. N. N. Y. S. 152. Acceptance of bi-cycle received for repairs by agent, and to original authority. Hartford & N. Y. making repairs under the contract made by the agent will render the principal liable for its breach. Rollins v. Sidney B. Bowr.

a contract of sale of land, where principal man Cycle Co., 84 App. Div. 287, 82 N. Y. S. had requested but had not received information concerning same. Henry v. Lane \[C.\]

781. Acceptance of payments on drafts will prevent one of two payees from questioning C. A. 128 F. 243. Settlement by agent for the authority of the other to indorse them for payment. Allen v. Corn Exch. Bank, 87 fed by administrative after her discharge App. Div. 335, 84 N. Y. S. 1001. Though a collection agency had no authority to compromise a claim in its hands. the act of the creditor five years later, on learning of the settlement. In receiving the proceeds of the settlement from the agency, ratified the settlement. Cobb v. Edson, 84 N. Y. S. 916.

aceptance of benefits by a partnership of acts of one who purports to act as its agent in drawing a note is a ratification. Rosen-tal v. Hasberg, 84 N. Y. S. 290. Acceptance of benefits of a transaction brought about by an attorney and taking part in the final condition with the intention without knowledge of the mortgage.

aceptance of benefits under settlement by attorney. Collins v. Fidelity Trust Co., 333 Vash. 136, 73 P. 1121. Where a corporation received and retained the proceeds of all checks drawn and deposited by its agent (fornis \[Civ. Code, 8 2310\]. Lambert v.) with knowledge of the circumstances, it was liable therefor, though he may have exceeded his authority. Stotts City Bank v.

aceptance of benefits under settlement by attorney. Collins v. Fidelity Trust Co., 333 Vash. 136, 73 P. 1121. Where a corporation received and retained the proceeds of all checks drawn and deposited by its agent (fornis \[Civ.

AGENCY SS 2D. 3 Cur. Law.

sunned to have knowledge of facts which a reasonably diligent investigation would have disclosed.\[42\] It is immaterial that he was ignorant of such facts at the time of the unauthorized act.\[82\] Ratification cannot be partial\[14\] or conditional.\[83\] Acceptance of benefits of a contract of the agent must be subject to the agent's representations inducing the contract.\[84\] The acts must have been performed as agent,\[87\] and there can be no ratification without some evidence that there was an agency.\[88\] Ratification must come from the principal and not the unauthorized agent.\[89\] After ratification by the principal, the agent's authority cannot be questioned by a third party.\[40\] Subsequent ratification of an unauthorized act is equivalent to precedent authority.\[41\] Ratification is usually a question of fact.\[42\]

(SS 2) _B. Undisclosed agency.\[43\]_--An undisclosed principal may avail himself of a contract made by his agent,\[44\] but must do so subject to existing equities between the apparent principals.\[45\] He is liable, when disclosed, on simple contracts,\[46\] but not on negotiable instruments,\[47\] nor contracts under seal,\[48\]

- 22 Ballard v. Nye, 138 Cal. 688, 72 P. 166. \[con Trust Co. v. Souther, 183 Mass. 413, 67\]
- 33 Ratification of the purchase of lands by an attorney in fact under authority of a holders of an unauthorized transfer of propo-pover duty signed and acknowledged will attend fraud will bind the corporate. Met-the terms of the contract when made. Rank
- 34 A principal cannot partially ratify his agent's unauthorized act excluding burdens as to himself; acceptance of benefits must
- 35 A. Raffication of the purchase of lands by an attorney in fact under authority of a holders of an unauthorized transfer of propo-pover duty signed and acknowledged with actual fraud will bind the corporate. Met-the terms of the contract when made. Rank
- 36 A. Raffication of the purchase of lands by an attorney in fact under authority 3 Cur. Law. AGENCY SS 2F.

cept in jurisdictions where the distinction between sealed and unsealed instruments is abolished by statute.49 A bank receiving money of a principal in the name of his agent without notice of the agency may apply it to a past due debt of the agent, on authorization of the latter expressly or impliedly.50 By statute in Mississippi, where a person conducts a business of another without disclosing his principal, all property used or acquired in the business becomes liable for his debts.51 Third persons are bound to the principal of an undisclosed agent for damages resulting from negligence.52

(SS 2) \_F. Notice to agent.58 Notice to an agent in the course of his employment is notice to the principal.54 But knowledge or notice not gained in the

ducting a business in his name. Ernst v. Horrison, 86 N. Y. S. 247. That a purchaser of corporate stock from an agent who acted with the scope of his agency did not know of the agency will not affect the sale in the absence of fraud. Jones v. Western Mfg. Co., 32 Wash. 375, 73 P. 359. An undisclosed principal is liable to a story of his agent for an amount the snety was compelled to

borker to sell corporate property. Hartford Harrison, 86 N. Y. S. 247. That a purchaser of corporate stock from an agent who acted with the president of a corporation v. was ratified by the directors, that such act was unauthorised

absence of fraud. Jones v. Western Mfg. Co., 32 Wash. 375, 73 P. 359. An undisclosed principal is liable to a snety of his agent

inform the other directors, did not prevent constructive notice to them of application

pay as penalty for violation of the bond.

City Trust. Safe-Deposit & Shredv Co. v. Southern, American Brewing Co., 174 N. Y. 486, 67 N. Y. S. 431, 67 N. E. 454. Where the son

E. 62.

of a creditor knew all the circumstances of

47. Ranger v. Thalnann, 84 App. Div. 341, 82 N. Y. S. 846. The rule applies except

lited, and the creditor drew e check pay-

as to banks under certain circumstances.

Lewis v. First Nat. Bank, 1 Neb. Unoff. 177,

ine the papers and deliver the check to the

95 N. W. 356.

48. An owner of land is not bound by a

contract relating thereto by an agent

in-
agent, so that the latter was chargeable

dividually under his own seal. Slanchard

v. Archer, 87 N. Y. S. 665. Lease under seal

III. 60, 68 N. E. 800. Notice of the source

executed by agent in individual name and

of money from funds in hands of a syndian

not purporting to be executed for the principal will not bind him, though the agent

is hia general agent; use and occupation

plot, 119 Iowa, 94, 93 N. W. 75. Regarding

cannot be maintained against him while he

of his agent for him, is occupying the prem-

lee. Lenney v. Finley, 118 Ga. 718, 46 S. E.

593.

001. Laws 1889, p. 88, c. 86. Streetere, Jr.,

Co. v. Jann, 90 Min. 393, 96 N. W. 1128.

50. Implied authority to so apply a

desupply a de-

posit when the depositor has overdrawn his

account. Kimmel v. Bean \[Kan.\] 76 P.

1118.

0001. A policy of insurance on goods was

table for debts \[Rev. Code 1892, & 1341\].

Meridian Land & Industrial Co. v. Ormod

& Co. \[Miss.\] 35 Se. 179.

52. Carrier is liable to employer of com-

mercial traveler for destruction of trunks

containing samples. Talcott v. Wabash R. Co., 29 Mis., 44, 80 N. Y. S. 149.

53. See 1 Curr. L. 58.

01. Camden Safe Deposit & Trust Co. v. Lord \[N. Y. Eq. 1\] 8A. 607, The rule rests

open the conclusive presumption, as to third

persons, that the agent has performed his

duty of informing the principal of all facts

that have come to his knowledge when in

the service of the principal. Modern Wood-

men of America v. Colman \[Neb.\] 94 N. W.

814. Notice to an agent authorized to buy

land, of rights of another therein, is notice

to the principal. Scherchies v. Wieseman

\[Vu.\] 45 S. E. 745; Blair v. Whitaker, 31 Ind.

App. 664, 69 N. E. 182. A corporation is

bound by knowledge of its manager where

be partpated as a director in ratification

of his own acts as manager in employing a

the security of the agent.

\[ course of his employment,\[85\] or gained before creation of the agency,\[86\] or relating to matters outside the scope of the agency,\[97\] or to unauthorized acts,\[88\] cannot be imputed to the principal; nor is there a presumption that the agent has communicated to the principal facts coming to his knowledge as agent, when he has interests in the transaction adverse to those of his principal.\[99\] Fraud practiced on the agent may prevent the imputation of knowledge of facts to the principal.\[99\] Notice cannot be imputed to one for whom the agent has no authority to act.\[61\] The rule does not apply to a merely nominal agent, or one acting in a ministerial capacity only.\[62\] When it is sought to prove notice to a principal by his agent, he need offer only the agent who is alleged to have received the notice and need not prove lack of notice to other agents.\[99\]

(SS 2) _G. Remedies, pleading, procedure and proof.\[64\] Third persons\[85\]_ contracting with the agent of an undisclosed principal may, on discovery of the real principal, elect to pursue either principal or agent,\[99\] but cannot hold both,\[97\] and

ing the contract for construction in order to

Co. \[C. C. A.\] 120 F. 793; Aetna Indemnity sell machinery, is notice to his principal.

Co. v. Schroeder \[N. D.\] 95 N. W. 436.

June & Co. v. Doke \[Tex. Civ. App.\] 80 S.

Knowledge of fraudulent transaction by of-W. 402. An attorney applying for a loan

Heers of a trust company not imputed to the which was obtained from a corporation, and

Corporation. Camden Safe Deposit & Trust

executing the papers for the borrower,

Co. v. Lord \[N. J. Eq. 68 A. 607. Agent

was the agent of both the borrower and the

had adverse interest and motive for concorporation so as to bind the latter by no-

cealing facts. Booker v. Booker, 208 Ill. 629,

theo of facts in an abstract of title prepared

70 N. E. 709.

under his direction. Blackwell v. Britsch-

American Mortgage Co., 65 S. C. 106, 43 S. E.

395. Evidence of notice to an insurance

of facts, which if known to the principal

agent that insured had hernia is admissible

to meet a plea of fraudulent concealment,

though not to show waiver of terms of the

66 N. E. 431.

Policy. Travelers' Ins. Co. v. Thornton, 119

66. Notice to loan broker acting for borrower, receiving notice of secret equity in

120 M. 435.

35. Merrill v. Southwestern Tel. & T. Co.

31 Tex. Civ. App. 614, 73 S. W. 422. An

agency to sell land is not general, so that

1216 Ga. 901, 43 S. E. 275. One to whom cer-

only knowledge gained by the agent in the

coures of his own employment can be imput-

ed to the principal, Kyle v. Goff \[Mo. App.\] 78 S. W. 1047.

56. Kyle v. Goff \[Mo. App.\] 78 S. W. 1047.

Even though knowledge so gained concerns

contracts made by the agent after his employment. Samuelson v. Gaffe Mys. Co., 1

Neb. Unoff. 815, 95 N. W. 809. While knowl-

edge of a bank's impaired condition obtained

by an agent while buying stock will be imputed to his principal so as to start limitations against an action for fraud in the sale,

slimilar knowledge obtained years later,

where the agent residol the stock to third persons, will not be imputed. the transac-

tons being distinct. Day v. Exchange Bank

of Kentucky, 25 Ky. L. R. 1449, 78 S. W.

132.

001. Topliff v. Shadwell \[Kan.\] 74 P. 1120.

As to personal habits of employ under

bond given by principals, Aetna Indemnity

Co. v. Schroeder \[N. D.\] 95 N. W. 436. It

must be the agents' duty to communicate it

to his principal or it must directly relate

to the matter of his agency, Hargadine-

McKittrick Dry Goods Co. v. Krug \[Neb.\]

96 N. W. 286.

58. Knowledge of a director and manager

of a corporation of his own unauthorized

wet in giving a note in the name of the corporation is not notice to the corporation.

Sanford Cattle Co. v. Williams \[Colo. App.\]

71 P. 839.

59. Central Coal & Coke Co. v. Good & 3 Cur. Law. AGENCY SS 2G. 91

an election to pursue one is binding and will bar a subsequent suit against the other. \[88\] But proceeding against the agent is not binding as an election, when the third person had no knowledge of the agency or the name of the principal. \[89\] Fraudulent representations of a purchaser's agent is ground for rescission by the seller of a contract to sell land, \[90\] and the right to rescid is not affected by the fact that the seller paid part of the agent's commission. \[11\] Where a principal represented an agent as having authority to make a sale, the vendee may recover from the principal a sum fraudulently exacted by the agent in excess of the principal's price. \[12\] Where an agent, authorized to buy for cash only, buys on credit, and the principal receives and appropriates the goods, he is liable for the price, unless he can show that he furnished the cash to his agent, and had no notice of the agent's violation of his authority. \[13\] A third person performing a contract made by an agent was not estopped from holding the principal liable by delay in presenting his claim, where the principal received his voucher from the agent and gave the latter credit for the amount, though it was in fact not paid. \[91\]

_The principal?_\[75\] may rescid a contract for fraud of the agent and the other party, \[76\] or sue for negligence \[77\] of a third person with whom his agent deals, and may, in his own name, maintain suit for specific performance of a contract made for him by his agent, whether he was disclosed as principal or not. \[78\] Where a factor receives proceeds of goods sent him to sell, his principal may equitably follow the money into bands of any one receiving it with knowledge of its trust character. \[88\] Where a lease of realty for more than a year is executed by the owner's agent without authority in writing, possession by the lessee will render him liable for rent as long as he enjoys the property. \[89\] A principal, though not bound by false statements of an agent, in the course of his employment, will not be permitted to profit by the fraud. \[89\] Though an agent is liable for the difference between the price he obtained for goods and a larger price he might have obtained, the purchaser is not liable therefor where he had no part in securing the appointment of the agent. \[88\]

Cases dealing with pleading, \[88\] procedure, \[88\] evidence \[88\] and proof, \[88\] are grouped in the notes.

agent. Codd Co. v. Parker, 97 Md. 319, 55

A. 623.

**eg.** Where in such case a judgment was

very the trade is ground for rescission of the recovered against the agent, the agency being unknown, an action will lie against the 709.

principal unless he discharges the Judge-

to a warehouse by an agent, receplits being merl \[N. J. Law\] 58 A. 297. A suit against

the agent of an undisclosed principal is not

in which fundorsement, passes title

an election to hold the agent liable so that

judgment therein will release the principal.

Hanger v. Thalmann, 39 Misc. 420, 80 N. Y.

**70.** In this case, the contract disclosed

purekaser. Thompson v. Barry, 181 Mass.

429, 68 N. E. 674.

**72.** That the agent had previously bought

the cattle on his own account was no de-

fense. Phtps v. Mallory Commission Co.

**\[Mo. Appl.\] 78 S. W. 1097.**

**73.** Brittan v. Westhall \[N. C.\] 47 S. E.

**74.** McKeen v. Providence County Sav.

Bank, 24 R. I. 542, 54 A. 49.

75.\*\* See I Curr. L. 60, n. 32-34.

76.\*\* False representations by an agent for

sale of property, as to value of distant property for which he induced his principal to exchange, together with a secret agreement 3. _Bights and liabilities of agent as to third persons._"--An agent acting within his authority and disclosing his principal is not personally liable." An agent who undertakes to bind his principal but fails to do so because of want of

v. Hilli \[Ark.\] 77 S. W. 905. A defense that warde v. Davidson \[Tex. Civ. App.\] 79 S. an agent had apparent authority to act for his principal in a sale and that the principal an attorney must show the attorney's anti-ratified such acts may be made by answeriger v. Pittsburgh Shoe Co., 204 Ill. 145, 68 proceeds from the buyer who had paid the agent and the latter had failed to account. 25 Darden of proving his authority to receive Ky. L. R. 569, 76 S. W. 125. A bill for specific performance of a contract made by complainants' attorney is not liable to de-plaint for show agency or ratification by it was in writing. Fowler v. Fowler, 204 Ill. 82, 68 N. Z. 414. Allegation of an agreement as made by a party will admit proof that it was made by his agent in absence of special circumstances. Hare v. Winterser \[Neb.\] 96 N. W. 179. Plea in suit against principal and agent held to put agency in issue without replication and to require its submission if warranted by the evidence. McCabe v. Farrell \[Tex. Civ. App.\] 77 S. W. 1049. 84. Where both the agency and the making of a contract by the agent are denied, either allegation may be proved first. Rainner v. Potter \[C. C. A.\] 120 F. 651. In an action against both principal and agent on a contract made by the agent, the principal is not astopped to deny the agent's authority by failure to object to admission of the contract in evidence, it being admissible as against the agent. Tabet v. Powell \[Tex. Civ. App.\] 78 S. W. 997. Testimony by the principal, sued on a contract made by an agent, as to fraud of the other party, will not prevent him from urging the defense that the agent acted for the other party without his knowledge or consent. Harper v. Fidler \[Mo. App.\] 78 S. W. 1034. Where an answer in an action on contract urged as a defense that plaintiff elected to hold defendants' agent who made the contract in his own name, and set out facts relied on as showing election, the court may settle the issue on demurrer to the answer. Barrell v. Newby \[C. C. A.\] 127 F. 656. SS. Statements of a representative of a principal to one purchasing goods from the agent, while engaged in securing evidence against the agent who had sold the goods and appropriated the proceeds, are admissible in relpivin against the purchaser by the principal. Baldwin & Co. v. Tucker, 25 Ky. L. R. 222, 75 S. W. 196. Books of agent not kept under direction of the principal are inadmissible against the principal, or against a third person suing the principal on a contract made with him by the agent. McKeen v. Providence County Sav. Bank, 24 R. L. 542, 64 A. 49. SS6. One using a principal on a contract made by an agent has the burden of proving the agency and the authority to make the particular contract. Par v. Northern Electrical Mfg. Co., 117 Via. 278, 93 N. W. 1099. WIFe's agency in action against hus-band. Brown v. Woodward, 75 Conn. 264, 68 A. 112; McBride v. Adams, 84 N. Y. S. 1060. A vendee suing a landowner to recover money paid on land to an unauthorized agent that prove the owner's ratification. Ed-678.

- 3 Cur. Law. AGENCY SS 3.
- 4 authority binds himself," and is liable to the other party for damage resulting from his misrepresentation of authority," not on the contract which he attempts to make, but for breach of implied warranty or in tort." To fix the individual liability of such person, purporting to act as agent, it need not be shown that his express or implied representations were intentionally false," but it must appear that the contract would have been enforceable against the principal, if authorized, and that the other party thereto could perform." The agent is personally liable when he purports to act as principal, the other party having no knowledge of the agency," or when, purporting to act as agent, he does not disclose the name of his principal," or when he makes the contract in his own interest, treating the property, the subject of the contract, as his own." He is personally liable to persons injured by his negligence" or misfeasance, but not ordinarily for mere nonfeasance," nor for negligence of his principal." An agent of a grantor in a trust deed to collect rents, who continued to collect rents after sale of the premises under the trust deed to a third person, was not a trespasser as
- 58. Danforth v. Timmerman, 65 S. C. 259, by third party, real purchaser, was not paid.
- 63 S. E. 678. But does not become Ilabile
- 603. A p:Crabase of property at judicial sale by an undisclosed agent. paying partly in Iowa, 506, 98 N. W. 515. Though the did not misrepresent his authority, since there was an implied warranty of authority. Anderson v. Adams, 43 Or. 621, 74 P. 215. An option on land, not binding as to owners who are principals of the agent giving the same, is nevertheless binding on the latter as to his own land included therein. Tibbs v. Zirklle
- 64 S. E. 701. Dependant fraudulently
- 65 relating a mortrage by use of power of attorney from mortgage, held liable for debt. Persons v. Persons \[N. D.\] 97 N. W. 551. In North Dakota, an agent executing a contract in the name of a principal without authority and without a bona. Idee belief that he has authority, is liable on the contract as principal \[Rev. Codes 1899, 84 438, subd. 21\]. Kennedy v. Stonehouse \[N. D.\] 100 N. W. 258.
- 66 The principle is applicable to an officer of a corporation acting in excess of his authority. Groeltz v. Armstrong \[Iowa\] 99 N. W. 128. The damages receovreable are those which could have been recovered against the principal had the warrant of authority been compiled with, together with expenses of proceedings against the principal \[Rev. Codes 1899, 8 495\]. Kennedy v. Stonehouse \[N. D.\] 100 N. W. 258.
- 67 The principle is applicable to an officer of a corporation acting in excess of his authority. Groeltz v. Armstrong \[Iowa\] 99 N. W. 128. He is liable on a contract sign${}^{\\prime}$ for a supposed principal only on the implied warranty that he had authority to make it. Kent v. Addicks \[C. C. A.\] 128 F. 112. Where it is not alleged in suting agent on a contract in excess of his authority that he falsely represented his authority, the action is in contract for breach of implied warranty of authority and not in tort for deceit. Anderson v. Adams, 43 Or. 621, 74 P. 216.
- 68. The agent of a nonresident owner of rented property, having authority to make repairs, is liable for injuries caused by his negligence in making necessary repairs. Lougli v. John Davis & Co. \[Wash.\]
- 69. Kleid that alleged agent in fact made a contract in regard to redemption and sale of land as principal. Temple v. Pennell
- 60. Klimproush v. Soswell, 119 Ga. 201.
- 61. Klimproush v. Boswell, 119 Ga. 201.
- 62. The agent of a nonresident owner of rented property, having authority to make repairs, is liable for injuries caused by his negligence in making necessary repairs. Lougli v. John Davis & Co. \[Wash.\]
- 63. Klimproush v. Boswell, 119 Ga. 201.
- 64. Klimproush v. Tommerman, 65 S. C. 259, 43 S. E. 678.
- 67. Defendant Ilabile for price of horse, where agency not disclosed and cheek drawn in custody of the principal. Id.

against the latter,1 record of the deed not being notice to him.2 An unauthorized option given on reality by one of two agents will not bind his co-agent unless raffiled by him.2 The question of adverse possession cannot arise in favor of one who took possession as agent and never repudiated his agency.2

Footnote 2: The authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the authorized the the authorized the authorized the authorized the the authorized the authorized the authorized the the authorized the authorized the the authorized the authorized the the authorized the authorized the the authorized the authorized the the authorized the authorized the the authorized the authorized the the authorized the authorized the the authorized the authorized the the authorized the authorized the the authorized the authorized the the authorized the authorized the the authorized the authorized the the authorized the authorized the the authorized the authorized the the authorized the author the the the authorized the authorized the the authorized the author the the the authorized the authorized the the authorized the author the the the authorized the authorized the the authorized the author the the the authorized the author the the the authorized the author the the the authorized the author the the the authorized the author the the the authorized the author the the the authorized the author the the authorized the author the the the authorized the author the the author the the authorized the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the the author the author the the author the the author the the author the the author the the author the author the the author the the author the the author the the author the author the the author the the author the the author the author the the author the the author the the author the author the the author the the author the the author the author the the author the the author the author the the author the the author the the author the author the the author the the author the author the the author the the author the author the the author the the author the the author the author the terms and the construction placed thereon. Construction of an unambiguous written contract is for the court.\[17\] The agent must use reasonable care and diligence in the business of his principal,\[18\] act in good faith,\[19\] and keep his principal informed as to facts regarding the subject of his agency,\[20\] and is liable for damages resulting from default in either respect.\[21\] An agent cannot make a time of agency. Johnson Bros. v. Wright as to a contract to be made by the agent, \[Iowa\] 99 N. W. 108. 17. Russell & Co. v. McGSwegan, 84 N. Y. S. 614. But failure to hastruct was to the written contract is not reversible error when there were full instructions on the issues generally and counsel requested none on the contract. McGCormick Harvesting Mach. cql englected to read the deed before signing (Calmon v. Sarralille, 142 Ca1. 638, 18. Taylor Co. v. Bannerman \[VVis.\] 97 R. 486), or on the ground that the principal willingly parded with the land, though torney to manage a business of selling fertilizers showed reasonable care and prudence in disposing of them in bulk at good profit, where prices had advanced, without waiting for country trade which would have been involved with a certain amount of loss, and in view of the fact that a certain customer had the right to cease using the boond to inform the principal, he is legally good. Willison v. Imperial Fertillier Co. \[S, C.\] 46 S. E. 279. 18. The California statute imposes upon an agent the same duty of good faith toward his principal as is imposed on a truste toward a beneficiary \[Civ. Code, # 2322, 2228-2239\]. Calmon v. Sarralille, 142 Ca1. 638, 76 P. 486. The truste of an unincorporated company, authorized to sell its shares on which payments had been defaulted by mem- bers, could properly buy the share of a mem- ber, though requested by the latter to sell as his agent and need not account for a v. Camden \[V. Va.\] 46 S. E. 1014. 119 Iowa, 46, 93 N. W. 66. An agent in charge of land whose principal took its management from his hands and allowed it to be sold under a tax sale of which the agent had given him notice may properly purchase the land under the tax deed after his discharge. Bemils v. Plato, 119 Iowa, 127, 93 N. W. 83. Where authority was given an agent to sell ice at a certain price and he, after receiving an offer of a larger price, bought it himself at a lower price without informing the principal, the latter was not bound. Rogers v. French \[Iowa\] 96 N. W. 767. Where a selling agent sent an offer to his principal purporting to come from third neighbors, their acceptance did not apply to a purchase by the agent and no contract was effected binding the principal as to his agent. Rogers v. French \[Iowa\] 96 N. W. 767. One receiving assignment of an outstanding certificate of purchase while 'acting as agent for the mortgagor under a written agreement with him to buy it cannot set up that the mortgagor's title was destroyed by foreclosure and claim the property in his own name. Mason v. Hartryrove, 103 Ill. App. 163. Evidence as to services of an agent in consummating a contract secured by him for his principal is admissible on the question of good faith and diligence. Mis-representation was charged against the agent whereby he secured a larger commission than the principal would have given had he known the facts. Hale Elevator Co. v. Hale, 201 Ill. 131, 66 N. E. 249. Whether or a principal has been deevolved by his agent by him and profit for himself in the business of his agency.\[22\] If faulty or ambiguous instructions are followed in good faith and diligently, he is not liable for damages from erroneous interpretation.\[28\] If care has been exercised in selection, an agent authorized to employ a subagent is not liable for the latter's negligence.\[24\] A sales agent not prohibited from selling on credit is not liable to arrest and bail for bad sales where they are not affected by his misappropriation or embezzlement.\[25\] A bond given by an insurance agent for faithful performance of duties is a contract of indemnity as to a loss arising from his failure to obey instructions in cancelling a policy.\[26\] An agent owing money to his principal is not a fiducary debtor within the meaning of the bankruptcy act.\[27\] A principal directing his agent to address messages to him in care of a certain firm may nevertheless, as against the agent, authorize another to receive and forward messages.\[28\]

(SS 4) \_B. Accounting, settlement and reimbursement.\[29\]--All profits and benefits resulting from acts of an agent whether in accordance with, or in violation of, his authority belong to the principal.\[26\] Revocation of his authority before the application of funds placed in his hands for a certain purpose, renders him liable to the principal for such funds.\[21\] He must be able to account regularly whenever a reasonable request is made,\[32\] and is liable for interest on funds he has mingled with his own and used.\[38\] That contracts of an agent are void will not excuse his liability for misappropriation of funds.\[34\] An agent who induces his principal to believe that funds in his hands are profitably invested, thereby preventing their withdrawal, cannot urge on accounting that they were in bank all the time and that he was not required to invest them.\[38\] The proceeds of sales made by an agent are trust funds held for the principal, except as to commissions;\[38\] and where the agent mixes his principal's goods with his own, title to the whole vests in the principal until his goods are returned or accounted for.\[39\] An agent charged with the purchase price of personal property wrongfully withheld from his principal cannot be charged for the use of the property.\[38\] If he wrongfully

sum for which land could be bought and paid

him that sum, he could recover the difference between such amount and a less sum

v. Holcomb \[Vwash\]. 175 P. S73.

22. Farmers' Warehouse Ass'n v. Montgomery \[Min.\] 98 N. W. 176.

01. Falksen v. Falls City State Bank \[Neb.\] 98 N. W. 425.

01. Morris v. Warlick, 118 Ga. 421, 45 S. E. 407.

01. Southern Grocery Co. v. Davila, 138 N. C. 96, 43 S. E. 591.

01. Northern Assur. Co. v. Borgett \[Neb.\] 93 N. W. 386.

01. Hence the agent's discharge in bankruptcy releases hla debt to the principal. Boyd v. Agricultural Ins. Co. \[Colo. App.\] 76 P. 986.

01. Western Union TeI, Co. v. Barefoot \[Tex.\] 76 S. W. 914.

01. See 1 Curr. L. 63, with annotation "accounting in illegal transactions."

01. Snell v. Goodlander, 90 Minn. 533, 97 N. W. 421. Secret cash payment to one acting for himself and others in sale of stock could be recovered in separate, but not in joint actions, such stock being owned in severality. Graham v. Cummings, 508 Pa, 516, 57 A. 943. An agent loaning principal's money collected 2 per cent. interest for himself and took notes at 8 per cent. Held, agent Hable to principal for interest re-

01.

01.

01.

01.

01.

- 8 Cur. Law. AGENCY SS 4C.

fully retains possession of property purchased with the principal's money, he may be charged with rent less taxes paid, and the principal may be charged with interest on the money.\* If he refuses possession to his principal, though the latter offers to reimburse him for advances, and takes title in his own name, he is liable for the fair rental value.\* He cannot be charged for rent during such possession on delivery to the principal.\* An indorsement of checks by the principal to enable his agent to collect them when they were in danger of becoming worthless, though done with knowledge of the agent's claim for excessive commissions, is not a voluntary payment thereof so that the principal could not recover an excessive amount retained by the agent.\* An agent employed to procure title to land for his principal who gets title in himself and takes possession is entitled to have his expenditures repaid, and may have a lien on the premises for their amount when judgment for possession is rendered against him.\*

(SS 4) _C. Compensation of agent._*--That an agent represented the other party with knowledge of the principal will not prevent his recovery of commissions.* The right to compensation and the amount thereof is usually determinable from the contract between the parties.\* Where the agency is modified by the principal

- 41. The amount of the rent was much smaller than the value of the growing crops and not additional pay. Arbabuah V. Shockelamed. Jackson v. Pleasanton, 101 Va. 282, 1011. N. E. 232. Agent held 42 S. E. 573.
- 42. Reed v. Hayward, 82 App. Dlv. 416, 44 principal office, under the terms of the contract of agency. Gavar, Scott & Co. v.
- 43. Johnston v. Gerry \[Wash.\] 76 P. 258.
- 44. See A Curr. 64.
- 45. Reed v. Hayward, 82 App. Dlv. 416, 81
- 46. 81
- 47. S. 608. Where the defense in an action is valid unless fraud or bad faith of the defendant must prove that fact and that it was not known to both parties. Red Cypress
- 48. C. Perry, 118 Ga. 876, 45 B. E.
- 46. Under a contract for commissions on
- 48. Under a contract for commissions on
- 49. pay commission for sale of reality, to be re-recover for services in Installing goods

tained from the price paid, or if payment by another, but must show a contract for

was not made directly to the agent, to be a certain sum or a promise to pay and re-

received directly from the owner, requires

sonable value of the services. Taylor v.

the sale to be complete before the right to

Tulman Automate Ventlating Co., 87 N.

commission accres. Ornaby v. Graham

Y. S. 404. That the services of an agent

\[Town\] 88 N. W. 724. Contract could not be

have not been profitable to his principal so constructed that nothing should become due

will not affect the amount of this compensa-

until the expiration of a year. Baliv r. Hilbert,

\[Tex. Civ.\] 72 S. W. 432. A contract

\[Tex. Civ.\] 72 S. W. 433. A contract

\[dercribing a tract of land and stipulating

that when it was purchased defendant was

\[by\] payment, there is no personal liability on

to pay plaintiff a certain amount is evil-

\[by\] part to repay advances in excess of commissions earned. Schlesinger v. Burland, 42

\[Tex. Civ.\] 77 S. W. 227.

\[Tex. Civ.\] 78 N. W. 227.

\[verticular contracts constructed as to contract

\[by\] process in debt, as to contract between in-

\[by\] source company and its agent, that the

\[by\] source company and its agent claims for commissions only debts for advances during the

\[by\] source company.

cipal by another contract directly referring to the first, the agent is entitled to commissions under conditions of the later agreement.47 Performance by the agent is a condition precedent to the right to compensation,48 but modification of a contract, made by the agent,49 or groundless refusal of the principal50 or third party51 to carry it out, will not defeat the agent's right to commissions. Violation of law,52 undisclosed personal interest in the transaction,58 and fraud of the agent,54 destroys his right to commissions, and entitles the principal to recover past compensation paid.56 But fraud may not prevent recovery on the contract.56 The receipt of benefits of the agent's services by the principal renders him liable to the agent for compensation,57 though he himself closed the transaction,58 but the third person refused to complete the contract. Charles v. Cook, 88 App. Div. 81, 84 N. Y. S. 867.

held by him from the subsequent holder of the purchase money notes, in the absence of fraud or special circumstances. Id.

52. No recovery. Adler v. Schaumberger,

Sales agency, not exclusive! Contract be-

84 N. Y. S. 235.

tween reality broker and owner construed

Contra: A law making it a misdemeanor

as not giving exclusive agency for sale of

to offer for sale any reality without written

land for a certain period entitling him to
authority will not prevent recovery of com

commission where the land was sold in the

mensions for a sale completed without writ-

menslame by the owner. White v. Benton,

ten authority (Pem. Code, $ 640d, Laws 1901,

121 Iowa, 354, 96 N. W. 875. Under an

agency to sell machinery for commission of

all amounts over the net list price at the

factory, an agent is not entitled to commission for a sale at a price beneath the net

list price, made by the principal in the

interfory, the agency not being exclusive.

Indiana Road Mach. Co. v. Lebanon Carriage

& Implement Co., 25 Ky. L. R. 1763, 78 S. W.

861.

001. Agency for sale of patent rights. Leo-

puld v. Weeks, 96 Md. 280; 63 A. 937.

48. One employed to obtain a loan is entitled to compensation only in case he pro-

cures the loan. Demarest v. Spiral Riveted

Tube Co, \[N. J. Law\] 58 A. 161. Where a sale of reality by an agent was not com-

pleted he could claim no commission unless

the failure was the fault of the principal.

Owen v. Kuhn, Loab & Co. \[Tex. Civ. App.\]

72 S. W. 432. Compensation for services in

buying land will not be forfelled because

the agent falsely represented the price paid

and received a note for that amount from

his principal where he Immediately gave the

latter possession of the land; but if he re-

fuses to give possession, though the prin-

cipal offered to reimburse him for advances,

he is not entitled to compensation. Jackson

v. Pleasanton, 191 Va. 282, 43 S. E. 578.

40. Modification by the principal of a

contract made by an agent within his au-

thority will not destroy the agent's right to commission. Contract for sale of land by

broker. Huntemer v. Arent \[S. D.\] 93 N.

W. 653. Where a broker secured contract

for exchange of his principal's property,

agreeling to waive his commission if the

contract was not consummated, on

addition of the original contract by the parties and consummatation of the modified contract,

tract, be was entitled to his commission.

Cody v. Dempsey, 86 App. Div. 336, 83 N.

T. S. 899.

50. Johnson Bros. v. Wright \[Iowa\] 93 N.

N. W. 108.

51. A broker, employed to secure an

change of reality, who secured a contract

with a third person for exchange is entitled

to commissions where his principal accepted,

but the third person refused to complete

the contract. Charles v. Cook, 88 App. Div.

the purchase money notes, in the absence of

81, 84 N. Y. S. 867.

52. No recovery. Adler v. Schaumberger,

84 N. Y. S. 235.

tween reality broker and owner construed

Contra: A law making it a misdemeanor

to offer for sale any reality without written

land for a certain period entitling him to

authority will not prevent recovery of com

commission where the land was sold in the

mensions for a sale completed without writ-

menslame by the owner. White v. Benton,

ten authority (Pem. Code, $ 640d, Laws 1901,

121 Iowa, 354, 96 N. W. 875. Under an

agency to sell machinery for commission of

all amounts over the net list price at the

factory, an agent is not entitled to commission for a sale at a price beneath the net

list price, made by the principal in the

territory, the agency not being exclusive.

Indiana Road Mach. Co. v. Lebanon Carriage

& Implement Co., 25 Ky. L. R. 1763, 78 S. W.

54. Swfficiency of misrepresentations by

real estate broker as to land to deprive the

latter of commissions on rejection of the land

by the unless the agency had terminated before the rendition of services.59 Where an agent is discharged for good cause before expiration of his term, he is not entitled to full commission,60 but may recover remaining compensation less damages from breach of his contract.61 Where the agent's compensation depends on collection of notes by the principal, the latter owes the former the duty of reasonable diligence in making the collection.62 The principal is liable for the compensation of a subagent, when the agent had authority to appoint him,63 or the principal accepts the results of work of the subagent employed by his agent with knowledge of the commission claimed.64 The subagent, claiming compensation, must show the agent's authority to appoint him.65 A credit rating of customers, to bind a principal to accept orders secured by his agent, must have been known to the principal.66 An instrument executed by a corporation giving its agent a ten per cent. commission on sales and directing payment thereof by a banker was an equitable assignment of so much of the purchase price and gave the agent a lien on funds of the sales, enforceable in equity.67

(SS 4) _D. Remedies, pleading, procedure, and proof.68_--A bill in equity for an accounting will not lie where there is an adequate remedy at law,69 but if the agent's duties are such, under the contract of agency, that a confidential relation exists between principal and agent, a suit in equity for an accounting is proper.70 That an agent has rendered an account will not prevent maintenance of a suit for an accounting on the ground that it would be veracious.71 Where an agent was paid a certain sum in excess of the real price of land bought for his principal, because of his fraud in stating the price, the principal may recover the 67. Leopold v. Weeks, 96 240, 53 _A._

67. Leopold v. Weeks, 96 280, 53 _A._

01. See 1 Curr. L 65, 66.

01. Bill sought no relief which could not be obtained at law. American Spirits Mfg.

01. Eastiand v. Maney \[Tex. City. App.\]

01. Eastiand v. Maney \[Tex.

100 AGENCY $ 4D. 8 Cur. Law.

excess without first securing a rescission of the settlement made with him." Default of a general agent is no defense in an action against a subagent to recover money embezzled by the latter." Where an agent to purchase property sold his own property to the principal for a fair sum, with no other fraud than concealing his ownership, the principal's only remedy is to rescind the contract." Among other available remedies, as between principal and agent, illustrated in the notes, is an action on account," for money had and received," for conversion of property of the principal," for breach of the contract of agency," or on the agent's bond." Where an agent, acting in good faith, under instructions from his principal, committed a tort, he may recover from the principal the amount of a judgment recovered against him for the tort and his expenses in the suit."

_Pleading."_--Where several persons have succeeded to and performed duties of one originally appointed agent, a suit for an accounting against those finally acting as agents presents a single cause of action;" the entire course of the agency may be considered a single "transaction" within the meaning of the statute permitting joinder of causes of action." Where, in an action to recover from an agent excessive commissions, the declaration and special counts set out the contracts and their modifications, on which such commissions were obtained, common counts were unnecessary to sustain a verdict for the excess demanded."

**72.** Hindle v. Holembl \[Wash.\] 76 P. 873. \[ territory is the profits the agent would have Where an agent was guilty of fraud in buy- made by the sale. The agent must show ing land for his principal, having made actual damage. Id. Nominal damages only a contract for its purchase for the purpose of selling it to his principal, it is immaterial to find his authority where he does not whether such contract was made before or show ability to perform. Agency for sale of after the principal agreed to purchase, in reality. Milligan v. Owen \[Iowa\] 85 N. W. an action by the latter to recover excess of price paid because of the fraud. Id.

**73.** Insurance agents. Foster v. Franklin

ward performed is immaterial in an action Ins. Co. (Tex. Civ. App.) 17 S. W. 91.

74.\*\* Whitehead v. Lynn \[Colo. App.\] 76 P. 1119. He cannot retain the property and

75.\*\* In an action on an agent's bond, the also recover the difference between the price paid by him and that paid by the agent.

If he acted as agent is immaterial where Ia.

75.\*\* Evidence insufficient to support two items of agents counterclaim in action by

Fire Ins. Assp. u, Buchalter, 102 Mo. App. principal on account. New Orleans Coffee Co. v. Hutchinson \[Neb.\] 86 N. W. 1017. A

Indemantly bond given by an agent to his sales agent, whose commission is due when principal will not bar an action for a subse-sale notes are paid or at option of the prin-cipal in sale notes, may see for his com-

gelt \[Neb.\] 83 N. W. 226. A cause of action mission before collection of the notes where the principal has failed to enforce collec-

agents' bond by violation of instructions to tion for an unreasonable length of time.

cancel a policy is not barred until five years

Westinghouse Co. v. Thiden \[Neb.\] 88 N. W. after the loss ensues to the company. Id.

74. Evidence as to the motive in employing a traveling salesman is Inadmissible in his

cannot have redress against another does action for commissions. A domissibility of

other evidence considered. Pepper v. Pepper & Co., 24 Ky. L. R. 2403, 74 S. W. 739.

76. Money of a principal misappropriated of action against agent for money had and by an agent may be recovered in an action

received. Reed v. Hayward, 82 App. Dlv. 416, for money had and received. Limitations

81 N. X. Y. 868. To recover from a salesman will not run against the action until the

an amount alleged to have been advanced

principal learns of the tort. Guernsey v.

in excess of commissions, his contract al-

Davis, 67 Kan. 378, 73 P. 101.

77. Lahr v. Kraemer \[Minn.\] 97 N. W.

01. An agent is not liable to the prin-cipal

78.\*\* An agent is not liable to the prin-cipal

79.\*\* Under the agent's authority, the agent is not liable to the prin-cipal

- \[3\] Cur. Law. AGENCY IMPLIED FROM RELATION 101

Evidence."The rule excluding evidence of transactions with a decedent by a party to an action against the estate does not apply to an action by a principal against the estate of his agent to set aside a deced procured by fraud." Evidence of usual and customary commissions may be given to prove reasonable value for services of an agent in selling land." In an action for an accounting against an agent, the burden is on the agent to show that he has paid to or for his principal all moneys of the principal coming into his hands." In an action by an agent for commissions on sales, the burden is on him to show compliance with his contract and alleged bad faith on the part of the principal." To support an allegation of conversion by an agent, the plaintiff must show generally the amount of property received by the agent and failure to return or account for it on demand;" such a showing shifts the burden upon the agent to make a specific accounting."

- \[3\] **v. Wheeler, 89 App. Div. 435, 85 N. Y. S.** notice. Dodge v. Reynolds \[Mich.\] 98 N. 881. 84. Hale Eleivator Co. v. Hale, 201 Ill. 131, an agent for breach o' duty, an allegation of specific direction to an agent is established by showing that the agent's duty in all cases by an agent is not admissible in an action covered the transaction in suit. Instruction by his principal to recover the excess of the price fraudulently represented above v. Davis, 67 Kan. 378, 71 P. 101. See 1 Curr. 1 L. 86. 88. Calmon v. Barraille, 142 Cal. 638, 78
- \[4\] **P. 488.** part of stock in hands of an agent for sale cannot be given in sn action by the principal against the agent for mirepresentation as to the amount he received, where it appears that he had authority only to sell all the stock. Barbar v. Martin \[Neb.\] 93 N. W. 729. In an action by an alleged agent for breach of a contract for sale of the principal capal'e goods, evidence that the principal knew that plaintiff claimed to be his gener- all agent is admissible to show why the principal published a notice that he had accounted, or to excuse failure to account. no agents after plaintiff had proved such Dodge v. Hatchett, 118 Ga. 838, 45 B. E. 647.

AGENCY IN THE CASE OF PERSONS OCCUPYING PARTICULAR RELATIONS. (SPECIAL ARTICIS BY WKL. L. Clarke and Henry H. Skilles. Cottinotted 1904, BY KEITE-Davidson Co.)

- \[5\] **1.** In General (102). **1** **2.** Implication and Presumption of Them (115). **2** **A.** In General. **3** **A.** In General. **4** \*\*Doty to Support Parent--Lathillity for Necessaryes (103). **5** **S.** Agency of Child for Parent (103). **6** **A.** In General (103). **7** **B.** Contracts for Necessaryes (104). **8** **B.** Aegacy of Servant for Master (106). **9** **A.** In General (107). **10** **B.** Impliation or Presumption of Husband's Agency for Wife (108). **11** **C.** Estopel of Wife to Deny Authority of Husband (110). **12** **D.** Raffication (110). **13** **S.** Agency of Wife for Husband--In General (110). **14** **B.** Agency of Wife Ordinarily Requires Appointment by or Assent of Husband (111). **150** \*\*Express Authority of Wife and Authority Implied From Circumstances (112). **151** **M.** Married Worman Doing Business in Her Own Name (113). **152** \*\*Implied Agency of Wife in Matters Pertaining to the Household (113). **153** \*\*Wife's Implied Authority to Proverse Necessaryes for Children (126). **154** **A.** In General. **155** **A.** In General. **156** **A.** In General. **157** **A.** In General. **158** **A.** In General. **159** **A.** In General. **151** **A.** In General. **152** **A.** In General. **153** **A.** In General. **154** **A.** In General. **155** **A.** In General. **156** **A.** In General. **157** **A.** In General. **158** **A.** In General. **159** **A.** In General. **151** **A.** In General. **159** **A.** In General. **151** **A.** In General. **152** **A.** In General. **153** **A.** In General. **154** **A.** In General. **155** **A.** In General. **156** **A.** In General. **157** **A.** In General. **158** **A.** In General. \*\*15 * 15. Contracts by Wite on Her Own Credit (126).
- 16. Husband's Ratification of Wite's Acts (127).
- 17. Agency of Woman Held Out or Passing as Wite (127).
- 18. Agency of Partner (128).
- 19. Unincorporated Chips and Societies as F'Inclipals (129).
- 11. _In general._--Questions as to the existence of the relation of principal and agent frequently arise in the case of persons occupying particular relations, as in the case of husband and wife, parent and child, partners, tenants in common, etc., and the relationship is sometimes, although not necessarily, a circumstance which gives rise to special rules. In this article we shall consider the relation of principal and agent in such cases and ascertain when it exists, and more particularly, the circumstances under which it may or will be implied, either as a matter of fact or as a matter of law.
- 2. _Implication and presumption of agency from relationship of the parties._--As we shall presently see, agency on the part of a wife to bind her husband is under some circumstances, and to a certain extent, implied as a matter of law, and irrespective of the husband's consent; and under some circumstances it is implied or presumed as a matter of fact, in the absence of evidence to the contrary. An agency is also implied as a matter of law, under certain circumstances, in the case of parent and child. With these exceptions, however, the general rule is that agency will not be implied or presumed, either as a matter of law or fact, from the mere fact that the parties are related, however nearly. \[93\] The relationship of the parties, however, may be shown and considered as a circumstance, in determining whether there was agency in fact in a particular case, and may be sufficient with other circumstances to establish an agency, where the other circumstances would not be sufficient in the absence of such relationship. \[98\] Thus where one insured had been injured and rendered utterly helpless in a distant country, with no friend or relative near him except his brother, and it being important to close up the business relating to the insurance before he was taken home, the agency of the brother to act for him in the matter might be implied from the circumstances. \[94\]
- 3. _Agency of parent for child._--The mere relationship of parent and child does not of itself make the parent the agent of the child to manage or dispose of his property or for any other purpose, whether the child is a minor or of full age. \[98\] But a son or daughter, being sui juris, may expressly appoint his or her father or mother as agent, or such agency may be implied from the conduct of the parties. \[96\] Or there may be an estoppel by holding out or other conduct, as in the case of other persons. \[97\] Thus if a son sends one who desires to purchase lands of him to his father to make a bargain, with a statement that whatever bar-gain they should make he would agree to, the person thus sent would be authorized to regard the father as the son's agent for the purpose of making a bargain, and the statements of the father while negotiating the sale would bind the son. \[98\]
- 98. Johnson v. Stone, 40 N. H. 197, 77 656; Shimmel v. Erle R. Co., 5 Daly \[N. Y.I Am. Dec. 706; McNamara v. McNamara. 62 396; Foster v. Fleishans, 69 Mich. 543.
- 20.; Walsh V. Curley, 42 N. Y. St. Rep. 94. Sheannon v. Pacific Mut. Life Ins. Co., 470; Le Count v. Greenley, 5 N. Y. St. Rep. 83.
- 91, and other cases more specifically cited in the notes following. And see Gibson v.
- 91. The fact that one as father or friend Snow Hardware Co., 94 Ala. 346.
- 93. Sheannon v. Pacific Mut. Life Ins. Co., 83 Wis. 507; Ford v. Linehan, 146 Mass. 283.
- 94. Heips v. Clayton, 17 C. B. \[N. S.\] 553.

3 Cur. Law. AGENCY IMPLied FROM RELATION SS 5. 103

Of course, where a child is a minor, the general rules as to agency for infants apply to an appointment of his parent as his agent.

SS 4. \_Duty to support parent. Liability for necessaries.--\_At common law, a child is under no legal obligation to support his parents, although they may be destitute and helpless, and in the absence of a statute, therefore, a child cannot be made liable for necessaries furnished his parents without his consent." In some jurisdictions, a legal duty to support their helpless and destitute parents is imposed upon children by statute, and if they fail to perform such duty, they can be held liable for necessaries furnished, unless some special mode of enforcing the duty is prescribed by the statute.1 Thus if a statute imposes the duty upon "the children of any poor person, who is unable to maintain himself by work, to maintain such person to the extent of their ability," a county which has, under the direction of the law, furnished necessaries to an indigent and helpless father, may recover therefor in an action against the children whose duty it was to furnish the same, and whose neglect or refusal so to do made it necessary for the county to furnish such necessaries.2 But even under such a statute, a court would have no authority to render a judgment requiring the children to undertake the future support of their parents, where the statute is silent as to the means of enforcing such duty as to future maintenance.

SS 5. \_Agency of child for parent. In general.--\_Ordinarily a child has no implied authority to act as agent for his parent, to manage or dispose of the latter's property, make contracts or for any other purpose, and authority will not be presumed from the mere fact of relationship.4 "A son has no authority, as such, to lend his father's property, and there is no presumption that such authority has been given to a son. It may be shown that authority to lend tools and the like has been given to a son expressly, or such an authority may be inferred from the conduct of the father, tending to show that he reposed such confidence and intrusted such discretion to the son, as by showing that on other occasions the son had lent the father's property of a similar kind, and the father, upon the facts coming to his knowledge, approved what he had done; but without such proof the son stands in the same position as a stranger."8 But of course, as stated in the above quotation, a parent may expressly authorize his or her child to act as agent, and such authority may be inferred from circumstances. Or the parent may be estopped, by a holding out or other conduct, from denying such authority." Thus where a son had in several instances used the name of his father by signing it as surety to notes given by the son, and the father, with knowledge of the fact that such use had been made of his name, directed the holder of a 97, 98. Reeves v. Kelly, 30 MCh. 132. 98. Rex v. Munden, 1 Strange, 190; Edwards v. Davis, 16 Johns. \[N. Y.\] 281; Becker v. Gibson, 70 Ind. 239; Stone v. Stone, 32 Conn. 142; Lebanon v. Griffin, 45 N. H. 658; Gray v. Spalding, 58 N. H. 345. 1. McCook County v. Kammoss, 7 S. D. 558, 58 Am. St. Rep. 854; Howe v. Hyde, 88 Mich. 91. It is otherwise if the statute prescribes a particular mode of enforcing the duty which it imposes. Edwards v. Davis, 16 Johns. \[N. Y.\] 281. 2, 3. McCook County v. Kammoss, 7 S. D. 558 Am. St. Rep. 854. 4. Owen v. White, 5 Port. \[Ala.\] 435, 20 Am. Dec. 672; Paul v. Hummel, 43 Mo. 122; Holt v. Baldwin, 46 Mo. 865, 2 Am. Rep. 515; Johnson v. Stone, 40 N. H. 197, 77 Am. Dec. 706; Walsh v. Curley, 48 N. Y. St. Rep. 470; Ritch v. Smith, 82 N. Y. 627; Schaefer v. Osterbrink, 67 Wis. 495; Kumba v. Gilham, 103 Wis. 812. And see article by Prof. W. R. Vance, 11 R. Vance, 12 R. Vance, 16 S. Low Reg. 55. 5. Johnson v. Stone, 40 N. H. 197, 77 Am. Dec. 706; Abel) 6. Bryan v. Jackson, 4 Conn. 288; Weaver v. Ogletree, 89 Ga. 586; Harper v. Lemon, 38 Ga. 227; Murphy v. Ottenheimer, 84 Ill. 29; Thurber v. Anderson, 88 Ill. 167; Common. 118 Mass. 195; Thayer v. White, 12 Mete. \[Mass.\] 343; Bennett v. Gillette, 3 Minn. 423, 74 Am. Dec. 747; Holt v. Baldwin, 46 Mo. 265, 2 Am. Rep. 515; Johnson v. Stone, 40 N. H. 197, 77 Am. Dec. 706; Abel) 6. Bryram v. Jackson, 4 Conn. 288; Weaver v. Ogletree, 89 Ga. 586; Harper v. Lemon, 38 Ga. 227; Murphy v. Ottenheimer, 84 Ill. 29; Thurber v. Anderson, 88 Ill. 167; Common.

note so signed to see the son about it, and the latter agreed to have it arranged as desired, and smaller notes were accepted by the holder, in place of the larger one, in the belief that the new notes had been signed by the father, as he made no objection to the genuineness of the note presented to him, the facts were such as to authorize the jury to presume and find that the son was the agent of the father to sign the note, or that the father ratified the act done by the son.' If a son has been accustomed to sign his father's name as indorser of notes, and the father has recognized the indorsements as binding, authority on the part of the son to bind the father by such indorsements in other instances will be implied.\* So if the parent has formerly paid for goods purchased on credit by his child, and does not forbid such sales, it will be inferred that the parent authorizes further purchases on credit.\*

_Contracts for necessaries._--A father is not bound by the contract of his son even for articles which are suitable and necessary, in the absence of elements of estoppel, unless an express authority is shown, or the circumstances are such that authority in fact may be inferred. A son has no implied authority to purchase necessaries on his father's credit merely by virtue of the relationship.10 When a child continues under the direction and control of his father, it is left to the father's discretion to determine what is necessary for him, unless it clearly appears that the father has failed to perform his duty to provide for the child's maintenance.11 But an implied authority on the part of the child may arise if such an omission on the part of the father is shown. By statute in many jurisdictions, and by the weight of authority even at common law, and independently of any statute, a father is under a legal obligation to support and maintain his minor children, just as a husband is under a legal obligation to support and maintain his wife, as will be hereafter shown. And it follows that if a father drives his minor child from home, or causes him to leave by personal violence or abuse, or otherwise neglects without cause to perform this parental duty, the law will imply or create an agency on the part of the child, as it does on the part of a wife, to purchase necessaries on the father's credit,12 such as food, clothing, shelter, medical attendance, etc.12

Footnote 12: https://www.

3 Cur. Law. AGENCY IMPLIED FROM RELATION SS 5.

It will be seen from the cases cited in the last preceding note, that, although they all agree in holding a parent liable for necessitates furnished to a child, where he has neglected or refused to do so, yet this liability is placed on different grounds. In the cases first cited, it is held that there is a legal obligation on a father to maintain his infant child and that if he fails or refuses to do so, there is an agency by implication of law on the part of the child to purchase such necessaries on the credit of the parent. On the other hand, the other cases cited hold that there is no such legal obligation on the parent, independent of statutory enactment, and that there is no agency in the child, in such cases, to procure necessaries on the credit of the parent, unless he is expressly authorized to do so, or unless the circumstances are such as to create an agency by implication of fact. This implied authority on the part of a child to bind his father for necessaries only arises in the case of neglect of duty on the part of the father, which must be affirmatively shown.${}^{14}$ If a father abandons his minor child or drives him from home, the child carries with him such an implied authority, but it is otherwise where the child, being of the age of discretion, voluntarily leaves his father's house.${}^{15}$ Nor is a father liable for necessaries less the father has expressly or impliedly ammister v. Buckminster, 83 Vt. 248, 88 Am. authorized the purchase on his credit, or Dec. 652. has expressly or impliedly promised to pay 33. What are necessaries must be deter-therefor, but slight evidence is held to be unified by the condition in life and means of sufficient to show this authority or prom- the father as well as the character of the articles. Stanton v. Willson, 3 Day \[Conn.\] Emelani; Mortimore v. Wright, 6 Meas, 87, 3 Am. Dec. 265: Freeman v. Robinson, 88 N. V. 482; Shelton v. Springret, 11 C. D. 452; Law v. Willkins, 1 New. & P. 697; Baker v.

, 8 May 18, 20 Am. Rep. 399. Education has been held a necessary. Stanton v. Willson, 8 Day \[Conn.\] 87, 3 Am. Dec. 255. But com-

, 8 May 18, 20 Am. Rep. 399. Date of the art: 11th Int. 100th Int. 11th Int.

furnished a child while in the custody of the mother, who has left him without cause.18 Nor does the above rule apply to adult children; and a father is not liable for necessaries furnished an adult child, in the absence of contract or authority, although the child be at the home of the father when the necessaries are furnished, and although the father fails to supply them himself.17 There is some conflict of authority as to whether a mother who is a widow is under an obligation to support her minor children, where they are not able to support themselves, but the better opinion is that she is under such an obligation, and that she is liable, therefore, for necessaries furnished to them, on her failure to support them.18 It would be otherwise, however, if the children have sufficient means of their own, or can maintain themselves, or provision has been made for their support.19 If a wife obtains a divorce, and is given the custody of minor children, and alimony for herself, but not specifically for the support of the children also, this does not relieve the husband of his duty to support the children, and he may nevertheless be liable for necessaries furnished them.20 In some cases, however, the contrary is held.21

3 Cur. Law. AGENCY IMPLIED FROM RELATION SS 7. 107

former. A servant is the agent of his master for the purpose of managing or disposing of his property, binding him by contracts for the purchase of supplies and otherwise, or for any other purpose, in so far only as authority may have been expressly or impliedly conferred upon him by the master.24 Of course, as in any other case, agency on the part of a servant to bind his master may be implied from circumstances, and the master may be estopped by his conduct clothing the servant with apparent authority. But properly speaking in so far as the servant becomes an agent for his master he loses the character of servant.

SS 7. _Agency of husband for wife. In general._--At common law, a married woman cannot appoint an agent, and therefore she cannot be bound by contracts or acts of her husband as her agent, even though she may have expressly authorized the same. But this doctrine no longer obtains in all its strictness in any jurisdiction. In some states, statutes have been enacted, allowing married women to hold a separate estate, and to convey or contract with reference to the same; and in some states the common law disabilities of coverture have been removed altogether, so that she may contract in all respects as a fence sole. And in so far as her disabilities have been thus removed, a married woman may appoint an agent to act for her. And, subject to any special statutory provisions, she may appoint her husband as well as a third person. There is nothing in the marriage relation to prevent a husband from acting as the agent of his wife under an appointment by her.25 And the same is true of any other contract or act which under the statutes a wife may make or do. The general rule is that she may authorize her husband to do for her what-ever she has the capacity to do herself.25 A husband may act as agent for his

24. Haluptok v. Great Northern R. Co., 55 Minn. 446,

01. Alhapman Jones v. Chenault, 124 Ala.

610, 82 Am. St. Rep. 211: Louisville Confin Co. v. Stokes, 78 Ala. 372.

Arkansas' Humphrey McCauley, 55 Arch.

143: Hoffman v. McPadden, 56 Ark. 217, 35

Am. St. Rep. 101,

California: Quars v. Scher, 136 Cal. 406,

Florida: Prentis v. Patsley, 25 Fin. 927.

Illinois: Hafich v. McVegah, 691 (B12):

Patten v. Patten, 15 Ill. 446; Walker v. Carlson, 74 Ill. 446; Wortman v. Price, 47 Ill. 23: Nigh v. Doved, 84 Ill. 228.

Indiana: Barnett v. Grufting, 3.1 Ind. App. 415; Rewell v. Klein, 44 Ind. 230; Griffin v. Rangalcell, 71 Int. 440.

Iowa: Hamilton v. Hooper, 46 Iowa, 515,

26 Am. Rep. 161. See Sawyer v. Biggart, 114 Iowa, 489.

Kansas: Wilkinson v. Elliott, 48 Kan. 590,

18 Am. St. Rep. 158.

Louatsman Jones v. Read, 1 La. Ann. 200.

Maine: Verrill v. Parker, 65 Me. 578; Roberts v. Barrford, 56 Me. 466; Maxey Mfg. Co. v. Burham, 59 Me. 538, 6 Am. Rep. 438.

Massachusetts: Arnold v. Spurr, 130 Masses. 347; Wheaton v. Trimble, 145 Mass. 345,

Am. St. Rep. 463; Duggan v. Wright, 157 Mass. 228.

Mieleman: Rankin v. West, 25 Mich. 195.

Luebe v. Thorpe, 94 Mich. 268; McBahn v. Seilgman. 53 Mich. 294; First Commercial

Bank v. Newton, 117 Mich. 433.

Missouri: Rodgers v. Pike County Bank,

69 Mo. 562; Brystra v. Capelle, 61 No. 678; Long v. Martin, 152 Mo. 668.

Nebraska: McMultury v. Brown, 8 Neb. 368. A husband may act as the agent of his wife in the management of her separate business. Harris v. Weir-Shugart Co., 51 Neb. 433.

New Jersey: Elliott v. Bodine, 59 N. J. Law, 567; Talcott v. Arnold, 84 N. J. Eq. 570; Taylor v. Vrands, 55 N. J. Eq. 491, 62

Am. St. Rep. 818; Tresch v. Virtz, 34 N. J. Eq. 124, 36 N. J. Eq. 356.

New York: Wronkov v. Oakley, 133 N.

7, 605, 28 Am. St. Rep. 661; Third Nat.

Bank v. Guenther, 123 N. Y. 568, 20 Am. St. Rep. 780.

Rept. 780.

North Carolina: Bazemore v. Mountain,

121 N. C. 59.

Ohio: Manhattan L. Ins. Co. v. Smith, 44 Ohio St. 156.

Pennsylvan: Bodev 108 AGENCY implied from relation SS 7. 3 Cur. Law.

wife in making a contract for the purchase of land, and if he makes such contract in his own name the fact that he acted as agent for his wife may be shown by parol evidence.27

Where a married woman's disabilities are only partially removed, her capacity to authorize her husband to act as her agent is limited. The rule is that she may authorize him to act as her agent in making any contract or doing any other act which she has the capacity to do herself, unless there is some statute requiring her to act personally in the particular matter; but she cannot authorize him to bind her by any contract or act, by which she cannot bind herself." Where a married woman is empowered by statute to contract with reference to her separate property, she may appoint her husband her agent to contract for its improvement or repair, so as to enable him to subject it to a mechanic's lien.28

_Implication or presumption of husband's agency for wife._--Although a wife may have the capacity to authorize her husband to act as her agent, as explained above, the husband cannot bind her in the absence of authority in fact from her, or an estoppel by her conduct to deny such authority. A husband has no implied authority, merely by reason of the marriage relation, to act as the agent of his wife in managing or disposing of her separate estate, or binding her by contracts with respect thereto; nor will the appointment of a husband by his wife as her agent be presumed merely from the marriage relation, without other evidence, or from circumstances which ordinarily owe their existence solely to the marriage relation,29 unless by some express statutory provision.30 It follows that a husband's knowledge of defects in the title of real estate or illegality

## 8 Cur. Law. AGENCY IMPLied FROM RELATION SS 7.

in the consideration of a negotiable instrument purchased by his wife, or other matters, is no more imputable to her than knowledge of a stranger would be, where it is not shown that he was acting as her agent in the transaction.

While authority on the part of a husband to act as agent for his wife will not be implied or presumed from the marriage relation alone, an agency in fact may, as in the case of other persons, be implied from the conduct of the wife in allowing the husband to act for her or other circumstances tending to show authority in fact, and the relation between them may be taken into consideration, in connection with the other circumstances, in determining whether there was authority in fact.\[35\] A finding that a husband acted as the duly authorized agent of his wife in employing a person to perform labor upon her house is warranted, in a proceeding to enforce a mechanic's lien therefor, by evidence that the husband had general management of the property, that he employed such person to perform the labor, that the wife knew the work was being done, and that she personally gave directions as to parts of the work, or otherwise showed her assent thereto.\[35\] But authority on the part of a husband to make a contract for the improvement of his wife's real property, so as to subject it to a mechanic's lien, is not implied from the marriage relation, nor from the mere fact that the husband occupied, or managed and controlled, the property.\[36\] The mere fact that a wife has knowledge of the construction of a building by her husband on her property does not, of itself, necessarily establish the agency of her husband to charge such property with a lien for material used thereon; and she may contest the validity of such a lien,\[35\] unless there is a statute creating a liability against her under such circumstances.\[36\] It has been held that if a conveyance of land to a married woman is delivered to her husband and accepted by him for her, acceptance by her will be presumed on the ground that, since the conveyance is for her benefit, authority on the part of the husband to accept the same for her may be presumed from their relation.\[37\] It has been said that stronger and more satisfactory evidence is necessary

Wheaton v. Trimble, 145 Mass. 345; 199 Pa. 623; Jobe v. Hunter, 165 Pa. 5, 44 1 Am. St. Rep. 463; Carroll v. O'Shea, 19 N. Y. Am. St. Rep. 639; Spears v. Lawrence, 10 809; V. Thackara, 143 Pa. 171, Wash. 368, 45 Am. St. Rep. 783; Laycock v. 24 Am. St. Rep. 526; Minard v. Stillman, 31 Parker, 103 Wis. 161. See also Tarr v. Murir, Or. 164, 65 Am. St. Rep. 816; Laycock v. 21 Ky. L. R. 988, 53 S. W. 663. Compare, Parker, 103 Wis. 161; Barnett v. Glutmie, 3 however, Cate v. Rollins, 69 N. H. 426; John-Ind. App. 415; Shater v. Archbold, 116 Ind. 89; Arnold v. Spurr, 130 Mass. 347; Hunt v. If the wife has authorized her husband to Mercantile Ins. Co., 22 Fed. 603.

Asch as her agent in contracting for the 33. Richards v. John Spry Lumber Co., 169 111. 238; Bumgartner v. Hall, 163 Ill. 136; McNichols v. Kettner, 22 Ill. App. 493; Andre-thereon, although she may not have intendson v. Armstead, 69 Ill. 452; Interstate Bldg. 46 to charge the property therewith. Jones & Loan Assn v. Ayres, 71 Ill. App. 530; Thompson v. Shepard, 85 Ind. 352; Burdick v. Moon, 41 Iowa, 418; Eldad v. Wilson, 23 Iowa, 464; Bethell v. Chicago Lumber Co., 39 Kan. 38 Am. 230; Maxey Mr. Co. v. Burnham, 89 Me. 538, 56 Am. St. Rep. 436; Wheaton v. Trimble, 145 Mass. 345, 1 Am. St. Rep. 463; Tuttle v. Howe, 14 Minn. 145, 100 Am. Doc. 205; Farley v. Stroech, 68 Mo. App. 85; Collins v. Me-grav, 47 Mo. 495; Bradford v. Peterson, 30 85. 96; McCormick v. Lawton, 3 8eb. 449; Howell v. Hathaway, 28 Neb. 807; Scales v. Palne, 13 Neb, 521; Elliott v. Bodling, 59 N. J. Law, 667; Holden v. Kutscher, 17 Misc. (N. Y.) 640; Body v. Thackara, 143 Pa. 171, 24 Am. St. Rep. 526; Bevan v. Thackara, 143 Pa. 182 24 Am. St. Rep. 529; Bankard v. Shaw, 183 Pa. 184 24 Am. St. Rep. 529; Bankard v. Shaw, 183 Pa. 185 24 Am. St. Rep. 539; Bankard v. Shaw, 184 25to establish a husband's agency for his wife than would be required as between persons not occupying such a relation."

\_Estoppel of wife to deny authority of husband.--\_When a wife has authority to appoint her husband as her agent with respect to a particular matter or business, she is subject, to the same extent as any other person, to the principles of law in relation to agency by estoppel. If by her conduct she holds him out as her agent or allows him to act as such, she will be bound by his acts within the scope of his apparent authority, whether there was any actual authority or not."

\_Ratification.--\_A wife, in so far as she has the capacity to authorize her husband to act as her agent, may expressly or impliedly ratify, and thereby render binding, contracts made or other acts done by her husband on her behalf without authority."

**SS 8.**\_Agency of wife for husband. In general.--\_It is well settled that a married woman is competent to act as agent for another, even though her common-law disabilities have not been removed, so that she could not contract for herself in the matter, for persons who are not sui juris may act as agents and there is nothing in the marriage relation to prevent a wife from acting as the agent of her husband. The present consideration is appointment of a wife as the agent of her husband, and the circumstances under which such an agency will be implied. If a husband allows his wife to purchase goods on his credit, or otherwise holds her out as having authority, and then separates from her and makes her an adequate allowance, and she afterwards continues to purchase on his credit as before, he will be estopped to deny her authority as against tradesmen who supply her in reliance on her apparent authority and without notice of the change of circumstances." The fact

**SS.** Rowell v. Klein. 44 Ind. 290: Louls- 78 Ga. 150: Richards v. John Spry Lumber ville Coffin Co. v. Stokes, 78 Ala. 372: Eystra Co., 169 Ill. 238: McNichols v. Kettner, 22 v. Capelle, 61 Mo. 578: McLaren v. Hall, 26 Ill. App. 493: Anderson v. Armstead, 69 Ill. Iowa, 291: Sanford v. Pollock, 105 N. Y. 450: 452: Maxey Mffe. Co. v. Burnham, 89 Me. 538: Kansas City Planning Mill Co. v. Brundage, 85 Am. St. Rep. 435: Arnold v. Spurr, 120 38 Mo. App. 268: Carthage Marble & W. L. Mass. 347: Bodine v. Killeen, 63 N. Y. 93: Co. v. Bauman, 44 Mo. App. 386, 393: Thomp. Banklor v. Shaw, 199 Fa. 623: McManus v. son v. Kehrmann, 60 Mo. 498: Mead Laughlin, 186 Pa. 493: Brown v. Thomson, v. Spalding, 94 Mo. 43: Farley v. Stroen, 68 31 S. C. 426, 17 Am. St. Rep. 40: City Bldg. & Mo. App. 85: Lane v. Lockridge, 17 Ky. L. R. Loan Ass'n v. Jones, 23 S. C. 305: Whitaker 1082, 33 S. W. 730. See Long v. Martin, 71 V. Lee (Tenn. 57 S. W. 348: Anderson v. Mo. App. 569, where the authority of the Wnoo State Bank, 92 Tex. 546: Horr v. Hollis, 20 Wash. husband to act as the agent of his wife was shown by the weight of the testimony. It was held sufficient to establish such author- 144; Curtis v. Janzen, 1 Wash. 58: Lavassar v. Washburn, 50 Vis. 200. And see Bank v. Authority on the part of a husband to declare that his wife is his partner in 30 business cannot be implied from his author- 144, but the author is to attend to her business generally. First Nat. Bank of Tuscaloosa v. Leland, 122 Ala. 239. Where the husband has contracted in his 30 was bound by a sale made by a harder under own name for improvements on the wife's 14, that has been held that the evidence to 15, 67. Where a wife joins establish his agency, in the face of his 30, 16, and understanding the terms of the con- 14, and the agency in the mind of the trier of 14, and the agency in 31, 16, and the agency in 32, 17, 18, and the agency in 33, 19, 19, and the agency in 34, 19, 18, and the agency in 35, 19, 18, and the agency in 36, 19, 19, and the agency in 37, 18, 19, and the agency in 38, 19, 18, and the agency in 39, 19, 19, 3 Cur. Law. AGENCY IMPLIED FROM RELATION SS 9.111 that a husband is insane and confined in an asylum gives his wife no implied authority to bind him by contract, except for necessaries.\[42\]

SS 9. _Agency of wife ordinarily requires appointment by or assent of husband._--As shall be hereafter seen, where a husband wrongfully neglects to supply his wife and children with necessaries, the wife has implied authority, even without his assent, to bind him to pay for necessaries, purchased by her on his credit. And where husband and wife are living together, authority to act as his agent in matters pertaining to the ordinary affairs of the household will be implied or presumed in the absence of proof to the contrary. In other matters, however, the general rule is that a wife has no authority to act as agent for her husband without his assent, evidenced either by an express appointment by him or by his conduct. No authority can be implied merely from the fact of their relation as husband and wife.\[43\] Thus a wife has no authority, merely by virtue of the marriage relation, to sign contracts generally on behalf of her husband,\[44\] or to bind him by borrowing money, even though it is borrowed to purchase necessaries,\[45\] accepting a deposit of money,\[44\] to receive payments on debts due to her husband,\[44\] to receive a delivery of property from a bialee,\[48\] to sell, exchange, or otherwise dispose of her husband's property.\[49\] pay his debts,\[50\] or grant an easemment or license with respect to his property.\[51\] to rescind, release, or modify contracts made by the husband,\[62\] A wife has no authority to bind the husband by contracts, or to dispose of his property, merely because of his absence, even though he may have deserted her,\[53\] or because of his incapacity to attend to business by rea son of sickness or insanity,54 unless the contracts are for the purchase of necessaries, or the property is disposed of for the purpose of procuring necessaries, as will be hereafter explained.

**SS 10**.: _Express authority of wife and authority implied from circumstances._--Agency on the part of a wife to act for her husband may be created by a formal power of attorney or other express authority, verbal or in writing.55 And there may be circumstances under which authority in fact will be implied. As in the case of agency between other persons, her authority may be implied from circumstances, or he may be estopped to deny her authority by having allowed her to act for him in the particular transaction or in similar previous dealings, or otherwise clothed her with apparent authority.55 When the husband is absent from home, and his property is left in charge of the wife, there is an implied agency on her part to exercise the usual and ordinary control and protection over the property thus left in her possession, unless the presumption of this authority is rebutted by proof that he had constituted another his agent for that purpose.57 If a husband authorizes or allows his wife to act as his agent in particular matters, and thus holds her out as having authority, a private agreement or understanding between him and his wife revoking her authority, will have no effect as against third persons afterwards dealing with her in good faith and without notice of the revocation.55 "If a tradesman has had dealings with the wife upon the credit of the husband, and the husband has paid him without demurrer in respect of such dealings, the tradesman has the right to assume, in the absence of notice to the contrary, that the authority of the wife which the husband has recognized continues. The husband's quiescence is in such cases tantamount to acquiescence, and forbids his denying an authority which his own conduct has invited the tradesman to assume.579 The burden of proving the wife's agency for her husband.

**Maryland:** Jones v. Gutman, 88 Md. 355.

**Mikigan:** Harris v. Smith, 79 Mich. 64.

**Milsson:** Tuttle v. Hogg, 46 Mo. 38, 2 Am.

\*\*Rep. 481; Sauter v. Sertuchfield, 28 Mo. App.

**155**.: _Nev Jersey:_ Gullek v. Grover, 33 N. J.

\*\*Law, 463.

**New York:** Howe v. Finnegan, 61 App.

**Div. 610;** Fenner v. Lewis, 10 Johns. 38;

**Gates v. Brower, 9 N. Y. 205, 59 Am. Dec.**

**330**.: _Nevth Carolina:_ Sibley v. Glimer, 124 N.

**C. 631;** Cox v. Hoffman, 20 N. C. (3 Dev.

**& B.) 319**.: \_Nev. Stone, 23 Or. 327.

**Rhede Island:** Anthony v. Phillips, 17 R.

**1. 188**.: _Vermont:_ Gliman v. Andrus, 28 Vt. 241,

\*\*67 Am. Dec, 713,

**67 Krebs v. O'Grady, 23 Ala. 726, 58 Am. Dec. 312;** Benjamin v. Benjamin, 15

**Conn. 347, 39 Am. Dec. 384;** Rothe v. Miles, 2 Conn. 638;\*\* Casteel v. Casteel, 8 Blackf.

**(Ind.) 240, 44 Am. Dec, 763;** Buford v. Speed,

**11 Bush (Ky.) 338;** Church v. Landers, 18

**Wend. (N. Y.) 79;** Spencer v. Tsiue, Add.

**(Pa.) 316:** Stall v. Meek, 70 Pa. 181;\*\* Can-

**1110**.: _Krofta:_ Phillips v. Sanchez, 35 Fla. 187.

**1111**.: \_Hudson v. Sholen, 65 Ill. App.

**61;** Compton v. Bates, 10 Ill. App. 78;\*\* Stott s v. Bates, 73 Ill. App. 640.

**Indiana:** Mickleberry v. Harvey, 68 Ind.

**523;** Watts v. Moffett, 12 Ind. App. 399.

**Kentucky:** Jones v. Woeher, 90 Ky. 230.

**Lonislam:** Cousins v. Kelsey, 33 La. Ann.

**112**.: _Nevth Carolina:_ Sibley v. Glimer, 124 N.

**113**.: _Nevth Carolina:_ Sibley v. Glimer, 124 N.

**114**.: _Nevth Carolina:_ Sibley v. Glimer, 124 N.

**115**.: _Nevth Carolina:_ Sibley v. Glimer, 124 N.

**C. 631;** Cox v. Hoffman, 20 N. C. (3 Dev.

**& B.) 319**.: _Nevth Carolina:_ Sibley v. Glimer, 124 N.

**C. 631;** Cox v. Hoffman, 20 N. C. (3 Dev.

**& B.) 319**.: _Nevth Carolina:_ Sibley v. Glimer, 124 N.

**116**.: 3 Cur. Law. AGENCY IMPLIED FROM RELATION SS 12.

band is on the person relying upon the alleged authority,\[90\] and the question whether or not there was such an agency is one of fact for the jury.\[61\]

SS 11. \_Married woman doing business in her own name.--\_At common law, if a married woman carries on a business in her own name with her husband's consent, it is considered that the business is his and the wife his agent, and he is presumptively bound by her contracts in reference thereto,\[62\] unless it appears that the credit was given exclusively to her.\[63\] But in most jurisdictions this doctrine has been changed by statute, so that a husband is not liable for debts contracted by his wife in carrying on a business on her own account,\[64\] unless contracted upon his credit, with his knowledge and consent.\[65\] In some jurisdictions in order that the husband may be relieved from liability on contracts in relation to her separate business, it is required that a certificate shall be filed, setting forth the name of her husband, the nature of the business proposed to be done, and the place where it is to be done.\[66\]

SS 13. \_Implied agency of wife in matters pertaining to the household.--\_In the absence of evidence to the contrary, if husband and wife are living together and maintaining a home, or if they are living under the same roof, although they may be living separate,\[67\] it is presumed that the management of the ordinary domestic affairs of the household is intrusted to the wife, and she has implied authority to purchase on his credit, such provisions, clothing, and other articles, as may be necessary or suitable for the family, taking into consideration their style of living sanctioned by him.\[68\] And in like manner, the husband is bound,

59. Debenham v. Mellon, 5 Q. B. Div. 403, 455; Trieber v. Stover, 30 Ark. 127; Haight v. McVeagh, 69 Ill. 624; Jaycox v. Wing. 60. Phillips v. Sanchez, 85 Fla. 187; 66 Ill. 182; Colby v. Lamson, 39 Me. 119; Compton v. Bates, 10 Ill. App. 78.

01. Debenham v. Mellon, 6 App. Cas. 31; V. Meyer, 43 Miss. 679.

Lane v. Ironmonger, 13 Mees. & W. 368; Reid v. Tenable, 13 C. B. 627; Freestone v.

66. Oxnard v. Swanton, 39 Me. 125.

Butcher, 9 Car, & P. 643; Phillips v. Sanchae, 85 Fla. 187; Castel v. Castel, 5 Blacker. (Ind.) 240, 44 Am. Dec. 763; Jones v. Wochex.

90 Ky. 230; Roberts v. Hartrod, 86 Me. 460; Jones v. Gutman, 88 Med. 355; Hart v. Young, 1 Mass. (N. Y.) 417.

62. Phillipson v. Hayter, L. R. 6 C. P. 38; Petty v. Anderson, 3 Bing. 170; Godfrey v. Brooks, 5 Har. (Del.) 386; Jenkins v. Flinn, 87 Ind. 352; Jones v. Wochex, 90 Ky. 230; Knowles v. Hill, 99 Mass. 652; Curtis v. Engel, 2 Sand. Ch. (N. Y.) 287; Cropsey v. McKinney, 80 Barb, (N. Y.) 47; Boas v. Malone, 140 Pa. 572; Mackinley v. McGregor, 8 Whart. (Pa.) 389, 31 Am. Dec. 523; Foulas v. Curletlet, 21 U. C. C. P. 368; Halpens, v. Pennock, 83 U. C. Q. B. 229. See, also, Palen v. Lent, 5 Boasv. (N. Y.) 718; Rotch v. Miles 2 Conn. 638.

01. Bentley v. Griffin, 5 Tautaut, 356; Ex parte Shepherd, 10 Ch. Div. 573; Jenkins v. Film, 37 Ind. 352; Weisker v. Lowenthal, 81 Md. 413; Tuttle v. Hoag, 46 Mo. 42, 8 Am. Rep. 481; Swett v. Prentice, 24 Miss.

416; Mackinley v. McGregor, 3 Whart. (Pa.) 369, 31 Am. Dec. 523; Noble v. Kreuzkamp, 111 Pa. 68; Thompson v. Hibberd, 4 THil. (Pa.) 190; Moses v. Fogartie, 2 Hill, Law (S. C.) 335; Hoppek v. Hartby, 7 Bart. (Techn.) 411. Compare Krouskov v. Shontz, 51 Wis. 204, 37 Am. Rep. 817; Carreau v. Chapotel, 45 La. Ann. 850.

64. See Laws N. Y. 1896, c. 272, & 25 (former provision Laws 1860, c. 90, & 8); Gillies v. Lent, 3 Abb. Pr. (N. S.; N. Y.) 78; Gotts v. Clark, 78 Ill. 229; War on the ground of agency, by the declarations of the wife in relation to the ordinary affairs of the household." It would seem clear, however, from the reason on which this rule is based, that it does not apply where husband and wife, although they may cohabit, do not maintain a house." But the common law, as to the agency of the wife binding the husband in ordinary domestic affairs becomes unimportant when by statute both husband and wife are made responsible for family expenses."

The implied authority of the wife under this doctrine extends to the purchase of such articles only as are necessary or suitable for herself and the family, taking into consideration their station in life and their style of living. It does not extend to the purchase of articles which have no relation to the household, or are unsuitable to the husband's style of living, or to purchases which are clearly extravagant or excessive." A wife has no implied authority to bind her husband by a purchase of jewelry which is unsuitable to their station in life," if, indeed, she has implied authority to purchase jewelry at all on his credit." The presumption that a wife has authority to bind her husband by the purchase of articles for domestic use, and in other matters pertaining to the affairs of the household, is a presumption of fact and not a conclusive presumption of law, and may be rebutted by showing that there was no authority in fact," provided, of course. the husband is not estipped by having clothed the wife with apparent authority. The husband is certainly not liable for articles purchased by his wife on his 3 Cur. Law. AGENCY IMPLied FROM RELATION SS 13. 115 credit contrary to his prohibition, if the person dealing with her had notice of the prohibition,16 unless the articles are necessaries and he has neglected his duty to provide them, as will be hereafter explained, the burden of proving which is on the person furnishing the articles. The mere fact that a husband's prohibition to his wife to deal on his account is not communicated to persons with whom she subsequently deals does not render the husband liable to such persons.17 But it is otherwise if he has previously permitted her to purchase goods on his credit, and tradesmen deal with her without notice that her authority has been revoked.17 The husband is not liable, in the absence of authority in fact, and in the absence of elements of estoppel, if he has supplied his wife with all necessary and suitable articles, or with sufficient money to purchase them.78 Nor can the husband be held personally liable 'for necessaries which she has expressly bought on her own credit, although they are such as she might have bought on his credit, and charged him with.

SS 13. _Wife's implied authority to procure necessaries on husband's failure to supply them. In general._--To the rule that a wife is not the agent of her husband merely by virtue of the marriage relation, so as to have implied authority to bind him by contract, there is a well settled exception with respect to the purchase of necessaries in case of the husband's neglect to support the wife. If a husband deserts his wife or turns her away without cause, or drives her away by his ill-treatment or misconduct, or if, although they may be living separate by mutual consent or may be living together, he fails to provide her with necessaries for herself and her children by him, she has implied authority to procure the same on his credit, and to bind him to pay for them. Her agency in this respect is said to arise from necessity, and is not at all dependent upon the husband's consent. It exists even though he may forbid her to purchase, and though the persons from whom she purchases may know of his want of consent, because of the fact that a husband is under a legal duty to support his wife, and the law implies authority on the part of the wife, and imposes liability on the part of the husband, by reason of this duty.80 The husband cannot escape liability under such 116 AGENCY IMPLIED FROM RELATION SS 13. 3 Cur. Law. circumstances by showing that he gave to the person furnishing the necessaries notice that he would not be responsible." And if he refuses to permit his wife to live with him, he cannot relieve himself from liability for her maintenance and support by showing that he procured board and lodging for her with a person with whom she refused to live, as where she is thus turned away she may procure necessaries from whomsoever she pleases, so long as the place selected by her is respectable and the expense thereof does not exceed proper limits, considering the husband's financial condition."

This implied authority of the wife to bind the husband for necessaries exists notwithstanding the fact that the wife has a separate estate, for this does not make it any the less the duty of the husband to support her." In some decisions, however, it is held that if the wife has an adequate means of support, or receives an adequate maintenance from some source, she cannot procure necessaries on the credit of her husband though she is living separate from him for a justifiable cause, and he neglects to support her." The husband is liable for necessaries so furnished to a wife, notwithstanding statutes giving a married woman the capacity "o contract generally or in reference to her separate estate," unless the wife in fact "contracts for herself. And the principle applies although the husband is a minor, Texas: Black v. Bryan, 18 Tex. 453. Vermont: Roberts v. Kelley, 51 VT. 97: Indiana: Watkins v. De Armond, 89 Ind. 553: Eller v. Crull, 89 Ind. 375: Arnold v. Brandt, 16 Ind. App. 169.

Iowait Tibetts v. Wadden, 94 Iowa, 173: Descelles v. Kadmus, 8 Iowa, 51. And see Deveroord v. Emerson, 66 Iowa, 698.

Kentucky: Billing v. Pilcher, 7 B. Mon. N. H. 478, 80 Am. Dec. 120, and other cases cited in the note preceding.

134 Mass. 415: Earnes v. Sweetger, 101 Mass. 78; Prescott v. Webster, 175 Mass. 316.

Kaynes v. Bennett, 114 Mass. 428: Carr.

Wright v. Bate, 1 Allen, 514, 79 Am. Dec. 175: Hall v. Velr, 3 Allen, 261; Mayhew v. Tanner, 8 Gray, 172.

Minescuat: Bergh v. Warner, 47 Mlnn.

250, 88 Am. St. Rep. 342: Ollman Y. Yost, 816.

62 Mlnn. 261: Kirk v. Chinstrand, 85 Mlnn.

108; S. E. Olson Co. v. Youngquist, 76 Mlnn.

26.

Mississippi: East v. King, 77 Mlss. 738.

Missouri: Sauter v. Scotthefield, 28 Mo.

3-Car. & P. 15: Dixon v. Hurrell, 8 Car. & App. 160: McKinney v. Guhman, 38 Mo. App. 181: MacElmoy v. Gubman, 38 Mo. App. 182: Ollman y. Wordt, 9 Best & S. 893: 344; Reed v. Crisssey, 63 Mo. App. 185.

Nebraka: Belknap v. Stewart, 38 Neb.

304, 41 Am. St. Rep. 729.

New Hampshire: Ferren v. Moore, 59 N. (Del.) 385. But a preexisting income is not H. 106: Allen v. Aldrich, 29 N. H. 63; Rum. supflict, Thompson v. Herrey, 4 Surrow, 2177. And see Lockwood v. Thomas, 12 42 N. H. 478, 80 Am. Dec. 120; Ott v. Hentall, 14.

70 N. H. 231.

New Jersey: Yusler v. Cox, 53 N. J. Law, 94.

616: Snover v. Blair, 26 N. J. Law, 94.

New York: Baker v. Barnes, 3 Johns, 12.

9 5 Am. Dec. 326: Lockwood v. Thomas, 12.

Johns. 248: Cromwell v. Benjamin, 41 Barb.

658: Comstock v. Green, 88 Hum. 64; Ray.

mond v. Cowdery, 19 Mlse. 34: Hardy v.

662: Eagle, 23 Mlse. 441.

Pennysrykmala: Cany v. Patton, 2 Ashm.

140: Hults v. Gbbbs, 66 Pa. 380: Liewelny v. Levy, 163 Pa. 647: Moore v. Copley, 165 Pa. 294, 44 Am. St. Rep. 664.

Rhode Island: Anthony v. Phillips, 17 R.

684: Cook v. Lizon, 54 Mlss. 388; Ott v.

South Carolina: Clement v. Mattison, 3 Hontali, 70 N. H. 231: McMillan v. Auerback, Rich. Law, 93.

3 Cur. Law. AGENCY implied from RELATION SS 13. 117

for a minor may bind himself by a contract to pay for necessaries furnished to himself or his wife and children.88 The principle applies only when necessaries are in fact furnished the wife. He is not liable, unless agency in fact on the part of the wife is shown, for breach of a contract to purchase necessaries.89 In order that a husband may be bound by his wife's purchase of necessaries, she must act for him in making the purchase. He is not bound if the credit is given to her individually. Where a wife lives with and is supported by her father, the law will not imply a promise on the part of the husband to pay the father for the support, unless there is something to show that payment was expected and intended, for the relationship of parent and child excludes the ordinary implication.88 But a husband has been held liable for necessaries furnished his wife, after her desertion by him, by her son by a former marriage,89 or by her mother.89

\_Effect of separation of husband and wife, abandonment, desertion, etc. Separation by agreement. Allowance.--\_The fact that a husband and wife are living separate and apart by mutual consent or agreement does not take away her implied authority to bind him for necessaries, if he fails to provide them, and has not made her an adequate allowance for her support.91 He is not liable, however, if he makes her an adequate allowance, and pays the same, and tradesmen who furnish her with articles after the separation act at their peril.89 Some of the courts, but not all, have held that the husband is not liable in such a case, even though the person furnishing the necessaries may have had no notice of the separation and allowance.88

86. Chapple v. Cooper, 13 Mees, & W. Ver v. Cope, 2 Car, & K. 437; Emmett v. Norfiee v. Trussby, 1 Strange, 168; Canton, 8 Car, & P. 506; Mizen v. Pick, 3 Mees. & W. 481; Negus v. Forster, 46 Law T. (N. People v. Moores, 4 Denio (N. Y.) 201; Chap- 8), 675; Burrett v. Booty, & Taunt 343; Malman v. Hughes, 61 Miss. 339; Dunbar v. Majerv, 43 Miss. 684; Price v. Sanders, 60 Ind. 310. 87. Sutter v. Muston, 56 Ga. 242. 88. Cantine v. Phillips Adm?, 5 E Har. (Del.) 428. Compare Bliddle v. Frazer, 8 Houston. (Del.) 288; Watkins v. De Armond, 89 Ind. (N. Y.) 34; Fiedd v. Pareson, 20 Grant Ch. 615. Where a husband took his wife to her father's house and left her there till she obtained a divorce, he was held liable to her father for her board while there, without any express contract between them, notwithstanding the fact that the defend-ant paid his wife an agreed sum, in lieu of alimony, upon her proceedings for divorce. Burkett v. Trowbridge, 61 Me. 251. 89. Eiler v. Crull, 99 Ind. 376. 90. East v. Kling, 17 Miss. 788. 91. Dixon v. Hurrell, 8 Car, & P. T17; Emmett v. Norton, 8 Car, & P. 506; John-son v. Summer, 3 Hurl. & N. 261; Pearson v. Darrington, 32 Ala. 243; Seybold v. Morfiee, 69 Jan. 43 Ill. App. 39; McCarv, 89 Lim. App. 232; Schunck v. Bierman, 89 III. 464; Mayhew v. Thayer, 8 Gray (Mass.) 172; Oltiman v. Tost, 62 Minh. 261; McKinney v. Gohman, 38 Mo. App. 344; Beklano v. Stewart, 88 Ned. 304, 41 Am. St. Rep. 729; Town of Rumney v. Keyes, 7 N. F. 571; V'usvalv r. Cox, 53 N. J. Law, 516; Baker v. Parney, 8 Johns. (N. Y.) 7, 6 Am. Dec. 386; Lockwood v. Thomas, 12 Johns. (N. Y.) 248; Raymond v. Cowdry, 19 Mine. (N. Y.) 34; Cany v. Patton, 2 Zahm. (Pa.) 140; Frost v. Lindsay, 12 U. C. 2 3Ahm. (Pa.) 144; Contra, Rawlings v. Van-C. p. 414. 92. Ravlyn s. Vandyke, 8 Esp. 150; Hodgkinson v. Fletcher, 4 Camp. 70; Hold-son v. 70; Hold-son v. 71; Hold-son v. 72; Hold-son v. 73; Hold-son v. 74; Hold-son v. 75; Hold-son v. 76; Hold-son v. 77; Hold-son v. 78; Hold-son v. 79; Hold-son v. 70; Hold-son v. 71; Hold-son v. 72; Hold-son v. 73; Hold-son v. 74; Hold-son v. 75; Hold-son v. 76; Hold-son v. 77; Hold-son v. 78 118 AGENCY IMPLIED FROM RELATION SS 13. 3 Cur. Law.

In order that a husband may be relieved from liability for necessaries furnished his wife because of having made her an allowance, the allowance must have been paid. A mere unperformed agreement to pay is not enough." And the allowance must have been adequate, taking into consideration the station in life of the parties, and the means of the husband," unless the wife has agreed to accept the allowance as sufficient, in which case she must repudiate the agreement, and offer to return to him, before she can bind him by purchase of necessaries."

\_Husband's desertion of wife.--\_If a husband deserts or turns away his wife without sufficient cause, and without an adequate provision for her support, she clearly has implied authority to purchase necessaries on his credit and bind him to pay for them. But this does not apply where a husband leaves his wife or turns her away for sufficient cause, as because of adultery" or extreme cruelty." Nor does the rule apply where the husband, after deserting or driving away the wife without sufficient cause, offers to return or take her back, and she rejects the offer," unless it appears that the offer was not made in good faith, or was accompanied by conditions which he had no right to impose, or that the wife had sufficient cause for rejecting it.1

\_Husband's insinity.--\_The fact that a husband is insane, and confined in an asylum or elsewhere, does not affect the wife's right to support, and if no provision is made for her support out of his estate, she has the same implied authority to bind him for necessaries as if he were sane and failed to furnish her adequate support.2

\_Wife's abandonment of husband.--\_If a wife leaves her husband without his consent and without sufficient cause, she has no implied authority to bind him even for necessaries, for under such conditions there is no duty on the part of the husband to support her." By the weight of authority, a tradesman who supplies

Footnote 18: AGENCY IMPLIED FROM RELATION SS 13. 3 Cur. Law.

Iice. Tod v. Stokes, 12 Mod. 244; Baker v.

him from liability for necessaries after-Barney, 8 Johns. (N. Y.), 73, 5 Am. Dec. 256;

wards furnished her, where she acted in Le Boutilier v. Fiske, 47 Hun (N. Y.) 324.

good faith, after having been turned away As we shall see in another section, where by him without cause, and in the belifc. a husband allows his wife to purchase goods

intentionally Induced by him, that he was on his credit, or otherwise holds her out as

dead. Cartwright v. Bate, 1 Allen (Mass.) having authority, and then separates from

514. 79 Am. Dec. 759.

her and makes her an allowance, he will

Busburger v. Richards, 65 N. H. 185. A

be stopped to deny the continuance of her

husband is none the less liable for necess-authority as against tradesmen who consarries furlished his wife after a separation through his fault, because she and the notice of the changed conditions. "But if, though a tradesman, he had never been so

abduct his minor child with a view to comathorized to give credit to the wife, but merely knew, as any one else knew, that

on her. Burlen v. Shannon, 14 Gray (Mass.)

the two were living together as man and

43.

wife, then there is no duty on the husband

to give notice to him of the separation."

Walls v. Biddick, 28 Vlky. Rep. 76.

94. Hodgkinson v. Fletcher, 4 Camp. 70;

01. Varje. Z Bes. & P. 145; Beale v.

Arabin, 36 Law T. (N. S.) 249; Baker v.

Barney, 8 Johns. (N. Y.), 72, 6 Am. Dec.

326; McKinney v. Guhman, 38 Mo. App. 447.

95. Dixon v. Hurrell, 8 Car. & P. 717;

Holder V. Cope, 2 Car. & K. 437; Hodgkinson v. Fletcher, 4 Camp. 70; Baker v.

son v. Fletcher, 4 Camp. 70; Baker v.

son, 14 C. B. (N. S.), 835; Mayhew v. Thayer,

8 Gray (Mass.) 172, and other cases cited in note, supra.

96. Bihm v. Bignell, 7 Hurl. & N. 877;

Bastland v. Burchell, 3 Q. B. Div. 432; Alley v. Winn, 134 Mass. 71, 45 Am. Rep. 297.

97. Gill v. Read, 6 T. & 344, 73 Am. Dec. 173. A bigamous marriage by a wife, and

her conviction there, does not justify

her husband in casting her off, or relieve

118 AGENCY IMPLIED FROM RELATION SS 13. 3 Cur. Law.

In order that a husband may be relieved from liability for necessaries furnished his wife because of having made her an allowance, the allowance must have been paid. A mere unperformed agreement to pay is not enough." And the allowance must have been adequate, taking into consideration the station in life of the parties, and the means of the husband," unless the wife has agreed to accept the allowance as sufficient, in which case she must repudiate the agreement, and offer to return to him, before she can bind him by purchase of necessaries."

\_Husband's desertion of wife.--\_If a husband deserts or turns away his wife without sufficient cause, and 3 Cur. Law. AGENCY IMPLIED FROM RELATION SS 13.11

the wife with necessaries under such circumstances cannot hold the husband liable, even though he may have had no notice of the separation,4 unless he can make out an estoppel against the husband by showing that he had allowed the wife to make such purchases before the separation, and thus clothed her with apparent authority to make the purchase in question.s

A wife does not abandon her husband, so as to render this rule applicable, where she has sufficient cause for leaving him, as in the case of adultery on his part,6 or conduct amounting to what the law regards as cruel treatment.7 And in such cases the husband is liable for necessaries furnished her, even though he may have given notice before they were furnished that he would not be responsible.8 The wife must have left the husband because of his misconduct, and not from some other and insufficient cause.9 She is not justified in leaving, so as to carry with her implied authority to bind him for necessaries, merely because of quarrels, disagreements, and difficulties, not amounting to cruel treatment.10

.258: Harttmann v. Teegart, 13 Kan. 177; Iing v. Pilicher, 7 B. Mon. (Ky.) 458, 46 Am. Peaks v. Mayhew, 94 Nc. 511; Benjamin v. Dee. 523; Thorpe v. Shapleigh, 67 Nc. 235; Dockham, 132 Mass. 181; inhabitants of Francock, 13 Cush. (Mass.) 41; Sturbridge v. Franklin, 160 Mass. 149; Reese Reynolds v. Sweester, 15 Gray (Mass.) 78; v. Chillon, 26 Mo. 588; Rutherford V. Coxe, Mayhew v. Thayer, 8 Gray (Mass.) 172; 11 Mo. 349; Balkenv, 3 Stewart, 38 Nc. 304, Ott v. Hennl, 70 N. H. 231; Allen v. Ald-41 Am. Ed. Rep. 729; Allen v. Aldrich, 89 Rich, 29 N. H. 63; Shover v. Blair, 25 N. J. N. H. 63; Bluvers v. Sturtevant 4 D Denthe Law, 94: Comstock v. Green, 88 Hun (N. . (N. .) 46; Catlin v. Martin, 69 N. Y. 393; T.) 64; Pomeroy V. Wells, 8 Paige (N. Y.) Bostwick v. Brower, 82 Mige. (N. Y.) 406; Hultz v. Gibbs, 66 N. 860; Com. v. Monroe County Surp's W. Buding, 51 Barb. Wall, 4 Pa. Dist. 826; Clement v. Mat. (N. Y.) 493: Lippincott's Estate, 19 Phila. (Pa.) 142; Williams v. Prince, 3 Strob. (S.) 93; Griffith v. C.) 490; Brown v. Patton, 3 Khump, (Tenn.) 10 Ont. Pr. Rep. 801. Birmingham a prostitute 186; Morgan v. Hughes, 20 Tex. 141; Cline 1

into the house, or threatening to confine the v. Hackham, 27 Tex. Civil. App. 891; Thorpe wife n a mathouse, is equivalent to turning her away, and justifies her in leaving.

40 Vt. 68: Sturtevant v. Starin, 19 WIs. 269. Houston V. Smyth, 2 Car & P. 22, 3 Bing. But the husband may be liable by reason 127; Tempany v. Hakewili, 1 J Fost. & F. of an expres promise, or by reason of a promise implied from acts on his part war-

has implied authority to pledge his credit rating the inference of agreement in fact.

Brown v. Patton, 3 Khump. (Tenn.) 135; Cactil v. Martin, 69 N. Y. 393, and see other

does his wife's adultery, and then turns

cases cited supra this note. Where a per-

son furnishes necessaries, during divorce proceedings, to her niece who secured a

divore on the ground of extreme cruelty, 8. Wilson v. Glossop, 20 Q. B. Div. 354,

and it appeared from letters that the niece left her husband for the purpose of procurring a divorce and marrying another man,

4 Esp. 41; Sykes v. Halatefi, 1 Sandt. (N. 7), 483; Watkins v. De Armond, 89 Ind.

tification and the former husband was not

1 Habie for the necessarles so furnished. Correj, 105 Mich. 363.

4. McCutchen v. McGahay, 11 Johns. (N. Y.) 281, 6 Am. Dec. 373; Vusler v. Cox, 53

N. J. Law, 518; Reese v. Chillon, 26 Mo.

589: Sturtevant v. Starin, 19 WIs. 269. And

see Day v. Wamsley, 33 Ind. 145.

5. Harlein v. Ruebsman, 19 Misc. (N. Y.) 149: Anthony v. Phillips, 17 R. L 188.

1. Sykes v. Halatefi, 1 Sandt. (N. Y.) 483.

The rule that a wife who has left her husband without cause and without his consent cannot bind him for necessaries does not apply where the separation is involuntary on the part of the wife, and without her fault, or even where it is due to her fault, if it is through operation of the law, as in case of her conviction and imprisonment for a crime.\[11\] Nor does the rule apply, even where the separation was voluntary on the part of the wife, and without sufficient cause, where she has returned to her husband, or has in good faith offered to return and been refused.\[12\]

\_Wife's adultery.--\_A husband is not liable for necessaries furnished his wife after she has committed adultery and eloped, whether the person supplying her with necessaries knows of the circumstances of the separation or not.\[13\] And the same is true where the wife has been left or turned away by the husband for adultery,\[14\] or where she has committed adultery after having been turned away or deserted by the husband without cause, or after having separated from him with his consent, or for sufficient cause.\[18\] But if the husband condones the adultery and receives the wife back, and afterwards turns her away or leaves her without new cause, he will be liable for necessaries subsequently furnished her.\[16\]

\_Necessity for a valid marriage.--\_This rule applies, not only where the parties are legally husband and wife, but also where a man has lived with a woman and held her out as his wife, without being legally married to her, or without having gone through any form of marriage at all, provided the person furnishing the necessaries relies on the express or implied representation of the man, and believes that the woman is his wife.\[17\] But the rule does not apply where the person furnishing the necessaries knows that there has been no marriage, or where although he may not know this, he has not been misled by any conduct on the part of the man.\[18\] Of course a man may make such woman his agent for the purpose of purchasing necessaries, by expressly authorizing her to do so or by holding her out as having such authority, even though the tradesman knows that there is no valid marriage. In such case the same rules would apply as in the appointment of any other agent.

\_Effect of annulment of marriage or divorce.--\_A husband is under no duty to provide for his wife after a valid divorce a vinculo matrimonii, or after an 3 Cur. Law. AGENCY IMPLIED FROM RELATION SS 13. 131

annulment of the marriage, and cannot be held liable for necessaries furnished to her thereafter.10 But of course, a liability for necessaries furnished cannot be affected by a subsequent divorce or annulment of the marriage. When a wife is granted a divorce a mensa et thoro, with a provision for alimony, and the husband fails to pay the alimony, he will be liable for necessaries furnished her during the period of such neglect.20

\_Pendency of proceedings for a divorce.--\_The mere pendency of proceedings for a divorce, either by the husband or by the wife, does not relieve the husband from his duty to support the wife, and he will be liable, as in other cases, for necessaries furnished her pending such proceedings,21 unless the court has made an allowance of alimony to the wife for her maintenance pending the suit, and it is paid by the husband.22 The allowance of alimony, either temporary or permanent to the wife, does not relieve the husband from liability for necessaries furnished before such allowance, although after commencement of the suit.22

\_What are "necessaries" for which the husband is liable.--\_The term "necessaries," within the meaning of the rule under consideration, includes necessary food, drink, and clothing.24 medicines, and medical attendance or advice, and nursing,25 a suitable lodging or other place of residence,26 services of domestic suitable to the husband's and wife's condition in life,27 etc. The term is not limited to such things as are absolutely essential to sustain life, but includes such as are necessary and proper to support the wife in accordance with the rank or position in life and the estate of the husband, and the style of living and position in society into which he has introduced her, or which he has allowed her to assume.28 It follows that for the purpose of determining whether particular articles

19. Anstey v. Manners, Gow, 10. 499; Bervier v. Galloway, 71 III. 517; W11-20. Hunt v. De Blaqulere, 5 Bing. 550. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 59.

123 AGENCY IMPLIDED FROM RELATION SS 13. 8 Our Law.

or a particular residence furnished to a wife were necessaries, it is proper to prove and to take into consideration the husband's style of living,28 his wealth and income, or capacity to earn money," the character and cost of clothing which he had previously allowed the wife to purchase on his credit,21 the style of living in the society in which he has introduced her or allowed her to appear,28 etc. In some of the cases it has been said that the question depends upon the condition in life and position of the wife.28 But the better opinion and weight of authority is that it depends upon the condition of the husband, as well as the wife,--upon the condition in life of both.24

The term "necessaries" does not include a pew in a place of worship, and a wife cannot bind her husband to pay rent for the same without his consent.29

Nor does the term include money, as such, loaned to the wife. At common law, the husband cannot be held liable therefor, even though it may be shown that the money was intended and in fact used for the purchase of necessaries.29 In equity, however, according to the weight of authority, where money is advanced to a wife for the purchase of necessaries, on her husband's credit, and under such conditions that she would be authorized to purchase necessaries on his credit, and is properly applied for such purpose, the lender, by application of the equitable doctrine of subrogation, may recover from the husband to the extent to which the money is so applied.21

v. Hoadley, 16 Conn. 535; Ray v. Adden, 50 purchased by the wife, although of the N. H. 82, 9 Am. Rep. 175; Bergh V. Warner, 47 Minn. 250, 28 Am. St. Rep. 362; Sauter him liable upon this ground, the goods actu- v. Serrutchled, 28 Mo. App. 150; Keller v. ily purchased must be needed by the wife Phillips, 39 N. Y. 351; Clark v. Cox, 32 Mich. 204. A horse purchased by a wife (this instruction, were to determine whether to be used by her in a business conducted the goods were necessary and suitable by on her own account is not a "necessary" the standard alone of the wife's position in for which the husband can be held liable. Ife. It was held in Manby v. Scott, 1 Sld. Palmer v. Coghlin (Tox. Chy. App.) 55 S. 189, that "the estate and degree of the husband should be considered upon this question, a rule which has not, so far as we fast horses. Raynes v. Bennett, 114 Mass. 428. 35. St. John's Parish v. Bronson, 40 Conn. 15, 16 Am Rep. 17. 36. Clark v. Cox, 32 Mich. 204. The pub- 36. Knox v. Bushell, 5 C. B. (N. S.) 334: terly on which. taxes are assessed against the husband, are not admissible for this purpose. Raynes v. Bennett, 114 Mass. 427. 38. Raynes v. Bennett, 114 Mass. 428. 38. Skinner v. Tirrell, 159 Mass. 474, 38 Am. St. Rep. 447; Anderson v. Cullen, 16 Daly (N. Y.) 16; Schwarting v. Tisland, 4 Mass. (N. Y.) 534; Walker v. Simpson, 77 Watts & S. (Pa.) 83, 42 Am. Dep. 216; GMI 34. Compton v. Bates, 6 D1 III. App. 78; Wilcoxon v. Read, 95 Ill. App. 83; Keller v. Phillips, 39 N. Y. 354; Clark v. Cox, 32 Mich. 204; Bergh V. Viterwald 47 Minn. 250, 28 Am. St. Rep. 362; Barr v. Armstrong, 56 Mo. 677; Ott v. Hemital, 10 N. H. 231. 11. Compton v. Bates, 10 Ill. App. 85, Pillsbury, J., in deciding upon an instruction given in the lower court says. "This instruction only requires the goods purchased to be of a character necessary and suitable to the position in life of the wife. If, as it would seem, this instruction was intended to state the rule of the liability of the husband growing out of the necessities of the wife, then it extends the liability of the husband beyond what we had supposed it to be. If the wife has been provided with necessaries suitable to the condition in life of the parties and the estate of the husband, then, as we have seen, the husband is not liable for other goods that may be

**3**: Cur. Law. AGENCY IMPLied FROM RELATION SS 13. **123**

Under a statute making both husband and wife liable for expenses of the family, the term "expenses of the family" is not synonymous with "necessaries," which may be personal and individual, and does not include an article which in no way conduces to the welfare of the family.${}^{ t 38}$

Whether a husband is liable for legal services rendered for his wife on his credit, on the ground that they were necessaries, depends upon the circumstances. Legal services rendered at the request of a married woman in relation to her estate are certainly not necessaries, and the husband cannot be made liable therefor without his consent. It is otherwise, however, in the case of services of an attorney or counsellor at law which are necessary to procure for a wife such sustenance or protection as the husband is under a legal duty to afford her, or which are necessary to protect her against wrongs on the part of the husband. Thus it has been held that a husband is liable for legal services rendered in defending a criminal prosecution against his wife,${}^{ t 39}$ particularly when the services are in defending a groundless charge made against her by the husband,${}^{ t 40}$ or a charge based upon acts done by her with the concurrence of her husband.${}^{ t 41}$ It has also been held that a husband is liable for legal services rendered for his wife, in order to protect her against him, by having him bound over to keep the peace, etc.,${}^{ t 42}$ unless there is no ground for the proceedings;${}^{ t 48}$ for services in prosecuting proceedings by the wife against the husband for restitution of conjugal rights, or to compel him to support her;${}^{ t 44}$ or in prosecuting against the husband a suit for a divorce a mensa et thoro, if there were seasonable grounds therefor,${}^{ t 48}$ but not otherwise.${}^{ t 48}$ It is held in England that a wife may bind her husband to pay the fees and disbursements of her solicitor in a suit for a dissolution of the marriage.${}^{ t 47}$ In this country, however, the decided weight of authority is to the effect that the services of an attorney or solicitor for a wife in a suit for annulment of the marriage or for a divorce a vinculo matrimonii are not necessaries, and that the wife cannot bind the husband to pay therefor, whether the suit is brought by the wife,${}^{ t 48}$ or by thehusband.40 But certainly the husband would not be liable for legal services rendered to his wife, where she is living apart from him by reason of her own adultery.50

Where a wife purchases on her husband's credit some goods which are necessary, and others which are not, either by reason of their character or quantity, the husband is liable for the former.61 But where the articles furnished are not necessaries, the husband cannot be held liable for the whole, or for a fractional part thereof, on the ground that they might have answered the purpose of other articles which would have been necessaries.52

_Wife's funeral expenses.--A husband is liable at common law, on implied contract, for his wife's burial expenses,53 but this, of course, is not on the theory of the wife's agency for the husband._

\_Presumption and burden of proof as to necessaries.--When a husband has forbidden tradesmen to supply his wife with articles on his credit, this, as we have seen, does not prevent a tradesman from furnishing her with necessaries, if the husband fails to perform his duty in supplying them. But a tradesman who furnishes her with articles after such prohibition acts at his peril, and in order to hold the husband liable, he has the burden of proving not only that the articles furnished were properly necessaries, but also that the husband had neglected his duty, so as to give the wife the implied authority to purchase on his credit without his consent.54 As we have seen, where a husband and wife are living together there is a presumption that she has implied authority, as a matter of fact, to purchase on his credit necessaries for the household, unless he has forbidden it, and the prohibition is brought to the notice of tradesmen. But there is no such presumption where the wife is living separate from her husband. In such a case tradesmen supplying her with necessaries have the burden of proving that the circumstances were such as to authorize her to bind him.55 They have the burden

she can command no means of paying the agents who are necessary to the conduct of the suit. Therefore, it is that, quoad hoc, she may charge the common funds of her-self and husband in his hands. But as this power on her part is founded on the neces-sity of the case, so its extent does not exceed the demand of the necessity; and there-fore she can charge the common funds (or her husband, which is the same thing in effect) only with the real value of such services as she may procure, and not with the price which she may fix on them by iter contract. Upon these views is found ed the constant practice of the court in granting alimony to the wife during the pending of her suit for divorce, and in embrading her counsel fees in the allowance. It is worthy of remark that her counsel fees are allowed as a part of her necessary maintenance, and are allowed before it Y.). Assetzant whether she has a valid ground for a divorce or not." And see Glenn v. Ethil, 60 Ga. 94. In Texas, it is held that the husband is liable for reasonable attor-ney's fees incurred by his wife in the prosecution of a suit for divorce, only where it is shown that the suit was investigated by the wife in good faith and upon reasonable grounds. Dodd v. Eth, 26 Tex. Civ. App. 164, 62 S. W. 811; Ceccato v. Deutschman, 19 Tex. Civ. App. 434.

49. Cooke v. Newell, 40 Conn. 596; McCullough v. Robinson, 2 Ind. 630; Coffin v. Dunham, 8 Cush. (Mass), 404, 54 Am. Dec. 1969: Ray v. Adden, 50 N. H. 82, 9 Am. Rep. 175: Wing v. Huriburt, 15 Vt. 607, 40 Am. Dec. 695. Contra, Porter v. Briggs, 38 Iowa, 166, 18 Am. Rep. 27; Gossett v. Patten, 23 Kan. 340.

01. Peaks v. Mayhew, 94 Me. 571.

01. Eames v. Swerester, 101 Mass. 78; Rob-erts v. Kelly, 61 Vt. 97.

01. Thorpe v. Shnplegh, 67 Me. 235.

01. See 15 Am. & Eng. Enc. Law, 880; Cunningham v. Teardon, 98 Mass. 538, 96 Am. Dec. 670; Gleason v. Warner, 78 Minn.

01.

01. Etherington v. Parrot, 1 Salk, 118; Hikler v. Thomas, 99 Ill. App. 355; Bergh v. Warner, 47 Minn. 250, 28 Am. St. Rep. 362: Woodward v. Barnes, 43 Vt. 330; Barr v. Armstrong, 56 Mo. 677; Mott v. Comstock, 8 Wend, (N. Y.) 544; Keller v. Phillips, 89 N. Y. 351; Therott v. Bagloil, 9 Bosw. (N. N.) 578. And see McGrath v. Donnelly, 131 Pa. 551. Where a husband notifies a merchant not to sell goods on credit to lhs while and he is subsequently sued for goods sold to her after such notice, the burden is upon the husband. first, to establish his notice, and having done so, it shifts upon the merchant to show that the husband failed to furnish the necessary and suita-ph support to his wife and family. Hikler v. Thomas, 99 Ill. App. 355.

01. Johnston v. Sumner, & Hurl, & N. 261; Walker v. Simpson, 7 Watts & S. (Pa). 83, 42 Am. Dec. 216; Gill v. Read, 3 Cur. Law. AGENCY IMPLIDED FROM RELATION SS 13.125

of proving, when the wife has left the husband, that she left him with his consent or for sufficient cause.36 Where the husband has made his wife an allowance, one who furnishes her with necessaries has the burden of proving that it was not paid, or was inadequate.37

Footnote 36: The name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of name of the name of the name of the name of the name of name of the name of the name of the name of name of the name of the name of name of the name of the name of name of the name of the name of name of the name of the name of name of the name of name of the name her minor children for such purpose,64 and in Texas it has been held that she may, under such circumstances, manage and dispose of community property for such purpose.65

Footnote 64: The author is grateful to the anonymous referee for his help and to the anonymous

## 3 Cur. Law. AGENCY IMPLIED FROM RELATION SS 17.

statute making both husband and wife liable for the "family expenses," the husband may be held liable therefor, notwithstanding credit may have been extended to the wife alone.\[73\] Purchases of necessaries, while living with the husband, are never presumed to have been made on the credit of the wife; such fact must be shown affirmatively.\[74\]

A husband cannot be held liable for goods sold to his wife on her own credit, or on any other contract made with her on her own credit, because he knew of and assented to the transaction, or acted for her in the matter,\[75\] or because he is personally benefited by the contract,\[76\] or because, by reason of legal disability, the contract is not binding upon the wife.\[77\]

Where the credit is given to the wife, the contract, not being made by her as agent of her husband, cannot be ratified by him. A promise by him to pay the debt would be a promise to answer for the debt of another, and subject to all the rules governing such a promise.

Whether credit was given to the husband or to the wife must be determined from the evidence, and is a question of fact for the jury.\[78\] If a person lends money or sells goods to a wife with the understanding that the transaction shall be concealed from the husband, it may properly be inferred that the credit was given to the wife.\[79\] If a tradesman, in supplying a wife with such goods as she has implied authority to purchase on her husband's credit, in fact furnishes them on the husband's credit, he is not precluded from holding the husband liable by the fact that he charged the goods to the wife on his books,\[80\]

SS 16. _Husband's ratification of wife's acts._--If a wife acts as agent of her husband without authority, the husband may ratify her acts and thus render them binding upon him to the same extent as if originally authorized, and a ratification by him may be either express or implied from his conduct.

SS 17. _Agency of woman held out or passing as wife._--Where a man lives with a woman, allowing her to assume his name and pass as his wife, she has implied authority to pledge his credit for necessaries during the continuance of the co-habitation, in like manner and to the same extent as if she were in fact his wife,\[81\] and this is true although the person who furnished the necessaries knew at the time that they were not married.\[82\] But if there is no cohabitation, the mere fact

Missouri: Tuttle v. Hoag, 46 Mo. 38, 2 Am. Rep. 481.

New Rampshre: Hill v. Goodrich, 46 N.

H. 41.

New York: Stammers v. Macomb, 2 Wend.

454: Simmons v. McElwain, 26 Barb. 419;

Ehrich v. Buckki, 7 Misc. 118; Byrnes v. Rayner, 84 Hun, 199: Lindholm v. Kane, 92 Hun, 369.

Ohko: Dorsey v. Goodenough, Wright, 120:

McMillan v. Auerback, 7 Ohio N. P. 376.

Oklahoma: Baker v. Witten, 1 Okl. 160.

Pennsylvan: Moore v. Copley, 165 Pa.

394, 44 Am. St. Rep. 664.

South Carolina: Moses v. Fogartie, 2 Hill Law, 335.

Teamessess: Catron v. Warren, 1 Cold. 358.

Yermont: Carter v. Howard, 39 Vt. 106;

Bugbee v. Blood, 48 Vt. 497; Roberts v. Kelley, 51 Vt. 97. Compare Black v. Bryan, 18 Tex. 453.

73. Warrington v. Anable, 84 Ill. App. 593.

01. Moore v. Copley, 165 Pa. 294, 44 Am. St. Rep. 664.

01. Taylor v. Shelton, 30 Conn. 122; Swett v. Pernice, 24 Miss. 416; Mausbly v. Byers, 67 Md. 440; Roberts v. Kelley, 51 Vt. 97.

01. Carter v. Howard, 39 Vt. 106. But see Roberts v. Kelley, 51 Vt. 97.

01. Taylor v. Shelton, 30 Conn. 122.

01. Bentley v. Grimm, 5 Trautt. 366; Mitch-

ell v. Treanor, 11 Ga. 324, 56 Am. Dec. 421.

79. Franklin v. Foster, 20 Mich. 75. But

the request of a ferme covert to a merchant not to call on her husband for pay for necesaries that she purchased on her husband.

Messouri: Tutta v. Hoag, 46 Mo. 38, 2

80. Carter v. Howard, 39 Vt. 106. But see Roberts v. Kelley, 51 Vt. 97.

01. Taylor v. Shelton, 30 Conn. 122.

01. Bentley v. Grimm, 5 Trautt. 366; Mitch-

ell v. Treanor, 11 Ga. 324, 56 Am. Dec. 421.

79. Franklin v. Foster, 20 Mich. 75. But

the request of a ferme covert to a merchant not to call on her husband for pay for necesaries that she purchased on her husband.

83. Craft v. Hoag, 46 Mo. 38, 2

01. Carterthat a man allows a woman to use his name is not sufficient to raise this presumption of authority to pledge his credit." And although they cohabited, if not actually married, a subsequent separation terminates the presumed authority to pledge his credit and he will not be liable for necessaries furnished the woman thereafter," unless held so on the ground of estoppel."

SS 18. _Agency of partner._--In an ordinary partnership, each partner is not only a principal, but he is also an agent in the management of the business of the firm. In the absence of provision or agreement to the contrary, he is the general agent of his co-partners with implied authority to bind them as members of the firm in all matters which are properly within the scope of the partnership business." And as agent for his co-partners he has implied authority, unless there is some provision or agreement to the contrary, not only to act himself in the conduct of the partnership business, but also to appoint agents to represent the firm, where such an appointment is within the partnership business." It has been suggested that the power of a partner to bind the firm results directly from the contract of

83. Gomme v. Franklin, I Fost. & F. 465. \[in Winship v. Bank of United States, 5 Pet. 561, "It is understood to be in itself a grant of power to the acting members of the company to transact its business in the usual way. If that business be to buy and sell, then the individual buys and sell for the company, and every person with whom he trades in the way of its business, has a right to consider him as the company, whoever may compose it. " " The articles of coportnership are perhaps never published. They are rarely if ever seen, except by the partners themselves. The stipulations they may contain are to regulate the conduct and rights of the parties, as between themselves. The trading world, with whom the company is in perpetual introreourse, cannot individually examine these articles, but must trust to the general powers contained in all partnerships. The acting parties are identified with the company, and have power to conduct its usual business, in the usual way."

**87. England: Beckham v. Drake, 9 Mees. & W. 79; Hawken v. Bourne, 8 Mees. & W. 703.**

Alnbaum: Lucae v. Bank of Darien, 2 St. 280.\*\*

Colerado: Charles v. Eshleman, 5 Colo. 107.\*\*

Alnbaum: Bartlett v. Powell, 90 Ill. 331.\*\*

Indnain: Froun v. Davis, 97 Ind. 401.\*\*

Lovni Paton v. Baker, 62 Iowa, 704; Boyd & Watson, 101 Iowa, 214.\*\*

Kansas: Frye v. Sanders, 21 Kan. 26, 30 Am. Rep. 421; Wheatley v. Tutt, 4 Kan. 240.\*\*

Louisima: Johnston's Exr' v. Brown, 18 Barb. (N. Y.) 655; Comstock v. Buchanan, 57 Barb. (N. Y.) 127; Johnston v. Trask, 116 N. Y. 136 15 Am. St. Rep. 394.\*\*

Pennsylvan: Loudon Sav. Fund Soc. v. Hagerstown Sav. Bank, 86 Pa. 498, 78 Am. Dec. 590; Wilkins v. Boyce, 3 Watts, 39; Robertson v. Wood, 10 Kulp, 76.\*\*

South Carolina: Kinsler v. McCants, 4 Ri-h, Law, 46, 53 Am. Dec. 711.\*\*

Tennessee: Whiteman Bros. v. American Central Ins. Co., 14 Lea, 237; Pooley v. Whitmore, 10 Helsinki. 629, 27 Am. Rep. 173.\*\*

Wisconsin: Tucker v. Cole, 54 WIs. 539; Fletcher v. Thgram, 46 WIs. 191. "When then a partnership is formed for a particular purpose," said Chief Justice Marshall,

## 3 Cur. Law. AGENCY IMPLID FROM RELATION SS 19.

the parties rather than by operation of law. Whether this be so depends somewhat on the question whether a partnership be regarded as a contract or a status established by contract.

The implied power of a partner is not without limit. He has no authority, unless express authority or an estoppel is shown, to bind his co-partners in a matter which is beyond the scope of the partnership business.\[88\] And as he cannot appoint an agent to do for the firm what he cannot do himself, he cannot, without special authority, appoint an agent to bind the other partners by a conveyance or other transaction which is not within the scope of the partnership business.\[89\]

SS 19. \_Unincorporated clubs and societies as principals.--\_When a number of persons form a club or society for social, political, religious, or charitable purposes, etc., without becoming incorporated, the law does not regard them as a legal entity or artificial person, like a corporation, but merely as a collection of individuals, and it necessarily follows that the club or association, as such, cannot appoint or have an agent.\[90\] The members may appoint an agent, but in such a case he is the agent of the members as individuals. They are joint principals.\[91\] Such an association is not a partnership, and to render a member liable as a principal on contracts made by the persons or committees who manage and assume to act for the association, it must be shown that he expressly or impliedly authorized them to represent and bind him.\[92\] Members of such bodies are not chargeable with debts on its behalf, unless the relation of principal and agent is established between the representative of the association and person sought to be made liable. It must be shown that the party assuming to act for the association, was the agent of the member upon whom liability is sought to be fastened, and is authorized by him to enter into the contract as his representative.\[93\] But mere member-

SS8. Vanted. States: Bowen v. Clark, 1 Utah: Peterson v. Armstrong, 24 Utah, Blas. 128, Fed. Cas. No. 1,721; Winship v. 96; Gutnell v. Gilmer, 23 Utah, 84; Cavagnu v. Sall'sbury, 22 Utah, 465, Alabman: Lang's Heirs v. Wahleman, 5 Colo. 107; Pal-Ala. 145.

Olcorado: Lewin v. Barry, 16 Colo. App. 461.

Connecticut: New York Firemen Ins. Co. v. Bennett, 5 Comn. 574, 13 Am. Dec. 109.

Georgin: Davis v. Dodson, 95 Ga. 718, 51 Am. St. Rep. 108.

Illinois: Ruffner v. McConnel, 17 Ill. 212.

Iowa: Western Stage Co. v. Walker, 2 Iowa, 604, 65 Am. Dec. 789; Seeberger v. Wyman, 108 Iowa, 527.

Kansas: Shattuck v. Chandler, 40 Kan. 616, 10 Am. St. Rep. 227.

Kententex: Brooks-Waterfield Co. v. Jackson, 21 Ky. L. R. 554, 63 S. W. 41.

Maine: Rollins v. Stevens, 31 Me. 454.

Michigan: Van Kleeck v. McCabe, 87 Melch. 699, 24 Am. St. Rep. 182.

Minnesota: Maurtin v. Lyon, 69 Minn. 257, 65 Am. St. Rep. 658.

New York: Hitchcock v. Peterson, 14 Hun, 390; Laverty v. Burr, 1 Wend. 629; Stall v. Catskill Bank, 18 Wend, 486; Palliser v. Erhardt, 46 App. Div. 222.

North Dakota: Clarke v. Wallace, 1 N. D. 404, 26 Am. St. Rep. 638.

Pennsylvania: Sutton v. Irvine, 12 Serg. & R. 13; Tanner v. Hall, 1 Pa. 417.

Tennessee: Bank of Tennessee v. Saffarran-ranas, 3 Kumbp, 597; Crostwati v. Ross, 1 Humb. 23, 34 Am. Dec. 613.

$ Curr. Law--9

ship is not sufficient to fix the liability of a member for indebtedness contracted on behalf of such an association or society.${}^{ ext{ ext{ extcite}}}$ A member can only be made liable by his personal acts or participation in the transaction in question,${}^{ ext{ extcite}}$ or where the business is conducted through the medium of officers or agents, by agreeing, at the time of becoming a member, to the exercise of defined powers by the representatives of the associations, as by expressly or impliedly consenting to abide by the provisions of its constitution, by-laws, or corresponding rules of guidance, respecting their appointments and powers,${}^{ ext{ extcite}}$ or by sanctioning or acquiescing in an appointment or delegation of authority, either by voting therefor, by assenting to the action taken, or by subsequently ratifying it.${}^{ ext{ extcite}}$ In the absence of an agreement to abide by the action of a majority of the members, or of the action of a committee or officer of the association, the liability is limited to those only who agreed to be bound by such actions.${}^{ ext{ extcite}}$ The assent need not be express, but may be made out by acts and conduct.${}^{ ext{ extcite}}$ Neither need it be proved by former records; but may be established by parol proof.${}^{ ext{ extcite}}$ There may be cases, however, in which the objects for which the association is organized are so clear, and the

$4 Iowa, 220, 52 Am. Rep. 456; Ray v. Pow- v. Lathrop, 71 Conn. 613, 71 Am. St. Rep. esr, 134 Mass, 22; Newell v. Borden, 128 Mass. 31; Volger v. Ray, 131 Mass. 439; Burt v. Lathrop, 62 Micl. 106; Rice v. Penhurst Club, 62 Micl. 87; Heath v. Goslin, 80

by, are binding on those who agree to

Mc. 810, 50 Am. Rep. 505; Richmond v. Judy, 66 Mo. App. 455; Sizer v. Daniela, 66 Barb. 97. Flemyng v. Hector, 2 Mees. & W. 172; (N. Y.) 426; Devves v. Gray, 22 Ohio St. 169; Ash v. Guhe, 97 Pa. 493, 39 Am. Rep. 318; Ridgely v. Dobson, 3 Watts & B. (Pa.) 113.

In Eliehbaum v. Irons, 6 Watts & S. (Pa.) 67, 40 Am. Dee. 540, it was held that the liability of the members or committees appointed by a political meeting to provide a free public dinner for the members of a political party was not determinable by the law of principal and agent, nor by the law of partnership, but by the question of concurrence in giving the order-their action being joint, and not several.

And see Davison v. Holden, 65 Conn. 103, 8 Am. St. Rep. 40, wherein it is said that persons associating for commercial purposes for their pecunary advantage, and who for convenience transact business and assume associate name, are liable upon the principle of the law of agency. Bennett v. Lathrop, 71 Conn. 613, 71 Am. St. Rep. 225.

94. Flemyng v. Hector, 2 Mees. & W. 172; Caldiott v. Griffiths, 8 Exch. 898; Hawke v. Cole, 62 Law T. (N. S.) 653; Ash v. Guhe, 97 Pa. 493, 39 Am. Rep. 818; McCabe v. Goodfellow, 133 N. Y. 89. And the mere fact that a person is a member of the managing committee is not of itself evidence of authority to pledge his credit. Wood v. Finch, 89 Fost. & F. 447; Draper v. Mahever, 5 Times Law R. 71; Steel v. Geurley, 8 Times Law R. 712; Overton v. Hewett, 3 Times Law R. 712; Lathrop, 3 Times Law R. 712; Overton v. Hewett, 3 Times Law R. 246. A member is not liable for rent under a lease executed by the association before he became a member, on a count framed on the contract originally made. Barry v. Nuckelkin, 2 Humb. (Tenn.) 324.

01. Redling v. Anderson, 72 Iowa, 498; Ash v. Guhe, 97 Pa. 498, 93 Am. Rep. 813; In re St. James Club, 16 Mar. 1075.

01. Flemyng v. Hector, 2 Mees. & W. 172; Todd v. Emily, 7 Mees. & W. 172; 3 Cur. Law. AGENCY IMPLIED FROM RELATION SS 21. 131 acts done are so essentially necessary to the furtherance of those objects, that the members will be presumptively bound by them, without evidence of consent or ratification.2

SS 20. \_Agency as between tenants in common and co-owners.--\_In order that one tenant in common of real property or co-owner of personal property may bind the other with respect to such property, consent on the part of the other is essential. There is no implied agency, as in the case of a partnership, merely by virtue of their relation.3 "One tenant in common has no power as such to convey or dispose of the lands of his co-tenant, and cannot execute a deed of the lands of his co-tenant in any other manner than can a stranger."4 So the mere relation of co-tenancy between joint mine owners does not empower one of them to render his co-tenants liable on any contracts or for any expenditures he may make as their agent.5 But where the act is such that it is manifestly for the benefit of all the co-tenants, as the filing of a notice of an adverse claim to a mine, it may be done by one on behalf of the others without a power of attorney from them." The appointment of an agent by one co-tenant, to act in reference to the common property, will bind that one only,7 unless his co-owner joins in or subsequently ratifies such appointment.8 But the majority owner of a vessel acts as the agent of his co-owners in managing the ship, and acts done by him in the course of such management are binding on them, unless they expressly dissent."

SS 21. \_Agency between joint obligors--Joint obligees.--\_It sometimes becomes necessary that the relation of principal and agent should exist between persons having a joint interest or joint liability in certain matters. Such persons have a common interest and at times it is necessary that one of them should represent his co-obligors in matters in which they are all concerned. In accordance with this principle, the joint debtor may act as the agent of his co-debtors in paying the joint debt and, when he has done so, may compel contribution from them; and if, after satisfying the debt, he is discharged therefrom, it redounds to the benefit of all and will operate to discharge them all.10 As has been said, "Each represents the others in matters relating to the payment and discharge of their joint liability.11 This agency of a joint obligor, however, should not be extended

**z. Sizer v. Daniels, 66 Barb. (N. Y.) 426:**

Richmond v. Judy, & Mo. App. 465: McCabe

Noe v. Christie, 51 N. Y. 270.

v. Goodfellow, 133 N. Y. 89.

**9. Swift v. Tanner, 89 Ga. 660, 32 Am.**

**3. Blood v. Goodrich, 9 Wend. (N. Y.) 68,**

St. Rep. 101; Gray's Adm'r v. Allen, 14 Ohlo, 24 Am. Dec. 121; Metager v. Huntington, 139 54, Am. Dec. 532; Thoms v. Southard. 2 Ind. 601; Barton, V. Willis.as Barm, & Alto, 1395; Dunham v. Loverock, 158 Pa. 19, 384.

Sam. At. Rep. 833; Butler Sav. Bank v. Os.

Sobrone, 159 Pa. 10, 39 Am. St. Rep. 665; Burt

& Brabb Lumber Co. v. Clay City Lumber

Co., 23 Ky. L. R. 1019, 64 S. W. 652.

& Blecol v. Goodrich, 9 Wend. (N. Y.) 65,\*\*

4. Blood v. Goodrich, 9 Wend. (N. Y.) 65,\*\*

34 Am. Dec. 121; McElroy v. McLeway, 71 Vt.

10. Whitcomb v. Whiting, 2 Doug. 652:\*\*

01.

S. Rico Reduction & Min. Co. v. Mus-

414: Fitch V. Hammer, 17 Colo. 691:\*\*

grave, 14 Colo. 79; Chase v. Savage Silver

V. Clark, 48 Noh. 711; Green v. Rick, 121

701: Co., 2 Nev. 9; Paul v. Cragnas, 25 Nev.

719: Mercur v. State Line & S. R. Co., 171

19 Vt. 59, 46 Am. Dec. 177; Mashin's Exrs v. Pa. 12.

6. Nesbit v. Delamars's Wex Gold Min.

given by an obligee to a Joint obligor, "In Co., 24 Nev. 273, 71 Am. St. Rep. 807.

7. Keay v. Fenwick, 1 C. P. Div. 745;

obligation, releases the co-obligors, if the Permutter v. Kelly, 18 Alta, 716, 54 Am. Dec.

receipt itself does not show a contrary In-177: Noe v. Christle. 51 N. Y. 270; Omana

1 Am. St. Rep. 476.

& Grant Smelting & Refining Co. v. Tabor, 13 Colo. 41, 16 Am. St. Rep, 185; Mayfield

11. Green v. Rick, 1 beyond what is necessary to perform or complete the original contract.12 It is doubtless the law that joint debtors, in matters respecting their joint indebtedness, may, to a certain extent, bind each other by their admissions,13 but this can only be as to facts affecting rights or remedies then existing. The admissions must relate to matters showing what are the terms of the contract already made, or whether it has been performed or otherwise discharged. The idea, however, cannot be sanctioned, that a co-debtor, merely because he is such, has authority to bind his associates to a new contract, although it may be in regard to an old debt.14 A partial payment by a joint debtor, therefore, without the knowledge or assent or subsequent ratification of his co-debtors, will not bind the latter so as to authorize the inference of a new promise on their part, and therefore will not affect the defense of the statute of limitations as to them.18 Of course the joint obligors may expressly authorize one of their number to make a partial payment on a joint obligation or to make a new promise; or such authority may result from the relation of the parties; or the acts may be subsequently ratified, in either of which cases the co-obligors would all be estopped to plead the statute of limitations.14 In some of the cases, the acknowledgment or partial payment relied upon to take the case out of the statute was made before the bar of the statute had become complete; but in principle, there is no distinction between the legal effect of the acknowledgment or payment made before or after the bar of the statute has attached; and a new promise or part payment by one of two or more joint debtors, whether made before or after the debt is barred by statute, takes the case out of the statute only as to the party so promising or paying, unless his co-debtors assent to or subsequently ratify such promise or payment.17 But notwithstanding this, there is much conflict in the cases as to the right of one joint debtor to act as the agent of his co-debtors in extending the bar of the statute, before it has attached. It has been held in a number of cases, following Lord Mansfield's decision, that, where the bar of the statute has not attached, the joint relationship of the co-debtors makes one of them the agent of the other to the extent that he may, by payment or new promise, represent his co-debtors in extending the bar of the statute as to the joint debt.18 But the better con-

01. Wolf v. Pink, 1 Pa. 455, 44 Am. Dec. \[Mech. 685: Pfenninger v. Kokesch, 68 Minn. 141: Smith v. United States, 2 Wall. (U. S.) &1: Oleson v. Wilson, 20 Mont. 544, 63 Am. 219. One co-surety is not an agent of the St. Rep. 633; Pitts v. Hunt, 6 Lans. (N. Y.) &146; Halight v. Avery, 16 Hun (N. Y.) &252; of payment of a promissory note. Wolf v. Munro v. Potter, 34 Barb. (N. Y.) &358; In re Flink, 1 Pa. 435, 44 Am. Dec. 141. \[13\]. Kallenbach v. Dickinson, 100 Ill. 427, 39 Am. Rep. 47. \[14\]. Kallenbach v. Dickinson, 100 Ill. 427, 39 Am. Rep. 47; and see cases hereafter cited. \[15\]. \[16\]. \[17\]. \[18\]. \[19\]. \[20\]. \[21\]. \[22\]. \[23\]. \[24\]. \[25\]. \[26\]. \[27\]. \[28\]. \[29\]. \[30\]. \[31\]. \[32\]. \[33\]. \[34\]. \[35\]. \[36\]. \[37\]. \[38\]. \[39\]. \[40\]. \[41\]. \[42\]. \[43\]. \[44\]. \[45\]. \[46\]. \[47\]. \[48\]. \[49\]. \[50\]. \[51\]. \[52\]. \[53\]. \[54\]. \[55\]. \[56\]. \[57\]. \[58\]. \[59\]. \[60\]. \[50\]. \[51\]. \[53\]. \[51\]. \[54\]. \[56\]. \[57\]. \[59\]. \[61\]. \[62\]. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[67\]. \[69\]. \[60\]. \[61\]. \[68\]. \[61\]. \[62\]. \[63\]. \[64\]. \[65\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[69\]. \[61\]. \[62\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[63\]. \[67\]. \[69\]. \[61\]. \[60\]. \[62\]. \[64\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60 sidered cases hold otherwise; that one joint debtor cannot act as the agent of his co-debtors in such cases, in extending the bar of the statute by payment or new promise without their consent, save in the case of existing partnerships.19 But although many of the decisions recognize the rule in Whitcomb v. Whiting, as to a payment or new promise made by a joint debtor before the claim is barred by statute, yet they nearly all adhere to the rule that one joint debtor cannot, after the bar of the statute has attached, act as the agent of the other without his assent, in removing the bar of the statute by payment or acknowledgment.20

**Louisiana:**: **Boullt v. Sarpy, 30 La. Ann. 494.**

**Maime:**: **Sheplev v. Waterhouse, 22 Me. 497;**

**Dinsmore v. Dinsmore, 21 Me. 435 (but see**

**Odell v. Dana, 38 Me. 182.**

**Missachusetts:**: **Faultner v. Bailey, 123 Mass. 588.**

**Masas. 588.**

**Michigan:**: **Rogers v. Anderson, 40 Mich.**

**604, 24 Am. Rep. 526.**

**Massachusetts:**: **Sigourney v. Drury, 14 Plck. 87; Hunt v. Bridham, 2 Pick. 581.**

**613 Am. Doc. 458; Frye v. Barker, 47 Dick. 381.**

**Mississippi:**: **Priscoe v. Anketell, 28 Miss.**

**Minnesota:**: **Whitaker v. Rice, 9 Minn. 13, 86 Am. Doc. 78 (but see later cases).**

**Missouri:**: **McClury v. Howard, 45 Mo. 365.**

**N. H. 219:**: **Exeter Bank v. Sullivan, 6 N. H. 46.**

**New Jersey:**: **Casebolt v. Ackerman, 46 N.**

**J. Law, 169:**: **Merritt v. Day, 38 N. J. Law, 32, 20 Am. Rep. 262.**

**New York:**: **Reld v. McNughton, 15 Barb.**

**North Carolina:**: **Davis v. Coleman, 7 Ired.**

**Law, 424:**: **Moore v. Beeman, 11 N. C. 382; Green v. Greensboro Female College, 83 N. C. 449, 35 Am. Rep. 679.**

**Pennsylvania:**: **Zent's Ex'rs v. Heart, 8 Pa. 337.**

**Rhode Island:**: **Woonsocket Inst. v. Bal-lou, 15 R. I. 351; Perkins v. Barstow, 5 R. I. 505.**

**South Carolina:**: **Beitz v. Fuller, 1 McCord, 541, 10 Am. Dec. 593; Smith v. Caldwell, 16 Rich. 365.**

**Wisconsin:**: **National Bank v. Cotton, 53 Wils. 81.**

**And this principle applies to a payment or acknowledgment made by an administrator or executor of one of the joint oblimispora. Country of Vernon v. Stewart, 64 Mo.**

**408, 27 Am. Rep. 550; Briggs v. Starke, 2 MII, Const. (S. C.) 111, 12 Am. Dec. 659; Hord's Adm'rs v. Lee, 4 T. B. Mon. (Ky.) 38; Heath v. Grenell, 61 Barb. (N. Y.) 190.**

**19. United States:**: **Bell v. Morrison, 1 Pet. 552; Bergman v. Bly, 65 Fed. 40.**

**Alabman:**: **Knight v. Clements, 45 Ala. 89, 6 Am. Rep. 693; Lowther v. Chappel, 8 Ala. 353, 42 Am. Dec. 643; Caruthene v. Mardis's Adm'rs 8 Ala. 699; Wyatts v. Bell, 41 Ala. 222.**

**District Columbia:**: **Miller v. Miller, Mac-Arthur & M. (D. C.) 109, 48 Am. Rep. 738, Florida: Tate v. Clements, 16 Fla. 339, 26 Am. Rep. 709.**

**Georgia:**: **Hunter v. Robertson, 30 Ga. 479.**

**Illinois:**: **Kallenbach v. Dickinson, 100 Ill.**

**427, 39 Am. Rep. 47; Davis v. Mann, 43 Ill.**

**App. 301;**: **Wuxingb v. Bartlett, 165 Ill. 124.**

**Indiman:**: **Bottles v. Miller, 112 Ind. 584; Metilier v. Todd, 12 Ind. App. 881, 54 Am.**

\*\*St. Rep. S31; Yandes v. Lefavour, 2 Blackf. (Ind.

It is also true in reference to joint obligees that in some respects each may act as the agent of the others in matters pertaining to their joint interest. Thus, one of two or more joint obligees to a contract has the right to receive payment thereon, and such payment discharges the obligation to the amount paid, whether in whole or in part.\[21\]

SS 22. \_Implied agency of master of ship.--\_The master of a vessel, by reason of the peculiar relation he bears to his employers and to all concerned in the voyage, and the necessities of the case, may impliedly act as the agent of such parties when it becomes necessary that he should do so, in order to successfully carry on the voyage, or protect the cargo.\[22\] He may appoint another as master in his stead and delegate his powers as master to such other, in cases of necessity or sudden emergency in a foreign port, in the absence of the owner and employer or his authorized agent, whenever it may be necessary and proper for the welfare of the ship, and the due accomplishment of the voyage.\[23\] So in cases of necessity, he may act as agent in contracting for repairs and supplies to the ship,\[24\] or in hypotheeating the vessel.\[25\] But his agency in this respect is strictly limited to the necessities of the ship.\[26\] But the authority of a master in a foreign port to procure supplies and repairs necessary for the safety of the ship and the due performance of the voyage is not confined to procuring only such supplies as are absolutely or indispensably necessary, but includes all such as are reasonably fit and proper for the ship and voyage.\[27\]

He may sell the cargo in a perishable or damaged condition, which_he is unable to save or transmit, if he acts bona fide and under a stringent necessity.\[28\] He may, when his vessel becomes disabled and unable to proceed, and

**North Carolina:** Long v. Miller, 93 N. C. \[Cas. No. 10,061; The Aurora, 1 Wheat. \[U. 237: Green v. Greensboro Female College, 83 N. C. 44, 85 Am. Rep. 579. 23: Ross V. Active, 2 Wash. C. C. 256, Fed. \[Cas. No. 12,071; Calcf v. Steamer Bonaparte, 578, 55 Am. Rep. 44: Smith v. Caldwell, 15 Rich. 355. \[Dianond Coal Min. Co. v. Grady, 81 P. 232. 25: Skrine v. Hope, Bee, 2, Fed. Cas. No. 12,927; Naylor v. Baltzell, Taney, 55, Fed. \[Cas. No. 10,061; Duncan v. Reed, 39 Me. 415, 83 Am. Dec. 655. 26: Carrington v. Ann C. Pratt, 10 N. Y. \[Leg. Obs. 193, and cases cited above. 27: The Fortitude, 3 Summ. 238, Fed. Cas. No. 14,953; The Medora, 1 Sprague, 138, Fed. Cas. No. 1,981; The Grapeshot, 9 Wall. \[N. Y. 130. 28: Vilerboom v. Chapman. 13 Mees. & \[Cas. No. 10,061; Duncan v. Reed, 39 Me. 415, 83 Am. Dec. 655. 26: Carrington v. Ann C. Pratt, 10 N. Y. \[Leg. Obs. 193, and cases cited above. 27: The Fortitude, 3 Summ. 238, Fed. Cas. No. 14,953; The Medora, 1 Sprague, 138, Fed. Cas. No. 1,981; The Grapeshot, 9 Wall. \[N. Y. 130. 28: Vilerboom v. Chapman. 13 Mees. & \[Cas. No. 10,061; Duncan v. Reed, 39 Me. 415, 83 Am. Dec. 655. 26: Carrington v. Ann C. Pratt, 10 N. Y. \[Leg. Obs. 193, and cases cited above. 27: The Fortitude, 3 Summ. 238, Fed. Cas. No. 10,453; The Medora, 1 Sprague, 138, Fed. Cas. No. 1,981; The Grapeshot, 9 Wall.

3 Our. Law. AGENCY IMPLied from RELATION SS 23.13.134

acting as an agent of necessity for the owners of the cargo, transship it, or if expedient retain it until his own ship is put in repair, or if necessary may sell part of it or hypothecate the whole, or he may abandon the voyage and notify the owners.20 To justify a sale of the cargo in such a case, however, the necessity must be absolute and unequivocal, and is only permissible after the exhaustion of the ship's credit.20 It is also clearly established that the master, as such, may sell a wrecked vessel, when he proceeds in good faith exercising his best discretion for the benefit of all concerned, and in view either of existing peril or of peril likely to ensue, from which, in the opinion of persons competent to judge, she cannot be rescued;21 but the sale, to be binding on the owners, must be one of necessity.21

If a vessel or its cargo is abandoned to the underwriters during a voyage for a total loss, the master then becomes, by operation of law, the agent of the under-

29. Cammell v. Sewell, 5 Hurl. & N. 728;

be such a necessity as supersedes all human Naylor v. Baltzell, Tansey, 55, Fed. Cas. No. 13, In Hall v. Franklin Ins. Co., 9 Pick. 10,061; The Bridgewater, 11 Chl. Eng. N. 827;

\[Mass.\] 466, Putman, J., delivering the opinion of the court, said: "The master" saudeen. Dec. 603; Hassam v. St. Louis Perp.

\[noitemsep\] Ins. Co., 7 La. Ann. 11, 66 Am. Dec. 591;

\[noitemsep\] Ins. Co., 7 La. Ann. 402;

\[noitemsep\] Ins. Co., 7 Mayrick, 8 Md. 118, 66 Am. Dec. 316;

\[noitemsep\] Ins. Co., 7 J Johns, 71: Fontaine v. Columbini Ins. Co., 9 Johns, 71 30.

\[noitemsep\] Ins. Co., 7 J. 20. And see Engiehart v. Pedro,

\[noitemsep\] Ins. Co., 4,89.

\[noitemsep\] Ins. Co., 8 Perenn v. East India Co., 5 Barn, 843;

\[noitemsep\] Ins. Co., 8 Perenn v.

writers with the same general rights and powers as he would have in regard to the original owners.\[88\]

SS 23. \_Agency of vendor for vendee.--\_When a contract of sale has been entered into between vendor and vendee, and the vendee refuses to take and pay for the goods, the vendor, if he has the control or possession of the goods, ordinarily has the choice of either one of three remedies to indemnify himself: (1) He may store or retain the property for the vendee, and sue him for the entire purchase price; (2) he may keep the property as his own, and recover the difference between the market price at the time and place of delivery, and the contract price; or (3) he may sell the property, acting as agent, for this purpose, of the vendee and recover the difference between the contract price and the price obtained on such resale. In such case, the vendor takes the position of agent for the vendee to make the sale, and all that is required of him is that he should act with reasonable care and diligence and good faith; he should make the sale without unnecessary delay, but he must be the judge as to the time and place of sale provided he act in good faith and with reasonable care and diligence and gives notice of his intention to sell.\[84\] But it is no part of such agency, or the duties involved in it, to notify the vendee of the time and place at which the goods are to be sold or exposed for sale.\[85\] If more is realized on such resale than is due to the vendor, he must account to the vendee for the surplus.\[86\]

The vendor, in such cases, is not strictly an agent of the vendee, but it is rather a general expression used to define the right of the vendor to make a resale and hold the vendee responsible for the loss. It is quite manifest that a resale made under such circumstances is not made by the vendor strictly as the agent of the vendee, but he acts for himself in disposing of the property for the purpose of ascertaining the actual loss he may sustain. His duties as to the manner of making the sale, as we have seen, in some respects resemble those of an agent, and hence he is said to take the position of an agent, but otherwise he cannot be considered as such.\[87\]

SS 24. \_Agency of priests, ministers, etc.--\_Priests, ministers, and other ecclesias- tics in charge of a parish or other church property have only such authority to manage and control the property of the church or congregation as is given to them by the canons or laws of the church. Thus, a Catholic priest having charge of a parish has no implied authority to convey real estate, the title of which is in his bishop.\[88\] The mere fact that one is a priest or minister of a church does not authorize him to bind the trustees or members of such church by contracts in reference to the church property or church affairs.

SS 25. \_Agency of vendor for vendee.--\_When a contract of sale has been entered into between vendor and vendee, and the vendee refuses to take and pay for the goods, the vendor, if he has the control or possession of the goods, ordinarily has the choice of either one of three remedies to indemnify himself: (1) He may store or retain the property for the vendee, and sue him for the entire purchase price; (2) he may keep the property as his own, and recover the difference between the market price at the time and place of delivery, and the contract price; or (3) he may sell the property, acting as agent, for this purpose, of the vendee and recover the difference between the contract price and the price obtained on such resale. In such case, the vendor takes the position of agent for the vendee to make the sale, and all that is required of him is that he should act with reasonable care and diligence and good faith; he should make the sale without unnecessary delay, but he must be the judge as to the time and place of sale provided he act in good faith and with reasonable care and diligence and gives notice of his intention to sell.\[84\] But it is no part of such agency, or the duties involved in it, to notify the vendee of the time and place at which the goods are to be sold or exposed for sale.\[85\] If more is realized on such resale than is due to the vendor, he must account to the vendee for the surplus.\[86\]

The vendor, in such cases, is not strictly an agent of the vendee, but it is rather a general expression used to define the right of the vendor to make a resale and hold the vendee responsible for the loss. It is quite manifest that a resale made under such circumstances is not made by the vendor strictly as the agent of the vendee, but he acts for himself in disposing of the property for the purpose of ascertaining the actual loss he may sustain. His duties as to the manner of making the sale, as we have seen, in some respects resemble those of an agent, and hence he is said to take the position of an agent, but otherwise he cannot be considered as such.\[87\]

SS 26.

8 Our. Law. AGRICUITURE $ 1. AGRICUITURE.1

**SS 1. Regulation (137). $ 8. Agricultural Societies (137). $ 2. Products and Crop Liens (137).**

**SS 1.**_Regulation._\*\*--The pursuit of agriculture\* and the production and sale of products have been subjects of regulation, as has also the growth of noxious weeds.\*

**SS 2.**_Products and crop liens._\*\*--The owner of a farm and a tenant on shares are tenants in common of the products, in the absence of any special provision modifying their relations,\* and either may maintain a bill in equity against his co-tenant for an accounting of the proceeds of the crops.\*

An agreement to execute a mortgage on crops may be made before the latter are in being.\*

Liens on crops are statutory and will be created or enforced according to the local statutes, and one to avail himself of such a lion must comply with the requirements of the statute creating it.\* Statutes generally give the landlord a lion on all agricultural products to secure his rent and supplies for the current year,\* also to one who furnishes supplies for the making of the crop,\* and also to laborers.\* In some states seed-liens must be recorded.\* These liens may be waived.\*

**SS 3.**_Agricultural societies._**16--A state may incorporate an agricultural society as a department of the state;* such an act does not constitute special or class legislation,* nor is the legality of the transfer and acceptance by the state subject

**1.** See, also, topic Emblements, 1 Curr. crop raised during the year in which they were furnished, and the lion of landlord for advances and supplies on crop of that year takes precedence over claim of tenant's wife and children for support. Id.

**SS 4.** Expectation that they will be paid as a department of the state;\* such an act does not constitute special or class legislation,\* nor is the legality of the transfer and acceptance by the state subject to collateral attack,15 and when thus made a department of the state, such society is immune from suits brought for the wrongful conduct of its servants.16 Some states give aid to agricultural societies,20 but in order to receive such aid they must conform to all the laws relating thereto.21 An incorporated agricultural society, though it differs from the ordinary business corporations, is nevertheless to be classified as a private corporation.22 They are, however, largely subject to statutory regulations. In Michigan, they may mortgage their property,23 and are not required to have a seal.24 A state may in the exercise of its police powcr prohibit the temporary business of selling articles of provisions within a reasonable distance of a fair without the consent of the fair association.25

**ALIENS.**

**SS 1. Who are Aliens (138).**

**SS 2. Disabilities and Privileges (138).**

**SS 3. Immigration, Exclusion, and Expal-**

**SS 4. Naturalization (145).**

**SS 1. Who are aliens.20-**

**SS 4. Who are aliens.20-**

**SS 4. An alien woman marrying a citizen of the United States at once becomes a citizen of this country,23 a woman marrying a foreign becomes an alien.25 A child born in the United States of parents who are subjects of a foreign nation but have a permanent residence and domicile in the United States is a citizen of the United States.20 A father being naturalized, the status of a minor child becomes that of the father.21 A foreign corporation is an alien.24 A native of Porto Rico who was an inhabitant of that island at the time of its cession to the United States by the treaty of April 11, 1899, with Spain,23 is not an alien immigrant within the meaning of the Act of Congress of March 3, 1891.24**

**SS 2. Disabilities and privileges.25-**

**SS 4. Automon law an alien can take property as against all except the state,26 but he could neither take nor transmit**

**SS 4. Warried pending deportation proceed-trial Soc. \[Minn.\] 100 N. W. 732.**

**SS 4. Wrongful arrest. Berman v. Minne-**

**SS 4. Worong-ful arrest. Berman v. Minne-**

\*\*SS 4. Worong-ful arrest.

## 3 Cur. Law. Aliens & 2.

title to real property by descent.\[37\] By treaty\[38\] and by statute,\[39\] the disability of aliens to inherit land has been changed, and their rights depend upon the construction of those statutes.\[40\] An alien's right to take real estate by descent is governed by the statutes of the state in force at the time of the death of the owner thereof through whom such alien claimed title.\[41\] An alien may take property devised from native born children.\[42\] A widow, a nonresident alien, has a dower interest in land conveyed by her husband, a resident alien, alone.\[43\] Where a statute confers on nonresident aliens the right to inherit property within the state, which property is owned by another alien, this right is not vested, but a mere expectancy during the life of the owner, and may be changed by statute without infringing any constitutional rights of such nonresident aliens.\[44\] Where a statute which in any way supersedes the common-law rule is repealed, the common-law rule is revived.\[45\] In some states the law of the domicile of a decedent governs the distribution of his personal property.\[46\] The question of domicile is always one of fact and depends upon the particular circumstances of each case.\[47\] Nonresident aliens can generally maintain an action for damages for a wrongful death where such damages are allowed by statute.\[48\] An alien has no right to raise the question whether a statute is in violation of art. 4, SS 2 of the Constitution of the United

Superior Court for Stevens County \[Vwash.\]

41. Stewart v. Russell, 91 App. Div. 310.

74 P. 686.

37. Donaldson v. State \[Ind.\] 67 N. E. 1029.

01. Art. 1, treaty of July 28, 1900, with Great Brittain (31 Stat. 1933) and holding that said treaty is superior to the Rev. Code of Del. 1852, amended 1893, c. 81. 1. The treaty allowed an alien three years in which to sell property. Doe v. Roe \[Del. Super.\]

55 A. 341.

39. A state has the power to change these rules by statute, Donaldson v. State \[Ind.\] 67 N. E. 1029.

01. Laws 1845, p. 95, c. 115, $ 4, as amend-ed by Laws 1875, p. 32, c. 38, providing that upon the death of any citizen who has purchased and taken a conveyance of land, his heirs may take and hold the same whether heirs or not. Held, has no application where decedent acquired land by descent. Stewart v. Russell, 91 App. Div. 310, 86 N. Y. S. 625. An alien claiming property as the helir of a deceased resident alien under a statute allowing the same must show that deceased was a resident alien. Richardson v. Amsdon.

85 N. Y. S. 442. In New York, real property within the state passes under the will of a nonresident alien and is controlled by the laws of New York. In re Brandanton's Ekistate, 41 Misc. 380, 84 N. Y. S. 937. Under Laws 1874, c. 261, p. 317, and Laws 1875, c. 38, p. 32, nonresident aliens are entitled to inherit In Like manner as if they were then citizens of the United States. Nonresident alien sisters could inherit. Kelly v. Pratt, 41 Misc. 31, SS 87 N. Y. S. 636. In Indiana, an alien who was a resident of the state at the time he acquired real estate, but never declared his intention of becoming a citizen. and was not a resident of the state at the time of his death, had no power to pass his land in the state by descent. Donaldson v. State \[Ind.\] 67 N. E. 1029. Under Laws 1891, p. 7, c. 3, a nonresident alien could take a title by purchase to land in Kansas, defeasible only at the suit of the state. Madden v. State \[Kan.\] 75 P. 1023. See 1 Curr. L. 68.

41. Stewart v. Russell, 91 App. Div. 310.

86 N. Y. S. 625.

42. Richardson v. Amsdon, 85 N. Y. S. 342.

01. McClain's Code 1888, SS 346, as to sale by nonresident aliens, does not change or govern the above. Casley v. Mitchell, 121 Towa, 96, 96 N. W. 725.

01. Donaldson v. State \[Ind.\] 67 N. E.

01. Nonresident alien heirs are not in a position to raise any question in regard to the repeal of Act 1861 (Acts 1861, p. 153, c. 78, 1), providing that aliens who are bona fide residents of the United States may take and convey real estate. Id. Nonresident alien hers are not in a position to question the constitutionality of Act Mar. 9, 1885 (Acts 1885, p. 79, c. 51), repealing statutes allowing aliens to hold and convey property. Id.

01. Donaldson v. State \[Ind.\] 67 N. E. 1029.

01. New York Code Civ. Proc. $ 2694. In re Brandanton's Ekistate, 41 Misc. 380, 84 N. Y. S. 937.

01. Held\* \[140\] ALIENS SS 3. 3 Cur. Law. States." In some states a resident alien may act as an administrator." An alien is incompetent to act as a grand juror." An alien may maintain a personal action sounding in tort in the courts of another country and against a citizen thereof." The civil rights act does not apply to a negro born in Africa without proof that he is a citizen, either native or naturalized." As to the right of a wife of an alien when abandoned by her husband, see note."

SS 3. _Immigration, exclusion and expulsion."_--The right to exclude or expel aliens of any nationality is the inherent and inalienable right of an independent and sovereign nation." The exclusion of alien anarchists" does not violate article 1 of the amendments to the constitution," and congress did not exceed its delegated powers by enacting the provisions of such act." The treaty with Japan proclaimed March 21, 1895, does not prevent the United States from prohibiting Japanese paupers to enter." An alien legally within a country may forfeit his right to remain there." An advertisement for laborers in a foreign country is a violation of the Contract Labor Law, as amended." Bringing a farm laborer into the country under a contract to work for others and advancing him money is prohibited." Expert accountants are not members of a recognized learned profession and as such admissible." An alien immigrant to the United States is an alien who comes or removes to the United States for the purpose of permanent residence." An alien is entitled to be discharged from a hospital

- \[141\] 49. Inheritance tax. In re Johnson's Es- \[142\] \[143\] \[144\] \[145\] \[146\] \[147\] \[148\] \[149\] \[140\] \[141\] \[142\] \[143\] \[144\] \[145\] \[146\] \[147\] \[148\] \[149\] \[140\] \[141\] \[143\] \[144\] \[145\] \[147\] \[148\] \[149\] \[140\] \[141\] \[141\] \[142\] \[143\] \[144\] \[145\] \[146\] \[147\] \[148\] \[149\] \[141\] \[149\] \[140\] \[141\] \[142\] \[143\] \[144\] \[145\] \[146\] \[147\] \[148\] \[149\] \[141\] \[149\] \[140\] \[141\] \[143\] \[144\] \[145\] \[147\] \[148\] \[149\] \[140\] \[141\] \[141\] \[142\] \[143\] \[144\] \[145\] \[146\] \[147\] \[148\] \[149\] \[149\] \[140\] \[141\] \[141\] \[143\] \[144\] \[145\] \[147\] \[148\] \[149\] \[141\] \[149\] \[140\] \[141\] \[142\] \[143\] \[144\] \[145\] \[146\] \[147\] \[148\] \[149\] \[149\] \[140\] \[141\] \[141\] \[142\] \[143\] \[144\] \[145\] \[146\] \[147\] \[148\] \[149\] \[149\] \[140\] \[141\] \[141\] \[143\] \[141\] \[144\] \[145\] \[146\] \[147\] \[148\] \[149\] \[149\] \[140\] \[141\] \[141\] \[142\] \[143\] \[144\] \[145\] \[147\] \[148\] \[149\] \[149\] \[140\] \[141\] \[141\] \[143\] \[141\] \[142\] \[144\] \[145\] \[146\] \[147\] \[148\] \[149\] \[149\] \[141\] \[140\] \[141\] \[143\] \[141\] \[144\] \[145\] \[147\] \[148\] \[149\] \[149\] \[140\] \[141\] \[141\] \[142\] \[143\] \[144\] \[145\] \[146\] \[147\] \[148\] \[149\] \[149\] \[141\] \[143\] \[141\] \[145\] \[147\] \[149\] \[148\] \[149\] \[149\] \[140\] \[141\] \[141\] \[142\] \[143\] \[144\] \[145\] \[146\] \[147\] \[148\] \[149\] \[14 * 8 Cur. Law. ALIENS SS 3. under a writ of habeas corpus to which the immigration authorities are not parties, although he has not been admitted into. the country by such authorities."

- Under acts of congress, Chinese merchants are admitted into the United States; such merchant must have a certificate and that certificate must strictly comply with the law in order to be of any value in establishing the holder's right to enter or remain there;" it must describe him as a merchant," but it is not necessary that his name should appear in the company name." A Chinaman lawfully entering this country as a merchant and carrying on a business as such for some time thereafter cannot be deported after changing his occupation." Such a person entering prior to and being a merchant at the time of the passage of the act for the registration of Chinese laborers is not subject to the provisions of said act, though he subsequently becomes a laborer." It is no defense to an action for deportation that the party had formerly entered this country." A Chinaman being permitted to live in this country unmolested for a number of years, there is no presumption that his arrival antedated the date on which the exclusion act took effect." The latest expression of congress, be it a statute or a treaty, governs as to the right of aliens to enter this country. The constructions placed on these acts will be found in the footnotes." The immigration laws of the country, in so far as they are penal in nature, are to be strictly construed." Under the law aliens should be deported within one year" to the country from which they came." And the owners of the vessels bringing them are obliged to take them back."

- 11999

- 12000

- 121999

- 122000

- \[25\] _Exclusion._${}^{ ext{ ext{ extregistered}}}$--Congress has full authority to confer upon the executive officers of the government plenary power to exclude and deport aliens of any nationality. \[26\] Where a Chinese person is refused admission to the United States, the Federal courts will not interfere by habeas corpus until after a final decision on appeal by the secretary of commerce and labor. \[27\] But such persons having entered the United States must be given a hearing and cannot be deported without due process of law. \[28\] Federal courts will not intervene by habeas corpus to prevent such deportation where such alien had notice though an informal one, \[29\] and was not denied an opportunity to be heard though a want of knowledge of the English language, preventing her from understanding the questions, is pleaded. \[28\] Congress cannot commit to the executive department the right to determine finally the question of the citizenship of a person applying for admission into the United States. \[30\] But the supreme court having decided what facts must exist to constitute a person a citizen of the United States, congress may give the officers of the executive department power to determine the existence or nonexistence of those facts. \[31\] Whether the executive officers of the government in deporting an alien emigrant are proceeding according to law is a judicial question, which may be inquired into on habeas corpus; \[28\] but their decision as to facts is generally conclusive. \[32\]

- \[25\] _IEEE_ **The U. S. officials had' consented to landing passengers on the responsibility of the steamship company and the latter had** **A.1** \*\*130 F. **839.** **84.** **Kaoru Yamataya v. Fisher, 189 U. S. operation without giving a reasonable opportunity to furnish security gives a prima facole cause of action.** \*\*Kahaner v. Interna-tional Nav. Co., 117 F. **979.** **80.** **See 1 Curr. L. 68.** **Kaoru Yamataya v. Fisher, 189 U. S. 86, 23 S.** **In re sing Tuck, 126 F. 386.** **In re re** **81.** **In re re** **82.** **In re re** **83.** **In re re** **84.** **In re re** **85.** **In re re** **86.** **In re re** **86.** **Where can alleged Chinese citizen establishes a prima facole case of citizenship, be is entitled to have his right to remain judicially deter-mined on habeas corpus.** **Sing Tuck v. U. S. 87.** **In this case born in the United States of allen parents. In re sing Tuck, 126 F. 386.** **The decision of executive officers can also include the fact of birth.** **Under Act Cong. Feb. 14, 1903, c. 552, $\\lx@math@degree$ 7, $\\lx@math@degree$ 82 Stat. 828 U. S. v. Sing Tuck, 194 U. S. 161, 24 S. C. 621.** \*\*The executive officers have no power to depart an alien who has entered the country and has become subject in all respects to its jurisdiction and a part of the population, without giving him an opportunity to be heard upon the question involving his right to be and remain in the United States. \[25\] **Kaoru Yamataya v. Fisher, 189 U. S. 86, 25 S. Ct. 611, 47 Law. Ed. 721.** \*\*Due process of law: Where, under the law, such persons have a tribunal in which to be heard, a hearing on notice, with opportunity to be heard, a hearing on notice, * 8 Cur. Law. ALIENS SS 3. \*\*Registration."--\*\*The provisions for Chinese registration made by the act of May 5, 1892, SS 6,91 were not repeled by the act of April 29, 1902, SS 1,92 nor are they inconsistent with the treaty of December 8, 1894, with China.98

Certificate.94--\*\*The certificate must strictly comply with the requirements of the laws of this country in order to be of any value in establishing the holder's right to enter or remain here.95 In determining the right of a Chinese person to enter, the immigration officers may disregard the collector's certificate.96

\_Deportation; procedure.97--A proceeding to expel or exclude aliens under the Federal law is civil, and not criminal in its nature,97 therefore the fact that defendants refused to testify may be considered by the commission,98 but is not of itself ground for deportation.1 Upon a writ of habeas corpus by an excluded Chinese, no bail is allowed,9 nor is such alien entitled to bail, pending appeal from a commissioner's order of deportation,9 though it may be granted.4 In a proceeding for the exclusion of an alleged Chinese person, the trial of the issue as to whether or not accused is a Chinese person is to be regarded as criminal in its nature.9 No formal complaint or pleadings are required in proceedings for the

shown, the declision cannot be reviewed by

business carried on by him. U. S. v. Gin the courts on the question of the existence or character of the disease \[Act of Mar. 3, 1903, 2. 1012, 32 Stat. 1214, $ 10, see also

Curr. L. 69.

prior act of Aug. 18, 1894, c. 301, 28 Stat.

390 (U. S. Comp. St. 1901, p. 1303)\]. In re

Newvirth, 123 F. 347. The decision of the proper customs or immigration officer ad-

v. Hilla, 124 F. 831; In re Ah Ta, 125 F.

v. Visser, 175. See 1 Curr. L. 69.

v. Hilla, 124 F. 831; In re Ah Ta, 125 F.

v. Visser, 175. See 1 Curr. L. 69.

v. Wherc, 189. Where in a proceeding to exclude eer-

denying him entry, is conclusive in subsequent proceedings for his deportation for being unlawfully in this country, U. S. v. Lue

Tee, 124 F. 803. The deportation deece of

a United States commissioner defines and

establishes the status of a Chinese person

aligned to be unlawfully in the United States. It is therefore relevant and competent evidence of the status of such person and is

sufficient to justify a grand jury in finding an indicment against defendant for willfully

bringing such person into the United States

in violation of the Chinese Exclusion Act.

U. S. v. Hilla, 124 F. 831. A decision of the immigration board of special inquiry that an immigrant is an anarchist is not open to re-

view by the United States circuit court in

habaeus corpus proceedings. U, S. v. Wll-

Hams, 126 F. 253. Under Act of Mar. 3, 1903 ($2 Stat. 1218, c. 1012, U. S. Comp. St. Supp. 1903, p. 180) the time of the entry of an

allen arrested and held for deportation thereafter

under 18 one involving the jurisdiction of

the officers assuming to exercise such authority and may be inquired into by a court

on a writ of habeas corpus. In re Lea, 126 F. 234.

90. See 1 Curr. L. 68.

01. 27 Stat. at L. 25, c. 60, U. S. Comp. Stat. 1901, p. 1318, $ 6, as amended by the

act of November 3, 1893 (28 Stat. at L. 7, c. 14, U. S. Comp. Stat. 1901, p. 1322). Ah

How v. U. S., 193 U. S. 65, 24 S. Ct. 357. See

1 Curr. L. 68.

92. 32 Stat. at L. 176. c. 641. Ah How v. U. S., 193 U. S. 65, 24 S. Ct. 357.

01. 28 Stat. at L. 1210. Ah How v. U. S., 193 U. S. 65, 24 S. Ct. 357.

01. See 1 Curr. L. 68.

01. Merchants' certificate must state the nature, character, and estimated value of the

business carried on by him. U. S. v. Gin

Hing \[Ariz.\] 76 P. 639.

96. In re Ong Lung. 125 F. 814. See 1

Curr. L. 69.

97. See 1 Curr. L. 69.

01. U. S. v. Moy You, 126 F. 226; U. S.

v. Hilla, 124 F. 831; In re Ah Ta, 125 F.

75. See 1 Curr. L. 69.

determination of the right of Chinese laborers to remain in the United States.${}^{\\lx@sectionsign}$ Under the Chinese Exclusion Act,${}^{\\lx@sectionsign}$ the burden of proof is upon the United States to show that a person arrested as a Chinese alien is a Chinese person or a person of Chinese descent.${}^{\\lx@sectionsign}$ This proof can be made by an expert in the science of anthropology.${}^{\\lx@sectionsign}$ Expressions of opinion,${}^{\\lx@sectionsign}$ and evidence obtained by inquisitorial examinations, are inadmissible.${}^{\\lx@sectionsign}$ This proceeding being criminal in its nature, the accused is not required to testify.${}^{\\lx@sectionsign}$ The burden of proving his right to remain in the United States is upon the Chinese person sought to be deported,${}^{\\lx@sectionsign}$ or, in case he is ordered deported, to sustain his claim of right to be removed to a country other than China on the ground that he is a subject or citizen of such country.${}^{\\lx@sectionsign}$ The fact that a Chinaman was engaged in business as a merchant at the time of the passage of the act providing for the registration of Chinese laborers${}^{\\lx@sectionsign}$ may be established by Chinese witnesses.${}^{\\lx@sectionsign}$ A Chinese person's certificate is the sole evidence permissible on the part of the person producing it to establish his right of entry into the United States,${}^{\\lx@sectionsign}$ nor is this rule changed by the fact that he has been permitted to enter the United States.${}^{\\lx@sectionsign}$

_New trial and appeal.${}^{\\lx@sectionsign}$--Application for a new trial after judgment of deportation had been entered before a United States commissioner should be addressed to the commissioner.${}^{\\lx@sectionsign}$ Cumulative evidence is not ground for a new trial,${}^{\\lx@sectionsign}$ and unexcused delay in attempting to obtain a new trial will preclude one.${}^{\\lx@sectionsign}$_ From an order denying the motion for a new trial, appeal should be taken to the United States district court;${}^{\\lx@sectionsign}$ but an appeal to "the judge of the district court of that district" is in effect an appeal to the district court and not to the district judge, as an individual,${}^{\\lx@sectionsign}$ and the district court must enter a final order

- U. S. v. Hung Chang, 126 F. 400. A United States commissioner is not, as a matter of law, bound to be satisfied by the testinorm of a Chinese laborer that he was disabled by sickness from obtaining the certificate of residence required in order to entitle him to remain in the United States.${}^{\\lx@sectionsign}$ U. S. v. Hung Chang, 126 F. 400. A written statement by a United States commissioner that a Chinaman was brought before him charged with being unlawfully and three months' experience as a government Chinese Inspector and from assoclation with the righth to remain in the United States by reason of being a citizen thereof.${}^{\\lx@sectionsign}$ In not such an expert. Id. One who has not read anything on the subject and this only experience with regard thereto was acquired in his position as Chinese inspection for a year is not such an expert. Id. A person whose only means of judging between a Chinese, Japanese, or Korean was the method of arranging hair or the language-spoken is not such an expert. Id.

- 10. Statements by alleged Chinese altin that he was born in China and that his parents and grandparents were Chinese, held inadmissible. U. S. v. Hung Chang, 126 F. 400. 11. Declarations made by a Chinese under arrest and with no admontion that it will be used against him are inadmissible. U. S. v. Hung Chang, 126 F. 400. 12. U. S. v. Hung Chang, 126 F. 400. 13. Act of May 6, 1852 (27 Stat. at L. 1301, p. 1319) 13.

- 3 Cur. Law. **ALIENS SS 4.**

in order that an appeal will lie to the circuit court of appeals. \[28\] There is no right of appeal by the United States from an order of a commissioner discharging a Chinese person arrested for being unlawfully in this country. \[28\] On an appeal from the order of the commissioner to the United States district court, the hearing is de novo. \[27\] The decision of the commissioner is conclusive unless appealed from, \[28\] and as a general rule findings of fact by a commissioner will not be disturbed on appeal. \[29\] Chinese persons after an adverse decision on their right to enter are not entitled to then for the first time raise the question of citizenship in the courts by proceedings in habeas corpus. \[30\]

SS 4. _Naturalization._\*\*".\*\*The power given congress by the constitution to establish an uniform rule of naturalization means that congress should make uniform rules whereby aliens may become citizens of the United States and of the state where they reside. \[32\] Congress may lawfully empower state courts to admit qualified aliens to citizenship, \[33\] and the state courts may legally exercise this power without legislative authority or permission from the states which created them, \[34\] and it is not necessary that a state court possess all of the common-law jurisdiction to qualify it to naturalize aliens; it is sufficient that it has some. \[35\] State courts while entertaining jurisdiction in naturalization proceedings, remain state courts, \[36\] hence perjury committed in such a proceeding is punishable by the order of the judge may be entered as the final order of the court. In re U. S., 194 U. **S.**194, 24 S. Ct. 629. An appeal from a commissioner's order in deportation proceedings **Scott V.**, Sandford, 19 How. (U. S.) 393, 15 is to the district court not to the judge **Law.** Ed. 691: Boyd V.**, State, 143 U. S. 160, 36 thereof. U. S. v. Hung Chang \[C. C. A.\] 130 F. 439. **134, Fed.**, Cas.** No. 5,599; Com. V., Towres, 5 \*\*S.**25.** U. S. v. Hung Chang \[C. C. A.\] 130 F. **Ligh \[F.\] 131.**, Barzias v. Hopkins, 2 **439: Tsoi Yli v. U. S. \[C. C. A.\] 129 F. 585. **26.** 1 134, Sect. 13, 1888, 25 Stat. 479, c, 1015 (U. S. Comp. St. 1910, p. 1317), which expressly gives the right of appeal to the defendant in case of conviction, by implication limits such right to him. U. S. v. Mar Ying Yuen, 123 F. 159. **27.** It is not heard on the testimony taken before the commissioner. U. S. v. Hung Chang, 126 F. 400. **28.** In re Sing Tuck, 126 F. 386. **29.** Findings as to age of alien, and credibility of witness.**, Oak Foo v. U. S. \[C. C. A.\] 128 F. 697. **30.** In re Sing Tuck, 126 F. 386. **31.** See 1 Curr. L. 70. **32.** Whether or not this power is exclusive query? U. S. v. Severino, 125 F. 949. **33.** Levin v. U. S. \[C. C. A.\] 128 F. 826. **34.** Levin v. U. S. \[C. C. A.\] 128 F. 826. **35.** St. Louis court of appeals has common-law jurisdiction so as to naturalize citizens. Levin v. U. S. \[C. C. A.\] 128 F. 826. A court has common-law jurisdiction so as to naturalize aliens under $\\lx@sectionsign$ 2165, Rev. St. (U. S. Comp. St. 1901, p. 1329), when it has the power to punish offenses, to enforce rights, or to redress wrongs recognized by the common law or courts which are governed by the principles, rules and nasages of the common law in the determination of some of the causes of which they have jurisdiction. Levin v. U. S. \[C. C. A.\] 128 F. 826. **NOTEL Powers of state legislatures and courts in respect to naturalization: While there has been some conflict, it is now re- 3 Curr. Law-10**

**3 Curr. Law-10**

\*\*4
**ALIENS SS 4.**

**3** Car. Law. state court,"7\*\* and the Federal court cannot entertain jurisdiction in the absence of a Federal statute conferring it."

The process of naturalization is a judicial act."8 The burden of proving naturalization is on the party asserting it,"40 but merely negative presumptions are not sufficient to support this burden.41 The issuance of naturalization papers may be presumed,"2 but where there is no record or memorandum of a judgment of naturalization, a common-law court will not create one.43

Footnote 41: The author is grateful to the anonymous referee for the support of this work.

A person aiding or abetting, by false impersonation or the use of a false certificate of citizenship, fraudulent naturalization, is guilty of a misdemeanor.44 U. S. Rev. St. SS 5424 does not include the uttering of a forged naturalization certificate by a person other than the person applying therefor or appearing as a witness for the person so applying.45

**ALIINONY.**

**SS 1. Nature and Purpose of the Allowance** **SS 5. Amount, Character, and Duration (140).**

**1**2. Jurisdiction and Power to Award\*\* **(151).**

**SS 6. Procedure and Practice (152).**

**SS 7. Decree, Enforcement, and Discharge (145).**

**SS 4. Reasons for and Against Provisional Allowances (145). Permanent Allowances (149).**

**SS 1. Nature and purpose of the allowance.46-A claim for alimony is not a property right, and after it has been awarded it does not become a part of the**

**38. U. S. v. Severino, 125 F. 949. By act** **establishing his naturalization. Richardson July 14, 1870, c. 254, SS 1, 16 Stat. 254 (U. S. U. S.).**

**S. Amendon, 85 N. Y. S. 342. An affidavit by Comp. St. 1901, p. 3654) confers on Federal courts jurisdiction of a redjury committed in naturalization proceedings in a state court, in the procedure prescribed by congress,**

**The same thing that the author is not a property right, and after it has been awarded it does not become a part of the**

**38. U. S. v. Severino, 125 F. 949. By act** **establishing his naturalization. Richardson July 14, 1870, c. 254, SS 1, 16 Stat. 254 (U. S. U. S.).**

**Comp. St. 1901, p. 3654) confers on Federal courts jurisdiction of a redjury committed in naturalization proceedings in a state court, in the procedure prescribed by congress,**

**The same thing that the author is not a property right, and after it has been awarded it does not become a part of the**

**38. U. S. v. Severino, 125 F. 949. By act** \*\*establishing his naturalization. Richardson July 14, 1870, c. 254, SS 1, 16 Stat.

3 Cur. Law. ALIMONY SS 2. 147

wife's estate in bankruptcy," but she is a creditor who may be defrauded," and whom the legislature cannot divest of her right." The ward of alimony settles the property relation of the parties," and is not contingent on their obtaining the right to re-marry." An allowance for the support of a child in Michigan is," and in Illinois is not, "alimony.""

SS 2. \_Jurisdiction and power to award."--\_Personal service within the state" in proceedings for alimony is necessary to acquire jurisdiction." After a divorce has been obtained on service by publication the court has no power to order alimony," but defendant may be compelled to support his children, if jurisdiction is subsequently acquired in the divorce suit," or in an independent proceeding." An afflavit of residence is sometimes jurisdictional." Under a statute providing that the guilty party in a divorce proceeding shall forfeit all rights and claims under and by virtue of the marriage, judgment for alimony should not be rendered against a plaintiff who is granted a divorce," but the statute does not preclude enforcement of a judgment for alimony pendente like by the guilty wife." In Connecticut the court is empowered to order payment of alimony in a proceeding to annual an illegal marriage, as well as in a divorce proceeding." The court's power in such a case is not limited to cases where the woman is without fault or not equally at fault with the man.\[44\] A valid marriage is a prerequisite to the granting of either permanent or temporary alimony.\[45\]

SS 3. \_Stage a condition of the divorce proceeding.\[46\]--In New Jersey a wife can,\[97\] and in Kentucky she cannot, obtain alimony where the decree in divorce has awarded her none.\[83\] Alimony may be awarded after the case has been returned from an appellate court.\[69\]

SS 4. _Reasons for and against provisional allowances.\[70\]--The allowances to the wife pendente life for maintenance and to carry on suit are within the sound discretion of the court,\[71\] which is a broad one, and will only be reviewed where grossly abused.\[72\] Though the husband sues for a divorce because of cruel treatment\[73\] or adultery, adequate allowance should be made.\[74\] A wife is entitled to support pending an action for separation unless the husband is relieved there._

4562\]. Stapleberg v. Stapleberg \[Conn.\] 58 not, as a general rule, be maintained as an independent proceeding after the parties have been divorced. Wilde v. Wilde, 36 Iowa, 319; Bassett v. Bassett, 99 Wis. 344, 74 N. W. 780, 67 Am. St. Rep. 843; Downey v. Downey, 98 Ala. 373, 13 Sc. 412, 21 L. R. 4. 677. But an independent action may be allowed where jurisdiction is obtained by constructive service. Adams v. Abbott, 21 Wash. 29, 66 P. 931; Weldman v. Weidman, 67 Ohio St. 101, 48 N. E. 506: Van Orsdal v. Van Orsdal, 67 Iowa, 35, 24 N. W. 679. And alimony need not be determined in the judgment dissolving the marriage relation if the judgment reserves the right to settle the question afterwards. Galusha, V. Galusha, 138 N. Y. 273, 32 N. E. 1062.--From notes to In re Popejoy \[Colo.\] 77 Am. St. Rep. 222, 228; and Downey v. Downey \[Ala.\] 21 L. R. 677.

69\]. The reversal of a divorce decree in the supreme court does not affect the jurisduction of circuit court to allow counsel fees. Harding v. Harding, 105 Ill. App. 363.

70\]. See 1 Curr, L. 71.

71\]. Will not be controlled where no abuse. Hollman v. Holloman, 118 Ga. 796, 45 S. E. 599. Where husband cruelly mistreated wife. discretion of court in awarding temporary alimony and attorney's fees will not be controlled. Godby v. Godby, 118 Ga. 541, 45 S. E. 439. Expenses, property, and income of husband considered, and held that wife, in action for separation, should have as temporary alimony $10 a week and use of residence. Bressette v. Bressette, 88 N. Y. S. 880. While the court In an action for separation cannot direct that plaintiff have the use of the residence pendente life, it may order temporary alimony on the basis of such use being conceded and the defendent will be deemed to have acquessed therein unless he objects specially thereto. Id.

72\]. Where defendant was possessed of estate worth $75.000, mostly land, and had been enjoined from disposing of it, and had paid temporary alimony as ordered by court, the appointment of receiver judge in vacation for personal property was an abuse of discretion. Goff v. Godf \[W. v.\] 46 S. E. 177.

73\]. Baler v. Baler \[Minn.\] 97 N. W. 671.

74\]. Bordeaux v. Bordeaux \[Tont.\] 75 P.

75\]. In a suit for divorce by husband, court may order temporary alimony, attorney's disagreements and support temporary alimony as ordered by him * 3 Cur. Law. ALIMONY SS 4.

from by agreement through a trustee or by misconduct on the part of the wife.78 Counsel fees should be allowed though the divorce was improperly granted,78 and though an appeal was unsuccessful,77 unless it was without merit,78 and an allowance may be increased where a jury disagrees,79 but will not be made for past services,80 or where an allowance for fees is included in the decree for alimony.81 The amount to be awarded depends on the value of services rendered82 and rests in the sound discretion of the trial judge,83 who in deciding the amount should use his own judgment and experience and not be wholly governed by affidavits of attorneys.84 And a contract to pay the attorney according to the amount of alimony recovered is void.85 Unusual grounds of expenditure will be considered in allowing suit money.86 The power of the court to compel the husband to pay the wife's counsel fees in an action for divorce is not exhausted by the final judgment.87 When the court has adjudged that plaintiff is not entitled to a divorce, it has no power to order an allowance for suit money.88

_Permanent allowances.80_--Permanent alimony is usually only given where the husband has been guilty of a matrimonial offense,90 and is conditional on the wife's continued chastity.91 But in some jurisdictions it is allowed even when the husband is blameless.92 A wife granted a divorce with alimony, cannot be required to release her dover or surrender notes held against the husband, as a condition precedent to the payment of alimony.\[93\] An antenuptial contract does not bar the award of alimony.\[94\] though it is proper to deny it where the wife is at fault,\[95\] especially if she has means of her own.\[96\] The fact of a separation and a division of property is not a bar to alimony, though to be considered in determining the amount.\[97\] Though the Kentucky supreme court cannot disturb the divorce it will consider the merits of the judgment to ascertain if the alimony was rightfully awarded.\[98\]

_Support of child.\[99\]--Where the wife is entitled to divorce and custody of child, she should have an allowance, in addition to alimony, to maintain and educate the child,\[1\] the amount of which is within the sound discretion of the trial court,\[2\] and cannot be discharged in bankruptcy.\[8\]_

_5. Amount, character, and duration.\[9\]--The amount of alimony is in sound discretion of the court,\[6\] taking into consideration the husband's means,\[6\] including his pension,\[7\] the wife's lack of means,\[6\] and the children to be supported.\[9\]_

ground of cruel conduct, the husband was an award of alimony, which is an allow-found blameless and on his cross-petition since to a wife who is living apart from was awarded a divorce because of the wife's adultery, the award to her of $1,000 alimony order to support a child cannot be discharge-was not an abuse of discretion of court, nor aged in bankruptcy, though a past obligation a reward for her infidelity, but was proper to his former wife for support of child will that she might not be left destitute. Pauly v. Pauly \[Okl.\] 76 P. 148.

\_98.

3. Cur. Law. ALIMONY SS 5. **151**

_Permanent awards; division of property._\*\*10--Permanent alimony may,**11** \*\*and in Indiana must be awarded in gross.**12** \*\*In Nebraska really cannot be awarded as alimony.**13** \*\*The court may consider the financial condition of the parties and their mutual conduct,**14** \*\*and will not ordinarily award the wife more than one-third of the property.**16** \*\*Property conveyed in fraud of creditors will be considered,**16** \*\*but a secret conveyance is not necessarily fraudulent.**17** \*\*Where wife has an interest in her husband's property other than such as attaches to her status as a wife, as if her earnings have been invested by him therein, the court may properly vest part of it in her.**18** **Final division and distribution of the estate is usually preferable to an award of alimony as it ends litigation between the**

**four children, an award of 52,400 a year,** **he had little personality, only a small salary, when the husband's income is 44,600 and the** **an equity of 51,600 in real estate, many divorces is for adultery, is proper. Harris** **debts, and the wife contributed nothing, v. Harris, 83 App. Dlv. 123, 82 N. Y. S. 68. will not be disturbed. Donald-on v. Don-The allowance to wife of 5300 a year for** **dadson \[Mich.\] 98 N. W. 448. Where divorce the support of two children during infancy, is granted for husband's wrong, an award of 5500 a year to herself for life being a little more than half of defendant's income, support three minor children, and husband's property of 51,400 was jointly accumulated, was not excessive. De Roche v. De Roche** **App. Dlv. 166, 84 N. Y. S. 37. In a suit for separation where the wife is without means \[N. D.\] 94 N. W. 767. Where each part of found guilty of cruel treatment and husband has an income of 2,000 a year, 510 a was given divorce, and wife on separation were and 350 counsel fee should have been had secured goods valued at 8400 (one-half allowed. Vaughn v. Vaughn, SS 2 App. Dlv. 611. 85 N. Y. S. 443. Where the husband was worth $5,000, but she was allowed $600. Lian-had successful business, and the wife was in poor health and had two minor children \[N. W. 96. 175. 95 to support, $1,800 was not excessive. Wil-).** **15** **Where defendant, an elderly farmer,** **iams v. Williams \[Vis.\] 98 N. W. 431. Suf-ficiency where wife left husband because of his neglect and indifference and was poor.** **Borening v. Shorneig, 24 Ky. L. R. 1288, 71 S. and W. 431. That a wife was in an inanse hos-judment for 2,000 ailmony, and $150 attor-pital at low expense and the husband had large expenses because of sickness, held proper reasons for reducing. Davis v. Davis,** \*\*ifle, some stock, and 110 parties.19 In Minnesota, by statute, a wife who is granted a divorce on the ground of the adultery of her husband becomes at once entitled to her dower interest in his property as though he were dead,20 and is entitled to partition of lands conveyed by her husband without her consent.21 Her interest is subject in its just proportion, with his other real estate, to the payment of his debts,22 but a judgment recovered against her husband after he has conveyed property, but before the divorce, is not a legal lien on her one-third interest,23 and claims of the creditors cannot be enforced against her interest in an action by her for partition.24

Footnote 33: The author 3 Our. Law. ALIMONY SS 7.

for alimony in a state court will be given full faith and credit in the Federal courts. \[41\] A court will apply the law of its own state in construing a judgment for alimony given in a foreign state in the absence of proof of the laws of the foreign state relating to such judgment. \[42\]

SS 7. _Decree, enforcement and discharge._\[43\]--The order must run to the wife.'\* as to past payments it is not affected by her death, \[48\] or reversal in an appellate court, \[48\] and it may be enforced by refusing to allow husband to proceed in the suit until he has complied. \[47\]

_Vacating or modifying discharge._\[48\]--Defendant's leaving the jurisdiction\* or statutes limiting the time as to opening decrees do not affect the court's discretion to modify a decree, \[50\] upon clear proof of changed circumstances, \[51\] or a mistake in making the original decree, \[51\] but not upon any grounds which could have been presented at the original trial. \[53\] or appeal. \[54\] A reconcilement between the parties discharges defendant. \[56\] As to the effect of a second marriage see note. \[56\]

_Attachment of the person._\[57\]--Failure to comply with terms of decree awarding alimony, including support of children, \[58\] unless it be alimony in gross, \[59\] sub-

Que installments of the alimony awarded. Introduced. Goodsell v. Goodsell, SS 2 App. Arlington v. Arrington, 127 N. C, 190, 37 S. E. Div. 65, 81 N. Y. S, 806. \[512, 52 L. R. A. 201. 54. Where the judgment of trial court awarding alimony was affirmed, though by many in instalments followed in construing the dismissal of a bill of exceptions, the trial court was without jurisdiction to modify the same on any ground which might have been relied on the bill of exceptions. Sumuer V. Fred \[N. J. Eq.\] 68 A. 611. \[43, See 1 Curr. L. 73. 44. Kellogg v. Stoddard, 89 App. Div. 137, 84 N. Y. S. 1015. \[45, Durland v. Durland, 67 Kan. 734, 74 P. 274. 46. Where on appeal $250 was paid Into court pursuant to order as temporary alimony, and then parties became reconciled and lived together and then again separated, defendant was discharged. Stendal v. Ackermann, SS 8 N. Y. S. 468. \[56, NOTE. Effect of a second marriage as a credit to the $500 permanent alimony wrapped to play alimony: I. Remarked by trial court. Mercer v. Mercer v.

jects the party to penalty for contempt, unless he shows his inability to perform its terms,\[60\] when it is not permitted as being "imprisonment for debt."\[81\]

_Execution\[82\]_ may be had on alimony awarded in gross."\[83\]

\_Subjection of property.\[64\]--\_Court may order property sold if alimony is not paid by a fixed date.\[65\]

SS 8. \_Suits for annulment and actions for separate maintenance.\[66\]--\_A suit or a cross biller\[7\] for separate maintenance may be maintained by a wife who is living apart from her husband,\[68\] without fault on her part,\[69\] or where she was justified in leaving him,\[70\] and temporary alimony may be awarded her.\[71\]

ALTERATION OF INSTRUMENTS.

**SS 1. Definition, Disintections, and What** $\\lx@sectionsign$ 4. Plending and Evidence (157).

**SS 5. Curing or Hatifying Alterations** (158).

\*\*SS 6. The fact that defendant has married again and so exhausted his income, which was the same as when the alimony was defended, will not relieve him from the penalty for contempt. State v. Brown, 31 Wash. 397. 72. Se6. A husband who refuses to pay ailmony as ordered by the court, having means to do so, may be attached for contempt (Webb v. Webb \[A1a.\] 37 So. 96); but if he is without means he cannot be completed to pay by that method, though his inability to pay results from willful refusal to work (Id.).

\*\*SS 6. Where the order committing petittioner for contempt reited that he willfully refused to pay alimony, but did not recite that he was able to pay, he will be discharged. In re Cowden, 135 Cal. 244, 73 P. 156. 62. See 1 Curr. L. 75. 63. Marsh v. Marsh \[Ind.\] 70 N. E. 154. 64. See 1 Curr. L. 75. 65. Court had power to order that if alimony was not paid in seven months the homesetead should be sold and proceeds used in payment of alimony provided the wife paid a joint judgment against herself and husband. Johnson v. Johnson, 66 Kan. 546, 72 P. 66. See 1 Curr. L. 75. 67. Suit for separate maintenance may be made by cross-petittion in a divorce suit by husband. Goldie v. Goldie \[Iowa\] 98 N. W. 650. 68. A wife who is justifably living apart from her husband may, independently of an action for divorce, recover an allowance for her separate support. Baler v. Baler \[Minn.\]

**SS 8.** \_Suits for annulment and actions for separate maintenance.\[66\]--\_A suit or a cross biller\[7\] for separate maintenance may be maintained by a wife who is living apart from her husband,\[66\] without fault on her part,\[66\] or where she was justified in leaving him,\[70\] and temporary alimony may be awarded her.\[71\]

**SS 1.** \_Definition, disintections, and what constitutes.\[72\]--\_Alterations, interlineations, or erasures are material if they change the legal effect of the instrument, its operation, or the liability of the parties thereto.\[73\]

If the alteration is made in-contempt proceedings, but by execution, which justified her in separating from him. Marsh v. Marsh \[Ind.\] 70 N. E. 154. Levin v. Levin \[S. C.\] 46 S. E. 945. 60. The fact that defendant has married again and so exhausted his income, which was the alimony was defended sets in cross-petittion method, will not relieve him from the penalty for contempt. State v. Brown, 31 Wash. 397. 72. Se6. A husband who refuses to pay ailmony as ordered by the court, having means to do so, may be attached for contempt (Webb v. Webb \[A1a.\] 37 So. 96); but if he is without means he cannot be completed to pay by that method, though his inability to pay results from willful refusal to work (Id.).

\*\*SS 6. Where the order committing petittioner for contempt reited that he willfully refused to pay alimony, but did not recite that he was able to pay, he will be discharged. In re Cowden, 135 Cal. 244, 73 P. 156. 62. See 1 Curr. L. 75. 63. Marsh v. Marsh \[Ind.\] 70 N. E. 154. 64. See 1 Curr. L. 75. 65. Court had power to order that if alimony was not paid in seven months the homesetead should be sold and proceeds used in payment of alimony provided the wife paid a joint judgment against herself and husband. Johnson v. Johnson, 66 Kan. 546, 72 P. 66. See 1 Curr. L. 75. 67. Suit for separate maintenance may be made by cross-petittion in a divorce suit by husband. Goldie v. Goldie \[Iowa\] 98 N. W. 650. 68. A wife who is justifably living apart from her husband may, independently of an action for divorce, recover an allowance for her separate support. Baler v. Baler \[Minn.\]

**SS 8.** \_Suits for annulment and actions for separate maintenance.\[66\]--\_A suit or a cross biller\[7\] for separate maintenance may be maintained by a wife who is living apart from her husband,\[66\] without fault * 3 Cur. Law. -- Alteration of Instruments SS 2. --

nocently, or by mistake, and neither those liable on the instrument nor any third party has suffered any injury in consequence thereof, the alteration is immaterial." The alteration must be made by a party to the contract, or by a stranger with his consent;" an alteration made by a stranger without the consent of either party being a mere spoliation." The evidence being conflicting, it is a question for the jury whether or not the alteration was made by a stranger."

SS 2. -- _Particular instruments._"--Changes in a negotiable _promissory note_ after delivery which alter the medium of payment," rate of interest," time when interest commences to run," date when interest is due," liability of indorsers," cutting a note from a memorandum, limiting its effect as a negotiable instrument:

the lesson, giving the former the privilege of -- ment,"\* or striking out a clause providing for the payment of attorney's fees for collection,"5 are material alterations. To add a word of description to the name of an indorsee is not a material alteration of a note or draft when it is intended that the paper shall go to the indorsee in the exact capacity indicated by the title affixed."5 Alterations made in a _dead_ subsequent to its execution and delivery do not affect its validity."5

**SS 3**. \_Effect of material alteration; rights of parties."6--In order to render a written contract void, because of alterations made therein, it must appear that the writing has been intentionally altered in a material part by a person claiming a benefit under it, with intent to defraud the other party."6 Alterations may be impliedly authorized."6

A material alteration of a promissory note after it has been signed by the parties and without their consent renders it void,"6 and when made with intent to defraud the debtor, no recovery can be had on the original consideration."6 Nor can the person who made the alteration take advantage of it as a defense."6 If

blank Indorsement. Harnett v. Holdrege

\[Neb.\] 97 N. W. 443.

\[Neb.\] 98. Defendant signed in two places a one-

\[92. Hocknell v. Sheley, 66 Kan. 857, 71 P.

paged Instrument purporting to be an application for live stock insurance, lower part

\[93. Hocknell v. Sheley, 66 Kan. 857, 71 P.

\[94. Hocknell v. Sheley, 66 Kan. 857, 71 P.

\[95. Hocknell v. Sheley, 66 Kan. 857, 71 P.

\[96. Hocknell v. Sheley, 66 Kan.

the alteration be immaterial, while the note cannot be sued on or introduced in evidence, yet the debt it evidences remains a binding obligation.\[94\]

## 8 4. Pleading and evidence.\[95\]

In order to affect the question of admissibility of a writing in evidence, it must appear that the alteration was in a part material to the question in dispute.\[96\] Alterations in instruments are presumed to have been inserted innocently, and before acknowledgment and delivery. But if there are suspicious circumstances apparent on the face of the instrument offered in evidence, the party producing the instrument, and claiming under it, is bound to remove the suspicion by accounting for the alteration,\[97\] but the contrary rule prevails under the civil law.\[98\] But this presumption of innocence does not extend to the alteration of negotiable instruments, where the party producing and claiming under the paper is bound to explain every apparent and material alteration.\[99\] Where a note is apparently made payable in the state in which it was made, the laws of that state govern as to whether or not the alteration.

Sherin's deed: Hold, while the pre-sumption was that the alterations were made before acknowledgment and delivery, the appearance of the deed excited suspiral alteration if made with fraudulent intent will avoid the instrument. Miller v. Gilleath, I. Pa. Rep. 77 Pa. 246; Miller v. Gilleath, I. Pa. Rep. 77 Pa. 267; Miller v. Gilleath, I. Pa. Rep. 77 Pa. 268; Wilson v. Powers, 56 N. Y. 22.-From note to Draper v. Wood \[Mass.\] 17 Am. Rep. 97, 105.

If the alteration is made innocently or by mistake, and neither those liable on the instrument nor any third party has suffered any injury in consequence thereof, nor can he be injured if the note is restored to its original condition, it can be so restored. James v. Tilton, 183 Mass. 275, 67 N. E. 326, 95. See 1 Curr. L. 78.

NOTE. Pleading an altered bill or note: Where altered bills are declared on in their original form, the alteration must be specially pleaded; if declared on in their altered form the traverse of the acceptance is sufficient. Hirchman v. Budd, I. R. 8 Exch. 171. See, also, Hemming v. Trenenty, 9 Adol. & El. 926; Parry v. Nicholson, 13 Mesa. & W. 778; Davidson v. Cooper, 11 Mesa. & W. 778; Calvert v. Baker, 4 Mees. & W. 417; Cock V. Coxwell, 2 Cromp., M. & R. 291.-From note to Draper v. Wood \[Mass.\] 17 Am. Rep. 97, 105, 106.

Evidence held insufficient to show alteration: Evidence held insufficient to support a finding that a note for $600 had been raised from $60 by unauthorized addition of a figure. Rogers v. Costigan, 25 Ky. L. R. 1349, 78 S. W. 121. In an action against the surefte on a trust agreement, evidence held insufficient to show that, after it had been signed by the surefte, a provision to the effect that additional security might be required.

But this presumption of innocence does not extend to the alteration of negotiable instruments, where the party producing and claiming under the paper is bound to explain every apparent and material alteration.\[99\] Where a note is apparently made payable in the state in which it was made, the laws of that state govern as to whether or not the alteration.

## 8. Cur. Law. Alteration of instruments SS 4.

The alteration is made in evidence, but it is not possible to use the alteration to the extent of the alteration. While the alteration is made in evidence, it is not possible to use the alteration to the extent of the alteration, but it is not possible to use the alteration to the extent of the alteration, but it is possible to use the alteration to the extent of the alteration.

## 98. Law. Alteration of instruments SS 4.

The alteration is made in evidence, but it is not possible to use the alteration to the extent of the alteration. While the alteration is made in evidence, it is not possible to use the alteration to the extent of the alteration, but it is possible to use the alteration to the extent of the alteration.

The alteration is made in evidence, but it is possible to use the alteration to the extent of the alteration. This is not possible to use the alteration to the extent of the alteration.

The alteration is made in evidence, but it is possible to use the alteration to the extent of the alteration.

- 158 ALTERATION OF INSTRUMENTS SS 5. 3 Cur. Law.

tion is material.\[1\] Where nothing to the contrary appears, it will be presumed that the alterations wcre contemporaneous with the execution of the instrument.\[2\] Where an action on an instrument is defended on the ground of an alteration subsequent to its execution, the burden of proof remains on the plaintiff, to prove the contract on which he has declared.\[3\] A note assigned after alteration will be admissible in an action by the assignee against the assignor on the implied warranty of genuineness.\[4\]

SS 5. _Curing or ratifying alterations.\[5\]-A party to an altered or forged nc-gotiable instrument may bind himself by acknowledging it and promising to pay it, without a new consideration, if the instrument is in the hands of one who had no connection with the alteration or forgery, and the promise is not invoked in an attempt to compound a felony; but such acknowledgment or ratification, in order to bind, must be with full knowledge of the fact.\[5\]_

## 6 AMBASSADORS AND CONSULS.

Documents which are a part of the archives of a foreign consulate are privileged, and a witness cannot be compelled to disclose their contents.\[7\] The privilege is that of the foreign government and not that of the witness, and the court will strike out, on motion, any testimony inadvertently or incautiously given by him which violates it.\[8\] Acknowledgments of instruments may be taken by United States consuls stationed in foreign countries.\[9\]

## 7 AMICUS CURIAE.

In order to be heard as amicus curiae the parties must have an interest in the question to be decided,\[10\] or be interested in another case that will be affected by the decision.\[11\] If the other parties consent the court will generally allow an interested party to file briefs in a pending case as amicus curiae.\[12\]

- 1. Whether or not there was a material by ecourt of misdescription of real estate? alteration of a note, which was made in Massachusetts, and apparently to be paid in Eastate \[Minn.\] 97 N. W. 1046. Massachusetts, must be determined by the laws adimlstered in the courts of Massa- 9. Long vs. Powell \[Ga.\] 48 S. E. 185. A chusetts. Affixing a revenue stamp after execution held immaterial. Rowe v. Bowman, 183 Mass. 48, 67 N. E. 636.
- 2. Paul v. Leaper, 98 Mo. App. 51, 72 S. W. 715. In the absence of evidence that an alteration appearing on the face of an ap- 1800 was made after its execution. A motion to dismiss the appeal on this ground should be overburled. Parshall v. Clark \[Tex. Civ. App.\] 77 S. W. 437. Where there is no other evidence, the intention of the party at the time of execution is material in fixing time of alteration. If he intended it, the presumption will be that alteration and execution were contemporaneous. Ca- bell v. McKinney, 31 Ind. 601, 68 N. E. 601.
- 3. Action on a bond. Graham v. Middle- by \[Mass.\] 70 N. E. 416.
- 4. Bailey v. Gilman Bank, 99 Mo. App. 571, 74 S. W. 874.
- 5. See 1 Curr. L. 79.
- 6. Ofenstein v. Bryson, 20 App. D. C. 1; Cabell v. McKinney, 31 Ind. 601, 68 N. E. 601. Iowa statute as to treble damages for destruction of valuable papers. Freeman v. Bryson \[Iowa\] 97 N. W. 1094. Correction

**ANIMALS.**

**SS 1. Property in Animals (150).**

**SS 2. Personal Injuries Inflicted by Animals (150).**

**SS 3. Injuries to Property by Animals Tres-passing or Running at Large (160).**

**SS 4.**

**SS 5. Contracts of Agitament (162).**

**SS 6. Estrays and Impounding (163).**

**SS 7. Regulations as to Care, Keeping, and**

ANIMALS SS 2.3 Cur. Law.

consisting in keeping after notice of its character. \[21\] After notice, the owner must exercise care commensurate with the danger. \[22\] One entering on strange premises must exercise due care, and whether he did or not is a question for the jury. \[23\] By statute, in some states, an injury by a dog is actionable, \[24\] though the person injured be a trespasser, \[25\] unless the trespasser provoked the dog to the attack. \[26\] A dog in the owner's cart upon the highway is not within an "inclosure." \[27\] The owner of hogs properly in the highway, is not liable for personal injuries proximately caused by them. \[28\] Ownership of a dog by the licensee, is shown by the issuance of such license, only upon proof of knowledge thereof by the licensee. \[29\] It is the duty of a liveryman to furnish a reasonably safe horse. \[30\]

SS 3. _Injuries to property by animals trespassing or running at large. \[21\]_--At common law the owner of animals was required to confine them to his own land, \[22\] but this rule is not in force in a majority of the American states, \[33\] where no actionable trespassing is committed where animals wander on and depasture the uninclosed lands of another, \[34\] though even here the owner may not willfully drive his cattle on another's land. \[35\] Liability arises only if such animals break through a fence sufficient to turn ordinary cattle under ordinary circumstances; \[36\] in Missouri, however, the common law as to adjoining propriators without a partition fence applies. \[37\] The defendant's inclosure must have been suitable, un-

a vicious disposition. Rowe v. Ehrmantraut \[In the name of another than the defendant \[Mim.\] 93 N. W. 211. A dog's propensity was rejected, there being no proof as above to attack other dogs is admissible to show indicated. Jordan V. Carberry \[Mass.\] 69 its disposition. Id. \[21\] The Gray v. Murray, 69 N. J. Law, 30. In the absence of contributory negil-456, 55 A. 237. \[22\] Where a dog was locked in a shed but so graved the wood that the fastening purpose, or whose faulty character should became loose the owner was held to have used the requisite care. De Gray v. Murray, 69 N. J. Law, 456, 55 A. 237. \[23\] The agent is a lur. \[24\] The agent is a lur. \[25\] There are a junk dealer entered pream-158 where there was a sign on the barn \[26\] "beware of the dog" and while in the act of picking up a rope was bitten evidence \[27\]. \[28\] The agent is a lur. \[29\] The agent is a lur. \[29\] The agent is a lur. \[30\] The agent is a lur. \[31\] The agent is a lur. \[32\] The agent is a lur. \[33\] The agent is a lur. \[34\] The agent is a lur. \[35\] The agent is a lur. \[36\] The agent is a lur. \[37\] The agent is a lur. \[38\] The agent is a lur. \[39\] The agent is a lur. \[30\] The agent is a lur. \[31\] The agent is a lur. \[32\] The agent is a lur. \[33\] The agent is a lur. \[34\] The agent is a lur. \[35\] The agent is a lur. \[36\] The agent is a lur. \[37\] The agent is a lur. \[38\] The agent is a lur. \[39\] The agent is a lur. \[39\] The agent is a lur. \[30\] The agent is a lur. \[30\] The agent is a lur.

- 3 Cur. Law. ANIMALS SS 4. der the surrounding circumstances," and the owner is liable for damages proximately caused by a negligent escape," and the fact that the fence broken through was not a lawful one was no defense." The person whose property is damaged is not restricted to the remedy specially provided for a breach of a statutory fence." Animals trespassing upon the lands of another are not "going at large contrary to law," but a horse running unattended through the streets to its livery stable is." A statement of a cause of action though informal and stating conclusions is sufficient after judgment." The measure of damage is the value of the pasturage eaten or destroyed, together with the injury to the freehold."
- 4. _Liability for killing or injuring animals."_--One is not justified in killing or willfully injuring domestic animals trespassing upon his property," unless so provided by statute," or if a dog is caught chasing or injuring sheep," or hunting deer." Where so provided the action is local." To entitle one to a recovery from the county for sheep killed by dogs the statutory procedure must
- 38. Proof of the existence of sufficient 47. Meadows v. State, 136 Ala. 67, 84 So. fence prescribed will not alone relieve from liability. Plumb v. Maher \[Conn.\] 56 A. 494. 183. That plaintiff's servant negligently left a gate open is not such contributory force fact of a stallion, being out of his passage as to bar a recovery. Kemp v. Hirstar \[Neb.\] 98 N. W. 1048. In Florida the larecny or malicious killing or injury horse falls into a hole in the street and is labled. Kittredge v. Cincinnati, 2 Ohio N. P. (N. S.) 6. 39, Plumb v. Maher \[Conn.\] 56 A. 494. The owner of an investment ball is liable for killing cows may show in justification or mitigation that at the time they were trespassing on growing crops cultivated without fence, where stock laws prevail. Prince v. State \[Ala.\] 37 So. 111. This fact is not inconsistent with acts establishing stock law districts, and providing penalties and remedies which may be enforced against the owner of stock. Id.
- 49. Whether such killing was justified is a question for the jury. O'Neill v. Newman \[Mich.\] 93 N. W. 1064. 50. Under Act 1898, p. 84, providing that any person may lawfully kill any dog found hunting deer, it may be killed only while so hunting, so a plea alleging merely that "on the day" of the killing, defendant found hunting deer, is insufficient. Mossman v. Bostridge \[Vt.\] 57 A. 995. Under Vermont statute any dog, without regard to its breed or whether it was permitted to run at large, may be killed if caught hunting deer. Act 1898, p. 84, providing that dogs of a certain breed shall not be permitted to run at large, and that any person may lawfully kill any dog found hunting deer. Mossman v. Bostridge \[Vt.\] 57 A. 996. A plea in treapsas for killing a dog alleging that on the day and date "of said supposed kill. Ling." It was found hunting deer, identifies the responses attempted to be justified with the one declared on. Id.
- 51. Sand. & H. Dlig. $ 6252, fixes the local jurisdiction for killing live stock in the county where the killing occurred. An objection that it was not shown that cattle were killed in the county where suit was brought was good, though raised for the first time on appeal. St. Louis, etc., R. Co. v. Gray \[Ark.\] 80 S. V. 748. Where one killed three cows by firing three different shots, the three acts of shooting constituted a single offense. Prince v. State \[Ala.\] 37 So. 171.

### Animals $ 4.

3 Cur. Law. be strictly complied with. \[52\] A liability arises if one negligently allows his diseased cattle to commingle with those of another, \[53\] or knowingly sells diseased stock, \[54\] or negligently sells feed containing poison, \[55\] or carelessly drives a hired team and permanently injures them. \[56\] An exception to the common law rule requires the proper fencing or guarding of "attractive nuisances," \[78\] but natural barriers may serve as the equivalent of a legal fence. \[56\] Railroad companies are liable for injuries to animals resulting from negligent operation or defective construction of their road, \[59\] as are also municipal corporations for negligent use or defective construction of highways. \[56\]

**SS 5.**_Contracts of agistment._\[52\]--An agister's lien is a perfect one, directly created by statute and does not depend for its existence upon the institution of judicial or other proceedings, \[52\] but he may, with consent of the owner and under circumstances not prejudicial to third persons, adopt other means than that provided by statute to secure a satisfaction of his claim; \[53\] the statutory lien will be strictly construed, \[54\] and in Missouri, to sustain such a lien upon a vehicle, the latter must have come into the agister's charge at the same time as the animal cared for. \[56\] In Iowa an agister's lien does not take priority over other liens of record, \[56\] and the prior mortgage may maintain replenu without demand. \[57\] The degree of care required of an agister is that of ordinary diligence, that which men in general exercise in respect to their own affairs, \[58\] which is a question for the

**SS2.**\_He must allege the dogs to have been 256; Wright v. Sherman, 3 S. D. 290, 52 N. harbored by persons living in the country **V**. 1093, 17 L. R. A. 792 and note: Lambert other than himself, and plead all the con-ditions precedent to a recovery. McCullough v. Colfax County \[Neb.\] 95 N. W. 29. his lien by causing the property to be taken in execution for his debt. Fein v. Vvyo-vine Loan & Trust Co., 3 Wyo. 311, 22 P. Itnes for the jury. Trusket v. Bronough \[Ind. T.\] 76 S. W. 294. 731 S. E. 951: Newr V. Rhodes, 20 Mo. App. 347. See I Curr. L. 82.

**SS3.**\_He must allege the dogs to have been 256; Wright v. Sherman, 3 S. D. 290, 52 N. harbored by persons living in the country **V**. 1093, 17 L. R. A. 792 and note: Lambert other than himself, and plead all the con-ditions precedent to a recovery. McCullough v. Colfax County \[Neb.\] 95 N. W. 29. his lien by causing the property to be taken in execution for his debt. Fein v. Vvyo-vine Loan & Trust Co., 3 Wyo. 311, 22 P. Itnes for the jury. Trusket v. Bronough \[Ind. T.\] 76 S. W. 294. 731 S. E. 951: Newr V. Rhodes, 20 Mo. App. 347. See I Curr. L. 82.

**SS4.**\_He must allege the dogs to have been 256; Wright v. Sherman, 3 S. D. 290, 52 N. harbored by persons living in the country **V**. 1093, 17 L. R. A. 792 and note: Lambert other than himself, and plead all the con-ditions precedent to a recovery. McCullough v. Colfax County \[Neb.\] 95 N. W. 29. his lien by causing the property to be taken in execution for his debt. Fein v. Vvyo-vine Loan & Trust Co., 3 Wyo. 311, 22 P. Itnes for the jury. Trusket v. Bronough \[Ind. T.\] 76 S. W. 294. 731 S. E. 951: Newr V. Rhodes, 20 Mo. App. 347. See I Curr. L. 82.

**SS5.**\_He must allege the dogs to have been 256; Wright v. Sherman, 3 S. D. 290, 52 N. harbored by persons living in the country **V**. 1093, 17 L. R. A. 792 and note: Lambert other than himself, and plead all the con-ditions precedent to a recovery. McCullough v. Colfax County \[Neb.\] 95 N. W. 29. his lien by causing the property to be taken in execution for his debt. Fein v. Vvyo-vine Loan & Trust Co., 3 Wyo. 311, 22 P. Itnes for the jury. Trusket v. Bronough \[Ind. T.\] 76 S. W. 294. 731 S. E. 951: Newr V. Rhodes, 20 Mo. App. 347. See I Curr. L. 82.

**SS6.**\_He must allege the dogs to have been 256; Wright v. Sherman, 3 S. D. 290, 52 N. harbored by persons living in the country **V**. 1093, 17 L. R. A. 792 and note: Lambert other than3 Cur. Law. ANIMALS SS 6. 163

jury,\[59\] and one who is not bound by a contract of agistment to return all the cattle taken may recover a balance due, though some of the cattle are missing.\[70\] The word "range" has a distinctive meaning,\[71\] as has also the phrase "to keep the old stock good."\[72\]

SS 6. _Estrays and impounding.\[73\]_--One attempting to hold cattle damage feasant must act in substantial compliance with the statute,\[74\] and he must not include an illegal item in the sum demanded as a condition of release.\[75\] The damages, to which one taking up extras is entitled, are limited to such as were committed at the time of, and immediately preceding the trespass,\[76\] and one may be estopped by his conduct to claim damages for a past trespass,\[77\] but not by the fact that he allowed the owner to remove them.\[78\] In Michigan the owner of trespassing animals, dissatisfied with the sum demanded as a condition of release, may apply to a justice of the peace for the appointment of appraisers,\[79\] though their award is not binding.\[80\] One who takes up, confines and cares for a stray hog, as a protection to his crops, is not guilty of taking up a stray animal and making use of it.\[81\] Animals found at large may be impounded and sold for the charges of keeping,\[82\]

**eg. Defendant who had undertaken to 1895, e. 137, forbidding the impounding of pasture a mule was held not liable, and in**

**stock of nonrefedents** If their ownership his defense was permitted to show that was known was implied repeatedly by Act prudent men also pastured animals in fields 1899, e. 137, and the impounding of hogs having one side unfreened but bounded by a river. Arlington 1976, & Co. v. Fleming, 117 Ga. 449, 43 S. B. 651. 188, **119**

**70. Payment of "1.00 per head for all he (urns back." Miller v. Lewis (S. D.) 97 N. 1976).**

**71. A sparsely populated and unilensed**

\*\*72. U. S.

but there must be a strict compliance with the statutory procedure of sale,"s to pass a good title." that the owner was not negligent is immaterial." A statute is unconstitutional which provides for a sale without judicial proceedings to determine the amount of damages and whether the animal was actually at large."

SS 7. \_Regulations as to care, keeping and protection and health."--In some states, stock law districts, to prevent cattle running at large therein, may be created upon the requisite vote of the people," but upon such an election the statutory procedure must be strictly followed;" the courts will take judicial notice of the existence of such districts." In Alabama the districts may not be charged for one year," and in Mississippi the partial stock law does not include cattle." A state may lawfully forbid nonresidents to allow their stock to run at large within its jurisdiction." Driving sheep from one.range to another is not within a statute regulating "herding" and "grazing."" Statutes may authorize the destruction of dogs not properly muzzled," and for a failure to so protect the public the owners may be fined and imprisoned." A municipality may forbid the keeping of hogs within the corporate limits during a certain period of the year," but prosecution under such an ordinance must strictly comply with the statutory procedure." A town by-law on the keeping of animals within the town limits is void where the regulation of such matters properly belongs to the board of health." A prohibition of the keeping of a noisy dog or other animal about a stable or other premises does not apply to a horse.1 In Texas one is liable to a criminal action who willfully drives cattle from their accustomed range." Statutes prohibiting the docking of horses are constitutional2 and a valid exercise of the police power."

nance is violated is immaterial. Jeans v. as contravening section 2, article 4, which Morrison, SS9 Mo. App. 208, 73 S. W. 235. declares that the citizens of each state shall be entitled to all privileges and immartices of citizens in the state. State v. 99 Mo. App. 208, 73 S. W. 235. A petition alleging that petitioner had seized cattle which had entered a lot occupied by him as tenant does not authorize the sale of such cattle under Code Civ. Proc. SS 3084, which authorizes sale only when cattle were beingatured on a public street or on private property bordering thereon, neither did the petition allege that the cattle were wrongfully on the lot. Burns v. Morrow, 42 Misc. 867, 87 N. Y. 8. 719.

SS4. Defective description of the animal in the posted notice, and a sale one day later than the time set, are fatal irregularities. Ryall v. Smith, 138 Ala. 145, 34 So. 1009.

SS5. An owner may not be liable for penalties prescribed by a cattle ordinance unless he be guilty of some negligence. but a city of fourth class has charter power to impound regardless of negligence. Dorton v. Burks, 99 Mo. App. 165, 73 S. W. 239.

SS6. Laws 1893, D. 52, Act No. 41. Greer v. Downey \[Arlix\] T1 P. 900.

SS7. See 1 Curr. L. 83.

SS8. Keenan v. Harkins \[Miss.\] 35 So. 177. Under the Laws of 1900, p. 164, c. 124, such a district may contain a less quantity of land than a township. Shaw v. Woffard \[Miss.\] 34 So. 329.

SS9. A failure by the county court to declare and publish the result is fatal. King v. State \[Tex. Cr., App.\] 74 S. W. 778.

90. Lewis v. Rasp \[Ock\] 17 P. 142.

01. Reed v. State. 136 Ala. 91, 34 So. 348.

01. Code 1892, 2057. Whitfield v. Tatum \[Miss.\] 35 So. 447.

01. Such a statute is not unconstitutional, 8. Cur. Law. ANNUTIIES.

_Interstate transportation; quarantine; inspection._"--A state may establish general quarantine lines, or segregate infected animals," and congress," under its power to regulate commerce, may make it a misdemeanor to drive or transport infected animals from one state to another." Animals affected with a dangerous and contagious disease may be destroyed by the public authorities" without first granting the owner the privilege of a hearing," but in the absence of actual proof of the infection or an exposure thereto, the officers so acting are liable.10 The selection of a sheep dip by an inspector is a ministerial act and he is liable for damages due to his negligence.11 In regulations as to infected cattle there must be no unjust discrimination.12 The authorization of stringent regulations in case of an epidemic does not warrant their enforcement because the disease prevails to a greater or less extent in all the states and territories.18

SS 8. \_Marks and brands.\_14--A person or company can have but one recorded brand under the statutes of Texas,15 and an unrecorded brand is not proof of ownership but may be shown, as any other flesh mark, for the purpose of identification.14 That a lessor consented to the branding of sheep with the lessee's mark is not conclusive as to passing of title.17 Under some statutes animals may be allowed to roam at large if properly marked.18

SS 9. \_Cruelty to animals.\_19--In New Jersey a justice has no jurisdiction of a prosecution for cruelty to animals.20

## 111 An annuity is not pay-

read as applying to animals of the same kind. People v. Edelstein, 8c N. Y. S. 861.

**2.** Art. 913, Pen. Code, 1895. Newport v. A portion of plaintiff\* sheep and rendered State \[Tex. Cr. App.\] 77 S. W. 224.

**3.** Laws 1899, p. 175, prohibiting the use thereof. Bland v. People \[Colo.\] 76 P. 359.

**12.** Restrictions on the Importation of On a prosecution for using an unregistered ducked horse in violation of L. 1899, p. 175, at was not necessary to prove that the horse was not registered where the docking took place after the passage of the act which forbids docking. Id.

**4.** Laws 1899, p. 175, prohibiting the use of unregistered docked horses. though it permits the use of registered docked horses.

**13.** If there be more than one recorded Bland v. People \[Colo.\] 76 P. 359. The fact that the act doee not state that it is con- tray to public morais does not prevent the courts from sustaining it on that ground. Id.

**5.** See 1 Curr. L. 83.

**6.** But there can be no conviction for disregarding a quarantine line, established by ultra vires act of the commission. Trent v. State (Tex. Cr. App.\] 76 S. W. 857.

**7.** Such an act may be a misdemeanor though the animals are not moved from a district against which a quarantine has been declared. U. S. v. Slater, 123 F. 115.

**8.** Rev. St. 1898, **51** 1411, 1412, 1414. Lowe v. Conroy \[VWs.\] 97 N., 942.

**9.** The decision of the health authorities as to the existence of the disease is not final and due process of law grants the owner a right to be heard either before or after the destruction of the property. For improper destruction the officer and not the municipalities is liable. Lowe v. Conroy \[VWs.\] 97 N. W. 942.

**10.** The pleadings should aver that the test made was efficacious. Pierce v. Dillingham, 203 Ill. 148, 67 N. N. 846.

**11.** Defendant inepector held liable where the dip provided by him caused the death of a portion of plaintiff\* sheep and rendered state \[Tex. Cr. App.\] 77 S. W. 224.

**3.** Laws 1899, p. 175, prohibiting the use thereof. Bland v. People \[Colo.\] 76 P. 359.

**12.** Restrictions on the Importation of On a prosecution for using an unregistered ducked horse in violation of L. 1899, p. 175, at was not necessary to prove that the horse was not registered where the docking took place after the passage of the act which forbids docking. Id.

**4.** Laws 1899, p. 175, prohibiting the use of unregistered docked horses. though it permits the use of registered docked horses.

**13.** If there be more than one recorded Bland v. People \[Colo.\] 76 P. 359. The fact that the act doee not state that it is con- tray to public morais does not prevent the courts from sustaining it on that ground. Id.

**5.** See 1 Curr. L. 83.

**6.** But there can be no conviction for disregarding a quarantine line, established by ultra vires act of the commission. Trent v. State (Tex. Cr. App.\] 76 S. W. 857.

**7.** Such an act may be a misdemeanor though the animals are not moved from a district against which a quarantine has been declared. U. S. v. Slater, 123 F. 115.

**8.** Rev. St. 1898, **51** 1411, 1412, 1414. Lowe v. Conroy \[VWs.\] 97 N., 942.

**9.** The able in advance,"2" nor apportionable in respect of time,"28 the cases of infants and feme covers, when necessary for maintenance, form exceptions to this rule.24 Where a fixed sum is given "annually," the word "annually" denotes the amount to be paid and the time of payment.28 An annuity "issuing and payable out of" certain real estate is a charge upon the land;"29 under a power given to enforce such an annuity, the land may be sold to pay arrearages,27 and it is not allowable to deduct taxes proportionally from such an annuity.28 In construring an annuity, the intention of the parties governs.29

22. Words of an antanquital agreement exception, vla: That where an annuity is creating an annuity "the same to take effect created or accepted in lieu or bar of dever, from and after the death of her husband", the annuity will be apportioned; the reason describe the time when the annuity begins being that, as the thing for the surrender of to run. Mower v. Sanford \[Conn.\] 57 A. 119, which the annuity is given and received would obtain and remain during the life of the middle of year, no apportionment allowed. Mower v. Sanford \[Conn.\] 57 A. 119, which takes the place of it. Gheen v. Osborn, 17 Serg. & R. \[Pa.\] 171; Rhode Island Hospital Trust Co., V. Harris, 20 R. I. 160, 37

A. 701: In re Cushing's Wills, 58 Vt. 383, 5 A. 379; Neils v. Sauer, 119 Iowa, 440, 93 N. W. 346; Chapp v. Astor, 2 Edw. Ch. (N. Y.) 879; Nading v. Elliott, 137 12nd. 261, 38 L. E. 695; Wiggin v. Swett, 6 Mete. (Mass.) 194, 83 Am. Dec. 716; Dexter v. Phillips, 121 Mass. 178, 23 Am. Rep. 261; Manning v. Ranoldo, 4 N. J. Law, 144; In re Laekawanna Iron & Coal Co., 37 N. J. Eq. 26; Irving v. Rankine, 18 Hum \[N. Y.\] 147, affirmed in 79 N. Y. 636; Kearney v. Crukshank, 117 N. Y. 95, 92 N. E. 580, reversing 46 Hum \[N. Y.\] 219; Stewart v. Swahn, 13 PHa18; 15: Dubus v. Watson, 2 Pa. Dist. R. 115; Moore v. Dunn, 92 N. C. 63; Griswold v. Griswold, 4 Bradt, 1N. Y.\] 216; Chase v. Darby, 110 Mich. 314, 68 N. W. 159, 64 Am. St. Rep. 347. Even though a day certain is fixed for payment. Ausman v. Montgomery, 5 U. C. C. P. 364; Pearly v. Smith, 3 Atk. 260; Wilson v. Harman. 2 Yes. Sr. 673. Though it has been held that where a testator fixes a day for payment, the annuity is apportionable so as to determine the amount to be paid between the date of his death and the date of the first payment. Warning v. Furell, 1 Hill, Eq. \[S. C.\] 193. There are exceptions to this rule that annuities are not apportionable, equity allowing an apportionment where the annuity is for the maintenance of minor children or the widow or a divorced wife. Clapp v. Astor, 3 Edw. Ch. \[N. Y.\] 879; Hay v. Palmer, 2 P. Wmns. 501; Reynish v. Martin, 3 Atk. 330; Ex parte Rutledge, Harp. Eq. (S. C.) 65, 14 Am. Dec. 696; Howell v. Hanforth, 2 Y. Sh. 1016; Weigall v. Brome, 6 Sim. 89; Kearney v. Crukshank, 117 N. Y. 95, 22 N. E. 580, reversing 46 Hun, 219. But an annuity given by a will to a married woman! for her sole and separate use, and not to be subject in any manner to the control of her husband is not apportionable. Anderson v. Dwyer, 1 Scholaes & L. 801. The imperfect right which a child has upon a parent for support, especially where this has been recognized by marriage settlement, has induced the courts to trench upon the general rule by what is now an established exception. Fisher v. Fisher, 5 Clark \[Pa.\] 178. It has also been held that an annuity to an eleemosary establishment was apportionable. Attorney-General v. Smythiles, 16 Beav. 385. There is another 3 Cur. Law. **APPEL AND REVIEW.** 167

**APPEL AND REVIEW.**

C. Restriction to Rulings Below (244). D. Restriction by Character of Order or . D. Restriction by Character of Order or . Judgment; Matters Brought Up . H. Effect of Decision on Former Review with Final Judgment (247). E. Restriction by Contents of Record (250). Jurisdiction and Venue (254). Process and Pleading (254). Motions and Afflavits (255). Proceedings at Trial in General (256). Admission or Exclusion of Evidence (256). Sufficiency of Evidence (258). Instructions (260). Verdict or Findings, Judgment and Execution (261). F. Rulings Peeuliar to Province of Trial (264). 1. Discretionary Rulings in General; Interlocutory and Provisional (256). Oders (264). 2. Questions of Fact (271). 3. Cut Law.

G. Rulings and Decisions on Intermediate Appeals (282). H. Effect of Decision on Former Review in Same Court (284). 1. Provisional, Ancillary, and Interlocutory Refer (286). 2.1.1 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 4.0 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9 5.1 5.2 5.3 5.4 5.5 5.6 5.7 5.8 5.9 6.1 5.9 6.2 6.3 6.4 6.5 6.6 6.7 6.8 6.9 7.0 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.1 7.3 7.9 7.2 7.4 7.6 7.8 7.9 7.2 7.1 7.4 7.9 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.1 7.9 7.2 7.3 7.4 7.6 7.9 7.1 7.5 7.7 7.8 7.1 7.9 7.3 7.1 7.2 7.4 7.9 7.4 7.1 7.5 7.6 7.7 7.8 7.9 7.0 7.1 7.1 7.2 7.5 7.9 7.1 7.6 7.9 7.2 7.1 7.1 7.3 7.4 7.6 7.8 7.9 7.0 7.2 7.1 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.9 7.1 7.8 7.2 7.9 7.3 7.4 7.6 7.9 7.1 7.1 7.2 7.5 7.1 7.6 7.9 7.2 7.7 7.1 7.3 7.5 7.7 7.9 7.4 7.6 7.8 7.9 7.1 7.1 7.2 7.6 7.9 7.2 7.1 7.3 7.4 7.6 7.9 7.1 7.2 7.5 7.1 7.6 7.9 7.3 7.7 7.1 7.4 7.6 7.9 7.2 7.1 7.5 7.1 7.6 7.9 7.4 7.7 7.8 7.9 7.0 7.1 7.1 7.2 7.1 7.3 7.5 7.1 7.6 7.9 7.1 7.7 7.2 7.2 7.3 7.4 7.6 7.9 7.1 7.5 7.1 7.6 7.9 7.2 7.3 7.6 7.1 7.7 7.7 7.8 7.9 7.1 7.9 7.2 7.4 7.1 7.5 7.1 7.6 7.9 7.2 7.3 7.6 7.1 7.7 7.9 7.4 7.1 7.6 7.9 7.2 7.4 7.1 7.6 7.9 7.3 7.5 7.1 7.6 7.9 7.4 7.1 7.6 7.9 7.7 7.1 7.8 7.9 7.2 7.1 7.1 7.2 7.3 7.4 7.6 7.9 7.1 7.1 7.2 7.4 7.1 7.5 7.1 7.6 7.9 7.2 7.3 7.6 7.1 7.7 7.7 7.8 7.9 7.1 7.9 7.2 7.4 7.1 7.6 7.9 7.3 7.1 7.2 7.4 7.1 7.5 7.1 7.6 7.9 7.4 7.1 7.6 7.9 7.5 7.1 7.6 3 Cur. Law. APPEAL AND REVIEW SS 1B.

Obedience to an order waives the right to a review; \[42\] but the intention must be clear, \[43\] as where the judgment is voluntarily paid, \[44\] and payment accepted; \[45\] but obedience to a writ of mandamus does not waive the right to appeal, \[46\] and payment by a garnishee without protest from the principal defendant will not waive the principal's right to appeal. \[47\]

Recognition of the validity of a judgment estops the party from asserting its invalidity, \[48\] and acceptance of benefits thereunder has a like effect; \[49\] but acceptance of that admitted to be due does not waive an appeal involving only the right to a further recovery. \[50\]

Enforcement of a judgment affirms it, \[51\] but a stipulation that the property in controversy shall be sold and the proceeds deposited with the clerk to await determination of the cause is not effectual as a release of errors or waiver of the right of appeal, \[52\] and enforcement of a foreclosure judgment does not waive the right to appeal. \[53\]

Agreement to the terms of a judgment waives an appeal, \[54\] and a judgment entered on stipulation of the parties is not appealable. \[56\]

(SS 1) _C. Pendency of a former appeal. \[56\]_--An appellant may voluntarily dismiss and take a second appeal within the time limited, \[57\] and in Washington the taking of a second appeal within the time allowed is permissible, though the first is not dismissed, the dismissal following by operation of law. \[58\] Where the first appeal taken is allowed to lapse for failure to file bond within the statutory period, a second appeal may be taken within the statutory period and properly perfected. \[59\] Where a certificate of dissent is pending in the supreme court of Texas, a

not waived by failure to appeal from such directing sale. Persons v. Rutherford IMiss.J ruling, though it was separately appealable. \[36\] So. 187. A landowner in condemnation Does Molense Sav. Bank v. Morgan Jewelry Co. \[lowal\] 98 N. V. 121; Jones v. Chicago & N. \[lowal\] 98 N. V. 1201; Jones v. Chicago & N. \[the endmember cannot appeal, though the L. Ass'n, 108 Iowa, 65; Parker v. Des Moines \[the\] 17, 78 N. V. 826. The filing of a motion, which is overluded, to vacate a decree and dismiss the action in which it is rendered, because of the findings of fact in the same action, does not waive an appeal from the decree. Anderson v. \[Hendrkskson (Neb.) 95 N. V. 844. See 1 Curr. L. 86, n. 14. \[H. Drexel v. Reed \[Neb.) 95 N. V. 873. \[42\] 42. Answering, after overruling of de-murrer and motion to dismiss bill in obedience to decree ordering answer within 20 days. does not waive the right to appeal. Howison v. Baird, 138 Ala. 129, 35 So. 62. See 1 Curr. L. 86, n. 24. \[43\] 44. Signor v. Clark \[N. D.\] 99 N. W. 68. \[44\] 44. Payment under coercon does not waive. Signor v. Clark \[N. D.\] 99 N. V. 68. County on paying costs cannot keep case alive by stipulating that if the judgment should be reversed they would be repaid. \[Waters v. Garrin, 67 Kan. 855, 13 T. P. 90. \[45\] 45. Tablot v. Mason \[IC. C. A.\] 125 F. 101. \[46\] 46. State v. Young, 66 S. C. 115, 44 S. E. \[58\] 58. \[47\] 47. Eastlund v. Armstrong, 117 Wts. 394, 94 N. W. 301. \[48\] 48. Fidelity & Deposit Co. v. Kepley, 66 Kan. 843, T1 P. 818. \[49\] 49. Entry by plaintiff in ejecentent on that portion of the land awarded him by the judgment. Raborn v. Woods \[Ind. App.\] 70 N. E. 399. Creditor of an estate receiving his claim in full from proceeds of sale and asking confirmation of it cannot appeal from degree establishing title in decedent and

### 170.

Apreal and Review $ 10.

3 Cur. Law.

writ of error will not be allowed, though the party asking it filed the certificate and asks to have it disregarded in case the writ is allowed.\[60\]

A pro-forma affirmance on appeal bars a subsequent writ of error,\[61\] and where a defendant appellee, whose interest was identical with plaintiff's, assigned no cross errors, but fully argued a point not assigned by plaintiff appellant, he could not, on an adverse decision, bring error to review such question.\[62\]

An appeal from the district to the superior court in Connecticut, for trial de novo, vacates the judgment of the district court, and a concurrent appeal to the court of errors at the suit of the other party will not lie.\[63\]

SS 2. \_The remedy for obtaining review. A. Appeal or error.\[64\]--\_The supreme court of the United States has no jurisdiction on error in criminal cases.\[63\] Federal courts review decrees by appeal, judgments by error,\[65\] and this is the general rule;\[67\] but errors of law will be reviewed only on petition in error in Nebraska, whether the cause be legal or equitable, and appeal will not reach such matters.\[68\] Error and not appeal is the remedy in Colorado of one who has recovered judgment, but is dissatisfied with the relief granted,\[69\] but in Idaho, any party aggrieved may appeal.\[60\] Where error is dismissed for failure to serve certain parties, an application to have the case considered as on appeal may be granted on terms.\[71\]

In Louisiana, where the state for reasons of public policy desires to attack a judgment on a note entered on waiver of citation and confession, its remedy is by action of nullity and injunction and not by suspensive appeal.\[72\]

Error will not review a judgment not final.\[63\]

The remedy for reviewing probate decrees is discussed in the note.\[74\]

### 171.

In Nebraska, by petition in error, not on appeal. Outhrie v. Outhrie \[Neb.\] $3 N. W.

62, Suburban R. Co. v. Chicago, 204 Ill.

1131; Smith v. Guter \[Neb.\] $5 N. W. 335. See

63, Gen. St. 1992, # 539, 788. Lilley, Swift

& Co. v. New York, etc., R. Co. \[Conn.\] $7

A. 109.

64. See 1 Curr. L. $8.

01. Contempt. O'Neal v. U. S., 190 U. S.

36, 23 S. Ct. 716.

66. Petition to set aside order for sale of property of insolvent bank by receiver under national banking act is equitable. Piles v. Brown \[C. C. A.\] 124 F. 133. Mandamus to compel key of tax is legal, not equitable, and appeal does not lie. Carter County v. Schmasticle \[C. C. A.\] 127 F. 126. Proceeding to condemn land for public purpose is legal. Village of Mackinaw City, V. U. S., IC. C. A.\] 120 F. 252. Proceeding against municipal officers for violating an injunction restraining them from taxing assets of a bank is legal. Board of Counclime of City of Frankfort v. Deposit Bank of Frankfort

IC. C. A.\] 127 F. $12. See 1 Curr. L. $8, R. $6.

67. State v. Bloomfield State Bank \[Neb.\] $5 N. W. 790; Trabue v. Williams \[Fla.\] $5 No. 872. Appeal will not lie from the de-clation of a single justice in Massachusetts

dismissing a petition for entorarl. Inhabits of Brockton v. Plymouth County Com'rs, 183 Mass. 42, 66 N. E. 457. Oders and judgments in contempt proceedings are reviewable by error only. Thompson v. Nelson \[Neb.\] $8 N. W. 194. See 1 Curr. L. $8. n. 67.

68. Danforet v. Fowler \[Neb.\] $4 N. W.

687: Pettibone v. Visser \[Neb.\] $6 N. W. 193: John Stewart & Co. v. Allen \[Neb.\] $6 N. W. 585. Rulings of the trial court on the ad-clation of a bank.

69. McCord v. Nabours \[Tex.\] $8 S. V. 223. \[misibility of evidence can only be reviewed on 18 Nebraska, by petition in error, not on appeal. Outhrie v. Outhrie \[Neb.\] $3 N. W.

01. Schmabel v. Thomas \[Mo. App.\] $73

01. Schmabel v. Thomas \[Mo. App.\] $73

01. Suburban R. Co. v. Chicago, 204 Ill.

1131; Smith v. Guter \[Neb.\] $5 N. W. 335. See

63. Sen. St. 1992, # 539, 788. Lilley, Swift

01. See 1 Curr. L. $8.

01. Contempt. O'Neal v. U. S., 190 U. S.

36, 23 S. Ct. 716.

66. Petition to set aside order for sale of property of insolvent bank by receiver under national banking act is * 3 Cur. Law. **APPEL AND REVIEW SS 2C.**

In New York, the report of a referee appointed under an order entered on a remititur from the court of appeals, to assess damages to which that court by its final judgment held the plaintiff was entitled, can be reviewed only in compliance with the rule and not on a case and exceptions;78 but the report of a referee appointed in proceedings for the dissolution of a corporation, not only to take proof and report with his opinion as to claims for costs, expenses and counsel fees, but to admit and reject creditor's claims, can only be reviewed on exceptions.78

(SS 2) \_B. Certificate or reservation.\_17--The statute providing for certifying tax cases to the supreme court for review, in Minnesota, has been repealed, and such cases may now be reviewed by appeal.78

(SS 2) \_C. Ordinary or extraordinary and special modes of review.\_17--Statutory remedies, as appeal or error, must, if adequate or applicable, be resorted to, and not writ of review,89 certiorari,81 prohibition,82 mandamus,88 injunction85 or

terlocutory probate order. In re James' Estate \[Neb.\] 97 N. W. 22. \*\*75.\*\*Gen. Practice rule 30. Bates v. Holbrook, 41 Misc. 129, 83 N. Y. S. 929. \*\*76.\*\*People v. Amerienn L. & T. Co., 87 App. Div. 139, 84 N. Y. S. 114. \*\*77.\*\*See 1 Curr. L. 89. \*\*78.\*\*Gen. St. 1894, 8 1598: Laws 1902. p. 1, 6. \*\*82.\*\*State v. Lockhart, 89 Minn. 121, 84 N. W. 168; State v. Griffith \[Minn.\] 98 N. W. \*\*79.\*\*See 1 Curr. L. 89. \*\*80.\*\*Petition to re-probate will will not lie; appeal being the remedy. Murray v. Lynch, 64 N. J. Eq. 290, 51 A. 713, 54 A. 1124. Order vacating judgment not so reviewable in absence of special circumstances rendering appeal ineffective. State v. Superior Court of King County \[Wy8ah.\] 75 F. 809. A writ of review will be granted to review an order of the court below fixing the bond on appeal from an order quashing an execution at a mere fraction of the judgment. State v. Superior Court of Pierce County, 82 Wash. 693, 73 P. 779. The court, however, will not consider whether the judgment on which the execution issued was void, as that question is involved in the appeal from the order guashing the execution. Id. See 1 Curr. L. 89, n. 81. \*\*81.\*\*State v. Thompson, 111 La. 315, 35 So. 81. \*\*82.\*\*Certoriar will not lie from order dis-missing contest over proved will \[Code Civ.\] \*\*77.\*\*The statute providing for certifying tax cases to the supreme court for review, in Minnesota, has been repealed, and such cases may now be reviewed by appeal.78

(SS 2) \_C. Ordinary or extraordinary and special modes of review.\_17--Statutory remedies, as appeal or error, must, if adequate or applicable, be resorted to, and not writ of review,89 certiorari,81 prohibition,82 mandamus,88 injunction85 or

terlocutory probate order. In re James' Estate \[Neb.\] 97 N. W. 22. \*\*78.\*\*Gen. Practice rule 30.\*\*Bates v. Holbrook, 41 Misc. 129, 83 N. Y. S. 929. \*\*76.\*\*People v. Amerienn L. & T. Co., 87 App. Div. 139, 84 N. Y. S. 114. \*\*77.\*\*See 1 Curr. L. 89. \*\*78.\*\*Gen. St. 1894, 8 1598: Laws 1902. p. 1, 6. \*\*82.\*\*State v. Lockhart, 89 Minn. 121, 84 N. W. 168; State v. Griffith \[Minn.\] 98 N. W. 1023. \*\*79.\*\*See 1 Curr. L. 89. \*\*80.\*\*Petition to re-probate will will not lie; appeal being the remedy. Murray v. Lynch, 64 N. J. Eq. 290, 51 A. 713, 54 A. 1124. Order vacating judgment not so reviewable in absence of special circumstances rendering appeal ineffective. State v. Superior Court of King County \[Wy8ah.\] 75 F. 809. A writ of review will be granted to review an order of the court below fixing the bond on appeal from an order quashing an execution at a mere fraction of the judgment. State v. Superior Court of Pierce County, 82 Wash. 693, 73 P. 779. The court, however, will not consider whether the judgment on which the execution issued was void, as that question is involved in the appeal from the order guashing the execution. Id. See 1 Curr. L. 89, n. 81. \*\*81.\*\*State v. Thompson, 111 La. 315, 35 So. 81. \*\*82.\*\*Certoriar will not lie from order dis-missing contest over proved will \[Code Civ.\] \*\*77.\*\*The statute providing for certifying tax cases to habeas corpus,\[86\] though the latter is proper where the court below totally lacks jurisdiction.\[87\]

Certiorari is the proper remedy where the ruling of a justice complained of involves only a question of law,\[88\] and lies to review a proceeding adjudging a party guilty of a criminal contempt,\[89\] and to review a decree of the circuit court of appeals revising proceedings of an inferior court of bankruptcy, under section 24b of the bankruptcy law;\[90\] but since the circuit court of appeals has power to issue the writ of certiorari only in aid of its appellate jurisdiction, it cannot by that writ review an unappealable order.\[91\]

Mandamus is proper to require the commissioner of patents to compel a primary examiner to forward an appeal from his decision to the board;\[92\] but cannot be used to perform the office of an appeal or writ of error, and does not lie to review a final judgment or decree sustaining a plea to the jurisdiction, even where no appeal or writ of error is given by law.\[93\]

A motion to stay proceedings will not be granted where its only effect would be to allow a party to again present a claim that has been denied, and he has an adequate remedy for any injustice that has been done him by appeal,\[94\] and execution will not be stayed as to a particular class of property after expiration of the term at which the judgment was rendered, where the limitation of the judgment was considered at the trial, and decided adversely to defendant.\[95\]

In Wisconsin a motion made in the ordinary way is the proper proceeding to bring up to circuit court for review an order of a court commissioner discharging a prisoner on habeas corpus.\[96\] Orders to sell property claimed as exempt,\[97\] and orders distributing the proceeds of sales of real estate by trustees,\[98\] are reviewable only by petition to revise under section 24b of the bankruptcy act; but an order dismissing an application for a discharge is reviewable by appeal under section 25a and-not by petition.\[99\]

SS 3. \_The parties. A. Persons entitled to take up the cause.\[1\]--No person can obtain a review unless he has a legal interest which is affected,\[2\] and in Virjurisdiction.\[87\]

State v. Menzie \[S. D.\] 97 N. V. 745. Failure of trial court to follow mandate of appeal court is to be corrected by appeal or error. People v. District Court of Arapahee County \[Cio.\] 75 P. 390.

85. Stone v. Little Yellow Drainage Dist., 118 Wis. 388, 95 N. V. 406. Judgment against garnished if erroneous can be corrected on appeal. Eldemiller v. Elder, 32 Wash. 605, 17 S. 687.

01. In re Reiner, 122 F. 109; Ex parte Haggerty, 124 F. 441; Ex parte O'Neal, 125 F. 867; In re Strauss \[C. A.\] 125 F. 827.

Whether information is sufficient cannot be reviewed on habeas corpus. Ex parte Stacey \[or.\] 17 S. 1060.

87. Ex parte Stace \[Tex. Cr. App.\] 72 S.

01. 1000. Appeal or error will not lie to review an order imposing punishment for violating an injunction, habeas corpus being the remedy if the court acted without jurisdiction. Remeded orders affecting property rights are appealable. Florida Cent. & P. R. Co. v. Williams \[Ft.\] 33 S. 591.

01. Caudell v. Southern R. Co., 119 Ga. 21, 45 S. E. 112.

01. In re Teitelbaum, 84 App. DIV. 351, 82 N. Y. S. 887.

01. Holden v. Stratton, 191 U. S. 115, 24 S. Ct. 45.

01. U. S. v. Circuit Court \[C. C. A.\] 126 F. 169.

01. U. S. v. Allen, 192 U. S. 543, 24 S. Ct. 416; In re Frasch, 192 U. S. 566, 24 S. Ct. 424. No appeal lies to the court of appeals or the District of Columbia from an order of the commissioner of patents denying an appeal from the primary examiner to the board of examiner, mandamus to the commissioner being the proper remedy. Ex parte Frasch, 192 U. S. 566, 24 S. Ct. 424.

01. Mandamus to court of appeals to re-inate appeal dismissed for want of juris-diction, denied. In re Key, 189 U. S. 54, 23 - F. 867; In re Strauss \[C. G.\] 125 F. 827.

01. Farmers' L. & T. Co. v. Hoffman House, 86 App. Div. 617, 83 N. Y. S. 864.

01. Foreign attachment on foreign note, where limitation of liability to a certain class of property only is claimed, but a general judgment is rendered, the only remedy is by appeal. Lewis v. Linton, 204 Pa. 234, 53 A. 99.

01. Longstaff v. State \[VVis.\] 97 N. V. 900.

01. Ingram v. Wilson \[C. C. A.\] 125 F. 81.

01. In re Groetzinger & Sons \[C. C. A.\] 127 F. 124

174APPEAL AND REVIEW $ 3A. 3Cur. Law.

154

ecutors are aggrived by an order setting aside property as homestead for use of widow pending administration.\[18\]

A taxpayer or citizen who shows no special injury cannot appeal in highway proceedings.\[10\] Election officers are concluded by the decision, on mandamus, to compel them to reconvene and count a rejected ballot, and cannot appeal therefrom.\[20\] The city is entitled to appeal in Illinois in special assessment cases, though the local improvement act does not so provide.\[21\] If in default a party cannot appeal,\[22\] unless expressly authorized by statute,\[23\] though if fundamentally wrong a judgment may be reversed despite defendant's default,\[24\] and in New York provision is expressly made for appeals by defendants on the ground of nonservice of process.\[26\] Nonresident defendants who appeared solely for the purpose of attacking the jurisdiction have no standing to appeal from the judgment,\[24\] and where the defendant filed no pleading below except a motion to strike the petition from the files, and it stated a cause of action, there is no issue for review.\[27\] Error will lie from an order allowing a claim against a decedent's estate, though no answer or objections were filed against the claim, and the order was made in the absence of the administrator.\[28\] One who appears, files an answer and participates in the trial by cross-examining witnesses, may appeal, though he introduced no evidence.\[29\] On appeal by plaintiff from a judgment sustaining a demurrer for want of facts filed by one defendant, a co-defendant constructively served, and not previously appearing, can prosecute a cross-appeal from the default judgment against him.\[30\] A third person who by reason of laches is not entitled to have a judgment vacated may be admitted to prosecute a pending appeal therefrom.\[31\]

A party in contempt will not be heard.\[32\]

A foreign corporation defendant may maintain appeal or error, though it has not complied with the statute necessary to entitle it to maintain suits in the courts of a state.\[83\]

(SS 3) _B. Necessary or proper parties to be joined or brought in.\[34\]_--All par

v. Superior Court of King Country, 28 Vash.

24. It had been opened and then reinander a will and the executive have submit- tated a question in controversy to the appeal- late division, the executors alone have no such direct interest as will entitle them to appeal to the court of appeals. Isham v. New York Ass'n for Improving Condition of Poor, 171 N. Y. 218, 69 N. E. 867. An administrator can appeal from an order of the county court dismissing his petition for license to sell real estate to pay a claim he has allowed. In rein Smith's Statate, 43 Or. 595, 75 P. 133.

01. The order has the effect to veest title in hefrs subject to the order, thus removing it from the operation of the will. In reinvey's Estate, 141 CaL. 646, 75 P. 301.

01. In re Levy's Estate, 141 CaL. 646, 75 P. 301.

01. Bennett v. Tuftonborough \[N. H.\] 54 A. 700.

01. People v. Unger, 85 App. Div. 251, 83 N. T. 8. 84.

01. Hurd's Rev. St. 1901, p. 399, 85, 96, and 0.57, 813. City of Chicago v. Hulburd, 205 Ill. 372, 68 N. E. 786; City of Chicago v. Singer, 202 Ill. 75, 66 N. E. 874.

01. Forgetson v. Becker, 39 Misc. 813, 81 N. T. S. 321; McLean v. Territory \[Ariz.\] 71 P. 926. See 1 Curr. L. 92, n. 34.

01. Laws 1902, p. 1486, c. 680. Long Branch Pier Co. v. Crossset, 40 Misc. 249, 81 N. T. S. 905. Code Civ. Proc. $ 3064. Fischer * 3 Cur. Law. **APPEL AND REVIEW SS 3B.** 175

ties who may be affected by a reversal should be brought in in order to give jurisdiction." All joint defendants must be brought in, or else a severance of interest in the judgment must appear on the record," and where the judgment rejects a moneyed demand against several defendants in solido, all defendants are necessary parties, and failure to cite one of them is fatal." Appellant, however, is not required to look beyond the record and cite persons not parties to the judgment appealed from," nor is it necessary to join parties whose interests will not be affect-ed," and a defendant not served and not appearing below need not be made a party." Co-parties declining to join may be made defendants in error," and an appeal may be by one of several co-parties in behalf of others; but in such case, rights of co-appellants wholly unconnected from those of appellant will not be reviewable."

An appeal by a mortgagee in condemnation proceedings is not effectual as to the owner against whom no summons has been issued; the condemnation plaintiff may, however, bring him in if necessary to the protection of its rights."

On appeal in mandamus against a board of county commissioners, the new inemunbents of the office are not necessarily served and made parties."

A sentence for contempt of court will not be reviewed in a proceeding to which the state is not a party."

An appeal by an infant should be taken by his guardian ad litem."

The administrator alone may prosecute error from the allowance of a claim against the estate."

An appeal cannot be taken in the name of a receiver where its effect would be to compel the largest creditor to contribute to ititigation against himself."

- 3C. Contestant in election proceedings is appeal to the judgment obtained against him necessary party on appeal by intervenor. by his vendee on the warranty, and in such Moore v. Waddington \[Neb.\] 96 N. W. 279.

Case need not make the plaintiff in the main Co-defendants having Interest adverse to case a party to the appeal. Southern Development Co. v. Dubrose, 109 La. 990, 34 So. ware Co., 31 Wash. 682, 72 P. 464; Wax v.

, 50. Where the trustee in bankruptory of a Northern Pac. R. Co., 82 Wash. 210, 73 P.

, 380. All parties adverse to appellant in the from an order distributing the fund receourt below must be made appeelles. Kuhn

, 40. And a necessary party. Reid v. Pauly \[C. C.

, 890. On appeal by a creditor of a bankrupt A.\] 121 F. 652.

, 40. Hines v. McLellan, 117 Ga. 845, 45 S. E.

, 279: Chason v. Anderson, 119 Ga. 495, 46

, 52. E. 629. Defendants not served with process entitled, the assenting creditors are neces- and as to whom the cause was dismissed says parties. Marshall Field & Co. v. Wolf

, & Bro. Dry Goods Co. \[C. C. A.\] 120 F.

, 815. See 1 Curr. L. 93, 8. 65, 87.

, 36. Faulkner v. Hutchins \[C. C. A.\] 126

, 38. 14.

, 39. In 58.

, 37. Handlin v. Dodt, 110 La. 936, 34 So.

, 881.

, 38. Succession of Wegmann, 110 La. 930,

, 34 So. 878. In perfecting an appeal from a

, 38. 14.

, 38. Succession of Wegmann, 110 La. 930,

, 34 So. 878. In perfecting an appeal from a

, 38. 14.

, 38. Succession of Wegmann, 110 La. 930,

, 34 So. 878. In perfecting an appeal from a

, 38. 14.

, 38. Succession of Wegmann, 110 La. 930,

, 34 So. 878. In perfecting an appeal from a

, 38. 14.

An appeal by a partnership must be in the name of the firm in Georgia.\[49\] In Indiana, vacation appeals must bring in all parties,\[50\] and all defendants against whom judgment has been rendered made co-appellants,\[61\] but the statute does not require it, in term time appeals.\[52\]

A joint notice of appeal by plaintiff and defendants, whose interests are identical, is proper in Iowa,\[53\] and if co-parties refuse to join after notice they cannot afterwards appeal in their own right.\[54\]

Where defendant appeals, in Washington, notice must be given to the sureties on the cost bond which plaintiff furnished below,\[55\] but plaintiff on appeal from a judgment against himself alone need not notify his sureties,\[56\] though an appeal from a judgment against sureties on a cost bond will be dismissed, where the sureties on the bond have not joined in the appeal, nor been served with notice of appeal,\[57\] notwithstanding the judgment was without jurisdiction and absolutely void.\[58\]

_Successors in title and interest and substituted parties.\[59\]_--On the death of the appellee the personal representative should be substituted, where if appellant succeed, the judgment would be personal against appellee,\[50\] and where a foreclosure defendant has transferred his interest and died pending appeal, his grantee may properly be substituted;\[51\] but the assignee of a judgment is not entitled to notice of appeal.\[52\] Substitution, however, is permissive and addressed to the discretion of the court,\[53\] and application should be first made to the trial court, but where first made on appeal a like order should be made below.\[54\] Where a judgment debtor desires to appeal after the death of the creditor, no revival in the name of the administrator is necessary, but on a showing of the facts in the petition in error, appellate process will issue against the administrator.\[55\] Though defendant may prosecute a writ of error after plaintiff's death it should designate the defendants therein by name and not merely as "the heirs" of plaintiff.\[56\] In Massachusetts, where, pending an appeal from a decree of the probate court granting a separation, the wife dies leaving a will, the appeal should not be dismissed, but the superior court should retain the cause so far as necessary to finally dispose of all the questions involved in the appeal.\[57\] Though the question to be litigated 49. Civ, Code, $ 4460. Kline v. Swift Spe- cifo Co., $118 (a), $5. E. 314.

50. Appeal prayed separately by one of several co-parties and granted in term time but not then perfected \[Burns' Rev. St. 1901\], $5. Brockway v. Abbott \[Vasb.\] 74 P. $ 647\]. Burns v. Trustees of Huntertown Cemetery Church, $11.

is one of general interest, a person not a party to the suit cannot be substituted as plaintiff after appeal."

SS 4. _Adjudications which may be reviewed. A. Statutes and legislation."_-\_Prior to the Arizona revision of 1901 no right of appeal from the action of the board of equalization existed."

(SS 4) _B. Dependent on the general form or the character of the adjudication. 1. Nature of decision in general."_--An order entered by consent is not appealable," and the action of a judge cannot be reviewed under a statute giving an appeal from decisions of a court." An order at chambers is not appealable."\_ The judgment must have been entered."\_

_Adjudications founded on the discretion"_ or wisdom of the trial court are not reviewable."\_

_"Merits," "principles of the cause," "orders preventing judgment,"_ etc."\_ An order denying a motion to dismiss an action for want of jurisdiction does not affect a substantial right and prevent judgment."\_ but an order striking the cause on the ground that the case has been settled is appealable as preventing judgment;"\_ and an order compelling plaintiff to separate his causes of action and allege which acts were negligent and which wanton involves the merits."\_ An order striking out a stipulation does not involve the merits and affect the judgment where the result would have been the same if the stipulation had been let stand."\_ An order involving the mode of trial for determining the issues raised by the pleadings is appealable,"\_ but a motion mistakenly marked "filed,"\_ by the clerk, before leave granted to file it is not filed, and an order striking it merely purges the record of a mistake, and is therefore not appealable."\_ An order involving a matter of law which affects a substantial right is appealable."\_ In Virginia, any decree requiring the possession of property to be changed is appealable."\_

(SS 4B) _2. Rulings relating to pleadings and process, and before trial."_--Quashal of,"\_ but not the refusal to quash summons, is appealable."\_ Neither is

68. ? Bal. Code, $ 484, provides that in motion for order of reference on the account-such matters one or more may sue for all. Ing of an administrator in proceedings to Hight v. Batley, 32 Wash. 166, 72 P. 1034.

01. See 1 Curr. L. 94.

01. Cochse County v. Copper Queen

01. See 1 Curr. L. 96.

01. Rev. St. 1898, $ 3069, subd. 1. Maxon

01. See 1 Curr. L. 94.

01. Order refelling that it was granted on opposing afflavits is not on consent. In re

01. Post's Estate, 85 App. Div. 611, 82 N. Y. S.

01.

01. Order taxing costs held an order of the court and not of the judge notwithstanding absence of caption \[Code Civ. Proc. $ 3266\]. Lawson v. Speer, 91 App. Div. 411, 88 N. Y. S. 915. See 1 Curr. L. 94, n. 83.

01. Comm. Laws, $ 4838, $238. Order made while judge was holding court elsewhere, but appearing to be "by the court."\_Custer County Bank v. W. Z. Walting Mercantile Co. \[S. D.\] 94 N. W. 688.

01. Code Civ. Proc. 688. Entry on minutes of court. Markts v. Keenan, 140 Cal. 33, 78 P. 761. Minute entry not sufficient \[Code Civ. Proc. $ 1723, 1736\]. Lisker v. O'Rourke, 28 Month. 129, 72 P. 416. See 1 Curr. L. 95, n. 86, et seq.

01. See 1 Curr. L. 95.

01. See post, $ 13 F 1. Rulings peculiar to province of trial court: Discreteness rulings. Meade County Bank v. Decker

\[S. D.\] 98 N. W. 86. Order recommitting equity cause to take and report other test-mony. Muckenfuss v. Flashburne, 66 S. C.

573, 44 S. B. E. 77; Id. 46 S. E. 637. Refusal of

78. Curr. Law-12

01. See 1 Curr. L. 95.

01. See post, $ 13 F 1. Rulings peculiar to province of trial court: Discreteness rulings. Meade County Bank v. Decker

\[S. D.\] 98 N. W. 86. Order recommitting equity cause to take and report other test-mony. Muckenfuss v. Flashburne, 66 S. C.

573, 44 S. B. E. 77; Id. 46 S. E. 637. Refusal of

78. Curr. Law-12

01. See 1 Curr. L. 94.

01. Credible Country v. Copper Queen

01. See 1 Curr. L. 94.

01. Order refelling that it was granted on opposing afflavits is not on consent. In re

01. Order refelling that it was granted on opposing afflavits is not on consent. In re

01. Order refelling that it was granted on opposite afflavits is not on consent. In re

01. Order refelling that it was granted on opposite afflavits an order making a party defendant."" Rulings on motions to amend pleadings do not ordinarily affect any substantial right, nor have appealable finality."

(SS 4B) 3. _Dismissals, nonsuits, orders to strike cause, etc."22_--If a dismissal determines the action it is appealable,"33 as is an involuntary nonsuit,"34 but a voluntary nonsuit,"35 or a dismissal on request or by consent of plaintiff is not appealable,"36 and an entry in the clerk's register noting the filing of an agreement to dismiss is not a dismissal from which an appeal can be taken."37

(SS 4B) 4. _Orders directing or arresting judgment, or on motion for new trial, are not reviewable at common law,38_ or generally,"39 because lying in discretion,1 but are by statute in some states.2 And where a motion for a new trial is based upon alleged errors of law, no discretion is exercised in the decision, and it is reviewable.3 Motions for new trial not being authorized in cases tried to the court in North Dakota, an appeal from an order denying such motion will not lie.4 No appeal lies from an order denying a motion for a new trial of issues involved in the matter of a claim for compensation and expenses of a receivers, since no such motion lies."39

(SS 4B) 5. \_Final judgment or decree.\_5--The adjudication must be finally determinative of the controversy, and must substantially affect the rights of the parties.' It must be so far final that, if affirmed, nothing remains for the trial

may be made after filing complaint has the effect of discontinuing the action and is ap-penalable. Wagnits v. Ritter, 31 Wash. 343. 71 P. 1035.

der directing judgment notwithstanding ver-

8B. An order denying a motion made on

special appearance to quash service of eum-

ment or new trial. Peterson v. Minneapolis

mons is not appealable as an order affect-

8. A. Under Gen. Laws, 1901, a 46, p. 51, or-

ing a substantial right. In effect determining the action or proceeding, or preventing

find judgment (2 Eal. Code, $500). Powell

v. Nolan, 32 Wash. 43, T. 349.

89. White v. Lawyers' Surety Co., 84 N.

01. _Mink_.

01. _Booth v. Callahan, 97 Md. 317, 55 A._

01. _See 1 Curr. L. 96, n. 14._

01. _See 1 Curr. L. 97._

01. \_An order dismissing an action for

delay in serving the summons is final and

appacable. Marks v. Keenan, 140 Cal. 33,

73 P. 751. Where a judgment of dismissal

18 prematurely entered without hearing on

19 issue joined, an appeal lies only from

order on motion to vacate, and not from

the judgment. State v. Huston, 32 Wash.

154, 12 P. 1015. No appeal lies from an order

dismissing a complaint, as such order can

be reviewed only on appeal from the final

judgment. Krombok v. Pennsylvania Steel

Co. 84 N. Y. S. 297. See 1 Curr. L. 97, n. 28.

94. _Sims v. Southern R. Co., 66 S. C. 520,_

01. _B.E. 90. See 1 Curr. L. 97, n. 87._

01. \_Where plaintiff takes a nonsuit on

the courts intimating that he is inclined

to sustain a pending derurrer to the evidence, he cannot appeal, the nonsuit being

containly. Carter v. O'Neill, 102 Mo. App.

331, 76 S. W. 717. See 1 Curr. L. 97, n. 34,

96. _Bacon v. Abbey Press, 87 N. Y. S. 165._

01. _Kinman v. Scheucher_\[Mont.\] 76 P. 690.

01. _See 1 Curr. L. 98._

01. _N. J. Act Apr'll 3, 1902, does not give_

right of appeal from order refusing new

trial. Mitchell v. Erle R. Co. \[N. J. Law\]

56 A. 236.

1. _See post, $ 13 F._

1. \_Blended motion for judgment notvth-

standing findings or for new trial, is in effect

effect of discontinuing the action and is ap-

motion for new trial. Noble v. Great North-

pealable. Wagnits v. Ritter, 31 Wash. 343.

71 P. 1035.

der directing judgment notvthstanding ver-

8B. An order denying a motion made on

metal or new trial. Peterson v. Minneapolis

mons is not appealable as an order affect-

8. R. Co., 90 Minn. 52, 95 N. W. 751.

1. \_Under Gen. Laws, 1901, a 46, p. 51, or-

ing the action or proceeding, or preventing

64. _Fiferer v. Archibald Guthrie & Co._

89 Minn. 530, 94 N. W. 888; Smith v.

3 Cur. Law. APPEAL AND REVIEW SS 4B 5. 179 court but to execute it.\* It is not final if the case be retained,\* or where an intermediate appellate court reverses a judgment of an inferior court and remands the case for a new trial,10 or retains it for trial de novo.11 Rulings on demurrer are not generally final. Until there has been in the trial court a judgment finally disposing of the case, the appellate court is without jurisdiction to entertain a complaint that error was committed by the trial judge in striking, on demurrer, portions of defendant's answer.12 A judgment sustaining a demurrer to the petition which does not order that the "plaintiff take nothing by his writ" and that the "defendants go thereof without day" is not final.13 A judgment overruling a de

### 10.

3 Cur. Law. **APPEL AND REVIEW SS 4B 6.** 181

serting therein that the motion was denied on a particular ground,**18** nor an interlocutory decree entered in the circuit court in execution of the mandate of the circuit court of appeals.**19** The reservation to a defeated party of the right to renew a motion which was denied is no ground for appeal by the successful party.**19** An appeal lies to the district court from an order of a United States commissioner denying a new trial in a Chinese exclusion case,**18** and from an order of the special term of the city court of New York, denying a motion to compel the acceptance of service of a notice of appeal.**19** These orders must be final,**20** or affect a substantial right.**21** An ex parte order appointing a receiver is appealable,**32** and an appeal lies from a judgment allowing his compensation and expenses.**21** An order discharging an order to show cause for contempt in disobeying an order of court granted on final decree, is reviewable,**22** and proceedings to punish a witness for contempt in failing to give testimony for use in an action in another state constitute a special proceeding from which appeal will lie.**23** A judgment of the circuit court convicting defendant of contempt in an equity suit, being a judgment rendered in a criminal case separate and distinct from the equity suit, is reviewable by the circuit court of appeals on writ of error.**23** Error lies in Wisconsin at the suit of either party to the decision of a commissioner in habeas corpus proceedings,**23** but no appeal on behalf of the state lies from an order of the probate judge in Alabama admitting a person charged with homicide to bail on habeas corpus, prior to indictment.**23** An appeal lies from an order of reference and from an order denying a motion to vacate the order.**23**

Footnote 18: http://www.

### 183. Appeal and Review $ 4B 6.

_Provisional orders for relief._\[50\]--Error will not lie from an order discharging an attachment when there is nothing in the record to show that any action was ever taken under the writ.\[51\] A rule made by a justice of the supreme court in vacation, discharging a rule to show cause why a writ of attachment issued out of the supreme court should not be quashed, cannot be reviewed as a motion made before a single justice.\[52\]

An order entered in the minutes granting an injunction is appealable,\[53\] but no appeal lies from an order of a judge intended as process to carry into effect an order granting an injunction.\[54\] Orders on motions to dissolve temporary injunctions are not appealable in Iowa,\[55\] Texas,\[56\] or Nebraska,\[57\] but in Louisiana, a judgment dissolving an injunction against acts of trespass on real property is appealable, whether interlocutory or not, the injury being irreparable.\[58\] The granting of a temporary restraining order is not reviewable after it has passed into a permanent injunction.\[59\] An order granting an injunction pendente life,\[60\] or continuing a preliminary injunction, is appealable to the circuit court of appeals,\[51\] except in cases where that court would not have jurisdiction of an appeal from the final decree in the case.\[61\]

_Eminent domain proceedings_\[53\] are covered by statute, as shown below.\[54\]

(SS 4B) 7. _Orders after judgment_\[68\] are not separately appealable in Colo-rado.\[66\] An order vacating\[67\] or refusing to vacate a judgment is appealable,\[68\] but an order opening\[69\] or refusing to open a default is not,\[60\] and defendant cannot 3 Cur. Law. **APPEAAL AND REVIEW $ 4C 1.**

appeal from an order opening a default against him on terms.\[71\] The refusal to vacate a judgment of dismissal for want of prosecution is not appealable,\[72\] neither is an order overruling a motion to set aside a pretended judgment of dismissal, which was in fact not a dismissal,\[78\] and an appeal does not lie from an order of the district court vacating a judgment which dismisses an appeal from the probe court;\[74\] but an order denying a motion to vacate the appointment of an administrator affects a substantial right and is appealable.\[78\]

An order denying a motion to correct a judgment is not separately appealable.\[74\]

An order discharging an order to show cause why defendant should not be punished for contempt in disobeying an order of court is a final one, affecting a substantial right, upon a summary application after judgment, and is appealable.\[71\] An interlocutory order designed to carry out a judgment previously rendered is ordinarily not appealable,\[78\] but an order overruling a motion to quash an execution is appealable under a statute allowing an appeal from a final order affecting a substantial right,\[79\] and where it is the only question at issue, an order recalling and quashing an execution is final and appealable.\[80\]

An order of the appellate term reversing on questions of law an order of the special term denying an application of the purchaser to be relieved from his purchase at a judicial sale, made after final judgment confirming the sale, is reviewable by the court of appeals.\[81\]

Orders relating to costs are reviewable on appeal from final judgment and not independently, costs being part of the judgment.\[82\]

An order refusing relief from an order denying settlement of a statement on motion for new trial, on the ground that the party seeking the settlement failed through surprise and excusable neglect, is appealable.\[83\]

(SS 4B) 8. \_Decisions of intermediate courts.\[84\]--\_A reversal by the appellate division in New York on questions of law only, the facts being examined and no error found, makes a case for the court of appeals.\[85\]

SS 4B) 9. \_Parts of judgments.\[85\]--\_Judgments may be reviewed in part so far as they are severable.\[87\]

(SS 4) _C. Dependent on character or value of action, subject-matter, or controversy._ 1. \_Nature of action.\[88\]--\_An action appealable to the circuit court in setting aside a default and allowing defendant to answer in foreclosure of a tax lien, the summons by publication being defective, is not appealable as an order granting a new trial, nor as a final order after judgment affecting a substantial right. Ball Code, $ 6500 (Laws 1893, p. 119, $ 1, sub. 7)\]. Thompson v. Robbins, $ 2Wash. 149, 72 P. 1043. 70. No appeal lies from an order of the municipal court in New York denying a motion to set aside a default judgment \[Mun. Court Act, $ 253-257, 311 (Laws 1902, c. $80)\]. Leavitt v. Epstein, $ 8C N. Y. 8. 208. 71. Long Branch Pier Co. v. Crossley, 40 Misc. 24, $ 1N T. S. 905. 72. Tubman v. Baltimore & O. R. Co., 20 App. D. C. 541. 73. Klimann v. Scheuer \[Mont.\] 75 P. 690. 74. McMaster v. People's Bank of Edmond \[OKL\]. 73 P. 946. 75. In re Sutton's Estate, 31 Wash. 340, 71 P. 1012. 76. Cullen v. Harris \[Utah\] 73 P. 1048. 77. Deppe v. Ford, $ 37 Minn. 253, 94 N. W. 679. 78. It may be when the question is raised whether it had not already been carried out. Succession of Wegmann, 110 La. 930, 34 So. 878. 79. Ball, Ann. Codes & St. $ 6500. Hewitt v. Root, 31 Wash. 312, 71 P. 1021. 80. Little & Smith v. Aichison, T. & S. F. R. Co. \[Ind. T.\] 76 S. W. 283. 81. Parish v. Parish, 175 N. Y. 181, 67 N. E. 298. 82. Spencer v. Mungus, 28 Mont. 357, 72 P. 663. King v. Allen \[Mont.\] 73 P. 1107. 88. Murphy v. Stellings, 138 Cal. 641, 72 P. 176. 84. See 1 Curr. L. 102. 85. Albring v. New York Cent. & H. R. Co., 174 N. Y. 179, 66 N. E. 665. See 1 Curr. L. 103. 87. Defendant in foreclosure proceedings can appeal from the part of the judgment awarding a deficiency of judgment. Peeples v. Leiser, 119 N. Sitzl, 96 N. W. 789. 88. See 1 Curr. L. 103. 89. 80. See 1 Curr. L. 103. 81. 82.

Ohio, after final judgment in the court of common pleas, must be a civil action," an action of which the common pleas has original jurisdiction, and one in which the right to demand a jury does not exist." A judgment of a justice of the peace in forcible entry and detainer is not appealable in Nebraska, not being civil."

(SS 4C) _2. Questions of law."_--No appeal lies in New Jersey from the district court upon questions of fact, but only for error in point of law, or upon the admission or rejection of evidence."

(SS 4C) _8. The existence of a constitutional question"_ authorizes an appeal direct to the supreme court, in Missouri," and ultimately to the highest court of probably all the states and to the Federal supreme court." A previous decision of the same question by the supreme court of Missouri will not deprive it of jurisdiction," and the question being open at the time of transfer, the court will retain the cause and decide it, though an interim decision settles the question." The constitutional question must have been raised below," and decided against the constitutionality of the statue." A case properly before the Federal supreme court on a constitutional ground on appeal from a Federal court stands for decision on all questions properly in the record, even though the constitutional question is decided adversely to appellant;" but in such case the court will not be astute to support its jurisdiction upon another ground, which it could not consider apart from the failing foundation, and which has nothing to commend it but the letter of the law."

The construction merely, of a statute\* or contract, is not constitutional,\* and the question whether the bill lodged with the secretary of state is the bill passed by the legislature and the finding of the court thereon raises no constitutional question.\* The mere finding of an issue as to which party shall pay the costs cannot raise a constitutional question,\* and the decision of a court cannot be "a law

80. Mandamus is a ofvli action. State v., \[our on such a ground and the adverse liti-Philbrick, 69 Ohio St. 283, 69 N. E. 439.

gant has answered complaint of error as to \[no. Rev. St. 1832, 8 5228. Action for money\] such constitutional question. Rausch v. not requiring a decree granting some mode Barrere, 109 La. 658, 33 Sc. 602. Objection of equitable relief is not appealable. Lange or, \[no. Rev. St. 346, 69 N. E. 611.

gant. Changed by statute, 1901, p. 484. c.

gant. Sullivan Transfer Co. V. Paska (Neb.) v. Imperial Life Ins. Co. \[Mo. App.\] 73 S.

gant. N. W. 163: Adkline v. Andrews (Neb.) 94

gant. \[Neb.\] 96 N. W. 225: Sullivan v. Halight (Neb.) 96 N. W. and attorney fee to plaintiff in suit for labor V. 487: Forcible entry and detainer proceedings are not evil. Adkins v. Andrews (Neb.) 96 N. W. 225.

gant. See 1 Curr. L. 104.

gant. P. L. 1902, p. 565. Phelps v. Seymour \[N. J. Law\] 57 A. 129.

gant. See 1 Curr. L. 104.

gant. Hilgert v. Barber Asphalt Pav. Co., 173 Mo. 319, 72 S. W. 1076. Criminal case. State v. Kentner \[Mo. App.\] 74 S. W. 99.

gant. Raucuch v. Barrere, 109 La. 653, 33 Sc. 602: Baltimore & O. S. W. R. Co., Harmon, 161 Ind. 358, 68 N. E. 589; Holmberg v. News-Times Pub. Co., 31 Colo. 456, 73 P.

gant. P. West Chicago St. R. Co., 203

gant. P. Brown v. Missouri, K. & T. R. Co., 175 Mo. 185, 74 S. W. 973; State v. Smith, 177 Mo. 69, 75 S. W. 625.

gant. Lee v. Jones \[Mo.\] 79 S. W. 927.

gant. Brown v. Missouri, & & T. R. Co., 175

gant. P. Schnittman, impairing the obligation of a contract."" Where a street railway company acquired its rights and constructed a tunnel under a navigable river on condition that navigation should not be obstructed, mandamus to compel it to lower the tunnel does not involve the determination of the constitutional question as to taking of property without compensation and due process of law."

(SS 4C) 4. _Construction of statutes and public regulations_" is of itself a ground in some states," though the case be one within the jurisdiction of a justice of the peace." The question, however, must have been raised below." The fact that a national bank is organized under a law of the United States will not confer jurisdiction upon the supreme court of a writ of error to the circuit court of appeals, where no other jurisdictional fact exists, except diversity of citizenship."

(SS 4C) 5. _A jurisdictional question_" authorizes an appeal direct to the Federal supreme court," but it must have been decided adversely to the plaintiff."

(SS 4C) 6. _A federal question_" confers jurisdiction by direct appeal on the supreme court of Missouri."

(SS 4C) 7. _Conflicting or overruling decisions._" A conflict between the Missouri courts of appeals," or between one of them and the supreme court," makes a case certifiable to the supreme court. Jurisdiction, however, does not depend upon the actual existence of a conflict, but upon the fact that one of the judges deems it to exist." Where the court of appeals unanimously deem their decision to be in conflict with that of the supreme court they should not certify the case, but should set aside their ruling, and make one conformable to that of the supreme court."

(SS 4C) 8. _Revenue and tax cases,_" are appealable directly to the supreme court in Illinois," Missouri," and Louisiana," but a controversy between two school districts as to which of them is entitled to school tax money," or a suit to

8. _Hilgert v. Barber Asphalt Pav. Co., 173 Mo. 319, 72 S. W. 1070._

1. _People v. West Chicago St. R. Co., 203_

1. _Se51, 68 N. E. 78._

1. _See i Curr. L. 105._

1. _Rochelbave Market Co. v. New Orleans, 110 La. 629, 44 S. 665. Burns' Rev._

1. _Hilgert v._ 1910, 7511, 7612, regarding escape of gas and oil. Given v. State, 160 Ind. 652, 66 N. E. 760. Burns' Rev. St. 8708, 7080, held not involved in suit for failure to furnish natural gas under contract. Mendenhall v. Diamond Plate Glass Co., 1-68 N. E. 896.\_

12, 13. _Baltimore & Co. S. V. R., Co. v. Harmon, 161 Ind. 358, 68 N. E. 689._

14. _Continental Nat. Bank v. Buford, 191 U. S. 119, 24 S. C. 54._

01. _See i Curr. L. 105._

01. _Anglo-American Provision Co. v. Da._

01. _Phys Rev._ **C6.** (1910) 17 S. 376, 24 S. C. 93.\_

01. _Question is raised by a finding as to wheth-er facts exist conferring jurisdiction on the court. Diversity of citizenship. Sun Print, 730._

_& Pub. Ass'n v. Edwards \[C. C. A.\] 121 F._

82. _Where the contention is that on the facts no case of contempt was made out, and that therefore the court below had no jurisdiction to punish, the question is not_

01. _Jurisdiction to punish, the question is not_

one of jurisdiction, but goes to the merits. O'Neal v. U. S., 190 U. S. 36, 23 S. C. 776, 47 L. Ed. 945.\_

17. _Decision sustaining jurisdiction but_

for defendant on the merits does not authorize appeal. Anglo-American Provision Co. v. Davis Provision Co., 191 U. S. 376, 24 S. C. 93.\_

18. _See i Curr. L. 104, n. 21._

01. _Plea of ultra vires by national bank. First Nat. Bank v. American Nat. Bank, 173 Mo. 153, 72 S. V. 1059._

01. \_See i Curr. L. 105.

restrain a county from entering into a contract with a private person to discover property omitted from the tax rolls, do not involve the revenue within the rule,30 and in Louisiana, where the amount only, and not the validity of a tax, is in question, there is no jurisdiction.31 In Kentucky, an action to recover personal property levied on to satisfy a tax may be appealed, irrespective of the amount in controversy.32

(SS 4C) 9. _Cases involving freeholds and titles_,33 in most states, are appelable directly or ultimately to the highest court. The judgment to be rendered in the case must itself affect the title; that the title is the subject of collateral inquiry is not enough,34 but when the ultimate object of an action is to unconditionally divest one party of title to reality and vest it in another, a freehold is involved.35 Neither forcible entry proceedings,36 suits for trespass, or to fix a boundary,37 nor an action for damages because of prior conveyances of minerals from land concealed from plaintiff purchaser, involves title,38 but a decree confirming title and charging it with a resulting trust does.38 Actions concerning taxes on real estate,36 and proceedings to foreclose liens on land, do not, as a rule, involve freeholds,34 but where the defense of homestead is put in, the freehold is in issue;38 and in Kentucky, where a lion upon land is asserted, the title is in controversy, and the court of appeals has jurisdiction regardless of the amount of the asserted lien.38 Where the lion asserted is waived, no title is involved.34 A suit to set aside a trust deed to land involves title in Missouri,38 unless the ground be that the debt is paid.38 Since surplus money arising on a sale under a trust deed is treated as reality, a contest over the ownership thereof under conflicting liens is within the exclusive jurisdiction of the supreme court in Missouri.38

30. WILSON v. Marion County, 205 III. 580, 88. Adkins v. WILILams, 25 Ky. L. R. 1768, 88 N. E. 1793. 78 S. W. 870. 31. Tobault v. New Orleans, 108 L. 686; Rocheblave Market Co. v. City of New Orleans, 884. 88.

3 Cur. Law. \*\*APPEAAL AND REVIEW SS 4C 13.\*\*187

(SS 4C) 10. _Validity of a franchise_\[48\] confers jurisdiction on the highest court of most states regardless of the amount involved." Denial of a mandamus on the sole ground that the franchise of the corporation applying for it has expired, involves a question of franchise, and gives the supreme court jurisdiction of an appeal therefrom," but no franchise is involved in mandamus to compel a street railway company to lower its tunnel under a river."

(SS 4C) 11. _Probate and administration_\[52\] orders are usually appealable," and where there is an appeal from the judgment in a contest over the probate of a will, an appeal lies from an order denying the motion for a new trial."

(SS 4C) 13. _Bankruptcy matters._\[58\]--The disposition by the district court of a fund surrendered by a mortgagee to a trustee in bankruptcy, subject to the mortgagee's lien, is reviewable on matter of law in the circuit court of appeals on petition therefor," and an order denying the trustee's motion to expunge a claim allowed, unless further preferences were surrendered, and directing a return of a preference previously surrendered is appealable."

(SS 4C) 13. _The jurisdictional amount,_\[58\] as prescribed by statute or constitution, must be involved," excluding costs" and interest," except where interest is recoverable as a part of the damages, in which case it is a part of the "amount in controversy."\[59\] An appeal, however, will lie from a judgment in effect enforcing the judgment of the supreme court, though the amount in controversy is less than the jurisdictional amount, since an appellate court should interpret its own judgments," and an appeal lies to the court of appeals, in Colorado, from a final judgment of a court of record in a civil case, regardless of the amount of the judgment." The constitutional provision that the supreme court of appeals, in Virginia, may have jurisdiction in civil cases involving not less than $300 is not self executing."

Real, and not fictitious amounts, are the test of jurisdiction," the evidence

48. See 1 Curr. L. 107. **56.** In re Antigo Screen Doer Co. \[C. C. A.\] 122 F. 249. **57.** Livingstone v. Heineman \[C. C. A.\] 120 F. 736. **58.** See 1 Curr. L. 107, n. 80. **59.** 5100 in West Virginia. Brightwell v. Bare, 52 Sv. Va. 875, 48 S. E. 160 **5200** Extensive of interest and costs, in Kentucky. Rhodes v. Frankfort Chair Co., 25 Ky. L. R. 2042, 78 S. V. 768. Intervenor prejudded only to the extent of $50 cannot appeal. Newton v. Johnson Bros., 25 Ky. L. R. 653. **76.** W. 161. **60.** Costs allowed a commissioner are excluded. Rhodes v. Frankfort Chair Co., 25 Ky. L. R. 2042, 79 S. W. 768. See 1 Curr. L. 108, n. 81. **61.** Rhodes v. Frankfort Chair Co., 25 Ky. L. R. 2042, 79 S. W. 768. The amount due at the time of bringing the suit, unaffected by subsequent accumulations of interest is decisive. Murphy v. Murphy, 207 III. 250, 60 N. E. 966. **62.** Western Union Tel. Co. v. Noland \[Tex. Civ. App.\] 77 S. W. 1031. Interest which would necessarily accrete may be added to make up the jurisdictional amount. Herring v. Chesapeake & W. R. Co., 101 Va. 778, 45 S. E. 822. **63.** State v. New Orleans Debenture Redemption Co. \[La.\] 36 So. 205. **64.** Judgment for costs only is appealable. Crebbl v. Shinn \[Colo. App.\] 74 P. **75.**

**65.** Flanary v. Kane \[Va.\] 46 S. E. 312. **66.** Beasley v. Glassell, 110 La. 230, 34 being looked to to determine the question, irrespective of the allegations of the pleadings," and where the evidence plainly shows the matter involved to be worth more than the jurisdictional amount, jurisdiction is sustained, though there is no averment as to the amount involved in the pleadings." The right, however, is fixed by the pleadings rather than by the amount of the final judgment," though in Colorado, the amount of the judgment rather than the amount in controversy controls." The existence, however, of the jurisdictional amount must in some manner appear," and where sufficient damages are alleged to give the appellate court jurisdiction, the court cannot say that a portion of such allegations is merely colorable, and that no recovery thereon could be had."

The amount claimed by a dismissed set-off, plus the plaintiff's recovery, determines the amount in controversy on defendant's appeal," and the amount claimed and recovered, for a wrongful death, and not the statutory amount recoverable controls." The jurisdictional amount is not involved by a dispute as to the right of a party to pay $1 poll tax in a particular manner," and where on motion to correct the journal entry, provisions for interest and costs are taken from the judgment, proceedings in error therefrom involve only the amount of such provisions."

Where the original complaint is for an amount in excess of the jurisdictional amount, an amendment, before trial, procured by defendant, withdrawing the excess, will not deprive the defendant of his right of appeal," and failure to request the submission of the issue of defendant's counterclaim will not amount to an abandonment of it, and deprive the court of jurisdiction, where there is no averment that it was interposed fraudulently to give jurisdiction."

In succession proceedings, in Louisiana, the value of the entire succession determines appealability," but elsewhere, claims against an estate are separate, and appealability is determined by the amount of each;" though a decree against distributes for a debt of their decedent involves the whole amount of the debt, and the distributes may appeal, regardless of the amount decreed against each,"

So. 424. In determining the jurisdiction of \[in claimant'e affavit for a continuance as the supreme court in appeal from the appeal to what an absent witness will testify (Hall late court of Illinois, the amount involved v. Hale's Estate, 202 Ill. 326, 68 N. E. 1050). is determined by the evidence. Garden City The fact that defendant in an expropriation Sand Co. v. American Ref. Crematory Co., suit appealed to the supreme court cannot be accepted as evidence of the value of the matter in dispute, there being no showing so. 424.

68. State v. Board of Pharmacy, 110 La. 546, 35 So. 140.

01. 34 So. 159.

01. Attachment for more than $50 leveld on property worth less, and judgment for \[v. 45 B. S. T50.

01. Unless the set-off is not a proper one. less in favor of plaintiff is appealsable to superior court. Padgett v. Ford, 117 Ga.

162, 78 S. W. 465.

508, 43 S. E. 1002. A demurrer to an answer claiming a certain sum admits the sum named to be due and may be regarded as the amount in controversy, though the petition 509.

claims, and judgment is rendered for a less sum. Richard v. Goodpaster, 25 Ky. L. R.

88%, 78 S. W. 831.

70. Spain v. Cripple Creek Mine & Supply Co., 31 Coo. 192, 72 P. 1060.

01. Where the form of procedure below does not require that the record or evidence show the amount or value in controversy, and it does not appear therein, an affavits may be filed in the supreme court to show a value giving jurisdiction (Hannah v. Charlson Nat. Bank, 63 W. Va. 82, 44 S. E. 162), but a claim presented against the estate of a decedent is not controlled by the statement 3 Cur. Law. APPEAL AND REVIEW SS 4C 14. 189

and an appeal by executors from a decree requiring them to pay out legacies involves the total amount to be paid out, rather than the amount of each legacy.82 In a bill to enforce the liability of stockholders for corporate debts, the liability of each stockholder, and not the liability of all, determines the amount in controversy.83 Where expenses and costs are taxed half to plaintiff and half to defendant, the amount in controversy so far as either party is concerned, is half the total amount taxed.84

In replein the amount involved is the value of the property, though defendant appellant prayed judgment for costs only,85 but a suit for the possession of personal property by the owner against a lien claimant, in which the owner is successful, involves on appeal only the amount of the lien claimant's claim.86 In an action for a breach of warranty of an article, the damages alleged, and not the value of the article alleged, furnish the basis of recovery.87 More than the $5,000 necessary to give the supreme court jurisdiction of an appeal from the court of appeals of the District of Columbia is involved, where the relief demanded is the conveyance of a strip of land of slight value, or in the alternative to have the contract rescinded and be repaid the $6,000 paid for the whole tract.88

(SS 4C) 14. \_Review of intermediate appeals.88--No appeal lies to the supreme court from a decision of a circuit court of appeals, rendered on a petition to revise, in matter of law, the proceedings of a district court in bankruptcy,89 and an appeal to the supreme court lies from a decision of the circuit court of appeals allowing or rejecting a claim against a bankrupt estate, only on a certificate of a justice of the supreme court, or where the amount in controversy exceeds $8,000, and the question involved is one which might have been taken on appeal or error from the highest court of a state to the supreme court.81

No appeal lies to the court of appeals of the District of Columbia in a case tried de novo in the supreme court on appeal from a justice of the peace.89

In Illinois, in actions ex contractu or ex delicto, if the damages sought are speculative in character and not capable of direct proof, and the damages are $1,000 or over, as shown by the judgment, an appeal lies to the supreme court from the appellate court without a certificate of error,89 but where the damages are susceptible of direct proof and the judgment does not exceed $1,000, no appeal lies.89 A suit to enjoin the collection of a judgment is not to recover money or chattels, and an appeal lies, though the judgment is less than $1,000, and no certificate of importance has been granted.89

An appeal lies in Indiana, from the appellate to the supreme court, only when the amount in controversy exceeds $6,000,99 and actions within the jurisdiction of a justice of the peace are appealable neither to the supreme nor the appellate court, in the absence of certain questions.89

81. Smith v. Moore \[Va.\] 46 S. E. 826. 82. 61. 62. 63. 64. 65. 66. 67. 68. 69. 68. 69. 68. 69. 69. 69. 69. 69. 69. 69. 69. 69. 69. 70. 71. 72. 73. 74. 75. 76. 89. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 81. 83. 85. 86. 88. 89. 80. 81. 84. 87. 88. 89. 81. 85. 89. 82. 86. 87. 88. 89. 80. 81. 89. 81. 82. 83. 84. 85. 86. 87. 88. 89. 82. 84. 88. 89. 83. 85. 87. 89. 88. 89. 80. 81. 84. 89. 85. 89. 86. 87. 88. 89. 88. 89. 80. 81. 89. 82. 83. 84. 86. 88. 89. 81. 85. 89. 86. 87. 89. 88. 89. 80. 81. 89. 82. 83. 84. 88. 89. 81. 85. 89. 86. 87. 88. 89. 88. 89. 89. 80. 81. 89. 81. 82. 84. 89. 83. 85. 87. 89. 88. 89. 81. 89. 82. 84. 89. 85. 89. 86. 88. 89. 87. 89. 88. 89. 89. 80. 81. 89. 81. 89. 82. 83. 84. 89. 85. 89. 86. 87. 89. 88. 89. 89. 89. 80. 81. 89. 81. 89. 82.

Cretoriari will not lie from the supreme court of Colorado to review a decision of the court of appeals, except in cases where the court is without jurisdiction or has ignored decisions of the supreme court."

(SS 4C) 15. _Federal review of state or territorial decisions_" will lie if there is a Federal question, but it must be a real and meritorious and not a fictitious one.1 The claim of Federal right must have been specially set up," and denied in the state court," or at all events, it must appear from the record, by clear and necessary intendment, that the Federal question was directly invoked so that the state court could not have given judgment without deciding it.4 If the decision of the state court rests on an independent ground, one which does not necessarily include a determination of the Federal right claimed, or upon a ground broad enough to sustain it without deciding the Federal question raised, the supreme court has no jurisdiction to review the judgment of the state court.5 But where a Federal question is fairly prescted, the jurisdiction attaches, though the state court assumes to base its decision on a state question, where the decision as to whether there is a Federal question involves the merits," or it is apparent that the state question was injected for the purpose of denying the Federal right.' A personal as distinguished from an official interest is necessary to enable a party to invoke the jurisdiction of the supreme court to review the judgment of a state court." Illustrative cases showing Federal questions are collected below."

R. Co. v. Harmon, 161 Ind. 358, 68 N. E. 589.

R. Foeplic v. Court of Appeals \[Colo.\] 76 State of Alabama, 193 U. S. 226, 24 S, Ct. 257.

P. 407.

**99.** See Jurisdiction, 2 Curr. L. 613.

**1.** That refusal to allow filing of supple-mentary answer is taking without due previous research. Sawyer v. Plper, 185 U. S. 164, 23 B. Ct. 632, 47 Law. Ed. 757.

**2.** Onondas Nation v. Thacher, 191 U. S. 306, 23 S. Ct. 626, 47 Law. Ed. 826; Giles v. Teasley, 193 U. S. 146, 24 S. Ct. 389. Assetted too late on petition for writ of error in Federal court. Wabash Railroad v. Flaniganigan, 192 U. S. 29, 24 S. Ct. 224. Ralsed in time on motion for rehearing below, the state court entertaining and deciding the motion. Lefigh v. Green, 193 U. S. 79, 24 S. Ct. 390; citing Mallett v. State, 181 U. S. 589, 21 S. Ct. 730, 45 Law. Ed. 1015, Falfurro to specifically claim right below prevents revlew here, notwithstanding discussion thereof by state court. Howard v. Fleming.

191 U. S. 126, 24 S. Ct. 49. See 1 Curr. L. 111, n. 46.

**3.** Giles v. Teasley, 193 U. S. 146, 24 S. Ct. 359. Citing Sayward v. Denny, 168 U. S. 180, 15 S. Ct. 777. 39 L. Ed. 941; Hoyt v. Shelden, 1 Black. 518, 17 L. Ed. 65; Max-well v. Newbold, 15 How. 611, 15 L. Ed. 506.

**4.** Giles v. Teasley, 193 U. S. 146, 24 S. Ct. 359.

**5.** Giles v. Teasley, 193 U. S. 146, 24 S.

**6.** Giles v. Teasley, 193 U. S. 146, 24 S. Ct. 359. Citing New Orleans v. New Orleans Vwater Works Co., 142 U. S. 19, 12 S. Ct. 142.

**35 Law.** Ed. 943; Eustis v. Bolles, 150 U. S. 361, 14 S. Ct. 131, 37 Law. Ed. 111; Dw Dwor v. Richards, 151 U. S. 658-66; 14 S. Ct. 452.

**38 Law.** Ed. 305-308; Wade v. Lawder, 165 U. S. 624-628, 17 S. Ct. 426, 41 Law. Ed. 861.

Denial to negro of right to register as voter under state constitution. Giles v. Teasley, 193 U. S. 146, 24 S. Ct. 359.

**6.** Citzens' Bank of Louisiana v. Parker, 192 U. S. 73, 24 S. Ct. 181.

**7.** Striking pleading raising question under local practice for prolixity. Rogers v. State of Alabama, 193 U. S. 226, 24 S, Ct. 257.

**8.** That costs were rendered against him personally will not confer jurisdiction. Smith v. Indiana, 191 U. S. 138, 24 S, Ct. 51.

**9.** Questions held Federation Whether a Federal judgment has been given due force and effect in a state court. Deposit Bank v. Frankfort, 3 Cur. Law. **APPEL AND REVIEW SS 4E.**

The supreme court will review on writ of error a final decision of the supreme court of Porto Rico, where the value or sum in dispute exceeds SS5,000 exclusive of costs; the circuit court of appeals act of 1891 not applying to such a case.\[10\]

The writ of error from the Federal supreme court properly runs to the court in which the judgment complained of was entered, the record remaining there and the judgment being entered on mandate from the highest court of the state.\[11\]

(SS 4) _D. Dependent on the parties.\[12\]_--An appeal lies to the supreme court from the circuit court of appeals where a foreign state is a party.\[13\] No appeal lies in behalf of the state from a judgment in favor of a petitioner for registration.\[14\]

(SS 4) _E. Questions certifiable.\[15\]_--Jurisdictional\[16\] and certain other questions of law are certifiable to the Federal supreme court by the circuit court of appeals,\[17\] and to the highest court of several of the states by inferior appellate courts. Questions of law only, and not cases, are certifiable,\[18\] and where questions of both form and substance are raised in the lower court, the mere matters of form should be first settled below, leaving to be certified only substantial questions of law.\[19\]

A case docketed in the supreme court of Wyoming before the statute limiting the class of questions certifiable took effect is properly before that court for determination,\[20\] and questions whether the constitutional procedure was followed by the legislature in adopting a law and whether its subject is properly expressed in its title are constitutional questions within that act.\[21\]

Abstract questions will not be answered,\[22\] i. e., if different questions in the case assume inconsistent facts,\[23\] nor will questions rendered immaterial by the answers to others be answered.\[24\]

431. See 1 Curr. L. 112, _n._ 59; also Jurisdic-

a state constitution, on which there are contion, 2 Curr. L. 613.

10. Royal Ins. Co. v. Martin, 192 U. S. 149,

a superne court, and which the circuit court

24 S. Ct. 247.

31. Vvedding v. Meyler, 192 U. S. 573,

24

certified to the supreme court. Constitutional

S. Ct. 222.

12. See 1 Curr. L. 113.

01. Republic of Colombia v. Cauca Co.,

190 U. S. 524, 28 S. Ct. 704, 47 Law. Ed. 1155.

14. State v. Crenshaw, 183 Ala. 506, 35 So.

01. See 1 Curr. L. 118.

01. The questions of jurisdiction certifiable direct to the supreme court of the United States from the circuit court include only those involving its jurisdiction as a Federal court, and not questions as to the jurisdiction generally of courts of equity. Whether principles of comity require relinquishment

on showing jurisdiction previously acquired

cause of action \[Rev. St. 1899, $ 4276\]. Jenk-

191 U. S. 225, $4$ S. Ct. 119. Where a cause

is removed from a state court, and the juris-

diction is sustained, the circuit court of apeals cannot consider the question of juris-

dition on writ of error, but will certify it

to the supreme court. Pennsylvania Lum Lum-

bermerm's Mut. Fire Ins. Co. v. Meyer \[C. C. A.\] 126 F. 352. Where the whole case is

appealed to the circuit court of appeals and errors on the merits and going to the juris-

diction of the circuit court are assigned, the circuit court of appeals has jurisdiction, and

can decide the jurisdictional question or certify it, though the other errors are abandoned. Wirgman v. Persons \[C. C. A.\] 126 F. 449.

17. A question as to the construction of

a state constitution, on which there are conflicting decisions, though none of the state

supreme court, and which the circuit court

of appeals is unable to determine, will be

11. Vvedding v. Meyler, 192 U. S. 573,

24

certified to the supreme court. Constitutional

S. Ct. 222.

12. See 1 Curr. L. 113.

01. Republic of Colombia v. Cauca Co.,

190 U. S. 524, 28 S. Ct. 704, 47 Law. Ed. 1155.

15. C. 127 F. 85.

01. State v. Crenshaw, 183 Ala. 506, 35 So.

01. See 1 Curr. L. 118.

01. The questions of jurisdiction certification

the facts stated, is not properly certifiable,

and when included with others will not be

ed States from the circuit court include only

those involving its jurisdiction as a Federal

a breach of the bond sued on. Poole v. Bur

court, and not questions as to the jurisdiction

nett County \[Tex.\] 17 S. W. 425. The distinction generally of courts of equity. Whether

trict court of Wyoming cannot certify the

principles of comity require relinquishment

question whether a petition to which a gen-

on showing jurisdiction previously acquired

and demurrer has been introduced states a

by state court. Louisville Trust Co. v. Knott,

191 U. S. 225, $4$ S.

5. _Courts of review and their jurisdiction._"Apellate tribunals derive their jurisdiction from the law, and consent of parties will not confer it;" whence an appeal from a court that was without jurisdiction confers none," but where the court of first instance has jurisdiction over the subject-matter, but makes a jurisdictional error in its proceedings, an appeal will confer jurisdiction."

Jurisdiction generally extends to only so much of the case as involves the question conferring it;" but where one of the parties properly appeals to the court having jurisdiction as to his appeal, a cross appeal must also be taken to that court regardless of jurisdiction as to that appeal."

Various questions respecting the jurisdiction of the courts of several states and territories are discussed in the note."

_In Federal courts,_" the jurisdiction of the circuit court of appeals is final in all cases where the jurisdiction of the circuit court depends entirely on diversity of citizenship," but where the pleadings state a case arising under the constitutional.

24. House v. Dallas, 96 Tex. 594, 74 S. W. 901. 25. See 1 Curr. L. 115. 26. Boales v. Ferguson \[Neb.\] 96 N. W. 31 Colo. 209, 72 P. 1064; Fahey v. Fahey 337; Home Sav. & Trust Co. v. District Court \[Colo.\] 14 P. 884. The supreme court of of Polk County, 121 Iowa, 1, 95 N. W. 522. 16. Hayman v. Lambden, 97 3Md. 33, 54 A. 962. See Jurisdiction, 2 Curr. L. 627. 27. Bastian v. Adams \[Neb.\] 97 N. W. 231. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 31. 34. 39. 32. 34. 35. 37. 39. 33. 34. 38. 39. 34. 35. 38. 39. 35. 39. 36. 37. 39. 38. 39. 39. 30. 31. 32. 34. 39. 31. 35. 39. 32. 33. 36. 37. 38. 39. 39. 31. 34. 39. 32. 35. 39. 36. 37. 39. 38. 39. 39. 31. 39. 32. 33. 34. 39. 35. 39. 36. 37. 39. 38. 39. 39. 39. 31. 39. 32. 34. 39. 33. 35. 39. 37. 39. 38. 39. 39. 39. 32. 39. 33. 34. 39. 35. 39. 36. 37. 39. 38. 39.

tion or a law of the United States, error will lie in the supreme court, though the averments are not sustained.\[44\] The constitutional question must be really and substantially involved when tested by the rules of good pleading,\[88\] but where so involved, the plaintiff is of right entitled to the decision of the supreme court, the requisite amount being involved.\[88\] The construction as distinguished from the constitutionality of an act of congress is not a constitutional question,\[87\] but a decision involving the validity of a rule of the patent office draws in question "an authority exercised under the United States," giving the supreme court jurisdiction.\[88\] Where the jurisdiction of the Federal court depends entirely on the fact that a constitutional question is in issue, the appeal lies not to the circuit court of appeals, but direct to the supreme court,\[88\] and an order relating wholly to the jurisdiction of the circuit court is appealable direct to the supreme court.\[40\] The jurisdictional question need not be one of exclusively Federal nature, but may be one which is common to all courts.\[41\] The Federal supreme court does not consider itself bound as to a question of jurisdiction, because it may have exercised jurisdiction in a case where the question might have been raised, but passed sub silentio.\[42\] The determination of the question whether a corporation is engaged principally in mercantile and manufacturing pursuits so as to be within the bankruptcy act is within the jurisdiction of the district court, and an appeal therefrom lies to the circuit court of appeals rather than to the supreme court.\[48\]

**SS 6.**_Bringing up the cause. A. General nature and mode of practice.\[44\]_--Unlike error, appeal is a continuation of the suit below, and is governed as to its procedure by the law in force at the time the suit was begun,\[48\] and the right of appeal being statutory, the requirements of the statute governing and regulating it must be strictly complied with.\[48\]

**SS 6**_B. Time for instituting and perfecting.\[47\]_--Appeals must be prayed for,\[48\] or taken within the time limited by statute,\[48\] but failure to perfect an appeal

\*\*SS.\*\*Warner v. Searle & Herett Co., 1911 38. U. S. v. Allen, 192 U. S. 543. 24 S. Ct. U. B. 195, 24 S. Ct. 79; Arbuckle v. Black-burn, 191 U. S. 406, 24 S. Ct. 148. A case

\*\*SS.\*\*Appel from Hawaii court. Wright v. Require in state court by a trustee in bankruptcy, and removed to Federal court by defendant on ground of diversity of citizens.

revive denied on the merits as well as on ship, as in the Federal court as if it had jurisdictional grounds is not jurisdictional, so as to out jurisdiction of the circuit court court and not as if it had been commenced there

fort v. Deposit Bank \[C. C. A.\] 124 F. 18. The question whether diversity of citizens exists so as to test jurisdiction in the cir-

\*\*SS.\*\*Trade-mark case. Warner v. Searle & Herett Co., 191 U. S. 195, 24 S. Ct. 79.

\*\*SS.\*\*Construction merely as distinguished from the constitutionality of a state law is not Federal. Arbuckle v. Blackburn, 191 U. S. 406, 24 S. Ct. 148. Where plaintiff relies wholly on common-law right, and defendant invokes constitution and laws of U. S. cir-
during the term specified in the notice is not jurisdictional," though failure to perfect within the time limited by statute is."

The West Virginia statute of 1901 shortening the time to appeal from a decree did not retroact on decrees previously rendered," and the 30 day period prescribed by the act of 1903 in Washington, as applied to judgments previously entered, began to run on the day the act took effect, and not on the day the judgment was rendered."

An appeal is "taken" when notice of intention to appeal is served." And proceedings in error are deemed commenced at the date of voluntary appearance when no summons in error is issued."

Under the express provision of the code in California an exception to the decision or verdict, on the ground that it is not supported by the evidence, cannot be reviewed on appeal from the judgment, unless the appeal is taken within sixty days after the rendition of the judgment."

The date of the decree or judgment, as shown by the record, marks the time when limitations on the right of appeal begin to run," and the recital in the

Best v. Rocky Mountain Nat. Bank, 31 Colo, of one of the partners, plaintiff, though a 474, 73 P. 845: Van Buskirk v. Balch \[Colo. nonrefident, cannot take advantage of this App.D 74 P. 792:

40. Sixty days. Code Civ. Proc. $ 1715. 202. There being no express statutory lim-In re Campbell's Estate, 141 Cal. 72, 74 P.

3 Cur. Law. APPEAL AND REVIEW SS 6B. 196

record of the date of hearing and rendition of the judgment is conclusive. \[88\] An amended judgment is appealable within the statutory period after amendment, \[59\] and a motion for new trial, \[60\] or other review ordinarily suspends the time pending decision of the motion. \[61\]

Under a statute limiting the right of appeal to a certain period after service of notice of the entry of the order, the time begins to run only on service of the order, \[62\] and delivery of the original order to defendant's attorney, with the date of its filing marked thereon, is not sufficient. \[63\]

An appeal is premature if brought before a final determination is had, or if the judgment be incomplete, \[64\] though the other party has appealed, \[65\] but the judgment need not have been filed, \[66\] and the right of appeal is not held in abeyance by the successful party's having an improper judgment entered and making a motion to correct it. \[67\] In a creditors' suit to convene the creditors of an insolvent corporation, a creditor whose debt, or its lien, is by a decree disallowed, may appeal without awaiting further action of the court as to debts of other creditors. \[68\]

_"Fast" or "accelerated procedure."_. \[69\]--An order dissolving, vacating, or modifying an interlocutory injunction and appointment of receiver is not reviewable by "fast" writ of error. \[70\]

_Delays and extensions._\[71\]--The courts ordinarily can allow an appeal after the time limited in a proper case, \[72\] and provisions for extensions of time to appeal are the judgment roll is actually made up. Dore \[61\]. Party cannot enlarge statutory period v. Klumpke, 140 Cal. 356, 73 P. 1064. The by filling bill of review on objection avail-!mitation as to the time for appeal begins able at original hearing. In re Sherwood's \[60\] run when the judge gives his decision, and Estate, 206 Pa. 456, 64 A. 20. Where after not the time when the judgment file is made expiration of the time limited, exceptions out and signed. Appeal of Bulkley \[Conn.\] were filed on permission none pro tune, and 57 A. 112. An appeal taken within the statutory period after the first appealable judge began to run from the dismissal. Zinnerment or order is entered is in time, and will shitz v. United Tradition Co., 206 Pa. 51, 55 bring up the finding of fact on which it is a. 841. \[62\]. Rush v. Lake \[C. C. A.\] 125 F. 61. \[63\]. Eex. Rev. St. 1898, $ 2042. Thirty days. An appeal taken within the statutory period after the judge makes and files his findings is seasonable, though no request for finding was made within the statutory period. Childs \[S. C.\] 45 S, E. 12. Where Appeal of Bulkley \[Conn.\] 57 A. 112. Where the defendant dies before decision but after submission of a case, an appeal taken within the statutory period after the filing of the judgment, after his administrator was substituted a party is in time, though the judge-!menti contained an order that it be filed nune pry to tune as of the date of submission of the case. De Leonis v. Walsh, 140 Cal. 175, 73 P. 813. \[64\].

SS. Appeal of Bulkley \[Conn.\] 67 A. 112. \[65\]. In re Potter's Estate, 141 Cal. 350, 74 P. 886. See I Curr. L. 116, n. 81. \[66\]. Where proceedings subsequent to denial of motion for new trial are not preserved, the time to appeal is calculated from that denial. Bonanna Lead Min. Co. v. Huff, 66 Kan. 786, 71 P. 849. Where it was stipulated that a motion for new trial should be considered as if the judgment had not been rendered, the time to appeal did not begin to run until the entry of the order on the motion. Prospectives' Development Co., V. Brook, 32 Wash. 315, 73 P. 876. The making of an unnecessary motion for new trial will not extend the time within which an appeal may be taken. Appeal from probate court. Stewart v. Kendrick \[OKL\]. 75 P. 299. See I Curr. L. 116, n. 32. \[67\].

SS. Appeal of Bulkley \[Conn.\] 67 A. 112. \[68\]. In a. Alaska. Mackay v. Fox \[C. C. A.\] 112 P. 487. \[69\]. Hynes v. Barnes \[Mont.\] 75 P. 523. \[60\]. Kahle v. Long Reach Oil Co., 51 W. Va. 516, 41 S. 283. \[61\]. See I Curr. L. 117. \[70\]. Stubb s. McConnell, 119 Ga. 21, 46 S. 21. \[71\]. See I Curr. L. 117. \[72\]. Mass. Rev. Laws, c. 162, $ 13. Bartlett v. Slater, 183 Mass. 152, 66 N. B. 621. \[73\]. Where the judgment would be subject to collateral attack for fraud, an appeal nuno pro tune will be allowed after expiration of the time limited by statute. Report of county auditor settling account of treasurer. In re Ze common," but an order enlarging the time for perfecting an appeal, made after such time has expired, is ineffectual."

(SS 6) _C. Affidavits and oaths._"--A clerical error in the date of an affidavit may be corrected in the appellate court." An affidavit by appellant's attorney stating that the appeal is not taken for delay but in good faith is sufficient."

(SS 6) _D. Notice, citation, and summons._"--The notice of appeal must describe the judgment," and name the parties," and be served on all parties respondent whose interests will be affected by a reversal or modification," especially in Indiana in vacation appeals." Service on each of co-parties is not jurisdictional," though in such case questions prejudicial to the interests of those not served will not be considered." Only such parties as have appeared need be served in Oregon."

In New York, where the appeal is from a final judgment and appellant intends to review an interlocutory judgment or intermediate order, he must so specify in his notice of appeal."

A notice of appeal by minors by their guardian ad litem is effective, though signed by him as attorney only."

Service on the attorney who appeared below is sufficient," and where a firm appears for appellee above, service on them will not be rejected because only one appears as attorney of record." Service on an attorney who represented a deceased party before his death is insufficient," and a voluntary appearance and waiver of

73. Extension of time for filing bond does not extend time for filing transcript. Coal Belt Elee. R. Co. v. Kays, 207 Ill. 632, 69 N. E. 920. A statement by the judge that stock Mlin. Co. v. Lundstrom \[Idaho\] to appeal will not operate as an extension. Burke v. Wright, 75 Conn. 641, 55 A. 14. An administrator is such a party as to be entitled, upon proper showing, to an extension of time for appeal \[Rev. St. 1898, 4035\]. McKenney v. Minahan, 119 Wis. 651, 97 N. V. 489.

01. Chamberlain Transp. Co. v. South Pier Coal Co. \[C. C. A.\] 126 F. 165.

01. See 1 Curr. L. 117.

01. Viertel v. Viertel, 99 Mo. App. 710, 75 S. W. 187.

01. Perkins v. Mason \[Mo. App.\] 79 S. W. 87.

01. See 1 Curr. L. 118.

01. A notice not averring from what the appeal is taken nor showing by whom it is signed is insufficient. Merrill v. Timorelli \[Iowa\] 95 N. W. 237. A notice in repelvin that the "intervenor has appealed the same" is sufficiently specific, though there were in effect two judgments, his exception being to both so far as they affected his interests. Augustine v. McDowell, 120 Iowa, 401, 87 N. V. 918. A notice from which it may be determined that appellant intends to prosecute appeals from two orders is sufficient (MacGinnas v. Boston & M. Consol. Copper & Silver Min. Co. \[Mont.\] 76 P. 89), though appeal does not lie from one of such orders (Id.). A sufficient notice of appeal is not vitiated by a statement therein that appelleant intends also to bring up another order made in the action. Mason v. Jacobus, 84 N. Y. S. 270. A notice describing the judgment as of the day it appears to have been rendered, though not filed and entered until the succeeding day, is sufficient. O'Neile v. Ternes, 32 Vash, 628, 73 P. 692.

3 Cur. Law. APPEAL AND REVIEW SS 6E.

the issuance and service of summons in error, by defendant's attorney after defendant's death, confers no jurisdiction."

A nonresident defaulting defendant may be served by depositing the notice in the post office," and an agreement that two causes pending on appeal from a justice be tried together is an appearance in both and waives notice of appeal."

Formal service on the clerk of the trial court is not necessary, mere filing in his office being sufficient." Filing may be at any time after service and within the time limited for taking an appeal," and that an interval elapses after service before filing is immaterial."

An appeal from the probate to the superior court in Connecticut is properly made returnable to the next return day or the next but one," and an appeal to the supreme court of errors next to be holden at a certain place sufficiently states the time of holding court, terms being regulated by law."

(SS 6) \_E. Application for leave to appeal, petition in error, assignments, and statements of appeal."--\_The filing of an assignment of errors before allowance of the appeal is indispensable in the circuit court of appeals.' In Nebraska, a petition in error is indispensable to secure a review of a judgment at law," and judgment will not be reversed for errors of law occurring at the trial, unless it is alleged in the petition that the court erred in overruling the motion for a new trial."

Where a statement of objections is not filed on entry of appeal from the probe to the supreme court in Massachusetts, no jurisdiction is acquired and the appeal may be dismissed on motion."

The petition for a writ of error is usually required to state the errors relied on," and review confined to the errors assigned;" but a review of the entire case under the statute of North Dakota will not be denied because the demand therefor contains unnecessary language which may be rejected as surplusage."

An interest entilting appellant to appeal must be alleged in his motion, if it do not appear on the record."

Failure of the assignments of error to specify what court the appeal is taken to is not jurisdictional, the appeal in fact being docketed in the only court having original appellate jurisdiction."

91. Ritchey v. Seeley \[Neb.\] 94 N. W. & Lime Co. \[Neb.\] 94 N. W. 519; Danforth & Lime Co. \[Neb.\] 94 N. W. 637.

v. Fowler \[Neb.\] 94 N. W. 637.

v. Alamance Min. Co. \[Idaho\] 74 P. 529.

98. Morgan v. Garretson-Greason Lumber Co. \[Nob.\] 79 S. W. 997.

01. National Bank of Commerce v. Pick \[N. D.\] 99 N. W. 63.

01. San Francisco Law & Collection Co. v. State, 141 Cal. 364, 74 P. 1047.

01. National Bank of Commerce v. Pick \[N. D.\] 99 N. W. 63.

01. Such an appeal is "clv1 process" with-in the statute. Gen. St. 1902, $ 566. Appeal of Campbell \[Conn.\] 66 A. 564.

01. Hayden v. Fair Haven & W. R. Co. \[Conn.\] 56 A. 613.

01. See 1 Cur. L. 119.

01. Rule 11 (91 F. v1, 32 C. C. A. lxxxVII).

Webber v. Mihilis \[C. C. A.\] 114 F. 64. Later file mark is not conclusive. Tyce Consol.

Mlin. Co. v. Langstedt (C. C. A.) 121 F. 709.

Absence of file mark not conclusive. Moore v. Moore \[C. C. A.\] 121 F. 737.

2. Jarvis v. Chase County \[Neb.\] 97 N. W. 881.

1. Coke v. Omaha Coal, Coke & Lime Co. \[Neb.\] 94 N. W. 519; Danforth & Lime Co. \[Neb.\] 94 N. W. 637.

1. Fowler \[Neb.\] 94 N. W. 637.

1. Bartlett v. Slater, 183 Mass. 152, 66 N.

E. 631.

5. Va. Code 1887, $ 344. Norrolik & VV. R. Co. V. Perrow, 101 Va. 345, 43 S. E. 614.

An assignment alleging error in the refusal of the court to give instructions 1s suf-cient. Norfolk &vv. R. Co. v. Perrow, 101 Va. 445, 43 S. E. 614.

99. Woodard v. Cutter \[Neb.\] 96 N. W. 54;

Payne v. Petthtone \[Neb.\] 96 N. V. 117;

Baden v. Berenshaw \[Kan.\] 74 T. 859. As to sufficiency of facts to constitute a cause of action. Lincoln Traction Co. v. Moore \[Neb.\] 97 N. W. 606; Johnson v. Carlson \[Neb.\] 98 N. W. 788.

7. Code, $ 5630, providing for appeals in cases tried to the court. Prescott v. Brooks \[N. D.\] 94 N. W. 88.

1. Prob
   Errors first presented to the supreme court on rehearing of an application for a writ of error will not be considered.10

(SS 6) \_F. Allocatur, order for appeal, certificate,\_11--Application for leave to appeal from an order will be denied where not timely,12 and appeal will be disallowed for unexcused delay in filing transcript.13

\_Federal practice.\_14--A formal order allowing an appeal is not essential, it being sufficient if the record shows that an appeal was prayed and in fact allowed.15

(SS 6) \_G. Bonds, security, payment of costs; necessity.\_10--Statutes as to filing of undertakings on appeal must be strictly complied with.17 Administrators18 and public representatives are usually exempted from giving bond,18 but an heir is not.29 On appeal in babeas corpus, the bond required in civil actions must be given,21 but a special proceeding to contest a local option election in Texas may be appealed without bond.22

Intervening or substituted parties appellant cannot prosecute the appeal under the bond given by the original appellant,23 and where the time for filing bond after notice of appeal, and also the time for giving notice of appeal, have expired, a motion will not be granted to substitute another as plaintiff and appellant and fix a time within which bond may be filed.24

The bond should be executed by appellant,25 but he need not sign the bond in an election case in Kentucky.26

An indorsement on the back of the writ of error is a sufficient bond.27

The statute of 1903, in Washington, prescribing that the appeal bond shall be served and filed with the notice of appeal, applies to all appeals taken after the act took effect, though from judgments previously rendered.28

The certificate of the giving of security is not defective because denominating it a "recognizance" instead of a "bond,"29 and a certificate omitting to state that the undertaking on appeal was "properly" filed, but containing recitals from which it can be seen that it was so filed, is sufficient.29

\_Affidavit of poverty_31 in lieu of a cost bond may be made by the party's attorney.32

Footnote 31: See 1 Curr. L. 120.

10. George Scalf & Co. v. State \[Tex.\] 74 Serve Commission of Seattle, $3 Wash. 130, S. W. 754.

01. See 1 Curr. L. 120.

01. Such bond to be approved by judge of broken and filed within time prescribed. Schnelder, 128 F. 179.

01. Western Union Tel. Co. v. Wofford \[Tex. Civ. App.\] 72 S. W. 620.

01. See 1 Curr. L. 121.

01. Chamberlain Tramshop Co. v. South Pier \[Cool Co. \[C. C. A.\] 126 F. 165.

01. See 1 Curr. L. 121.

01. Undertakings filed with appeal subsequently abandoned cannot stand as undertaking on a subsequent appeal properly pursued. Morrison v. O'Brien \[B. D.\] 97 N. W. 2.

01. Michigan Mut. L. Ins. Co. v. Klatt \[Neb.\] 98 N. W. 436. Where the administrator's interest is purely personal, an appeal from an order dismissing void administration proceedings will not be allowed without bond. Foliman v. Klatt \[Tex. Civ. App.\] 17 8 S. W. 1088. See 1 Curr. L. 121. n. 34.

01. U. S. marshal, on appeal in babeas corpus. Palmer v. Thompson, 20 App. D. C. 271. Action against state for bounty. San Francisco Law & Collection Co. v. State, 141 Cal. $54, 74 P. 1047; Clity of Jordan v. Seattle, 29 Wash. 581, 70 P. 54. Ol Olferson v. Civil service commission. Corbett v. Civil 3 Cur. Law. APPEAL AND REVIEW SS 6G. 199

_Payment of costs.${}^{ ext{ ext{ iny{38}}}}$--Under the code of New York, the payment of costs imposed by orders is not a prerequisite to appeal therefrom,${}^{ ext{ iny{34}}}$ and a party entitled to a stay of proceedings for the nonpayment of costs waives the stay by receiving and retaining from the opposite party the notices of appeal, printed papers and notice of argument.${}^{ ext{ iny{35}}}$ An appeal from an order is not stayed by failure of the appellant to pay costs adjudged against him on a previous order.${}^{ ext{ iny{36}}}$ The county judge, in Nebraska, has a right to the prepayment of his fees, but he may waive it,${}^{ ext{ iny{37}}}$ and in Louisiana, on appeal by a tax collector in an action to collect a license, the clerk cannot refuse a transcript until his fees are paid.${}^{ ext{ iny{38}}}$ In Washington, an owner appealing from a judgment for the sale of lands for nonpayment of a tax must deposit the amount of the judgment and costs.${}^{ ext{ iny{39}}}$ A deposit in lieu of a bond must be preceded by an order of appeal.${}^{ ext{ iny{40}}}$_ Diverse parties or orders appealed from.${}^{ ext{ iny{41}}}$--Where an appeal is from the judgment and an order denying a motion for a new trial, a single undertaking referring to both is sufficient.${}^{ ext{ iny{42}}}$\_Fixing, taking and approving.${}^{ ext{ iny{43}}}$--After an appeal has been allowed by the circuit, a judge of the court of appeals has no power to fix the amount of the appeal bond and take and approve the same.${}^{ ext{ iny{44}}}$ In Texas, an appeal bond must be approved by the clerk, not the judge,${}^{ ext{ iny{45}}}$ and a district judge cannot question a bond approved by the clerk, or entertain a motion to expunge the clerk's approval therefrom.${}^{ ext{ iny{45}}}$ The judge a quo in Louisiana has jurisdiction to inquire into the solvency of sureties on an appeal bond, notwithstanding the appeal has been lodged in the supreme court, and if he finds them insolvent to dismiss the appeal.${}^{ ext{ iny{47}}}$\_Sureties.${}^{ ext{ iny{48}}}$--A notary who is principal in an appeal bond can take the affl-davits of the sureties thereon.${}^{ ext{ iny{49}}}$ Failure of the sureties to justify within ten days renders the appeal a nullity in South Dakota.${}^{ ext{ iny{50}}}$ Exceptions to the sufficiency of the sureties must be made in the lower court in Washington.${}^{ ext{ iny{51}}}$\_The amount.${}^{ ext{ iny{52}}}$--The bond on appeal from an order quashing an execution need not be in double the amount of the judgment on which the execution issued.${}^{ ext{ iny{58}}}$\_Terms and conditions.${}^{ ext{ iny{54}}}$--An error in the recital of the date of the judgment in the bond is not fatal if it be otherwise unmistakably identified,${}^{ ext{ iny{58}}}$ and a bond purporting to be both an appeal and stay bond, for the proper sum, is sufficient

32. Harwell v. Southern Furniture Co. \[Tex. Civ. App.\] 76 S. W. 888. \[Tex. Civ. App.\] 76 S. W. 888. \[33. See 1 Curr. L. 122. \[34. Code Civ. Proc. # 778. Allen v. Beck- et, 85 N. Y. S. 192. \[35. Allen v. Becket, 85 N. Y. S. 192. \[36. Code Civ. Proc. # 779. Allen v. Becket, 85 N. Y. S. 1011. \[37. Drexel v. Reed \[Neb.\] 95 N. W. 878. \[38. State v. Estorge, 110 La. 479, 34 So. 643. \[39. Laws 1897, p. 180, c. 71. Schultz v. Harris, 31 Vash. 302, 71 P. 109. \[40. Walker v. Parish of Tangjnahoa, 111 L.a. 320, 35 So. 585. \[41. See 1 Curr. L. 128. \[42. Martin v. De Orleans, 139 CaI. 41, 72 P. 440; White v. Stevenson, 139 CaI. 531, 73 P. 421. \[43. See 1 Curr. L. 122. \[44. Kreylms v. O'Reilly, 95 Mo. App. 561, 75 S. W. 694. \[45. Cliff v. Hallburton \[ as such, though only conditioned as a stay bond." An undertaking is not bad for reciting that appellant "is about to appeal," where he in fact had appealed."17

_Irregularities and defects._"--Defects in an unnecessary bond are immaterial,"89 and an ambiguous bond will be given the construction that will make it valid."90

Clerical errors do not vitiate,"61 and a bond executed by a party binds him and is valid, though executed as joint principal by another not a party."92

Footnote 61: The _I.S._ is a _I.S._.

Failure through mistake to give the required undertaking is not fatal in Oregon, and on a proper showing appellant will be permitted to file it after time;"89

but defects cannot be amended by filing a new bond after time."94

(SS 6) _H. Entry below._"85--Entry in the probate court of the order granting the appeal therefrom is necessary in Arkansas,"66 and where entry below is a statutory substitute for personal service, such entry is jurisdictional."97

SS 7. _Transfer of jurisdiction, supersedeas and stay._"86--The appeal must be perfected to transfer jurisdiction and suspend the operation of the judgment,"98 and an administrator, though entitled to appeal without filing an appeal bond, is not entitled to a supersedeas on account of a mere intention to appeal, except during the time necessary to get his appeal filed in the appellate court;" but upon filing and service of notice of appeal and filing of bond, jurisdiction is transferred to the supreme court, irrespective of whether the subsequent proceedings are such as to empower that court to review the questions raised."11

_Supersedeas by operation of appeal or error._"--A mere appeal by a city operates as a supersedeas,"18 and in Connecticut, an appeal by one of several defendants, from the city to the superior court in a mortgage foreclosure, transfers the entire case and vacates the judgment."14 A writ of error out of the supreme court of the United States, to review the judgment of the state court, will not so operate, unless served within the statutory time."18

Footnote 62: The _I.S._ is a _I.S._.

Generally speaking the trial court's power ceases for all purposes on the

56. King v. Branscheld, 32 Wash. 634, 78

pained by a new notice of appeal. Donovan P. 668.

v. Woodcock \[S. D.\] 99 N. W. 82. See 1

57. Kaltschmidt v. Weber, 139 Cal. 76, 72

Curr. L. 124, n. 85.

P. 632.

58. See 1 Curr. L. 124.

01. See 1 Curr. L. 123.

01. Judgment below against appellant for costs only. Voges V. Dittingler \[Tex. Civ. App.\] 72 S. W. 876.

01. Whether appellant is obligated to pay all costs of trial and appellate courts or only appellate court. Giddings v. Fischer \[Tex.\] 77 S. W. 209.

01. A statement that the sureties are worth 3200 "not subject to execution" will be regarded as a mere clerical error, the evident intent being to justify for 2520. Jones v. Herrick, 33 Wash. 197, 74 P. 332. A bond on appeal from the county court obligating appellant to comply with the decree or judgment of the "district" is not bad for omission of the word "court." Bell v. Goss \[Tex. Civ. App.\] 76 S. W. 315.

01. Parshall v. Clark \[Tex. Civ. App.\] 77 S. W. 437.

01. Dowell v. Bolt \[Or.\] 75 P. 714.

01. A new bond cannot confer jurisdiction on the district court, on appeal from a Justice of the peace, where filed after the time to appeal has passed, notwithstanding Code, $ 857. The original bond named a stranger as obligice. Sutton v. Bower \[Iowa\] 99 N. W. 104. An undertaking filed more than a year after objection to surieties on prior one is ineffectual where not accom transfer of jurisdiction," hence the trial court cannot entertain an application for a rehearing," or to amend the judgment in a material matter thereafter," and pending appeal from an interlocutory order, the case cannot be heard below on the merits," but if the judgment rendered is void for want of jurisdiction, a motion to set it aside may be entertained, notwithstanding proceedings in error to reverse it are pending in the supreme court." After appeal from a decree granting re-demption from a tax deed, the district court may extend or change the time for redemption," and an amended proof of claim against a bankrupt's estate may be filed in the bankruptcy court, after an appeal has been taken by the trustee to the circuit court of appeals, from a decree permitting proof as creditors." In California the cause is removed only for the purpose, and to the extent of giving full and complete jurisdiction of such matters as are properly cognizable upon appeal," and the right of the trial court to correct a clerical misprision on its record is not affected, especially where the correction affects no substantial right." The district courts in Idaho retain jurisdiction in divorce cases to make orders directing payment of costs and necessary expenses, in perfecting and prosecuting the appeal, and the supreme court likewise has similar power." In Florida, a statutory supersedeas, obtained by taking an appeal within 30 days, cannot be vacated by the supreme court on the ground that the appeal is frivolous."

Execution on a judgment is stayed," notwithstanding the writ of error was sued out improvently," but the validity of the judgment remains unchanged." Hence a decree may be shown as a breach of the conditions of a trust deed, though error has been prosecuted from it and supersedeas granted." An appeal from a nonappealable order does not stay further proceedings below," and an appeal from that portion of a decree granting relief as prayed by a cross-bill impleading third parties does not affect the decree as to the relief prayed by the original bill." An appeal from an order vacating a prior order does not have the effect of reviving the vacated order." A restraining order of the court of civil appeals of Texas is

76. Record of the entry of judgment may be amended in formal matters. Channel v. Merrfield, 206 IL 278, 69 N. E. 32. Can not vacate judgment for want of jurisdiction of persons. Aetna Ins. Co. v. Thompan \[Wash.\] 76 P. 105. After appeal in a will contest the trial court cannot re-docket the cause and entertain a petition for the appointment of a receiver as a further proceeding. Westfall v., Walt, 161 Ind. 449, 68 N. E. 1099. See 1 Curr. L. 124, n. 2. 77. Appeal from surrogate. In re Murphy's Will, 79 App. Div. 541, 81 N. T. S. 101.

01. After appeal in claim and delivery in Montana, the trial court has no power to correct the judgment by entering one in the alternative. Hynes v. Barnes \[Mon.\] 76 P. 523. A judgment may be so amended as to conform to the verdict after an appeal has been taken. Denver v. Bradbury \[Colo. App.\] 75 P. 1077.

01. State v. Earle, 66 S. C. 194, 44 S. E. 781.

01. O'Loughlin v. Overton \[Kan.\] 74 P. 604.

01. Swan v. Harvey \[Iowa\] 98 N. W. 641.

01. Hutchinson v. Otis, Wilcox & Co., 190 U. S. 652, 23 S. Ct. 778, 47 Law. Ed. 1179.

01. Fay v. Steubenrauch, 138 Cal. 656, 72 P. 156. An appeal from the grant of general letters of administration does not de

## 7 Appendix and review SS 7.

3 Cur. Law. effective only while the case is before that court, and is not operative pending the decision on a writ of error in the supreme court.\[94\]

_Supersedeas by special order or allowance.\[95\]_--A suspensive appeal is properly denied, where its effect would be to oust the sheriff from his custody of sequestrated property.\[96\] An associate justice of the supreme court has power to suspend the operation of a restraining order pending appeal therefrom, after return has been filed in that court,\[97\] but in the absence of a direction from the trial judge, the supreme court of California cannot issue a supersedeas staying proceedings on a judgment in unlawful detainer, pending an appeal from an order vacating an order for the satisfaction of the judgment.\[98\] Strangers to a suit are liable for damages caused by illegal writ of supersedeas issued by them.\[99\]

_As to what matters.\[1\]_--On giving bond a temporary injunction may be continued in force pending appeal,\[9\] and an order continuing the appointment of a receiver, first appointed ex parte, is in effect an order appointing a receiver, and so appealable and may be superseded.\[9\] Where a case involves a constitutional question,\[94\] or where the refusal of a stay will deprive the party appealing of the benefit of his appeal,\[9\] and he has been reasonably diligent, and no injury will be occasioned the appellee, the stay will be granted;\[9\] but supersedeas will not be granted to an unappealable order,\[9\] nor to a decree that grants to plaintiff in error all the relief justified by his pleadings,\[9\] nor where it would be ineffective.\[9\]

The appeal from a judgment dismissing an application for the administration of a succession should be devolutive,\[10\] as should an interlocutory order permitting a judicial sequestration to be set aside on bond, where not working irreparable injury.\[11\] An appeal from a judgment revoking an order appointing a tutor, and appointing a special tutor in his place, will be dismissed as a suspensive, and maintained as a devolutive appeal,\[12\] but a judgment removing a definitive syndic is appealable suspensively, and pending appeal the district court is without jurisdiction to convolve a meeting of creditors to select his successor.\[13\]

_Procedure, order or writ, and its effect.\[14\]_--Where supersedeas is not taken a judgment is a bar, though an appeal therefrom is pending,\[16\] and where a chancery * 3 Cur. Law. 4. 4.

The filing of a supersedcas bond does not prevent ruling on the motion for new trial,\[38\] nor stay execution unless a petition in error has been filed in the apellate court.\[29\]

In Washington, on entering an appealable order the court, on request of the party obtaining the order, should fix the amount of the supersedeas bond required to stay the execution of it pending appeal,\[30\] and appeal need not be taken before application to fix such amount,\[31\] but where, as in California, the statute provides that a judgment shall be stayed by appeal only when a bond in amount fixed by the judge is filed, a party is not entitled to an order fixing the amount until he has appealed.\[32\] Where a tenant against whom ejectment has been brought is entitled to a suspensive appeal, the trial judge may fix the amount of the bond.\[38\] If the trial court refuse the remedy is by mandamus.\[34\]

The conditions of the bond must follow the statute,\[38\] and a bond not conditioned as required is not sufficient to prevent the enforcement of the judgment.\[34\] In Nebraska the amount and conditions of a supersedeas bond, in a case where no money judgment is awarded, are discretionary with the trial court,\[37\] and if he fail to fix the conditions, application should be made for a further order.\[38\]

In Washington the bond, if intended to operate both as an appeal bond and a supersedeas, must be for twice the amount of the judgment plus $200,\[39\] and on appeal from an order denying a motion to vacate an order for the payment of money, supersedeas to the order for payment will be granted only on filing bond for double the amount named in the order.\[40\] On appeal from an order appointing a receiver, a bond conditioned to pay only such damages as the court might award on affirmance of the order is not sufficient, either to supersede the receiver or effect a stay.\[41\]

SS 8. _Appearance, entry and docketing above.\[42\]_--In Colorado, where an appeal is dismissed for want of jurisdiction, it will be redocked on error if reviewable in that manner.\[43\]

SS 9. _Perpetuation of proceedings and evidence for the reviewing court. A. The record proper and what it must show.\[44\]_--Where the existence of a certain question is essential to the jurisdiction of the appellate court, the facts giving ju 8 Our. Law. APPEAL AND REVIEW SS 9A. 205

risdiction must appear by the record.45 The appealable interest of appellant, especially of one not a party to the record,46 and prejudice to him, must appear.47 The ruling complained of,48 objections thereto,49 and the judgment or order of the court below, must appear,50 and a record entry thereof is essential.81 There is no record where merely the original papers in the case, the minute entries and the reporter's transcript of the testimony are brought up.52 Reeitals in a bill of exceptions cannot supply necessary record entries.53 Order book entries are an essential part of the record in Indiana,44 and by statute, all papers pertaining to the cause and filed therein with certain exceptions are deemed part of the record.58 A complete copy of the judgment roll,58 consisting of certified copies of the necessary papers, is necessary in Montana, and a record composed of the originals withdrawn from the files of the trial court will not support an appeal.87 A certificate of completeness is essential.88 In Texas, an agreed statement of facts upon which the case was tried below, the judgment, the findings of fact and conclusions of law, the assignments of error and the appeal bond, by express provision of the statute, constitute a sufficient record to require revision of the judgment without the pleadings or other showing as to what the issues were below.59

\_Proceedings for new trial and to obtain review.60--\_The record must show the timely filing of a motion for new. trial,61 the taking of the appeal,62 the notice of

45. Appeal from board of review on raising assessment of personal property--expontion not shown. Appeal of Havemeyer & Co., 202 III. 446, 68 N. E. 1044. A rectila of due service in the judgment will prevail over a mere absence of process and proof of service from the record. City of Ballard v. Way \[Vwash.17 7 P. 1067. See 11 Curr. L. 127, n. 58, et seq. 46. AHadavits showing interest not incorporated in record. People v. Gay, 141 Cal. 41, 74 P. 443. 47. Brightwell v. Bare, 52 W. Va. 375, 44 B. E. 160. 48. The record must show that the court did rule as complained (disallow credits). Dobbins v. Humphreys, 171 Mo. 188, 70 S. W. 815. Introduction of evidence. Jamison v. Dooley \[Tex. Civ. App.\] 79 S. W. 91. VWhere the case settled does not state that the judge charged as credited in the exceptions, the matter is not before the court. Hart v. Cannon. 133 N. C. 10, 48 S. E. 351. To review errors required to be set up in a motion for a new trial, the record must show a ruling on such motion. Voor- heis. Miller & Co. v. Lelsure \[Neb.\] 95 N. W. 676. See 1 Curr, L. 128, n. 62. 49. Evidence. In re Van Alstine's Essate, 26 Utah, 193, 72 P. 942. In chanery cases, the record must show that specific objection and ruling thereon were made to the introduction of evidence complained of Skinner v. Campbell \[Fla.\] 33 So. 526; Stockton v. National Bank of Jacksonville \[Fla.\] 34 So. 897; Pinney v. Pinney \[Fla.\] 35 So. 95. An error not shown by the bill of exceptions to have been objected to below will not be reviewed. Allowance of amendment to compliant. Bessemer Liquor Co. v. Tiliman \[Ala.\] 36 So. 40. Where specific objections to particular questions and answers in a deposition do not appear in the bill of evidence, they will not be considered. Louisville & C. Packet Co. v. Bottorff, 25 Ky. L. R. 1324, 77 S. W. 920. See 1 Curr. L. 128, n. 67. 50. Mackay v. Fox \[C. C. A.\] 121 F. 487; Jones v. Vanatta \[Co. App.\] 72 P. 810. To appear merely by bill of exceptions is not sufficient. Street v. Franik, 136 Ala. 616, 33 So. 879. See 1 Curr. L. 128, n. 63. 51. Mackay v. Fox \[C. C. A.\] 121 F. 487; Stein v. Goodenough, 69 N. J. Law, 635, 86 A. 701; Lisker v. O'Rourke, 28 Mont. 129; 72 P. 416, 755. 52. Brady v. Pinal County \[Ariz.\] 71 P. 910. 53. City of St. Charles v. Deemar, 174 Mo. 122, 78 S. W. 469. 54, 55. Cleveland, etc., R. Co. v. Wasson \[Ind. App.\] 68 N. E. 1020. 56. Code Civ. Proc. 5 1736. Stanton v. Lewis, 28 Mont. 267, 72 P. 658: Featherman v. Granite County, 28 Mont. 462, 72 P. 972; Beck v. Holland, 28 Mont. 460, 72 P. 972; Bickford v. Kirwin \[Mon.\] 75 P. 518. 57 206 APPEAL AND REVIEW $ 9B. 8 Cur. Law.

appeal,"\* and service thereof," the entry of the appeal in the order book of the court below," the bond on appeal,"\* and timely giving, filing and approval thereof." All orders passed and proceedings had in the court below must, in order to be reviewed on appeal, form part of the bills of exceptions or the duly certified record. Such matters cannot be brought before the appellate court by agreements of coun-well subsequently made."

(SS 9) B. What is part of record proper; necessity of bill of exceptions or its equivalent."--The record proper, which the appellate court can consider without its being authenticated by a bill of exceptions, comprehensnds pleadings and amendments thereto," including demurrers," motions in arrest of judgment,"2 and the statutory writ in mandamus in Indiana."\* Documents are not part of the record," unless shown in the transcript or submitted by order of court in accordance with the rule." A recital in a proffered judgment which the judge refused to sign is not a part of the record." A map attached to the record, but not appearing to have been introduced below or identified as having been there used, will not be considered." Findings of fact and conclusions of law not made part of the record by journal entry or otherwise cannot be considered on error." A statement in a journal entry, "no evidence except the files and records in the case being introduced," constitutes no part of the journal entry, and must be disregarded on appeal." Where a cross complaint is introduced as evidence by plaintiff, and it is copied into the record as such, he cannot on appeal complain that it is not in the record." The statement on motion for a new trial is no part of the judgment roll in Montana," and on appeal from an order setting aside a default judgment, the judgment roll is no part of the record proper, and can be made of record only by including it in a bill of exceptions." Where questions of fact as well as of law are involved, a statement of facts is necessary in Washington."

\_Bringing matters into the record."--The prevailing party as against an appellant must preserve the evidence," but appellant must furnish copies of all papers used on the hearing,"\* and must produce and include in the bill such of

- Stevens v. Hall \[Idaho\] 75 P. 527. 72. Such a motion presented only in a bell of exceptions will not be reviewed.
- Strude \[Fla.\] 34 S0. 5. \[Mont.\] 74 P. 983; Morehouse v. Doxsee 73. Hart v. State, 161 Ind. 189, 67 N. E. 996. 974. Sayer v. Brown, 119 Qa. 539, 46 S. 25. 649. See 1 Curr. L. 129, n. 87. 75. Sup. Ct. Rule 12 (47 N. E. vl.). Soule
- People, 208 Ill. 613, 69 N. E. 25. 76. Tennessee River Land & Timber Co. v. Butler, 134 N. C. 50, 45 S. E. 956. 77. Hayas v. Ison, 24 Ky. L. R. 1947, 72 N. W. 733. 78. Gillehaus v. Pidelity Bldg. & Sav. Co., 24 Ohio Circ. R. 110. 79. Campbell V. Mechanics' Sav. Bank, 66 Kan. 778, 71 P. 829. 80. Roberts v. Koss \[Ind. App.\] 70 N. E. 185. 81. Powell v. May \[Mont.\] 74 P. 80. 82. Code Cty. Proc. $ 173, 1739. Emerson v. McNafar, 28 Mon., 578, 73 P. 121. 83. Action on covenant of warranty defended on ground of limitations and de-inal of ouster, Pierce v., Fawcett, 31 Wash. 271, 71. P. 1011. 84. See 1 Curr. L. 129. 85. Village of Harlem v. Suburban R. Co., 202 Ill. 301, 66 N. E. 1050. See 1 Curr. L. 129, n. 89. 86. Code Cty. Proc. $ 951. On appeal from an order confirming a sale of real estate by executors, applicant must furnish copy of 3 Cur. Law. 4.

208APPEAL AND REVIEW SS 9B. 8Cur. Law.

tions and rulings thereon,\[8\] the affidavits\[6\] or other evidence in support thereof,\[7\] argument of counsel,\[8\] special findings,\[9\] the opinion of the trial court,\[10\] orders, stipulations and an oath and account of a receiver,\[11\] and rules of the trial court.\[12\] Instructions may be made part of the record in some states by being signed and filed,\[13\] but unless so made of record, they are not reviewable unless presented by bill.\[14\] A skeleton bill in Iowa, properly signed and containing proper directions, will bring the evidence into the record.\[15\] The summons is no part of the record until made so by oyer,\[16\] and a demurrer merely copied into the record by the clerk, there being no order recognizing it, is no part of the record.\[17\] A bill of exceptions only becomes a part of the record by a journal entry making it so.\[18\] Where the facts recited in a judgment are insufficient to support it, it cannot be said to contain all the evidence so as to dispense with the necessity of a statement of facts to review it.\[19\]

(SS 9)\_O. The bill of exceptions. 1. Form and requisites.\[20\]--\_The function of the bill of exceptions is to bring into the record the facts on which the trial court decided the questions of law presented for review,\[11\] and it should not include affidavits not presented to or considered by the trial court.\[22\] The rulings The final bill of exceptions must be embraced in one document.\[23\]

8. Sutton v. Clarke, 42 Or. 526, 71 P. default judgment. Whitney v. Knowulton, 33 Wash. 219, 74 P. 469.

1. Bruce v. Casey-Swasey Co. \[Okl.\] 76 P. 280: Newton v. Walker \[Neb.\] 86 N. W. 791. Motion 470: Stanbury v. Storer \[Neb.\] 97 N. W. 791. Motion 805: Sayer v. Brown, 119 Ga. 539, 45 S. E.

1. Amadavits merely copied into transternied. Griggs v. MacLean, 5 C. A.\] 125 F. 470. See 1 Curr. L. 180, a. 10 33 Wash. 244, 74 P. 360; Sellers v. Pacine Wrecking & Salvage Co. \[Wash.\] 74 P. 1056. 83 S. 872.

1. Lurur, 180, a. 10 33 Wash. 241, 74 P. 360. Sellers v. Pacine Wrecking & Salvage Co. \[Wash.\] 74 P. 1056. 83 S. 872.

1. McCain Brox, v. Street, 126 Ala. 625, 23

1. So. 872. Motion to quash summons and return. Brennan Mercantile Co. V. Vickers, 31 Colo. 324, 73 P. 46. Motion to dismiss 1634 a. 10 33 P. 464. Motion to dismiss 1634 a. 10 33 P. 464. Amatours merely copied into transternied. 1634 a. 10 33 P. 464. Amatours merely copied into transternied. 1634 a. 10 33 P. 464. Amatours are merely copied into transternied. 1634 a.

## 3 Cur. Law. Appeal and Review SS 9C 1.

on a motion for a new trial and on motion in arrest of judgment may be brought up by separate bills, though the better practice is to bring all matters up by one bill.\[24\] A single bill of exceptions will not suffice to review different cases, though tried together by stipulation,\[26\] and a single cross bill will not suffice to bring up errors in favor of plaintiff in error in two cases separately appealed which were tried together below.\[20\] Plaintiff, by cross bill of exceptions, cannot complain of a judgment in favor of a successful defendant, the error proceedings being brought by a defendant who was cast in the court below.\[27\]

The general rule is that the bill must state the ground of objection,\[28\] and show that exceptions were taken to the rulings,\[29\] otherwise they will be disregarded on appeal;\[30\] but on objection that the copy filed did not show that exceptions were in fact taken, the court sent down to the circuit for the original bill.\[31\] A bill of exceptions to the exclusion of testimony must show the ground of exclusion,\[32\] and other grounds assigned will not be considered.\[33\] Where the statement or bill of exceptions fails to specify any particulars wherein the evidence fails to justify the verdict, the question whether it is excessive\[34\] or is supported by the evidence cannot be considered.\[35\] In order that the case may be reviewed on the merits, the bill of exceptions must show the motion for new trial, and the saving of proper exceptions.\[36\] Bills of exception, in Montana, unlike statements on motion for new trial, need not specify the particular errors of law on which the party relies.\[37\]

A paper referred to in the bill must be annexed or identified beyond doubt,\[38\] but failure to attach an exhibit referred to is not ground to strike where other questions are properly presented,\[38\] and wherever, in an election case, it is possible to describe a contested ballot so as to dispense with the necessity of producing, and inspection of the originals, this should be done.\[40\] Where a document has been

v. Roberts J. & R. Shoe Co. \[Mo. App.\] 78 \[Vrenke v. Hall \[S. D.\] 98 N. W. 102\] No S. W. 52. See 1 Curr. L. 131, n. 17\] 34. Hay v. Collins, 118 Ga. 243, 44 S. E. 1002. 25. Cole v. Stanley, 118 Ga. 259, 45 S. E. 101. 95 N. W. 874. 282. See 1 Curr. L. 131, n. 18, 19. 26. Harris v. Gano, 117 Ga. 950, 44 S. 27. McMullen v. Butler & Co., 117 Ga. 845, 45 S. E. 258. 28. Question reserved on admission or exclusion of evidence. Fritzinger v. State, 31 Ind. App. 350, 67 N. E. 1006. A bill of exceptions containing no specifications of sufficiency of evidence to justify findings, and no assignments of error, cannot be considered on appeal from an order denying a motion for new trlal. Sather Banking Co. v. Briggs Co., 138 Cal. 72, 72 F. 352. The errors relied on for reversal must be specified (Code Civ. Proc. 8 308) either on appeal from order denying motion for new trial or from a judgment. Schoweller v. McCaul \[S. D.\] 99 N. W. 95. See 1 Curr. L. 131, n. 20. Bank of Liberal v. Anderson, 100 Mo. 3.pp. 657, 75 S. W. 189. Exceptions to the ruling of the trial court on a motion for nonsuit must appear in the stating or substantive part of the bill. Hanna v. De Garno, 140 Cal. 72, 73 F. 820. 30. Rev. Code Civ. Proc. 8 303. Not cured by assignment of errors on appeal (Clark v. Mitchell \[S. D.\] 97 N. W. 358), nor by special.

fraction of errors on motion for new trial

$ Curr. Law-14once included it may be referred to otherwise in the bill by apt words, if again read in evidence.\[41\]

A statement in the bill that the accompanying transcript of evidence is full and correct, except as to certain omitted testimony, reciting it, adopts the recital as a part of the testimony.\[42\]

On appeal, in a writ of review, the return before the lower court and the evidence taken on the original hearing, certified as all the proceedings, will be regarded as a sufficient bill of exceptions or statement of facts.\[43\]

A bill of exceptions cannot bring up the instructions, in Indiana.\[44\]

Motion to strike out a bill must be timely.\[45\]

(SS 9C) 2. _Settlement, signing, and filing.\[46\]_--The bill must ordinarily be signed by the judge who heard the case,\[47\] and a bill signed by one of appellants' attorneys, after succeeding to the office, without appellees' knowledge or consent, will not be considered.\[48\] The statute of California providing that a judge may settle a bill after expiration of his term of office, having been regarded as valid and acted upon for an extended period, will be sustained, though its constitutionality has never been expressly raised and decided.\[49\]

A bill will not be considered if not presented within the time limited by statute, or the course of practice of the court,\[50\] notwithstanding the death of the trial judge,\[51\] or his absence from the state,\[52\] or a practice in the court below of entering an order reciting their filing, when they are in fact not filed,\[53\] but there may be a nunc pro tunc order authorizing the filing of a bill,\[54\] if the appellant was diligent in the preparation of it,\[55\] and a Federal judge may, under extraordinary circumstances, allow a bill after the term, though there has been no extension;\[56\] likewise a judge sitting as a chancellor has discretion to allow exceptions to be filed nunc pro tunc, after expiration of the time limited.\[57\] The statute in 3 Cur. Law. APPBAL AND REVIEW $ 9C 2. 211 Utah authorizes relief against failure through excusable neglect, mistake, inadvertence, or surprise, to serve fn time and settle a bill.\* Appellee by stipulation may waive his right to object that the bill was not filed in time,\*9 and objections to the filing of a bill and to the extension of time therefor are waived by examination of the bill when tendered without objection.\*0 A bill of exceptions signed at a term subsequent to that at which the trial was had, and during that at which a motion for new trial was heard and decided, is available only to bring up errors on the motion for new trial.\*1 Where after reconvening pursuant to mandamus to settle and sign a bill of exceptions, the court, on refusal of plaintiff in error to amend his bill to show the truth, adjourns without day, it is without further power to allow and sign a bill.\*2 Filing in the clerk's office is not a presentation to the judge.\*2 The bill must be signed by plaintiff in error or his counsel as well as presented within the statutory period.\*4 It is presumed that the trial court acted regularly in settling the bill of exceptions,\*5 and the affidavit of one attorney that the proposed bill of exceptions was not served on himself, his associate, or the party they represent, is insufficient to overcome the presumption of regularity of the trial court.\*6 On being returned by the judge for correction a bill should be amended and retendered within a reasonable time, or it will be dismissed.\*7 Where the defendant in error on being served with plaintiff's proposed bill retains it beyond the time allowed to prosecute error, proceedings may be begun on the return of the bill.\*8 A bill allowed by the judge is not invalidated nor rendered incompetent, or incomplete, or defective, by failure on his part to pass upon proposed amendments; if the party proposing them desires to rely on them he should take proper steps to require a ruling thereon.\*9 In Montana, where the appellant does not adopt the amendments proposed by the respondent, he must deliver the proposed statement and amendments to the judge for settlement within ten days,\*10 and failing, the court on appeal will not consider the matters presented thereby.\*1 In California, where the bill of exceptions is presented when the decision is made, the appellant can use it though the court does not actually settle it till a later date.\*2 The Ohio act of Oct. 22, 1902, regulating the preparation and allowance of bills of exception applies only to judgments rendered after January 1, 1903.\*10 A bill filed within an extension allowed by the court is valid,\*11 but the extension must be made before the time allowed has expired,\*11 though in South Dakota, on good cause shown, the time may be extended after expiration of the 212

APPEL AND REVIEW $ 90 2.

3 Our Law. original period.\* Unauthorized extensions of time will not invalidate a subsequent extension regularly procured, unless prejudice to opposing party be shown,77 and an extension of the time to the next term is not affected by an intervening special term.78 A stipulation extending the time is valid, though filed in another division of the court than that before which the case was tried." The rule authorizing the supreme court of the District of Columbia to prolong its term for the settlement of a bill is to be exercised only when invoked,80 and cannot be exercised after the end of the term at which the judgment was entered.81 Time allowed to make and serve a case, or settle a bill of exceptions, until a certain day, excludes that day.82

Footnote 8: Either by record entry or certificate of the clerk. Howe v. White \[Ind.\] 69 N. B. 684; Jay County Comn's V. Bills \[Ind.\] 69 W. N. E. 1008. File marks and date of signature held to show proper filling. Baltimore & O. S. W. 399.

The bill must show that it was examined and approved by the judge as such,83 within the time allowed by law,84 and that the judge who signed it caused it to be filed in the cause.85 The bill must be filed, in the court below,88 after signature, and a filing before signature is insufficient,87 and proper filling must appear on the record.88

Footnote 8: Either by record entry or certificate of the clerk. Howe v. White \[Ind.\] 69 N. B. 684; Jay County Comn's V. Bills \[Ind.\] 69 W. N. E. 1008. File marks and date of signature held to show proper filling. Baltimore & O. S. W. 399.

\_Duty and enforcement.88--\_The court cannot refuse to settle a bill presented in proper time.80 Where the trial justice, in Maine, disallows, or fails to sign and return the exceptions, the supreme judicial court, in a proper case, may allow them and grant a hearing.91 Where it is the duty of the court to settle the bill, mandamus is the exclusive remedy for its enforcement,92 but will not issue to compel the signing of a bill where the judge states that the bill proposed is not true, and that he has already signed a true one,98 or where he refuses it as incomplete,94 and the certification of a bill of exceptions to a judgment appearing 3 Cur. Law. **APPEL AND REVIEW SS 9D.** 213

to have been entered in exact' compliance with the judgment of the supreme court will not be compelled.\*\* The allowance of a bill after expiration of the statutory period, no extension having been obtained,\*\* and no reasonable excuse for failure to procure an extension being shown, is discretionary,\*\* and mandamus will not issue to compel a settlement, though refusal was on another ground.\*\*

A statute authorizing bystanders to testify to the facts occurring at the trial, where the judge refuses to sign a proper bill, is not invalid as conferring judicial powers on them, since they do not by that act allow a bill of exceptions, but merely state the facts.\*\* It must appear that the bill was presented to the judge and rejected by him,\*\* and the affidavits must be filed within ten days from the filing of the bill.\*\* The attorney of a party is not a bystander competent to make affidavit further than to show appellants' dissatisfaction with the statement made by the judge.\*\* Where the judge amends a bill by interlineations and erasures, the affidavits of bystanders may show what the amendments are and what the truth is.\*\*

\_Amendment and vacation.--A bill may be amended, but only from a matter of record.\*\* It must appear on review that "good cause" was shown for an amendment to a bill of exceptions, made after the statutory period for amendment, or it will be stricken out on motion.\*\* The supreme court cannot allow amendments to a bill of exceptions after it has been allowed, signed, and certified by the trial judge.\*\*

\*\*Grounds for striking out a bill are shown below **Where the striking of the bill of exceptions from the transcript would be practically a decision of the case against the appellant, he must have due notice of the motion and proofs in support thereof.**

**(SS 9)**_D. The settled case or statement of facts._**The case must be settled by the judge who heard it,**${}^{11}$ **notwithstanding his absence, holding court in another circuit,**${}^{12}$ **or an agreement of counsel.**${}^{18}$ **Where the statement is not filed during the time limited and no order appears extending the time, it will be stricken out, or not considered,**${}^{14}$ **notwithstanding an agreement of parties that it might be filed later,**${}^{19}$ **unless due diligence and a good excuse is shown.**${}^{16}$ \*\*The time, how-

94. Lookhaven Trust & Safe Deposit Co. **en from the transcript on the ground that**

\*\*v. U. S. Morris. & T. Co. \[CoLob. App.\] 72 P. **it was not served on the adverse party prior**

\*\*602. **05. Villius v. Felton, 119 Ga. 834, 46 S. E. \[Hdab\] 74 P. 129.**

\*\*857. **90. Hayes v. Clifford, 42 Or. 568, 72 P. 1. 19.**

**97. Hayes v. Clifford, 43 Or. 568, 72 P. 1. 19.**

**98. State v. District Court of Second Judicial Dist. \[Mon.\] 74 P. 414.**

**99. Sand. & H. Ding. $549. Boone v. \[Goodlett & Co., 71 Ark.\] 57, 78 S. W. 1059.**

**10. Morris v. Thomasson \[Ark.\] 79 S. W. 179.**

**2. Sand. & H. Ding. $5849. Boone v. \[Goodlett & Co., 71 Ark.\] 776 S. W. 1059.**

**3.** Goodlett & Co., 71 Ark.\] 776 S. W. 1059.\*\*

**3.** A. Boone v. Goodlett & Co., 71 Ark.\] 776 S. W. 1069.\*\*

**4.** Not by attaching unidentified exh ever, may be extended,17 and the court is not limited to one extension,18 but a statement filed in pursuance of an extension granted for more than the statutory period will not be considered.19 That appellant was uncertain whether he could prosecute his appeal owing to lack of funds, will not excuse failure to move for an extension.20 In California, the evidence as preserved in a statement made to be used on a motion for a new trial will be examined on appeal from the judgment, though the motion was never heard and the appeal was taken after the statutory period limited for bringing up the evidence.21

4. \[132\] A. M.

need not be set out in full,\[51\] but the fact that it was served must be shown.\[52\] Exceptions must be shown,\[53\] and an abstract must comply with the rules of court.\[54\] Instructions must be numbered.\[55\] Review will not be made of matters insufficiently abstracted.\[56\] The report of a referee, containing his findings of fact, may be included, though the case is in equity and triable de novo.\[57\] A statement in the abstract that the title of the case as stated in the transcript and certificate is a clerical error will not entitle the transcript to consideration.\[58\] A printed abstract is necessary in Missouri, notwithstanding the appeal is taken in the long form and a full transcript is filed in the appellate court,\[59\] and the refining of an abstract used in another case in which the pleadings were dissimilar and a different judgment rendered is not sufficient, notwithstanding a stipulation of counsel.\[60\] _Proceedings not to be stated in extenso.\[51\]_--The substance only of the evidence should be set out,\[52\] and where the appeal is on a full record, the abstract need only contain a recital of the necessary facts.\[63\] _Supplemental or counter abstracts.\[64\]_--Where appellees are not satisfied with appellant's abstract, they are entitled to file one supplying the omission,\[58\] and appellant's abstract if undenied by the appellee will be taken as a true statement of the contents of the record,\[68\] unless the record itself sets out a notice referred to in the abstract, in which case the appellee may challenge its sufficiency without an amended abstract.\[67\] An amended abstract by appellee must point out specifically the defect in appellant's abstract, or it will be taken as a fair statement of the record,\[68\] and a mere denial that translations of letters in a foreign language set out in appellant's abstract are correct will not put their correctness in issue.\[69\]

So. That the time for filing the bill of moments of error depending thereon will not exceptions was properly extended where it was filed in vacation. That it appears in bill is not sufficient. Edwards v. Kelso \[Mo. App.\] 72 S. W. 726. Failure of the abstract to show the proceedings to preserve the evidence is not fatal where there is a transcript showing that the proceedings were regular. Burget v. Incorporated Town of Greenfield, 120 Iowa, 432, 94 N. W. 933. 51. Merrill v. Timbrell \[Iowa\] 95 N. W. 237; Stearns Paint Mfg. Co. v. Comstock, 121 Iowa, 430, 96 N. W. 868. 420. Where the printed abstract to show the proceedings to preserve the evidence is not fatal where there is a transcript showing that the proceedings were regular. Burget v. Incorporated Town of Greenfield, 120 Iowa, 432, 94 N. W. 933. 51. Merrill v. Timbrell \[Iowa\] 95 N. W. 237; Stearns Paint Mfg. Co. v. Comstock, 121 Iowa, 430, 96 N. W. 868. 420. 52. Morehouse v. Doxsee \[Iowa\] 99 N. W. 143. 53. Auckland v. Lawrence \[Colo. App.\] 74 P. 794; Carlin v. Freeman \[Colo. App.\] 75 P. 36; Jewell v. Shaw \[Colo. App.\] 75 P. 23. 54. On appeal from appellate court, in Illinois, must be indexed and contain opinion. Chadwick v. People, 206 III. 122, 68 N. B. 1108. Must be indexed. Ernst v. Schmitz, 207 III. 604, 69 N. E. 923. Must show all exceptions relied on. Carlin v. Freeman \[Colo. App.\] 76 P. 26. See 1 Curr. L. 135, n. 3. 55. Assignment of error in refusing certain numbered instruction presents no question where no such number is in the abstract. Pittsburg, etc., R. Co. v. Hewitt, 202 III. 28, 66 N. E. 829. See 1 Curr. L. 135, n. 5. Evidence and instructions. Silver Springs, O. & G. R. Co. v. Van Ness \[Fla.\] 34 So. 884. Where the entire charge as given is not set out, the refusal of request-ed instructions cannot be reviewed. City of Pueblo v. Froney \[Colo. App.\] 71 P. 83. Where the evidence is not briefed, assign- 8 Cur. Law. APPEAL AND REVIEW SS 10A. 817

A denial and additional abstract may be stricken for delay in filing," it presenting no jurisdictional fact." Where an amended abstract filed by appellees supplies omissions in the original and affords assistance to the court, its cost will not be taxed to appellee on affirmance of the decree," but the cost of printing an unnecessarily prolix amendment will be taxed to the party filing it," and where in divorce appellant's abstract is imperfect, appellee should be allowed to file an additional one at appellant's expense, or if she be financially unable, appellant should be ruled to furnish a complete abstract or furnish her money with which to do so." Where no motion to dismiss is made, appellant will be allowed to amend his abstract without terms by stating from what order the appeal is taken." An appellee whose demurrer to appellant's pleading has been sustained cannot contradict statements of fact in the pleading denurred to, and an amended abstract attempting it will be stricken."

An insufficient abstract is cured by filing a sufficient supplementary one," and appellant's failure to furnish an abstract may be healed by respondent's printing one." Failure to copy into the record an agreement to extend time for filing a bill of exceptions is cured by a statement in the abstract of both parties that it was filed."

SS 10. \_Transmission of proceedings and evidence to reviewing court. A. Form and contents of transcript or return."\_The transcript should contain only such papers as are necessary to an understanding of the questions raised," excluding their formal parts," but an incomplete transcript made under direction of appellant's counsel will in the fourth circuit necessitate dismissal of the appeal." Not, however, in the seventh circuit, nor in Nebraska, where the remedy is by suggesting diminution of the record." It is not necessary that the praceipe for a transcript be included, but where less than the entire record is ordered, the writing specifying what is desired must be included." The transcript must show the pleadings," and in chanery appeals must include the testimony and an abstract thereof in narrative form will not be considered."

The original files will not take the place of a transcript."

The transcript should be paged and indexed."

70. And the cost thereof taxed to the party filing. Ridgeway v. Jewell \[Iowa\] 95

N. W. 410.

71. Reed v. Cunningham, 121 Iowa, 555, 120 F. 497. See 1 Curr. L, 186, n. 13.

96 N. W. 1119.

72. Wilkie v. Sassen \[Iowa\] 99 N. W. 124.

01. Vissler v. City of Atlantic \[Iowa\] 98 N. W. 131.

01. Benham v. Benham, 208 Ill. 98, 70 N. E. 30.

01. Neeley v. Roberts \[S. D.\] 76 N. W. 921.

01. Whited v. Iowa Cent. R. Co. \[Iowa\] 98 N. W. 131.

01. Whitle v. Missouri Pac. R. Co., 98 Mo. App. 642, 72 S. W. 716. And failure of appellant's abstract to show a necessary fact may be cured by appellees. Lapsley v. Merchants' Bank of Jefferson City \[Mo. App.\] 78 S. W. 1085.

01. Rev. St. 1899, $ 663, Rnlc 15. W. W. Klimball Co. v. Deaton, 102 Mo. App. 45, 74 S. W. 427.

01. Zumault v. Kansas City Suburban B. R. Co., 175 Mo. 288, 74 S. W. 1015.

01. See 1 Curr. L. 136.

01. Wolcott's Estate v. McCormick Harvesting Mach. Co. \[Neb.\] 96 N. W. 216. See 1 Curr. L, 136, n. 12.

01. Rule 7. Greene v. Montana Brew. Co., 28 Monat. 380, 72 P. 761.

01. Williams Bros. v. Savage \[C. C. A.\] 120 F. 497. See 1 Curr. L, 186, n. 13.

01. Wolcott's Estate v. McCormick Harvesting Mach. Co. \[Neb.\] 96 N. W. 216. An appeal will not be dismissed on motion on the ground that the record is insufficient, that being a matter to be determined at the hearing on the merits or to be corrected by certiorari for a diminution of the record. Merriman v. Chicago, D. & V. R. Co. \[C. C. A.\] 120 F. 490. See 1 Curr. L, 186, n. 13.

01. Burns' R. S. 1901, $ 661; Acts 1903, p. 340, c. 193, $ 7. Rutherford v. Prudention Ins. Co. \[Ind. App.\] 70 N. E. 177.

01. Compliant improperly omitted from transcript on change of venue held properly certified on appeal. Southern Ind. R. Co. v. Martin, 166 Ind. 280, 66 N. E. 886. See 1 Curr. L, 136, n. 14.

01. Wertz v. Werts, 20 App. D. C. 98.

01. A practice
    (SS 10) _B. Certification and authentication._"--The transcript must be duly certified by the clerk," under seal." The bill of exceptions must appear in the transcript immediately following the recital of its filing." In Indiana and Nebraska, it may appear in the original or by copy," but unless embraced or copied as required by the statute, it will not be considered." If not properly authenticated by the clerk of the district court, the bill is not properly in the record, and will not be examined." Where the case is triable de novo on appeal, a transcript of evidence not properly entitled in the case cannot be considered." The circuit court of appeals can act only upon a record that comes from the court below properly certified; it cannot make its own record by permitting the withdrawal and refiling of a record of a prior appeal."

(SS 10) _C. Transmission, filing, and printing._"--The appeal will be dismissed if the transcript is not filed within the time prescribed by law or rule of court," though jurisdiction is not lost by failure to file in time," especially where the duty lies upon the judge of the trial court;" but the circuit court of appeals can only acquire jurisdiction of a cause on error when the writ and record are returned to the next ensuing term of the court to which it is made returnable, unless sufficient cause is then shown why it is not so returned."

Before an appeal founded upon a case prepared and settled can be heard in the appellate division, the judge trying the case should order the printed papers to be filed with the clerk of the appellate division."

The clerk may properly refuse to print that portion of the record which embodies the evidence before the cost thereof is paid, it not being of service in deciding any question of law." The number printed will be limited in a proper case." As many copies of a necessary plat must be filed as there are copies of the printed record and briefs."

90. See 1 Curr. L. 136.

01. Oilgschlager v. Grell \[Okl.\] 75 P.

01. On an appeal other than from an order on motion for new trial, the papers contained in the transcript must be identified by a proper certificate. Village of Sand Point v. Doyle \[Idaho\] 74 F. 861. Where a case is presented to the supreme court on appeal on a transcript of the record, the certificate must specifically show that the record is a full, true and complete transcript. Bruce v. Casey-Swassey Co. \[Okl.\] 75 P. 280. See 1 Curr. L. 137, n. 22.

01. Where the record is properly authenticated, the fact that the special bill of exceptions containing the exceptions has no seal will not preclude their review. Nichols v. Baltimore & O. S. W. R. Co. \[Ind. App.\]

70 N. E. 188. A case made, not attested by the clerk or having the seal of the court attached, is not sufficiently authenticated, notwithstanding signature by the judge. Oilgschlager v. Grell \[Okl.\] 75 P. 1131. See 1 Curr. L. 138, n. 24.

93. Knickerbocker Ice Co. v. Lewis \[Ind.\]

67 N. E. 188.

94. Burns' Rev. St. 1901, # 638a, 661.

01. Mankin v. Pennsylvania Co., 160 Ind. 447, 67 N. E. 229; Schlichter v. Taylor, 31 Ind. App.

164, # 7 N. E. 565; Jay County Com'm v.

Bilas \[Ind.\] 69 N. E. 1003. Misnomer of party in practice in humanitarian, Chicago, I. & L. R. Co. v. Cunningham \[Ind. App.\]

69 N. E. 304. Laws 1881, p. 204, c. 28. Van Auken v. Minner \[Neb.\] 71 N. W. 324.

95. Burns' Rev. St. 1901, # 638a, 661.

01. Mankin v. Pennsylvania Co., 160 Ind. 447, 67 N. E. 565; Jay County Com'm v.

97 N. E. 229. Bell * 3Cur. Law. APPEAL AND REVIEW $ 10E.

Appellants in Louisiana have three judicial days after return day within which to file the transcript.\* The time limited for filing a transcript in California is suspended by a motion for new trial.\[10\]

(SS 10) \_D. Amendment and corrections. In the reviewing court.\[11\]--A probable clerical error in the transcript cannot be corrected by the appellate court.\[14\] Resort must be had to certiorari;\[15\] and in Nebraska, where the transcript is incomplete or incorrect in some particular, the appropriate remedy is to procure an additional or corrected transcript duly certified, not to move to strike it from the files.\[16\] Where the record on appeal in a bankruptcy case does not clearly set forth facts necessary to a determination of the questions involved, it will be remanded to the district court with directions to have the facts fully reported to it and to pass on the same.\[17\] Affidavits will not be received to supply omissions from the transcript of the record,\[18\] nor will the court try the correctness or completeness of the transcript on affidavits, nor require the clerk of the lower court to produce the original record.\[18\] The appellate court cannot try on affidavits the question whether the bill of exceptions was not in fact signed and filed out of time, the record showing differently.\[19\] The Texas court of civil appeals has power on affidavit to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction,\[16\] but it cannot consider affidavits showing that a proposed statement of facts was submitted to respondent's counsel, who declined to agree thereto, and that the judge thereupon adopted the statement found in the record.\[18\] The record cannot be corrected upon oral representations of counsel,\[19\] nor will the case on appeal be amended to show an assertion of counsel of his view of the law applicable to the facts of the case.\[20\] Where the averments in an application to rectify, supported by affidavit, are not denied before argument, they will be taken as true, though the statutory period within which denial might be made has not elapsed.\[21\] An additional transcript will not be stricken where it supplies matter omitted from the original.\[22\] Where no diminution of the record is suggested certiorari will not issue.\[23\] The record must be corrected upon the evidences alone furnished by the records of the court.\[24\] (SS 10) \_E. Conclusiveness of record, and effect of conflict therein.\[24\]\_The record is conclusive and cannot be contradicted\[25\] by affidavits,\[26\] by oral repre sentations of counsel,\[29\] by recials of the clerk not required by any statute or rule of practice,\[30\] or a certificate of the judge bearing date subsequent to the notice of appeal, and stipulation of counsel as to printing the transcript.\[31\] The statement of a jurisdictional fact is conclusive.\[32\] The judgment is the record, and controls as to what was decided.\[38\] A party is entitled to a true bill of exceptions, and if necessary, may have mandamus to compel its allowance, but a bill signed by the judge and accepted by the parties is conclusive of what occured at the trial.\[48\] The recital of a deed in the answer must be accepted as correct as against its recital in plaintiff's abstract, it not having been introduced in evidence.\[35\] Where the record is contradictory as to when the court overruled a traverse to the return of service of the summons, it will be presumed to have been on the return day as shown prior to the making of a nunc pro tune order.\[36\] But a party does not assent to the submission of an issue not proved, by presenting an instruction thereon after ineffectual objection.\[37\] An objection to the jurisdiction, though waived,\[38\] or not raised below, may be insisted on,\[39\] and a complainant, whose bill stating a legal cause of action is dismissed on the merits without a saving clause, is not stepped on appeal to deny the jurisdiction of the court below.\[40\] Appeal after trial on the merits does not waive one's plea to the jurisdiction which was decided adversely to him.\[41\] A party who objects to evidence and has it excluded cannot object that the judgment is unsupported for want of the evidence so excluded.\[42\] An admission by plaintiff's attorney on the trial that the complaint contained no allegation of actual damages does not conclude him on appeal, where the complaint does in fact contain such allegation.\[43\] The right to review a judgment granting insufficient relief is not waived by moving for the entry of the judgment after being denied a new trial.\[44\]

SS 11. _Practice and proceedings in appellate court before hearing. A. Joint and several appeals; consolidation; severance.\[45\] Two judgments, though rendered in suits consolidated and tried together below cannot be brought up on one wrist of error.\[46\] Causes separately dockeded after being improperly joined should be separately appealed.\[47\]_

(SS 11) _B. Original and cross proceedings.\[48\]_--Cross proceedings instead of independent petition in error are necessary in some cases,\[49\] but a cross petition in 38. _Fidelity & Deposit Co. v. Jordan, 134_

Judge is a part of the record and its recials cannot be impeached by affladavits. Phoenix Ins. Co. v. Howe (Neb.) 96 N. W. 73. _20_, Vents. v. Meyer (Neb.) 96 N. W. 72. _30_. Phoenix Mut. Life Ins. Co. v. Sparks (Neb.) 96 N. W. 314. _31_. _32_. _33_. _34_. _35_. _36_. _37_. _38_. _39_. _31_. _32_. _33_. _34_. _35_. _36_. _37_. _38_. _39_. _31_. _34_. _39_. _31_. _32_. _34_. _35_. _36_. _37_. _38_. _39_. _31_. _39_. _32_. _33_. _34_. _35_. _36_. _37_. _38_. _39_. _31_. _39_. _32_. _34_. _39_. _31_. _32_. _33_. _34_. _35_. _36_. _37_. _38_. _39_. _39_. _31_. _32_. _34_. _39_. _32_. _35_. _36_. _37_. _38_. _39_. _31_. _39_. _32_. _33_. _34_. _35_. _37_. _38_. _39_. _39_. _31_. _39_. _32_. _34_. _39_. _31_. _32_. _33_. _34_. _35_. _36_. _37_. _38_. _39_. _39_. _31_. _39_. _32_. _34_. _39_. _32_. _35_. _39_. _36_. _37_. _38_. _39_. \_3 3 Cur. Law. APPEAL AND REVIEW SS 11E 1. 221 error is treated as an independent proceeding, and the party complaining must take the preliminary steps giving him a right to assign error.\[50\] (SS 11) _C. Amendments of parties.\[61\]_--Upon the death of plaintiff after submission, the cause is properly revived below, after filing the mandate of the court of appeals.\[52\] An appeal by an under tutor _and_ minority members of a family meeting from the _homologation of its proceedings_ is not abated by the death of the under tutor and the appointment of another, who concurs in the views of the tutor and the majority.\[58\] (SS 11) _D. Calendars; trial dockets; terms.\[54\]_--Parties cannot by consent confer jurisdiction on the court to hear a case at a term prior to that to which the case is by law returnable.\[55\] An appeal, by permission, from an interlocutory judgment in New York does not go on the regular calendar, but may be noticed by either party for argument on the motion calendar at his convenience.\[66\] In North Carolina an appeal may be taken to the term in session when the case is tried.\[57\] An appeal from the debate to the superior court in Connecticut is properly made returnable to the next return day, or the next but one.\[58\] (SS 11) \_E. Forming issues; pleading, assigning, and specifying error.\[58\] 1. In general.--The assignment of errors is appellant's pleading, tendering an issue of law. It is the foundation upon which he rests his right to require the court to review the errors of the trial court, and is essential, in order to invoke the appellate power of the court.\[50\] Generally errors not assigned will not be reviewed,\[61\] and assignments not appearing to have been filed below will not be considered;\[62\] but a jurisdictional, or other fundamental error of law appearing on the face of the record will be considered, though not assigned.\[63\] Assignments are necessary in actions at law,\[64\] but not in equity cases.\[66\]

Constitutionality of statutes cannot be presented by independent assignments, but only by assignments of error in not sustaining demurrers, overruling motions for new trials, etc.\[66\] An assignment that damages are excessive presents no question in an action on a contract.\[67\]

The statute in Illinois that no assignment of error, calling into question the

egin{tabular}{l|l} egin{tabular}{l} enttitle him to affirmative relief, he must \\ file a cross petittion and not bring an in- \\ dependent proceeding in error. Scully v. \\ Smith, 66 Kan. 265, 71 P. 519. \\ 50. Must present errors to trial court by \\ motion for new trial. Wheeler v. Caldwell \\ \[Kan.\] 78 P. 1031. A cross petittion in error \\ must, in Kansas, be filed within one year \\ after the rendition of the judgment \\ planned of, to confer jurisdiction to con- \\ sider it. Durand v. Higgins, 67 Kan. 110, \\ 72 P. 567. \\ 51. See 1 Curr. L. 139. \\ 52. Fisher v. Musk's Ex'r, 24 Ky. L. R. \\ 1913. 72 S. W. 787. \\ 53. Succession of Carbajal, 111 La. 944. \\ 36 So. 41. \\ 54. See 1 Curr. L. 139. \\ 55. Record not being filed 30 days before \\ beginning of term, case goes over to sub- \\ sequent term. Bank of Colloden v. Bank of Forsyth, 119 Ga. 351, 46 S. E. 42. \\ 56. Slater v. Slater, 174 N. T. 264, 66 N. \\ E. 934. \\ 57. Rule 5 (28 S. E. v.) Clegres v. South- \\ 58. Such an appeal is "civil process" with- \\ in Gen. St. 1902, $ 566. Appeal of Campbell \\ \[Conn.\] 56 A. 554. \\ 59. See 1 Curr. L. 140. \\ \\end{tabular} & **60**, Rubey v. Hough, 161 Ind. 203, 67 N. \\ egin{tabular}{l} egin{tabular}{l} egin{tabular}{l}
egin{tabular}{l} \\hline decision of the appellate court on controverted questions of fact, shall be allowed in the supreme court applies only to actions at law and not to suits in equity.88

In Indiana the assignment must contain the full names of all parties89 neces-sary to the appeal.70

(SS 11E) 2. _Proper parties tq assign errors.71--Errors cannot be urged_ which affect other parties, but not the objector,72 or which are favorable to him,73 or his co-defendant,74 or which his position and the case require him to uphold,75 as where he invites or assents to the action of the court.76

68. Starrett v. Brosseau, 208 Ill. 408, 70

by an appeal from a judgment sustaining\_ N. E. 354.

69. Sup. Ct. Rule 6 (27 N. E. iv). Design of parties as trustees and executors. Wlhsler v. Whisler \[Ind.\] 67 N. E. 984. So

01. MacSchee & Steth v. Farrell \[Tex. Civ. App.\] 77 S. V. 1040. See 1 Curr. L. 140, n. 81.

01. Review not made on issues differing from those raised below. See post, 13c.

01. Name presumed the full name. Kelser v. Mills \[Ind.\] 69 N. E. 142. Executor held\_

necessary party. Whisler v. Whisler \[Ind.\] 70 N. E. 152.

71. See 1 Curr, L. 140.

01. Demurter to evidence in tort action sustained as to part of defendants, romanling defendant cannot object that it should not have been sustained as to others. Modairy v. McAllister, 97 Md. 488, 56 A. 461. See 1 Curr. L. 140, n. 79. Appellant cannot complain of findings against others. Ammrose v. Drew, 129 Cal. 665, 73 P. 543. An unsuccessful bidder at a sale of real estate by executors cannot false the question that the sale will not produce funds sufficient to pay creditors. In re Robinson's Estate, 142 Cal. 152, 75 P. 777. Errors as to plaintiff' judgment cannot be assigned on one defendant's appeal, by another. Smith v. Bunch, 31 Tex. Civ. App. 641, 78 N. 559.

01. Instruction on effect of receipt more favorable to defendant than pleadiings authorize. Shmilvitz v. Barnes, 75 Conn. 714, 655 A. 860. See 1 Curr. L. 140, n. 80. Injunction restraining any "substantial" change In sea wall where no change at all is authorized. Fisk v. Ley \[Conn.\] 56 A. 559. Plaintiff cannot complain of instructions taking certain defenses from the jury. Hoar v. Henness \[Mont.\] 74 65. Parity se- curing all relief asked for. Guarantee Co. \[Ch. C. A.\] 125 F. 181; Bank of Park of North America v. Phoenix Ins. Co. \[C. C. A.\] 124 F. 170. Plaintiff in repelvin cannot complain that verdict for defendant did not find the value of the goods and asses damages for defendant. Cabell v. McKinney, 81 Ind. App. 601, 68 N. E. 601. Imposition of costs on opposing party. Second Nat. Bank v. Smith, 118 Wils. 18, 94 N. W. 664. Defendant in ejecment is not prejudiced by failure of the judgment to dispose of plaintiff's claim of damages. Davis v. Shepherd, 81 Colo. 141, 72 P. 67. Error in instruction as to apportionment of forfeit money paid by plaintiff to defendant, where defendant defaulted and plaintiff did not, is not available to defendant. Eager v. Mathewson \[New.\] 74 P. 404. Defendant cannot complain of verdict less than he admitted to be due. Seattle Brewing & Malting Co. v. Donofrio \[Vwsh.\] 74 P. 823. Where the evidence is susceptible of only one of two verdicts for a certain amount or nothing, defendant can complain of a verdict for a less amount. Myers v. 'yers, 86 App. Div. 73, 83 N. Y. S. 236. Defec'ant can take nothing

**8** Cur. Law.\*\* **APPEL AND REVIEW SS 11E 3.** **223**

(SS 11E) 3. _Cross errors._\*\*7"--On appeal in equity, the appelleo is not concluded as to any matter directly involved in the questions raised by the appellant," but as to matters not necessarily involved, he cannot urge errors unless he has cross appealed," or cross assigned errors, and sometimes only when he has appeled or brought error independently.**80** The right of appellees to assign cross errors is expressly given by statute in Illinois," but co-parties as to whom the case is not appealed cannot assign.**82** Questions cannot be first raised by an assignment of cross errors.**83** A defaulted party will not be heard.**84** An appellee who insists that the findings and judgment be affirmed cannot deny the truth of a finding.**86** A cross assignment by a party not appealing as to another party also not appealing will not be considered,**84** and where the judgment on two consolidated actions is severable, and a party appeals from that portion against him, the other portion cannot be reviewed on a cross assignment of appelleo who has not appealed.**87**

(SS 11E) 4. \_Specifications and averments.\_88--Questions defectively raised

In re Sherwood's Estate. 206 Pa. 465. 56 A. \[the charge, which 1s also erroneous in the 20. Judgment for amount contended for by same respect, has been given. Missouri, K. appellant. Frapplea v. Johnson, 75 Vt. 397, & T. R. Co. v. Eyer, 96 Tex. 72, 70 S. W. 56 A. 100. Party cannot predicate error on \[529.\]. Instructions expressly recognized as a ruling which he was instrumental In procurteen given. Wiley v. Lindley \[Tex. curing. Norbury, V. Harper \[Neb.\] 97 N. Vt. 513, Civ. Appl. 176 S. W. 208. Requested instrucu-438. Reference unobjected to. Blanton v. Howard, 25 Ky. L. R. 929, 76 S. W. 511. By roquesting instructions on a certain phase \[300.\], 630, 74 S. W. 431; Mitchell v. Wabash of the case appellant precludes himself from \[300.\], 647, 76 S. W. 647. Prop-objecting afterwards that question was one \[300.\] of law. Gayle v. Missouri Car & Foundry \[300.\], 647, 76 S. W. 987.

Errerereons evidence brought out by appelant on cross-examination. Goldstein v. Mor- \[300.\], 647, 76 S. W. 987. Unobjected to on direct and cross-examination, cannot be assigned as error on re-direct. Highland Boy Gold Min. Co. v. Pouch \[300.\], 647, 76 S. W. 647. Prop-objecting afterwards that question was one \[300.\] of law. Gayle v. Missouri Car & Foundry \[300.\], 647, 76 S. W. 987.

Errereons evidence brought out by appelant on cross-examination. Goldstein v. Mor- \[300.\], 647, 76 S. W. 983. See 1 Curr. L. 142, no. 83.

I want on cross-examination. Goldstein v. Mor- \[300.\], 647, 76 S. W. 987. Unobjected to on direct and cross-examination, cannot be assigned as error on re-direct. Highland Boy Gold Min. Co. v. Pouch \[300.\], 647, 76 S. W. 647. Prop-objecting afterwards that question was one \[300.\], 647, 76 S. W. 987.

Erreons exclusent of evidence waived by refusal to re-offer after withdrawal of objection. Cravforq v. Burke, 2011 T. 515, 66 N. E. 833.

Instructions requested or substantially like those requested by appellant. Cahill v. Baird, 138 Cnl. 691, 72 P. 342; Union League Club v. Blymer Ice Mach. Co., 294 Ill. 117, 68 N. E. 409; Consolidated Stone Co. v. Mor- \[300.\], 160 Ind. 241, 68 N. E. 696; Stonor v. Mau \[Wy.0\], 73 S. P. 548; Blom-Collier Co. v. Martin \[Mob.\], 73 S. W. 725; Union Pac. R. Co. v. Lotway \[Neb.\] 96 N. W. 527; Rum-sey & Co. v. City of Bessemer, 138 Ala. 329, 35 B. 353; Harris v. Southern R. Co., 25 Ky. L. R. 559, 76 S. W. 161; Beptowski v. St. Louis Transit Co., 192 Mo. App. 110, 76 S. W. 653; Harden v. Hodges \[Tex. Civ. App.\], 76 S. W. 217; Over v. Missouri, K. & T. R. Co. \[Tex.

may be considered," but generally speaking, errors must be specifically assigned," and errors not so specified will not be considered." Assignments must specifically indicate the error complained of," especially in cases referred to auditors, where the records are generally long and complicated;" but the particular in which the decision is against law need not be specified."

The ground of the objection must be stated," but the rule that the errors relied on must be set out separately and particularly does not require that the reasons why appellant claims the decision is erroneous be set out." General statements are insufficient." Several assignments, held too general, are referred to in the note."

Error must be positively averred," and mere declaratory statements are insufficient.1

A general objection will not raise special matters."

An assignment will be confined to the error to which it refers, and cannot be extended by the brief to include another exception not referred to therein."

89, Cammack v. Rogers, 86 Tex. 457, 73 On appeal from decision of board of general

S. W. 795. See I Curr. L 143, n. 8.

90, Oakland Borough v. Boyd, 22 Pa.

\[C. A.\] 127 F. 193. Such as that "there Super. Ct. 278: Croasdale v. Von Boyneburgk, 206 Pa. 15, 55 A. 770; In re Ramschael's Es-

\[Tex. C.\] 95 N. W. 1043.

\[Tex. C.\] 110 F. 821. Nelson v. Brisbin

\[Neb.\] 98 N. W. 1057: Terry v. Cooper, 119 Ja. 142, 45 S. E. 975; Bartlett v. Slater, 183 Mass. 152, 66 N. E. 631. Allowance of ex-

\[Neb.\] 95 RES N. E. 684. Entry of joint judgment instead of according to Code Civ. Proc. 8 611. Campbell v. Lane \[Neb.\] 95 N. W. 1043.

\[Tex. Civ. App.\] 95 N. W. 1043.

Specifications of error consisting in insunbl-

\[Tex.\] 115 Cnl, 558, 69 P. 294. See 1 Curr. L 143, n. 4 et seq.

91. Appeal of Board of Health of Village

of Buffalo Lake \[Minn.\] 95 N. W. 221. Code.

\[Minn.\] 95 N. W. 629; Willett v. Johnson

\[Mok.\] 76 F. 174; Norman v. Southern R. Co.

65 S. C17, 44 S. E. 83; Scott v. Seaboard

Air Line R. Co., 118 S. C. 435 S. E. 129.

Error not included in a specification of error separately set out as such will not be examined. Ancient Order of the Pyramids

\[Tex.\] 92. McLeod v. State \[Tex. Civ. App.\] 76 S. W. 215. Code, 6 4136. Faville v. State

\[Tex.\] 96 N. W. 1109: Osborne & Co. v. Ringland & Co., 123 Iowa, 329, 88 N.

\[Tex.\] 95 N. W. 116. A single assignment, in sustaining a motion for new trial or in arrest of judgment, as to each and every ground thereof, is not sufficiently specific \[Code, 6 4136\]. Reeves & Co. v. Lamm Bros., 120 Iowa, 283, 94 N. W. 839.

93. Hudson v. Hudson, 119 Ga. 637, 46 S. E. 874.

01. Stuart v. Lord, 138 Cal. 672, 72 P. 142.

01. Quaker City Nat. Bank v. Hepworth, 21 Pa. Super. Ct. 566: Chimine v. Baker \[Tex. Civ. App.\] 75 S. W. 330.

01. Court Rule 10; subd. 3. Nord v. Boston & M. Consol. Copper & Silver Min. Co.

\[Mont.\] 76 F. 681.

97. Vypramed v. Deeds, 21 Pa, Super. Ct. 382: Smith v. Hopkins \[C. C. A.\] 120 F. 921; O'Neil v. Newman \[Mich.\] 93 N. W. 1064; Hill v. Southern R. \[S. C.\] 46 S. E. 486.

3 Cur. Law. **APPEL AND REVIEW $\\lx@sectionsign$ 11E 4.**

The objectionable part of the record must be indicated,4 and it is an absolute necessity, in the Federal courts, that the rule be observed requiring errors to be assigned specifically, and to be pointed out in the brief by page in the record where they may be found.5 The court will not search the record for grounds of objections purely technical, not specifically referred to by the assignments.6

Distinct errors may not be combined in one assignment,7 one assignment lodged against several matters being insufficient if any of them are correct,8 or if the ruling complained of did not extend to all of the matters alleged.9 The same question should not be raised by different assignments.10 Assignments submitted together, the questions raised by them being separate and independent, and presented in one proposition will not be considered.11

Footnote 8: Curr. Law-15

In Texas the assignment must contain or be followed by a legal proposition,12 and accompanied by a statement from the record.18

An assignment not signed by party or counsel is null and confers no jurisdiction.14

Joining in assignments.15--Appellants should not join in assignment if the ruling may be good as to one of them,16 as where one only excepted below,17 or one invited the action complained of ;18 nor should they join where the exception of each was several.18 A joint assignment by three defendants to adverse rulings against one of them presents no question for review.20 A joint exception taken by all appellants is not available in a separate assignment by one of them.21 Where the den murrers and exceptions were both joint and several, an assignment by one defendant will raise the sufficiency of the complaint.22 An assignment by one of two parties is not available to both jointly.23 It is immaterial whether appellants are jointly interested in an assignment going to the absence of necessary parties, since the court will notice such a defect suo motu.24

_Amendments and additional assignments.25--The court in its discretion may refuse to review errors not assigned, or may permit assignments to be incorporated by amendment.28 A motion to amend an exception in the appellate court will be denied where the only purpose is to amplify it and make it clearer.27_

Defects or errors in pleadings28 will not be reviewed unless specially assigned, even in equitable actions,29 and where error is not assigned, on the failure of the court to carry back a demurrer and sustain it to a pleading of the demurrant, it will not be considered on appeal.30 A single assignment to the overruling of a demurrer to a pleading in several paragraphs presents only the sufficiency of the whole pleading;31 but where a general exception is reserved to the overruling of a demurrer to a complaint in several counts, the assignment can be only to the pleading generally and not to the several counts.82 Error in overruling a demurrer in the complaint is not raised by an assignment of error in overruling a motion for new trial in which one of the grounds is the sufficiency of the complaint.33 An assignment of error in overruling a demurrer is not supported where no demurrer on that ground was filed.34 An assignment specifically challenging the correctness of a ruling as to a part only of the grounds of a demurrer is insufficient to present a question for review.35 Where defendant demurs to a complaint in two counts on the ground of improper joinder, and to each count on the ground of failure to state a cause of action, and his demurrer to the whole complaint and to one of the counts is overruled, 8 Cur. Law. APPEAL AND REVIEW SS 11E 4. 227

and to the other count sustained, and he appeals, and only assigns as error the over-ruling of the demurrer to the whole complaint, his assignment cannot be sustained.${}^{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{\\ subject.58 Conflict in instructions will not be reviewed in the absence of an assignment complaining thereof,54 and an assignment that the entire charge of the court was erroneous without pointing out specific errors is insufficient.55 Objection to a portion of the charge not assigned as error will not be reviewed.56

\_Error in directing a verdict.57--\_An assignment that the court erred in directing a verdict is not too general,58 and in such assignment the evidence need not be set out.58 An assignment of error to a charge, directing a verdict for plaintiff, will raise the objection that owing to a variance recovery could not be had.59 An assignment in general terms, that the court erred in granting a nonsuit, sufficiently presents the issue whether there was any evidence to sustain the case.51

\_Verdicts and findings of fact.52--\_The sufficiency of the evidence to justify the verdict will not be considered when there is no specification of the particulars where-in the evidence is insufficient,58 but a specification that a particular finding is unsupported is sufficient,54 and a specification in the positive form instead of the negative is not for that reason bad if it clearly appears wherein the evidence was insufficient.58 Specifications which merely state what the evidence shows and what it does not show,59 or that "the verdict is against the law of the case," do not raise the question.51 Findings of fact, not complained of by assignments of error as unsupported by the evidence, will be considered as correct.58 An assignment that the court erred in refusing a motion for a new trial will support the contention that the verdict was not sustained by the evidence, though a specific assignment of that point was expressly waived.58 An assignment that the court erred in a certain finding will not be considered where the finding was amended and there is no assignment attacking the amended finding.70 Excessiveness of damages awarded cannot be reviewed where it is not specified wherein they are excessive,71 but in Texas, a verdict complained of as excessive will be reviewed, notwithstanding the assignment is general and multifarious.72 In South Dakota, a specification that the evidence does not support the findings is sufficient.73

\_Motion for new trial.74--\_In Nebraska, the ruling on a motion for new trial must

**53.** Equitable Life Assur. Soc. v. Maverlek \[Co., 141 Cal. 161, 74 P. 700; Kenworthy v. \[Tex. Civ. App.\] 78 S. W. 560; First Nat. \[Or.\] 74 P. 841. Mistake in quoting Bank V. Moor \[Tex. Civ. App.\] 79 S. W. 53. 54. Houston Elec. Co. v. Robinson \[Tex. Civ. App.\] 76 S. W. 209. 58. Fitzpatrick v. Union Traaction Co., 206 Pa. 385, 55. 1050; Wood v. Schomacker Piano Forty Mtg. Co., 22 Pa. Super. Ct. 138. An assignment that the court erred in reading and refusing to read instructions asked and refused is insufficient \[Code, 4136\]. Borden v. Isherwood, 120 Iowa, 677, 94 N. 7128. 56. Perry v. Detroit United R. \[Mich.\] 88 N. W. 17. 57. See 1 Curr. L. 146. 58. For defendant. McCarthy v. Mutual Reserve Fund Life Ass'n \[Tex. Civ. App.\] 74 S. W. 921. For plaintiff. Howell v. Pennington, 118 Ga. 484, 45 S. E. 272. 59. McCarthy v. Mutual Reserve Fund Life Ass'n \[Tex. Civ. App.\] 74 S. W. 921. 60. Townsend v. Kreigh \[Mich.\] 94 N. 782. 61. Fargason v. Ford, 119 Ga. 84, 46 S. E 431. 62. See 1 Curr. L. 146. 63. Gagnler v. Fargo \[N. D.\] 96 N. W. 841; Lurette v. Hiller, 139 Cal. 729, 73 P. 836. See 1 Curr. L. 146, n. 68. 64. Syfft V. Oedediani Min. & Petroleum

## 3 Cur. Law. Appeal and Review SS 11F.

be assigned as error in addition to the errors assigned in the motion itself.\[18\] An assignment in Oklahoma to the effect that the court erred in overruling the motion for new trial will present for review every alleged error embodied in the motion,\[19\] but it is otherwise in Nebraska and Iowa.\[17\]

_Rulings by a lower court of appeal\[18\]_ should be assigned as error in "reversing" or "affirming" the judgment of the court below.\[19\] Such assignment will bring before the reviewing court all errors properly assigned in the lower court and not waived, and none other.\[19\] Error cannot be assigned on its opinion, but only on its judgment.\[19\]

(SS 11E) 5. _Demurrers, pleas, and replication.\[20\]_--If appellee or defendant desires to plead instead of joining in error, he must do it in apt time.\[19\] It not being the practice to demur to assignments or move to make them more specific, on a motion to dismiss for insufficiency, the assignments will be treated as though challenged for a deficiency therein.\[21\]

(SS 11) _F. Briefs and arguments.\[22\]_--Briefs must be filed within the time limited.\[23\] Where the action was tried below as an action at law, appellant should file the first brief.\[23\]

Leave to file briefs as amicus curiae will be granted in any case when justified by circumstances.\[23\]

A brief presented by one not licensed as a counselor will not be considered,\[24\] notwithstanding a stipulation to submit the case on briefs.\[25\] Questions not fairly raised by appellant's brief will not be passed upon,\[26\] unless fundamental,\[27\] and errors not insisted upon in the appellate court in Illinois will be considered waived on a further appeal to the supreme court.\[23\] A defect in the bill not urged by defendant will not be given effect, though obnoxious to general demurrer, and a general demurrer was interposed and overruled below.\[23\]

75. Coxe Broa, & Co. v. Omaha Coal, Coke & Lime Co. \[Neb.\] 94 N. W. 519. See 1 Curr. & L. 147, n. 74. & L. 147, n. 74. & L. 147, n. 74. & L. 147, n. 74. & L. 147, n. 74. & L. 147, n. & L. 147. & L.

Appellee is not bound to contest the points raised on the appeal,"88 and appellee's failure to argue a point will not lead to reversal unless his neglect has been so flagrant as to demand it for the protection of the court,"89 though where no brief or argument is presented for appellee, the record will not be critically examined, and will be presumed to be properly represented in appellant's brief."97 Where appellee fails to point out any omissions or inaccuracies in appellant's statement of the record, it will be taken as fair."88 Appellant cannot argue in his reply brief matters not argued in chief,"99 and appellant will not be permitted to seek a modification as to matters not challenged in his briefs, when defeated in his attempt to secure a reversal of the entire decree.1

Statutes and court rules prescribing the form and contents of briefs are insisted on.2 A common requirement is a summary of so much of the record as presents the error relied on," or a concise abstract of the case.4 Under the supreme court rule of Indiana, one who omits to briefly recite the evidence cannot object to its sufficiency," but a compliance with that portion of the rule will entitle appellant to the review, though he omits to comply with another clause.6 Failure to set out the substance of a complaint and the demurrer thereto waives the error in overruling the demurrer," and failure to set out the interrogatories and answers waives the error in denying appellant's motion for judgment thereon." If the instructions complained of or a succinct statement thereof are not set out, they will not be considered," and where the brief fails to state or refer to any evidence presenting the issue referred to in a request, its refusal will not be reviewed.10 If errors be not presented and argued .properly, in briefs,11 or orally,12 they will be deemed waived.13 The requirement

95. Gulf, C. & S. F. R. Co. v. Blanchard v. Hobbs \[Ind, App.\] 70 N. E. 279. See 1 \[Tex. Civ. App.\] 73 S. W. 88. Curr. L. 149, n. 96. Irvin v. Rushville Co-operative Telephone Co. 161 Ind. 54, 69 N. E. 258.

01. Reynolds v. Phillips \[Neb.\] 95 N. W. 491; William Deering & Co. v. Walter \[Neb.\] 96 N. W. 617.

01. Sub. Ct. Rule 23 (55 N. E. v1). Pittsburgh, etc., R. Co. v. Selvers \[Ind.\] 70 W. E. 133. See 1 Curr. L. 148, n. 89.

01. State Security Bank v. Burns \[Iowa\] 96 N. W. 909. See 1 Curr. L. 148, n. 92.

01. Batty v. Hastings \[Neb.\] 95 N. W. 866. See 1 Curr. L. 148, n. 93.

01. Consolidated Stone Co. v. Morgan, 160. Ind. 241. 66 N. E. 696; Franklin Ins. Co. v. Wolf, 10 Ind. App. 544, 66 N. E. 766. See 1 Curr. L. 148, n. 94.

01. Sup. Ct. Rule 22, cl. 5 (66 N. E. v1). Consolidated Stone Co. v. Morgan, 160 Ind. 241, 66 N. E. 696; Franklin Ins. Co. v. Wolf, 160 Ind. App. 544, 66 N. E. 766. See 1 Curr. L. 148, n. 94.

01. Sup. Ct. Rule 22, cl. 5 (66 N. E. v1). Consolidated Stone Co. v. Morgan, 160 Ind. 241, 66 N. E. 696; Franklin Ins. Co. v. Wolf, 161 Ind. App. 544, 66 N. E. 766; Etholiter v. Taylor, 31 Ind. App. 164, 67 N. E. 696; Harrold v. Fuenfstaeck, 31 Ind. App. 275, 67 N. N. E. 699. Appellant's failure is cured where appellee sets it out in his brief. Chicago, I. & E. R. Co. v. Vysor Land Co. \[Ind.\] 69 N. E. 546. Rules 29, 30, 31. Walker v. Texas & N. O. R. Co. \[Tex. Civ. App.\] 75 S. W. 47. See 1 Curr. L. 148, n. 96.

01. Montan: Rule 10, subspace. 3 Casey v. Thlevieg, 27 Mont. 516, 71 P. 765; Elliott v. Martin, 27 Mont. 519, 11 P. 765; Larkin v. Buttie & B. Consol. Min. Co. 28 Mont. 41, 72 P. 304; Knobb v. Reed, 28 Mont. 42, 72 P. 304; Allen v. Reely, 28 Mont. 525, 73 P. 118.

01. Rule 22, cl. 5 (56 N. E. v1). Security Accident & Sick Ben. Ass'n v. Lee, 160 Ind. 249, 66 N. E. 746; 3 Cur. Law. APPEAL AND REVIEW $ 11F. $31 that the assignments relied upon be copied in the brief is not complied with by stating the substance of them.\[14\]

The argument must go into the error discursively.\[18\] The "points" or "errors" must be specified and authorities cited,\[14\] and counsel must point out specifically in what the error complained of consists,\[17\] unless the error be so glaring as to need no argument.\[18\] Reference must be made to the bill where the rulings complained of may be found.\[19\] Assignments must be based on the specific grounds alleged below and argued as made.\[20\]

A brief incorporating no assignments of error may be stricken on motion,\[21\] but where no injury has resulted to appellee, appellant's brief not complying with the rules,\[22\] or tardily filed, will not be stricken,\[23\] and a brief will not be stricken in Washington for failure to point out the errors where but one is relied on and which is clearly stated at the close of the statement of facts.\[24\] The brief of a defendant in an equity suit will not be stricken on motion of a co-defendant as in aid of complain-ant, since each defendant is entitled to pursue the course that to him seems best.\[25\] Power to strike out scandalous argument will not, except in extreme cases, be used in such a way as to defeat ultimate justice.\[26\]

Failure to file briefs may lead to dismissal,\[27\] affirmance, or continuance at appellee's election;\[28\] but the court will impose a penalty rather than dismiss the case, where brief and abstract are not properly prepared.\[29\] A disregard of some of the rules in preparing appellant's brief does not necessarily prevent consideration of a sufficient assignment therein that the verdict is nusupported by the evidence.\[30\]

_Refiling briefs from other courts.\[31\]_--In Illinois, it is improper to file in the su preme court the brief and argument filed in the appellate court with a new cover and an addendum criticizing the opinion of the appellate court."

(SS 11) _G. Grounds for dismissing, quashing, or striking out appeal._\[33\]--An appeal which calls in question only discretionary orders of the trial court will be dismissed." That appellants have paid for no part of the record, or that they insisted on the inclusion therein of immaterial matters, is no ground for dismissal, it having been printed and transmitted," nor is the fact that immediately on filing, appellant caused the transcript to be forwarded to the supreme court, thereby depriving appellee of the use of it in preparing his brief, good ground, since on proper application he might have had it returned." A motion to dismiss on the ground that there is an appeal from two orders in the same case will be denied where one of the orders is not appealable." Where plaintiff in divorce dies pending appeal and defendant wife asserts no right to have the action revived, the appeal will be dismissed." The withdrawal below of enough of plaintiff's claim to deprive the appellate court of jurisdiction will cause dismissal of his appeal, though the withdrawal was not entered of record." Dismissal of an appeal from justice court on questions of law is properly denied where it was properly taken and the errors alleged are not jurisdictional." Where a clerical misprision of parties for which an appeal is dismissed is corrected and the case re-appealed it will not be again dismissed on the ground that it is the same case previously dismissed."

_Nonexistence of any litigable right_\[42\] is good cause, e. g. that the appeal is frivolous or futile," or the judgment purely moon," or the cause of action extinguished."

32. McArthur Bros. Co. v. Whitney, 202

the appeal will be dismissed. Belding v. III. 527, 67 N. E. 163.

33. See 1 Curr. L. 150.

01. Person appointed administrator pendente life and amount of security. In re

01. Dismissal of trustee who has appeal-

01. not being a party in his own right. Davenport \[N. J. Prerog.\] 56 A.

01. A. Loquesce in judgment must clearly appear. Successation of Botheick, 110 L. 109, 84

01. No. 163. Adverse suit against granting

01. No. 163.

3 Cur. Law. APPEAL AND REVIEW $ 11G. 233 A writ of error from the Federal supreme court to the highest court of a state will be dismissed, where the Federal question asserted to be contained in the record is manifestly lacking all color of merit.46 Where it appears that all questions raised by appeal from the judgment have been decided on appeal from the overruling of the motion for new trial, the appeal will be dismissed,47 and judgment in another case deciding all issues involved will cause dismissal,46 but the determination of a Federal court that the question presented in a case before it was res judicata because of the decree of a state court does not necessitate a dismissal of an appeal from that state court decree.46 Defendant in a suit for specific performance of a sale of personal property cannot cause dismissal by removing the property beyond the jurisdiction of the court.50 An appeal in habeas corpus by one held under a warrant will be dismissed, where it appears that pending appeal he has been indicted and is held under a capias,51 but dismissal will not be granted because the petitioner has been released on bail pending the appeal.51 An appeal from an order overruling a motion to quash an execution will not be dismissed, on the ground that the sale has been set aside, where it does not appear that a resale may not be made.51 Full payment of the fi. fa. founded on the judgment will not require dismissal, there being no supersedeas, since the defendant in case of reversal is entitled to recover his money back.54 An appeal from an order quashing service of a summons will not be dismissed, on the ground that the suit has since been dismissed, where the order appealed from had the effect of disposing of the case.55 Where the main bill of exceptions is withdrawn,56 or where judgment thereon is affirmed, the writ of error on the cross bill will be dismissed.57\_ Abandonment or failure of prosecution54 is a constitutional and statutory ground of dismissal in Georgia.56 Reinstatement after dismissal for such cause will not be made except for providential cause.50 An appeal from justice court, being triple de novo, cannot be dismissed for nonappearance of defendant appellant, plaintiff being required to establish his cause of action in this as in any other case,51 but where a defendant suffers default in the county court, and after appealing to the circuit files no answer, a dismissal! of the appeal is proper and has the same effect as an affirmance.62\_ Any substantial defect58 or want of jurisdiction64 in the remedy for review,66\_ damus dismissed, where the act demanded was performed before the denal. Canvars S. E. 417. of votes and determination of result of elections. State v. Christopher, 32 Wash. 59. 72 Wash. 59. 72 F. 709. See I Curr. L. 150, n. 21. 58. See I Curr. L. 151. 46. Wrabash R. Co. v. Flashigan, 192 U. 59. Plaintiff In error unrepresented on call of case and no brief on file. Griffith v. 185 U. S. 437, 493, 22 S. Ct. 783, and cases cited. See I Curr. L. 152, n. 58. 47. Coats v. Harris \[Idaho\] 75 P. 246. 48. Akerman v. Carterville, 119 Ga. 27. 48. 58. E. 725. 49. Hennessy v. Tacoma Smelting & Reining Co. \[Vwash.\] 74 P. 584. 59. There had been an injunction and the appeal was from an order dissolving it and damissing the bill. Livesly v. Johnston \[Or.\] 76 F. 12. 51. Ex parte Tripp \[Tex. Cr. App.\] 77 B. 57. 22. 58. Costello v. Palmer, 20 App. D. C. 210. 59. Hewitt v. Root, 31 Wash. 312, 71 P. 1021. 54. Hudson v. Alford, 118 Ga. 669, 45 E. 58. E. 454. 58. Wagnitz v. Ritter, 31 Wash. 343, 71 P. 1035. 56. Hammond v. Conyers, 118 Ga. 539, 45 S. E. 417. 57. Lamar v. Harris, 117 Ga. 993, 44 S. E. 86. See I Curr. L. 151. 59. Plaintiff In error unrepresented on call of case and no brief on file. Griffith v. Mitchell, 117 Ga. 476, 43 S. E. 742. 60. Ordinary delay of mail is not provited. Griffith v. Mitchell, 117 Ga. 476, 43 S. E. 742. 61. Barnes v. Southern R. Co., 133 N. C. 130. 45 B. E. 531. 62. Sebree v. Com., 25 Ky. L. R. 121, 74 S. 716. 68. See I Curr. L. 151. 64. Lack of appealable interest in appellant. Appeal of Abbott, 97 Me. 278, 54 A. 756. Apellate court of Illinois has no jurisdiction in drainage proceedings. In re MoCalceb, 105 Ill. App. 28. When appeal papers from a justice to the circuit court are so defective as to confer no jurisdiction on the circuit court, none is conferred by an appeal to the supreme court from an order of dismissal. Ball, Brown & Co. v. Sledge \[Miss.\] 35 So. 214. Where no final or prematurity," or undue delay," as in bringing up the record or transcript, case, etc.," or in asigning errors," or presenting briefs," also any failure in respect to

judgment has been rendered the case can- not be heard by agreement of counsel, since

\[Wash.\] #4 P. 1069. In Washington an ap-petal will not be dismissed for informality

in the notice if sufficent to inform people

man v. Lambbed, 97 Md. 23, 54 R. 962. No

appeal bond from Justice to circuit, work

record of proceedings in Justice court. Ruft

v. Montgomery (Miss.) 25 S6. 445. Lack of

jurisdictional amount. Morgan's L. & T. R. & S. Co. v. J. M. Burgeries Co., 110

L.a, 9, 84 So. 106; Rocheblave Market Co.

v. New Orleans, 110 La. 629, 34 So. 665;

Gibbe v. Atichin, 110 La. 197, 34 So. 411.

Vrfit of error made returnable to same

term at which sned out. Ghirne v. Foster

\[Fla.\] 35 So. 876. No return or acknowledged

ment of service modosed on or annexed to

the bill of exceptions. Ethridge v. Finney,

119 Ga. 147. 46 S. E. 974; Smith & Co. v. Hirsch & Co., 119 Ga. 514, 46 S. E. 637.

See 1 Curr. L, 161, in. 29.

Defect of parties Stephens v. Stevens

\[Utah\] 75 F. 619; Faulkner V. Hutchins \[C. C. A.\] 126 F. 362; Baltes Land, Stone & Oil

Co. v. Sutton \[Ind. App.\] #9 N. E. 179.

Error prosecected by one having no interest

and against whom no judgment has been rendered. Large & A. Co. v. Samuel Nott & Son \[Neb.\] #5 N. W. 484. Appeal by several

prefected by one. Fortune v. Gilbert, 207

II. 235, 69 N. E. 857. Joint appeal by partities having no joint Interest. May's Estate,

21 Pa. Super. Ct. 77. Dismlessl will not be

granted on the ground that the subject-matter has been assigned, where it appears

that the assignee is the appointment. Sykes

v. Beck \[N. D.\] #8 N. W. 844. Notice of ap-

peal held not defective as including defend-

ant not served. Garfagn V. Kennedy \[S. D.\] #6 N. W. 89. Order denying motion of

defendant's attorney to reopen case in order

that his rights as to costs and fees might

be protected; appeal purporting to be taken

by defendant instead of attorney dismissed

as taken by party not asgrafected. Pornus v. Marcus, & App. Div. 321, 83 N. Y. 711. Service of a case made upon parties

who did not appear at the trial being unnecessary, failure is not ground for dis-

missal. Johnson v. Ware, 67 Kan. 840, 73

P. 99. Heirs and legates of decedent pur-

chaser are necessary parties to sult to set

side forclosure eale. Brooks v. Fithian,

67 Kan. 850, 73 T. P. 903. Failure to serve

co-defendant whose interest is adverse.

First Nat. Bank v. Gordon Hardware Co., 31

Wash. 682, 72 F. 464. Failure of defendant

appealing to serve co-defendant. Wax v. Northern Pac. R. Co., 32 Wash. 210, 73 P.

380. Appeal by one only of partnership defendant. Kline v. Swift Specific Co., 118 Ga.

514, 48 S. E. 314.

W want or defect of notice of appeal. Ashley v. Henderson \[Ind. App.\] #9 N. E. 469.

Merrill v. Timbrell \[Iowa\] #5 N. W. 237;

Garfigan v. Konnev \[S. D.\] #6 N. W. 89.

Palitve to name parties. Shalton Mail v. O'Brien County Democrat \[Iowa\] #8 N. V.

773. Objections to want of service on co-

respondous overnight. Martin v. De Orne-

las, 189 Cal. 41, 72 P. 440. Attributed

clusion of three appals in one notice with

one undertaking. Griswold v. Bender \[Nev.\]

75 P. 161. No notice to swrities on plain-

tiff's cost bond. Brockway v. Abbott

\[Wash.\] #4 P. 1069. In Washington an ap-

peal will not be dismissed for informality

in the notice if sufficent to inform people

of the intention to appeal \[Ball. Ann. Codes & St. $ 6503\]. Brown v. Caloway \[Wash.\]

75 P. 630.

65. See ante, $ 2. Bringing appeal instead

of * 3 Cur. Law. **APPEL AND REVIEW 8** 11G.

the bond if it be jurisdictional," or any error of substance in the "record," "transited to the bond if it be jurisdictional," or any error of substance in the "record," "transited to the bond if it be jurisdictional," or any error of substance in the "record," "transited to the bond if it be jurisdictional," or any error of substance in the "record," "transited to the bond if it be jurisdictional," or any error of substance in the "record," "transited to the bond if it be jurisdictional," or any error of substance in the "record," "transited to the bond if it be jurisdictional," or any error of substance in the "record," "transited to the bond if it be jurisdictional," or any error of substance in the "record," "transited to the bond if it be jurisdictional," or any error of substance in the "record," "transited to the bond if it be jurisdictional," or any error of substance in the "record," "transited to the bond if it be jurisdictional," or any error of substance in the * 236 -- APPEL AND REVIEW $ 11G. 3 Cur. Law.

- 1script," "assignment," "briefs" or the like,"12 will ordinarily warrant and often necessitate dismissal. An appeal is neither premature nor too late if judgment * Our. Law. APPEAL AND REVIEW $ 11G. $37

has in fact been entered and the statutory period has not elapsed since notice thereof." Omission of that which it is an officer's duty to supply is not chargeable to appellant," nor is an amendable defect," nor errors of procedure not prejudicial to defendant in error," good cause. Appellant's failure to file an abstract may be cured by respondent furnishing one," and omissions from appellant's brief may be cured by his reply.18

Where no exceptions were taken to the decree on a bill in equity, the appeal will be quashed," and where a statement on motion for new trial does not specify where-in the evidence is insufficient to support the judgment a motion to disregard it will be sustained and the appeal dismissed.20

- will not be dismissed. Jourdain v. Luch- \[Mich.\] 98 N. V. 977. Rectal that no evil-singer \[Minn.\] 97 N. W. 740. No judgment \[Mich.\] 98 N. V. 977. Rectal that no evil-roll. Stanton v. Lewis, 28 Mont. 287, 72 P. 688; Pearlman v. Grantte Country, 28

ceptions as files are no part of record. Camp-Mont. 462, T 2 P. 972; Beck v. Holland, 28

bell v. Mechanics' Bav. Bank, 64 Kan. 778, Mont. 460, 72 P. 972; Glavin v. Lane \[Mont.\] 71 P. 829. Dlamissal on the ground that 74 P. 408; Denney V. Wright \[OK\] 74 P. 104.

cernation record evidence is not in the record Failure to exhibit final judgment. Seasoned will not be granted where it does not ap-Air Line R. v. Bennett \[Fla.\] 86 N. V. 980, 86; Kim.

man v. Scheuer \[Mont.\] 76 P. 890. Failure

111 L. E. 554, 85 Ro. 744. Failure to bring to include the judgement in the abstract will

up record in another case offered in evil-not cause dismissal where a certificate is

doney by appellant will not require dismissal-duly filed, and the judgment itself is not

sal, where elexit certifies it cannot be found challenged \[Rev. St. 1839, $ 813\]. State v.

and its loss is not attributable to appellant.

Smith, 172 Mo. 618, 73 R. V. 134. Failure

Succession of Bottrick, 110 La. 109, 84 So.

to insert in the "case" the fact that judg-168. Where exhibits referred to in the reco-mem has been entered 1a not ground for

ord are fairly identifiable with papers al-dimissal. Ballentine v. Hammond \[S. C.\]

ready apoled into the record, the proceed-46 B. E. 1000. Record must be by "copy":

ing in error will not be dismissed for failure originating of papers confer no jurisdiction.

to bring up all the evidence. Dendy v. Cornell v. Matthews, 28 Mon. 457, 17 Z. 975.

First Nat. Bank, 67 Kan. 856, 71 P. 830, 74

No reetal that record contains correct copies

P. 288. The trial judge's certificate cannot, of papers and proceedings. First Nat. Bank by stating that all the evidence included, V. Oxford Lake Line \[Fla.\] 34 So. 893. Where

supp the lack of a statement to that ef: error is assigned on the overline of a no-fect in the record itself. Smith v. Alexarian-ton for new trial in which no point is

for, 67 Kan. 862, 74 P. 240. A reetal in the made on the form of the verdict, and the record at the close of the evidence that bill of exceptions rectides the substance of

plaintiff and defendar having no further the verdict, the writt of error will not be

evidence, rested and the case was closed. dismissed because the verdict is not specified

is insufficient to show that all the evidence or transmitted as part of the record. Lenz- 1s contained in the case made. Id. See 1ney v. Finley, 118 Ga. 427, 45 B. E. 317. The Curr. L. 152, 87.

incorporation of material parts of the record

73. Prescott v. Brooks \[N. D.\] 94 N. V.

proper in the bill of exceptions instead

88.

of bringing them up separately is not fatal.

74. Failure of county judge to transmit Dannel v. Central of Georgia R. Co., 119 Ga.

record in time. Drexi V. Read \[Neb.\] 98

246, 48 B. E. 107. The unnecessary record.

N. W. 873. Instability of register because of operation of formal parts of pleading, writts,

sickness to make up transcript. Maynader and other papers in the transcript on ap-v. Armstrong \[Mid.\] 64 A. 867. Failure of

peal, is not ground for dismissal, but no elexit to enter filing of bill of exceptions

coste for unnecessary parts can be recovered.

properly filed. Woltemahr v. Doye \[Mo. Greene v. Montana Brewing Co., 28 Mon.\] 76 S. W. 1063. See 1 Curr. L. 162, n.

(SS 11) _H. Raising and waiver of defects in appellate procedure; motions and pleas._\[81\]--Power to inquire into matters of fact affecting the jurisdiction belongs to the appellate courts.\[82\] Where the appellate court in an appeal from a decree of divorce orders appellant to pay appellee temporary alimony, which is paid, a subsequent dismissal of the appeal for want of jurisdiction will not reverse the order for alimony, so as to entitle appellant to recover it.\[83\] Formal objections,\[84\] but not jurisdictional ones,\[85\] are waived if not raised before submission on the merits.

A motion to dismiss that involves the merits of the case will be ignored,\[86\] or the consideration thereof postponed until final hearing,\[87\] and unless it is very evident that the appeal should be dismissed on the ground averred, the motion to dismiss will be deferred until the case is heard on the merits.\[88\] A motion to dismiss or affirm for failure to file briefs will not be considered where an examination of the record shows that the judgment should be affirmed.\[89\]

A motion to dismiss for defect of procedure is sometimes sustained, unless appellant within a certain time takes measures to eure it,\[90\] and application for permission to remedy defects after motion is sometimes granted.\[81\] An abandonment of the appeal from the particular order involving the defect avoids the motion.\[92\] The affidavit of the clerk below attached to the brief of counsel for plaintiff in error, setting forth reasons why no service of the bill of exceptions was had, will not be considered in answer to a motion to dismiss.\[93\] Where the question of defendant's right to bring his writ of error at the stage of the proceedings is doubtful, he will on dismissal be permitted to withdraw his record and present the bill to the trial court as exceptions pendente lite.\[94\]

Plaintiff in error is entitled as a matter of right to dismiss where no prejudice to defendant will result,\[95\] but dismissal will not be granted on motion of appellant

SS1. See 1 Curr. L. 153.

the testimony before the county court on final hearing is before the supreme court,

73 S. W. 21. See 1 Curr. L. 153, n. 47.

83. Mercer v. Mercer \[Colo. App.\] 78 P.

01.

01. Objections must be raised before submission on the merits. Cincinnati, I. & W. R. Co. v. People, 205 III. S38, 69 N. L. 46.

01. Grasser v. Blank. 110 La. 493, 34 So.

an infant in his own name is waived if not raised until after submission. Ramsey v.

87. Grupbs v. Plenston, 111 La. 40, 35 So.

01. Mercer v. Mercer \[Colo. App.\] 78 P.

01. Steiger v. Fronhofer, 43 Or. 178, 72

01.

01. Failure of seals on transcript to bear

appelle by service of amendments to the

Impression of court seal. Conner v. Downes case. Cooley v. Pennsylvania R. Co., 40 Misc.

89. On motion to dismiss for irregularities in the bond, appellants will on appellent

for only would lie is not waived by failure to abred and the motion. So, since consent cannot confer jurisdiction. Boales v. Ferguson \[Neb.\] 96 N.

ter Co. \[Colo.\] 75 P. 927.

89. Objections to the hearing of an appellent for 3 Cur. Law. APPREAL AND REVIEW $ 11H. 839 after argument, if prejudicial to appellee and objected to by him." The statutory provision in Colorado for dismissals without prejudice does not apply to irrigation cases."

_How presented._"--Mcre irregularities of procedure must be objected to by motion, not on the final hearing." Jurisdictional errors may be objected to at any time, even on rehearing,1 and for such defects appearing on the record the court will dismiss suo motu.2 Whether the abstract of appellant is sufficiently full to authorize consideration of the assignments of error cannot be raised by motion to dismiss."

\_A motion_4 to dismiss must advise the court of the nature of the questions involved in the case.6 Written motion may be waived.6 It must be timely made7 and notice given.8 Service may be waived.9 Here departure from the prescribed method of bringing parties into court and applying for the dismissal of the appeal will be disregarded where a situation exists which warrants judicial action in the premises.10 A motion to dismiss will be considered before final ruling in the case.11

_Reinstatement._--A dismissed appeal may, on proper showing, be reinstated,12 and reinstatement compelled by mandate from a higher court where dismissal was undavised;18 but motion will be denied where excessive delay is unexplained14 or

appellee will not result. Greene v. United Shoe Machinery Co. (C. C. A.) 124 F. 961. \[CoIo.\] 75 F. 927. On request of circuit Judge. Mossberg v. Nutter (C. C. A.) 124 F. 966. An appeal 6. But where a lack of jurisdiction aptaken by an Incoherent from an order appears from plaintiff's motion to dismiss his pointing a guardian for him may be distis.

own writt of error, failure to set forth a missed on his own motion after notice to

copy of the judgment is not fatal to the his counsel. In re Moss. 141 Cal. xviii, 74

motion. False v. Father (CoIo.) 74 P. 884. 6. Arthur Fritsch Foundry & Mach. Co. 98. Saint v. Cornwall, 207 Pa. 270, 66

v. Goodwin Mfg. Co., 96 Mo. App. 631, 75

A. 440. 97. Millis Ann. Code, # 388a, 2429, 2432. 7. 18 months after cause briefed on mer-Needle Rock Ditch Co. v. Crawford-Clipper

its to note. Motion to dismiss a second dipech Co. \[CoIo.\] 75 P. 424. 98. See 1 Curr. L. 154. 99. Irregularity in taking the appeal must

speak between a model of motion to dismiss an ap-Neb raised by motion to dismiss, and not on

sublmission on the merits. Cincinnati, I. &

peal which fails to specify the grounds on W. R. Co. v. People, 205 III. 538, 69 N. E. 40. That a stipulation extending the time

a Iron Co. V. Alton, 84 N. Y. S. 180. The

for films a bill of exceptions was not copied

notice of motion must be served ten days into the record is no ground for affirm-

before the motion can be heard. Rule 18.

ance; such defect should be reached by motion of some kind. Zumault v. Kansas City

a. Kansas City Suburban Belt R. Co., 175 M.o. 288, 74 N. W. of

a room believed to be the offace of ap-Neb.

1015. A motion to dismiss is a proper man-

nellant's attorney is insufficient service. Id.

ner to take advantage of failure to file the

a. A written motion to dismiss for want transcript within the proper time. Hilts v. or prosecution may be waived and by con-Hilts, 43 Or. 162, 72 P. 697. 1. Where there is no jurisdiction, an

c. Rule 24. Arthur Fritsch Foundry &

appeal will be dismissed on motion, though

Mach. Co. v. Goodwin Mfg. Co., 96 Mo. App.

the question is not raised until on rehearing.631, 75 S. W. 1119. 119. 120. 121. 122. Failure in respect to bond. Shathcuck v. Costello \[Arlz.\] 71 P. 940. 121. The appeal court will take notice of

11. Lockhaven Trust & Safe Deposit Co.

its own lack of jurisdiction over the sub-

v. U. S. Morris. & T. Co. \[CoIo. App.\] 73 P.

ject-matter and dismiss in such case with-

out motion. Everetate Plano Co. v. Bash, 81

12. Where, as on appeal from a justice, Ind. App. 48, 68 N. E. 329. Abstract failing to show that appeal was taken. More-

not final, but the case may be reinstated.

house v. Doxse \[Tow98\] 9 N. W. 14. Rec-

or dwell v. Willis \[W. V. Va.\] 46 S. E. 139.

ord shows no entry of appeal and appellee

makes no appearance. City of Orlando v.

v. Mandamus compel the court of appeals

Macy \[FI-1\] 34 So. 238. Transfer showing

no final judgment. Seaboard Air Line R.

v. Bennett \[FI-1\] 36 So. 86. Where blill

## 12 Appendix and Review SS 12.

3 Cur. Law.

where a decision by reason of events has become valueless \[18\]. An appeal dismissed for want of prosecution will be reinstated on appellee's motion and affirmed pro forma where necessary to preserve his rights under the bond \[18\].

SS 12. _Hearing \[17\]_--Where the question which the court determines to be decisive of the case is not discussed in argument, the case will be referred back to counsel for written argument on specific questions \[18\]. The provision of the Virginia constitution requiring reargument before the full bench in cases of division of opinion refers only to constitutional questions \[18\].

SS 13. _Review. A. Mode of review; review proper or trial de novo \[10\]_--An equity appeal brings up the case for trial de novo \[21\], on the evidence introduced below \[22\], and evidence excluded \[28\] or errors of the court in excluding \[24\], or admitting testimony, will not be considered, since the court will consider only competent evidence \[18\], unless clearly shown to have influenced the finding \[28\]. Since an equity suit is triable de novo on appeal on the whole evidence, declarations of law given or refused afford no ground of reversal \[27\]. The ruling on a motion to strike a pleading from the files will not be considered \[28\]. Exceptions not affecting the merits are disregarded \[29\]. An appeal from an order of a United States commissioner excluding a Chinese alien is tried de novo, and not on the testimony taken before the commissioner \[30\]. An appeal from an order striking off a satisfaction of judgment is in legal effect nothing more than a common-law certiorari \[31\]. Appeals from probate courts are usually de novo \[22\]. Appeals from the county court in license cases in Kentucky are heard in the circuit on bills of exceptions on the same evidence used below, and not de novo \[28\]. The Missouri court of appeals hears proceedings for disabrant on appeal from the circuit as an appellate court only \[44\], and in drainage proceedings the

by laches, though proceedings to enforce \[18\]. P. 730; Hunter v. Guth \[Colo. App.\] 73 P. the judgment have been begun, and the court of appeals has adjoured its term. 416; Smith v. Bunch, 31 Tex. Civ. App. 541. State v. Smith, 172 Mo. 618, 73 S. W. 134. A motion to vacate an order of dismissal \[Tex.\] 77 S. W. I. Will contest. for Informality in the motion to dismiss must be made during the term. Pisa v. Rezek, 206 Ill. 344, 69 N. E. 67.

15. Act sought to be enjoined fully performed. Marion v. Barnwell \[S. C.\] 46 S. E. 538.

01. Mattenlee v. Mattenlee \[Mo. App.\] 74 S. W. 88.

01. See I Curr. L. 155.

01. Construction of contract. Raymond v. Yarrrington, 96 Tex. 443, 72 S. W. 580.

01. Art. 6, 8 S. Funkhouser v. Spahr \[Va.\] 46 S. E. 378.

01. See 1 Curr. L. 155.

01. Sult to set aside trust deed for duress. Turner v. Overall, 172 Mo. 271, 72 S. W. 644. See 1 Curr. L. 155. n. 90.

01. American Zinc, Lead & Smelting Co. v. Markle Lead Works, 102 Mo. App. 158, 76 S. W. 668.

01. Guthrie v. Guthrie \[Neb.\] 93 N. W. 1131. Where the appellate divison has the name power over the facts that the trial court had, it will consider evidence stricken out below, but included in the record. Appeals from surrogate \[Code Civ. Proc. $ 2686\]. In re Rice's Will, 81 App. Dlv. 223, 81 N. Y. S. 68.

01. Southworth v. Southworth, 173 Mo. 59, 73 S. W. 129.

01. Turner v. Overall, 172 Mo. 271, 72 S. W. 644; Bowdle v. Jencks \[S. D.\] 99 N. W. 98; Arabian Horse Co. v. Blyens \[Neb.\] 96 N. W. N. W. 612; Finien v. Heinze, 28 Mont. 546.

01. P. 133; Seaverns v. Costello \[Arls.\] 71 586.

3 Cur. Law. **APPEL AND REVIEW SS 13B.**

whole case, and not merely the assessment of damages and benefits, is appealable to the supreme court, through the circuit where the case is tried de novo.\[95\] In North Carolina, the court hears the case on the facts alleged in the pleadings, and plaintiffs are not restricted to the relief demanded in their prayer for judgment, but may have any additional or different relief not inconsistent with the facts alleged in their complaint.\*\* On appeal from a justice's judgment refusing to open a default, the superior court may disregard the justice's findings of fact and hear the matter anew.\[91\]

(SS 13) \_B. Scope in general.\[98\]--In hard cases the court will be diligent to assure itself that nothing occurred at the trial to appellant's prejudice.\[98\] Where jurisdiction attaches only by reason of the validity of a tax being questioned, review will extend only so far as to decide that question.\[40\] Where after an application to file a bill of review was denied, the court considered and denied on the merits a second application to file an amended bill, an appeal from the latter order brought up the entire question of the right to file the bill on the merits.\[41\] The ruling on a motion for judgment on the pleadings cannot be reviewed if it appears that the judgment conforms to and is sustained by the pleadings.\[42\] An appeal from a final order in mandamus proceedings presents both the facts and the law for review.\[43\] The question of the measure of damages does not arise on appeal from sustaining demurrer to the evidence for failure to show a cause of action.\[44\] The grounds on which a divorce was granted may be considered in determining the propriety of the award of alimony, though the judgment granting the divorce cannot be reviewed, for lack of authority in the court.\[45\]

_Moot questions\[46\]_ will not be decided.\[47\] Unnecessary points will not be considered.\[48\] Error in refusing to discharge a receiver or increase his bond may be waived by allowing his appointment to become conclusive through failure to appeal.\[49\]

\_Error reaches only matter of law.\[50\]--The function of the supreme court of Kansas is to review alleged errors, and it will not make findings of fact nor canvass the record for that purpose.\[61\] On appeals in cases tried to the court, errors of law 35. Rev. St. 1899, SS 8331. King's Lake W. 634. Propriety of decree limiting the use of a building to purposes other than the sale of intoxicating liquors not reviewed after expiration of the time limited. Pellett v. Fisher \[Iowa\] 94 N. W. 469. Term of office in regard to which mandamus was asked, expired two years previous to hearing. Lndsey v. Kerr \[Iowa\] 97 N. W. 1000. On settlement of decree apolning one secret society from using substantially same ritual as another, the court will not examine rituals offered to determine whether they differ. Great Hive of Ladies of Macachees v. Supreme Hive of Ladies of Macachees \[Mich.\] 99 N. W. 26. Action for usurption of public office: error dismissed where terms of office have explored. State v. Condon, 189 U. S. 64, 28 C. 579, 47 Law. Ed. 705. Where an act restrained by injunction has been performed with consent of all parties, the appeal from the injunction order will be dismissed. Snell v. Welch, 28 Mont. 482, 72 P. 988.

48, Which party had burden of proof is immaterial where evidence supports verdict. Elliott v. Martin, 27 Mont. 618, 71 P. 756.

49. Hereford v. Hereford, 134 Ala. 321, 32 So. 651. See 1 Curr. L. 156.

01. Shuler v. Lashhorn, 67 Kan. 694, 74 P. 264.

occurring at the trial will not be reviewed for the correction thereof, but only in connection with a review of the facts on the merits.\[58\]

\_Particular courts of appeal.\[53\]--Where a constitutional question is involved, an appeal from the circuit to the supreme court of the United States opens up the whole case and the circuit judge cannot narrow the authority of the supreme court by a certificate relating only to the jurisdiction.\[54\] The appellate division of the supreme court of New York will pass upon the sufficiency of the evidence to sustain the verdict, the same as any other question.\[55\] In Missouri, in actions at law, the supreme court will not weigh the evidence, but merely determine whether any substantial evidence supports the verdict and judgment.\[56\] The court of appeals will not consider questions in the case beyond its jurisdiction.\[57\] The circuit court considers only questions of law on appeal in proceedings to assess damages for taking land for a highway.\[58\] In New Hampshire, in a case transferred in equity from the superior to the supreme court, the supreme court will not determine the facts, however strong the case may be, though the evidence is all reported.\[59\] The circuit court in Kentucky, on appeal in a will case, cannot determine whether certain devices are void for uncertainty.\[60\]

_Review as dependent on parties appealing.\[61\]--A party not appealing from an order denying him relief will be presumed satisfied with it,\[92\] and he can obtain no relief on the appeal of other parties, except so far as the relief granted appellants may incidentally affect his rights.\[93\] Where both parties demand affirmative relief and the court dismisses the action, defendant cannot complain of the failure to grant him his relief unless he appeals.\[54\] Where a decree grants relief as to one matter and denies it as to the other, and plaintiff appeals only as to the denial, defendant cannot have the remainder of the decree reviewed without appealing.\[88\]_

_Waiver of errors in appellate court.\[68\]--Errors,\[67\] exceptions,\[68\] grounds in supression._

_S2. Bank of Park River v. Norton \[N. D.\]_

_S3. See 1 Curr. L. 167._

_S4. Act 1891, e. 517, g 5, 26 St. 827._

_V. Harris, 189 U. S. 415, 23 8._

_S5. McGrath v. Home Ina. Co., 88 App. Div. 153, 48 N. Y. S. 874._

_S6._

_S7. The appellate division has the same authority to review the facts in a case appealed from the municipal court of New York City that it has to review judgments rendered by the supreme court \[Code Civ. Proc. $ 3063, as amended by Laws 1900, c. 6583\]._

_V. Levy, 83 App. Div. 635, g1 N. Y. S. 528._

_S6._

_S7. Constitutionality of statute authorizing deced of swamy lands by county \[Laws 1857, p. 268\]._

_Houck v. Patty, 100 Mo. App. 302, g1 N. S. 889._

_S8._

_S9._

_S10._

_S11. to establish resulting trust._

_sufficient facts found below. Crowley v. Crowley \[N. H.\]_

_Crowley \[N. H.\]_

_S6._

_Loek's Heirs v. Leak's Exr, 24 Ky. L. R. 2217, 73 S. W. 789._

_S6._

_S1._

_S6._

_S1 Curr. L. 157._

_S2._

_Powell v. Harrison, 88 App. Div. 228, 85 N. Y. S. 452._

_S3._

_S4._

_S5._

_S6._

_S7._

_S8._

_S9._

_S10._

_S11._

_S12._

_S13._

_S14._

_S15._

_S16._

\_S17.

3 Cur. Law. APPEAL AND REVIEW SS 13B. 243

port of a demurrer," and grounds for new trial, will be deemed abandoned where not argued or discussed in briefs.\[10\] Where several grounds relied on in support of a motion for a new trial sustained generally are not argued, affirmance must follow.\[11\] An instruction favorable to appellant, on which no cross error is assigned by appellee, will be considered the law of the case.\[72\]

\_Procedure de novo.\[73\]--On appeal from final orders, judgments, and decrees of the probate courts, the trial is generally de novo,\[74\] but the parties are not entitled to a jury trial.\[75\] On appeal from the county to the district court, in Texas, the cause stands on the docket for trial as any other,\[75\] but jurisdiction in pro-bate cases extends only to such questions as are within the jurisdiction of the court below.\[76\] On appeal from the county court, the superior court, in Georgia, may hear and sustain a demurrer previously overruled below.\[75\] On appeal from a judgment of the municipal court, in New York its validity will be determined according to the facts, though there was no notion to dismiss the complaint.\[76\] Where the superior court on appeal from an order of a justice refusing to open a default hears the motion de novo and makes findings of fact, the findings of the justice cannot be considered on further appeal.\[77\] The reversal of a justice's judgment on questions of law only reopens the case for trial in the district court, though the justice's judgment was a dismissal of the case,\[75\] but a reversal on error for lack of jurisdiction below is final.\[80\] In several states on appeal to the circuit or district court from the county or other inferior court, the parties on trial de novo, must confine themselves to substantially the same issues as those upon which the ease was submitted to the court below,\[75\] but the rule applies to the substance only, and not the form of the pleadings by which such issues are raised.\[76\] Hence an amendment may be allowed.\[77\]

66 N. E. 962; White v. Collins, 90 Minn. 165, had been from a disallowance of the clatin.

95 N. W. 765. See 1 Curr. L, 168, n. 43. RIbble v. Furmin \[Neb.\] 98 N. W. 420. GR8. Brazil Block Coal Co. 9. Gibson, 160 75. RIbble v. Furmin \[Neb.\] 98 N. W. Ind. 319, 66 N. E. 882; Bartlett v. Slater, 183 420. See 1 Curr. L, 159, n. 54. Mass. 162, 66 N. E. 631; Reveil v. Thresh, 133 76. GRone v. Byars \[Tex. Civ. App.\] 73 S. N. C. 830, 44 S. E. 586; Fuller v. New York 77. IR86. Fire Ins. Co., 184 Mass. 12, 67 N. E. 879; Fraser v. Fuller, 184 Mass. 439, 69 N. E. 217; Khorwood v. Benjamin Ahn & H. Tilingworth Co. \[N. J. Err. & App.\] 54 A. 435; Henderson v. Raymond Syndicate, 183 Mass. 44, 67 N. E. 437. W. 434, 67 N. E. 437. Where a successful plaintiff excessively abandons exceptions reserved by him HRM. Co. \[N. C.\] 45 B. E. 781. RIbble v. Shirley \[N. D.\] 95 N. W. 397. not be considered if the exceptions by defendant are overruled. Roth v. Adams \[Neb.\] 97 N. W. 231.

\[Mass.\] 70 N. E. 446. See 1 Curr. L. 158, n. 45. RG. Negiden-Judson Drug Co. v. Commer-

95 N. W. 501. Defense of recession cannot be first raised in district court. Sloan Comm-

133 C. v. Henry A. Fryr & Co. \[Neb.\] 95 N. W. 862. Rev. St. 183, 8 4034. Amend-

132; Klioka v. Klioka, 105 71. App. 369; In re James' Estate \[Neb.\] 97 N. W. 32. ON appeal from an order refusing permission to file a claim against a decedents' estate, the judgment should not be of reversal and remand, but the court should proceed to herring on the Issues as though the appeal
(SS 13) \_C. Restriction to rulings below.86--\_Questions presented may be reviewed, though not ruled upon formally, if the effect of other rulings was such as to decide the questions,87 but the appellate court will not discuss and determine questions not considered or ruled upon by the trial court, where other prejudicial error is shown.88 In the absence of exceptions properly saved only such errors as appear of record can be reviewed.88 Assignments of error involving radical assumptions of fact not embraced in the special findings of fact made by the trial court will not be considered.90

Review will not be made on issues differing from those raised at the trial,91

pleadings so as to specify more particularly question whether, the note bearing interest, the items of damage and enlarge the amount thereof. City of Van Alstyne v. Morrison De Raismes v. De Raismes \[N. J. 56 A. 170. \[Tex. Civ. App.\] 77 S. W. 655. A. statute providing that amendments of pleadings may be made after appeals from justices v. De Raismes \[Tex. Civ. App.\] 77 S. W. 655. A. statute providing that amendments of pleadings may be made after appeals from justices v. De Raismes \[Tex. Civ. App.\] 77 S. W. 849.

case was tried. Blanchard-Hamilton Furumil not permit an amendment reducing the damage claimed so as to confer jurisdicdictions on the justice \[Rev. St. 1899, $ 4079\].

1032. Amendment of bill of particulars to question on the justice \[Rev. St. 1899, $ 4079\].

0001. S. Fidelity & Guaranty C. Vo. Foskett.

peal. Kent v. Phenix Art Metal Co., 68 N. Kessner Feed Co., 100 Mo. App. 724, 78 S. W.

364. On appeal to the county court plaintiff \[J. Law, $ 256, $ 256\]. Shifting grounds for attacking constitutionality of statute. Cook \[J. Mazzholi County \[Jovn\] 95 N. W. 408.

reduction of another item, though the effect is to give the appellate court jurisdicdictions. Von Boeckman v. Loepp \[Tex. Civ. App.\] 77 S. W. 849.

86. See 1 Curr. L. 159.

01. Not, however, if not assigned as error. Reed v. Cunningham, 121 Twens, 556, 86 N. W. 1118; Williston v. Haight \[Conn.\] 87 A. 170. See 1 Curr. L. 159, n. 60.

01. D. Myant v. Missouri, etc., R. Co. \[C. A.\] 122 F. 228.

01. Bartman v. Brunswick, 98 Mo. App. 674, 78 S. W. 726. The sufficiency of evidence to sustain a directed verdict is re-viewable though no exception was taken to the direction. Dahl v. Stakke \[N. D.\] 96 N. N. W. 353.

01. Shuler v. Lashorn, 61 Kan. 694, 74 P.

01. Banking House of A. Castetter v. \[Neb.\] 98 N. W. 34. Defense not pleaded below. McDavid v. Sutton, 205 III.

544, 68 N. E. 1064; Lauer Brewing Co. v. Chmlelewski, 206 Pa. 90, 55 A. 841; Carna han v. Brewster \[Neb.\] 96 N. W. 586; McKean v. Scott, 84 N. Y. 846; Chamberlain v. Monkhouse, 67 Kan. 836, 72 P. 860; Fidelity & Depoit Co. v. Nibset, 119 A. 316.

46. S. E. 444; Chicago Mill & Lumber Co. v. Sims, 101 Mo. App. 569, 74 S. W. 128; City of St. Louis v. Annek Reality Co., 176 Mo.

63, 74 S. W. 961; Meyer Bros. Drug Co. v. Wybee \[Mo.\] 78 S. W. 579. Questions not raised below. Philadelphia & T. R. Co. v.

1034. McArthur Bros. v. Whitney, 202 III.

527, 66 N. E. 163; Battles v. Roberts, 120 Iowa, 747, 95 N. W. 247; Stephens v. Duckett, 111 La. 879, 86 So. 89; Dally v. Sarginaw Bldg. & L. Asa' \[Mich.\] 95 N. W. 286; Carter & Co., V. Kaufman \[S. C\] 48 E. B. 1017; Hettich v. Hillje \[Tex. Civ. App.\] 77 S. W. 641. New claim as basis for recombinant. Truax v. Herratt \[Mich.\] 97 N. W. 384; Cincinnati, I. & 4 were not shown to be effective at date in question not raised below. Missouri, K. & \[Tex. Civ. App.\] 77 S. W. 641. New claim as basis for recombinant

## 3 Cur. Law. Appeal and Review SS 13C.

though there is evidence in the record to support them,"\[92\] and the general rule is that a theory of a case, or an assumption of fact adopted by a trial court with the acquiescence of the parties, will be followed by an appellate court to which the cause is taken." The rule is particularly applicable where a party who has procured a decree on one theory seeks a modification of it on appeal on another theory." On appeal from the municipal court in a case where the pleadings were oral, the issues will be determined from the evidence rather than the complaint." Where a complaint is tested by demurrer it cannot be aided by other parts of the record on appeal." Where the contract sued upon is void upon its face, if plaintiff relies upon any ulterior facts relieving it of its apparent invalidity he must plead them in traversable form, otherwise no presumption will be indulged in favor of its validity."

of the subject-matter. Houser v. McCrystal \[late and guardinship of a minor, treated \[Neb.\] 97 N. W. 828: See 1 Curr. L. 169, n. 63. \[guardian's account. In re Veliev Estate, 140 Cal, 349, 73 P. 1065. Party cannot on tify without objection to matters foreign to trial and in original brief in appellate court. Contrain the appellate court to review the question raised by such testimony. Thomas v. Winne \[C. C. A.\] 122 F. 395. Where an issue is not raised by the pleadings and no amendment was offered below, the existence of evidence to support it will not justify or demand could not be raised for first time raised to modify the judgment. Abbott v. Reedy \[Idaho\] 75 P. 764. An amendment of the complaint to conform to the proofs which might have been made at the trial may be made in the appellate division, where necessary to sustain a judgment supported by the evidence. Johnson v. Albany, 86 App. Dlv. 567, 83 N. Y. S. 1002. But where the variance is substantial and was called to the attention of the trial court unnecessarily, amendment will not be permitted. Smith v. Auburn, 88 App. Dlv. 396, 84 N. Y. S. 726. \[To. C. A.\] 126 F. 317: Chicinnati, I. & W. R. Co. v. People, 205 III. \[To. C. A.\] 127 F. 317: Chicinnati, I. & W. R. Co. v. People, 205 III. \[To. C. A.\] 88 N. E. 401: Klabuncle V. Bryon-Reed Co. \[Neb.\] 98 N. W. 182: Moynahan v. Inertate Min., Milling & Development Co., 31 Vash. 417, 72 P. 81: Parker v. Knights Templars' & Masons' Life Indeminity Co. \[Neb.\] 97 N. W. 281: Campion v. Lattimer \[Neb.\] 97 N. W. 290. As where the facts pleaded will admit of different theories. \[Thandar-Hamilton Furniture Co. v. Colvin \[Ind. App.\] 69 N. E. 1032: Bull v. New Amsterdam Casality Co., 85 N. Y. S. 329: Ban-ders v. Stimson Hill Co. \[Vash.\] 75 P. 741: Manker v. Western Union Tel. Co., 137 Ala. \[To. C.\] 137 Ala. \[To. C. A.\] 992, 34 Sc. 835. Whether freight rate was posted not raised below. Mycar v. St. Louis S. W. R. Co., 71 Ark. 552, 76 S. W. 557. Motion to stay issuance of order of restitution in ejestment treated below as a bill in equity. U. S. v. Marshall \[C. C. A.\] 122 F. 428. Suit tried on theory of negligence cannot be reviewed on theory of treasians (Durr. v. Consolidated Gas Co. of New York, 86 App. Dlv. 14, 83 N. Y. S. 174), or gross negligence (Turtenwald v. Wisconsin Lakes Ice & Cartage Co. \[Wis.\] 98 N. Y. 948). Theory acted upon below followed on appeal though not responsive to pleadings. Schlock v. Donohue, 92 App. Dlv. 330, 87 N. Y. S. 206. \[Petition entitled in the matter of the esOther grounds for sustaining a judgment than those presented below will not be considered,\*\* but additional objections and arguments against the validity of a statute may be urged,\*\* and a decree sustaining a demurrer to bill, without stating on what ground, is supported if any ground is well taken.1 A defaulting defendant, who appears and applies for a rehearing, cannot on appeal from an order denying his rehearing attack the decree on any technical ground.2 On appeal from a judgment for plaintiff on a directed verdict, where there was no de-murrer to the answer, the answer will be regarded as stating a defense and the inquiry limited to whether there was evidence in its support that should have been submitted to the jury.3 Error in sustaining a demurrer to portions of an answer will not be reviewed, where on the trial defendant was unrestricted in his proof of the facts set up therein, and all questions of law involved were then passed upon and made grounds of appeal.4 There having been no motion for a new trial the court will consider only the sufficiency of the evidence to support the verdict, though a motion for judgment notwithstanding verdict was made and denied.6 Where, in an action tried to the court, the only instruction asked is in the nature of a denurrer to the evidence, the appellate court will review the weight of the evidence only so far as to determine the correctness of that ruling.6 On appeal in condemnation proceedings, the question whether certain persons, not parties, were entitled to damages will not be considered.7 Matters proved by incompetent evidence unobjected to cannot be denied on appeal.8

\_Reasons not reviewed.9-If a correct result is reached in the trial court, the reasons therefor will not be reviewed,10 and a just judgment warranted by the record and the facts will not be overthrown because based on the wrong reason.11 Refusal of an application on the ground of want of power will not be reversed where it should have been refused in the exercise of sound discretion.12 A judg-98. Other grounds for sustaining an order for change of venue (Quinn v. Brooklyn)

Footnote 12: Clark v. Brotherhood of Loeontve der for change of venue (Quinn v. Brooklyn)

Footnote 13: Vaperseau v. Holcombe \[Iowa\] 98 N. V. 783, or demurrer than those specified below will not be considered (Johnson v.

Footnote 14: Town of Old Saybrook v. Milford

Footnote 15: B. C. L. 496, and 5. For the sake of completeness, we will not be concerned with the use of the word word.

Footnote 16: A. L. 496, and 5. For the sake of completeness, we will not be concerned with the use of the word.

Footnote 17: A. L. 59, and 5. For the sake of completeness, we will not be concerned with the use of the word.

Footnote 18: A. L. 59, and 5. For the sake of completeness, we will not be concerned with the use of the word.

Footnote 19: A. L. 59, and 5. For the sake of completeness, we will not be concerned with the use of the word.

Footnote 20: A. L. 59, and 5. For the sake of completeness, we will not be concerned with the use of the word.

Footnote 21: A. L. 59, and 5. For the sake of completeness, we will not be concerned with the use of the word.

Footnote 22: A. L. 59, and 5.

3 Cur. Law. APPEAL AND REVIEW SS 13D.

ment entered on a demurrer to the complaint sustained on the ground that no cause of action was stated therein will be affirmed if the demurrer should have been sustained on any other ground,\[18\] but a judgment erroneously sustaining a demurrer and dismissing the bill will not be affirmed on the ground that a correct decision was made on wrong grounds, since there was no testimony taken and no inquiry into the merits.\[14\] A ruling rejecting evidence that is incompetent will be affirmed though the objection was made on the wrong ground.\[15\] Where the record shows that competent evidence was rejected because the court regarded it incompetent, the judgment will not be sustained on the ground that he also had power to reject it on discretionary grounds.\[16\] The giving of a peremptory instruction will be sustained, if proper for any reason apparent from the record,\[17\] and on appeal from a dismissal of the complaint at the close of plaintiff's evidence, the court is not limited to the ground assigned by the court for its ruling, but must examine the entire record.\[18\] On appeal in equity the declarations of law given or refused will not be reviewed, since the decree may be right regardless of error in them.\[18\] More remarks of the court expressing views apparently not carried into the judgment will not warrant a review.\[20\] A declaration that plaintiff was not entitled to recover under the pleadings and proofs sufficiently indicates the theory under which the case was decided to warrant a review of the question whether under the pleadings and proofs, plaintiff could recover.\[21\] An order granting a new trial will be affirmed if any ground be well taken.\[22\] An appellate court may consider and apply to a pending case a curing statute passed to heal defects in titles similar to the one in question.\[23\]

(SS 13) _D. Restriction by character of order or judgment; matters brought up with final judgment.\[24\]_--Where a case is properly in the appellate court, all decrees and proceedings therein are reviewable.\[25\] Rulings on practice\[26\] and intermediate orders\[27\] go up with the judgment. Orders made after judgment do not.\[28\]

13. Porter v. Plymouth Gold Min. Co. Schmitter v. Rowe, 139 Cal. 666, 78 P. 14. Thompson v. First Nat. Bank \[Miss.\]

01. The opinlon of the trial court cannot affect the question of the sufficiency of the evidence to sustain the findings (Luman v. P. 417.

01. Pattee v. Whitcomb \[N. H.\] 56 A. 459.

700, 74 P. 307), nor be considered to determine the scope of the order (Ben Lomond) Deposti Co., 26 Ky., L. R. 289, 74 S. W. 1111.

18. Baker v. Interurban St. R. Co., 86 N. Y. S. 9.

01. Heffernan v. Weir, 99 Mo. App. 301,

72 S. W. 1085.

20. Crawford v. Burke, 201 Ill. 581, 66 N. L. 883.

01. Kansas City v. Ford Heim Brewing Co., 98 Mo. App. 590, 78 S. W. 202.

01. On appeal by defendant from an order granting plaintiff may insist that other grounds set up in his motion justify the order and should have been allowed. Emmons v. Quade, 176 Mo. 22, 75 S. W. 103.

An order granting a new trial on a certain ground may be sustained on other grounds alleged if appellant does not show that they were not well taken. Morrison Mfg. Co. v. Roach \[Mo. App.\] 78 S. W. 644. Where an order is in general terms it will be sustained if justified on any of the grounds presented therefor, regardless of the opinlon of the trial court in support of it. Schmitter v. Rowe, 139 Cal. 656, 73 P. 449.

Such opinlon, however, may be examined for the purpose of determining any question Costs being part of the judgment, orders relating thereto go up;" and an order denying a motion to correct a judgment may be reviewed if properly preserved in the record." An appeal from a final judgment rendered on report of a master stating the amount due a widow from the estate of her husband and his devisees will not bring up a judgment setting aside a receipt given by the widow renouncing her rights under the law and agreeing to take under the will." On appeal from an order sustaining objections to a referee's report, a question as to whether there was a clerical error in the report cannot be considered, since any such mistake should be corrected below." A judgment of foreclosure cannot be reviewed on appeal from the order confirming the sale." A decree ordering foreclosure and subrogation, and directing a reference, being final and appealable, will not go up on appeal from the decree confirming the final report." A decree directing partition cannot be reviewed on appeal from the order confirming the report of commissioners." The discharge of a rule for judgment for want of a sufficient aff-davit of defense cannot be reviewed on appeal from a jury trial." A party who fails to appeal from an order granting him a new trial on terms has no ground of complaint on an appeal from the judgment." In New York, only such interlocutory and intermediate judgments and orders are reviewable on appeal from final judgment as are specified in the notice of appeal." Where the order appealed from is not a "final order" in a special proceeding, a specification in the notice of appeal of an intention to bring up the intermediate orders for review is not effective for that purpose."

\_Matters reviewable on appeal from interlocutory orders."_Proceedings subsequent to an interlocutory order are not considered," the appeal standing on the record as it stood at the time the order was made." On appeal from an order granting a preliminary injunction, the only inquiry is whether the discretion of the trial court was improvently exercised," the merits not being in issue."_

set aside and vacate a judgment is not \[Rev. St. 1898, SS 3069, 3070\]. In re McMa-hon's Estate, 117 Wis, 463, 94 N. W. 361. Order setting aside a referees report is re-veron, 22 Pa. Super. Ct. 578. Viewable, notwithstanding it has been applied from independently, such appeal having been dismissed without consideration. Neeloy v. Roberts \[S. D.\] 95 N. W. 921. An intermediate order substituting a claimant of property for defendant in claimant and de-livery goes up. State v. District Court of First Judicial Dist. 28 Mont. 445, 72 P. 867. Lifevitans v. Stelson, 90 App. Dlv. 28. Order refurbats to sign bill of exceptions. McGaullin v. Wormser, 28 Mont. 177, 85 N. Y. 8, 885; Sterans v. Shapard e M. 72 P. 428. Spencer v. Mungus, 28 Mont. 367, 72 P. 663. Order retraine costs in Colorado \[MIII's Ann. Code, & 1981\]. Van Buskirk v. Balch \[Colo. App.\] 14 P. 192. Where, on appeal from a judgment of foreclosure, that portion awarding decree for defelency cannot be reviewed because of promaturity of the appeal, the order apportions the costs in also now reviewable. Thomson v. Black \[III.\] 70 N. E. 318.

30. Cullen v. Harris \[Utah\] 73 P. 1044.

01. Fraser v. Prazer, 26 Ky. L. R. 473, 76 S. W. 13.

01. New York Bank Note Co. v. Hamilton Bank Note Engraving & Printing Co., 87 N. Y. S. 290.

01. Logan County v. McKinley-Lanning L. & T. Co. \[Neb.\] 97 N. W. 642.

01. Kirkland v. Millis, 138 Ala, 192, 35 So. 40.

01. Austin v. Moore, 138 Ala, 192, 35 So. 40.

01. Cullen v. Harris \[Utah\] 73 P. 1044.

01. Cremon, 138 Ala, 192, 35 So. 40.

01. Cullen v. Harris \[Utah\] 73 P. 1044.

01. Fraser v. Prazer, 26 Ky. L. R. 473, 76 S. W. 13.

01. New York Bank Note Co. v. Hamilton Bank Note Engraving & Printing Co., 87 N. Y. S. 290.

01. Logan County v. McKinley-Lanning L. & T. Co. \[Neb.\] 97 N. W. 642.

01. Kirkland v. Millis, 138 Ala, 192, 35 So. 40.

01. Cullen v. Harris \[Utah\] 73 P. 1044.

01. Fraser v. Prazer, 26 Ky. L. R. 473, 76 S. W. 13.

01. New York Bank Note Co. v. Hamilton Bank Note Engraving & Printing Co., 87 N. Y. S. 290.

01. Logan County v. McKinley-Lanning L. & T. Co. \[Neb.\] 97 N. W. 642.

01. Kirkland v. Millis, 138 Ala, 192, 35 So. 40.

01.

3 Cur. Law. APPEAL AND REVIEW SS 13D.

On appeal from an order granting a motion to serve an amended answer, neither the sufficiency of a counterclaim contained therein nor the merits of the controversy will be considered.\[46\] Appeal from a decree overruling a demurrer to the bill will not bring up an order refusing to set aside an order restoring the cause to the docket after dismissal for want of prosecution,\[46\] nor rulings on objections to the allowance of amendments, nor on motion to strike amendments;\[47\] but where the question whether an amendment constituted a departure was presented by the demurrer, it may be reviewed.\[48\]

_On appeal from grant or refusal of a new trial.\[49\]_--Generally speaking, appeals from the grant or refusal of a new trial are confined to the motion,\[50\] and whether a jury was demandable as of right,\[51\] whether the verdict is sufficient,\[52\] whether the action or the pleadings are in proper form,\[53\] or support the findings,\[54\] or judgment,\[55\] whether a conclusion of law is correct,\[56\] whether the findings sustain the judgment\[57\] or conclusions of law,\[58\] or the evidence, the findings,\[59\] the form of the decree or judgment,\[50\] whether interest is allowable on the judgment,\[51\] the court's refusal to settle the statement on motion for a new trial,\[52\] can be considered only on appeal from the judgment.\[53\] The responsiveness of the verdict to the issues may be determined,\[54\] and on appeal from an order refusing a new trial, the court may scrutinize all the evidence and determine whether the verdict is not contrary thereto, though no motion was made at the close of plain-tiff's ease, or after the evidence was all in.\[56\] Reversal of the judgment cannot be made on appeal from an order granting a new trial.\[58\]

_Equitable, provisional and special decrees and orders.\[57\]_--It must be presumed that a court sitting without a jury,\[59\] or in equity, considered only competent evidence.\[48\]

A.J 122 F. 776. An appeal from an order granting a temporary injunction will raise only the question of whether the afflavits 439; Swift v. Occidental Mining & Petroleum failry tend to support the allegations of the complaint. Gray v. Bldg. Trades & Council \[Min.- 1\] 97 N. W. 663.

44. On appeal from an order granting a preliminary injunction against the infringement of a patent, the question of the validity of the patent will not be considered. Austin Mfg. Co. v. American Wellworks \[C. C. A.\] 121 F. 76. Where an injunction pendente little was issued before Issue joined, the court on appeal from that order will not examine the merits to determine whether the injunction was improvitation granted. Kerr v. City of New Orleans \[C. C. A.\] 126 F. 920.

01. Westinghouse, Church, Kerr & Co. v. Remington Salt Co., SS 89 App. Div. 126, 85 N. X. 8. 432.

01. Northwestern Land Ass'n v. Grady, 137 Ala. 219, 33 So. 874.

47, 48. Montgomery Iron Works v. Capital City Ins. Co., 137 Ala. 134, 34 So. 210.

49. See I Curr. L. 160.

01. Morse v. Wilson, 138 Cal. 558, 71 P. 801; Swift v. Occidental Min. & Petroleum Co., 141 Cal. 161, 74 P. 760. Questions not raised and determined below will not be considered. De Haven v. McAuley, 138 Cal. 573, 72 P. 152. See I Curr. L. 160, 87.

51, 52. Morse v. Wilson, 138 Cal. 558, 71 P. 801.

53. Morse v. Willson, 138 Cal. 558, 71 P.

01. Hamilton v. Murray \[Mont.\] 74 P. 75.

01. Glaser v. Michelson, 86 N. Y. S. 286.

01. In re Bills' Estate \[Cal.\] 74 P. 704.

01. See 1 Curr. L. 161.

01. Hunter v. Guth \[Colo. App.\] 73 P.

01. Byrnes v. Elly \[Neb.\] 97 N. W. 298; Smith v. Bunch, 81 Tex. Civ. App. 541, 73 S.

01. W. 659; International & G. N. R. Co. v.

01. Starts \[Tex.\] 77 S. W. 1; Abernathy v. Reynolds \[ArHz.\] 71 P. 914; Arabian Horse Co., V. Stevens \[Neb.\] 96 N. W. 621; Finlen v.

71.60.

72. Slimon Newman Co. v. Lassing, 141

01. See I Curr. L. 161.

01. Hunter v. Guth \[Colo. App.\] 73 P.

01. Byrnes v. Elly \[Neb.\] 97 N. W. 298; Smith v. Bunch, 81 Tex. Civ. App. 541, 73 S.

01. W. 659; International & G. N. R. Co. v.

Hence.\*\* An appeal in an equity case will not present for review the rulings made during the progress of the trial."

(SS 13) _E. Restriction by contents of record._"--Cases appealed must be heard and decided upon the record made in the court from which the appeal is taken," and questions not made in the record cannot be considered, though argued and insisted on." The errors alleged must clearly appear," the burden of showing error being always on the party alleging it," and in the absence of an affirmative showing of error, it is assumed that the rulings below are correct." Presumption not changed by direction of verdict, though in such case the existence of every material fact which the evidence tends to prove is assumed." All reasonable presumptions are indulged to uphold the regularity of the proceedings of the trial court," and objections not supported by the record will not be reviewed."

6n. Turner v. Overall, 172 Mc. 211, 72 S. \[Vwash.\] 74 P. 1056; Alaska Comm. Co. v. W. 644; Southworth v. Southworth, 173 Mc. \[Dinkelepiel (C. C. A.) 18 E. 164; De Wolf 59, 73 S. W. 129; Brown v. Fitcher \[Minn.\] , V. People, 202 III. 73, 66 N. E. 865; Stedry v. 97 N. W. 416; Rulofson v. Billings, 140 Cal. \[Beck \[Neb.\] 94 N. W. 513; Post v. Smith 452, 74 P. 35; Hunt v. Phillips \[Vwash.\] 75 P. \[Neb.\] 95 N. W. 500; Kingsley v. Swobeda 970; City of Pt. Townsend v. Lewis \[Vwash.\] \[Neb.\] 98 N. W. 518. Two conflicting pettens for vacation of decree. Presumed that P. 102; Bowdle v. Joncks \[S. D.\] 99 N. W. 98. See I Churr. L. 161, n. 98.

70. Danforth v. Fowler \[Neb.\] 94 N. W. 637; Smith v. Oster \[Neb.\] 95 N. V. 835; showing redemption from judicial sale, pre-Petitibone v. Yeiser \[Neb.\] 98 N. W. 193; John Stewart & Co. v. Allen \[Neb.\] 96 N. 68 N. W. 528; Flanagan v. Mathleson \[Neb.\] 97 N. W. 287. Errors at trial not considered when hearsrance policy were taxed as an Inheritablev hears 1 de nevo. Security Sav. Soc. v. Cohalan, 31 Wash. 268, 71 P. 1020. See I Cullen, 161, n. 99.

01. See I Cullen, 162.

01. Boyle v. Union Pac. R. Co., 25 Utah, 420, 71 P. 988. Citing 3 & Enc. P. & Prac. D. 502; Rayne, New Trials & App. & 717; Elliott, App. Proc. \*\*, 206.

01. Denny v. Broadway Nat. Bank, 118 Ga. 21, 44 S. E. 832. See I Curr. L. 162, n. 20.

01. Alaska Commercial Co. V. Dinkelepiel \[C. C. A.) 126 F. 184; Shuler v. Lashorn, 67 Kan. 634, 74 P. 264; Heodless v. Jernigan \[Fla.\] 35 So. 656. The fact that an amendment, claimed to be prejudicial, was in fact made during the trial, must appear. Pratt v. Smith \[Neb.\] 94 N. W. 104. An order re-fusing to set aside a judgment must be affirmed where the judgment is not in the record and no Impropriety in it is shown by the transcript. Green v. Thatcher, 31 Colo. 383, 72 P. 1078. Rulings with reference to continuance not reviewed in absence of chewing in record. Miller v. Mathleson, 28 Mon. 132, 72 P. 414. If the statements of the court In his instructions, as to what the facts are, are erroneous the bill of exceptions should show it: otherwise the instructions will be presumed to be supported by evidence not brought up. Sharp v. U. S., 131 U. S. 341, 24 S. Ct. 114. See I Curtr. L. 162, n. 17.

01. Shelby v. Creighton \[Neb.\] 96 N. W. 382; Gull, C. & S. F. R. Co. v. Blanchard \[Tox. Clv. App.\] 78 S. W. 88. Where the brief of evidence is so confused as to be unintelligible, the verdict will be presumed to ensure that hears 1 3 Cur. Law. APPEAL AND REVIEW SS 13E. 251

Where it appears by the bill that evidence of an instruction by a wife to her husband as to the application of a certain payment given in plaintiff's absence, was rejected, it will not be assumed in support of the ruling that it was rejected because occurring in a private conversation between husband and wife.\[80\]

The reviewing court is confined to the record and will consider only such error as is there presented,\[81\] whether the suit be at law or in equity,\[82\] and affidavits or other evidence to affect the disposition of the case on appeal cannot be received.\[83\]

Matters not in the record cannot be considered in support of the judgment,\[84\] and reversal will not be made upon evidence of matters occurring since the trial.\[85\]

Where the bill of exceptions is deficient in showing facts required to be shown by it, it cannot be aided by reference to the evidentiary bill,\[88\] and statements in the abstract cannot supply omissions of documentary evidence from the bill of exceptions or record.\[87\] An omission in proof of a matter of record may be supplied, to sustain the judgment.\[88\]

The record in a companion case between the same parties, and tried with the case appealed, cannot be considered though sent up,\[89\] but the record in a former suit, re-filed in the pending suit, may be considered to supply omissions from the record, no motion having been made to strike it out.\[80\]

Omission of any portion of the record will preclude review of questions arising on the omitted portion.\[91\]

A statement in the record indicating that matters other than the evidence were perhaps considered by the court in arriving at its conclusion, is not ground for reversal in the absence of any showing of prejudice.\[92\]

On

Gossett v. Devorss, 98 Mo. App. 641, 73 S. \]

83. Nichols v. Roberts \[N. D.\] 96 N. W. W. 731. Where the record does not show \[98\]; Whisler v. Whisler \[Ind.\] 70 N. E. 162: whether an amendment to a pleading was \[93\]

Gubner v. Farrell 94 N. Y. S. 157; Daly v. inserted at a proper or improper place, it \[94\]

Minke, 86 N. Y. S. 92. Setted ease. Fisher will be presumed to have been inserted at v. Betts \[N. D.\] 96 N. W. 123. That party the proper place. Vinson v. Palmer \[Flu.\]

died before entry of decrere. Joyce v. Har-34 So. 276.

79. Exclusion of taxayers from jury mand for change of venue was made Board of Councilmen of Harrodsburg v. Fischer v. Brooklyn treghtas R. Co., 84 N. Mitchell, 25 Ky. L. R. 1518, 78 S. W. 210.

Y. S. 254. Misconduct of jury. Cahill v. Error assigned on allowing plaintiff to dis- \[93\], 138 Cui, 691, 72 S. 42. See 1 Curr. miss as to one defendent before proof, rec- \[163, no. 26.

rod not showing that it was before. Scalf v. Graves, 31 Tex. Cyt. App. 667, 74 S. W. Murray v. Barden, 132 N. C. 136, 43 S. E. 195. A complaint that the trial judge by his manner prejudded apellant before the jury cannot be considered in the absence of anything in the record to establish it. Klipstein v. Raschen, 117 Wiss. 248, 94 N. 157.

76. See 1 Curr. L. 161, no. 20.

01. Boston Steel & Iron Co. v. Steuer, 183 Mass. 140, 65 N. E. 646.

01. Modern Brudendorf of America v. Cummings \[Neb.\] 94 N. W. 144; Springer v. Chicago Realiste, & Z. M. Co., 202 Ill., 17.

66 N. E. 850; Boyle v. Vlnon Pac. R. Co., 25 Utah, 420, 71 P. 983; Allen v. Beckert, 84 N. Y. S. 1012; Ohio Colo. Mlin. & Mill Co. S.

v. Wiley \[Colo. App.\] 71 P. 1001; Archison v. Arnold \[Vwy.O\] 72 P. 190. Though ad- \[93\]

91. Where no part of the record prior to final but abandoned complaint to have been \[94\]

improper, insasmuch as the court is not in- \[93\]

formed by the record of its contents, such reading does not appear to be prejudicial to \[94\]

of authority to issue such alias order can plaintiff. Lotfus-Hubbard EL. Co. V. Smith-Alvord Co., 90 Min. 418, 97 N. W. 125.

Record falling to show that issue of limita- \[93\]

from a judgment of the municipal court of ions was presented below, reversal will not be made because court's decision of that question prevented introduction of proof of \[94\]

78 P.

40. See 1 Curr. L. 162, n. 20.

01. Joyce v. Harding, 208 Ill. 77, 69 N. E. 174.

01. Nichols v. Roberts \[N. D.\] 96 N. W. W. 73 appeal from a judgment construing a will the court can consider a deposition on which the trial court based its finding of the facts necessary to an understanding of the will.\[93\] The opinion of the trial court has no place in the record and it cannot be referred to to rebut the presumption that the court considered all evidence properly before it.\[94\] When a ruling depends on the evidence, it cannot be reviewed unless all the evidence relating thereto is in the record,\[95\] and so shown by the bill,\[96\] and a bill of exceptions not properly authenticated by the clerk below will not be considered.\[97\] Where a written contract is not set out in the record, its construction, and the admissibility of evidence, and proprity of instructions concerning it will not be considered.\[98\] A ruling based on the evidence will be presumed correct in the absence of the evidence by stipulation.\[99\] A certificate that the evidence tended to show certain facts will raise the legal questions growing out of such facts.\[1\] Where there is no bill of exceptions, or substitute therefor, in the record, or because of defects it is stricken out or refused consideration, questions depending thereon will not be considered,\[2\] the only errors reviewable in such case being those appearing upon the journal properly entered thereon;\[99\] but errors appearing on the face of the record 98. Lee v. Baird, 134 N. C. 410, 46 S. E. 172. 94. Phillips v. Coburn, 28 Mont. 45, 72 P. 291. 95. Allowance of attorney fees not received in absence of evidence. Deane v. D. C. 224. Where no evidence is preserved in the bill of exceptions, no question predicated thereon can be considered. Cervante 371, 68 N. E. 686. Refusal of court below 13 3 Cur. Law. APPEAL AND REVIEW SS 13E.

proper will be reviewed whether the facts. or evidence are before the court or not.4 Where the only contention is whether the findings of fact justify the conclusions of law a statement of facts is unnecessary.5 The judgment may be limited but not enlarged by a record that shows only the judgment and findings, since the complaint may have been insufficient to support a larger judgment.6 In the Federal courts, where a jury is waived by written stipulation, and the finding of the court is general, and no bills of exceptions are taken to the rulings during the progress of the trial, the record presents no question for review by the appellate court,7 and in the absence of a written stipulation waiving a jury, the only question reviewable is whether the judgment rendered is sustained by the pleadings.8 Where the facts or evidence are absent from the record, all presumptions of fact necessary to sustain a judgment conformable to the pleadings will be indulged,9 and no fact, the existence of which is necessary to overturn the judgment below, will be regarded as established without an affirmative showing thereof.10 When

and preserved by bill of exceptions will not
\[Utah\] 75 P. 737. A verdict will be pre-be considered unless such error is apparent

sumed to have been properly directed where from the record proper and not necessary to

the facts are not before the court. Young be preserved by bill. Rudolph v. Smith v. Surset \[Miss.\] 34 So. 322. In the absence \[Colo. App.\] 72 P. 817; Carlin v. Freeman of a bill of exceptions it will be presumed

\[Colo. App.\] 75 P. 26. Where there is no statement properly authenticated, only er-

as to one defendant, which was granted.

rors appearing on the face of the judgment

wer proven. Scalf v. Graves, 31 Tex. Civ. roll can be considered. Appeal from order

Amp. 667, 74 S. W. 795. Where the appointment of a receiver is collaterally attacked

In re Quinn's Ekstate \[Nev.\] 74 P. 5. Where there is no bill of evidence in the record

urged below against his appointment are

(U. B. Cast from Pipe & Foundry Co. v.) not shown, it will be presumed that evidence necessary to authorize the court's ac-

where the bill of exceptions has been strick-

tion was presented. Mesanger v. De Leonis,

en from the record, the only question re-

viewable is the sufficiency of the pleadings

thil of exceptions and statement in the rec-

to support the judgment (Klee v. Louisville & N. R. Co., 25 Szym. L. R. 312, 75 S. W. 718).

of a receiver was irregular, and that no

Record limited by stipulation held to pre-

sent only question whether pleadings support judgment. Curtis v. Boquillas Land &

\[Cal.\] 73 P. 576. In the absence of a bill of

Cattle Co. \[Aritz.\] 71 P. 924. On error, where

no motion for new trial was filed below

and no exceptions taken to rulings of the

trial court, and there is no bill of exceptions, the only question open to the error

without jury in condemnation proceedings.

court is whether the pleadings are sufficient

to sustain the judgment, Gillespie v. Mors-

man \[Neb.\] 95 N. W. 714; Bernis v. McCloud

\[Neb.\] 96 N. W. 714; Grove v. Dineon \[Neb.\] 96 N. W. 253; Porter v. Detrick \[Neb.\] 96 N. W. 271.

4. Error affirmatively appearing on the face of the record proper will be reviewed

without a bill. Herman v. Beck \[Neb.\] 94

N. W. 512. See 1 Curr. L. 164, n. 34.

5. Fitz Henry v. Munter, 33 Wash. 629, 74

P. 1003.

6. Shelby v. Creighton \[Neb.\] 96 N. W. 382.

1. Rev. St. 84 649, 700. National R. Co. v.

O'Leary \[C. C. A.\] 126 F. 363.

8. City of Defiance v. Schmidt \[C. C. A.\] 123 F. 1.

1. Where the trial court found that a

county was "organized" it will be presumed,

in aid of the judgment, in the absence of a

statement of facts, that every act necessary

to constitute the county an organized coun-

ty was done. McCaule v. Reeton \[Tex. Civ. App.\] 78 S. W. 556. In the absence of the

evidence it will be presumed that the attorney fee allowed by the court in a foreclosure

case was reasonable. Johnson v. Hibbard

\[Utah\] 75 P. 737. A verdict will be pre-

sumed to have been properly directed where

from the record proper and not necessary to

the facts are not before the court. Young be preserved by bill. Rudolph v. Smith v. Surset \[Miss.\] 34 So. 322. In the absence

\[Colo. App.\] 72 P. 817; Carlin v. Freeman of a bill of exceptions it will be presumed

that facts alleged in a motion to dismiss

statement properly authenticated, only er-

was one defendant, which was granted.

rors appearing on the face of the judgment

wer proven. Scalf v. Graves, 31 Tex. Civ. roll can be considered. Appeal from order

Amp. 667, 74 the appeal is oh the judgment roll alone, and no error appears on the face thereof, the judgment must be affirmed.\[11\] Though the bill does not contain all the evidence, if enough is preserved to raise a certain inference and defendant in error proposes to deny that inference, he must see that enough is stated to at least show that there was other evidence which might affect the conclusion.\[12\] Where, after demurrer to the evidence is overruled, defendant offers proof,\[13\] and his motion for directed verdict is then overruled, he is entitled on appeal to a review of the evidence as a whole.\[14\] It cannot be assumed in favor of an exeptant that a view by the jury added anything to the evidence stated in the bill.\[15\]

_Jurisdiction and venue.\[16\]--Where the record shows that a certain person appeared at trial for one of the parties, it will be presumed that he was authorized so to do.\[17\] The overruling of a motion by the removing defendant to remand a cause to the state court will not be reviewed on the ground that an indispensable party defendant was shown by the evidence to be a citizen of the same state with complainant, where the evidence is not in the record and the bill and petition for removal show a removable case.\[18\]_

_Process and pleading.\[19\]--An exception to jurisdiction of the person cannot be sustained where the return of service is not in the record.\[20\] Where process is a part of the record proper, and the transcript shows none, the record will not be helped out by the presumption that proper process was served.\[21\]_

Rulings on demurrers, exceptions, and motions to strike pleadings cannot be reviewed in the absence of the pleadings in question,\[21\] and where there is no showing that a demurrer was ever presented to the court, no complaint can be made that no disposition was ever made thereof.\[22\] Exception to the refusal of an amendment not in the record will not be considered.\[23\] Where the complaint is dismissed at the trial before a referee, and the answers filed are not contained

sheriff's deed, under which plaintiff claims, misdescribed the land and has been altered since delivery, he will not be granted relief as equitable owner in the absence of the execution from the record, since that may have been wrong too. Kalbach v. Mathis \[Mo. App.\] 78 S. W. 684. Where on appeal from the decision of the board of general apprasers affirming the collector's classification of imported merchandise, there is no evidence to overthrow the classification, the decision of the board must stand. Bailey & Co. v. U. S., 122 F. 751. The dismissal of a petition to set aside a judgment cannot be reviewed where no part of the record of the original suit is brought up. Jones v. Conway, 25 Ky. L. R. 2017, 78 S. W. 259. Where a plea of former judgment is traversed and the judgment pleaded is not in the bill of exceptions the defense will not be considered on appeal. Brinkman v. Sunken, 174 Mo. 709, 74 S. W. 963. An astoppenl founded on an agreement and judgment in another case, neither of which Is In the record, cannot be considered. Watkins v. Hopkins County \[Tex. Civ. App.\] 72 S. W. 872. Whether the apprelle is barred by an astoppenl cannot be considered in the absence of the documentary evidence on which his contention is based. Kraft v. Holzman, 206 III. 548, 69 N. E. 674.

**11. Swartz v. Davis \[daho\] 74 P. 800.**

**12. City of Detroit v. Grummond \[C. C. A.\] 121 F. 963.**

**13. Oglesby v. Missouri Pac. R. Co., 177 Mo. 727, 78 S. W. 628.**

**14. McLain v. St. Louis & S. R. Co., 100 Mo. App. 374, 73 S. W. 909.**

**15. Williams v. Citizens' Elec. St. R. Co., 184 Mass. 437, 68 N. E. 840.**

**16.** Jurisdiction of the court below to enter personal judgment against the defendant will be presumed unless the lack of it appear in the record. Culver v. Lieberman, 69 N. J. Law, 541, 55 A. 812. See 1 Curr. L. 164.

**17.** Department of Health v. Babcock, 84 N. Y. S. 604.\*\*

**18.** Wirgman v. Persons \[C. C. A.\] 128 F. 449.\*\*

**19.** See 1 Curr. L. 165.\*\*

**20.** Stoddard v. Cambridge Mut. Fire Ins. vay, 25 Ky. L. R. 2017, 78 S. W. 259. Where a plea of former judgment is traversed and the judgment pleaded is not in the bill of exceptions the defense will not be considered on appeal. Brinkman v. Sunken, 174 Mo. 709, 74 S. W. 963. An astoppenl founded on an agreement and judgment in another case, neither of which Is In the record, cannot be considered. Watkins v. Hopkins County \[Tex. Civ. App.\] 72 S. W. 872. Whether the apprelle is barred by an astoppenl cannot be considered in the absence of the documentary evidence on which his contention is based. Kraft v. Holzman, 206 III. 548, 69 N. E. 674.\*\*

**11.** Swartz v. Davis \[daho\] 74 P. 800.\*\*

\*\*12.

3 Cur. Law. APPEAL AND REVIEW 8 13E.

in the record, they cannot be reviewed.28 Nothing appearing to the contrary, it will be presumed that leave was given to file an amended complaint,28 that an amended pleading was a mere restatement of the matter of the original,27 and that plaintiff stood upon his complaint on the sustaining of a demurrer to it.28 Where there is nothing in the record to show the form of an application to amend a declaration, except the statement in the amended declaration that it was filed with leave of court, it will not be presumed that it was filed as a substitute to the original, but as an addition to it and that exhibits filed with the original are still before the court.29 All reasonable presumptions not contrary to the record will be indulged with reference to the sufficiency of the pleadings below to support the judgment: i. e. that oral pleadings were amended to conform to the proof,20 that a paper attached to the transcript purporting to amend the petition was not allowed as an amendment,21 that a petition included in the transcript was a part of the complaint, though not referred to therein as an exhibit,22 and variances between pleadings and proof unexcepted to below will not be considered unless material and substantial and affecting the right of the matter.23 A judgment on the pleadings and amendments will not be reversed where they are confusing and involved, and there is nothing to show that they are all included in the record.24 An order overruling a motion to dismiss for want of a written complaint will not be reviewed where the record does not show that a written complaint was not filed.28 Where the sufficiency of a complaint is first raised on appeal,28 or where the appeal is from the overruling of a general demurrer, the allegations of the petition must be accorded every reasonable intendment in favor of the right to be enforced,27 the rule that it should be construed most strongly against the pleader having no application.

_Motions and affidavits.28-To review the ruling on a motion the record must show the motion itself,29 the grounds thereof,29 the affidavits21 or other evidence:_

25. Terwilliger v. Wheeler, 81 App. Div. 37. St. Louis S. W. R. Co. v. Spivey \[Tex.\] 460, 81 N. Y. S. 173. 26. Pitzele v. Reuping \[Ind. App.\] 68 N. 38. See 1 Curr. L. 166. 39. Motion to strike part of complaint. 27. Shroyer v. Pittenger, 31 Ind. App. 138. E. 475. 30. Motion for directed verdict. In 28. Shverdlinger v. Huff, 31 Wash. 360, 72 P. 73. 29. Abbott v. Bowers \[Xd.\] 57 A. 538. 30. On appeal from the municipal court in a case in which the pleadings were oral and defendant consented that plaintiff might lead anything he wished, it will be presumed that the complaint was amended to conform to the proof, though a different cause of action than that first pleaded was proved. Poess v. Twelfth Ward Bank, 86 N. Y. S. 857. 31. The Justice had dismissed the case as beyond his jurisdiction, and paper purported to amend by withdrawing part of demand. Fidelity & Guaranty Co. v. Feed Co., 100 Mo. App. 725. 32. Tetition in highway proceedings. Vagner v. Mahrt, 32 Wash. 542, 73 P. 675. 33. V. S. 1630. Brown's Ex'r v. Dunn's Exstate, 75 Vt. 264, 55 A. 364. 34. Ott v. Elmore, 67 Kan. 853, 72 P. 89. 35. Action to recover penalty for obstructing public road. Setalchsag v. Town of Antioch, 207 Ill. 280, 69 N. E. 949. 36. Vivion Mfg. Co. v. Robertson \[Mo.\] 75 S. W. 644. 37. St. Louis S. W. R. Co. v. Spivey \[Tex.\] 76 S. W. 748. 38. See 1 Curr. L. 166. 39. Motion to strike part of complaint. Crystal Ice Co. v. Morris, 160 Ind. 651, 67 N. E. 504. Motion for directed verdict. In Harvey's VIII \[Iowa\] 94 N. W. 559. Where a bill of exceptions taken to the overruling of a motion for continuance does not contain the motion or otherwise Iden-tify it is required by rule, it cannot be retrieved. Rules 55 and 86. Chicago, R. I. & defendant consented that plaintiff might lead anything he wished, it will be presumed that the complaint was amended to conform to the proof, though a different cause of action than that first pleaded was proved. Poess v. Twelfth Ward Bank, 86 N. Y. S. 857. 31. The Justice had dismissed the case as beyond his jurisdiction, and paper purported to amend by withdrawing part of demand. Fidelity & Guaranty Co. v. Feed Co., 100 Mo. App. 725. 32. Tetition in highway proceedings. Vagner v. Mahrt, 32 Wash. 542, 73 P. 675. 33. V. S. 1630. Brown's Ex'r v. Dunn's Exstate, 75 Vt. 264, 55 A. 364. 34. Ott v. Elmore, 67 Kan. 853, 72 P. 89. 35. Action to recover penalty for obstructing public road. Setalchsag v. Town of Antioch, 207 on which the motion is based,44 that it was ruled on,45 and what the ruling was,46 since error must affirmatively appear to secure reversal, all reasonable presumptions being indulged to support the ruling below.47 On appeal from the grant or refusal of a new trial, the record should show the newly discovered evidence on which it is based,48 and also the evidence in the case, since otherwise it cannot be seen that the new evidence was competent or material,49 or was not merely cumulative.49 Where the notice of a motion for a new trial specifies insufficiency of the evidence as a ground, but the statement contains no specifications, it cannot be presumed on appeal in support of the order granting the new trial that the evidence was insufficient to support the findings.41 An appeal from an order denying a motion to vacate an order adjudging a party guilty of a criminal content presents no question for review, where the motion was based merely on the afflavit of the party and there is no certification that it contains all the proceedings.51

\_Proceedings at trial in general.52-Improper remarks of counsel must appear in the record to review alleged error therein.53 Where the record does not show the arguments of counsel, it will be presumed the jury took the law from the court, as is their duty, and disregarded counsel's statements in so far as in conflict with the instructions.54 An assignment of error based on the alleged misconduct of the jury will not be considered where it is ascertainable only from affladavits not included in the bill of exceptions.55 Where there is no showing as to why the regular panel was not summoned to appear before the case was set for trial, it will be presumed there was justifiable cause for ordering a special jury.56 It will be presumed the statute was read to the officer sent out in charge of the jury as provided therein, in the absence of any showing to the contrary, or that it was waived by the appellant.57

_Admission or exclusion of evidence.57--Rulings on the admissibility of evidence.58_

_Rulings on the admissibility of evidence.59_
4\. \[128\] A. M.

### 258 Appeal and Review SS 13E.

3 Cur. Law.

tion,"\* and the rejection of the testimony of a witness offered as an expert on the ground that he is not qualified may be reviewed without a showing as to what his testimony would have been."\* Error in excluding or admitting depositions must affirmatively appear."\* The action of the trial court in admitting secondary evidence will be presumed based on sufficient evidence, the contrary not appearing,"\* and an objection to parol evidence will not be considered where the city ordinance, claimed to show the fact, is not in the record." The record must show interrogatories and offers which presented to the trial court the question relied upon in the reviewing court as the ground of reversal."\* A will, to construe which the action is brought, will be considered as properly in evidence, though by oversight it was not formally offered in evidence below."

\_Sufficiency of evidence."*-If the sufficiency of the evidence is questioned, all the evidence must be presented."* The chaency rule is otherwise, appellee being required to show in the record evidence sustaining the decree."\* In Missouri, where all the evidence is not in the record, on appeal in an equity case, the evidence cannot be considered,"\* and in Arkansas, where the record in a chanery cause fails to show that it contains all the evidence, the decree will be presumed correct."\* Where the petition states a cause of action and the findings support 73. Bell v. Felt, 119 Ga. 498, 46 S. E. 642.

- Stoddard v. Cambridge Mut. Fire Ins. Co., 74. Muskeget Island Club v. Nantucket 75 Vt. 253, 64 A. 284. Assignment that finds: \[Mass.\] 70 N. E. 61.
- T5. An objection to a deposition for de- Hathath v. Chenoweth \[Ind. App.\] 70 N. E.
- feet in authentication can be considered 166. Where a ballot was not produced and only when the authentication is in the rec- cord. Cheuvront v. Cheuvront \[W. Va.\] 46 validity could not be reviewed. People v.
- S. E. 233. A ruling excluding a deposition will be presumed correct in the absence of hath v. Cheuvront \[W. Va.\] 46, 46 S. E. 642.
- T6. A ruling extending a deposition with his record in. Zieph v. Rosenstein, the notice and formal parts thereof. Coe v.
- S6 N. Y. S. 871. A finding conformable to the issues raised by the plealding cannot objection to a deposition that appellant was 16 be said to be erroneous in the absence of the evidence and instructions. Sherman v. Ran-Avallable, the bill of exceptions must negag- tivo waiver of notlce. Texas & P. R. Co. v.
- fourthwavy T.e. Civ. App.\] 78 S. W. 565.
- T6. Avery v. Stewart, 134 N. C. 287, 46 S.
- T7. C'Brien v. Woburn, 184 Mass. 598, 69 N. E. 60.
- T8. Gardiner Campbell Co. v. Iroquis
- T9. Reed v. Morgan, 100 Mo. App. 713, 73 N. W. 811. Compare Peterson v. Wolf \[Neb.\] 95 N. W. 821. 70. 832.
- S0. See 1 Curr. L. 167.
- T19. Stukburgh, C. C. & T. L. R. Co. v.
- Wilson, 161 Ind. 701, 66 N. E. 899; Emery v.
- R2. Failure to preserve evidence will Hanna \[Neb.\] 94 N. W. 973; United States work reversal. Village of Hariem v. Sub- Nat. Bank v. Hanson \[Neb.\] 96 N. W. 864;
- Currils v. Boquillas Land & Cattle Co. \[Arl.\] 121 N. 618 N. E. 166. But 71 T. 924; Lusch v. Pool \[Ind. App.\] 69 N. E. 687; Sayer v. Brown, 119 Ga. 539, 46 A. E.
- 49. Eggleston v. Royal Trust Co., 205 Ill. 205 Ill. 10, 68 N. E. 709; Hutchinson v. Naya, 183 Mass. 356, 67 N. E. 601; King v. Crain
- \[Mass.\] 69 N. E. 1048; Tomlinson v. Bahnka
- \[Ind.\] 70 N. E. 165; Kringle v. Kringle v. Kringle
- \[Iowa\] 98 N. W. 883. Finding of facts by auditor assumed correct in absence of tes- 271.

3 Cur. Law. 3.4.

on the judgment roll alone, the sufficiency of the evidence to support the findings cannot be considered." Where the ease on appeal does not show what part of an adversary's pleading plaintiff offered in evidence, it cannot be considered a part of his testimony to support a verdict in his favor."

\_Instructions.\_The instructions given or refused must appear properly in the record." The giving or refusal of instructions cannot be reviewed, unless the record contains the entire charge," and the evidence to which they relate," especially where certain issues are withdrawn from the case," and the record must show that they were passed upon by the trial court, and an exception taken to the ruling," since the presumption is that the court gave in substance, all proper instructions, and that the refusal of instructions asked was without prejudice." The record must show that it contains the entire charge." In the absence of a statement of facts instructions not clearly erroneous in view of the pleadings and verdict will not be reviewed," and an objection to an instruction as unsupported by the evidence will be presumed that the ones omitted qualified the one objected to. Hanson v. Stinehorn, 189 Cal. 169, 72 P. 913. See 1 Curr. L. 168, n. 4.

all the evidence will be regarded as untrue, where the facts appearing on the face of the bill are in conflict with such recital.

Southern Pas. Co. v. Arnett \[C. C. A.\] 126 F. Gal v. Gali \[Vis.\] 97 N. W. 938. Recital in \[Tex. Civ. Appl.\] 76 S. W. 942; Fletcher v. Vakefield, 75 Vt. Z57, 64 A. 1012; Mercer v. Southern R., 66 S. C. 246, 44 S. E. 780. In the absence of the evidence, the instructions will be approved if correct under any evidence admissible under the pleadings. Man-kin v. Pennsylvania Co., 160 Ind. 447, 67 N. E. 229; Ball v. Marquisz, 122 Iowa, 665, 98 N. P. 486. And instructions stating correct propositions of law will be presumed to have been refused because not applicable to the evidence. Diamond Block Coal Co. v. Cuthbertson \[Ind. App.\] 67 N. E. 558. Error in Instructions to which the omitted ev. v. Orrell, 206 Hill 208, 69 N. E. 68; Michigan Glty v. Phillips \[Ind. App.\] 69 N. E. 700; Wren v. Howland \[Tex. Civ. Appl.\] 75 S. W. 834; Brown v. Gillett, 38 Nash. 264, 17 T. E. 704. Where there is no bill of exceptions, instructions given N. C. 291, 43 S. E. 840; Hughes v. School Dist. No. 27, 66 S. C. 259, 44 S. E. 784. Instructions held properly, in though not certified. Broadstreet v. Hall \[Ind. App.\] 69 N. E. 415. Refusal to further instrater retirement presumed proper in absence of instructions given and request for further instructions from record. Business v. Frost \[Colo. App.\] 76 T. E. 594. A recalcal in the transcript that the court instructed the jury to find for the plaintiff is a mere conclusion and in the absence of the instruction itself the error alleged will not be reviewed. Startrer v. Clarke \[Neb.\] 95 N. W. 509. See 1 Curr. L. 168, n. 3.

3. Lake Errie & W. R. Co. v. Holland \[Ind.\] 69 N. E. 138; Chicago, I. & E. R. Co. v. Wysor Land Co. \[Ind.\] 69 N. E. 864; Buenha v. Ryan, 129 Cal. 630, 73 T. E. 466; Dorbrook v. Rumely Co. \[Vis.\] 97 N. W. 493; City of Puelo v. Fronery \[Colo. App.\] 71 P. 893. Especially where the instruction refused was of a nature that an imperfection there in might be cured by others. Pittsburg, etc., R. Co. v. Smith, 207 Ill. 486, 69 N. E. 873. An objection to an instruction which "among others" was given cannot be reviewed in the absence of the others, since it will be presumed that the ones omitted qualified the one objected to. Hanson v. Stinehorn, 119 Cal. 169, 72 P. 913. See 1 Curr. L. 168, n. 4.

1. Chase v. Watson, 78 Vt. 386, 66 A. 10; Hodless v. Jernigan \[Eta.\] 38 S.o. 666; Southern Pas. Co. v. Arnett \[C. C. A.\] 126 F. Gal v. Gali \[Vis.\] 97 N. W. 938. Recital in \[Tex. Civ. Appl.\] 76 S. W. 942; Fletcher v. Vakefield, 75 Vt. Z57, 64 A. 1012; Mercer v. Southern R., 66 S. C. 246, 44 S. E. 780. In the absence of the evidence, the instructions will be approved if correct under any evidence admissible under the pleadings. Man-kin v. Pennsylvania Co., 160 Ind. 447, 67 N. E. 229; Ball v. Marquisz, 122 Iowa * 8 Cur. Law. APPEAL AND REVIEW SS 13E.

- 96 dance cannot be considered if all the evidence is not in the record. 10 Where objection is made only to the instructions given, the bill need not give the instructions requested. 11 The ruling on a motion for a new trial will not be reviewed where the instructions on which it was based, 12 or the evidence on which the instructions were based, are not in the record. 18 Alleged error in instructions in an equity case will not be considered, the verdict being merely advisory. 14 Error in giving or refusing an instruction with reference to the argument of counsel will not be considered in the absence of a showing that counsel made any argument. 15 The correctness of prayers will be determined by the evidence unless special reference to the pleadings is made in the prayer. 16 Refused requests will not be considered on appeal as abandoned below, though appellant refused to allow appellee to read them, claiming they were not of record, where they were subsequently filed in the cause and appellee made no further request to read them. 17 In the absence of a showing to the contrary in the record, charges given will be presumed to have been requested in writing, and those refused will be presumed to have been unwritten and therefore unreviewable. 18 Instructions not excepted to will be presumed to have been full and accurate, 19 and satisfactory to appellant, 20 and regarded as the law of the case. 21
- _Verdict or findings, judgment and execution. 22_--Necessary findings must be made and must appear. 28 A bill of exceptions complaining of the absence of findings must show that they were not waived, as waiver will be presumed in support of the judgment. 24 No findings of fact are required to review a judgment for plaintiff after sustaining demurrer to answer. 28 In Missouri, where the court
- 10 Atwell v. Shook, 133 N. C. 387, 45 S. E. 77.
- 11. Nichols v. Baltimore, etc., R. Co. \[Ind.\]
- 12. Baggett v. Savannah, F. & W. R. Co. \[Fla.\]
- 13. Citizens' Bank & T. Co. v. Spencer \[Fla.\]
- 14. King v. Pony Gold Min. Co., 28 Mont. 14, T2 P. 308.
- 15. North Chicago St. R. Co. v. Wellner, 206 Ill. 372, 69 N. E. 6. Where there is no bill of exceptions to the argument of counsel, a request purporting to counteract prejudical argument will be presumed refused because there was no such argument. International, etc., R. Co. v. Mills \[Tex. Civ. App.\]
- 16. Whithy v. Baltimore, C. & A. R. Co. \[Fla.\]
- 17. Houston, etc., Co. v. Turner \[Tex. Civ. App.\]
- 18. S. W. 71.
- 19. Henderson v. State, 187 Ala. SS3, 84 So. 828.
- 20. Griffin v. Cunningham, 183 Mass. 505.
- 21. N. E. 660; White v. McPherson, 183 Mass. 533, 67 N. E. 643.
- 22. Queeck-Berner v. Atiantic Trust Co., 80 App. Div. 450, 81 N. Y. S. 146.
- 23. Cameron v. Mutual Life & T. Co., 121 Iowa, 477, 96 N. N. W. 961; Osborne & Co. v. Hringland & Co., 122 Iowa, 329, 98 N. W. 716.
- 24. See 1 Curr. L. 169.
- 25. Mere opinion of court not sufficient. In re Boston Dry Goods Co. \[C. C. A.\]
- 26. In re Noyes Bros. \[C. C. A.\]
- 27. The appellate division cannot take cogninance of the decision of the trial court which is not contained in the record. Sommer v. Somma-
- 28. Mere opinion of court not sufficient. In re Boston Dry Goods Co. \[C. C. A.\]
- 29. In re Noyes Bros. \[C. C. A.\]
- 30. The appellate division cannot take cogninance of the decision of the trial court which is not contained in the record. Sommer v. Somma-
- 31. The appellate division cannot take cogninance of the decision of the trial court which is not contained in the record. Sommer v. Somma-
- 32. The appellate division cannot take cogninance of the decision of the trial court which is not contained in the record. Sommer v. Somma-
- 33. The appellate division cannot take cogninance of the decision of the trial court which is not contained in the record. Sommer v. Somma-
- 34. The appellate division cannot take cogninance of the decision of the trial court which is not contained in the record. Sommer v. Somma-
- 35. The appellate division cannot take cogninance of the decision of the trial court which is not contained in the record. Sommer v. Somma-
- 36. The appellate division cannot take cogninance of the decision of the trial court which is not contained in the record. Sommer v. Somma-
- 37. The appellate division cannot take cogninance of the decision of the trial court which is not contained in the record. Sommer v. Somma-
- 38. The appellate division cannot take cogninance of the decision of the trial court which is not contained in the record. Sommer v. Somma-
- 39. The appellate division cannot take cogninance of the decision of the trial court which is not contained in the record. Sommer v. Somma-
- 30. The appellate division cannot take cogninance of the in trying issues of facts sits as a jury and gives a general verdict, the judgment will not be reviewed on appeal or by writ of error, unless declarations of law are asked and refused, in order that the appellate court may see upon what theory take case was tried. Unless this is done the finding of the court is incontrovertible on appeal.28 Findings of fact filed after the expiration of the term at which the case was tried cannot be considered.29 Findings of the jury set aside as unsupported by evidence and not assigned as error will not be reviewed as entitling a party to judgment.23 The silence of the special finding is taken as equivalent to an express finding against the appellant on all material facts which he was obliged to prove.29 Where no decision appears in the judgment roll it will be presumed that none was made.30 Where in a case tried to the court the trial judge's conclusions are not brought up, the judgment will be referred to any warrantable theory of the case made by the testimony which will legally support it.31 The memorandum of the reasons of the trial judge for his decision cannot be allowed to qualify, characterize, or limit his determination,32 and alleged errors in the trial court's opinion will not be reviewed,33 but the appellate division may examine the opinion of the trial court to ascertain the basis of its disposition of the case.34 Whether certain items should have been allowed will not be reviewed where it does not affirmatively appear that the verdict included them,38 but where recovery may have been based on either of two issues, only one of which was established, it will not be presumed to have been based on the one established.38 Where the record does not show on which paragraph of the complaint the verdict was rendered, the appelle cannot urge that an instruction, not specifically referring to a defective paragraph, withdrew it from the jury.37 A judgment for defendant on a verdict directed generally on a complaint in two paragraphs can be sustained only where neither cause of action is supported by evidence.38 Where, in Alabama, in a case tried to the court, there are special findings, the supreme court on appeal is limited in its review to a determination of whether the findings support the judgment.39 Where the evidence is not preserved and the transcript does not contain the pleadings, the findings of fact will be conclusively presumed correct.40 Where the trial court refuses to set aside a default, on the ground of inex-cusable neglect, his findings of fact are conclusive on appeal, and afflavits will not be considered.41 In the absence of the evidence it will be assumed that it sustained the findings,42 or judgment,43 and where only a partial transcript is

26. Jordan v. Davis, 172 Mo. 599, 72 S. W. 688. 27. Beaumont Imp. Co. v. Carr \[Tex. Civ. App.\] 75 S. W. 327. 28. Casey-Swasey Co. v. Manchester Fire Assur. Co. \[Tex. Civ. App.\] 73 S. W. 864. 29. State Bank v. Backus, 160 Ind. 682, 67 N. E. 512. Faets as to which the findings are silent are presumed found against the party holding the affirmative of that Issue. Stotts City Bank v. Miller Lumber Co., 102 Mo. App. 76, 74 S. W. 472. 30. Kent v. Common Council, 90 App. Div. 553. 86 N. Y. S. 411. 31. Ward V. Cameron \[Tex. Civ. App.\] 76 S. W. 243. 32. Pearson v. Great Northern R. Co., 90 Minn. 227, 96 N. W. 113. 33. Upton v. Welsling \[Arlz.\] 71 P. 917. 34. Tenoma v. Gollick, 80 App. Div. 638, 81 N. Y. S. 353. 35. Page v. Brummer, 84 N. Y. S. 268. 36. Huey Co. v. Rothfeld, 84 N. Y. S. 883. 37. Cleveland, etc., R. Co. v. Lindsay \[Ind. App.\] 70 N. E. 283. 38. Gartner v. Chicago, etc., R. Co. \[Neb.\] 88 N. V. 1052. 39. The court will not review special findings of fact on evidence extrinsic of the findings. Klichen & Bro. v. Robinson Bros., 138 Ala. 419, 35 So. 461. 40. Shelby v. Creighton \[Neb.\] 96 N. W. 382. 41. Osborn v. Lesch, 133 N. C. 427, 45 S. E. 783. 42. Knielecbrocker v. Robinson, 88 App. Div. 614, 52 N. Y. S. 314; King v. Pony Gold Min. Co., 28 Mont. 74, 72 P. 309. In the absence of a statement of facts the findings below will be regarded as conclusive. Conner v. Downis \[Tex. Civ. App.\] 75 S. W. 335. East v. Houston & T. Cout. R. Co. \[Tex. Civ. App.\] 71 S. W. 646; Allegtt v. Campbell \[Tex. Civ. App.\] 78 S. W. 967; Henning v. Wren \[Tex. Civ. App.\] 715 S. W. 905. Failure to find with reference to a particular cause of action will not be considered. John A. Roeb-ling's Sons Co. v. Gray, 139 C. 607, 73 P. 422. 43. Cravens v. Dospan, 25 Ky. L. R. 2018.

8 Cur. Law. APPEAL AND REVIEW SS 13E. 263 brought up it will be presumed that the omitted parts sustain the judgment.\[44\] An issue neither requested nor submitted will be presumed found so as to support the judgment.\[45\] Where a decree disposing of the main issue of the cause makes no mention of the demurrer, it will be regarded as overruled.\[45\] A finding that an order vacating a highway was regularly made presumes that all necessary steps were taken to give it validity.\[47\] Where the superior court finds that in justice court judgment after service was "duly rendered," it will be presumed in support of the finding that due proof of a default or judgment after trial was made.\[48\] It will be presumed that a judgment dismissing the action at the cost of defendant was by his consent, the record not showing otherwise.\[49\] Where it is the duty of the court to enter judgment, and it can be fairly inferred that the order was made, but through mistake of the clerk, not spread of record, it will be so presumed.\[50\] Where the record shows no request for special findings of fact and conclusions of law, as required by statute,\[51\] or where the special findings are not filed or brought into the record by bill of exceptions or order of court, they will be treated on appeal as a general finding in favor of the successful party.\[52\] It will be presumed that no exception to a conclusion of law was taken where none appears in the record proper,\[52\] and where no findings of fact appear, an exception to the conclusions of law cannot be considered.\[54\] On appeal from the decision of a referee, the court of appeals of New York is confined to the findings of fact and cannot look into the record for additional facts,\[56\] and where a referee finds the facts and states his conclusions, on which the judgment is founded, the question presented on appeal, in the absence of a case, is whether the facts found support the conclusions and judgment.\[56\] Exhibits may be incorporated in the findings by reference.\[57\] Inclusion of a written instrument in the findings brings up its sufficiency to support them.\[58\] A judgment inconsistent with and contrary to the findings will be reversed,\[50\] but a decree will not be set aside on error, in the absence of a motion for a new trial, unless the findings show the decree clearly wrong.\[50\] The action of the court in taxing judgment in trespass to try title. Rountree, v. Haynes \[Tex. Civ. App.\] 73 S. W. 435. Where the evidence is not in the record, a decree supported by one phase of the bill will be presumed correct and affirmed. Picker- ing v. Yates \[Miss.\] 36 So. 10. In the absence of a bill of exceptions, or argument, or an assignment of error raising the point, it will be presumed that the facts found fully justified the conclusion of law and the judgment. Clark v. Mitchell \[S. D.\] 97 N. W. 358. A judgment of dismissal will be presumed to have been for good cause, there being several statutory grounds and the exact ground not shown, the appeal being on the judgment roll \[Code Civ. Proc. SS 581\]. Woods v. Nb. 174. Diepenbrock, 141 Cal. 55, 74 P. 546. Where it does not appear on what ground judgment for defendants was rendered, it will be presumed to be because plaintiff failed to make out a primma facie case, and there being no evidence in the record, affirmance follows. Boe v. Haynes, 28 Mont. 201, 72 P. 509. 44. Cravens v. Despinn, 25 Ky. L. R. 2018, 17 B. V. 276. Where the record contains only a partial statement of facts all reasonable presumptions will be indulged to support the judgment. Vogres v. Dittinger \[Tex. Civ. App.\] 72 S. W. 875. 45. Seaton v. Mekenrolls \[Tex. Civ. App.\] 72 S. W. 874. Where appellant failed to request the submission of an issue to the jury, costs is presumed to have been correct,\[91\] and in the absence of a statement of facts an order allowing costs against an estate in a debate proceeding will not be reviewed.\[92\] On appeal from an order denying a motion for retaxation of costs, the record must show what items were objected to, and the grounds of objection.\[93\] Failure to grant a close jail execution will not be reviewed in the absence of facts in the record showing that it ought to have been granted.\[94\]

(SS 13) _F. Rulings peculiar to province of trial court._ 1. \_Discretionary rulings in general; interlocutory and provisional orders.\[95\]--The discretion of the lower court is not an unlimited power, and its rulings and judgments during the progress of the trial are open to review,\[96\] but discretionary acts and rulings will not be disturbed, unless an abuse of discretion is shown.\[97\] The rule applies to grant or refusal of a change of venue,\[98\] or a continuance,\[99\] the allowance of an amendment of a motion for continuance,\[90\] the allowance of postponement on amendment of pleading,\[71\] the allowance of an amendment of a voucher in attachment,\[93\] the refusal of a motion to dissolve an attachment, the affidavit showing facts authorizing the writ,\[93\] the grant or refusal of leave to renew a motion previously denied,\[94\] the remission of the forfeiture of a ball bond,\[98\] and the supplying of missing records.\[98\] The construction or application of the court's own rules is discretionary.\[97\] The exercise of the jurisdiction of a trial judge sitting in equity in ordering damages to be assessed by a master instead of a jury,\[98\] the determination that a proposed railroad is a public necessity,\[99\] the selection of an administrator pendente lite, and the amount of security to be given by him,\[90\] the appointment of a receiver,\[91\] the allowance of compensation to an auditor,\[92\] the setting aside of a judicial sale in an equitable proceeding,\[98\] grant or refusal of an injunction, temporary\[94\] or per 3 Cur. Law. APPEAL AND REVIEW SS 13F 1. 265

manent,"88 and the requirement of a bond before granting,"88 the refusal of a per-empty writ of mandamus, where not refused on the ground of lack of power, or any question of law," the refusal of prohibition when applied for by a stranger to the proceedings sought to be enjoined,88 an objection to a bankrupt's discharge,89 will not be reviewed except where a clear abuse of discretion is shown. The award of custody of a child in habeas corpus proceedings,80 and the amount of alimony and soliciot's fees in divorce,91 are matters committed to the discretion of the trial court and unreviewable in the absence of improper exercise. In Wisconsin, the circuit court's discretion extends to the denial of a motion to dismiss an appeal from probate court,92 and allowing an extension of time for appeal93 and the dismissal of an appeal because of failure to require a return.94 The rule that the discretion of the trial court as to the grant or refusal of an injunction will not be controlled does not apply where the right to the relief is based on a question of law,98 and an order setting aside a referee's report will not be affirmed as discretionary where it appears on its face to be based on legal grounds.98 Refusal to exercise discretion on the ground of lack of authority, where authority exists, is reviewable.87 The discretion of the judge at special term, in New York, in refusing to open a judgment for mistake is reviewable by the appellate division, though no abuse is shown.88 Where the trial court refuses an application to re-settle an order so as to show that it was based on the minutes as well as on its own motion, it will be presumed on appeal that the order was not based on the minutes.98

\_Dismissal and nonsuit.\_1--On appeal from a judgment dismissing the action at the close of plaintiff's case, plaintiff is entitled to the most favorable inference that can be drawn from the evidence,2 and he is entitled to the presumption that he could have proved material facts contained in his offer of proof.8 On appeal from a judgment for plaintiff, the question whether a compulsory nonsuit should have

Concentrating Co. \[C. C. A.\] 121 F. 973. In-junction against sheliff's sale in state court \[N. E. 908.

not an abuse of discretion where bond was 92. Hanley v. Kraftczyk, 119 WIs. 352, 96

sufficient to protect against loss. Massale v. N. W. 820.

Buck \[C. C. A.\] 128 F. 27. A temporary in-junction will not be interfered with on appeal \[N. V. 489.

from the order granting it, where the evl-dence at the preliminary hearing tends to support the allegations of the complaint.

Creek Gold Min. Co., 118 Ga. 255, 45 S. E. 267.

MacDonald v. Gerrrick \[Mont.\] 74 P. 1083.

Seo I Curr. L 170, n. 42.

85. City of Kewane v. Otley, 204 Ill. 402,

01. N. E. 385; O'Neill Mife. Co. v. Woodley, 118

01. Cote Civ. Proc. , 97 24. Lawson v.

01. Ga. 854, 45 S. E. 884; Steadman & Co. v. Southern Pine Co., 119 Ga. 616, 46 S. E. 838.

The evidence conflicting, the defendant solvent, and no Irperable damage to complain.

ant appearing. Everett v. Tabor, 119 Ga. 128,

45 S. E. 72.

86. Briggs v. Neal \[C. C. A.\] 120 F. 224.

01. People v. Interurban St. R. Co., 177 N. Y. 295, 69 N. E. 596.

01. Certificate of compliance by street railway. KIfty v. Railroad Com'ra, 184 Mass.

310, 68 N. E. 234.

89. Barred by laches. Adams v. Shirk \[C. S. C.\] 121 F. 823.

01. Chunn v. Graham, 117 Ga. 651, 43 S. E.

01. Benham v. Benham \[Ill.\] 70 N. E. 80.

An award of alimony le largely within the direction of the trial court, but the abuse of any question of the trial court, but the abuse of any question of the trial court, but the abuse of any question of the trial court, is not a subject of the present work.

88. N. Y. S. 214.

01. Chunn v. Graham, 117 Ga. 651, 43 S. E.

01. Chunn v. Graham, 117 Ga. 651, 43 S. E.

01. Benham v. Benham \[Ill.\] 70 N. E. 80.

An award of alimony le largely within the direction of the trial court, but the abuse of any question of the trial court, but the abuse of any question of the trial court, is not a subject of the present work.

88. N. Y. S. 214.

01. Chunn v. Graham, 117 Ga. 651, 43 S. E.

01. Chunn v. Graham, 117 Ga. 651, 43 S. E.

01. Chunn v. Graham, 1
    been granted must be considered by giving the plaintiff every reasonable inference warranted by his testimony,4 and defendant's evidence subsequently introduced may be considered.5 Appellee cannot support a judgment of dismissal on the absence of testimony which he excluded by objection to the employment of an interpreter.6 A refusal to grant a nonsuit furnishes no ground of appeal.7 An order on motion to dismiss for lack of prosecution unless plaintiff placed the cause on the calendar within a time fixed will not be disturbed, no abuse of the court's discretion appearing.8

\_Orders relating to pleadings.9--\_Unless a gross abuse of discretion is shown, the granting or refusal of leave to amend a declaration,10 complaint,11 petition,12 bill,13 answer,14 notice of special matter in defense15 or reply,16 will not be reviewed. The allowance of permission to file a plea17 or answer after expiration of the time allowed by law,18 or to file an additional plea, setting up the statute of limitations,19 will not be reviewed, in the absence of a showing of abuse of judicial discretion.20 For like reasons, the ruling on a motion to make pleadings more definite and certain,21 and on motion to strike out parts of a pleading, are not available error on appeal.22 Denial of a motion to strike a plea on the ground that it was filed without leave,23 or the refusal of a motion to reinstate a petition after amendment to cure a defect for which a demurrer was sustained, will not be controlled unless an abuse of discretion is shown.24

\_Rulings relating to trial or evidence.25--\_The orderly and proper conduct of a trial is in the discretion of the trial judge, and will not be reviewed in the absence of a showing of abuse.26 Rulings relating to the order and sequence of proofs offered,27 the decision as to the qualifications of a witness offered as an expert,28

4. Baxter v. St. Louis Transit Co. \[Mo. 17. Baltimore City Charter, $ 312, Acts App.J 78 S. W. 70, 1838, p. 352, c. 123. Horner v. Plumiley, $7 5. Fales & Jenks Mach. Co. v. Browning \[St. C.\] 48 S. E. 545. 13. City of Wilmington v. McDonald, 133. C. 548, 46 S. E. 844. 19. Cause at issue over three years. City of Chicago v. Cook, 204 Ill. 273, 68 N. E. Plumb v. Maher \[Conn.\] 66 A. 494. 58. Wuppermann v. Valentine, $4 N. Y. S. 150. 22. Comb s. Thompson \[Kan.\] 74 P. 1127. 22. Connex v. Andrews Lando, Home & \[Mich.\] 19 S. W. 743. 11. Barnes v. Berendes, 139 Cal. 31, 72 P. 406: Tanner v. Harper \[Colo.\] 75 P. 404; Buchina v. Ryan, 139 Cal. 630, 13 P. 466. 112. Ledwith v. Campbell \[Neb.\] 95 N. W. 838: Willett v. Johnson, 13 (Dk.) 653, 76 P. 838. 174. Whether petition for abatement of liquor nuisance should be amended on a $23. 25.pletion of relator to withdraw, by substituting county solitector and treating it as a prosecution for violation of the liquor law, N. W. 131. is a question of fact not revelvable, State v. Lynch \[N. H.\] 55 A. 562. 13. Suit to set aside tax sale. Walker v. Norfolk & A. Terminal R. Co. v. Morris' City of Detroit \[Mich.\] 98 N. W. 744. Adam's, 101 Va. 429, 44 S. E. 719: Wilmton v. 14. Sawyer v. Piper, 189 U. S. 156, 33 S. Hamilton \[C. C.\] 127 F. 48. Whether Ct. 633, 47 Law. Ed. 765: Lange v. Union court rule relating to order of brood should Pac. R. Co. \[C. C. A.\] 126 F. 38; Dickenson v. Columbus State Bank \[Neb.\] 98 N. W. 813; 67 law. Gerfils v. Whitfield \[N. H.\] 65 A. Brady v. Pinal County \[Arri.\] 71 P. 910: 681. Permitting teestimony on condition that Westinghouse, Church, Kerr & Co. v. Remington Salt Co., 89 Ap. Div. 126, 58 N. Y., 183 Mass. 309, 67 N. N. 826. Re- 8. 432: McClury v. Brenton \[Iowa\] 98 N. opening case for further evidence. Percival W. 881; Barnes v. Berendes, 139 Cal. 32, 72 Y. Yousling, 120 Iowa, 461, 94 N. W. 918; Joplin Vaterworks Co. v. Joplin, 117 M.o. 15. Chase v. Watson, 75 Vt. 385, 56 A. 10. 498, 76 S. W. 960. Bringing out evidence on redfect examination. Byrnes v. Eley \[Neb.\] Adm'r, 25 Ky. L. R

## 8 Cur. Law. Appeal and Review SS 18F 1.

the latitude allowed on cross-examination of witnesses,\[39\] the allowance of leading questions,\[40\] the admission of declarations as res gestae,\[51\] the granting of a view of the premises,\[62\] the substitution of lost depositions on a resubmission of the case,\[63\] permitting a deposition, retaken without order of court first obtained, to be read,\[64\] allowing deposition to be read after witness making it has testified,\[65\] requiring that all attesting witnesses to a will be called in support of it,\[66\] and the ruling on a motion to strike incompetent evidence received without objection,\[67\] are all discretionary matters, which will not be reviewed unless abuse is shown. The finding of the trial court on preliminary questions of fact necessary to be decided before admitting or rejecting evidence, will not be disturbed unless clearly wrong,\[68\] and the conclusion of fact reasonably inferable from the evidence involved in the exclusion of testimony is not open to exception.\[69\] In North Carolina, the decision of the trial court as to whether the facts authorize the admission of secondary evidence of the contents of a written instrument is a question of law, reviewable on appeal.\[70\]

Refusal of a severance,\[64\] the submission of interrogatories for special findings,\[62\] limitation of argument to the jury,\[65\] permitting counsel to real legal authorities to jury in argument,\[64\] are all matters of discretion for the lower court. Refusal to direct a verdict will not be disturbed.\[65\] On review of a judgment on a directed verdict, incompetent evidence not objected to will be deemed evidence in the case,\[70\] and every fact favorable to the unsuccessful party which the evidence tends to prove will be regarded as conclusively established;\[67\] but where both parties

timony In sur-rebuttai. Beyer v. Hermann.

37. McCormick Harvesting Mach. Co. v. 173 Mo. 295, 73 S. W. 164. See 1 Curr. L. 172, 88. Secondary evidence on proof of loss of writing. Koehler v. Schilling \[N. J. Law\] A. 884; Wwhite v. McPherson, 152 Mass. 533.

67 N. E. 643; Waterhouse v. Jos. Schillitz to the admission of photographs. Thupper v. Brewing Co. \[S. D.\] 94 N. W. 587. See 1 Curr. L. 172, 17. 76.

29. Glenn v. Philadelphia & W. C. Trac-

the competency of evidence offered is con-

clusive unless manifestly erroneous, Kava-

Castner, 21 Pa. Super. Ct. 294; Stroh v. South

28. C. C. St. R. Co., 25 Ky. L. R. 1858,

clusion of evidence that may have become

78 S. W. 1120; Jennings v. Rooney, 183 Mass.

577, 67 N. E. 665; Forrester v. Boston & M. Unlon Hoslery Co. v. Hodgson \[N. H.\] 67 Consol. Copper & Silver Min. Co. \[Kan.\] 74 A. 384.

7. 1088. Party's own witness. Hackney v. 39, That witness offered was party in

Raymond Bros. Clarke Co. \[Neb.\] 94 N. W. 823. Extension beyond limits of direct ex-

and not offering himself as witness. Wright

amination. Fourth Nat. Bank v. Albaugh,

188 U. S. 734, 23 S. Ct. 450, 47 Law. Ed. 673.

See 1 Curr. L. 172, 17. 78.

20. Hackney v. Raymond Bros. Clarke

Co. \[Neb.\] 94 N. W. 822; Pittsburgh, C. C. & St. L. R. Co. v. Kinnare, 203 Ill. 88, 67 N. E. 826; Colvin v. McPherson 011 Co.,

66 S. C. 61, 44 S. E. 380; Hiersche v. Scott

\[Neb.\] 95 N. W. 494; Camplon v. Lattimer

\[Neb.\] 97 N. W. 290; Yvon Tobal v. Stetson & Post Mill Co., 832 Wash. 683, 73 P. 788.

31. Pledger v. Chicago, B. & Q. R. Co. \[Neb.\] 95 N. W. 1057.

01. Maloney v. King \[Mont.\] 76 P. 4; Davis v. American Telephone & Tel. Co., 53

7v. Va. 616, 45 S. E. 926.

33. First Nat. Bank v. Reid \[Iowa\] 98 N. V. 107.

01. Code 1887, 8 3344. Leonard v. St. John, 101 Va. 752, 45 S. E. 474.

01. Witson v. Wilson \[Tex. Civ. App.\] 79

01. W. 839.

01. O'Connell v. Dow, 182 Mass, 541, 66 N. W. 812; New York Hydraulic Press Brick Co. v. Cunn, 87 N. X. 8. 168.

ties move for direction, the presumption on appeal is the other way, and all facts and inferences which may be derived from the proofs will be deemed to have been found in favor of the party for whom the verdict was directed.\[48\] Incompetent evidence properly objected to will be disregarded on review, though the court did not before sustaining the demurrer to the evidence formally strike it out or notify plaintiff that it would be disregarded.\[49\] The appellate division has jurisdiction not only to review the discretion exercised by the special term in staying proceedings in an action pending appeal in another suit, but also has power to exercise an independent discretion on such appeal.\[50\] The ruling as to the admission of the remainder of a pleading, a part of which has been offered by one's adversary as an admission, is discretionary.\[51\]

_Grant of new trial or rehearing or settlement of exceptions.\[52\]_--An order granting or refusing a new trial on discretionary grounds will not be reviewed unless the discretion of the trial court has been abused,\[53\] but unless the grounds are discretionary, the order may be reviewed as any other.\[54\] The power to set aside verdict.\_

48. Davis v. True, 89 App. Div. 319, 85 N. Ritchie, 84 N. Y. S. 917. Excessiveness of Y. S. 843: Culliman v. Burkhard, 86 N. Y. S. 1003.

01. S. W. 340. Misconduct of jury. Gulf, '.

01. Lee v. Missouri Pac. R. Co., 67 Kan.

01. S. F. R. Co. v. Blanchard \[Tex. Civ. App.\]

01. Jenkins v. Baker, 91 App. Div. 400, 155, 76 S. W. 83. Disqualification of juror, 155, 76 S. W. 853. Disqualification of juror, 155, 76 S. W. 854.

131 failure to pay poll tax. Alexander & Kneeland v. Von Koehring \[Tex. Civ. App.\] 17

82. See 1 Curr. L. 173.

01. Plumb v. Maher \[Conn.\] 66 A. 494: 1999.

01. Co. v. Stewart, 161 Ind. 242, 68 N. B. 170: Smith v.Hopkins \[C. C. A.\] 126 N. P. 521: Matou: City of South Omnha v. Conrad \[Neb.\] 97

sbek v. Dubner & Bon \[Neb.\] 93 N. N. 1043: 1999.

N. V. 796. Misconduct of counsel in argu-Coxe Bros. & Co. v. Omaha Coal, Coke & ment. James McNeill & Bro. Co. v. Crudelho \[Lime Co. (Neb.)\] 94 N. V. 619: Fitzy & Steel Co., 297 Pa. 493, 56 K. 1967: Hamilton Archibald (Guthre Co., 89 Min. 330, 94 N. V. City of Davenport \[Iowa\] 98 N. W. 135.

W. 883: Monmouth Potery Co., v. White \[Nevy-discovered evidence. Hausmann v. \[Utah\] 75 F. 622; Grifsey v. MacLean. 33

84. Buter St. R. Co., 139 Cal. 174, 72 F. 905: Wash, 244, 74 F. 360; Graves v. Vanders \[C. Louvville & C. Packet Co. v. Mulligan, 25 C. A.\] 155 F. 690: Louisville & R. N. Co. 1587, 71 S. W. 704: Pitman v. Summers \[C. C. A.\] 125 F. 791: Lyutiks v. Holmes \[Tex. Civ. App.\] 78 S. W. 961. In-Hardy, 101 M. App. 693, 74 S. W. 167: Stuart \[winfleency of evidence. Ross v. Robertson v. Press Pub. Co., 83 App. Div. 467, 82 N. Y. \[N. D.\] 94 N. W. 765; Rochford v. Albaugh & 401: Kreidelshimer v. Nelson, 31 Wash. \[B.\] 94 N. W. 701; Schnittferer v. Rose, 139

406, 72 P. 72; Pritchett v. Samuel Wellencal. \[C.\] 655, 73 P. 449: 1999.

83. C01, 533, 72 P. 162; Hausmann v. Sutter St.: Louvville & T. R. Co., 25 Ky. L. R. 765, 76 R. Co., 139 Cal. 174, 72 P. 805; John v. City & W. 602. The case was withdrawn from \[Orc. Inc., 119 Witz, 341, 84 N. V. 813; Schmitt the jury and a new trial subsequently grant- v. Northern Pae. R. Co. \[Neb.\] 98 N. W. 820: 3 Cur. Law. APPEAL AND REVIEW SS 13F 1. 269

dicts because excessive or because of insufficiency of evidence contemplates a judicial discretion, however, which may be corrected on appeal where justice demands it,"8 and where it appears that the judge has refused to exercise the discretion vested in him by law, review will be made.86 Where the order granting87 or denying a new trial does not state the particular ground on which it is made, every legitimate intendment will be indulged to support it,89 and the order sustained, if any, even a discretionary, ground assigned will justify it. Where a new trial has been granted, a stronger case is required to secure a reversal than where it has been denied,90 and the presumption in favor of the correctness of a grant is greatly strengthened when the action of the court is prompt and taken originally of its own motion,60 but where there is no scintilla of evidence to support a verdict other than that rendered, a grant of a new trial will be overruled.91 On review of the grant of a new trial because the evidence was "insufficient to support the verdict," the court considers all the evidence and not merely that of plaintiff, and will not reverse, though the plaintiff's evidence standing alone might support a verdict.92 The rule that the uncorroborated testimony of a party is not conclusive on the jury does not divest the trial court of its discretion to grant a new trial.93 Where a new trial is granted after directed verdict moved for by both parties,94 and when error is predicated on the grant of a new trial for newly discovered evidence,95 or after verdict as against evidence, every reasonable presumption will be indulged in favor of the correctness of the ruling.96 An order granting a new trial for an erroneous instruction will be affirmed, the instruction being in fact bad, unless under the facts no other verdict could be sustained.97 Errors at law committed at the trial and excepted to by defendant do not constitute ground for reversal of an order granting plaintiff a new trial.98 Refusal of new trial will not be reversed because of insufficiency of evidence, unless it clearly appears that there is no credible evidence supporting the verdict,99 or that serious error occurred in the admission or rejection of evidence or in the instructions,96 and where the evidence is conflicting, it will be presumed that facts were found to warrant the 270 APPEAL AND REVIEW $ 18F 1. 3 Cur. Law. refusal to set aside the verdict.\[17\] Refusal to set aside a verdict as excessive cannot be overruled unless it is apparent the jury were actuated by passion and prejudice.\[18\] On review of an exception, under the statute in Virginia, to refusal to set aside the verdict as contrary to the evidence, evidence contrary to the verdict cannot be considered.\[19\] Where the trial court has relieved a party of the effect of his failure to serve a statement on motion for new trial in time, it will not be presumed that denial of his motion for new trial was on the ground of delay in serving the statement.\[19\] Error prejudicial to respondent is no ground for sustaining the refusal of a new trial.\[19\] In Georgia, where the law and the evidence do riot demand the verdict, and no abuse of discretion on the part of the trial court is shown, the first grant of a new trial will not be interfered with,\[19\] though it was put upon a single ground,\[19\] and where the evidence is conflicting and an abuse of discretion does not appear, a second grant will not be interfered with.\[19\] The statute in Virginia provides that where, on new trial granted on the ground that the verdict is unsupported by the evidence, the parties refuse to introduce testimony and the court enters judgment, the reviewing court shall examine the testimony introduced on the original trial, and if the court erred, enter judgment on the verdict.\[19\] Though a motion might have been overruled because of a defect in form, the granting thereof will not be reversed on appeal, the merits not being attacked.\[20\] It will be presumed that any departure from the strict rules of evidence on the hearing of the motion was permitted in the exercise of a sound discretion.\[21\] Whether to reopen a case and hear further evidence after the decree has been signed and entered is discretionary with the trial court, and his refusal will not be disturbed unless an abuse of discretion is shown.\[22\] An order dismissing a petition for rehearing of an order overruling objections to the confirmation of a judicial sale is discretionary and hence not appealable.\[23\] The settlement of a case on appeal by the trial judge cannot be disturbed where no abuse of power is manifest,\[24\] except where it appears to have been based solely on the papers in the case, when it may be reviewed as any other question.\[24\] In the absence of any showing to the contrary it will be presumed that the extension of time to settle the statement of facts was authorized.\[25\] The action of the court in granting an extension of time for settling a bill of exceptions under a statute authorizing it on "good cause shown" is reviewable,\[26\] but where the statute 3 Cur. Law. APPEAL AND REVIEW SS 13F 2. 271

confers power in discretion, the court's discretion will be presumed to have been properly exercised.\[88\]

A petition for leave to enter an appeal from a decree of the judge of probate is addressed to the discretion of the presiding justice, and his decision is final and not subject to exception.\[89\]

_Matters relating to judgments or costs.\[90\]_--A motion to strike off an entry of satisfaction of a judgment is addressed to the discretion of the court, and the exercise of that discretion is not the subject of review.\[91\] So also rulings on an application to set aside or open a default,\[92\] vacate a decree,\[93\] or a judgment on the ground of mistake, surprise, or excusable neglect.\[94\] The supreme court will not review an order refusing to open a judgment except where the judgment below is a deduction from facts, and the result of reasoning on the same.\[95\] The refusal of the trial court to make the decision of the supreme court, reversing a judgment overruling a demurrer, the judgment of the trial court before a certain day, will not be controlled, no prejudice being shown.\[96\] The allowance of costs imposed as a condition of allowing an amendment of pleadings,\[97\] or granting a new trial,\[98\] or in other actions than those in which costs follow as of course,\[99\] such as equitable,\[1\] and probate proceedings,\[9\] will not be reviewed if no abuse of discretion is shown,\[99\] but an allowance to a clerk for special services whether based on a statute and allowed as a matter of law, or on a quantum merit as a matter of discretion, is reviewable.\[96\] Allowing plaintiffs to prosecute as poor persons is discretionary.\[96\]

(SS 13F) 2. _Questions of fact.\[96\]_--Generally speaking questions of fact will not be reviewed on appeal,\[9\] the verdict or findings below being sustained unless manipu 272 APPEAAL AND REVIEW $ 13F 2. 3 Cur. Law.

festly wrong,8 but on appeal from an order refusing to open accounts of executors, in New Jersey, questions of fact as well as of law will be reviewed,9 and the Texas court of appeals has power to disregard a verdict and enter such judgment as the evidence demands, though the trial court could not do so.10 The supreme court of Utah is not authorized to review the facts in a case at law except so far as may be necessary to determine questions of law.11 On appeal from an order of the license board granting or refusing a license to sell liquors, the court should exercise his independent judgment on the evidence, without influence by the finding made by the board.12 The circuit court of appeals cannot, upon petition for review in a bankruptcy case, challenge the facts, or an inference of fact, found by the court below,18 and an adjudication of bankruptcy founded on an act of bankruptcy sufficiently pleaded and proved will not be set aside, though other alleged acts were neither properly pleaded nor sufficiently proved.14 Whether the verdict is unsupported by any substantial evidence is a question of law, and may be reviewed on appeal from the judgment,18 but whether conflicting evidence is sufficient to support the verdict is a question of fact, and cannot be so reviewed.16 Where the evidence is undisputed or the facts not controverted, rulings of the court based thereon may be reviewed,17 but a finding on agreed facts will not be disturbed unless the facts affirmatively establish the contrary conclusion as a matter of law.18 Controverted questions of fact will not be reviewed where both parties moved for directed verdict below.19 After a general verdict for plaintiff it will be assumed on appeal that a material allegation of the complaint was proven,20 and a general finding for the defendant is conclusive upon all issues of fact raised by the pleadings, and the evidence is not reviewable to ascertain whether it supports the finding.21 Exceptions based on questions of fact,22 such as whether the find-

8. The judgment of a justice of the peace

on conflicting evidence, affirmed on error in

Utah, 391, 68 P. 140; Monmouth Pottery Co.

the district court, will not be reversed

v. White \[Utah\] 175 P. 622; Pence v. Californ-

the supreme court, it not appearing clearly

nia Min. Co. \[Utah\] 76 P. 934.

wrong. Bullard v. Laughlin \[Neb.\] 94 N. W. 807.

159. If a judgment entered on a general ver-

001. In re Antigo Screen Door Co. \[C. C.

dict, finds support in the evidence on an

theory of the law embraced within the is-

uses made by the pleadings, it will not be

reversed because entirely unsupported

the testmony. Metropolitan St. R. Co., v.

Arnold, 67 Kan. 260, 72 P. 887. The opinion

of the court of private land claims as to the settlement and occupation of a claimed

grant will be adopted by the supreme court in the absence of clear evidence to the contrary. Bena v. U. S. 189 U. S. 233, 23 S. Ct.

14. The action of the trial court in sub-

596, 47 Law. Ed. 787. The opinion of the trial judge on questions of fact is entitled

or great weight, and unless clearly wrong

will be affirmed. Brady v. Jay, 111 La. 1071,

36 So. 132,

9. In re Morris' Estate \[N. J. Prerog.\] 56 A. 161.

1. Rev. St. 1895, arts. 1027, 1335. Henne

& Meyer v. Moultrie \[Tex.\] 77 S. W. 607.

11. Const. art. s. 8, S. Burt V. Utah Light

& Power Co. 28 Utah, 157, 72 P. 497. Citing

Anderson v. Min. Co., 15 Utah, 24, 9 P. 126;

Nelson, S. Southern P. Co., 15 Utah, 355, 49.

8. 804.

P. 644; Mangum v. Bullon, Beck & Champion

Min. Co., 15 Utah, 534, 50 P. 834; Whittaker

8. Y. E. 705.

v. Ferguson, 16 Utah, 240, 51 P. 880; Murray

v. Salt Lake City R. Co., 16 Utah, 356, 52 P. 595; Wild v. Union Pac. R. Co., 23 Utah,

8. 265, 63 P. 886; Kennedy v. Oregon, etc., R.

Co., 18 Utah, 375, 54 P. 888; Crocev v. Railroad

Co., 18 Utah, 311, 54 P. 985, 44 L. R. A. 285; Baxter v. Campbell \[S. D.\] 97 N. W. 386.

3 Cur. Law. APPEAL AND REVIEW $ 13F 2. 273

ings\*\* or verdict are justified by the evidence cannot be considered in law cases in South Carolina.24

_Findings of fact in general.24_--A verdict or finding of facts will only be set aside when not supported by evidence,26 or against the clear preponderance thereof,27 if properly submitted,28 there being sufficient to carry the issues to the jury,29 since the appellate court cannot pass upon the credibility of witnesses or the peculiar weight to be given to their testimony.28 If there is substantial evidence in the record to sustain the verdict,29 judgment,29 or finding of facts, it will not be disturbed,29 there being nothing intrinsically improbable in it,24 though a strong doubt as to the fact arises,28 or the plaintiff's accounts of the cause of his injury conflict,28

21. McDowell v. McCormick \[C. C. A.\] will not be reviewed. Turnbow v. Beckstead, 25 Utah, 480, 71 P. 1062. The trial 22. Jones v. Charlestown & W. C. R. Co., court's conclusions as to the weight of the evidence will not be disturbed. Shrover 56 S. C. 410, 43 S. E. 884.

01. Cowart v. City Council of Greenville v. Campbell, 31 Ind. App. 83, 67 N. E. 192. (S. C.) 45 S. E. 122. "Sult by trustee in bank-ruptcy to recover goods of bankrupt alleged 31. Parmly v. Farrar, 204 Ill. 438, 68 N. E. to have been transferred with intent to give 438: La Plante v. La Zear, 31 Ind. App. 438, a preference is at law. Hodges v. Kohn \[S. 68 N. E. 231: Watson v. Fagner, 105 III. App. C.\] 46 S. B. 102.

01. Butler v. Western Union Tel. Co., 65 4 N. W. 192: Brazil Block Coal Co. v. Gibb. S. C. 510, 44 S. E. 91.

01. See 1 Curr. L. 177.

01. Johnson v. Heath \[Neb.\] 98 N. W. 832; N. Y. 536, 68 K. E. 110; New York & N. Texas & N. O. R. Co. v. Lee \[Tex. Civ. App.\].

01. Tel. Co. v. Connolly, 69 N. J. Law, 182, 74 S. W. 245. Standard case. Covington v. 54 A. 219; Johnson v. Chicago, etc., R. Co. Roberson, 111 L.A. 286, 85 So. 586. A more \[Iowal\] 98 N. W. 642; Campion v. Lattimer opinion expressed by a circuit Judge on a \[Neb.\] 97 N. W. 290; Tanner v. Harper (Colo.) question of fact in an equity case is not 76 76 74: Herring v. American Ins. Co. a finding of facts. Hendry v. Perkins \[C. 1903 J. W. 130; Williams v. Coleman, C. A.\] 183 F. 268. Application for judgment 117 Ga. 393, 43 S. E. 716; Pomeracy v. Gershon against estate of deceded after limitations 203. In 6a. 521, 46 S. E. 415; Hill Bros, under Rev. St. 1901, 0. 191, 527. Decision by Bank of Seneca, 100 Mo. App. 230, 73 S. held finding of fact not revivable. Libby \[W. 367; Pennsylvania R. Co. v. Nave \[Tem.\] v. Hutchinson \[N. H.\] 85 A. 647. A conclusion 78 S. W. 124. See 1 Curr. L. 178, 72. on the facts as to which of two persons is 32. Lewis v. Rasp \[Okl.\] 76 P. 142. the beneficiary intended by a will is a legal 33. McCadams v. Yellower, 140 Cal. 254, 73 conclusion, reviewable on appeal. Preston P. 104; Ellis Co. v. Byth, 69 N. J. Law, 579, v. Foster, 75 Conn. 709, 55 A. 558. Dead in-55 A. 64; Roberts v. Koss \[Ind. App.\] 70 tended as mortgage. Farrar's & Merchants' N. E. 185: Stotto City Bank v. Miller Lum-Ins. Co. v. Hahn \[Neb.\] 98 N. W. 585. See 1 per Co., 10 Mo. App. 75, 74 S. W. 47; Burger v. Kirblin \[Meli\], 96 N. V. 1001: 27. Duffy v. Hinkley \[Vls.\] 98 N. W. 215: Abernathy v. Reynolds \[Arr.\] 71 P. 914; Palmer v. Ward, 91 App. Dtv. 449, 86 N. Y. Fuhlige v. Nagle \[Mo. App.\] 78 S. W 274

APPEAL AND REVIEW SS 13F 2. 3 Cur. Law.

or a different conclusion might have been reached," or the court hesitates before saying there is sufficient." Some positive, affirmative evidence in support of a judgment for plaintiff must appear in order to warrant an affirmance," however, and where the verdiet or finding is clearly unsupported by the evidence," or is manifestly against its weight," or the evidence is uncontradicted," or there is such a lack of evidence in its support as to lead to the conclusion that it is manifestly wrong," or is manifestly arbitrary and dictated by prejudice," or cannot be accounted for on rational theories," or is for an amount so excessive," verdict clearly excessive for the injury received, injuries and sufferings being the only questions submitted to the jury," or inadequate," as to show passion or prejudice," or where it appears that the jury must have been moved by seemingly equitable influences, instead of weighing the evidence under the rules of law given them, their verdict will be set aside." To justify setting a verdict aside as contrary to the evidence it must convincingly, and indubitably appear to be so." A mere preponderance of evidence against the verdict will not reverse," nor will findings" or a verdict be set aside for a mere conflict," but to justify reversal, the verdict must want the support of evidence sufficient to maintain it."

An award of punitive damages, when allowable, will not be set aside as excessive." A judgment will not be reversed, in the absence of prejudicial error, merely because the damages awarded by the jury seem too large," the damages being

clustems of law are correct. Kansas City, aside, there being no evidence in the record etc., K. Co. v. Southern Jr. Co., 151 Mo. 275, to show that it was not reality. Watson v. 52 S. W. 265, 45 L. R. A. 280, 47 Am. St. Rep. 481, 47 Am. St. Rep. 481, 47 Am. St. Rep. 481, 47 Am. St. Rep. 481, 47 Am. St. Rep. 482, 47 Am. St. Rep. 483, 484, 485; Webb City Lumber Co. v. Victor Min. 481, 486, 487 Am. St. Rep. 484, 488, 489, 490, 491, 492, 493, 494, 495, 496, 497, 498, 499, 500, 515, 525, 535, 54, 556, 560, 571, 572, 573, 574, 575, 576, 577, 578, 579, 580, 581, 582, 583, 584, 585, 586, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 597, 598, 599, 600, 611, 620, 631, 64, 651, 667, 670, 681, 690, 601, 691, 602, 611, 603, 612, 613, 622, 634, 64, 652, 666, 671, 682, 683, 692, 693, 604, 605, 614, 615, 616, 617, 618, 622, 635, 636, 64, 653, 667, 672, 684, 685, 694, 695, 606, 617, 618, 637, 638, 640, 641, 654, 655, 666, 673, 674, 675, 686, 687, 696, 697, 608, 698, 699, 700, 710, 721, 737, 740, 751, 766, 778, 781, 790, 701, 702, 703, 704, 705, 706, 707, 711, 737, 741, 752, 767, 779, 782, 791, 792, 793, 794, 795, 796, 797, 798, 799, 800, 81, 82, 83, 84, 85, 86, 870, 88, 89, 901, 84, 86, 88, 89, 91, 87, 88, 89, 92, 80, 81, 83, 85, 89, 81, 84, 86, 89, 82, 84, 87, 88, 89, 80, 82, 85, 86, 87, 89, 81, 88, 89, 80, 83, 87, 3 Cur. Law. **APPEAI AND REVIEW SS 13F 2.** 275 within the range of the testimony,\*\*${}^{59}$ **and not so great as to shock the judicial sense of right and justice,**${}^{59}$ **or induce the belief that they are the result of passion, prejudice, or corruption,**${}^{60}$ **there being nothing to show that the jury acted recklessly or unjustly.**${}^{61}$ **Where the excessiveness of a verdict has been cured by remititur below, the judgment based thereon will not be reversed on the ground that the passion and prejudice discovered by the amount of the verdict must also have affected the finding as to liability.**${}^{62}$ **In Utah, the supreme court cannot review the evidence to determine whether or not the damages are excessive.**${}^{63}$ **The supreme court of South Carolina cannot grant new trials because of excessive damages,**${}^{64}$ **and mere excessiveness alone is not ground for new trial in Kansas, in the absence of passion or prejudice.**${}^{65}$ **It will be presumed, in the absence of any showing to the contrary, that the jury, in assessing damages, followed the instructions of the court,**${}^{66}$ **and because a jury in a fire insurance case returned a verdict for a much smaller sum than he claimed, it will not be assumed that they found his claim fraudulent, entitling defendant to a judgment notwithstanding the verdict.**${}^{67}$ **All favorable inferences legitimately arising from the evidence will be indulged in favor of the verdict**${}^{68}$ **or findings,**${}^{69}$ **and evidence allowed to go in generally without objection will, in support thereof, be deemed evidence in the case.**${}^{70}$ **The findings of a chancellor in a common law action will be as favorably regarded as the verdict of a properly instructed jury,**${}^{71}$ **and in contested election cases, the court adopts the findings of the triers of the facts, if supported by substantial evidence.**${}^{72}$ **Where on trial to the court, the finding is supported by sufficient competent evidence, it will be presumed that incompetent evidence, though admitted, was disregarded,**${}^{73}$ **unless it appears that the determination in some degree at least was based thereon.**${}^{74}$ **In Virginia, on appeal from a judgment in a case tried without a jury, where it is contended that the decision is contrary to the evidence the appellant will be considered as admitting the truth of his adversaries' evidence, and all just inferences therefrom, and as waiving his own evidence which conflicts therewith, and all inferences from his own evidence, though not in conflict with his adversaries',**${}^{75}$ \*\*by Utah Light & Power Co., 26 Utah, 157, 72 P. 497. **68.** **Socurity Ins. Co. v. Thornton \[C. C. A.\]** \*\*P. 497. \*\*69. **68.** \*\*Dick v. Zimmerman, 105 Ill. App. 615. **69.** **68.** \*\*Rose v. Mesmer, 142 Cal. 322, 76 P. 206 Ill. 34, 69 N. E. 36: Marquette & S. E. R. **505.** **C. v.** **Lonsyzer \[Mich\], 94 N. W. 60.** **Per-** **70.** **Horwitz v.** **Reinert, 64 N. Y. S. 254;** **Healey v.** \*\*Patterson \[Towal\] 98 N. W. 576. **71.** **Suit against** **sheriff for taking insufficient** **for** **theoming bond.** **Edwards-Barn-** \*\*and Co. v. Plamz, 24 Ky. L. R. 2296, 73 S. W. 2001, 1018. **72.** **Donnell v.** \*\*Lee, 101 Mo. App. 191, 73 S. V. 297. **81.** **82.** **Donnell v.** \*\*Lee, 101 Mo. App. 191, 73 S. V. 297. **83.** **Fayman Horse Co. v.** **Bivens \[Neb.\]** **Metropolium R. Co. v. Macfarland, 20 App. 96 N. W. 621;** **Fillen v.** **Heinze, 28 Mont. 548.** **D. C. 431.** **Personal injury case.** **Parks v.** **73 P. 123;** \*\*Saevens V. Costello \[Arriz.\] T P. St. Louis & S. R. Co. \[Mo.\] T 8 W. 70. **89.** **Hunter v.** **Guth \[Colo. Appl.\] T 98 N. W. 98:** **Hunter v.** **Guth \[Colo. Appl.\] T 98 N. W. 98:** **Hunter v.** **Guth \[Colo. Appl.\] T 98 N. W. 98:** **Hunter v.** \*\*Jencks \[ 276 APPEAL AND REVIEW $ 13F 2. 3 Cur. Law. which do not necessarily result therefrom.76 A statutory provision that not more than one new trial shall be granted to the same party in the same case on the weight of the evidence has no application to courts of review.76

_Review as affected by the character of the evidence.77--A verdict of a jury, on conflicting evidence, will not be disturbed unless clearly wrong,78 the jury having been properly instructed,79 though the court may entertain a different view than that of the jury as to the preponderance of the proof,76 the jury and not the court_

75. Parsons v. Maury & Maury, 101 Va. 616, 44 S. E. 768.

- 3 Cur. Law. **APPEAL AND REVIEW S 13F 2.** 277 being charged with the duty of passing on the weight of the evidence." Findings by a referee, sustained by the trial court, the evidence being in conflict," and a finding of the trial court without a jury on both law and facts will be treated as the verdict of a properly instructed jury," and sustained if there is any competent testimony to support it," though the appellate court is not entirely satisfied therewith," especially where the court bases his belief in the credibility of the witnesses on their demeanor," unless contrary to the overwhelming preponderance of the evidence," or the court was influenced by prejudice," misconceived the

$1. Hutchinson v. Gorman, 71 Ark. 305, 73 76 S. W. 1086; Louisville & N. R. Co, v. S. W. 193. Brooks, 28 Ky. L. R. 1307, 77 S. W. 693; **S2.** Snapualmi Realty Co. v. Moynthan Chapin v. Stathuth, 102 Mo. App. 289, 76 \[Mo.\] 78 S. W. 1014.

$8. Alls v. Hall \[Conn.\] 66 A. 637; In re 1047; Golden v. Tyer \[Mo.\] 79 S. W. 143; Murphy's Estate, 21 Pa. Super. Ct. 884; Peter- **Boyce v.** Royal Circle \[Mo. App.\] 79 S. W. von v. Wolf \[Neb.\] 95 N. W. 332; Gaffrey v. 495; Storrie v. Shaw \[Tex. Civ. App.\] 76 S. Northwestern Mut. Life Ins. Co. \[Neb.\] 98 N. W. 596; Gammel Book Co. v. Ben C. Jones & N. W. 826; Monmouth Potitery Co. v. White Co. \[Tex. Civ. App.\] 78 N. W. 21. Motion for \[Utah\] 75 P. 622; Planetary' Bank & Trust \[Nucl.\] 67 P. 68. W. 331; v. Dutcher & Sons \[Neb.\] 93 N. W. 1049. McCord v. Hill, 117 Wis. 306, 94 N. W. 66; **Whether transaction was a loan or a pur- **Kelley v.** Shay 26 Pa. 215, 55 A. 927; Helmee chase of future unearned pay. Yan Vechten v. Butte & B. Consol. Min. Co. \[C. C. A.\] 126 v. McGuire \[N. J. Law\] 66 A. 128. Finding F. 1; Slekhil v. Abbott, 184 Mass, 145, 68 N. E. that a severe benefits land to the amount of 37; O'Brien v. Collins, 205 Pa. 651, 55 A. 832; the assessment, and that the assessment is **McIntosh v.** Price \[C. C. A.\] 121 F. 716; Moore **V.** Moore \[C. C. A.\] 121 F. 737; Dawson County of New Haven \[Conn.\] 65 A. 679. Relation- **Nat.** Bank v.** Oldfather \[Neb.\] 93 N. W. 1127; ship of juror to party-motion for new trial. **Bolt v.** Becker \[Neb.\] 95 N. W. 509; Murray **Gelst v.** Rapp, 206 Pa. 41, 55 A. 1063. Esh- **v.** Vaughan \[Neb.\] 95 N. W. 607; Sutton Nat. **Rablishment of highway by prescription. **Bank v.** Silver \[Neb.\] 95 N. W. 804; Peter- **Postal v.** Martin \[Neb.\] 96 N. W. 8. Finding son v. Peterson's Estate \[Neb.\] 95 N. W. 1054; Foley v. Doyle \[Neb.\] 95 N. W. 1067; son \[Neb.\] 95 N. W. 704. Judgment on mo- **Buck v.** Oldeman \[Neb.\] 96 N. W. 117; Sul- **Ilivan Sav.** Inst. v.** Sharp \[Neb.\] 96 N. W. 852; **S22; Holt v.** Rust-Owen Lumber Co. \[Neb.\] 96 N. W. 96 N. W. 613; Pardee v.\*\* Nelson \[Neb.\] 96 N. W. 630; Dunton v. Dawley \[Iowa\] 98 N. W. 907; Neal v. Heeging \[Iowa\] 98 N. W. 603; Wantz **69 N. E. 641. Assignment that court erred v.** Squires \[Neb.\] 97 N. W. 1058; Brown v.\*\* On finding that one of two judgments used **Cone,** 80 App. Div.\*\* 418, 81 N. Y. 89; Health man v.\*\* Field 81 App. Div. 526, 81 N. Y. S. 239; Levy v. Zasuly, 84 N. Y. S.

278APEAL AND REVIEW $ 13F 2. 3 Cur. Law. issues," or committed some error in reaching its conclusion entitling appellant to a new trial." The presumption in favor of the correctness of the court's decision upon the weight of the evidence will be overcome only when there is a clear preponderance of evidence against it." If the evidence is all in writing, the findings of the trial court are not conclusive," but where a view is had by the jury," or the trial judge has examined the premises in question, the verdict or findings will not be disturbed unless it clearly appears that error has been committed." Where there is undisputed evidence supporting the verdict, it cannot be set aside," and a verdict based partly on oral evidence in which there is a conflict cannot be disturbed, though the evidence in its support be incredible;" but a verdict will not be sustained on a mere scintilla of evidence, it being flagrantly against the weight thereof." Where the evidence is such that a verdict for either party would have to be sustained, instructions incorrectly defining the rights of the parties cannot be considered harmless." Evidence is conflicting within this rule as well when the testimony of a single witness is contradicted by circumstances and by statements elicited from him on cross-examination, as when it is disclosed by the conflicting testimony of several witnesses," and incompetent testimony received without objection becomes evidence in the case." A motion at the close of the evidence by the plaintiff for a directed verdict, and by the defendant for a dismissal of the complaint, amounts to a submission of questions of fact to the judge." The determination of the police commissioner on the trial of a police officer for improper conduct, on conflicting evidence, will not be disturbed." The decision of the board of review of assessments, honestly made on conflicting evidence, is treated like a verdict of a jury, and is not reviewable." The trial court will be presumed to have resolved a conflict in the evidence as to probative facts essential to be found to support the ultimate fact, in such a manner as to sustain the general finding." Where the evidence conflicts, it will be presumed on appeal in support of the judgment below that a road to private premises was located as the law directs." In Washington, findings of fact by the trial court are not conclusive, but the appeal court must weigh the testimony, and this is especially true where a large portion of it is by deposition;" some weight, however, will be given the conclusions

89. Platte Valley Irr. Co. v. Central Trust Co. (Colo.) 75 P. 391. 90. Head v. Selleck \[Conn.\] 57 A. 281. 91. Finding that alleged incompetent was incapable of managing property. In De Dan- 1948. 140 Cal. 335, 73 P. 1053. 91. Dodson v. Crocker \[S. D.\] 94 N. V. 391. 92. Colorado Dry Goods Co. v. W. P. Dunn Co. (Colo. App.) 11 P. 837; Wheeler v. Mineral Farm Consol. Min. Co., 31 Colo. 110, 71 P. 1101. 93. Spohr v. City of Chicago, 206 Ill. 441, 69 N. E. 515. Damages in condemnation proceedings. Illinois, I. & M. R. Co. v. Hui- 2018. 11. 1069 8 N. E. 830; Detroit & T. Shore Line R. Co. v. Hall \[Michel.\] 94 N. V. 1068. 94. Question whether street improvement is necessary and reasonable. Wells v. City of Chicago, 202 Ill. 448, 66 N. E. 1056. 95. State Mott. Ins. Co. v. Latourette, 71 Ark. 242, 74 A. W. 300. 96. Dodd v. Guiseff, 100 Mo. App. 311, 73 S. W. 804. 97. 98. 99. 1068. 94. Question whether street improvement is necessary and reasonable. Wells v. City of Chicago, 202 Ill. 448, 66 N. E. 1056. 98. State Mott. Ins. Co. v. Latourette, 71 Ark. 242, 74 A. W. 300. 96. Dodd v. Guiseff, 100 Mo. App. 311, 73 S. W. 804. 97. 98. 99. 106. 99. 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.

3 Cur. Law. APPEAL AND REVIEW SS 13F 2. 279 of the trial court who saw the witnesses and heard them testify,\* and the findings sustained where the court cannot say that the evidence clearly preponderates against them.\*

_Effect of approval by the trial judge._\*\*10--\*\*A verdict on questions of fact approved by the trial judge will not usually be disturbed,**11** unless the evidence is overwhelmingly against it,**12** or error is manifest,**14** the same respect being paid to his decision in this as on any other matter of fact,**14** and since in denying a motion for a new trial the court necessarily decides that the verdict is not the result of passion or prejudice, the judgment will not be reversed on appeal on that ground.**15** Where a verdict is clearly wrong and excessive, it will be set aside in pursuance of the appellate court's superintending control over inferior courts, though the trial judge has refused a new trial.**16** Where a peremptory instruction for defendant is refused, the court on appeal from a judgment for plaintiff will not weigh the evidence, but will only inquire whether there is sufficient to support the verdict.**17** A finding on a disputed question of fact tried on ex parte afflavits will not be reviewed unless manifestly against the weight of the evidence.**18**

_Effect of two trials below._\*\*16--\*\*Where a case has been tried by a jury, with the same result, and their conclusion twice approved by a trial judge, it will not be disturbed in the absence of anything appearing in the record which would have a tendency to influence them improperly,**20** though the appellate court may deem that the evidence preponderates the other way,**21** and where three trials have been had, all determined the same way, the verdict should be deemed conclusive in the absence of material error, or a showing of passion, partiality or prejudice.**22** A strong case is necessary to warrant reversal for error in awarding a new trial, where the second trial resulted adversely to the first.**23** Where the difference between three successive divisions of land by commissioners in partition is slight, the third one will not be set aside.**24**

8. National Bank of Commerce v. Cook, 31 Wash. 477, 71 P. 1094; Cochran v. Yoho \[Vwash.\] 76 P. 816. 9. Funk v. Hensler, 31 Wash. 528, 72 P. 102; American Bridge Co. v. Robinson, 31 Wash. 407, 71 P. 1099. Parties only testify. \[N. M.\] 72 P. 171. 119. 119. 119. 119. 119. 119. 119. 119. 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. 198. 199. 200. 210. 221. 231. 24. 24. 25. 26. 27. 28. 290. 231. 25. 28. 291. 201. 232. 292. 293. 294. 295. 296. 297. 298. 299. 299. 300. 311. 32. 297. 298. 299. 31. 33. 34. 35. 36. 37. 38. 39. 39. 31. 34. 36. 38. 39. 32. 33. 34. 36. 38. 39. 33. 34. 38. 35. 38. 39. 34. 39. 35. 39. 36. 39. 37. 39. 38. 39. 39.

280 APPEAL AND REVIEW SS 13F 2. 8 Cur. Law.

_Effect of theory of facts on which judgment is based._"8--A verdict cannot be sustained on a theory contrary to that upon which the case was submitted.${}^{26}$

\_In equitable proceedings.${}^{27}$--The findings and decree of a court of equity${}^{28}$ and findings of fact by the trial judge approved by the court in banc,${}^{29}$ or by a master, confirmed by the court below,${}^{20}$ or by a commissioner, the evidence being in conflict,${}^{21}$ will not be set aside, unless clearly erroneous or against the clear proponderance of the evidence,${}^{22}$ especially where the hearing was in open court and the witnesses numerous,${}^{28}$ the chancellor seeing and hearing the witnesses being in a better position to judge of their credibility,${}^{24}$ though the chancellor has submitted the case to a jury for an advisory verdict,${}^{28}$ and part of the evidence is in the form of depositions;${}^{28}$ but where the evidence before the trial court was entirely written, and relates to matters as to which the trial court is in no better position to reach a correct solution than the appellate court, the rule has no application, and the appellate court should be governed by its own conclusion as to the weight of the evidence.${}^{27}$ Findings of fact in equity cases are not conclusive on appeal in the Fed-

24. Garth's Guardian v. Thompson, 24 Ky.

Stoddard, 105 Ill. App. 510; Big Creek Gap L. R. 1961, 72 S. W. 782.

Coal & Iron Co. v. American Loan & Trust 25. See 1 Curr. L. 185.

Co. \[C. C. A.\] 127 F. 625; Blackwell v. McC-

26. Cook v. American E. C. & Schultze

Munch \[S. C.\] 46 S. E. 477; Calvary engrict Gumppowder Co. \[N. J. Law\] 56 A. 114. An

Church v. Dart \[S. C.\] 47 S. E. 66.

Pind-

applemant will not be allowed to complain

ings by register. Noble v. Gillikian, 194 Ala.

that a case was decided upon a theory in 61, 83 S. So. 861. Geununessess of signature which he acquessed. Shrevev v. Caldwell

and acknowledgment of deed. Duncan v.

\[Michel.\] 97 N. W. 764.

Duncan, 293 Ill. 461, 97 N. E. 763. That

27. See 1 Curr. L. 185.

presumption that mortgage on which Interest

28. Manhattan Life Ins. Co. v. Wright

\[S. C. A.\] 126 F. 82; Kenny County Com's

rebutted. Lancaster v. Flowers \[Pa.\] 57 A.

v. Irvine \[C. C. A.\] 126 F. 839; Alla v. Hall

\[Connl.\] 56 A. 647; Power v. Allen \[Ne.\]

\[S. N.\] 81. Lusk v. Pelter & Co., 101 Va. 780, 45

94 N. W. 632; Raston v. Harrington \[Neb.\]

34 N. W. 606; Eckmann v. Turner \[Neb.\] 94

35. Idaho Min. & Milli. Co. v. Davis \[C. C.

N. W. 625; Springer v. Chicago Real

& T. C., 202 Ill. 17, 66 N. E. 850; Terry v.

Faveto \[Neb.\] 95 N. W. 383; Provident Life & E., 850; Baumgartner v. Bradt, 207 Ill. 346.

Truss Co. v. Dennis \[Neb.\] 95 N. W. 861;

67 S. N. E. 912; Pennsylvania Co. v. Ohio River

First Nat. Banv, v. Murray \[Neb.\] 95 K. W. 87;

1123; Byers v. Byers \[Pa.\] 87 A. 62; Colbert

reallination Co. v. Wightman, 105 Ill. App. v. Moore \[Mass.\] 10 N. E. 83; Ginn v.

68; Siesson v. O'Connor \[Neb.\] 95 N. W. 60;

69; Nasoner \[Mass.\] 10 N. E. 83; Ginn v. Van der Aa v. Van Drunen, 208 Ill. 108, 70

Cannon, 119 64. 74, 46 S. E. 631; Shibley v.

Stacev, 83 W. Va. 292, 44 A. 240; McDowell, 24 Ky. L. R. 2940; T. S. W. 904.

904, 76 S. W. 640. Finding that fraud was

v. McDowell, 2 3 Cur. Law. APPEAL AND REVIEW SS 13F 2.

eral courts, notwithstanding the statute providing that appeals shall be subject to the same rules, regulations and restrictions as writs of error,\[88\] and the appeal court will examine the record and come to its own conclusions,\[89\] notwithstanding the findings of the master have been approved by the court below.\[40\] In Indiana, by express provision of the statute, the appellate court, in all cases not triple by a jury, will consider the evidence and determine its sufficiency,\[41\] and a like rule obtains in several states on appeals in equity,\[42\] even where the witnesses were examined in the presence of the trial court;\[48\] and where a consideration of the entire record satisfies the court that the trial court reached a wrong conclusion, the decree will be reversed,\[44\] though owing to the trial court's opportunity to observe the witnesses,\[46\] the chancellor's findings will be disturbed with reluctance.\[48\] Under this rule, findings of a register, though disallowed or modified by the chancellor, come before the supreme court attended by the same presumption of correctness that waited on them before the chancellor.\[47\] In Kentucky, the court of appeals is not authorized to pass on the correctness of a final judgment granting a divorce,\[48\] and the decree of the chancellor refusing a divorce will be given great weight, and only reversed where manifestly wrong.\[49\] Likewise the award of custody of children in such case will be sustained, where sustained by the preponderance of the evidence.\[59\] A decree for defendant in divorce on conflicting evidence will not be disturbed unless clearly wrong.\[61\] Though on appeal in equity the court reviews the evidence, it will defer somewhat to the opinion of the chancellor.\[82\]

_Proceedings before referees or auditors.\[83\]_--Findings of a referee,\[54\] or an auditing judge,\[58\] or an auditor, confirmed by the court below,\[56\] will not be disturbed except in clear cases, especially where submitted on oral testimony, in which case findings will be treated as the verdict of a jury.\[57\] A finding based on a statutory presumption after the repeal of the statute will be reversed.\[58\] Where the trial

113: Michigan Trust Co. v. Red Cloud \[Neb.\] 684. Fraud. New England Loan & T. Co. v. Browne, 117 Mo. 412, 76 S. W. 954.

88. New. St. 1012. Hendryx v. Perkins \[C. C. A.\] 123 F. 268.

01. Juneau Ferry & Nav. Co. v. Alaska 8.

01. Co. \[C. C. A.\] 121 F. 356.

01. Juneau Ferry & Nav. Co. v. Alaska 8.

01. Co. \[C. C. A.\] 121 F. 356.

01. Juneau Ferry & Nav. Co. v. Alaska 8.

01. Co. \[C. C. A.\] 121 F. 356.

01. Juneau Ferry & Nav. Co. v.

- court strikes out a material finding supported by the testimony, its judgment will be reversed.59

(SS 13) _G. Rulings and decisions on intermediate appeals.69--Findings of fact in the state court are conclusive on the supreme court of the United States.61 Error in the admission of evidence at the trial not complained of on error in the circuit court of appeals will not be reviewed by the supreme court on error to the latter court.62_

Footnote 8 Cur. Law. APPEAL AND REVIEW SS 13G. 288

include every ultimate material fact on which the rights of the parties, depend,"\* and should be of the ultimate, not the mere evidentiary facts,"1 nor of mere legal conclusions." The judgment of the appellate court in such case is conclusive as to the facts thus recited," but not as to legal conclusions inserted therein,"\* the supreme court being authorized to review as to the law arising out of such facts." In cases tried to the court and not directly appealable, the supreme court can review only as to questions of law arising on the pleadings, evidence, etc., where no written propositions of law were requested." The certificate of the appellate court presents no question for consideration unless the record shows questions of law to be passed upon."

The unanimous decision of the appellate division of the supreme court of New York that there is evidence to support a finding of fact is not reviewable in the court of appeals,"8 and an un-unanimous affirmance is binding if supported by some evidence;" but the grant," though not the refusal," of a nonsuit, is reviewable as to all questions in the case. Where the decision of the trial court does not separately state the facts found, and the order of the appellate division does not state that the reversal is upon a question of fact, it will be presumed that all facts warranted by the evidence and necessary to support the judgment are found by the trial court." Where the order of the appellate division does not state that the reversal was on a question of fact, the court of appeals will presume that it was on the law." Where the appellate division grants a new trial on questions of fact, the court of appeals cannot review even rulings duly excepted to if there was a question of fact involved." Where the appellate division reverses on the law the manded for retral, and no facts are re- 7%. Hogan V. Chicago & A. R. Co., 202 cited, it will be presumed that the appellate III. 206, 66 N. N. 1070; Supple v. Agnew, 202 court found the facte the same as the trial III. 351, 66 N. N. 106; Martin V. Martin, court, and that no cause of action was 202 III. 382, 67 N. E. 1; Norwayway V. Thurninish shown. Norway V. Thurninish Ins. Co., 204 63 Ih. 254, 68 N. E. 551. Chil-III. 234, 68 N. E. 561. Compare Seymour V. , engo M. Smith, 204 711, 356, 68 N. E. 395; O. S. Richardson Feuling Co., 205 III. 77, 68 Iyrin V. Northwestern Nat. Life Ins. Co., 207 N. E. 716. Opinion of appellate court can- III. 531, 69 N. E. 824, not be resorted to for facts, judgment only 76. Alton V. Foster, 207 11. 150, 69 N. E. 782, 67 N. E. 1. See 130 Curr. L. 139, 88. 78.

79. Martin V. Martin, 202 III. 382, 67 N. E. 1; Nowlin V. Hall (Tex.) 73 S. W. 806. See 78. In Granacher's VIII, 114 N. Y. 504, 1 Curr. L. 188, N. 75.

01. Martin V. Martin, 202 III. 582, 67 N. N. 114, 67 N. E. 216. Appellate where assessment of tax was affirmed after trial de novo. 179, 68 N. E. 399; Maneyav V. Eyres (Tex. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. Clv. C.lv. Clv. Clv. C.lv. Clv. C.lv. Clv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv. C.lv.. C.lv. C.lv. C.lv.. C.lv. C.lv.. C.lv.. C.lv.. C.lv.. C.lv.. C..lv. C..lv. C...lv. C...lv. C..................................................

## 10 Appendix and review 13g.

### 10.1 85. A reversal on the law with be reversed

In the absence of any such error, Dunlap & Co. v. Twelbach Gas

Co. v. Young, 174 N. Y. 327, 66 N. E. 964.

86. Yollkommer v. Cody, 177 N. Y. 124,

01. Dunlap & Co. v. Young, 174 N. Y. 327,

68 N. E. 964; People v. Foremes, 175 N. Y. 114,

67 N. E. 216; Crooks v. People's Nat. Bank, 177 N. Y. 68, 89 N. E. 228. See 1 Curr. L. 188,

88. Spies v. National City Bank, 174 N. Y. 222, 66 N. E. 736.

01. Westerfield v. Rogers, 174 N. Y. 230,

66 N. E. 813.

90. Crooks v. People's Nat. Bank, 177 N. Y. 68, 69 N. E. 228.

01. New York Cent., etc., R. Co. v. Auturn Interurban Elee. R. Co. \[N. Y.\] 70 N. E. 117.

01. McGonigle v. Keating, 84 N. Y. S. 477; Freedman v. Dickinson, 85 N. Y. S. 335; 3 Cur. Law. APPEAL AND REVIEW $ 13H.

matter necessarily involved in the adjudication on the former appeal will be re-examined4 in the same case, though in an independent subsequent case the court may depart from a rule or principle it may have announced.5 That the rule laid down has been modified in the interim by other cases is immaterial.6 All questions raised by the record and necessarily involved in the decision are settled, though not touched upon in the opinion.7 Matters not necessarily passed upon,8 or questions which might have been but were not determined on the former appeal are not settled,9 neither are questions not reviewed because not properly presented for review. If the petition fails to state a cause of action, it may be attacked after remand regardless of the number of times the case has been before the appellate court.10 Where upon the former appeal the court did not render a judgment determining the rights of the parties, the decision does not bind.11 The rule does not apply to language not necessary to a decision of the case,12 nor to mere expressions of opinion as to matters not involved in the decision, nor to questions referred to by intimation only and not determined.18 Propositions of law on which the court were equally divided are not settled,14 and a pro-forma affirmance in the nature of a dismissal, resulting from failure to properly present

State v. Board of Com'rs \[Ind.\] 68 N. E. 295; \[necessary facts omitted from the bill, but on Schmid v. Frankfort \[Mleh.\] 96 N. W. 1056; \[subsequent appeal no further information Jones v. People's State Bank \[Ind.\] 69 was shown. Dietrich v. Hutchinson, 75 Vt. N. E. 468; Stell v. Lovins \[C. C. A.\] 120 F. 389, 56 A. 6. That plaintiff made case for 806; Merrell v. Van Camp \[Neb.\] 96 N. W. 1979. Fitzgerald v. City of Benton Harbor 617; Born v. Home Ins. Co., 120 Iowa, 299, \[Mich.\] 94 N. W. 186; Lewis v. Upton, 90 94 N. W. 849; McCord v. Hill, 117 Wi, 306, 94 N. W. 857. Facts only 94 N. W. 66; Cincinnati, etc., R. Co. v. Wa-

Inferable from evidence on first trial, con-bash R. Co. \[Ind.\] 70 N. E. 256; Tampa WA-

clearly established on second. Wellhann textbooks Co. v. Tampa \[Fris.\] 38 R. 174; \[v. National Wheel Co. \[Mich.\] 98 N. W. Collins v. Sherwood, 53 W. Va. 346, 4 A. B. 1003. In the absence of a showing of additional evidence on retrial, it will be pre-

457; Gray Tie & Lumber Co. v. Farmers'

band, 24 KY. L. R. 2819, 74 S. W. 174; Webb

sumed there was none. Senior v. Anderson, v. Porter, 25 KY. L. R. 174, 76 S. W. 363; 182 C. 176, 72 P. 349. See I Curr. L. 190, n. State v. Stuart, 102 Mo. App. 36, 74 S. W. 452; Booth & Co., Bethel, 25 K. X. R. 1747, 4. Connecticut Trust & Safe Deposit Co.

78 S. W. 868; Mensing Brog, & Co. v. Card-

v. Fletcher \[Neb.\] 96 N. W. 888; Edney v. well \[Tex. Civ. App.\] 76 S. W. 347. Suff-

baum \[Neb.\] 97 N. W. 262. Amount found cleency of judgment on which execution was

due under pleadings and evidence is conclu-

issued. Wilt v. Porter, 113 N. Y. Gia, 68 N.

the case concludes nothing \[16\]. A second appeal brings up only the proceedings of the lower court on the mandatc sent down in the prior appeal, and no question decided on the prior appeal can be considered \[16\]. Where the appellate court holds that plaintiff's evidence was sufficient to go to the jury, a verdict in his favor on the same evidence on retrial will not be disturbed on the sufficiency of the evidence, \[17\] but such decision does not necessarily require a decision in plaintiff's favor, and where the court sitting as a jury finds against plaintiff on retrial, his decision will not be disturbed \[18\]. On the other hand, a verdict for plaintiff on evidence that has once been determined insufficient will be set aside \[19\]. Where the validity of a patent has been sustained in the appellate court, its decision is binding on a lower court, in a suit involving the same patent, as to all matters before the court in the prior case, whether discussed in the opinion or not \[20\]. Where in an action for a personal injury against two defendants, the jury are instructed that one or both are liable, and instructed to find which, a reversal of a judgment on a verdict finding one liable and exonerating the other does not necessarily determine that the other is liable, but an appeal from the judgment in his favor will be determined on the evidence on which it was founded, irrespective of the other appeal \[21\]. The supreme court of the United States will revise the decision that a territorial court made on a second writ of error, though the territorial court considered itself bound by its decision on the prior writ, the prior decision not being reviewable in the supreme court for lack of finality \[22\]. A decree entered in strict accordance with the mandate on a prior appeal will be affirmed on motion \[23\]. An attempt by a substituted party on second appeal to raise a constitutional question, which in the prior appeal it was decided his predecessor was in no position to raise, must fail \[24\]. On proceedings in error after a retrial ordered by the court of appeals in Kansas, the supreme court will review the questions decided on the previous appeal, where they are of great public importance, and the decision below raises a conflict in the law \[25\]. The decision on appeal from an order continuing an injunction against trespass until the hearing of the trespass case is not binding on appeal in the trespass case \[26\]. A dismissal of an appeal concludes all questions raised by the motion \[27\].

## 14 Provisional, ancillary, and interlocutory relief \[28\]

Where an order appointing a receiver was appealed to the supreme court and affirmed, and pending that appeal the main case was decided and appealed to the appellate court, the latter court will not enjoin possession by the receiver pending its decision \[29\].

## 15 Decision and determination

A. Affirmance or reversal \[30\]

Errors which do not prejudice appellant \[31\], or are not substantial, do not warrant a rc-

15. Revering v. Smith, 121 Iowa, 607, 96 N. W., 1110.

01. Montgomery County v. Cochran \[C. C. 22, U. S. V. Denver & R. G. R. Co., 191 U. A.J 126 F. 456.

01. Fitzgerald v. City of Benton Harbor

01. Motion to dispense with printing rec-

01. Motion to dispense with printing rec-

01. M. McIntyre, 20 App. D. C. etc., R. Co. \[Iowa\] 93 N. W. 642; Lewis v. 134.

01. M. McIntyre, 20 App. Dlv. 453, 86 N. Y. S. 397.

01. M. McIntyre, 20 App. D. C. etc., R. Co. \[Iowa\] 93 N. W. 642; Lewis v. 134.

01. M. McIntyre, 20 App. D. C. 24. Green Plains Water Co. v. Lamar

01. M. McIntyre, 2 3 Cur. Law. APPEAL AND REVIEW SS 15A. 287

versal," and statutes in some states require the court to disregard immaterial errors; 33 but if error of law be prejudicial, reversal will follow, though the result of

45x; Troy v. Brown \[B. D.\] 99 N. W. 76; Brown v. Waterbury, 75 Conn. 727, 54 A. 1006; Gamewell Fire-Alarm Telegraph Co. v. Five Tunneliffe v. Fox \[Neb.\] 94 N. W. 1032; & Police Telegraph Co., 25 Ky., L. R. 1010, Clark v. Woit \[Neb.\] 96 N. W. 455: Raminese 76 S. W. 852; Koelling v. August Gast Bank v. Dolman, 100 Mc. App. 347, 78 S. W. 917; Note & Lithographing Co. \[Mo. App.\] 77 S. Hanson v. St. Louis Transit Co., 102 Mo. W. 747; Allen v. Hazavl \[Tex. Civ. App.\]. App. 216, 71 S. W. 158. Obiechitable con- 77 S. W. 268. Error favorable to appilient. discussion of fact and law stridken out, re-Thurston's Adm'r v. Prather, 25 Ky. L. R. 1137, 71 S. W. 854. Variance between plead. that rendered. Kratz v. Cook \[Ind. App.\] 68 ing and proof prejudicial only to appilie. N. E. 689. Inacourte language of com-East Jellico Coal Co. v. Golden, 25 Ky., L. R. 2056, 79 S. W. 291. Joint tort feast has no scribed therein treated on appeal as having interest in direction of verdict for his co- , been amended to conform to proof. Whitt-defendant. Robinson v. Chicago & A. R. Co. \[Metol.\] 97 N. W. 683. Appellent cannot com- 694. Insemicency of puragraph of complaint plain of findings against another. Ambrose v. Drew, 139 Cal. 665, 73 P. 643. Failure to make finding in respect to a counterclaim 902. Subsequent admittance ethers error in partially allowed does not prejudice defend- , rejecting evidence. Pittsburgh, etc., R. Co. ant. Cutting Fruit Packing Co. v. Canty, V. McNeil \[Ind. App.\] 69 N. E. 471. Amend-141 Cal, 692, 75 P. 664. Where the only is- , went to judgment so as to provide for issue , sue is whether the note used on was deliv- , of execution. Knotts v. Crossly \[Neb.\] 95ered. a verdict generally for plaintiff, not , and . We 848. Action against makers of finding the amount of recovery, is no error note and executor claiming that tesator available to defendant. Buzanas v. Frost was surety merely, judgment determin- \[Colo. App.\] 75 P. 694. Objections to the , inflows of an amendment to defendants' petition \[Code $ 3601\]. Pratt v. Fishworld. pleas will not be considered where one of plaintiffs has been rightly nonsulted and , by Des Moines Coal & Hay Co. \[Toway\] 98 N. w. 1089. Error in , the other has obtained a verdict of which no complaint is made. Carey v. Moore, 119 W. 111. Rejection of evidence that could , not have changed result of trial in court. , the regularity of the steps taken by the court to make the officer whose re- , the severality in hirms as to them. Branson v. Bashville, C. & St. L. \[Johnson v. Bott \[Colo. App.\] 72 P. 613. FaII-R. Co., 119 Ga. 738, 46 S. B. 882. Defendants are to enter findings of fact and conclu- , of law in record affects no substantial to judgment valves it and allowed it to go right and to not ground for reversal. Kerns in favor of others. Page v. Southern Const. , Lee \[Or.\] 75 P. 140. Instructions refused, Co.. 25 Ky. L. R. 1634, 78 S. W. 878. A de- , rehandt who was served cannot object that , the judgements being seps- , in finding to require security for costs will , rate as to each defendant. In re McGee St. not cause reversal of a judgment for plaintiff \[Mo.\] 74 S. W. 933. Appellent is not prejudi. an affirmable on the merits. Good Eye MIn. dled by a conflict between an incorrect in- , 178 Kan. 510, 78 T. 102. struction given in his behalf and a correct , without regard to the theory upon which it one given for his adversary. Weston v. is based. a judgment of the trial court will , the affirmed unlenses there be material error. , Civ. G. St. Louis \[Mo.\] 79 Woodmen Aco. Ass'n v. Hamilton \[Neb.\] 97 T. B. V. 843. Instruction on exemplary damages not considered when none are awarded. , the dealin of a Sonnev v. R. Louis Transit Co. 102 Mo. App. 711, 76 S. W. 681. Error in instruments as to quotient verdicts not reviewable in

### 388 Appeal and Review $ 15A.

3 Cur. Law. the trial might have been the same without the error.\[44\] A general verdict for defendant where an invalid defense was submitted cannot be sustained.\[45\] A final decree rendered in the absence of necessary parties must be reversed and remanded in order that proper parties may be made regardless of how notice of the defect is brought to the attention of the court.\[46\] Where plaintiff fails to make out a case, a judgment rendered on verdict for defendant will be affirmed, notwithstanding errors in defendant's behalf.\[47\] A ruling correct on the merits or sustainable on a correct theory will not require reversal, though based on a wrong reason,\[48\] and a verdict supported by sufficient evidence will not be set aside because in conflict with an erroneous instruction.\[49\] A profiles reversal,\[40\] or one to permit the recovery of nominal damages,\[41\] will not be made, nor can plaintiff who is entitled to no verdict object that one in his favor is inadequate.\[42\] but a verdict for an amount unsupported by the evidence may be set aside, on defendant's appeal, though one for a larger amount would have been sustained.\[43\] A nominal judgment for a plaintiff entitled to none will be affirmed where he alone appeals, though it would have been reversed had defendant appealed.\[44\] A judgment that has been satisfied will be affirmed.\[45\] An affirmance on one party's bill in such terms as to deprive his adversary of any benefit from reversal on his independent bill will preclude consideration of the question presented thereby.\[46\]

dence, technical errors and defects not affecting the merits will be disregarded \[Laws 1902, p. 1583, v. 580, $ 226\]. Greenberg v. Anerman, $4 N. Y. S. 244.

34. Dysart v. Missouri, K. & T. R. Co. IC. C. A.\] 122 F. 223, See 1 Curr. L. 191, u. 22.

01. Herman v. Franklin, 99 Mo. App. 346,

01. S. W. 314.

01. Reger v. Gall \[W. Va.\] 48 S. B. 147.

01. Instructions. Hesselbach v. St. Louis \[Mlo.\] 78 S. W. 1099: Fehthauer v. City of St. Louis \[Mlo.\] 77 S. W. 843. Claim against state not shown, errors in evidence and instructions not considered. Hunicke v. Thomas' Estate, 102 Mo. App. 139, 76 S. W. 659. See 1 Curr. L. 191, u. 28.

01. Where it appears that a motion for new trial dismissed for delay in Hling the engrossed bill of exceptions should have been denied on the merits, the dismissal will be affirmed. Gabrih v. Lowe, 142 Cal. 295,

76 P. 831. Error in failing to compel a witness to answer a question objected to on the ground of privilege is not reversible where the answer is Indianapolis as evidence. Bullard v. Smith, 28 Mont. 387,

72 P. 161.

89. Collins v. George \[Va.\] 48 S. E. 684.

Disregard by jury of erroneous instruction is harmless. Stoner v. Mau \[Vy.o\] 72 P.,

73. That the verdict is contrary to an er- roneous instruction does not require reversal.

01. Johnston v. Kleinsmith \[Tex. Civ. App.\] 17

01. W. 36. The court will not inquire as to whether instructions to jury were error-

01. A verdict for legal is made, nor can plaintiff

01.

3 Cur. Law. APPEAL AND REVIEW SS 15A.

Counsel will not be encouraged in stubborn efforts to demonstrate that rulinge upon unimportant and trifling matters of practice are erroneous.\[47\] Manifest error in submitting an issue of law to the jury will necessitate a reversal where the verdict is not responsive to the issues and it does not appear what else was submitted,\[48\] and where the damages were assessed under an invalid count, the judgment will be reversed, though the declaration contains a good count and the damages are for a sum that would be sustained under the valid count.\[49\] An incorrect assessment for street improvement will not be disturbed where appellant fails to show that his assessment would be materially less under a correct apportionment.\[50\] Where both parties bring error and establish it by the record, reversal must follow.\[51\] Decision may be had by agreement.\[52\] A void judgment cannot be reversed in Kentucky before a motion to set it aside has been made and overruled below.\[58\]

Where a party has committed a defect or default in proceedings, a pro forma affirmance may be made without consideration of the merits,\[54\] as where pleadings necessary to a determination of the issues are not in the record and are beyond the reach of the court,\[58\] and affirmance follows where the alleged statement of facts is stricken from the files and no issue is presented on the record proper;\[59\] so where there is no real dispute.\[57\] An application for affirmance on the ground of failure to perfect the appeal will be denied where not preceded by the proper statutory steps,\[58\] and where the appellant on being granted an appeal on terms makes no move to comply, a presentation of the record for affirmance is unnecessary, as the judgment below stands.\[59\] In Texas, failure of appellant to file briefs below is not ground for affirmance on certificate.\[60\] Appellee may not have an

47. Cordill v. Minnesota Elevator Co., SS 36, 76 S. W. 623. No abstract of record of evidence. Hickov v. Springfield, 208 Ill. 442, 95 N. W. 306.

01. Marquilles v. Goldstein, SS 15 N. Y. S. 28, 69 N. E. 846. Failure to perfect appeal in time \[Rev. St. 1839, 8 812\]. Long v. 49. Illinois Cent. R. Co. v. Harper \[Ldiss.\] Hawking \[Mo.\] 71 B. W. 77. Election case, 85 So. 764.

50, Barrett v. Falls City Artificial Stone county to circuit court \[Shannon's Code. 88 Co., 21 Ky. L. R. 669, 52 S. W. 947; Levi v. 4852, 4853\]. Hayes v. Kelley \[Tenn.\] 76 S. Coyne, 22 Ky. L. R. 493, 58 F. W. 790; Barber W. 591. Failure of record to show that as-Asphalat Pav. Co. v. Gazn. 24 Ky. L. R. 2227, 73 S. W. 78. 1166; Zender v. Barberh Asphalat Pav. Co., 24 Ky. L. R. 227, 74 S. W. 201; Schuster v. 527. No question presented by record. Mc-Barber Asphalat Pav. Co., 24 Ky. L. R. 2346, 24 Ky. L. R. 2346, 24 Ky. L. R. 246, 24 Ky. L. R. 256; Chawk v. Beville, 21 Ky. L. R. 260. proposition urged being one that cannot be 1769, 65 S. W. 414; McBride v., 51, 95 Ky. 285, 35 S. W. 645; Snyder v. Barber An-halat Pav. Co., 24 Ky. L. R. 2348, 73 S. W. 1118.

51. Kuhlman v. Cole \[Neb.l 98 N. W. 419.

01. In re Bill's Estate, 141 Cal. xviulli, 74 p. 704. Reversal in accordance with stipu-lation will be granted, though affirmance would have resulted otherwise. Monte v. L'Ancez, 28 Mont. 38, 72 P. 303. See 1 Curr. L. 192, n. 35.

01. Appeal after motion and before declination is premature \[Civ. Code Prac. $ 763\]. Lyon's Ex'x v. Logan County Bank's Assignee, 25 Ky. L. R. 1668, 78 S. W. 454.

01. Failure to furnish briefs. Turpin v. Gale \[Md.\] 57 A. 208; Davison v. Keeton \[Tex. Civ. App.\] 73 S. W. 1083. Brief Talling to comply with Rule 10, subd. 3, Larkin v. 57.

Bute & B. Consol. Min. Co., 28 Mont. 41, 72 P. 304; Knob v. Reed, 28 Mont. 42, 73 P. 304; Allen v. Reely, 28 Mont. 525, 73 P. 118; Frederick v. McMahon, 28 Mont. 263, 72 P. 620. No bill of exceptions. West v. Rich: \[Md. App.\] 71 B. W. 1001.

59. State v. Thomas \[Tenn.

290

APPEL AND REVIEW $ 15A.

3 Cur. Law.

affirmance for want of prosecution on a certificate filed after the term at which the transcript should have been presented, a writ of error having been sued out in the interim."

Failure to file briefs is tantamount to a confession of error, but reversal will not follow failure to argue a point unless necessary for the protection of the court."

An equal division of sitting and qualified judges makes an affirmance." Reversal or affirmance must be entire, unless parts of the judgment are swerable," but where a judgment consists of severable parts, there may be affirmance as to the part not affected by the error, and reversal as to the rest." A judgment bad as to one is bad as to all, and must be reversed as to all defendants, though it would have been proper against certain of them." Where in trespas to try title the judgment is in favor of intervenors, and defendants alone appeal, it will be affirmed as to plaintiffs, though reversed as to defendants and intervenors." As between appellees no change can be made in the judgment appealed from." Affirmance of an interlocutory judgment will lead to affirmance of the final decree, where no other questions are presented." On reversal, appellee will be adjudged to repay money he has received on the judgment, with legal interest." Where a judgment in a creditor's action to compel an executor to sell real estate to pay debts is reversed, the defendant is entitled to a restitution of the property and an accounting for mesne profits, notwithstanding a new trial was ordered."

_Reversal on terms."--The court cannot, on reversing a judgment for plaintiff in slander, put defendant on terms by which the judgment will stand as security for any judgment rendered on retrial, though the original defendant has deceased pending appeal, and reversal will abate the suit."_

ing grounds to failure to file record on ap-

cesful as to a part only, though all should peal. Gulf, C. & S. F. R. Co. v. Hall (Tex.) have been recovered, the judgment may be

City. Appl. 17 & S. W. 590.

affirmed in so far as it is correct, and re-

61. Western Union Tel. Co. v. Wofford

versed and remanded as to the other matters.

\[Tex. City. Appl.\] 72 & S. W. 620.

\[62. Irvin v. Wohnville Co-operative Tel.\], E. 230.

63. One defendant having valid personal

01. State v. Sunage Dam Co. \[N. EL\] 55

defense included in general judgment against

A. 899: Com. Title, Ins. & Trust Co. v. Coleman, 205 Pa. 535, & E. 820; Gibbs V. Seibot,

\[63. De 205 Ill. 77, 68 N. E. 716. Where a

118 Vins. 145, 33 N. V. 1091; Curral of Gerour.

party not served and not appearing was

gia K. Co. v. Wallace, 119 Ga. 238, 46 N.

E. 87. See I Curr. 12, 19, a. 39.

64. Seymour v. Richardson Peeling Co.,

\[68. Irvin v. Wohn 3 Cur. Law. 291

APPEAL AND REVIEW SS 15B. 291

(SS 15) _B. Transfers and removals, and certifications or reservations._''--The circuit court of appeals will certify a question as to the jurisdiction of the circuit court to the supreme court, and meanwhile reserve the other questions in the case.'' An appeal to the wrong court, in Missouri, will be transferred by that court suo motu to the court having jurisdiction.'' And in case of an erroneous transfer by the court of appeals the supreme court will return the cause to that court.'' Where a case is appealed, in Indiana, to the supreme court on a constitutional question, the action of that court in transferring the case to the appellate court, which is without jurisdiction of such questions, in effect decides such question adversely to the appellant.''

(SS 15) _C. Remand or final determination._''--Final determination may be given'' if the pleadings show conclusively that plaintiff in error is entitled to judgment,'' or if no different or more favorable result can be reached on new trial;'' but if any material fact or right is in doubt,'' or the interests of justice require it,'' or if there be evidence tending to make a case or defense, though

74. See I Curr. L. 192. 1

full amount of counterclockwise ignoring direc-75. Sun Printing & Pub. Ass''n v. Edwards \[C. A. 121 F. S26. 76. Reed V. Culp \[Mo. App.\] 74 S. W. 422; App.\] 74 P. S58. Judgment against prin-Dennison V. Keasley \[Mo. App.\] 78 S. W. 423; cipal and agent who was also suriety. Re-1041; Jackson V. Binnicker \[Mo.\] 77 S. W. 40. 174 S. W. 424. 174. Porter v. Kansas City & Northern Connecting R. Co., 175 Mo. 96, 74 S. W. 992; trial court changes a special finding of the villien v. McAllister \[Mo.\] 77 S. W. 730. 178. Jurfshtein concluded by transfer. 387, because contrary to the undispated 'Frank Bird Transfer Co. v. Krug, 30 Ind. 30. 174. 602, 66 N. E. 809. 174. See I Curr. L. 193. 193, 194 S. W. 80. Where the trial court committed no error in the rejection of evidence, and the fact that a general replication has been filed to determine the case on its merits, the court will do so and direct a proper judge--remanded for decision as though no degree ment without remanding the case to the lower court. Echelos v. Tracewell, SS2 31 Vash. 266, 71 P. 1020. Where judgment cannot be awarded in an election contest on the pleadings is entered for plaintiff on where the trial court has found that election the overruling of a demurter to the comn-offecors were guilty of wilful malenoduct. plaint and refusal to pleard further, it is dis- and it is not shown, and cannot be deter-retionary with the supreme court on affirm-mind, how much or in what way the vote \[Mo. App.\] 78, 74 P. 491. Prior to the amendment \[Mo. App.\] 78, 74 P. 491. Prior to the amendment \[Mo. App.\] 78, 74 P. 491. 1920 in New York, where the trial court counterclaim is pleaded to both of them entered it decision in the short form, the appellate division was required to review all second cause of action is founded, and on questions of fact and law and grant such the trial orders are entered setting aside the judgment to either party as the facts war-verted on the first cause of action as in-rated, without ordering a new trial \[Code\] adequate. de Graysing defendant's motion to set Civ. Proc. 1023 as amended by Laws 1903, aside the verdict on the second cause, and c. S6, P. 237\]. Multivs v. Price, 91 App. Div. 480, 88 N. W. 480. 481. Story v. Robertson \[Neb.\] 98 N. W. 482. 174. 174.

the weight be against it,"" or where the reversal is not based upon findings or a verdict," or where the verdict or findings on which the judgment is based are not supported by the evidence," a remand for a new trial is necessary." Where the appellate court of Illinois reverses a case tried to a jury, for an error of law, it should remand it for a new trial." Where an equitable proceeding is erroneously brought before the clerk and appealed to the superior court, that court will be permitted to retain jurisdiction and make all necessary orders, and to that end the case will be redocked in that court." Remand will not be made on reversal of judgment for plaintiff on the ground that defendant owed him no legal duty," or where plaintiff could not recover in any event." Remand will not be made in a chancery case on account of newly discovered evidence which is merely cumulative." Where the issues are numerous, and the trial involved much time and expense, a retrial as to all will not be granted, on the ground that the finding on an unimportant issue is not sustained by the evidence." On appeal from a decree of specific performance for complainant after the improper sustaining of a demurrer to the cross bill, final decree for specific performance cannot be entered, but the case must be remanded for issue on the cross bill." The appellate court of Illinois may reverse without remanding, on the ground that the weight of evidence did not authorize the verdict, and in such case the facts found will conclude the supreme court, but it may inquire into the law arising out of such facts."

_Judgment may be modified,"_ if everything necessary to advise the court in so doing is before it," or the facts admitted and the judgment as modified, af-

was unsatisfactory, instead of entering or

**90. Smith v. Gudger, 133 N. C. 627, 45 S.**

directing a new decree, the appellate court

**91. Sykes v. St. Louis & S. E. R. Co. \[Mo.\]**

**92. Contributory negligence. Gulf, etc., R.**

**93. C. V. Matthews \[Tex. Civ. App.\] 74 S. W.**

**94. S. W.**

**95. Schmill v. Frankfort \[Mich.\] 96 N. W.**

**96. N. W.**

**97. Where the judgment appealed from**

**98. W.**

**99. Where plaintiff's testimony would not**

\*\*99.

3 Cur. Law. APPEAL AND REVIEW $ 15C. 293

firmed;\*\* but remititur cannot be ordered where the facts necessary to a decision are not before the court,1 and the evidence may be different on a new trial,2 nor where the court is not authorized to find the facts.3 Clerical errors,4 and errors in computation may be corrected.5 It cannot be modified in favor of a party not appealing,6 and judgment for an amount greater than that recovered below cannot be awarded on appellee's cross assignment, though the proof is clear.7 Where in conversion, possession and damages are both awarded, and there is no basis for the former, the judgment cannot be modified by eliminating the provision for possession, since the damages are presumptively for detention and not value.8 On appeal from a circuit court to a circuit court of appeals by one of several attorneys from an order allowing them compensation out of a trust fund, the court is not limited to a redivision of the total amount awarded them, but may increase or decrease the allowance of the appellant without disturbing the others, or may increase or decrease the total allowance and redivide it as seems equi-table.8 Where a case has been tried to the court and conclusions of fact filed, the judgment can be reformed on appeal, and such judgment rendered as the record shows should have been rendered.10 Where the supreme court of Missouri declines jurisdiction on the ground that the constitutional question was not properly raised below, the court of appeals will, notwithstanding that decision, relieve appellant from that portion of the judgment founded on the unconstitutional11 statute, the case being clear.

\_Remand with directions.13-Judgment may be ordered for appellee on reversal, if all facts necessary to a determination of the party's rights are before the court.18 On an appeal from a judgment on the judgment roll alone, a finding that nothing was due defendant on his cross complaint will prevent the direction claimed by defendant, may be corrected on receiver, the decree will be modified only to appeal without remanding. Johnson v. Fluetsch, 176 Mo. 452, 76 S. W. 1005. A de-ere erroneously divesting defendant's wife Annuity & Trust Co. v. Bedford Coal & Iron of all title to certain land fraudulently con- Co., 20 Pa. Super. Ct. 304. See 1 Curr. L. vaged may be corrected by modification in 194, n. 78.

respect to her door. Bradshaw v. Haiplin \[Mo.\] 79 S. W. 686. See 1 Curr. L. 194, n. 71.

99. Personal judgment for deficiency against defendant not personally liable. Levy v. La Fountain, 81 App. Div. 636, 81 N. Y. B. 327.

01. Glidden v. Cowen \[C. C. A.\] 123 F. 48.

01. Jackson v. Jernigan \[Tex. Civ. App.\] pellee may be made. Blackwell v. Hatch, 13 Okl, 169, 73 P. 933. See 1 Curr. L. 194, n. 71.

01. Johnson v. City of Albany, 86 App. Div. 667, 83 N. Y. B. 1002. Age of parent necessary to determine amount of award for death of non. Robbins v. North Jersey St. R. Co. \[N. J. Law\] 67 A. 262. See 1 Curr. L. 194, n. 72.

01. Hall v. State, 92 App. Div. 94, 87 N. Y. B. 338.

01. Appellate divusion. Small v. Burke, 86 N. Y. B. 1066.

01. Cierical error in amount of judgment. Poerachke v. Horowitz, 84 App. Div. 44, 82

01. N. Y. B. 1742. A electrical error in the Judge-ment which may be corrected by the plead-ings and evidence will not necessitate a re- versal. Erroneous numbering of survey in question. Adkinson v. Porter \[Tex. Civ. App.\] 13 S. W. 42.

01. Error in calculating interest. Dils v. Hatcher, 25 Ky. L. R. 891, 76 S. W. 514.

01. Where one only of the bondholders objects to the amount allowed a trustee and 294 APPELANDREVIEWSS15C. 3 Cur. Law.

of judgment in his favor.14 Remand with leave to amend may be made in a proper case,15 and where a judgment sustaining a demurrer to the declaration on general and special grounds was general, but on appeal is sustained only on a special ground which is amendable, plaintiff will be allowed to amend before the judgment of the supreme court is made the judgment of the court below.16 In case issues of fact necessary to the determination of the cause are not passed upon at the trial, but the testimony is full and convincing, the appellate court will find the facts and direct such decree as its determination may require.17 On review of a decree denying an injunction and adjudging title and possession in defendant, where the evidence shows title in neither party, the decree will be modified so as to dismiss the bill.18 On appeal from an interlocutory decree for an injunction and an accounting, the cause will not be remanded with leave to reopen without first reversing, nor will reversal be granted for that purpose, but on proper application the appeal will be dismissed without prejudice, it appearing that the appelle will not be prejudiced thereby.19 Upon reversal, the question of restitution rests in the sound discretion of the court.20

\_An affirmance may be conditioned,21 on a remititur of excessive22 or illegal sums awarded,23 or on consent that the judgment be modified by striking out the objectionable relief.24 A general verdict on several items, one of which is invalid, will be affirmed on remititur of the amount of the invalid one, it being of tri-fing importance.23 Where it is impossible to segregate the damages allowed for various injuries, the admission of incompetent evidence of one of them will not be cured by a remititur.24 Judgment in slander cannot be modified by remititur where founded on error, though defendant has died pending appeal and reversal will have the effect to abate the suit.23 Where a defendant in ejectment is awarded damages to which he is not entitled, a voluntary remititur will not cure the error, but the case will be remanded with directions to dismiss the claim for damages.23 Where plaintiff within the time limited appeals from an order granting a new trial unless he will within a certain time remit part of his recovery, he cannot on appeal have a further opportunity to remit.23

(SS 15) _D. Findings, conclusions, or opinions on which decision is predicated.24_--The filing of a written opinion is discretionary,25 and is not necessary

14. Cohen v. Cohen, 141 Cal. 634, 75 P. 100. \[C. C. A.\] 124 F. 961; Monsberg v. Nutter \[C. C. A.\] 124 F. 968. 15. Where a general demurrer to a dc- \[C. A.\] 124 F. 968. 169. 169. 170. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191. 20. 192. 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. 52. 54. 57. 59. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 69. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 72. 71. 75. 79. 81. 76. 82. 77. 83. 84. 85. 86. 87. 88. 89. 81. 80. 82. 83. 84. 86. 88. 89. 82. 84. 86. 89. 83. 85. 87. 88. 89. 80. 84. 89. 85. 89. 86. 87. 89. 81. 81. 82. 84. 86. 88. 89. 80. 87. 88. 89. 81. 82. 85. 89. 81. 83. 86. 89. 82. 87. 88. 89. 80. 89. 81. 84. 89. 82. 85. 89. 81. 86. 89. 82. 87. 88. 89. 80. 89. 81. 80. 82. 88. 89. 81. 83. 84. 89. 85. 89. 86. 87. 89. 88. 89. 81. 89. 82. 89. 80. 89. 81. 80. 82. 83. 84. 89. 85. 89 3 Cur. Law. APPEAL AND REVIEW SS 15F. 295 where only a question of fact is presented.\[82\] When a lower court of appeal reverses, it should make findings or conclusions to support and explain its decision,\[33\] and where it fails to do so, a motion to return the record to the court of appeals and not mandamus is the proper remedy.\[84\] The ultimate facts which the evidence establishes are what is required, and not the evidence itself,\[88\] or a finding upon every issue presented.\[89\] (SS 15) _E. Modifying or relieving from appellate decree.\[90\]_--A formal judgment on appeal, based on voluntary appearance by the attorney of defendant in error after his death, is void and will be set aside on the facts being brought to the court's knowledge during the term.\[38\] Where plaintiff, on the sustaining of a demurrer, elects not to amend his declaration and appeals from a judgment for defendant, the appellate court after affirmance will not modify its judgment so as to allow amendment.\[90\] A remititur cannot be ordered returned for the correction of an error therein after being once sent down.\[40\] Leave given to apply for a bill of review in the court below merely lifts the bar of the appellate decree, and leaves the application to be determined below on its merits, subject to review on appeal as in other cases.\[41\] In South Dakota, there must be an order to show cause before modification will be considered on motion.\[42\] (SS 15) _F. Mandate and retrial.\[43\]_--Where the court of appeals reverses a decree for the probate of a will, the remititur is properly filed in the surrogate's court, and the order making the judgment of the court of appeals the judgment of the surrogate's court is properly entered in that court.\[44\] Decisions construing mandates are noted below.\[45\] The entire record may be considered.\[46\] A misnomer in an unnecessary recital of a party's name in the mandate will not vitiate it.\[47\] The statute of Texas providing that no mandate shall issue after more than a year after decision applies to pending cases, and a case is properly dismissed below where the mandate was not taken out for more than a year after the enactment of the statute.\[48\] Upon remand with directions, the trial court has no jurisdiction but to follow the mandate,\[49\] which it must do, or a second reversal will

31, Parker v. Atlantic Coast Line R. Co., 133 N. C. 335, 45 S. E. 658. 32. Rev. St. 1898, $ 2410. Kraniger v. Schmidt (Vils.) 98 N. W. 929. 33. III. Prac. Act. 8 88. Martin v. Martin, 1021. 383, 67 N. E. 1; Trakal v. Heusner Baking Co., 204 Ill. 179, 68 N. E. 399; Hogan v. Chicago & A. R. Co., 202 Ill. 206, 66 N. E. 65 4. 1070; Irwin v. North Western Nat. L. Inc. 106. 200 Ill. 577, 66 N. E. 386; Id., 207 Ill. 6831, 69 N. E. 824. See I Curr. L. 189, n. 88; also, 1 Curr. L. 195, n. 83. 34. Nowlin v. Hall \[Tex.) 98. V. W. 806. 355. Manney v. Eyres \[Tex. Civ.). App.\] 77 83. W. 869; Galveston, etc., R. Co. v. Cloyd (Tex. Civ. App.) 78 S. W. 43; Martin v. Martin, 202. 311. 382, 67 N. E. 1; Trakal v. Heusner Baking Co., 204 Ill. 179, 68 N. E. 399. 36. Nowlin v. Hall \[Tex.) 79 S. W. 806. 37. See 1 Curr. L. 196. 38. Ritchey v. Seeley \[Neb.) 94 N. W. 972. 39. Jackson & Sharp Co. v. Fay, 20 App. D. C. 105. 40. Carpenter v. Lewis, 66 S. C. 400, 43 S. E. 851. 41. Board of Councilmen of City of Frank-fort v. Deposst Bank (C. A.) 124 F. 18. 42. Kelly v. Oksanil \[S., D.) 97 N. W. 11. 43. See I Curr. L. 196. 44. In re Hopkins' Will, 41 Misc. 83, 83 N. C. 335, 45 S. E. 658. 46. In re Hopkins' Wills, 41 Misc. 83, 83 N. C. 335, 45 S. E. 658. 47. 48. Construction of mandate on appeal from order as to priority of items on railroad personality and earnings under mortrigate and claims for labor and materials.\[48\] Open remand with directions, the trial court has no jurisdiction but to follow the mandate,\[49\] which it must do, or a second reversal will

31, Parker v. Atlantic Coast Line R. Co., 133 N. C. 335, 45 S. E. 658. 32.

296

APPEAL AND REVIEW $ 15F. 3 Cur. Law. follow. \[50\] The successful party is entitled to a judgment in accordance with the mandate, notwithstanding the intervention of new parties. \[51\] The trial court will follow the plan determined by the appellate court for the distribution of a fund. \[82\] When an order of the district court sustaining a claim of privilege by a witness in a bankruptcy case is reversed on appeal, the district court on remand properly vacates an order of the referee discharging the trustee, and requires the witness to attend for further examination. \[83\] Failure of the clerk below to make the proper entries does not deprive the court of jurisdiction to carry out the provisions of the mandate, \[54\] and the pendency in the appellate court of a second motion for rehearing is no ground for the disregard of the regular mandate to enforce the decree. \[85\] The reversal of a foreclosure judgment avoids a sale thereon. \[86\] Where, on reversal, vacation of a judicial sale is ordered on conditions, it is error for the trial court to refuse to comply with the mandate for noncompliance with the conditions without first setting a time within which compliance must be made. \[87\] Error cannot be assigned on the entry of a judgment in exact compliance with the judgment of the appellate court. \[88\] Mandamus lies to enforce obedience to the mandate. \[89\] It is not competent for the circuit court to amend or correct the mandate. \[90\] Where a case is remanded with directions, the correctness of the decision is not open to question in the trial court, \[91\] and any error in the remititur must be corrected by the appellate court. \[82\] The action of the lower court in making the judgment operative against the proper person as shown by the opinion, regardless of a misnomer in the mandate, is a construction, not an amendment thereof. \[88\] The reversal of a foreclosure and deficiency judgment as excessive entirely vacates it, and the trial court cannot modify it by deducting the amount adjudged excessive. \[84\] _Retrial. \[85\]_-No notice of retrial after remand is necessary where a cause once on the docket stays until disposed of, \[90\] but appellee is entitled to notice of reinstatement of the case below on return of the mandate, after a delay of four years after reversal. \[91\] Failure for more than a year to prosecute an action after reversal and remand will necessitate its dismissal. \[92\] A general reversal of the findings and judgment of the trial court leaves the cause, except as to matters adjudicated on the appeal, in all respects as though no trial had ever been had, \[93\] and except that a new trial is necessary, \[94\] reinvests the trial court with discretion to proceed as justice may require. \[95\] On reversal \[96\] **50.** Direction as to placing on calendar \[97\] below after amendment. Diebold v. Walter, \[98\] **51.** McBride v. Whitaker \[99\] **52.** McBride v. Whitaker \[99\] **53.** McBride v. Whitaker \[99\] **54.** McBride v. Whitaker \[99\] **55.** McBride v.\*\* Whitaker \[99\] **56.** McBride v.\*\* Whitaker \[99\] **57.** McBride v.\*\* Whitaker \[99\] **58.** McBride v.

8 Cur. Law. APPEAL AND REVIEW SS 15F. 297 of a judgment rendered on the third successive verdiet for plaintiff, the retrial was limited to the amount of recovery.\[12\] The decision of the appellate court stands as the law of the case on retrial in so far as the facts are the same as on the appeal.\[13\] A reversal on the ground that the evidence is not sufficient is controlling on retrial, the evidence being the same,\[14\] as is a holding that the evidence is sufficient, where the same and additional evidence is produced,\[15\] and where a judgment on directed verdiet is reversed on the ground that the issues should have been submitted to the jury, the trial court cannot set aside the verdict rendered on the second trial on substantially the same evidence.\[16\] A reversal for insufficiency of evidence to support the judgment and remand generally does not preclude the introduction of further evidence on the new trial,\[17\] and where a defect of proof on the only issue in the case is supplied by uncontradicted evidence on retrial, a verdict may be directed.\[18\] Where the appellate court holds that defendant only owed plaintiff the duty of abstention from willful or wanton injury, the question of negligence on retrial is immaterial.\[19\] After the appellate court has decided that plaintiff's complaint states a cause of action, it is only necessary to determine whether his evidence tends to support it.\[19\] Where an equity decree for plaintiff is reversed with leave to amend, nothing is binding on the trial court except that the pleadings and evidence on the first trial did not authorize the decree.\[17\] On retrial, after reversal, it must be assumed that a question presented but not discussed by the appellate court was decided adversely to appellee.\[18\] Upon new trial after the reversal of a decree for the probate of a will the proponent must prove anew the making of the will.\[19\] A pro forma affirmance for defects in the record concludes the trial court on all questions that might have been reviewed by a proper bill of exceptions.\[19\] Unless restricted by mandate, amendments may be allowed in the court below,\[19\] but a motion to amend by introducing a defense and counterclaim previously denied because of laches will not be granted,\[19\] and defendant cannot plead

428. Upon remand without direction, the trial court may act in any way consistent \[17\] App. Div. 612, 82 N. Y. S. 855. with the opinion of the appellate tribunal, \[18\], \[19\], \[20\], \[21\], \[22\], \[23\], \[24\], \[25\], \[26\], \[27\], \[28\], \[29\], \[30\], \[31\], \[32\], \[33\], \[34\], \[35\], \[36\], \[37\], \[38\], \[39\], \[40\], \[41\], \[42\], \[43\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[50\], \[51\], \[52\], \[53\], \[54\], \[55\], \[56\], \[57\], \[58\], \[59\], \[60\], \[61\], \[62\], \[63\], \[64\], \[65\], \[66\], \[67\], \[68\], \[69\], \[70\], \[71\], \[72\], \[73\], \[74\], \[75\], \[76\], \[77\], \[78\], \[79\], \[80\], \[81\], \[82\], \[83\], \[84\], \[85\], \[86\], \[87\], \[88\], \[89\], \[90\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[90\], \[91\], \[93\], \[95\], \[97\], \[98\], \[99\], \[99\], \[90\], \[91\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[91\], \[92\], \[94\], \[95\], \[97\], \[98\], \[99\], \[99\], \[99\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[99\], \[99\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[99\], \[99\], \[99\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[99\], \[99\], \[99\], \[99\], \[99\], \[99\], \[99\], on the trial after reversal of an order opening default which called forth an amendment of the petition which was not material.\[87\] The action is properly dismissed below where the judgment of the court of appeals leaves no ground of recovery and plaintiff does not amend.\[88\] Where, on affirmance of a judgment for plaintiff on the overruling of a demurrer to the complaint and refusal to plead further, the court remands the case for further proceedings, it is discretionary with the trial court to allow defendant to plead further."

SS 16. \_Rehearing and relief thereon.\[60\]--A petition to rehear will not be entertained unless it appears that some material point was overlooked, or some controlling authority escaped the attention of the court, or some other weighty consideration requires it.\[91\] A time is usually provided within which rehearings must be taken or petitions filed,\[92\] but the Federal court rule to that effect is for the protection of the court and may be waived by it in a proper case.\[93\] An order staying the mandate after judgment indefinitely has the effect to retain the jurisdiction and incidentally the power to grant a rehearing, even after the term so long as the mandate has not issued.\[94\] Where the supreme court has summarily denied a certiorari to the circuit court of appeals on a petition setting up the identical issues decided in that court, the circuit court of appeals will assume that the supreme court impliedly passed on such issues and will decline to reopen the case by rehearing.\[95\] Appellee who filed no brief before the decision will not be given a rehearing to discuss the questions presented by appellant.\[96\] Rehearing will not be granted for immaterial or trivial errors,\[97\] and will be refused if the proper judgment has been rendered, even though reached by faulty reasoning.\[98\] Matters not certified by counsel as grounds will not be considered.\[99\] An alias motion to recall a mandate is not the proper remedy to take advantage of new matters affecting the merits of the controversy coming to the party's attention, since the judgment was entered.\[1\] Points not made on the original hearing will not as a rule be considered on application for rehearing,\[93\] and an omission from the statement of facts cannot be supplied by extrinsic evidence,\[9\] but a question of jurisdiction is available, though not previously raised.\[99\] Payment of a judg-

87. O'Connor v. Brucker, 117 Ga. 451, 43 S. H. T11.

SS8. Hawkins v. Nicholas County, 25 Ky.

L. R. 704, 6 S. W. 329. Where in reversing

Lisker v. O'Rourke, 28 Mont. 129, 72 P. 416, 1 C. R. 704, 6 S. W. 329. Where in reversing

Lisker v. O'Rourke, 28 Mont. 129, 72 P. 416, 1 C. R. 705, 1 C. R. 716, 1 C. R. 720, 1 C. R. 735, 1 C. R. 74, 6 S. W. 329. Where in reversing

T55. School Dist. of Omaha v. McDonald

of the complaint was not error because Im material, but on rehearing directs that the

99. Rule S (39 S. E. x). Kerr v. Hicks,

amendment be permitted, it is in effect de-

clided that the amendment is necessary to

1. Melecd v. Lloyd \[Or.\] 16 P. 702.

plaintiff cause of action and dismissal be-

low is proper if he refuse to amend. Norris

Safe & Lock Co. v. Clark \[Wash.\] 74 P.

1019.

SS8. McLeod v. Lloyd, 48 Or. 260, 74 P.

491.

001. See 1 Curr. L. 198.

001. Elmore v. Sebaord Air. Line R. Co.

132 N. C. 865, 44 S. E. 620.

92. A motion to recall a remitttur not made within the time limited will be denied where no sufficient excuse is shown. In re

Sanford's Estate, 138 Cal. xtx, 73 P. 466.

93. Burget v. Robinson \[C C. A.\] 123 P.

01. Burget v. Robinson \[C. C. A.\] 123 P.

01. Burget v. Robinson \[C. C. A.\] 123 P.

01. Town of Crown Point v. Thompson.

11 Ind. App. 201, 67 N. E. 565.

97. Though an appeal should have been dismissed instead of affirmed, the judgment will not be reposed to correct such error.

Lisker v. O'Rourke, 28 Mont. 129, 72 P. 416, 1 C. R. 704, 6 S. W. 329. Where in reversing

156. School Dist. of Omaha v. McDonald

001. No. V. 584.

001. Rule S (39 S. E. x). Kerr v. Hicks,

132 N. C. 175, 46 S. E. 529.

160. McLeod v. Lloyd \[Or.\] 16 P. 702.

001. Stephens v. Duckett, 111 La. 97

## 8 Cur. Law. Appeal and Review SS 17.

ment on affirmance thereof does not prevent rehearing and final reversal. A rehearing after affirmance will not be awarded on appellee's affidavit that he should not have recovered below.\* Rehearing on appeal in a habeas corpus case will be dismissed where, since affirmance, the prisoner has been released on bail.\* On rehearing, the cause will be considered as though no former decision had been made,\* and inconsistency with arguments advanced on the hearing will not prevent appellant advancing a sound argument.\* A judgment establishing the existence of a right in one of the parties is admissible as evidence of that right, though a rehearing is pending on appeal therefrom.\[10\]

SS 17. _Liability on bonds and the like._\*\*11--\*\*Principal and sureties are liable, though appeal was taken under a void statute, where the court assumed jurisdiction without objection and affirmed the judgment.\[11\] One who gives a supersedeas bond to hold in force pending proceedings in error an attachment or garnishment discharged by order of court, cannot be heard in defense of a suit on such bond to say that defendant to whom it was given had no interest in the property, or that the proceedings were irregular.\[18\] A supersedeas bond may be reformed in equity.\[14\]

_External of liability._\*\*15--\*\*A bond superseding execution directed against specific property will not cover rents, damages, profits and taxes allowed by the appellant to accumulate on the property pending the appeal.\[16\] Where a land contract is foreclosed and a time for performance set, a bond on appeal from that decree conditioned to pay for use and occupation of the premises, in case of affirmance, creates a liability for use and occupation only for the time subsequent to the date set for performance.\[17\] On appeal by creditors of an estate from an order settling the account of trustee, a claimant filing a cross appeal cannot on affirmance recover interest on the amount allowed him, as against the obligees on the appeal bond.\[18\]

_Satisfaction and discharge of sureties._\*\*10--\**As between principal and surety, the approval of the bond by the proper officer is immaterial.* Satisfaction of a judgment in an unlawful detainer suit for restitution of premises and rent does not release liability on the appeal bond, conditioned for payment of rents pending the appeal.\[19\]

_Forfeiture and enforcement._\*\*22--\*\*A bond conditioned to "abide the judgment if the same shall be affirmed and pay the costs" is broken if the judgment be affirmed and not paid.\[23\] One who successfully attacks an appeal undertaking is estopped from subsequently contending for its validity.\[24\] That defendant in

sidered only on appeal from judgment, not on appeal from order denying new trial, ther than to make a complete statutory bond Sharp v. Bowtie \[Cal.\] 76 P. 62.

5. Pike, Morgan & Co. v. Vatten, 25 Ky. L. R. 1264, 78 S. W. 187.

1. Should be presented to lower court as ground for motion for new trial. Grubbs v. Pence, 26 Ky. L. R. 170, 74 S. W. 709.

1. Ex parte Wulfon \[Tex. Cr. App.\] 74 S. W. 814.

1. Van Auken v. Mizner \[Neb.\] 97 N. W. 834.

1. City of Louisville v. Wehmoff, 25 Ky. L. R. 1294, 79 S. W. 201.

1. Salt Lake City v. Salt Lake City Water & Electrical Power Co., 25 Utah, 466, 71 P. 1069.

1. See 1 Curr. L. 198.

1. McVey v. Peddie \[Neb.\] 96 N. W. 166.

1. Metcalf v. Bockoven, 1 Neb. Unoff. 822, 96 N. W. 406.

300

APPEL AND REVIEW SS 17. 3 Cur. Law.

error procured an order that additional sureties be furnished within ten days or the bond be stricken from the files, which were never furnished, is no defense to an action on the bond after affirmance.\[25\] The petition must allege that a supersedeas was issued by the clerk following the execution of the bond.\[26\] A petition alleging that the judgment was affirmed and is unpaid fails to allege a breach of a bond conditioned to pay "whatever judgment may be rendered on dismissal or trial" of the appeal.\[27\]

\_Judgment.\[28\]--\_Where the suit is on a special tax bill, which is no personal debt against the owner, a personal judgment against him or the surety on his appeal bond cannot be rendered.\[29\]

APPEAANCE.

SS 1. General; Special; What Constitutes & 1. Who May Make or Enter (302). Enech (300). Appeal (301). Special Appear- & 3. Effect (302).

SS 1. _General; special; what constitutes each.\[30\] General appearance.\[81\]_--\_ Coming into court for any other purpose than to contest jurisdiction of the person is a general appearance,\[82\] even though understood and intended by the person so appearing as a special appearance.\[33\] There need be no formal filing of papers.\[84\] One contesting the question of jurisdiction of the person must confine himself strictly to that issue,\[85\] as any invocation of the powers of the court over the subject-matter waives the special appearance,\[9\] and results in submission to the juris

25, English v. Smith \[Neb.\] $5 N. W. 60. 26. Hoskins v. Southern Nat. Bank, 24 Ky. L. R. 2250, 73 S. W. 786. 27. German Nat. Bank v. Beatrice Rapid Transit & Power Co. \[Neb.\] $6 N. W. 49. 28. See L Curr. L. 201. 29. Heman Const. Co. v. Loevy \[Mo.\] $8 S. W. 613. 30. See 1 Curr. L. 201, & 1. 31. See 1 Curr. L. 201. 32. Perrine v. Knights Templars' & Maons' Life Indemmity Co. \[Neb.\] $8 N. W. 841. 33. 34. 35. 36. 37. 38. 39. 40. 41. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 51. 53. 59. 61. 54. 56. 58. 59. 62. 59. 63. 64. 65. 59. 66. 67. 68. 69. 68. 69. 60. 61. 61. 62. 63. 65. 67. 69. 61. 68. 69. 61. 63. 69. 62. 64. 66. 68. 69. 60. 62. 67. 68. 69. 61. 64. 69. 62. 65. 68. 69. 61. 67. 68. 69. 60. 63. 61. 68. 69. 62. 69. 63. 64. 66. 67. 68. 69. 61. 68. 69. 60. 64. 69. 61. 69. 62. 61. 63. 66. 61. 65. 62. 66. 67. 68. 69. 61. 68. 69. 62. 63. 67. 69. 60. 64. 68. 69. 61. 69. 62. 61. 66. 62. 63. 68. 69. 60. 61. 61. 62. 64. 66. 63. 67. 68. 69. 61. 69. 62. 63. 68. 69. 60. 61. 61. 62. 65. 63. 67. 69. 62. 64. 68. 69. 61. 66. 67. 68. 69. 62. 68. 69. 60. 61. 69. 63. 61. 69. 64. 69. 62. 65. 66. 67. 68. 69. 61. 68. 69. 60. 61. 69. 62. 61. 69. 63. 61. 69. 64. 69. 65. 66. 67. 68. 69. 61. 69. 60. 62. 61. 69. 61.

3 Cur. Law. **APPEAANCE $\\lx@sectionsign$ 1.**

diction of the court for all purposes.**\[97\] However, when the lack of personal jurisdiction is not apparent on the face of the record, the defendant may unite with his plea to the jurisdiction a defense going only to the plaintiff's right of recovery without waiving his right to insist on his plea to the jurisdiction; but the exception does not extend to affirmative relief, as a counterclaim or cross action waives the former plea.**\[88\] A subsequent general appearance does not waive the right to question in the higher court the action of the court on the question of jurisdiction.\*\*\[89\]

_Appeal._**\[40\]--As to the effect of an appeal from a judgment void for want of personal jurisdiction, the decisions are in conflict, some holding that such an appeal constitutes an appearance so that both the appellate court**\[41\] and the trial court, when the case is remanded,**\[42\] acquire jurisdiction of the person of the party appealing; others that prosecution of error from such a judgment does not constitute a general appearance in the action in which the judgment was rendered.**\[48\] The date of a voluntary appearance is to be taken as the date of the commencement of the proceedings in error, where no summons is issued.\*\*\[44\]

_Special appearance._**\[45\]--The object and only office of a special appearance is the presentation of a purely jurisdictional question.**\[46\] There may be a special appearance to move for dismissal for insufficient service of a writ,**\[47\] to have an attachment vacated,**\[48\] to file a petition for removal from a state to a Federal court,**\[49\] to have a cause remanded to a state from a Federal court,**\[50\] to plead privilege,**\[51\] or to move to quash service or to strike suggestions of damages.**\[52\] A defendant sued in a state court where, by statute, special appearances are forbidden, may appear specially in a Federal court to which the action has been transferred.\*\*\[53\]

jection. Conflict in authorities pointed out. \[only on a motion to vacate the attachment. Garrett v. Herring Furniture Co. \[S. C.\] 48 This motion being denied, the case was several times adjourned and then dismissed, neither party appearing. Subsequently the case was restored by consent of defendant's editions. \[attorneys. This consent did not constitute an appearance nor waive the question of jurisdiction. Delaney v. Bousse, 91 App. Div. 41. Taylor v. Sledge, 110 Tenn. 263, 75 S. 437, 86 N. Y. S. 880. But see Myler v. Witth. 1074. 42. Special appearance below to object to invalid service. Drew Lumber Co. v. Walter \[Fla.\] 34 So. 244. Appeal by a purchaser at a Judilial sale from an order denying a motion to set aside a resale. Wigginton v. Nehan, 25 Ky. L. R. 617, 76 S. W. 196. Appeal by plaintiff from judgment on counterclaim. plaintiff having had petition dismissed for want of jurisdiction. Louisville Tobacco Warrehouse Co. v. Gist, 25 Ky. L. R. 387, 75 S. W. 143. Bastian v. Adams \[Neb.\] 97 N. W. 231. Contra, doctrine formerly adhered to In Nebraska, said to have been overvolved in Huriburt v. Palmer, 39 Neb. 158, 77 N. W. 1019. Appellant claimed there had been no service of summons, and the question had never been passed upon. Long Branch Pier Co. v. Cross-ley, 84 N. Y. S. 227. 44. In re James' Ekstate \[Neb.\] 97 N. W. 22. 45. See i Curr. L. 201. 46. Nichols & Shepard Co. v. Baker, 13 Okl. 1, 73 P. 302; Westinghouse Air Brake Co. v. Christenson Engineering Co., 126 F. 764. Thomas v. Thomas, 98 Me. 184, 56 A. 651. 48. No service on defendant who appeared 49. 501. 51. 52. 53. 54. 55. 56. 57. 58. 59. 51. 50. 52. 54. 59. 52. 53. 54. 56. 57. 58. 59. 50. 51. 53. 59. 51. 52. 54. 59. 53. 54. 55. 56. 57. 58. 59. 51. 59. 52. 54. 59. 50. 53. 51. 54. 56. 58. 59. 51. 57. 59. 52. 58. 59. 50. 54. 59. 51. 52. 53. 54. 56. 59. 51. 53. 55. 57. 58. 59. 52. 59. 53. 54. 59. 55. 56. 57. 59. 58. 59. 59. 50. 51. 59. 51. 52. 54. 59. 51. 53. 55. 57. 59. 51. 58. 59. 52. 59. 53. 54.

302APPEARANCE $ 2.3Cur. Law.

A defendant appearing specially is a "party" to the action, entitled to costs if his motion be sustained.\[44\]

Appearance as a witness is not an appearance as a party.\[58\]

SS 2. _Who may make or enter.\[58\]_--\_Jurisdiction may be acquired by voluntary appearance in person or by attorney,\[67\] and where an attorney, authorized to enter a special appearance only, honestly pleads matters amounting to a general appearance, the client is bound by such general appearance.\[68\] A wholly unauthorized appearance by one assuming to act as attorney is of no effect, and a judgment entered thereon will be set aside upon a satisfactory showing that the appearance was unauthorized.\[59\] Authority to appear for a party will be presumed from such appearance noted on the record on appeal.\[69\] The rule permitting appearance and answer by a person wrongly served, and yet sought to be held, is to enable him to plead that he is not liable because he is not the person against whom the plaintiff's alleged claim exists.\[61\] Hence it has no application where such person is notified that no claim is made against him individually, and the plaintiff will not be compelled to accept service of notice of appearance and answer.\[62\]

SS 3. _Effect.\[63\]_--\_Voluntary general appearance makes unnecessary the service of summons,\[64\] or citation,\[65\] or notice,\[66\] and hence results in a waiver of all defects in original process,\[67\] and of the question of jurisdiction of the person,\[68\] or

64. _Motion to dismiss for insufficient serv-_

1ea. Thomas v. Thomas, 98 Me. 184, 56 A.\_

65. _Suit against a corporation and indl-_

01.

3 Cur. Law. ARBITRATION AND AWARD SS 2.303

of an objection to the venue,"" or an erroneous change of venue," and gives the court complete jurisdiction for all the purposes of the action." An objection going to the court's jurisdiction of the subject-matter is not waived by a general appearance," nor is a prior void judgment validated thereby." A general appearance waives a statute requiring, as a condition precedent to jurisdiction, that a nonresident plaintiff give security for costs." Where defendant appears personally and pleads to the jurisdiction, the entry of a general appearance by his attorney, who urges only the jurisdictional issue, will not waive the special appearance."

_Withdrawal."_--Appearance being equivalent to personal service it is error to permit a withdrawal to the prejudice of plaintiff."

**APPRETICES.**

Parties seeking to cancel an apprenticeship will be remitted to the place of contract or the domicile where the laws thereof are doubtful and disputed, and the rights involved."

**ARBITRATION AND AWARD.**

\*\*SS 1. The Remedy In General (303). $\\lx@sectionsign$ 5. The Award; Requisites, Validity and Effect (305). $\\lx@sectionsign$ 6. International Disputes (306). $\\lx@sectionsign$ 7. Statutory Arbitration Between Empirators (304). $\\lx@sectionsign$ 8. Hearing and Procedure Before Arbl- ployers and Employers (306). $\\lx@sectionsign$

Reference," submission to court on agreed facts," and arbitration under the terms of building contracts," and insurance policies," are elsewhere treated. $\\lx@sectionsign$ 1. _The remedy in general."_--Statutory arbitrations are cumulative only."\_

\*\*SS 2. The submission and agreements to submit."\_--A bona fide contention is

jections to service of process. Haseltine v. $\\lx@sectionsign$ 71. Perrine v. Knighte Templars' & Ma-Messmore \[Mo.\] 82 S. W. 115. $\\lx@sectionsign$ 83. Corman v, Stillman, 25 R. L. 55, 54 A. $\\lx@sectionsign$ 72. Chicago Union Traction Co. v. City of 934; Westinghouse Air Drake Co. v. Christen- chicago (Ill.) 70 N. E. 659; Nevill v. Heinke, son Engineering Co., 126 S. 764; Royer wheel 22 Pa. Super. Ct. 614. $\\lx@sectionsign$ 73. Void because summons Insulficient. $\\lx@sectionsign$ 86; Brand v. Brand, 25 Ky. L. R. 897, 6 S. W. Woodham v. Anderson, 32 Wash. 500, 73 P. W. 868. Unconditional appearance and ob- taining leave to answer. Harrison v. Murphy \[Mo.\] 80 S. W. 724. Appearance in court to which the cause was sent after a change of venue. Mankin v. Pennsylvania Co., 160 Ind. 447, 67 N. E. 229. Mechaniar $\\lx@sectionsign$ 74. IEEE action--nonresident builder appeared and answered, thereby submitting to jurisdiction of court. Smith v. Colloty, 63 N. J. Law, 365, 55 A. 805. Nonrefidence waived by pleading it in answer to the merits. Guentner v. $\\lx@sectionsign$ 75. American Steel Hoop Co., 25 Ky. L. R. 795, 76 S. W. 419. A nonresident who appears and answers to the merits subjects himself to the jurisdiction of the court. Cassidy v. Willis \[Tex. Civ. App.\] 78 S. W. 40. One who has appeared, without objection to the courts jurisdiction, filed an amended complaint and reply, and proceeded to trial, cannot object to the jurisdiction of the court after judg- ment. Mankin v. Pennsylvania Co., 160 Ind. 447, 67 N. E. 229. $\\lx@sectionsign$ 69. Venne in divorce. Gibbs v. Gibbs, 26 Utab, 882, 73 P. 641. $\\lx@sectionsign$ 70. And the decree rendered is not subject to collateral attack on that ground. Rodney v. Gibbs \[Mo.\] 82 S. W. 187. $\\lx@sectionsign$ 83.

**76.**: And the decree rendered is not subject to collateral attack on that ground. Rodney v. Gibbs \[Mo.\] 82 S. W. 187. $\\lx@sectionsign$ 83.

**77.**: The _A_-_A_-_A_-_A_-_A_-_A_- a sufficient basis for submission, though it is not well founded." Technical words are not required to make a binding submission," but it is not to be extended by implication beyond its plain words," or so as to include subsequent differences."

\_Who may make.--\_The United States by its attorney may be bound by an agreement to submit to arbitration." An infant cannot submit a controversy to arbitration," and an attempted submission is absolutely void." One of two joint plaintiffs may agree with defendant to arbitrate," and the award is binding on the parties so agreeing."

\_Effect.--\_The submission of subject-matter of a pending suit to arbitration displaces such pending suit." A party cannot withdraw from an agreement for arbitration after an award made."

SS 3. _The arbitrators and umpire."_--Arbitrators must be impartial and disinterested," but prior service of an arbitrator in a similar capacity does not render him incompetent, nor invalidate an award in which he joined in the absence of a showing that he was prejudiced." Designation of all the arbitrators by one party is waived by proceeding before them without objection.1

SS 4. _Hearing and procedure before arbitrators._--The arbitrators must act without unreasonable delay." They must give notice to the parties of the time and place of hearing," but a party attending," or refusing to attend," waives notice. Where an umpire is to act only in case of difference, which does not arise, his non-participation will not invalidate the award," and on the other hand unauthorized

125, 20 N. E. 713), the award is conclusive 99. Experienced appraiser for fire insur- (Thornton v. McCormick, 76 Iowa, 285, 39 N. since companies. Van Winkle v. Continental W. 692), and it is presumed that all matters Fire Ins. Co. \[V. Va.\] 47 S. E. 82. submitted were considered. Schmidt v. I. Judson v. United States \[C. C. A.\] 120 Glade, 126 Ill. 485, 18 N. E. 762; Brush v. F. 637. Fisher, 70 Mich. 469, 38 N. W. 446, and note 14 Am. St. Rep. 510. An award upon a claim 3 Am. St. Rep. 510. An award upon a claim 4 March 24 and selection of arbitrators com- 4 3 Cur. Law. ARBITRATION AND AWARD SS 5. 305 participation by the unpire must be objected to at the hearing.\* The arbitrators are bound to hear all material testimony offered by the parties,\* unless it appears to have been the intention that they act on their own knowledge.10 Equity will appraise property if arbitrators named in a contract fail to agree.11

SS 5. _The award; requisites, validity and effect.12_--The award must conform to the submission and cover all matters submitted.13 An award need not be signed by the arbitrators at the same time and place as found,14 and is not void because an unpire signs as "arbitrary."15 The authority of arbitrators terminates with the time limit specified in the agreement.16

Footnote 13: https://www.math.wisc.edu/~articles/

_Enforcement of award.17--An award which has been made a rule of court may be enforced by contempt proceedings, but a writ of fi. fa. sued out for that purpose, will upon motion be quashed.18 An agreement for arbitration will not be enforced at the instance of a party who willfully violates the contract.19 A mutual submission is a sufficient consideration to support a note given in pursuance of the award.20_

Footnote 13: https://www.math.wisc.edu/~articles/

\_Review of award.21--In the absence of statute there is no appeal.22 Every reasonable presumption is in favor of an award.22 To justify setting it aside there must be misconduct or error prejudicial to the rights of the complaining party24 clearly proved,25 errors of judgment only not being sufficient.26 After having accepted an award one cannot deny its effect as such,27 nor can he after allowing entry of judgment assert that it should not have been made a rule of court.28

Footnote 22: https://www.math.wisc.edu/~articles/

as to the others, makes a finding with one of 18. Winsor v. German Sav. & L. Soc., 31 the others as to the value of the property. Wash. 365, 72 P. 66. Before a party can Ralston v. Inmsen, 204 Pa. 588, 54 A. 365.

8. Mississippi Cotton O1 Co. v. Buster

show compliance on his part. Royals v. \[Miss.\] 36 So. 146.

9. Retusal to hear material evidence will be fatal to the award, but such evidence must be offered. Van Winkle v. Continental Fire Ins. Co. Ur. Va. 1/47 S. E. 82. A denial by 23. Jensen v. Deep Creek Farm & Live before them and offer evidence makes their award to be "award vodable." Redner v. New York Fire Ins. Co. \[Minn.\] 99 N. W. 885.

1. Experienced builders and contractors selected as arbitrators to appraise the sound value and loss upon insured property need not take evidence. Vincent v. German Ins. Co., 120 Iowa, 272, 94 N. W. 468.

1. Buildings left on land by patent Cooke v. Miller, 25 R. T. 92, 54 A. 927.

1. See 1 Curr. L. 205.

1. Jensen v. Deep Creek Farm & Live Stock Co. \[Utah\] 74 P. 427. Appraisal of only part of property destroyed. Rutter & Hendrix v. Rnaover Fire Ins. Co., 138 Ala. 302, 35 So. 33. Award of damages for creation of dam held to cover future damages. King v. Foundation Water Co., 75 Conn. 621, 55 A. 10.

1. Mississippi Cotton O1 Co. v. Buster (Miss.) 36 So. 146.

1. It appeared from the award that he was unpire. Runyon v. Rutherford(V. Va.) 47 S. E. 150.

1. Jordan v. Lobe \[Wash.\] 14 P. 817. But the fact that an award is made at a later date than that required in the agreement for arbitration does not invalidate it if the agreement further provides for meeting to be held after the date set for making the award. Booye v. Muth, 69 N. J. Law, 266, 55 A. 287.

1. See 1 Curr. L. 207.

1. Booye v. Muth, 69 N. J. Law, 266, 55 A. 287.

3 Curr. Law--20 206ARBITRATION AND AWARD SS 6. 3Cur. Law. Equity will not set aside an award where there is an adequate defense at law to an action on the award.20

An arbitrator cannot contradict an award he has signed.20

SS 6. \_International disputes.\_31--In a controversy between a foreign government and citizens of the United States an award signed by two of three members of a commission to arbitrate cannot be defeated because its commissioner resigned after the hearings were closed, where it was agreed that a majority vote should govern.82

SS 7. \_Slatutory arbitration between employers and employees.\_32

**ARGUMENT OF COUNSEL.**

**SS 1. Right of Argument (306).**

**SS 2. Opening Statements (307).**

**SS 3. Kidd, Extent, and Mode of Argument**

**SS 4. Action of Court or Counsel Curing or Comment During Trial (307).**

**SS 1. \_Right of argument.\_34--The party having the burden of proof is entitled to open and close the argument,35 unless he waives his right by allowing the other party to put in evidence,36 or loses his right to close by the other party's making no reply.37 Where both are claimants, the matter rests in the sound discretion of the court,38 which will seldom be disturbed.39 The court, by rule, may limit the length of argument,40 or forbid an attorney who has been a witness from making the consent. McLeod v. 'raham, 132 N. C. 473, but the one issue. Gerlough v. Riley, 2 48 S. E. 935.**

**SS 28. McLeod v. Graham, 132 N. C. 478, 43**

**SS 526, the plaintiff has closing argument S. E. 935.**

**SS 29. North Braddock Borough v. Corey, 205 Par. 35, 54 A. 486.**

**SS 30. Van Winkle v. Continental Fire Ins.**

**SS 40.**

**SS 41.**

**SS 42.**

**So.**

**SS 43.**

**So.**

**SS 44.**

**So.**

**SS 45.**

**So.**

**SS 46.**

**So.**

**SS 47.**

**So.**

**SS 48.**

**So.**

**SS 49.**

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**SS 49.**

**So.**
argument,\[41\] or where it has come to a decision, it may forbid argument altogether,\[42\] and whether after argument by one party the other can cut off further argument by waiving his right is within the discretion of the court.\[48\]

**SS 2.**_Opening statements.\[44\]_--In opening, counsel may state what he expects to prove,\[48\] and the nature of the defense as it appears from the record,\[48\] and though the testimony is subsequently rejected, there will be no error if he acted in good faith,\[47\] or if the court cautions the jury that his statement is not evidence.\[48\] But the making of prejudicial statements as to matters which could not legally affect the liability of the parties,\[48\] especially after an adverse ruling of the court, is highly improper,\[49\] and may necessitate a new trial.\[41\] The opening statement of counsel is not such an admission as will take the place of proof, and authorize a nonsuit.\[52\]

**SS 3.**_Kind, extent, and mode of argument or comment during trial.\[58\]_--The object of the argument is to induce proper conclusions based upon the evidence,\_

closing, was reasonable. Reagan v. St. Louis show how the prosecution terminated, there was no error, as the opening statement was not evidence. Schmitz v. Kirchan, 32 Wash. who had been a witness, should not argue a case without permission, is not in conflict with 2 Ball. Ann. Codes & St. $ 493, subd. he would show that "attentpts had been made, and witnesses spirited away," and on the burden of proof to open and close the argument by himself, or counsel, as that it the world instruct the jury to disregard right may be waved, and the rule was solitary to prevent confusion between an attorney's testimony and his argument. Voss S. $ 191.

v. Bender, 32 Wash. 565, 73 P. 697.

**42.**_Where a case is tried by the court and after the evidence is all in the court is fully satisfied as to the weight of the evil._

_dence and the law applicable to it, it may_

_deline to listen to argument of counsel, and on appeal, the question will not be on the right to argue, but whether the judge._

_ment was correct. Barnes v. Benham, 13 Okl. 652, 76 P. 1130._

**43.**_Parties had agreed that defendant should have opening and closing after defendant opened; plaintiff waved his right, and further argument was not permitted. Henry v. Dussell \[Neb.\] 99 N. W. 484._

**44.**_See 1 Curr. L. 209._

**45.**_Counsel stated that he would prove a conspiracy between petitioner and a Catholle priest to get a will favorable to a Catholle institution. O'Connell v. Dow, 182 Mass._

**SS 2.**_Opening statements.\[44\]_--In opening, counsel may state what he expects to prove,\[48\] and the nature of the defense as it appears from the record,\[48\] and though the testimony is subsequently rejected, there will be no error if he acted in good faith,\[47\] or if the court cautions the jury that his statement is not evidence.\[48\] But the making of prejudicial statements as to matters which could not legally affect the liability of the parties,\[48\] especially after an adverse ruling of the court, is highly improper,\[49\] and may necessitate a new trial.\[51\] The opening statement of that defendant knew that other accidents had occurred at the same place, but the evidence was subsequently excluded by the court, it was not prejudicial error, especially where made in good faith. Potter v. Cave \[Iowa\] 98 N. W. 569. Where plaintiff's counsel in an action for assault stated that he would prove that plaintiff was acquitated of the offense of provoking an assault, but during trial was not allowed to and counsel may use his own system of reasoning,\[54\] and must be allowed reasonable comment on the evidence and conduct of witnesses,\[55\] and indulge in oratorical flights in his endeavor to impress his views upon the jury, if he adhere to the evidence,\[56\] or he may prepare his argument beforehand, and read it.\[57\]

\_Use of pleading and other writings belonging to case.\[58\]--\_Counsel may read to the jury special interrogatories\[59\] or depositions,\[60\] or pleadings of the adverse party,\[61\] or his own pleading, when there is a question as to his claim,\[62\] though the pleadings have not been put in evidence. But to misread purposely constitutes reversible error.\[59\]

\_Statements of law and reading from decisions.\[64\]--\_The reading of legal authorities in the presence of the jury rests to a large extent in the discretion of the court.\[68\] Even the erroneous statement of the law by counsel, if properly corrected; may be harmless,\[69\] but his reading and discussing the decision of the case on a former appeal,\[67\] or the decision in a similar case,\[68\] unless it is read as an illustration, is reversible error.\[69\]

54. Counsel may advise jury as to find- error. Metropolitan R. Co. v. Loud, 20 App. Ings as to special questions submitted to D. C. 330. Where defendant in closing re- them. Chicago & A. R. Co. v. Gore, 105 III. 444. 444.

3 Cur. Law. ARGUMENT OF COUNSEL $ 3.

Comments on witnesses."Counsel in argument may make reasonable comments upon the evidence and the conduct,"1 and upon the absence of,"2 or objection to,"3 witnesses, unless privileged,"4 and the court will not scrutinize with great nicety the logical force of the argument,"5 but it will not allowoprotious epithets,"6 or facts which are not in evidence, to be used."1

Inferences."Counsel are allowed a wide latitude in making inferences, as that their client is being persecuted in a second proceeding,"7 or that there was bad faith in purchasing without inquiry,"8 but no inferences are allowed to be made on the exclusion of evidence."81

Appeals to passion, prejudice, and sympathy."2--Explanatory remarks, though containing an appeal to one's sympathy, are proper,"8 but irrelevant remarks, designed to prejudice jury,"8 or an attack on defendant's method of trying the case,"8 or an unfair challenge to produce evidence,"8 or the declaration that interrogates were entangling," or that defendant was a large corporation"8 and would not be

70. See 1 Curr. L. 210.

justice, while perhaps the evidence did not justify the inference, was not prejudicial.

II. Chicago City Ry. Co. v. Creech, 207.

II. Hariloy V. Pensylvania Fire Ins. Co. \[Minn.\]

72. Attorneys may comment on the non-production of witnesses where they are shown to be cogniant of the facts in issue, it being a mere matter of argument. Chi-cago, B. & Q. R. Co. v. Krayenbuhl \[Neb.\]

98 N. W. 44.

73. Where plaintiff in testimony had stated what his wife had said on various occasions, it was not error for defendant to offer her as witness, as plaintiff might have waived the privilege, and it was competent for jury to know of plaintiff's refusal. Zimmman v. Whiteley \[Michel.\] 85 N. W. 88.

01. It was error for defendant's counsel to comment on absence of plaintiff and his failure to testify in his suit against an executrix, where N. H. Pub. St. 1901, c. 224, $ 16, provides that in such cases neither party shall testify unless the executor elects so to testify. Wright v. Davis \[N. H.\] 57 A. 335.

01. Comments on the readiness of witnesses to testify without being summoned was allowable. Sylvester v. State, 111 Fla. 416, 35 So. 142.

01. Where counsel called witnesses of the adverse party "cattle," it was highly improper, but not prejudical error when retracted. Leslie v. Jackson & R. Traction Co. \[Mich.\] 96 N. W. 580.

01. In an action against a railroad where plaintiff's counsel in argument stated that defendant's employees would have lost their job if they had not testified as they did, it was error to refuse to sustain an objection, as there was no evidence of the fact, but on all of the evidence the judgment was affirmed. St. Louis, etc., R. Co. v. Boback, 71 Ark. 427, 75 S. W. 473. Where counsel indulged in improper criticisms of witness, and detailed an event connected with witness not in record, it was held not to have influenced verdict. City of Owensboro v. Knox's Adm'r, 25 Ky. L. R. 680, 76 S. W. 191.

01. See 1 Curr. L. 211.

01. Where a plaintiff, who had been prosecacted for murder on account of the death of a guest in a fire in his hotel, used an insurance company for the loss on account of the fire, the statement of counsel that he believed that the company had something to do with bounding him to the bar of 310 ARGUMENT OF COUNSEL $ 3. 3 Our. Law.

hurt,"88 as it had made provision for accidents,"90 and should be compelled to behave."11

_Matters outside of issues_."92--Attempts to influence jury by stating the source of the court's instructions,"93 or the effect of a verdict on the parties in another action,"94 or an admission of the other party,"95 or that the defendant had done some other wrong,"96 are prejudicial, and the statement that an insurance company was the real defendant will entitle the defendant to a new trial."11

_Matters not in evidence_."98--To refer to a compromise, or former verdict,"9 or the value of plaintiff's services, or the facts of another case,1 or to the prejudice existing in a community," or to charge a party with cheating the public," or a witness with a crime,"4 or to state the contents of a letter which the counsel is attempting.

interrogatories have been pfit to you by the ground for new trial. Benton v. Hunter, 119 defendant for the purpose of entangling you,"

Go. 381, 48 S. E. 414.

but the court on objection warned the jury to disregard, there was a fair trial. South-

fendant's counsel had said plaintiff had a era Indians R. Co. v. Davis (Ind. App.) 68 good case was improper. Witzel v. Zuel, N. E. 550.

88. Repeated appeals to jury to consider

01. In an action by a physician to recover that defendant was a large corporation, and

from a railroad for services rendered at s that the money would come from them and

wreck, it was prejudial for plaintiff's counnot ont of anybody else's pocket were im-

sel in his argument to say that defendant proper. Johnson v. Detroit & M. R. Co.

had blinded. McKnight v. Detroit & M. \[Mich.\] 97 N. W. 760. Where counsel re-

R. Co. (Michel.) 97 N. W. 772.

ferred to a request of the opposing counsel

97. Where plaintiff's counsel in examining to take the case from the jury, and stated

jurors asked if they were interested in a that the opposing party was a great cor-

certain insurance company, and then stated

poration who would resort to perjury to

that he believed that that company was de-

maintain Its cause. William V. Detroit Unit-

fending the case, and an objection was over-

ed R. \[Michel.) 100 N. W. 399.

ruled, as court stated plaintiff had a right

89. In closing, plaintiff's counsel said "I

to find this out, a new trial was ordered, as

just want to say to you. you don't have to

it was prejudial, as such fact was entire-

worry much about the verdict against defendant

by immaterial to any issue. Lipschuts v.

fendant" which was not prejudial, though

froms, 84 N. Y. S. 632. But compare Burgess

the court had excluded a question as to

v. Stowe \[Michel.) 96 N. W. 29.

whether defendant was protected by em-

98. See 1 Curr. L. 211.

ployers' liability insurance. Burgess

99. Where plaintiff's evidence of a com-

Stowe \[Michel.) 96 N. W. 29.

promise was refused, it was reversible

go. Where, in closing, plaintiff's counsel

ror for his counsel to refer to such com-

in a personal injury case stated the value of

promise in his argument, and to the fact

plaintiff's services, and the facts as to an-

that the two former verdicts were in plain-

other case, of both of which there was no

ifif's favor. Chowming v. Parker \[Mdo. App.\]

evidence, and after being corrected by the

78 S. V. 677. A remark, in closing, that an-

court, stated that defendant expected these

other court had passed on the facts and

acidents and made provisions for them, the

rendered judgment for plaintiff, was re-

judgment was affirmed with reluctance, as

versible error. Underwriters' Fire Ass'v.

the statements were designedy made to in-

Henty \[Tex. Civ. App.\] 78 S. W. 1072.

fluence the jury, but the court instructed the

1. Sweeney v. New York Cent., etc. R.

jury to disregard them. Sweeney v. New

C., 83 App. Div. 565, 81 N. Y. S. 1112.

York Cent., etc., R. Co., 83 App. Div. 565, 81 N. Y. S. 1112.

2. In an action against a town, it was

N. Y. S. 1112.

91. Counsel's advising jury that they

argument "Doubless, gentleman, you know

should by their verdict compel corporations

that you cannot get in trouble any quicker

to exercise care towards their employees

than to go to a little town and say some-

was improper, but in view of the verdict

thing against the condition of the town

had had no influence. Houston Elec. Co. v.

to some of the city officials." Davis v. Alex-

Robinson \[Tex. Civ. App.\] 76 S. W. 209.

92. See 1 Curr.

ing to introduce," or comment on the retention in their employ of a servant whose negligence had caused the injury," in the presence of the jury, is not allowable where there is no evidence as to such matters, or to pass remarks tending to convey an erroneous impression," is improper.

\_Remarks during the trial."--\_Exclamations over a witness' reply," or prejudicial remarks10 made during trial, may be error; but offers to show that a witness had wrecked the companies he was connected with," or to allow jury to take out certain papers," were allowable. An admission made during trial may not be binding where the other party is not prejudiced."

SS 4. \_Excusses for impropriety.\_14--\_The plea of inadvertence ought not to be received either as excuse or palliation." A party whose counsel provoked the improper remarks cannot complain."

SS 5. \_Objections and rulings.\_17--\_Improper argument must be objected to," and the rulings of the court, excepted to, at the time," in order to be reviewed. The decision of the trial court+ on motion for new trial will be final," unless prejudice clearly appears."

for the court on objection not to caution

allegation of actual damage, though such counsel and warn jury. Fisher v. Wefnolizer \[Mfin.\] 97 N. W. 426.

5. Though counsel in arguing the admissibility of a certain letter, which was

South Carolina & G. E. R. Co., 66 S. C.

actually incompetent, stated its contents

542, 45 S. E. 84.

before the jury, there was no reversal, as

the court properly warned the jury, and the

verdict was justified by the evidence. Con-

noily v. Brooklyn Heights R. Co., 86 App. Div. 245, 83 N. Y. 837.

6. Hinchman v. Perez Marquette R. Co.,

1. (Mich.) 99 N. W. 277.

where a new trial was refused.

7. That an inspection would show that a horse was not violous, the jury not having

marked that plaintiff, who conducted a pri-inspected the horse. Hinchman v. Perez Marquette R. Co. \[Mich.\] 99 N. W. 277.

same business churches were, plaintiff can-

8. See 1 Curr. L. 212.

1. Any prejudice from counsel's saying

characterized this as vile and sacreligione

"The idea that a man has owned a farm

thirty years, and he does not know how

stble for abortions and murders. Sterling

many acres there is," was removed by de-

derndant explaining that it bordered on a

14. See 1 Curr. L. 213, and see Saving

lake and was fractional. Gould v. Gregory

\[Mich.\] 95 N. W. 314.

18. Jenkins v. Chism, 25 Ky., L. R. 736,

01. Where defendant asked plaintiff's at-

76 S. W. 405. Where language of counsel

torney to admit that the conductor was

was first called to attention of court by killed in the same accident and plaintiff's

afflavtions on motion for nev trial, and no

attorney replied "There is no question about

objection taken, or ruling obtained at the

that, and it fs a fact the railroad settled

time, there is nothing to review. Chicago,

with the widow afterward," it was prejudi-

etc., R. Co. V. Krasrubul \[Neb.\] 98 N. W.

clal. Greenfield v. Detroit & M. R. Co.

44. Where plaintiff's counsel in closing In-

\[Mich.\] 95 N. W. 546.

11. Where, on cross-examination of an

the court at request of defendant to instruct

expert after objection to hts being asked

the jury in reference thereto. Drumm-Flato

what had become of an institution where he

got his experience, counsel offered to show

81 S. W. 503.

that the company was wrecked by his man-

18. Where, on appellant's objection, the

agement, and so of every one with which

be had been connected, it was not cause

instructed jury to disregard them, and

for reversal. Allington & Curtis Mifsc. Co.

bellant did not except to ruling, he cannot

v. Detroit Reduction Co. \[Mich.\] 95 N. W.

compain because of remarks. Internation-

552.

001. An offer to court to allow jury to

78 S. W. 562. It is sufficient diligence that

take certain papers in evidence out with

objection is made and exception taken with-

them not cause for reversal, when court

out interrupting the argument. Texas Cent.

below did not regard it as prejudial, and

It was apparently made in good faith. Raw-

765.

001. Wheare plaintiff's counsel in reply to

001. Objectionable remarks by counsel are

\[Neb.\] 95 N. W. 792.

13. Where plaintiff's counsel in reply to

motion for new trial, and could not be so

question admitted complaint contained no prejudial as to constitute reversible error.

312 ARGUMENT OF COUNSEL $ 6. 3 Cur. Law.

**SS 6.**_Action of court or counsel curing objection._\[22\]--The error in the use of objectionable language by counsel may be cured by his withdrawal of it,\[28\] and by the action of the court,\[24\] where the rebuke and warning to disregard is prompt,\[25\] and the verdict not unjust,\[26\] as the jury will not be presumed to have disregarded the warning,\[27\] unless it was not sufficiently pointed;\[28\] but improper argument is not cured by an instruction to disregard it,\[29\] nor by the action of the court in admonishing counsel.\[30\]

**AREST AND BINDING OVER.**

**SS 1.**_Occasion or Necessity for Warrant_\*\* **SS 5.**\_Making Arrest and Keeping and Disgested of Prisoner (316).\*\*

**SS 2.**\_Privilege from Arrest (314).\*\*

**SS 6.**\_Preliminary Hearing, Binding Over, or Discharge (317).\*\*

**SS 7.**_Custody Awaiting Indictment or Trial_\*\* **SS 4.**\_The Warrant and Its Issumnee (315).\*\*

**SS 1.**_Occasion or necessity for warrant._\[31\]--In the absence of an empowering statute peace officers have no authority to arrest for a misdemeanor without process,

James McNoll & Bro. Co. v. Crucible Steel

**SS 27.**\_Where plaintiff's counsel remarked that defendant's counsel had said plaintiff had a good case, but the court immediately rebuled the counsel and instructed the jury to disregard them, the court will not pre-sume that the jury disregarded the intrue-tions. Vitzel v. Zuel, 90 Minn. 340, 96 N. W. 1124.\*\*

**SS 28.**\_Where counsel in an action against a railroad stated that "there never was a railroad company used, what it made out a perfect defense." though he withdrew it on court's stating it improper, there was prejudial error, where the court told sufficiently pointed. Chicago, R. I. & T. R. counsel withdrew it. International & G. N. R. Co. v. Meeves (Tex. Civ. App.) 76 S. W. 219.\*\*

**SS 30.**_Wearely_ **SS 31.**

**SS 32.**\_Sweeney v. New York Cent., etc., R. Co., 83 App. Div. 565, 81 N. Y. S. 1112; International, etc., R. Co. v. Mercer (Tex. Civ. App.) 78 S. W. 565. Though a new trial was demanded. Southern Indiana R. Co. v. Davis \[Ind. App.\] 69 N. E. 650. Where attention of the court was called, argument not supported by the evidence, and the jury was told to disregard such improper statement. Weeks v. Schaerer (C. C. A.) 119 N. 533. Immediate objection, and jury promptly told to diaregard, nothing prejudial said. No error. Chicago, etc., R. Co. v. Zapp, 209 Ill. 339, 70 N. E. 623. Exception to objectionable remarks made during examination of witnesses was prompted by sustained and the jury directed to disregard them. Thompson v. Purdy (Or.) 77 P. 113.\*\*

**SS 25.**\_Where,after an improper remark, judge immediately ensured attorney and instructed jury to disregard, the judgment will not be reversed therefore. Greenfield v. Detroit & M. R. Co. \[Mich.\] 96 N. W. 646. When counsel in their zeal depart from the record, a sharp and prompt rebuke from the judge will ordinarily cure the error. Brown v. Silver \[Neb.\] 96 N. W. 281. Where counsel asked improper question to why a witness was not present, the error was corrected where court instructed jury not to consider anything as to witness' presence or absence. International & G. N. R. Co. v. Anchonda \[Tex. Civ. App.\] 76 S. W. 567.\*\*

**SS 26.**_Connolly_ **V. Brooklyn Helights R. Co., 86 App. Div. 458 N. Y. S. 833.**

**SS 37.**\_Where plaintiff's counsel remarked that defendant's counsel had said plaintiff had a good case, but the court immediately rebuled the counsel and instructed the jury to disregard them, the court will not pre-sume that the jury disregarded the intrue-tions. Vitzel v. Zuel, 90 Minn. 340, 96 N. W. 1124.\*\*

**SS 28.**\_Where counsel in an action against a railroad stated that "there never was a railroad company used, what it made out a perfect defense." though he withdrew it on court's stating it improper, there was prejudial error, as the rebuke was not sufficiently pointed. Chicago, R. I. & T. R. Co. v. Musick (Tex. Civ. App.) 76 S. W. 219.\*\*

**SS 38.**\_The court must use sufficiently emphatic language to destroy any impressions resulting. Lew v. St. Louis Transit Co. \[Mo. App.\] 80 S. W. 273.\*\*

**SS 29.**_Inflammatory and damaging statements not found in the evidence. Benoit v. New York & H. R. Co., 87 N. Y. S. 891._

**SS 30.**\_Hillman v. Detroit United R. \[Mich.\] 100 N.

## 3 Cur. Law.

**AREST AND BINDING OVER SS 1.**

except on view, and where the offense amounts to a breach of the peace," in which case it is his duty to arrest without a warrant.\[33\] In Kentucky, a peace officer's jurisdiction is not confined to the district which elected him,\[33\] but Texas statute giving peace officers authority to arrest without a warrant does not apply to magistrates,\[34\] who should, however, institute proceedings for the arrest.\[35\] He may arrest without a warrant for a felony.\[36\] New process is not necessary to retake a prisoner illegally discharged,\[37\] nor where one in the custody of an officer pleads to the information.\[38\] A Georgia statute permits an arrest without process if there is liable to be a failure of justice for want of an officer to issue a warrant.\[40\] The question of arrest without a warrant must be properly raised,\[41\] in which case the burden is upon "he officer to show reasonable and probable grounds for so acting.\[42\]

ton v. Wilson. 10 Gray \[Mass.\] 365; Davis \[Tex. Cr. App.\] 71 S. W. 819. A warrant is v. Rowe, 118 N. Y. 55, 23 N. E. 186. In \[The other\] necessary if an offense is committed in the officer's presence, for which he might arrest with a warrant if committed without who arrested one without having the warrant in his hands. Taylor v. Strong, 3 66 A. 382; Marshall V. Cleaver \[Del. Super.\] Vwend. \[N. Y.\] 384. Contra, Smith v. Clark, 64 A. 380.

53 N. J. Law, 197, 21 A. 491. He may arrest 83. Key. St. 1903, $ 1347. Making it an for a felony without a warrant. Samuel v. Gromes to discharge firearms in a town. Payne, 1 Doug. \[Mich.\] 365; Firestone v. Comm. \[Ky.\] 81 B. W. 366. Rice, 71 Mich. 377, 38 N. W. 885; Kirk v. Garett, 84 Md. 388, 36 A. 1089; Wade v. 1

Chatree, 8 R. I. 224. Or for a breach of the peace on view. Vandever v. Mathocke, 3 1047; Montgomery v. Sutton, 67 Iowa, 497, 26 N. W. 748. Otherwise for a breach of peace not "on view." Buttinger v. Rundel, 81 S. W. 270.

98 Vrias. 18, 74 M. NW. V. 548; Hall v. O'Malley.

49 Tex. 70: Quinn v. Helsel, 40 Mich. 576.

Unless authorized by statute. Ford v. Breach, 173 Mass. 52, 83 N. E. 136; Sheets v. Atherton, 67 V. 229, 19 A. 926. An officer failing to take the prisoner before a magistrate within a reasonable time is liable. Harris v. Atlanta, 62 Ga. 291; Cochran v. Tober, 14 Minn. 293; Pratt v. Hill, 16 Barb. \[N. Y.\] 303: Hynes v. Jungern, 5 KAsn. 31; Newby v. Gunn, 74 Tex. 455, 12 S. W. 67; Tubbs v. Tukey, 3 Cush. \[Mass.\] 438; Burke v. Bell, 36 Me. 317. A warrant describing one by a fictitious name will not enable the officer executing the same to justify the arrest. Harwood v. Shiphera, 70 Me. 464; Mead v. Hows, 70 Cow. \[N. Y.\] 332; Williams v. Tidl. ball \[Arts.\] 8 P. 851. And if an officer arrest the wrong person he will be liable. Tiler v. Smith, 96 Mich. 347, 55 N. W. 939: Formwalt v. Hylton, 66 Tex. 288, 1 S. W. 876; Holmes v. Blyer, 80 Iowa, 365, 45 N. W. 754. Or if he arrest the right person under a wrong name. Gurnsey v. Lovell, 9 Wend. \[N. Y.\] 319; West v. Cabel, 153 U. S. 78, 14 S. Ct. 752. An arrest cannot be made for one purpose and justified for another. Malcolman v. Gibbons, 58 Mich. 459, 23 N. V. 166; Bozy v. Tate, 43 Ind. 60: Shead v. Bonnoll, 49 App. Div, 330, 63 N. Y. S. 553; Elwell v. Reynolds, 6 Kan. App. 545, 51 F. 578; Leger v. Warren, 62 Ohio. 560, 57 N. T. 565, and note 61 L. R. A. 193. See 1 Curr. L. 214.

32 State v. Dlerker, 101 Mo. App. 838, 74 S. W. 163: Ex Parte Richards \[Tex. Cr. App.\] 72 B. W. 838; Kossouf v. Knarr, 208Under certain conditions a person may be arrested for trial in another district. \[44\]

_A private person_\[44\] has no authority to arrest for a misdemeanor unless the offense is committed in his presence or within his immediate knowledge,\[45\] but if the offense is a felony and the offender is attempting to escape, a private person may arrest upon reasonable and probable grounds of suspicion.\[46\]

SS 2. _Privilege from arrest_.\[47\]--One is not subject to a second arrest while in the custody of the court,\[48\] whether the custody be actual or the accused be out on ball.\[49\]

SS 3. _Complaint, affidavit, or information to procure warrant_.\[50\]--In Idaho the inquisition of a coronber is not sufficient basis for an information,\[51\] though it was at common law.\[52\] There must be strict compliance with a statute requiring the affidavit for a criminal complaint to state a probable cause for the belief of the affiant,\[53\] and it must sufficiently acquaint the accused with the offense charged,\[54\] but the same strictness required of indictments is not necessary.\[55\] In Alabama the affidavit may be amended.\[56\]

The information must show that a crime has been committed and the probable guilt of the accused,\[57\] but if based upon the same transaction it need not charge the same precise offense named in the original warrant of arrest.\[58\] Where an accused is committed for a certain offense, an information cannot be filed against \[56\]

SS 4. 382; Marshall v. Cleaver \[Del. Super.\] So 400. An affidavit defective in this respect does not authorize the issuance of a warrant. does not support a conviction and no valid judgment can be rendered upon it. \[(2) Where he has been held over for trial\]

Cr. Proc. & 177. Affidavit of an officer mask-district. (3) Where a bench warrant has been issued for him. (4) Where a verified complaint has been made before a proper officer in such other district. (5) Where such verified complaint is made before such officer of the district where the accused may be. U. S. v. Yarborough, 122 F. 298.

44. See I Curr. L. 214.

01. Pen. Code 1885, $ 800. Franklin v. Amerson, 113 Ga. 860, 45 S. E. 698.

01. Pen. Code 1885, $ 900. Franklin v. Amerson, 118 Ga. 860, 45 S. E. 698.

01. See I Curr. L. 215.

01. A court which has in its custody a person charged with a crime has extensive custody and jurisdiction until the question of his guilt or innocence is determined, and if he is found guilty, until the imprisonment has expired. In re Beavers, 125 F. 988.

01. When ball is given, the principal is regarded as delivered to the custody of his suretles. Their dominion is a continuance of the original imprisonment. In re Beavers, 125 F. 988. Comp. Laws, $ 1117, providing that officers of courts shall be liable to arrest except during sitting of the court, does not permit counsel who has given ball for liberty of jail limits to go beyond the limits on professional business before the sitting of the court. Hughes v. Hally \[Mich.\]

100 N. W. 691.

50. See I Curr. L. 215.

51, 52. In re Sly \[Idaho\] 76 P. 766.

53. That affiant "has reason to believe and does believe" that an offense has been committed is not equivalent to an affirmation of the existence of a probable cause for believing. Streater v. State, 137 Ala.

01. 84 So. 395; Sims v. State, 137 Ala. 79, 34 3 Cur. Law. ARREST AND BINDING OVER SS 4. 315

him for a different offense.\[59\] A deposition setting forth the adoption of a resolution by a town board prohibiting the hawking of goods without a license, on which a warrant is based, need not set forth in full the resolution.\[60\] An information is sufficient basis for extradition.\[61\]

In the prosecution of a corporation a preliminary complaint is not necessary.\[62\]

SS 4. _The warrant and its issuance.\[63\]_--A warrant must be supported by oath or affirmation,\[64\] and be fair upon its face, to be a protection to the officer serving it;\[65\] it must be sufficiently definite in the description of the offense,\[66\] though it may be amended in this respect;\[67\] and will not be held void because of a clerical error.\[68\] A warrant "particularly describes" a person though the initial letter of the middle name is omitted,\[69\] or only the initial letter of the first name is used;\[69\] and whether a warrant sufficiently describes a person is a question of law.\[70\] The governor's warrant is sufficient, where the accused is a fugitive from the state.\[71\]

A United States commissioner may issue a warrant for the arrest of a person in his district for an offense committed in Indian Territory against the laws of the United States,\[72\] and it is preferable that the application for warrant be made to the nearest commissioner.\[73\]

Probable cause must be shown for the issue of a warrant for removal,\[68\] but an indictment is sufficient,\[69\] and the commissioner should consider whether the indictment or complaint alleges an offense against the United States;\[68\] such a warrant may not be issued except where an offender has been committed in a district other than that where the offense is to be tried.\[69\]

In Texas before a warrant can be executed in another county than that of the issuing magistrate, it must be indorsed by a magistrate of such other county,\[60\]

SS9. A justice committed one for assault with a deadly weapon. The prosecuting attorney filed his information charging hlm Douglas v. Stahl \[Ark.\] 72 S. W. 568.

with assault with a deadly weapon with intimented to kill \[Code, # 872, 809\]. People v. Stockwell \[Mich.\] 97 N. Nogtri \[Cal.\] 76 F. 490.

60, Gilbert v. Satterlee, SS N. Y. S. 871.

A deposition alleged on positive knowledge of a violation of Laws 1898, # 184, 187, for-bidding hawking of goods without a license, held sufficient to give a justice jurisdiction to issue a warrant. Gilbert v. Satterlee, SS N. Y. S. 871.

61. People v. Stockwell \[Mich.\] 97 N. Y. 165.

01. The finding of an indictment is the appropriate first step. U. S. v. Correspondence Institute of America, 125 F. 94.

01. See 1 Curr. L 215.

01. The offender issuing a warrant under such circumstances is liable for false im-prisonment. Kossowf v. Knarr, 206 Pa. 140, 568.

01. A. 854.

01. The offler is not liable for false im-prisonment if it apparently be process law- fully issued, and such as the officer might lawfully serve. Douglas v. Stahl \[Ark.\] 72

S. W. 668. If a justice has jurisdiction to the issued having been held for trial. U. Issue a warrant he cannot be held liable in S. v. Tarbrough, 122 F. 293.

an action for false imprisonment, though

it subsequently appear that no crime was committed. Gilbert v. Satterlee, SS N. Y. S. 871.

66. Cr. Code, c. 178, art. 1, p. 403, 58

5204-5208. Bruggins v. State \[Ala.\] 35 So.

1000.

0001. Even after appeal. Louisville v. Wehmhoff, 25 Ky. L. R. 995, 76 S. W. 876.

0001. So held when a United States commissioner.\[69\]

but whether a U. S. marshal may make an arrest on a warrant issued in another district than his own is unsettled."

SS 5. _Making arrest and keeping and disposition of prisoner._"--To constitute an arrest the officer must lay his hand on the defendant or take possession of his person," and the accused should in some way have notice that he is taken by lawful authority;" though in Delaware all are bound to know the character of an officer acting within his jurisdiction."

A delay in obtaining or serving a warrant will not be fatal where the evidence does not show the officer to have been dilatory or negligent," and the immediate arrest required under the search and seizure process does not apply to an ordinary arrest."

In making an arrest the officer should use no more force than to him, acting as an ordinarily prudent person, considering the degree of the crime," whether the alleged crime be a misdemeanor or a felony," would seem reasonable and apparently necessary to effect the arrest," or prevent an escape, or protect himself." The force he may use is necessarily greater than that required for self-defense." It will be presumed that only that was done which was necessary to accomplish the arrest," but this presumption may be rebutted."

A policeman has no greater authority than a private person to arrest beyond the town limits, or pursue beyond the limit one who has successfully resisted arrest and escaped therefrom," and an arrest beyond the limits of a state on a warrant issued therein, is without authority."

Where a prisoner charged with a misdemeanor has already escaped, the officer cannot lawfully use any means to recapture him that he would not have been justified in employing to make the first arrest."

The return of service is not a condition precedent to holding the prisoner, where the original warrant is still in the possession of the officer;" and the suspected party may be detained for only such a reasonable time as will enable the

S0. U. S. v. Yarborough, 122 F. 293.

S1. See 1 Curr. L. 216.

S2. Petit v. Colmary \[Del. Super.\] 55 A.

S3. This may be by knowing the person

S52, 94 N. W. 229. Shooting with a pistol

in an endeavor to arrest for a misdemeanor

seeling his badge or uniform, or by being

is excessive forces. Bossam v. Cruse, 133

arrested while committing a breach of the

S5. As a. 757. An arrest must not peace or other crime, or by the person making

be made in a threatening and menacing

ing the arrest giving notice of his purpose

manner. Vann v. State \[Tex. Cr. App.\] 77 and

and reason for it, or by being immediately

S7. W. 813.

pursued from the scene of his crime. But

it is not sufficient that the officer who was

as the case will admit of. Petit v. Colmary

unknown to defendant. wore a badge cov-

(Del. Super.) 55 A. 344. The test is whether

ered by the lagel of this coat. Franklin v.

in view of the surrounding circumstances,

Amerson, 118 G. 804, 45 S. E. 693.

S4. He need not show his authority un-

apprehension of danger. In re Lang. 127 F.

less it is demanded or after the arrest.

Pett v. Colmary \[Del. Super.\] 55 A. 344.

S5. So held where an arrest was made

S2 days after the seizure of property

1-6 legally held, and 23 days after the issuance

of the warrant for arrest. State v. Nadeau,

97 Me. 275, 64 A. 125.

S6. State v. Nadeau, 97 Me. 275, 64 A.

98. State v. Nadeau, 97 Me. 275, 64 A.

01. He cannot chastise a prisoner for in-

stice. Moody v. State \[Ga.\] 48 S. E. 340.

s8. Sossaman v. Cruse, 133 N. C. 470, 45

S. E. 757.

S8. State v. Phillips, 119 Iowa, 652, 94 N.

W. 229. Discussion of the rules that the

force used must have been necessary, and

that life may not be taken on arrest for

111 La. 61, 35 So. 381.

8 Cur. Law. ARREST AND BINDING OVER SS 6. 317

officer to carry him before a magistrate," and he must not be subjected to eruel and unnecessary exposure to cold, nor deprived of suitable clothing and covering."

A prisoner cannot be held for attempting to bribe an officer for his release unless the arrest was legal," and whether the alleged bribe was offered before or after arrest is a question for the jury upon the final trial, and pending its determination the prisoner should be held."

SS 6. _Preliminary hearing, binding over, or discharge."--A preliminary examination or a waiver thereof is necessary before the prosecution of a private person upon an information, for a felony," and an irregularity in this respect may be raised by plea in abatement," or in some cases by certiorari;" in the prosecution of a corporation a preliminary hearing is not essential."_

A recogninance must be in the words of the statute." A policeman has no authority to accept bail for an appearance."

The accused may be examined on two distinct and separate charges at one time," and the evidence need show only probable cause for holding;" though in Alabama uncorroborated accomplice testimony will not be sufficient."

One arrested as a fugitive from justice is entitled to an examination before the magistrate causing the arrest," but not upon the merits of the case."

The magistrate's return as to whether such examination has been held or offered is conclusive," and a justice docket entry of an examination describing the

98. Brisch v. Carter \[Md.\] 57 A. 210.

01. Petit v. Colmary \[Del. Super.\] 55 A.

01. It is not necessary that the evidence be sufficient to support a verdict of guilty and the circumstance not authorizing an arrest without a warrant. Ex parte Richards \[Tex. Cr. App.\] 72 S. W. 838.

01. The court refused a discharge on habeas corpus, where the evidence on this point was conflicting. Ex parte Richards \[Tex. Cr. App.\] 72 S. W. 838.

01. See 1 Curr. L. 216.

01. Jahnke v. State \[Neb.\] 94 N. W. 158.

A coroncer is not a magistrate and has no power to hold a preliminary examination \[Rev. St. 1887, % 7511). In re Sky \[Ifaho\] 76 P. 766.

5. Upon such plea the court will only determine whether such examination has been had or waveled; errors in judgment by the exambling magistrate will not be thus revived. Jahnke v. State \[Neb.\] 94 N. W. 158.

1. State v. Aucoin, 110 La. 959, % 56 So.

1.

1. The finding of an indictment is the appropriate first step. U. S. v. Correspondence Inst. of America, 125 F. 94.

1. Under Code Civ. Proc. 1895, art. 887.

coupling a recognizance that accused shall appear from day to day and from "term to term." a recognizance binding an accused to appear from "time to time" is fatally defective. Sammalego v. State \[Tex. Cr. App.\] 88 &, V. 996.

9. A city council has no power by ordinance or otherwise to authorize policemen on making arrests for violation of a city ordinance to accept a deposit of money for the appearance of the party in the police court. Richardson v. Junction City \[Kan.\] 77 P. 691.

1. The rule forbidding a trial on more than one charge at a time does not apply to examinations before a justice. People

1. It is not necessary that the evidence be sufficient to support a verdict of guilty and the circumstance not authorizing an arrest without a warrant. Ex parte Richards \[Tex. Cr. App.\] 72 S. W. 838.

1. The court refused a discharge on habeas corpus, where the evidence on this point was conflicting. Ex parte Richards \[Tex. Cr. App.\] 72 S. W. 838.

1. See 1 Curr. L. 216.

1. Jahnke v. State \[Neb.\] 94 N. W. 158.

1. A coroncer is not a magistrate and has no power to hold a preliminary examination \[Rev. St. 1887, % 7511). In re Sky \[Ifaho\] 76 P. 766.

1. Upon such plea the court will only determine whether such examination has been had or waveled; errors in judgment by the exambling magistrate will not be thus revived. Jahnke v. State \[Neb.\] 94 N. W. 158.

1. State v. Aucoin, 110 La. 959, % 56 So.

1.

1. The finding of an indictment is the appropriate first step. U. S. v. Correspondence Inst. of America, 125 F. 94.

1. Under Code Civ. Proc. 1895, art. 887.

1. A recognizance that accused shall appear from day to day and from "term to term." a recognizance binding an accused to appear from "time to time" is fatally defective. Sammalego v. State \[Tex. Cr. App.\] 88 &, V. 996.

1. A city council has no power by ordinance or otherwise to authorize policemen on making arrests for violation of a city ordinance to accept a deposit of money for the appearance of the party in the police court. Richardson v. Junction City \[Kan.\] 77 P. 691.

1. The rule forbidding a trial on more than one charge 318

ARREST AND BINDING OVER SS 6. 3 Cur. Law.

offense as "pocket picking or lareny from the person" is sufficient.19 There should be evidence as to identification of the accused to satisfy the magistrate.17 A properly certified copy of an indictment constitutes a prima facie case to justify holding,18 but upon a mere verified complaint before a foreign magistrate, the accused is entitled to have the commissioner hear evidence as to the probable cause,19 and he should be apprised of his right to be present before the judge and resist the application for a warrant of removal.20

One may be held for trial upon a different offense than that charged in the complaint.21 It is not necessary that a coroner's inquest be held, before one charged with murder may be held on preliminary examination.22

An illegal discharge from custody confers no rights upon the prisoner.23

In California the postponing of the preliminary examination for more than two days at a time, without the consent of the defendant, will not be ground for setting aside the information.24 In New York the commitment on adjournment of an examination, without a written information being filed, is illegal.25

SS 7. _Custody awaiting indictment or trial.26_

## Arson.

Arson is an offense against the possession and not against the property.27 Consequently, one in possession and occupancy of a house under a lease is not guilty of arson in burning the same,28 unless made so by statute.29 The burning of any object which falls legally under the words of the statute may be charged as a crime,20 and the fact that certain articles are specifically mentioned does not limit its scope.21

Every essential ingredient of the crime must be set forth in the indictment.22 The crime must be proved beyond a reasonable doubt.23 Evidence of motive34 and other circumstantial evidence23 is admissible.

16. The word "or" is not used disjunctive-

journment of the examination of a person, by but indicates the synonym of the terms the magistrate must commit or release him preceding and following it. State v. Dunn. on ball, and j 103, prescribing form of commitment. a detention after adjournment not be reviewed on veritorar. State v. Audoin, 111 La. 51, 35 So. 381. 381. 18. The prisoner admitted he was the person mentioned in the indictment, and offered no evidence. He cannot insist on the production of the witnesses for the state. In re Runkle, 125 F. 996. 19. 19. A verified complaint is prima facie true, and further evidence from thu governor.

ment cannot be required until the accused has raised a substantial doubt in his favor. U. B. v. Yarbborough, 122 F. 293. 20. U. B. v. Yarbborough, 122 F. 293. 21. State v. Auceoin, 111 La. 61. 35 So. 381. 22. In re disy \[4aho\] 78 P. 76. 166. 23. He is in no better situation than one who escaped through the convinance of the officers. In re Tro, 67 Kan. 186, 72 F. 531. 24. The record failed to show that the defendant had not consented. The court also cited its own precedent that if apellant surfered any legal wrong it was merely intemporary illegal confinement, for which there was a remedy at the time. People v. Boren, 129 Cal. 210, 72 F. 899. 25. Code cf. Proc. # 145, 148, 150, 185, 192, 194. People v. Crane, 88 N. T. S. 34. Code cf. Proc. # 192, providing that on ad

## 1 Nature and elements of criminal offensive

### 1. Nature and elements of criminal offensive

1.1.1.1.2.1.3.1.4.1.5.1.6.1.7.

## 2 Defenses

"Right of self defense is based on necessity," and is available to every person who on just grounds apprehends an unlawful attack," though it does not threaten serious bodily harm," and a person threatened by several may exercise his right against the nearest assailant." One assaulted may stand his ground and repel force with force," so long as his defensive acts do not threaten death or great bodily harm to the assailant." Whether unnecessary force was used is a question for the jury." Though one acting in self d?:ense accidentally injures another than his assailant, he is yet justified, criminal intent being lacking." An owner may use sufficient force in removing a trespaser and is not guilty, though he acts in anger," but an owner out of possession cannot regain it by force."

A parent may moderately chastise his child without being guilty of assault." An officer who uses more force than is necessary in making an arrest is guilty of an assault."

Opprohibous words and insult constitute no defense," unless so provided by statute."

as soon as he discovered where he was, there -- defendant followed prosecuting witness and was a question for the jury. Stermer v. his wife for some distance to their wagon, State \[Tex. Cr. App.\] 78 S. W. 1072.

45. Jury instructed to acquilt if assault defendant drew his gun, It was no error was not aggravated one. Helen v. State \[Tex. Cr. App.\] 74 S. W. 776.

01. See I Curr. L 219.

01. Defendant struck prosecutor and drew him unawares, knocked him down and beat a pistol; prosecutor reached for defendant's third, but he retreated and, on prosecutor's charge of assault with premeditated design, advancing, shot him. State \[Tex. Cr. App.\] 78 S. W. 518. Or. 155, 72 P. 187.

01. One traveling along a highway across which a fence had been built which he was engaged in tearing down. Fence had been created by abutting owners who claimed the road bad not been legally established. Hoy v. State \[Neb.\] 86 N. W. 228. Merely seeking a person for the purpose of provoking a difficulty does not deprive one of the right of self defense. Price v. State \[Tex. Cr. App.\] 77 S. W. Cr. App.\] 78 S. W. 540. And in such case one is entitled to a charge on self defense, disconnected from the question of provoking a difficulty. Id. Where evidence showed only that the prosecutor's make an assault on the defendant, there could not be a convention for aggravated assault. Reese v. State \[Tex. Cr. App.\] 78 S. W. 511.

01. Price v. State \[Tex. Cr. App.\] 79 S. W. 540.: Rea v. State \[Tex. Cr. App.\] 80 S. W. 1003.

01. The others were swearing and threatening while advancing, while the one assaulted had hold of his bridle retin. Hoy v. State \[Neb.\] 96 N. W. 228.

01. Where citizens of a town attacked bolosterous persons who were using profane language in the street, the roisters felled one of them with a scale weight. State v. Evenson \[Iowa\] 97 N. W. 979. It is the duty of one assaulted to get out of the way if he can. State v. Harrigan \[Del. Gen. Sens.\] 55 A.

01. People v. Dankberg, 91 App. Div. 67, 86 N. Y. S. 423. And see Homicide, 2 Curr. L. 223.

01. Where one was advancing with clenchened fits and was stabbed, the defendant is guilty only in case the used excessive force. Rea v. State \[Tex. Cr. App.\] 80 S. W. 1003. Where parties there throw slower pots and bottles of benaine at each other. State v. Green, 134 N. C. 658, 46 S. E. 761. Where \[To be concluded.\]VOL. III, NO. 2. CURRENT LAW, OCTOBER, 1904. 321

Copyright 1904, by Keefe-Davidson Co.

**ASSAULT AND BATTERY--Cont'd.**

**SS 3.**_Indictment._"1--An indictment need not allege the acts constituting the assault," unless it is so provided by statute."

Where aggravated assault depends on particular means used, such means must be alleged,"4 but not where a particular kind of an assault is made by the statute an aggravated assault."8 A blank in the indictment for the given name may be filled in after trial has begun,"9 and errors of form may be cured by amendment."

A verdict for a less crime may be found under an indictment for the greater of the same generic class, notwithstanding the two are statutory,"8 and it is reversible error for a court to refuse to so instruct."

**SS 4.**_Evidence; instructions; verdict; punishment._"--The evidence must satisfy beyond a reasonable doubt."11 Matters constituting res gestae,"12 and evidence bearing on the probability of the assault, is admissible," if not too remote,"4

**60.** For simple assault. Price v. State, 118 Ga. 60, 44 S. E. 820. 118. 61. See 1 Curr. L. 219. 62. That accused made an assault on a named person and did him unlawfully beat. 69. State v. Matthews, 111 La. 962, 36 S1. 183. 61. 115, defining assault; is merely declaratory of the common law, and an indeterminate metourned need not allege that the net was done in willful, wanton or insulting manner. State v. Creighton \[Me.\] 57 A. 592. 63. Where the statute provides that the information must charge the particular means used, the phrase "a heavy wooden the defendant, and was pushing him into stick" into not sufficient \[Pem. Code, # 850-552\]. People v. Perales, 141 Cal. 681, 75 P. 170. 64. Stokes v. State \[Tex.

dence of past assaults is not.\[78\] The rule allowing admission of all of a conversation where part has been introduced does not apply to past interviews.\[76\] An instruction must furnish a definite legal rule for the guidance of the jury,\[77\] and be free from ambiguity.\[78\] An instruction need not be given on a theory to which the evidence affords no support,\[79\] and it is improper if given.\[80\] Points already covered need not be made the subject of another charge.\[81\] A general _verdict_ of guilty as charged is sufficient where court submitted only aggravated assault.\[82\] An immaterial departure from the words of the statute in the form of the verdict is not error,\[78\] and meaningless matter may be rejected as surplusage.\[84\] Where a statute provides the punishment as "fine or imprisonment," both cannot be imposed,\[85\] nor can excessive punishments,\[86\] nor punishments not named in the statute.\[87\]

defense undertook to prevent a witness for \[is presumed and it rests with the assailant: the state from appearing was admissible. to show the contrary, is not objectonable 1d. Evidence that the prosecuting witness as a charge on the weight of evidence. Strip-arrested the defendant the night before the \[ing v. State {Tex. Cr. App.\], 80 S. W. 376, assault was admissible. Wilson V. State {Tex. Cr. App.} 78 S. W. 232. Defendant biguous. People v. Sylva \[Cal.\] 76 P. 814. may show that prosecutor had previously \[79\]. Indiment for willfully shooting, no shot a dog of defendant's mother and had \[c. on which a verdict of simple as-been warned not to come upon her property\] sault could be found. State v. Matthews again to show defendant's conduct from his \[Cal.\] 36 S. W. 1213; Rea V. State {Tex. Cr. App.} 74 S. W. 24.

74. The fact that a woman purchased an assault on one certain person, it was erber. Barton v. Bruley, 118 W. 326, 96 N. W. 815. Where defendant allowed an agent to take peaceable possession of a \[in the instruction. State v. Moore \[Mo.\] machine and then assaulted him, evidence of the contract in reference to the possess- \[80\]. Charge relative to a dangerous weapon of the machine is immaterial. Lock- \[Cra. App.\] 83 S. W. 1064. Cr. App.\] 80 S. W. 378.

01. In an action for assault on a woman, in- \[S. State v. Thornhull, 177 Mo. 691, 76 decent proposals made to other women are \[S. W. 948\].

1admissible. Barton v. Bruley, 119 Wis. 326, 96 N. W. 815. Evidence of previous instances \[V. State {Tex. Cr. App.} 74 S. in which defendant was either tried or - \[S. W. Verdict as prepared read "assault with rested for disturbance of the peace is \[Tex. Cr. App.\], 78\] rendered, "assault with intent to do great \[S. W. 616. On a prosecution for aggravated bodily injury." State v. Lehnhrman \[Iowa\] assault, it was error to admit testimony on \[S. W. 140\].

behalf of the state that the railroad handles of the errews to which the parties belonged \[V. State v. Lenhrman \[Iowa\] \] were in the habit of throwing knives at \[V. State {Tex. Cr. App.} 77 S. W. 446.

76. State v. Lehnhrman \[Iowa\] 98 N. W. 140.

01. An instruction that "If there was a clear Intent to commit violence," the jury should find that an assault had been committed was \[Miss.\] 86 S. W. 669. Where an assistant struck with its hands, and the assaulted \[Tex. Cr. App.\] 87 S. W. 446.

01. State v. Lehnhrman \[Iowa\] 98 N. W. 140.

01. An instruction that "If there was a clear Intent to commit violence," the jury should find that an assault had been committed was \[Miss.\] 86 S. W. 669. Where an assistant struck with its hands, and the assaulted \[Tex. Cr. App.\] 87 S. W. 929.

01. The evidence raises the issue, defendant is entitled to a charge that if the \[Cal.\] 74 S. W. 476.

01. The evidence raises the issue, defendant is entitled to a charge that if the \[Cal.\] 74 S.

8 Cur. Law. ASSAULT AND BATTERY SS 5. 323

SS 5. _Civil liability._"_What constitutes._"--The same elements must appear in a civil as in a criminal assault." A carrier is liable if his conductor uses excessive force in removing," or assaults a passenger,"2 and an innkeeper is liable for an assault committed by his servant upon a guest." An officer who uses excessive force in making an arrest is liable," but a superintendent of a house of correction who directs his subordinates to punish an innate is not."8 It is not necessary that injury result," as nominal damages may be awarded."

Cross actions in favor of each party against the other may arise out of the same affray," and the claims may be presented by a petition by one and set off by the other." Infants may sue by next friend to recover damages for injuries occasioned by assault and battery committed by one other than a parent."

_Defenses._"--Consent is a defense to a civil action." A parent," or one standing in loop parents, may administer reasonable chasisement," and an officer in executing a valid writ," or officials in clearing obstructions from the highway," or carriers in expelling a passenger for unesemly conduct," or any person in repelling an attack," may use reasonable force, but cannot take life unless life or limb is in danger." That one is entitled to the possession of premises does not justify an assault committed in taking it."

Abusive language,oprobrious epithets," a character for turbulence," or the fact that one is supposed to be guilty of a crime, does not justify an assault."

simple assault by fine or imprisonment in the county jail, one convicted could not be condemned to hard labor. State v. Houghton

\[Or.\] 75 P. 822. The words "at hard labor."

\[Or.\] could not be treated as surpluscase. Id.

\[Or.\] 88, See 1 Cur. L 220.

_Pleading, evidence and trial._\[18\]--A complaint founded in negligence cannot be treated as one for assault and battery.\[16\] Pleadings held sufficient.\[17\]

The defense of son assault demesne,\[18\] or matters in justification must be specially pleaded,\[19\] and evidence thereof is not admissible under the general issue.\[20\]

The burden is on the plaintiff to establish a prima facie case\[21\] by a preponderance of evidence,\[22\] therefore the presumption that defendant is innocent until proven guilty does not apply.\[23\] Res gestae,\[24\] and evidence of the relative ages and sizes of the parties,\[25\] and evidence tending to show a disposition to commit the act, is admissible.\[26\] Other evidence held admissible is discussed in the note.\[27\] One can-car conductor. Birmingham R. Light & Pow- evidence held sufficient to show that he was. Evans V. Elwood \[Iowa\] 98 N. W. 854. Nor will the plea of self defense avail in such a case. Dannenberg V. Berkner, 118

salant struck him in the eye and that he was also internally injured, though the phy- facialian who examined him testified that the injury did not amount to anything, held sufficiently conflicting to go to the jury on the right to recover. Schmitz V. Kirchan, 32

14. Warner v. Talbot \[LA.1 36 S. 743.

Wash. 546, 78 P. 678. Where there was evidence that one had been assaulted and beat and his face was cut, causing great palm, a nonsplit was properly denied. Jones v. Groan \[Ind.T.1 76 S. W. 278. An allegation of willi assault is not supported by proof of a battery resulting from negligence. One injured in a friendly seuffle, the person she attacked took her by the 17. Physical pain and mental suffering as elements of damage are alleged by an allegation that defendant struck plaintiff causing great palm, with a plistol, which was discharged. Great-Hall \[Iowa\] 98 N. W. 671. Where one allegation of willi assault is not supported by proof of a battery resulting from negligence. One injured in a friendly seuffle, the person she attacked took her by the 17. Physical pain and mental suffering as elements of damage are alleged by an allegation that defendant struck plaintiff causing great palm and suffering. Carlson v. Hall \[Iowa\] 98 N. W. 671. Where one allegation of the wrong exists in leged that he believed his injuries were permanent; that he was Iame and suffered pain and was under the care of a physician, it was an allegation that his injuries were permanent. Evans v. Elwood \[Iowa\] 98 N. W. 584. An action is not begun by trustee process, within meaning of section 1, c. 245, Pub. St. 1891, where a trustee blank was filled out with a fictitious name with no intention of having it served, and it was not served upon a trustee. Keenan v. Perault \[N. E.\] 67 A. 335.

18. Luitlop v. Heckmann \[N. J. Err. & App.\] 67 A. 1046.

01. Evidence thereof cannot be received under the general Issue, and if received without objection cannot be considered. Harden v. Hodges \[Tex. Civ. App.\] 76 S. W. 217.

01. Blackmore v. Ellis \[N. J. Err. & App.\] 87 A. 1047.

01. To show that the injuries complained of are the result of the wrongful act. Wll- let v. Johnson, 13 Okl. 663, 76 P. 174. It is not incumbent on the one assaulted to show that it was without provocation. Sweet v. Boyd \[Iowa\] 98 N. W. 601.

01. Blackmore v. Ellis \[N. J. Err. & App.\] 67 A. 1047. Class v. Prus \[Neb.\] 95 N. W.

01. Evidence held insufficient to show that injuries to bladder and uterus rebound from the assault. Wlllet v. Johnson, 13 Okl. 563, 76 P. 174.

A verdict for one on his own testmony will not be disturbed because the assaulted's denntial is corroborated by three witnesses. Zwangiger v. Newman, 87 App. Div. 64, 83 N. Y. 8. 1071. Where two witnesses testified that defendant was the aggressor, 3 Cur. Law. ASSAULT AND BATTERY SS 5. 325

not testify to conclusions." A nonmedical witness is competent to testify whether an injury appeared recent or otherwise,29 but not as to the cause and extent thereof.20

Instructions must be based on evidence within the issues."11 Issues made by the pleadings cannot be broadened by instructions.32 The court cannot be required to charge as to the legal effect of part of the facts proved,33 nor to make facts substantially covered, the subject of a subsequent charge.34

Actual,35 and if the assault was founded in malice,36 exemplary damages may be recovered, but it is held that since the defendant is subject to criminal prosecution punitive damages cannot be assessed.37 As a general rule provocation cannot be shown in mitigation,38 but the contrary has been held.39 The aggressor in an

was in peril, that plaintiff began the diffn- set-off he was without fault was not crulty, and his motive. Moran v. Vieroy. 24

ror, as it was apparent from the charge as Ky. L, R. 2415, 74 S. W. 244. Evidence of plaintiff's character for violence and turden, IIT G. 898, 45 S. W. 248.

bulence is handinsible as, in the absence of any act of plaintiff of dubious import, is his general reputation for violence and turden.

of, held excessive in a case where damages bulence. Houston & T. C. R. Co. V. Bell

by way of punishment were not allowed.

\[Tex. Civ. App.\] 73 S. W. 56.

87. In an action for assault on one's wife, which resulted in her death, he is entitled

end and that he was injured internally, but to show her physical condition before the his physician testified that the injuries did injury. McKinstry, v. Collins \[Vt.\] 66 A. not amount to anything, a verdict for $225.00

98%. Evidence held not to show that plaintiff

was not excessive. Schmitz v. Kirchnan, 32

had been acquitted of an attempt to provoke

a prior assault, therefore it did not consultance error. Schmitz v. Kirchnan, 32

wash. 546, 73 P. 678. Where one admitted that he

normal damages only should be allowed was

tute error. Schmitz v. Kirchnan, 32

wash. 546, 73 P. 678. Where one admitted that he

person, threatened to hang him, pulled him

assualted another, it was harmless error

up several times, and held a piston at his

to permit the justice before whom he pleaded

beard, with a view to extort from him as con-

guilty to testify. Id. A survey of the high-

fession of arson, a verdict for $500 was held

way was admissible on the question of good

falth. Thompson v. Fairbanks, 75

Yt. 361,

143. S2,500.00 for destruction of an eye was

56 A. 11. A photograph taken of the in-

not excessive In the absence of mitigating

mate on the day of the assault was inad-

missible, there being no proof of its correctness. Martin v. Moore \[Md.\] 67 A. 671.

28. Counsel asked defendant whether he

plaintiff lost for life being earning eaclacity of

kicked plaintiff in self defense. Evans v. 11.5 to $1.50 per day, and his expectancy was

Elwood \[Iowa\] 98 N. W. 584. To ask the

assulting party whether he did anything

that would cause the injury complained of

is incompetent. Robinson v. Halley \[Iowa\] 100 N. W. 328.

29. Wife's testimony as to the appearance of an injury. Robinson v. Halley

\[Iowa\] 100 N. W. 328.

30. Injuries to bladder, uterus, and ova-

ries. Willet v. Johnson, 13

Okl. 563, 76 P. 174.

81. Matters in justification, received with-

ont being specially pleaded, cannot be sub-

jet of a charge. Harden v. Hodges \[Tex. Civ. App.\] 76 S. W. 217. An instruction as-

suming mitigating circumstances was properly refused when there were none. Birmingham R. Light & Power Co. v. Mullen, 138

414, 56 S. 701.

82. Complaint alleged negligence and the court charged that a recovery could be had

on proof of Willett shooting. Greathouse v. Croan \[Ind. T.\] 76 S. W. 273.

83. Blackmore v. Ellis \[N. J. Err. & App.\] 83. Blackmore v. Ellis \[N. J. Err. & App.\] 83. Blackmore v. Ellis \[N. J. Err. & App.\] 84.

01. Where the court charged that if the

facts were as testified to by the defendant

there could be no recovery, defendant was

not prejudiced by the refusal to give Instructions presenting his theory. Lee v. Longwell \[Mich.\] 99 N. W. 379. A charge that defendant could recover on his plea of

set-off if he was without fault was not crulty, and his motive. Moran v. Vieroy. 24

ror, as it was apparent from the charge as Ky. L, R. 2415, 74 S. W. 244. Evidence of

a whole what was meant. McNatt affray with a minor cannot recover damages from the father.40 The jury may consider future suffering in assessing damages,41 and actual damages may be proved, though the damages laid are bodily pain and mental distress.42 A court may set aside a verdict on the ground that damages are inadequate.43 Evidence as to assailant's finaroial condition is admissible.44 Other points admissible are discussed in the note.44

## 1. Rights Susceptible of Assignment

1. **G1.** Construction, Interpretation, and Effect (334).

1. **G2.** Requisites and Sufficiency of Express Assignments (320).

1. **G3.** Constructive or Equitable Assignments (331).

1. **G4.**_Rights susceptible of assignment.46_-A trust deed, in the nature of a mortgage47 or a chattel mortgage, may be assigned.48 A mortgagor before sale, but after foreclosure, may assign his right of redemption.40 Notes, though indorsed nontransferable,50 open accounts,51 or debts, are assignable52 in whole or in part,53 but not by the debtor himself.54 Contracts are assignable unless there is something in their terms to indicate the contrary.55 An executory contract should not be assigned to a competing concern without the consent of the other party thereto.56

1. **G5.** Opportunous words though not action- \_wounded feelings of the plaintiff. McNatt v. able in slander. Dannenberg v. Berkner, 118 McRae, 117 Ga. 898, 45 S. E. 248. Ga. 885, 45 S. E. 683. Matters in justification 46. See 1 Curr. L. 222. admitted without being pleaded may be 47. Bouton v. Cameron, 205 III. 50, 68 N. shown In mitigation of exemplary damages. Harden v. Hodges \[Tex. Civ. App.\] 76 S. W. 48. But assignment pendente lite cannot operate to prejudice the other party. Powell v. National Bank of Commerce \[Colo. App.\] at the time this sult was prosecuted serving 74 P. 536. sentence therefor. Miller v. Moche, 111 La. 143, 35 So. 491.

1. **G6.** Allegations that the assailment cannot be enforced pain and believed himself to be per- .nancently injured were sufficient to authorize the jury to consider future suffering. Evans v. Kiwood \[Iowa\] 98 N. W. 584. This is not permitting them to conjecture as to the amount. Id. The amount of damage suffered is for the jury. Sweet v. Boyd \[Iowa\] 98 N. W. 601.

1. **G6.** Time he was forced to be Idle. Jones v. Peterson \[Or.\] 74 P. 661.

1. **G7.** The damages awarded barely covered the doctor's bill, so other elements must have been ignored. Barrette v. Carr. 75 V. 425.

1. **G8.** A. 93., and note to Benton v. Collins \[N. C.\] 47 L. R. A. 33. In the absence of abuse of discretion its action is not subject to review.

1. **G8.** The assignment by a contract to his doctor's intention is not subject to review.

- 8Cur. Law. ASSIGNMENTS SS 1. 827

Contracts for personal services requiring skill, science, and peculiar qualifications are not assignable,\[47\] this includes contracts to draw up abstracts,\[56\] to take care of and manage cattle,\[59\] or to act as a salesman,\[60\] but the other party may give force to the assignment by asserting thereto,\[91\] and this ascent may be shown by receiving benefits under the assignment.\[62\] Contracts to furnish horses for delivery purposes,\[63\] or to furnish logs to be manufactured into lumber are not such personal contracts,\[64\] nor is a contract with a body politic to erect and operate a factory in consideration of certain concessions.\[65\] The right to select exempt property is not assignable.\[60\] The amount to become due on a contract,\[67\] a partnership interest,\[68\] the interest of a beneficiary of a policy after the death of the insured,\[69\] time checks,\[70\] or trade secrets are assignable,\[71\] but the right to a patent not yet issued cannot be assigned at law.\[72\] The assignor may recover the consideration for the assignment.\[73\] "

An assignment of future earnings is not void as against public policy,\[74\] and the assignee takes precedence of subsequent attaching creditors,\[75\] though the term of the employment is indefinite,\[76\] and the duration or amount of the assignment is uncertain,\[77\] nor is such an assignment rendered invalid by statutes exempting

Co. v. Nebraska Post Co. \[Neb.\] 98 N. W. 83. A contract by a llvery stable keeper to supply horses and wagons to a llvery 56. Where an electric power company contracted to supply a cement company with electricity for five years, an assignment by the latter to a lithithine company, which was in competition with the former, was not enforceable, and the fact that after notice of the assignment the payment had furnished electricity to light company and accepted two monthly payments, was not a ratification of assignment, where there was no evidence that power company knew of the circumstances. Hudson River Water Power Co. v. Glens Falls Portland Cement Co., 41 Misc. 254, SS 4. N. Y. S. 62. But on appeal it was held that as the cement company was only forbidden to use the power for manufacture of paper, and the contract was to have to the "successors and assigns" the contract was assignable, and that at any rate the power company was estopped from objecting since it had accepted payment with notice of the assignment, and that power transformers were to be introduced. Hudson River Water Power Co. v. Glens Falls Gas & Elec. Light Co., 90 App. Div. 613, 85 N. Y. S. 62. The assignment to plainffs of exclu- \[Towa\] 98 N. W. 702. See 1 Curr. L. 222, n. 9-15. 58. Linn County Abstract Co. v. Boechley \[Towa\] 98 N. W. 702.

50. Where one entered into a contract selling cattle with a clause that the management should belong to him, the contract was assignable by him where he in fact cared for the cattle. Houssels v. Jacobs \[Mo.\] 77 S. V. W. 857.

01. Wilson v. Imperial Fertillier Co. \[S.\] C. J 46 S. E. 279.

01. Zire shown by his active co-operation in the assignment. Willson v. Imperial Fertillier Co. \[S.\] C. J 46 S. E. 279. An in-demnitor assenting to an assignment of the indemnitee lindemnity contract by the indemnitee lindemnity contract by the indemnitee lindemnity contract by the indemnitee lindemnity bound to the assignee. Hall v. Chitwood \[Mo.\] 81 S. W. 208.

01. Accepting payments from the assignee. Hudson River Water Power Co. v. Glens Falls Gas & Elec. Light Co., 90 App. Div. 613, 85 N. Y. S. 617.

01. A contract by a llvery stable keeper to supply horses and wagons to a llvery 56. Where an electric power company contracted to supply a cement company with electricity for five years, an assignment by the latter to a llthing company, which was in competition with the former, was not enforceable, and the fact that after notice of the assignment the payment had furnished electricity to light company and accepted two monthly payments, was not a ratification of assignment, where there was no evidence that power company knew of the circumstances. Hudson River Water Power Co. v. Glens Falls Portland Cement Co., 41 Misc. 254, SS 4. N. Y. S. 62. But on appeal it was held that as the cement company was only forbidden to use the power for manufacture of paper, and the contract was to have to the "successors and assigns" the contract was assignable, and that at any rate the power company was estopped from objecting since it had accepted payment with notice of the assignment, and that power transformers were to be introduced. Hudson River Water Power Co. v. Glens Falls Gas & Elec. Light Co., 90 App. Div. 613, 85 N. Y. S. 67.

01. Berlin Iron Bridge Co. v. Connecticut

01. Driscoll v. Driscoll \[Cal.\] 77 P. 471.

01. Saling v. Bolander \[C. C. A.\] 125 F.

01. Their assignment operates also as an assignment of the cause of action. Ftrigger V. Archbald Guthrie & Co., 89 Minn. 330, 94 N. W. 883

01. Vulen Dentinning Co. v. American Can. Co., N. Y. Esq. 58 A. 290.

01.

wages from execution," though in some states it must be recorded in order to be valid except as between the parties:" in such states the assignor making two assignments of the same wages simultaneous in date and record, the assignee is not liable to an action thereon," nor does want of knowledge on the part of the assignee of the other assignment affect the employer's liability," and the statute not requiring the debt for which the assignment is security to be stated, it covers all debts between the same parties during its duration." As to whether or not a discharge in bankruptcy will render the assignment inoperative there is a conflict." Moneys due a contractor are not "future earnings."

_Contingent interests may be assigned,"_ and the current of authority is that an assignment of the naked expectancy of an heir apparent will be enforced in a court of equity." A chose in action" or rights of action arising out of contract may be "assigned" to any one except an attorney in the action;" this includes a right of action for real estate commissions," or for the breach of a lease." The survivor of joint payees may assign the right of action upon the obligation." Rights of action, sounding in tort, affecting real property are assignable," as the right to sue for flooding land," also those affecting personal property, as the right to sue a sheriff for seizing property," to recover money deposited in pursuance of a wagering agreement," or for conversion," but not a right to recover a penalty for usury." An unliquidated claim for personal injuries cannot be assigned,"

78. Malin v. Wenham, 209 Ill. 363, 70 N.

01. Raywood Rice Canal & Milling Co. v. E. 564.

Langford Bros. \[Tex. Civ. App.\] 74 S. W.

79. Park Brew. Co. v. McDermott, 25 R. I

01. Semper v. Coates \[Minn.\] 100 N. W.

01. 54 A. 924; Whitcomb v. Waterville \[Me.\] 662.

80, 81. Whitcomb v. Waterville \[Me.\] 58

93. Arose upon a counter-claim. McCorre-A. 68.

01. Park Brew. Co. v. McDermott, 25 R. I.

01. Right of action against a railroad for flooding crops. Hovey v. Grand Trunk West-

01. 54 A. 924.

01. See Bankruptcy, 1 Curr. L. 337.

01. That it le rendered inoperative. In re

01. West, 128 F. 205. That it is not. Mallin v.

01. Action against a sheriff for seizure of

01. Kerlin from Bridge Co. v. Connecticut

01. A beneficiary may assign his right in

01. Is a chose in action arising upon an a transfer to secure a debt, notwithstanding the product contract and hence is assignable uncharter provision that the object is to aid

01. Pinkley, 206 Ill. 641, 69 N. E. 582. A son's expectancy in the estate of his mother who

01. Is a chose in action arising upon an sheriff to secure a debt, notwithstanding the product contract and hence is assignable uncharter provision that the object is to aid

01. Pinkley, 206 Ill. 641, 69 N. E. 582. A son's expectancy in the estate of his mother who

01. Is a chose in action arising upon an sheriff to secure a debt, notwithstanding the product contract and hence is assignable uncharter provision that the object is to aid

01. Cur. Law. ASSIGNMENTS SS 2. 329 though in some states it may be partially assigned to attorneys as compensation for their services in such suit.3 In some states rights and liabilities regulated by special provision of law are not assignable.4 Judgments are assignable,5 and the joint owner of a judgment may assign his undivided interest therein.4 Liquor licenses are usually not transferable,6 except with the consent of the authorities.8 A land warrant to a Mexican war soldier may be assigned, and the assignee can locate the land,7 but the assignment of half-breed serip is forbidden by Act of Congress.8

Footnote 4: The assignment of a choice in action is not assigned by the assignment of a choice in action.

The article assigned must be delivered,\[18\] but being incapable of manual delivery a written assignment duly delivered,\[19\] or an oral assignment if founded upon a valuable and adequate consideration and accompanied by acts which amount to a constructive delivery,\[20\] is sufficient. A chose in action may be assigned by parol,\[21\] and is sufficiently delivered by the debtor's promising to pay it to another.\[22\] Leases for terms of years,\[23\] notes,\[24\] and mortgages, must be assigned in writing and be duly delivered.\[25\] Execution of a written assignment, it being recorded, in pursuance of a previous oral assignment, and notice being given the one having possession of the property, removes all question of the sufficiency of the oral assignment.\[28\]

Any right of action in connection with the thing assigned passes, though not specifically mentioned.\[27\] As between the parties there must be a consideration.\[28\] At common law ar executor, administrator, or guardian can assign promissory notes payable to himself without an order of the court,\[29\] but this rule has been abrogated in some states by statute.\[20\]

No particular form and specific instrument in writing is required in giving notice to the debtor in the assignment of debts, any notice to the debtor being sufficient.\[31\] No formal acceptance is necessary to an assignment of future earnings,\[32\] payment to the assignee is sufficient,\[33\] and an agent may obtain authority to accept such assignments for the holder of the fund by course of dealing.\[34\]

607. Assignment of a written contract. Lib- 25. Where decedent executed assignments try Wall Paper Co. v. Stoner Wall Paper 167. Co. \[N. Y. 170 N. E. 601. 18. The possession by the assignee of, and beneficiaries after his death, and where some were partly paid he executed checks to the a written contract is a sufficient assignment beneficiaries for the amount and left with the assignments, but died with them all in Co. \[Neb.\] 98 N. W. 872. \[NONE Delivery Delivery is essential to the assignment. Basket v. Hassell, 107 U. S. 602, 2 S. Ct. 415; Pringle v. Pringle, 59 Pa. 251; In re Crawford, 113 N. Y. 560, 21 N. E. 692. And the delivery must be such as to confer upon the done the present right to reduce the fund to possession. Basket v. Gransch 167 U. S. 602, 2 S. Ct. 415; Sterling v. Wilkinson, 83 N. Y. 191, 3 S. E. 533; Yancev v. Field, 85 Va, 756, 8 S. E. 821.--From note to V Williamson v. Yager \[Key.\] 14 Am. St. Rep. 184. 1B. A written assignment of a partner's interest is sufficient, though the assignor continue to deal with the partnership property as he had formerly done. Driscoll v. Driscoll \[Cal.\] 77 P. 471. An assignment duly signed at the end of a statement of services rendered which was attached to the petition is sufficient. Neal v. Heying \[Iowa\] 98 N. W. 603. See 1 Curr. L. 223, in 35, 26. \[20\] Share of estate in the hands of an administrator. Howe v. Howe, 97 Me. 422, 54 A. 908. See 1 Curr. L. 223, in 31-38. \[21\] Father paid money to son directing him to pay $400 thereof to the latter's sister upon the father's death, the son promising to do so. In the presence of the daughter, held a sufficient assignment. Ebel v. Plehl \[Mich.\] 95 N. W. 1004. \[22\] 98 N. W. 1004. \[23\] 98 N. W. 1004. \[24\] 98 N. W. 1004. \[25\] 98 A. A bond referring to a lease as "assigned" to defend his not a sufficient writing to sustain the assignment. Land v. McCullough, 206 III. 214, 69 N. E. 107. \[26\] 98 N. E. 107. \[27\] 98 N. E. 806. \[28\] 99 N. E. 806. \[29\] 99 N. E. 806. \[30\] 99 N. E. 807. \[31\] 99 N. E. 808. \[32\] 99 N. E. 809. \[33\] 99 N. E. 809. \[34\] 99 N. E. 809. \[35\] 99 N. E. 809. \[36\] 99 N. E. 809. \[37\] 99 N. E. 809. \[38\] 99 N. E. 809. \[39\] 99 N. E. 809. \[40\] 99 N. E. 809. \[41\] 99 N. E. 809. \[42\] 99 N. E. 809. \[43\] 99 N. E. 809. \[44\] 99 N. E. 809. \[45\] 99 N. E. 809. \[46\] 99 N. E. 809. \[47\] 99 N. E. 809. \[48\] 99 N. E. 809.

8 Cur. Law. ASSIGNMENTS SS 3. 381

_Record._**--** Assignments of "future earnings"86 in some states must be recorded to be valid except as between the parties,"7 though in some states they need not where given to secure a bona fide debt."8 As to the right of the contracting parties to restrict the assignment of a contract see note."8

8 3. _Constructive or equitable assignments._**40--** The transfer of a note,\*\*41 \*\*or debt,\*\*42 \*\*or chose in action,\*\*48 \*\*or part thereof,\*\*44 \*\*carries with it the mortgage or lien securing it,\*\*45 \*\*notwithstanding the statutory requisites have not been complied with.\*\*46

**enter it on the books as required. Sintes v.**

**Vision forbidding the assignment of the contract without l'= consent (Brewster v. City of Hornellsville. 3$ App. Div. 161, 54 N. Y. \[Colo. App.\] 76 F. 922. The acceptance by a street commissioner of an assignment of future earnings by an employee in his department. (Please v. Walture earnings by an employee in his department. (Please v. Sornerville, 176 Mass. 241, 57 N. E. 437; Stables yourment in the following words. "Accepted. John B. Woyes, Street Commissioner," held **sufficient.** Lamoreux v. Morin \[N. H.\] 54 A. **will**.**

**83. Colorado Fuel & Iron Co. v. Kidwell**

\*\*84. Street commissioner as agent of a city in accepting assignments by employees of his department of their future earnings. Lamoreux v. Morin \[N. H.\] 54 A. 1023. 35. See I Cur. L. 224. 36. Query, whether future earned wages are exempt property under Ia. Code, $ 2906, and husband and wife must both join in a written assignment. Petersen v. Ball, 121 Iowa, 544, 97 N. W. 79. 87. Mass. Rev. Laws, c. 189, $ 34. But where only a few dollars worth of work remained to be done on a contract to build a stable for l1,473, the assignment of the balance due on the contract was not an assignment of future earnings as the contract was substantially performed. Allen v. Mayers, 184 Mass. 476, 89 N. E. 220; Park Brew, Co. v. McDermott, 25 R. I. 95, 54 A. 924; Whitcomb v. Waterville \[Mc.\] 58 A. 68. 88. Conn. Gen. St. 1902, $ 386, declaring assignment of future earnings not valid against an attaching creditor unless to secure a bona fide debt, or recorded, does not apply to money due a contractor. Berlin Iron Bridge Co. v. Connecticut River Banking Co. \[Conn.\] 57 A. 275. 38. 39. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 30. 32. 34. 36. 37. 39. 31. 33. 35. 38. 39. 31. 34. 36. 38. 39. 32. 33. 34. 37. 38. 39. 30. 33. 34. 39. 35. 36. 37. 38. 39. 31. 39. 32. 33. 34. 38. 39. 32. 35. 36. 37. 39. 38. 39. 30. 34. 39. 31. 35. 39. 32. 36. 37. 38. 39. 33. 34. 39. 35. 36. 37. 39. 38. 39. 39. 31. 39. 32. 33. 34. 39. 35. 37. 39. 38. 39. 39. 30. 39. 31. 39. 32. 33. 34. 39. 35. 36. 37. 38. 39. 39. 31. 39. 32. 33. 34. 39. 36. 38. 39. 37. 39. 38. 39. 39. 39. 31. 39. 33. 32. 34. 39. 35. 39. 36. 37. 39. 38. 39. 39. 39. 31. 39. 32. 34. 39. 39. 33. 34. 39. 35. 37. 39. 38. 39. 39. 39. 31. 39. 32. 34. 39. 36. 39. 37. 39. 38. 39. 39. 39. 39. 39. 31. 39. 32. 34. 39. 39. 32. 34. 39. 3 A court of equity gives effect to assignments of all kinds of future and contingent interests in personality, as well as really, if made for a valuable consideration, and not in contravention of public policy;" this includes patents applied for," the interest of a beneficiary in a benefit certificate on the life of another," and expectancies in real estate.\[60\] The assignor must' be in a condition to transfer the property or chose in action, or to cause it to be transferred, to the assignee.\[61\] A partner after the dissolution of the partnership cannot assign partnership claims without consent of his former partners.\[52\]

Any order, writing or act, which makes an appropriation of a fund, amounts to an equitable assignment thereof,\[63\] but it must be drawn upon a particular fund,\[64\]

later is an equitable assignence of the for-check and the drawee, such holder of the mer. Kiddell v. Bristow \[S. C.\] 45 S. B. 174.

46. Where note and trust dead were as-signed by a separate instrument, it only payment, the recourse of the holder is amounted to an equitable assignment, since Hurd's Ill. Rev. St. 1899, c. 38, & 4, requires

The drawer alone can bring suit to recover

indorsement on the note. Bouton v. Camera, 206 Ill. 60, 63 N. E. 800.

47. Guarantee fund belonging to contractors in the hand of the government.

He may revoke the check, and contermand

Wagenhurst v. Wineland, 20 App. D. C. 85.

48. The assignment of an exclusive right

cepted, his death will operate as a revocation, to use a machine, for which grantors have

ption, and it seems that his insolvency has

applied for patent, may operate in equity as

the same effect.

an assignment of the patent subsequently

issued. Milwaukee Carving Co. v. Bruns-

movally adopted by the courts of England,

wick-Balke-Collender Co. \[C. C. A.\] 126 F.

171.

001. An assignment of a benefit certificate

on life of another to secure a debt will be suported in equity, notwithstanding character rule

the benefit fund is to assist members,

v. Third Nat. Bank, 13 Allen, 44; Carr v.

and that it shall be exempt from execution.

National, etc., Bank, 107 Mass. 46, 9 Am.

Jarvik v. Rinkley, 206 Ill. 641, 65 N. E. 852.

Rep. 6; aetna Nat. Bank v. Fourth Nat.

50. Conveyance by hefir apparent of land

Bank, 46 N. Y. 52, 7 Am. Rep. 314; Case v.

he does not own is void at law, but may be

Enderson, 23 L. Ann. 49, 8 Am. Rep. 590;

enforced In equity as an agreement to

Convey. In re Ryder's Estate, 141 Gal. 366,

40 Am. Rep. 142; Griffin v. Kemp, 46 Ind. 172;

74 P. 93. Where, for a valuable considera

National Bank v. Second Nat. Bank, 69 Ind.

tion, consisting of present indebtedness and

479, 35 Am. Rep. 236: Harrison v. Wright

future advances, an assignment is made of

all sums of money then due or which might

become due to the assignor from an estate

then unsettled In the hands of an adminis-

79 Mo. 168; Dickinson v. Coates, 79 Mo. 250,

retator, held a valid equitable assignment as

between the assignor and calimants. Howe

v. Howe, 97 Me. 422, 54 A. 908.

81, 52, Wagenhurst v. Wineland, 20 App. D. C. 85.

83. Check. Fortier v. Delgado & Co. \[C. A.\] 122 F. 604. See 1 Curr. L. 224, n. 52.

NOTE. Cheeks, Whether Assignment of

Frank One class of cases asserts the doc-

prime that the drawing and delivery of a

check do not operate as an assignment, in

any sense, of the drawer's rights as against

the drawee, unless the check is in some way

accepted by the drawee, and hence that, as

between the drawer and the payee or hold-

er, the check does not operate as an assignorment of so much of the fund as

is drawn upon, or of the drawer's rights as against

the drawee. In other words, that a check

drawn and delivered to the person to whose

order it is payable does not operate, with-

out acceptance by the drawee, as an assignorment of the sum for which it was given, al-

though the drawer may have, or may have

had at the time it was drawn, funds in the

possession of the drawee of an equal or

larger amount. There being no pylty, ex-

prese or implied, between the holder of the

the drawee, such holder of the

mer. Kiddell v. Bristow \[S. C.\] 45 S. B. 174.

check in its original form can bring no suit

46. Where note and trust dead were as-signed by a separate instrument, it only payment, the recourse of the holder is

mounted to an equitable assignment, since

grant the drawer and the indorcer, if 3 Cur. Law. ASSIGNMENTS SS 3. 833 must be accepted by the party upon whom it is drawn, \[85\] and delivered to the payee. \[86\] A check for a portion of a deposit does not generally operate at the time of delivery as an assignment pro tanto of the fund on deposit. \[87\] Orders given by a contractor for payment of money due which are accepted by the holder of the fund, \[88\] or warrants registered with a county treasurer, \[89\] operate as an equitable assignment of the fund. An agreement to pay a certain sum out of, or that one is entitled to receive the same from, a designated sum when received, does not operate as an equitable assignment, \[86\] the test being whether or not the debtor would be justified in paying the debt, or the portion contracted about, to the person claiming to be the assignee; \[87\] but it has been held that a direction to pay to another the money due does not constitute an assignment. \[88\] Neither a revocable power of the fund. \[89\]

how far and under what circumstances a check of a depositor in a bank will be considered an equitable assignment to the payee of the check of all or any portion of the funds or deposits to the credit of the drawer in the bank, is one which has been very much considered of late years in the courts. \[90\] We have been held that a direction to pay to another and about which there is not a unanimity of opinion. In this court, it is very well set- tled that such a check, unless accepted by the bank, will not sustain an action at law by the drawer against the bank, as there is no privty of contract between them. In the later case of Florence Mining Co., \[91\], the court said: "An order to pay a particular sum out of a special fund cannot be treated as an equitable assignment pro tanto, unless accompanied with such a reltquishment of control over the sum designated that the fundholder can safely pay it, and be compiled to do so, though forbidden by the drawer. A general deposit in a bank is so much money to the deposit's credit; it is a debt to him by the bank, payable on demand, to his order, not properly capable of identification and specific appropriation. A check upon the bank is in the usual form not accepted or certified by its cashier to be good, does not constitute a transfer of any money to the credit of the holder; it is simply an order, which may be countermanded; and payment forbidden by the drawer at any time before it is actually cashed. It creates no lten on the money which the holder can enforce against the bank. It does not of itself constitute an equitable assignment. In the late case of Pickle v. Muse, 88 Temn. 88-885, 17 Am. St. Rep. 900, the court reaffirmed this doctrine, and said: "This brings us to the question as to whether complainant can recover upon this check as against the bank. While the authorities are not agreed, yet the decided weight of opinion is, that the holder of a bank check cannot use the bank for refusing payment, in the absence of proof that it was accepted by the bank, or that it has done some other eat equivalent to and implying acceptance. This has been the uniform view of this court. Planters' Bank v. Merritt, 7 Heisk, 177: Planters' Bank v. Kleesee, 200; Imboden v. Perrle, 13 Lea, 504. We are unable to see any reason for disturbing the rule as heretofore declared by this court, especially as the decided weight of authority in accord with our decisions. \[90\] The test being whether or not the debtor would be Yerkes \[Pa.\] 19 Am. St. Rep. 607. Other notes on the same subject will be found in 19 Am. Dec. 422, 96 Am. Dec. 132 and 45 Am. Rep. 365. \[91\] The test being that the bank is not a legal contract. \[92\] The test being that the bank is not a legal contract. \[93\] The test being that the bank is not a legal contract. \[94\] The test being that the bank is not a legal contract. \[95\] The test being that the bank is not a legal contract. \[96\] The test being that the bank is not a legal contract. \[97\] The test being that the bank is not a legal contract. \[98\] The test being that the bank is not a legal contract. \[99\] The test being that the bank is not a legal contract.

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3. Cur. Law. ASSIGNMENTS SS 4. 335 ineffectual as notice. An assignment being superior to a foreign attachment, it is superior to an assignment after the attachment in which the assignee has given notice to the holder of the fund.79 An assignment of property as security for a running account is not security for advances made by the assignee after notice of attachments placed on the security by creditors.80 An assignment for the payment of a debt past due of such money as might thereafter become due upon a contract during its performance does not take priority over the claims of an assignee of the contract, who completed it after the assignor's abandonment.81 The assignee is not a bona fide holder, but he takes the property or right subject to all the equities existing between the parties,82 he is chargeable with any notice or knowledge the original creditor possessed of fraud on the part of the debtor affecting the collection of the debt,83 takes the right subject to forfeiture for acts of the assignor,84 and is bound by any settlement,85 or release,86 entered into by the assignor prior to the assignment. A plaintiff suing in tort, assigning to his attorneys an interest in the cause of action declared upon, the attorney does. not thereby become a necessary party to the suit,87 nor can he be made a party to the suit upon the motion of the adverse party,88 nor does it entitle the court to treat him as a party for the purpose of giving security for costs.89 A transfer to an attorney of a part of a cause of action, referring to the cause and authorizing the attorney to do all things necessary for the prosecution or settlement of the cause, authorizes the attorney to prosecute the cause in the assignor's name.80 On an absolute assignment of a claim in payment of a debt, the surplus to be paid to other creditors of the assignor, the assignee takes the legal title, the equitable title as to such surplus being in the other creditors.91 An assignor cannot settle a claim after assignment and notice to the debtor.92 An assignor not acquiring title until subsequent to the assignment, the assignee takes title by estoppel.98 A reassignment back to the assignor does not annul the assignment.94 SS 5. _Enforcement of assignment and of rights assigned.95--The assignment_ A. 216. 80. Howe v. Howe. 97 Me. 42, 54 A. 908. 81. Where a city contractor defaulted and assigned the contract to a surety, who completed the contract and then assigned his claim to plaintiff, such assignments were superior to a prior assignment made before any money was earned, to secure a past due debt, as contractor had abandoned contract, and nothing was then due him. Weeks v. New York, 42 Misc. 436, 87 N. Y. S. 88. 82. Where a corporation had no power to issue coupon bonds to pass by delivery, the assignee took them subject to prior equities. Georgetown Water Co. v. Flideity Trust & Safety Vault Co., 25 Ky. L. R. 1738, 78 S. W. 113. Assignee of judgment acquires the assignor's interest at the date of the transfer. Fischbeck v. Mielenz, 119 WIs. 27, 96 N. W. 426. Assignee of a trust dead in the nature of a mortgage takes it subject to all defenses which the grantor could make against the grantee. Bouton v. Cameron, 265 Ill. 86, 88 N. E. 800. See 1 Curr. L. 225, n. 63; Id. 226, n. 75. 83. Fuller v. Horner \[Kan.\] 77 P. 88. 84. Where one transferred liquor certificate aret after an offense had been committed, which was approved by authorities, who knew of the offense, it will not prevent them from enforcing the forelucture. In re Cullnan, 87 App. Div. 47, 83 N. Y. S. 1025. 85. Dannennmann v. Charlton \[La.\] 36 So. 86. Where the assignor, for consideration, releases the other party to the contract who had no notice of the assignment, the release binds the assignee. Smith v. Kissel, 92 App. Div. 235, 87 N. Y. S. 176. 87. Galveston, 27 K. Galseth, 7Tex. Gly. Appl. 73 S. W. 411. Does not render him a party in interest in the action. McLeland v. St. Louis Transit Co. \[Mo. App.\] 80 S. W. 30. 88. Galveston, 27 K. Galseth, 7H. 8 S. A. R. Co. v. Mathes \[Tex. Clv. App.\] 73 S. W. 411. 89. International 60 A. N. R. Co. v. Reeves \[Tex. Clv. App.\] 75 S. W. 1099; Galveston, 27 K. Galseth, 7H. 8 S. A. R. Co. v. Mathes \[Tex. Clv. App.\] 73 S. W. 411. 90. International, etc., R. Co. v. Reeves \[Tex. Clv. App.\] 75 S. W. 1089. 91. Snites v. Commerford \[La.\] 86 So. 656. 92. 10. Toy Coal & Coke Co. v. Long \[Ala.\] 86 So. 728. 93. Vulcan Detinning Co. v. American Can. Co. \[N. J. Eq.\] 58 A. 290. 94. Where defendant had contracted to sell iron to plaintiff who assigned the contract to another, and on defendant's refusal to consent, the contract was reassigned to plaintiff, that did not annul the original assignment so as to authorize plaintiff to sue being absolute, the assignee may generally sue in his own name," though in some states he must show, as a condition precedent to exercising this right, that he is the owner in his own right and for his own benefit, without accountability," and in an action upon such an assignment the assignor is not a necessary party," and where the claim is assigned for security the assignee," or the assignor, with the knowledge and acquiescence of the assignee,1 may sue thereon in his own name; and the assignee of such a claim may make a settlement with the consent of his assignor,3 and where such claim requires presentation before suit can be brought, presentation by the assignor with the assignee's knowledge and acquiescence is sufficient.3 The assignment must be in existence at the commencement of the suit in order to entitle the assignee to sue thereon,4 and in some states one's interest in an action being assigned during the pendency thereof, it may be prosecuted to judgment in the name of the original plaintiff.6 The assignee of a trade secret may enjoin employees of his assignor, having knowledge of the same, from utilizing it.6 The right to attach does not follow the debt assigned.7 The assignor in suing the assignee must allege the performance of conditions precedent.8 It is sufficient to allege an assignment without specifying the assignor's authority,9 though one claiming an assignment through an attorney in fact must show that the latter had authority.10 An allegation of an assignment by a company is not supported by proof of an assignment executed by an individual.11 Clerical errors will be overlooked.12 Where a plaintiff claims as an assignee, an amendment of his complaint, so as to declare upon an account stated immediately between the parties without reference to the assignor, is a departure from the original cause of action.13 One assailing the validity of an assignment on the ground that there was no consideration must prove lack of consideration.14 The first assignee's title being defective a subsequent assignee must show that he is a bona fide purchaser for a valuable consideration.14 The burden is upon the assignee to show that the debtor had knowl-

90 Claims Huddifeson v. Polk \[Neb.\] #1 cure a writ of attachment. Thuring v. Wink-N. W. 624. Practice Act (Gen. St. p. 2591) $ 1, 13 Okl. 643, 76 P. 1126; Thuring v. 340. Van Pelt v. Schauble, 68 N. J. Law, 683, 84 A. 437.

8 Where assignee of a bullding contract W. Uncas Paper Co. v. Corbhn, 75 Conn., was to pay assignor when paid by the owner, assignor must allege that the assignee was been paid by the owner. Schilling Co. v. 675, 65 A. 165.

98 O'Shaughnessy v. Humes, 129 F. 953.

99 Where a claim was assigned to se-

Robert H. Reid & Co., 87 N. Y. S. 1115.

eure a debt, the legal title there was in

9 An allegation that the executor of the the assignee, even after the debt was paid,

by agree assigned some notes, without alleging in the absence of a reassignment, and the

that the had authority from the debate court, assignee may sue thereon \[Ball. Ann. Codes & St. $ 4836\]. Von Tobel v. Stetson & Post

8 Is sufficient as it is presumed that a valid assignment is alleged. Kern v. Brooks

1. Lanson v. Marshall \[Mich.\] $5 N. W.

10 Darlington Miller Lumber Co. v. Na-78.

2 Curtls v. Curtis \[Mich.\] $6 N. W. 32.

3 Lanson v. Marshall \[Mich.\] $5 N. W.

78.

4 An undated writing purporting to be an assignment of a contract is not addmsi-

ble in evidence to show defendant was the owner of the contract at the commencement of the action, where on cross-examination,

it is shown that the writing was actually signed after the action was brought. Lib-

ery Wall Paper Co. v. Stoner Wall Paper

13 Tyv Coal & Coke Co. v. Long \[Ala.\]

86 S0. T22.

5. Code, $ 3476. Mayo v. Halley \[Iowa\]

100 N. W. 529.

6. Vulcan Detinning Co. v. American Can. Co. \[N. J. Eq.\] $8 A. 290.

1. Fraud in the contracting of a debt is

personal and does not follow an assignment of the debt, so that the assignee may pro-

of the debt, so that the assignee may pro-

9. Tra 8 Cur. Law. ASSIGNMENT FOR CREDITORS SS 2. 837

edge of the assignment before a settlement was made.10 An assignor is a competent witness, and may be questioned on cross-examination as to particulars of the transaction occurring before the assignment.17 Upon default the assignee may purchase claims assigned as collateral security.18 Where a settlement is made with an assignor, after suit is brought by the assignees, of part of the claim the court has jurisdiction to determine the debtor's liability to the assignee.19

ASSIGNMENTS FOR BENEFIT OF CREDITORS.

$ 1. Nature of Transaction in General $ 0. Collection of Assets and Reduction to (S37). Money. Sale of Assets by Assignee (342). $ 2. Statutory Provisions and Conflict of Laws (S37). $ 3. Right to Make a General Assignment (343). $ 4. Filing, Recording, or Registering (344). $ 5. Dashing of Assignee, Removals, and Sub-Claims (344). $ 6. Messing and Effect in General (338). $ 7. Property Passing to and Rights of the Assignee, Settlement and Dis-the Assignee Therein (341). $ 8. Libility of Assignee; Bond (342).

SS 1. _Nature of transaction in general.20_--A direct transfer to creditors, without the intervention of a duly appointed trustee, is not an assignment for the benefit of creditors,21 nor does this term include the assignment of specific property for the benefit of particular creditors,21 though in some states an assignment of all the debtor's property to one or more creditors is equivalent to a general assignment,23 a surety on a note being a creditor of the maker within the meaning of such a statute.24 In order to distinguish an assignment from a mortgage, the test is, was it the intention of the parties at the time of executing the instrument to divest the debtor of his title and so make an appropriation of the property affected to the raising of a fund to pay debts? If such was the intention, the instrument is an assignment for benefit of creditors.21

SS 2. \_Statutory provisions and conflict of laws.25--State acts on the subject are not generally retroactive,27 and must not violate constitutional provisions.28 The law of the state where the assignment was made governs, there being nothing represented sums not really owing the as- within the meaning of Code Pub. Gen. Laws, signee, held, the latter not a bona fide hold-, art. 16, $ 205, and hence need not be record-er. Unens Paper Co. v. Corbin, 75 Conn. 175, $ 4. 165. $ 4. 165. $ 4. 165. $ 4. 708. Where the transfor reserved the income for his own benefit. Heath V. Wilson, 139. Vol. 862, 73 P. 182. See 1 Carr. L. 227, n. $ 88. 72. Where debtor conveyed its property to its manager, he to give a mortgage thereon to a creditor, held a mere evasion of the statute (Code 1896, $ 2158). Smith v. Mc-eded (Cala.) $ 86. 376. Mortgage of all of grantors' estate held an assignment for benefit of creditors. Pollock v. Jones \[C. C. A.\] 124 Y. 163. $ 24. Code 1896, $ 2158. Smith v. McCadden (Cala.) $ 86. 376. $ 168. $ 4. 28. Smead v. Chandler & Co., 71 Ark. 606, $ 8. 376. $ 168. $ 168. $ 176. $ 168. $ 177. $ 168. $ 177. $ 168. $ 177. $ 186. $ 187. $ 188. $ 188. $ 189. $ 19. $ 19. $ 20. See 1 Curr. L. 227. 27. Kentucky St. 1903, $ 74.-96 is not retroactive. Fitch V. Duckwall, 25 Ky. L. R. 1653, $ 8. 185. $ 18. $ 18. $ 18. $ 20. $ 21. Annlston Iron & Supply Co. v. Annlston Rolling Milli Co., 125 Y. 974. See 1 Curr. L. 227, n. 1. 22. Assignment of claim for injuries to assignor's attorney held not an assignment $ 8 Curr. Law--22

SS 2. \_Statutory provisions and conflict of laws.25--State acts on the subject are not generally retroactive,27 and must not violate constitutional provisions.28 The law of the state where the assignment was made governs, there being nothing represented sums not really owing the as- within the meaning of Code Pub. Gen. Laws, signee, held, the latter not a bona fide hold-, art. 16, $ 205, and hence need not be record-er. Unens Paper Co. v. Corbin, 75 Conn. 175, $ 6. 165. $ 16.

338 ASSIGEMENT FOR CREDITORS SS 3. 3 Cur. Law. in the instrument to indicate that it is to be performed elsewhere,2\* and the courts of such state are the only ones having jurisdiction of the proceedings.20 The rights of a nonresident creditor in the collection of his claim in the state of his domicile are not affected by state insolvency laws, unless he has voluntarily submitted himself to their operation,31 but a common-law assignment, containing no prejudicial provisions and being made in good faith, binds resident and nonresident creditors alike.32 In the latter case, the assent of the creditors may be presumed; in the former it cannot.33 The bankruptcy law does not suspend the operation of state insolvency laws, an assignment being good unless seasonally impeached by bankruptcy proceedings.34

SS 3. \_Right to make a general assignment.35--In Missouri, insurance companies under the surveillance of the superintendent of insurance cannot make a valid assignment for the benefit of creditors.36

SS 4. \_Filing, recording, or registering; qualifying of assignee, removals, and substitution.37--In some of the states, the deed of assignment must be recorded,38 and it is no excuse that the assignor requested the assignee not to so record it.39 That the assignee prior to the assignment and as attorney for several creditors attached the property of the debtor, subject to which attachments the property was assigned, does not invalidate the assignment.36

The assignee's management being wasteful, negligent, or otherwise inefficient, he may be removed upon petition by creditors,41 though this right may be lost by laches.42 The assignor being a corporation and insolvent, the courts in some states will remove the assignee and appoint a receiver.43

SS 5. \_Meaning and effect in general.44--Either an acceptance by the assignee or a deposit for record by the assignor without the assignee's acceptance irrevocably vests the beneficial interest in the property in the creditors.45 In Missouri, the execution of a deed of assignment immediately after giving a preference does not invalidate the latter.46 The intent to waive a constitutional right should be clear.47

SS 6. _Legality and equitableness.48--S seals are seldom necessary.49 A deed of_

29. In re Browning \[N. J. Prerog.\] 57 A. 86. 86. 86. 86. 86. 86. 86. 87. 87. 88. 88.

assignment executed in the name of a corporation by its president need not show on its face authority for its execution.\[50\] A deed of assignment by the directors of a corporation being made without authority may be validated by the subsequent assent or acquiescence of the stockholders,\[61\] and, the stockholders so assenting, creditors cannot attack the assignment in that it was made without authority.\[82\] By asserting to the assignment, creditors will be estopped to question the validity thereof.\[83\] The deed of assignment is not rendered void by providing for payment of the assignee.\[84\] The assignment being void in part it is void in toto.\[85\]

_Reservation of property.\[50\]_--The assignor intentionally withholding or secreting a part of his property, the assignment is void.\[51\]

50. Hilliard v. Burlington Shoe Co. \[Vt.\] creditors, is valid. Hoffman v. Mackaill, 6 6A. 283.

01. Blanton v. Kentucky Distilleries & ley v. Mills, 27 Tex. 434. Reservation of sur-Warehouse Co., 120 F. 318. But see 1 Curr. L. 228, no. 18-21.

01. In that proper legal notice of the meeting was not given. State Nat. Bank v. Duncan \[Miss.\] 35 So. 569.

01. Kaufman v. Simon, 80 Miss. 189.

01. Armour v. Dolfg \[Flla.\] 34 So. 248.

01. NOTE. The assignorment being void in pars., it is void in toto. Ware v. Wainless, 2 Wyo. 144. Equity will not sever the die-ments of fraud from the instrument and give effect to the rest. Ware v. Wainless, 3 Wyo. 144; Kayser v. Heavenrich, 8 Kam. 324. A debt being intentionally preferred, the whole assignment is void. Hiller v. Ellis, 72 3Miss. 701, 18 So. 95.--From note to Bank of Little Rock v. Frank \[Ark.\] 58 Am. St: Rep. 65, 99.

01. See 1 Curr. L. 228.

01. Armour v. Dolfg \[Flla.\] 34 So. 249. Evidence that a few months previous the assigned had a larger amount of property than that turned over is competent on this question, no material losses appearing. Armour v. Dolfg \[Flla.\] 34 So. 249. See 1 Curr. L. 228.

n. 25. NOTE. illegal reservations: A voluntary assignment for the benefit of creditors which reserves to the assignor any interest, benefit.

maxle the assignment fraudulent and void or advantage, out of the property conveyed, as to creditors, although the assets assigned to the exclusion or injury of creditors is are of great value, and the sum withheld fraudulent and void on its face. Kayser v. by the assignor is to meet pressing family Heavenrich, 6 Kan. 324; Claflin v. Iseman, 21 3S. C. 416; Charles v. Blanchford, 6 Mackey, Miss. 333; but in Shuffeld v. Jenkins, 23 Fed. 458; Ware v. Wainless, 2 Wyo. 144; Lawrence v. Norton, 15 F. 853; Muller v. Norton, 19 F. 721; Balley v. Carroll, 18 F.

### References

- \[1\] An assignment preferring certain creditors is void," but an assignment providing for the payment of a secured creditor," or a void claim," does not provide for a real preference and is valid.

take the property in execution (McAllister v. \[ out an order of the court, he will be surMarshall, 6 Bin. 318, 6 Am. Dec. 458).

While an assignment for the benefit of creditors is fraudulent and void as against attaching creditors of the assignor, if he re-served a part of his property not exempt by law for his own benefit (Wichita, etc., Grocery Co. v. Records, 40 Kan. 119; Penzel Grocer Co. v. Williams, 53 Ark. 81), a general assignment of all the debtor's property is not rendered fraudulent because the debt- or reserves to himself a homeseted or other exemptions to which he is lawfully entitled.

Southern Suspender Co. v. Van Borries, 91 Als. 507; Frank v. Myers, 97 Als. 437; Ritch-ardson v. Stringfellow, 100 Als. 416; Penzel Grocer Co. v. Williams, 53 Ark. 81; Clark Shoc Co. v. Edwards, 57 Ark. 331; Baker v. Baer, 69 Ark. 603; King v. Harsafme-McKittrick, etc., Co. 60 Ark. 1: WINDER v. Bryant, 78 Cal. 263; Parker v. Cleveland, 87 Fla. 39; Dorr V. Schmidt, 83 Fla. 364; Bradley v. Bischel, 81 Iowa, 80: Muhr v. Phinov, 67 Md. 480; Hartzler v. Tottle, 85 Mo. 23; Bobtt v. Kodwell, 105 N. C. 286; Morhead Bankri Co. v. Whitaker, 110 N. C. 345; Da Silva vs v. Smith, 113 N. C. 94; Haynes v. Hoffman, 46 S. C. 167; Durham, etc., Co. v. Hempth, 45 S. C. 621; Dawley v. Sherwin, 5 B. D. 594; Richardson v. Marquez, 59 Misa, 80, 42 Am. Rep. 353; McFarland v. Bate, 45 Kan. 1.

Creditors are not hindered or delayed by the reservation of that which they have no right to touch. Hillebrand v. Bowman, 100 Pa. St. 580. The reservation of money which, in amount, is equal to a personal property exemption, in lieu of such exemption is no evidence of a fraudulent purpose.

Morehead Bankriing Co. v. Whitaker, 110 N. C. 345. Nor is a provision In the assignment that the assignee shall sell the property conveyed and pay to the assignor a certain amount of money as his personal property exemptions. Blair v. Brown, 116 N. C. 631; showing facts, however, constituting sufficient evidence of a conspiracy to defraud the creditors to admit evidence of declarations of the debtor made after the assignment. It has been held that the reservation, from the proceeds of personal property assigned, of a sum equal to the assignor's exemptions' renders the debtor of assignment vod (King v. Kub., 54 Ark. 418); and, on the other hand, that, if the deed of assignment does not provide for the payment of exemptions out of the proceeds of the assigned property, and no fraud or collusion as to the execution of the instrument is shown, the subsequent allow- the assignment of the assigned property does not render the deed 1932 N. Y. 556; Turnijseed v. Schaefer, 76 Ga. (Dorr v. Schmidt, 38 Fla. 354). An assign-ment is not invalid because of a direction that a chatted exemption to which the debt- or is definitely under the homeset law of the state shall be in money derived from a sale of the property assigned for the benefit of creditors. Adler v. Cloud, 42 S. C. 272.

But if apparsters award the assignor his exemption out of the proceeds of real estate to be sold, and the assignee afterward pays over the money of his own motion and with- * 87. Property passing to and rights of the assignee therein."--The assignment being valid," all the right, title, and interest the assignor has in the property passes thereby," and becomes vested in the assignee the moment he accepts the trust and files the assignment for record." Under a voluntary assignment, the assignee becomes a trustee for the creditors." The estate does not "devolve" upon the assignee by the assignment, but is "granted" by it." The assignee making an assignment for benefit of creditors, his assignee takes no title or right to the property held by his assignor as assignee." At the common law, the assignee stands in the shoes of the assignor, representing him and taking the assigned property subject to all transfers and incumbrances, whether fraudulent as to creditors or not, and subject also to all equities existing between the assignor and any particular creditor;" under this rule he cannot sue the assignors for conspiring with others to defraud the firm and its creditors," nor does he acquire title to property held by the assignor under a contract of conditional sale, though such contract is not recorded," the seller being entitled to enforce the contract and obtain possession of the property by petition of intervention in the assignment proceedings," no demand or surrender of the note given for the purchase price being necessary to entitle the seller to so intervene," and there being a balance due the seller after the return of such chattels, he may prove it against the estate." In some of the states, however, this rule has now been changed by statute, the assignee representing the creditors, not the assignor," and hence he has power to set aside all conveyances or transfers of property by the assignor, which are fraudulent as to creditors, whether the property be within or without the state wherein he is appointed," and the creditors have through him the rights of attaching creditors." An assignment for the benefit of creditors does not at the common law, in the absence of an estoppel, pass the debtor's interest in a contingent remainder," though this rule has been changed by statute in some states." The assignor's wife not joining in the assignment, has no effect on her dover interest." The interest of an assignor in property can only be enforced or collected by the assignor." A secured creditor not being paid may sell his security after notifying the assignee, and the sale being made in good faith and for as large a sum as possible, it is valid."

- 10.555 10.

_Property transferred or conveyed by assignor._"--A sale by a debtor to a creditor, though made the day of the assignment, is valid as between the parties and cannot be set aside by the assignee where the only result would be to benefit the debtor.\[84\] An assignee claiming that a transfer by the assignor is within a statutory prohibition must prove the facts bringing the transaction within the terms of the statute and make it applicable,\[85\] there being no presumption that the property was delivered after the execution of the assignment.\[86\]

SS 8. _Liability of assignee; bond._"--An assignee is only bound to use ordinary and reasonable diligence in the execution of his trust,\[85\] he is not personally liable upon a lease taken as part of the assigned estate,\[80\] and a creditor expressly releasing him from liability is bound by the release.\[90\] The assignee violating the conditions of the order of discharge,\[91\] as where he wrongfully redelivers property to the assignor, an action may be maintained on his bond for the damages caused thereby,\[92\] unless the aggrived creditor assents to such violation." In Wisconsin, the plaintiff need not file security for costs.\[94\] The creditor does not lose his right to proceed upon the bond by proving his claim in bankruptcy proceedings, afterwards brought by the assignor.\[95\] A surety on an assignee's bond, conditioned that the assignee will faithfully discharge all his duties, is liable for his principal's failure to pay over the assets as required by law.\[98\] A proceeding to release the sureties from liability for subsequent acts or omissions of the principal may be ex parte as to creditors of the principal, and, upon notice, to the latter only.\[97\]

SS 9. _Collection of assets and reduction to money. Sale of assets by assignee.\[98\]_--In some states, the assignee may sell real property at private or public sale,\[99\] an appraisal not being necessary.\[1\] If an appraisal, however, is necessary, the including of personalty is an irregularity which is cured by a confirmation of the sale as provided by the statutes, without any exception having been filed thereto.\[2\] The assignee and administrator of the deceased assignor may join in a special proceeding for the sale of the real estate to pay debts,\[3\] and an allegation in the petition that the intestate was seized in fee of the land does not affect the rights of creditors in such land.\[4\] The assignee selling claims of the assignor, not guar-

SS3. See 1 Curr. L. 229.

SS4. Voul become part of his exempt property. Murray v. Willlamson, 133 N. C. 119 Wis. 410, 96 N. W. 817.

318, 45 S. E. 637. See 1 Curr. L. 225, n. 52.

SS5. Dunn v. Train \[C. C. A. 125 F. 231.

SS6. Evidence held Insmfficient to support such a contention. Hayes v. Ammon, 90 App. Div. 604, 85 N. Y. S. 607.

SS7. See 1 Curr. L. 230.

SS8. He is not responsible for stolen goods unless it can be shown that the loss occurred by reason of his culpable negligence. Hillis v. Asay, 105 Ill. App. 667.

SS8. Man v. Katz, 40 Misc. 648, 83 N. Y. S. 94.

90. Held to have released assignee by a letter, and the latter having sold land upon which a lien existed and transferred the pro-

eeds to another pursuant to an agreement to which the creditor had assented, the assignee is not liable. Louisville Ins. Co. v. See 1 Curr. L. 230.

Tate, 26 Ky. L. R. 61, 74 S. W. 722.

91. Hingenoldus v. Abresch, 119 Wis. 410,

96 N. W. 817.

97. Constraining Code Civ. Proc. 1 812. Siebert. Mibbank, 88 N. Y. S. 993.

01. An assignment directing a sale with redilivered property without assignor do-

01. But a assignment directing a sale with redilivered property without assignor do-

01. But a assignment directing a sale with redilivered property. Ammon v. Dogic \[Fla.\] 34 So. 249.

01. Kentucky St. 87, as amended by

01. Asschets 3 Cur. Law. ASSIGNMENTS FOR CREDITORS SS 11. 343

antying the amount, cannot recover from the purchaser money paid him by an attorney who had collected the same prior to the sale.\[5\]

An assignee cannot indirectly purchase assigned property, though he may acquire property, which he has fairly sold in his fiduciary capacity, after the sale is complete and the title vested in the purchaser, but the sale remaining executory, he is disqualified to buy, and the burden of showing that the first sale was fairly and regularly made is upon the assignee.\[8\]

_Validity and setting aside sale._--Persons having no interest in the property should not be made parties to proceedings on exceptions to the judicial sale of the property of the assignor.\[10\]

SS 10. _Administration of the trust in general.\[11\]_--A court obtaining jurisdiction of the proceedings, no other court has the right to interpose for the purpose of adjusting any claim or administering the estate, except, perhaps, a court of equity may, under special circumstances, intervene to prevent a failure of justice.\[12\] The assignee must administer the estate under the supervision of the court having jurisdiction of the proceedings.\[13\] At common law, the effect of an assignment for the benefit of creditors is to put an end to the business as ordinarily conducted, it being the duty of the assignee to proceed without unnecessary delay to convert the assigned estate into money and to apply the same to the payment of the assignor's debts,\[14\] and the assignor cannot in the ded of assignment authorize his assignee to continue and carry on the business, either for the benefit of creditors or for his own benefit.\[18\] While this is the general rule, there are exceptional cases in which the assignee with the consent of the creditors may work up the stock on hand and prepare it for the market, it being manifest that it will be for the benefit of the assigned estate.\[16\] The assignee, on his own judgment and against the protest of creditors, electing to continue a manifestly unprofitable business, he is liable for the cash and value of the property on hand when taking charge of the business.\[17\]

SS 11. _Debts and liabilities of the estate.\[18\]_--The claim must not be fraudulent,\[19\] and a lien being claimed, the petition must assert the same.\[20\] A claimant is not entitled to an allowance from the estate for services rendered in contesting other claims, the assignee being represented by competent counsel.\[21\]

_Claim of assignee for compensation and allowance.\[22\]_--The assignment being fairly made in good faith, the assignee is entitled to reasonable compensation for beneficial services and disbursements,\[28\] and for this compensation the assignee has a lion on the estate,"44 which lien is unaffected by subsequent bankruptcy proceedings,"25 and is not waived by surrendering all the assets to the .trustee in bankruptcy.26 The assignee may in good faith employ counsel to advise and assist him in the discharge of his duties, and may pay them out of the trust fund reasonable compensation for their services,27 and the allowance being made direct to the attorneys it cannot be defeated by any subsequent arrangement made by the assignor with his assignee.28 An allowance of compensation,29 or attorney's fees,30 will not generally be disturbed on appeal.

SS 12. _Presentment and allowance of claims.31_--Statutes requiring the filing of claims against insolvents do not relate to a claim for an indebtedness incurred by the assignee on behalf of the estate after the assignment.28 A claim being fraudulent, the creditor cannot object to the claim of another.33 A claim should not be rejected without proof, and in some cases, pleadings should be filed and a trial had34 before the proper officer,35 of the issues raised. An objection to the allowance of a claim is sufficient if adequate to identify the claim.36 Exceptions by a creditor to the allowance of exemptions to the assignor are an assertion of his claim and makes him a party to the proceedings, so that if the claim is not then barred by limitations, such defense cannot be set up after a judgment in his favor, though he did not present his claim to the assignee for allowance.37 Payment by a debtor of the assignor, of a debt contracted by the assignor subsequent to the assignment, which does not result in benefit to the creditors, cannot be credited on the payor's debt.38 A purchaser of goods assuming the debts of the seller as part consideration, such creditors are entitled to share in the purchaser's estate subsequently assigned for the benefit of creditors and entitled to have the assignee account to them.39 The assignee is bound by the decree of a court unless he appeals therefrom,40 and a creditor objecting to the allowance of the assignor's exemption, a trial on the merits resulting in favor of the creditor not being appealed from, is binding upon the assignee, though not a party to the proceedings, no other creditors having a debt superior to the exemption.41

SS 13. _Classes and priorities of debts.42_--The assignee takes the property of his assignor subject to all equities and liens that might have been enforced before the assignment;43 thus a mechanic's lien,44 a creditor secured by a deed of trust,45

Joint assignment by corporation and presl-

dent thereof, corporation creditors claiming

Hull's Assignee, 24 Ky. L. R. 2185, 74 S. W. individual assets. Dunlap v. Fibie & C. Distilling Co., 26 Ky. L. R. 1116, 77 S. W. 173.

**S5.** In Alabama, the register in chancery

Estate sold for $60,000, assignee put in two

years' time, held entitled to $2,400 compensan

tion, Id.

24, 25, 26. In re Chase \[C. C. A.\] 124 F.

753.

001. Berkeley v. Green \[Va.\] 46 S. E. 87;

Mattingly's Trustee v. Mattingly, 24 Ky. L. R. 2029, 72 S. W. 802.

28. Mattingly's Trustee v. Mattingly, 24 Ky. L. R. 2023, 72 S. W. 802.

01. Auditor's finding of fact. In re Powe

el's Estate \[Pa.\] 57 A. 981.

30. Though appearing small in view of all

the circumstances. Thum V. Kentucky Cit-

zens' Bldg. & Loan Asr'n Receiver \[Ky.\] 80 S. W. 179.

81. See 1 Curr. L. 231.

01. Ringenoldus v. Abresch, 119 Wia. 410,

96 N. W. 817.

33. Baum v. Corslana Nat. Bank \[Tex.

Civ. App.\] 76 S. W. 863.

34. Where it was alleged that the claim

belonged to the assignor's father's estate and

that the father had devised him property

subject to such indebtedness. Weller v.

Hull's Assignee, 24 Ky. L. R. 2185, 74 S. W. 172.

35. In Alabama, the register in chancery

may hear objections to a preferential allowance as well as to the claim as a whole \[Code

1896, 84 4152-4173\]. Winston v. Miller \[Ala.\]

35 So. 868.

36. Field adequate though not stating

the representative capacity of the claimant

and mastating the amount of the preference

claimed. Winston v. Miller \[Ala.\] 35 So. 883.

37. Matthews' Assignee v. Matthews' Assignee, 25 Ky. L. R. 1873, 79 S. W. 188.

01. Miller v. Arthur \[Va.\] 46 S. E. 323.

01. Voorhees, Miller & Co. v. Porter, 134

N. C. 591, 47 S. E. 81.

40. Decree of the probate court distrb-

uting the property of the assignor to judgment creditors. Snyder v. Murdock, 8 Cur. Law. ASSISTANCE, WRIT OF. 345 and the beneficiary of trust funds,\[46\] are entitled to preferential payment. In some states wages of employees earned within a certain time before the assignment are given priority.\[47\] Creditors having liens should be first compelled to exhaust their liens and as to any balance should be allowed to share pro rate in the same manner as unsecured creditors.\[48\] The claims of creditors who stand in a hostile attitude to an assignment cannot be prorated with the claims of those who have complied with the act in a distribution of the proceeds of the assigned property,\[49\] but an action by a creditor to set aside the assignment on the ground of fraud is not an election by him to take in hostility to the assignment.\[50\]

SS 14. _Satisfaction and discharge of debts and claims.\[51\]_--The assignee being a debtor of the assignor, the debt, less commissions thereon, will be set off against the commissions allowed such assignee.\[52\] An insolvent having executed simultaneously two deeds of assignment, each for property in separate states, creditors presenting their claims in one state are not entitled to participate in the distribution of assets in the other state until the creditors in the latter state have received in the other state a percentage on their claims equal to the percentage received by the creditors in such state.\[68\] The assignment directing the distribution to be ratable, a creditor holding collateral security cannot receive dividends upon the face of his claim without crediting the value of the collaterals.\[64\] A creditor having a claim antedating the assignment, and having full knowledge of the latter and the administration of the estate, cannot enforce a judgment, subsequently recovered, outside of the insolvency proceedings.\[65\]

SS 15. _Accounting, settlement and discharge, or failure of trust.\[68\]_--One demanding an accounting several years after waiver of a formal accounting by the other creditors must do so by a suit in equity.\[67\] That the assignee was not charged on the accounting with interest on funds he neglected to invest is no ground for denying him commissions or the taxable costs of his accounting.\[68\] Costs in an accounting should be taxed by the clerk on notice to all parties who appeared in the proceeding,\[69\] though the court will tax them in the first instance if all parties have notice of the motion and there is no dispute.\[60\] The assignment being settled out of court, the assignor's title to the assets is not affected thereby.\[61\]

ASSISTANCE, WRIT OF.

Courts of equity have jurisdiction to issue the writ,\[62\] but a judge at chambers has not.\[68\] The judgment of a court ordering the writ may operate as a con 346associations and societies SS 1.3Cur. Law.

firmation of a foreclosure sale.\[54\] That an order of the court takes the form of a writ of assistance is immaterial.\[65\] A writ of assistance may be set aside at the instance of one who was not a party to the action at the time of its issue,\[66\] if it appear that he was a necessary party,\[67\] and a notice of appeal from the order granting the writ need not be served on all the parties to the original action.\[68\]

ASSOCIATIONS AND SOCIETIES.\[69\]

SS 1. Definition, Nature, and Organization (346). \*\*SS 3. The Association and Persons Not Members (347). \*\*SS 2. Internal Relations, Rights, and Duties (348). \*\*SS 4. Actions and Litigation (348). \*\*SS 5. Dissotation and Termination (348).\*\*SS 1. _Definition, nature, and organization.\[70\]_--Associations formed for the purpose of pecuniary profit are controlled, as to the liabilities arising from contract, by the law of partnership.\[71\] Adoption of a name in use by an existing association will be enjoined.\[72\]

SS 2. _Internal relations, rights, and duties.\[73\]_--The constitution and by-laws adopted by a voluntary association constitute a contract between the members which, if not immoral or contrary to public policy or law, will be enforced by the courts,\[74\] and the funds of an association can be diverted from the purposes declared in the constitution, by-laws and rules only on consent of each individual member.\[75\]

Where a power is vested in the majority, a member cannot object to a majority action, on the ground that he was not in the state or had but constructive notice, there being no fraud.\[76\] Parol evidence may establish such action.\[77\]

The discretion of an association as to who may be admitted to membership will not usually be judicially controlled,\[78\] or its proceedings under its laws for the discipline of members,\[79\] though a member may have an action in damages for wrongful expulsion,\[80\] which will lie when the association has ratified an \*

64. State v. Evans, 176 Mo. 310, 75 S. W. 914. \*\*74.\*\*Kalbitzer v. Goodhue, 52 W. Va. 435, 44 S. E. 264. Contracts of association for the division of town lots among the members who were purchasers, held to authorize sale of right of preference in selection at auction to the highest bidder, under a scheme adopted by the majority. Morey v. Clopton forced. Mills v. Smiley \[Idaho\] 76 P. \*\*75.\*\*Majority vote is not sufficient. Kalbitzer v. Goodhue, 52 W. Va. 435, 44 S. E. 264. Contracts of association for the division of town lots among the members who were purchasers, held to authorize sale of right of preference in selection at auction to the highest bidder, under a scheme adopted by the majority. Morey v. Clopton \[Mo. App.\] 77 S. W. 467. \*\*75.\*\*Majority vote is not sufficient. Kalbitzer v. Goodhue, 52 W. Va. 435, 44 S. E. 264. \*\*86.\*\*Mores v. Clopton \[Mo. App.\] 77 S. W. 467. \*\*77.\*\*Where a temporary association is formed to divide land as agreed on by the majority, a meeting and action for such purpose may be proved by parol, without reference to any record kept by the secretary. Morey v. Clopton \[Mo. App.\] 77 S. W. 467. \*\*78.\*\*A bar association, though incorporated, cannot be compelled by mandamus to admit to membership one whose application has been denied after consideration in accordance with its rules and regulations. State v. Louisiana Bar Ass'n, 111 La. 967, 36 So. 50. \*\*79.\*\*Mason cannot have injunction of a trial on unproven allegation of a conspiracy to affect to his prejudice his trial on pending criminal Indictments. Franklin v. Burnham, 40 Misc. 566, 52 N. Y. S. 882. \*\*80.\*\*S. Mandamus is not his sole remedy. He may recover for the loss of benefits, of 3 Cur. law. ASSOCIATIONS AND SOCIETIES SS 3.37

expulsion not at first its associate act. \[81\] The member is not remitted to remedy within association, if inadequate or impracticable. \[82\]

Membership does not become a property right through the mere fact of the possession of property by the association. \[83\]

By-laws giving a power to terminate membership are not self executing, \[84\] but a notice that a member will be dropped unless he pays dues before a date named is sufficient. \[85\]

A member is entitled to notice of the proceedings of a committee appointed to act with reference to a dispute with a co-member. \[86\] Objection to the jurisdiction of a tribunal is waived by submission by the member and allowing the investigation to proceed. \[87\] If the action of a trial board is valid the invalidity of an attempted adoption by the association at an unauthorized meeting is cured by a valid subsequent adoption. \[88\]

Resignation, \[89\] or notice of intention to resign, in compliance with by-laws, may terminate further liabilities as a member. \[90\]

SS 3. _The association and persons not members. \[91\]_--An association may recover the entire amount of a debt due it as such, though a portion of its members have withdrawn. \[92\]

One contracting for an unincorporated association having no corporate or legal status is personally liable, \[93\] but an action cannot be maintained against an officer, unless the debt is one on which an action could be maintained against all the associates either jointly or severally. \[94\]

use and enjoyment of the property of the society, and also mental suffering occasioned by the fact and manner of expulsion. Lahiff

SSs. Such action pending mandamus for restoration of membership will cause denial of the writ. People v. Old Guard of City of v. St. Joseph's Total Abstinence & Benev. New York, 87 App. Div. 478, 84 N. Y. S. 766. Soc. \[Conn.\] 57 A. 692.

SSs. Where an association of bottlers contracts for the collection of bottlers for its members for a fixed period, a fixed sum can-not be recovered from a resigning member after his resignation. Such a contract is not contemplated by a by-law requiring payment of all liabilities as a condition to resignation. Long Island Bottlers' Union v Liebman's Sons Brew. Co., 83 App. Dev. 144, 82 N. Y. S. 661.

N. Y. S. 661.

90. Where it is provided that a member may resign on written notice of intent to do until payment of fine. Corregan v. Hay, 87 N. Y. S. 956.

shall take effect, the notice is sufficient with an additional filing of an actual entry derived from the payment of dues and fins, the possession of which is a mere incident and not the main object of the association, does not confer a property right on the members save that of enjoyment while in good standing. Hence proceedings under the laws of the association cannot be re-trained as interfering with property rights.

Injunction will not lie to prevent expulsion of mason. Franklin v. Burnham, 40 Misc. 566, 82 N. Y. S. 882.

84. A provision that on failure to pay does a member shall be dropped is not self-executing, where it is provided that the action shall be taken by the board of governers.

01. Member may still be held for regular dues. Westchester Golf Club Co. v. Pinkney, 87 N. Y. S. 153.

01. Westchester Golf Club v. Pinkney, 87 N. Y. S. 153.

01. See l Curr. L. 235.

01. People v. East Buffalo Live Stock Asr'n, 88 App. Div. 619, 84 N. Y. S. 786.

01. People v. Old Guard of City of New York, 87 App. Div. 478, 84 N. Y. S. 766.

01. Sub action pending mandamus for restoration of membership will cause denial of the writ. People v. Old Guard of City of New York, 87 App. Div. 478, 84 N. Y. S. 766.

01. Where an association of bottlers con-tracts for the collection of bottlers for its members for a fixed period, a fixed sum cannot be recovered from a resigning member after his resignation. Such a contract is not contemplated by a by-law requiring payment of all liabilities as a condition to resignation. Long Island Bottlers' Union v Liebman's Sons Brew. Co., 83 App. Dev. 144, 82 N. Y. S. 661.

N. Y. S. 661.

90. Where it is provided that a member may resign on written notice of intent to do so, a specified time before the resignation shall take effect, the notice is sufficient without an additional filing of an actual resignation at the end of the period. Long Island Bottlers' Union v. Liebman's Sons Brew. Co., 83 App. Div. 146, 82 N. Y. S. 661.

01. See l Curr. L. 235.

01. Band held entitled to complete recovery on contract to furnish music. Detroit

Light Guard Band v. First Michigan Inde-

93. Complement alleging a contract as com-

01. Amestation of a commary of crispist Templars

01. In the name of the association, and signing in name of defendants' testator, held good

01. Asgant demurrer. McKinn v. Postles (Del. Super.) 54 A. 798. Member contracting as agent. Detroit Light Guard Band v. First Mich. Independent infantry \[Mich.\] 98 N. W.

01. See

## 4 Actions and litigation

In the absence of statute a voluntary association cannot be sued at law as such," but the right to sue an unincorporated association in the name under which it is known is frequently given by statute." Such statutes do not abrogate the right to sue the members and association jointly." Where the statutes of a state authorize such a suit its courts are not bound by comity to follow the method prescribed by the statute of another state."

Process must be served in accordance with statutory provisions.\[100\]

## 5 Dissolution and termination

### ASSUMPSIT

**SS 1. Nature, Form, and Propriety of Ae-** **SS 3. Declaration, Pleas, and Defenses** **SS 2. The Common Counts** **SS 4. Evidence** \*\*SS 1. Nature, form, and propriety of action

Assumpsit lies only on a simple contract

express or implied

the promise being the gist of the action

Special statutory remedies are usually deemed merely cumulative to the remedy by assumpsit

_Waiver of tort_

The owner of property which has been converted may waive the tort and sue on the common counts in assumpsit

Some states limit the right of election to cases in which the property has been converted into money

Where the breach of duty sued on is a breach of a contract on which assumpsit will not lie, not a tort, the doctrine of waiver does not apply

An election to pursue one remedy is a waiver of the right to pursue the other

bers formed for political purposes. Hosman

**SS.** Wherever one person has money equti-\*\* v. Klinneally, $6 N. Y. S. 263.

**SS.** See I Curr. L. 235.

**SS.** Evidence held to show absence of any

and the obligation to do so may be enforced

general fund in the hands of the association

by assumpsit. Devries' Estate v. Hawkins

which might be chargeable in equity with

debt. Methodist Episocal Church South v.

**SS.** Assumpsit will lie by a corporation to

**SS.** Assumpsit will lie by a\*\* **c** **s** **s** 3 Cur. Law. ASSUMPSIT SS 2. 849

**SS 2.**_The common counts._\*\*11--\*\*At common law when the action is based on an express promise, special assumpsit must be brought,12 unless the facts alleged are such that the law raises therefrom an implied promise.13

When a contract is executed and nothing further remains to be done on the part of the plaintiff, he may recover on the common counts,14 When a contract has been performed, the fact that it was unenforceable because not in writing, will not warrant the bringing of a quantum valebat to recover alleged damages for breach.15 Under a statute forbidding the use of the common counts unitedly, but permitting the count on an account annexed, when one or more of the items claimed would be described by any one of the common counts, such count on an account annexed includes, by intendment, all the allegations of all the common counts.16 A statute authorizing the general counts in assumpsit in actions on insurance policies, and providing that the plea of nonassumpsit shall put in issue only the execution of the policy and the amount of damages sustained thereunder, does not place upon the defendant the burden of establishing the facts which he must put in issue,17 and it is therefore constitutional.18 The statute in Michigan, providing that an action in assumpsit may be brought for fraudulent representations or conduct for which trespass on the case would lie is constitutional.19 To maintain such an action under this statute, it must clearly appear, by the necessary averments or by reference to it, that the suit is within the statutory provisions.20 Special counts under this statute may be united with the common counts in assumpsit.21

_Goods sold and delivered._--Both sale and delivery must appear to sustain a count in common form for goods sold and delivered.22

lender of stocke borrowed to cover a short sale, he could not recover the amount claimed on common counts for money had Louis Hay & Grath Co. v. United States, 191 and received, since the breach of duty, if U. S. 189, 24 & St. Ct. 47.

airy, was a breach of contract, not a tort 16. Hence includes an allegation that which could be waived and suit in assump- money was paid at defendants' request. Rev. sit brought. Morris v. Jamieson, 205 & Llaws, v. 173, & 6, clauses 7, &. Action to recover taxes paid on defendants' land. Mass.

**10.** But there can be no such waived when the right to either remedy does not 202.

exist. Whipple v. Stephens \[R. I.\] 57 A. 375.

**11.** See 1 Curr. L. 236.

**12.** In an action on an insurance policy, the promise, conditions and fulfillment of the conditions, must be set forth. Hereye v. Northern Assur. v. Northern Assur. Co., 75 V. 441, 56 & A. 95.

**13.** Pump. Laws, 1897, & 10421. First Nat. There can be no recovery on common counts on a promise to answer for the debt or default of a third person. West v. Granger

**14.** By 14.

_Money had and received._\[25\]--An action in this form may be maintained to recover money paid on a judicial order or judgment subsequently set aside,\[24\] or money paid on a conditional sale after breach of the contract by the seller.\[28\] It is maintainable by a principal to recover money misappropriated by an agent,\[29\] by a corporation to recover money received from its officers under a contract void because ultra vires,\[30\] by one who has innocently made payments on an executory contract, void by statute, to recover money so paid,\[28\] or by a cestui que use against one who has received, and neglects or refuses to pay over, money received for plaintiff's use.\[29\] The action for money had and received may be maintained irrespective of whether it is maintainable as an action of trover and conversion.\[30\]

_Money paid._\[31\]--Assumpsit will lie to recover money paid by plaintiff to a third person at defendant's request, to satisfy a claim against him.\[32\] A court for money paid must state it was paid at defendant's request,\[38\] and the omission of such allegation will not be cured by the allegation of a subsequent promise to pay in other counts.\[34\] Under a statute providing for a recovery of expenses incurred in breaking log jams and driving logs of another in order to secure a passageway, expenses incurred in merely moving logs to one side cannot be recovered.\[35\]

_Work, labor and materials._--Where the employer refuses to perform, after performance by the employe, under a contract of employment, the employe may treat the contract as rescinded and sue on a quantum merit.\[38\] In such case plaintiff may recover an amount not exceeding that claimed, if it appears that there was no agreement as to price.\[37\] One who has failed to fully perform his contract may recover the value of labor and materials actually furnished under it, not to exceed the contract price,\[38\] and in such action the defendants may recoup damages for failure to fully perform, unless they have waived that right.\[39\] Where a contract could maintain mandamus to compel city officials to levy new assessments to pay for sewer construction, he could not recover from the city in assumption.\[40\]

given by the original vendee, the subsequent vendee havring promised to pay. Miller v. Volibur \[Vt. 56 A. 280. 35. Doyle v. Pelton \[Alich.\] 96 N. W. 482. 23. See 1 Curr. L, 237. 38. Boyd v. Vale, 84 App. Div. 414, 82 N. 24. Presumption is that payment was made upon implied understanding of restoration under such circumstances. Harrigian v. Gilchrist \[Wis.\] 98 N. W. 909. 35. Wood v. Kaufman \[Mich.\] 87 N. W. 47. 26. Guerney v. Davis, 67 Kan. 878, 73 P. 101. 27. Loan to a private partnership. Leigh v. American Brake Beam Co., 205 Ill. 147, 68 N. E. 718. 28. Jones v. Mutual Fidelity Co., 123 F. 506. 29. If plaintiff is legally entitled to the money, it is immaterial how it came into defendant's hands. York v. Farmers' Bank \[Mo. App.\] 78 S. W. 568. 30. Bank received money with notice of the title of plaintiff thereto. York v. Farmers' Bank \[Mo. App.\] 78 S. W. 968. 31. See 1 Curr. L. 237. 32. Proof that payment was by a receipt for money due plaintiff is not a material variance from an allegation in a bill of participants alleging a cash payment McNervey v. Barnes \[Conn.\] 58 A. 714. 33, 34. Massachusetts Mut. Life Ins. Co. v. Green \[Mass.\] 70 N. E. 202. 35. Doyle v. Pelton \[Alich.\] 96 N. W. 482. 36. Boyd v. Vale, 84 App. Div. 414, 82 N. Y. S. 932. The value of services rendered under a contract so terminated may be recovered under a common count, no objection being made to the form of the pleading. Jenson v. Lee, 67 Kan. 635, 73 P. 72. Remm-ploye may elect to sue on the contract for damages for the breach, or recover in quantum merit the value of his services. That employer boarded employe's mother and father for a time in part payment for sevices would not prevent a recovery on quantum merit. Brown v. Woodbury, 183 Mass. 279, 67 N. E. 827. 37. Gill v. Staylor, 97 Md. 665, 55 A. 398. Vortic of SS500 for services of daughter-in-law to a decentral held not excessive. Allen v. Allen, 101 Mo. App. 676, 74 S. W. 396. 38. Deeker v. School Dist. No. 2, 101 Mo. App.\] 115, 74 S. W. 390. In an action on a special contract for construction of a house there may be a recovery on common counts for work, labor and materials, if an acceptance of the work by defendant be shown. Aarnes v. Windham, 137 Ala. 513, 34 So. 816. 40. City of Alton v. Foster, 207 Ill. 150, 69 N. E. 783.

3. _Declaration, pleas, and defenses._\[41\]--In assumpsit the gist of the action is the promise to pay by defendant, and this promise the declaration must clearly allege,\[42\] unless its omission is permitted under a statute.\[43\] The averment of the promise may be in the same form or language, whether the promise is implied or express.\[44\] A count on a quantum merit for work, labor, and services, must allege nonpayment.\[45\] Statutory provisions modifying the common law remedy or procedure must be observed. Statutes may provide forms for the statement of counts,\[46\] or prescribe what pleadings shall be required,\[47\] or require affidavits in certain cases.\[48\] Though a bill of particulars filed with a declaration for work and labor is defective, the declaration will be held sufficient on appeal if it shows defendant indebted to plaintiff in a certain sum which he agreed to pay.\[49\] A special count to enforce a lion for labor may be joined in a common law action with common counts for work done and materials furnished, and upon account stated.\[50\] Under a statute providing that general counts in assumpsit shall be a sufficient declaration in actions on insurance policies, the general counts must be aptly framed for the recovery of money due on a policy, but need not set forth the terms and conditions of the contract of insurance.\[51\] The declaration need not state that the specification required by this statute has been filed, since such specification, when filed, is a part of the record.\[52\] A petition that plaintiff was the owner and entitled to the possession of certain property, designed to and sold by a third person, and that defendant had received the proceeds of such sale with knowledge of plaintiff's right thereto, and that plaintiff had demanded payment which defendant had refused, states a cause of action for money had and received.\[53\] A declaration containing allegations which are patently inconsistent is subject to a general demurrer.\[54\] An allegation in the declaration that all counts are for the same cause of action will not render a count, otherwise good, demurrable.\[55\] Where a declaration contains two counts, one based on an affirmance and
1. _See 1 Curr. L. 288._

replication, and rejoinder, no plea being filed. Act 1887, p. 211. Hatfield v. Thomas Iron A declaration in assumpsit, based on contract, must allege mutual promises based on conflict consideration. If based on an accord and satisfaction, such agreement must be complete as alleged. Grover v. Ohio River R. Co. 53 W. Va. 103, 41 S. E. 147.\_

42. _A common count of indebtitats for services rendered is not denurrable for failure to include the usual allegation of a promise to pay. Under Code 1887, $ 327, providing for, disregard of defects or demurrer unless there be an omission of something essential to the cause of action. City of Newport News v. Potter \[C. C. A.\] 122 F._

01. _44. If implied, the proof need not show a promise, but only a liability under the allegations. Wald v. Dixon \[W. Va.\] 46 S. E. 918._

01. _Bacon v. Chapman, 85 App. Div. 309, 82 N. Y. S. 545._

01. _A count reading, "For money payable to plaintiff. For money had and received by the defendant for the use of the plaintiff," held a sufficient compliance with a statute requiring such a count to read: "For money payable by the defendant to the plaintiff."_

Litteon v. Wells & McComas Council, No. 14 \[Md.\] 56 A. 788.\_

47. \_The statute required plaintiff in as-supmelt to file a concise statement of his demand and the defendant to enter the statutory plea. Instead there were filed an answer, replication, amended answer, amended the other on a disaffirmance of the contract, plaintiff may rely on both throughout the trial, and strike out one and rely on the other at the close of the evidence.54 A court has no power to permit the amendment of a declaration containing the common counts in assumpist by the addition of a count in tort.57 When a verdict is for a sum greater than that demanded in the complaint, but the evidence shows plaintiff entitled to the sum awarded, the demand in the complaint may be deemed amended.58

The plea of the general issue admits the capacity in which the defendant is sued.59 Under the general issue the defendant may prove that plaintiff prevented performance of the contract by him.59 Where a declaration contains a special count and also common counts and defendant demurs to the declaration generally, except the common counts, he may be required to plead to the common counts without requiring the plaintiff to amend by striking the matter held bad on the demurrer.51 Where special assumpsit was brought to recover a sum promised, to procure a settlement of insurance policies, and the proof showed an agreement procured by plaintiff, which defendant refused to carry out, there was at most a variance, not a failure of proof.52 The sufficiency of the affidavit of defense depends upon the facts of the particular case.58

**SS 4.**\_Evidence.54--\_Under an allegation that the services sued for were reasonably worth a certain sum which defendant agreed to pay, plaintiff may show nature, extent, and fair value of the services, and the circumstances under which they were rendered.55 The contract price of the services is competent evidence on the question of their value.59 Evidence as to wages received by another employee is incompetent,57 and evidence as to plaintiff's manner of living is inadmissible to show nonpayment of wages.59 A promise by a decedent to pay a daughter-in-law for services need not be shown by direct evidence, but may be proved by circumstances and the nature of the services.59 A book account admissible, the evidence tending to show it correctly kept.59

**ASYLUMS AND HOSPITALS.**

**SS 1.**_Officers, Their Powers, Duties and_

**SS 2.**_Maintenance of Institutions and Suppert of Inmates (353)._

**SS 1.**\_Officers, their powers, duties and liabilities.71--_The salary and term of_

**SS 2.**\_Officers, their powers, duties and liabilities.71--_The salary and term of_

**SS 3.**_Officers, Their powers, duties and_

**SS 4.**_Officers, Their powers, Duties and_

**SS 5.**_Liability of Institutions or Officers Liabilities (352)._

**SS 2.**_Maintenance of Institutions and Suppert of Inmates (353)._

**SS 1.**\_Officers, their powers, duties and liabilities.71--_The salary and term of_

**SS 56.**_Brown v. Woodbury, 183 Mass. 279, 67 by divided court, sufficient to take case to_

**SS 2.**_Officers, Their Power, Duties and_

**SS 57.**_Doyle v. Pelton \[Mich.\] 96 N. W. 483. A. 539. In an action to recover an alleged loan, an affidavit of defense setting up that_

**SS 58.**_Noyes Carriage Co. v. Robbins, 31 Ind._

**SS 59.**\_In assumptit, the defense that defendant, held sufficient. Knight v. Sommer-

**SS 60.**_In assumptit, the defense that defendant is not executor, must be pleaded in_

**SS 61.**_Weaver, Duties and_

**SS 62.**_Weaver, Duties and_

**SS 63.**_Weaver, Duties and_

**SS 64.**_Weaver, Duties and_

**SS 65.**_Weaver, Duties and_

**SS 66.**_Weaver, Duties and_

**SS 67.**_Weaver, Duties and_

\*\*SS 68.

3 Cur. Law. ASYLUMS AND HOSPITALS SS 3. 353

office of members of the State Board of Charities and Corrections may be regulated by the legislature.\[12\] The trustees of a charitable corporation have no power to establish a pay-pupil department.\[78\] The trustees of the Michigan Asylum for the Insane have no authority to obligate the state to pay for drafting proposed legislation,\[74\] and it was the duty of the state auditor to refuse to audit such claims,\[75\] or to draw his warrant for the maintenance bills of the asylum until itemized vouchers covering expenditure of money previously drawn had been presented.\[76\] In New York, the matron of a charitable institution may make a binding contract to furnish a competent nurse to an imate.\[77\]

SS 2. _Maintenance of institutions and support of inmates.\[78\]--A_ voluntary association cannot be subjected to an ordinary judgment for debt.\[79\]

SS 3. _Liability of institutions or officers for injuries to inmates.\[80\]--That a governmental charitable institution has power to use and be used does not render it liable for negligence.\[81\] A railroad relief department is not a charity relieved from liability for negligence in employing physicians,\[82\] but is only bound to exercise reasonable care in selecting them.\[88\]_

**ATTACEMENT.**

**1. Definition, Nature and Distinctions (354). 1 7. Attachment Bond on Undertaking; Terms (362). 1 8. In What Actions It WIII Issue (354). 1 8. The Writ or Warrant (363). 1 3. Right to and Grounds for the Writ (355). 1 3. The Levy or Sclzure; Indemifying Bends (364). 1 4. Attachable Property (357). 1 3. Return to the Writ (365). 1 5. Procedure In General (359). 1 1. Costody, Sale, Redetivery, or Release of Attached Property (366).**

\*\*71. See 1 Curr. L. 508. 72. Constitution Immiting the number of members of State Board of Charities and Corrections to five is not violated by a law creating a new board of three to take the place of the old board. Thomas v. State (S. D.) 97 N. W. 1011. Constitutional provision that compensation of a public officer shall not be changed during his term is not violated by appointing a new Board of Charities and Charging the salary. Id. The contention that the legislature, having once fixed the compensation of members of the State Board of Charities and Corrections have no power to change it, is untenable. Id. 73. A testator bequequeated a sum for the establishment of a school for destitute children. A corporation was constituted to carry out his will. It was enjoined from establishing a pay pupil department. Rankine v. De Veaux College, 41 Misc. 655, 85 N. Y. 8. 219. 74. Revision of asylum laws. Phelps v. Auditor General (Michl. 193 N. W. 374, citing Cahil v. Board of State Auditors, 127 Michi. 487, 86 N. W. 950, holding that the governor did not have such authority. 75, 76. Comp. Laws 1897, 1 1207. Phelps v. Auditor General (Michl. 195 N. W. 374, 77. If such authority is conferred by the trustees. Ward v. St. Vincent's Hospital, 78 App. Div. 817, 79 N. X. 8. 1004. But a mere assurance that a nurse was competent is not sufficient. Id. A physician familiar with her work was competent to testify as to her ability. Her own testimony that she had end entire charge of similar work was competent. Id. Conduct of nurse in this particular case admissible. Id. 78. See 1 Curr. L. 509. 3 Curr. Law--23

**72.**

**73.**

**74.**

**75.**

**76.**

**77.**

**78.**

**79.**

- 12. Forthcoming Bonds and Receipts (367).
- 13. Llen or Other Consequences of Levy (367).
- 14. Conflicting Levtes, Liens, and Credit (371).
- 15. Enforcement and Dissolution, Dis- 177. Wrongful Attachment (374).

## 1 Definition, nature and distinctions

Attachment is a statutory remedy, and the local statutes must be consulted, any seemingly general rule being so only by reason of similar enactments in various states. It is a summary remedy,\[85\] and the statutes thereon are to be strictly interpreted or construed.\[86\] After appearance, the suit proceeds in personam, remaining a proceeding in rem as to the property attached.\[87\] A proceeding upon foreign attachment is in rem.\[88\] Attachment laws will not be impliedly repealed by further laws upon the same subject, unless the intention of the legislature is plain.\[89\]

## 2 In what actions it will issue

Statutes regulating the grounds of attachment do not affect rights of attachment previously tested.\[91\] A party to sustain an attachment must have a just claim to found it upon,\[92\] the complaint must state a cause of action,\[93\] and under the statutes of some states contain a sufficient allegation of the service of the writ of attachment.\[94\] Unliquidated demands,\[95\] or nominal damages,\[96\] will not generally support attachment. The word "damages" after the amount alleged to be due as a debt is construed as only embracing interest, thus rendering the amount claimed certain.\[97\] Special grounds, as fraud, non-residence, or concealment, must in some states coexist with the fact that the action is of a given class.\[98\] In most states attachments will issue on claims arising on contract;\[99\] this includes implied contracts.\[1\] A contract being separable, an attachment may issue if justified by any separable part.\[2\] A del credere agent, paying his employer, may sue, in his own name, the vendee, and attach his property.\[3\] The vendor in a conditional sale cannot maintain an attachment in an action 84. See 1 Curr. L. 239.

- 85. Forbes Piano Co. v. Owens \[Ga.\] 47 S.

- 86. Munger v. Doolan, 75 Conn. 656, 55 A.

- 87. Eubenanan v. Edmisten \[Neb.\] 95 N. W.

- 88. Stuart v. Chappell \[Md.\] 67 A. 17. E. 838.

- 87. Chemical Nat. Bank v. Kellogg \[N. J. Law\] 67 A. 149.

- 88. If neither of the defendants own the property, they are not affected in any way.

- 89. C. P. L. 1901, p. 158, 8 I. is not impliedly repealed by P. L. 1903, p. 560, 84 S. See this case for history of attachment legislation in New Jersey. Hotel Registry Reality Corp. v. Stafford \[N. J. Law\] 57 A. 145. Attachment laws of Louisiana are only modified, not repealed, by Act 23 of 1900. Hornbeck v. Gilmer, 110 La. 500, 34 So. 651.

- 90. See 1 Curr. L. 240.

- 91. Ky. St. 1903, 87 74-96, as to assignments for benefit or creditors. Fitch v. Duckvall, 25 Ky. L. R, 153, 78 S. W. 185.

- 92. Whitley v. Whitley's Adm? \[Ky.\] 80 S. W. 826.

- 93. Porter v. Plymouth Gold Min. Co. \[Mont\] 74 P. 938; Outerbridge v. Campbell, 87 App. Div. 597, 84 N. Y. S, 527. Allegations in the complaint and affidavit in an action for conversion of money held to show a cause of action therefor and to support the warrant of attachment. Kelsey v. Bank of Mansfield, 85 App. Div. 34, 83 N. Y. S. 281.

- 94. Code Civ. Proc. $ 649. Allegation of service on one as treasurer is insufficient without an averment that the defendant is a corporation. Barton v. Albert Palmer Co.. 87 App. Div. 35, 83 N. Y. S. 1041.

- 95. Stuart v. Chappell \[Md.\] 67 A. 17.

- 96. Head would lie where damages were caused by delay in delivering structural steel under a contract. Hale Bros. v. Milliken, 142 Cal.

- 134, 75 P. 653. But see 1 Curr. L. 240, n. 4, 14.

- 96. Austrian Bentwood Furniture Co. v. Wright, 88 N. Y. S. 142.

- 97. Gardner v. Swift & Co. \[Tenn.\] 80 S. W. 764.

- 98. See post, $ 3.

- 99. Sand. & H. Dig. $ 325. Judge v. Curtis \[Ark.\] 78 S. W. 746. On a contract for the "direct payment" of money. Code Civ. Proc. $ 890, will not issue in an action against suretles on a bond conditioned to be void. If the principal performed his contract. Ancient Order of Hibernians, Division No. 1 V. Sparrow \[Mont.\] 74 P.

- 3Cur. Law. ATTachment SS 3.

for the purchase price, though by bringing suit he waives his lien.\* Generally, a secured creditor can only procure the levy of an attachment when the 'security without any fault on his part has become valueless.\* By statute in some states, a landlord in an action to recover rent can attach crops growing or grown upon the land.\* The collection of one's debt being endangered if the creditor should stop to obtain judgment or a return of no property found, an attachment will generally issue.\* That a nonresident has conveyed property by a deed of trust does not authorize an attachment.\* An attorney cannot attach the property of a nonresident client in a suit to recover for fees without notifying his client and giving him an opportunity to come in and defend.\*

SS 3. _Right to and grounds for the writ._\[10\]--Foreign attachment proceedings against residents of a state are void.\[11\]

_Nonresidence._\[12\]--An action of attachment may be brought against a nonresident in any court in whose jurisdiction he has property,\[16\] and, after due notice, the court may satisfy the attachment out of such property.\[14\] A nonresident appearing and pleading to the merits, the court has jurisdiction of his person,\[16\] unless such plea is made with a distinct protestation that no jurisdiction has been acquired.\[16\] Personal service of a warrant of attachment on a resident member of a foreign limited partnership does not confer jurisdiction so as to render a nonresident partner liable therefor, the liability incurred by the resident partner being the only liability attached.\[17\] It appearing from the judgment roll that no property was attached, that defendant was a nonresident, was not served and did not appear, the court has no jurisdiction.\[18\] In some states, attachment may be made against a nonresident after two non sets.\[19\] The filing of an undertaking is not jurisdictional to the right to have an attachment issued against a nonresident defendant for a debt not due.\[20\] One who occasionally comes within the jurisdiction or intends at some uncertain time to return to it permanently is a nonresident, & Bro. v. Erwin & Wood Co., 71 Ark. 438, 75 \[Idahol 73 P, 185, 8. Twitt v. Darnell \[N. J. Eq.\] 55 A. 692. pledgeing, and never becoming valuable, does not preclude the creditor from obtaining such attachment \[Code Viv. Proc. $ 537\]. McPhee v. Townsend, 139 Cal. 638, 75 P. 584. pl

- 6Sess. Laws 1901, p. 141, c. 17. Greeley v. Greeley 12 Okl. 659, 78 P. 295. Under Gen. St. 1901, $ 2871, landlord is entitled to attach crops raised by a tenant upon shares, the tenant having disposed of an appreciable portion of the crop, even though the time for harvesting and delivering the landlord's share has not arrived, and the crops being sold, the landlord is entitled to his share as of the date the crop should have been delivered to him. Harmon v. Payton \[Kan.\] 74 P. 618. pl

- 7Where, on the day after levying such an attachment, the debtor made an assignment for the benefit of creditors, being hopelessly insolvent, its net loss for the ten months preceding the attachment being $20,-000 and its habilites increasing every day, held sufficient to warrant the attachment, Herman Goepper & Co. v. Phoenix Brev. Co., 35 Ky. L. R. 84, 74 S. W. 726.

- 8Chatel mortgage permitted mortgage to retain and dispose of property, substituting other of the same kind therefor, held not to furnish a ground of attachment where all the property was afterwards embraced in a deed of trust to the mortgage. Wolf

- 9A.

within the meaning of the attachment laws, \[21\] as is one traveling through a state delivering lectures. \[22\] Temporary absence is not nonresidence justifying attachment. \[23\] In some states attachment may issue against the property of an adult resident continuously without the state for a certain period, he not having designated a person to receive service. \[24\]

\_Attachment against corporations. \[25\]--\_In most states writs of attachment properly issue against the property of corporations. \[26\]

\_Fraudulent transfer or disposition of property. \[27\]--\_Fraudulent transfer of a debtor's assets is ground for attachment of the property. \[28\] Fraud, \[29\] actual \[30\] or intended, \[31\] is an essential element. Ordinarily, fraud should be found as a finding of fact, \[32\] though a conclusion of law may sometimes suffice. \[33\] Ordinarily, sales of property in the usual course of business to customers outside of the state \[24\]

21. Imperial Cotton Oil Co. v. Allen \[Xlns.\]

01. Code Civ. Proc. # 658. Certificate of 36 So. 216.

**NOTE. Who is a nonresident:** This is a question of actual residence, not of domlele, a creditor's assertion on information and and is a question of fact to be determined belief in the afflawti that none has been made. Ehnls v. Untermyer, 87 N. Y. S. 695.

dence. Keller v. Carr, 40 Minn. 428, 42 N. W.

292. But mere temporary absence of a debtor from the state does not render him non-renodure him a non-resident even though he may not have a house of usual abode there at which a sum-mons against him might be served during \[26\],

001. Gokey v. Boston, etc., R Co., 180 F.

001. See 1 Curr. L. 241.

42 N. W. 292: Crawford v. Wilson, 4 Barb.

28. Belcher-Brown Lumber & Mercantile \[N. Y.\] 604: Thiblits v. Townsend, 15 Adv.

01. Belcher-Brown Lumber & Mercantile \[N. Y.\] 198: Id., 6 N. Y. 422.

01. Em. Dec. 350: Caldwell v. Barclay, 1 Dall.

ment by agent of corporation about to move \[U. S.\] 306, 1 Law. Ed. 149. Absence on actions to the action of war will not generally justify an attachment for nonresidence. Clark v. Pratt,

19 La. Ann. 102: Haynes v. Powell, 1 Lea

work in which he was engaged and had \[Tenn.\] 347. Contra, Dorsey v. Kyle, 20 Md.

612; Dorsey v. Dorsey, 30 Md. 522, 96 Am.

106. Dex. 633. That one has a place of business \[8\]. An afflawti of attachment showing \[8\] in a state will not of itself constitute him a \[8\],

that defendant, after being threatened with resident. In these cases declarations of \[8\],

suit, stated that If plaintiff sued be would intent and domlele of family jery govern.

not get a cent, as she would sell her prop-Breed v. Mitchell, 48 Ga. 633: Chase v. Ninth

11. Nat. Bank, 68 Pa. 366; Rayne v. Taylor, 10

days thereafter she did sell it, held to show La. Ann. 726; Perline v. Evans, 35 N. Y. Law,

an intent to defraud creditors. Hill v. Marz 211; Morgan v. Nunes, 54 Mias. 808: Wallace

tin, 88 N. Y. 708.

v. Castle, 68 N. Y. 370. A nonresident com-

30. Violation of the limited partnership Ing into a state does not become a resident until he has formed an intention to locate

not such actual fraud. Fluke Co. v. Papu-

there. Burrows v. Miller, 4 How. Pr. 349;

In re filtergazed \[2\]. Caines \[N. Y.\] 818. An

abscending debtor is not necessarily a non-vision allowing him to sell the goods mort-resident. Field v. Arcon, 7 Md. 203; Crox-

all v. Hutchings, 12 N. J. Law, 97; Bar-

or reducing the debt, and that he had so net's Case, 1 Dall. \[U. S.\] 155, 1 Law. Ed.

87; Kennedy v. Balli, 3 Teates \[Pa.\]. 55.

Fugitives from justice are nonresidents. New York v. Genet, 63 N. Y. 646, 4 Hum.

487; Thames & M. Marine Ins. Co., V. Dimm. mclk, 61 N. Y. St. Rep. 41, 22 N. Y. S.

1096. But see Starke v. Scott, 78 Va. 180.

0001.

7-From notes to Cousins v. Aworth \[Mln.\] 101 L. R. A. 604, and Monroe v. Williams &

7-Valley \[S. C.\] 19 L. R. A. 665. See 1 Curr.

11.

01. Garbett 8 Cur. Law. ATTACHMENT SS 4. 857

do not justify attachment.${}^{
ef{44}}$ The mere fact that a debtor is about to leave the state is no ground for attachment.${}^{
ef{85}}$ A debt being fraudulently contracted an attachment may be had.${}^{
ef{86}}$ In the absence of statutory definitions, the word "debt" as here used imports an obligation resting upon contract.${}^{
ef{87}}$ One from whom property is obtained by fraud may attach the same upon discovering the fraud.${}^{
ef{88}}$ The right of an assignee of a chose in action to procure a writ of attachment on the ground that the debt or obligation was fraudulently contracted exists only as against his immediate assignee.${}^{
ef{89}}$ The burden of proving a fraudulent intent is with the party applying for the writ,${}^{
ef{86}}$ and circumstances creating a strong suspicion, but falling short of prima facie proof, are not sufficient;${}^{
ef{88}}$ but the effect of a transfer from the debtor to his wife, being to leave his subsequently contracted indebtedness unpaid, the burden is upon the wife to show the good faith of the transaction as against an attaching creditor.${}^{
ef{88}}$

SS 4. \_Attachable property.${}^{
ef{88}}$--The property attached must be in the possession of the attachment debtor, or held for his benefit, or in fraud of the rights of the plaintiff,${}^{
ef{88}}$ and he must have an attachable interest therein.${}^{
ef{88}}$ An insurance policy being payable to any one of several parties, no one of them has an attachable interest in the insurance fund.${}^{
ef{88}}$ There being a reservation of produce in a contract for the sale of land until the land is paid for, the vendee has no attachable interest in the crops until such time.${}^{
ef{88}}$ Property which the debtor paid for but which was conveyed direct to his wife cannot be levied upon by attachment as against the debtor.${}^{
ef{88}}$ Where an attachment is sued out against several defendants and the property of only one is levied upon, the levy is properly dis-

**84.** Herman Goepper & Co. V. Phoenix more than his assets, held Insufficient. DurBrewing Co., 25 Ky. L. R. 84, 74 S. W. 726. 42. 43. 44. 24. 35. 35. 36. 37. 38. 38. 39. 45. 38. 39. 46. 47. 48. 49. 50. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 51. 52. 53. 54. 55. 56. 57. 58. 59. 58. 59. 59. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 70. 72. 74. 78. 79. 71. 73. 75. 76. 78. 79. 70. 73. 77. 78. 79. 71. 74. 79. 72. 75. 77. 78. 79. 70. 74. 79. 71. 75. 79. 72. 76. 79. 73. 78. 79. 70. 74. 79. 71. 75. 79. 71. 76. 77. 78. 79. 72. 79. 73. 79. 74. 78. 79. 70. 75. 79. 71. 77. 78. 79. 70. 79. 71. 79. 72. 79. 73. 79. 74. 79. 75. 76. 77. 78. 79. 71. 79. 72. 79. 74. 79. 75. 77. 79. 76. 78. 79. 77. 78. 79. 79. 70. 79. 71. 79. 70. 79. 71. 79. 72. 79. 73. 79. 74. 79. 75. 77. 79. 76. 79. 77. 78. 79. 79. 70. 79. 71. 79. 70. 79. 71. 79. 72. 79. 73. 79. 74. 79. 75. 77. 79. 76. 79. 77. 78. 79. 79. 78. 79. 79 missed as to the rest." Under the modern theory of attachment, property subject to execution is subject to attachment." Exempt property is not subject to attachment," and that the debtor appeared and moved to dissolve the attachment without first making claim for his exemption does not waive his right thereto." An exemption of property of a husband continues for the benefit of his wife notwithstanding her abandonment by the husband." At common law, the rolling stock and all other movable property of a railroad corporation were exempt from attachment," though this has been changed by the constitution or statutes in various states," and while such laws do not of themselves violate the Federal constitution, any writ of attachment interfering with the freedom of interstate commerce is abortive."

The interest of a debtor in property fraudulently conveyed is subject to attachment," the creditor being allowed to attach the property so conveyed, whether the debt is due or not," as if no such conveyance had been made or attempted," the attachment issuing against the grantee," and after acquiring title, such levying creditor may maintain an action at law to recover possession of his premises, or may resort to equity to have the apparent cloud upon his title rcmoved," or his lien enforced," or the action in attachment and to set aside the .fraudulent conveyance, may be jointly prosecuted." The property of an in-solvent building association is subject to attachment." Trust property cannot be held under an attachment for the trustee's personal debts." Property in the hands of an administrator is not subject to attachment." One's interest in

49. Connolly v. Atlantic Contracting Co. foreign company temporarily within a state is not liable to attachment issued in an action In the courts of that state. Connery v. Va. 485, 44 S. E. 294. No writ of attachment can be enforced against property which cannot be seized upon execution. Fletcher v. Tuttle, 97 Me. 491, 64 A. 1110.

01. Under 2 Ball. Ann. Codes & St. $ 5255, a debtor furnishing the sheriff a list of his exemptions and the creditor making no demand for an appraisement within a reason- able time, it becomes the duty of the sheriff to release such property as exempt. State v. Gardner, 32 Wash. 550, 73 P. 690. A.

homestead \[Code 1896, $ 2031\]. Bailey v. Dunlap Mercantile Co., 138 Ala. 415, 36 S. 451. Under Rev. St. $ 5483, 5441, a non-resident is not entitled to an exemption therein provided in lieu of homestead (Campbell v. Bennington, 4 Ohio Circ. R. \[N. S.\] 447), though an abandoned homestead may be subject to attachment (Stickelley v. Widle, 122 Iowa, 400, 98 N. W. 135).

NOTE. Right to enjoin attachment proceedings: Attachment proceeding to reach any exempt property may be enjoined. Ha ger v. Adams, 70 Iowa, 746, 30 N. W. 36; Zimmermann v. Franke, 34 Klem. 550, 7 B. 747.

Wabash Western R. Co. v. Sfeert, 41 Mo. App. 35; Keyser v. Rice, 47 Md. 203, 28 Am. Rep. 448; Moton v. Hull, 77 Tex. 80, 13 S.

W. 849, & L. R. A. 722. Also where debtor and creditor reside in the same state and the 43 proceedings are in a foreign state. Smok v. Smetzer, 26 Ohio St. 516: Teager v. Landsley, 69 Iowa, 725, 27 N. W. 739.--From note to Thorndike v. Thorndike \[III.\] 21 L. R. A. 71, 76.

52. State v. Gardner, 32 Wash. 550, 73 P.

01. Baum v. Turner, 25 Ky. L. R. 600, 76 S. W. 129.

01. Wall v. Norfolk & W. R. Co., 52 W.

01. 485, 44 S. E. 294. A railroad car of a L. 242, n. 44, 45.

3 Cur. Law. ATTachment SS 5. 359

an estate in the hands of an executor during the course of administration is not attachable." Funds in custodia legis," or in the hands of a public officer," are exempt from attachment. In the absence of statutory provisions, equitable interests in property are not attachable in an action at law." Under statutes providing that persons holding property of the defendant shall, upon application, give a certificate of the latter's interest therein, and upon refusal shall be subject to examination, it is not necessary to show that the property would be subject to levy in order to secure such examination," nor does the right to demand the certificate depend, in most states, on the service of the warrant," and the afflavit of the sheriff must show that the third party wholly failed to give a certificate."

_Attachable debts and choses in action."_--Some courts hold the situs of a debt, for the purposes of attachment proceedings, to be at the domicile of the debtor," others that it is at the domicile of the creditor." A contract debt, payable within a state but due a nonresident defendant by a foreign corporation, may be attached in an action brought in the state."\_

SS 5. _Procedure in general."_--The trial of the attachment is wholly distinct from the trial of the case on its merits, and sometimes precedes and sometimes follows the main trial." The plaintiff must join as parties all persons interested in the property attached." An action which has for its purpose the subject of property to the payment of a debt, and is commenced by attachment for that purpose, is a civil action," and is governed by statutes regulating such actions." In attachment proceedings, it is not necessary that the account should itemize the indebtedness," nor is a variance between an account filed with an original declaration under a rule-day act and one filed with a petition for a writ of attachment material, defendant never being summoned and no judgment by default being taken."\_

In most states, papers in attachment proceedings are amendable the same as 77. Harris v. Kittle, 119 Ga. 29, 45 S. E., 729. 48. Dale v. Brumbly \[Ma.\] 56 A. 807. See 78. The personal service of a warrant of attachment upon a nonresident partner of a foreign limited partnership for a debt due a foreign corporation and having a foreign signature, the partner being temporarily in the state, held invalid. National Broadway Bank v. Sampson \[N. Y.\] 71 N. E. 766. 78. The declaration in attachment showing that the property seized under the attachment was a debt due by a resident to a nonresident, it is amendable so as to show that the debt is payable within the state. High v. Padrosa, 119 Ga. 648, 46 S. E. 859; Glower v. Glidden Varnish Co. \[Ga.\] 48 S. E. 855. 857. 855. 86. 87. Laneaster v. Spotswood, 41 Misc. 19. 83 N. Y. 85. 87. 88. See 1 Curr. L. 243. 70. Edwards-Barnard Co. v. Pflanz, 24 Ky. L. R. 2296, 73 S. W. 1018. 80. Trustees under a prior deed of trust. Jackson v. Offman, 110 Tenn. 271, 75 S. W. 718. 81. First Nat. Bank v. Hesser \[Oki.\] 77 83. 82. In Oklahoma must be commenced in the county where defendant resides or its found. First Nat. Bank v. Hesser \[Oki.\] 77 86. 83. Voucher for services of attorney. Stewart v. Chappell \[Ma.\] 57 A. 17. 84. Stewart v. Chappell \[Ma.\] 57 A. 17.

in any other case,"8 but amendments, in the absence of consent, necessitating further service of process, are not allowable."8

The _jurisdiction_" of the Federal court is determined by the amount in controversy.88 In Georgia, the judge of a superior court being disqualified, jurisdiction can only be taken by the judge of the adjoining circuit to whom the petition for attachment is presented.88 Acts necessary to the creation of the lien are not jurisdictional.89 The court having no power to order the sale of the property, it has no power to order the attachment.91

\_Beginning action and acquiring jurisdiction.92--An attachment by common-law garnishment or trustee process cannot be created by consent.88 In some states real property is attached by filing a certificate containing inter alia the names of the parties to the action,94 under such a statute the names of the parties must be correctly given or no right is acquired thereunder.95

_Necessity of issuance of summons and service thereof.95--A_ statute requiring service upon the party in possession of the property, the fact that such party is the plaintiff in the attachment suit does not excuse service upon him.97 In the absence of special statutory regulations, personal service on a nonresident attachment defendant being required, the service must be upon him personally.98 The warrant in attachment must have been issued before the summons can be served by publication.99 In New York, in order to obtain an order directing service of the summons by publication, one must show by afflavit when he applies for such order,1 the issuing of the writ of attachment.92 There being a misnomer in notice by publication the proceedings are void.8 The sufficiency of the afflavit for publication of the summons is not raised by an objection that the court has not obtained jurisdiction of the person of the defendant.94 The papers showing that the

85. Act 1898, p. 127, c. 44. Yocher amend-

ed by adding thereto certificate of letters

testamentary granted to plaintiffs and

something title of account to conform there-

to. Booth, C. Callahah, 97 Md. 317, 65 A. 625.

88. Gen. Laws 1896, c. 253, $ 17. King v.

01. Manger v. Doolan, 75 Conn. 656, 55 A.

01. See 1 Curr. L. 240; see, also, Jurisdiction, 2 Curr. L. 604.

01. The jurisdiction of a court is determined by the amount in controversy, not the value of the goods, in an attachment

01. The jurisdiction of a court is determined by the amount in controversy,

the value of the goods, in an attachment

89. Failure to record levy with clerk of

the court as provided in Clark's Code (3d Ed.), $ 35 does not affect the efficiency of the

levy as a basis of judgment against a non-resident. Evans v. Aldridge, 133 N. C. 378, 45 S. E. 712.

94. Probate Court of Oklahoma cannot issue an order of attachment to be levied upon

real estate. Goodfellow Shoe Co. v. Griffith,

13 Okk. 51. 74 P. 109.

92. See 1 Curr. L. 243.

01. Voluntary appearance, without the

statutory service upon him, of one named

as trustee in a trustee process does not attach the funds of the principal defendant in

his hands. Hathorn v. Robinson, 98 Me. 334,

56 A. 1057.

94. McDowell v. Parry \[Or.\] 76 P. 1081.

01. V wrong initials held a fatal defect even

where changed in pencil, it not being con-

tensuency shown that the alteration was made

before filing the certificate. McDowell v.

to. Parmy \[Or.\] 76 P. 1081.

86. See 1 Curr. L. 243.

01. Munger v. Doolan, 75 Conn. 656, 55 A.

01. Statute provides that if defendant

have no agent or attorney within the state

a copy of the process and complaint should

be left with the person in charge or pos-

the system of the property. Held void in such

a case to leave such copies at the property

attached for defendant and not with the

prezon in possession (Rev. St. 1902, $ 828\].

Id.

98. Comp. Laws 1887, $ 4895, providing

that process may be left at his house in the

presence of a member of his family over

fourteen years old, applies only to such serv-

ice within the state. First Nat. Bank v.

Holmes \[N. D.\] 94 N. W. 764.

99. Little v. Christie \[S. C.\] 48 S. E. 89.

01. The issuing of the attachment cannot

for the first time be shown by an afflavit

read in opposition to a motion to set aside

the order of publication. Wilson v. Lange,

40 Misc. 676, $ 83 N. Y. S. 180.

2. Code Civ. Proc. $ 170, relating to the

City Court of New York. Wilson v. Lange,

40 Misc. 676, $ 83 N. Y. S. 180. But see I Curr.

L. 244, n. 70.

3. Sole defendant described as O. P. Bu-

chanan, his true name was Porter O. Bu-

chanan, held misnomer fatal 3 Cur. Law. ATTachment SS 6. 361

defendants are nonresidents and that no order of publication has been taken on the return day of the process, the plaintiff is entitled to a reasonable time within which to perfect his suit by order of publication.\[5\] A general appearance by any of the nonresident defendants renders an order of publication unnecessary as to such of them as appear.\[8\]

SS 6. \_Affidavit and its sufficiency.\[7\]--\_The purpose of the statute requiring an affidavit in attachment setting forth the nature of the claim is to show whether it is of such a character as entities the party to an attachment.\[8\] The affidavit must conform strictly to statutory requirements,\[9\] it must distinctly show that it is made by a natural person,\[10\] and it may be made by an attorney, if the latter has personal knowledge of the facts therein stated.\[11\] It may state an amount less than stated in the complaint.\[12\] Several statutory grounds being stated cumulatively, if any one of them be true the affidavit will be sustained though all the others be untrue.\[13\] In states requiring the affidavit to state the amount due the word "due" refers to the maturity of the claim rather than to the balance of indebtedness owing from one party to another.\[14\] Under a statute allowing the issuance of an attachment upon affidavit or testimony, a defective affidavit may be sufficient testimony to authorize the issuance of the writ.\[15\] An affidavit in attachment in a suit on a promissory note is sufficient in law, though the date of the note is stated differently in the petition and amended petition.\[16\] An alleged variance between the affidavit and bond cannot be raised for the first time upon appeal.\[17\]

\_Averments in general.\[18\]--\_An affidavit in attachment positively sworn to, need only be stated in the language of the statute,\[18\] but being made by a stranger to the transaction it must set forth the means by which his knowledge of the facts was obtained,\[9\] and failure to so allege is a fatal defect.\[21\] The affidavit must conformatively to the statement of the statement tain, in unequivocal language, that the debt sued on is due.22 The facts proving damages should be set forth in detail,23 an insufficient allegation of damages being fatal.24

Footnote 23: The author is grateful to the anonymous referee for the support of the author.

_Averments as to nonresidence.25--The defendant being a nonresident there must be a sufficient allegation of that fact.26_

_Amended and supplemental affidavits.27--An affidavit defective in form may be amended like any other pleading,28 so long as it is not done for the purpose of gaining jurisdiction,29 and the cause of action is not changed,20 but one has been permitted to amend an unsigned affidavit by filing a new one properly signed.31 A defect in an affidavit cannot be cured by a counter affidavit.25 The affidavit not being amendable it may be withdrawn and a new one substituted.38_

Footnote 23: The author is grateful to the anonymous referee for the support of the author.

Footnote 24: The author is grateful to the anonymous referee for the support of the author.

Footnote 25: The author is grateful to the anonymous referee for the support of the author.

Footnote 26: The author is grateful to the anonymous referee for the support of the author.

Footnote 27: See I Curr. L. 245.

Footnote 28: Reister v. Land \[Ockl.\] 76 P. 156.

Footnote 29: Davis v. Reflex Camera Co., 89 N. X. S. S.

3 Cur. Law. ATTACHMENT SS 8. 363

from the svroties any more than is due him from the principal.\[44\] hence they are allowed the benefit of legal offsets held by the principal.\[45\] The obligation of the bond being the payment of damages no demand is needed.\[46\] The surety is generally liable for the costs and expenses of the proceedings to vacate the attachment.\[47\] In the absence of statutory provisions attorney's fees are not a part of the costs which may be recovered in a suit upon the attachment bond,\[48\] though some courts hold contra.\[49\] Statutes allowing such fees are not generally construed so as to include fees for services on appeal,\[50\] nor on retrial, where caused by the negligence of the attachment defendant,\[51\] and fees paid under a proposed settlement which is set aside should be credited on the amount allowed.\[52\] The claim being settled in full while a motion to vacate is pending, the defendant is not entitled to costs for counsel fees in the proceedings to vacate.\[53\] The surety on a supersedeas bond in the suit upon paying the judgment cannot be abrogated to the judgment creditor's rights against the surety on the attachment bond.\[54\]

_Actions on bond.\[50\]_--The right to recover on the attachment bond accrues when the attachment is discharged.\[55\] The execution and delivery of a forthcoming bond does not waive defendant's right of action,\[57\] and the burden of pleading and establishing any discharge of liability rests upon the defendants.\[58\]

SS 8. _The writ or warrant.\[59\]_--A writ of attachment issuing out of a court which has acquired jurisdiction of the property through the attachment plaintiff's fraud is void.\[60\] The writ bearing the seal of the court may be signed by a deputy clerk,\[61\] and must be served by the officer to whom it is addressed.\[62\] In an attachment of property in the hands of a foreign corporation the name of the corporation must be correctly stated.\[63\] A writ is defective when it lacks something which the law requires it to contain, and the defect, in order to be amendable, must appear upon the face of the writ,\[64\] and the effect of the amendment must not be to create a new writ.\[65\] In the absence of statute the sheriff is not a guarantor of the solvency of a surety taken by him on a forthcoming bond\[66\] unless be accepts the insufficient sureties without making a reasonable effort to ascertain their solvency,\[67\] and a judgment for the sheriff in the court below creates a presumption that he used such care,\[68\] and will not be disturbed on appeal unless palpably against the weight of the evidence,\[69\] but his liability cannot exceed that of the sureties.\[70\] Such a liability being imposed by statute, a judgment must be rendered sustain 364ATTachment SS 9. 3Cur. Law.

ing the attachment itself," and the order sustaining the attachment, not being introduced in the court below, it cannot be added to the record on appeal," and even if such an amendment of the record was allowable, it would not remedy the failure of the petition to allege that the attachment was sustained." Plaintiff by suing upon a second bond given in lieu of the first ratifies the sheriff's release of the latter and becomes estopped to sue thereon." A motion to quash a forthcoming bond cannot be made in an action on the bond." In most states, in an action upon a forthcoming bond, it is necessary to allege and prove an order of the court in the attachment proceedings for the sale of the attached property, or directing the sheriff to repossess himself of such property." The approval of the undertaking by the court and the discharge of the attachment may become conclusive evidence of the delivery and acceptance of the undertaking as a good forthcoming bond."

SS 9. _The levy or seizure; indemnifying bonds."_--The duty of an officer in executing a writ of attachment is to levy upon the property of the defendant to the writ, not upon the property of some one else," to determine whether or not it is property which may be legally taken under the writ," and that the quantity taken is necessary to the case in hand." In all these particulars he is bound to exercise his own judgment, and is legally responsible to any person for the consequences of any error or mistake in its exercise to his prejudice." An officer seizing property under a void attachment is a trespasser as against one rightfully in possession," and the rightful owner is not estopped from suing him by purchasing the property at a sale ordered by the court during the pendency of replevin proceedings." The seizure being tortious, all the attaching creditors joining with the sheriff in resisting an action of replevin become trespassers ab initio, and are jointly and severally liable for a money judgment rendered against them," though one party satisfying such judgment, contribution will be enforced," the basis being the ratio the several claims bear to each other." A sheriff is entitled to an _indemnity_ for levying on intangible as well as tangible property."

_Levy on debts or choses."_--In most states, in order to attach a debt or demand due the defendant, notice must be served upon the person against whom the demand exists," a seizure of a right of the debtor in a suit being made by serving notice on the clerk of court, the plaintiff, and defendant." Failure of the assignee of a chose in action to give notice to the debtor of the assignment is immaterial as against an attaching creditor."

TL Personal judgment against the de- court cannot direct a verdict In favor of the fendant held insufAgent. Edwards-Barnard sheriff. Hagar v. Haas, 66 Kan. 838, 71 P. Co. v. Pfanz, 24 Ky. L. R. 2296, 73 S. W. 1018, 822. 73 T. Edwards-Barnard Co. v. Pfanz, 24 S4. Hagar v. Haas, 66 Kan. 838, 71 P. Ky. L. R. 2295, 78 S. W. 1018. 822. 74 Hesser v. Rowley, 139 Cal. 410, 73 P. 85 S. 86, 87. First Nat. Bank v. Avery Plant-168. 75 Craft v. Smith \[Fla.\] 38 So. 996. 88. Code Civ. Proc. $ 657. A debt is 76. Young v. Joseph Bros. \[Neb.\] 93 N. W. 525. 77. Ehner v. Held \[C. C. A.\] 125 F. 68. 87. See 1 Curr. L. 248; see, also, Bonds, 1 Curr. L. 248. Curr. L. 298. 79. In lverging an attachment against a rant of attachment and a notice showing the man, cannot levy on property of Indian wife. 86. 86. 87. 88. 88. 89. 89. 89. 89. 90. 89. 91. 92. 93. 94. 95. 96. 97. 98. 99. 98. 99. 99. 90. 91. 93. 95. 97. 99. 98. 99. 99. 90. 91. 99. 91. 92. 93. 94. 95. 96. 97. 98. 99. 99. 98. 99.

3 Cur. Law. ATTachment SS 10. 365

_Notice of levy._"--Unless waived, notice, actual or constructive, must be given the defendant" within a reasonable time." In some states, notice must be given the party in possession." The notice of attachment being annexed to a copy of the warrant it is referable thereto."

_An equitable attachment._"--The appointment of a receiver in a creditor's bill or suit in equity to subject the separate property of a married woman to the payment of her business debts is an equitable attachment;" which entitles such creditor to a prior lien over other creditors upon the funds in the hands of the receiver, provided said suit is successfully prosecuted to a final decree.1

SS 10. _Return to the writ._"--The Federal courts have authority to provide for the return of the writ other than in accordance with the state statutes." In Connecticut, the property must be described in the officer's return." A sheriff surrendering the property in accordance with a stipulation, agreed to by the attaching creditor, a return is unnecessary." An affdavit by the sheriff that he "duly effected service" of the warrant of attachment, stating the time, place, and person on whom it was served, is sufficient." The writ being returned served by one not an officer of the court, an alias writ should be issued upon plaintiff's request." In order to render the return of the attachment fatally defective, when there has been in substance an execution of the process, it must be made to appear affirmatively that an essential act has been omitted, and there being no clear exhibition of such omission, it cannot be inferred;" that it fails to show the county in which the levy was made is no ground for dismissal." That the clerk, after the return of the writ, wrote out the order of publication upon a separate piece of paper and had it published without entering it upon the record, will not invalidate the proceedings.10 The return is presumed to be true,11 and to state all acts done by the officer toward effecting the levy.12 As between the parties to the action, the return is conclusive,13 and in an action against the sheriff, the latter cannot, ordinarily, contradict his return,14 though he may in a proper case upon proper showing and notice amend the same,15 and it has been held that the return is in the nature of an admission only, and is subject to explanation.16 The return being regular on its face, the burden is upon the debtor to show that the writ was not served in the manner stated.17

Footnote 13: See 1 Curr. L. 248.

94. Attempto levy upon one's interest in an estate in the hands of an executor is void, no notice being given defendant, though the executor was given notice as the tenant in possession. Harris V. Kittle, 119 Ga. 29, 45 S. E. 729.

01. Where attachment was leveld by entry in the incumbrane book on November 19th, sheriff's return showed that he was unable to find the owner in the county until November 28th, and that notice was served on him on November 30th, held served with due diligence, there being no one in possession of the property. Stickley v. Wyldle, 122 Iowa, 400, 98 N. V. 135.

01. Code, SS 390. Where one claimed under an undiscalued bill of sale and procured the key to admit the sheriff, held sufficient to authorize the service upon him. Jordan v. Cricket \[Iowa\] 99 N. V. 163.

01. The retalts in the two clearly identifying the persons holding the property sought to be attached, the notice is sum-element. Lancaster v. Spotswood, 41 Misc. 19, 83 N. Y. B. 572.

01. See 1 Curr. L. 248.

99, I. First Nat. Bank v. Hirschowitz \[Fla.\] 35 So. 22.

2. See 1 Curr. L. 248.

1. Gokey v. Boston & M. R. Co., 180 F.

1.

1. Rev. St. 1888, SS 907. Central Trust Co.

1. Worcester Cycle Mfg. Co., 128 F. 483.

1. Central Trust Co. v. Worcester Cycle Mfg. Co., 128 F. 483.

1. Donner v. Mercy, 81 App. Div. 181, 80 N. Y. S. 1030.

1. Foote v. John E. Hall Commission Co.

(Miss.) 36 So. 538.

8, 9. Connolly v. Atlantic Contracting Co.

(Gok.) 47 B. E. 576.

10. Constraints Shannon's Code, SS 5221,

5937, 524, 5278-5284. Gardner v. Swift & Co. \[Tenn.\] 80 S. W. 764.

11. Lewis v. Rasp \[Okl.\] 76 P. 142.

01. Ireland v. Adair \[N. D.\] 94 N. W. 766.

See 1 Curr. L. 249, 47.

13, 14. Standard Wine Co. v. Chipman

(Miss.) 97 N. W. 679.

15. Standard Wine Co. v. Chipman \[Mich.\]

01. The fact of service and the officer's return that he had served notice on plaintiff as the party in possession. Jordan v. Cricket \[Iowa\] 99 N. W. 163.

01. Lewis v. Rasp \[Okl.\] 76 P.

- 11. _Custody, sale, redelivery, or release of attached property._\[16\]--The sheriff under an attachment has a special property in the goods, and a right to the possession as against any one claiming them under a title to which the lion of the attachment is superior;\_\[17\] _thus repelvin will not lie against him,_\[20\] _nor can a third party not a party to the case assert his title to property seized by the sheriff under bail process, in a trover suit, by filing a claim under claim laws,_\[21\] _and his possession being legal, he is entitled to continue in such possession until the lion acquired thereby is lost, or the property disposed of by force of it, or the lion satisfied._\[22\] _An officer of the court taking possession of the property before appearance by the defendant may be authorized by the court to collect rents accruing after the entry of appearance._\[28\] _The possession of a receptor of property taken by a lawful writ is, in law, that of the officer to whom he is accountable._\[24\] _Under statutes allowing the retention of the attached property during a certain period if the plaintiff announces his intention to appeal from the order of discharge, failure to announce such intention is immaterial where the officer retains possession of the property._\[25\] _The sheriff has no title to the goods after the dismissal of the attachment suit,_\[26\] _though in New York, the lion being destroyed by act of parties, the sheriff may retain the property to secure his fees,_\[27\] _but the lion being destroyed by the action of the court, the latter is permitted to both determine the liability for fees and to direct their payment,_\[28\] _and in the latter case the defendant is liable for_ _poundage upon the value of the property levied upon not exceeding the amount specified in the warrant,_\[29\] _or the action being settled, not exceeding the amount for which the settlement is made._\[30\] _There being a partial release by stipulation of the property covered by the attachment, the sheriff is not entitled to_ _poundage upon such property, the remaining portion being sufficient for the maximum fee allowed by law._\[31\] _Under a statute allowing reasonable fees, a sheriff is entitled to recover directly from the plaintiff for keeping property under an attachment, released by plaintiff before the termination of the suit._\[28\] _Under a statute requiring the officer serving process to indorse thereon his fees and charges in order to have them allowed, a sheriff's charges for securing attached property subsequent to the completion of the service and return of the writ may be recovered without being indorsed thereon._\[28\] _In some states the sheriff cannot release real estate from attachment except while the writ is in his possession and before the return._\[34\] _Evidence that the release by the sheriff was the form in use at the time of granting it is admissible as, tending to show the signing of the release._\[28\] _27. Esselsteyn v. Union Surety & Guaranty Co., S2 App. Div. 471, S1 N. Y. S. 552. E.J. 54 A. 705._\[29\] _Investy V. Gorman, 118 Wis. 8, 94 N. W. 658._\[30\] _Investy V. Gorman, 118 Wis. 8, 94 N. W. 658._\[31\] _Clv. Code 1895, # 4611 et seq. Central Bank of Oakland v. Georgia Grocery Co. \[Ga.\] 48 S. E. 325._\[32\] _First Nat. Bank v. Hesser \[Ok.\] 71 P. 36._\[33\] _Chemical Nat. Bank v. Kellogg \[N. J. Sup.\] 87 A. 149._\[34\] _Investy V. Gorman, 118 Wis. 8, 94 N. W. 658._\[35\] _Code, # 3831. Sheldon v. Bigelow \[Lowal\] 100 N. W. 502._\[40\] _Cannot deliver them to the attaching plantiff. Rosencrans v, Swofford Bros. Dry Goods Co., 175 Mo. 518, 75 S. W. 445._\[41\] _Investy V. Gorman, 118 Wis. 8, 94 N. W. 658._\[42\] _Investy V. Gorman, 118 Wis. 8, 94 N. W. 658._\[43\] _Investy V. Gorman, 118 Wis. 8, 94 N. W. 658._\[44\] _Investy V. Gorman, 118 Wis. 8, 94 N. W. 658._\[45\] _Investy V. Gorman, 118 Wis. 8, 94 N. W. 658._\[46\] _Investy V. Gorman, 118 Wis. 8, 94 N. W. 658._\[47\] _Investy V. Gorman, 118 Wis. 8, 94 N. W. 658._\[48\] _Investy V. Gorman, 118 Wis. 8, 94 N. W. 658._\[49\] _Investy V. Gorman, 118 Wis. 8, 94 N. W. 658._\[50\] _Investy V. Gorman, 118 Wis. 8, 94 N. W. 658._\[51\] \_Investy 3 Cur. Law. ATTACHMENT SS 13.

## 12 Forthcoming bonds and receipts

There being a substantial compliance with the statute, the bond is enforceable as a statutory bond \[37\]; thus the plaintiff may waive the formal approval of the bond provided by statute without invalidating its efficacy as a statutory release bond \[58\]. In order to render the bond valid, the property need not stand in the name of the attachment defendant \[39\], the dissolution of the attachment being a sufficient consideration \[40\]. The giving of a supersedeas bond upon a writ of error ineffective for lack of jurisdiction does not affect a forthcoming bond previously given \[41\]. In some jurisdictions, before recovery can be had, demand must be made; but proceedings to collect on the judgment may amount to a demand for the payment of such judgment, the debtor being insolvent \[42\]. The bond running to a nominal plaintiff, the surety is liable to the real party in interest, who is substituted for such nominal plaintiff, the record being such as to advise the surety from the beginning as to who the real party in interest was \[43\]. Under statutes allowing the retention of the attached property during a certain period if the plaintiff announces his intention to appeal from the order of discharge, failure to announce such intention will not defeat the liability of sureties on a redelivery bond on reversal of judgment, the officer retaining possession of the property \[44\]. By giving a forthcoming bond, the defendant waives irregularity and defects in the attachment proceedings \[45\]; but not mere overstatement of the amount due \[46\].

## 13 Lien or other consequences of levy

By the levy one acquires a specific lien \[48\] for the satisfaction of any judgment which may be obtained in the suit \[49\], which can only be lost by an order discharging the attachment \[50\]. The lien is such as to entitle the creditor to maintain a bill to remove a cloud on the title \[51\]. An attachment of mortgaged land, the mortgage being recorded, in an action against the mortgagor creates a lien only on the equity of redemption \[52\], and such equity of redemption being attached, a foreclosure suit will not affect the attaching creditor's rights unless he is made a party, or charged with notice by the filing of a lis pendens \[53\]. In attachment proceedings against a nonresident who is not served the only lien created or foreclosed is that arising by virtue of the seizure of the property levied on \[54\]. The delivery of the forthcoming bond does not dissolve the lien \[55\], and plaintiff, upon recovering judgment, may retake the property from a bona fide purchaser who purchased after the release under

$$egin{array}{l}\\mbox{{ t 34,35. Hesser v. Rowley, 139 Cal. 410, 73}}\\ \\mbox{{ t P. 156.}}\\ \\mbox{{ t 36. See 1 Curr. L. 250.}}\\ \\mbox{{ t 37. Ebner v. Heft \[C. C. A.\] 125 F. 680.}}\\ \\mbox{{ t 38. Coulson v. Baltsman \[Neb.\] 98 N. W. 1055.}}\\ \\mbox{{ t Co. v. Bowen \[Iowa\] 98 N. W. 897.}}\\ \\mbox{{ t 39, 40. Fidelity & Deposit Co. v. Bowen \[Iowa\] 98 N. W. 897.}}\\ \\mbox{{ t 39, 40. Fidelity & Deposit Co. v. Bowen \[Iowa\] 98 N. W. 897.}}\\ \\mbox{{ t 50. To not lost by taking a general money under seal and reclated as a consideration the \[Iowa\] 98 release of all the property attached and the discharge of the attachment. Ebner v. Heft \[C. C. A.\] 125 F. 680.}\\ \\mbox{{ t 41. Liability of sureties on attachment}}\\ \\mbox{{ t bond was not superseded and merged in the \[Iowa\] 98 N. W. 1055.}}\\ \\mbox{{ t supersedeas bond. Ebner v. Heft \[C. C. A.\] 125 F. 680.}}\\ \\mbox{{ t 42. Ebner v. Heft \[C. C. A.\] 125 F. 680.}}\\ \\mbox{{ t 43. Campbell & Zell Co. v. American Sure- 43. Campbell & Zell Co. v. American Sure- 44. Code, & S 3931. Sheldon 'v. Bigelow \[Iowa\] 100 N. W. 502.}\\ \\mbox{{ t 45. An undertaking, a copy of whlth 18 set forth in the opinion, held sufficient under Sess, Laws 1895, p. 18. Finney v. Moore \[Idaho\] 174 P. 856.}\\ \\mbox{{ t 46. Anvil Gold Min. Co. v. Hoxse \[C. C. A.\] 125 F. 724.}}\\ \\mbox{{ t 47. See 1 Curr. L. 250.}}\\ \\mbox{{ t 48. Coulson v. Baltsman \[Neb.\] 98 N. W. 1055.}}\\ \\mbox{{ t 49. Rochester Lumber Co. v. Looke \[N. H.\] 98 N. W. 1055.}}\\ \\mbox the bond and without notice of the attachment." In Oklahoma the lien of the attachment is not lost by a failure on the part of the probate or justice of the peace court to make proper docket entries of the issuance of such order of attachment." Execution being issued upon the judgment the attachment is merged therein." An attachment being void no lien is acquired."

SS 14. _Conflicting levies, liens, and creditors; priorities._"An attaching creditor is not a purchaser for value, and takes the property subject to all equi-table rights therein enforceable against the debtor," hence the purchaser of one acquiescing in an attachment cannot contest its validity." The claim of a purchaser in good faith and for a valuable consideration of a draft and bill of lading attached thereto is superior to the attachment lien of the vendee who refuses to pay the draft alleging the vendor to be his debtor." In some states claims for services are preferred over the lien of the attaching creditor," and a suit to establish such claim in so far as it seeks to establish and enforce a lien upon the debtor's property is equitable in its nature," and must be brought within the time prescribed by law." The lien of a pledgee of stock is superior to the lien of a subsequent attaching creditor of the assignor," such attachment being valid, however, as to the interest of the assignor after the debt has been paid." The rights of the beneficiary of a trust fund are superior to attaching creditors of the trustee." The lien created by attachment is inferior to a title obtained by purchase before the attachment," but superior to a prior unrecorded ded, given in good faith for a valuable consideration, of which the attaching creditor had no notice," and such ded being given with the intent to defraud creditors it is invalid as against a subsequent attachment by one having knowledge thereof," though in some states it is held that the ded will take precedence if recorded before the ded based upon the attachment or judgment." The ded being delivered subsequent to the levying of the attachment, the mortgagee's lien is subject to that acquired by such attachment creditor by virtue of the levy of such attachment." A stipulation to sell attached property and divide the proceeds does not affect the rights of an attaching creditor who is not a party thereto." The first of a series of attaching creditors obtaining a sale of the 3 Cur. Law. ATTACHMENT SS 14. 369

property under an order of the court which is reversed upon appeal, he is liable to an action for money had and received by the subsequent attaching creditors,76 to which, however, he may set up any counterclaim or set-off,77 and the statute of limitations does not begin to run until the first attachment is dissolved.78 A prior valid attachment lien is presumed to continue until it is affirmatively shown that the priority has been lost.79 A junior attaching creditor cannot take advantage of irregularities in the attachment proceedings.80 In some states, by statute, creditors levying within a certain period share pro rata in the property.81

\_Priorities between attachments and mortgages.82--A mortgage claiming through a deed filed for record subsequent to the levying and recording of an order of attachment takes with notice of the rights of the attaching creditor, and subject to such infirmities as inhere in the title of the mortgagor.83 A mortgage of after acquired property is valid against subsequent attaching creditors.84 The open and admitted inclusion of a small claim of another creditor in a valid chattel mortgage does not render such mortgage and possession thereafter fraudulent and unlawful as against attaching creditors.84

\_Surrender of attached property to a receiver.84--After a surrender to a receiver, under a stipulation that it be without prejudice, the court will not permit the rights of the attaching creditor to be defeated on technical grounds.85 A creditor attaching an equity of redemption waives the attachment lien by filing a claim with the receiver of the property, subsequently appointed at the suit of the mortgage, and not appealing from the disallowance thereof.86 An attachment is not affected by the subsequent appointment of a receiver,87 and is prior to any claim acquired by proceedings under the receivers to which the attachment creditor is not a party.86

_Priority between attachments and assignments for benefit of creditors.91_

As against a valid assignment a subsequent attaching creditor cannot claim any

75. Central Trust Co. v. Worcester Cycle

to justice court practice. Kimball v. Ray-Mfg. Co., 128 F. 488.

mond \[daho\] 72 P. 857.

76, 77, 78. First Nat. Bank v. Avery Plant-

by a mortgage to render mortgage valid as

er Co. \[Neb.\] 95 N. W. 622.

79. Claim that priority was lost by lache

held not sustained. Westervelt v. Baker

\[Neb.\] 95 N. W. 793.

80. NOTE. Right of minor attaching creditors to question validity of attachment: A

\[r\] Junior attaching creditor cannot take advantage of irregularities or informalities in proceedings in a prior attachment though

\[r\] constituting good grounds for setting aside the attachment on the motion of the defend-ant. Glaser v. First Nat. Bank, 62 Ark. 171.

34 B. W. 1061, 35 L. R. A. 765; Mehrand v. Youngblood, 31 S. C. 231, 15 S. E. 950; Gilke-son Slos Comm. Co. v. Bond, 44 La. Ann. 841, 11 So. 220; Caldin, v. Sylvester, 93 Mo.

276, 12 B. W. 508. Though l1 has been held

that such subsequent attaching creditor is

\[r\] entitled to relief against attachments based

on demands not due, when there is no statute

\[r\] a two authorizing it, or on one which has no

\[r\] a two authorizing it, or on one for which an attachment could not lawfully lase, they being

\[r\] a two authorizing creditor cannot take advantage of irregularities in the attachment proceedings.86 In some states, by statute, creditors levying within a certain period share pro rata in the property.87

\_Priorities between attachments and mortgages.88--A mortgage claiming through a deed filed for record subsequent to the levying and recording of an order of attachment takes with notice of the rights of the attaching creditor, and subject to such infirmities as inhere in the title of the mortgagor.88 A mortgage of after acquired property is valid against subsequent attaching creditors.884 The open and admitted inclusion of a small claim of another creditor in a valid chattel mortgage does not render such mortgage and possession thereafter fraudulent and unlawful as against attaching creditors.884

\_Surrender of attached property to a receiver.88--After a surrender to a receiver, under a stipulation that it be without prejudice, the court will not permit the rights of the attaching creditor to be defeated on technical grounds.88 A creditor attaching an equity of redemption waives the attachment lien by filing a claim with the receiver of the property, subsequently appointed at the suit of the mortgage, and not appealing from the disallowance thereof.88 An attachment is not affected by the subsequent appointment of a receiver,88 and is prior to any claim acquired by proceedings under the receivers to which the attachment creditor is not a party.88

_Priority between attachments and assignments for benefit of creditors.91_

As against a valid assignment a subsequent attaching creditor cannot claim any

75. Central Trust Co. v. Worcester Cycle

to justice court practice. Kimball v. Ray-Mfg. Co., 128 F. 488.

76, 77, 78. First Nat. Bank v. Avery Plant-

82. Smfficiency of evidence of possession

er Co. \[Neb.\] 95 N. W. 622.

against a subsequent attachment. Taylor v.

79. Charlie-Haas Drug Co. \[Neb.\] 96 N. W. 182.

held not sustained. Westervelt v. Baker

Evidence held insufficient to sustain a find-
\[Neb.\] 95 N. W. 1793 priority,"2 nor are the proceeds of assigned property subject to a levy under an attachment."3

_Effect of bankruptcy proceedings._"--An adjudication in bankruptcy annuls all attachment levies obtained within four months prior to the filing of the petition," unless preserved by an order of the court."6 This provision of the bankruptcy act applies to attachments sued out in state as well as Federal courts," and is binding upon the state courts."8 It does not impair the obligation of a contract or divest the attaching creditor of a vested right," and the state court is bound to take notice of the bankruptcy proceedings when properly pleaded as a defense.1 It does not affect a valid attachment acquired more than four months before the filing of the petition," though both plaintiff and defendant at the time of the attachment knew that defendant was insolvent,3 and the plaintiff may prosecute his case to judgment and satisfy the same by an execution sale of the attached property,4 nor does the adjudication in bankruptcy destroy or impair the title obtained by such attachment by a bona fide purchaser for value without notice or reasonable cause for inquiry.5 The bankruptcy proceedings do not affect the lien of the attachment as against the bankrupt himself,6 and the trustee failing to dispose of the property prior to the discharge, the attachment lien continues unaffected by the proceedings.7 As to whether or not the lien of a sheriff, holding the property under an attachment, for his fees and necessary outlays in preserving the property, is discharged by bankruptcy there is a conflict among the decisions.8

**SS 15.**_Enforcement and dissolution, discharge, vacation, or abandonment of attachment. A. Validity and grounds for setting aside._"--In New York, a defendant not being personally served, and not appearing, but the property being attached, the court will proceed to determine the cause," and judgment being rendered against the plaintiff, upon appeal the only question that can be determined is the sufficiency of the affladvis," but the court has no jurisdiction to enter judgment by default where the summons was not personally served, and the defendant appeared specially and moved to vacate the attachment which was unwarranted and based upon insufficient proof,12 but the right to dispute the

92. State v. Keeler, 49 Mo. 548; Bryce v. 97. Vood v. Carr, 24 Ky. L. R. 2144, 73 Fot, 25 S. C. 467; Musssey v. Noyes, 26 Vr. 85. V. 762.

462; Sawyer v. Spaulding, 8 Iowa, 239, 14 Am. 95. Thompson v. Ragan, 25 Ky. L. R. 1684, Dec. 300; Ja.obs v. Remsen, 56 N. Y. 668;

78 S. W. 485.

Wells v. Lamb, 18 Neb. 352. From note to 99, 1. Wood v. Carr, 24 Ky. L. R. 2144, 73

1n re Enderlin State Bank \[N. D.\] 26 L. R. A. 58. W. 762.

93. Dewing v. Ventworth, 11 Cush, 1110; In re Snell, 125 F. 154. See 1 Curr. L. \[Mass.\] 495; Confield v. Collins, 28 N. C. 486; 252.

Lanning v. Streeter, 57 Barb. \[N. Y.\] 33.

3. Hurlbut v. Brown \[N. H.\] 55 A. 1046. From note to In re Enderlin State Bank \[N. D.\] 26 L. R. A. 593.

1. See 1 Curr. L. 252; see, also, Bank-ruptcy, 1 Curr. L. 311.

1. In re Goldberg \[C. C. A.\] 121 F. 578;

1. Bankrupt cannot retake possession from sheeriff. Rochester Lumber Co. v. Locke \[N. H.\] 54 A. 705.

1. Rochester Lumber Co. v. Locke \[N. H.\] 54 A. 705.

1. That it is not. Wilkinson v. Raymond, 80 App. Div. 378, 81 N. Y. S. 82. See this case for authorities pro and con.

1. See 1 Curr. L. 253.

1. Municipal Court Act (Laws 1902, p. 1619, c. 580) $ 91. Hill v. Martin, 88 N. Y. 8703.

1. Hill v. Martin, 88 N. Y. S. 708.

1. Durkin' v. Paten, 89 N. Y. S. 622; 3 Cur. Law. ATTACHMENT SS 15B. 371 jurisdiction of the court to enter such default judgment may be waived by appearance.\[13\] The action failing,\[14\] or being discontinued,\[15\] the attachment is vacated, and the defendant is entitled to have a formal order vacating it.\[16\] The undertaking being defective, the attachment will be quashed on motion.\[17\] The affidavit being false, which includes stating the wrong ground, the attachment will be dissolved.\[18\] An attachment issued upon insufficient grounds is fatally defective and cannot be amended.\[19\] In an action against a nonresident for un-liquidated damages, the attachment should be for about two-thirds of the amount demanded as damages.\[20\] Matters of defense upon the trial are not necessarily proper matters to set up to vacate an attachment.\[21\] An administrator has sufficient interest to have a void attachment upon the intestine's property set aside.\[22\] One procuring a void attachment upon his debtor's property is not thereby placed in a new position so as to entitle him to claim equitable protection and advantage in proceedings to have such attachment judicially declared void.\[23\] (SS 15) \_B. Procedure.\[24\]--\_The issues in attachment must be presented by the affidavit and the answer or traverse.\[26\] The answer to the affidavit must deny the allegations thereof.\[26\] In some states the defendant may appear and plead at any time before final judgment.\[27\] Leave to amend the answer is discretionary,\[28\] and the grounds. of the court's refusal not appearing, error cannot be declared.\[29\] A suit begun by foreign attachment being removed to a Federal court because of diversity of citizenship, that court has jurisdiction to dissolve the attachment according to the state practice.\[20\] The motion to dismiss must be made before the forthcoming bond is given,\[31\] before the property is sold and the proceeds applied to the satisfaction of the judgment,\[32\] before final judgment.\[33\] In New York, the notice of motion to vacate for irregularity must specify the irregularity,\[34\] and the affidavit of the party moving to vacate an attachment

Mohlman Co. v. Landwehr, 87 App. Div. 83, 83 N. Y. S, 1078. Where afflavits consisted of rectalts of hearsay. Delaney v. Bouse, 91 App. Div. 487, 86 N. Y. S. 880. 13. Delaney v. Bouse, 91 App. Div. 487, 86 N. Y. S. 880. 14. Anvil Gold Min. Co. v. Hoxse \[C. C. A.\] 125 F. 724. 15. American Audit Co. v. Industrial Federation, 87 App. Div. 275, 84 N. Y. S. 369. 16. Under Gen. Prac. Rule No. 3, he is entitled to have the papers upon which the motion was made recited. in the order. American audit Co. v. Industrial Federation, 87 App. Div. 275, 84 N. Y. S. 369. 17. Bond was not for double the amount used for as required by statuche. Zacharias v. Swanson (Tex. Civ. App.) 77 S. V. 627. 18. Rev. Codes 1899, $ 5376. Ground stated in affidavit was for a debt fraudulently contracted whereas action was for damages for deceit. Sonnesyn v. Alkin \[N. D.\] 97 N. V, 557. 19. Forbes Piano Co. v. Owens \[Ga.\] 47 S. 10. 98. 20. A like sum is excessive. Suit was for the alienation of affections of plaintiff's wife. Guest v. Lowther, 84 App. Div. 462, 82 N. Y. S. 1015. See 1 Curr. L. 247, n. 22. As to whether cause of action was merged in another action. United Press v. Abell Co., 84 N. Y. S. 426. 22. Estate consisted only of the one piece of property. Munger v. Doolan, 75 Conn. 656, 55 A. 169. 23. Munger v. Doolan, 75 Conn. 656, 55 A. 169. 24. See 1 Curr. L. 254. 25. Denials in defendant's answer in the principal suit cannot be relied upon to put in issue the allegations of the affidavit. Midland Fuel Co. v. Schuessler \[Colo. App.\] 71 P. 894. An allegation in an affidavit dated December 8th, that defendant is about to fraudulently transfer his property is not defined by a traverse dated December 372ATTACHMENT SS 15B. 3Cur. Law. must state the present condition of the action, whether at issue, and if not yet tried, the time set for trial,\[38\] but such an objection to the affidavit cannot be raised for the first time on appeal.\[38\] Neither a claimant,\[37\] nor a stranger to the transaction whose property is wrongfully attached,\[38\] can move to vacate the attachment. One resisting a motion to vacate may by affidavit controvert, explain, or extend the facts stated by the moving party.\[39\] A motion to dismiss goes only to the writ,\[40\] hence though the attachment be void the suit need not be dismissed.\[41\] A motion to discharge an attachment is not a demurrer to the complaint.\[42\] In some states two separate bills of exceptions are required in attachment cases, one on the attachment branch and one as to the trial on the merits.\[43\] In some states, it appearing by affidavit that to plaintiff's knowledge defendant has not enough property subject to attachment to satisfy plaintiff's claim, the defendant may be examined under oath,\[44\] and on such an examination the defendant may be committed for contempt for refusal to answer questions.\[45\] As to whether it is proper, on a motion to dissolve an attachment, to pass upon the grounds of an attachment where they are the same as the issues in the case, authority is divided.\[46\] On a motion to dissolve for matters outside the record the court must take notice of the complaint and affidavit as part of the record, though not formally introduced, and the moving party must offer proof of his facts.\[47\] A judgment in foreign attachment will be reopened upon defendant alleging that he had no notice of the proceedings, and has a just and legal defense,\[48\] and when reopened the attachment continues.\[49\] On appeal from a magistrate's decision determining an attachment both parties are entitled to produce testimony de novo.\[50\]

\_Evidence.\[81\]--\_The burden is upon the attachment plaintiff to show that the property is subject to levy.\[82\] All the facts necessary to sustain the affidavit must be definitely shown in the testimony.\[53\] Plaintiff must maintain the grounds of his attachment as laid in his affidavit by the preponderance of the evidence,\[54\] though the defendant may waive the objection that the attachment was not dismissed for want of evidence on the part of the plaintiff, by introducing evidence stating that on papers named, defendant \[ p. 1519, c. 580, i 901. Feldman v. Siegel, 87 would apply for an order vacating the attachment, held InsurMelen. Van Wickle v. 42. So as to demand consideration of it as Weaver Coad & Croke Co., 88 App. Dlv. 603, 85 on a demurrer. Hale Bros. v. Milliken, 142 N. Y. B. 82; Ennis v. Untergrunt, 87 N. Y. B. 88. 43. Rev. St. 1899, i 407. Alexander v. 85. Rule 37, General Rules of Practice, Wade \[Mo. App.\] 80. S. W. 917. Austrian Bentwood Furniture Co. v. Wright, 88 N. Y. S. 142; Sanger v. Connor, 88 N. Y. B. 1054. Carpenter v. Clemente, 122 Iowa, 294, 1054. 88. Austrian Bentwood Furniture Co. v. Wright, 88 N. Y. B. 142. 87. The right to vacate an attachment under Co., 863, providing that an attachment issued without affidavit may be abated by defendant is limited to the defendant in necessary to produce different judges. Goldman v. Foter, claimant, McCain Bros. v. Street, 136 Ala. 825, 33 So. 872. 83. Two corporations of same name, Rem. edy is by replievin, conversation, or trespass. Bacon v. Abbey Press, 87 N. Y. S. 156. 89. Fluke Co. v. Papulias, 42 Misc. 18, 85 N. Y. B. 843. 40, 41. McAndrew v. Irish American Bank, 117 Ga. 510, 43 E. E. 858. In New York, the summons in an action against oparthers being personally served on one of them the action should not be dismissed on vacating an attachment therein \[Laws 1902, 3 Our. Law. ATTACHMENT SS 16. 373

on his own behalf. \[58\] The question of nonresidence being presented by affidavits, it becomes purely a question of fact. \[58\] On the trial of a contest of a claim for exemption from an attachment the affidavit and undertaking are not relevant evidence, \[57\] but book entries by the sheriff of facts concerning the levy are admissible. \[58\]

\_Judgment and decree or order. \[59\]--The property being taken on a forthcoming bond the judgment must provide that defendant shall return the property or pay its value. \[60\] An order refusing to quash an attachment is not a final order, \[61\] but an order quashing an attachment is. \[62\]

\_Appeal.--An order vacating an attachment is not appealable. \[68\] In an action to compel delivery of property taken by attachment, there being nothing in the record to show whether the amount due under, the attachment was less or more than the value of the property, it will be presumed upon appeal that it was not a less sum. \[64\] An order of the trial court discharging an attachment will be sustained unless clearly against the weight of the evidence. \[65\]

SS 16. \_Hostile and opposing claims to attached property. \[66\]--Any person claiming property attached may interplead in the cause, \[67\] but such interplead must have the legal title or right to the immediate possession of the property, \[68\] and must recover upon the strength of his own claim, not upon the weakness of that of his adversary. \[69\] One of several interpleaders purchasing the claim of the plaintiff, the claims of the other interpleaders are not thereby disposed of but the case should proceed upon the issues raised. \[60\] In the absence of statutory provisions such interpleader is not required to give a bond before filing his interplea. \[60\] Under statutes permitting a married woman to contract, sue, and be sued on her own account, she can interplead in an attachment suit against her husband to recover her separate property. \[61\] The true owner is not estopped from asserting ownership as against an attaching creditor, by declarations of title by the party in possession, such declarations being unknown to the owner. \[60\] Preferred creditors intervening in an attachment suit which is about to be dismissed as groundless cannot maintain a bill in equity to have the attachment enforced for their benefit. \[62\] Neither the sheriff nor the attaching creditors are necessary or proper parties to a suit by a claimant to establish a disputed claim. \[63\]

SS5. Dunn v. Claunch, 13 Old. 143, 76 P. 143. V. Campbell Commission Co., 13 Old. 75, 7\* 56. Williams v. Farmers' Gin & Grain Co., P. 507. But see I Curr., 12, 87, n. 62. 18 Old. 5, 78 P. 268. Rise, Stix & Co. v. Sally, 178 Mo. 107. 57. Bailey v. Dunlap Mercantile Co., 138 Ala. 415, 35 So. 451. \[64\] Viding that after default the mortgagee could take possession of and sell the chat- tels, the mortgagor after default cannot in- toh * 17. 3 Cur. Law.

_Pleading._"--The ownership of movable property being in dispute, the party against whom the claim is asserted may require the intervenors to amend their pleadings so as to give him such information as will acquaint him with the details of the claim he must meet."

_Evidence and questions of fact._"--The burden is upon an interpleader to prove his title," or right to possession," though in some states the plaintiff must first make out a prima facie case that the property is liable to attachment," which he may do by proving that the goods were in the control and possession of the defendant at the time of the levy." Statements by the attachment defendant to the attaching creditor as to his own financial condition are inadmissible." The nature of the possession, declarations of the parties as to title, and the relationship of the owner and party in possession, are competent evidence on the question of ownership."

_Trial._"--In some states the issues on the affidavit of claim must be made up at the term at which the attachment is returnable." The issues made by the interpleader should be tried as like issues between plaintiff and defendant." Several claimants interpleading, all the issues should be tried and determined, and the property awarded to the rightful claimant."

- 17. _Wrongful attachment._"--An attachment maliciously made for an excessive amount is an actionable wrong," but no action lies for wrongful attachment if facts justifying an attachment exist, although the creditor was ignorant thereof." A judgment in favor of defendant conclusively establishes that the attachment was without sufficient cause." That the plaintiff in his affidavit knowingly and grossly overstates the amount of his claim, warrants the inference of malice," but that the claim attempted to be prosecuted by attachment was subject to a set-off of greater amount is not sufficient to justify such a conclusion." There being several wrongful levies on the same property by the same parties but one cause of action arises." A wife abandoned by her husband," or a purchaser from an assignee for the benefit of creditors," can maintain this
- 25. Code Civ. Proc. **SS 2163**, 2154. Shea v.
- 26. Reen \[Mont.\] 74 P. 737.
- 27. See J Curr. L. 257.
- 28. Teunent-Stribling Shoe Co. v.
- 29. Intervenors claiming some horses out of a number attached ordered to give in their pectin the name and description of each horse, the date and place of purchase, the price, if possible, and the person from whom they bought. Curtis v. Jordan, 110 La. 429, 34 So. 591.
- 29. See 1 Curr. L. 258.
- 30. Willard Mfg. Co. v. Tierney, 133 N. C.
- 310. 45 S. E. 1026: Torreyson v. Turnbaugh
- 32. See 1 Curr. L. 258, n. 84.
- 33. Totreyson v. Turnbaugh \[Mo. App.\] 79 S. W. 1002. See 1 Curr. L. 258, n. 84.
- 34. Code, $ 4114. British & A. Mortg. Co. v. Cody, 185 Ala. 622, 33 So. 832.
- 35. The attachment being l'evolved upon a crop, and being for rent due, testimony by the snerif that he loved upon the crop while on land cultivated by the defendant, held to make a prima facie case. British & A. Mortg. Co. v. Cody, 185 Ala. 622, 33 So.
- 36. Torreyson v. Turnbaugh \[Mo. App.\] 79 S. W. 1002.
- 37. Wright v. Tanner \[Minn.\] 89 N. W. 422.
- 38. See 1 Curr. L. 258.
- 39. In Mississippi, if not so done, the attachment may be discharged and the claim-ant released from his bond \[Rev. Code 1892, 89 4425-4428\]. Tenenent-Stribling Shoe Co. v.
- 40. Reen \[C. C. A.\] 128 F. 40.
- 41. 57, 88. Miller v. Campbell Commission Co.,
- 42. See 1 Curr. L. 259.
- 43. See 1 Curr. L. 259.
- 44. Tamblyn v. Johnston \[C. C. A.\] 126 F. 267.
- 45. Lord, Owen & Co. v. Wood, 120 Iowa.
- 46. 58. Anvil Gold Min. Co. v. Hoxse \[C. C. A.\] 125 F. 724.
- 47. Tamblyn v. Johnston \[C. C. A.\] 126 F. 267.
- 48. Smeaton v. Cole, 120 Iowa, 368, 94 N. W. 909.
- 49. Burdge v. Kelchner, 66 Kan. 642, 72 P.
- 40. Civ. Code, $ 34, subsec. 4, providing that if a husband desert his wife she may bring or defend any action he might bring or defend, held she could maintain an action for wrongful attachment of exempt property. Baum v. Turner, 25 Ky. L. R. 600, 76 S. W. 129.
- 41. A purchaser from an assignee for benefit of cred action. Allowing the garnishee to be discharged and costs to be entered against himself does not estop the attachment defendant from maintaining an action for wrongful attachment." The sheriff assuming liability for the levy the owners have a cause of action against him for conversion, the levy being declared unlawful." Mandamus has been allowed to compel the sheriff to redeliver property wrongfully attached.1 A counterclaim for wrongful attachment cannot be made in the suit begun by the attachment.2

Footnote 1: The author is grateful to the anonymous referee for the support of the manuscript.

\_Pleading.3--\_The allegations must not be inconsistent.4 An allegation that one wrongfully sned out his attachment is sufficient, after verdict, in the absence of a motion to make more specific.8

Footnote 1: The author is grateful to the anonymous referee for the support of the manuscript.

\_Evidence and questions of fact.--\_The claim being that the attachment was wrongfully sued out, the attachment defendant must show that the attachment has been discharged in the suit in which it was issued,7 but the wrong complained of being the seizure of property not subject to the writ, plaintiff need not show such discharge.8 Malice being alleged all matters directly connected with the conduct of the business transactions between the two parties are relevant,9 also that the attachment plaintiff did not properly apply money received to pay the debt.10 Declarations of agent of attorney who filed the attachment papers are admissible as against the attorney's client.11

Footnote 11: The author is grateful to the anonymous referee for the support of the manuscript.

\_Damages.12--\_In the absence of statutes the wrongful issuance of the writ will not alone warrant the recovery of damages.13 No damages being proven none can be recovered.14 Damages allowed by a state court are recoverable, though the action is removed to the Federal courts.15 The measure of damages is not affected by the subsequent conduct of the defendant in seizing the property upon execution.18 Rent,17 clerk hire,18 depreciation of goods,19 value of license to carry on business,29 and of property used by sheriff,21 may be recovered.

Footnote 13: The author is grateful to the anonymous referee for the support of the manuscript.

Footnote 14: Where no injury to defendant's credep.\] 76 S. W. 862.

Footnote 15: Attorney's fees. Fidelity & Deposit Co., v. Buckli & Son Lumber Co., 189 U. S. 2 Ballinger's Ann. Codes & St. & 4913. Tres- pass. See this case for short discussion pro and eon of above proposition. Tacoma Mill S. W. 187.

Footnote 16: Miller W. Baker, 25 Ky. L. R. 1858, 79 S. W. 187.

Footnote 17: Of the building in whleh the business is carried on. Lord, Owen & Co. v. Wood, 120 Iowa, 303, 94 N. W. 842. The sheriff, retaining possession of a building rented by the attachment defendant longer than is necemery a recitation of the effect of the judgement and not inconsistent with an allegation that the officer had refused to deliver the property to plaintiff. Chandler v. Howell Tex. Cyr. App.J 78 S. W. 426.

Footnote 18: Where a business could not be carried on, owing to a wrongful levy on a stock of goods, cerk hire which plaintiffs were compled to pay under their contract could be recovered In an action for damages for the wrongful levy. Hooks v. Parford \[Tex. Cyr. App.\] 78 S. W. 991.

Footnote 19: He is not stepped from claiming such damages, although he protested against a sale on the ground that they might depres.

Footnote 20: A stock of liquors and a saloon II- cense of plaintiff were wrongfully leveled on as the property of plaintiff's vendor, so that plaintiff could not carry on his business.

Footnote 21: He is not stepped from claiming such damages, although he protested against a sale on the ground that they might depres.

Footnote 22: A stock of liquors and a saloon II- cense of plaintiff were wrongfully leveled on as the property of plaintiff's vendor, so that plaintiff could not carry on his business.

Footnote 23: He is not stepped from claiming such damages, although he protested against a sale on the ground that they might depres.

Footnote 24: He is not stepped from claiming such damages, although he protested against a sale on the ground that they might depres.

Footnote 25: A stock of liquors and a saloon II- cense of plaintiff were wrongfully leveled on as the property of plaintiff's vendor, so that plaintiff could not carry on his business.

Footnote 26: He is not stepped from claiming such damages, although he protested against a sale on the ground that they might depres.

Footnote 27: He is not stepped from claiming such damages, although he protested against a sale on the ground that they might depres.

Footnote 28: A stock of liquors and a saloon II- cense of plaintiff were wrongfully leveled on as the property of plaintiff's vendor, so that plaintiff could not carry on his business.

Footnote 29: He is not stepped from claiming such damages, although he protested against a sale on the ground that they might depres.

Footnote 303: He is not stepped from claiming such damages, although he protested against a sale on the ground that they might depres.

Footnote 31: He is not stepped from claiming such damages, although he protested against a sale on the ground that they might depres.

Footnote 32: He is not stepped from claiming such damages, although he protested against a sale on the ground that they might depres.

Footnote 33: He is not stepped from claiming such damages, although he protested against a sale on the ground that they might depres.

Footnote 34: He is not stepped from claiming such damages, although he protested against

#### 376 Attornneys and Counsselors $\\lx@sectionsign$ 1.

3 Cur. Law.

Damages for loss of credit by reason of the wrongful attachment are recoverable,\[32\] though damages for injuries to the vendee's credit, and loss of profits resulting from actions brought by his vendor for breach of contract are not recoverable in a suit on the attachment bonds issued in such actions.\[23\] Attorney's fees paid for recovering property wrongfully attached cannot generally be recovered,\[24\] nor is interest accruing prior to the date of judgment recoverable.\[28\] The attachment defendant remaining in the possession of the property he can only recover nominal damages, unless he refrains from using it under instructions from the officer.\[20\] Exemplary damages may be allowed.\[27\] The attachment defendant may recover in the same action damages for the value of the goods not returned, together with expenses incurred in dissolving the attachment, and for loss of time.\[28\] That the attachment defendant procured a release of the property shortly after seizure is relevant and material on the question of damages,\[29\] and the good faith of the attachment plaintiff and the sureties on the bond is no defense.\[30\]

The measure of the debtor's damages for loss of time is what his time would have been worth at his particular business.\[31\] The property being held under subsequent attachments at the time of the vacation of defendant's attachment, the measure of damages is the difference in the market value of the property on the date of the levy of defendant's writ, and their value on the day when such writ was dissolved.\[32\] The property being held, at the time of the dissolution of the writ of attachment, under a valid writ of sequestration, the damages recoverable by the attachment defendant are only such as he appears to have sustained by reason of the charges in the afflavit and his expenses in procuring the dissolution of the writ.\[38\]

## 1 Admission to Practice and License

**$\\lx@sectionsign$ 1.**: **Amission to Practice and License**

**$\\lx@sectionsign$ 2.**: **Privileges and Disabilities (377).**

**$\\lx@sectionsign$ 3.**: **Suspension and Disabmment. Grounds**

**$\\lx@sectionsign$ 4.**: **Creation and Termination of Relation with Client (379).**

**$\\lx@sectionsign$ 5.**: **Rights, Dutles and Libilities Between Attorexy and Client; Generally; Locality and Good Faith (379).**

**$\\lx@sectionsign$ 6.**: **Remedies Between the Parties (381).**

**$\\lx@sectionsign$ 1.**: \*\*Admission to practice and license taxes.\[34\]--The granting of a license to practice law, being the exercise of a judicial function, can be impeached collo-

egin{tabular}{l|l} \\multicolumn{1}{l}{Pafford \[Tex. Civ. App.\] $\\lx@sectionsign$ 78 S. W. 991.} & rights, exemplary or vindictive damages may be recovered in addition to actual damages. \\ & 21.\*\*: \*\*Coal. Hooks v. Parford \[Tex. Civ. App.\] $\\lx@sectionsign$ 78 S. W. 991.} & \\multicolumn{1}{l}{
egin{tabular}{l} Cur. Law. ATTORNEYS AND COUNSELORS SS 2 377

laterally .only by what affirmatively appears on the face of the record,"8" but a license to practice law may be withdrawn by the power which confers it.88 The failure of an attorney to pay the statutory occupation tax will not bar his right to recover on a cause of action assigned to him by his client as compensation for his services.87 In New Jersey, attorneys are licensed by the governor after examination and recommendation by the supreme court, the right of examination by that court being a constitutional one.88

SS 2. _Privileges and disabilities.89_--Attorneys are officers of the court, and must uphold and sustain its dignity, both in and out of court.40 They are not exempt from arrest in civil actions, except when they are actually in attendance in court in the due course of their employment as attorneys, and are not at any time exempt from service of summons.41 They may not sign any bond or enter into any recognizance as surety for an appearance in a criminal case.42 An attorney may be committed for contempt of court, but the final order committing him must recite the particular circumstances of the offense.43 When an attorney at law is elevated to the bench, his right to practice in any of the courts of the state is suspended as long as he remains thereon, except when he is party in an action and protecting his own individual rights exclusively.44 Conduct which would disbar an attorney and subject him to criminal prosecution will prevent him from obtaining relief from the court.45 A "Bar Association" is a private corporation, and all questions of membership are left to its determination under its regulations.44

33. Southern Grocer Co. v. Adams \[La.\] vs. Raminski \[Tex. Civ. App.\] 81 S. W. 549. Note. At common law an attorney was not prohibited from becoming surety for Co., 102 Mo. App. 6, 74 S. W. 641. Where, in a jury action against an attorney to recover securities which he claimed to hold as fees, it was admitted that he was a member of the bar, it was prejudical error to permit defendant, over objections, to be asked questions as to his admission, and suggesting that it had been procured by unlawful and corrupt practices. Dodds v. Gregson \[TWash.\] 77 P. 791.

01. The circuit court may of its own motion, at the same term at which it had grant- ed is license to practice law, set aside the order, and good grounds for such action will, on appeal, be presumed. Killian v. State \[Ark.\] 78 S. W. 766.

01. Ft. Worth & D. C. R. Co. v. Carlock & Gillespie \[Tex. Civ. App.\] 75 S. W. 931.

01. An act relieving registered law students from an examination provided by the supreme court is invalid. In re Branch \[N. J. Law\] 67 A. 431.

01. See 1 Curr. L. 262. As to privilege of communications see Witnesses, 2 Curr. L. 2163.

01. An attorney as party to an action is prohibited from knowingly making defamation charges against a judge. Morrison v. Snow, 26 Utah, 247, 72 P. 934.

01. Attorney attending judicial sale is not privileged. Greenleaf v. People'e Bank, 133 N. C. 294, 45 B. E. 688.

01. But they may sign as securities for a confession of judgment for a fine and costs. Haltracer v. State \[Tenn.\] 79 S. W. 132. In Texas, the district court rule that attorneys shall not be surety in any cause pending in court is directory merely, and such a bond 3:8 ATTORNEYS AND COUNSELORS SS 3. 3 Cur. Law.

**SS 3.**_Suspension and disbarment. Grounds._**"**--Where, subsequently to his admission to the bar, an attorney is guilty of such conduct that he no longer possesses the qualifications necessary to admit him, he should be disbarred.\*\*48 The giving of fictitious copy of a decree of divorce to a client,\*\*49 false allegations in a pleading reflecting on the character of one of the state judiciary,\*\*50 advertising as a divorce lawyer,\*\*51 imposing upon the court,\*\*52 \*\*deceit and fraud upon clients,\*\*53 \*\*or retaining a client's funds,\*\*54 \*\*have been held good ground for disbarment; but the retention of funds under a claim of right does not merit the penalty of disbarment,\*\*55 \*\*nor do exorbitant charges, nor the indebtedness to a client of a balance which is the subject of a bona fide dispute.\*\*56 \*\*The conviction of crime many years prior to admission to the bar is not, as a matter of law, sufficient cause for disbarment.\*\*57 \*\*A judicial officer practicing as a lawyer against a constitutional provision cannot be disbarred by the court; his offense being in his capacity as a judicial officer, and not as an attorney.\*\*58 \*\*Defense or excuse.\*\*59--Where collecting and failing to remit or account for money due to a client is ground for disbarment, the defense of alcoholism is not even a mitigating circumstance.\*\*60 \*\*Where false allegations in a pleading reflect upon the character of a justice of the supreme court, the attorney making them cannot be excused by filing a disclaimer, in disbarment proceedings, that any such meaning was intended.\*\*61 \*\*Proceedings in general.\*\*62--Petitions in disbarment proceedings must be signed and verified according to statute, and the charges must be properly formulated.\*\*63 \*\*In Washington, the superior court has original jurisdiction in matters of disbarment; the supreme court has only appellate jurisdiction.\*\*64 \*\*The defendant is entitled to a change of venue, on motion for same, on the ground of prejudice of the judge.\*\*65 **The proceeding being quasi criminal, the evidence should be clear**

**47. See 1 Curr. L. 262. 48. People v. Essington \[Colo.\] 75 P. 394.**

**The license of an attorney violating the**

**set appointed and paid in addition by the**

**statute regulating attorneys may be revoked by the court. Morrison v. Snow, 26 Utah, 645.**

**53. An attorney is estopped to object that**

**NOTRE. Right to disbarm for crime before**

\*\*the fraud perpetrated on his client was three criminal conviction: The weight of authori-

**days before his admission, since that proved**

**by is to the effect that an attorney may be**

**him guilty of falsely representing himself**

**disbared for an act constituting a crime, to be a licensed attorney. In re Elliott \[S. D.\] 100 N. W. 431.**

**then there has been no criminal prosecution. D.\] 100 N. W. 431.**

**54. Evidence of retaining money collected**

**2 8. Ct. 569: In re \[S. N. Y.\] 561; Penno;**

**for a client and other money sent to redeem**

**scot County Bar v. Kimball, 64 Me. 140: Delano's Case, 58 N. L. 6; State v. Finley, 30**

**ney's disbarment. People v. Kelsey \[Colo.\] 74 B., 211 N. 500; Perry v. State, 3, 0. 76 P. 390.**

**Greene \[Iowa\] 550: Baker v. Com., 10 Bush**

**(IXF.) 592: In re Eldridge, 82 N. T. 161; Peo;**

**56. People v. Robinson \[Colo.\] 75 P. 922.**

\*\*ple v. Appleton, 105 **Ill. 474. The contrary had been convicted of**

**rule was held in Anonymous, 7 N. J. Law,**

\*\*162. Beeno v. State, 22 Ark. 149: EXE parte Steinman, 95 **220**; but see germass" Case, 116 Pa. 455, 9 A. 674. And a statute in Call-

**fornia providing that "conviction of colony" has been**

**hall be ground for disbarment has been**

\*\*held to make conviction a condition preece-

**dent to disbarment for acts constituting a**

**felony, In re Stephens, 102 Cal. 264, 36 P. 586. The contrary conclusion was reached by another court under an Identent state.**

**State v. Winton, 11 Or. 456, 5 F. 337.**

\*\*49. People v. Belinski, 205 **Ill. 564, 69 N. 249.**

**E. S.**

**50. In re Snow \[Utah\] 75 P. 741.**

**51. People v. Taylor \[Colo.\] 75 P. 914.**

**52. An attorney retained and paid in a 90, 75 S. W. 586.** 3 Cur. Law. ATTORNEYS AND COUNSELORS SS 5. 879 and convincing." Disbardment proceedings, when carried to the court of appeals, are only reviewable, and not triable de novo."

_Reinstatement._"--The same authority that disbars attorneys may reinstate them, and this may be done purely as an act of judicial clemency." The petition for the reinstatement must express regret for the culpable acts, and the assurance of upright future conduct." A provision in an order denying reinstatement of an attorney, that it is without prejudice to the filing of another similar petition

. after a future date, does not preclude him from a hearing on the merits of another petition filed before that date, founded on other facts."

SS 4. _Creation and termination of relation with client._"--Parties have always the right to select their own attorneys." Though an attorney be employed on a contingent fee, the client may discharge him at any time, he being then entitled to reasonable compensation;" but the client must notify interested parties of the discharge of the first attorney or be estopped, as to such parties, from questioning .his authority." In Wisconsin, the written consent of both the party to the action and his attorney is required, before an order for substitution of attorneys be signed." The insanity of a client operates to terminate the relation of attorney and client, or to invalidate any contract between them."

SS 5. _Rights, duties and liabilities between attorney and client; generally; loyalty and good faith."--An attorney owes his client the utmost loyalty and faith in conducting his affairs." but an attorney is not under obligation to his client to maintain positions in court that do not accord with his own notions of law and justice, simply because they tend to his client's advantage."_" Informa-

\*\*6. The client's claim to money with--https him to reinstatement. In re Weed held should be legally established before \[Mont.\] 77 P. 60.

disbardment proceedings are begun. .An application for disbardment of an attorney for fraud in depriving his client of money will not be entertained by the supreme court un-til the client has established his claim in the ordinary tribunals of the county where the cause of action arose. In re Deimas, 139 Cal. xix. 72 P. 402. The evidence of fraudulent acts of an attorney should be clear and convincing, as the charge involves moral turplutde and a liability to imprisonment.

Dicker v. Cohen, 84 N. Y. S. 189. The evidence to justify a disbardment should be full, clear and convincing not merely a preponderance of evidence as in civil cases. In re Dodge \[Mim.\] 100 N. W. 684. Official misconduct, warranting disbardment, must be clearly proved, as it involves serious charges. People v. Robinson \[Colo.\] 75 P. 922. Evidence insufficient to convict an attorney of forging his client's name. Seferd v. Meyer, 87 N. Y. S. 636.

\*\*67. An order reciting that the court "being of the opinion that the matters involved here are triable de novo.", etc., shows that the court of appeals tried the case de novo, Instead of exercising appellate jurisdiction which alone it could do. State v. Smith, 176 Mo. 90, 75 S, W. 586.

**68. See 1 Curr. L. 265.**

**69. People v. Essington \[Colo.\] 75 P. 94.**

At the expiration of the time for which an attorney has been disbarred, he may apply to be reinstated, and on proper petition this will be done. A petition, with a certificate signed by nearly every member of the bar of his county, that the attorney since his disbartment "has conducted himself as, and is now, a man of good moral character," on .

tion acquired during the existence of the relation of attorney and client cannot thereafter be used by the attorney against his client. \[81\] He may not acquire title to property which is in any way the subject of his client's litigation, without knowledge of the client and adverse to his interests; \[82\] but upon the termination of the trust relation with their clients, attorneys may deal with property which had been the subject of litigation, the same as outside parties. \[88\] Having acted as general counsel does not prevent an attorney appearing for an adverse party. \[84\] An attorney has the right to advise and assist his client to the most advantageous compromise in his behalf, provided he makes no false statement of fact to the adverse party to induce such compromise. \[88\] He may also properly act for his clients, and at the same time assist the defendant in purchasing the claims of other creditors of the defendant. \[89\]

_Diligence._"--An attorney is liable to his client for damages proximately flowing from his failure to possess and exercise such skill, prudence and diligence as commonly exercised by lawyers of ordinary skill and capacity; and is liable for both the actual and exemplary damages the client might reasonably have recovered in an action lost by the attorney's fault, \[88\] and unreasonable delay by an attorney in prosecuting an action works an abandonment of the employment. \[88\]

_Dealings between attorney and client._"--Transactions between attorney and client will, on account of the confidential relation, be closely scrutinized, and the burden is on the attorney to show its fairness, \[81\] especially where he acquires any of his client's property." but where the relation does not exist, the burden is on the layman to show the fraud in a transaction with an attorney. \[88\] A contract

SL Carson v. Fogg \[TWash.\] 76 P. 112. \[84\] An attorney who has acted as general Knowledge acquired by an attorney when acting for one party is not chargeable to another party who subsequently employs the same attorney. An attorney is not required by the party for whom he had acted gen- to disclose to one client seerets entrusted to him by another. Downer v. Porter, 25 K.Y. L. R. 571, 76 S. W. 135. \[82\] Property so acquired will be deemed as held in trust for the client, though obtained with the attorney's money. Stanswood v. Wishard, 128 F. 499. An attorney is not permitted to buy in things, in the course of litigation, of which he has the management; the purchase, if made, will be held as in trust for the client, or may even be declared invalid. Phillips v. Phillips \[Ky.\] 80 S. W. 826. An attorney for a married couple cannot buy a judgment against the husband and enforce the same by a creditors; bill against lands in the wife's name, nor will he be heard in a court of equity to assert, in his interest, that the transfers to her are fraudulent, he having advised and assisted in such transfers. Garinger V. Palmar \[C. C. A.\] 126 F. 906. \[83\] Grants v. Deadwood Terra Min. Co. \[S. D.\] 85 N. 77. 277. A foreclosure sale does not terminate the relation of mortgam-gor and attorney, so as to permit the attorney to make a gain from the same subject. \[84\] The liability of an attorney is held in trust for his client, but the liability of an attorney is held in trust for his client, 3 Cur. Law. ATTORNEYS AND COUNSELORS SS 7. 381

by an attorney purchasing his client's interest in a claim in litigation will be closely scrutinized, but is not necessarily invalid."

_Accounting to client._"--An attorney must account to his client for all money or other assets coming into his hands in his capacity as attorney." The relation of trust between an attorney and client in respect to funds collected by the latter does not pass to the bank in which the attorney has deposited the funds in his own name, so as to charge the bank, in respect thereto, as trustees for the client." The rule that no assignment of a chose in action is 'good without notice to the debtor applies between attorneys and clients, as between others."

SS 6. _Remedies between the parties._"--Moneys collected and retained by an attorney may be recovered in an action for money had and received." Such sums are not trusts and may be barred by the statute of limitations." No demand is necessary before suit." An attorney may be summarily ordered to repay money wrongfully withdrawn after being deposited in court." The right to rule an attorney to pay over money retained depends upon the relation of attorney and client, and is limited to the client. It is penal in its nature and must be strictly construed."

SS 7. _Compensation and Item._"--The general principles of the law of contracts apply to permit an attorney to recover the fee contracted for if he perform the services agreed" or if performance is prevented by the client," to extra compensation for services not covered by the contract," and to recover on a quantum

94. Myers v. Luzerne County, 124 F. 436. \*\*ble under this summary process, for money received by him, not in his professional capacity, but merely as agent, to be remittled to a third party. Haygood v. McKenzie, 119 Ga. 466, 46 S. E. 624. **6**. See 1 Curr. L. 269. **7**. The conditions upon which a contract for a stipulated fee was made, being substantially fulfilled, the contract should be enforced, especially where it was brief and informally made. Ingersoll v. Coram, 127 F. 418. A valid contract between attorney and client for fees is not abrogated by an argument to merge it in a void contract, and a void contract will not prevent recovery was equal to the amount retained, the com-plan should not be dismissed. Reed v. Hayward, 82 App. Dtv. 416, 81 N. Y. 608. The services, the fact that the payee named in remedy to compel an attorney to pay over money collected and unlawfully retained is by action and not by motion that the court summarily order payment to be made. Arone v. Launders, 43 Misc. 138, 88 N. Y. 8. 159. **8**. A client may not by making us com- If a client uses his attorneys for money had and received, he is estopped by his pleading from showing the character and origin of the fund, and that it was received by the attorneys under circumstances which pre- tiled them from retaining it for their services. Dobbs v. Campbell, 66 Kan. 805, 72 P. 273. **9**. Sheaf v. Dodge, 161 Ind. 270, 68 N. E. 292. **3**. The client's action not being of the nature of trover. Vooth v. McEachen, 91 App. Dtv. 30, 86 N. Y. S. 431. **4**. Brott v. Davidson, 87 App. Div. 29, 83 N. Y. S. 1075. **5**. Associate counsel cannot by rule enforce a contract for equal division of fees. Haygood v. Haden, 119 Ga. 463, 46 S. E. 625. An attorney who retains money collected for a client is 14 higho to rule, if after demand he falls to account thefori; but he is not lia- and the

## 3 Cur. Law. Attorney's and counselors & 7.

policy.18 but contracts for contingent fees will also be closely scrutinized, and if

Co. v. Hargis, 17 Ky., L. R. 1190, 33 S. W., 83 Sloan's Estate, 161 Pa. 237, 28 A. 1084. Un-946; Martinez v. Succession of Vives, 32 La. Ann. 305: Cain v. Warford, 38 M. 23; Blais. a connexent for a contingent fee may recover dell V. Ahern, 144 Mass. 393, 11 N. E. 681, 59 Am. Rep. 99; Davis v. Com., 164 Mass. 241, 41 N. E. 292; County of Chester v. Bare. a suit for a certain fixed fee and a further ber, 97 Pa. 455; Perry v. Dicken, 105 R. 83, 51 Am. Rep. 181; Fellows v. Smith, 190 Pa. 301, 42 A. 678; Wheeler v. Riviere \[Tex. Clv. App.\] 49. S. W. 697; Lewis v. Brown, 38 W. Va. 1, 14 S. E. 44; Gilchrist v. Brande, 58 W. Wis. 184, 15 N. W. 817; Dale v. Richards, 21 D. C. 312; Ex parte Plitt, 2 Wall. Jr. 453, Fed. Cas. No. 112,28. Thus, an agreement to pay a prector in an admiralty case, out of the proceeds of a recovery, is valid and an enforceable. The Allee Strong, 57 Pred. 249. And there is nothing illegal, immoral, or against public policy, in an agreement by an attorney for a contingent fee or a share of the proceeds, to present and prosecute claims against the United States. Taylor v. Bernis, 110 U. S. 42, 3 S. C. 441; Stanton v. Embryey, 93 U. S. 548; Manning v. Perkins, 85 Me. 172, 26 A. 1016. A contract to pay an attorney a percentage of the value of the subject-service in that imitation to secure "a favorable" decision from the land department is not contrary to good morals or public policy.

extortionate or obtained by undue means, will not be upheld,17 the burden of showing unreasonableness being, however, on the client.18 The champertous character of such agreements is specifically treated elsewhere.19 An attorney obtaining a settlement without suit is entitled to a contingent fee contracted for.20

\_Implied contract.21--\_The contract to pay for legal services may be implied, or negatively, according to the circumstances.22 There is no implied promise to pay an attorney whom one has not employed, because of incidental benefits derived from his services.28 If a client prevent the prosecution of an action in which the attorney, under a contract, is to have a percentage of the amount recovered, the attorney's remedy is action for breach of contract, or on a quantum merit, but in no such case is the percentage agreed on recoverable.24 If prop-

for compensation contingent on the amount

without consulting anyone, may be set aside

recovered under such legislation when procured by the attorney, the contract is against

and a reasonable compensation fixed. In re

Pleris, $2 App. Div. 466, $1 N. Y. S. 927.

public policy and cannot be enforced. Spaid-

18. Tabet v. Powell \[Tex. Civ. App.\] 78 S.

ing Y. Byrling, 149 Pa. 375, 24 A. 213, 44 Am.

St. Rep. 608; Trist v. Child, 21 Wall. \[U. S\]

19. See Champerty and Maintenance, 1

01. A contract to give an attorney a certain percentage of a claim against the United States government for services in collecting

01. See 1 Curr. L. 270.

01. See 1 Curr. L. 270.

01. Where attoreys' services, beneficial

to an estate, are rendered with the knowledge and without the objection of the ad-

is blended and confused with the part which is forbidden, compensation cannot be recovered for either part, as the whole is a unit

and Indivisible, and that which is bad destroys the good. Trist v. Child, 21 Wall.

\[U. S.\] 441. But unless there is something

on the face of the contract which shows that

the means and methods to be used by the

attorney, or which were used by him, were

improper, the presumption is that a contract for a contingent fee is valid and en-

forceable. Bergen v. Frisble, 125 Cal. 168,

57 P. 784. Contracts for contingent fees

will not be countenanced in proceedings for

the divorce or alimony. Such fees in these pro-

decdings are vicious, because the law does

not favor divorce, but does favor marriage,

and will not sanction contracts intended to

promote its dissolution by lending itself to

their enforcement. All such contracts, in

these cases, should be held illegal and vold,

as contrary to public policy. Newman v.

Fretas, 125 Cal. 283, 61 P. 907; Brindley v.

Brindley, 121 Ala. 429, 25 So 751. So it has

been held that the giving of contingent fees,

of compensation for services rendered to

the public, is contrary to sound policy, as

where a county agrees to give attorneys a

confinement fee to enable its commissioners

to lawfully place upon the tax list certain

lands which the assessor has erroneously

left off of the assessment roll. Such a contract is void as against public policy. Platte

County v. Gerard, 12 Neb, 244, 11 N. W.

298.--From note to Shirk v. Neible \[Ind.\] 83

Arm. St. Rep. 151.

17. Muller v. Kelly \[C. C. A.\] 125 F.

01. An agreement that plaintiff pay all dis-

busreements, and pay his attorney $6% of

amount of any recovery for injuries is un-

conselonable and void. Herman v. Metro-

pointa St. R. Co., 121 F. 184. An agre-

ment for a percentage of money to be recovered, exorted from a client by threatening

to refuse to take action or to disclose his

exclusive information, unless client signed

without consulting anyone, may be set aside

recovered under such legislation when pro-

and a reasonable compensation fixed. In re

Pleris, $2 App. Div. 466, $1 N. Y. S. 927.

18. Tabet v. Powell \[Tex. Civ. App.\] 78 S.

01. %. 997.

01. See Champerty and Maintenance, 1

Curr, L. 506.

20. Stoutenburgh v. Fieer, 87 N. Y. S. 504.

01. See 1 Curr. L. 270.

01. Where attoreys' services, beneficial

to an estate, are rendered with the knowl-

edge and without the objection of the ad-

is forbidden, compensation cannot be recoverable

the same so as to become personally liable, the

estate is chargeable thewerkin. Marx v. McMorran \[Mich.\] 99 N. W. 296. An attorney

directed by the court to conduct a criminal

\[U. S.\] 441. But unless there is something

prosecution, in place of the county attorney

on the face of the contract which shows that

the means and methods to be used by the

County Comm's, 90 Minn. 348, 97 N. W. 101.

improper, the presumption is that a contract for a contingent fee is valid 5

5

386 ATTORNEYS AND COUNSELORS SS 7. 3 Cur. Law.

obtained or protected by legal services.39 Where all the claimants of a fund appoint a trustee to collect the same, an attorney who intervenes in behalf of some of claimants individually is not entitled to have his fees made a charge on the fund.40 The refusal to order an attorney to repay fees paid him on an order made without notice to adverse party is not an abuse of discretion, though the order be vacated after it has been complied with.41

_Amount.42--Where attorney's fees are allowed against a fund in court, a reasonable amount in the discretion of the court is allowed.43_

_Evidence as to value of services.44--In estimating the value of legal services, the value of the property affected and the results achieved, may be considered;45_

it is also proper to include a reasonable retaining fee.46 Attorneys who represent parties in the sale of state bonds, where litigation is necessary and undertaken to compel the state to accept such bonds for taxes, are not mere brokers, and the value of their services is not to be determined on that basis.47 Restatements made on a rehearing of arguments made on appeal should not be treated as services rendered in separate cases in determining the compensation of attorneys

39. An attorney employed to resist the 2438, 74 S. W. 207. Under an act allowing appointment of a receiver for a buliding as-

$30 to attorneys appointed to defend crimin-

sociation is entitled to fees out of the fund

inals in cases where the punishment is Imrased by the sale of the assets in the re-

prisonment, an allowance of $50 by the court

ceiver's hands. Commonwealth V. Penn Germania Bld'g & Loan Ass'n, 204 Pa. 29, 53 A.

in a murder case is properly cut to $30,

sociation is called a _mudent_.

3 Cur. Law. ATTORNEYS AND COUNSELORS SS 7.

so engaged.48 Whether a note is placed in the hands of an attorney for collection, so as to entitle the holder to collect attorney's fees, is a question of fact for the jury.49 On conflicting evidence as to value of legal services the verdict of a jury will not be disturbed.50

\_Proceedings to recover.--A contract by one attorney for services rendered at the request of another attorney, for a share of the fee received by the latter, is enforceable against the latter either at law for breach of contract, or in equity for money had and received.51 The attorney's right of compensation does not accrue until his relation in the suit has terminated, at which period also the statute of limitations against his claim begins to run.52 Attorneys must notify their clients of the specific sum claimed as fees before beginning suit for same, and make known to them pending proceedings for recovery thereof.58

A judgment that part of a recovery inure to the benefit of the attorneys of litigants who are all minors, the attorneys not being parties, is erroneous.54 Where a private settlement is made after suit brought, the court has jurisdiction to determine defendant's liability to plaintiff's attorneys for an aliquot part of the settlement previously assigned to them as compensation,58 but a satisfaction of a judgment will not be -set aside in a case settled by the parties, unless it is necessary for the attorneys to realize the amount due them for their services, which amount they are entitled to have determined.59 To recover their fees, attorneys are frequently allowed to continue, in their own interest, actions which their clients have settled, abandoned, or otherwise prevented the attorneys from completing,57 and the evidence must be of such a character as would authorize a recovery by the client were the suit still proceeding for his benefit.58 But they may not be continued merely to get costs against the adverse party as compensation for services rendered the client.59

48. In re Kellogg, 88 N. Y. S. 1033.

01. Rogers v. O'Barr \[Tex. Civ. App.\] 76 S. W. 583. Right to claim attorney's fees for collection provided for by note may be waved. Wicks-Nesae v. James, 31 Tex. Civ. App. 151, 72 S. W. 87, where waviest was by presentment without demand for fees and allowance of amount of note only by pro-bate court.

01. Evidence placed the value as high as $16,000 and as low as $100. A verdict of $700 would not be disturbed as against the weight of the evidence. Mack v. Miller, 87 App. Div. 859, 84 N. Y. S. 440.

01. Harrison v. Murphy \[Mo. App.\] 80 S. W. 724.

01. McCrea v. Sconfeld, 86 N. Y. S. 10.

01. Truitt v. Darnell \[N. J. Eq.\] 55 A. 692.

Vhere judgment is rendered for legal services and there is no proof of demand, interest is properly allowed from the date of commencing suit. Trimble v. Kansas City, P. & G. R. Co. \[Mo.\] 79 S. W. 678.

54. White v. Simonton \[Tex. Civ. App.\] 79 S. W. 621.

01. Gulf, etc., R. Co. v. Eldredge \[Tex. Civ. App.\] 80 S. W. 566. The compromise of a judgment by plaintiff and defendant in fraud of an attorney having a lien thereon may be set aside at the suit of the attorney defrauded. Jones v. Duff Grain Co. \[Neb.\] 95 N. W.

01. Corbit v. Watson, 88 App. Div. 467, 85 N. Y. S. 125.

01. Attorney to whom an interest in a cause of action is assigned in confedera.

tion of his services may, if the defendant settle with claimant with knowledge of the assignment, prosecute the original suit to judgment In his own interest and recover to the extent thereof. Powell v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 78 S. W. 975.

58. In a suit for fees by an attorney who has been prevented from prosecuting an action under his contract and discharged by his client, the opinion of witnesses cannot be heard as to what would have been the result of the action which is afterwards successful prosecuted by another attorney, Breachitt Coal, Iron & Lumber Co. v. Gregory, 25 Ky. L. R. 1507, 78 S. W. 148.

Where a defendant settles with a claimant, so that the attorney is prosecuting the action for his fees, and the defendant fraudulent keeps the claimant hidden out of the state, so that the attorney cannot prove injuries or damages, the attorney is entitled to recover from the defendant his proportion of the settlement. Powell v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 78 S. W. 975.

60. Corbit, etc., R. Co. v. Eldredge \[Tex. Civ. App.\] 78 S. W. 975.

01.

01. Gulf, etc., R. Co. v. Eldredge \[Tex. Civ. App.\] 80 S. W. 566. The compromise of a judgment by plaintiff and defendant in fraud of an attorney having a lien thereon may be set aside at the suit of the attorney defrauded. Jones v. Duff Grain Co. \[Neb.\] 95 N. W.

01. Corbit v. Watson, 88 App. Div. 467, 85 N. Y. S. 125.

01. Attorney to whom an interest in a cause of action is assigned in confedera.

_Lien._"--An attorney can only claim a lien on money secured by his services when it has come into his possession, or is in an equity case in the grasp of the court;" but in a common law action he has no lien on funds brought into court in the action for distribution." No lien on a fund secured by an attorney's services is allowed in Missouri." The lien on a fund can only be for services rendered in the proceeding by which the money was recovered." He can only have a lien on a claim when placed in his hands by a person who has title to it and the right to collect or assign it." An attorney's lien for services rendered is on money due by the adverse party, and not on the judgment recovered. It is for services rendered by himself and not by another employed by him." A client cannot, by dismissing an action and employing another attorney, defeat the lien of an attorney duly employed," and the attorney's lien attaches to the proceeds of a compromise." The act giving an attorney a lien does not apply to a judgment obtained by him before the passage of the act." The New York statute relating to attorneys' liens applies to surrogates' courts; the right is not affected by the fact that the client is an executor, and the services rendered are in behalf of the estate, nor is the lien confined to moneys recovered by judgment." The lien attaches to the whole judgment and the client cannot compel the attorney to forego same on showing that only a small portion of the face value of the judgment can be obtained, and that only in case the lien is extinguished." An attorney's lien on the judgment is superior to defendant's equity of set-off." An attorney has a lien upon the securities of his client," if they come into his hands in the course of his professional employment." In Louisiana attorneys have no lien for their fees prior to judgment."

60. See 1 Curr. L. 272.

01. There is no attorney's lien on money in the hands of a subsequently employed attorney. Seybert v. Salem Tp., 22 Pa. Super. Ct. 459. An attorney who prosecutes an appeal from a city auditing board to the board of county supervisors for the adjustment of a conclude's fees has a lien enforceable against the award. Perry v. Myer, 89 N. Y. B. 347.

01. Quakertown & E. R. Co. v. Guaranators' Liability Indeminity Co., 206 Pa. 850, 56 A. 1033.

01. The lien of an attorney is only that which he has as ballee of property coming into his hands. Kersey v. O'Day, 173 Mo. 560, 73 S. W. 481.

01. Flaisell v. Turner \[Miss.\] 36 So. 531. An attorney eeuring a judgment for a client has no lien on a fund obtained from a bank by garnishment proceedings founded on said judgment, the judgment against the grant nishee being procured by another attorney. Raley v. Hancock \[Tex. Clv. Appl.\] 77 S. W. 558. An attorney employed by an insportable debtor to resist claims of creditors has no lien on the fund in the hands of the receiver, nor is he entitled to be paid therefrom. Ford v. Gilbert \[Or.\] 75 P. 138. An attorney defeating tax lien, under employment by holders of fractional parts of a previously acquired judgment, has no lien on the judgment as against a subsequent purchaser thereof. Alden v. White \[Ind. Appl.\] 88 N. E. B. 118. Nor in procuring a judgment in garnishment has any lien on the fund for an amount due from his client under a contract made after his client's right had attached by means of the garnish- 34. _Loss of lien. 19_--An attorney's lien is confined to the judgment or fund recovered by him as attorney. His lien on his client's papers depends on his possession, and ceases when he voluntarily parts with such possession." If on a fund collected, it is released by the voluntary payment of the money to the client." The lien for services rendered to an executor is not lost by transfer of the estate, by order of the court, to a co-executor, before final administration," or by the appointment of a guardian for the client."

_Enforcement of lien. 19_--A statutory lien can be created and enforced only in the manner prescribed. 19 The written notice of lien required to be served on the defendant must be served personally, and not on the defendant's attorney. 19 If signed as attorney for his client, instead of for himself, it is sufficient to apprise defendant of a claim to a lien as attorney. 19 Where a judgment creditor has no notice of an attorney's intention to claim a lien on certain land belonging to a client, the lien acquired by filing the transcript of his judgment is superior to the attorney's right of lien. 19 The attorney's remedy for enforcing a lien is at common law and where the judgment is satisfied in disregard of his rights, it should be set aside and execution awarded to the extent of the lien. 19 The action to enforce may be brought against the client, or the adverse party, or both," and a reference may be had to determine the amount of the attorney's lien. 19 In New York, the act authorizing the determining and enforcement of an attorney's lien provides a practice only as between attorney and client, and not against a defendant who has settled with plaintiff, unless plaintiff is shown to be insolvent. 19 The proper procedure, where an attorney has been defrauded by the compromise of a judgment upon which he had a lien, is to file an intervening petition and have the amount of his lien judicially determined before other steps are taken for its enforcement. 19 But it is not essential to the existence of the lien that the amount be definitely fixed, an allegation in the complaint of reasonable value is sufficient. 19 An attorney having a lien on a judgment may intervene in proceedings to revive such judgment and is entitled to a revivor thereof in his own name to the extent of his lien. 19 The attorney can follow the proceeds of a attorney, the former has no right to com-

19. _Journal of the Actuators_ 19. _Journal of the Actuators_ 19.

Settlement so far as they belong to his client, and be paid out of them before his client's creditors. He may not continue the action to final judgment to enforce his lien where his client's property is ample to secure the same.\[93\] An action commenced as in equity to recover the value of services and establish an attorney's lien is properly transferred and triable by a jury.\[94\]

SS 8. _Authority of attorney to represent client.\[95\] Creation, proof and termination of authority.\[96\]_--The right of counsel to appear in a cause is generally a question of law for the court,\[97\] but it may be submitted to the jury for a special finding.\[98\] In the absence of a statutory requirement that an attorney's authority shall be evidenced in writing,\[99\] an attorney need not give proof of his authority to appear for a client.\[1\] It is presumed, and the burden of proof is on the one seeking to show lack of authority.\[2\] It cannot be questioned by answer, but only by a rule upon the attorney to show by what authority he appears, supported by affladavit showing the facts relied on to question the authority.\[9\] On a rule to determine the authority of an attorney to prosecute an appeal from a decree of lunacy, under a prior contract with the alleged lunatic, the lunacy decree cannot be treated as an adjudication that he was of unsound mind.\[94\] An attorney's authority to represent client does not have to be expressly renewed, if the court makes an order of severance and compels separate suits against the different defendants.\[95\] The adverse party cannot object to an attorney's authority as to acts acquisced in by the client or his representative.\[96\] His authority eases on the death of his client,\[97\] and as a general rule on the rendition of judgment in the action in which he was employed,\[9\] though this rule is subject to many exceptions,\[9\] or in case of an employment to collect, with the taking of security to the satisfaction of his client.\[10\]

_Scope of authority.\[11\]_--An attorney must act strictly within the scope of his agentst the judgment debtor to the amount of the lien. Greek v. McDaniel \[Neb.\] 94 N. W. 518.

92. Cohn v. Polstein, 41 Misc. 431, 84 N. Y. S. 1072. An attorney holding an assignment of a share of damages to be received cannot, by giving notice of the assignment to the defendant, prevent a settlement between him and the client or compel the defendant to account to the attorney for his agreed share. Weller V. Jersey City, etc., R. Co. \[N. J. Eq.\] 57 A. 730.

01. Sweeley v. Sleman \[Iowa\] 95 N. W. 571.

01. See 1 Curr. L. 277.

01. Creation and termination of relation, see ante, 5.

01. State v. De Wolfe \[Mont.\] 74 P. 1084.

01. Fosha v. Prosser \[TW1.\] 97 N. W. 924.

01. Pacific Pav. Co. v. Vizelich, 141 Cal.

01. 74 P. 352. The statute providing that the authority of an attorney cannot be questioned if the notice of appeal be signed by appellant has no application where it appears that appellant is a dissolved corporation. Anesten v. Columbia Labricants Co., 87 N. Y. 8. 497.

01. Austen v. Columbia Labricants Co., 85 N. Y. S. 662; State v. Long, 66 S. C. 398, 44 S. E. 860.

01. Uehlein v. Burk, 119 Iowa, 742, 94 N. W. 243; Brown v. Arnold \[C. C. A.\] 131 N. F. 723.

A judgment against a sherif for not reserving exemptions at an execution sale will not be reversed on the ground that the record did not show the authority of the attorney claiming the exemption, the point not hav- authority.12 In the absence of a disclaimer a party is presumed to know and acquiesee in the acts of his attorney in the case for which he is employed,13 within the usual range of his duties,14 and he is bound by his attorney's errors.15 The acts of an attorney may be disavored by a client upon discovery that the attorney, without the client's knowledge, is acting for other and adverse parties in the cause.16 The actions of an attorney cannot bind a party from whom he has no express authority.17 The authority of an attorney extends generally to all acts needful to the conduct of the action in which he is engaged, but not in other proceedings not essentially a part thereof,18 thus he may in the absence of his client, advance legal costs and look to his client for reimbursement,19 may make affidavits,20 direct the service of particular notices,21 enter an appeal,22 agree to the use of a deposition taken in another action,23 or agree that the case shall abide the final decision in another case.24 His general authority does not extend to the dismissal25 or compromise of an action,26 the right of dismissal being in the client,27 or the making of contracts on behalf of his client28 not necessary to

12An authority to represent a principal and is an action is not authority to \[101 Mo. App. 697, 74 S. W. 381.

sign a stay bond on behalf of the surety.

20R. Harwell v. Southern Furniture Co. Anderson v. Hendrickson \[Neh.\] 95 N. W. \[Tex. Clv. App.J 75 R. W. 888.

21L. Cady v. Fair Plain Literary Ass'n

13L. Lockner v. Holland County Ct., 81 N. \[Mich.\] 97 N. W. 680.

22. Friar V. Curry, Arrington & Co., 119

x. S. 730. A client is bound by his attorney's

23. Priser V. Curry, Arrington & Co., 119

acts where the latter adopts methods which

24. Priser V. Curry, Arrington & Co., 129

the former does not approve but does not

25R. Thompson v. rt. Worth, etc., R. Co., prohibit. Alden v. Dyer \[Mih.\] 99 N. W. 31 Tex. Civ. App. 83, 73 S. W. 29.

784. A judgment creditor receiving payments on the judgment is held as having

001. Brown v. Arnold \[C. C. A.\] 131 F. 723.

ments on the judgment is held as having

27R. Tome the same effect see Stone v.

rafted his attorney's acts in enforcing the payments. Florence Cotton & Iron Co. v. Louisville Banking Co. \[Als.\] 38 So. 456.

747: Ohluest v. Farwell, 71 Iowa, 231, 32

28. W. 271: North Mo. R. Co. v. Stephens, 36

Where a party enjoys the benefits of a set-

30. 150; Eldam v. Finnegan, 48 Minn. 53, 50

tement by his attorney, and has knowledge

31. of the steps taken to procure same he must

be held to have ratified his attorney's acts.

32. S. A retracuit, a release, or dismissal,

01. Priser V. Fidelity Trust Co., 33 Wash. 136,

78 P. 1121. The acceptance, by order of the

34. Priser V. Curry, 34, 35 R. Tome the same effect see Stone v.

01. A. Tome the same effect see Stone v.

01. Priser V. Curry, 36, 37, 38, 39, 38, 39, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 52, 54, 57, 59, 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, 11, 12, 13, 14, 15, 16, 17, 18, 19, 19, 12, 14, 19, 15, 17, 19, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 45, 46, 47, 48, 49, 51, 52, 53, the prosecution of the litigation.29 He may not employ another lawyer to assist him and have the latter's services allowed to him as "personal and incidental expenses" within the statute.30

SS 9. \_Rights and liabilities to third persons.31--\_An attorney may be liable personally to a third person for his proceedings in an action.32

SS 10. \_Law partnerships and associations.33--\_The general principles of the law of partnerships applies to law firms.34 A suit to dissolve a law partnership and recover a bonus paid to enter therein is an equity cause, and not simply an action to recover money.35 Where a contract is made with an attorney that he alone shall render the services, his death terminates the contract, whether he is alone or is a member of a firm.36 A general contract with a firm of attorys to render certain services does not entitle client to demand that any particular member must act. In case of death of one member, or dissolution of the firm, the survivor cannot refuse to carry out executory contracts in force at the time, and if carried out the client is liable under the original contract with the firm.37 Where the services of both members of a firm are contracted for, and one dies, the client may discharge the survivor, settle for services rendered and employ new counsel, but cannot re-employ survivor and defeat claim of estate of deceased partner.38

SS 11. \_Public attorys. A. Attorneys general.39--\_The authority of the attorney general goes not only to the expediency of employing counsel in receiver-ship cases but also to the amount of compensation.40 Neither the attorney general, nor any officer of the department of justice is authorized to aid in the proceedings before a grand jury, nor can they delegate such authority.41 A deputy attorney general, in admitting due personal service of papers, may act beyond his authority, but jurisdiction is thereby acquired as against the attorney general, and proceeding taken in consequence cannot be attacked collaterally.42 The attorney general may authorize the employment of stenographers by the various district attorneys in government cases.43 The attorney general is the legal adviser of the state officers, and where his salary is named in the constitution of the edge or consent of his attorney of record.

- \[noitemsep\]
  3 Cur. Law. ATTORNEYS AND COUNSELORS SS 11B.

state, it fixes his entire compensation, so that a statute giving him a salary and fees is invalid.44

(SS 11) _B. District and state's or prosecuting attorneys.45_--A county attorneys has authority to waive issuance and service of the summons in error in a case against the county in which he has appeared for it at the trial.48 A county is not obliged to pay for legal services rendered at the instance of the county attorney without the authority of the county board.47 The question as to whether an action in the county's name by the county attorney was sufficiently authorized cannot be raised by demurrer.48 A district attorney of the United States, in condemnation proceedings by the government, has the same authority to submit the damages to arbitration as the attorney for an individual litigant would have.49 Where the prosecution of crime by the commonwealth's attorney is provided for by statute, the employment of other attorneys for that purpose is not justified,50 but an authority for a county to prosecute actions by the "county attorney or other person" is sufficient warrant for employing an attorney therefor.51 A county attorney may be appointed by a board of county commissioners for the term for which such board is elected.52 Under certain circumstances a county attorney pro tem. may be appointed.58 A deputy county attorney, as such, may perform any duty devolving upon the county attorney.54 A county attorney cannot contract with the county for extra-official services.58 A state's attorney has the right to the aid of the prosecutor in a criminal case, but if he desires to use him as a witness, where the exclusion of witnesses has been ruled, he should examine him first.58 A city attorney cannot compromise litigation in which the city is interested, without the consent of the mayor.57 A district attorney is entitled to compensation for his services in prize cases in addition to his salary.58 Where a commonwealth's attorney is compensated in part by a percentage of the fines paid into the county treasury, he may claim his share when the fines are paid, even though in the early part of the year it may make up the amount limited as his annual salary.59 It is against public policy for public officers to defend actions for purely personal torts at the expense of the public.50 The failure of a county attorney to turn over money voluntarily collected by him, and not in the performance of his official duties, does not render his sureties liable.61 A prosecuting attorney is the proper one to protect the interests of a lunatic.58

44. State v. Maynard \[Vash.\] 76 P. 937.

01. Canada v. Territory, 12 Okl. 409, 72 P. 375.

01. Dakota County v. Bartlett (Neb.) 93 N. W. 192.

01. Card v. Dawes County \[Neb.\] 99 N.

01. Otoe County v. Dorman \[Neb.\] 98 N.

01. Judson v. U. B. \[C. C. A.\] 120 F. 637.

01. Under a statute allowing compensation to attorneys appointed to enforce the laws relating to insurance companies, compensation to an attorney who prosecuted an insurance agent for soliciting without a license is not justified, such prosecution being the duty of the commonwealth's attorney, Ky. St. 1899, & 762, construed. Stras v. Com., 25 Ky. L. R. 283, 74 S. W. 1997.

01. Heath v. Albrook \[Iowa\] 98 N. W. 619.

A county may, if necessary, employ counsel in addition to the district attorney. Santa Crus County v. Barnes \[Arl.\] 76 P. 621.

52. Haenock v. Craven County Com'rs, 133 N. C. 209, 43 S. E. 634.

01. Daniels v. State \[Tex. Cr. App.\] 71 S. W. 216.

01. Haenock v. Craven County Com'rs, 133 N. C. 209, 43 S. E. 634.

01. Haenock v. Craven County Com'rs, 133 N. C. 209, 43 S. E. 634.

01. Daniels v. State \[Tex. Cr. App.\] 71 S. W. 216.

01. Lake v. Hood \[Tex. Civ. App.\] 79 S. W. 223.

01. The Adula, 127 F. 853.

01. Haer v. Franklin \[Ky.\] 81 S. W. 926.

01. Corporation attorney not to defend policemen used for a Willi assault in making an arrest. Donahue v. Keeshan, 91 App. Div. 602, 87 N. Y. S. 144.

394 AUCTIONS AND AUCTIONNEERS.

_License and regulation._"Unless required by statute, a license is not necessary;" but where a license fee is paid, it cannot be recovered on the enactment of a law making license unnecessary." Where a resident auctioneer may make sales without a license, one temporarily resident may."

_Sale._"--A purchaser must comply with the terms of the sale," and when he does so is entitled to the property purchased or damages for breach of contract." Where there is no agreement as to credit and there has been no delivery, title will not pass until the purchase price is paid;" but if the terms provide for credit, it is optional with the purchaser to take it or pay cash." A misdescription of the property in an advertisement of an auction sale," or misleading and untrue statements made by the auctioneer at the time of the sale," will release the purchaser, providing they were believed and acted upon by him." That a corporation could not become an auctioneer cannot be set up as a defense by itself and the surety on the bond."

**BAIL, CIVIL.**

The discharge of the debtor exonerates the bail;" that the order of discharge is reversed upon appeal and the debtor ordered to surrender himself is immaterial." The judgment against the surety cannot exceed the amount of the

\*\*61.\*\*Wilson v. State, 67 Kan. 44, 72 P.

62.\*\*Burns' Rev. St., # 2175. Chase v.

63.\*\*Chang \[Ind.\] 71 N. E. 485.

64.\*\*See 1 Curr. L. 283.

65.\*\*The 1 Curr. L. 283.

64.\*\*Under city ordinance for licensing auctioneer, passed July 1902, no fees became given." Tender of cash instead of a note due until June 1903. A prosecution and conviction for doing businesses without a H-

65.\*\*The 1 Curr. L. 283.

66.\*\*The 1 Curr. L. 283.

67.\*\*The 1 Curr. L. 283.

68.\*\*That the bidder must deposit a certain sum as soon as property is struck off and within 30 days examine the title and call at the office of the auctioneer prepared to take the dead and pay the balance. Sirk v. Emery, 184 Mass. 22, 67 N. E. 668.

69.\*\*When one bid in real property sold at auction, evidence that he looked up the title and tendered the purchaser price held

68.\*\*The 1 Curr. L. 283.

68.\*\*That the bidder must deposit a certain sum as soon as property is struck off and within 30 days examine the title and call at the office of the auctioneer prepared to take the dead and pay the balance. Sirk v. Emery, 184 Mass. 22, 67 N. E. 668.

69.\*\*When one bid in real property sold at auction, evidence that he looked up the title and tendered the purchaser price held

69.\*\*The 1 Curr. L. 283.

68.\*\*That the bidder must deposit a certain sum as soon as property is struck off and within 30 days examine the title and call at the office of the auctioneer prepared to take the dead and pay the balance. Sirk v. Emery, 184 Mass. 22, 67 N. E. 668.

69.\*\*When one bid in real property sold at auction, evidence that he looked up the title and tendered the purchaser price held

69.\*\*The 1 Curr. L. 283.

68.\*\*That the bidder must deposit a certain sum as soon as property is struck off and within 30 days examine the title and call at the office of the auctioneer prepared to take the dead and pay the balance. Sirk v. Emery, 184 Mass. 22, 67 N. E. 668.

69.\*\*When one bid in real property sold at auction, evidence that he looked up the title and tendered the purchaser price held
bond." An attorney violates his bond for the liberty of jail limits by going beyond such limits in the performance of professional engagements." One arrested on a capias ad satisfactionum, giving a bond for the liberty of jail limits and being thereafter surrendered by his sureties upon giving another such bond, is confined by virtue of a capias ad satisfieendium.\[80\] Plaintiff being entitled upon forfeiture to an assignment of the bond, it may be assigned by a deputy sheriff.\[81\] A mere offer to surrender the principal in exoneration after the surety's time to answer has expired is unavailable as a defense to the action against said surety,\[82\] and the fact that such insufficient exoneration was performed upon the advice of an attorney is no ground for a new trial.\[83\] Such sureties not having a valid defense, the denial of the motion for a new trial upon an erroneous ground is harmless.\[84\] The denial of an exoneretur sought on the ground of the principal's discharge in bankruptcy is not res judiata of the bail's general liability on the bond.\[85\] In an action against the sureties, a return of "Not found" by the sheriff is conclusive.\[86\]

**BAIL, CRIMINAL.**

**SS 1. Authority to Take and Right to Give**

**SS 4. Enforecement of Bond or Recognl-Bail (395).**

**SS 2. Naling of Recogniznece and Sufficiency (396).**

**SS 3. Renmission of Forfeiture and Return**

**SS 4. Facilitment or Forfeiture; Discharge;**

**Rights and Labalities of Sireties (397).**

**SS 1.**\_Authority to take and right to give bail.\[87\]--The taking of bail consists in the acceptance by a competent court, magistrate or officer of the undertaking of sufficient bail for the appearance of the defendant, according to the terms of the undertaking that the bail will pay to the state the sum specified.\[88\] Excessive bail cannot be required.\[89\] The statutory deposit in lieu of bail may be made only by the defendant,\[90\] and a city council cannot confer authority upon policemen or police judge to accept a deposit in lieu of recognizance.\[91\] In general, bail is allowable in all cases "except capital offenses, where the proof is evident or the presumption great,"\[92\] but in Georgia, it is peculiarly within the discretion of the judge of the superior court to grant bail in capital cases.\[93\] If bail be any-

**78.**_Garofalo v. Prividi, 87 N. Y. S. 467._

**78.**\_Professional duties called for his

**presence at the supreme court. Hughes v.**

**Hally \[Michel.\] 100 N. W. 591.**

**80.**\_Within Comp. Laws, **SS 10,521**, providding the measure of damages for forfeiture

**91.**\_Richardson v. Junction City \[Kan.\] 77 in such cases. Hughes v. Hally \[Michel.\] 100 N. W. 591.\*\*

**81.**\_Constructing Comp. Laws, **SS 10,520.**

**Hughes v. Hally \[Michel.\] 100 N. W. 591.**

**82.**\_Constructing Code Civ. Proc. **& 599.**

**93.**_\[1\] State v. Lagni \[Mont.\] 76 P. Garfalo v. Prividi, 87 N. Y. S. 467._

**83, 84.**_Garofalo v. Prividi, 87 N. Y. S. 467._

**85.**\_Petition prayed that an border might be entered discharging the bail from Ilia-

**to bail.**_Ex parte Locklin \[Tex. Cr. App.\]_

**bility.**_People v. Hathaway, 206 Ill. 42, 68 N. Y. S. 467._

**86.**_Garofalo v. Prividi, 87 N. Y. S. 467._

**87.**_Kirk v. U. S., 18 P. 831._

**88.**_Garofalo v. Prividi, 87 N. Y. S. 467._

**89.**_Kirk v. U. S., 18 P. 831._

**89.**_Kirk v. Haryzell \[N. D.\] 100 N. W. 744._

**97.**\_K wise admissible, it may ordinarily be taken pending an appeal as well as before the original hearing;" but one is not entitled to bail, where, pending an appeal on a refusal to bail, he is indicted for the alleged crime," and in Louisiana, a sentence of death or hard labor is a bar to bail, pending an appeal." The courts are unwilling to hold that Federal circuit judges possess no power of admitting to bail other than as specifically vested by statute," or that while bail should not ordinarily be granted in cases of foreign extradition, those courts may not in any case extend that relief." Upon reversal of a conviction, the accused cannot be compelled to give a new bond, but is entitled to his liberty under the original bond," and the Texas statute does not authorize the magistrate to require an increase of bail after the bail of one under indictment has once been fixed.1 In Kentucky, one charged with a felony cannot be admitted to bail before being brought before a magistrate, and a bail bond so given is void.2 One held to bail pending an examination for removal is not subject to arrest until the first proceeding is determined."

SS 2. \_Making of recognizance and sufficiency.4--\_Bail bonds should be construed with reference to the laws of the sovereign jurisdiction relating thereto, where given,5 but a bond which cannot be lawfully required of the accused is nudum factum."

A bail bond need not be approved,7 but it will be presumed that the officer taking the bond did his duty.8 A recognizance must be in substantial compliance with the statute,9 and strictly conform to the facts in its recital of the judgment,10

will not be disturbed. Jernagin v. State, 118 with the above presumption, held sufficient Ga. 307, 45 S. E, 411.

evidence that C. M. Porter and Charles Porter wrote one and the same person. State v. ed of crime shall not, until he has been

Porter \[S. D.\] 93 N. W. 80.

finally adjudged guilty in the court of last

9. Angel v. State \[Tex. Cr. App.\] 80 S. W.

resort be absolutely compelled to undergo

879. It is not a fatal defect that a recognizance reads "before the court in session" Pending an appeal in deportation proceed-

instead of "In open court" (Haley v. State

ings, a Chimann may be admitted to bail.

\[Tex. Cr. App.\] 74 S. W. 88), or that the U. S. Comp. St. 1901, p. 1322, does not apply

bond reads the defendant is bound in the when appeal is pending. Id. Relator in-

ful sum of two hundred dollars "and the dicted for murder held entitled to bail pending appeal. Ex parte Jernwood \[Tex. Cr. App.\] 76

display each" whereas the statute requires

App.\] 81 S. W. 708.

40. Ex parte Forney \[Tex. Cr. App.\] 76

01. V. 44.

Proc., it must state that the accused was

94. Rev. St. 1876, # 1007. State v. Williams \[La.\] 35 So. 140.

97, 98. Wright v. Henkel, 190 U. S. 40, 23

8. Ct. 181, 47 Law. Ed. 948. The circuit court

held itself to be without power to admit to

ball in foreign extradition cases. In re

Vright, 123 F. 458.

99. Jenkins v. State \[Tex. Cr. App.\] 76

01. V. 464.

01. White's Ann, Code Cr. Proc. 1895, #

255 refers only to preliminary or examining

trials. Jenkins v. State \[Tex. Cr. App.\] 77

S. W. 224.

2. Com. v. Phillips, 25 Ky. L. R. 544, 76

S. W. 118.

3. When bail is given, the principal is re-

garded as delivered to the custody of the

sureties; it is a continuation of the original

imprisonment. In re Beavers, 125 F. 988.

4. See I Curr. L. 285.

1. Boyles v. State \[Vash.\] 77 P. 198.

1. State v. Lagonal \[Mon.\] 76 P. 1044.

1. It is sufficient, that the constable took

the bond, placed it with the magistrate and

released the prisoner. Crumpecker v. State

\[Tex. Cr. App.\] 78 S. W. 654.

8. Recitals in the bond, in connection

1.

and in the case of an appeal bond, must be executed at the time of perfecting the appeal.\[11\]

SS 3. _Fulfillment or forfeiture; discharge; rights and liabilities of suredies.\[12\]_--A recognizance is defeasible only by a strict performance with the conditions therein named,\[13\] and the accused must appear at the time designated and deliver himself into the custody of the officers.\[14\] A condition that defendant appear at a certain term of court cannot be declared forfeited where he did appear and was tried,\[15\] and such a condition will not be construed as an obligation to appear from term to term,\[16\] but will continue in force where there is an adjournment or continuation of the term.\[17\] A bond is not forfeited by one who has previously pleaded to the charge of a misdemeanor, failing to appear and plead personally,

term of court" is not sufficient under a vated assault, and who has been convicted and his punishment assessed, etc., is not surficient under section 887, Code Cr. Proc. Holterm to term. Anderson v. State \[Tex. Cr. App.\] 178 S. W. 231. App.\] 76 S. W. 470. Requiring an appearance at the "next regular term and there selling liquor must state such sale to have remain from day to day and from term to term of said court" is not sufficient under parent or guardian, or some one standing in Code Cr. Proc. $ 887, requiring an appearance "from day to day and from term to the offense. Mitchell v. State \[Tex. Cr. App.\] term." Franklin v. State \[Tex. Cr. App.\] 76 S. W. 470. That the accused shall appear "from day to day and from time to time" is not a substantial compliance with section 887, Code Cr. Proc., wblich requires an appearance from "term to term." Sutton v. State \[Tex. Cr. App.\] 78 S. W. 227. To appear "until this case is finally disposed" "is not in compliance with section 887, Code Cr. Proc., requiring an appearance "to abide the judgment of the court of criminal ap- peals of the state of Texas in this case. Cooper v. State \[Tex. Cr. App.\] 78 S. W. 346. "Until discharged by due course of law" is not in compliance with section 887, Code Cr. Proc., requiring that the accused "shall not depart without leave of this court. Cooper v. State \[Tex. Cr. App.\] 78 S. W. 436. Robertson v. State \[Tex. Cr. App.\] 78 S. W. 517. "And not depart without leave of the court" is not fatally defective because it should read "without leave of this court." Kees v. State \[Tex. Cr. App.\] 72 S. W. 855.

Description of offense "An aggravated assault" is sufficient as a reetal that the offense was a misdemeanor. Kees v. State \[Tex. Cr. App.\] 72 S. W. 855. A reetal of the offense of "swinding over the value of $50.00" is sufficient designation as a felony, under a statute requiring a designation as a misdemeanor or a felony. White v. State \[Tex. Cr. App.\] 74 S. W. 770. A failure to recite that the defendant was convicted in the particular case of a misdemeanor and this punishment assessed, etc., is fatal under Code Cr. Proc. 1895, $ 887. Cater v. State \[Tex. Cr. App.\] 77 S. W. 121. "Hannon v. State \[Tex. Cr. App.\] 73 S. W. 1053; Angel v. State \[Tex. Cr. App.\] 80 S. W. 379. The bond must state the conviction of a misdemeanor "on an information on complaint" \[Code Cr. Proc. 1895, $ 889\]. Day v. State \[Tex. Cr. App.\] 80 S. W. 378. "Who has been convicted in this court of a misdemeanor" is not in compliance with section 887, Code Cr. Proc., requiring the words, "who has been convicted in this cause of a misdemeanor." Perkins v. State \[Tex. Cr. App.\] 78 S. W. 446. A recognizance conditioned that the said Hoicomb, who stands charged in this court of the offense of aggra- 1047.

when the case is called for trial.\[18\] In Louisiana, the exact condition required by law for forfeiture must be shown to have been strictly fulfilled.\[19\]

The court in which the indictment is pending has jurisdiction to declare a forfeiture,\[20\] but the magistrate is not bound to enter the forfeiture upon the day of the breach.\[21\]

Sureties on a bail bond can only be discharged from liability by the appearance of their principal according to the condition of the recogninance, or by some intervening act of God, or the law of the state or of the obligee, which renders the performance of that condition impossible,\[22\] but the obligors of a bond have a right to insist that the prosecution observe the mandates of the statute.\[23\] The surrender of the defendant by his surety must be made to the sheriff or within the prison.\[24\] An oral order of release of the accused is sufficient so far as the prisoner and his sureties are concerned.\[25\]

A continuance of the cause, without consent of the accused, does not discharge the sureties,\[26\] nor does a failure of the clerk to mark the recogninance "filed,"\[27\] nor that it was taken by the court at chambers after an adjurnment until the next day,\[28\] nor that it states the offense as V. L. O. L. meaning a violation of the local option law;\[29\] but it is a good defense that the indictment against the principal is void,\[30\] and a judgment of forfeiture will be reversed where an indictment or information was not filed within the statutory period after the accused was held to answer.\[31\]

The seizure of the accused, bailed on a charge of misdemeanor, is a satisfaction of the recogninance,\[32\] and the execution of an appeal recogninance releases the sureties on the bond below;\[33\] abandonment of a prosecution is a bar to recovery on a bail bond.\[34\]

SS 4. _Enforcement of bond or recogninance.\[35\]--In an action against the sureties on a recogninance, it is immaterial that the accused may not have signed it,\[36\]_

18. One accused of a misdemeanor may appear by counsel for any other purpose than to plead guilty ICode Cr. Proc. $351. People State v. Woodson \[Mo.J 78 S. W. 603. In the v. Vychis. 88 AD. Div. 65, 84 N. Y. S. 703.

Absence of proof to the contrary, It will be assumed that the justice had not finally ad-not work a forfeiture of a bond conditioned but the bond. Crumpcecef v. State (Tex. Cr. notice was not given. Notice to the sureties not sufficient, under such a bond. But see, was taken when the court was not in ses-the disceiving opinion. Louisiana Soc. for given may be raised without a plea of non est Prevention of Cruelty to Children v. Moody, 111 La. 193, 35 S. 516.

20. Kirk v. O. S., 124 F. 324.

01. An entry at a subsequent date is equally good. Lawrence v. Comm., 25 Ky. L. 85.

R. 455, 76 S. W. 10.

22. Illness, however severe and critical, is not a legal defense for nonappearance. State (Twash). 17 T. 198.

Ringeman v. State, 136 Ala. 131, 34 So. 351.

23. Delay of more than the statutory pe- in a misdemeanor, judgment being affirmed.

rid in the filing of an information is a no proceedings need be had after filing the good defense in an action upon the bond.

Boyles v. State \[Vwash.\] 7 T. 198.

24. The accused voluntarily entered the court room, where the sheriff took him into custody: held not to be a surrender by the surety. State v. Bordelon, 111 La. 105, 35 So.

01.

01. State v. Lagonl \[Mont.\] 76 P. 1044.

01. State v. Ballentine \[Mo. App.\] 80 S.

01. It was in the possession of the clerk and showed on its face that it had been taken and approved by the judge of the court. State v. Ballentine \[Mo. App.\] 80 S. W. 317.

01. Dev. 84.

01. Dev. 85.

01. Dev. 85.

01. Dev. 85.

01. The accused voluntarily entered the court room, where the sheriff took him into custody: held not to be a surrender by the surety. State v. Bordelon, 111 La. 105, 35 So.

01.

01. State v. Lagonl \[Mont.\] 76 P. 1044.

01. State v. Ballentine \[Mo. App.\] 80 S.

01.

01. See I Curr. L. 287.

01. State v. Ballentine \[Mo. App.\] 80 S.

01. State v. Ballentine \[Mo. App.\] 80 S.

01. The sureties were in no way misled as to the character of the obligation. Allen v. Com., 24 Ky. L. 2257, 73 S. W. 1027.

01. Williams V. Candler, 119 Ga. 179, 45 S.

E. 988.

31. Ball Ann. Codes & St. $610. Boyles but the failure of the sureties to sign is fatal." An action on a bail bond may be brought in the district where the forfeiture occurred," and in South Carolina, the court of general sessions has jurisdiction."

A scire facias on a forfeited bail bond, not being a civil action, need contain no prayer for judgment." Such writ may be issued by the court to which the criminal prosecution was removed by change of venue." The alteration of a complaint against the principal on a forfeited bail bond, who has been rearrested, does not affect the scire facias proceedings."

The complaint for forfeiture of a bail bond need not allege the filing of the bond," nor with particularity that the defendant was released," but it must state that the court declared the undertaking forfeited," and that the amount due thereon has not been paid."

The court has authority to order the institution of a proceeding upon a bail bond," and may allow an amendment of the citation to the surety, he being in court." In Kentucky, no pleading is required of the commonwealth in proceedings upon forfeited bail bonds."

A stipulation in a recogninance, consenting to judgment immediately upon forfeiture, is a bar to an appeal from such a judgment."

SS 5. \_Remission of forfeiture and return of deposit in lieu of bail."--In an action upon a recogninance, the trial judge may remit any portion of the sum declared forfeited," even after the close of the term in which forfeiture occurred;" but the release of defendant's co-sureties does not affect his liability for his proportionate share." An application to set aside a forfeiture must be made within the statutory period." In New York, there is no statutory limitation," but a delay of sixteen years constitutes laches." A forfeited bond will not be remitted where the principal violated one of the conditions by leaving the state temporarily, and he was never surrendered by his sureties and his sube 400 BAILMENT, SS 1. 3 Cur. Law.

quent appearance was not a voluntary one. \[58\] A surety moving for exoneration

departs from the statutory procedure at his peril. \[59\] A certificate of the district

attorney that the state has lost no rights is not a prerequisite to an application

for remission of a forfeited bail bond, in New York City. \[60\]

The state cannot compel a return of a deposit, accepted without authority

from a third person, and restored to him, \[61\] but a deposit in lieu of bail, of money

belonging to another, may be recovered from the county. \[62\]

**BAILMENT.**\[68\]

**SS 1. Definition; Creation of (400). # 8. Rights and Libabilities of Third Person 2. Rights and Libabilities as Between (403).**

**Bailor and Bailee (401).**

**SS 1. Definition; creation of.**\[64\] A bailment consists in the delivery of personal property by one person to another to be held according to the purpose or

object of the delivery, and to be returned or delivered over when that purpose is

accomplished. \[65\] To constitute a bailment the bailee must acquire independent

and temporarily exclusive possession of the property. \[66\] A bailment has been

said to exist whenever the ownership and possession of specific corporeal chattels

are lawfully severed from each other. \[67\] To create the relation of bailor and bailee

there must be an agreement to return the identical property received; \[68\] and if

it be stipulated that another thing of the same kind, or an equivalent in value,

or otherwise, is to be returned, the transaction will ordinarily constitute a sale

and effect a change of title. \[69\] But where a warehouseman stands ready to

liver to depositors a like quantity of grain of the same kind and quality as that

\*\*SS. State v. Bordelon \[La.\] $ 80. 874. 60. Contract whereby the owner of tim-

\*\*SS. Code Cr. Proc. # 890. People v. Ma-

ber employs another to convert it Into ties

honey, $9 N. T. S. #24. 60. In re Sayles, $ 4 App. Div. 210, $2 N. T. delivered is not a bailment under statutory

definition \[Civ. Code 1895, $ 2894\]. Atlantic.

G Coast Line R. Co. v. Baker, 118 Ga. 809, 45 S.

1482. In re Sayles, 40 Misc. 18, $1 N. T. S. #7. Doyle v. Burns \[Iowa\] $9 N. W. 195.

\*\*SS. Where plaintiff deposited wheat in an

by the defendant, State v. Anderson, 119

levator under an agreement that he was to

Iowa, 711, 94 N. W. 208.

\*\*SS. Though the Justice who took the bail

had no authority so do. Sutherland v. St.

Lawrence County, 42 Misc. 85, $ 85 N. Y. S. #56. 60. In a lease of miling property certain

**SS.** 1 Curr. L. 988. 64. See 1 Curr. L. 288. 65. Within the meaning of an embezzle-

ment statute, the property must be the sub-

jet of ireney \[IwK, Code, 1852, p. 943, $ 182, $ 903. 5\]. State v. Sienkiewicz \[Del. Gen. Sens.\]

**SS 1.** State v. Sienkiewicz \[Del. Gen. Sens.\]

**SS 2.** A. 846. A contr deposited by them, the transaction is a bailment, though there is no agreement to return the identical grain deposited.\[70\] A bailment may result from the actual delivery of property, though the contract sought to be made by the parties is void.\[71\] The contract between the United States and the owners of mail is a bailment of the letters and their contents, for hire of labor or services.\[72\] A corporation is not the bailee of its capital stock within the meaning of a statute authorizing the assessment and taxation of property in the possession of a bailee.\[78\]

SS 2. _Rights and liabilities as between bailor and bailee.\[74\]_--Parties to a contract of bailment may substitute a special contract for the one implied by law, and in such case the express agreement determines their rights and liabilities.\[75\] But in the absence of a special contract, the rights and liabilities of the parties are those that arise and are imposed by law.\[76\] Legal ownership of the property is in the bailor, and the bailee has bare possession, usually for some specific purpose.\[77\] Mere possession by the bailee does not give him apparent authority to sell.\[78\]

When a bailee fails to return property, or returns it in a damaged condition, the burden is upon him to show that the loss or damage did not occur through his negligence.\[79\] A bailee may excuse nondelivery by showing paramount title in a third person,\[80\] or seizure of the goods by officers of the law under prima facie valid authority,\[81\] or that the loss or damage was caused by inevitable accident or

70. Potter v. Mt. Vernon Roller Milli Co., 101 Mo. App. 581, 7 S. W. 1005.

01. Contract on Sunday, State v. Slenkie-

01. A. 126. Under a statute reequrling ordinary wiez \[Del, Gen. Sess.\] 55 A. 346.

01. National Surety Co. v. U. S. \[C. C. A.\]

01. Ky. St. 1899, $ 4023. Com. v. Chesa-

01. A. 1260. Shropshire v. Sldebottom

01. A. 1261. 77 S. B. \[Mont.\] 76 P. 94. Bailee of horse for hire

01. A. 1262. 77 S. B. \[Mont.\] 76 P. 94. Bailee of horse for hire

01. A. 1263. 77 S. \[Corna: The owner of a team to recover

01. A. 1264. 1265. 12 irresistible force."2 A bailee for hire is charged with the duty of ordinary care in the preservation of the property deposited,"33 and the same degree of care is now usually required of a gratuitous bailee,"84 and of a bailee in a bailment for the benefit of both parties,"85 though some states adhere to the old rule and require only slight care of a bailee acting gratuitously."86 To constitute conversion by the bailee his acts must amount to an assertion of right or dominion over the property inconsistent with the bailor's right of ownership,"87 and the purpose of the bailment."8

A bailee for repairs88 or other work,"90 has a lien on the goods until charges for services are paid, in the absence of a special contract."1 But such lien entitles the bailee only to the bare possession of the goods."2 He may maintain detinue for the goods, or trover and conversion for their value, to the amount of his claim, if wrongfully deprived of his possession,"98 but cannot maintain a suit in equity to sell the property for payment of the claim."94 One to whom goods are delivered for the purpose of performing work on them cannot recover for unworkmanlike services,"95 is . liable for damages caused by the improper manner in which the work is done,"98 but is not liable for the loss of the goods not caused by his negligence."97 The lessee of property is liable for the value of its use, less the expense of keeping."98 In a suit for damages for breach of the contract of bailment, the bailees are estopped to deny matters admitted by them in a written receipt given for the goods."99 A recovery from a bailee who has failed to account for goods will not be prevented by the fact that plaintiff could not be used.

Ga. 616, 45 S. 24. 491. A bailee for reward is not liable for failure to deliver goods to the bailor on demand. when the goods were tax-en under authority of a valid legal process, and the bailee notified the baile of that that any further rights over it, there was no within a reasonable time. Glass V. Hauser, 40 Misc. 661, 83 N. Y. S. 177.

S2. This showing places burden on bailor to prove negligence of bailee. Bissell v. 74 S. W. 170.

Harris & Co. \[Neb.\] 95 N. W. 179.

88. State v. Sienkiewicz \[Del. Gen. Sess.\]

01. A bailee of horses liable for loss when paste was not securely fenced \[Civ. Code, $ 2491\]. Shropshire v. Sidebottom \[Mont.\]

76 P. 941.

84. Bank not liable for bonds kept in safe gratuitously, and stolen by trusted employee.

Smith v. Ellaabeth Banking Co., 69 N. J. Law, 288, 55 A. 248. Where a carrier receives personal baggage with the expectation that it le to be accompanied by the owner, but the owner does not in fact accompany it, the carrier is liable only as a gratuitously bailee.

Trunk rifled while in baggaggroom. Wood

v. Maine Cent. R. Co., 98 Mc, 98, 56 A. 457.

85. One who hires a team must use ordinary care in driving it, which includes observing the team while on the road to note effect of travel. Wiseaverver v. Long, 180 Iowa, 59, 94 N. W. 467.

01. The mere fact that = bailee acting gratuitously, may expect an incidental advantage from his service, does not make the ballment one for hire. Merchants kept money for elevator owners to pay wheat checks, to keep business in the town and to save owners the expense of a safe in the elevator.

Bissell v. Harris & Co. \[Neb.\] 95 N. W. 779.

When one not a guest sends baggage to a hotel without compensation to be made, the Innkeeper, if liable at all, is only liable as a gratuitous bailee, for gross negligence, establish its loss definitely from its books, owing to negligent bookkeeping, if its claim could be otherwise proven.1

**SS 3.**_Rights and liabilities of third persons._\*\*--\*\*Bare possession by a bailee gives him no apparent authority to sell goods so as to vest title in a third person," and an absolute sale by the bailee ends the bailment, so that the general owner has an immediate right of possession on which he can maintain trover.4 The owner of property will not be estopped by failure to promptly disaffirm a sale by a bailee, to assert title against a subsequent transferee, when he had no knowledge of the intent of the first vendee to sell it.6 A bailee for hire of services may maintain an action of trespass, trover, or conversion, for the disturbance of his possession by a wrongdoer, and may recover the value of the property as damages.6 The United States, as the bailee of mail carried by it, may recover from the surety of a mail carrier the value of mail matter stolen by him, while performing his duty, whether or not the owners have presented claims for indemnity to the government.7 A mortgage given on a stock of goods will not cover goods held by the mortgagor as bailee only.8 A bailee of a third person may assert her right to possession of the property as against attaching creditors of her husband.8 BANKING AND FINANCE.

**SS 1.**\_The Ocupation in General;\_Regulination,\_Supervision,\_Control (403).

**SS 2.**\_Associated or Incorporated Bankers;\_Covergate Existence Generally (404).\_Dividends (404).\_Transfer of Stock (405).\_Line on Stock (405).\_General Powers (405).\_Reserve Fund (406).\_Personal Llability of Directors and Offects (406).\_An Action Against Wrongdong Directors (407).\_Unauthorized Acts (408).\_Official or Individual Capacity (409).\_Notice to Bank from Knowledge of Officers (409).\_Winding Up (410).\_Recover generally \[11\]; but the right to carry on such business through the agency of a corporation is a franchise, dependent on a grant of corporate powers by the state \[11\]. In some states, statutes regulate the amount of capital individuals must have in order to engage in the business \[11\], and the manner of electing directors \[14\]. Officers of a building and loan association by participating in its lawful business do not become private bankers \[15\].

\_Taxation of banks \[16\]--\_An act exempting the capital of a bank from taxation includes an exemption from the imposition of a license tax for the carrying on of the banking business \[17\]. Savings banks are not charitable institutions so as to be exempt from taxation \[18\]. In New York, the personal property of trust companies is exempt from local assessment and taxation \[19\].

_SS 2. Associated or incorporated bankers; corporate existence generally \[20\]. Stock subscriptions \[21\]._--A subscription for stock in order to be binding must have the elements of a contract \[22\], and it may be made by parol \[23\]. Where certain persons subscribe for all the stock of a bank, agreeing to afterwards apportion it among others, a subsequent subscription by one of the latter and a certificate issued to him does not constitute an overissue invalidating the last subscription \[24\]. A purchase of its own stock by a banking corporation, when legal \[25\], does not constitute a reduction of the capital stock \[28\], but the shares becoming the property of the bank may be resold or held for the benefit of creditors and the remaining stockholders, together with any dividends that may be earned on it \[27\].

_Dividends \[29\]._--A dividend declared in disregard of statutory regulations is void \[29\]. Failure to pay a declared dividend to all stockholders pro rata gives rise to a cause of action against the bank in favor of the stockholders discriminated against \[30\]. A distribution of the reserve fund will not be ordered by the court in the absence of a showing that plaintiff is a stockholder and that the directors had refused to declare dividends to which he was entitled \[31\].

**11. Bank of California v. San Francisco, 142 Cal. 276, 75 P. 832.**

**12. Taxation of a bank. Bank of California v. San Francisco, 142 Cal. 276, 75 P. 832.**

**13. Under the Laws of Missouri \[Rev. St. 1899, 1817, 1829, 1901\], individuals engaging in the business of private banking in a city of over 150,000 inhabitants are not required to have a paid up capital of over 155,000, and when the law is conformed to, the secretary of state is obliged to issue the certificate provided for in $ 1277 to mana-mus will lie. State v. Cook, 174 Mo. 100, 73 S. V. 489.**

**14. Comp. Laws, $ 8553, providing for the election of directors on the cumulative plan was repealed as to banks by Comp. Laws, $ 6101, 6153. Astrometry General v. Bridgman \[Mech.\] $ 8. W. 438.**

**15. And hence are not guilty of carrying on such a business without authority from the state. State v. Newberry \[N. J. Law\] $ 8 A. 163.**

**16. See Licenses, 2 Curr. L 730; Taxes, 2 Curr. L 1786.**

**17. Constraining the provisions of the charter of the Citizens' Bank of Louisiana, as amended by La. Act Jan. 30, 1836, 4 A. In this case the bank was incorporated to add the agricultural interests of the state, and the state assisted by a loan of its credit, and retained partial control. Citizens' Bank v. Parker, 192 U. S. 73, 24 S. Ct. 181.**

**18. People v. Miller, $4 App. Div. 168, 82 N. Y. S. 621.**

**19. Constraining Laws 1901, p. 818, c. 132, $ 202, and $ 187a (p. 316). People v. Lane, 41 Disc. 1, 83 N. Y. S. 606.**

**20. 21. See 1 Curr. L. 290.**

**22. Somerset Nat. Banking Co.'s Receiver v. Brinley, 24 Ky. L. R. 2088, 72 S. W. 1129.**

**23. National bank. Somerset Nat. Banking Co.'s Receiver v. Adams, 24 Ky. L. R. 2083, 72 S. W. 1125.**

**24. Reorganization of state bank into national. Somerset Nat. Banking Co.'s Receiver v. Adams, 24 Ky. L. R. 2083, 72 S. W. 1125.**

**25. See post, General powers, p. 405.**

**26. 27. Draper v. Blackwell, 138 Ala. 182.**

**28. See 1 Curr. L. 290.**

**29. Constraining Rev. St. 1899, $ 1293.**

**20. Tax dividend declared by national bank paid to some stockholders not to others. Redhead v. Iowa Nat. Bank \[Iowa\] $ 8 N. W. 806.**

\*\*3 3 Cur. Law. Banking and Finance SS 2. 405

\_Transfer of stock."2--\_The stock must be transferred to one legally liable to assume the obligation of a stockholder and who cannot repudiate such obligation."8 A bank may waive those provisions of its by-laws relating to the transfer of its stock."4 A statute requiring a transfer on the books of the bank, a delivery to the cashier with instructions to so transfer it is insufficient." The cashier is not a necessary party in a suit to compel a transfer of stock on the books of the bank;"8 the president is sufficient." Where a stockholder holds as a trustee for future purchasers it is not necessary to show authority from him for a transfer of such stock by the bank to a purchaser."8

\_Lien on stock."9--\_In Georgia, a bank's lien on stock being created by contract or by its charter cannot be foreclosed by judicial proceedings unless the defendant is duly served by an officer or by publication."0

\_General powers."1--\_It is competent for banks to form clearing-houses, and the rules made supplant the law as between themselves."2 In the absence of statutory restriction, a solvent banking corporation, not contemplating insolvency or dissolution, may purchase its own stock in payment of a previously existing debt due from its stockholder,"8 and may contract to sell another's stock in a corporation within a certain time and for a stated sum."4 A bank has the power to lease property,"8 and is liable upon the covenants of the lease."4 It may become a party to a fraudulent conspiracy, the same as a natural person and with like responsibility."4 Dealing in checks is part of the general powers of a bank,"8 and it may under certain circumstances become an undisclosed principal upon negotiable paper,"9 though it has no authority to become an accommodation surety for a business in which it has no interest, and from which it can derive no profit."0 Banks can only consolidate when authorized by law, and then in the manner provided by law;"8 but where a bank, in contemplation of closing up its business, sells its assets, property and business to another bank, and makes arrangements for the liquidation of its assets, there is no consolidation."2 Under the statutes of some states, the bank through its officers is the agent of the stockholders in listing their stock for taxation,\[53\] and, as such agent, the bank cannot, in a suit to tax such shares, raise the question that some of them may have changed hands,\[64\] nor that the proceeding is unconstitutional.\[65\]

\_Reserve fund.--\_The amount of the reserve fund being left to the discretion of the directors, the courts will not attempt to control them unless their proceedings are unfair, or the officers act wantonly and in bad faith, or with disregard of the rights of the stockholders in such fund.\[66\]

\_Personal liability of directors and officers.\[67\]--\_A director is only required to act in good faith and to exercise such a degree of care as a reasonably prudent man would exercise under the same circumstances,\[66\] in some states, as such a man would exercise in his own affairs.\[59\] There is a marked difference between the duty which the directors owe to the bank, and that which they owe to strangers or creditors; in the absence of statute, they are not liable to the latter for mere nonfeasance.\[66\] A stockholder may bring an action against them for losses occasioned by their negligence, in behalf of himself and all others in a like situation, either after demand made that the bank should bring the action, and its refusal, or without demand, where the persons committing the wrongful acts continue as directors;\[67\] but such plaintiff must be a stockholder both at the time of the commission of the acts complained of, and at the time of the commencement of the action;\[68\] the plaintiff not being so qualified, a qualified stockholder being permitted by the court to intervene, the complaint should not be dismissed.\[69\] In most states, banks are prohibited from investing funds in trade or commerce, and the directors are liable for a loss sustained thereby;\[66\] they are also liable for money loaned to borrowers who were insolvent at the time, to the knowledge of the directors.\[69\] An allegation that overdrafts were negligently permitted is sustained by proof of illegal overdrafts.\[66\] In some states, by statute, a director is required to examine into the affairs of the bank, and it is no excuse for failure to do so that the cashier's fraud was so skillfully done that such an examination would not have revealed the same,\[66\] but this need not be done personally, for the custom of appointing discount and examining committees to attend to the details of the management of the business is a reasonable one.\[69\] A director may do business with a bank, and, so long as he does not act for the bank as well as for himself, his relation to the bank is the same as any other patron.\[66\]

A banker without compensation, investing and collecting the money of a depositor, is bound to exercise ordinary care and diligence,\[70\] and is responsible for any loss resulting from a failure to do so;"1 nor is he relieved from such responsibility by the fact that the depositor made no attempt to collect the money invested." As to what is admissible in evidence to show good faith and prudence, see notes."2

Footnote 2: The author is grateful to the anonymous referee for his comments.

A cashier is not absolutely liable for overdrafts of a customer allowed by him according to the custom and usage of the bank, and upon the advice of the president and directors;" neither is he negligent in relying upon an identification by one personally known to him, there being nothing in that person's reputation or the transactions that would excite the suspicions of an ordinarily prudent man."8 The cashier is not individually liable for the breach of a contract made in his official capacity."9 In an action against a cashier for conversion of the bank's money, it is immaterial to whom he gave it, for what he spent it, or whether he loaned it to a solvent or insolvent corporation."10

Footnote 2: The author is grateful to the anonymous referee for his comments.

An officer of a bank is liable for the natural and direct results of his acts, notwithstanding that some of his superiors may have been careless and some dishonest;"8 but when acting in good faith, he is not liable for the bank's own negligence."9 Officers of a bank who are concerned in a misappropriation of its funds are liable, although they do not profit thereby;"9 and those who negligently fail to prevent it when they have knowledge of it are within that category."11 In Iowa, a loan to an officer of a bank must be passed upon by the board of directors."12 Statutes in some states render bank officials criminally liable for receiving deposits after knowledge of bank's insolvency."13 A bank may ratify the acts of its officers and thus relieve them from liability."14

Footnote 2: The author is grateful to the anonymous referee for his comments.

An action against wrongdoing directors."14 Powers of officers and right to represent bank."15--As between a bank and innocent third parties who have dealt with its agents, authority may sometimes be inferred from a course of dealing."16 It is without the general scope of a bank president's authority to agree to sell pledged property at a price bid therefor at a sale;"17 but the bank by buying the property and keeping it with knowledge of the agreement and fraud becomes liable therefor, and cannot refuse to sell to the surety on the ground that the amount bid was insufficient to pay the debt." Acts of a cashier in the usual course of business and within the apparent scope of his authority are binding on the bank." **He** is the agent of the bank in transmitting funds for a depositor," and being the collecting officer of the bank, he has the power to enter into a contract looking towards the collection of debts due the bank," and in doing so, may obligate the bank to pay one a reasonable commission for procuring a purchaser of real estate held by the bank, under a mortgage, as security for a debt." **He** has no authority to knowingly accept a worthless check on another bank and charge his bank with the amount thereof," nor can he generally bind the bank by an issuance of drafts or certified checks when given for his private business," nor has he any apparent or implied authority to make any representation on behalf of the bank as to the solvency of one of its debtors." **A** bank may recover funds misappropriated by its cashier from one receiving them with knowledge of the misappropriation," and it is no defense to this action that the directors were negligent." **Fraud** by the cashier when acting in his official capacity is fraud of the bank." **Authority** to a cashier to buy and sell stocks covers purchases made for cash and on margins." \*\*Under a statute requiring claims.against a decedent's estate to be sworn to, the claim of a bank may be verified by the cashier where the president is the administrator of the estate." **A** teller may be authorized to enter into a transaction by custom and usage," **to** discount notes." **_Unauthorized acts._"--A** bank is estopped to deny an officer's authority to do an ultra vires act not malum in se or malum prohibitum," and when within the apparent scope of his authority," when to do so would injure an innocent person who has dealt with the officer on the faith of his apparent authority. Where unauthorized acts of an officer of a bank are done under circumstances raising no implication of authority, and are never ratified by the bank, the bank is not bound

surety on debt. Memphis City Bank v. Smith, 110 Tenn. 337, 75 S. W. 1065.

The fact that the president and treasurer executed the contract in question can be considered with other executive acts performed by them without special authorization, as bearing on the question of Implied authority to execute the contract. Smith v. Bank of New England (N. H.) 64 A. 385.

89. Memphis City Bank v. Smith, 110 Tenn. 337, 75 S. W. 1065.

01. Agreement to hold securities deposited for collection for another. Mercantile Nat. Bank v. Peahody \[Co. App.\] T 2 F. 611.

01. Bank is liable for misappropriation of funds. Goshorn v. People's Nat. Bank \[Ind. App.\] 69 N. E. 185.

92, 93. First Nat. Bank v. Radiff \[Tex. Civ. App.\] 76 S. W. 591.

94. Van Buren County Sav. Bank v. String Woolen Mille \[Towal\] 94 N. W. 945.

01. A debtor of a cashier taking a certified check drawn by the latter upon his bank is bound to take notice of the latter's authority to make such particular certification. Ran-kin v. Bush, 87 N. Y. S. 639.

There is no presumption that the wrongdoer has paid value or made restitution, and the burden is upon those claiming that the did to prove it. Mendel v. Boyd \[Neb\] 99 N. W. 483. A bank cannot recover the amount collected on a cashier's draft issued by its cashier to his individual creditor, the cashier having implied authority through custom and usage to so do. Campbell v. National Broadway Bank \[C. C. A.\] 130 F. 699.

96. Taylor v. Commercial Bank, 174 N. Y. 181, 66 N. E. 726.

01. Draft by cashier, over his official title, on correspondent, to be used in speculation, held knowledge to commission company of abuse of authority on the part of the cashier. Kitchenas v. Teasdale Comm. Co. \[Mo. App.\] 79 S. W. 1177.

01. Kitchenas v. Teasdale Comm. Co. \[Mo. App.\] 79 S. W. 1177.

01. Fraud in obtaining collateral for debt of bank when bank was insolvent. Hallett v. Fisb, 120 F. 886.

01. Bank claimed to be exempt from liability for purchases on margins. National Bank of Boyerotown v. Fridenberg, 206 Pa.

243, 55 A. 860.

2. Cox v. Higginbotham's Adm'r, 25 Ky. L. R. 1057, 76 S. W. 1079.

1. 4. Iowa "Nat. Bank v. Sherman \[S. D.\]

97 N. W. 12.

5. See 1 Curr. L, 293.

1. An executed ultra vires agreement. York v. Farmers' Bank \[Mo. App.\] T 9 S. W. 968.

1. The act of a cashier in obligating the bank as an accommodation surety on a replenvin bond, in a suit in which it has no interest, is not within his apparent authority. Sturdevant Brox, & Co. v. Farmers' & Merchants' Bank \[Neb\] 95 N. W. 819.

3 Cur. Law. BANKING AND Finance SS 2.409

thereby.8 A third person is bound to know that a cashier cannot deal with himself individually, and hence the bank is not bound by the acts of the cashier in such a transaction.9 Unauthorized acts may be ratified by accepting the benefits of the transaction,10 or by subsequent knowledge and asent,11 and knowing, the assent may be shown by silence and acquiescence, as well as by formal vote of ratification.12 An unauthorized application of money by a bank may be ratified by the depositor.13

\_Official or individual capacity.14--\_One acting as a director and cashier of a bank is an implied trustee or agent for it.18 The fact that a cashier is personally interested in a transaction is sufficient to put the other party upon inquiry as to the actual extent of the cashier's power,10 he has no implied authority to dispose of the funds of the bank in satisfaction of his private debts,17 and the bank can recover from the party receiving the same the amount so paid.18 In making an agreement with a debtor that certain money shall be applied in a particular manner to his indebtedness a cashier acts in his official capacity.19

\_Notice to bank from knowledge of officers.20--\_Knowledge of the president of fraud in an agreement to sell pledged property of a bank is knowledge of the bank.21 A bank is presumed to have knowledge of the fraud of its cashier.22 An official's interest being hostile to the bank, his knowledge is not chargeable to the bank.23 A bank is not chargeable with notice of facts of which its president acquires knowledge while dealing, in his private capacity, and on his own behalf, with third persons,24 nor is knowledge on his part thus acquired imputable to the bank when dealing with him as an individual.25 The fact that officers of a bank are stockholders in a corporation, which is the payee of a note, does not charge the bank with constructive notice of defenses of the maker of said note against the payee, where said officers had no actual notice thereof.26 Knowledge of a director of a bank is not notice to the bank.27 The holding of a public meeting in a city

8. President extended time of payment of debt. Arbogast v. American Exch. Nat. 16. Paid individual debts with funds of Bank \[C.C.A.\] 125 P. 518. See 1 Curr. L. 293. Bankin v. Bush, 87 N. T. S. 539. See 1 Curr. L. 294.

1. Guaranteed his individual notes. German Sav. Bank v. Des Moines Nat. Bank, 121 17. Paid individual debts by entering Iowa, 739, 88 N. V. 606.

1. Cashier prooured security for note giv- bank book. Heid, could recover of depositor. en to debtor of bank, bank failed and debt was paid by persons owning the collateral, Bush, 87 N. T. S. 839. See, however, Campbell could look to the receiver of the bank well , V. National Broadway Bank \[C. C. A.\] for reimbursement. Hailt v. Fish, 120 F. 130 F. 130 F. 599.

1. Where a cashier gives his individual notes to a bank which sold them, receiving 19. Pease v. Francis \[R. I.\] 55 A. 688.

and reathing the proceeds, it ratifies the acts of the cashier. German Sav. Bank v. Des Moines Nat. Bank, 121 Iowa, 7817; 98 N. W. 606. See 1 Curr. L. 294.

11. Actual knowledge is not necessary, if in the exercise of ordinary care they ought to have known it is in law as if they knew. Smith v. Bank of New England \[N. H.\] 54 A. 885. See 1 Curr. L. 294.

01. Smith v. Bank of New England \[N. H.\] 2078, 80 N. V. 161. Central Bank of Kansas City v. Thayer \[Mo.\] 82 S. W. 142. Knowl- and thus release collateral, money was applied to unsecured debt, with knowledge of these facts a renewal note was given and interest paid for two years. Heid ratified. Pease v. Francis \[R. I.\] 85 A. 64.

01. See 1 Curr. L. 294.

01. Statute of limitations runs against the fraud from the time of the commission of the offense, unless concealed. Central Bank of Kansas City v. Thayer \[Mo.\] 82 S. W. 142. See 1 Curr. L. 295.

410 BANKING AND FINANCE SS 3. 3 Cur. Law.

does not constitute notice to a bank in said city of the action taken therein, none of its officers being present.\[28\]

\_Winding up.\[29\]--\_Upon failure of the bank all general depositors stand on an equality,\[30\] this rule is not changed by reason of the deposit being a trust fund to the knowledge of the bank.\[31\] A deposit of money to purchase a letter of credit does not constitute a trust fund for the benefit of bankers honoring drafts drawn against the letter of credit, so as to give them priority over other creditors of the bank issuing the letter of credit.\[22\] The equity rule allowing dividends to a secured creditor upon the full amount of his claim obtains.\[33\] One who is induced by fraud of the cashier, when acting in his official capacity, to furnish securities for a loan to the bank, but is not told that the bank's capital is gone, is a preferred creditor to the amount of the loan paid by him to save his securities.\[34\] A preferred creditor is not entitled to be paid from a fund created by enforcing the double liability of stockholders to the exclusion of other creditors,\[35\] but a part of the general assets being used to enforce the stockholder's double liability, such preferred claim is entitled to a preference out of such double liability fund to the extent that the general assets were so used.\[36\] In proceedings to wind up a bank, the debt of the bank to a creditor who holds its note, and, as collateral, notes indorsed by it, is as regards the creditor's right to dividends the bank's note only.\[37\] In some states debts due the public are given priority over other claims.\[38\] The receiver of an insolvent bank may enjoin the suit of a resident creditor brought in another state, which prevents the collection of the assets of the bank.\[20\] A _national bank_ being placed in the hands of a receiver as insolvent, the Federal law from that moment becomes the law of the distribution of its assets,\[39\] and the bankruptcy law has no application where the proceedings are under a special statute.\[41\] The owner of a trust fund which comes into the hands of the receiver of an insolvent national bank is not entitled to interest thereon, when it has not actually earned any.\[42\] The stockholders' agent for winding up the affairs of a national bank may be sued in the Federal courts irrespective of citizenship.\[43\] In determining whether the dissolution of a _savings bank_ is "advisable," the only interests which should influence the judgment of the directors are those of the people,\[44\] and a depositor therein may, as a depositor and also as a citizen of the

28. Homes Sav. & State Bank v. Peoria, 1886, c. 178, $ 42 et seq. In re Burke \[R. I.\] Agricultural & Trotting Soc., 206 Ill. 9, 63 N. 55 A. S25. 28. 17. 29. 30. See 1 Curr. L. 286. 30. Officer v. Officer, 120 Iowa, 889, 94 N. 38. Davis v. Butters Lumber Co., 132 N. 31. Deposit by executor of funds of estate. Officer v. Officer, 120 Iowa, 389, 94 N. 39. 40. To the exclusion of the law of any state. First Nat. Bank v. Selden \[C. C. A.\] 120 F. 121. 41. In re Burke \[R. I.\] 55 A. S25. 42. 43. Handlett v. Fish, 123 F. 201. 44. Consoruting Act Aug. 13, 1888, c. 866. 45. 46. 47. 48. 48. 48. 48. 48. 48. 48. 48. 49. 50. 514. 52. 53. In the winding up of a bank through a receiver, G L. 1896, c. 178, $ 42 et seq. governs, and does not change above rule. In re Burke \[R. I.\] 55 A. S26. 54. Collateris advanced by finance of cashier. Hallett v. Fish, 120 F. 986; Id., 123 F. 201. 55. 55. 56. 57. 58. 58. 59. 60. 514. 53. 58. 59. 61. 62. 63. 64. 65. 66. 67. 68. 69. 68. 60. 61. 63. 65. 67. 68. 69. 60. 61. 64. 69. 61. 65. 68. 69. 61. 66. 67. 68. 69. 60. 62. 61. 67. 69. 62. 63. 68. 61. 69. 60. 63. 64. 65. 67. 68. 69. 61. 68. 62. 64. 69. 63. 65. 68. 69. 60. 64. 67. 69. 61. 68. 69. 62. 65. 69. 61. 67. 68. 69. 60. 61. 69. 62. 63. 64. 66. 67. 68.

community, maintain a bill to prevent the managers of said bank from dissolving it,\[45\] and the fact that in the case of dissolution he will receive back his deposit and share in the surplus, does not prevent him from maintaining such a bill.\[46\] A savings bank being dissolved, the surplus should be divided among the bona fide depositors at the time of dissolution.\[47\]

\_Reorganization.\[48\]--A bond being given, pending the application for the appointment of a receiver for a bank, providing for the return of the assets to the officers or stockholders and a full settlement by them within a certain number of years, any creditor who is a beneficiary of said bond may sue thereon after condition broken to his damage,\[49\] and a delivery of the assets to one of the makers of such bond does not relieve the sureties thereon from liability, where by their acts they assent to such delivery and ratify it,\[40\] and an answer setting up such taking of the property by the stockholders as a defense to a suit by the bank should allego that the action was by a majority of the stockholders.\[51\]

\_Stockholders' individual liability.\[52\]--A registered stockholder is prima fide Diable, and the burden of proof is upon him to show a sale in good faith,\[68\] and a proper attempt to have the transfer made upon the books of the bank in accordance with the statutes,\[54\] though in some states the stockholder's liability continues for a limited time after the transfer of the stock.\[68\] A corporation obtaining stock in a bank by reason of ultra vires acts does not assume the stockholders' liability.\[68\] In some states in order that the holder of bank stock as collateral may be exempt from liability as to creditors, it must appear on the corporation's books that he holds the stock only as pledgee.\[57\] The liability of a stockholder is an obligation to the bank in trust for its creditors,\[68\] and the bank may not, as against creditors or other stockholders, relieve him from this liability.\[69\] It is created by statute,\[69\] though the liability is contractual,\[61\] and hence laws thereon should be construed to operate prospectively only,\[68\] and statutes imposing a double liability being in derogation of the common law, are to be strictly construed.\[68\] This liability may be enforced, before the assets are completely exhausted, upon it appearing that they will be insufficient,\[68\] unpaid subscriptions for stock should, however, first be resorted to.\[68\] In some states such liability is best enforced in the creditor's bill to have a receiver appointed,\[69\] but an independent action being brought by the receiver the creditors are not necessary, though proper parties,\[68\] and the complaint filled by the board of managers,\[68\] the unwill- bank to obey his direction. Hunt v. Seeger ingness of the present managers to continue in office is no ground for dissolving a sav- ting sbank, where proper men can be found to fate off trial court sustained. Hunt v. Doran take their places. Id. \[Minn.\] 100 N. W. 22; Hunt v. Seeger \[Minn.\] 45, 46, 47. Barrett v. Bloomfield Sav. Inst. \[N. J. Eq.\] 54 A. 543. \[S. C.\] 45 S. E. 54. \[S.\] 48. Send given under Comp. St. 1901, c. \[S.\] 55. Rawson v. Taylor \[Neb.\] 95 N. W. 1033. \[S0.\] Taylor v. Weckervly \[Neb.\] 96 N. W. 618. \[S1.\] Savings bank. Omaha Sav. Bank v. Rosewater \[Neb.\] 96 N. W. 68. \[S2.\] See 1 Curr. L. 295. \[S3.\] Schofield v. Twining. 127 F. 486. \[S4.\] Purchaser promised to have stock transferred, failed to do so, hold, registered stockholder liable. Schofield v. Twining. 127 F. 486. \[S5.\] Where in the exercise of reasonable care he directs a proper officer of the bank to make the transfer on the books, he not liable for the neglect of the officers of the should state the time when the several defendants became stockholders, and the dates the debts were contracted." Upon the reorganization of an insolvent bank, the stockholders taking part therein are primarily liable for the debts of the old bank," the stockholders not taking part in the reorganization being secondarily liable," and the latter are not discharged by the issuance and delivery by the reorganized bank of new certificates of deposit to the creditors of the old." A stockholder receiving stocks" and dividends" from the reorganized bank is estopped to deny liability on the ground of irregularities or nonassent thereto. Under a statute allowing the stock to be sold by the bank upon failure of the owner to pay assessments levied thereon, money derived from such sale belongs to the owner of the stock."

SS 3. _National banks; officers and examiners."_--In the absence of a by-law the president of a national bank has no power to bind the latter by a representation that a forged signature is genuine," nor are its directors empowered, without action of the stockholders, to levy an assessment ordered by the comptroller of the currency for the purpose of restoring its capital and enabling it to continue in business."

_Powers."_--The powers of a national bank under the national banking act are essentially matters for Federal construction and interpretation, and in construing said act state courts must yield to and follow the decisions of the United States supreme court." A national bank may take stock in another corporation as collateral and acquire title to it upon default of the debtor," it cannot become a member of a partnership, and cannot become liable as a partner," but it may, in order to secure payment of a debt, become a part owner in severalty of the property then owned by the partnership, and as such, liable for its proportionate share of the debts and expenses incurred in managing and disposing of said property." It may receive and hold a building contract as collateral security for the repayment of a pre-existing debt." A national bank has power to lease property for its occupancy in conducting its business for a term extending beyond the expiration in its charter, even though the lease is only alienable upon a condition," and, when insolvent, it may transfer its bank building in consideration of release of ground rent, where the transaction is fair, public, and reasonable." A national bank has no power to bind itself that a draft drawn on its customer will be paid," nor has it authority to procure a signature to a note for another bank in order that it may lend money to a third person, and represent the signature to be genuine." It cannot be estopped from pleading ultra vires by the performance of the contract by the other party," nor can it willfully commit a trespass, though its officers may do so, becoming personally liable therefor." Under the United States statutes a national bank is not subject to any visitorial powers except such as are authorized thereby." The stockholder's right of inspection is not a visitorial power." No reduction of capital of a national bank can be made without the approval of the controller of the currency," and it is fairly within his authority to condition his approval on the adoption of such measures as he might think proper to do justice to the holders of the original shares."

\_Violation of banking act."--\_The directors of a national bank enter into an implied contract with the depositors, this implied contract being inherent in the contract of deposit, that the bank will use such deposits and its other assets in conformity with the safeguards provided by law." The depositors may sue the directors upon this implied contract, though the bank be insolvent," and are entitled to maintain a single suit in equity against such directors," such a hill not being multifarious," and the bill failing to allege the date the deposits were made may be amended." This cause of action survives the death of the directors,1 nor are the latter relieved from liability by the expiration of their term of office.2

_Stock._"--A national bank cannot forbid the transfer of shares of its stock by a stockholder who is indebted to the bank.4

_Receivership._"--The legal existence of a national bank is not cut short by its insolvency and the appointment of a receiver therefor," nor by the expiration of its charter;" but it still continues as an entity capable of suing and being sued." A Federal court sitting in equity has jurisdiction, except in those cases where the controller of the currency has the power, to appoint a receiver for a national bank to liquidate its obligations," and to authorize him to collect and to enforce by action the liability of the shareholders of the bank." The state courts have the power to appoint a receiver to wind up a national bank, at the instance of a stockholder, in all cases except those designated by act of congress to be brought under the authority of the United States." The complaint must show that plaintiff tried to get redress by an appeal to his fellow-stockholders or to the directors," and there being a defect of parties, the objection cannot be raised for the first time on appeal.\[13\] One suing both as a cestui que trust and as a stockholder for the appointment of a receiver, on the ground that those who had gained control of it were using their power for improper purposes is entitled to the protection of courts of equity.\[14\]

The receiver of a national bank has the legal title to the property covered by his appointment, and is entitled to maintain an action at law in his own name in the state courts,\[15\] he is the proper party to sne, for the benefit of both creditors and stockholders, the directors of said bank for sums alleged to have been lost by negligence or mismanagement of the latter, the fund recovered to be used for general distribution as assets of the bank,\[16\] and in suing in a Federal court he is not bound to give a bond for costs.\[17\]

_Enforcement of stockholders' liability.\[18\]_--A national bank becoming insolvent, the controller of the currency must, within a reasonable time, make an accounting and determine the necessity for an assessment upon the stockholders;\[19\] the cause of action on the liability of a stockholder not accruing until an assessment has been ordered by the control?\[20\]

This action is governed by the state of limitations of the state where the action is brought,\[21\] and the controller is subject to the rule that where preliminary action is essential he cannot delay the operation of the statute of limitations by unnecessary delay in taking such action,\[22\] nor will failure to make the accounting within a reasonable time prevent the running of limitations.\[23\] Federal courts hold that this cause of action does not accrue until the court ascertains its necessity, and fixes the time of payment,\[24\]

no action of the controller being held necessary to empower a Federal court's receiver to enforce the liability of the shareholders.\[25\]

The remedy of a creditor's suit to enforce the liability of shareholders of national banks in voluntary liquidation, is cumulative, not exclusive.\[26\]

In order to render the pledgee of stock of a national bank liable as a shareholder, it must appear that he either became the owner of the shares in fact,\[27\]

or had held himself out to be the owner, and thereby estopped himself to deny his liability as such.\[28\]

The liability of a trust estate, depending upon the power of the trustee to make the estate a shareholder, cannot be determined in an action at law by the bank receiver against the stockholder.\[29\]

_State interference and powers of state courts.\[30\]_--An injunction will not issue from a state court against a national bank.\[31\]

A state can tax the real estate of

13. Cogswell v. Second Nat. Bank \[Conn.\]

of diligence. Rankin v. Barton \[Kan.\] 77 56 A, 574.

14. Objection that he had an adequate remedy at law held untenable. Cogswell v.

Second Nat. Bank \[Conn.\] 56 A, 674.

L. 299.

L. 287.

Sco 1 Curr. L. 299.

L. 30.

Lability of directors imposed by Rev. St. 8 5239 \[U. S. Comp. St. 1901, p. 3516\]

L. 314.

V. Schneider, 124 F. 239.

Whether previous adjudication forfeink's charter is necessary, quare?

Whether it cannot be brought by others than the receiver, acting under the direction of the controller of the currency, quare?

But in no case can it be maintained by the creditors alone. Boyd v. Schneider, 124 F. 239.

17.

Constrink Rev. St. 8 1001 \[U. S. Comp. St. 1901, p. 713\]

Depper v. Fidelity & Casualty Co. \[C. C. A.\] 125 F. 822.

18. See 1 Curr. L. 298.

19, 20, 21, 22. Rankin v. Barton \[Kan.\] 77 P. 531.

23.

Facts disclosed in the pleading showing a lack of diligence in making such accounting are not overcome by an averment 3 Cur. Law. Banking and Finance SS 4.

national banks." As to whether or not a state may tax the stock of a national bank there is a conflict." In New Jersey a national bank cannot seek savings deposits or attempt to compete with a savings' institution."

_Usury by national banks._"--The right to recover twice the amount of various interest paid to a national bank is a right which survives," and is therefore in most states assignable," though the bank may relinquish the usurious part," and evade the penalty by a bona fide sale of the note." A controversy respecting usurious interest paid to a national bank is governed by the Federal law, though the transaction violates the powers of such bank." The time the "insurious transaction occurred," in contemplation of the statute, is the date of the payment of the usurious interest." The bankruptcy of the person paying such usurious interest does not preclude him from recovering under the statute, after his discharge, where his trustee in bankruptcy did not reduce the claim to possession." Usury is a defense to an action by the receiver," and it does not discharge the surety or guarantor on the debt."

SS 4. _Savings banks._"--A savings bank is not a benevolent and charitable institution, within the meaning of taxation laws."

32. The \_bank having tendered taxes legal-

1y due is not liable for the penalty for non-

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2-2.5cm

3-3.5cm

4-4.5cm

5-4.5cm
_Powers._\[47\]--A savings bank may acquire title to shares of stock of another corporation, where they are taken in good faith in compromise or discharge of an insolvent debtor, and such action is for the best interest of the bank,\[48\] and on thus becoming the owner of such stock, it is liable thereon as any other stockholder.\[49\] A savings bank is liable for breach of its contracts.\[50\] In some states other banks are not allowed to seek savings deposits.\[51\] Savings banks are amenable to new laws.\[52\]

_Liabilities of directors._\[58\]--The managers of a savings bank are holders of a public trust of a benevolent and charitable nature,\[54\] as well as trustees for the depositors in their institution,\[55\] and hence must act disinterestedly.\[56\]

_Rules._\[67\]--By-laws and rules printed in the passbook of a savings bank delivered to and accepted by the depositor, at the time he opens the account, constitute a contract between the parties.\[54\] Rules providing that the bank will endeavor to prevent fraud do not dispense with the exercise of ordinary care and diligence on the part of the bank officials.\[58\] A by-law providing that the bank shall be die-charged by payment to one having the passbook is operative only during the life-time of the depositor.\[50\] A by-law providing that no depositor shall receive any part of his deposit without producing the original book, unless it be proved to the satisfaction of the trustees or treasurer that such book has been lost, cannot render the treasurer or trustees the final arbiter of the question of whether the book was lost, and thus oust the courts of their jurisdiction,\[61\] nor is the test the arbitrary decision of the treasurer or trustees, but the mind of a reasonable man.\[62\] Payments made to a person other than the rules designate are made at the bank's peril.\[63\] A by-law of a savings bank restricting the transfer of stock is not binding on a bona fide pledgee for value of the stock without notice thereof.\[54\] A savings bank may become estopped to assert that a transaction was invalid under a by-law.\[64\]

_Beliance on passbooks._\[66\]--The bank cannot rely exclusively upon the posses sion of the passbook, and even where a rule provides that payment to the holder of the passbook will discharge the bank, the officials of the bank are bound to exercise ordinary care and diligence.\[97\]

\_Deposits and repayment.\[68\]--\_The depositors in a savings bank occupy a double relation to the corporation as such; in case of insolvency they are creditors of the corporation,\[90\] in other cases they are partners or stockholders,\[90\] in all they are the cestuis que trustent of the managers.\[14\] Where two persons jointly own a deposit in a savings bank the title to the whole fund vests in the survivor,\[12\] and it is immaterial whether or not such survivor has ever had the passbook in his possession.\[18\]

SS 5. \_Loan, investment, and trust companies.\[14\]--\_The company must receive its charter under a constitutional act.\[15\] The contract of a loan, trust, and guarantee company is not ultra vires merely because failure to exercise the ordinary care required of every trustee may subject it to an indemnity payment wholly disproportionate to its compensation.\[76\] And such a company holding as trustee, and rating securities at their actual worth, is not a guarantor of the actual worth of the securities.\[77\] A suit against an insolvent debenture company may be instituted by one or more debenture holders in behalf of all holders, their interest being joint,\[78\] and they may maintain a suit against it to prevent the wasting of its assets, though the debentures have not matured.\[78\]

SS 6. \_Deposits and repayment thereof; checks, drafts, certificates, recepts, credits.\[90\] Deposits may be received from a gambler with reason to believe that the money was won in gaming or by other questionable means; but the bank crosses the line of permissibility when, with a knowledge that such depositor is obtaining the money by fraud or theft, it does acts in aid of the wrongful means by which the money is obtained.\[81\] It may rightfully receive deposits from an agent of an insolvent principal, the latter having committed an act of bankruptcy upon which he is subsequently adjudged a bankrupt.\[82\]

\_Relation of banker and depositor.\[83\]--\_The relation of banker and depositor is that of debtor and creditor,\[84\] the banker's liability being discharged by payment.\[85\] He cannot repudiate this obligation by showing that the name of the depositor was that of something having no legal existence.\[96\] Money being deposited in a

67. Kelley v. Buffalo Sav. Bank, 88 App. Ulv. 374, 84 N. Y. S. 642; Ferguson v. Harlem N. V. 22. Sav. Bank, 88 N. Y. S. 825. See "Rules," supra. \[Mich.\] 96 N. W. 22. 68. See 1 Curr. L. 302. 69. One must here keep in mind the distiotion between the corporate entity of a savings bank and its managers. Barrett v. Bloomfield Sav. Inst., 64 N. Y. Eq. 425, 54 A. 543. 70, 71. Barrett v. Bloomfield Sav. Inst., 64 N. J. Eq. 425, 54 A. 542. 72, 73. Fairelly v. Emigrant Industrial Sav. Bank, 92 App. Ulv. 529, 87 N. Y. S. 54. See 1 Curr. L. 302. 75. Act 1898, p. 78, authorizing the secretary of state to grant charters to trust companies with banking privileges in not unconsitional. Mulherin v. Kennedy \[Ga.\] 48 S. E. 437. 76. Smith v. Bank of New England (N. H.) 54 A. 385. 77. Stocks, etc., held as security for certificates of deposit issued by another trust company. Smith v. Bank of New England \[N. H.\] 54 A. 385. 78. To prevent officer of company from obtaining possession of guaranty fund. Chris-

01. Curr. Law.\[87\]

01. Kelley v. Buffalo Sav. Bank, 88 App. Ulv. 374, 84 N. Y. S. 642; Ferguson v. Harlem N. V. 22. Sav. Bank, 88 N. Y. S. 825. See "Rules," supra. \[Mich.\] 96 N. W. 22. 80. See 1 Curr. L. 302. 81. Wright v. Stewart, 130 F. 905. 82. Interstate Nat. Bank v. Claxton \[Tex.\]

01. W. 604. 83. See 1 Curr. L. 302. 84. First Nat. Bank v. City Nat. Bank, 102 Mo. App. 357, 76 S. W. 489. Not a ballment. Arnold v. Sedalia Nat. Bank, 100 Mo. App. 474, 74 S. W. 1038; Heath v. New Bedford Safe Deposit & Trust Co., 184 Mass. 481, 69 N. 215. Garishment. Deposit by principal for use of his agent. Principal a debtor of bank. Curtis v. Parker & Co., 136 Ala. 217, 33 So. 935. 85. By becoming dissatisfied with delay in returning signature card, and the fact that deposit was to be immediately withdrawn. the nature of the contract is not changed, so as to discharge it from liability by returning it to person unauthorized to receive same. Heath v. New Bedford Safe Deposit & Trust Co., 184 Mass. 481 bank for the benefit of another, who is notified thereof by the bank, the relation between such person and the bank is that of depositor and banker.\[97\] A bank delivering a check to the payee at the request of the drawer "all charges to be paid by the payee" is, as to the drawer, a gratuitous bailee.\[48\]

Under an agreement to collect upon _collaterals_, deposited with it as security, and hold the proceeds for the benefit of another, a bank may be compelled to turn over the excess over the amount necessary to protect it, its liability for which the collateral was deposited as security not having ended.\[97\] In Oklahoma the remedy of an unsecured creditor against a bank which hypotheses his notes and credits as collateral for a loan is an action under the Code, not a suit in equity.\[98\]

\_Evidence of deposit.\[91\]--A passbook being sent to the bank to be written up and returned, it is in effect a demand on the part of the depositor to know what the bank claims to be a statement of his account, and a return of the book with the vouchers is an answer to that demand,\[92\] and, no objection being made by the depositor, it becomes in effect an account stated,\[93\] which most courts hold must be examined by the depositor within a reasonable time, and if incorrect, repudiated, failure to do so working an estoppel,\[94\] though this account stated may be questioned for fraud or mistake; the burden of proving such fraud or mistake clearly and satisfactorily resting upon the complainant.\[95\] A depositor is not bound to examine his bank book to discover whether the cashier has made a mistake in counting the amount of the deposit,\[96\] the contrary, however, being held, it seems that the depositor is not estopped to controvert the entry unless the bank is shown to have been prejudiced by his neglect to make such examination.\[97\] Whether or not an account is the depositor's individual account depends upon the circumstances of each case.\[98\]

\_Letters of credit.--\_One has no claim against the writer of a letter of credit unless he knew of its existence, and advanced his money on the faith of it.\[99\] The writer of a letter of credit cannot apply checks, cashed by one bank without any knowledge of the existence of the letter of credit, to the extinguishment of the amount named in the letter as against another bank subsequently cashing the bear-er's checks on the faith of it.\[9\]

\_Repayment of deposits.\[2\]--A bank is bound to honor checks drawn on it by a depositor if it has sufficient funds belonging to the depositor when the check is presented, and the funds are not subject to any lien or claim,\[9\] or right of set-off in favor of the bank,\[4\] but the depositor being solvent the bank is liable, though

tion. And this estoppel is not terminated by fraud. Farrry v. Farmers' & Mechanics' Bank the Individual partner's debt. Willey v. \[N. J. Eq. 15 & A. 805.

Crocker-Woolworth Nat. Bank \[Cal.\] 17 2. P. \[96\]. Evidence held sufficient to show a demand. Kemble v. National Bank of Rondout,

88 N. Y. S. 246. On the question as to Trust Co., 184 Mass., 481, 69 N. E. 215.

88. Kling v. Exchange Bank \[Mo. App.\] 100 gold certificate or a $1,000 greenback,

01. W. 1058.

01. Mercantile Nat. Bank v. Pesbody \[Colo. App.\] 72 P. 611.

01. Code Civ. Proc. # 518-520, c. 66, St.

01. Overstreet v. Citizens' Bank, 12 Okl. 388, 72 P. 379.

01. See 1 Curr. L. 802.

01. Scanlon-Gipson Lumber Co. v. Germannl Bank, 90 Minn. 478. 97 N. W. 880.

01. Farrry v. Farmers' & Mechanics' Bank \[N. J. Eq. 15 & A. 805.

01. Scanlon-Gipson Lumber Co. v. Germania Bank, 90 Minn. 478. 97 N. W. 880;

Hennesay Bros. & Evans Co. v. Memphis Nat. Bank \[C. C. A.\] 129 F. 567.

95. Evidence held insufficient to show the funds have been set off by the bank against past due claims, no notice thereof having been given the depositor,5 and the bank is obliged to honor the checks of its depositor even though he holds the money in a fiduciary capacity, it incurring no liability in so doing as long as it does not participate in any misapplication of funds or breach of trust,s though the conduct or course of dealing of the depositor may charge the bank with notice that he is violating his trust.7 For its refusal or neglect to honor the depositor's check the bank may be sued either for conversion or for money had and received.' The statute of limitations runs against this right.8 The check should be paid in money.10 The deposit should be repaid to the true owner, and where the bank has sufficient knowledge to put it on inquiry that the depositor is not the true owner, it is liable for permitting it to be applied otherwise.11 As between the parties every legal presumption is in favor of the personal ownership of the fund by the depositor,12 hence the addition of the word "administrator" to the depositor's individual name has been held not to be notice to the bank that the fund was held in a fiduciary capacity.13 A deposit of money in a bank by a third person to the credit of another does not show ownership in the latter in the absence of a showing of acceptance, or a presumption of acceptance.14 Suit by an assignee of such third person for the benefit of his creditors is not an acceptance by the assignor of the benefit of such deposit,15 nor is a letter by such an assignee to the bank that his assignor had funds in the bank evidence, in an action against the bank by the assignee, that the assignor owned the funds.14 Such a deposit being for the benefit of the third party, it will be presumed to have been accepted by him,17 but this is not true where the presumption would establish an unlawful act, or participation in an unlawful act.18 When, in the absence of fraud, a genuine check is presented to a bank and received as a deposit, the legal effect is that the check is paid,19 and this effect does not depend upon there being cash enough in the bank the moment the check is presented to pay it,20 nor on the financial condition of the bank as shown on a settlement of its affairs after insolvency.21 The check being so presented, the bank becomes the owner thereof.22 Where a bank accepts the check of a depositor, and puts it to the credit of another depositor, it is equivalent to a payment in cash to such second depositor of the amount of the check,23 and the bank cannot recover from him the amount thereof on discovering that it in reality had no funds of the drawer.24 A bank paying a check presented by a bona fide holder 98.

American Nat. Bank \[Tex. Civ. App.\] 81 S. W. App.\] 77 S. W. 168. The United States sur-

5. Callahan v. Bank of Anderson \[S. C.\] 14 S. E. 293.

6, 7. Interstate Nat. Bank v. Claxton \[Tex.\] 80 S. W. 604.

8. York v. Farmers' Bank \[Mo. App.\] 79 S. W. 618.

1. It seems to have been held that the

1. Check presented by payee as a destaute of limitations runs against the cause

of action against stockholders for indebted-

11.00.10.20.30.40.50.60.

in the usual course of business, it cannot afterward recover back the money as paid by mistake, on the ground that payment of the check had been countermanded by the drawer.\[25\] A bank may rely on the solvency of the drawer of a draft deposited on his account with it, and if not paid by the drawee may charge it back.\[26\] Whether or not a note or check has been paid often depends upon the circumstances surrounding the transaction.\[27\] The drawing and delivery of a check on a bank deposit operates as an assignment of so much of the deposit as is called for by the check,\[28\] but it must be drawn upon a particular fund and be accepted by the bank.\[29\] Where, by a bond given by order of court, a bank agrees to pay the deposit of a receiver upon demand, it is not relieved from liability to do so by an agreement with the receiver whereby the latter agrees to leave the deposit for a specified time.\[30\] A depositor, on accounting with the bank, is entitled to the benefit of a deposit made by a bank official for the specific purpose of paying overdrafts occasioned by his misappropriation of the depositor's money.\[31\] _Overdrafts._--An overdraft allowed by a bank is a note due on demand and may be sued on as such,\[32\] and the same is true of a note given, payable on demand, to cover it, to the extent that the overdraft is thereby segregated from the account.\[33\] An overdraft draws interest from the date of demand or adjustment.\[34\] _Forged or altered checks and drafts.\[35\]_--A bank paying a check to one presenting it under a forged indorsement may recover back the amount if it proceed with due diligence,\[36\] and may recover of an indorsee upon proof that a prior in-

25. National Bank of New Jersey v. Ber-

rail \[N. J. Err. & App.\] 58 A. 189.

26. Hendley v. Globe Refinery Co. \[Mo.\]

01. Where on the maturity of a note, of one of its depositors, sent to a bank for collection, the cashler drew his check in favor

him. U. & v. Clinton Nat. Bank, 28 F. 857.

of the payee for the amount of the note,

Reasonable diligence only is required.

made a memorandum thereof on a block,

Schroeder v. Harvey, 75 Ill. 689: National

wrote on the face of the note in the bank's name that it was paid, and perforated it

348.-From note to First Nat. Bank v. City and put in the files, and was then notified of

the maker's insolvency, held, the note was

already paid, nothing remaining besides en-

As between banks the same rules apply

ries of records on the books, but to remit

the proceeds. Nineteenth Ward Bank v.

First Nat. Bank, 184 Mass. 49, 67 N. 670.

position than if payment had been refused.

28. Brown v. Schultz, 202 Ill. 609, 67 N. 2.

01.

01. Reviere v. Chambliss \[Ga.\] 48 S. E

01. Where bank answered a telegram,

asking if the drawer had money in the bank,

in the affirmative, held an assignment. New

York Life Ins. Co. v. Patterson & Wallace

174. Civ. App.\] 80 S. V. Watson

001. Scott v. Whipple, 119 Ga. 485, 48 S. E.

001.

001. Van Buren County Sav. Bank v. Stirling Woolen Mills \[Iowa\] 94 N. W. 945.

32, 33, 34. Hennessy Bros. & Evans Co. v. Memphis Nat. Bank \[C. C. A.\] 129 F. 657.

35. See 1 Curr. L. 208.

01. In this case trust company guaranteed

former indorsements, one of which was

forged, held bank could recover from trust

company and the latter from the person to

whom the money was paid. Second Nat. Bank v. Guarantee Trust & Safe Deposit Co.,

206 Pa. 616, 56 A. 72.

**NOTE.** Recovery by one paying a forced check! To entitle the payor to recover up-

on a forged instrument it must appear that

he has sustained a loss, and if he beling a banker, can charge the payment to the account of the depositor, he has lost nothing.

3 Cur. Law. BANKING AND FINANCE SS 6. 421

dorsement is forged," the burden of proving the forged character of the instrument being on the bank.\[98\] It is liable for money paid to an indorsee, where it has knowledge that such indorsement was procured by fraud.\[99\] One depositing money in the name of another, representing himself to be such other person, the bank is not liable to him for money drawn out by such other person,\[40\] nor can one indorsing to an impostor recover from the bank when compelled to pay the real claimant.\[41\] The fact that the maker of a check is mistaken as to the identity of the payee will not allow him to recover from a bank, paying the check on said payee's indorsement, on the ground that the indorsement was forged.\[42\] In Massachusetts a bank is not bound to know the signatures of its patrons.\[43\] A bank is not liable for payments made upon a check altered by an agent within the apparent scope of his authority.\[44\] A depositor is not estopped to charge the bank with forged checks, if he has used ordinary care in the examination of his passbook and returned checks, and failed to discover the forged checks and to give notice thereof,\[45\] and where the examination is entrusted to a clerk he is only bound to use ordinary care in the selection of the clerk.\[46\] If the bank is negli-gent in paying the checks, the depositor is not estopped by his failure to make any examination.\[47\] What is a reasonable time in which a depositor should examine his passbook, after it has been balanced and returned to him with the canceled vouchers, is a question of law.\[48\] A bank on which a check is drawn, on taking it up in the clearing house properly indorsed, is presumed to have acted in good faith.\[49\] A bank taking a "raised" check for collection and indorsing it so as to convey no representation of ownership, the check being paid by the drawee, and by the collecting bank to the payee, the collecting bank is not liable to the drawee.\[60\] A bank falsely asserting that a signature is genuine is liable in an action for deceit.\[81\]

Rep. 711.--From note to First Nat. Bank v. CITY Nat. Bank \[Mass.\] 94 Am. St. Rep. 837, 239, 75 S. W. 197.

37. Egner v. Corn Exch. Bank, 86 N. Y. S., 45, 46. Kenneth Inv. Co. v. National Bank

01.

01. Action by bank to recover from another bank the amount of checks paid by the former to the latter through the clearing

01. Such negligence may be shown by house, on the ground that the indorsements

answer the matchority, but simply plaintiffs

thereon were fraudulent and unauthorised.

National Park Bank v. American Exch. Nat.

18. So, though the money reallenged from that Bank $8 N. Y. S. 271.

01. Coefficient of deposit. Currey v. Jop-

01. Anxfordy v. State Sav. Bank \[Minn.\]

01. Arrofsky v. State Sav. Bank \[Minn.\]

01. Hoffman v. American Exch. Nat. Bank

01. Maker of check given as the purchase price for horses bought of one B. thinking

01. Indorsement was by an unauthorised

that B. was a man well known in business

circles, whereas he was another man bearing the same name. Sherman v. Corn Exch.

Bank, 91 App. Div. 84, 86 N. Y. S. 341.

44. A Massachusetts bank caused a forged

check on a Minnesota bank and sent it to

the Minnesota bank for collection. The Min-

nesota bank paid It and on learning of the

forgery brought action to recover the money

so paid. Held, they could recover. First

that B. was a man well known in business

45. Indorsement was by an unauthorised

effects, whereas he was another man bearing

Bank (Colo. App.). 73 P. 87.

46. Checker-Wolworth Nat. Bank v. Ne-

01. Checker-Wolworth Nat. Bank v. Ne-

01. Commercial Nat. Bank v. First Nat.

Bank (Tex. City. App.). 77 S. W. 239.

Evidence as to genuness: Where a de-

evidence was to genuness: Where a de-

postfor refused to pay a check on the ground

that she never signed a check with her

so paid. Held, they could recover. First

tals, and an expert testified that the Intials

were not in her handwriting, and the cashier

55 N. E. 24.

44. Bookkeeper required to fill out and

that they saw her sign, it, and other experts

cash, but not sign, plaintiffs's checks, held,

tasted the handwriting to be here, as ver-

any alteration in amount of check within his

dict finding that she did not sign the check

apparent authority and bank not liable. is against the weight of the evidence. Peo _Checks drawn without authority._\[52\]--A bank is responsible to a depositor for payment of checks drawn on his fund without authority.\[53\] Several persons making a deposit to their joint credit, a check drawn thereon must be signed by all, or the bank pays it at its own risk.\[54\] A bank paying money on a check signed by one who claims to be the depositor's agent does so at its peril,\[58\] and it is bound to take notice of the limitations of his authority,\[66\] other than secret ones.\[57\] That the act was within the apparent scope of the agent's authority is no defense, where the bank had no knowledge of such agency nor acted upon the faith of it.\[58\] That one is agent for the purpose of depositing his principal's money, does not give him authority to check the deposit out.\[59\] Money being deposited by one in his own name with no notice express or implied to the bank of his being an agent, the bank is not liable to the owner for money paid out on the agent's individual check.\[60\] A bank is liable for knowingly misappropriating the funds of a corporation depositor to pay the individual debts of the latter's officers,\[61\] and when it knowingly allows the depositor of a trust fund to appropriate the same to the payment of his individual debt to the bank it can be compelled to refund the same.\[52\]

_Set-off of debts due bank against deposit._\[53\]--A bank has the right to apply so much of the funds of a depositor to the payment of his matured indebtedness to it as may be necessary to discharge the same.\[64\] The right of set-off does not exist until the maturity of the debt due the bank,\[65\] unless the depositor be in-solvent.\[66\] Where the indebtedness to the bank does not mature until after the death of the depositor the right of set-off does not exist,\[67\] though it has been held otherwise where the debt matured the day after the depositor's death.\[68\] A bank cannot, without the consent of the depositor, apply the latter's deposit to the payment of a check or note upon which he is security or guarantor.\[69\] It is entitled

ple's Sav. Bank & Trust Co. v. Keith, 184 (A16, 84 80. 925).

52. See 1 Curr. L. 304.

01. Husband drew checks on wifc's depositor, let, her separate property. Brown v. Daughetry, 120 P. 526.

01. Columbia Finance & Trust Co. v. First Nat. Bank, 25 K. Jr. R. R51, 16 S. W. 166.

01. Heath v. New Bedford Safe Depost & Trust Co., 184 Mass. 481, 69 N. E. 215. Treatment of corporation. Van Buren County Sav. Bank v. Stirling Wooler Millis (Iowa) 94 N. W. 945; Jackson Paper Mfg. Co. v. Commercial Nat. Bank, 199 111, 161, 85 N. E. 136, 59 L. R. A. 657.

But where no damage results to the prit-elpal it is damnnn abuso injuris. New York Brick & Pawing Co. v. Bronx Borough Bank, 42 Mfg. 31, 85 N. Y. S. 557. A clerk having no authority from custom or usage to indorea his employer's checks, the latter may deny the validity of the Indorensent as against a bank having the check. Rosenberg v. Germania Bank, 88 N. Y. S. 952.

56. Jackson Paper Mfg. Co. v. Commercial Nat. Bank, 199 111, 151 S. N. E. 186, 59 L. R. A. 657. A bank receiving deposits in the name of an individual 'and Co.'s but upon inquiry as to whether it is the deposit of the individual or of a partnership. Willey v. Crocker-Woolworth Nat. Bank (Cal.) 72 P. 832.

01. The fact that checks always bore the agent's Indorensent is not notice that he could indorse for collection only. Wedge Mines Co. v. Denver Nat. Bank (Colo. App.) T3 P. 873.

3 Cur. Law. Banking and Finance SS 6. 423

to set off an insolvent corporation's deposit against the corporation's indebtedness to it.70 The fact that money is deposited in a firm name, the bank understanding it to be the depositor's individual account, does not destroy the bank's right to set off the individual's note against such account.71 A bank receiving a check, with a general indorsement in blank, for collection, and forwarding it with a like indorsement to its correspondent for collection, the latter is entitled to set off the proceeds as against the debt of the forwarding bank.72 A bank cannot knowingly set off a deposit held by the depositor in a fiduciary capacity against the individual debt of the depositor due it.78 A bank having no notice that a deposit is a specific one is entitled to apply it to the depositor's overdrafts.74 A bank cannot be held to account to the owner of a fund which has been deposited by an agent in his own name and applied upon the agent's overdraft, the bank having no knowledge of the agency.78 The fact that a bank is a preferred creditor of an insolvent does not authorize it to set off deposits made by the insolvent's assignee, as assignee, against its preferred claim.78 A court has no power to summarily direct a bank to pay over to the receiver of a corporation the amount of the corporation's deposit in said bank, pending the determination of the right of the bank to set off such deposit against the corporation's indebtedness to it.77 The right of set-off passes to the bank's assignee of the debt and account.78 The right of a bank to a set-off will not be required by law, in the absence of express agreement or appropriation, so as to benefit a surety.78

\_Deposits received after insolvency.80--A bank discounting drafts when insolvent, to the knowledge of its officers, the drawer of the drafts may either demand and sue for them, or ratify the contract and prove his debt against the bank.81

_General deposits._--Where the money deposited is mingled with other money of the bank, and the entire amount forms a single fund, from which depositors are paid, it is a general deposit.82 Every deposit is presumed to be general.88 Money deposited in a bank to the credit of a pledgee of chattels in order to release the goods is a general deposit though the facts were known to the bank officials.88

_Special deposits.88--A special deposit is created where the money is left for safe keeping and the identical money is returned to the depositor.88 A deposit of money paid into court, under a statute requiring the cashier of the bank to issue_

70. Wheaton v. Daily Tel. Co. (C. C. A.) 124 F. 61. 71. Even though by secret agreement he has a partner in the firm business, Willey v. Crocker-Woolworth Nat. Bank, 141 Cal. 508, 75 F. 106. 72. Continental Nat. Bank v. First Nat. Bank \[Miss.\] 36 So. 189. 73. Sparrow v. State Exeh. Bank \[Mob.\]. 17 S. W. 168: Interstate Nat. Bank v. Claxton \[Tex.\] 80 S. W. 604. 74. First Nat. Bank v. City Nat. Bank, 102 Mo. App. 357, 76 S. W. 489. 75. Kimmel v. Bean \[Kan.\] 75 P. 1118, 76. Johnston v. Green \[Va.\] 46 S. E. 888. 77. Wheaton v. Daily Tel. Co. (C. C. A.) 124 F. 61. 78. Right to set off individual's note against account kept in firm name. Willey v. Crocker-Woolworth Nat. Bank, 141 Cal. 508, 75 P. 106. 79. Camp v. First Nat. Bank \[Fia.\] 38 So. 241. See 1 Curr. L. 306. 80. See 1 Curr. L. 306. 81. He cannot do both. Where he brought an action to recover the amount of the drafts and garnished the drawer who had accepted them, such action constituted an election to affirm the contract and he could not recover on the ground that they had been obtained by the bank by fraud. Davis v. Butters Lumber Co., 132 N. C. 233, 43 S. E. 650. 82. A general deposit differs from a loan in that the money is left with the bank for safe-keeping subject to order and payable, not in the specific money deposited, but in an equal sum. Officer v. Officer, 120 Iowa, 89, 94 N. W. 947. 88. Officer v. Officer, 120 Iowa, 889, 94 N. W. 947. 84. No special instructions were given. Attempt to secure priority over general creditor. Schonfeld Mfg. Co. v. Cochran \[Ga.\] 47 S. E. 208. 85. See 1 Curr. L. 305. 86. Officer v. Officer, 120 Iowa, 889, 94 N. W. 947.

434 Banking and Finance $ 6. 3 Cur. Law. a statement that the money is actually deposited in the bank and not mingled with any other funds, does not create a special deposit.\[87\]

_Specific deposits.\[88\]--A specific deposit exists where money or property is given to the bank for some specific and particular purpose.\[89\] The burden is on the depositor to show that a bank has notice that a deposit is a specific one.\[90\]_

_Trust funds.\[91\]--A_ bank knowing that deposits are trust funds it cannot appropriate them to the payment of an individual debt due it from the depositor.\[92\] The deposit of money by a trustee in his own name, and without notice to the bank of the trust, does not render the deposit a trust fund in the hands of the bank.\[93\] That funds collected by a bank on a note sent it for collection are used in its own business is insufficient, upon its insolvency, to impress a fund realized by its receiver, by converting its assets into cash, with a trust for the payment of the money so collected and used.\[94\] The depositary of a trust fund is not entitled to retain the same where it has parted with no consideration and has acquired no rights,\[95\] although such deposit was made by an agent or trustee and until demand by the owner the depositary had no notice of its real character.\[96\] A principal has a right, as against the agent and bank, to his funds deposited by an agent in his name, though such funds are mingled with the agent's.\[97\] The fact that the deposit is public money does not make the deposit a trust fund.\[98\]

_Slander of credit or damages for failure to pay checks.\[99\]--Damages for refusal to pay a check when the drawer has sufficient funds on hand are the natural and reasonable consequences arising therefrom.\[1\] Substantial\[2\] and special damages if properly alleged,\[9\] may be recovered. Where the refusal is due to the mistake of a clerk, in the absence of proof of special damages, nominal damages only can be recovered.\[9\]_

_Actions to recover deposits. Parties.\[9\]--In some states the holder of an unaccepted check may sue thereon,\[9\] and the fact that the bank claims not to have had the money on hand when a check was drawn on it does not take the case out of the rule.\[9\] In others,\[9\] and in the Federal courts,\[9\] he cannot maintain such a suit. In_

87. Comp. Laws, # 420, 424. Retan v. holder does not constitute a trust fund so as Union Trust Co. \[Mich.\] 95 N. W. 1006. to entitle such depositor to preferred payments on the insolvency of the bank, under 88. Note for collection, money to pay a particular note, etc. Officer v. Officer, 126 in public officers from commingling public hours, 389. #4 N.-W. 947. 947. 90. First Nat. Bank, # City Nat. Bank, 102 (Mich.\] 89 N. W. 873. 91. See 1 Curr. L. 305. 92. State Bank of St. Johns v. McCabe 1. Willey v. Bunker Hill Nat. Bank, 183 (Mich.\] 98 N. W. 20, See 1 Curr. L. 305. 945. 95. 96. 97. 98. See, also, "Set-off of debts due bank against deposit," supra. 98. Depositor, studying in strange city, 83. Depositor by an attorney of client's money. Rhinehart v. New Madrid Banking Co., 99 Mo. App. 381, 13 S. W. 315. And in fact that when the cestial que trust withdrew 8500 not excessive. American Nat. Bank v. a portion on the depositor's check, she told 1047. Morey, 25 Ky. L. R. 151, 80 S. W. 187. See the bank that a part of the rest was hera, does not entitle her to a money judgment in 8. W. 696, where the authorities are collect-ed by the Hon. Judge Bland. 94. Dour & Sons v. Cochran, 118 Ga. 396, 8. Wiley v. Bunker Hill Nat. Bank, 183 45 S. L. 382. 95. 96. Union Stockwards Nat. Bank v. Campbell 198 N. W. 668. 97. Assignee of principal as against cred-lors of the agent. Packer v. Crary, 121 17owa, 388. 96 N. W. 870. 98. Public money deposited, with the understanding that it shall draw interest, by the treasurer of the public board in a bank of which he is the cashler but not a stock- some states statutes provide for making all claimants for a deposit, who are not parties plaintiff, parties defendant.\[10\] In some cases an adverse claimant may interplead.\[11\]

\_Defenses.\[12\]--\_A bank on being sued by one other than the depositor should protect itself by depositing the money in court and asking a decision as to the ownership.\[14\] A bank charging off the credit given a depositor for checks presented and accepted, for the reason that the drawer failed to pay, cannot, in a suit for the credit given, defend on the ground that the checks were given for a gambling transaction.\[14\] The statute of limitations does not begin to run against a bank on paper payable on demand until demand has been made.\[15\] An action by the receiver, in a Federal court, against a stockholder is not a bar to an action by said stockholder, as a depositor, against said receiver for the amount of his deposit.\[16\] Money being deposited without an agreement for interest, the depositor withdrawing the deposit without interest cannot afterwards recover interest thereon.\[17\]

\_Notes payable at bank.\[18\]--\_A note payable at a bank where the maker keeps his account is equivalent to a check drawn by him upon that bank, so far as respects the power and duty of the bank to pay it,\[18\] but the bank may only treat it as such when the maker of the note has funds on deposit at the date of maturity.\[20\]

\_Certifications.\[21\]--\_By the certification of a check a bank becomes primarily liable for its payment to any bona fide holder thereof;\[21\] and must pay it to such a holder though notified by the maker that the check has been lost,\[22\] the drawer being released from liability.\[24\] The amount of a certified check, in the absence of fraud, is as much drawn from the depositor's account as if the money had been paid,\[25\] but the holder of such check, being paid, repaying the amount on being

S. Bryan v. First Nat. Bank, 205 Pa. 7, 54 A. 480. --Unaccepted check. New York Life 54 A. 480. --Unaccepted check. New York Life 54 A. 480. --Unaccepted check. New York Life 55 A. 480. --Unaccepted check. New York Life 55 A. 480. --Unaccepted check. New York Life 55 A. 480. --Unaccepted check. New York Life 55 A. 480. --Unaccepted check. New York Life 55 A. 480. --Unaccepted check. New York Life 55 A. 480. --Unaccepted check. New York Life 55 A. 480. --Unaccepted check. New York Life 55 A. 481. --Unaccepted check. New York Life 55 A. 482. --Unaccepted check. New York Life 55 A. 483. --Unaccepted check. New York Life 55 A. 484. --Unaccepted check. New York Life 55 A. 485. --Unaccepted check. New York Life 55 A. 486. --Unaccepted check. New York Life 55 A. 487. --Unaccepted check. New York Life 55 A. 488. --Unaccepted check. New York Life 55 A. 489. --Unaccepted check. New York Life 55 A. 480. --Unaccepted check. New York Life 55 A. 481. --Unaccepted check. New York Life 55 A. 482. --Unaccepted check. New York Life 55 A. 483. --Unaccepted check. New York Life 55 A. 484. --Unaccepted check. New York Life 55 A. 485. --Unaccepted check. New York Life 55 A. 486. --Unaccepted check. New York Life 55 A. 487. --Unaccepted check. New York Life 55 A. 488. --Unaccepted check. New York Life 55 A. 489. --Unaccepted check. New York Life 55 A. 480. --Unaccepted check. New York Life 55 A. 481. --Unaccepted check. New York Life 55 A. 482. --Unaccepted check. New York Life 55 A. 483. --Unaccepted check. New York Life 55 A. 484. --Unaccepted check. New York Life 55 A. 485. --Unaccepted check. New York Life 55 A. 486. --Unaccepted check. New York Life 55 A. 487. --Unaccepted check. New York Life 55 A. 488. --Unaccepted check. New York Life 55 A. 489. --Unaccepted check. New York Life 55 A. 480. --Unaccepted check. New York Life 55 A. 481. --Unaccepted check. New York Life 55 A. 482. --Unaccepted check. New York Life 55 A. 483. --Unaccepted check. New York Life 55 A. 484. --Unaccepted check. New York Life 55 A. 485. --Unaccepted check. New York Life 55 A. 486. --Unaccepted check. New York Life 55 A. 487. --Unaccepted check. New York Life 55 A. 488. --Unaccepted check. New York Life 55 A. 488. --Unaccepted check. New York Life 55 A. 489. --Unaccepted check. New York Life 55 A. 4 threatened with suit, cannot maintain an action against the bank on its certification.20

SS 7. _Loans and discounts. Advances against bills of lading.21_--A bank agreeing to pay the check of a purchaser of goods for the purchase price thereof taking the bill of lading as security, upon so doing has a lien upon the goods for its advances.28 A bank agreeing to advance money to dealers to pay for goods purchased, taking the bills of lading as security, and the uniform course of business being for the dealers to sell the goods, and after the sales are made, receive the bills from the bank, and on receiving payment to deposit the amount in the bank, upon a sale the bank cannot refuse to surrender the bills and recover the goods.29

_Drafts with bills of lading attached._--A bank for value and without notice of fraud purchasing drafts with bills of lading attached from the consignor, said drafts being fully paid by the consignee, it is not liable to the latter for fraud perpetrated by the consignor in making out the bills of lading.30 A bank is liable for damages caused by failure to forward bill of lading with draft,31 and for a failure to follow instructions.32

SS 8. _Collections.38_--A collecting bank on drafts may make the drawe bank its agent for collection.34 A bank forwarding checks for collection under a general indorsement in blank, the title to such collection, as to third parties dealing without notice and not being put upon inquiry, passes to the bank to which they are forwarded, and the former becomes simply a general creditor of the latter bank.35 A bank forwarding drafts for collection under claim of ownership is presumed to be the owner,36 though one receiving a draft endorsed. generally but accompanied by an instruction that it is for "collection and credit" for the benefit of the drawer takes the draft in the capacity of a collecting agent,37 and has notice that the forwarding bank is not the owner thereof.38 A bank forwarding a draft to a bank who has a correspondent in the town where the draft is payable, the first bank not having an agent there, will be presumed to forward for collection.39 It is not presumed that a bank holding a local check drawn upon another bank is the owner thereof except for collection.40 The forwarding bank making an assignment and ceasing to do business before the draft is collected, the collecting

28. **Poess v. Twelfth Ward Bank, 86 N. Y.** Co. v. North Tex. Grain Co. \[Tex. Civ. App.\] S. 857. \*\*567. \*\*57. \*\*58. \*\*59. \*\*58.

8 Cur. Law. banking and Finance $ 9.\*\*437

bank's agency for the forwarding bank is terminated,\[41\] and the drawer may recover the amount subsequently collected.\[42\] A draft drawn in favor of the cashier of a bank, to enable the latter to collect the same and place the proceeds to the drawer's credit, does not divest the drawer's ownership of the debt for which the draft was drawn.\[43\]

\_Duty to preserve rights of parties.\[44\]--A collecting bank undertakes to collect and remit, or return draft.\[45\] The measure of a collecting agent's duty is ordinary care and reasonable diligence.\[46\] It must take proper means to charge indorser if note not paid,\[47\] and if this is not done it is liable if the drawer becomes insolvent,\[48\] the amount depending upon the latter's inability to collect from the maker,\[49\] and in such an action the indorser will be presumed to have been solvent at the time of maturity of the note.\[50\] It is liable to the drawer of a draft for damages sustained by the latter owing to the bank's failure to promptly return the draft after its nonpayment.\[51\] A general custom will not excuse the exercise of this care,\[52\] and a particular custom in order to be binding on the one sending the draft for collection must have been actually known to him when he sent it.\[53\] The collecting bank, in the absence of some special agreement, is liable for loss occasioned by a default of its agent for collection.\[54\]

SS 9. \_Offenses against banking laws; penalties.\[55\]--A conspiracy to defraud a national bank by causing false entries to be made in the books thereof, by an officer of the bank, is an offense against the United States.\[56\] The entry, by the cashier of a national bank on the books thereof, of a check which actually entered into a transaction of the bank as a "cash item" is not the making of a "false entry,\[57\] although he knew the check to be worthless and fraudulent and made the entry with intent to deceive.\[58\] Where a bank accepts checks not stamped as required by acts of congress it cannot later, in a suit in which they are involved, object to their being offered in evidence because they were unstamped.\[59\]

_Receipt of deposits when insolvent.\[60\]--In Kansas directors are liable for deposits received after insolvency, where they have failed to inquire into the affairs of the bank as required by statute, even though such an examination would not have revealed the insolvent condition of the bank.\[61\]_

41, 42, 43. Josiah Morris & Co. v. Alabama

Carbon Co. \[Ala.\] $6 So. 764.

44. See 1 Curr. L. 309.

01. National Revere Bank v. National Bank of the Republic, 172 N. Y. 102, 64 N. E.

01.

01. Bank of Bay Biscosyne v. Mononghaela

Nat. Bank, 126 P. 436.

47. National Revere Bank v. National Bank of the Republic, 172 N. Y. 102, 64 N. E.

799: Howard v. Bank of Metropolis, 88 N. Y. 8.

8. 1070.

1. A bank received an indorsed draft for collection which it forwarded to the drawer and received in payment drafts upon itself for which there was no money on deposit. It protested these drafts and forwarded them to the drawer of the original paper. In the meantime the drawer of the original draft became insolvent. National Revere Bank v. National Bank of the Republic, 172 N. Y. 102, 64 N. E.

64 N. E. 799.

49. Where maker died shortly after maturity of note his estate not having been administered on and there being evidence that the full amount of the note could not be collected therefrom, held pasey need not prove insolvency. Howard v. Bank of Metropolis, 88 N. Y. 8. 1070.

01. National Revere Bank v. National Bank of the Republic, 172 N. Y. 102, 64 N. E.

01. Where at maturity and for a month thereafter, the drawer had property open to attachment to an amount larger than the draft, and before the draft was returned failed and made an assignment, held, drav-ar's damages are not remote as a matter of law. Lord v. Hingham Nat. Bank \[Mass.\]

71 N. E. 312. It is evidently not the custom of banks to retain no protest items after maturity. Id.

52, 53. Bank of Commerce v. Miller, 105

11. App. 224.

01. National Revere Bank v. National Bank of the Republic, 172 N. Y. 102, 64 N. E.

01.

01. See 1 Curr. L. 310.

01. Indictable under Rev. St. $ 5440. Scott

01. V. D. S. (C. A.) 130 P. 429.

01. Within the meaning of Rev. St. $ 5209

\[U. S. Comp. St. 1901, p. 3497\]. U. S. v. Young, 128 F. 111.

128 F. 111.

58. U. S. v. Young, 128 F. 111.

01. Bryan v. First Nat. Bank, 205 Pa. 7.

01. A. 480.

01. See Deposts received after insolvency, supra. See 1 Curr. L. 310.

01.

## 10.8 Bank collections of forged paper.

### 1.

\_What law governs.--\_The laws of the place of the performance of the immediate acts constituting the mistaken or wrongful payment of forged paper by a collecting bank govern its liability therefor to the true owner.1

\_Name of maker or drawee forged.--\_As a general rule, the drawee of a check or draft is charged with knowledge of the handwriting of its customer or correspondent, the drawer, and, if the drawee pays the paper, it must stand the loss if the paper was a forgery, and has passed into the hands of a bona fide purchaser.2 But this rule is not available to the payee, who took the check from a stranger without inquiry, though in good faith, and himself indorsed it, and thereby gave it currency and credit; since the indorsement by the payee gives the paper the appearance of genuineness, and tends to divert the drawee from scrutiny and inquiry.3 This modification of the general rule is of general application, and will relieve the drawee from liability to any party to the paper who has in any way contributed to the success of the fraud, or to the mistake of fact under which the payment was made.4 While it is true that the cashier is the general executive officer of the bank

Footnote 1: Readings by analogy from the rules

the signature of the drawer was forged.

determining what law governs the relation

Price v. Neal, 3 Burrows, 1255. To same between the depositor and the collecting bank, see Solver, Bank Collections, & 6.

a Massachusetts case, Holmes, C. J., in hold-in dedling the liability of a London bank

ing that the drawee bank cannot recover which had a branch in Paris, where a forged

back money paid through the clearing house instrument was paid, the court said: "Collecting"

to a collecting bank, on a forged check

tion had to be obtained by acts done partly

payable to cash and unindexed, on the

in Paris and partly in England, and as soon

about that it was charged with knowl-as the person carrying out these acts reached

edge of the signature of the drawer, and

England, he came under English law, and

that, under the evidence, it could not have

anything done by him subsequently, if it

mounted to a wrong, must be justified, if

said: "The plaintiff" argument is directed

at all, by English law. "

- If the individual presented it for payment in England, and received payment there, he would

to proving that we should not adopt the rule

by both those acts have committed what

amounts to conversion in English law. Upon

not recover back the money paid. We are

analysis it will be seen that those acts were

aware that this rule has been questioned by

done by the French bank.--\_It is immaterial

whether by travelling to England or by

or nearly universal, acceptance, that we shall

means of third persons.--and the question is

go into no extended discussion. * * * whether, according to English law, the trans.

Probably the rule was adopted from an action amounts to a conversion." La Cave

impression of convenience, rather than for

& Co. v. Credit Lyonnals, 66 Law J., Q. B.

my more academic reason; or perhaps Lord

226. See. also. Klehrvort v. Le Comptor

Nationale d'Escompte de Paris, 63 Law J.,

& Q. B. 674 \[1894\] 2 Q. B. Div. 157.

& Northwestern Nat. Bank of Chicago v.

presents negotiable paper for payment

Bank of Commerce of Kansas City, 107 Mo.

402, 410, 17 S, W. 982, 15 L. R. A. 102; Stout

and that the drawee pays at his peril." Ded-

v. Benoist, 39 Mo. 277, and cases cited;

United States Nat. Bank v. National Park

Bank, 59 Hun, 495, 13 N. Y. S. 411, affirmed

(on opinion of court below) in 129 N. Y.

& 647, 29 N. E. 1028; Crawford v. West Side

Bank, 100 N. Y. 54, 2 N. E. 881; Oppenheim

v. West Side Bank, 213 Mine, 72, 50 N. Y. S.

& 148; First Nat. Bank of Carthage v. Yost,

58 Hun, 606, 11 N. Y. S. 862; 3 Am. & Eng.

& 222; Price v. Neal, 3 Burrows,

1354. The leading case on this question

states that it was incumbent on the drawee to satisfy himself "that the bill drawn upon

& Trust Co., 402, 411; 503, 411; 504, 412; 505, 413; 506, 414; 507, 415; 508, 416; 517, 518; 527, 537, 542; 543, 544; 556; 561, 562; 57, 581; 590, 591; 592, 593; 594, 595; 609, 596; 610, 597, 598; 620, 599, 630; 631, 646; 647, 650; 651, 666; 66 3. Cur. Law. BANK COLLECTIONS OF FORGED PAPER. 429

for whose acts it must stand as sponsor, yet, to create an estoppel against the bank by reason of his acts and representations as to forged paper, his connection with the transaction must be definitely shown.5 Under the rule, the drawee is only charged with knowledge of the signature of the drawer, and not with knowledge of the genuineness of the body of the instrument, as between himself and other parties having equal means of determining the existence of an alteration.5

_Indorsement of payee forged.--A bank which collects and pays to the deposits-ors thereof checks, payable to order, on which the indorsement of the payee had been forged before deposit in the bank, is liable to the payee for conversion of the checks, though it was ignorant of the forgery, and acted in good faith._? But this rule cannot be invoked by one who has been impersonated,\_8 _though it seems this_

certain bank for collection, went to the bank \[v. West Side Bank, 236 Misc. 722, 50 N. Y. S. on the day it was due, described and called 148: Metropolitan Nat. Bank v. Merchantar for the draft, and voluntarily paid it with-out further inquiry, the bank, which received \[g\] 711. App. 316; Firat Nat. Bank of Chil-no compensation for the transaction, and \[g\] 796, 3 N. E. T. 739.

\_Iiable to him for the amount thereof, both \[g\] 87. 47. 87. 244; Pickle v. Muse, 88 Tenn. where it appeared that the draft was de-posited by a stranger with instructions that, \[g\] 881, 12 N. W. 915; Chism V. Firat Nat. Bank of the work, \[g\] 88. 87. 887; if no one called to pay it before three \[g\] 89; Buckley v. Second Nat. Bank of Jersey protest, and plaintiff called and paid it a few minutes later, and the amount was \[g\] 89; Chicg St. 236; Salomon v. State Bank, 28 \[g\] 89; Misc. 324, 59 N. Y. S. 407. One whose prop-day. Stephenson v. Mount, 19 La. Ann. 295.

\_S. A forged certificate of deposit was sent \[g\] 88. 87. 887. 887.

### 130 Bank collections of forged paper. 3 Our. Law.

modification of the rule has been done away with by the section of the negotiable instrument act, declaring a signature which is forged or made without authority to be "wholly inoperative." In England, the liability of the bank is governed by statute.10 The payee of a check, by suing the bank, which collected and paid over the amount thereof on a forged indorsement of his name, for conversion of the check, affirms and ratifies the payment of the check by the maker.11 An indorser subsequent to the forged indorsement is liable over to the bank for the amount refunded.12

Footnote 10: https://www.hdl.gov/

\_Diligence in notifying parties.--\_The collecting bank must exercise reasonable diligence in notifying the holder or party from whom it received the paper of the forgery or alteration.13 But the bank is under no obligation to give notice of the person dealt with and intended as the payee |neness of the payee's Indorsement, and having received the proceeds, was chargeable well, 38 Jan. 60, 369; Clappen V. American with notice of the forgery, Green V. Pur-Nat. Bank of Kansas City, M. 2009, 501 Mar. Bank, 1 Ind., 270, 37 S. W. 50, and causes etlcd: Land Title, 6 The K. Cv. Vee, also, Mayer v. Clity of New York, 63 Northwestern Nat. Bank, 19 Pa. 23, 50 C. L. N. Y. 456, 457; Indig v. National City Bank, R. A. 75, and note collecting cases. 80 N. Y. 100, 105. B. See Tolman V. American Nat. Bank, 23 N. Bank of Commerce v. Union Bank, 3 R. L. 462, 52 L. R. A. 877, where the court N. Z. 320; Oppenheim v. West Side Bank, 22 holds that the rule at common law is not clear and that the negotiable instruments |l' it notifies the holder personally, on the law has abrogated it. |l' it notifies the holder personally, on the day it is itself notified of the fraud, and also |l'182, 82 N. providing that "where a banker informs him of the same fact by letter three in good faith and without negligence re- devys latent. Oppenheim v. West Side Bank, 23 N. 726, 50 N. Y. 8. 148. The English crossed generally or specialty to himself, |l' it is that "the holder of a bill is entitled to know, on the day when It becomes due, title there, the banker shall not incur whether it is an honored or dishored any Habilty to the true owner of the cheque by reason only of having received such payment," projects a bank collecting for a customer the amount of a crossed cheque, |l' it notifies the holder, on the following day, that it is on a forged indorsement of the payee's name, though at the time of receiving payment, and crediting it to the customer, his $y paid. Cockev s. Mastersm, 9 Barn. & C. account was overdrawn, and a part of the $y paid. Altier it notice was given on the day credit canceled the overdraft. Clarke v., when payment was made. Wilkinson v. London & Country Banking Co., 68 Law J., 3 Johnson, J. Barn & C. 452. On the question Q. B. 354. This section of the act is applique- of the difference between negligence in dis-ble, however, only in case the bank is dealt covering a forgery or alteration and negligibly with a $y enstomer; and a stranger to $y enstomer in the bank, whose only transaction with the $y enstomer in the bank is the passage on it of the forged in- instrument, is not a $y enstomer," within the $y enstomer, though resulting in $y enstomer who might, if sooner apprised, have collecting bank, if it pays amount of the paper to such stranger, $y enstomer, and recovered the $y enstomer to such stranger, $y enstomer, gives no right of action, and for true owner for conversion of the funds. La Cave & Co. v. Credit Lyonnals, 60 Law be mentioned. There is no duty imposed on J., Q. B. 226; Matthews v. Brown & Co., 10 one who receives a forged check from anti-Times Law R. 38 \[194\] $l' (3 Law J., Q. B. 294; 4); it to mean the crime. He receives it pre-Kleinwort v. Le Comptori National d'R-S-suming, as has a right to do, that all the complete de Paris, 63 Law J., Q. B. 674, 1894; 4) signatures and indorsements are genuine, 2 Q. B. Div. 197; Arnold v. Cheque Bank, 45 Law J., C. P. 562, 1 C. P. Div. 578.

In Salomon v. State Bank, 28 Misc. 324, 59 N. Y. S. 407; White v. Sweeny, 4 Daly |l' (N. Y.) 223.

12 Where plaintiff in good faith took a check on a forged indorsement of the payee, or where, from the surrounding circum- and indorsed it in blank and delivered it to defend bank for collection, and re-ceived the proceeds from the bank, the lat-aroused, and his scrutiny challenged. Not ter, on discovering the forgery and refund- so $y enstomer, for then the duty is ining the money to the drawee bank, may re-forgery of an indorsement of the payee's name to one who had indorsed the forged paper in blank to the bank for collection, and had received the proceeds.\[14\]

_Indorsement of forged paper by bank._--If the bank indorses, without qualification or restriction, paper to which the signature of the maker or drawer was forged, it is liable to a bona fide holder on its implied warranty of the genuineness of the instrument,\[15\] and the genuineness of the signature of the maker or drawer.\[16\] The Federal courts, however, hold that the general indorsement of a collecting bank does not imply a warranty that a prior indorsement is genuine.\[17\] It has been held that indorsing "for collection" relieves the indorsing bank from liability to the drawee bank which paid the draft.\[18\] Presentment to the drawee through the clearing house is not equivalent to an indorsement.\[19\]

_Charging back amount._--A collecting bank which has credited the amount of a check, but has remitted no money on account thereof, may charga back the amount thereof on discovering that it had been raised before it was delivered to the bank.\[20\] Where the bank has not been guilty of negligence with respect to altered paper, and the holder had notice of facts putting him on inquiry, the bank will be protected.\[21\] While it may be true that a bank would be estopped to claim a right to charge back the amount of raised paper, if its cashier had represented to the holder that it was good, and the holder had acted on this representation to his injury, a mere statement by the discount and collection teller of the collecting bank, that the check was "all right," has been held not to estop the bank.\[22\]

jury shown to have been actually incurred."

Third Nat. Bank of New York City v. Merchants' Nat. Bank, 76 Hun, 475, 27 N. Y. B. 1070.

14. Green v. Purcell Nat. Bank, 1 Ind. T. 270, 37 S. W. 50, and cases cited; Birmingham Nat. Bank v. Bradley, 103 Ala. 109. 15 So. 440, and cases cited. See, also, National Bank of North America V. Bangs, 106 Mass. 441.

01. Crosby v. Wright, 70 Minn. 251.

01. Brown v. Ames, 59 Minn. 476; Condon v. Pearce, 43 Md. 83; First Nat. Bank of Chicago v. Northwestern Nat. Bank, 40 Ill. App. 640; Turnbull v. Bowyer, 40 N. Y. 456. Under the negotiable instruments laws these rules obtain, though the paper had been previously indorsed to the bank restrictively for collection. See Selover, Bank Collections, $\\lx@sectionsign$53.

01. A pension draft, to which the name of the payee had been forged after her death, was indorsed "for collection" to defendant bank by the initial bank, and, after having been indorsed generally by defendant, was paid to it by the United States, and the money remitted to the initial bank. It was held that defendant bank was not liable to the United States for the amount of the draft; the court stating that, "In such cases, the indorsement by the collecting agent, who has no proprietary interest, does not import any guaranty of the genuineness of all prior indorsements, but only of the agent's relation to the principal, as stated upon the face of the draft; and as this relation is evident upon the draft itself, the payor cannot claim to have been misled by the indorsement of the agent, or any right to rely on that indorsement as a guaranty of the genuineness of the payee's indorsement." United States v. American Exchange Nat. Bank, 70 F. 232, distinguishing Onondaga County Sav. Bank v. United States (C. C. A. 64 F. 703.

01. Indorser was a bona fide purchaser. Northwestern Nat. Bank of Chicago v. Bank of Commerce of Kansas City, 107 Mo. 402, 412, 17 S. W. 982, 15 L. R, A. 102.

01. Since it is not made for the purpose of transfer; but is merely equivalent to a presentation by the bank in person. Deddiam Nat. Bank v. Everett Nat. Bank \[Mass.: 59 N. E. 62.

01. Birmingham Nat. Bank v. Bradley, 103 Ala. 109, 15 So. 440. This rule is in harmony with the general rules as to the right to charge back a credit given for worthless paper. See Selover, Bank Collections, $\\lx@sectionsign$15.

01. Defendant's cashler advised plaintiff, solely because of the suspicious nature of the transaction, to have nothing to do with a check, though it was apparently good and regular. The bank took the check for collection and gave plaintiff credit, and it was paid by the drawee bank. It had been altered so skillfully that it could not be detected by examination, and was, discovered only when the drawer's account was balanced at the end of the month. It was held that defendant bank was not guilty of negligence, and that, on the discovery of the alterations, it was justified in refunding to the drawee bank, and charging back the amount against the account of the plaintiff.

Rapp v. National Security Bank, 136 Pa. 426, 20 A. 608.

22. Neither party suspected an alteration, The duties of such teller relate only to the discount and collection of commercial paper, and his statement must consequently be limited to the fact of its payment by the drawee, and cannot be extended to the genuineness of the body of the check. Oppenheim v. West Side Bank, 22 Misc. 722. 60 N. Y. B. 1 \_Recovery back of payments.--\_The general rule is that money paid upon a raised check may be recovered back, providing the one seeking to recover has not, by his careless or negligent act, injured or prejudiced the rights of the person from whom recovery is sought," and since a collecting bank, to which the payee of a forged or raised check indorsed the same, and from which he received full face value therefor, is under no obligation to such payee to discover the fraud," it may recover back the money so paid." Where the collecting bank has received money by mistake, as under forged or raised paper, and has paid it over to its principal before receiving notice of the forgery, or other fraud inducing the payment, it cannot be compelled to repay." If the collecting bank has not paid over any money or made an actual remittance to its principal, but has merely credited to it the amount of the paper, which credit has never been drawn against, the collecting bank is liable as for money paid to it under mistake." Each of several successive indorsers of a bill, who have successively paid money thereon by mistake, the name of the first indorser having been forged, may recover from his immediate indorser." Funds obtained by forgery cannot be followed into the hands of an innocent person who has received them from the forger in payment of a debt." A collecting bank may obligate itself to pay the difference between the original 3 Cur. Law. BANK COLLECTIONS OF FORGED PAPER. 433

amount of a draft and the amount as fraudulently altered and raised, by an offer to the drawer bank, accepted by it, to pay such difference if the draft was returned with an affidavit of the true amount, and the matter not made public, which conditions were all complied with by the drawer,30 but an agreement of this kind is re-scinded by a direction from the drawer to either pay the difference as agreed, or return the draft and affidavit, followed by a return thereof, together with a refusal to pay.31 .Where the drawee paid, by mistake, a fraudulently raised draft, to a bank holding it for collection, it may sue such bank for the overpayment, after a demand and a refusal to refund, without tendering back the paper itself.32 The certification by the drawee bank of a draft merely vouches for the genuineness of the signature of the drawer, and the existence of sufficient funds of his at the bank to pay the draft. It does not warrant the genuineness of the body of the instrument, and, in case the draft was raised before certification, will not prevent the drawee bank from recovering the difference between the original and altered amount from a bank to which it paid the amount without knowledge of the alteration.33 Where the money is received on forged or raised paper by a collecting bank ostensibly as owner, without disclosing its true relation to the paper as bailee or so-called agent for collection, it is uniformly held accountable as for money re-ceived by mistake.34

_Ratification or waiver_ may relieve the bank of liability.35

30. National Bank of Commerce v. Manufactures' & Traders' Bank, 122 N. Y. 367, 25 N. E. 385. 385. 391. National Bank of Commerce v. Manufactures' & Traders' Bank, 122 N. Y. 367, 25 N. E. 385. On this state of facts, an action for money had and received could not be maintained by the drawer bank against the collection bank. Id.

01. Metropolitan Nat. Bank v. Merchantar-Nat. Bank, 182 NII. 367, 771 III. App. 316, affirmed. See, also, Brewster v. Burnett, 125 Mass. 68, where it was held that a purchaser of counterfeit United States bonds need not return them before suing for the amount paid therefor. To same effect is Kent v. Bornstein, 12 Allen \[Mass. 342, with regard to the return of a counterfeit bank bill\].

01. Metropolitan Nat. Bank v. Merchantar-Nat. Bank, 182 NII. 367, 65 N. E. 360, affming T7 III. App. 316. On effect of certification of check, in general, see Merchantar' Bank v. State Bank, 10 Wall. \[U. S. 804, 647. As to Hability of bank after certification of raised check and subsequent state-nent to a purchaser that the certification was good, see Clews v. Bank of New York National Banking Ass'n, 114 N. Y. 70, Recovery in such cases be based on the double ground of mistake and want of considera- tion. Metropolitan Nat. Bank v. Merchantar' Nat. Bank, 182 III. 367, 65 N. E. 360, affming T7 III. App. 316.

01. A collecting bank, which was the last of several indoresers of a draft payable to order, the first of whom was ostensibly the payee whose name had been forged, having received payment from the drawe on pre-sentment without disclosing its agency, must pray the amount as money received by mis- take on an instrument to which it had no profile of the for-gery for two months after it had turned out by a collection bank of Agency by a collection
    BANKRUPTOX.

**1.** Amendatory Acts and General Orders (454).

**2.** Supervision of State Laws (434).

**3.** Oceansion for Proceeding and Acts of Bankrupt (435).

A. In General (435).

B. Disposition of Property with Intent to Hinder, Delay, or Defraud Creditors (436).

**4.** A Preferential Transfer of Property (436).

**5.** A Preferential Transfer of Property (436).

D. Suffered or Permitted, While Insolvent, the Obtaining of a Preference Through Legal Proceedings (437).

**6.** General Assignment (437).

**7.** Admitted in Writing Insolvency and Willingness to be Adjudged a Bankrupt (438).

**8 4.** Persons Who May Be Adjudged Bankrupt and Who May Pettition (438).

**8 5.** Procedure for Adjudication (440).

**8.** In General (440).

**8.** Voluntary (441).

**8.** Protetion and Possesion of the Property Pending the Appointment of Trustee Receivers (444).

**8 7.** Creditover Meetings; Appointment of Trustee; Removals (445).

**8 8.** Compositions (445).

**8 9.** Property and Rights Passing to Trustee (446).

A. Particular Kinds of Property or Rights (446).

**8.** Nature of Trustee's Title In General (449).

**8.** The Trustee Take Title Free From Llens (450).

**8.** Whether Chattel Mortgages (452).

**8.** Preferential Transfers (453).

**8.** Preferential Paymente (457).

**8 10.** Colieestion, Reduction to Possession, and Protection of Property (458).

**8.** Discovery (458).

**8.** Compelling Surrender by Bankrupt (459).

**8.** Property In Possession of Officer Appointed by State Courts (460).

**8 1.** _Amandatory acts and general orders._**2--**The amendatory act of 1903**5** does not apply to bankruptcy cases proper pending at the time of its passage,\*\*64 \*\*it covers acts committed prior to the date of its passage, the action not being pending at that date,\*\*93 \*\*and its application is not confined to rights of action subsequently arising, but is available to enforce existing rights of action.\*\*64 \*\*The general orders in bankruptcy have the same force as a provision of the bankruptcy act,\*\*64 \*\*and are made under an express constitutional delegation of power.\*\*65 **S 2.** \_Supersession of state laws.\_65--\*\*The national bankruptcy act does not apply to any act of bankruptcy occurring before July 1, 1898,\*\*76 **and on its passage at**

**8.** See 1 Curr. L. 811.

**8.** Act Cons. Feb. 5, 1903 \[32 Stat. 801\].

**8.** In re Docker-Poster Co., 123 F. 190;

**8.** Does not apply to a\*\* edit brought by a trustee. Pond v. New York Nat. Exch. Bank, 124 F. 992.

**8.** Obtaining property on credit on a materially false statement in writing made more than four months prior to the date of the amendatory act, and about six months (436).

**8.** See 1 Curr. L. 811.

**8.** Let Cons. Feb. 5, 1903 \[32 Stat. 801\].

**8.** The Projecting of Trustee's Title and Postension (467).

**8.** Restraining Interference (467).

**8.** Actions Affecting the Trustee's Title (467).

**8.** In Rights of Trustee in Pending Actions by and Against Bankrupt; Jarnside- tion of State Courts (468).

**8.** Management of the Property and Regulation to Money (469).

**8.** Claims Against the Estate and Proof and Allowance (471).

**8.** Claims Provable (471).

**8.** Proof of Claims (473).

**8.** Contest of Claims (474).

**8.** Therender of Preferences and Effect thereof (475).

**8.** Priorities (477).

**8.** Expenses of the Proceeding (479).

**8.** Expenses of Receivers and Assignees (470).

**8.** Appointed Prior to Bankruptcy Proceedings (480).

**8.** Distribution of Assets (481).

**8.** Exemption (481).

**8.** In Section (481).

**8.** Property and Rights Passing to Trustee (446).

**8.** Particular Kinds of Property or Rights (446).

**8.** Notary of Trustee's Title In General (449).

**8.** The Trustee's Title Free From Llens (
Once suspended and superseded all state insolvency laws except as to cases and persons not within its purview,71 hence a state insolvency law permitting a corporation to become a voluntary bankrupt is not suspended.72 The state courts have the right to take charge of and distribute a debtor's property assigned for the benefit of creditors, until the assignment has been impeached as an act of bankruptcy,73 but bankruptcy proceedings being instituted, the right of any claim against the bankrupt's estate to the preference given by such deed of assignment is defeated.74

Footnote 71: In re F. A. Hall Co., 121 F. 932. Act 710, 47 Lew. Ed. 1165. The operation of the of 1898 provides a system of bankruptcy for particular cases only. Singer v. National pended by the national bankruptcy act. Hildestad Mfg. Co. \[N. J. Eq. 155 A. 868.\] Island v. Burlington Shoe Co. \[Vt.\] 56 A. 383. Kentucky St. 1899, 8 44, providing that title to property fraudulently. conveyed by an assignor for the benefit of creditors shall vest in the assignee, and 81 1910, 1911, making a preferential transfer in contemplation of insolvency operate as an assignment for the benefit of creditors and subjecting such transfer to the control of equity upon the peeling of any one interested does not consultate.an insolvency act and is not superseded by the bankruptcy law. Downer v. Porter, 26 Ky. L. R. 571, 76 S. W. 135. Chapter 67. Sess. Laws 1889 of New Mexico, is not a bankruptcy law. Grunsfeld Bros. v. Brown- ell \[N. M.\] 76 F. 310. NOTE. Effect of bankruptcy law on state insolvency laws: By the great weight of authority such act suspends the operation of the state law and proceedings cannot be instantiated under the latter. Foley-Bean Lum- to $29,630, and his liabilities to $32,500 is in- ber Co. v. Sawyer, 76 Min. 118, 78 N. W. solvent. Des Moines Bav. Bank v. Morgan 1038; In re Etheridge Furnture Co., 92 F. 329. Some cases hold that proceedings under pany owning buildings appraised at $100,000, state laws concerning voluntary assignments and which could not be replaced for $250,000, are suspended. In re Smith, $2 F. 135; In also property, goods on hand and real estate re Etheridge Furnture Co., 92 F. 329.--From not to State v. Superior Court for King of $31,200 is not insolvent within the mean-Count \[Vwah.\] 45 L. R. A. 177. See 1 Cur. In 312. 72. Keystone Driller Co. v. Superior Court of San Francisco, 138 Cal. 738, 72 F. 388. 73. Assignee in state court may sue on a note given for goods bought of the insolvent, only be sold for $76,000. Empire State Trust no proceedings having been instituted by the trustee in bankruptcy to recover the goods or the note as part of the bankruptcy.74 A. In general.--state. Lucas v. Lucas' Assignee, 25 Ky. L. R. 832, 76 S. W. 371; Jensen-King-Byrd Co. v. Williams \[Vwah.\] 76 F. 934; Durges v. veryvee, etc., with intent to defraud, Muse, 117 Vbis. 399, 94 X. W. 365; Randolph binder, or delay the creditors. In re Dosch-& Randolph v. Scruggs, 190 U. S. 533, 23 S. Ct.

the state law being different from insolvency under the bankruptcy act.\[91\] An alleged bankrupt's stock being partially destroyed, it is competent on the issue of insolvency to show the value of his stock before, and after the partial destruction.\[92\]

(SS 8) _B. Disposition of property with intent to hinder, delay, or defraud creditors.\[98\]_--The intent to hinder, delay, or defraud creditors must exist in order to render the transfer, concealment, or removal of the property an act of bankruptcy,\[94\] but the intent may be inferred from the natural and necessary result of the transfer,\[95\] as where the property is conveyed without consideration.\[96\]

(SS 3) _C. A preferential transfer of property while insolvent.\[97\]_--In order that a preferential transfer of property may amount to an act of bankruptcy the debtor must have been insolvent at the time,\[98\] a preference must have been intended,\[99\] and the transfer must have been to a creditor.\[90\] The transfer amounting to a preference, the law presumes that it was done with the intent to prefer such creditor,\[91\] and in determining whether or not a preference was given, the whole transaction must be considered.\[99\] A conditional transfer of property as by mortgage\[98\] is a transfer within the meaning of this section. Conveyance of property by a debtor to his only creditors is not an act of bankruptcy,\[94\] nor can one not a creditor at the time of the conveyance attach the same.\[95\] Payments of comparatively small sums of money by an insolvent corporation to each of a number of its creditors, being made in the usual course of business, do not raise a presumption of an intent to prefer such creditors over other creditors.\[96\]

**51.** In re Doscher, 120 F. 408.

**52.** An alleged bankrupt's stock being partially destroyed by fire it is competent on the issue of insolvency to show, in the absence of his books and the insurance not being adjust-ed, the value of the goods before the fire and after, and to contradict or impeach his own estimates or appraalsals. Bogen & Trummel v. Protter (C. C. A.). 129 F. 533.

**53.** See 1 Curr. L. 312.

**54.** This intent to defraud must be disintegrated from the intent to prefer necessary under the next subdivision of the act. Thompson v. Fairbanks, 75 Vt. 361, 56 A. 11.

Selling goods, under a threat by a creditor to institute criminal proceedings if the debt- or did not pay up, to realize money to pay the debt, which money the creditor refused to receive and started criminal proceedings, is not a sale with intent to defraud. In re Belknap, 129 F. 646. A conveyance made by a debtor in good faith whether for an antecedent or present consideration does not constitute an act of bankruptcy, though its effect may be to hinder or delay creditors by removing from their reach assets of the debtor.

Lansing Boller & Engine Works v. Ryerson \[C. C. A.\] 128 F. 701. See 1 Curr. L. 312.

**55.** Insolvent corporation transferred business and property to another corporation in exchange for stock in the latter. Bennamellarin Mfg. Co. v. Standard Spoke & Nipple Co. \[C. C. A.\] 131 F. 215.

**56.** Gray v. Chase, 184 Mass. 44, 68 N. E.

**576.** See 1 Curr. L. 312.

**58.** They Wagon Works v. Vastbinder, 130 F. 232.

**59.** Thompson v. First Nat. Bank \[Miss.\] 36 So. 65. Evidence that an insolvent debtor within four months of the films of the petition in bankruptcy paid several bills maturing is insufficient to establish an act of bankruptcy,\[94\] the thereby intended to give preferences, or\[95\]. An accommodation indoriser is such a creditor,\[91\]. In re Doscher, 120 F. 408.

contemplated bankruptcy, nor that the creditors receiving such payments did not thereafter extend credit to him for larger amounts.

Clark v. Henne & Meyer \[C. C. A.\] 127 F. 283.

**90.** An accommodation indoriser is such a creditor,\[91\]. In re O'Donnell, 131 F. 150. The uncorrorboard sectionm of a single wit-witness to a declaration made by an alleged bankrupt that the vendee of property conveyed by him was a creditor is insufficient to prove an act of bankruptcy, where the bankrupt testified that he was not indebted to the vendee, and received full payment for the land, and two other witnesses testified they saw the money paid. In re Foster,\[126\] F. 1014.

**91.** An answer in Involuntary proceedings admitting that the bankrupt was insolvent and had sold property within four months prior to the filing of the petition and with the proceeds thereof paid certain debtors is an admission of a preference constituting an act of bankruptcy. Brinkley v. Smith-wick, 126 F. 636.

**92.** Whole contract must be construed as to whether or not the bankrupt was the owner of the goods or the agent of the sell-er. Troy Wagon Works v. Vastbinder, 130 F.

**232.**

**93.** On real estate. In re Edelman \[C. C. A.\] 130 F. 700. A mortgage made by a debtor upon his entire property does not constitute an act of bankruptcy in a state where such mortgage creates a l 3 Cur. Law. BANKruptcy $ 3E. 437

cording being essential to the validity of an assignment of future earnings, such an assignment, by a debtor to secure a creditor, being recorded within four months of the filing of the petition constitutes an act of bankruptcy."

(SS 3) \_D. Suffered or permitted, while insolvent, the obtaining of a preference through legal proceedings."--\_In order to adjudge one a bankrupt on the ground of his suffering or permitting a creditor to obtain a preference through legal proceedings, without discharging the same, a preference must have actually resulted," legal proceedings must have been instituted,1 and a judgment must have been rendered therein,2 and unsuccessful resistance by the debtor is unavailable as a defense to the bankruptcy proceedings.8 A debtor allowing his creditor to levy upon his property, "suffers and permits" the obtaining of a preference through legal proceedings,4 though allowing one to obtain a statutory lien enforceable without legal proceedings is not an act of bankruptcy," nor is the due enforcement of liens acquired more than four months before the filing of the petition in bankruptcy.6 It is not the mere obtaining of a preference through legal proceedings while insolvent that makes the debtor liable as a bankrupt, but it is the failure on his part to have the same vacated or discharged within five days before a sale or final disposition of the property.7

(SS 3) _E. General assignment._"-Making a general assignment for the benefit of creditors is an act of bankruptcy, regardless of the debtor's solvency." A direct transfer to creditors, without the intervention of a trustee duly appointed, is not an assignment for the benefit of creditors.10

Prior to the amendment of 1903 _application for a receiver_ did not constitute an act of bankruptcy,11 and this provision is not retroactive.12 It is immaterial whether the receiver is temporary or permanent,13 but he must have been appointed because of insolventy.14 The filing of a bill in a collusive suit for the appointment of receivers, the proceedings being then discontinued, does not prevent the appointment of receivers in a subsequent suit for the same purpose, constituting an act of bankruptcy.16 A corporation against whom creditors have filed a bill in a state court asking for the appointment of receivers, admitting in its answer the facts alleged and consenting to the relief prayed, the receivers being appointed, has committed an act of bankruptcy.16 The record of the court ap pointing the receivers is the best evidence of their appointment, and the reason therefor.17

(SS 3) \_F. Admitted in writing insolucency and willingness to be adjudged a bankrupt.18--\_The writing need not be made for the sole and express purpose of being adjuded a bankrupt, an admission in an answer to an involuntary proceeding is sufficient.19 The admission for a corporation may be made by its board of directors,80 and the appointment of receivers for the corporation does not deprive them of this power.21 Solvency is no defense to proceedings based upon this ground.22

SS 4. \_Persons who may be adjudged bankrupt and who may petition.23--\_A natural person engaged chiefly in farming or the tillage of the soil cannot be adjudged an involuntary bankrupt,24 but a corporation so engaged is not exempt.25 A corporation cannot be adjndged an involuntary bankrupt by reason of its having a principal business which is beyond the authority given by its charter and within the scope of the bankruptcy act.26 A corporation not of the excepted class is liable to be adjndged an involuntary bankrupt before actually engaging in business,27 or after it has ceased to do business.28 A corporation engaged principally in manufacturing or trading may be adjuded an involuntary bankrupt,29 as where it is engaged in building ships,29 buildings and bridges,28 or in raising a 17. Blue Mountain Iron & Steel Co. v. Portner \[C. C. A.\] 181 F. 57. 18. See 1 Curr. L. 312, n. 17. 26. An admission in an answer to an involuntary proceeding by the bankrupt that ble to bankrupt on the ground that its principal business is in fact that of a trader. the debts in full, and is willing to answer fully at any time the court may designate, 17. 139. 27. A corporation organized for the purpose of manufacturing paper from wood pulp had purchased woodland and other property, but had never in fact started its factory. Eld could be adjused an involuntary bankrupt. In re White Mountain Paper Co., 127 F. 180; arlirmed in White Mountain Paper Co., 127 F. 181; arlirmed in White Mountain Paper Co., 127 F. 643. See 1 Curr. L. 313, n. 35. 28. Receivers were appointed by a state court for a manufacturing corporation before the filting of the petition; held subject to the bankrupt act. In re C. Mosench & Sons Co. \[C. C. A.\] 130 F. 685. Bombrupty proceedings having been begun against a corporation, a degree entered in another state dissolving the corporation does not affect the bankruptcy proceeding. In re White Mountain Paper Co., 127 F. 180; arlirmed in White Mountain Paper Co., 127 F. 181; arlirmed in White Mountain Paper Co., 127 F. 643. 28. 29. Finding of a referee that a corporation was "extensively" engaged in trading falls short of the statutory word "principally" and will not justify in adjduction in bankruptcy. Philpot v. O'Brien \[C. C. A.\] 126 F. 167. 168. 30. Columbia Ironworks v. National Lead Co. \[C. C. A.\] 127 F. 99. The corporation constructed boats, and parts and furniture for vessels, such as boilers 3 Cur. Law. BANKruptCY SS 4.

crop and manufacturing it into an article of merchandise.\[12\] A wage earner,\[33\] a building and loan association,\[34\] a corporation conducting a public warehouse,\[35\] a circulating library,\[36\] a private bank,\[37\] a brokerage business,\[38\] or that of a common carrier,\[39\] cannot be adjudged an involuntary bankrupt. That the bankrupt is a married woman does not exempt her from involuntary proceedings.\[40\] A partnership cannot be adjudged a bankrupt without all its members being adjudged bankrupts,\[41\] but the firm is not necessarily bankrupt because all of its partners are,\[42\] and the insanity of one partner does not defeat the proceedings.\[43\] The debtor being prima facie incapable of being adjudged an involuntary bankrupt, the burden of proof is upon the petitioning creditors.\[44\]

\_Voluntary proceedings.\[45\]--It is not obligatory on debtors to voluntarily go into bankruptcy.\[46\] A voluntary subsequent proceeding for the sole purpose of obtaining a discharge to which a prior proceeding has conclusively determined the bankrupt is not entitled, cannot lawfully be maintained,\[47\] and the bankruptcy court has power to dismiss such proceeding, even after adjudication.\[48\]

\_Involuntary proceedings.\[49\]--A creditor in order to maintain a petition must have been a creditor at the time of the commission of the alleged act of bankruptcy,\[40\] and must still own his claim against the estate.\[61\] The number of creditors necessary to the petition should be reckoned as of the date of the petition,\[37\] a number of claims becoming merged in one person, such person counts only as one

32. One raising sugar came and manu-

facturing it into sugar, syrup, etc., is en-

gaged chiefly in manufacturing, not farming.

This distinction, however, is immaterial, as

a farming corporation may be adjudged an

as involuntary bankrupt. In re Lake Jackson

Sugar Co., 129 F. 640.

33. One who owns a team, wagons and a

plove with which the worked by the day for

different employers as he could obtain work,

earning usually from $9 to $15 per week, and

working alone when not able to find work

for his team is not an independent contractor, but a wage earner. In re Xoder, 127

F. 844.

84. In this case organized to accumulate a

fund from contributions of its members, from

which loans were to be made to assist mem-

bers in purchasing real estate, the profits

of which business were divided among its

thembers. In re New York Building-Loan

Banking Co., 127 F. 471.

35. In re Pacific Coast Warehouse Co., 123 F. 149.

01. In re Parmelee Library \[C. C. A.\] 120

F. 235.

37. Incorporated under the laws of a state.

In re Surety Guarantee & Trust Co. \[C. C. A.\] 121 F. 73.

38. Neither as a trader nor as engaged in

mercantile pursuits. In re Surety Guarantee

& Trust Co. \[C. C. A.\] 121 F. 73.

39. The purchase by a common carrier of

horses, hay, wagons, harnesses, etc., neces-

sary to carry on its business, and the occasional incidental sale of horses and wagons

and the occasional boarding of horses, does

not make it a trading or mercantile oom-

pany. In re H. J. Quimby Freight Forward-

ing Co., 121 F. 139.

40. A married woman engaged in business

on her own account, and owing business ob-

ligations of the amount required by the

bankruptcy law, for which her separate pro-

gurtly le liable in equity, may be adjudged

an involuntary bankrupt. MacDonald v.

facturing it into sugar, syrup, etc., is en-

gaged chiefly in manufacturing, not farming.

This distinction, however, is immaterial, as

a farming corporation may be adjudged an

as signature states, the firm is not insolvent

involuntary bankrupt. In re Lake Jackson

and cannot be adjudged a bankrupt. In re

Sugar Co., 129 F. 640.

38. One who owns a team, wagons and a

plove with which the worked by the day for

different employers as he could obtain work,

earning usually from $9 to $15 per week, and

41. If the members are able to pay their

with a

dwn and firm debts, whether out of joint or

a farming corporation may be adjudged an

and cannot be adjudged a bankrupt. In re

Sugar Co., 129 F. 640.

42. In re Mercur \[C. C. A.\] 122 F. 844.

01. In re L. Stein & Co. \[C. C. A.\] 127 F. 547.

01. The burden of proof rests upon the

profiting creditors to show that a corporation chartered for the purpose of transacting

the business of a common carrier is a trading

F. 844.

715 F. 167.

45. See 1 Curr. L. 313.

01. Summers v. Abbott \[C. C. A.\] 122 F. 36.

01. Bankrupt had failed to apply for a ereditor," and creditors not joining in the petition should be counted." A creditor misled into signing an involuntary petition in bankruptcy may withdraw."55 Creditors joining in an involuntary petition must have provable claims," though the claims need not be allowable," nor liquidated." While there is a conflict as to whether or not a creditor who has obtained a preference can file an involuntary petition," still it is conceded by all authorities that a preferred creditor may surrender his preference and thus qualify," and, as there is no one, prior to the appointment of a trustee, to whom he can surrender it, it is sufficient if he offers to do so in the petition," or in the course of the proceedings."22 One may become estopped to join in the petition by inducing," or receiving benefits and assenting to the commission of the act of bankruptcy."44

SS 5. _Procedure for adjudication." A. In general._--Jurisdiction of the subject-matter in bankruptcy proceedings is conferred by law, jurisdiction of the person in involuntary proceedings is acquired by filing a petition and serving a copy of it, with a subpoena upon the alleged bankrupt."45 The jurisdiction of the bankruptcy court depends upon alleged bankrupt having a bona fide residence within the district," the whereabouts of his property is immaterial," and it having jurisdiction of

SS 5. An assignee for the benefit of cred- of the filing of the petition. In re Hornstein, litors purchasing claims with the funds of a debtor, anch claims become either merged (60, 61, 62, In re Vastbinder, 126 F. 417, in the assignee as a single claim in equity or are to be regarded as extinguished, and hence though split up by the assignee and assigned to various parties, which assigneement is ratified by the original assignor, are to be treated as one claim in determining the number of creditors necessary to an involuntary petition. Lighten v. Kennedy \[C. C. A.\] 129 F. 137.

SS 5. _Creditors induced not to join in the petition by the voluntary assignee of the alleged bankrupt, acting in behalf of cred- tors and not as an agent of the creditor_

Sections the petition, should be counted. In \[C. C. A.\] 131 F. 201. Creditors of a corpora-

SS 5. _The proper officers of a corporation_

authorized its agent to assert to an assignment by the debtor for the benefit of creditors. The agent assented, but not under bankruptcy, based on the appointment of the seal, having no authority to execute any instrument under seal. The corporation, forgetting the assent, jolned in the petition, then it ratified the act of its agent under seal and sought to withdraw from the petition. Held, as it joined under a misunderstanding of fact, it should be allowed to withdraw. In re Coburn, 126 F. 213; affirmed in \[Motion\] v. Coburn \[C. C. A.\] 131 F. 201. Creditor receiving a preference which has not been surrendered cannot join. In re Fishblate Clothing Co., 126 F. 986. Creditor having received a preference can nevertheless join in a petition for involuntary bankruptcy, though his claim cannot be allowed until he surrenders the preference. In re Hornstein, 127 F. 266. Creditor having received a preference can file an involuntary petition," still it is conceded by all authorities that a preferred creditor may surrender his preference and thus qualify," and, as there is no one, prior to the appointment of a trustee, to whom he can surrender it, it is sufficient if he offers to do so in the petition," or in the course of the proceedings."22 One may become estopped to join in the petition by inducing," or receiving benefits and assenting to the commission of the act of bankruptcy."44

SS 5. _Procedure for adjudication." A. In general._--Jurisdiction of the subject-matter in bankruptcy proceedings is conferred by law, jurisdiction of the person in involuntary proceedings is acquired by filing a petition and serving a copy of it, with a subpoena upon the alleged bankrupt."45 The jurisdiction of the bankruptcy court depends upon alleged bankrupt having a bona fide residence within the district," the whereabouts of his property is immaterial,"45 and it having jurisdiction of 3 Cur. Law. BANKruptCY SS 5C. 441

one member of the partnership, it has jurisdiction of all the partners and of the partnership property." The court making the first adjudication of bankruptcy has exclusive jurisdiction of the proceeding.70 The fact that one creditor's name was omitted from the list and that such creditor had no notice of the proceeding does not affect the court's jurisdiction in respect to the adjudication." The simple forms of bankruptcy practice found in the general orders and forms prescribed by the supreme court should be followed," and the petition and schedule should contain no abbreviation or interlineation except for the purpose of reference," though amendments may be made at any stage of the proceedings regardless of the time which has elapsed." The bankrupt's exemption from arrest continues until the final adjudication on his application for a discharge, unless suspended or vacated by order of the court," and the court may require security of the bankrupt that during its continuance he will obey all orders of the court and not meanwhile depart from its jurisdiction."

(SS 5) \_B. Voluntary.\_17--An adjudication of bankruptcy made ex parte on a voluntary petition is not conclusive on creditors."

(SS 5) \_C. Involuntary.\_18--The bankruptcy court has jurisdiction to determine whether or not the alleged bankrupt is a proper subject of involuntary proceedings.80 The good faith of the petitioners, being open to question, the court is justified in resolving all doubtful questions both of law and fact against them.81 The petition should show by express language or inference that the alleged bankrupt is not of the excepted classes,82 that the claims of the petitioners amount in the aggregate to $500 or over," and where it does not, the court has no power to permit an amendment joining other creditors having claims sufficient to make up the requisite amount.84 The petition being insufficient by reason of one of the petitioners being disqualified, it may be cured by the intervention of others.85 The petition in involuntary proceedings must set out the business in which the defendant is engaged,86 or state specifically that he was not engaged in one of the excluded classes of business or occupation, but a defect in this regard may be cured by amendment.87 An allegation, in the petition, of the commission of an act of bankruptcy, should state the specific fact relied upon,88 with

88. That one partner for a long period

ceedings on the ground that court was withe-
anddating the commencement of the bank-

out jurisdiction. In re Garneau \[C. C. A.\]rupt proceedings had been a resident of

127 F. 677.

another state from that in which such proceedings were instituted, and was not served,

88. Columbia Iron Works v. National Lead

does not divest the court of jurisdiction.

Co. \[C. C. A.\] 127 F. 89.

Whichen v. Farber Bank \[Mo. App.\] 80 S. W.

327.

001. One not a creditor purchased claims

against the debtor. Lowenstein v. Henry

McShane Mfg. Co., 130 F. 1007.

an appeal from an order dismissing a petition in involuntary bankruptcy, the defendant was

88. In re Brett, 130 F. 981; In re Callison,

130 F. 987.

40. In re Stein, 130 F. 377.

01. In re Vastbinder, 126 F. 417.

01. In re Mero, 128 F. 630.

01. Contained averments consistent with

01. In being a merchant. Beach v. Maceon Grover Co. \[C. C. A.\] 120 F. 786.

01. An allegation that a debtor committed

01. An allegation that a undry acts of bankruptcy

by paying several of his creditors various sums of money while insolvent with intent to give preferences, without stating the names of the creditors or the sums so paid,

is wolly insulentent. Ciark v. Mrenne & Meyer \[C. C. A.\] 127 F. 283.

The ground for filing petition is removing property with intent to hinder, delay or defraud creditors, the facts should be as spg-

ofle as possible, but greater detail than it is time," place, and circumstance." The consideration of the claim need not be set forth and sworn to in the petition." An involuntary petition need not allege in so many words that the preferred transferee is a creditor," nor is it necessary to indicate in what manner the bankrupt indicated his intent, it being inferable from the facts alleged." Several acts of bankruptcy may be set forth in one petition." An attorney in fact for a petitioning creditor can make the necessary oath to the petition, where the facts are within his own knowledge," and a defective verification may be cured by amendment." Petitions may be consolidated by order of the court, and when done before reference to the referee precludes the latter from determining the necessity of the petitions." In proceedings against a partnership, the petition must be specifically directed against it," alleging an act of bankruptcy in which it is expressly involved, and the proceeding must result in an adjudication of the partnership itself," but the petition of one partner to put his firm and copartners into bankruptcy need not allege an act of bankruptcy," nor can the nonassenting partners set up the want of an act of bankruptcy as a defense to such a petition," though they may set up the defense of solvency." To maintain the action a partnership in fact must be shown," and the existence of an alleged partnership being denied, it must be proven before an adjudication is made." The petition being defective it should not be dismissed without first giving the petitioners an opportunity to apply for leave to amend." Valid service of the petition can be made by leaving the subpoena and copy of the petition at the bankrupt's last and usual place of abode," with some adult member or resident in the family."

probable creditors can furnish is not required. In re Mero, 128 F. 630.

- 80. Clark v. Henne & Meyer \[C. C. A.\] 122 F. 384.
- 127 F. 288. Need only allege that the preferential transfer was made within four months of the filing of the petition. Specific
- 80. Clark v. Henne & Meyer \[C. C. A.\] 127 F. 288.
- 81. Constructing $ 57. In re Brett, 130 F.
- 831. An averment in the petition that the petition is the owner and holder of a cer- to others. some of whom were minors, the petition is considered not for a stated amount, firm was continued but by whom did not dated more than three months before the filing of the petition, and due three months after date, held sufficient. Id.
- 82. Alleged that the debtor transferred property to C. H. Childs & Co. with intent to prefer them over his other creditors. In re Vasthunder, 126 F. 417.
- 83. In re Mero, 128 F. 630.
- 84. Bradley Timber Co. v. White \[C. C. A.\] 121 F. 79.
- 85. It will be assumed that they are with- in his own knowledge where the oath is, making an account of bankruptcy.
- 86. Bankruptcy may be set forth in one petition." An attorney in fact for a petitioning creditor can make the necessary oath to the petition, where the facts are within his own knowledge," and a defective verification may be cured by amendment." Petitions may be consolidated by order of the court, and when done before reference to the referee precludes the latter from determining the necessity of the petitions." In proceedings against a partnership, the petition must be specifically directed against it," alleging an act of bankruptcy in which it is expressly involved, and the proceeding must result in an adjudication of the partnership itself," but the petition of one partner to put his firm and copartners into bankruptcy need not allege an act of bankruptcy," nor can the nonassenting partners set up the want of an act of bankruptcy as a defense to such a petition," though they may set up the defense of solvency." To maintain the action a partnership in fact must be shown," and the existence of an alleged partnership being denied, it must be proven before an adjudication is made." The petition being defective it should not be dismissed without first giving the petitioners an opportunity to apply for leave to amend." Valid service of the petition can be made by leaving the subpoena and copy of the petition at the bankrupt's last and usual place of abode," with some adult member or resident in the family."

probable creditors can furnish is not required. In re Mero, 128 F. 630.

- 89. Link re Mero \[C. C. A.\] 122 F. 384.
- 80. Clark v. Henne & Meyer \[C. C. A.\] 122 F. 731.
- 81. In this case Judge Lowell discusses the question as to whether or not a partnership date need not be given. In re Vasthunder, 126 F. 417. Where the jurats to the oath is not and hence cannot be adjudged a bankrupt without all the partners being adjudged bankruptcy. In re Forbes, 128 F. 137.
- 4. To maintain involuntary proceedings were committed within four months of the date of filing the petition. Bradley Timber
- 82. In fact must be shown, and not a mere do, making out upon which he may become flag- to creditors. In re C. F. Beckwith & Co., 130 F. 475.
- 83. In re Mero, 128 F. 630.
- 84. It appeared that both of the original partners had died, leaving their interests to others. some of whom were minors, the firm was continued but by whom did not appear, except that two of the persons con- to the petition, and due three months after date, held sufficient. Id.
- 85. Alleged that the debtor transferred property to C. H. Childs & Co. with intent to prefer them over his other creditors.

5 Cur. Law. BANKruptCY SS 5C. Anyone showing by his answer an actual interest in the matter may contest the petition;9 he need not have a provable claim.10 The answer must conform to the United States supreme court orders,11 it must not contain grounds of demurrer to the original petition which have already been disposed of by the court,12 it must be properly verified,18 and admit or unevasively deny, upon the oath of a competent person, the material facts alleged in the petition.14 The authority of the attorney appearing for the petitioning creditors cannot be challenged by the answer.15 The "list of creditors" required of a defendant debtor, when he sets up as a defense to a petition by a single creditor that the number of his creditors is more than twelve, must contain the names and addresses of such creditors,16 a statement of the amount due each creditor,17 the date of the debt,18 when due,19 whether due by note or account or by some other form of contract,20 the consideration therefor,21 whether owned jointly with another,22 and such other full particulars as will enable the petitioning creditor to negotiate with others to join with him in the petition.28 If the particulars are not sufficiently definite a reference will be ordered to ascertain them.24 There being no reply in the bankruptcy proceedings new matter set up in the answer must be taken as true.25 The bankrupt must schedule all his property and debts and has no right to determine what property is valuable and what is not.26

Footnote 18: The author is grateful to the anonymous referee for his support.

Footnote 19: In re C. Moench & Sons Co., 123 F. 977.

The alleged bankrupt is only entitled of right to a jury trial on the question of his insolvency,27 and the acts of bankruptcy with which he is charged,28 and this right is limited to the bankrupt.29

Footnote 53: In re C. Moench * 444 BANKRUPTCY $ 6. 3 Cur. Law.

missal is awarded on the ground that the defendant is not subject to bankruptcy proceedings, the court can make no order awarding costs.\[22\]

The adjudication can be made by the referee only when the judge is absent.\[23\]

Objection to the jurisdiction of the court may be taken after adjudication by an application to set it aside, where the want of jurisdiction did not appear from the pleadings, but it should be done promptly upon the facts appearing from the evidence introduced.\[24\]

**SS 6.**\_Protection and possession of the property pending the appointment of trustee; receivers.\[25\]--The bankruptcy court has the power when necessary for the preservation of the estate, to have the bankrupt's property seized by a marshal or special master immediately upon the filing of the petition in bankruptcy,\[26\] to have such officer retain the same until the petition is dismissed or the trustee qualifies,\[27\] and after reasonable notice to the claimant to determine the right of ownership,\[28\] but it has no ancillary jurisdiction to appoint receivers for the property of a debtor against whom a petition in involuntary bankruptcy has been filed in another district.\[29\] While a bankrupt cannot convey his property after filing his petition in bankruptcy,\[26\] the commencement of bankruptcy proceedings does not terminate his contract with the government, nor affect the latter's rights thereunder.\[27\] A receiver in bankruptcy is a mere custodian of the property,\[28\] he cannot transfer title to any of the bankrupt's property,\[29\] nor determine any question of ownership or title,\[29\] without an order of the court. His possession being that of the court, the latter has jurisdiction to determine the ownership of the property.\[29\] As he takes the title of the bankrupt as of the date of the filing of the petition,\[29\] valid liens may be enforced against him.\[27\] One receiving goods from a receiver submits himself to the jurisdiction of the court for all purposes properly connected with proceedings to compel him to restore the property or its value,\[28\] and if he claims to be the owner the court has jurisdiction to determine the question of ownership and settle the whole matter.\[29\] The powers of a receiver pendente lite, appointed before adjudication, to protect the estate, are the same as that given ordinary receivers;\[28\] he is not the "legal representative" of the bankrupt,\[29\] and dismissed." The court states that such a petition would be insufficient even though no objection were Interposed. In re Lewis, 129 F. 147. An alleged involuntary bankrupt, admitting his insolvency in his answer, breaks occurred before or after the comneserving In his answer the right "to move to dismiss for Irregularities and want of notice," is too indefinite to be considered by the court. Brinkley v. Smithwick, 126 F. 686.

32. In re Philadelphia & L. Transp. Co., 117 F. 896.

01. Where the adjudication was by the referee, in an action by the trustee In a state court there must be affirmative proof that the judge was absent. Page v. Roberts, Johnson & Rand Shoe Co. \[Mo. App.\] 78 S. W. 62.

01. In re Niagara Contracting Co., 127 F. 782.

01. See 1 Curr. L. 315.

01. American Trust Co. v. Wallis \[C. C. A.\] 126 F. 461; In re Moody, 131 F. 625.

01. Act 1898, $ 2, subd. & McNulty v.

Fengold, 129 F. 1001.

38. This being a proceeding in bankruptcy as distinguished from a controversy at law or equity. In re Moody, 131 F. 625.

01. Ross-Meeham Foundry Co. v. Southern

Car & Foundry Co., 124 F. 403; In re Wil-Hams, 123 F. 321.

40. Muschel v. Austern, 87 N. Y. S. 236.

01. The government is entitled to recover damages for the nonfulfilment of the contract and it makes no difference that such bre breach occurred before or after the commencement of the bankruptcy proceedings. In re Stoever, 127 F. 394.

01. Ates, Muschel v. Austern, 87 N. Y. S. 235.

01. Ates. In re Leeds Woolen Mills, 129 F.

01.

01. First Nat. Bank v. Pennsylvania Trust Co. C. A.\] 124 F. 968.

01. Bank load money to steel company taking as security a quantity of steel billlets which were left on the steel company's land marked as the bank's property, bank having bill of sale. Part of loan was paid and four months later the same amount was reduced. Held, Iben valid as against receiver or general creditors. First Nat. Bank v.

Pennysivla Trust Co. C. C. A.\] 124 F. 968.

48. In re Leeds Woolen Mills, 129 F.

01.

01. To obtain possession of property claimed adversely. Ross-Meeham Foundry Co. v. Southern Car & Foundry Co., 124 F.

01.

01. Cannot take the place of the bankrupt and as such be examined under oath as to 8 Cur. Law. BANKruptCY SS 8.

only when expressly authorized may make proof of loss, under a fire insurance policy, for the bankrupt. \[82\]

_Suits by and against receivers.--A receiver in bankruptcy has only such authority to sue as the court appointing him chooses to give, and unless authorized, he cannot leave the court of original jurisdiction and sue elsewhere. \[88\]_

SS 7. _Creditors' meetings; appointment of trustee; removals. \[54\]_--A creditor's proof of claim must be adequate in all particulars in order to allow him to participate in the creditors' meeting. \[88\] An attorney must have express authority from a creditor, \[88\] and if the latter is a partnership the person making the letter of attorney must make oath that he is a member of the firm, \[88\] in order to vote on the latter's behalf at the creditors' meeting. In order to participate, the power of attorney must be produced, \[88\] and accident does not constitute an excuse. \[88\] The creditors' selection of a trustee is not to be interfered with unless it clearly imperils the fair and efficient administration of the estate. \[88\] The fact that some of the votes cast were for a candidate who could not be approved by the court does not render those votes void so that the opposing candidate must be declared elected. \[88\] Creditors failing to elect a trustee at the first meeting are entitled to a reasonable adjournment, \[88\] and upon their failure to elect according to the provisions of the act the referee may make a selection, \[88\] or the court may appoint the trustee, and lapse of time does not affect this right. \[88\] If at the first meeting all claims offered for proof are in dispute and it is impracticable at that time to settle the same the referee may, in his discretion, appoint a trustee. \[88\]

SS 8. _Compositions. \[88\]_--The holders of contingent claims are not necessary nor proper parties to the composition. \[88\] There must be a strict compliance with the law as to the mode of composition and procedure; \[88\] promises to pay money or merchandise at a future day cannot be substituted for money; \[88\] the money cannot

loss by fire of the bankrupt's property. \[\] A stockholder in a corporate creditor is Sims v. Union Assur. Soc., 129 F. 804. not ineligible to act as trustee in bankruptcy. \[\] \[ be deposited by a referee in a place selected by himself," subject to his own order," nor distributed by him."2 A court has no power to confirm an irregular composition."3 A composition cannot be confirmed if the bankrupt has been guilty of any of the acts, or failed to perform any of the duties which would be a bar to his discharge,"4 and this is true without regard to whether or not the creditors would be benefited thereby,"6 or that a majority of the creditors are in favor of accepting the same."6 A composition will be set aside for fraud,"7 but fraud known to the petitioner before the confirmation cannot be so used,"8 and the creditor is not bound by statements as to the nonexistence of fraud in the order of confirmation." The burden is upon the petitioner to show the fraud,"8 and while it is not absolutely necessary, it is desirable that the petition set forth all the details thereof."1 The verification of a petition, being in the usual form for a bill in equity, is sufficient;"2 but the allegations of the petition being made on information and belief, the verification must be made by one having personal knowledge of the facts."4 A creditor is not precluded from maintaining the petition by commencing an action against the bankrupt."4 Assenting creditors are necessary parties to an appeal from an order confirming a composition."5 The setting aside of a composition will not ordinarily have the effect of invalidating pro rata payments made in pursuance of such composition."6 A creditor failing to claim his share of a composition, the amount thereof inures to the benefit of the bankrupt."7 An order confirming a composition serves as a discharge."8 An action cannot be maintained upon a new promise made after composition."9 One holding composition notes as collateral security cannot sue thereon until default by his principal debtor."9

**SS 9.**_Property and rights passing to trustee. A. Particular kinds of proper-_

70. Place of deposit must be designated by the judge. Act I888, $ 12b. Judge does not include referee. Id. $ 1. In re Frear, 120 F. 978.

01. Must be subject to order of judge. Act I888, $ 12b. In re Frear, 120 F. 978.

01. Must be distributed upon confirmation, as the judge directs. Act I888, $ 12e.

01. Although the motion for an order confirming the composition is unopposed. In re Frear, 120 F. 978.

01. Failed to keep books of account or records from which his true financial condition might be ascertained. In re Godwin, 122 F. 111.

01. In re Godwin, 122 F. 111.

01. Only one actively objected. In re Goodwin, 122 F. 111.

01. A false statement by a bankrupt as to the condition of his estate made in a sworn schedule, if relied upon by a creditor in agreeing to a composition. is fraud in proving the composition and sufficient to set it aside. In re Roukous, 128 F. 645.

01. In re Roukous, 125 F. 645.

01. RecItals in the order confirming composition that it appears that the bankrupt has been guilty of any acts, or failed to perform any of the duties, which would be a bar to his discharge, and that the offer and its acceptance were made in good faith and have not been procured by any means, promises or acts contrary to the acts of congress relating to bankrupt. In re Roukous, 128 F. 645.

01. In re Roukous, 128 F. 645.

01. A petition held to state a case for relief, though in some respects too general

## 8 Cur. Law.

BANKRUPTCY SS 9A.

_ty or rights._**11**--A liquor license,**22** membership in a chamber of commerce,**23** policies of insurance which are assignable,**34** including a semi-tonntine insurance policy payable to the bankrupt, his assigns or legal representatives,**35** special deposits,**36** the good will of the bankrupt's business,**37** and the right to call for unpaid stock subscriptions,**38** all pass to the trustee. A vested remainder interest passes to the trustee of the remainderman.**39** The interest of the bankrupt as a tenant by the curtesy,**31** and alienable, beneficial interests in trust funds**32** pass to the trustee, and he may enforce an insurer's liability for goods destroyed.**3** The legal title to property obtained by crime having passed to the bankrupt, the property is assets of his estate,**34** and the creditors are not estopped by the representations of one not a bona fide purchaser.**35** The trustee takes only the rights of the bankrupt under a contract of the latter.**35** Property held by the bankrupt under a conditional sale, which is void for want of record, passes to the trustee.**36** The trustee in bankruptcy has the option to abandon or accept a lease held by the bankrupt;**37** if he accepts it, he is bound by its conditions to the same extent as the bankrupt was.**35** Partnership assets do not pass to the trustee of one of the members of the firm.**35** A bankrupt's incorproeal interest in an alleged invention for which a patent has been applied for does not pass to the trustee,**31** nor does a claim for alimony, made by a married

Section 70a of the act of 1398 is an enumeration of those properties, the title to which passes to the trustee by operation

**1. Elmore v. Symonds, 183 Mass. 321, 67 N. of law. Section 677 provides for such rights**31\*\*.**31**.**31**.**31**.**31**.**32**.**33**.**34**.**35**.**36**.**37**.**38**.**39**.

woman in a suit for divorce, which was pending at the time of her bankruptey.12 The trustee may recover usurious interest paid a national bank by the bankrupt.13 There is a conflict as to whether or not a trustee can maintain an action for a tort committed against the bankrupt.14 In Michigan, the right of a father to recover for the wrongful death of his child constitutes an asset belonging to his estate in bankruptcy.15

Footnote 14: The bankrupt state is not a bankrupt state, but it is not a bankrupt state.

The beneficiary of trust funds may follow the same into the hands of a trustee in bankruptcy and can recover such as can be identified,15 though it has been held that such beneficiary is only entitled to share with other creditors in the estate.17 The time and place for claiming a misappropriated trust fund in the hands of a trustee in bankruptcy is at the audit where the fund into which such trust fund entered is being distributed,18 and the right to recover trust funds may he lost by laches.19 One voluntarily paying money to a bankrupt upon condition is entitled to have the money refunded by the trustee upon the nonfulfillment of the condition;20 but where such funds are not demanded before the filing of the petition, interest cannot be recovered.21

Footnote 14: The bankrupt state is not a bankrupt state, but it is not a bankrupt state.

Property fraudulently conveyed.22--Property fraudulently conveyed by the bankrupt passes to the trustee.23 The latter or the creditors, where no trustee is appointed,24 may maintain an action to set it aside, though the transfer was made more

Footnote 23: The bankrupt state is not a bankrupt state, but it is not a bankrupt state.

Footnote 24: The bankrupt state is not a bankrupt state, but it is not a bankrupt state.

Footnote 25: The bankrupt state is not a bankrupt state, but it is not a bankrupt state.

Footnote 26: The bankrupt state is not a bankrupt state, but it is not a bankrupt state.

Footnote 27: The bankrupt state is not a bankrupt state, but it is not a bankrupt state.

Footnote 28: The bankrupt state is not a bankrupt state, but it is not a bankrupt state.

Footnote 29: The bankrupt state is not a bankrupt state, but it is not a bankrupt state.

Footnote 30: The bankrupt state is not a bankrupt state, but it is not a bankrupt state.
than four months prior to the filing of the petition," except where the fraudulent transferee has transferred it to a bona fide purchaser.26 The action may be maintained. though no claim against the bankrupt has been reduced to judgment," nor is this rule changed by the fact that such deed is recorded prior to the appointment of the trustee.28 Whether or not fraudulent in fact, a deed of general assignment is constructively fraudulent, and property so conveyed within four months prior to the filing of the petition belongs to the trustee.29 The trustee need not tender the amount paid to the bankrupt in order to recover the property," but the money paid the bankrupt having been distributed to the creditors, the property cannot be recovered." Whether concerned in the fraud or not, the grantee is liable to the trustee for the property and the profits thereof,"2 and, the conveyance being fraudulent in fact and made within four months prior to the filing of the petition, the grantee is not entitled to have his account against the insolvent,"3 nor the cash paid by him at an inadequate valuation,34 credited thereon.

(SS 9) B. Nature of trustee's title in general.38--The trustee takes the same but no better title than the bankrupt had,38 to all property not exempt which the bankrupt could by any means have transferred, or which might have been levied upon and sold under judicial process against him,39 whether mentioned in the bankrupt's schedules or not.38 He takes the legal title,39 and while he takes subject to all valid liens existing at the date of adjudication,34 there is a conflict as to

24. In re Toothaker, 128 F. 187. A truste-

see being appointed, he cannot. Act 1898, 88 So. 1.

33a, 23b, do not authorize such a suit. Vi-

35. See I Curr, L. 317.

01. In re Sede, 126 F. 855; Bradley, Clark

01. Friedman v. Verchofsky, 105 III. App. & Co. v. Benson \[Minn.\] 100 N. V. 670.

414; Carton v. Booze \[N. J. Eq. 57 A. 1029; V. Cox v. Wall, 132 N. C. 730, 48 S. E. 635; Assignment of an insurance policy on his

35b) v. Raft, 82 App. Div. 47, 81 N. Y. S. life, made in good faith, his trustee in bankrupt cannot have it canceled. King v.

546. May take advantage of it the same as a judgment creditor. In re Carpenter, 125

Crain \[Mass.\] 69 N. N. E. 1049. The creditors

F. 831. See I Curr, L. 317, 1, 23.

26. Friedman v. Verchofsky, 105 III. App. &

01.

A debtor fraudulently conveying property

to a firm creditor, a corporation composed

Bankrupt treated money paid him by his

of the firm only and who took the goods of

mother as advances, trustee, years after,

the firm without consideration and with

full notice, is liable therefor. Nor in such a

so treated, held, could not recover. Hunt v. suit are the members of the firm necessary

Suborn, 86 App. Div., 464, 83 N. T. 879.

parties. Holloway v. Brame \[Miss.\] 36 So. 1.

See I Curr, L. 317, n. 24.

27. Bill considered and held not demurra-

ble. Beasley v. Coggins \[Fla.\] 37 So. 213.

28. Beasley v. Coggins \[Fla.\] 37 So. 213.

01. In re Knight, 125 F. 85.

01. Johnson v. Forsyth Mercantile Co., 127

F. 845.

31. A creditor electing to sue for the pro-

ceeds of property fraudulently conveyed by

the bankrupt, and the proceeds of such sale

being recovered and disbursed by the trustee, the creditor receiving a divlend, he is

bankrupt agreeing not to bid at the sale, is

estopped from subsequently suing to recover

the property. McWilliams v. Thomas \[Tex.\]

Civ. App.\] 74 S. W. 696; Sharood v. Jordan,

90 Minn, 249, 95 N. V. 1108.

32. A voluntary grantee under a fraudu-

ment conveyance though he has no knowledge

of the fraud, is liable to the trustee in bankrupt of the grantee, not only for the

property of the grantee, not only for the

property but also for the amount that he

should have received for rents and profits.

Gray v. Chase, 184 Mass. 448, 68 N. E. 676.

The transferee being concerned in the fraud,

is regarded as a trustee ex mallefelo for the

reditors defrauded. Hillery v. Le Roy, 84

App. Div. 129, 82 N. Y. S. 80.

8 Curr. Law--29 * 450 BANKRUPTCY $ 9C. 3 Cur. Law.

whether or not he takes as a bona fide purehaser for value,\[41\] most courts holding that he occupies a position similar to that of a judgment creditor,\[42\] his rights being determined by the local law.\[43\] A purchaser from the trustee takes the title of the bankrupt.\[44\] The title vests in the trustee as of the date of the adjudication,\[45\] no matter where the property is situated,\[46\] but it has been held that there was no "transfer" contrary to the terms of an insurance policy, where loss occurred after adjudication, but while custody was still in a receiver.\[47\] He does not take property acquired after adjudication,\[48\] though he may recover back payments made by the bankrupt after adjudication with funds belonging to the estate at the date of adjudication.\[49\] The trustee may demand claims owing the bankrupt,\[50\] and recover any of the latter's property which a creditor might,\[51\] the creditor's right being thus transferred to the trustee, the former is prevented from exercising it.\[52\] He represents only creditors who were such at the time of filing the petition.\[53\] Prop-erty in his hands is liable to state taxation.\[54\]

(SS 9) \_C. The trustee takes title free from liens\[53\] acquired by legal proceedings,\[54\] in a state or Federal court,\[55\] within four months prior to the filing of the petition,\[53\] in voluntary or involuntary proceedings,\[50\] by levy,\[50\] attachment,\[51\] judg-

- 41. That he does meet: Omission to file cover such property. HHbard v. Henderson conditional sale under which goods were sold to the bankrupt is immaterial under S83. Cannot represent creditors who made New York Laws 1897. 418, 112, providing a prior composition which they have not such unrecorded sales shall be void as to sought to avoid. Batchelder & Lincoln Co. subsequent purchasers, etc., in good faith.

- 42 R. C. 690.

- 43. That he does: Unrecorded deed of truste

- 44. That he does meet: Omission to file cover such property. HHbard v. Henderson conditional sale under which goods were sold to the bankrupt is immaterial under S83. Cannot represent creditors who made New York Laws 1897. 418, 112, providing a prior composition which they have not such unrecorded sales shall be void as to subsequent purchasers, etc., in good faith.

- 45. In re Butterwick, 131 F. 371.

- 46. A purchase of the bankrupt's interest in a contract for the conveyance of land.

- 47. In re Butterwick, 131 F. 371.

- 48. In re Butterwick, 131 F. 371.

- 44. A purchase of the bankrupt's interest in a contract for the conveyance of land.

- 49. In re Butterwick, 131 F. 371.

- 40. In re Butterwick, 131 F. 371.

- 41. A purchase of the bankrupt's interest in a contract for the conveyance of land.

- 41. The clause in $ 70a. Act of 1898, read-

- 42. The clause in $ 70a. Act of 1898, read-

- 43. The clause in $ 70a. Act of 1898, read-

- 44. The clause in $ 70a. Act of 1898, read-

- 45. In re, not the petition, he

- 46. The clause in $ 70a. Act of 1898, read-

- 47. The title vests in the trustee as of the date of the adjudication,\[48\] no

- 44. The clause in $ ment,"22 by execution issued on judgment,"43 also the levy and sale thereunder."44 Some courts hold that the judgment is not annulled, the lien only being destroyed,"45 others that the judgment becomes null and void, its invalidity relating back to the time of its entry.66 Also a lien obtained by garnishment,"7 or by writ of replevin,"48 also statutory liens, enforceable only by legal proceedings,"49 are rendered null and void as against the trustee, such as mechanic's liens.70 There being a valid attachment of land standing in the bankrupt's name, but claimed by his wife, the trustee will be subrogated to the attaching creditor, both consenting."11 It is the time of the creation of the lien that is the controlling date,"12 not the date of its enforceability.

in bankruptcy did not impair this lien. one exists, and hence the assignee of such Pickert v. Eaton, $1 App. Div. 423, $1 N. Y. judgment creditor having had execution levy. S. 50. Where property of a bankrupt is subject to two lens one attached thereto prior and the other subsequent to four months before the filing of the petition, the first lien being valid the property is properly held the trustee in bankruptcy thereafter, and does not pass to the trustee. Thompson v. Fairbanks, 75 Vt. 361, 56 A. 11. 58. McKenney v. Cheney, 118 Ga. 387, 45 S. E. 433; Mohr & Song v. Mattox \[Ga.\] 48 S. E. 410. See 1 Curr. L. 318, n. 31. 60. Covers a seizure on a writ of replevin in a suit to recover property sold and delivered on credit under a contract which the plaintiff claims the right to resend on was rendered several years before. Armour then & Co., 126 F. 875. See 1 Curr. L. 318, n. 33. 61. Thompson v. Fairbanks, 75 Vt. 361, 56 A. 11. The bankruptcy court has jurisdiction to order a sheriff holding property of a bankrupt under attachment leveled within four months before the filing of the petition in bankruptcy to deliver the same, or where the property has been sold, to turn the proseceeds over the trustee in bankruptcy, 76 A. 118, n. 38. 62. In ment." The filing of the petition is notice to all the world of the pendency of the proceeding, and in effect an attachment of the bankrupt's property, and an injunction against all persons prohibiting them from intermedding with it." This section does not apply to cases where the property or its proceeds are no longer held under the writs." This provision of the national bankruptcy act does not impair the obligation of a contract," nor divest the attaching creditor of a vested right," and applies only as to liens sought to be asserted against the trustee or those claiming under him." The trustee takes title free from secret liens," such as unrecorded conditional sales," or unrecorded contracts to sell," and from liens contrary to public policy." The bankruptcy court has jurisdiction to determine the validity of the lien asserted," but may in its discretion allow it to be determined in the state court," but in so doing it may reserve the right to have the property sold in the bankruptcy proceedings, the proceeds to remain in the trustee's hands to await the decision of the state court." The petition must show upon its face that the petitioner is entitled to a lien," and the petitioner not being able to maintain the suit on account of the bankruptcy proceedings, he may abandon it and sue in tort if he has such a cause of action."

(SS 9) _D. Whether chatl emptages"_ executed by the bankrupt are valid

was rendered within the four months perlod. \[trustee. McFarlan Carriage Co. v. Wells, 99 In re English, 122 F. 113. Where under the statutes of Massachusetts (Rev. Laws, c. 159, $ 3.1, c. 7 \[pub. St. 1892, c. 161, $ 2, c. 111)\] a) the due course of business, title to the pro-sult brought more than four months prior to adjolcation to reach certain assets of the debtor, though judgment is not rendered as an mortgage as against the vendee's trustee in bankingruptcy. In re Carpenter, 125 tion, creates a valid equitable lien on the property in question. Snyder v. Smith \[Mass.\] 69 N, E. 1089. \[rusted. St. 287, c. 73\]. Chesapekie Shoe \[Mass.\] 69 N, E. 1089. \[rusted. St. 282, c. 73\]. Chesapekie Shoe \[Mass.\] 78. Owen v, Brown \[C. C. A.\] 120 F, E. 812. Attachment. In re Shell, 125 F. 154; Hurl- but v. Brown \[N. H.\] 85 A. 1046. Chattel motorage. Thompson v. Fairbanks, 75 Vt. \[rusted. St. 281, c. 71\]. 86 A. 11. \[rusted. St. 281, c. 73\]. In re Mertens, 131 F. 507. \[rusted. St. 282, c. 73\]. Chesapekie Shoe \[Mass.\] 75. Does not apply when a writ of attachment has been fully executed and the funder proceeds paid over to the creditor, the latter not having reasonable cause to believe the debtor insolent and that a preference was thereby intended. Johnson v. Anderson \[Neb.\] 97 N, W. 389. \[rusted. St. 282, c. 76\]. Attachment lien sued out of state court \[Act iss9, s 67, subl.\] 7. Wood v. Carr, 24 K.Y. L. R. 2144, T3 S. V. 762. \[rusted. St. 282, c. McKenney v. Cheney, 118 Ga. 387, c. 8\]. B. 433. Bankrupt filed a voluntary pettition and forcibly took property from their who held it under an attachment issued five days before the filing of the petition in bankruptcy, trustee did not take possession of property, held attachment was valid as against bankrupt after discharge. Rochester Lumber Co. v. Locke \[N. H.\] 54 A. 705. \[rusted. St.\]. Conveyance of partnership property by dormant partner void as against trustee of visible partner. White v. Parham \[Mc.\] 88 A. 425. A secret lien for Improvements placed upon the premises is void as against the trustee. Elmore v. Symonds, 183 Mass. 321, 67 N. E. 314. \[rusted. St.\]. Under the Virginia Code c. 109. \[rusted. St.\]. Chesapekie Shoe Co. v. Beldner \[C. C. A.\] 122 F. 593. Where bankrupt redelivered possession to seller a few days before the filing of the petition, held, title passed to
$3$ Cur. Law. BANKruptry $ 9E.

liens must be determined by the law of the state where they were executed." Chattel mortgages being valid as against all lien creditors and bona fide purchasers or mortgages, they are valid as against the trustee," but being void as against the trustee unless followed by possession, the mortgagee must take possession without knowledge of the mortgapor's insolvency." A chattel mortgage given more than four months prior to the filing of the petition is valid as against the trustee, though not recorded until within such four-month period."

(SS 9) \_E. Preferential transfers."--In order to render a transfer of property voidable by the trustee as a preference, it must have been made by the bankrupt" while insolvent," within four months prior to the filing of the petition" to a creditor," or some one in his behalf," the party so receiving it," or the one to be benefited thereby," having reasonable cause to believe that a preference was thereby intended." He need not have actual knowledge of the debtor's insolvency," though

89. In re Antigo Screen Door Co. \[C. C. A.\] 123 F. 249. See 1 Curr. L. 318, no. 46.

on the obligation of a bankrupt is a creditor.

90. Hall V. Keating Implement & Mach.

In re Lyon \[C. C. A.\] 121 F. 728.

Co. \[Tex. Civ. App.\] 77 S. W. 1054. Void as

98. In re Levin, 127 F. 886. Agent. Gam-

to a judgment creditor is void as to trustee.

blev. Elkin, 205 Pa. 226, 54 A. 782. Bankrupt

Gove v. Morton Trust Co., 85 N. Y. 8247.

gove d'orm; latter arranged with a purchaser

Where the mortgage is void as against attoching creditors and valid as between the

purchaser assumed the indebtedness of the parties, the trustee will not be subrogated

from, paying part in cash and part by giving the rights of an attaching mortgage in

ing individual obligations therefor; held a

order to enable him to defeat the mortgage.

In re Sentenne & Green Co., 120 F. 436.

\[Neb.\] 99 N. W. 675. A creditor will not be

91. In re Ball, 123 F. 164. See 1 Curr. L. 218, n. 47.

by a transfer of his account, procuring a

92. First Nat. Bank v. Johnson \[Neb.\]

third party to loan money to the debtor for

94 N. W. 837; Davis v. Turner \[C. C. A.\] 120

P. 606. See 1 Curr. L. 819, n. 50, 62-54.

93. See 1 Curr. L. 319.

01. Payment by a volunteer is not a

preference. Wife paid out of her separate

property what the bankrupt owed as treasurement of a fudge; held not a preference. Goodo

v. Elwood Lodge, No. 166, K. P. 160 Ind. 251,

66 N. E. 742. The fact that directors of a

corporation borrow money which is used by

the corporation, and later when the corpora-

tion is insolvent pay the debt with their individual notes, secured by a mortgage on

their individual property, does not constitute a preference on the part of the corporation. Keegan v. Hamilton Nat. Bank

\[Ind.\] 71 N. E. 647.

95. The debtor must have been insolvent

at the date of the transfer. Schilling v. Curran \[Ment.\] 76 P. 998: In re Mandel, 127 F.

863; Kimball v. Dresser \[Mc.\] 67 A. 787; Emm-

pire State Trust Co. v. William F. Fisher Co.

\[N. J. Eq. 167 A. 602. See 1 Curr. L. 319, n. 59.

59. In re Mandel, 127 F. 863; Gamble v.

Elkin, 205 Pa. 226, 54 A. 782; Joseph v. Raff,

82 App. Div. 47, 81 N. Y. S. 546; Allen v. Hollander, 128 F. 159. Real estate of the sub-

sequent bankrupt was sold on foreclosure and bid in for mortgapor; bidder conveyed

to defendant in this case to secure a debt

of the mortgapor's insolvency."

fromths before the filing of the petition;

held, not a preference and valid as against

the trustee. Pratt v. Christlie, 88 N. Y. S.

585. It being undisputed that the transfer

was within the prohibited period, a finding

**Illustrations**: One may rely upon the de-

of fact that the property was sold within four

months of the filing of the petition is un-

necessary. Schilling v. Curran \[Mont.\] 76 P. 998. See 1 Curr. L. 319, n. 57.

**97. A surety is a creditor. Goldberg v.**

\[Neb.\] 94 N. W. 82 having reasonable ground to believe a debtor insolvent, he is chargeable with notice of intent to prefer,4 and a preference must have actually resulted,5 the effect of the preference must be to prefer one creditor over others of the same class,6 and to do this, actual value must have passed.7 Whether an intent to prefer on the part of the bankrupt is essential is the subject of conflicting decisions.8 The trustee

ual debts (Id.). A creditor having reasona-ble ground to believe a debtor insolvent and the obvious effect of the receipt of money or property is to give him a preference, he is chargeable with notice of intent to prefer. Hacking v. Hargreaves Bros. \[Neb.\] 95 N. W. 675. More knowledge that the debtor had other liabilities, or of circumstances which might create a suspicion of possible insolvent, or will not necessarily suffice. Hacking v. Raymond Bros. Clarke Co. \[Neb.\] 94 N. W. 822. Knowledge that a debtor's liabilities were slightly less than $30,000 and his assets more than $40,000, but that he was in need of money, does not show that the creditor knew or had reasonable cause to believe a debtor insolvent. Des Moines Sav. Bank v. Morgan Jewelry Co. \[Iowa\] 93 N. W. 121. Chatted mortgage, under a mortgage executed more than seven years prior to the enactment of the bankruptge law, took possession of property within four months from the time of filling the petition; held, in the absence of an express finding of reasonable cause to believe a preference given, there was no preference. Thompson v. Fairbanks, 75 Vt. 361, 56 A. 11. Creditor procured eccentricities of insolvent debtor at considerable expense; held, had reasonable cause to believe a preference intended. Crawford v. Rumpf, 206 Pa, 154, 54 A. 709. A trust company through its agent and attorney loned a merchant a sum of money, taking a chatted mortgage upon his goods; the money was paid by said agent and attorney directly to the merchant's creditors, some of whom were elients of the agent; the next day the company tried to sell defendant's toleld, mortgage was void. In re Pease, 129 F. 446. Debor had notes for about $6,000 in bank, all overdue; cashier found out that debtor had forged endorsements on notes, went to debtor who paid the forged notes; cashier did not know that it took all debtor's property to do so; held. bank did not have "reasonable cause to believe" debtor insolvent. Ginchtel v. First Nat. Bank \[N. J. EG.\] 57 A. 508. Where a bank did not advance in the particular transaction alleged to be a preference, the usual percentage upon the accounts given by the bankrupt as security, evidence considered and held that the bank had reasonable cause to believe that a preference was intended. In re Mandel, 127 F. 863. That the bankrupt passively allowed a creditor to institute an attachment suit against him, obtain judgment by default, and sell the property, does not constitute reasonable cause to believe a preference was intended. Johnson v. Anderson \[Neb.\] 97 N. W. 83. Where a banker went 30 miles with a debtor on a Sunday night for the purpose of enabling him to make a sale of his property at a great discount in order that the proceeds might be appropriated to the payment of the bank's indebtedness, held sufficient to cause the bank to have "reasonable" cause to believe that a preference was thereby intended. Bardes v. First Nat. Bank, 122 Iowa, 413. 98 N. W. 284. The cashier of a bank cannot avoid a sale to a bona fide purchaser8 for a present, fair consideration,19 but the burden is on the purchaser to show that he purchased in good faith for a present fair consideration.11 The filing of a petition in bankruptcy, being a caveat to all the world and in effect an attachment and injunction,12 one acquiring title thereafter is not a bona fide purchaser.18 An exchange of securities of equal value is not a preference,14 and the value being unequal, the transfer is void only to the extent of the excess given by the bankrupt over that received by him.15 Security given in good faith for a present loan is valid,14 but a transfer to secure the payment of an old obligation is void,17 though there seems to be a conflict upon this

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 20: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 3: The author is grateful to the anonymous referee for the support of the National Science Foundation.

- 456 BANKruptCY SS 9E. 3 Cur. Law.

point in that the courts differ in their construction of the words "present consideration"18 A sale to a bona fide purchaser is not rendered void because it is upon credit,19 though made within four months prior to the filing of the petition. Whether or not one is a bona fide purchaser is a question for the jury.20 The taking of security by a creditor is not evidence that the creditor believes the debtor insolvent.21 A conveyance operating to hinder, delay or defraad creditors, made within four months prior to filing the petition in bankruptcy, may be avoided by the trustee,22 and under the laws of some states, a transfer made within such period of four months without consideration, being void as to creditors, may be avoided by the trustee.23 An assignment of exempt property is not fraudulent as to creditors.24 Neither depositing money, while insolvent, in a creditor bank upon open account subject to check;25 nor retaking of property sold under a conditional sale not filed until within four months of the filing of the petition, constitute a preference,26 nor does the payment of interest upon a lion on reality of the bankrupt.27 Giving a deed within the four-month period, to complete a valid, bona fide contract therefor, executed before such four-month period, does not constitute a preferential transfer.28 An assignment for the benefit of creditors,29 executing a written release,29 and identifying the chattels to which the lion of a mortgage is to attach,21 when done within four months prior to the filing of the petition, constitute preferential transfers. With respect to the date of the transfer of property, it is when the instrument conveying the property is recorded,22 or when possession is taken,23 or

- 18. A mortgage given to secure a pre-existing debt is not rendered invalid by the words "for a present consideration" in $ 67.
- 28. In California, it is not necessary for a trustee to prove in an action to set aside a transfer by an insolvent debtor without consideration, that it was done with intent Co. \[M. X. Eq.1\] $ 4. 502; Farmers' Bank v. Carr & Co. \[C. C. A.\] 127 F. 690.
- 29. A transfer of property by a bankrupt a few weeks before the commencement of the bankruptcy proceedings, whereby the transfer agrees to pay the balance of the purchase price due the original vendor, is as valid as though the amount thus assumed by the transferee had been paid by him to the bankrupt in cash. Unmasked v. Douglass, 75 Conn. 633, 55 A. 12.
- 30. Coolidge v. Ayers \[VLT\] $ 4. 970.
- 31. En En Spireate Trust Co. v. Fisher Co.
- 32. The Enspire State Trust Co. v. Fisher Co.
- 33. The Enspire State Trust Co. v. Fisher Co.
- 34. The Enspire State Trust Co. v. Fisher Co.
- 35. An allegation that a transfer "was for the purpose of preventing" the "creditors from collecting any indebtedness due them by" the bankrupt is equivalent to an allegation that it, was with intent to "hnder or delay his creditors." Gray v. Brundd, 140 Cal. 615, 74 P. 303. Where, in a suit to recover a preferential payment on the ground that it was made with intent to hinder, delay or defraad creditors, there is evidence that the payment was made bona fide in the satisfaction of a just debt secured by an unrecorded mortgage, and that there were no other lien creditors, and that it did not appear that any of the creditors extended credit after the date of the mortgage; held sufficient evidence to support a verdict for defendant. Dickenson v. Stutts \[Ga.\] 48 S. E.
- 36. A contract by a bankrupt commission firm, some years before its bankrupt, by which it agreed to do all its business through another firm, obtaining the benefit of the latter's credit, held not invalid as a scheme to hinder, delay or defraad creditors. Ryttenberg v. Schefer, 131 F. 313.
- 37. In California, it is not necessary for a trustee to prove in an action to set aside a transfer by an insolvent debtor without consideration, that it was done with intent to delay or defraad the bankrupt's creditors.
- 38. A bankrupt from time to time as- signed accounts due to a bank, receiving ad-vances thereon under an agreement that any surplus collected on such accounts should be applied to any other indebtedness which might at the time be due the bank; held that such agreement related to the time when it became effective as to any particular accounts by their delivery thereunder, 3 Cur. Law. BANKRUPTCY SS 9F. 457

notice is otherwise brought home to the creditors of the bankrupt,\[34\] that is controlling. The question of delivery being raised by the trustee in bankruptcy, it does not require as positive a change of possession as where the question is raised by a subsequent bona fide purchaser for value, or a subsequently attaching creditor in good faith.\[38\] Only existing creditors at the time of the transfer can object thereto,\[38\] and a creditor's right to property acquired from the bankrupt is not concluded by his resistance of the involuntary proceedings instituted against his debtor.\[37\] Though preferences are void under the bankruptcy act, yet the trustee cannot treat them as such for all purposes; he must first establish their invalidity in proceedings instituted to have them set aside;\[38\] nor does the former dismissal of involuntary proceedings based on said transfer bind a trustee in this regard.\[39\] The action by the trustee to recover a preference is against the transferee,\[40\] and he cannot pursue the property into the hands of a bona fide purchaser for value from such creditor.\[41\] He must sue sufficiently long before the expiration of one year from the adjudication to give the preferred creditor a reasonable time within which to surrender the preference and exhibit his claim against the estate.\[42\] The preferred creditor must return to the trustee the property,\[43\] or its full value,\[44\] even though he has paid part to other creditors,\[45\] and is not entitled to recover the amount actually turned over by him to the debtor.\[46\]

(SS 9) _F. Preferential payments.\[47\]--A_ payment of money is a transfer of property,\[48\] and hence the rules as to what constitutes a preference are the same.\[49\] The payment of reasonable fees,\[50\] or giving security therefor\[51\] to an attorney for services then and thereafter to be rendered to the bankrupt, is not a preference, but such payments are valid only in so far as subsequently approved by the court;\[52\] nor is the giving of post-dated checks,\[53\] or a secret advantage to one creditor in a composition.\[54\] Payment by an insolvent, within four months prior to the filing and accounts assigned and delivered by the |Brunold, 140 Cal. 615, 74 P. 303; Hackney v. debtor when Insolvent, and within four months of the filing of the petition, the ap- |822.

plication of the surplus realized therefrom.\[41\] Over the amount advanced to a prior indebted.\[42\] Renew constituted a preference. In re Man- |822|, 127 F. 863|. In the case of a preference by way of an unrecorded chattl mortrage, the transfer dates from the acquisition of possession under the mortrage. Tatman v. Humphrey, 184 Mass. 261, 68 N. E. 844; In re Ball, 123 F. 154.

34. In re Mandel, 127 F. 863|.

01. Marking and setting aside is sufficient.\[43\] Allen v. Hollander, 128 F. 159.

01. Partnership used firm assets to pay individual debts of one of the partners. Merchants' Bank v. Thmans (C. C. A.) 121 F. 306.

01. Pepperdine v. Bank of Seymour, 100 M. App. 387, 73 S. W. 890.

01. Where a policy of fire insurance is assigned after a fire fn order to prefer a creditor, the bankrupt cannot sue theroen unless reassigned, though it is unrendered to him by the creditor, Traders' Ins. Co. v. Mann, 118 (a. 381, 45 S. E. 426.

01. A judgment dismissis a petition in involuntary bankruptcy on the ground that an alleged preferential transfer of property is not sustained is not an adjudication which could bind a trustee subsequently appointed on an adjudication made by another court, in a suit brought by him against the alleged preferred creditor to recover the property. In re Seare, Humbert & Co. \[C. C. A.\] 128 F. 215.

01. Not against the bankrupt. Gray v. 1. 321, n. 82.

458 BANKruptY $ 10A. 3 Cur. Law. of the petition in bankruptcy, of notes, is a preference,\[55\] and the trustee may recover such payments from the payee, though there were solvent indorsers on the note.\[56\] Such a preference must be considered as having been given at the date of the payment of the note, not at the date of its delivery.\[67\] Payments upon loans made previous to the first of such payments are also preferences.\[88\] A payment made by a third party to a creditor of a bankrupt is not a preference to such creditor,\[59\] and the trustee cannot recover as a preference sums collected within four months prior to the filing of the petition by a creditor from third persons, under a contract which had been in force between the bankrupt and the creditor for a number of years.\[69\] Payments by a bankrupt, within four months prior to the filing of the petition, upon a running account, and extension of new credits to him in good faith and the usual course of business by the vendor, the net result being a gain to the estate, do not constitute preferences,\[61\] but the result not so being, only the sum which is the direct loss to the estate constitutes the amount of the preference.\[62\] A suit in equity by a bankrupt's trustee to recover a preferential payment cannot be objected to on the ground of the existence of an adequate remedy at law.\[88\]

_Collection, reduction to possession, and protection of property. A. Discovery._**64**--The examination of third persons concerning the bankrupt's estate lies in the discretion of the court.\[68\] A court of bankruptcy cannot make an order on the application of the trustee of a bankrupt, whose estate is being administered in another district, requiring persons residing in the district to appear before the referee for examination concerning the acts, conduct, or property of the bankrupt,\[69\] though the contrary has been held.\[67\] The court having charge of the administra-

55. Notes were in the hands of indorsee. In re Georges M. Hill Co. \[C. C. A.\] 130 F. Ling, 124 T. 852. See 1 Curr. L. 321, n. 88, 89. 215. See 1 Curr. L. 322, n. 91. 56. Harris v. Second Nat. Bank, 110 Tenn. 239, 75 S. W. 1053. See 1 Curr. L. 322, n. 92. 57. In re Wolf, 122 F. 127. 58. It is immaterial that all the loans were made during insolvency, and within the four-month period. In re Colton Export & Import Co. \[C. C. A.\] 121 F. 663. 59. See ante, "Preferential transfers." Keegan v. Hamilton Nat. Bank \[Ind.\] 71 N. E. 647; Goode v. Elwood Lodge, No. 166, K. P. 169 Ind. 251, 66 N. E. 742. See 1 Curr. L. 319, n. 86. 60. Ryttenberg v. Schefer, 131 F. 513. 61. "The law does not demand the seg-

01. "The law does not demand the seg-

regation of the purchases into independent items so as to create distinct pre-existing debts." Jaguith v. Alden, 189 U. S. 78, 23 S. Ct. 649, 47 Law. EM. 717; Yaple v. Dahl-

Millikan Grocery Co., 193 U. S. 526, 24 S. Ct. 652; In re Sagor \[C. C. A.\] 121 F. 658. But

where notes are given by a debtor to pay for goods purchased, and while still unpald the

excess of cash
erditor sells other goods to the debtor, who

thereafter pays the notes when insolvent

and within four months of filing the petition

same time. In re Nicholas, 122 F. 598,

in bankrupt, such payment constitutes a

preference, which must be surrendered before the last account can be proved. In re

converse. Pond v. New York Nat. Exch. Jones, 123 F. 128. Prior to the amendment

of 1902, all indebtedness of a bankrupt to

a particular creditor existing form month

65. Creditor has not an unqualified right

to such an examination. In this case third

trented as one claim, and any payment made

party was bankrupt's common-law assignee.

and received even in good faith by both par

In re Andrews, 130 F. 388,

ties during the four-month period and while

the debtor was insolvent was a preference;

## 3 Cur. Law. bankrupt? $ 10B.

tion of the bankrupt estate has the power to order the taking of the deposition of any person having knowledge concerning the acts, conduct, or property of the bankrupt, but who resides beyond the district or state, and more than 100 miles from the court, \[98\] and to compel, by proper process, the persons, so ordered to be examined, to testify fully in regard thereto. \[99\] When necessary the bankrupt's wife may be examined. \[90\]

(SS 10) \_B. Compelling surrender by bankrupt. \[71\]--\_The bankruptcy court, in the absence of fraud or concealment, can only order the bankrupt to deliver to the trustee such property as he.has in his possession, or under his control, \[72\] and that he has such property in his possession or under his control must appear by almost incontestable proof. \[73\] Denial by the bankrupt under oath is not conclusive, \[74\] it appearing that the bankrupt had property shortly before the adjudication, of which no account nor credible explanation is given, the court may consider the property or its proceeds as being still in the possession or under the control of the bankrupt, \[75\] and the court can enforce obedience to such order by imprisonment for contempt, \[76\] but before committing the bankrupt the court should give him an opportunity to prove his inability to comply with the order. \[77\] The commitment of the bankrupt for refusal to surrender property is not imprisonment for debt, \[78\] and the bankrupt may be imprisoned for knowingly and fraudulently concealing from his trustee property belonging to his bankrupt estate. \[79\] The obtaining of an order requiring a bankrupt to pay over or surrender certain property should ordinarily be by a mo-

- **6S, 69**. In re Williams, 123 F. 321. \[70\] There being reasonable ground therefor a bankrupt's wife may be examined to determine whether a business conducted in her name is in fact hers or the bankrupt, and may be asked such questions as are pertinent to that inquiry. In re Worrell, 125 F. \[71\] The remaining of an order requiring 159. \[72\] The remaining of an order requiring 159. \[73\] The remaining of an order requiring 159. \[74\] The remaining of an order requiring 159. \[75\] The remaining of an order requiring 159. \[76\] The remaining of an order requiring 159. \[77\] The remaining of an order requiring 159. \[78\] The remaining of an order requiring 159. \[79\] The remaining of an order requiring 159. \[78\] The remaining of an order requiring 159. \[79\] The remaining of an order requiring 159. \[78\] The remaining of an order requiring 159. \[78\] The remaining of an order requiring 159. \[79\] The remaining of an order requiring 159. \[78\] The remaining of an order requiring 159.

460 BANKRUPTCY $ 10C. 3 Cur. Law.

tion for a rule upon him to show cause,\* sometimes by a mere afflavit,\* and never by a formal petition and pleadings, as in a suit in equity, unless the purpose is to bring to the notice of the court some outside party who is not bound or ready to take notice of the proceedings in bankruptcy, or some outside matter that does not appear by the ordinary record.\*

(SS 10) _C. Property in possession of officers appointed by state courts._*--A state court acquiring jurisdiction over a bankrupt's property more than four months before the filing of the petition in bankruptcy, its right to control and administer the property for the purposes for which it acquired jurisdiction, is superior to the bankruptcy court,* but if the suit in the state court was begun and seizure made within such four month period,\* or after the filing of the petition,\* the right of the bankruptcy court over the property is superior to, and after adjudication\* exclusive of the state court, and, after the adjudication, the bankruptcy court will not permit any person, even though he be an officer of a state court acting under its process,\* to interfere with the property in its custody or in the possession of its officers. Actions in the state court, if not stayed, continue, and the debtor, even though a bankrupt, may be compelled to observe and obey all lawful orders of the state court,\* and an application to restrain a state court from punishing a bankrupt for contempt may be treated as an application for a stay of the proceedings in the state court.\* A court of bankruptcy has no power to enjoin the plaintiffs, in suits against the bankrupt in the state courts, from collecting their judgments from the surety upon the bankrupt's bail bond.\* A court of bankruptcy has jurisdiction to compel an assignee for the benefit of creditors of the bankrupt, under an assignment constituting an act of bankruptcy, to turn over to the trustee or account for the property which came into his hands under the assignment,\* and the trustee is bound to bring an action to recover property so held,\* which action may be brought in a court of bankruptcy,\* and a purchaser at a sale by an assignee for the benefit of creditors, having made no payment, acquires no title to the property purchased as against the trustee in bankruptcy of the assignor subsequently appointed on an adjudication based on the assignment.\* A bankruptcy court will not summarily dispossess the receiver or other officers of a state court,\* but only by formal proceedings taken by its own receiver or trustee for that purpose,\* and

80, 81, 82. In re Adler, 129 F. 602. (Mishawaka Wvoelen Mfg. Co. v. Powell, 88 83. See 1 Curr. L. 323. 84. General assignment for the benefit of repeliven cannot be commenced and main-creditors. In re Knight, 125 F. 35; Bloch v. trained against the trustee to recover propBloch, 42 Misc. 278, 86 N. Y. S. 1047. 85. It is immaterial that the suit in the state court was for the enforcement of a valid line created before the four month period. In re Knight, 125 F. 35. A state court cannot be used by the appointment of a receiver because of insolvency obtain priority of jurisdiction to administer the property of a debtor to the exclusion of a court of bankruptcy. Id. 86. In re Weinger, Bergman & Co., 126 F. 875. Action to frecelose a mortagate. In 88. Proceedings supplementary to execution are proceedings in the action. In re re Weinger, 12 F. 38. A credit to frecelose a mortagate. In 88. Proceedings supplementary to execution are proceedings in the action. In re Weinger, 12 F. 280. 89. No fine having been imposed, and it being evident that no actual attempt was intended. In re Weinger & Co. Carriage Co. v. Weils, 99 Mo. App. 641, 74 S. 124 F. 280. 91. Jaquith v. Rowley, 18 U. S. 620, 21 S. 35. 47 Law. Ed. 620. 92. In re Thompson, 12 F. 174. 93. 94, 95. In re Knight, 125 F. 35. 96. Ross-Mechan Foundry Co. v. Southclas, 127 F. 160; or to determine conflicting claims as to the title and right of possession 3 Cur. Law. BANKruptCY SS 10D. 461 the state court, upon proper application being made pursuant to an order of the bankruptcy court, will order its receiver to turn over the assets of the bankrupt to the bankruptcy receiver or trustee,98 and the state receiver must apply to the bankruptcy court for the allowance of his commissions and expenses.99 The bankruptcy court can only compel the state court's receiver to turn over such assets of the bankrupt as the latter's creditors are entitled to share in,1 a state court having jurisdiction to complete pending mortgage foreclosure proceedings, its receiver is entitled to the possession of the property covered by the mortgage,3 but as to the surplus arising from the mortgage sale,8 or a sale upon execution,4 the trustee in bankruptcy is entitled to possession.

(SS 10) \_D. Summary proceedings against third persons; jurisdiction.5--A court of bankruptcy has no jurisdiction to summarily require a third person to pay over money or surrender property in his possession, and to which he claims an adverse right as against the bankrupt's estate,8 except where such court finds it absolutely necessary for the preservation of the estate to take the possession of the property from the adverse claimant by means of its officers.7 The court, or a referee, has jurisdiction to summarily determine the question of the validity of the claim of a third party to a lion upon, or an interest in, property, or the proceeds of property, lawfully in the custody of a trustee in bankruptcy,9 but the court has no jurisdiction of a plenary suit in equity for that purpose, brought by the trustee against the creditor, where the latter is a foreign corporation, and does not consent nor appear,9 but it has jurisdiction if the property is in the hands of the bankrupt at the time of filing the petition.10 The court may determine whether a real or pretended adverse claim exists,11 the claim being adverse the issues are only determinable by a plenary suit,12 but if it finds such claim to be colorable it has power to summarily place its receiver or trustee in bankruptcy in possession.

Footnote 10: In re Leeds Woolen Mills, 129 F. 922. 11. In re Brasquer, 121 F. 910. The restree may so do. In re Knickerbecker, 111 F. 1044. In re Teschmacher, 127 F. 728. Claim of seizure or process from a state court. In re Veringer, Bergman A. 16 F. 875: In re Knicker, 111 F. 386. See 1 Curr. L. 323, n. 16-18. 12. Pleadings verified. In re Knickerbecker, 121 F. 1044. 12. The petition not alleging that the petition is colorable only, and re-spondent promptly objection to the form of the proceeding, the bankrupt court has no jurisdiction to determine the matter except by plenary suit. In re Scheber, 131 F. 121. 12. 131 F. 131 F. 132. The petition not alleging that the petition is colorable only, and re-spondent promptly objection to the form of the proceeding, the bankrupt court has no jurisdiction to determine the matter except by plenary suit. In re Scheber, 131 F. 121. 131 F. 132. The petition not alleging that the petition is colorable only, and re-spondent promptly objection to the form of the proceeding, the bankrupt court has no jurisdiction to determine the matter except by plenary suit. In re Scheber, 131 F. 121. 131 F. 132. The petition not alleging that the petition is colorable only, and re-spondent promptly objection to the form of the proceeding, the bankrupt court has no jurisdiction to determine the matter except by plenary suit. In re Scheber, 131 F. 121. 131 F. 132. The petition not alleging that the petition is colorable only, and re-spondent promptly objection to the form of the proceeding, the bankrupt court has no jurisdiction to determine the matter except by plenary suit. In re Scheber, 131 F. 121. 132. The petition not alleging that the petition is colorable only, and re-spondent promptly objection to the form of the proceeding, the bankrupt court has no jurisdiction to determine the matter except by plenary suit.

session of the property.13 As to whether or not the court may acquire jurisdiction to summarily determine an adverse claim upon its merits by consent, there is a conflict in the decisions.14 An adverse claim, to defeat these proceedings, must be a holding of the property at the time the petition was filed under a bona fide claim of ownership,15 a mere lien,16 or a claim by bailors,17 are not such adverse claims, but a creditor's title to the proceeds of a sale upon execution,18 the right of a surety on the bankrupt's bail bond to property left with him by the bankrupt to indemnify him for his liability,19 and that of a buyer claiming under an executed sale from the bankrupt,20 are such adverse claims, as is the claim of a party to whom it is alleged the bankrupt has fraudulently conveyed property,21 and that of one claiming to have received a preference without reasonable cause to believe that a preference was thereby intended.22 Where property is claimed adversely to a trustee the latter must proceed to obtain possession like any other owner,23 and by regular proceedings in courts having jurisdiction,24 the state and Federal courts having concurrent jurisdiction in this regard.24 (SS 10) _E. Actions to collect or reduce the property to the trustee's possession.26_--The trustee may bring an action in the state27 or Federal28 courts, at any time within two years of the date when the estate was properly closed,29 without first obtaining an order to do so from the court of his appointment.30 Denial of the trustee's appointment and qualification raises a material issue which must be determined before he is entitled to judgment.41 The trustee in bankruptcy 13. Where property was taken after the filing of the petition in bankruptcy on a writ of replevin which described other property than that selesed, the court has the power to order its surrender by the person in possession to the receiver or trustee in bankruptcy. In re Veringer, Bergman & Co., 126 F. 875: In re Kane, 131 F. 386, the 14. That it may. In re Adams, 130 F. 788. That it cannot. In re Teschnacher & Mrazay, 127 F. 728. Of course if such claim--and went on the summary proceedings to the very end and only objected to the jurisdiction after a decision against him, the objection is not likely to receive much consideration, but a seasonable exercise of his right to object is entitled to protection. If, See 1 Curr. L. 323, n. 17. 15, 16. In re Breslauer, 121 F. 910. Has jurisdiction to determine, in summary proceedings before the referee, the validity of a mortgage on property of the bankrupt of which the trustee has obtained the possession and legal title. In re Kellogg \[C. C. A.\] 121 F. 333. 17. Balitors permitting their goods, in the hands of an insolvent ballee becoming bankrupt, to pass into the custody of the receivers or trustees in bankruptcy cannot occupy the attitude of adverse claimants in determining the jurisdiction of the court. In re Leeds WOolen Mills, 129 F. 922. 18. A creditor's title to the proceeds of an execution, fashed against the bankrupt within four months of filing the petition, which have been actually paid to the creditor, or by the sheriff. In re Knickerbocker, 121 F. 104. 19. It is not necessary that the surety should claim to be the absolute owner of the property in his possession, it is sufficient if his liability has not been determined or satisfied. Jayatull v. Rovney, 138 C. S. 620. 23 S. C. 369, 47 Law. Ed. 620. 20. In re Flynn & Co., 126 F. 422. 21. McNulty v. Feingold, 129 F. 1001; In re Hartman, 121 F. 940. 22. In re Adams, 130 F. 788. 23. Ross-Meeham Foundry Co. v. South-ern Car & Foundry Co., 124 F. 403. 24. Must make necessary persons parties, serve proper process, and file proper pledings, Ross-Meeham Foundry Co. v. South-ern Car & Foundry Co., 124 F. 403; In re Knickerbocker, 121 F. 1004; In re Teschnacher & Mrazay, 127 F. 728. 23. An adverse claimant may bring suft in the state court, and try title to the property, but after the jurisdiction of the bankruptcy court has attached he cannot take the property in specie out of the possession of the court or any of its agents. Crosby v. Spear \[Me.\] 87 A. 881. Receiver cannot en-join trover brought in the state court. If the action was replevin, quaere. In re Knicker \[C. C. A.\] 121 F. 984. 26. See 1 Curr. L 324. 27. See next subdivision, Jurisdiction of Coutrs. Clevenger v. Moore \[N. J. Law\] 85 A. 88. 28. See next subdivston, "Jurisdiction of Coutrs." 29. Estate had been improperly closed and then re-opened, held action could be brought at any time within two years of final closing. Bilifsky v. Abraham, 183 Mass. 401, 67 N. E. 318. 30. Traders' Ins. Co. v. Mann, 118 Ga. 381, 45 S. E. 426. Need not have written authority. McLaunahan v. Blackwell, 119 Ga. 64, 45 S. E. 785. 81. Previous judgment on 3 Cur. Law. BANKruptcy $ 10E. 463

may maintain an action against a creditor whose name did not appear in the list of creditors, and who had no notice of the bankruptcy proceeding, to recover money collected in fraud of creditors,\[32\] and he need make no demand in order to recover property unlawfully transferred by the bankrupt.\[**\] An action to recover a preference is one at law not in equity,\[4\] but the trustee's action to recover the value of a preference should be one in equity for an accounting,\[**\] and he should also use a bill in equity to have a fraudulent conveyance set aside.\[36\] An action by the trustee to set aside a conveyance by the bankrupt, made with the intent to hinder, delay, or defraud creditors, is an action for relief on the ground of fraud,\[**\] and hence is governed by the statute of limitations as to such actions,\[**\] but an action to recover a preferential payment is not an action for fraud.\[**\] In a suit to set aside a transfer by the bankrupt as fraudulent, and as a preference, the case should not be referred to a jury until it appears on trial that it is necessary or desirable that the issues be so determined.\[**\] The defense of usury is available to the trustee in bankruptcy against a mortgage given by the bankrupt, the trustee having title to the property.\[**\] A judgment for defendant in an action by the trustee to determine the ownership of property is a bar to a subsequent action by the trustee to recover the proceeds thereof on the same grounds,\[**\] and this is true though the judgment in the first case was not given upon the merits.\[**\]**

_Jurisdiction of courts.\[\*\*\]_--The trustee taking actual possession of property, although it be in another state, it is in the custody of the bankruptcy court administering the estate.\[**\] In a suit by a trustee to recover a fund for the estate, defendant appearing generally and answering to the merits, the bankruptcy court has jurisdiction by consent.\[**\] As to whether or not a Federal court has jurisdiction, in the absence of consent, of an action by the trustee to set aside an alleged fraudulent transfer of property there is a conflict in the decisions.\[**\] Since the amendatory act of 1903 the bankruptcy court has jurisdiction of suits for the recovery of preferences.\[**\] The trustee may bring an action against a foreign corporation to collect a demand due the bankrupt, in the district where the bankrupt's family resides, though the bankrupt has absconded.\[**\] A state court has jurisdiction of an action by a trustee to collect an assessment level upon the stockholders of a bankrupt corporation.\[**\]\*\*

_Parties.\[\*\*\]_--In an action by a trustee in bankruptcy to set aside an alleged fraudulent chattel mortgage, subsequent mortgages of the same property are not\_

33. Roberts v. Fernal \[N. H.\] 55 A. 942. 33. Goldberg v. Harlan \[Ind. App.\] 67 N. 5. 107. 34. Hodges v. Kohn \[S. C.\] 45 B. E. 102. 35, Houghton v. Stiner, 92 App. Div. 171, 87 N. Y. S. 10. 38. Thompson v. First Nat. Bank \[Mlas.\] 36 So. 65. 37, 88. Harrod v. Farrar \[Kan.\] 74 P. 624. 39. Baden v. Bertenshaw \[Kan.\] 74 P. 639. 40. 34. 32. 33. 34. 35. 36. 37. 38. 39. 41. 39. 42. 39. 43. 38. 39. 44. 39. 45. 46. 39. 47. 48. 49. 48. 49. 49. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 41. 42. 44. 46. 48. 49. 42. 45. 47. 48. 49. 40. 41. 43. 44. 48. 49. 41. 42. 45. 46. 47. 48. 49. 42. 48. 49. 43. 44. 45. 47. 48. 49. 40. 41. 44. 48. 49. 42. 45. 48. 49. 40. 42. 43. 44. 45. 46. 47. 48. 49. 41. 42. 43. 44. 48. 49. 42. 45. 46. 47. 48. 49. 43. 48. 49. 44. 45. 47. 49. 45. 48. 49. 46. 47. 48. 49. 48. 49. 49. 40. 41. 42. 41. 43. 44. 49. 41. 42. 44. 45. 46. 47. 48. 49. 48. 49. 49. 40. 41. 44. 49. 42. 43. 44. 45. 46. 47. 48. 49. 41. 42. 44. 48. 49. 42.

necessary parties," and a so-called separate answer of the bankrupt alleging such facts, and that such persons had not been made parties to the action, is properly considered as a demurrer for a defect of parties." In an action to set aside an alleged fraudulent conveyance, all who were parties to the fraud, or who have acquired part of the property claiming title thereto are proper defendants." A trustee in bankruptcy of a judgment debtor in a creditor's bill in a state court may not be substituted as complainant in the absence of an order of the Federal court that the lion be preserved by the trustee for the benefit of the estate," and the petition of a trustee in bankruptcy asking to be substituted as party plaintiff in a creditor's bill filed by a creditor of the bankrupt, who has filed his claim before the referee in bankruptcy, must allege that such creditor has waived his security."

\_Pleading."--\_The pleadings are governed by the equity rules as to pleadings." The complaint in an action to recover a preference must allege insolvency at the date of the transfer," that the preference was given within the four months immediately preceding the filing of the petition," and that the creditor had reasonable cause to believe that a preference was thereby intended." In a suit to recover property fraudulently transferred, the general rule that where fraud is relied upon the facts and circumstances upon which reliance is had must be clearly and concisely set out applies." A bill in equity to recover property alleged to have been fraudulently conveyed will not be dismissed though it alleges that the property was obtained by fraud, through a conspiracy, and that an accounting is necessary." The complaint in an action by a trustee to recover money belonging to the bankrupt must allege nonpayment." An allegation of conspiracy on the part of the bankrupt and defendants is sustained by proof that any two of the defendants so conspired."

\_Evidence."--\_The competency of a witness before the bankruptcy court must be determined by the laws of the state in which the proceedings are pending." Copies of the proceedings in bankruptcy in order to be admissible in evidence in another court must be certified according to the provisions of the national bankruptcy law," and where introduced at the trial of a suit by a trustee in the state court to prove a fact collateral to the main issue, it is unnecessary to support them

5A. In this case subsequent mortgages

allenging that the goods were sold at a gross-had not filed their mortgages as required by

ly inadequate price (stating the figures) and law. Shanks v. National Casket Co., 88 N. Y.

that the sale was conducted at night, and be-

S3. Shanks v. National Casket Co., 88 N.

and that the purchaser knew of the bankrupt's condition and, paying for the goods

54. Sexton v. Sebring, 89 N. Y. S. 372.

01. Kinnmouth v. Braeutigam \[N. J. Eq.\] 87

large an amount, part of which was refunded. A. 1013.

56. Mere allegation of the filing of the

meditheness. Johnson v. Forsyth Mercancreditor's claim and its allowance Is Insuffit-

tile Co., 127 F. 846.

client. Kohout v. Chaloupka \[Neb.\] 96 N. W. 63.

173.

001. Where the bankrupt had make an assignment for the benefit of creditors prior to

001. The petition alleging that the property

was not assigned for a present fair consider-

ation, an answer denying this allegation need

v. Wagar, 87 App. Dlv. 255, 84 N. Y. S. 377.

not set forth in detail all the circumstances

65. Sakron v. Sebring, 89 N. Y. S. 372.

connected with the facts alleged in the an-

swer. McNulty v. Wiesen, 130 F. 1012.

67. In re Josephne, 121 F. 142. In those

01. It will not be presumed in the appel-

late court. Schilling v. Curran \[Mont.\] 76 P.

998.

001. Greene v. Montana Brewing Co., 28

Mont. 380, 72 P. 761.

61. Greene v. Montana Brewing Co., 28

Mont. 380, 72 P. 761.

62. A bill of a bankrupt's trustee to set

01. A bill of a bankrupt's trustee to set

01. In re Josephne, 121 F. 142. In those

01. See 1 Curr. L. 324.

01. In re Josephne, 121 F. 142. In those

states where a husband cannot testify against

late court. Schilling v. Curran \[Mont.\] 76 P.

h like wife without her consent, the petition and

998.

001. Greene v. Montana Brewing Co., 28

in evidence against the wife of the bankrupt without her consent. Action by trustee

68 to recover property fraudulently conveyed.

Mont. 380, 72 P. 761. See 1 Curr. L. 324, n. 43.

69. A bill of a bankrupt's trustee to set

01. A. Lehmann & Co. v. Rivers, 110 La.

1079, 36 S. 296.

by establishing the jurisdiction of the Federal court over the bankrupts." A copy of the testimony given by the bankrupt before the referee, and which he states to be true, is inadmissible in a suit by his trustee to set aside an alleged preference." The testimony of officers of a bankrupt corporation taken under either section 7, cl. 9, or section 21a, being reduced to writing, is admissible in a subsequent proceeding against them to recover property alleged to be in their possession or under their control," but the testimony of one other than the bankrupt, or if a corporation, other than an officer or stockholder thereof, not being directed to any defined issue is inadmissible in such proceeding." In an action to recover an alleged preference, the burden of proof is upon the trustee to prove all the essentials of a preferential transfer;" he must prove the payment or transfer by the debtor to the creditor," that the debtor was insolvent at the time of the transfer," that the preference was given within the four months immediately preceding the filing of the petition," that the creditor had reasonable cause to believe a preference was thereby intended," that a preference actually resulted," and in those courts where it is held that the bankrupt must intend a preference, that fact must be proven by the trustee." In an action to set aside a fraudulent conveyance the burden of proof is upon the trustee to prove the fraud," and where he seeks to recover the value of property reconveyed by a vendee under a fraudulent conveyance from the grantor, the value of the goods so reconveyed." The uncontradicted testimony of the creditor receiving the alleged preference that he did not know of the debtor's insolvency is sufficient to defeat a recovery." Evidence that defendant's attorney was present at the bankruptcy proceedings is admissible to show defendant's knowledge." Acts of the bankrupt, in which the purchaser did not participate, occurring after the sale and payment are not competent evidence on the question of the purchaser's intent or knowledge." Fraud may be proved by circumstantial evidence." It has been held that the adjudication in bankruptcy conclusively establishes that a preference was intended." Though evidence showing the due appointment of a trustee be admitted without objection, its sufficiency may be afterwards questioned." Facts determined in the bankruptcy proceedings are not ad-

68. Properly certified copies of the adjudl- -- grantee under a fraudulent conveyance, cation and of the order of the referee approv- --claiming as a bona fda holder, must show in the bond of the trustee are admissible -- that he is a purchaser for a valuable consid- -- in an action by the latter to recover a --ration and without notice of the grantor's fraudulent preference, without showing the -- bankrupt had been served with a subpoena -- G55. Action by trustee to recover certain or had appeared before adjudication. Shiftsson v. Farber Bank \[Mo. App.\] 80 S. V. 321. 760. Bankrupt embodied it as part of a deposition. Bonnie & Co. v. Perry's Trustee, 25 Ky. L. R. 1560, 78 S. W. 208. 713. 72. In re Alphph & Lake Cotton Co., 131 F. 824. 73. Dickenson v. Stutls \[Ga.\] 48 S. E. 173. 74. Klimball v. Dresser \[Me.\] 57 A. 787. 75. In re Mandel, 127 F. 885; Kimball v. Dresser \[Me.\] 57 A. 787. See 1 Curr. L. 324, n. 46. 76. Baden v. Bertenshaw \[Kan.\] 74 P. 639; Greene v. Montana Brewins Co., 28 Mont. 830. 72 P. 751; In re Mandel, 12 F. 883. 77. Greene v. Montana Brewing Co., 23 Mont. 830. 72 P. 751; Thompson v. First Nat. Bank \[Miss\]. 35 S0. 85; Baden v. Bertenshaw \[Kan.\] 74 P. 639. 78. Baden v. Dresser \[Me.\] 57 A. 787; In re Mandel, 127 F. 883. 79. Baden v. Bertenshaw \[Kan.\] 74 P. 639. 79. Baden v. Bertenshaw \[Kan.\] 74 P. 639. 80. 81. 82. 83. 84. 85. 86. Under the laws of North Carolina the -- missible in an action by the trustee against one not a party to the bankruptcy proceedings nor bound thereby."

\_Insolvency."--\_The adjudication of bankruptcy," the books of the bankrupt," the inventory," the schedules," and the appraisement," are all admissible to prove insolvency though as to their value as proof there is a conflict. That a debtor made an assignment upon which he was declared a bankrupt is not proof of insolvency prior thereto." Judgments existing against a debtor do not necessarily prove insolvency."

\_Trial and judgment."--\_Where a trustee is suing for the value of an alleged preference, an instruction that the verdict, if for the plaintiff, should be for the value of the "property, money or both" given the creditor, is too broad." The trustee obtaining a judgment upon a theory not urged by him is upon reversal entitled to have the trial court pass upon the theories urged by him."

\_Costs.\_1--\_It is competent for a state court, in a suit by a trustee, to set aside a fraudulent conveyance to allow the innocent vendee, under such conveyance, expenditures made in preserving the property," but it is otherwise after the vendee has voluntarily surrendered the property to the trustee." Trustees in bankruptcy are liable for the costs of a suit instituted by them to recover assets rejected by them as valueless." Damages and costs are properly included in a judgment awarded against a receiver in bankruptcy, so as to render the sureties on the receiver's recogninance personally liable therefor."

**88.**: Testimony of the referee as to the fact -- are competent evidence in a suit to set aside of the debtor's insolvency as determined in a preferential transfer of property, of insolvency proceedings is inadmissible, in a suit by the trustee, to recover a prefer- -- In re Mandel, 127 F. 868.

ence from a creditor who was not a party to the bankruptcy proceedings, and was not bound thereby. Cuillane v. State Bank --\[Iowa\] 98 N. W. 887.

**89.**: See ante, $.

**90.**: Hackney v. Hargreaves Bros. \[Neb.\] 99 N. W. 675. An adjudication of bankruptcy -- adjudging one insolvent as of the date of the filing of his schedule of labilities is proof of his insolvency a short time prior thereto. One month. Sexton v. Sephring, 89 N. X. $72. That 17 days after the transfer the debtor was adjudged a bankrupt does not establish his insolvency at the date of transfer. Klimball v. Dresser \[Mw.\] 57 A. 787. The adjudication conclusively establishes the bankrupt's insolvency. Calkins v. Farmers --& Meohants' Bank, 99 Mo. App. 509, 73 S. W. 1098. The adjudication in a bankruptcy proceeding that the bankrupt was insolvent at the time a judgment was obtained against her, less than four months before the filing of the petition in bankruptcy, held conclusively in an action by the trustee to recover the proceeds of a sale of the bankrupt's property under execution. DeGraf v. Lang, 92 App. Dlv, 564, 87 N. Y. S. 78. The adjudication of bankruptcy is a judicial finding of the fact of insolvency. In re Jones, 123 F. 128.

**91.**: One not conclusive. In re Docker-Fos- ter Co., 123 F. 190.

**92.**: In re Docker-Foster Co., 123 F. 190. Are admissible as evidence of the same class or character as the books of the bankrupt. Hackney v. Hargreaves Bros. \[Neb.\] 99 N. W. 675.

The verified schedules of a bankrupt are competent evidence on the question of insolvency, not only at the date of filing but within a reasonable time prior thereto, they 3 Cur. Law. BANKruptCY SS 11B. (SS 10) _F. Claims not reduced to possession by the trustee._--The trustee may, subject to the control of the bankruptcy court, refuse to take possession of properties that will be burdensome rather than profitable to the estate;' he must elect, within a reasonable time, whether or not he will take any particular property of the estate,' and if he does not do so it is deemed an election to reject,' and the action of the district court, many years after the assignee's discharge, in allowing him to sell the assets does not change this, no reference being made to this claim.\[10\] When he elects to reject, the title to the asset remains in the bankrupt;\[11\] thus the latter may recover usurious interest paid a national bank, his trustee in bankruptcy not reducing the claim to possession,\[12\] and the property being abandoned as value-less to the estate, the trustee is generally precluded from using the same upon its becoming valuable.\[13\] Trustees turning over property to the bankrupt as valueless, without an order of the court, the court, when that is made to appear, will approve such action nunc pro true.\[14\] While the legal title to property not scheduled remains in the bankrupt after discharge, yet he holds it in trust for the creditors to be administered by a trustee.\[15\] Failure by a bankrupt to schedule a claim and notify the trustee of its existence will preclude him from suing thereon.\[16\] $ 11. \_Protection of trustee's title and possession. A. Restraining interference.\[17\]--Courts of bankruptcy have power to enjoin all persons within their respective jurisdictions,\[18\] although strangers to the proceeding,\[19\] from doing any act that will interfere with or prevent the due administration of the bankrupt estate, it cannot enjoin proceedings in a state court in an action against the bankrupt for fraud,\[9\] and the proceedings being in a state court, no rule of comity requires the United States court to compel persons whose rights are seriously jeopardized by the proceedings in the state court to resort thereto for protection.\[21\] (SS 11) \_B. Actions affecting the trustee's title.\[22\]--A state court has jurisdiction of an action of trover brought against a trustee or receiver in bankruptcy to recover the value of the property alleged to have been converted by bim as a part of the assets of the estate.\[23\] No leave is necessary to sue a trustee in bankruptcy.\[24\] A bankrupt is not an indispensable party to a suit against his trustee by one claim-in bankruptcy with permission of Federal court. Unmack v. Douglass, 75 Conn. 633, 55 A. 12. **6.** See 1 Curr. L. 324. \*\*7, S. Fleming v. Courtenay \[Me.\] 57 A. 592. **9.** Forbearance to claim an asset while acting as assignee and for 22 years thereafter held to show an intent to reject it. **10.** His petition to the court for license to sell it forth that no assets of any value had come into his possession, and that he had an offer of $100 for all assets of whatsoever their nature belonging to the estate. The particular asset in question was an unliquldated claim. Petition was made 22 years after discharge. Fleming v. Courtenay \[Me.\] 57 A. 592. **11.** Fleming v. Courtenay \[Me.\] 57 A. 592. **12.** Lassater v. First Nat. Bank \[Tex. Civ. App.\] 73 S. W. 1054; Id., 96 Tex. 345, 72 S. W. 1057. **13.** Where an ordinary life insurance policy of a bankrupt, having no cash surrender value, is turned over to him as valueless by the trustees without an order of the court, and he, keeping it up, dies before his discharge, the court will not require that the proceeds be turned over to the trustees. The rule is probably otherwise with endowment, tontine, or other investment policies having a determinable value \[Act 1898, SS 70, 61 S. In re Josephson, 121 S. 142; affirmed in Meyers v. Josephson \[C. C. A.\] 124 F. 734. **14.** Turned over life insurance policy having no cash surrender value. In re Josephson, 121 F. 142. **15.** Though omitted from the schedules in good faith and by advice of counsel. Rand v. Iowa Cent. R. Co., 89 N. Y. S. 122. **16.** Atwood v. Bailey, 184 Mass. 138, 68 N. E. 13; Rand v. Iowa Cent. R. Co., 89 N. Y. S. 122. **17.** See 1 Curr. L. 328. **18.** In re Hornstein, 122 F. 266. **19.** In re Hornstein, 122 F. 266. **19.** In re Wolock, 120 F. 516. **20.** In re Hornstein, 122 F. 266. **21.** In re Zimmer, 236. **23.** In re Spitzer \[C. C. A.\] 130 F. 878. **24.** Motion for leave to sue, petitioner proposing to bring an action to foreclose a mechanic's lien on the property of the bankrupt, denied. In re Smith, 121 F. 1014. **25.** In re Hornstein, 122 F. 266. **27.** In re Hornstein, 122 F. 266. **28.** In re Zimmer, 236.

ing an interest in property scheduled by the bankrupt as his own.\[28\] A lienor having intervened in a bankruptcy proceeding is bound by the questions adjudicated there.\[28\] The decree of adjudication being regular on the face of the records, it cannot be collaterally attacked.\[27\] The filing of a suggestion of the bankrupt's death, without any further action, is insufficient to entitle his widow to dover as against the trustee.\[28\] A reclaiming creditor is entitled to an inspection of the bankrupt's accounts and papers in the hands of the trustee.\[29\]

SS 12. \_Rights of trustee in pending actions by and against bankrupt; jurisdiction of state courts.\[30\]--The adjudication in bankruptey does not abate an action pending against the bankrupt,\[31\] or take away the right of the state court to decree and enforce a specific lien upon the property.\[28\] A trustee in bankruptey may intervene in a suit brought by the bankrupt before the adjudication in bankruptcy,\[31\] and he may appeal from the order denying his petition of intervention,\[34\] but he is not bound to intervene,\[38\] the suit does not abate upon his failure to have himself substituted as plaintiff,\[39\] nor is the bankrupt's debtor thereby discharged from liability,\[37\] but the suit may still be prosecuted by the bankrupt,\[38\] and this is so though no trustee is appointed.\[39\] In case the bankrupt ultimately recovers in such suit, and any question arises as to the right of the trustee or creditors to the money, or as to defendant's being protected in paying it to the proper party, both may be secured by subsequent steps taken for that purpose.\[40\] A bankrupt continuing to prosecute or defend a suit after adjudication, he cannot subsequently object to a judgment obtained therein on the ground that the trustee should have been substituted for him.\[41\] The trustee in bankruptcy voluntarily appearing in a proceeding against the bankrupt, without being made a party, has no standing in court, where he fails to prove either the fact or the date of the bankruptcy,\[42\] but being made a party he stands in the same position as the defendants with respect to the litigation.\[43\] A conditional discharge in bankruptey providing that it should not affect 25. Sutt by bankrupt's wife against his trustee in bankruptcy to enforce a resulting trust of real estate scheduled by the bankrupt's property. Snyder v. Smith ruled as a part of his assets. Buckingham v. \[Mass.\] 69 N. E. 1089. Sections 11b and 11c Estes (C. C. A.) 128 F. 584. \[26\] Is bound by finding of debtor's insulveny, and cannot claim otherwise in suit by trustee to recover an alleged preference. Des Molnes Sax, Bank v. Morgan Jewerly Co. \[Iowa\] 99 N. W. 121. \[Iowa\] 99 N. W. 121. \[27\]. Roberts v. Fernald \[N. H.\] 65 A. 942. \[28\]. Sutt by trustee in bankruptcy to have a deed by the bankrupt to his wife set aside as fraudulent. Gray v. Chase, 184 Maes. 44, 68 N. E. 676. \[29\]. In re Saur, 122 F. 101. \[30\]. See 1 Curr. L. 326. \[31\]. Sutt to fececelse a chattel mortgage givon by the bankrupt. Des Molnes Sax. Bank v. Morgan Jewerly Co. \[Iowa\] 99 N. W. 121. \[32\]. In states having statutes providing that no action shall abate by the transfer of any interest therein during its pendency. bankruptcy proceedings by the plaintiff do not operate to abate an action \[Code, $ 3471.\] VVlsey v. Jewert Bros. & Co., 122 Iowa, 316, 98 N. W. 114. \[33\]. May fecelose a chattel mortgage givon by the bankrupt. Des Molnes Sav. Bank v. Morgan Jewerly Co. \[Iowa\] 99 N. W. 121. \[34\]. Griffin v. Mut. L. Ins. Co., 119 Ga. 664, 46 S. E. 870. May intervene and contest the validity or existence of the lien sought to be enforced and in case the validity of the lien be denied he may be awarded the property. Des Moines Sax, Bank v. Morgan Jewerly Co. \[Iowa\] 99 N. W. 121. \[35\]. The degree of adjudication being regular on the face of the records, it cannot be collaterally attacked.\[36\] The filing of a suggestion of the bankrupt's death, without any further action, is insufficient to entitle his widow to dover as against the trustee.\[37\] A reclaiming creditor is entitled to an inspection of the bankrupt's accounts and papers in the hands of the trustee.\[38\]

SS 12. \_Rights of trustee in pending actions by and against bankrupt; jurisdiction of state courts.\[30\]--The adjudication in bankruptey does not abate an action pending against the bankrupt,\[31\] or take away the right of the state court to decree and enforce a specific lien upon the property.\[32\] A trustee in bankruptcy may intervene in a suit brought by the bankrupt before the adjudication in bankruptcy,\[38\] and he may appeal from the order denying his petition of intervention,\[34\] but he is not bound to intervene,\[38\] the suit does not abate upon his failure to have himself substituted as plaintiff,\[39\] nor is the bankrupt's debtor thereby discharged from liability,\[37\] but the suit may still be prosecuted by the bankrupt,\[38 3 Cur. Law. BANKruptCY $ 13. 469

a certain pending suit until final judgment therein, and that as to such judgment the discharge should have the same force that it would have if the judgment had been recovered after the application for the discharge, and before the granting of the same, permits the prosecution of such suit. \[44\]

SS 13. _Management of the property and reduction to money._"--The courts of bankruptcy have the power to collect, reduce to money, and distribute all property in the possession of the debtor when the proceedings are instituted," and they are not limited to the resultant interest of the bankrupt therein." A bankruptcy court having in its possession a fund touching which there is a dispute may, by virtue of its inherent powers, determine the right to the fund thus in its possession;" it may marshal assets in the hands of a trustee," compel the assignee under a void state assignment to render an account," and the court may, in its discretion, turn over the property of a bankrupt to a lienor whose lien is equal to the value thereof." An insurer is entitled to have the property taken care of and proof of loss made." Being an officer of the court, and as such subject to its direction in all matters concerning money or property which may have come into his possession by virtue of his office," the trustee may, under the direction of the court, make the necessary payments to mature a tontine life insurance policy payable to the bankrupt, his assigns or legal representatives, it being clearly for the benefit of the estate to so do." A bankrupt's receiver and trustee taking possession of property in the hands of the bankrupt at the time of filing the petition are not liable in conversion to the seller to the bankrupt by selling the same under order of the court, such seller not electing to rescind for fraud until after the institution of the bankruptcy proceedings." A trustee in bankruptcy is liable upon a reversal of a judgment recovered by him for a fund paid him under such judgment, and that his attorney retained a part thereof for fees and disbursements is no defense," but the court of bankruptcy cannot summarily require him to pay a judgment for costs rendered against him in another jurisdiction, there being no funds of the estate in his hands." A state court has jurisdiction to appoint an auditor to distribute the fund arising on foreclosure of the real estate of a bankrupt."

Lattner v. McKinnon, 85 App. Div. 224, 83 N. \[\]

V. S. 315. He can raise no issue the bank-rupt could not raise, and is bound by the iss-

Rodgers \[C. C. A.\] 125 F. 169. \[\]

uses tendered by the latter in his answer.

4B. As between a partnership and indl-

The trustee cannot admit away by his an-

vidual creditors. Burleigh v. Foreman \[C. C.\]

swer any defense the bankrupt had. Id. A.\] 125 F. 217. \[\]

In New York, the supplemental complaint

50. Where he appears and submits his ac-

bringing in as a party defendants' trustee in

count and enters upon a hearing without ob-

bankruptcy may demand the "same judg-

ment as the original complaint" there being

to require him to turn over the property to no answer in the case \[

Code City. Proc. 1207\]. Id.

44. Standard Sewing Mach. Co. v. Alexson \[

Sen \[C. C.\] 128 F. 676\].

ander \[

S. C.\] 47 S. E. 711.

45. See 1 Curr. L. 326.

01. In re Union Trust Co. \[

C. C. A.\] 122 F. 937.

47. May sell the property free from incumbrances. In re Union Trust Co. \[

C. C. A.\] 122 F. 937.

48. This rule is not peculiar to bankruptcy

courts. In re Antige Screen Door Co. \[

C. A.\] 123 F. 249. Receiver obtained peace-

able possession of property of the bankrupt,

though a warehouseman claimed to be in

actual possession thereof and had issued re-

cepits therefor to the bankrupt who had

transferred the same, such property was

sold by order of the court, the holders of the

warehouse receptions agreeing thereby by stip-

13. 469

a certain pending suit until final judgment therein, and that as to such judgment

the discharge should have the same force that it would have if the judgment had been recovered after the application for the discharge, and before the granting of the same, permits the prosecution of such suit. \[44\]

SS 13. _Management of the property and reduction to money._"--The courts of bankruptcy have the power to collect, reduce to money, and distribute all property in the possession of the debtor when the proceedings are instituted," and they are not limited to the resultant interest of the bankrupt therein." A bankruptcy court having in its possession a fund touching which there is a dispute may, by virtue of its inherent powers, determine the right to the fund thus in its possession;" it

may marshal assets in the hands of a trustee," compel the assignee under a void state assignment to render an account," and the court may, in its discretion, turn over the property of a bankrupt to a lienor whose lien is equal to the value thereof." An insurer is entitled to have the property taken care of and proof of loss made." Being an officer of the court, and as such subject to its direction in all matters concerning money or property which may have come into his possession by virtue of his office," the trustee may, under the direction of the court, make the necessary payments to mature a tontine life insurance policy payable to the bankrupt, his assigns or legal representatives, it being clearly for the benefit of the estate to so do." A

bankrupt's receiver and trustee taking possession
egin{tabular}{c c c}
470 & BANKruptCY $ 13. & 3 Cur. Law. \\ \\end{tabular}

_Sale by trustee._${}^{59}$--The sale by a trustee is a judicial one.**${}^{60}$** A court of bankruptcy has jurisdiction to order the sale of the nonexempt property of the bankrupt, free from incumbrances,${}^{61}$ the licenor should be notified,${}^{62}$ though he may waive such requirement.${}^{83}$ In the absence of some special direction in the order of sale of real estate of a bankrupt, the trustee sells only the interest of the bankrupt therein,${}^{64}$ one claiming an adverse interest to the bankrupt, and who is a stranger to the proceedings, is not affected by the sale,${}^{65}$ and has no interest in the proceeds,${}^{66}$ nor has the bankruptcy court, after the property has been sold and conveyed, jurisdiction to adjudicate the rights of such claimant therein,${}^{97}$ nor are such facts grounds for setting aside the sale.${}^{88}$ The referee has discretionary power to direct a private sale of the bankrupt's estate,${}^{69}$ without notice to the creditors,${}^{79}$ and such action of the referee ought not to be disturbed unless it clearly appears that his discretion was improvidently exercised.${}^{71}$ An agreement to refrain from bidding at the sale, profits to be divided, is void.${}^{72}$ A proper sale by a trustee in bankruptcy is a condition precedent to a valid conveyance.${}^{73}$ Whenever practicable the property must be sold subject to the court's approval,${}^{74}$ in such cases no title passes until the sale is confirmed,${}^{78}$ and the purchaser has the burden of proving that it was impracticable to make the sale subject to the court's approval.${}^{76}$ This approval need not always be formal,${}^{71}$ acquiescence,${}^{78}$ or use of the proceeds,${}^{79}$ may meet the requirements of the statute. Confirmation of a sale by a trustee is equivalent to a prior order.${}^{80}$ The disapproval of a sale by a referee where no attempt is made to review it is equivalent to disapproval by the court.${}^{81}$ A court of bankruptcy has the power to set aside, in its discretion a sale of the bankrupt's property,${}^{82}$ as where more can be obtained thercfor,${}^{88}$ or where parties are prevented from bidding without fault upon their part,${}^{84}$ and this is so though the order of the referee to sell)

egin{tabular}{c c}
1 & **72.** Agreement was entered Into after it made no difference. Furth v. Stahl, 205 some bids had been made and sale was still Pa. 439. 55 A. 29. 50. & Sec 1 Curr. L. 237. 60. & As to payment of taxes realized by a "judicial sale" of the property. In re Harney. 61. & Where a mortgage thereon is of such \\ an amount as to render it doubtful whether \\ the equity of redemption is of any value. \\ The questions between the trustee and mortgage being such as could not be settled for \\ a long time, and the expense of keeping the \\ property large, a sale of the entire property \\ without prejudice to the conflicting claims of \\ the mortgage and the trustee to the pro- \\ceeds is justifiable. In re Union Trust Co. 75. & In re Shen (C. C. A. 1126 F. 153. 76. & Davis v. Ives, 75 Conn. 611, 54 A. 922. 77, 78, 79. In re Shea (C. C. A.) 126 F. 153. 80. & In re Harvey, 122 F. 745. 81. & Davla v. Ives, 75 Conn. 611, 54 A. 922. 82. & In re Shea (C. C. A.) 126 F. 153. 83. & Where would-be bliders were prevented, without fault on their part, from \\ blidding at the sale, the court may set the sale asle upon their agreeing to bid three times the amount realized, though the sale was for the full appraisal value, and in such a case it is not necessary that the court find that the property was worth more than the \\ snm realized. In re Shea (C. C. A.) 126 F. 153. & Will not be set aside at the instance of one who has no other interest than the degree to become the purchaser at a res 3 Cur. Law. BANKRUPTCYS 14A. 471

did not require the sale to be made subject to the approval of the court,85 and such action of the court is not reviewable unless there is a clear abuse of power.86 A decree of the bankruptcy court cannot be attacked in a collateral proceeding.87

SS 14. Claims against the estate and proof and allowance. A. Claims provable.88--Claims may be provable, but not allowable.88 A debt in order to be provable must be a fixed liability, absolutely owing at the time of the filing of the petition against the bankrupt.89 Contingent liabilities are not provable.91 An annuity dependent upon life may be proven in bankruptcy,92 but not where dependent upon a contingency which may or may not happen.93 Attorneys' fees provided for in a bankrupt's note which is placed in the hands of an attorney for collection before the filing of the petition against the bankrupt are provable claims,94 as is a stockholder's liability after being established by a decree.95 Claims arising in tort, but which may also be treated as arising upon an implied contract,96 those arising from transactions in which the bankrupt is the undisclosed principal,97 and rent due upon a lease, are provable claims.98 In states allowing a wife to contract with her husband for compensation for her services rendered in her husband's business outside the family relation, the wife of a bankrupt may prove a claim for services rendered under such a contract against his estate in bankrupt.99 Notes signed by a bankrupt firm which include claims on which one of the partners is not primarily liable are prima facie debts, provable against the firm's estate.1 Damages for breach of a contract, the breach occurring at or before the filing of the petition in bankruptcy, may be proven,9 but no damage being sustained, stipulated

tention, but he failed to notify them of time of the petition, though due at the time of sale. In re Shen \[C. C. A.\] 126 F. 158. sub filing, held, attorney's fees not provable. In re Keeton, Stell & Co., 126 F. 426, 429.

Footnote 88: Where, by suit, the indebtedness of an insolvent corporation was fixed at about 2-3 of its stock and a judgement was rendered against it for that sum and against the stockholders severally for an amount equal to the par value of the stock held by each, held that, as against a nonresident stockholder not a party to nor appearing in the suit, the decree being rendered prior to thoes does not render it nonprovable. Harfadine-McKittrick Dry Goods Co. v. Hudson \[C. C. A.\] 122 F. 822.

Footnote 89: In re Keston, Stell & Co., 126 F. 426, 429.

Footnote 90: In re Keston, Stell & Co., 126 F. 426, 429.

Footnote 91: In re Feller, 25 F. 261.

Footnote 92: Bankrupt who was in the employ of a firm of brokers caused them to purchase stock on fictitious orders purporting to have been given by customers, such purchases being in fact intended for his own benefit. In re filter, 128 Fed. 261.

Footnote 93: In re Kinckel Brewing Co., 123 F. 942, 429.

Footnote 94: In re Keston, Stell & Co., 123 F. 429.

Footnote 95: In re Keston, Stell & Co., 123 F. 429.

Footnote 96: In re Filter, 25 F. 261.

Footnote 97: Bankrupt who was in the employ of a firm of brokers caused them to purchase stock on fictitious orders purporting to have been given by customers, such purchases being in fact intended for his own benefit. In re filter, 128 Fed. 261.

Footnote 98: In re filter, 128 Fed. 261.

Footnote 98: In re Kinckel Brewing Co., 123 F. 942, 429.

Footnote 99: Bankrupt, 128 F. 146.

Footnote 90: Bankrupt, 128 F. 146.

Footnote 91: The Bankrupt, 128 F. 146.

Footnote 111: F. 306.

Footnote 121: F. 306. Note not placed in the hands of a lawyer for collection until after the filing of the petition, but no damage being sustained, stipulated damages cannot be proven,\* nor damages contingent upon a lessor's re-entry, or re-letting premises leased by the bankrupt.4 The liability of a surety is not provable until the principal's liability is fixed,\* nor is the contingent liability of a bankrupt to his surety provable.\* An annual license fee imposed by a state on corporations is not provable against the estate of a bankrupt corporation before the fee for the year is assessed or collectible,\* nor is the unliquidated liability of the bankrupt on a deficiency judgment provable.\* A creditor whose claim is secured or partly paid by an accommodation indorser may prove his claim to the full amount, and exclude from the bankrupt estate the avails of such security or part payment.\* In states where the separate property of a married woman is liable in equity for obligations incurred in business in which she is engaged on her own account, such obligations are provable against her estate in bankruptcy.10 A partner's individual debt cannot become an obligation of the firm unless the creditor asserts thereto, so as to preclude the latter from proving it against the individual's bankrupt estate.11 It may be shown that a note signed and sealed by the individual members of a bankrupt partnership was given for money lent to the firm and used in the firm business, and, as such, provable against the partnership estate in bankruptcy;12 also parol evidence is admissible to show that partner's joint notes are in fact firm debts.13 A claimst for goods fraudulently obtained by a bankrupt cannot file a claim for goods sold and delivered under the contract and at the same time file a claim for a return of the goods sold remaining in the bankrupt's possession at the time of the filing of the petition.14 A surety for a bankrupt who has discharged the debt either before or after the bankruptcy of his principal is subrogated to the rights of the creditor.15 A loan made by a wife to her husband from her separate estate is provable as a debt against his bankrupt estate, without regard to its enforceability under the law of the state, the contract being valid in equity.16 Unliquidated claims arising upon a contractual obligation or promise of the bankrupt may be liquidated and then proven;17 this does not include statutory liabilities,18 and refers only to claims whose 3. Northwest Fixture Co. v. EIHbourne & Clark Co. \[C. C. A.\] 128 F. 256.

4. A leasor is not entitled to prove a claim for damages against the lessee's bankrupt state for breach of a covenant in the lease, that In case of the latter's bankruptcy the lesser might re-enter and the lessee would be liable for damages sustained by the lessor on account of the premises being unleased or being let for the remainder of the term for less rent. In re Shaffer, 124 F. 111.

1. Bankrupt as surety. In re Wiseman, 128 F. 185. An orphan's court in Pennsylvania entering a decree nisl and later confirming it absolute, adjudicating the account of an administrator and ordering a distribution, which latter part was later suspended and the administrator ordered to hold the balance, fixes the liability of the administrator and his sureties so that a subsequent administrator may prove the same against a surety's bankrupt estate. Hibberd v. Balley \[C. C. A.\] 129 F. 575.

1. Under Act 1898, $ 571, It ie the creditor's claim only that is provable. Insley v. Gar-side \[C. C. A.\] 121 F. 69.

1. Is not a contractual obligation attaching by implication from the inception of the company, and hence is not provable under Act 1898, $ 64, cl. 4, including debts founded on contracts express or implied. In re Dan-ville Rolling Mill Co., 121 F. 432.

1. In re Kahn, 121 F. 412.

1. In re Noyes Bros. \[C. C. A.\] 127 F. 286.

1. Florida. MacDonald v. Tesft-Weller Co. \[C. C. A.\] 128 F. 381.

1. The debt was entered on the books of the firm as a firm debt and payments made thereon by firm checks. In re Wiseman, 123 F. 187. See 1 Curr. L. 328, n. 13-16.

1. Denys v. Turner \[C. C. A.\] 120 F. 605.

See 1 Curr. L. 328. n. 13-16.

13. In re L. B. Weisenberg & Co., 131 F.

01. Evidence that though the notes were signed by all the partners, the money was divided among them individually, held suffi-client to show the debt not a firm debt, also that the testmony of the cashfer of the bank making the loan was not admissible on the question. Id.

01. Bankrupt made false representations as to solvency. The seller by filing for goods sold and delivered under the contract and not for the possession of the goods obtained by fraud or for their value as damages, where possession could not be obtained, elected to affirm the contract and thereafter could not split his demand. In re Hilden, 120 F. 992.

01. Livingstone v. Heineman \[C. C. A.\] 120 F. 786.

01. James v. Gray \[C. C. A.\] 131 F. 401. But this is not true where the property transferred was received from the husband as a gift. In re Tucker, 131 F. 647.

01. Old Colony Boot & Shoc Co. v. Parker 3 Cur. Law. BANKruptry SS 14B. 473

amount is uncertain.14 A creditor having a provable debt, though the amount is unliquidated, having filed a petition against his debtor, and a jury trial being demanded thereon, the petitioner's claim may be determined and liquidated upon the same trial.20 Claims for an indebtedness arising between the filing of an involuntary petition and adjudication cannot be proven.21

(SS 14) B. Proof of claims.22 The proof of claims is not an "action" or "suit" against the bankrupt.28 No proof of debt can be made after the expiration of one year after the adjudication, except in those cases where the period is extended by the act to not exceeding one year and six months24 and this is true, though the debt is unscheduled, the creditor having no notice of the bankruptcy proceedings, and the estate being still undistributed,26 nor is this time extended by the fact that a composition is effected.29 This provision is a statute of limitations,27 and hence is not binding upon the United States.28 The claim of an assignee under an assignment for the benefit of creditors for his expenditures need not be proved within one year after adjudication in order to be allowed.29 Taxes accruing after adjudication need not be proved like ordinary debts.30 Holders of notes of a bankrupt partnership, also indorsed by the individual partners, may at their election prove the same as individual debts of one of the partners.31 Taking a new promise after proof of debt does not preclude the creditor from maintaining his proof, while at the same time proceeding against the bankrupt personally on the new promise, so long as he receives but one satisfaction for the debt,32 nor is the seller of goods estopped to bring an action for fraud by proving the notes given for the purchase price.33 The separate proof of an unsecured claim does not debar a creditor from subsequently proving a balance due on a secured claim after the security has been exhausted.34 Choses in action which have been assigned before a petition is filed should be proved by the assignee as the real party in interest.35 A creditor may in good faith sell and dispose of an account or other obligation held against a bankrupt debtor, regardless of the question of insolvency or notice thereof.36

A claim may be proven by filing a petition in the bankruptcy proceedings.37

Sampson-Adams Co., 183 Mass. 557, 67 N. E. her separate property after his desertion, she may nevertheless prove a claim against his bankrupt estate \[Pennsylvania statute of 1893 (P. L. 345, $ 3)\]. In re Domenig, 128 Ker-Sampson-Adams Co., 183 Mass. 557, 67 N. F. 146. Statutes forbidding a husband and wife from testifying against each other do not render the testimony of a wife Incom- 1894

Itligation is between the principal creditor and the surety to determine the latter's liability, the amount not being in controversy. In re E. O. Thompson's Sons, 122 F. 174. A claim against the estate of a bankrupt for sums obtained from his employers by forging Indorements on checks andashing same, by taking cash from the drawer, and by inducing them to purchase stocks on false and fictitious orders, is not unliquidated where the amounts taken from and paid out by the claimants are certain. In re Filer, 125 F. 261.

20 In re Freder L. Grant Shoe Co., 125 F. 676.

21 Claims for labor and materials fur-

nished between such dates in pursuance of

a contract entered into before filing the petition, but being executory at that date, held

could not be proved. In re Adams, 130 F. 381.

22 See 1 Curr. L. 828.

23 In states where a wife cannot sue

her husband except for divorce or to recover

103

37 In re Ball, 123 F. 389.

38 In 474 BANKruptCY SS 14C. 3 Cur. Law.

In the proof of a claim, absence of a date is a fatal defect,38 but failure to have the title of the court at the head thereof is not fatal.39 Items of the account constituting the consideration should be specified,40 and sworn to in the proof,41 and if the creditor's claim is based on notes, they should be 'produced and filed.42 A notary public may administer the oath to a proof of claim,43 and the signature and seal of the notary are prima facie sufficient authentication, whether he be a notary of the state where the bankruptcy proceedings are pending or not.44 The proof of claims may be amended subsequent to one year after the adjudication,45 and such amendments may be substituted, with the trustee's consent, for the defective original proof, although an appeal has been taken by the trustee from a decree of the bankruptcy court permitting the owners of the claim to prove as creditors.45 One cannot by the amendment of prior proofs introduce proof of an entirely new claim upon a separate contract,47 nor will a claim unconditionally withdrawn prior to the expiration of the year serve as a basis for filing a claim as an amendment thereof.43 The petition of the trustee for an order for a re-examination of a claim need only allege facts which if true are a sufficient cause for the re-examination of the claim.49 A referee may, in an order for the examination of a nonresident creditor, permit him to appear before the referee in the district in which he resides.50 (SS 14) \_C. Contest of claims.51--\_One having submitted himself and his claim to property in the possession of the bankrupt to the jurisdiction of the bankruptcy court, he is bound to prosecute his claim in such court.52 Disputes as to the validity of certain claims arising at the first meeting of creditors, the right to continue the hearing of such contests is within the discretion of the referee.53 The bankrupt may object to the allowance in composition of claims offered for proof more than one year after the adjudication,54 but he cannot prevent the allowance of a claim against the bankrupt and his trustee to en-

129 F. 643.

145.
001.
001.
001.

- 3 Cur. Law. BANKRUPTCY SS 14D.

offered for proof after the expiration of such time where the delay was caused by his own fraud.\[38\] Any creditor of a bankrupt may interpose the defense of limitations to a claim presented for allowance against the estate.\[56\] In Iowa, creditors of a bankrupt cannot set up the defense of usury against another creditor's claim.\[57\] The creditor of a bankrupt cannot institute, without the concurrence of the trustee, a proceeding to re-examine the allowed claims of other creditors,\[58\] and if the trustee should without sufficient reason refuse to examine such claims, the court by its order can compel him to do so or remove him for disobedience.\[69\] No formal writing is required to assign a claim proved and allowed.\[69\] Under the act of 1867, the assignee purchasing a claim in good faith, it would be given effect.\[69\] Failure to file an answer to a petition seeking to expunge a claim justifies a decree pro confesso, carrying with it the ordinary incidents and consequences of such a decree.\[69\] The trustee may be precluded by reason of laches from having an allowance reviewed.\[69\] The disallowance of a claim by a court of bankruptcy constitutes a bar to a subsequent suit against the bankrupt on the same cause of action in another jurisdiction.\[70\]

(SS 14) _D. Surrender of preferences and effect thereof.\[69\]_--A creditor must surrender all preferences received\[69\] within the four months prior to the filing of the petition,\[71\] in order to prove his claim, and this disability inheres in the claim and operates against the holder into whose hands it may come, whether by assignment or subrogation,\[69\] but a bona fide holder of negotiable paper of the bankrupt is permitted to prove the same free from the taint of preferences received by the payce.\[69\] As to whether or not the creditor must have reasonable cause to believe that a preference was thereby intended in order to compel its surrender there is a conflict.\[71\] Preferred creditors are entitled to have proof of their claims allowed where the agreement to surrender their preferences is reached within one year after the adjudication, though the actual surrender of the property to the trustee does not occur until a short time thereafter.\[72\] A secured creditor, whose

- 53. Fraud in mistating facts in his scheded-ule so as to make it appear that there was no estate for distribution. No objection being made by any other creditor of the trustee, it being conceded that the creditors who had proved their claims were to be paid in full before the petition received anything. In re Towne, 122 F. 313.
- 54. In re John J. Lafferty & Bro., 122 F. 315.
- 55. In re John J. Lafferty & Bro., 122 F. 558.
- 57. In re Worth, 130 F. 927.
- 58, 59. In re Lewensohn \[C. C. A.\] 121 F. 58.
- 59. In re Lewensohn \[C. C. A.\] 121 F. 58.
- 60. Indorsement on notes held sufficient.
- 61. Court stating rules to be the same under Act 1867. In re Swetser, 131 F. 567.
- 62. In re Swetser, 131 F. 567.
- 63. In re Swetser, 131 F. 567.
- 64. In re Docker-Foster Co., 123 F. 190.
- 65. Claim of loss for rent of premises occupied by receiver down to date of adjudication was filed against the estate and allowed without objection, and so stood until after the discharge of the receiver; held could not be reviewed. In Einnek Brewing Co., 123 F. 942.
- 64. If the judgment was erroneous, the remedy was by appeal. Hargadme-McKitt-rick Dry Goods Co. v. Hudson \[C. C. A.\] 122 F. 232.
- 65. See 1 Cur. L. 329.
- 66. Creditor received preferences on separate and distinct debts, held, could not prove
      security is insufficient, disclosing his security in proving his claim before the referee may retain his security and share in the dividends as to the overlying,\[12\] but one holding a mortgage upon exempt property is not entitled to receive a dividend on his entire claim and resort to the security only to satisfy an unpaid balance.\[13\] A sale creating a new and separate debt may be proved by the debtor without surrendering a preferential payment of a previous debt.\[14\] A preferential payment affects the entire indebtedness due the creditor at the time of payment, though parts of the indebtedness accrued at different periods, and hence must be surrendered to entitle the creditor to prove his account.\[15\] A creditor holding two notes given by the bankrupt at the same time cannot prove and be allowed his claim upon one upon which no preference was received, without surrendering a preference received upon the other.\[16\] A note being given partly for a valid consideration and partly as a preference the amount of the preference should be deducted before the note is allowed.\[17\] Mutual debts and credits accruing more than four months before filing the petition in bankruptcy may be set off against each other;\[18\] credits to the insolvent aceruing subsequent to that time, which constitute voidable preferences, cannot be set off against debts which accrue prior to that date,\[19\] but mutual debts and credits accruing within four months prior to the filing of the petition, and which do not constitute voidable preferences, may be set off against each other,\[19\] as well as against the respective debts and credits accruing more than four months before the petition is filed,\[11\] but the debts or credits must be provable claims,\[12\] and it must be shown that the estate was benefited in some way by the payment.\[19\] A debt upon which a preferential payment is made cannot be set off against such payment.\[19\] The allowance of set off of new credits against a preference applies only to preferences recoverable by the trustee.\[15\] A bank may set off money deposited by an insolvent upon an open account subject to check,\[19\] but a bank having notice that a deposit is specific, it cannot set it off against the bankrupt depositor's account.\[19\] A bank, not having received a preference, is entitled to apply the amount of the tton. Huthenson v. Otis, 190 U. S. 552, 23 against the bankrupt estate. Act 1898, 1 S. Ct. 778, 47 Law. Ed. 117B, 68b, and this requirement refers to the nature of the claim at the moment when it is 173. In re Kantzenheimer, 124 F. 716. 74. A creditor receiving payment in full from his debtor within four months prior to the latter's bankruptcy and without known- and the debts must be under- and be in the same right. Sawyer v. 129 hfm other goods, which are not paid for at the time of bankruptcy may prove the latter debt without surrender of the money received in payment of the previous debt. In re Wolf, 122 F. 127. See 1 Curr. L. 329, n. 37-40. 75. In re Lyon \[C. C. A.\] 121 F. 723. See 1 Curr. L. 329, n. 37-40. 76. Note first maturing was paid within four months prior to bankruptcy and during insolvency. In re E. O. Thompson's Sons, 121 F. 607. See 1 Curr. L. 329, n. 38. 77. Batchelder & Lincoln Co. V. Whitmore \[C. C. A.\] 122 F. 355. 78. Western Tie & Timber Co. v. Brown \[C. C. A.\] 129 F. 728. See 1 Curr. L. 330, n. 44. 79, 80, 81, 75etter Tie & Timber Co. v. Brown \[C. C. A.\] 129 F. 728. 82. Harris v. Second Nat. Bank, 110 Tenn. 239, 75 S. W. 1053. NOTE. Set-of-In: One of the requirements of a set-of-in that it must be provable 8 Cur. Law. BANKRUPTCY SS 14E. 477

general account of a depositor on a note of the latter held by the bank.\*\* An order of the referee permitting the defendant to retain certain alleged preferences, and allowing the creditor's claim for the balance is an adjudication that the items so permitted to be retained by the creditor are proper set-offs.\*\* A trustee may appeal from an order denying his motion to expunge a claim allowed, unless further preferences were surrendered and directing a return of a preference previously surrendered by the creditor.\*\*

(SS 14) _E. Priorities._**${}^{ ext{01--Claims of the United States are entitled to priority whether proved in the bankruptcy proceeding or not.**${}^{ ext{92}}$\*\* Taxes legally due and owing by the bankrupt to the United States, the state, county, district, or municipality are given priority over the payment of dividends to creditors,**${}^{ ext{93}}$** where the bankrupt is personally liable for the taxes.**${}^{ ext{94}}$** The liability of the bankrupt for taxes being merely contractual, a claim therefor is not entitled to priority of payment as taxes legally owing by the bankrupt.**${}^{ ext{98}}$** A trustee should not pay taxes which are secured where such payment would operate to the advantage of one third party against another.**${}^{ ext{96}}$** One paying taxes legally due from a bankrupt is not thereby sn abrogated to the rights of the taxing power so as to be entitled to priority of payment.**${}^{ ext{97}}$** The highest court of a state having declared that an annual charge imposed upon corporations is not a tax, the state is estopped to claim in the bankruptcy court that nevertheless it is included within the term "tax" as used in the bankruptcy act.**${}^{ ext{98}}$** Costs of administering the estate rank third in the list of priorities.**${}^{ ext{99}}$** Wages due workmen, clerks, or servants, which have been earned within three months before the date of the commencement of bankruptcy proceedings, not to exceed three hundred dollars to each claimant, are by the terms of the act given priority.**${}^{ ext{1}}$** This includes wages owing at the date of bankruptcy, even though, by\*\*

88. In re Scherzer, 139 F. 611. 89. Claim for taxes assessed by a municipality agent must property of which the bankrupt was the lessee and which by his lease be contracted to pay. In re Broom, 123 F. 639. 90. In re Brinker, 128 F. 634. 99. 91. In re Stroever, 127 F. 394. 93. A city's claim against a bankrupt for\*\* before the bankruptcy proceedings, taxes assessed against him, and legally due\*\* thereon were unpaid, of which fact the gran- and owing, is entitled to priority of payment by the trustee, though the property on which the taxes were leveveq never came into the hands of the trustee. 93 of Waco v. Bryan \[C. C. A.\] 127 F. 79. Taxes as a class are given priority over everything. In re Prince, 131 F. 646. 94. There being a personal liability for assessments leveq for local improvements they are entitled to preferred payment. In re Staiker, 123 F. 691. Value of property exceeded the amount of the taxes but was of\*\* **and** heller by payment of the taxes, ostensible value than the mortgage debt and the taxes, property was sold under foncelung to have benefit, and when it decree subject to such taxes, held not entlag to priority of payment. Id. A tax being a charge upon the property alone it is not enforceable as a preferential claim against the bankrupt estate. In re Broom, 123 F. 638. 123 F. 639. 123 F. 639. 124. 125 F. 639. 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 contract between the wage earner and bankrupt, payment is to be deferred to a date later than the date of bankruptcy.\[2\] This clause merely limits the priority to wages owing and which have accrued within the three months' period,\[3\] and hence includes vacation pay.\[4\] "Piece-workers" are entitled to this priority.\[5\] In order to give a claim for wages priority it must be due the wage earner,\[6\] if such wage earner assign his claim after proving it, the assignee will be abrogated to this priority,\[7\] but not if the claim is assigned before proof.\[8\] One cannot schedule his claim as an unsecured debt and then claim it as a priority.\[8\] One having a valid lien on land of the bankrupt need not prove his claim in order to preserve the lien,\[9\] and a creditor mistakenly waiving his lien is entitled to have such lien allowed, where no one has changed his position on the faith of such waiver.\[11\] Property being sold free from liens, money realized therefrom, undiminished by anything except the costs of the sale, goes to satisfy valid liens on such property according to their priority.\[12\] The proceeds of a sale of the bankrupt's property covered by an unrecorded mortgage being insufficient to pay the claims of creditors, who became such after the execution of the mortgage, the fund should be distributed exclusively among such subsequent creditors.\[13\] A materialman's inchoate interest or lien is superior to, and not cut off by, voluntary bankruptcy proceedings occurring after the materials were furnished, but before notice of the lien is filed.\[14\] A partnership being declared a bankrupt the net proceeds of the partnership property are appropriated to the payment of the partnership debts, and the net proceeds of the individual estate of each partner to the payment of his individual debts,\[16\] but joint debts of the partners cannot be proved against the partnership estate so as to share on an equality with firm creditors.\[16\] Where there are no partnership assets, and no solvent partner, firm creditors share pari passu with the individual creditors in the separate estate of a bankrupt partner,\[17\] and the creditors have the right, after applying the firm assets to the payment of their debts, to look to the earned within one year, priority, applies only where the assets are distributed under a general assignment. Id. Rev. St. Ohlo 1890, SS 3206a and SS355, are not inconsistent, the latter section dealing only with the funds in the hands of an assignee or trustee, and applies only to such laborers as are operatives. In re City Trust Co. \[C. C. A.\] 131 F. 706. Under Rev. St. Ohlo, SS 6855, the claims of operatives of a bankrupt are not entitled to priority in the distribution of its estate as against a mortgage executed in good faith to secure bonds issued for money loaned, and a bona fide assignment of the bankrupt's equity in the bonds, executed more than six months before bankruptcy to * secure a valid debt. Id.

\[18\] Yacuation payments withheld until the following January. In re B. H. Gladding Co., 120 F. 709.

\[19\] S. In re Gurewite \[C. C. A.\] 121 F. 892.

\[20\] G. One advancing money to an insolvent for the payment of pay rolls of the latter is not entitled to a priority. In re N. C. Car Co., 127 F. 178.

\[21\] T. In re N. C. Car Co., 127 F. 178.

\[22\] large number of laborers assigned their claims to two of their number in order to save costs in prosecuting suits against the bankrupt to recover such wages, the assignees agreeing to account to their assignees for the amount due each when collected. In re Harmon. 128 F. 170.

\[23\] S. In re North Carolina Car Co., 127 F. 178.

\[24\] A. Attorney representing bankrupt shedhed-only where the assets are distributed under a general assignment. Id. Rev. St. Ohlo 1890, SS 3206a and SS355, are not inconsistent, the latter section dealing only with the funds in the hands of an assignee or trustee, and applies only to such laborers as are operatives. In re City Trust Co. \[C. C. A.\] 131 F. 706. Under Rev. St. Ohlo, SS 6855, the claims of operatives of a bankrupt are not entitled to priority in the distribution of its estate as against a mortgage executed in good faith to secure bonds issued for money loaned, and a bona fide assignment of the bankrupt's equity in the bonds, executed more than six months before bankruptcy to * secure a valid debt. Id.

\[25\] A. Attorney representing bankrupt shed-only where the assets are distributed under a general assignment. Id. Rev. St. Ohlo 1890, SS 3206a and SS355, are not inconsistent, the latter section dealing only with the funds in the hands of an assignee or trustee, and applies only to such laborers as are operatives. In re City Trust Co. \[C. C. A.\] 131 F. 706. Under Rev. St. Ohlo, SS 6855, the claims of operatives of a bankrupt are not entitled to priority in the distribution of its estate as against a mortgage executed in good faith to secure bonds issued for money loaned, and a bona fide assignment of the bankrupt's equity in the bonds, executed more than six months before bankruptcy to * secure a valid debt. Id.

\[26\] A. Attorney representing bankrupt shed-only where the assets are distributed under a general assignment. Id. Rev. St. Ohlo 1890, SS 3206a and SS355, are not inconsistent, the latter section dealing only with the funds in the hands of an assignee or trustee, and applies only to such laborers as are operatives. In re City Trust Co. \[C. C 3 Cur. Law. BANKruptcy SS 14F. 47% surplus of the assets of the individual partners \[18\]. The mortgage of a homesetad is a secured creditor \[19\]. A surety discharging his obligations as surety to a bankrupt becomes an unsecured creditor \[20\]. Under the bankruptcy law creditors for the purchase price of goods stand on the same footing and share pro rata with other creditors \[21\]. One having a secret lien must, in order to retain priority, establish his claim by proof under the bankruptcy act the same as other creditors \[22\]. A lienor permitting, without objection, the property upon which he has a lien to be sold with other property of the bankrupt for a lump sum, he cannot assert a lien upon the proceeds where it is impossible to determine what part of the proceeds was produced by the property upon which he had a lien \[28\].

(SS 14) \_F. Expenses of the proceeding \[24\].\_A receiver for an involuntary bankrupt continuing in the occupation of leased premises until the time of adjudication, the lessor is entitled to an allowance of his claim for rent until that time \[25\]. If, however, on the filing of a voluntary petition in bankruptcy, the bankrupt abandons leased premises, the lessor may take possession, and is limited in his recovery of rent to the date of the filing of the petition \[26\]. The allowance of an attorney's fee is in the discretion of the judge \[27\], and whether it is reasonable or not is within the exclusive jurisdiction of the Federal court \[28\], the reasonableness of the amount to be determined upon evidence of the service performed and of its value \[29\], or, in the absence of evidence of its value, by the court from knowledge of its worth \[30\]. A voluntary bankrupt's attorney can recover only the reasonable value of the services actually required, irrespective of the services rendered \[21\], he cannot recover for clerical work \[32\]. The attorney for petitioning creditors is entitled to a reasonable fee as of right \[33\]. The attorneys for unsecured creditors are not en * 480 BANKruptcy SS 14G. 3 Cur. Law.

titled to compensation, for services rendered in unsuccessfully contesting the validity of security given other creditors, from a fund realized by the sale of such security.34 Where two involuntary petitions, filed by attorneys representing different creditors, are consolidated by order of the court, a single attorney's fee should be divided between such attorneys according to the relative value and amount of work done by each.35 A creditor being re-examined as to his claim, he is entitled to reasonable traveling expenses if his claim is finally allowed, but not his counsel fees.36 Property subject to liens being sold by consent of the lienors, the referee and trustee are entitled to commissions on the purchase price in full,37 and the same is true where it is sold free from incumbrances.38 A referee is not entitled to commissions on a fund belonging to secured creditors.38 Under the act of 1898 the bankruptcy court had power to allow extra compensation to referees in cases where matters in litigation were referred to them as special masters.39 A referee refusing to allow expenditures made by a trustee, the latter is the only one that can except thereto.31 Where the methods of creditors cause a confusion of the claims the trustee should not be charged with the costs of a proceeding to determine issues arising out of such confusion.32 Costs arising from the contest of a claim waged for the purpose of controlling the election of the trustee will not be allowed from the estate.35

(SS 14) \_G. Expenses of receivers and assignees appointed prior to bankruptcy proceedings.34--\_The court making the first adjudication in bankruptcy is the proper court to compensate a receiver appointed in another district pending action upon an involuntary petition therein.35 The appointment of a receiver being erroneous or void, and being successfully contested, the receiver's compensation and the expenses of administration should be taxed to the parties who applied for the appointment,36 if, however, the appointment is sustained, the items of expenses growing out of the receivers are proper charges against the unsuccessful contestant, and are chargeable and payable from his property in the possession of the court.37 The referee is entitled to commissions on all moneys which are disbursed to creditors by the trustee,38 this includes all sums which would have been paid through the trustee but for an outside agreement between the parties and their attorneys,39 but prior to the amendment of 1903 this included only such sums as were paid to creditors having provable and allowed claims.39 The only extra allowance allowable to a referee are for expenses necessarily incurred, a detailed account thereof being kept and returned to the court, verified by the oath of the referee that they were necessarily and actually incurred, with proper vouchers when procurable.31 Referees cannot be allowed postage for notices sent in penalty envelopes.32 A re-

- 34. In re Goldville Mfg. Co., 125 F. 579. 35. In re McCracken & McLeod, 129 F. 621. 36. In re George Watkinson & Co., 130 F. 128 F. 275. 37. In re Sanford Furniture Mfg. Co., 126 F. 883. 38. Even though purchased by the party holding the incumbrances. In re Sanford Furniture Mfg. Co., 126 F. 888. 39. Mortgage. In re Goldville Mfg. Co., 123 F. 579. 40. It seems that by the amendment of 1903 to 40a this rule has been abrogated. In re Goldville Mfg. Co., 123 F. 579. 41. Expenditures for counsel fees partially rejected. Held counsel could not except thereto. In re Byerly, 128 F. 637. 42. Dowse v. Hammond (C. C. A.) 130 F. 103
- 43. In re Worth, 130 F. 927. 44. See 1 Curr. L. 332. 45. In re Sears, Humbert & Co. \[C. C. A.\] 128 F. 275. 46. Expenses for feed and one of stock are "expenses of the receivers". Beach v. Macon Grocery Co. \[C. C. A.\] 125 F. 513. 47. Beach v. Macon Grocery Co. \[C. C. A.\] 125 F. 513. 48. In re Sanford Furniture Mfg. Co., 126 F. 88. 49. Agreement to sell the property free from a deck of trust. In re Sanford Furniture Mfg. Co., 126 F. 888. 50. Did not include money paid to satisfy fixed items on reality sold by him though property was sold free from incumbrances and the liens satisfied from the proceeds. In re Hinckel Brewing Co., 124 F. 702. 51. 51. 52. In the Daniels, 130 F. 597.

3 Cur. Law. BANKruptY $ 16. 481

ceiver having charge of an involuntary bankrupt's estate before adjudication may be awarded the full maximum fixed for the compensation of a trustee, without reference to the compensation afterwards awarded to the latter.\[84\] The assignee under a bona fide\[84\] assignment for the benefit of creditors made prior to the filing of the petition in bankruptcy has a lien on the assets of the estate for his necessary disbursements and reasonable compensation for such services as were beneficial to the estate,\[85\] and the surrender by him of all the assets to the trustee in bankruptcy does not deprive him of the right to apply to the bankruptcy court for the payment of the amount of such lien.\[86\] That the assignee is appointed the trustee makes no difference.\[87\] Claims for services rendered to the assignee may be allowed to the same extent as if the assignee had paid them.\[88\] An attorney is only entitled to compensation for such services, rendered a state receiver, as are beneficial to the estate,\[88\] but he will not be allowed for such services as were beneficial, where as a whole, his services cost the estate and general creditors several times that amount in increased expenses of administration.\[89\] A charge for the preparation of the deed of assignment constituting the act of bankruptcy may be proved as an unpreferred claim.\[81\] An attachment being dissolved by subsequent proceedings in bankruptcy the sheriff is nevertheless entitled to his fees and outlay in preserving the property up to the time title passed to the trustee.\[88\]

SS 15. \_Distribution of assets.\[89\]--\_The administration and distribution of the property of a bankrupt is a proceeding in equity.\[84\] The statute of limitations of the state of a bankrupt's residence, and in which he is adjudged a bankrupt, governs and determines the rights of creditors in the administration of the bankrupt's estate.\[88\] One receiving money as the result of an audit after hearing will be protected by the order of the referee until it is set aside by proceedings taken directly for that purpose.\[88\] The distribution of the proceeds of a sale of real estate made by a trustee in bankruptcy is reviewable by the circuit court of appeals by a petition for review.\[89\]

SS 16. \_Exceptions.\[84\]--\_Under the national bankruptcy act, bankrupts are allowed the exemptions prescribed by the laws of the state in which the petition is filed, they having been domiciled in said state for the six months immedi-

SSS. Is not limited to an amount to be de- curning a general assignment resulting in a ducted from the trustee's maximum in proportion to the relative services rendered. In only in law but in fact a fraud upon the bankrupt law, is not entitled to component- **54**. An assignment containing no secret trust and being without fraud in fact, and **60**. In **75**. 478. 478.

ately preceding the filing of the petition," the enumeration of exemptions in SS 70 applying only to property not exempt by the state laws.70 The bankruptcy court has exclusive jurisdiction to determine claims of bankrupts to their exemptions,71 though the trustee can set apart the exemption and pass upon such objections as may be made by creditors to his so doing,72 and in setting aside, after appraisal, property claimed by the bankrupt as exempt, the trustee acts ministerially.74 The court of bankruptcy, being a court of equity, will construe exemption laws liberally.74 In states where life insurance policies are not exempt, only the surrender value at the date of bankruptcy goes to the creditors, and the bankrupt by securing the payment of an equal sum may hold the policy free from claims of creditors.75 The surrender value referred to in SS 70 refers only to the contract right of surrender;76 nor does SS 70 include policies payable to a wife or kindred of the assured.77 An exemption in bankruptcy is of no avail as against the holder of a purchase-money mortgage or judgment therefor, when the holder of such mortgage or judgment does not prove his debt in bankruptcy.78 A bankrupt cannot claim an exemption out of a preference that has been recovered back by the trustee.79 A bankrupt occupying land as a homestead under a contract of purchase, the trustee is entitled to redeem the land and subject such portion thereof as does not constitute the bankrupt's homestead to the payment of his debts.80 The time and manner of claiming such exemptions, and of setting apart and awarding them, are regulated by the bankruptcy act.81 It is therein provided that the bankrupt shall claim his exemptions in his schedules,82 and the trustee must set off such property to him and report the items, with their estimated value, to the court for approval;83 the assent of the creditors cannot dispense with these formalities.84 A bankrupt's schedules containing a waiver of his exemptions may be amended so as to allow him to claim them where he shows the waiver to have been the subject of accident or mistake,85 and the application for leave to amend is made seasonally.86 A bankrupt having properly claimed his exemption, it can 3 Cur. Law. BANKruptCY SS 17. 483

not be diminished by, or put aside in favor of, the costs and expenses made in the proceedings,\[87\] even where the latter have been taken to preserve the property.\[88\] The burden of proof is upon the bankrupt to show that he is entitled to the exemptions.\[89\] Any party having an interest in the result may object to the allowance of an exemption.\[90\] No issue as to the bankrupt's right to exemptions arises until exceptions are filed to the trustee's report.\[91\] Lack of verification to an exception to the report of a trustee setting apart the bankrupt's exemptions is not jurisdictional.\[92\] The bankruptcy court in some cases will direct that a receiver set aside and preserve specific property which a bankrupt wishes to claim as exempt, and which otherwise would be sold,\[99\] and may, upon his giving a bond for its return, authorize its delivery to such bankrupt pending the determination of his right thereto.\[94\] A discharge will be withheld so as to enable a debtor to test his right to the bankrupt's exemption in the state courts.\[98\]

A bankruptcy court acquires no right to administer upon or distribute exempt property, even though its aid may be required to set it aside,\[99\] and this is true, though the creditor has agreed to waive the exemption as to a particular creditor,\[97\] and any attempt to do so is made in the course of a bankruptcy proceeding and is reviewable on petition to revise.\[98\] The bankrupt may become estopped to deny this power in the bankruptcy court.\[99\] The trustee in bankruptcy acquires no title to exempt property duly claimed.\[99\]

SS 17. \_Death of bankrupt pending proceedings.\[99\]--\_The allowance to the widow and children of a bankrupt dying during the proceedings is governed by the laws of the state of the bankrupt's residence,\[99\] and may be made by the bankruptcy

87. In re Le Vay, 125 F. 990. See 1 Curr. early being of a periabable nature, the court will appoint a receiver to take charge of it until the judgement in rem is obtained. Bell ordered and made by a receiver. In re Le Vay, 125 F. 990. 98. In re Le Vay, 125 F. 990. McKenney v. 89. Under the Virginia statute, must prove that such property has been paid for. In re Campbell, 124 F. 417. 101. Trustee cannot administer 90. Under the Virginia statute, not allowing a bankrupt to claim unpaid property as an exemption, any creditor may object to the allowance of such property as an exemption, without showing that his claim is for the purchase price of any of such property. In re Campbell, 124 F. 417. Creditors having claims for the unpaid purchase price of exempt property, and claiming the right to have it sold and the proceed&s applied to such claims, are the proper persons to present such question. In Re Boyd, 120 F. 998. 91. In re Campbell, 124 F. 417. 992. Where objection is not made on hearing before the referee, objection cannot be made on a review of his decision before the court. It is doubtful if such exception comes within the term "pleadings" as used in the act of 1898, $ 18c, requiring all pleadings to be verified. In re Campbell, 124 F. 417. 98. In re N. Shaffer & Son, 128 F. 988; In re Joyce, 128 F. 985. HIs exemption being properly made, a sale by a receiver before adjudication made because of the perishable character of the goods will not deprive the bankrupt of his right to the proceeds. In re Le Vay, 125 F. 990. 94. In re N. Shaffer & Son, 128 F. 986. 98. Judment obtained in a tort action against which exemptions were unavailable. In re Brumbaugh, 128 F. 971. Where the exemption is waveled, the creditor's remedy is in a court of equity. In Georgia, the prop 484 BANKRUPTCY SS 18. 3 Cur. Law.

court from the bankrupt's estate in accordance with the state statutes.4 The widow of a bankrupt is entitled to dower out of land conveyed by her husband to his "assignee" in bankruptcy, she not having joined in the deed nor received anything in lieu thereof.8

SS 18. _Referes, proceedings before them and review thereof.8_--Referes in bankruptcy are judicial officers,7 and their orders made in the course of bankruptcy proceedings are entitled to the respect and credit due to officers who act judicially.8 A proceeding before a referee in bankruptcy to recover a debt is analogous to an action brought for the same purpose.8 In proceedings for contempts before a referee, the latter must certify the facts to the judge.10 A witness is not subject to attachment for failing to appear and testify before a referee in obedience to a subpoena, unless his mileage and one day's attendance fees are paid or tendered to him.11 A bankrupt is not exempt from prosecution for an offense growing out of a transaction concerning which he testified before the referee,12 and may refuse to answer criminating questions.18 The jurisdiction with which a referee is invested is made expressly subject to review by the judge of a court of bankruptcy,14 and this power of review in the latter is exclusive.18 Upon a proper petition for a review of any order, the referee should forthwith certify to the judge the question presented, a summary of the evidence relating thereto, and his finding or order thereon.19 A referee in bankruptcy has power to rule on the admissibility of evidence offered before him,17 and is bound to personally hear the evidence unless his presence is waived by the parties.18 Evidence taken before him to be available on appeal must be included in the record certified to the district court, and the certificate of the referee must show that it is the evidence so taken before him.19 A referee's findings of fact will not be reversed upon appeal unless they are flagrantly against the weight of the evidence,20 and the burden of proof is upon the objectors to show the facts to be as they insist.21 Docket entries of a referee are the best evidence of matters therein stated,22 and the record of a referee, in so far as it shows what was adjudicated, is conclusive

4. In Connecticut, they are entitled to such an amount as is necessary for their support. In re Newton, 122 F. 103.

1. That husband was paid his homestead exemption which he applied to write's use makes no difference. It seems as though the court used the term "assignee" in place of "trustee". Cravens V, Shippen, 25 K. L. R.

1322, 77 S. W. 929.

6. See 1 Cur. L. 338. See, also, ante, 14 B. Sale by trustee.

1. Clending v. Red River Val. Nat. Bank \[N. D.1 94 N. W. 901.

1. Adjudications upon the allowance or rejection of the claims of creditors. Clending v. Red River Val. Nat. Bank \[N. D.1\] 94 N. W. 901.

1. Legislature by an act cannot effect the reversal of a judgment already rendered. In re Stalker, 123 F. 961.

1. A witness failing to attend an application for an attachment in the first instance, without such certificate from the referee, in irregular. In re Kerber, 125 F. 653.

1. In re Kerber, 125 F. 653. See 1 Curr. L. 334, n. 12.

1. Burrell v. Mont, 194 U. S. 572, 24 S.

1. Questions as to accuracy of a credit. or's proof and the identifying of his signature to notes and his chekbook, held must be answered. In re Levin, 131 F. 388.

1. Brown v. Persons \[C. C. A.1 122 F. 112.

1. State courts are without authority to revive, revise or reverse adjudications of the referee. Clending v. Red River Val. Nat. Bank \[N. D.1 94 N. W. 901.

1. Transmitting to the clerk the notes of the testimony, his own opinion and the creditors' petition for a review is not a compliance with Bankr. Rule 27. In re Kurtz, 125 F. 992.

1. In re Wilde's Sons, 131 F. 142.

1. Where the certificate of the referee is silent as regards any evidence, and a subsequent certificate attached 'to certain evidence sought to be made a part of the record was not certified to the district court until six days after it had affirmed the findings and judgment of the referee, held, such evidence not properly in record and not before appellate court. In re French, 13 Okl.

549, 75 P. 278; In re Cohen, 131 F. 391.

20. A finding that a private bankker was engaged chiefly in farming. Couts v. Townsend, 126 F. 249. Finding of referee refusing discharge. In re Shriver, 126 F. 611; In re Williams, 120 F. 642. See 1 Curr. L.

334, n. 23-25.

21. Finding of a referee that certain monogays are the proceeds of property pledged to a lienholder. In re Williams, 120 F. 542.

01. Davis v. Ives, 75 Conn. 611, 54 A. 932.

- 8 Cur. Law. BANKruptcy SS 30. 485

and cannot be contradicted by parol evidence.28 Papers used in a proceeding before a referee in bankruptcy may be certified either by the referee or clerk.24

SS 19. \_Modification and vacation of orders of bankruptcy court.29-In the absence of statutory prohibition, a court of bankruptcy has, generally, power to amend its decrees in its discretion,28 and hence a judge of a court of bankruptcy has the power to vacate an order discharging a trustee.27

SS 20. _Appeal and review in bankruptcy cases._--An appeal must be taken with-in ten days after the rendition of judgment,28 which fact must appear in the record,29 the record on appeal must be filed within the time allowed by law,29 or an application for an extension must be made before the expiration of that time,21 and the record must be complete,28 or the appeal will be dismissed. Neither the bankruptcy act nor any rule of court limits the time within which a petition for review in bankruptcy may be filed,28 but it has been held that no appeal or petition for review being taken from a final decree for over a year it becomes final and cannot be set aside or modified on motion.24 A rehearing will not be granted upon the pretense of reconsidering the merits of the case, where the real purpose is to revive the petitioner's right of appeal,28 but the district court cannot entertain a motion for a rehearing so long as an appeal is pending.29 The circuit courts of appeal have power to summarily revise territorial district courts within their respective circuits as to matters of law arising in bankruptcy proceedings.21 An intervening petition to reach a fund in the bankruptcy court, being incident to the claim, is a bankruptcy proceeding,28 but a decree thereon is not an independent ground of appeal, where it is not "a judgment allowing or rejecting a debt or claim of $500 or over.290 Whenever, in a suit in which a bankruptcy court is marshaling and distributing assets, any intervening party raises a distinct and separable

23. _Testimony of a referee that he did not undertake to adjudicate a creditor_'s\_'depotitions, and other proceedings necessary claim is inadmissible, it being directly contradictory to the necessary legal effect of his written order allowing said claim. Clending v. Red River Val. Nat. Bank \[N. D.\] 94 N. W. 901. \_N.

issue or controversy involving substantial pecuniary rights, an appeal lies from an order entered thereon.\[40\] An appeal cannot be taken from a decision of a circuit court of appeals, allowing or rejecting a claim, to the United States supreme court, except upon a certificate of a justice of the supreme court,\[41\] or where the amount involved exceeds $2,000, and the questions are such as might have been taken up from the highest court of a state.\[42\] An appeal lies to the United States supreme court from a judgment of a circuit court of appeals entered upon an appeal from a judgment of a court of bankruptcy, sustaining a title to property in the possession of a trustee in bankruptcy, asserted by intervention raising a distinct and separable issue.\[44\] A judgment creditor may become a "party aggrived" and therefore entitled to prosecute a petition for review of an order of the bankruptcy court.\[44\] Orders and decrees in a bankruptcy proceeding cannot be reviewed by writs of error.\[45\] The power of the appellate court to review, by original petition, the ruling of the bankruptcy court extends only to an order made in the bankruptcy proceedings proper, and does not embrace proceedings in suits by the trustee in bankruptcy,\[46\] and the appellate court cannot entertain a petition to revise in matter of law, where questions of fact are involved therein.\[47\] An appeal duty taken from an order in bankruptcy may be treated as a petition for revision, where the latter is the proper mode of review and only a question of law is presented.\[48\] Certiorari is the proper method of obtaining a review, in the supreme court of the United States, of a decision of the circuit court of appeals upon a petition for revision of an order of the district court allowing an exemption.\[49\] An assignment of error must be filed in the court below before an appeal is allowed,\[50\] and such assignment operates as a limitation upon such appeal.\[51\] On an appeal from an order dismissing an involuntary petition, an appeal bond must be given, approved, and filed in the trial court,\[52\] and such fact must appear upon the record,\[68\] but the appeal being taken within the time prescribed by the bankruptcy act, failure to file a bond and serve the citation until a few days after the expiration of that time does not invalidate the appeal.\[54\] The record on an appeal in bankruptcy not clearly setting forth facts necessary to a determination of the questions involved, it will be remanded to the district court, with directions to have the facts fully reported to

40. The case then presenting a controversy within the meaning of SS 24a of the act 1898. Issue was as to whether a part-t trustee to sell, the proceeds to be turned inership or an individual partner owned the property. Burleigh v. Foreman \[C. C. A.\] 135 F. 217. 41. Constructing Act 1898, SS 24a, 25b, and $ 6. Act March 3, 1891, 26 Stat. 828, c. 517 \[U. S. Comp. St. 1901, p. 549\], creating the circuit court of appeals. Hutchinson v. Otis, Wilcox & Co. \[C. C. A.\] 123 F. 14. 42. Hutchinson v. Otis, Wilcox & Co. \[C. C. A.\] 123 F. 14. 43. Hewit v. Berlin Mach. Works, 194 U. S. 296, 24 S. Ct. 690. 44. Assignee of a judgment creditor who alone proved his claim against the bankrupt estate applied to have the estate reopened on the ground that assets had been traudently conveyed, the court below discharged a restraining order and refused an injuncion to restrain a further transfer, but appointed a trustee, none having been previously appointed, held could prosecute a petition for review. Clark v. Pidcock \[C. C. A.\] 129 F. 745. 45. A bankruptcy proceeding is a proofing in equity. Lockman v. Lang \[C. C. A.\] 128 F. 279. 46. Mortagree in possession of property of the bankrupt turned the same over to the trustee to sell, the proceeds to be turned into the registry of the bankruptty court, the right of property to follow the fund, held, action of bankruptcy court in determining mortgree's rights revivable by appellate court. In re Antigo Screen Door Co. \[C. C. A.\] 123 F. 249. 47. Whether a court of bankruptcy erred in ordering a sale of property free from incommensaces. In re Union Trust Co. \[C. C. A.\] 122 F. 937. 48. Chesapeake Shoe Co. v. Seldner \[C. C. A.\] 125 F. 593. 49. The revising order is not a final declison allowing or rejecting a claim within the meaning of $ 25b. of the Act of 1898. E Holden v. Stratton, 191 U. S. 115, 24 S. Ct. 45. 50. Buckingham v. Estes \[C. C. A.\] 128 F. 584. Lockman v. Lang \[C. C. A.\] 128 F. 279. 51. Points not covered by assignment of error cannot be reviewed. Buckingham v. Estes \[C. C. A.\] 128 F. 854. 52. 53. In re Miller, 13 Okl. 557, 75 P. 1128. 54. No material prejudice was shown. Columbia Ironworks v. National Lead Co. \[C. C. A.\] 127 F. 99.

- 3 Cur. Law. BANKRUPTCY SS 21.

it and to pass on same. \[58\] An appeal lying under the bankruptcy act, the dissatisfied litigant may appeal both as to law and facts, \[58\] or may, where a question of law is concerned, raise that alone by a revisory petition. On a petition to revise a court of bankruptcy in a matter of law, findings which involve a distinct proposition of law or a substitute therefor are necessary. \[57\] A petition for review being filed, the proceeding must be prosecuted to a hearing and determination with reasonable diligence. \[58\] In order to maintain on appeal an objection that a claim was not allowed within one year, and therefore its allowance was erroneous, the transcript must show the date of the adjudication. \[60\] The circuit court of appeals may on appeal review a question of fact, \[60\] but it will not reverse a finding of fact by a referee and affirmed by the district court, unless manifestly against the weight of the evidence. \[61\] The appellate court upon a petition to review cannot challenge the facts, or an inference of fact, found by the court below, \[62\] it can only consider and rule upon questions of law. \[58\] Objections to the jurat on the specifications of objection to a bankrupt's discharge, \[54\] or that the goods of the bankrupt have not been properly inventoried, \[63\] cannot be made for the first time upon a petition to review. Appellate courts will not interfere in administrative matters where no substantial interests are concerned. \[64\] An order of dismissal will not be reversed upon appeal because of an immaterial departure from the technical rules of procedure. \[65\] Sufficient facts being alleged and proved to warrant the adjudication, the latter will not be set aside upon appeal because other acts alleged were neither properly pleaded nor sufficiently proved. \[66\]

SS 21. _Trustee's bonds; actions thereon. \[69\]_--An action upon a trustee's bond must be brought in the name of the United States, \[60\] it may be brought without first obtaining leave, \[61\] in a state court, \[62\] and the defaulting trustee being a fugitive from justice he is not a necessary party. \[63\] Payments made by a trustee in bankruptcy in violation of the rules, and without an order therefor, being disallowed,

- 55. Devries v. Shanahan \[C. C. A.\] 122 F. F. 58.
- 56. Burleigh v. Foreman \[C. C. A.\] 125 F.
- 57. Cannot be supplied by the opinion of the court. In some cases involving issues of a substantial character justice might require the relaxation of the above rule. In re Boston Dry Goods Co. \[C. C. A.\] 125 F. 326.
- 58. Allowing two years and nine months to pass from the time of the filing of the petition before any real effort to prosecute the proceeding is made is such laches that the petition will be dismissed. In re Koenlig, 127 F. 891.
- 59. Buckingham v. Estes \[C. C. A.\] 128 F. 876.
- 60. As to whether or not a claim should have been allowed. Rush v. Lake \[C. C. A.\] 122 F. 561.
- 61. In ro Noyes Bros. \[C. C. A.\] 127 F. 386. Action to recover a preference. Hodges v. Kohn \[B. C.\] 45 S. E. 102. Findings on an accounting of rent. Buckingham v. Estes \[C. C. A.\] 128 F. 584. There being no distinct findings upon a question of fact by either the referee or the bankruptcy court, the appellate court is not aided in its consideration of the case by the weight which ordinarily attaches to findings of courts of the first instance. Burleigh v. Foreman \[C. C. A.\] 130 F. 13.
- 62. In re Antigo Screen Door Co. \[C. C. A.\] 133 F. 249.
- 63.

the trustee and his bondamen are liable therefor, though the court might have authorized such payments had the trustee applied for authority to make them."

SS 22. _Discharge of bankrupt; its effect and how availed of. A. Procedure to obtain discharge and vacation thereof."--The failure of a bankrupt to apply for a discharge within the time allowed by law renders the question of his right to a discharge from those debts in a proceeding under a subsequent petition res adjudi-cata." A bankrupt being allowed to file his petition for a discharge more than a year after adjudication, the only question open is whether or not he is entitled to a discharge," creditors seeking to oppose it being confined to statutory objections," and the court entertaining such a petition upon an insufficient showing, the remedy is a motion to vacate." A bankrupt filing a petition for his discharge and taking no further steps in the matter for over a year is chargeable with an abuse of the bankruptcy proceedings for the purpose of delaying creditors, and on petition by a creditor his application for discharge will be dismissed."_

Notice of petition for discharge must be sent to creditors at their respective addresses." An objecting creditor has no right to enter an appearance after the return day, and should not be allowed to do so, except for good cause shown in excuse of the delay." The burden of proof is upon the opposing creditor to establish the ground for refusing the discharge by satisfactory and sufficient evidence." Upon the hearing of the petition for a discharge and specifications in opposition thereto, the testimony of the bankrupt given at the first meeting of creditors is admissible," but not the testimony of other witnesses taken at that time," and the taking of the testimony by the referee of witnesses other than the bankrupt, upon petition for discharge and specifications in opposition thereto, before returning the same to the court is an irregularity," but the bankrupt appearing and cross-examining the witness the testimony so taken will not be stricken out."

By making an order of discharge it will be presumed that the court investigated the objections made thereto, and overruled the same on their merits." An order of a bankruptcy court dismissing an application for discharge for want of prosecution is, in substance and effect, one denying a discharge." A bankrupt having been refused a discharge cannot, a few months thereafter, prosecute a new application for a discharge upon the same facts." An order denying a discharge is reviewable by appeal." A discharge is not subject to collateral attack."

**83. In re Chamberlain, 125 F. 629. See 1 Curr. L. 335.**

**84. In re GoodhIle, 130 F. 782. See 1 Curr. L. 336.**

**85.** Asffirmed the referee's report. Kentucky Nat. Bank v. Carley \[C. C. A.\] 127 F. 686.\*\*

**86.** In re Kuffner \[C. C. A.\] 127 F. 126.\*\*

**89.** In this case the bankrupt also obtained an injunction staying proceedings by the creditor for the collection of a debt, held, injunction would be vacated. In re Lederer, 125 F. 96.\*\*

**81.** Where judgment creditor died before the filling of the petition for a discharge by the bankrupt, and her executrix and sole legated had not proved her will, held proper to send the notices addressed to the creditor at her last place of residence. Such notice held sunflect to sustain motion by discharge bankrupt for cancellation of judgment under Code Cliv. Proc. 8 1268. Lent v. Farnsworth, 87 N. Y. S. 1112.\*\*

**82.** In re Ginsburg, 130 F. 627.\*\*

**83.** In re Chamberlain, 125 F. 629. See 1 Curr. L. 335, n. 51.\*\*

**84.** In re GoodhIle, 130 F. 782. See 1 Curr. L. 335, n. 53.\*\*

**85, 86, 87. In re GoodhIle, 130 F. 782.**

**88.** Asffirmed the referee's report. Kentucky Nat. Bank v. Carley \[C. C. A.\] 127 F. 686.\*\*

**89.** In re Kuffner \[C. C. A.\] 127 F. 126.\*\*

**80.** Refused because of fraudulent concealment of assets from the trustee. In re Fiegnbaum \[C. C. A.\] 121 F. 69.\*\*

**91.** In re Kuffner \[C. C. A.\] 127 F. 125.\*\*

**92.** That the plaintiff, a discharged bankrupt, did not schedule the pending action as part of his assets is no defense thereto. Vollesv v. Jewett Bros. & Co.. 122 Iowa, 816, 98 N. W. 114. Claiming that a discharge does not bar a particular claim is not a collateral attack. Sutherland v. Lasher, 41 Misc. 249, 84 N. Y. S. 56. A plea of discharge can be met by showing that the debt was excepted from the operation thereof, without the reply amounting to a collateral attack on the bankruptcy decree. Santa Rosa Bank v. White, 138 Cal. 703, 73 F. 577.

3 Cur. Law. BANKruptry $ 22B.

A court of bankruptcy may on its own motion vacate a discharge, in the furtherance of justice, before the expiration of a year after it was granted.\*\* A creditor of a bankrupt who has failed to file or prove his claim within a year after adjudication may nevertheless move, as a party in interest, to vacate the discharge.\*\* A creditor petitioning for a revocation of a bankrupt's discharge must not have been guilty of undue lachees.\*\* A petition for the revocation of a discharge in bankruptcy, setting out the facts, need not allege the legal conclusion that the facts did not warrant a discharge.\*\*

(SS 23) _B. Grounds for refusal._**--Provisions regulating the conditions on which bankrupts may be discharged are remedial in their nature, with respect to the bankrupts or to their creditors, or to both, and the strict rules of construction or interpretation appropriate to retroactive or retrospective laws are inapplicable to them.** A judgment denying a debtor a discharge from a debt, under a state in-solvency law, is not an adjudication of his right to a discharge from such debt in bankruptcy, where it does not appear upon what grounds such judgment was based.\*\* The provision of the bankruptcy act forbidding a discharge if the bankrupt has, in voluntary proceedings, been granted a discharge within six years is not retroactive as applied to cases where the first proceedings were had prior to its enactment, but merely adds a new condition of discharge in cases instituted after the amendment.\*\* A discharge granted to a bankrupt in partnership proceedings instituted by himself is granted in voluntary proceedings, and prevents his obtaining a discharge within six years upon an individual voluntary petition.\*\* A court undoubtedly has power to refuse a discharge, the entire proceeding being a palpable fraud upon the creditors.\*\*

_Commission of an offense._**--A false oath, to be available as a bar to a discharge, must have been knowingly and fraudulently false.** Omission of property from his schedules is sufficient to warrant the refusal of a discharge on the ground of his making a false oath,\*\* and the bankrupt's right to a discharge is not restored by listing the property concealed after the making of the false oath is discovered.\*\*

_Destruction of or failure to keep books of account._**--Destruction of books of account prior to the contracting of indebtedness does not warrant the refusal of a discharge.** Prior to the amendatory act of 1903 it had to be satisfactorily shown that the failure to keep books was with fraudulent intent to thereby conceal his financial condition, and in contemplation of bankruptcy.\*\*10 Failure to keep a complete set of books will not of itself bar a discharge.\*\*11

93, 94. In re Bimberg, 121 F. 942.

95. Creditor who had opportunities to examine bankrupt, appeared in opposition to discharge, and was given time to file specifications of objection, but failed to do so, and permitted the discharge to be granted without further objection, is guilty of undue lachees. In re Upon, 124 F. 980.

01. In re Touchaker Bros., 128 F. 187.

01. See 1 Curr. L. 336.

01. In re Scott, 126 F. 981.

01. In re Bybee, 124 F. 1011.

01. Act 1898, , 140, as amended by Act 1903, e. 487, $ 4. In re Carleton, 131 F. 146.

01. In re Carleton, 131 F. 146.

01. That creditors opposing the discharge discontinue their opposition, and the referee in a supplemental report refuses a certificate of conformity, are sufficient to create a presumption or suspicion that some act has been done by or on behalf of the bankrupt to secure the discontinuannee of the opposition, justifying a refusal of the bankrupt's discharge pending a further report by the referee. In re Sanborn, 131 F. 397.

Obtaining property upon false statements.\[12\]--A bankrupt obtaining property on credit upon a materially false statement in writing cannot be discharged,\[11\] such statement having been made for the purpose of obtaining such property.\[14\]

Concealment or transfer of property.\[15\]--The right to a discharge is forfeited if the bankrupt knowingly conceals his property.\[16\] In order to bar a discharge, a transfer of property to hinder, delay, or defraud his creditors need not be knowingly and fraudulently made,\[17\] though it must have been made within four months prior to the filing of the petition in bankruptcy.\[18\] His right to a discharge is not restored by listing the property concealed after the attempt to conceal the same has been discovered.\[19\] A bankrupt who does not surrender his estate to the trustee is not entitled to a discharge, even though he may have scheduled it and otherwise complied with the statute.\[20\] Where he, as beneficiary of a trust fund, is entitled to the interest and income thereof, he must assign his interest in the income and interest to his trustee in bankruptcy,\[21\] but where his right to the principal rests in the option of the trustee this right need not be so assigned.\[22\] In order to prevent a discharge on the ground of concealment of property it must appear that the property still belongs to the bankrupt estate.\[23\] Failure to schedule a pending claim for alimony,\[24\] or refusal to convey property claimed as an exemption, do not consitiute a concealment of property preventing a discharge.\[28\]

he kept, no fraud being shown, held, no and paid for, 8 months later other property ground for refusing a discharge. In re Cham-bought on credit, held did not defeat disberlain, 125 F. 628; In re Allendorf, 129 F. 631. Failure to enter certain loans on the books induced by the fear that if a certain creditor knew that he was borrowing money he might ("close him (the bankrupt) up," and 129 F. 155. In the absence of a clear mis-that, as business was improving, he fully statement by the bankrupt with regard to thought that he would be able to pay, does not justify a presumption that such failure is needed, the title to which stood in the to keep proper books was in contemplation name of his father, and to which the bankruptcy. Van Ingen v. Schophofen \[C. C. A.\] 129 F. 352. One threre years concealment of assets or a false oath so as before bankruptcy inherited $150,000, which he testified he had lost in gambling, who at the time of the application for his dis-notes the amount of the sales from the charge received a salary of $3,600, lived on a liberal scale, paying $2,000 a year for rent amount purchased is not sufficient of itself of apartment, and who during the year be-fore the adjudication destroyed his bank code and check book, which action was bankrupt's methods of business were career-never explained, held, that the inference was less, and that he kept no complete set of justified that the bankrupt destroyed books. In re Allendorf, 129 F. 631.

books with fraudulent intent to conceal hfs true financial condition and in contemplation to the amendment (Act 1903, $ 4) of Act 1398, of bankruptcy. In re Studebaker, 124 F. 945.

11. In re Allendorf, 129 F. 981.

01. See 1 Curr. L. 338.

01. Act of 1898, 1 14b, as amended by the act of 1903. So held in a case where the statement was made more than four months prior to the date of the amendatory act, and about six months prior to the filing of the petition in bankruptcy. In re Scott, 126 F. 981. Section 14, sub. b., c. 3, deals solely with a condition precedent to the discharge of bankrupts in future cases, it does not undertake to provide for the recovery of any property, or to set aside or otherwise affect any transaction. Id. A bankrupt obtaining property upon a written statement to a wholesale house, for the purpose of getting credit, in which was listed an asset valued at $1,400 which she did not possess, is not entitled to a discharge. In re Good-hflle, 130 F. 782.

01. Statement made, property obtained 3 Cur. Law. BANKruptCY SS 22C. 491

(SS 22) _C. Liabilities released._"--A state court is bound to take notice of a discharge in bankruptcy when properly pleaded as a defense." A person seeking to avail himself of a discharge in bankruptcy as a defense must plead the discharge," must show in which one of the United States district courts the petition was filed," and allege facts showing that the court in which the proceedings were taken had jurisdiction of the parties or subject-matter," though this has been held unnecessary," but he must show that the debts sued on were scheduled in time for proof and allowance," and that he received his certificate," failing in any of these regards the answer is amendable." He is not required to show that the claims sued on were provable," nor that the debt is not within any of the classes excepted from the operation of the bankruptcy law," though there is conflict on this latter point." The state courts have jurisdiction to determine the effect of a discharge."

The discharge of a bankrupt is but a personal release," it does not release the property of the debtor from a valid lien attaching thereto, such lien not being expressly annulled by the provisions of the bankruptcy act." Nonprovable debts are not released." State acts allowing discharged bankrupts to obtain a cancellation of judgments against themselves are not generally intended to enlarge the scope of the Federal bankruptcy act," and generally entitle the bankrupt to such cancellation as a matter of right."

Debts created by fraud, embezzlement, or misappropriation in whatever capacity or relation the bankrupt was acting, are not released by the bankrupt's discharge," the words "while acting as an officer or in any fiduciary capacity," as used in section 17, subd. 4, apply only to a defalcation." "Debts created in any fiduciary capacity" include only technical trusts, and not trusts implied by law from contracts of agency,\[46\] or bailment." Conditions as to settlement do not convert a contract of sale into one creating a trust and establishing a fiduciary relation between the parties,\[46\] nor render the debt from the bankrupt on account of goods sold and not paid for one created by fraud, embezzlement, misappropriation, or defalcation, while acting in a fiduciary capacity,\[46\] so as to prevent its release by a discharge in bankruptcy. Both a trustee for creditors\[50\] and a receiver appointed by the court\[51\] hold the funds in a fiduciary capacity. The relation between a broker and his patrons is not such a fiduciary one.\[52\] Obligations incurred by one selling goods on commission and retaining the proceeds constitute debts created while acting in a fiduciary relation within the meaning of the bankruptcy act.\[58\] Failure by a debtor to turn over wages collected by him in pursuance to an assignment of his future earnings is a defalcation while acting in a fiduciary capacity.\[54\] Since the amendment of 1903 a bankrupt is not released by his discharge from claims based on fraud though not reduced to judgment.\[55\]

A discharge in bankruptcy does not release the debtor from judgments obtained in actions for wilful and malicious injuries to the person or property of another.\[55\] Judgments for malicious prosecution,\[57\] slander,\[58\] or criminal conversation,\[59\] are not released. Judgments in a suit of trespass to try title,\[60\] in an action of trover and conversion,\[51\] or for breach of promise to marry,\[62\] are released by the discharge of the judgment debtor. A final money judgment being obtained upon an order requiring a putative father to support his child, the debt evidenced thereby is not released by a discharge of the judgment debtor,\[58\] nor is an order upon a father to support his child of tender years,\[64\] but the obligation to reimburse a 46. Agent owing his principal money is not a fiduciary debtor. Boyd v. Agricultural Ins. Co. (Colo. App.) 16 P. 986. See 1 Curr. 55. Constructing together clauses 2 and 4 of 17, Act 1988. In re Wollock, 120 F. 47. Boyd v. Agricultural Ins. Co. (Colo. App.) 16 P. 986. Prior to the amendment the contrary rule prevalled. Smith & W. Co. v. Lambert, 69 vided that buyer should hold in trust and separate for the settlement of the seller's 122 F. 222; Quaker City Watch Co. v. Lam-ceived for goods sold. In re Butts, 120 F. 966. 49. In re Butts, 120 F. 966. 49. In re Butts, 120 F. 966. 50. Loaning the money to a firm of which he was a member is such misappropriation, though he expected the loan would be re-pald. Field v. Howry \[Mich.\] 94 N. W. 213. 51. The successor in office of the receiver did not by proving the claim for misappropriation of the debtor's funds against the receiver's estate in bankruptcy elect to treat it as an ordinary debt, rather than as a fiduciary obligation, and thereby wavy his right to question the discharge in bankruptcy. Field v. Howry \[Mich.\] 94 N. W. 213. 52. A bankrupt broker is released by his discharge from liability upon a debt in-curved by his failure to return to a customer securities deposited with him as collateral against loss. Crosby v. Miller, Vaughn & Co., 25 R. I. 172, 55 A. 328. 53. Laundry agent in country town so-liicted and sent laundry to laundry in city, on the latter's returning it the agent would deliver the packages, collecting thereor and sending the total collected, less his commission, to his principal, held, discharge in bankruptcy will not avail him as against his principal\* claim for money not turned over. Shipley v. Platt (B. D.) 97 N. W. 1. 54. Mott Iron Works v. Toumey, 87 N. Y. 1020. 55. Constructing together clauses 2 and 4 of 17, Act 1988. In re Wollock, 120 F. 516. Prior to the amendment the contrary rule prevalled. Smith & W. Co. v. Lambert, 69 vided that buyer should hold in trust and separate for the settlement of the seller's 122 F. 222; Quaker City Watch Co. v. Lam-ceived for goods sold. In re Butts, 120 F. 966. 49. In re Butts, 120 F. 966. 50. Loaning the money to a firm of which he was a member is such misappropriation, through he expected the loan would be re-pald. Field v. Howry \[Mich.\] 94 N. W. 213. 51. The successor in office of the receiver did not by proving the claim for misappropriation of the debtor's funds against the receiver's estate in bankruptcy elect to treat it as an ordinary debt, rather than as a fiduciary obligation, and thereby wavy his right to question the discharge in bankruptcy. Field v. Howry \[Mich.\] 94 N. W. 213. 52. A bankrupt broker is released by his discharge from liability upon a debt in-curved by his failure to return to a customer securities deposited with him as collateral against loss. Crosby v. Miller, Vaughn & Co., 25 R. I. 172, 55 A. 328. 53. Laundry agent in country town so-liicted and sent laundry to laundry in city, on the latter * 3 Cur. Law. BANKruptcy $ 22C. 493

stranger for past support of the child is released by such a discharge.\[45\] The stay of a suit, as to the personal liability of the bankrupt, in a state court, ordered pending discharge, will not be continued after the discharge has been granted, but the temporary stay should be vacated without prejudice to the rights of the bankrupt under the discharge.\[68\]

A discharge in bankruptcy does not terminate a lease nor change the legal relation of landlord and tenant unless the landlord re-enters or the trustee assumes the lease.\[67\] The maker of a note is released from liability thereon by a discharge in bankruptcy.\[68\] As to whether or not a debt can escape the operation of the discharge by being secured by an assignment of future earnings there is a conflict.\[69\] The lion of a judgment rendered more than four months prior to the filing of the petition is not released by a discharge of the judgment debtor in bankruptcy, when the holder of such judgment does not prove his debt in the bankruptcy proceedings.\[70\] A discharge in bankruptcy does not release a lion even empty property, though obtained within four months prior to the filing of the petition in bankruptcy.\[71\]

An unscheduled provable debt is not released by the discharge unless the creditor,\[72\] or his agent,\[73\] had notice or actual knowledge of the bankruptcy proceedings, and the burden is upon the bankrupt to show that the creditor had such notice or knowledge.\[74\] An incorrectly described claim is equivalent for this purpose to an unscheduled one.\[75\] Failure to schedule a claim through ignorance of its existence does not render the discharge a bar thereto.\[76\] The assignee of a claim of a bankrupt is not bound by a settlement, of which he has no knowledge, in the bankruptcy court.\[77\] A provable claim not being proved, the creditor hav ing knowledge of the bankruptcy proceedings is absolutely barred by the discharge," and though the creditor holds a waiver of exemption, it cannot be collected from the property set aside to the bankrupt as exempt." In order to entitle a partner, filing a voluntary petition in bankruptcy, to a discharge from firm debts his petition must show the partnership assets and liabilities," and the firm creditors must be notified," but the petition failing in this regard it may be amended."

The discharge of a bankrupt does not affect the liability of a co-debtor," or guarantor."

An unequivocal promise given after bankruptcy to pay a debt barred thereby is valid." The promise to pay a debt discharged in bankruptcy must be clear, distinct, and unequivocal." In most states an agreement to revive a debt discharged in bankruptcy, in order to be valid, must be in writing," and where such promise is given the creditor may sue on the debt and need not sue on the new promise." The discharge being proved, the burden is upon the plaintiff to show that the new promise was made both after the discharge was granted, and before the suit on the account was brought," though it has been held that such a promise made after adjudication but before the discharge is binding." A conditional promise to pay a debt discharged by bankruptcy must be accepted."

A trustee failing to dispose of property previous to the bankrupt's discharge, the bankrupt's title remains unaffected by the bankruptcy proceedings," and is subject to valid, undischarged liens acquired before the bankruptcy proceedings."

Bankruptcy proceedings do not affect debts owing the bankrupt, except to make the trustee the payee."

(SS 28) \_D. Pleading and evidence."\_Two or more creditors seeing fit to adopt the same specifications of objection may do so by signing the same paper." Specifications of objection are amendable in matters of substance, after the time within which objections are required to be filed, only where the amendment is simply an 3 Cur. Law. BANKRUPTCY SS 22D. 495

amplification of the charges which are stated in the original." Leave to amend can only be granted by the judge," and the privilege may be lost by laches." There seems to be a conflict as to whether or not the specification of objection needs to be verified,1 but in courts holding it necessary, the right to object to the specifications for lack thereof may be lost by allowing the cause to proceed,2 and in those courts the verification may be made by the creditor's attorney,3 and the verification being sworn to "to the best of the affiant's knowledge, information, and belief," it is sufficient.4 The verification being held necessary it may be supplied by amendment." A specification of objection on the ground that the bankrupt failed to keep books knowingly and fraudulently concealing property should state the nature of the ground relied on,4 a description of the property concealed from the trustee," the names of the parties holding the title,4 the time of the transfer,5 and any other facts necessary to identify the transaction,10 and that the bankrupt "knowingly and fraudulently" disposed of or concealed the property.11 Specifications of objection on the ground of the bankrupt's making of a false oath must set out the facts relied on,12 and must allege that such oath was "knowingly and fraudulently made."11 A specification of an objection on the ground that the bankrupt failed to keep books of account, and thus fraudulently concealed his true financial condition, is sufficient if alleged in the language of the act,14 though the contrary has been held,14 such courts holding that a specification of objection, for any cause, in the language of

97. Supplying the details of alleged fraud- -- as soon as his petition for discharge is -- latent transfers. In re Gift, 130 F. 230. See 553. A specification of objection that with -- in four months of filling the petition the -- by --???. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --??. --?. --??. --?. --??. --?.

the statute, is wholly insufficient, no evidence being receivable thereunder,18 nor do they afford any basis for amendment.17

Footnote 18: The author is grateful to the anonymous referee for the support of the author.

The proceeding to obtain a discharge is not a criminal one in any sense,19 and hence a fair preponderance of satisfactory evidence is sufficient.19

SS 23. \_Reopening, grounds and effect.20--\_The discharge is not conclusive evidence that the bankrupt has accounted for all his property,21 and a court of bankruptcy has power, in its discretion, to reopen the estate of a bankrupt to permit a trustee to maintain an action for concealed assets.22 A referee has jurisdiction of a petition to reopen an estate.28 No time is fixed within which the discharge of a bankrupt may be reopened,24 laches will authorize the court to refuse to reopen the estate,28 hence the rule is that a reasonable time, under all the circumstances of each case, should be allowed.28

Footnote 28: The author is grateful to the anonymous referee for the support of the author.

Footnote 29: The author is grateful to the anonymous referee for the support of the author.

Footnote 30: Fowler v. Jenks, 90 Minn. 74, 95 N. W.

Footnote 31: Title to concealed and nonscheduled
3 Cur. Law. BASTARDS SS 2.

nates as "natural children" illegitimate children who have been acknowledged by their father; those not acknowledged or whose parents were incapable of contracting marriage at the time of the conception, are basards.34 The presumption of legitimacy of a child born during matrimonial cohabitation is sometimes held to be conclusive,35 except where the husband is shown to be impotent,36 but in some states, proof of nonaccess is admitted.37 The legitimacy of children is presumed, and one claiming the contrary has the burden of proof,38 which is not met by slight evidence.39 The issue of Indians who cohabit as husband and wife according to the custom of Indian life is deemed legitimate.40

SS 2. _Rights and duties of and in respect to basards.41_--At common law, a basard or his issue cannot inherit from his mother's collateral kindred,42 and they have no greater capacity to take under dispositions causa mortis.48 The mother's legal duty is only to support the child until he becomes self supporting, and in case she is able to do so.44 An agreement by the mother of an illegitimate child to care for and support him until a certain date is sufficient consideration to support a promise by the putative father to settle a sum of money on him on that date.45 A legitimated basard has all the rights of a child born in lawful wedlock,46 but this does not affect his relation to his mother.47 The illegitimate sister

property does not reveal in the bankrupt

was denied and evidence of a marriage cerfiter his discharge so as to deprive the court

ifficate claimed to have been her father's, of jurisdiction upon the reopening of the

though the name was different, and the acetate. Fowler v. Jenks, 90 Minn. 74, 95 N. W. 887.

32, In re Bimberg, 121 F. 942.

33. See 1 Curr. L. 338.

01. Mother a colored person. Succession

held to show that child was born in wedlock,46 but this does not affect his relation to his mother.47 The illegitimate sister

35. Town of Canaan v. Avery \[N. H.\] 58

01. Bunel v. O'Day, 125 F. 803.

01. Kennington v. Catoe \[S. C.\] 47 S. E.

01. State v. Liles, 134 N. C. 785, 47 S. E.

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.

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01.

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01.

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of a bastard takes as his heir in the right of their mother to the exclusion of the next of kin of the father.48 The mother is not "a party interested in the event" of an action brought by the child against the estate of the putative father to enforce a contract.49 The putative father is entitled to the custody of the child after the mother's death.50 A bastard child, being entitled to support from its father, may sue under the civil damage act for injury to support.51

SS 3. \_Procedure to ascertain paternity and compel support.52--\_At common law, there was no legal obligation on the part of a putative father to support his illegitimate child.54 Bastardy proceedings to compel a putative father to support the child now generally provided by statute are usually held to be civil proceedings.54 The proceeding will lie, though the child was born outside the state.55 A proceeding under the bastardy act is not barred for six years in South Dakota.56 A complaint in the words of the statute is sufficient.57

Footnote 54: The possibility of a bastard is not a bastard, but it is not a bastard.

Footnote 55: The possibility of a bastard is not a bastard, but it is not a bastard.

Footnote 56: The possibility of a bastard is not a bastard, but it is not a bastard.

Footnote 57: The possibility of a bastard is not a bastard, but it is not a bastard.

Footnote 58: The possibility of a bastard is not a bastard, but it is not a bastard.

Footnote 59: The possibility of a bastard is not a bastard, but it is not a bastard.

- Cur. Law. BETTING AND GAMIING. 499
- normed is admissible as an admission. \[98\] Prosecutrix is not an accomplice within the rule requiring corroboration. \[97\]
- \_Instructions. \[98\]--Instructions as to the purpose of the statute, \[99\] and that false assertions by the mother that the intercourse was forcible, are not necessarily fatal to the prosecution, \[70\] have been held not prejudicial.\_Argument. \[99\]--It is not error to allow counsel to call attention to the appearance of the child, where defendant introduced a photograph. \[71\]
- _Judgment. \[72\]--The award will not be disturbed unless manifestly excessive. \[73\] In undertaking given in justice court will not prevent an order after judgment in the circuit court on appeal that defendant be committed till he give security for compliance with the judgment. \[74\]_
- _Legitimation, recognition, adoption. \[76\]--The law of the father's domicle fit the time of the legitimating act will determine the status. \[76\] A basard is legitimized by the subsequent marriage of his parents. \[77\] Statutes providing how a basard may be legitimized must be literally complied with. \[78\] The criterion of treatment accorded an illegitimate child received into the family is the treatment usually accorded legitimate children. \[79\]_
- BETTING AND GAMIING. \[80\]
- _The Offense and Criminal Prosecu-_ (500). \[99\] _S 2. Penalties and Selvare of Implements_ (500). \[100\] \_S 3. Recovery Back of Money Lost (505). \[101\] \_S 4N. W. 974. \[102\] _S 56. Inadvertment or Information and Trial_ (505). \[103\] _S 60._ \[104\] _S 70._ \[105\] _S 80._ \[106\] _S 90._ \[107\] _S 108._ \[108\] _S 11._ \[109\] _S 12._ \[110\] _S 13._ \[111\] _S 14._ \[112\] _S 15._ \[113\] _S 16._ \[114\] _S 17._ \[115\] _S 18._ \[116\] _S 19._ \[117\] _S 20._ \[118\] _S 21._ \[119\] _S 22._ \[120\] _S 23._ \[121\] _S 24._ \[122\] _S 25._ \[123\] _S 26._ \[124\] _S 27._ \[125\] _S 28._ \[126\] _S 29._ \[127\] _S 30._ \[128\] _S 31._ \[129\] _S 32._ \[130\] _S 33._ \[131\] _S 34._ \[132\] _S 35._ \[133\] _S 36._ \[134\] _S 37._ \[135\] _S 38._ \[136\] _S 39._ \[137\] _S 40._ \[138\] _S 50._ \[139\] _S 51._ \[139\] _S 61._ \[130\] _S 62._ \[131\] _S 63._ \[132\] _S 74._ \[133\] _S 75._ \[134\] _S 76._ \[135\] _S 80._ \[136\] _S 81._ \[137\] _S 82._ \[138\] _S 90._ \[139\] _S 91._ \[139\] _S 92._ \[140\] _S 93._ \[141\] _S 94._ \[142\] _S 95._ \[143\] _S 96._ \[144\] _S 97._ \[145\] _S 98._ \[146\] _S 99._ \[150\] _S 99._ \[151\] _S 108._ \[152\] _S 109._ \[153\] _S 11._ \[154\] _S 12._ \[155\] _S 13._ \[156\] _S 14._ \[157\] _S 15._ \[158\] _S 16._ \[159\] _S 17._ \[160\] _S 18._ \[161\] _S 19._ \[162\] _S 19._ \[163\] _S 19._ \[164\] _S 19._ \[165\] _S 20._ \[166\]

**SS 1.**_The offense and criminal prosecutions. A. The offense._**.**\[22\]--Every act of exhibiting a device for the purpose of gaming is an offense,**\[33\] **and a single bet or wager may be a violation of a statute against bets and wagers.**\[44\] **By statute an accessory before the fact in gaming may be punished as the principal.**\[85\] **One who acts as agent for parties out of the state, and who receives a commission on each transaction, is not guilty of buying and selling futures,**\[88\] **and receiving money in one state to be wagered by telegraph in another is not carrying on a gambling business in the former state.**\[87\] **_Validity of regulations._**\[88\]--Legislation has been held valid which made it illegal to knowingly have in possession papers or property used in policy playing,**\[89\] **or to bet upon a horse race,**\[90\] **or to engage in pool selling outside of a race track authorized by law,**\[91\] **or to lease premises to be used for pool room purposes,**\[92\] **or to transmit messages to pool rooms for betting purposes,**\[93\] **or to play specified games of chance,**\[94\] **or to deal in futures,**\[95\] **or to keep a place where the pretended sale of stocks and provisions is indulged in,**\[98\] **or to bet upon an election,**\[97\] **likewise of legislation providing for the destruction of gaming implements;**\[98\] **but the giving of trading stamps is not a lottery which may be prohibited by the legislature.**\[88\] **In New York it is illegal to offer property for distribution, the title to which is to be determined by chance or lottery.**\[1\] **In the absence of express authority, a town cannot regulate gaming,**\[2\] **and a municipal ordinance against the conducting of a "bunco business" and in conflict with the statute upon gambling, is invalid.**\[8\] **An 82. See 1 Curr. L. 340.** \*\*\[83\] **Defendant convicted though the buslness was done through an agent in another town than where defendant lived \[Rev. St. 1889, $ 2339\]. State v. Kentner \[Mo.\] 77 S. W. 522. Art. 377, Pen. Code. Fullerton v. State \[Tex. Cr. App.\] 75 S. W. 534.** \*\*\[97\] **Gom, V. Leak, 25 S. Y. L. R. 761, 76 S. W. 365. An election guessing contest is a wager. Hence violates Rev. St. $ 4269, Ho. \[Mo.\] 80 S. W. 942.** \*\*\[98\] **Gro, D. A. Diko N. P. (N. S.) 205.** \*\*\[99\] **Guste v, Klondicke Machine \[Vt.\] 57 A. 994; Kite v. People \[Colo.\] 74 P. 886; Furth v. State \[Ark.\] 78 S. W. 759; Woods v. Cottrell \[Vw.\] 47 S. B. 275.** \*\*\[99\] **Such a scheme ls but a species of ad-vertising, and a statute forbidding It ls unconstitutional. State v. Dodge \[Vt.\] 66 A.** \*\*\[98\] **NOTE. Trading stamps: The decision above cited is in line with the great weight of authority. To the same effect see City of Winston v. Beeson \[N. C.\] 47 N. E. 457, ctlting State v. Dalton, Z2 R. T. 77, 46 A. 234; Young v. Com., 101 Ya. 853, 45 B. E. 327; Ex parte McKenna, 126 Cal. 429, 58 P. 916; Stue v. Shugart, 138 Ala. 86, 55 So. 28; People v. Dyeker, 127 App. Div. 308, 76 N. Y. S, 111; Com. v. Emerson, 165 Mass. 146, 42 N. E. 559; Com. v. Shisson, 178 Mass. 578, 60 N. E. 385; People v. Gillison, 109 N. Y. 839, 17 N. E. 343; Long v. State, 74 Md. 565, 22 A. t. In Lansburgh v. District of Columbia, 11 App. D. C. 612, a trading stamp scheme was held to be a gift enterprise withln a statutory definition of the term. See, also, Lotteries, 2 Curr. L. 764.** \*\*\[1\] **Pen. Code, $ 328. Such an offense being a misdemeanor the supreme court had no jurisdiction. People v. Pickert, 89 N. Y. 8, 183.** \*\*\[2\] **State v. Godfrey \[W. Va.\] 46 S. E. 185.** \*\*\[3\] **Clark v. State \[Tex. Cr. App.\] 81 B. W. 722.** \*\*\[4\] \*\*Gom, V. Leak, 25 S. Y. L. R. 761, 76 S. W. 762, 76 S. W. 763, 76 S. W. 764, 76 S. W. 763 Cur: Law. BETTING AND GAMIING SS 1A.

ordinance requiring a license fee of $250.00 for each pool table is not an unreasonable regulation.\* The Arkansas gambling law of 1901 was not constitutionally enacted in that the acts which passed the respective houses of the legislature did not correspond.\* The New York statute making the possession of policy slips presumptive evidence of guilt against all except officers of the law is valid.\*

_Cards and other table games._'--It is not essential that a "table" be used to bring a gambling device within a statute prohibiting games of a like kind to certain table games,\* or that there should be the principle of the one against the many.\* A turkey raffle may constitute a table or bank game where the exhibitor is certain of a profit.\* Craps is a table or bank game where one person sits behind a table and takes the bets of all others,\* and is not within a statutory exception allowing certain dice games at a private residence.\* The change of name of any of the games forbidden will not prevent conviction for playing them.\* In Texas the mere exhibiting of a table or bank for gaming purposes is illegal,\* and it is immaterial whether money or anything of value was bet.\*

_Racing and race tracks._*--The general rule is that betting on a horse race is gaming, and it is immaterial that the race is conducted elsewhere;* but betting on a horse race is not "gaming" in Kentucky.\* Pool selling and book making outside the race course authorized by law are illegal in New York,\* and the principal is liable for the acts of his agent in conducting a forbidden business,\* but one who makes a bet, as agent for the bettor, is not guilty of "taking or accepting a bet" on a horse race.\* The business of conducting a pool room or turf exchange may lawfully be discriminated against, though the business is thereby rendered unprofitable.\* Recording of bets by "mechanical or other means" will include the registering of bets upon cards by use of initials.\*

_Slot machines._*--The keeping or exhibiting of any slot machine for gaming purposes is illegal in Texas.* A slot machine on which a cigar is guaranteed for each play is illegal as a table or bank game.\* Where the statute enumerates cer 502 BETTING AND GAMIING SS 1B. 3 Cur. Law.

tain devices, a device not enumerated must be shown to be ordinarily used in gambling to bring it within a general clause of the statute.\[27\]

\_Gaming at public place.\[28\]--\_The playing a game of cards or dice in a public place is forbidden in Alabama.\[29\] Under a statute forbidding gaming except at a private residence occupied by a family, a tent may constitute such an exception,\[30\] and a game within 10 feet thereof was held to be "at the residence."\[31\] A private residence commonly resorted to for gaming is not within the exception,\[32\] nor a dug-out adjacent to a residence and occasionally used by the family,\[33\] but a room securely locked and accessible only to those engaged in the play is not a public place or place of public resort,\[34\] nor are an officer's living rooms in a county jail." The testimony of one witness is sufficient for a jury to find that it was a "public place."\[36\]

_Keeping a gaming place._--Keeping and maintaining a gaming house was a nuisance and punishable at common law\[37\] even before any sort of game was prohibited.\[38\] One may be guilty of keeping a gaming house, who maintains a place for people to congregate for betting purposes,\[39\] or who maintains a place where the public is invited to buy pools,\[40\] or who keeps a room where gaming is conducted, though such fact be unknown to him.\[41\] That the bots were consummated in another state is not a good defense in a prosecution for keeping a gaming house.\[42\] Each person participating in the keeping of a gaming house may be guilty of the offense though each performed but one of the subdivided duties.\[43\]

(SS 1) \_B. Indictment or information and trial procedure.\[44\]--\_Gaming and allied offenses being statutory, an indictment charging any of them is sufficient if it follows the statute and the latter sets forth all the facts which constitute the offense;\[45\] it need not allege the intent of the defendant,\[46\] nor state with particul larity the place where the offense was committed." In the absence of statute the information or indictment must name the parties who were permitted to play or allege that they were unknown.\[48\] An indictment is fatally defective which fails to allege that defendant had charge of a "place" where gaming was conducted," or that some one played upon the slot machine complained of and won or lost something of value,\[80\] or that does not charge both the crime and the act constituting it,\[81\] or where the charge is of being a common gambler, that does not specify the kind of gaming indulged in.\[82\] An indictment for selling futures need not allege the specific sales relied upon,\[83\] nor one for keeping a gaming house, that games of chance were there played.\[84\] That one did feloniously engage in "pool selling and selling pools" is sufficient,\[85\] but a defective indictment for playing in an hotel or tavern cannot be held good for playing in a public place.\[86\] Where an offense may be committed by doing one or more of several things, the indictment may in a single count allege them together,\[87\] and conviction may be had on proof of commission of any one of the things, without proof of the commission of the others.\[83\] Under a statute making each day of conducting the business of dealing in futures a separate offense, such different occasions should be set out in distinct counts.\[89\] Counts under the statute against gaming, and counts for the common-tal repetition, purporting to be the facts of the acts alleged as the crime. People v. Olches \[N. Y.1 71 N. E. 106, 52. Burns' Ann. St. 1901, & 218. Bickell V. State \[Ind. App.\] 70 N. E. 548, 53. Pen Code, art. 377, makes such selling a maidermeanor_and declares each day of the business to be a separate offense. Fullerton v. State \[Tex. Cr. App.\] 75 S. W. 534. An indictment for dealing in futures need not allege an actual sale. Scales v. State \[Tex. Cr. App.\] 81 S. W, 947.

- An allegment that defendant kept a common gaming house is sufficient, the word gaming having a definite meaning in law I. e. gambling, the playing of games for stakes or wagers. State v. Morgan, 133 N. C. 743, 45 S. E. 1033. There is a difference between gambling and gaming. Gaming refer to contests in which money has been wagered, although there may be no sport, no skill, no element of contest, between those betting. Thrower v. State, 117 Ga. 753, 45 S. E. 126.
- People v. Corballs, 86 App. Dlv. 531, 88 N. Y. S. 782.
- The words "In the hotel of Lahen Nuttes," are descriptive merely and not of the essence of the offense. State v. Keyer, \[Vw. Va.\] 46 S. E. 694.
- Blackell V. State \[Ind. App.\] 70 N. E. 548: People v. Corballs, 86 App. Dlv. 631, 83 N. Y. S. 782. The different parts or stages of the same offense may be joined in one ount. One who knowingly suffers money or other property to be raffled for in such house, shop, or building, and to be won there by throwing or using dice or any other game of chance, is guilty of but one offense. Com. v. Coleman, 184 Mass. 198, 68 N. E. 280.
- People v. Corballs, 86 App. Dlv. 531, 83 N. Y. S. 782. One may be convicted for keeping a place prohibited by law though he was in control of only a part of the build-ing. Com. v. Wood, 184 Mass. 198, 68 N. E. 220. Com. v. Coleman, 184 Mass. 198, 68 N. E. 220.
- Failure to set out as above is not law offense of keeping a gaming house, may be joined in the same indictment."6 The accusation may charge any offense included in the affidavit."61 At common law gambling was a nuisance for which a right of trial by jury did not exist."62 In Mississippi one indicted for a violation of the gaming laws may be tried thereunder for any antecedent violation not barred by the statute of limitations."63 In New York the possession of policy slips is presumptive evidence against all but public officers,"64 and the admission of defendant's private papers, wrongfully seized, is not equivalent to compelling him to be a witness against himself."65 Cases involving the admissibility64 and sufficiency of evidence in gambling cases are discussed below."66 It is error to say to the jury that although evidence as to defendant's good character is admissible it does not amount to much in a gaming case."68 One charged with playing and betting on a card game on Sunday is entitled to an instruction that there must be proof beyond a reasonable doubt of the betting as well as the playing,"69 and as to whether defendant bet is a question for the jury."69 The recognizance on appeal must be in strict compliance with the statute."61

cured by confining the prosecution to one day. Pen. Code, art. 377. Scales v. State \[Tex. Cr. App.\] 81 S. W. 947.

60. The offenses are of the same nature and a similar judgment might be passed in each case. State v. Morgan, 133 N. C. 743, 45 S. E. 1033. The information should be verified or supported by affidavit of a person competent to testify. But such a defect will not be considered when raised for the first time on appeal after conviction: State v. Runral \[Mo. App.\] 80 S. W. 34.

01. The accusation cannot be broader than the affidavit, but as the greater includes the lesser, if the affidavit is general, the accusation can be specific. Glass v. State, 119 Ga. 299, 46 S. E. 435.

01. Furth v. State \[Ark.\] 78 S. W. 759.

01. Code 1892, 1 1431. But an indictment charging a number of defendants with individual offenses was bad. Howard v. State \[Miss.\] 35 So. 654.

01. Such a statute is not unconstitutional as allowing any public offreal to hold policy slips, for it relates only to cases where slips are seized and are in the custody of the officers of the law. Adams v. New York, 192 U. S. 585, 24 S. Ct. 372.

01. Adams v. New York, 192 U. S. 585, 24 S. Ct. 372.

01. That a house was knowingly rented for gaming purposes may be shown only by facts and inferences therefrom. Evidence admissible that the renter was generally known as a gambler, and as to the past use of the house. Rivers v. State, 118 G. 42, 44 S. E. 859. Evidence that defendant's name was on a building in which gaming was being conducted is admissible to show his control of the premises. Evidence that defendant was reputed to be the owner of the place and business is inadmissible. Crippen v. State \[Tex. Cr. App.\] 80 S. W. 372. It is reversible error to admit evidence of another offense than that charged in the information. Defendant was charged with allowing a minor to play pool upon defendant's premises, and the court admitted evil-dence of such conduct at another time than as charged. State v. Meadows \[Mo. App.\] 81 S. W. 463. The husband of a woman indicted Johnity with another defendant is not inconclent to testify on the separate trial of such other defendant, though his testify may tend to incriminate his wife. In case of a joint trial, his testimony would be incompetent. Rivers v. State, 118 Ga. 42, 44 S. E. 859. In a prosecution for dealing in futures, defendant should be allowed to put the evidence the charter of the corporation he represented. The charter permitted a sale of cotton, etc., unless actual delivery was contemplated. Scales v. State \[Tex. Cr. App.\] 81 S. W. 947.

01. Evidence that defendant and others each had cards in his hands, and money in front of him, and upon discovery attempt-ed to escape, held sufficient to sustain verdict of guilty of playing and betting at a game played with cards for money. Harmon v. State \[Ga.\] 47 S. E. 547. Need not show the character of the game nor which of the players won or lost. Arnold v. State, 117 Ga. 706, 48 S. E. 59. That defendant and others were arranged in a circle with money in the center, and one of the party shuffling a deck of cards, is sufficient to sustain conviction for playing and betting at cards. Frost v. State \[Ga.\] 47 S. E. 901. A charge of keeping and maintaining a gaming house is sustained by evidence of guilt of either Keeping or maintaining. Bryan v. State \[Ga.\] 47 S. E. 574. The jury must believe beyond a reasonable doubt that defendant was present or permitted a minor to play pool upon defendant's tables to convict under Rev. St. 189, 5 439. State v. Meadows \[Mo. App.\] 81 S. W. 463. In a prosecution for dealing in futures the state must show an agreement not to have an actual delivery. Scales v. State \[Tex. Cr. App.\] 81 S. W. 947.

01. Clv. Code 4324. Turner v. State, 118 Ga. 756. 45 S 3 Cur. Law. BETTING AND GAMIING SS 3. The court will not reverse a conviction for gaming where the finding of the jury was fully supported by the evidence.\[72\]

SS 2. \_Penalties and seizure of implements.\[73\]--Laws punishing gaming are remedial and are to be construed liberally, not liberally for the culprit, but for the suppression of evil.\[74\] Gaming instruments may be seized and destroyed upon summary proceedings, without a jury trial,\[75\] and it is no defense that the instrument might have been used for lawful purposes, if in fact it was used for gambling.\[76\]

SS 3. \_Recovery back of money lost.\[77\]--\_At common law, one wagering money could recover it at any time before a determination of the wager;\[78\] but by statute one may recover his wager from a stakeholder before or after the funds leave the latter's hands,\[79\] and such a claim is assignable by parol.\[80\] Recovery may be had of one for money lost to his agents or servants.\[81\] In Kentucky one who induces another to enter or play in a gaming place is liable to penalty and responsible to such other's creditors for the sum lost.\[82\] but this does not permit a part owner of the resort to recover of his partners.\[83\] In New York one may recover money lost on a wager on a horse race.\[84\] It is no defense that the game was played for chips,\[85\] or that defendant received part of plaintiff's stakes from others to whom they had been lost.\[86\] That the money secured on a mortgage was used to support a gaming place will not invalidate the mortgage in the hands of an innocent third party,\[87\] and a bona fide purchaser before maturity may recover on a note given in transfer for other notes executed in consideration of gambling debts.\[88\] Plaintiff cannot recover on checks given to pay a gaming debt contracted in his hotel and with his same" court. Meeks v. State \[Tex. Cr. App.\] ,tt. 8, $ 8; 1 Birdseye's Rev. St. (3d Ed.) ,pp. 299, 300. Bernstein v. Horth, $ 8; 7. Y. ,pp. 263, 1 New. St. p. 662, $ 8; 9. This right is in no way affected by section 17 of Laws 1985, p. 377, 670. Mendoza v. Rose, $ 8. N. Y. ,pp. 383: Deploy v. Jackson \[Mo. App.\] ,tt. ,pp. 178, 330. But after determination of the resultant demand must be made previous to explanation of time agreed upon for determination of act, and action must be brought in three months of the acronym of the right \[Rev. St. 189, $ 430-4342\]. White v. Gilleland, 93 Mo. App. 310, 80. Bernstein v. Horth, $ 8; 7. S. ,pp. 263. ,pp. 268. ,pp. 269. ,pp. 269. ,pp. 270. ,pp. 281. ,pp. 282. ,pp. 283. ,pp. 284. ,pp. 285. ,pp. 286. ,pp. 287. ,pp. 288. ,pp. 289. ,pp. 290. ,pp. 310. ,pp. 301. ,pp. 320. ,pp. 333. ,pp. 344. ,pp. 345. ,pp. 351. ,pp. 352. ,pp. 353. ,pp. 354. ,pp. 355. ,pp. 356. ,pp. 357. ,pp. 358. ,pp. 359. ,pp. 360. ,pp. 361. ,pp. 362. ,pp. 363. ,pp. 364. ,pp. 365. ,pp. 366. ,pp. 367. ,pp. 368. ,pp. 369. ,pp. 370. ,pp. 371. ,pp. 372. ,pp. 373. ,pp. 374. ,pp. 375. ,pp. 376. ,pp. 377. ,pp. 378. ,pp. 379. ,pp. 380. ,pp. 381. ,pp. 382. ,pp. 383. ,pp. 384. ,pp. 385. ,pp. 386. ,pp. 387. ,pp. 388. ,pp. 389. ,pp. 389. ,pp. 390. ,pp. 391. ,pp. 392. ,pp. 393. ,pp. 394. ,pp. 395. ,pp. 396. ,pp. 397. ,pp. 398. ,pp. 400. ,pp. 401. ,pp. 402. ,pp. 403. ,pp. 404. ,pp. 405. ,pp. 406. ,pp. 407. ,pp. 408. ,pp. 409. ,pp. 409.

knowledge," and in Colorado an assignment of note or other evidence of debt is void where any part of the consideration is a gambling debt." A statute permitting a defense that an obligation was based on a gambling transaction, though such obligation shall have been transferred, is not unconstitutional."

**BIGAMY.**

\_The offense."--One may be guilty of bigamy, though he believes his first wife to be dead, or is ignorant of her being alive for less than seven years." It is a complete defense that the first marriage alleged in the indictment is void by reason of a prior lawful marriage, still existing." but restraint of marriage for a limited time because of divorce does not so invalidate a marriage during that time, subsequently ratified by cohabitation, that a third marriage does not constitute polygamy."\_10 In Missouri, the statute of limitations does not run against the offense of bigamy during the pendency of an indictment subsequently quashed."\_11

Indictment" may be based on a voidable marriage," and need not allege the legality of the former nor the illegality of the second marriage, nor the time and place of the celebration of the former marriage."\_12

\_Evidence and instructions.\_1--The burden is on the prosecution to prove both marriages and that the first wife was living at the time of the second marriage, but it falls upon defendant to prove that for seven years prior to his second marriage he did not know his first wife was living." The previous marriage may be proven by circumstantial evidence," or the uncorroborated admissions of the defendant," and proof of the celebration of a marriage raises a presumption of the existence of every fact necessary to the validity thereof." The testimony of the second wife, as to the second marriage, is admissible, but the incompetency of a lawful wife as a witness cannot be waived." The introduction in evidence of a contract for 3 Cur. Law. BONDS SS 1. 507 marriage because of seduction was not error where evidence tending to prove the same had been admitted without objection.${}^{\\dagger}$

An instruction is not improper which charges the jury that a mistake as to whether the first spouse was living is not a good defense unless proper care to ascertain the facts be shown.${}^{\\lx@sectionsign}$

Blackmail.

Blackmail consists in extorting or attempting to extort money by threats, as of violence,${}^{\\lx@sectionsign}$ or of arrest.${}^{\\lx@sectionsign}$

_An indictment_ in the language of the statute without stating the words of the threat is sufficient.${}^{\\lx@sectionsign}$ The use of "maliciously" instead of the statutory word "willfully" is not fatal.${}^{\\lx@sectionsign}$ An averment that defendant threatened a certain person with intent to extort money from him sufficiently imports that the threat was made in . the hearing of such person.${}^{\\lx@sectionsign}$

_Evidence_ of the previous relations of the parties is admissible to characterize the language used in the transaction in question.${}^{\\lx@sectionsign}$

BONDS.

**SS 1. The Instrument; Essentials and Va-** \*\*SS 3. The Terms and Conditions In General; Interpretation, Legal Effect, Breach (507), \*\*SS 2. Rights of Parties and Transferees (511). (510). ${}^{\\lx@sectionsign}$**4. Remedies and Procedure (514).**

\_Scope of title.--\_Questions relating to negotiable bonds,${}^{\\lx@sectionsign}$ to indemnity,${}^{\\lx@sectionsign}$ and to suretyship, are treated elsewhere,${}^{\\lx@sectionsign}$ as are matters peculiar to various bonds given in the course of legal proceedings.${}^{\\lx@sectionsign}$

**SS 1.**_The instrument; essentials and validity.${}^{\\lx@sectionsign}$_\*\*19--A statutory bond running to the wrong party,${}^{\\lx@sectionsign}$ or containing provisions not required by the statute,${}^{\\lx@sectionsign}$ while not good as such, may be enforced as a voluntary or common-law obligation, if not repugnant to the letter or policy of the law.${}^{\\lx@sectionsign}$ A bond not required by statute, 7. Welch v. State \[Tex. Cr. App.\] 81 S. **9.**: **9.**: **10.**: \*\*11.

if given voluntarily for a valid consideration, is binding at common law, unless repugnant to the letter or policy of the law \[33\], but one unlawfully exacted by a court or officer \[34\], or given pursuant to an unconstitutional statute \[26\], unless supported by a consideration independent thereof \[26\], is void and cannot be enforced for any purpose. To render a bond void for want of conformity to a statute, it must be made so by express enactment, or must be intended as a fraud on the obligors, by color of law, by an evasion of the statute \[27\]. Mere irregularities \[28\] or clerical errors do not affect the validity of the instrument \[29\].

A security for costs on appeal, which does not set out the amount for which the makers agree to become responsible, is invalid \[30\].

The formal approval of bonds required in certain legal proceedings may be waived \[31\], and where the bond was voluntarily given to procure an advantage to the principal obligor, neither he nor his surety can object that it was not entered does not state that it is payable for the benefit of all concerned, and which was never approved by the ordinary, has no sureties, and the conditions of which are not in the exact terms of the statute, is not a valid statutory bond; it is good as a voluntary obligation. Awtrev v. Campbell 118 Ga. 464, 45 S. E. 301.

23. Dudley v. Rice, 119 Wis. 97, 95 N. W.

01. A bond of the guardan of a lunette conditioned that such guardian would pay over the amount found due on a settlement, either with the court or with the ward If found of sound mind, is enforceable as a common-law obligation, though the court had no jurisdiction of the guardiashship proceedings, so that it was invalid as a statutory bond. The statute limiting the time within which an action can be brought against the sureties thereon (VVis. Rev. St. 1898, $3968) became a part of the contract, though it does not apply as a statute. Id. A court of equity has power to accept from defendant, as a condition of the discharge of a receiver for its property, a bond conditioned for the performance of the final defense, and to render judgment thereon against both principal and surety for the amount of complination's ultimate resource. Such bond is good as a common-law obligation, and the obligor, after receiving the benefits resulting from its execution, is stopped from de-nying its validity. Twin City Power Co. v. Barrett \[C. C. A.\] 125 F. 302.

01. In such cases there is no consideration, the obligor being entitled to every right claimed without bond, and hence securing nothing by giving it. Dudley v. Rice, 119 Vis. 97, 96 S. N. V. 936.

01. Bond given by a contract under Cal. Code Clv. Proc. 1 1203. San Francisco Lumber Co. v. Blob, 139 Cal. 192, 72 F. 964.

01. As bond given on appeal in action of forcible entry and detection, conditioned on payment of rent, where obligor has retained possession of premises thereunder, and statute allowing appeal has afterwards been declared unconstitutional. U. S. Fidelity & Guaranty Co. v. Ettenheimer \[Neb.\] 99 N. W. 652.

01. Meador v. Adams \[Tex. Civ. App.\] 76 S. W. 238.

01. Bond running to treasurer for use of county instead of to county. Buhrer v. Baldwin \[Mich.\] 100 N. W. 468. If the penalty of a statutory bond, voluntarily given, be greater than that prescribed by said statute, the bond is valid and enforceable to the amount of the statutory penalty, and void only as to the excess. Bond for sale of malt liquors under Tex. Rev. St. 1895, art. 5069, as amended by Laws 1901, c. 138. Meador v. Adams \[Tex. Civ. App.\] 76 S. W. 238. The fact that an official bond is Joint instead of joint and several as required by statute can-not be availed of by the obligors as a defense in an action thereon, but the bond is good to the extent it complies with the state in that regard. Wilcox v. Perkins County \[Neb.\] 97 N. W. 236. An action on an administrator's bond, from which the amount of the penalty has been omitted, may be maintained without a reformation of the instrument. McManus v. Harrigan, 41 Misc.

615, 85 N. Y. S. 220. The omission from a receiver's bond to a certificate to the effect that the officer who took the acknowledgment of the surety was a notary public is a mere irregularity. Such a bond is properly received in evidence in an action by the receiver. Livingston v. Eaton, 90 App. DIV.

261, 85 N. Y. S. 500. The validity of an attachment bend is not affected by the fact that the names of two of the sureties, who signed it at the bottom, do not appear in its body, nor by defects in the afflavit for attachment. McLean v. Wright, 137 Ala, 644.

35 So. 45. A redelivery bond in attachment, providing that, in case plaintiff recovered judgment in the action, defendant would, on demand, pay to plaintiff the amount of said judgment, with the costs and disbursements of the action, is a substantial compliance with a statute requiring a bond "to the effect that the sureties will pay to plaintiff the amount of the judgment that may be recovered against the defendant in the action," and is enforceable as a statutory bond \[Hill's Ann. Laws 07, 1892, $159\]. Ebner v. Heid \[C. C. A.\] * Cur. Law. BONDS SS 1.

into before the proper officer. \[22\] A bond partially conditioned for the performance of a contract farming out a portion of the fees of a paid office is invalid as to such portion. \[38\] The validity of a receiver's bond, or its execution, cannot be raised collaterally in defense of an action brought by him to foreclose a mortgage. \[44\]

\_Consideration. \[38\]--A bond under seal imports a consideration. \[39\] If the guaranty and the contract guarantied are a part of the same transaction, the consideration for the latter supports the former; \[47\] but if they are not one transaction, the bond must be supported by an independent consideration. \[38\] There is sufficient consideration to support a contractor's bond, where, prior to the execution of a building contract, the obligee demanded a bond from the contractor, and signed the contract in consideration of his promise to furnish one, even though one was not required by such contract. \[38\] The dissolution of an attachment is sufficient consideration to support a bond given to secure the release of the attached property. \[40\] Where, on appeal, an undertaking is given beyond that required by statute, it cannot be enforced as to such excess unless a consideration aliunde exists therefor. \[41\] A statutory obligation has its consideration in the attainment of the object allowed by the statute. \[42\] One who executes a bond under circumstances which would estop him to assert its invalidity for want of consideration cannot, in an action thereon, avoid liability on the ground that plaintiff is estopped to assert that there was any consideration. \[48\]

_Execution. \[44\]--A stipulation in a bond that it shall not be valid unless countersigned is binding, and absence of the countersignature renders it invalid; \[48\] but this stipulation may be waived, \[48\] as may provisions requiring fidelity bonds to be signed by the employe whose fidelity is thereby insured. \[47\]_

- Where writ issued on repelvin bond and property taken under it, fact that it was not entered into before magistrate issuing wrt, as required by statute (Conn. Gen. St. 1902, SS 1057), no defense. Douglass v. Unmack \[Conn.\] SS 8. A. 710.
- Bond of a deputy sheriff for the faithful performance of his duties, embodying a reference to a contract with the sheriff for the portion of the fees, cannot be enforced as to the sum specified in the contract to be paid by the deputy to the sheriff, but is valid as to public funds collected by him by virtue of his office and the sheriff can maintain an action against him thereon, even though such contract rendered the appointment invalid. \[White v. Cook, 51 W. Va. 201, 41 S. E. 410, 57 L. R. A. 417.
- Livingston v. Eaton, 90 App. Div. 251, 85 N. Y. S. 500.
- See 1 Curr. L. 343.
- S6. Graham v. Middleby \[Mass.\] 70 N. E.
- Consolidine v. Gallagher, 31 Wash. 669, 72 P. 469. Appeal bond. Gein v. Little, 89 N. Y. S. 488.
- S7. 38. Considine v. Gallagher, 31 Wash.
- S69, 72 P. 463.
- S9. Sweeney v. Aetna Indemnity Co.

510 BONDS SS 3. 3 Cur. Law.

\_Delivery.\[48\]--An order of the court discharging an attachment, reciting that it was made upon all the records filed in the case and upon the execution of a good and sufficient undertaking, is conclusive evidence of the delivery of such undertaking to the court and its acceptance by him as a delivery bond for the release of the property, where the bond has been approved by the court and filed with the clerk.\[49\] Notice of acceptance of a guaranty bond is not necessary.\[50\] The beneficiary of a bond guaranteeing the acts of another may assume that the premium therefor has been paid.\[61\] Changes in the contract to secure the performance of which the bond is given, made at the instance of one of the obligors without the knowledge or consent of the obligee, do not affect the validity of the bond.\[62\]

SS 2. \_Bights of parties and transferees.\[53\]--One who has the obligation of two different bonds for the performance of the same contract may enforce either at his election.\[54\]

A surety bond for the faithful performance of a contract passes under an assignment of such contract, and the assignee may maintain an action thereon in his own name.\[55\] The assignment of a liquor tax certificate does not release the parties to the bond given to secure it, unless the certificate was presented to the proper authorities for cancellation, or the assignment was consented to by them, as required by statute.\[50\] A substitution of bonds may be ratified by the obligee therein named.\[57\] A redelivery bond in attachment is not merged in a supersea-deas bond given on appeal, where it is subsequently determined that the appellate court has no jurisdiction in the matter.\[58\] A bond to secure the faithful performance of his duties by an agent and conditioned to be void if he pays all obligations existing or to arise to his principal may be revoked as to future transactions, at the will of the obligor.\[59\] A demand by the obligor for his release, and

Procept Coal Co. v. U. S. Fidelity & Guaranty

Do, 124 F. 42. .

- See 1 Curr. L. 343. 55. Contract and bond assigned by receivers of a railroad on reorganization there-
- Where the signers of a bond, guaran-

of. American Bonding & Trust Co. v. Balt-

being the faithful performance of his duties by an employe, delivered it to such employe

$66. The fact that such bond was executed by a bonding company and that such con-

that the obligee had agreed to accept it, the obligee was not required to give them no-

to be in the obligee. Id. The fact that the con-

and enforceable on delivery to him. Singer

for a breach of its terms and provided for

**SL.** The guarantor is estroped to deny

such payment as against the beneficiary who

was, in good faith, parted with value, relying

the control of the contract to secure the performance of

the control of the contract, and the obligee by him as a necessary prerequisite to

$20. The fact that a bonding company fur-

$21. The fact that a bonding company

$22. The fact that a bonding company

$23. The fact that a bonding company

$24. The state of a guardy bond is not necessary.\[50\]

change in the contract, consented to by an

$25. The action of a sheriff in substituting

architect acting without authority, and

hence not binding on the obligee, did not

previously given, and releasing the sureties

render the bond void. It having been fur-

on the first one, is ratified by the obligee

nished by the contract as a consideration

for the contract, and delivered to the obligee

without notice of the change. Sweeney v.

Actna Indemnity Co. \[Wash.\] 74 P. 1057.

$3. See 1 Curr. L. 343. 54. National Surety Co. v. U. S. \[C. C. A.\]

$123 F. 294. A proposal bond securing the

performance of a mail route contract, and a

bond afterwards taken from the contractor

for the same purpose. are independent undertakes, and the dismissal of a suit

the contractor is not necessary.\[50\] A bond is not necessary.\[51\] A bond is necessary.\[52\] A bond is necessary.\[53\] A bond is necessary.\[54\] A bond is necessary.\[55\] A bond is necessary.\[56\] A bond is necessary.\[57\] A bond is necessary.\[58\] A bond is necessary.\[59\] A bond is necessary.

3 Cur. Law. BONDS SS 3.

consent thereto by the obligee's agent, are sufficient, no formal release being necessary. \[60\] Suit can be maintained on an official bond only for such wrongful acts of the official as occur during the term of office for which he is chosen. \[61\] The fact that money received by a public officer by virtue of his office, was collected without authority is no defense to an action on his bond. \[62\] The obligee in a bond, it seems, gains no rights in a sum deposited to protect the surety. \[63\] A fund deposited to indemnify a surety does not fall under an equitable lion to the obligee, when the condition of the bond has been fulfilled. \[64\]

SS 3. _The terms and conditions in general; interpretation, legal effect, breach. \[65\]_--A bond will be most strongly construed against the person preparing it; \[66\] and when given pursuant to an order of court, in the light of and in connection with such order. \[67\]

A recital in a bond that it was given by virtue of a certain statute is not conclusive, but is simply prima facie evidence of the fact, \[68\] and when the fact that it is given by virtue of a particular statute is apparent otherwise than by recital, it is as available for all purposes as if recited. \[69\] A bond will generally be construed as penal in character, even when it expressly recites that the sum named therein is stipulated damages, unless such a construction would tend to defeat its essential object. \[70\] This import, however, may be overcome by other parts of the instrument. \[71\] Legislative acts imposing additional duties on a public officer, and expressly making him liable on his bond for a breach thereof, become a part of the bonds thereafter entered into by such officers. \[66\]

der successive transactions: (sec. 2844), pro-

vidng that a surety has all the rights of a guarantor; (sec. 2816) and that a continu-

bezzlement" the bonding company was ling guarantany may be revoted at any time

ble for a conversion of rent collected by him, by the guarantor, as to future transactions.

buch a contract is technically one of surety-

embezlement, since the words "amounting ship. White Sewing Mach. Co. v. Courtney, 141 Cal. 674, 75 P. 296. Where an agent,

"dishonesty." Id.

vhose liability to his principal was secured by a bond, had goods of the principal in his possession for sale when the bond was revoked, and the principal thereafter

ed because many of the issues were decided

sold the goods to the agent, taking his note

therefor, the obligation on the note was a new one, for which the surety was not liable.

Id.

60. White Sew. Mach. Co. v. Courtney, 141 Cal. 674, 75 P. 296.

01. State v. Greer. 101 Mo. App. 669, 74 S.

W. 881. Where there was no evidence to

prove that a public administrator's defaletion occurred during his first term of office,

but his annual settlements showed that the balance sued for was still in his hands during his second term, the sureties on his second and bond were the parties liable therefor.

Id.

62. Money collected from gambling houses and brothels and turned over to city treasure. City of Phillips v. Degenhart

\[Mont.\] 76 P. 694.

63. Malicki v. Bulkley. 206 Ill. 249, 05 N. E. 87.

01. It makes no difference that the liability secured has finally and in another way become fixed and that the principal is insolvent. Malicki v. Bulkley, 206 Ill. 249,

65 N. E. 87. The facts were that an appeal

bond was given, that apellant was successful but was defeated on the second trial. Id.

65. See 1 Curr. L. 344.

01. City Trust, S.-D. & S. Co. v. Lee. 204

01. G. Acts. 187. p. 57, relating to sales of state lands by ordinary. State v. Hendercon (G. 14 8 S. E. 34.

518 BONDS SS 3. 3 Cur. Law.

The official bond of a public officer covers all acts of his assistants and deputies within the scope of their authority, the same as if performed by himself personally, though he may be ignorant of their conduct.73 A bond conditioned that the obligor will observe a liquor license law renders him liable for acts of his clerk while in the performance of his business.74 The ordinary rules for the construction of written instruments apply.78 A trust deed given to save harmless the sureties on an official bond inures to the benefit of persons having valid claims against the county on default of such officer.76

Renewal bonds take the place of the original bond, and the liability of the maker is not increased thereby, unless it appears that the parties so intended.77

78. Bond of a city eierk covering the entire administrative duties of his office covers the acts of his second assistant, the latter being a bonded officer and exempt from Carpenter V. Fulmer, 118 Wis, 454, 95 N. W. the operation of the civil service law of Milli-vaukee (Laws 1895, c. 313, $ 6, p. 633\]. But-ler v. Milwaukee, 119 Wis. 526, 97 N. W. 185.

01. N. Y. liquor license law. Culliman v. Burkhard, 86 N. Y. S. 1003.

01. Bonds coursured: In a suit on a liquor dealer's bond conditioned that he would not allow minors to "enter and remain" in his place of business, there could be no recovery for entry "or" remaining, but the two must concur (Rev. St. Tex. 1895, art. 5608g, as amended by Laws 1901, p. 314, c. 136, construed). Minter v. State (Tex. Civ. App.) 76 S. W. 312. Where the entry and remaining was only for a time sufficient to purchase and drink a glass of beer, and the sale was made in good faith and on reasonable grounds of belief that the person was an adult, there could be no recovery for permitting such entering and remaining. Id. An administrator's bond constructed and held to render him liable the error, for the benefit of those interested, for whatever damages they might have sus-tained by his failure to administer the estate according to law. Awtrev v. Campbell, 118 G. 464, 45 S. E. 301. A bond running to persons about to reorganize a railroad company, which bound the obligors to pay all indebtedness of the company in excess of a certain sum, held to have been made sole- by for the benefit of the reorganized company which, after an assignment thereof to Bank V. U. S. Fidelity & Guaranty Co., 110 it was entitled to recover the damages suffered by it by reason of a breach of the conditions thereof. Moundswille, B. & W. R. 169. Co. v. Wilson, 62 V. W. 647, 44 S. E. 169. Surety bond construed and held to contain an unequivocal promise to indemirry the obligee for all loss arising out of any in-debtedness then due it from its agent. Unfon Centi Life Ins, Co. v. Prigge, 90 Minn. 370, 96 N. W. 917. The operation of a sewage plant by the city held not to have affected its right to recover on a bond given by the construction company for the faithful performance of its contract, taking into consideration the terms of the contract and the necessity of the use. City of Madison V. American Sanitary Engineering Co., 118 Wis. 480, 95 N. W. 1097. A bond was given to secure the performance, without delay, of a contract to sell certain property and deposit the proceeds in bank in two installments of equal amount and on specified dates. Held that a failure to deposit either 3 Cur. Law. BONDS SS 3. The official bond of a tax collector conditioned that his sureties will make good all moneys that may come into his hands, that he does not faithfully account for, embraces all such moneys previously received and on hand when the bond was executed, and all moneys subsequently collected, but not prior defalcations, unless the money had then been or was subsequently restored." County warrants issued against funds in the hands of the treasurer, and duly registered as required by law, constitute an equitable assignment of so much of the funds as is necessary to meet their payment, and the treasurer and his sureties become liable therefor." A bond given by a contractor for a public improvement, conditioned on his payment for labor and material furnished, is made for the benefit of laborers and material men, and they may maintain actions thereon." A statutory bond for the hire of convicts furnishes security for the payment of the amount of hire agreed on only, and recovery cannot be had thereon for inhuman treatment of the convicts, or for the breach of any other condition thereof." Requirement that a bond shall be given to secure performance of the contract does not require the owner to accept a bond requiring him to perform additional acts for the protection of his sureties."

A repelvin bond is breached by allowing the action to abate."

Where bonds are given during the course of legal proceedings to indemnify parties thereto, the judgment in such proceedings is conclusive as to their breach and the amount of damage resulting therefrom." One who gives an undertaking

78. Lake County v. Neilon \[Or.\] 74 P. 212. Contracts by bonds huring to the benefit of 79. Code Va. 1887, $ 2920, relating to Imitation of actions on contracts does not apply. No limitation as to principal, and only make contracts. San Francisco Lumber Co. nings v. Taylor \[Va.\] 45 S. E. 913. V. 819, 172 P. 964.

01. A provision in such bond authoring is assignment to laborers and material men, and stipulating that in such case it shall

outacts by bonds having to the benefit of all of them, does not prevent a material man from during thereon as a contract for his benefit and without such assignment, where he is the only credet.

itor of the contractor. Buffalo Forge Co. V. Chillen & S. Mfg. Co. \[Mo. App.\] 75 S. W. 82. The owner need not accept a bond re-

1024. May be joined as copaintiffs in action brought by city. Town of Gastola v. Werting to the surety of default by the prn-

McEnlee-Peterson Engineering Co., 131 N. C. \[\] 363, 42 S. E. 858. Under a contract for the

building of a school house which required

bipted. Brown v. Levy, 29 Tex. Civ. App.

the contractor to provide all the materials and perform all the work necessary, and a

bond running to the school district alone conditioned that the contractor should provide the materials and all labor necessary and for the delivery to the district of the

Laws N. Y. 1992, a 580, p. 1531 and Code school house "free and clear from any Items

or claims of any kind" and that he should

Not necessary to have case marked dis-

pay any sum of money that the district

might be compelled to pay to remove any

Items. Incumbraces, or claims against the

building which might be claimed against the

district, the bondsmen were not liable to

diffr fails to appear in the repelvin action

materialmen for labor and material furnished,

and retains the property, though no judgf-

ed, the bond being for the benefit of the district alone. Green Bay Lumber Co. v. Indelec-

property, or for its value in case no return

pendent School Dist. 121 Iowa, 663, 97 N. W. 172. A bond exacted from a city contractor

for the protection of subcontractors and persons furnishing material for city work ie

taken for the protection of the city's own interests as well. City of Philadelphia v.

Neill, 206 Pa. 335, 55 A. 1032. The statute

of California (Cal. Code CV, Proc. $ 1203),

reaturing building contractors to secure their

84. Recovery of judgment in action of to procure the discharge of garnishment proceedings cannot, in an action thereon, question whether the garnishee held anything belonging to defendant,"" nor can one who gives a supersedeas bond to hold in force, pending an appeal, an attachment and garnishment discharged by the trial court be heard, in an action on such bond, to say that the person to whom such bond was given had no interest in the attached property, or that the attachment proceedings were invalid because of irregularity." But one who successfully attacks such appellate proceedings upon the ground that they are unauthorized by law and wholly void is estopped from afterwards asserting that they are in any respect valid, and therefore cannot maintain an action on the appeal undertaking by which they were begun."

Recovery cannot be had on a bond given on the issuance of a temporary injunction, where such injunction is rightfully awarded, but is afterwards properly dissolved because of matters done or arising subsequent to its issuance."

The principal and sureties upon an undertaking in an appeal, prosecuted under a void statute, to a court to which in fact no appeal lies are liable thereon if the court, without objection, entertains the appeal and renders judgment adverse to appellant which is acquieseed in by him."

An indemnity bond given a constable, after an illegal levy under an execution, to induce him not to return the property is enforceable against the sureties."

The fact that county funds are deposited with a partnership in the banking business instead of with a corporation, as required by statute, is no defense to an action thereon."

**SS 4.**_Remedies and procedures._"--At common law an action on a bond could only be brought by the obligee named therein, but this rule has been generally modified by statute so as to allow an action to be maintained by the person .for whose benefit it was given, he being the real party in interest." Hence it has been held that a person belonging to a class for whose benefit an official bond has been given, and who has been injured by such official's negligence or misconduct, may sue upon the same in his own name."

Indemnitors cannot be impleaded by the sureties."

claim and delivery conclusive proof of breach

SS. Where a temporary injunction was issued restraining the taking of certain land under void condemation proceedings, and v. Smith, 66 S. C. 424, 45 S. E. 16. A judgment in favor of defendant in an attachment with on the bond will He. Scott v. Frank.

will is conclusive of the liability of the ob-

121 Iowa, 218, 96 N. W. 764.

ligors upon an attachment bond for the payment of all costs and damages defendant

See, also, Estoppel, 1 Curr. L. 1130; Surety-

may sustain by reason thereof, if the same

be wrongful or without sufficient cause. The

good faith of plaintiff and the sureties on

W. 791.

the bond is immaterial. Defendant is not

estopped to maintain an action thereon by

Buhrer v. Baldwin \[Alich.\] 100 N. W. 468.

giving a bond to release the attachment

Amvl Gold Min. Co. v. Hoxse \[C. C. A.\] 125

7. 724. In a suit on a bond given on the issuance of a temporary injunction, the final

decree in the injunction suit is res adjudiud:

cata as to all matters therein decided. Scott v. Frank, 121 Iowa, 218, 96 N. W. 764.

See, also, Estoppel, 1 Curr. L. 1130; Surety-

also, titles Former Addication, 2 Curr. L.

60; Estoppel, 1 Curr. L. 1130.

85, Wilkinson v. U. B. Fidelity & Guaranty Co., 119 Wis., 226, 96 N. W. 560.

86. Whether he is estopped to assert that the proceedings are vold for want of jurisdiction not decided. Metcalf v. Bockoven

\[Neb.\] 96 N. W. 406.

87. Void as statutory obligation. U. S.

Yidelity & Guaranty Co. v. Ettenheimer

\[Neb.\] 97 N. W. 227.

SS. Vhere a temporary injunction was issued restraining the taking of certain land under void condemation proceedings, and v. Smith, 66 S. C. 424, 45 S. E. 16. A judgment in favor of defendant in an attachment with on the bond will He. Scott v. Frank.

121 Iowa, 218, 96 N. W. 764.

122. MoVey v. Peddie \[Neb.\] 96 N. W. 166.

001. MeVey v. Peddie \[Neb.\] 96 N. W. 166.

See, also, Estoppel, 1 Curr. L. 1130; Surety-

may sustain by reason thereof, if the same

89, Ehres v. Norris \[Tex. Civ. App.\] 81 S.

89, W. 791.

91. Mich. Local Acts 1879, p. 217, No. 353.

01. Buhrer v. Baldwin \[Alich.\] 100 N. W. 468.

01. See 1 Curr. L. 344.

01. Barker v. Glendore \[Neb.\] 99 N. W.

01. Under Burns' Rev. St. 1834, $ 253, the

isnance of a temporary injunction, the final

decree in the injunction suit is res adjudiud:

board of commissioners of the county is the 3. Cur. Law. Bonds SS 4. An action on an administrator's bond will lie at any time after breach." The authorities are in conflict as to whether an action at law can be maintained on the bond of an officer or fiduciary before settlement of his accounts." Equity has no jurisdiction of a suit by a single creditor of a decedent on the bond of the administrator of his estate, on a legal demand, where such administrator has made the settlements required by law, unless the bill seeks to surcharge or falsify such accounts." Where an act provides that suit on an officer's bond shall be brought in the name of the state, an action so brought is not demurable, though the bond is made payable to the governor." The fraudulent concealment by a notary of a false acknowledgment certified by him postpones the running of the statute of limitations against an action on his official bond.1 An action on a bond given to secure the performance of a contract, and conditioned to be void if it was performed, is not an action on a contract for the direct payment of money, within a statute authorizing attachment." In order to make a parol promise that a bond third parties not being the principal ones to on a bond given to the city. Devers v. How- ord, 144 Mo. 671, 46 S. W. 625; School Dist. tion of a firm, one partner executes to another a bond with a surety, conditioned for 44 S. Lowa v. Von Phul, 133 Mo. 561, 34 S. W. the payment by the partner executing it of 44 S. Am. St. Rep. 695. The Oregon courts, all the firm debts, the liability of the obliv- which insist that some fund must be placed for its to the obligee only, not to the firm (in the hands of the promised to which the creditors, and an action cannot be maintained) turned thereon by a firm creditor to recover his indebtedness of the obligors. Merrill v. would naturally deny a third party a right of Green, 55 N. Y. 270; Hund v. Johnson Park into Co., 13 Mac. 643, 34 N. Y. 8, 915. And 26 Or. 186, 37 T. 712; Brower Lumber Co. v. in Buffalo Cement Co. v. McNaughton, 90 M. Miller, 28 Or. 565, 43 P. 659, 52 Am. St. Rep. 74, 35 N. Y. 63, 483, where a contractor sw07-From exhaustive note on right of persons 4 bond to a city, the sureties on which 71 Am. St. Rep. 169. all materials which he shall purchase and use about the work, and that, in case he failure to turn over taxes collected by him, fail so to do, the materialmen may bring an action on the bond in their own names to 56, and the sureties could not bring in as party recover for their materials, it was held that 4 defendant and file a petition against a guaranteralmen could not sue, in the absence any company which had given them a bond of proof that they knew of the bond and its indemrifying them against embeexlement on provisions and furnished the material, rely- the part of the sheriff. D. S. Hidelity & ing on the bond; and that the doctrine of Guaranty Co. v. Fossati \[Tex.\] 80 S. W. 74. Lawrence v. Fox, 20 N. Y. 268, could not apply because the city (the promise) was 467ested parties have not been perfected bender no obligation to the materialmen. fore suit or judgment is immaterial. Judge The rule in Pennsylvania is strict, since the 71 C. H. 186 A. 188. general doctrine is confined within narrow 97. A country may maintain a common-law action against the sureties on the bond in Minnesota, it would seem that a third party might sue s given to secure deferred payments for land was not to be paid until an outside interest in such land had been released a defense to an action thereon, it must appear that the purchaser was induced to buy the land and give the bond on the faith of such promise, and would not have done so without it.\*

_Pleading._\*\*--A breach of the bond,\* and resultant damage must be pleaded.\* A general averment of nonpayment of the penalty is sufficient.\* Averments of notice to defendant of facts constituting a breach of the conditions of the bond are not necessary where it appears that they are actually or presumptively known to him.\* A complaint which sets out the bond in full, showing that it is an instrument under seal, is not demurrable for failure to allege that the bond was based on a sufficient consideration.\* In an action on a forthcoming bond in attachment, an order of court directing the sale of the attached property must be alleged and proved.\*

_Evidence._\*\*11--To entitle the obligee to recover more than nominal damages he must show the actual damage suffered by him through a breach of the conditions of the bond.\*\*12 Where it is difficult or impossible to show such actual damage, he must show that he has sustained some actual loss, and that the amount of the bond is not unreasonable.\*\*18 A statement of the account of a public officer from the books of the treasury department, properly certified and showing a balance due the United States, is sufficient prima facie evidence of a breach of his bond in failing to account for public money or property.\*\*14 Evidence that plaintiff sold

890\] Ancient Order of Hlbernlans v. Spar-

paint in action on official bond of clerk of

row \[Mont.\] 74 P. 197.

**3. Stewart v. New York & C. Gas Coal**

sou Y. Blair, 118 G. 211, 46 S. E. 28. Petti-

Co., 207 Pa. 220, 66 A. 435.

4. See 1 Curr. L. 345.

1. A complaint on a contractor's bond, set-

ting out the bond in full, including the contract the performance of which it was given

v. Glendore \[Nel.\] 93 N. V. 648.

to secure, and averring that such contract

was unperformed in certain particulars from

which the damages claimed resulted, and

that settlement had been demanded and refused,

fused, sufficiently alleges a breach of the bond, and states a cause of action. Fidelity

& Deposit Co. v. Robertson, 186 Ala. 379, 34 So. 931.

**6.** An allegaton, in an action on a penal

bond, that plaintiff is "endamaged in the

sum of one thousand dollars," is not such a

specific allegation of fact as to be admitted

on demurrer, but it is sufficient to entitle

him to an inquiry as to his actual damages,

where his cause of action has been admitted

by demurrer. Dissoway v. Edwards, 134 N.

C. 264, 46 S. E. 501. In an action on an attachment bond, allegations In the answer

that the property was released shortly after it was seized are relevant and material on

the question of damages and good on demurrer. Anvil Gold Min. Co. v. Hoxste \[C. C. A.\] 125 F. 724.

**7.** The words in a declaration on a penal

bond that defendants "the same to pay hath

hitherto wholly neglected and refused, and

still do neglect and refuse," held a sufficient

allegation of nonpayment of the penalty on

general demurrer. Moundsville, B. & W. R.

Co. v. Wilson, 62 W. Va. 647, 44 S. E. 169.

S. Moundsville, B. & W. R. Co. v. Wilson, 52 W. Va. 647, 44 S. E. 169.

Sufficiency of pleadings In general: Petti-

lton in action on administrative's bond held

to state a cause of action, treating the instrument as a voluntary obligation. Aw

v. Campbell, 118 G. 464, 45 S. E. 301. Com and furnished brick to a city contractor, and that the latter used them in carrying out his contract, brings him within the terms of a bond exacted by the city from such contractor for the purpose of protecting subcontractors and persons furnishing material for city works.\[18\] A statement of an officer of a corporation which sold material to a city contractor, that he did not think the transaction was within the terms of a bond exacted by the city from such contractor for the protection of subcontractors and persons furnishing materials for the work, does not amount to a waiver of the benefit of such bond.\[18\] Schedules of property attached to a bond and signed by sureties and pleaded as exhibits to plaintiff's petition are admissible as tending to show that the sureties signed the bond.\[17\] Reports of an officer which are required by law are admissible in evidence against the sureties on his official bond and are prima facie true.\[18\] The pleadings and judgment in a former action against the obligor of a bond for acts amounting to a breach of its conditions are admissible in an action on the bond against his sureties.\[19\] Under a complaint against sureties alleging that the obligee had recovered judgment against the principal for moneys advanced to him during the life of the bond, and that it had not been paid, recovery can be had only on proof of such judgment and not on proof of independent liability under the bond.\[20\] The defense of want of consideration may be raised by sureties though not pleaded, where the complaint does not allege that the bond was under seal.\[21\] The burden is on the defendant to rebut the presumption of consideration raised by the fact that the instrument is under seal.\[22\]

**15, 16.** City of Phila. v. Neill, 206 Pa. 333, 65 A. 1032.

**17.** U. S. Fidelity & Guaranty Co. v. Fossat \[Tex. Civ. App.\] 81 S. W. 1038.

**18.** City of Philpsburg v. Degenhart \[Mont.\] 76 F. 694.

**19.** Inadmissible in action on bond of U. S. marshal for failure to pay over money, where it does not appear in the judgment that the former action had anything to do with such failure or the subject-matter of the bond, and there is nothing in the pleadings tending to show that the items on which the judgment was based were charged against him during the life of the bond. U. S. v. Meade \[Aritz.\] 76 P. 467.

**20.** U. S. v. Meade \[Aritz.\] 76 P. 467.

**21.** Geln v. Little, 89 N. T. S. 488.

**22.** Appel bond. Evidence insufficient.

Gen v. Little, 89 N. T. S. 488.

**Supplementary of evidence: City of Madison v. American Santary Engineering Co., 118**

Vlu. 480, 95 N. W. 1097. Evidence in an action on an official bond held sufficient to authorize the court to direct a verdict for plantintif. Wilcox v. Perkins County \[Neb.\] 97 N. W. 236. Bond to secure payment of allmony. Crow v. Hutcheson, 119 Ga. 142.

**45 B. E. 917.** Where, in an action on a re-delivery bond in attachment after judgment for plaintiff, it appeared that all defendants' property had been sold by execution under the judgment and bought by plaintiff, and that defendant was insolvent and had no property within the jurisdiction of the court, and that he had restated plaintiff's collection of the judgment, such proceedings amounted to a demand for the payment of the judgment on which the action on the bond would be based, and defendant's inaccuracy rendered a further demand unnecessarily. Ebner v. Heid \[C. C. A.\] 125 F. 680.

**Admissibility of evidence in general:** In _Eulings and instructions._\[28\]

_Judgment and damages._\[24\]--For a breach of an administrator's bond there can be only one judgment, and that must be for the whole penalty and stand as security for all parties interested, whether they are parties to the suit or not.\[25\] Only the actual loss sustained by the breach of the bond may be recovered.\[29\] It is no objection to the recovery, at least as against the principal debtor, that the verdict which is less than the penal sum with interest exceeds the sum named on the face of the bond.\[37\] There can be no recovery on a penal bond with collateral condition in excess of the penalty of the bond.\[28\] Statutes in some states provide that interest on the amount recovered cannot be allowed, where the bond is conditioned for the performance of an act, and not for the payment of money.\[29\]

**BOUNDARIES.**

**SS 1. Rules for Locating or Identifying** **SS 4. Establishment by Acquiescence or** **(518).**

**SS 2. Riparian or Littoral Boundaries (521).**

**SS 5. Establishment by Arbitration, Action,** **SS 3. Establishment by Agreement of Adigor Statttery Mode. Right of Action (523).**

**SS 1.** _Rules for locating or identifying._\[30\]--A line described in clear and unambiguous terms is the controlling call in the title.\[31\] When reliable indications fail, the rule is to reach the objective point by the line of shortest distance.\[32\] The location of a block of surveys may be established by a single undoubted monument found on the ground.\[28\] The marks of a block of land consist of the marks of every tract of the block, and if originally intended as corners, become marks for establishing the entire block.\[44\] If marks for interior corners be found they establish the lines for interior tracts.\[58\] Processioners must respect possession existing at the time lines are marked.\[36\] A call "to" a strip of land does not carry the line over or into the strip.\[37\]

**SS 1. A strip immediately west of and adjoining another definite tract. Kellog v. McFatter, 111 La. 1037, SS 8o, 112.**

**SS 2. In establishing a line never indicated otherwise than on paper. Leonard v. Smith, 111 La. 1008, SS 8o, 101.**

**SS 3. Knupp v. Barnard, 206 Pa. 280, 55 A.**

**SS 4. A block consists of a quantity of land entered by one for several. Knupp v. Barnard, 206 Pa. 280, 55 A.**

**SS 3. Though it may change exterior line. Knup v. Barnard, 206 Pa. 280, 55 A.**

**SS 3. City, Code 1895, SS 3248. But not mere naked possession. Riddle v. Sheppard, 119 Ga. 930, 47 S. E. 201.**

**SS 4.** **SS 4.** **SS 4.**

**SS 5. Whether it be shore line or upland. Dunton v. Parker, 97 Me. 461, 54 A. 1116.**

**Where a survey and warrant offered in evidence show a beginning at the S. W. point on a lake and a final call for a stake on the edge of the lake at the N. W. corner, as there is no evidence of any marks or monuments on the ground, showing a west line other than the bank of the lake, the line is to be run on the bank. Wilcox v. Snyder, 22 Pa. Super. Ct. 451. Where a call is thence to a point on the shore "20 feet above low water mark, thence along the said shore about 20 feet above low water mark to a point" the grantee at most is only entitled to a line parallel with low water mark and twenty feet distant therefrom. Lynch v. Troxell, 207 Pa. 162, 56 A. 413.** The true location is a question of fact,"88 resting in the intention of the parties,"89 to be established by a preponderance of evidence.40

Footnote 88: The author is grateful to the anonymous referee for the support of the manuscript.

Surveyors.41--The duty of a surveyor is to go upon the land with a copy of the field notes, search for and survey its lines and corners and report the result of his work.42 A survey establishes a line but does not determine title.43

Monuments control courses, distances,44 and quantity,45 but they must have been officially established,46 and be so described that they can be found with absolute certainty,47 so a location by monument will control the distance,48 and where a natural boundary is called for, it should be reached by extending the line according to the course.49 Where monuments have been lost or removed their

Footnote 88: The author is grateful to the anonymous referee for the support of the manuscript.

28. That it had become fixed by acquivalence to which a conveyance is made. ascence cannot be declared as a matter of law. Broll v. Wisthert \[Tex. Civ. App.\] 79 & 79 & 80 & 81 & 82 & 83 & 84 & 85 & 86 & 87 & 88 & 89 & 88 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 90 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 90 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 90 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 & 89 location may be established by parol,\[50\] but parol evidence cannot establish another monument in the place of the call for the original monument there contained.\[51\] If they cannot be established, courses and distances control the description,\[52\] and where there are no original monuments or other evidence, the field notes of the original survey must be resorted to.\[53\] The line as actually run on the ground in making the original survey controls the distance given in the surveyor's notes,\[54\] unless the contrary appears to be the intention of the parties.\[55\] Where a line has been recognized for a long period and old marks are found thereon, it has preference to another line on which no marks are found.\[56\]

_Conflicts between plans and maps and monuments.\[57\]--In some states it is provided by statute that maps referred to control when inconsistent with other particulars,\[58\] and a plat referred to in a deed makes it a part thereof,\[59\] but a reference to a map merely to designate a block in which a lot is located,\[60\] or a boundary indicated by marginal words on a plat with reference to which lots are sold cannot control the express terms of the deed.\[61\]_

\_Government surveys.\[62\]--Established government corners control courses and distances,\[63\] and the beginning corner of a survey is of no higher importance than any other,\[64\] but where a corner is not found or its location satisfactorily proven, the field notes of the government survey control, and are prima facie evidence of the true line.\[65\] Corners in surrounding surveys do not control conflicting calls.\[66\] Lost meander corners may be restored by running the line from the nearest corner the direction and distance called for by the notes of the original survey.\[67\] Contiguous lands set apart as distinct bodies on the maps of the United States may serve as boundaries, though their limits have never been marked and they belong to the vendor.\[66\] A mistake of a surveyor in recording a survey could not change a boundary.\[68\]

50. By preponderance of evidence. Res-

vrection Gold Min. Co. v. Fortune Gold Min. Co. \[C. C. A.\] 129 F. 668. When the marks

vromuments are gone, proof of their former location may be supplied. Rock v.

Reaving a strip in front of the lot. Donahue

Greenewald, 22 Pa. Super. Ct. 641.

Si. Round stake with figures written

vrtem with lead pencil does not fill description of a post four inches square with

figures cut into it. Resurrection Gold Min. Co. v. Fortune Gold Min. Co. \[C. C. A.\] 129 F. 668.

Sr. Resurrection Gold Min. Co. v. Fortune Gold Min. Co. v. Fortune Gold Min. Co. v. Fortune Gold Min. Co. \[C. C. A.\] 129 F. 668.

Sr. Where re-establishment of township

line in courses and distances agreed with

field notes of original survey, it would control over another claimed line which mentioned certain monuments not mentioned in the field notes. U. S. v. McKee, 18 F. 1002.

54. Killfree v. Carmichael, 42 Or. 618, 72 P. 637.

01. But lines marked on a survey do not

control the calls in a deed, in case of a variance, in the absence of a mistake. Elliott v. Jefferson, 133 N. C. 207, 46 S. E. 668.

56. Tarvin V. Walkers Creek Coal & Coke

Co., 25 Ky. L. R. 244, 80 S. W. 504.

57. See 1 Curr. L. 247.

01. Under Code Civ. Proc. 1 2077, where a

patent referred to a certain state survey. Miller v. Grunsky, 141 Cal. 441, 75 P. 48.

Under Code Civ. Proc. 2 2077, it was not

prejududical error to admit state surveys,

consistent with a United States plat under which one claimed. Surveys made prior to

his application to purchase. Id.

50. By preponderance of evidence. Res-

v6. Establishes the boundaries of the

vrection Gold Min. Co. v. Fortune Gold Min. Co. \[C. C. A.\] 129 F. 668. When the marks

60. Width of street had been changed

mer location may be supplied. Rock v.

leaving a strip in front of the lot. Donahue

v. Keystone Gas Co., 90 App. Div. 386, 85 N.

v. K. 478.

51. Fisk v. Ley \[Conn.\] 56 A. 559.

01. See 1 Curr. L. 347.

01. Creech v. Johnson, 25 Ky. L. R. 656.

76 S. W. 185. Where beginning corner was

admitted the survey should be located by

beginning there and following calls, and

courses called for in the patent should yield

to marked boundaries, made at time of sur-

v. Whitehouse Cannel Coal Co. v. Wells,

25 Ky. L. R. 60, 74 S. W. 178.

54. Courses may be reversed. Creech v.

Johnson, 26 Ky. L. R. 656, 76 S. W. 185.

65. Knoll v. Randolph \[Neb.\] 94 N. W.

01. United States survey field notes when

applied to disputed line by a surveyor held

sufficient to take case to the jury, though

former owner testified to another location of

the line. Baty v. Elrod \[Neb.\] 3 Cur. Law. BOUNDARIES SS 2.

Conflicts between surveys or descriptions of different date.70--A junior survey is subservient to a senior.71 It being necessary to disregard one of two sets of calls in the field notes of office surveys, calls made under a mistake as to the relative position of the surveys may be disregarded and effect may be given to the intention of the person who made the field notes.72

Highways, streets, or ways as boundaries.78--A boundary on a way includes the soil to the center thereof,74 with an easement over the other half,78 unless an intention to the contrary appears.79 In this respect there is no distinction between country highways and city streets.77

SS 2. \_Riparian or littoral boundaries.78--Where the boundary line between two states is the center line of the main channel, the line is a changing one and follows the usual course of navigation.79 The owner of upland adjoining tide water prima facie owns to low water mark,90 unless this presumption is rebutted by proof,91 and a riparian propriator on a navigable stream owns to the center thereof subject to public rights,92 but whether a patentee of the United States to land bounding on a non-navigable lake belonging to the United States takes title to the adjoining submerged land is determined by the law of the state where the land lies.93 A dead conveying a bank of a stream is presumed to carry title to the thread thereof,94 and it will include land subsequently added by artificial causes,95 but where a river by avulsion changes its channel the boundary is not changed.98

70. See 1 Curr. L. 347.

01. Lands conveyed simultaneously by a a stream," a grantee will not take to the common grantor overlapped in description. thread (Bradford v. Cressey, 45 Me. 9; Rock-Adams v. WIlson, 137 Ala. 632, 34 So. 831.

01. Seliman v. Sellman \[Tex. Civ. App.\] ) mark (Yates v. Van De Boer, 56 N. Y. 73 S. Vr. 48.

01. See 1 Curr. L. 348.

01. Description "to a stake near an old" (EXx parte Jennings, 6 Cow. \[N. Y. 518\]).

road, thence by said road." McKenzie v. (EXx parte) (N. Y. 518).

Gleason. 184 Mass. 452, 69 N. E. 1076. Evl-

hence held Insufficient to show a contrary

lines running "along the shore" extend to intention. Pittsburg, V. & C. R. Co. v. 1 the thread, Starr V, Child, 20 Wend. \[N. Y.\]

Fischer Foundry & Mach. Co., 208 Pa. 73, 149, and Sleeper v. Loconia, 60 N. H. 201, hold-57 A. 191. Under Comp. Laws, 2352, unless

Ing that it does; and Child V. Starr, 4 Hill

the fee is expressly reserved. Swestman v. \[N. Y.\] 365; Stevens v. King, 16 M. 197; Bathrick \[S. D.\] 95 N. W. 422. Description

Storer v Freeman, 6 Mass. 435, and Handly's

"along said street" does not show an intent. Lessee v. Anthony, 6 Wheat. \[U. S.\] 384, hold-to to reserve. Id. Since there is a strong presumption that a grantor in conveying land

\[Nis.\] 27 Am. St. Rep. 51.

with reference to a way intended to include

\[Nis.\] 281. Description "to the shore" (hence by the way. McKenzie v. Gleason, 184 Mass. 452, 69 N. E. 1075. A state grant of land

\[Nis.\] 143 Mass. 452, 69 N. E. 1075. A state grant of land

\[Nis.\] 144 Mass. 452, 69 N. E. 1075. A state grant of land

\[Nis.\] 145 Mass. 452, 69 N.

Meander lines."--The stream and not the meander line is the boundary of a riparian owner," where the government issues a patent for fractional subdivisions abutting on a meander line.""

SS 3. \_Establishment by agreement of adjoiners."--Adjoining owners may by parol agreement establish a boundary which, when followed by possession, will be binding upon them," both in law and equity," and upon their successors," even though they be innocent purchasers," and the period of acquiescence falls short of the time required for gaining title by adverse possession." But the terms of the agreement must be settled between them," and be entered into before limitations have run in favor of one of the parties." It is the policy of the law to give stability to such an agreement," and rights thereunder are not affected by a subsequent agreement to modify it." Such adjustment may be shown as well by circumstances and recognition as by direct evidence of a formal agreement.1 Such an agreement does not preclude the admission of evidence to establish the real boundaries.2

SS 4. _Establishment by acquiescence or estoppel."--A boundary may be established by acquiescence," or by a holding under a mistake as to the true line," if it is between contiguous lands of the parties," especially where it is recognized for the period necessary to acquire title by adverse possession."_ As so established it will control over a plat."

Rodriguez v. Hernandez \[Tex. Civ. App.J 79\]

S. W. 343.

S7. See I Curr. L. 344.

S8. Evidence held to show that a survey- or's line was a meander line and not an independent boundary. Leonard w. Wood \[Ind. App.J 70 N. E. 827. Lands between the meander line of navigable lakes and the line of ordinary high water belong to the upland owner. Johnson v. Brown, 33 Wash. 588, 74 P. 677.

S9. Legal subdivisions under sec. 2395.

Rov. St. U. S. (U. S. Comp. St. 1901, p. 1471).

Johnson v. Hurst \[Idaho\] 77 P. 784.

90. See I Curr. L. 349.

01. Not an agreement passing title.

Steinhilber v. Holmes (Kan.) 75 P. 1019.

Note: Where boundary is fixed by mutual agreement it is binding though not acquil-

Sloan v. King \[Tex. Civ. App.J 71 S. W. 48.

agreement it is binding though not acquil-

Sneed in for the statutory period (Jones v.

1019. Such an agreement is not within the Pashby, 67 Mich. 459, 35 N. W. 162; Elden v.

Statute of Fraudis; it may be parol. Farr v.

Siden, 76 W. 176 N. W. 321; Lagow v. Wojolfolk, 118 Ga. 271, 45 S. E. 230.

Glover, 77 Tex. 44, 14 S. W. 141; Glover v.

98. Parties never came to any definite Wright, 82 Ga. 115, 8 S. E. 452), and acts and aragment. Geoghegan v. Turner \[Ky.\] 82 S.

admissions are evidence of its location (Da-

vidson v. Arledge, 97 N. C. 172, 8 S. E. 378, and note to Johnson v. Archibald \[Tex.\] 22 Am. St. Rep. 277. Line of an old fence agreed

upon by the parties. Rook v. Greenewald,

12 Pa. Super. Ct. 641. Agreement in writing

90. One of the parties refused to execute to abide by a line to be established by a surveyor. Surveyor placed no monuments and abandoned the survey before its complication. McCormick v. Applegate, 25 Ky. L. R. 914, 76 S. W. 511. Where by deed poll

one released to another a strip of land un-

der a brick wall, the boundary was estab-

lished by such deed. Fleming v. Cohen

\[Mass.\] 71 N. E. 563. Original boundary in-

definite and unexcerinated. Sherman v. King, 71 Ark. 248, 72 S. W. 571. The disputed question is a sufficient consideration

for the agreement. Gardner v. White, 24 Ky. L. R. 2444, 74 S. W. 206. Pol. Code, c.

13, $ $250-$259, amended by Sess. Laws 101, p. 139, providing what are legal fences, do not prevent an adjoining owner from build-

14, $ $250-$259, amended by Sess. Laws 101, p. 139, providing what are legal fences, do not prevent an adjoining owner from build-

15, $ $300-$259, amended by Sess. Laws 101, p. 139, providing what are legal fences, do not prevent an adjoining owner from build-

16, $ $300-$259, amended by Sess. Laws 101, p. 139, providing what are legal fences, do not prevent an adjoining owner from build-

17, $ $30 3 Cur. Law. BOUNDARIES SS 5. 523

_Estoppel.'--A boundary may result from an estoppel.\[10\] Such estoppel may be established by parol and it is not necessary to show an intent to mislead.\[11\]_

SS 5. _Establishment by arbitration, action, or statutory mode. Right of action.\[12\]--A court of equity has no jurisdiction to settle a disputed boundary,\[15\] unless objection to the jurisdiction be waived.\[14\] In Minnesota only persons owning land adjoining the plaintiff need be made parties.\[16\] A complaint alleging possession only and not a right thereto, and praying that an existing boundary be maintained, states an action in boundary.\[10\]_

In adjudicating title to land of a foreign state, the same rules should be applied as are applied elsewhere in the state.\[17\]\_

_Burden of proof.\[18\]--In a boundary suit the burden is not on either party to establish the location of his land.\[19\] Where the description is vague and uncertain the burden rests upon those claiming under it to show to what it applies.\[20\] The onus lies on a party appealing from a survey made by the county survey to show that the survey is incorrect.\[21\]_

\_Admissibility of evidence.\[22\]--A latent ambiguity in the calls of a deed may be dispelled by parol evidence\[28\] in an action to establish the boundary.\[14\] Evidence altitude is admissible where there is doubt as to the true location of a sur vey," but not to change lines and corners, where the field notes are not ambiguous.26 Evidence that a certain point is generally reputed to be a corner is admissible,27 if it appear to have been of such interest in the neighborhood as to have provoked discussion.28

Footnote 27: The _HST_ is a \_H 3 Cur. Law. BREACH OF MARRIAGE PROMISE. 625

The action of a state auditor refusing to issue bounty warrants is quasi judicial and may be reviewed by certiorari.\[40\] The statute governing grant of new trials generally applies to suits against the state for coyote scalp bounties.\[41\]

## 6 Breach of marriage promise.

The promise.\[42\]--A proposal by one party and an acceptance by the other, both being free to marry, shows a promise.\[43\] A promise can be shown from the character of correspondence,\[44\] or oral declarations,\[45\] but the language must be clear.\[46\] An oral contract to marry is within the statute of frauds, unless excepted by the terms of the statute.\[47\] The promise is binding according to all its terms.\[48\] A promise of marriage in consideration of illicit sexual intercourse is void.\[49\] A law prohibiting marriage within one year after divorce does not prohibit a contract to marry.\[50\]

Breach and defenses.\[51\]--After a distinct refusal, the woman is not obliged to again offer herself in order to maintain an action.\[52\] Where one of the parties without excuse fails to perform his agreement at the time fixed for the ceremony, the other party may rescind and maintain an action for damages.\[53\] Where one of the parties to a marriage contract discovers that the other is of immoral character, he may sever the relation with impunity.\[54\] but if he enters into the contract with knowledge of all the facts, he may not do so,\[55\] and illicit relations induced by a promise to marry will not justify a breach of promise\[56\] nor the fact that the woman was guilty of apparently unseemly conduct.\[57\] That a woman

evidence of an ancient boundary fence. marriage was not to take place for three years. Haslam v. Barge \[Neb.\] 96 N. W. 246.

37. A city. Dows Real Estate & Trust Co. v. Emerson \[Iowa\] 99 N. W. 724.

01. It Infinges $ 5, art, 9, prohibiting the state from contracting debts except as therein allowed, and $ 10, art, 9, prohibiting the state from lending aid to any private individual. Minnesota Sugar Co. v. Iverson \[Imin.\] 97 N. W. 454.

01. N. W. 674.

Note: Similar acts have been declared unconsultitional in Michigan (Mich. Sugar Co. v. Dix, 124 Mich. 674, 83 N. W. 672), and the District of Columbia (U. S. v. Carlisie, 5 App. D. C. 138).

39, 40. Minnesota Sugar Co. v. Iverson \[Minn.\] 97 N. W. 454.

41. The act makes the general rules of civil procedure applicable. San Francisco Law & Collection Co. v. State, 141 Cal. 354, 74 F. 1047.

01. See 1 Curr. L. 353.

01. Broyhill v. Norton, 175 Mo. 190, 74 S. W. 1024.

01. Evidence, letters and conduct, presentation of ring, etc., held sufficient to show a promise of marriage. Poehlmann v. Kertz, 105 III. App. 249; Id., 204 III. 418, 68 N. E. 467.

01. In February, 1901, the parties had agreed to marry in March, 1902. In June, 1901, the man said, "I intend to marry you as I promised. In March we will go to the farm and live right." Held to constitute a new promise, and not a mere rehearsal of the terms of a contract void under the statute of frauds. Parrish v. Parrish, 67 Kan. 323, 72 P. 844.

01. Evidence of correspondence held not sufficient to sustain a promise of marriage. Johnson v. Modahl \[Neb.\] 94 N. W. 532.

01. By the terms of the contract, the 47.

01. Ceremony to be performed according to rules and customs of a particular church. Vraneck v. Kratky \[Neb.\] 96 N. W. 651.

01. No recovery can be had for breach. Edmonds v. Hughes, 24 Ky. L. R. 2467, 74 S. W. 283.

01. Buelna v, Ryan, 139 Cal. 630, 73 P.

01. See 1 Curr. L. 253, n. 2, 8.

01. See 1 Curr. 253, n. 2, 8.

NOTE. Previous engagement or marriage: That defendant was at the time of making the promise affanced to another (Roper v. Clay, 18 Mo. 383; Albertz v. Albertz, 78 WIs. 72, 47 N. W. 95). or was then married to another is no defense, if plaintiff was ignorant of such fact at the time of accepting the promise (Kelley v. Riley, 106 Mass. 389; Polock v. Sullivan, 58 Vt. 507).

52. Broyhill v. Norton, 175 Mo. 190, 74 S. W. 1024.

01. It was agreed that marriage was to be performed at a certain date and hour. The groom failed to appear. Waneck v. Kratky \[Neb.\] 96 N. W. 651.

54 subsequent to the contract became incapable of procreation is a defense." _A petition_" which states that plaintiff was at the place designated during the month the ceremony was to be performed and was ready to carry out her part of the agreement is sufficient."00 A complaint need not allege that plaintiff was willing to marry defendant up to the time of the filing thereof."01

_Limitations_ run against the action from the time of breach and not from the time of making the contract."02

_Damages; aggravation and mitigation._"03--Evidence of seduction is admissible, though not charged in the declaration."04 In computing damages, the jury are entitled to consider the entire course of conduct of the parties,"05 a subsequent offer to marry, made in good faith, together with the circumstances under which the breach occurred,"06 where, in the trial of the case, the man seeks to blacken the character of the woman,"07 and it need not be shown that he was actuated by malice in making the charge."08 The general reputation for wealth as distinguished from the actual circumstances is not a proper matter to be taken into consideration in estimating damages."09 The measure of damages to be recovered is a sum sufficient to compensate for the breach of contract and for any modification of feelings suffered."0

assignation is no defense if she visited them for a moral purpose. Broyhill v. Norton, 175 Mo. 190, 74 S. W. 1024.

58. Edmonds v. Hughes, 24 Ky. L. R. 2467.

01. After the complaint was served, defendant renewed his offer ,to marry and defendant renewed his offer ,to marry and defendant."11 case of Van Houten v. Morse, 162 Mass. 414, 38 N. E. 705, 44 Am. St. Rep. 373, it was held that although a woman is under no obligation on accepting an offer of marriage to voluntarily disclose the circumstances of her past life, if she assumes to do so, any concealment operates as a fraud, justifying the man in refusing to perform. Citing Short V. Currier, 153 Mass. 182, 28 N. E. 444: Burns v. Dockray, 156 Mass.

185, 30 N. E. 651: Atwood v. Chapman, 68 Me.

38: Devco v. Brandt, 68 N. Y. 462. Applying this rule, it was held that failure to fully disclose the circumstances of a previous divorce and the fact that her family had some negro blood justified a breach, though in the absence of such concealment, such facts would not be a justification.

59. See 1 Curr. L. 354, n. 8, 9.

01. The ceremony was to take place at Middlesborough, in July, date not mentioned. Plaintiff remained there the entire month. Grubbs v. Pence, 24 Ky., L. R. 183, 73 S. W. 785. The fact that an order in favor of plaintiff had been paid at a different place was thandinsible to show that she was not at Middlesborough. Id.

01. Alleging that defendant refused to marry up to that time is sufficient. Buelna v. Ryan, 139 Cal. 630, 73 P. 466.

01. Buelna v. Ryan, 139 Cal. 630, 73 P. 466.

01. See 1 Curr. L. 354, n. 10-14.

01. Poelmann v. Kerta, 105 III. App. 249.

11 is not error to admit evidence of a previous contract, vold as being within the statute of frauds, to corroborate testimony of a new promise. Parrish v. Parrish, 67 Kan. 383, 73 P. 844. But it is discretionary with the court as to how much of this previous intercourse is to be admitted. Id. See 1 Curr. L. 354, n. 9.

65. That the man had her announce the ,nagreement, and after assurance of marriage 3 Cur. Law. BRIBERY. 587

_Liability of third person inducing breach.--A parent is not liable to his son's_

fiance for inducing him to break his contract to marry her.\[71\] Her remedy against

the parent is an action for slander.\[12\]

**BRIBERY.**

\_Nature and elements of offense.\[13\]--Bribery is the giving, offering, or receiving

of anything of value, or any valuable service, intended to influence a public officer

or agent, de facto,\[14\] or de jure, in the discharge of his legal duty;\[78\] the true test

being whether the matter is before the officer in his official capacity, or is one

that may be brought before him in such capacity.\[78\] An analogous offense is

created by the Federal statute prohibiting Federal officers from receiving private

compensation for services in respect to any matter in which the United States is

interested.\[78\] Bribery was an indictable offense at common law,\[78\] and there was

no difference in liability between the giver and the receiver.\[78\] Under the Mis-

souri statute, an offer to give a bribe is as illegal as the giving of one,\[80\] and one

may be guilty as an accessory who knowingly assists in the escape of one guilty

of bribery.\[81\] The Indiana constitutional provision rendering ineligible for office

one who gives or offers an election bribe does not refer to a primary election.\[82\]

The Federal statute on bribery for a valuable consideration covers only some valuable thing like money, property, or notes.\[83\]

\_Indictment.\[84\]--The indictment must be direct and definite,\[86\] and must, on

aggravation. Dupont v. McAdow, & Mont. \[\] may be guilty of bribery as such \[Rev. St.

216, 9 F. 925. 1892, $ 6900\]. Barker v. State \[Oho\] 68 N. E.

71. Leonard v. Whetstone \[Ind. App.\] 68 675. A city attorney is punishable under a

N. E. 1977. The parents made false and slander-

oflexes \[Comp. Laws, $ 11,312\]. People v.

ous charges against her. Leonard v. Whetstone \[Ind. App.\] 68 N. E. 197. 197. 197. 198. 198.

its face, by plain allegations, not by inference merely, charge some act constituting bribery," but if it substantially follows the language of the statute it is sufficient." It will not be uncertain because it states that part of the money was paid by persons unknown to the grand jury," nor bad for duplicity because it alleges that several persons contributed to the fund used as a bribe," nor defective in charging bribery of a city attorney in a matter which might properly come before him." An indictment for corruptly agreeing with others to vote in a specified manner need not charge the defendants separately," and an allegation that defendant had not been a resident of or usually resident within the state since the commission of an offense, properly raises an avoidance of the bar of limitations, and is not defective as pleading in the alternative."

\_Evidence."\_All testimony tending to show the receiving of the bribe is admissible as bearing on the corpus delici," likewise evidence that defendant attempted to suppress testimony or induce perjury," and evidence of other crimes by the accused is admissible where there is a logical connection with the offense charged." The voluntary admissions of defendant may be received," and conversations in furtherance of a bribery conspiracy are admissible though held in defendant's absence," or though in defendant's presence and a conspiracy be not proven." On a charge of corruptly forming a voting agreement with others, the state need not show the guilt of each of the alleged conspirators."

\_Trial and instructions."\_The accused is not entitled to a separate trial on the issue of limitations."

The court may charge the jury to consider defendant's interest, in weighing his testimony," and it is sufficient that the court charged a consideration of all the evidence and that certain testimony as to defendant's good character was

So. It should charge with certainty and |udice defendant's rights. State v. Lehman precision all the facts necessary to constit- |Mo.> 81 S. W. 1118, bute the offense and must conform to the |92. Rev. St. 1899, SS 2421. State v. Snyder language or state all the facts which bring |Mo.> 82 S. W. 12. it within the terms of the statute. State v. Schontetier |Mo.> 79 S. W. 1123. The indictment should possess sufficient certainty to |147, apprise the defendant of the offense with |S5. People v. Salisbury |Mich.> 96 N. W. which he is charged. Shary v. U. S. 13 Okl. 986, 522, 76 P. 177. The indictment for bribery |96. State v. Schontetier |Mo.> 79 S. W. on election must express the exact legal |113. Evidence of other crimes is admits-status of the position the person seeks. |W. field fatal that the indictment charged bribery on an election "for the office of conspiracy," there being no such office. Allison v. State |Tex. Cr. App.> 78 S. W. 1065. Indictment of United States senator for re-equiving compensation for services for client anions. State v. Woodward |Mo.> 81 S. in inquiry before postal department held |W. 857. Sufficient U. S. v. Burton, 181 F. 552. |W. 187. An indictment charging bribery in connection with ideas need not describe the land, give the number of the lease, name of the lease, quantity of each nor condition of contract. Shary v. U. S., 13 Okl. 52, 76 P. 177. |W. 88, 89. State v. Ames |Minn.> 98 N. W. 190. |W. 140. |W. 141. |W. 142. |W. 143. |W. 144. |W. 145. |W. 146. |W. 147. |W. 148. |W. 149. |W. 150. |W. 151. |W. 152. |W. 153. |W. 154. |W. 155. |W. 156. |W. 157. |W. 158. |W. 159. |W. 160. |W. 161. |W. 162. |W. 163. |W. 164. |W. 165. |W. 166. |W. 167. |W. 168. |W. 169. |W. 170. |W. 171. |W. 172. |W. 173. |W. 174. |W. 175. |W. 176. |W. 177. |W. 178. |W. 179. |W. 180. |W. 181. |W. 182. |W. 183. |W. 184. |W. 185. |W. 186. |W. 187. |W. 188. |W. 188. |W. 189. |W. 189. |W. 190. |W. 180. |W. 181. |W. 181. |W. 182. |W. 183. |W. 184. |W. 185.

3 Cur. Law. BRIDGES SS 2.

competent.\* The issues should be clearly presented,\* but an instruction that one may commit bribery in the interests of a company only if employed by its direct-ors was properly refused.\*

BRIDGES.

1. Regulation and Control (529). 1 2. Establishment and Location by Pub-Life Agencies (529). 1 3. Contracts and Construction (530). 1 4. Public Liability for Cost and Main-tenance (530).

SS 1. Regulation and control.--Until congress acts, the power of the state over bridges over its navigable streams is plenary,\* and congress did not intend by the river and harbor act of 1899 to deprive the states of their right to say what structures should be built in navigable streams wholly within their limits,\* nor deprive the owner of a bridge, previously erected, of the right to make repairs.10 A railroad by the mere fact of its incorporation is not empowered to bridge a navigable stream without consent of the legislature.11 A bridge cannot be construed to be a ferry, but it may well be a substitute for a ferry when it was manifestly so intended.12 A statute providing for the setting aside of the tolls of a bridge connecting two towns for the purpose of building a free bridge is invalid where it mentions only one of the towns, they being joint owners of the tolls.13

SS 2. Establishment and location by public agencies.14--A petition of resident tax payers is the usual means of setting in motion the procedure for building bridges by public authority,18 and a limit on the amount that may be expended without the authority of the electors interested, expressed by vote, is frequently set.16 Statutes often require that plans and specifications be adopted in advance of the letting of the contract,17 and the advertisement and contract must be based upon such plans.18 The approval of the general plan of a bridge by the proper boards or bodies does not prevent changes in detail thereafter.19

5. The court need not specifically say that the concurrent or joint assent of the state the jury must consider the evidence as to defendants good character. State v. Ames, 189. Cummings v. Chicago, 188 U. S. 90 Minn. 183, 96 N. W. 330.

1. Instructions that the jury need not consider whether defendant was an inhabit-tant of the state, and that the fact of his being an inhabitment thereof and having a home therein had no bearing as to whether he was usually a resident thereof, are misleading where an issue is made as to the exception to the limitation. Rev. St. 1899, 1 241, provides that the statute of limitations shall not run while the defendant is not an inhabitment of or usually resident within the state. State v. Snyder \[Mo.\] SS 3. W. 12.

1. The evidence was clear that the was a criminal agent of the company under orders of its president. State v. Faulkner, 175 Mo. 546, 75 B. W. 116.

1. Power of congress over bridges over navigable waters. Cummings v. Chicago, 188 U. S. 410, 23 S. C. 472. In the absence of congressional legislation, a state may authorize the building of a bridge over a navigable interstate stream. Kansas City, etc., R. Co. v. Wijgul \[Miss.\]. 33 So. 965. See Navigable Waters, 2 Curr. L. 994.

1. Under existing legislation, the right to erect a bridge or other structure in a navigable water of the United States, wholly within the limits of a state, depends upon

3 Curr. Law--34.

1. Regulation and control.--Until congress acts, the power of the state over bridges over its navigable streams is plenary,\* and congress did not intend by the river and harbor act of 1899 to deprive the states of their right to say what structures should be built in navigable streams wholly within their limits,\* nor deprive the owner of a bridge, previously erected, of the right to make repairs.10 A railroad by the mere fact of its incorporation is not empowered to bridge a navigable stream without consent of the legislature.11 A bridge cannot be construed to be a ferry, but it may well be a substitute for a ferry when it was manifestly so intended.12 A statute providing for the setting aside of the tolls of a bridge connecting two towns for the purpose of building a free bridge is invalid where it mentions only one of the towns, they being joint owners of the tolls.13

SS 2. Establishment and location by public agencies.14--A petition of resident tax payers is the usual means of setting in motion the procedure for building bridges by public authority,18 and a limit on the amount that may be expended without the authority of the electors interested, expressed by vote, is frequently set.16 Statutes often require that plans and specifications be adopted in advance of the letting of the contract,17 and the advertisement and contract must be based upon such plans.18 The approval of the general plan of a bridge by the proper boards or bodies does not prevent changes in detail thereafter.19

5. The court need not specifically say that the concurrent or joint assent of the state the jury must consider the evidence as to defendants good character. State v. Ames, 189. Cummings v. Chicago, 188 U. S. 90 Minn. 183, 96 N. W. 330.

1. Instructions that the jury need not consider whether defendant was an inhabit-tant of the state, and that the fact of his being an inhabitment thereof and having a home therein had no bearing as to whether he was usually a resident thereof, are misleading where an issue is made as to the exception to the limitation. Rev. St. 1899, 1 241, provides that the statute of limitations shall not run while the defendant is not an inhabitment of or usually resident within the state. State v. Snyder \[Mo.\] SS 3. W. 12.

1. The evidence was clear that he was a criminal agent of the company under orders of its president. State v. Faulkner, 175 Mo. 5

## 3 Contracts and construction

As in the case of other public contracts, it is usually prescribed by statutes that contracts for bridges shall be let only upon competitive bids; \[21\] where, however, express authority to so build a bridge is given, competitive bidding is not necessary. \[22\] A board of supervisors having contracted for the erection of a bridge, it could contract without advertising for new bids for extra work found necessary during its construction, where it pertained to a necessary part of the bridge. \[23\] In Nebraska, no authority exists for repairing by annual contract, and where a repair job amounts to more than $100, it must be done by advertising for bids, based upon plans and specifications previously adopted. \[24\]

Since the presumption is that public officials observe and obey the law, a .complaint need not allege that the bridges, to recover compensation for which suit is brought, were such as could be lawfully erected by the defendant board, \[25\] but an instruction that if the plaintiffs built the bridge on a public road, they were entitled to recover its reasonable value, though the county had not entered into any contract for its construction, is erroneous. \[26\]

## 4 Public liability for cost and maintenance

The question which of two municipalities or in what proportion they shall bear the expense of maintaining a bridge most frequently arises with relation to bridges over streams forming the boundary between counties, \[28\] towns, \[29\] or cities, \[30\] and bridges on highways forming the boundary line. \[31\] This joint liability is statutory, and proceedings to enforce it must follow the statute, \[32\] but where the liability exists, it is imma
3Cur. Law. BRIDGES SS 6. 531

terial whether the boundary stream lies half in each county or wholly in one county, the boundary line being one bank of the stream." The duty of adjoining municipalities to repair, when clear, may be enforced by mandamus:" but the rule as to original construction is otherwise, and where statutes provide that a bridge between two counties shall be built upon the determination of both counties, such determination once made is the exercise of a discretion which mandamus will not lie to review," and generally speaking, courts will not substitute their judgment for that of the township authorities in relation to how the bridges of the township shall be maintained, nor decide the cost of repairs where there is an honest dispute as to what expenditure will be required."

In Iowa, the duty of keeping in repair a bridge within the corporate limits of a city rests upon the city and not upon the county," but in Kentucky, though a bridge may be wholly within the limits of a city, yet if in fact it is a county bridge, that is, part of a county highway, it becomes the duty of the county to replace it on its destruction." Provisions in a statute for the levy of taxes for repairing bridges must be strictly complied with."

SS 5. _Establishment, construction, and maintenance by private enterprise_, is more fully treated elsewhere." A municipality may grant to a corporation the right to build bridges across its basins to the extent that the municipality is concerned," and the legislature of Missouri has power to confer on foreign corporations the right of eminent domain, to be exercised in the construction of a toll bridge for public use." The incorporation of a railroad does not of itself confer on it the right to cross navigable waters of the state without the consent of the legislature." The approach to a bridge is a part thereof, so that an attempted conveyance of such approach by a company chartered to build and operate the bridge is ultra wires." The dedication of a bridge by a railroad company to a town for the public use, and the complete and formal acceptance thereof by the town, releases the railway company from all responsibility to the public in the premises." The fact that the upper portion of a bridge is used as a railroad bridge does not prevent a toll bridge license being required."

SS 6. _Injuries from defective bridges."_--The right of navigation being paramount, it is incumbent on the owner of a bridge to so construct it that it may be readily opened to permit the passage of vessels, to place it in charge of persons competent to operate it, to equip it with lights and signals giving warning of its position in opening and closing, and to give timely warning to approaching vessels if it cannot be opened, and for a failure of duty in this respect if injury result the owner is liable.\[48\]

Where the owner of a private bridge knowingly leaves open his property under circumstances calculated to lead others to think that they are invited to use it, he assumes an obligation to see that it is kept in reasonable repair,\[49\] but where there is no invitation, express or implied, to use it, he is not liable to one injured because of its defective condition.\[50\]

By the common law of some states municipalities are required to keep bridges in a reasonably safe condition for travel, and are liable for injuries resulting from failure so to do;\[51\] the general rule, however, is that the liability is entirely statutory,\[52\] but whatever its source, the liability is not that of an insurer,\[53\] and there can be no recovery where officials having in charge the care and maintenance of a bridge had no notice of its defective condition, and had used due diligence in its care and maintenance.\[54\] But where the defect is of a nature that proper inspection would have discovered it, and has existed so long that the authorities must be presumed to have known of it, the municipality cannot defend on the ground of lack of notice.\[55\] A township which elects to maintain its highways and bridges by the labor of its inhabitants instead of a system of general taxation, cannot escape liability for personal injuries for its negligence in failing to repair a bridge.\[56\]

Officers are not liable for injuries unless willfully and grossly negligent.\[57\]

_Defective construction.\[58\]_--The builder of a bridge must use reasonable care to avoid the flowage of lands by reason of his abutments and embankments,\[59\] but he is not required to anticipate and use precautions against extraordinary or unprece 3 Cur. Law. BRIDGES SS 6. 533

dented floods," and a landowner, in giving a deed to a railway company for a right of way over his lands adjacent to a proposed bridge, must be held to have had in view all damage coming to his property from a reasonably skillful and proper construction of the bridge." The builder is liable for injuries resulting from his negligence during the process of construction."

_Proximate cause of injury."_--A municipality cannot be held liable, as for defective construction, for an injury that does not occur on the bridge itself and is not chargeable to any defect therein." Delinquency in complying with a statute requiring that a bridge be spanned with plank before a traction engine is driven over it is no defense, unless there is some direct causal relation between the failure and the accident."

_Contributory negligence."_--One who puts a bridge to a use for which it was not intended," or uses it with knowledge of its defective condition," or is otherwise negligent in his use of a bridge, cannot recover;" and a boy, partially blind, who after being warned goes on a bridge, and while the draw is open walks off, is guilty of contributory negligence."

60. Whether a flood falls within one or | The mere fact that a person traveling the other of these classes is a question of | upon the highway after dark mistakes the fact for the jury. Jones v. Sebaoard A. L. | wing wall of a bridge for a footpath, and R. Co. (S. C.) 45 S. E. 188. In an action for | after setting upon it falls off and le injured, the negligent construction of a bridge | affords no ground for concluding that the whereby water | is backed upon plaintiff | by | bridge was Improperly constructed. | Weeks premises it is error for the court to charge | v. Sebaoard M. Grosch Wenehcedders, & N. J. Law. that If the bridge was carefully constructed | 622, 54 A. 826. | plaintiff would still have a remedy for | 63. Valker v. Ontario, 118 Wis. 664, 95 N. | structure the stream. |Kipp v. New York | 70. | 786. | Tackett v. Taylor County | 786 Cent. & H. R. R. Co., 89 App. Div. 392, 85 N. | 730. For further casee where traction engines have broken through bridges, | 82. But this does not authorise the com- | 82. But this does not authorise the com- | 82. But this, | 468. | Smith v. Muncy Creek | 70. | 82. But this does not authorise the com- | 82.

\_Remedies."--\_A statute which requires the filing of a statement of claim as a condition precedent to a right of action should receive a reasonable construction, and requires but a substantial compliance."

Though highway commissioners of certain towns were given control and direction of a bridge between the towns, an action fsr injuries thereto must be brought in the names of the towns, and not in the names of their highway commissioners."

\_Pleading and evidence."--\_It is not necessary to use the term "proximate cause" in the complaint. An averment that the defect complained of caused the injury is sufficient," but a complaint against a bridge commissioner which does not charge that his action, in reporting a bridge as properly constructed and safe for travel, was instigated by willfulness is insufficient."

Where in an action against a railroad company to recover for obstructing the flow of a navigable stream, during a freshet, causing damage to plaintiff's land, it was claimed that the damage resulted from an unprecedented flood, the burden of proof of such fact was on the defendant."

It is competent for the plaintiff to show that while the bridge was in the same condition, accidents of a similar nature had occurred at the same place a short time prior thereto," and that there were other defects in the bridge than the defects that caused the accident, also to prove its general defective condition." The fact that the town board settled with the owner of the engine cannot affect the case of one suing for personal injuries, and testimony to that effect is not admissible." While the weight of the testimony is entirely for the jury, yet mere speculation and conjecture must not be confused with legitimate testimony."

\_Interrogatories.--\_A special interrogatory in an action for injury from a defective bridge, as to whether plaintiff saw the notice of its unsafe condition posted on it, is objectionable as not limiting the jury to the time of the accident."

\_Questions for jury."--\_The question of negligence in taking a tank full of

**S1.** In an action against a town for neg-

Co., 87 N. Y. S. 988.

If agent death alleged to have been caused by

**71.** See 1 Curr. L. 359.

the absence of any ruling on a bridge.

72.\*\* Eggleston v. Chantauqua, 90 App. Div.

whereby plaintiff's intestine, when intoxi-

314, 86 N. Y. S. 279; Bayne v. Board of Coun-

cated, in attempting to cross the bridge in

try Conm'ts, 90 Minn. 1, 95 N. W. 456. The

fact that a statement of claim was called a

"pettition" instead of a "notice" does not

render it insufficient. Perry v. Clarke Coun-

ty, 120 Iowa, 96, 94 N. W. 454. Verification

by an agent is sufficient. Id. See 1 Curr. L.

359, n. 63.

73.\*\* Town of Palatine v. Canajoharie Wataper Supply Co., 90 App. Div. 548, 86 N. Y. S. 412.

74. See 1 Curr. L. 359.

75.\*\* City of Franklin v. Davenport, 31 Ind. App. 648, 68 N. E. 907.

76.\*\* Schooler v. Arrington \[Mo. App.\] 81 S. W. 468.

77. Jones v. Seaboard A. L. R. Co. \[S. C.\]

45 S. E. 188.

78.\*\* City of Kingfisher v. Altizer, 13 Okl.

121. 14 P. 107. See 1 Curr. L. 360, n. 71.

001. This class of testimony is competent

for the purpose of showing that the author-

tides had knowledge of the defective condition, or that the defects had existed for such

a length of time that by the exercise of

reasonable care they could have been replied. City of Kingfisher v. Altizer, 13 Okl.

121, 74 P. 107.

89. Comstock v. Georgetown Tp. \[Mich.\]

100 N. W. 788.

89.\*\* 3 Cur. Law. BROKERS SS 1. 535

water upon a bridge with an engine,\*\* whether it was negligent for the driver of a threshing engine to remain on the engine while crossing a bridge,\*\* and of the sufficiency of barricades as a warning of dangerous conditions, are questions of fact and for the jury.\*\* Whether a pedestrian crossing a bridge on a dark night was negligent in turning to cross the street, where he tripped over a chain,\*\* and whether a flood by which plaintiff's lands were damaged was one which the builder of a bridge should have foreseen and provided against is a question of fact.\*\*

SS 7. \_Injuries to bridges.\*\* If a bridge is unfavorably affected by a dam below only in extraordinary and unusual freshets, which occur but seldom in a long series of years, the dam is not of unlawful height as to the bridge.\*\* On trial of an indictment for maliciously destroying a bridge, malice is for the jury.\*\*

**BROKERS.**

\*\*SS 1. Employment and Relation in General (535). 1.

### 536 Brokers $ 1.

8 Cur. Law.

rights." Authority will be presumed from long acquiescence in the acts of a broker."

Whether the relation exists is a mixed question of law and fact." It cannot be proved by declarations of the agent,1 nor by proof of general reputation.2 Acceptance of offer of employment may be shown by evidence of attempts to effect the transaction.\* A statement to a broker that if he or any one else would procure a purchaser by a certain date, the land might go, constituted an ordinary revocable authority.\* Assent by the principal to an assignment is an agreement to substitute the assignee as agent,6 or an assignment of the contract may be ratified.\* _Penal provisions_ in the contract are strictly construed."

Authority to contract relative to real estate must be in writing;6 but an agency to purchase real estate may be established by parol,9 and a contract with reference to the sale of lands may be constituted of an employment to sell land for another.10 In Nebraska, the contract must be in writing subscribed by both parties, describing the land and setting forth the amount of compensation.11 Correspondence is sufficient,12

whose promise was only to pay the price - N. W. 578. Evidence held for the jury as to of the property sold no inference could be - Father and won had an interest in the land; - Any event on defendants part to pay commilsston. Moses v. Beverly, 137 Ala, 473, 34

Encl. 475, 98 N. W. 305. Evidence

So. 825. Nothing in their dealings from

held for the jury as to whether an attorney which an owner could infer that a broker - was acting for him. Downing v. Buck

\[Mich.\] 98 N. W. 388. Evidence held insum-

autorizing him to sell land. Cody v.

client to show that a broker was employed

Dempsey, 86 App. Div. 355, 13 Ann. Cas. 322,

to make a lease. Brady v. American Mach.

& Foundry Co., 86 App. Div. 267, 83 N, Y. S.

& 683. Where written contract read for the

& sale of mining property in Ures district and

ble. Dyer v. Winston \[Tex. Civ. App.\] 77 S.

the actual sale of such property was In

Arlge district, held, that agent was not ent-

tilled to commissions. Wulf v. Lindsay

Winston \[Tex. Civ. App.\] 77 S. W. 227.

\[Arliz.\] 71 P. 983. Broker had authority to

& sell one of two named tags. Purchaser

& exp.) 79 S. W. 731. Where a broker had

cured by broker took neither, but without

bad faith purchased a third tag from prin-

ing further until he notified the customer

cipal. Heid, that broker was not entitled

to compensation. Samuels v. Luckenbach,

to show an employment. Sandefur v. Hines

205 Pa. 428, 84 A. 1091.

97. A mere volunteer acting without au-

thority, who brings parties together, is not entitled to compensation for his services. Samuels v. Luckenbach, 205 Pa. 428, 54 A.

1091. Where broker offered reward to have borrowers brought to him, the fact that

some third party sends a borrower to him,

but fails to state that he is relying on re-

ward, cannot authorize such person's recovery

ering any commission. Van Vilssingen v. Manning, 105 Ill. App. 255. Where a prin-

cipal denies the employment of a broker,

evidence of the employment of other broker

is admissible. Hunn v. Ashton, 121 Iowa,

265, 88 N. W. 745.

98. After 60 years without repudiation of

a dead made by an agent. TarvIn v. Walkers Creek Coal & Coke Co., 25 Ky. L. R. 2246,

50 8. W. 504.

99. Gough v. Loomis \[Iowa\] 99 N. W. 295.

Where terms of employment and nature of

services rendered were in dispute, error to

direct verdict for commissions. Ryan v. Page \[Iowa\] 92 N. W. 768. It is error to

dismlise case on ground that the relation of

principal and broker did not exist, when the

evidence tends to show that the principal

had reasonable cause to believe that the

broker was instrumental in bringing about

the sale. Henninger v. Burch, 90 Minn. 43, 95

3 Cur. Law. BROKERS $\\lx@sectionsign$ 1. 537

and such a contract may be modified by parol as to such provisions as are not required to be in writing.\[18\] A writing signed by an attorney in fact is sufficient to relieve the broker from the provisions of a statute making it a misdemeanor to offer real estate for sale without written authority,\[14\] but a memorandum was held insufficient,\[15\] and where such a statute applies to particular localities, it is unconstitutional.\[16\]

That the sales are conducted by one partner of a firm of brokers is not a breach,\[17\] nor is the fact that an owner offers to sell to another during the continuance of an option,\[18\] or sells after appointing an exclusive agent.\[19\]

Brokers may be regulated by means of an annual tax and be required to make a sworn statement that all their orders were executed on their respective exchanges.\[20\] Where a statute requires a broker to be licensed and imposes a penalty for a violation, a contract in violation thereof is not void.\[21\]

An executor has power to employ a broker,\[22\] or ratify an agreement by one assuming to act for him;\[28\] but he cannot delegate discretion as to terms of the sale,\[24\] and a president of a corporation who owns nearly all the stock and in whom is confided the general management of the business has no authority to contract to pay commissions for the sale of his own stock.\[28\]

_Double agency.\[20\]--If both parties are aware of the circumstances, there is no impropriety in a double agency;\[27\] but if not, the contract arranged thereby is void,\[28\]_

12. Terms of sale. David Bradley v. be guilty of a felony, includes brokers. Peoplewer \[Neb.\] 99 N. W. 491. 14. 14.

and the broker cannot recover his commissions." That a broker advanced money to the purchaser does not make him his agent." The burden is on the principal to show that there was a double agency, and such fact was not known to him." A contract made thereunder is not ratified by a retention of the money paid, when its source is unknown."

SS 2. \_Mutual rights, duties, and liabilities."--\_The broker may be discharged at will," unless done for the sole purpose of defeating his right to commissions," and in the absence of custom the rights of the broker end with his discharge."

Where stocks are actually bought and sold there is no wagering contract."

It is the duty of a stock broker when so ordered to act promptly." Mere silence cannot be construed as an order to brokers to sell stock held on a margin." Where brokers sell stock on margin the legal title is in the vendee." All demands by a stock broker on his customer for margins must be specific, definite, and certain, and the customer is entitled to a reasonable time within which to comply," and if he does not comply the broker may take steps to protect himself." The failure of a purchaser to put up further margins where notified to do so does not relieve from the duty of giving notice of time and place of sale by a pledgee." Where a broker, after breach of the contract between the customers, refuses to disclose to the one who the other is he is personally liable." In the absence of customization, the broker cannot recover his commissions." That a broker advanced money to the purchaser does not make him his agent." The burden is on the principal to show that there was a double agency, and such fact was not known to him." A contract made thereunder is not ratified by a retention of the money paid, when its source is unknown."

SS 2. \_Mutual rights, duties, and liabilities."--\_The broker may be discharged at will," unless done for the sole purpose of defeating his right to commissions," and in the absence of custom the rights of the broker end with his discharge."

Where stocks are actually bought and sold there is no wagering contract."

It is the duty of a stock broker when so ordered to act promptly." Mere silence cannot be construed as an order to brokers to sell stock held on a margin." Where brokers sell stock on margin the legal title is in the vendee." All demands by a stock broker on his customer for margins must be specific, definite, and certain, and the customer is entitled to a reasonable time within which to comply," and if he does not comply the broker may take steps to protect himself."2 The failure of a purchaser to put up further margins where notified to do so does not relieve from the duty of giving notice of time and place of sale by a pledgee."3 Where a broker, after breach of the contract between the customers, refuses to disclose to the one who the other is he is personally liable."4 In the absence of customization, the broker cannot recover his commissions." That a broker advanced money to the purchaser does not make him his agent." The burden is on the principal to show that there was a double agency, and such fact was not known to him." A contract made thereunder is not ratified by a retention of the money paid, when its source is unknown."

SS 2. \_Mutual rights, duties, and liabilities."--\_The broker may be discharged at will," unless done for the sole purpose of defeating his right to commissions," and in the absence of custom the rights of the broker end with his discharge."8

Footnote 8: The author is not aware of the public agency, but it is not aware of the public agency."

Footnote 8: The author is not aware of the public agency.

tom, brokers are not liable if they fail to require a lender to put up margins to secure the borrower against a decline.45

Acting in good faith and with full knowledge of the principal the broker may purehase.46 The fact that a broker made a sale to himself of a certain block of stock does not invalidate sales by him in good faith to other parties,47 and where property is to be sold at a fixed price it is no defense that the broker was interested as a purchaser.48 General customs of brokers,49 or rules of a stock exchange cannot be received against a client of a broker who is ignorant of them,50 on the ground that they constitute a custom of the business.51

A broker is entitled to a deed running to himself when it is shown that it is shown that it is for his security in advancing money to make the purchase.52 His bondsmen are liable for a breach of his contract.58 Where brokers purchase stock on false orders of an employee they may treat him as principal.54 The admissibility of evidence to show rights is treated in the note.58

_Instructions.58--A charge that if the broker had cause to believe that a customer did not intend that he should purchase stocks was proper.57_

\_Scope of authority.58--Authority to make a loan is not authority to collect either principal or interest,59 nor is authority to collect rents authority to procure a purchaser,60 nor authority to sell at a certain price authority to agree to deferred payments.61 A broker cannot accept a check in payment.62 If he is authorized to accept earnest money he cannot accept foreign coin.63 Authority to sell oil is authority to stipulate how much shall be put in the buyer's tanks.64 Where a broker does not reside where the land to be sold is situated he is presumed to have authority to appoint a subagent.65 Depositing money subject to the check of a broker after the principal has approved the application for a loan does not give a broker authority to make a loan."64

\_Ratification.67--\_An agency is ratified by adopting the contract made by the agent,68 and an execution of a contract of exchange by a wife is a ratification by her of the broker's acts of procuring an exchange authorized by her husband.69 One joint owner may ratify the contract between his co-owner and the broker by assisting at the sale to the customer procured.70 There can be no ratification without full knowledge of the facts,71 and an owner's execution of a deed in ignorance of the terms made by an agent is not a ratification.72 Advancement in value is ground for refusal to ratify an unauthorized contract.73 Where a purchaser from a broker asserts ratification he must prove it.74

\_Revocation of authority_75 to collect rents is a revocation of the authority to procure a purchaser.76 Authority to sell is revoked by a sale by the owner,77 especially where he reserves the right to sell,78 or if the contract does not negative such right,78 and the manner in which it is accomplished is immaterial.80 Authority to sell is not revoked by his giving an option,79 but is by notice of the exercise of an option.82 A contract limited to a definite period terminates at the expiration thereof.88

\_Damages.84--\_An agency coupled with an interest is revoked subject to liability for damages suffered by reason of its termination contrary to the terms of the contract creating it.85 If the principal refuses to carry out his contract the broker may rescind and recover on a quantum merit.88 On breach of contract between principal and broker the measure of damages is the loss of profits as shown by the evidence excluding uncertain and conjectural profits,87 and such damages may be

66. Brokers exacted commission making note usurious. Barksdale v. Security Inv. Co. \[Ga.\] 47 S. E. 943. 67. See 1 Cur. L. 368. 68. An owner intrusted land to her brother to sell; he employed a broker, Hurt v. Jones \[Mo. App.\] 79 S. V. 486. Where a principal completed a sale after he knew it was procured by brokers and was notified that they would claim their commission, evidence held to show a ratification. Decker v. Wildidcomb \[MiCh.\] 100 N. W. 578. 69. Charles v, Cook, 88 App. Div, 81, 84 N. Y. S. 867. 70. Assisting in getting title papers in order, etc. McKinnon v. Hope, 118 Ga. 462, 45 S. E. 413. 71. Judgment against a principal compelling him to repay the amount of a first payment under an unauthorized contract to the agent insufficient to show a ratification. Fleming v. Burke, 122 Iowa, 433, 98 N. W. 288. 72. Broker had agreed to deferred payments. Edwards v. Davidson \[Tex. Civ. Appl.\] 79 S. W. 48. 73. Staten v. Hammer, 121 Iowa, 499, 96 N. W. 964. 74. Edwards v. Davidson \[Tex. Civ. App.\] 78 S. W. 48. 75. See 1 Curr. L. 367. 76. Even if the first authorized the second. Hunn v. Ashton, 121 Iowa, 265, 96 N. W. 745. 77. Notice unnecessary. Wallace v. Fidone \[Mo. App.\] 81 S. W. 492. 78. White v. Benton, 121 Iowa, 354, 96 N. W. 876; Johnson Bros v. Wright \[Iowa\] 98 N. W. 103. After listing properly the owner withdrew it from the market, but stated that he would offer it for sale after he made some changes. Held, broker's authority was revoked. George B. Loving Co. V. Heegeman Cattle Co., 176 Mo. 380, 76 S. W. 105. Principal had a right to revoke It. Id. 79. Broker had exclusive agency to procure loan. Mott v. Ferguson \[Minn.\] 99 N. W. 804. Where one notified the brokers that it sale was consummutated by a certain date a reduced price would be accepted, it did not suspend his right to sell, though the brokers notified him that they would make a sale by that date. White v. Benton, 121 Iowa, 354, 96 N. W. 876. 80. After giving agency to procure a loan to cancel a mortgage the principal secured a renewal. Mott v. Ferguson \[Minn.\] 99 N. W. 804. 81. Wallace v. Fidone \[Mo. App.\] 81 S. W. 492. 82. Faraday Coal & Coke Co. v. Owens \[L.S\] 80 S. W. 1171. 83. For sale made after that time no commission can be recovered. La Force v. Wash. University \[Mo. App.\] 81 S. W. 209. Evidence held not to show an implied renewal. Id. 84. See 1 Curr. L. 368. 85. Milligan v. Owen \[Iowa\] 98 N. W. 792. 86. To pay a share of profits for obtaining a partner. Boyd v. Vale, 84 App. Div. 414. 82 N. Y. S. 932. 87. Not a matcher for the discretion of the jury. Emerson v. Pac. Coast & N. Packing Co. \[Minn.\] 100 N. W. 865. Award for breach of contract to sell fish not sustained by evidence. Id. That a broker could have proc 3 Our. Law. BROKERS SS 3. 541

recovered by an accounting in equity. \[88\] Where an agent fails to show that he could have made a sale, nominal damages only can be recovered for a revocation of his authority. \[89\] Refusal to enter judgment for nominal damages is not reversible error. \[90\]

\_Remedies and procedure. \[91\]--\_An action on the common counts cannot be maintained for a breach of duty. \[93\] The defendant may be entitled to a bill of participants. \[88\]

SS 3. \_Rights and liabilities as to third persons. \[94\]--\_Where brokers, at the instance of a customer, purchase stock which they hold as security, its sale within four months prior to his bankruptcy did not create a preference. \[95\]

\_Broker's liability to third persons. \[88\]--\_A broker is individually liable for unauthorized acts, \[88\] or for false representations without regard to the liability of his principal. \[88\] It is immaterial whether his representations were intentionally false. \[88\] When sued by a third person he may show that it was customary to use a different form of words when contracting in his own name than when contracting subject to confirmation. \[88\] A real estate broker cannot charge a prospective purchaser with the expenses of a trip and his services in showing him the property. \[88\] A principal is liable to third persons for acts of the broker within the apparent scope of his authority, \[88\] or for his negligence, \[88\] but not for acts beyond it, \[88\] unless

authorty is admissible on an issue of dam-

1. Hale v. Knapp \[Mleh.\] 96 N. W. 1060. ages for revocation. Milligan v. Owen

Where one Item in an account against a prospective purchaser was illegal. the fact \[88\] N. W. 792. \[88\] N. Y.

may be considered in determining the status of the other items. Id.

89. Milligan v. Owen \[Iowa\] 98 N. W.

01. Broker had authority to sell oil and \[88\].

01. For revocation of authority. Milligan not have authority to sell that grade of oil. \[88\]. Owen \[Iowa\] 98 N. W. 782. \[88\]. Southern Cotton Oil Co. v. Shreveport Cotton Oil Co. \[88\]. See I Curr. L. 864. \[88\].

01. See I Curr. L. 864. \[88\]. contract for the sale of tanke of oil to con- to put up margins. Morris v. Jamleson, 205

tain "about" 136 barrels, the word "about" \[88\].

542 BROKERS SS 4. 3 Cur. Law.

ratified by him,\* nor by a contract for a sale of real estate made by an agent individually and under his own seal.\* If the acceptance is subject to confirmation by the seller no contract is created until confirmation,\* and a demand for security by the intending purchaser is not a waiver of the requirement of confirmation.\* The principal need not set up excess of authority in an action for specific performance.\* Knowledge of a broker is not knowledge of his principal.\[10\] Where a broker's contract was silent as to the capacity of tank cars in which oil was to be delivered, an oral agreement to this effect may be shown.\[11\]

SS 4. _Compensation and lien.\[12\]_--If he procures a customer ready and able to carry out the transaction according to the terms submitted to him by his principal,\[13\] and the burden is on him to prove his readiness and ability,\[14\] he is entitled to his commissions,\[15\] though the transaction is never consummated,\[16\] and especially so where a binding contract is entered into,\[17\] but where a contract was not entered into he must have procured a valid obligation and tendered it, or have brought the parties together so that a contract might have been entered into had his principal so desired.\[18\]

tract. Fleming v. Burke \[Iowa\] 98 N. W. 288. Sale after term of employment ex- pircd. Smith v. McCann, 205 Pa, 57, 54 A. 498. 5. Where a contract to purchase, signed by the proposed purchaser, is presented to the vendor to decide whether the purchaser is acceptable, and he then executes the contract or rating the unauthorised act of his agent. It is binding upon him. Flynn v. Jordan \[Iowa\] 100 N. W. 326. Unauthorized contract held ratified by correspondence. Sleeper v. Murphy, 120 Iowa, 122, 94 N. W. 275. 6. Blanchard v. Archer, 87 N. Y. S. 665. 7. By local custom both buyer and seller confirmed each other in writing. Johnston v. Fairmont Millis \[C. C. A.\] 129 F. 74. 8. Before confirmation the seller became insolvent. Johnston v. Fairmont Millis \[C. C. A.\] 129 F. 74. 8. Staten v. Hammer, 121 Iowa, 499, 8 N. W. 364. 10. Insurance broker had knowledge of facts which would render the policy void when made. Held the conditions were not wavled. McGrath v. Home Ins. Co., SS 30 App. Div. 155, 84 N. Y. S. 8374. 11. Sherman Oil & Cotton Co. v. Dalmas O. & R. Co. \[Tex. Civ. App.\] 77 B. V. 951. Letters written between broker and seller were admissible to show agreement as to capacity of tanks. Id. An answer by a broker that he had an understanding with the seller that cars of oil sold should contain 135 barrels is a conclusion. Id. An answer as to custom of filling oil tank is not responsive to a question as to the capacity of the tanks. Id.

12, See 1 Cur. L. 365. 13. Where an owner represented to the broker that a lot was 76 feet deep, and purchaser refused to ? Like it because it proved to be but 66 feet, no commissions could be recovered. Hausman v. Herlfelder, 81 App. Div. 46, 80 N. Y. S. 1039. Where sale was completed by an execution on different terms than proposed by testator to the broker. Trickey v. Crowe \[Ariz.\] 17 B. V. 966. 364.

3. Cur. Law. BROKERS SS 4.

A slight modification of the terms will not defeat his right." All his expenditures are at his own risk, to be recouped only in case of success.20

If his endeavors have been the procuring cause of the transaction,21 the burden of which is on him to show,22 he is entitled to his commissions,23 even though

out. Flynn v. Jordan \[Iowa\] 100 N. W. 326. \[whether he was the procuring cause. Met-Though the third party subsequently refuses to carry it out. Charles v. Cook, SS Asp. 808. A broker who mentions parties to prin-Div. 81, 84 N. Y. S. 867. \[Div. 81, 84 N. Y. S. 867. \[Div. 81, 85 Ilyn v. Jordan \[Iowa\] 100 N. W. 826. \[but who does not see the one who buys the property until after the sale, is not entitled conditionally, or if the purchaser withdraws to commission. Whiteley v. Terry, SS 39. \[Div. 197, SS 8 N. Y. S. 89. \[Purchaser was not not entitled to commissions, unless it is shown that the purchaser was able, ready and willing to purchase at the time of tender to the principal. Id. A broker, who in accordance with his contract, brings the purchaser and prinend together, is entitled to his compensation when these latter parties arrive at a definite understanding, in relation to such contract, acceptable to both. Seabury v. Fidelity L, T. & B. D. Co., 205 Pa. \[234, 54 A. 898. \[Purchaser was not entitled to commissions. Samp-

19. Where broker was authorized to sell for $4,500, and the owner sold to the purchaser procured for $4,300; broker was entitled to commission. Smith v. Trutt \[Mo. Appl. 80 S. W. 686. Broker procured purchaser, for the sale of an automobile, who was ready and willing to carry out his contract with exception of first payment. This being waived by principal, held that broker was entitled to his commission. Veeder v. Seaton, SS 85 App. Div. 196, SS 8 N. Y. S. 876. \[Purchaser was employed to be part of the purchaser, but rather he was entitled to commission. Smith v. Trutt \[Mo. Appl. 80 S. W. 686. Broker procured purchaser, for the sale of an automobile, who was ready and willing to carry out his contract with exception of first payment. This being waived by principal, held that broker was entitled to his commission. Veeder v. Seaton, SS 85 App. Div. 196, SS 8 N. Y. S. 876. \[Purchaser was employed to be part of the purchaser, but rather he was not entitled to commission. Samp-

01. Where broker was authorized to sell for $4,500, and the owner sold to the purchaser procured for $4,300; broker was entitled to commission. Smith v. Trutt \[Mo. Appl. 80 S. W. 686. Broker procured purchaser, for the sale of an automobile, who was ready and willing to carry out his contract with exception of first payment. This being waived by principal, held that broker was entitled to his commission. Veeder v. Seaton, SS 85 App. Div. 196, SS 8 N. Y. S. 876. \[Purchaser was employed to be part of the purchaser, but rather he was not entitled to commission. Samp-

01. Where broker was authorized to sell for $4,500, and the owner sold to the purchaser procured for $4,300; broker was entitled to commission. Smith v. Trutt \[Mo. Appl. 80 S. W. 686. \[Purchaser was not entitled to commission. Samp-

01. Where broker was authorized to sell for $4,300; broker was entitled to commission. Smith v. Trutt \[Mo. Appl. 80 S. W. 686. \[Purchaser was not entitled to commission. Samp-

01. Smith v. Lawrence, SS 86 Me. 92, 56 A. \[455. \[Procering an abstract to be extended to date. Sale never consummated. Park v. Hogle \[Iowa\] 99 N. W. 185. \[21\]. That a broker did not inform his prin-

01. That a broker did not inform his prin-

01. What he was the procuring cause. The purchaser was not controlling as to

01. What he was the procuring cause. The purchaser was not the product of the purchaser, the transaction was not completed until after the termination of his authority; \[24\] but he is not entitled to commissions for a sale made to his customer after his discharge, \[28\] nor for a sale under a revoked contract of agency. \[26\] He must do something more than get authority to sell, \[27\] though he need not conduct the transaction to a final conclusion, \[28\] and he is not entitled to commissions for unsuccessful efforts. \[29\]

The performance of the contract is a prerequisite to the right to commissions, \[30\] but negotiating a conditional sale is sufficient, \[31\] and he may be entitled to recover on the quantum merruit for part performance. \[32\]

hhs purchasers through the assistance of other agents. Henninger v. Ehren, 90 Minn. 43, 95 N. W. 578. Correspondence held to show that broker was procuring cause. StediD v. McClymonds, 90 Minn. 206, 95 N. W. 906. Where brokers advertised the property and prepared for its sale at auction, but the owner sold it at private sale the day before the auction. Donald v. Lawson, 87 N. X. S. 486. Evidence held to show that one had by correspondence, etc., procured a purchaser. Sandfarr v. Hines \[Kan.\] 78 P. 448. Evidence held to show that a broker had produced a purchaser and was entitled to a five per cent commission, though there had been another settlement. Summers v. Summers \[Ky.\] 80 S. W. 1164. Where a prin-clipal stated to a broker after the sale that he was entitled to his commissions, evidence held to show that he was the procuring cause of the sale and was not limited to pro-curing a purchaser at a certain price. Met-caffe v. Gordon, 86 App. Div. 368, 83 N. Y. S. 808. Where one purchased directly from owner, evidence held to show that broker was procuring cause. Veale v. Green \[Mo. App.\] 79 S. W. 731. Evidence held to show a broker entitled to smile or, subsequently, an-leasehold. Steer v. Dwyer \[Mo. App.\] 79 S. W. 738. Where a buyer's attention was called to the property by an advertisement of a broker. Kiernan v. Bloom, 88 N. Y. S. 899. "If the property sold is brought to the attention of the purchaser by the broker, and the principal carries on the negotiations himself or agrees to an exchange instead of sale, or allows the purchaser a certain time to agree to his terms, and before the expiration of the time allowed, sells to another, the broker is entitled to his commissions." Showaker v. Kelly, 81 P.a. Super. Ct. 330. Evidence held to show that an agreed compensation was $50 instead of $160. \[A.\] 88 N. Y. S. 147. \[A.\] 89. "Jager v. Glover, 89 Minn. 490, 95 N. W. 811; Crowley Co. v. Myers, 69 N. J. Law, 246, 55 A. 305. \[A.\] 89. "Sale made to a customer with whom the broker unsuccessfully negotiated. Leonard v. Eldredge, 184 Mass. 594, 69 N. E. 387. A sale by the owner to one with whom a broker ha# negotiated without authority does not entlue him to commission. Negotiated after his authority had been revoked. George B. Loving Co. v. Hesperian Cattle Co., 176 Mo. 330, 75 S. W. 1095. Conversation between broker and purchaser subsequent to revocation inadmissible. Id. \[A.\] 89. "Evidence held to show a written contract had been superseded by a new oral contract. Kidman v. Garrison \[Iowa\] 97 N. W. 1078. \[A.\] 89. "Jager v. Glover, 89 Minn. 490, 95 N. W.

3 Cur. Law. BROKERS SS 4. 545

Where a condition is annexed to the transaction, it must be performed before commissions can be recovered," and where right to commissions was limited to the time the vendor received payment, no recovery thereof could be had until such time;" but where payment of commissions does not depend on the payment of the entire purchase price, he is entitled to receive them as installments are paid."

_A sale agent_ is entitled to commission on all sales," except those made by the owner," especially where he reserves a right to sell."

Arbitrary refusal of the principal to consummate the transaction does not defeat the right to commissions," nor does his inability to give a clear title" or immediate possession," nor a mistake in listing as to the description," nor notice to the broker of a defect in the title acquired after he has procured a purchaser," nor the sale by the principal to one with whom the broker has negotiated," and that he has a cause of action against his customer for fraud is no defense." He may recover, though he knew that the principal did not have the amount of stock he employed him to sell."

38. Was to acquire property free from the risk of failure was wholly on the taxes which he did not, though he procured broker. Bruce v. Hurlbut, 81 App. Div. 811, a warranty deck. Rice v. Omberg, 25 Ky. L. 81 N. Y. S. 54. Evidence of interviews be- R. 631, 76 S. W. 15. Agreement to take loan when an owner and a customer of a broker on condition that he got title to the prop- vho held an option held insufficient to show entry. Frye v. Schwarz, 87 App. Div. 611, 83 N. Y. S. 1070.

01. Payment was reserved until it was shown a certain amount could be realized on the business sold. Hart v. Garrett Co., 87 N. Y. S. 574.

01. Frank v. Bonnevie \[Colo. App.\] 77 P. \[Tex. Civ. App.\] 78 S. W. 972; Finck v. Bauer, 363.

01. Whisky broker. Brown & Bro. v. Lebow, 140 Misc. 218, 81 N. Y. S. 625. Contention that he was entitled to a reasonable time to per- Lapp, 25 Ky. L. R. 114, 77 S. W. 194. Solid

foot this title is no avail. Nor is fact that to one with whom he had negotiated. Sylvester v. Johnson, 110 Tenn. 392, 75 S. W. 922,

37. Where owner sold, though the broker had the exclusive agency under a contract which did not negative the owner's right to call. Ingold v. Symonds \[Iowa\] 87 N. W. Y. 194. If a 713. Contract did not negative principal?a

01. W. Y. 194. Contract did not negative principal?a

01. A record by the owner, rectifing that broker did. Mott v. Ferguson \[Mim.\] 98 N. W. 804.

01. Tracy v. Abney, 122 Iowa, 306, 98 N.

01. I21. Nor does the fact that the contract provides for a penalty to be paid the broker in case the price is raised or the tax Where a principal sold his entire tract to one who agreed to pay commissions on applications sent in by his agents, the agent could collect at the rate fixed by his contract," though the question of his fair dealing and the consequent validity of the contract for commissions may be for the jury."

Where a broker gave his receipt for commissions to the lessee to be used by her as payment of rent he could not recover from his principal." A broker may be precluded from recovering his commissions by becoming an officer of a purchasing corporation," because of the fiduciary relation he sustains." Failure of a broker to comply with an ordinance requiring a license will not preclude him from recovering a commission," especially where such ordinance is not enforced."

\_Good faith."\_If he fails to make a full disclosure of the facts," or makes misrepresentations to his principal, he cannot recover commissions, though the contract becomes binding."

A local custom to pay brokers who negotiate a deal cannot fasten upon a property owner any liability." Whether the broker has complied with his contract is a question of law."

In some states an authorization to sell real estate must be in writing in order that the broker may recover his compensation," and in such case the broker cannot recover on a quantum merit," while in others an agent's authority to procure a purchaser need not be." The statute of frauds cannot be invoked for the protection of a broker to secure commissions." A part of the New York courts hold that

47. The fact that it had been represented to the purchaser that the rate had been reduced is immaterial. Heaton v. Clarke, "22 Iowa, 716, 98 N. W. 597.

01. Goldshear v. Barron, 42 Misc. 198, 85 N. Y. S. 305.

01. Irrespective of novation, any private agreement between broker and lessee as to use of the receipt would not affect rights of lesgor. Davis v. True, 89 App. Div. 319, 85 N. Y. S. 843.

01. Corporation to which sale was made was not in existence when contract was made, but when sale was effected the wea a director. Goldshear v. Barron, 42 Misc. 198, 85 N. Y. S. 395.

01. A. was authorized to sell land. F. made an agreement with him whereby he was to sell land and receive half the profits. F. formed a corporation and sold to them at a greatly advanced price. Heid, that brokers were in a fiduciary relation to corporation and hence could not recover excess in price. Tragarden Brox, W. Big Star Zinc Co., 71 Ark. 277, 72 S. W. 989.

01. Where it is not shown that both parties agreed to violate the ordinance. Toker v. Duckworth \[Mo. App.\] 80 S. W. 963.

01. Ordinance, City of Guthrie. Where city refused to accept the tax, failure to pay it could not be set up as a defense in an action for commissions. Wicks v. Carlisle, 12 Okl. 337, 72 P. 277.

01. See 1 Curr. L. 370.

01. Making changes in a contract without authority, even though the principal was not prejudated thereby. Humphrey v. Robinson, 134 N. C. 432, 46 S. E. 953; Jeffries v. Robbins, 66 Kan. 427, 71 P. 852.

01. As to purpose for which lots sold were to be used. Whangles v. Fahys, 87 App. Div. 518, 84 N. Y. S. 798.

01. For effecting a lease. Brady v. American M. & F. Co. 86 App. Div. 267, 83 N. Y.

01. Error to submit it to the jury. Goodson v. Embleton \[Mo. App.\] 80 S. W. 22.

01. Gen. St. p. 164, 16 . Lelmbach v. Regner \[N. J. Law\] 57 A.

01. Horizon \[N. J. Law\] 57 A.

01. Corporation to which sale was made was not in existence when contract was made, but when sale was effected the way a director. Goldshear v. Barron, 42 Misc. 198, 85 N. Y. S. 395.

01. A. was authorized to sell land. F. made an agreement with him whereby he was to sell land and receive half the profits. F. formed a corporation and sold to them at a greatly advanced price. Heid, that brokers were in a fiduciary relation to corporation and hence could not recover excess in price. Tragarden Brox, W. Big Star Zinc Co., 71 Ark. 277, 72 S. W. 989.

01. Where it is not shown that both parties agreed to violate the ordinance. Toker v. Duckworth \[Mo. App.\] 80 S. W. 963.

01. Ordinance, City of Guthrie. Where city refused to accept the tax, failure to pay it could not be set up as a defense in an action for commissions. Wicks v. Carlisle, 12 Okl. 337, 72 P. 277.

01. See 1 Curr. L. 370.

01. Making changes in a contract without authority, even though the principal was not prejudated thereby. Humphrey v. Robinson, 134 N. C. 432, 46 S. E. 953; Jeffries v. Robbins, 66 Kan. 427, 71 P. 852.

01. As to purpose for which lots sold were to be used. Whangles v. Fahys, 87 App. Div. 518, 84 N 3 Cur. Law. BROKERS SS 4.

commission for sale of land cannot be recovered unless made under written authority,\[93\] while the contra is maintained in other courts of the same state.\[44\]

Amount of commission depends upon the agreement of the parties,\[95\] or, where there is no controlling agreement, upon what the services are reasonably worth.\[96\]

A principal is liable for the compensation of a subagent.\[97\]

Agreement for commissions for a sale or a lease furnishes a cause of action for both.\[96\]

A principal cannot refuse to accept services on one ground and payment of commissions on another.\[96\]

_The complaint\[70\]_ must allege what the broker was employed to do and that it had been accomplished,\[71\] but the acts constituting the efforts to effect the transaction need not be set forth.\[72\] It may set forth a single claim in several counts,\[73\] and does not fail to state a cause of action because not alleging that the broker communicated to the owner the name of a proposed purchaser.\[74\] In a real estate

cured an oral promise of renewal. Mott v. |ender had incorporated a new condition in Ferguson \[Minn.\] 99 N. W. 804.

68. Pen. Code, SS 440d. Adler v. Schaum-berger, SS 4N. T. S. 235. Penell memorandem-dum held insuffclient. Cohen v. Bocuzzi, SS 4N. T. S. 187. Question of waiver of written authority cannot be raised. Kronenberger v. Quinn, SS 4N. T. S. 139. No written authority is a valid defense to an action for commission. Davis v. Kidansky, SS 4N. T. S. 6. No written authority from wife who owned land, though there was from her husband. Charles v. Arthur, SS 4N. T. S. 284. He must prove written authority. Borgto v. Gange, SS 4N. T. S. 538; Peck v. Antes, SS 4N. T. S. 525.

01. The right to recover commissions for a sale of land without written authority is not prevented by a statute making such a sale in Jansdemancer \[Pen. Code, SS 440d (Laws 1901, c. 128)\]. Cody v. Dempsey, SS 4App. Div. 335, 13 Ann. Cas. 322, SS 3N. Y. S. 839.

01. Where amount of commission was fixed by a tacit understanding between the parties. Armstrong v. Cleveland \[Tex, Civ. App.\] 74 S. W. 789.

01. Boyd v. Vale, SS 4App. Div. 414, SS 3N. Y. S. 932. An employment to procure an option, which principal did not take advantage of. Boardman v. Hanks \[Mass.\] 70 N. E. 1012.

01. Where broker has authority to employ him. Eastland v. Maney \[Tex. Civ. App.\] 81 S. W. 574. Petition by a subagent for compensation, alleging that agent was nonresident and that subagent was a resident of county where land was located, permits proof of agent's authority to employ a subagent. Id. Where an agent agreed with a subagent to sell at a certain price if the owner would take it, the subagent took the risk of getting his commissions in making a sale at that price. Id.

01. Goldshear v. Barron, SS 42 Misc. 198, SS 4N. T. S. 835. Where a broker procured options on a number of lots of different owners and they agreed to pay him a commission for selling them, and a formal contract was signed by them severally, the price being fixed at a gross sum, there was not a joint liability for commissions. Whamples v. Fahys, SS 4N. Y. S. 789.

01. Refusal to accept loan because commission asked was excessive, and demand for commission defended on ground that transaction that the contract has been signed must be alleged." An allegation of willingness, readiness, and ability, to purchase is an allegation of fact," and must be set forth where the transaction is not consummated." Where the petition counts on a contract there can be no recovery on a quantum mernit," nor as for a breach thereof," nor can one declare on a written contract and recover on proof of a sale under an oral one," but under an allegation for a commission for two and one half per cent, eleven and one half per cent may be proved and recovered," and a cause should not be dismissed because.the broker fails to prove that he was the procuring cause of the sale." Where the petition alleged that the contract bound the defendant individually, recovery could not be had on proof that the corporation of which he was president was bound." An actual cause of action must exist at the time of bringing the suit, and no cause of action subsequently arising can be introduced by amended or supplemental complaint," but it is not error to allow an amendment where it does not change the cause of action." Where a petition sought interest, a filing thereof was a demand, and it was properly allowed from date of such filing." An allegation for sums expended in procuring an abstract was proper." Petition for commissions properly alleged agreement between owner and purchaser settling the failure to sell."

_Evidence_" which goes to show the amount due," and acts which one would naturally do in the usual course of business are admissible," and the broker may testify that he advertised in a certain newspaper," and where action is on a quan 4.

## 8 Cur. Law. Brokers SS 4.

tum merit it is proper to show the reasonable value of his services." Conversations between broker and agent relative to the subject-matter," or between the principal and a third party are admissible," but statements made by a principal's husband to a broker's agent," or statements of the broker that he had the land in his hands for sale are inadmissible, when they do not specify the time and place." Evidence which will reveal an undisclosed principal is properly excluded." Where a broker had the sole agency contracts made by the owner with other agents are immaterial." Evidence of an express contract is inadmissible under a general denial.1

_Instructions._"-On an allegation that the broker sold the land it is error to instruct that he is entitled to recover if he was trying to sell." An instruction requiring proof of matters not in issue is error.4 Where the ultimate facts entitling to recovery have been instructed upon it is error to refuse to instruct the negative.6 It is not error to refuse to restrict a right to recover to a finding of an express promise to pay, where it is alleged that the broker became entitled to his commission and the principal promised to pay.6 A charge that if the purchasers were accepted by the owner as satisfactory the broker is entitled to his commission, but if not it must appear that they were able and willing to purchase, is inconsistent with a charge that the contract had been ratified by the owner.7 An instruction, "you will have to determine from the testimony whether Mr. Showaker was the man who consummated and carried through that deal between Kelly and the others," held proper.8 An instruction, seeming to assume a sole agency where there was not one, was not prejudicial to a principal where it was plainly an attempt to charge on his theory of an abandonment." A clause in an instruction "If you believe that his own efforts to procure a purchaser had been abandoned" is not objectionable as making the right to recover dependent on two states of facts, the jury having also been charged as to the effect of his inability to procure a purchaser.10

## 95. Evidence of reasonable value of bro-

only whether he was the procuring cause. Ker's services in a suit on a quantum merit for commissions held admissible. Boyd v. B. W. 716. Error in charging that several Vale, SS 4. App. Div. 414, SS 21, N. Y. S. 982.

## 94. As to purchases made by a certain party. Richardson V. Babcock, 119 Wins. 141.

## 96. N. V. 554. It is not error to admit itself-

mony as to what took place at a public sale of land, at which time it was alleged that the parties made the oral agreement used on. Borden v. Isherwood, 120 Iowa, 677, 94 N. W. 1128.

## 95. To show that broker had procured a purchaser. Good v. Smith \[Or.\] 76 P. 354.

Statements made by a principal's husband to a broker's agent that he was entitled to commission, inadmissible. Winans v. Demarest, 84 N. Y. S. 504.

## 97. Bradley v. Gorman \[Conn.\] 68 A. 698.

## 98. Downing v. Buck \[Mich.\] 98 N. V. 388.

99. Error to submit their existence to the jury. Yarbrough v. Creager \[Tex. Civ. App.\] 77 B. W. 645.

01. Broker brought quantum merit for services. Refinus-Remer Land Co. v. Benner \[Minn.\] 98 N. V. 186.

## 2. See 1 Curr. L. 373.

## 3. Yarbrough v. Creager \[Tex. Civ. App.\] 71 B. W. 645.

BUILDING AND CONSTRUCTION CONTRractS.

$ 1. The Contract, Sufficiency and Inter- $ S. Completion by Owner or Third Person (550). $ 2. Performance of Contract (551). $ 3. Modification of Contract (553). $ 4. Changes in Plans and Specifications $ 10. Arbitration of Disputes (556). $ (553). $ 5. Extra Work (553). $ 12. Payment (557). $ 6. Detay in Performance (554). $ 13. Subencontracts (558). $ 7. Termination or Cancellation of Contract (555). $ 14. Bonds (559). $ 15. Remedies and Procedure (559).

SS 1. \_The contract, sufficiency and interpretation._11--Matters common to all contracts,_12_ or peculiar to contracts for public works,_13_ are elsewhere treated. A contract to erect a building in violation of a city ordinance is void;_14_ but failure to sign plans and specifications, as required by statute, is not fatal._15__

\_Interpretation._16--The ordinary rules for the construction of contracts apply. Particular terms and provisions construed will be found in the notes._17__

_Plans, specifications and detail drawings._18--An annexed drawing_19_ or one_\_

11. See 1 Curr. L. 374. 12. See Contracts, 1 Curr. L. 626. 13. See Public Contracts, 2 Curr. L. 1280. 14. Contractor cannot recover on cause $ 12. Payment (557). $ 13. Subencontracts (558). $ 14. Bonds (559). $ 15. Remedies and Procedure (559). $ 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. 51. 53. 56. 59. 61. 54. 56. 57. 59. 62. 63. 64. 65. 66. 67. 68. 69. 70. 69. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 70. 71. 73. 75. 79. 81. 82. 83. 84. 85. 86. 87. 88. 89. 81. 83. 85. 87. 89. 82. 84. 86. 88. 89. 80. 81. 84. 86. 89. 81. 85. 89. 82. 86. 89. 80. 81. 86. 89. 82. 87. 88. 89. 80. 81. 88. 81. 89. 82. 83. 84. 86. 89. 81. 84. 86. 89. 82. 85. 87. 89. 81. 88. 82. 88. 83. 89. 84. 86. 89. 81. 86. 89. 82. 88. 89. 80. 81. 89. 83. 84. 86. 89. 81. 88. 82. 89. 83. 84. 86. 89. 81. 88. 84. 86. 89. 82. 89. 83. 85. 87. 89. 81. 88. 89. 80. 81. 89. 82. 83. 84. 86. 89. 81. 89. 82. 83. 84. 86. 89. 81. 89. 83. 85. 87. 89. 81. 89. 80. 81. 89. 82. 83. 84. 86. 89. 81. 89. 82. 83. 84. 86. 89. 81. 89. 83. 85. 87. 89.

3 Cur. Law. BUILDING CCNTRACTS SS 2. 551 referred to20 is part of the contract, and it is for jury to say in case of doubt which of two plans is the one referred to.21

_Fraud, misrepresentation, or mistake.22--A contract knowing the contents of a contract, but misled as to its meaning, cannot avoid for fraud.23 If it is shown that part of the agreement was omitted because of mistake of the parties or fraud on the part of the plaintiff, then the jury should assess damages at what the work is reasonably worth.24_

SS 2. _Performance of contract.25--The defective performance of a contract constitutes a breach.26 but in the absence of a guaranty, the contractor is only required to do the work in a workmanlike manner, and is not responsible for results.27 He will be held to have contemplated natural obstructions which may arise, and will not be excused from performance in a good and workmanlike manner by reason thereof.28_

Footnote 27: The contractor is not intended to prove intentional details.

Footnote 28: The contractor abandons the work, he is not entitled to recover on the ground of substantial compliance, unless he has completed the building without any omissions so substantial as to call for damages, except in subordination to the part of the contractor permitting the owner to complete the building this expense. Rowe v. Gerry, 88 App. Div. 349, 83 N. Y. S. 740.

Footnote 29: Where work was to commence upon the contractor, with deductions for unfinished work:" but in such case, the contractor must show both that the defects and omissions were unsubstantial and unintentional, and must also show the amount necessary to make them good.28 If the architect or owner is given power to reject defective material, his failure to do so constitutes a waiver of such defects.24 If part of the rejected material is good, but there is no data to determine the respective amounts, the builder is not entitled to credit for any of the material furnished,\[85\] nor can the owner recover for additional expense incurred partly through his fault and partly through that of the builder, when it is impossible to separate it.\[86\]

Whether the contract has been executed in accordance with the plans and specifications,\[87\] and whether such requirements have been waived, are questions for the jury.\[88\]

\_Liability for failure to perform.\[89\]--\_If the contract is without reservation, the contractor cannot excuse nonperformance on account of storms,\[40\] but if the owner, by his conduct, induces the contractor not to erect the building, he cannot recover damages for failure to perform.\[41\]

\_Damage to finished work.\[42\]--\_The general rule is that if the premises are destroyed without fault on either side, both parties are excused from further performance of the contract, and neither has a right of action against the other, unless a contrary intention appears;\[48\] but this is not the case where one has bound himself to erect a building of a specified description.\[44\]

\_Abandonment.\[45\]--\_The innocent party may treat a contract as abandoned for failure to perform, when he is thereby deprived of the benefit that would have

farnished by a subcontractor, where the \[additon. Krause v. Crothersville School\]

architects had authority to compel the re-

moval thereof during the progress of the

Following Butterfield v. Byron, 153 Mass. 821, work. G. A. Fuller Co. v. Young Co. \[C. C. A.\] 126 F. 343.

L. R. A. 677 with note. The criterion seems

to be whether the contractor was account-

\[Mo.\] 78 S. W. 1014.

36. Owner did ever most of the wood-

vork, but was not justified in so doing as

the risk. He does not do so where the prin-

to meet of it. This necessitated a further

cippen structure is not wholly his or be un-

expense for heating and watchmen. Heid,

Gertakes regardless of the risk. It is a

owner could recover no damages. Snoqual-

mil Reality Co. v. Moynthan \[Mo.\] 78 S. W. 1014.

37. As to meaning of "Blanco F. Carrara"

marble. G. A. Fuller Co. v. Young Co. \[C. C. A.\] 126 F. 345.

38. Woarms V. Becker, 84 App. Div. 491,

52 N. Y. S. 1086.

39. See 1 Curr. L. 377.

01. Contract to supply materials to own-

er of lot with which to construct house.

Payment to be made when root on. Shina-

gles not furnished on account of storms.

V Woolf v. Shaefer, 41 Misc. 640, 86 N. Y. S. 205.

41. Agreement to rescind. Carter & Co. v. Kaufman (S. C) 45 S. E. 1017.

01. See 1 Curr. L. 377.

01. Building destroyed by fire before

completion of contract to bulld annex.

Krause v. Crothersville School Trustees

\[Ind.\] 70 N. E. 264. Owner could not impose

obligation on contractor to complete the

work by offering to restore the old building.

Id. Where contractor has expended more

than he has received under the contractor,

the payments made will be treated as an ex-

ecution pro tanto and the loss left where it

fall. Id.

NOTE. Completion prevented by destructive

tion of bulldling. A contractor to do a work

which depends on the owner's co-operating

work or on the continued existence or in-

tegrty of an existing structure is discharged

if performance of his undertaking is made

impossible by destruction of the existing

structure: So held where a main building

was destroyed, preventing completion of an

addition. Krause v. Crothersville School

Trustees \[Ind.\] 70 N. E. 264, 65 L. R. A. 111.

Following Butterfield v. Byron, 153 Mass. 821, work. G. A. Fuller Co. v. Young Co. \[C. C. A.\] 126 F. 343.

L. R. A. 677 with note. The criterion seems

to be whether the contractor was account-

\[Mo.\] 78 S. W. 1014.

36. Owner did ever most of the wood-

vork, but was not justified in so doing as

the risk. He does not do so where the prin-

to meet of it. This necessitated a further

cippen structure is not wholly his or be un-

expense for heating and watchmen. Heid,

or overtakes regardless of the risk. It is a

owner could recover no damages. Snoqual-

question of interpretation. Butterfield v.

mil Reality Co. v. Moynthan \[Mo.\] 78 S. W. 1014.

It is not necessary in such case to recon-

struct the main building. Neither is the

contractor denied the protection of the rule

because it appears that he could have completed sooner, or because the owner offers

to restore the main building. Krause v.

Crothersville School Trustees, supra.

A stipulation protecting the owner from

ability for loss does not of itself cast a

liability on the contractor. Krause v. Cro-

theraville School Trustees, supra.

8 Cur. Law. BUILDING CONTRACTS $\\lx@sectionsign$ 5. 553 arisen from performance,\[44\] and impossibility of performance, caused by the owner does not relieve him from liability under the contract.\[47\] The contractor has a right to abandon the contract as soon as the owner's acts render it impossible for him to perform it within the time specified, time being of the essence of the contract,\[48\] or upon the nonpayment of instalments due thereunder.\[49\] Whether the contract was abandoned is a question for the jury.\[50\] Equity will restrain a subcontractor, who has abandoned his contract, from removing such part of his plant as is necessary to preserve the work until a reasonable time elapses for the substitution of another plant.\[51\]

SS 3. \_Modification of contract.\[52\]--\_A written contract not under seal may be modified by a parol agreement before breach,\[53\] or by the acts of the parties;\[54\] but a contract to modify a previous one must be supported by a new consideration.\[55\] Unless specially authorized to do so, an architect has no authority to alter or modify the building contract.\[56\]

SS 4. \_Changes in plans and specifications.\[57\]--\_If the engineer has power to annul one portion of the contract without releasing the contractor from performing the other portions, a change in the plans and specifications of the work on one section beyond the power to change reserved in the contract does not release the contractor as to other portions.\[58\]

The question as to whether changes in the plans and specifications are material and whether they were within the contemplation of the parties when the contract was made is one of fact for the jury.\[59\]

SS 5. \_Extra work.\[60\]--\_A contractor is entitled to recover the reasonable value of all extra labor or material in excess of that required by the contract furnished by him, by the owner's direction,\[41\] or with his knowledge and consent,\[52\] though

46. Delay in completing stairway may operate to destroy the benefit which prompt- ed the owner to contract. Koerper v. Royal Inv. Co., 102 Mo. App. 543, 77 S. W. 307. See Contracts, 1 Curr. L. 626.

Inv. Co., 102 Mo. App. 643, 77 S. W. 307.

56. Provisions inserted in contract by ar- 47. Failure to procure right of way.

chicet, who is made agent for the owner Measure of damages te profits contractor prevented from earning. Altoona Electrical, Including surety company to furnish bond, B. & S. Co. v. Kittanning & F. C. St. R.

not binding on owner without notice. Swee- 126 F. 559.

48. A cause of action accruq to a contractor, and the statute of limitations begins 57. See 1 Curr. L. 378.

to run on issuance of injunction restrain- ing continuance of work because of city's catc, R. Co. \[C. C. A.\] 124 F. 866.

failure to properly assess damages and benefits. Ash v. Independence \[Mo. App.\]

railroad settlements. American B. & T. Co. v. Baltimore, etc., R. Co. \[C. C. A.\] 124 F. 866.

49. Lawrence Bros. v. Heylman, 89 App. 60. See 1 Curr. L. 378.

Div. 620, 85 N. Y. S. 789.

50. Plaintiff contended delay was forced by refusal of defendant to pay him, while defontal contended that it was causeless and inexcusable. Koerper v. Royal Inv. Co., 102 Mo. App. 543, 77 S. W. 307.

01. McCabe v. Hunt, 40 Misc. 466, 82 N. Y. S. 664.

01. See 1 Curr. L. 371.

01. Time of making payments. Eagle Iron Works v. Farley, 84 App. Dlv. 82, 82 N. Y. S. 603.

01. Requirement that builder purchase hardware modified by owner purchasing it with his consent. Cline v. Shell, 43 Or. 372, 73 P. 12.

01. A new agreement to proceed with work under terms different from those in the original contract, which had been re- "extended", is supported by a sufficient consid- "," is the 554 BUILDING CONTRacts SS 6.3 Cur. Law.

the contract stipulates that the builder shall not charge for extra work unless ordered in writing.\[93\] He may also recover extra compensation for doing over his original work if not necessitated by any neglect of his contractual duty,\[64\] but not for work within the intendment of the contract.\[65\] A provision that compensation for the extra work can be had only upon written order of the engineer implies that work so ordered will be paid for.\[96\] The refusal of the architect to include the cost thereof in his final estimate does not preclude recovery, where he is not made arbiter of disputes.\[67\]

SS 6. _Delay in performance.\[98\]_--Where no time is fixed for completion, the work must be done within a reasonable time, taking into consideration all the facts and circumstances of the case.\[99\]

A contractor is not liable for delay caused by the owner, or his agents or servants,\[90\] even though the contract provides that the owner's request for alterations shall in no way affect or make void the contract;\[10\] but he cannot escape liability for delay because of extra work, when such delay was caused by lack of facilities for carrying it on concurrently with the original work.\[72\]

_Waiver of delay or extension of time.\[13\]_--Contractors consent to delay by\_

son v. Smith & Co. \[Tex. Civ. App.\] 79 S. \[ants themselves, New York Metal Celling Co. v. Raub, 86 N. Y S. 249. Failure to obtain rights of way as agreed. Altoona Elections on changes. Hay v. Bush, 110 La. 575, 84

trial E. & S. Co. v. Kitzunning, etc., R. Co., So. 692. May be waived by architect as agent for owner. Langley v. Rousse, 85 App. \[\] error in refusing to allow plaintiff anything Div. 27, 82 N. Y. S. 1982.

44. \[\] Sewer pipes properly ladd settled, and it was necessary to relay them. Allen v. Allen v. \[\] summed that it was the duty of the seller to Melrose, 184 Mass, 1, 67 N. E. 1060.

01. \[\] Additional excavation at masonry below depth marked on plan of bridge plers held not extra work for which contractor entitled to compensation beyond that fixed in the contract, the measurements on the plans being approximate only, and the price fixed being so much per cubic yard. Gears v. New Haven \[Conn.\] 65 A. 584. Contract to build sewer held to be contract to do work as plan then was or might thereafter be changed, and lowering of grade held to be within power expressly given engineer and not to equite contractor to extra compensation over the price per yard as fixed by the contract. Allen v. Melrose, 184 Mass. 1, 67 N. E. 1060. A subcontractor who agrees to do the lathing and platering called for by the plans and specifications cannot re-cover extra compensation for work done under the contract, though it was rendered necessary by imperfections in the work of the contractor. Graves Elektor Co. v. Parker Co., 92 App. Div. 456, 87 N. Y. S. 166.

01. \[\] Sheathing a trench made it necessary to widen it. Johnson v. Albany, 86 App. Div. \[\] 567, 83 N. Y. S. 1002.

01. \[\] Though payments are to be made upon his certificate. Jacob v. Welsser, 207 Pa. 484, 56 A. 1065.

01. \[\] See 1 Curr. L. 379.

01. \[\] Lang v. Menasha Paper Co., 119 Wis. 1. 96 N. W. 392; Koerjer v. Royal Inv. Co., 102 Mo. App. 543, 77 S. W. 607.

01. \[\] Structure over sidewalk prevented putting up decorative Iron work. Cornell v. Standard Oil Co., 91 App. Div. 346, 85 N. Y. S. 632. Defendants failed to disprove that performance was delayed by other work carried on by other people for the defend-

554 BUILDING CONTRacts SS 6.3 Cur. Law.

the contract stipulates that the builder shall not charge for extra work unless ordered in writing.\[93\] He may also recover extra compensation for doing over his original work if not necessitated by any neglect of his contractual duty,\[64\] but not for work within the intendment of the contract.\[65\] A provision that compensation for the extra work can be had only upon written order of the engineer implies that work so ordered will be paid for.\[96\] The refusal of the architect to include the cost thereof in his final estimate does not preclude recovery, where he is not made arbiter of disputes.\[67\]

SS 6. _Delay in performance.\[98\]_--Where no time is fixed for completion, the work must be done within a reasonable time, taking into consideration all the facts and circumstances of the case.\[99\]

A contractor is not liable for delay caused by the owner, or his agents or servants,\[90\] even though the contract provides that the owner's request for alterations shall in no way affect or make void the contract;\[10\] but he cannot escape liability for delay because of extra work, when such delay was caused by lack of facilities for carrying it on concurrently with the original work.\[72\]

_Waiver of delay or extension of time.\[13\]_--Contractors consent to delay by\_

son v. Smith & Co. \[Tex. Civ. App.\] 79 S. \[ants themselves, New York Metal Celling Co. v. Raub, 86 N. Y S. 249. Failure to ob-

63. \[\] Not binding when both parties Continuing the work,"14 and the owners by permitting them to do so without objection," or by rendering them assistance." But if the contractor can complete the work within the time fixed, plus the time occasioned by delays caused or assented to by the owner, he is liable for the damages provided for in the contract for each day's delay beyond that time." A complaint founded on one breach may amount to a waiver of a similar prior breach," and demand to complete a building which has not been finished within a reasonable time amounts to a virtual extension of time."

_Liquidated damages._"Where a fixed sum is agreed upon as damages in case of a breach of the contract, it will be regarded as liquidated damages only in case the actual damage is incapable of exact determination, and the sum agreed upon is not on its face out of all proportion to the probable loss." If such sum is grossly disproportionate to the probable value of the use of the building, the owner can recover only actual damages." The burden of proof is upon the owner to show that a "penalty" is intended as liquidated damages if it is not so stated in the contract, and that the damage amounts approximately to the sum stated."

An owner who takes possession and completes the work cannot recover the damages for delay stipulated for in the contract, but only his actual damage."

SS 7. _Termination or cancellation of contract._"--Failure to comply with the terms of the contract warrants rescission," but one has no right to cancel for nonperformance when his own act is the cause thereof." Where the owner wrongfully stops the work, the contract may treat the contract as rescinded."

A contract will not be canceled unless there is an offer by the plaintiff to pay the defendant for materials and labor furnished under it."

damages for failure to complete at a certain date. In an action on the contract, there was ne evidence as to the actual loss due to delay. Heid, an instruction that no damages should be allowed for delay was erroneously refused. Zimmerman v. Conrad \[Mo. App.\] T4 S. W. 139.

SSs. Held, court would not take judicial notice of the fact that rental value approxmated penalty provided. Small v. Burke, 36 N. T. S. 1066.

SS4. The contract provided for SS per day for delay. Before the time stipulated for completion, the owner declared the contract forredited and completed the building. Heid, he cannot treat the contract binding as to this provision. Fidelity & Deposit Co. v. Robertson, 136 Ala. 379, 84 So. 933.

SS5. See 1 Curr. L. 850.

SS6. Defects in construction and delay held to warrant owner in terminating contract and completing the work himself. Hay v. Bush, 110 La. 575, 34 So. 692.

SS7. Owner could not cancel whenever contractor refused to proceed because of his failure to pay first instalment of price. Koperner v. Royal Inv. Co., 102 Mo. App. 545.

T7. S. W. 307.

SS8. Requested to stop work for a few days but to remain on the premises and did so, but hears nothing further from the owner. Dobbling v. York Springs R. Co., 207 Pa. 123, 56 A. 349. Cannot thereafter be required to continue work under original contract. Cochran v. Yoho \[Vwash.\] T5 P. S15.

SS9. Contract void because not recorded as required by Code. Sullivan v. California Realty Co., 142 Cal. 201, 15 P. 767.

## 8 8. Completion by owner or third person

Where work is abandoned and the owner completes it under a provision in the contract, the contractor is entitled to any balance of the contract price above the cost of completion. \[1\] A surety who completes a contract abandoned by his principal is entitled to sums reserved from payments made to the original contractor. \[92\]

A provision that the engineer may take any measure he sees fit to complete the contract on time does not authorize him to take possession of the buildings and tools of the contractor for use in so doing. \[8\]

## 9. Architect's and other certificates of performance

Provisions requiring the production of architect's certificates before recovery can be had will not be implied. \[8\] Where the contract provides that payment shall be made upon certificate of the architect that the work has been performed, \[9\] or that he shall certify as to the damages resulting from failure to complete the work, such certificate is a condition precedent to the right of recovery, \[9\] unless it appears that it was refused unreasonably, or in bad faith, \[9\] or that its production has been waived. \[9\]

Where the architect is one of contracting parties, a demand for payment constitutes a demand for his certificate. \[1\]

## 10. Arbitration of disputes

Where the contract does not provide for the architect's decision upon disputed points, no such provision can be implied. \[3\] The agreement to submit differences to arbitration implies a promise to abide by the award, \[4\] and such disputes cannot afterwards be mitigated by a party in the 3 Cur. Law. BUILDING CONTRACTS SS 12. 557 courts until he has shown an offer to arbitrate and a refusal by the other party.'s but an unreasonable delay in making an award relieves him from such agreement." An agreement to arbitrate disputes does not prevent an action for damages for an unauthorized rescission of the contract." An agreement providing that the completion of the work specified therein will settle all disagreements precludes the owner from retaining a part of the contract price for defects existing prior thereto." Decisions of an arbitrator may only be attacked for actual and intentional fraud on his part, or accident, mistake, or fraud practiced on him by which he was misled." SS 11. _Acceptance._"If a party accepts work as done, he cannot claim specific performance on the part of the builder as a condition precedent to payment, but is entitled to reduce the amount to be paid by the amount of damages he has sustained by failure to fully perform." Payment of the contractor and disposal of remaining material by the owner constitutes a waiver of further performance," but a mere naked use," or a use from necessity, does not," nor will the use of a temporary structure constitute an acceptance of the completed work." Acceptance is not a waiver of a guaranty of fitness." SS 12. _Payment._"Where payments are made without directions as to how they are to be applied, the creditor may make the application," but it will be presumed that they were intended to pay the earlier rather than the later debts." Where interest is not provided for in the contract, a demand is necessary for the exact amount." If the contract provides that final payment is to be made upon delivery with a full release of liens, such release is a condition precedent to payment." Under a provision that the owner, upon the filing of a lien or notice of claim, may keep back an amount sufficient to pay the same, the builder may recover the balance.\[22\] The assignee of a builder's claim may recover for the work done if he is also assignee of all liens filed.\[28\]

SS 13. \_Subcontracts.\[24\]--\_A subcontractor who has notice of the terms of the original contract between the owner and builder is bound thereby.\[25\] An order of payment to a subcontractor, made by a contract and referring to the original contract, must be construed with such contract.\[28\] The fact that a subcontractor refrains from filing a lion against the building is a sufficient consideration to support a promise of the owner to pay his claim.\[27\] A contractor who has accepted the work of a subcontractor, and has then obtained the architect's certificate that the main contract has been completed, and received the contract price, cannot claim that the subcontract was not completed in accordance with the terms of the original contract,\[28\] and the furnishing of such certificate is a sufficient compliance with the provisions of a subcontract requiring the architect's approval of the work done thereunder.\[29\]

\_Withholding payments for benefit of subcontractor.\[30\]--\_Under the Indiana statutes, a notice by a subcontractor to the owner that money is due him from the contractor and to, withhold payment of that amount makes the owner personally liable for the full amount.\[31\]

_Rights on default by subcontractor.\[32\]_

SS 14. \_Bonds.\[33\]--\_A law requiring a bond is void as making a discrimination on the right to contract.\[34\]

Slight delay on the part of the owner in selecting material is not a breach going to the entire consideration of the contract so as to annul it, but only operates to relieve the contractor from liability for delay in completing the building and to give him a claim for loss occasioned by the enforced delay.\[35\]

If the bond refers to the contract, the two instruments are to be construed together.\[36\] Where the contract requires the builder to pay for materials furnished and the bond is conditioned on his completing the work according to contract, the guarantor is responsible for materialmen's liens.\[37\]

A bond given by a contractor to one employing him to build, stating that the building shall be delivered free of all claims, is not intended for the benefit of a subcontractor furnishing work or materials.\[38\]

A mere oral understanding as to times of payment differing from that in

\[\] 84. Code Civ. Proc. 11208 held void. Snell v. Bradbury, 139 Cal. 379, 13 P. 150. 35. Does not relieve surety on contractor's bond. Bagwell v. American Surety Co., 103 Mo. App. 707, 77 S. W. 327. 36. Closson v. Billman, 161 Ind. 610, 69 N. E. 449. 37. Closson v. Billman, 161 Ind. 610, 69 N. E. 449. Suretles guaranteeing the construction of a building in strict accordance with plan and specifications and terms of contract are not discharged until the building has been released of liens for labor and material. Mayes v. Lane, 25 Ky. L. R. 824. 36. S. W. 399. Where a contract provides for the retention of 15 per cent of the contract price until completion of the building free from liens, sureties upon the contractor's bond are not released because the owner pays out that amount to dispose of liens before the completion of the contract. Id. 38. \_Matorialment cannot recover thereon. Green Bay Lumber Co. v. Independent School Dist., 121 Iowa, 663, 97 N. W. 72.

3 Cur. Law. BUILDING CONTRACTS SS 15. 559

the contract will not release the surety. \[89\] An owner is under no obligation to sureties upon a contractor's bond to see to the application of payments to the discharge of debts due for material and labor. \[40\] After the lapse of two years, there is no presumption that defects are due to faulty construction. \[41\]

SS 15. _Remedies and procedure._\[42\]--A provision giving the engineer power to annul the contract in case of failure to perform properly, and providing that in case he does so the amount then due shall be regarded as liquidated damages, does not provide an exclusive remedy for a breach, but in case of wrongful abandonment, action may be brought on the contractor's bond. \[49\]

_Recovery in general assumpsit or on quantum mernit._\[44\]--Where the contract is fully performed except for payment, recovery may be had in indebitatus assumpsit. \[45\] The contractor cannot recover under his contract unless the work is completed, but if the owner accepts the building as constructed, recovery may be had under the common counts for work, labor, and materials furnished. \[46\] If the owner prevents the completion of the work, \[47\] or otherwise breaches the contract so as to justify an abandonment thereof, the contractor may recover the agreed value of the work done. \[48\]

Where no price is agreed upon, the builder is entitled to recover the reasonable value of his work. \[49\]

_Pleading._\[50\]--The general rule that the complaint must contain a plain and concise statement of facts, which will not leave the defendant in doubt as to the cause of action, applies to actions on building contracts. \[61\]

Performance of conditions precedent to a right of recovery, or an excuse for their nonperformance, must be pleaded, \[49\] but a general allegation of performance is sufficient. \[89\]

80. Mere oral request and promise that the owner have five days' grace in paying installments, Bargwell v. American Surety co., 102 Mo. App. 707, 17 T. B. W. 327. 40. Mayes v. Lane, 25 Ky. L. R. 824, 76 S. 48. Lawrence Bros. v. Heylman, 89 App. 41. The liability of a surety under the Code arises should a building fall to ruhn, either in whole or in part owing to the badness of the workmanship, but if at the end of two years after completion a defect arises, it must be shown that it is exclusive-by the fault of the principal in order to hold the surety. Police Jury of Parish of Vernon v. Johnson, 111 La. 279, 35 So. 560. 42. See 1 Curr. L. 384. 43. American Bonding & Trust Co. v. Baltimore & O. S. W. R. Co. \[C. C. A.\] 124 P. 866. 44. See 1 Curr. L. 384. 45. McArthur Bros. Co. v. Whitney, 202 III. 527, 67 N. N. E. 163. 40. Owner moved into house before completed, the contractor agreeing to finish the same according to contract. Evidence that materials and construction were not as per contract. Aarnes v. Wlindharn, 137 Ala, 613, 34 So. 816. Can recover nothing under the contractor or on quantum mernit unless owner accepts and uses work. Construction of a walk lowest in the middle so as to collect rain water and step animals. Gwynup v. Shlens, 161 Ind. 506, 69 N. E. 168. Owner may recoup damages for failure to perform. Contract to construct Turkish bath to satisfaction of owner. Tile was poor and floor uneven, so that water would not drain. Assaic Tile Co. v. Chiera \[Mich.\] 95 N. W. 537. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 40. 41. 43. 45. 47. 48. 49. 41. 44. 48. 49. 42. 45. 46. 48. 49. 40. 42. 47. 49. 43. 41. 44. 45. 46. 47. 48. 49. 40. 44. 48. 49. 41. 45. 47. 49. 42. 48. 49. 43. 44. 45. 46. 48. 49. 44. 47. 48. 49. 45. 49. 46. 47. 48. 49. 48. 49. 49. 40. 41. 49. 41. 42. 43. 44. 49. 45. 46. 47. 48. 49. 48. 49. 49. 40. 41. 49. 42. 44. 49. 41. 43. 44. 45. 46. 47. 48. 49. 49. 41. 45. 49. 42. 46. 49. 43. 44. 47. 48. 49. 45. 49. 46. 47. 49. 48. 49. 49. 49.

A plea that the contractor was delayed by acts of his employer must state the extent of the delay so caused.\[44\]

Where a material part of a contract remains unperformed, a party cannot recover upon an allegation of full performance.\[88\]

Defendant cannot plead by way of counterclaim that plaintiff agreed to construct in a manner different from that provided in the contract, in the absence of an allegation that such contract failed to contain the whole agreement, or that the omission was due to mistake or fraud.\[88\]

Failure to execute in a workmanlike manner may be proved under a general denial.\[97\]

_Variance.\[88\]_--An allegation of performance does not authorize proof of non-performance because of facts not pleaded.\[89\]

_Evidence.\[90\]_--If the compensation is not fixed in the contract, evidence as to the value of the services is admissible.\[61\]

Evidence of customs and usages is admissible for the purpose of showing the meaning of trade terms.\[92\]

Expert testimony is not admissible to show substantial compliance with the contract,\[88\] nor to show the proper classification of material, where such classification depends on the manner in which it was handled and witness did not see the work done.\[88\]

If an architect's certificate is required, its execution must be proved.\[88\] If the written contract is ambiguous, an independent verbal contract relating to the subject-matter, but not inconsistent with it, may be shown.\[99\] Where a requirement of written evidence to charge the owner for work done under alterations of the contract has been waived by oral directions for alterations acted on by the contractor, oral evidence of the alterations and their value is admissible in an action on the contractor's bond.\[97\]

Where contract requires architect's certification and its terms unknown. Merriner v. Jepp-seq, its execution or refusal must be alleged and proved. Beck v. N. Y. Bldg. Loan Banking Co., 8E N. Y. S. 823. Evidence of notice by owner of election to complete building, introduced as proof of extra services, Inadmisslble to exense failure to produce architect's certificate, where such no-tite was not pleaded. Id.; Vanderhoof v. Shell, 42 Or. 578, 72 P. 126; McGianflin v. Wormser, 28 Month. 177, 172 P. 428. 53. Not necessary to state facts constituting performance of a condition precedent, but sufficient to state that all conditions have been performed. Under N. Y. Code Civ. Proc. $ 533. Acceptance of work by engineer. Vandegrift v. Berton, 83 App. Div. 548, 82 N. Y. S. 153. 54. U. S. Fidelity & Guaranty Co. v. Dam-skibsaktleselskabet Habit, 138 Ala. 348, 25 So. 344. 55. Excelisori Terra Cotta Co. v. Harde, 90 App. Div. 4, 85 N. Y. S. 722. 56. Agreement that staters be large enough to admit of piano and book cases being car-ried up. Voss v. Schebeck, 25 Ky. L. R. 481, 76 S. V. 21. 57. Gwinnup v. Shies, 161 Ind. 500, 69 N. E. 158. See 1 Curr. L. 386. 59. Rowe v. Gerry, 86 App. Div. 349, 83 N. Y. S. 740. 60. See 1 Curr. L. 386. 61. Suit upon a written contract which was not set out in the abstract of record
**BUILDING AND LOAN ASSOCIATIONS.**

**SS 1.** In General. Statutory Provisions.\*\*

**(561).**

**S. Membership and Stock (562).**

**S. Lomas and Mortgages (565).**

**A. In General (565).**

**B. Usury. Conflict of Laws (565).**

**SS 1.** In general. Statutory provisions.\*\*--The Iowa statute regulating the conduct of the building and loan business by unincorporated associations,48 and the Louisiana act regulating the business of homesetad associations,48 are held constitutional. An association must comply with statutory requirements before doing business in a state other than that of its domicile.70 Such statutes do not exempt corporations taking advantage thereof from the general rule requiring their contracts to be tested by the same rules as those of similar domestic corporations.71 Contracts which by their terms are to become vested in numerical order, without regard to the amount paid thereon, are expressly forbidden by statute in Massachusetts.72 In Louisiana, homesetad associations may buy property for cash and resell to the original owner on credit, the second sale giving the association a vendor's lien.73

\_Charter and by-laws.74--A shareholder and member of an association is presumed to know its charter and by-laws.75 Valid by-laws of an association to which a member agrees become a part of his contract.76 But a by-law which changes a borrower's rights, after he effects a loan, is not binding upon him.77 A borrower may be estopped to set up the invalidity of a by-law,74 or to deny

**68.** Acts 23th Gen. Assem. p. 45, c. 77.\*\*

**Question arose in habeas corpus proceed-**

**Ings for release of one arrested for solicit-**

**a loan is not a co-operative banking busi-ing contracts for an unincorporated foreign association, which had not complied with**

**Ings persons from transacting the business of statutory requirements. Brady v. Mattern \[Iowa1 100 N. W. 358.**

**69.** Act No. 115, p. 177, of 1888. Ameri-\*\*

**Can Emmestestad Co. v. Karstendiek, 111 La.**

**bidding negotiation and sale of certificates 884, 35 So. 964.**

**70.** A contract wthi a foreign loan association which has not complied with a statute requiring certificates of Incorporation to be filed with the secretary of state, is void, and no action is maintainable thereon, corporation, does not authorize the attor-\*\*

**Hoskins v. Rochester Sav. & Loan Ass'n**

**by general to maintain a suit in equity \[Mich.\] 95 N. W. 566. A defensa, in an action by a homested association, to recover**

**the price of property sold, that plaintiff has not complied with provisions of the home-**

**stead association law, not supported by**

**by**

by\*\*

the legal organization of the association as a corporation." Oral or printed statements of officers or agents of an association, in direct contradiction of the by-laws or the terms of a contract of which the by-laws are made a part, cannot be made the basis of an estoppel unless such representations are fraudulently made." An officer of a building and loan association is competent to discharge the duties of trustee in a trust deed given the association on a loan by it." Documentary evidence\[82\] in proof of the charter or by-laws must be properly authenticated.

**SS 2.**_Membership and stock._\[88\]--In the absence of prohibitory statutes, associations may lawfully issue paid up stock," and include in its membership a borrowing and nonborrowing class, the latter being liable only for instalments on stock, not for premiums or interest." The mere fact that there are different classes of stock with different rights and liabilities of stockholders does not necessarily destroy the company's character as a building and loan association." A statute legalizing premiums, fees and fines, in addition to interest, does not authorize the issuance of preferred stock or discrimination between shareholders." One who invests money in a loan association and receives a certificate of deposit, drawing annual interest, based on the earnings of the business, and a separate certificate of membership and ownership of stock, is a stockholder, and not a mere creditor of the association." A stockholder can vote by proxy only when authorized by statute or the articles or by-laws of the corporation." A member seeking to recover dues, in accordance with the terms of his certificate and the by-laws of the association, must allege and prove the existence of the fund out of which such dues are payable." Fines for default in payments on stock will be allowed only when reasonable."

**79.**_Crete Bldg. & Loan Ass'n v. Patz \[Neb.\] 95 N. W. 192._

**80.**\_Noah._German American Bidg. Ass'n. & Ass'n \[Ind. App.\] 67 N. E. 1922._

**83.**_McDonnell V. De Soto Sav. & Bldg. & Ass'n, 175 Mo. & 360, 75 S. W. 438._

**82.**\_In a foreclosure suit, the certificate of stock, with by-laws and other statements printed thereon, constituting the contract with the association, is admissible in evitable. & 3 Cur. Law. BUILDING AND LOAN ASSOCIATIONS SS 2.563

Status of borrowing members.92--Borrowing and nonborrowing members of a loan association so far as stock and payments thereon are concerned, stand on an equal footing, and should equally receive the benefits and bear the burdens.98 A borrowing member does not cease to be a member and stockholder by assigning his stock as collateral security for a loan.98

_Maturity of stock._"88--In the absence of any special agreement, stock matures only when the dues paid and earnings apportioned to it amount to the face value thereof." As to the effect of an agreement that stock shall mature after a specified number of payments or in a specified time, the courts are not agreed, some holding that when an association so agrees and represents at the time the loan is made, stock matures when the required number of payments has been made, whether the dues and earnings were sufficient to mature it or not," and that the stockholder cannot be required to pay more than the specified number;"88 others, that such an agreement works an estoppel;"89 and many that the agreement is ultra vires and void.1 Representations of an association through its agents as to the amount or time required to mature stock are regarded as mere expressions of opinion and not fraudulent, though not verified.2 An association is under no duty to mature the stock of a defaulting stockholder."

95. See 1 Curr. L. 391.
01. Noah v. German American Bldg. Ass'In, 196 to mature stock in a specified time is 11 Ind. App. 504, 68 N. E. 615; Winegardner v. Equitable Loan Co., 120 Iowa, 485, 94 N.

such promise, by a stockholder who has W. 1110. Where by-laws provide that Habil.

fully executed the contract on his part.

ify for inalments shall be Im Imulted to a Eastern Bldg. & Loan Ass'n v. Williamson, certain number, and others provide that 189 U. S. 112, 23 N. C. 527, 47 Law. Ed. 735.

stock shall not mature until the loan fund

Though the act of an association representation of Instantons, with earnings, should

flag that a certain number of payments would equal the face value of the stock, such stock

mature stock is ultra vires, yet, when re- does not mature until the stock is worth its

lied upon by a transferee of property, charged

face value, notwithstanding the required

with a loan secured by stock, the assocdia-number of payments has been made. Miller

Hon may be estopped to claim a larger v. Wayne International Bldg. & Loan Ass'n,

amount on each stock, before releasing a (Ind. App. 17 N. E. 180.

97. Iowa Business Men's Bldg. & Loan Ass'n v. Berlin \[Lova\] 98 N. W. 766. A

A

The act of an association determining contract whereby an association agrees to

and representing that a certain number of mature stock at the end of a certain time,

payments would mature the stock is ultra vires. Williams V. Verity, 98 Mo. App. 654,

forceable. People v. N. Y. Nat. Bldg. & Loan

73 S. W. 732. A loan must be discharged

AsAs'n, 98 N. Y. N. S. 850. Sentiment under a

by maturity of stock in the usual course contract to mature stock in five years held

of business, or by payments large enough valid. Floyd-Jones v. Anderson \[Mont\] 76

to discharge the loan at once, regardless of

P. T51. An absolute promise to mature

an agreement as to maturity after a certain stock in a specified time is not rendered

number of payments. Gary v. Verity, 101 conditional upon the success of the under-

Mo. App. 586, 74 N. W. 161. Such an agree-

taking by the agreement by the stockholder

ment with one member is in contravention

er to pay a certain monthly instalment on

of the rights of other stockholders. Id. A

each share until maturity, or withdrawal,

building and loan association has no power and the provision of the by-laws, accepted

to guarantee the maturity of stock after a by him, that such instalments shall be paid

certain number of instalments have been

until stock is fully paid. Eastern Bldg. &

L Loan Ass'n, 7 Williams D. 182, 122, 23

see also: In this way is not entitled to the

S. Ct. 527, 47 Law. Ed. 735. An absolute

promise to mature stock in a specified time

building and loan associations. Winegard-

is not affected by the fact that before a stockholder obtained a loan on such stock,

the by-laws were amended to provide for

tion that a certain number of payments

the maturity of stock only when dues and earnings

earnings equalled the par value thereof. Id.

of no effect, unless expressly authorized by

A state court may place its own constructive

tature, because it violates the principle of

tution upon the effect of an absolute promise

mutually among stockholders. Code 1896, to mature stock in a specified time, and the

effect thereon of the corporation's charter

tract. Richter v. Southern Bldg. & Loan

and by-laws, and the status and decisions

as As'n, 137 Ala. E. 514, 84 So. 562.

of the state where the association was in-

corporated, without contravening the full

member's stock will not be matured as rap-

fath and credit clause of the constitution

Idly as represented, on account of misman-

Id.

agreement in including a large class of non-

borrowing members, the remedy is with

stock should not exceed a certain number.

Noah v. German American Bldg. Ass'n, 31

appeal to the governing board or agents of

Ind. App. 504, 68 N. E. 615. A borrowing

the corporation before a resort to 3 Cur. Law. BUILDING AND LOAN ASSOCIATIONS SS 3B. 565

**SS 8.**_Loans and mortgages. A. In general._\*\*-**Where a building and loan contract is unenforceable as such because it is a discrimination between members, but the borrowing member treats it as enforceable as an ordinary loan, it may be so enforced.* An association is bound by a construction placed by the parties on an ambiguous note at the time of making the loan, where such construction is in accordance with representations made by the association.* Where a contract requires the expenditure of a portion of a loan on improvements on real estate, the borrower cannot set up nonliability for such portion, because it was for the benefit of the association.\* A provision for attorney's fees in a loan association mortgage is enforceable.\* Acerued fines for default in payment of dues on stock are an essential part of the liability of the member, but do not become a part of the mortgage debt, unless made so by the mortgage.\* By statute in Utah, a borrowing member may repay loans at any time by complying with the charter and by-laws.\*\*10 A payment to a local agent of a foreign loan association is a payment to the association.\*\*11 It is no defense against a payment on a loan that a building and loan association has gone out of business as such.\*\*12 A shareholder and member of an association cannot raise the defense of ultra vires when sued for a loan, on a contract executed by the association.\*\*18 False representations of existing facts by officers of an association, fraudulently made, constitute a good defense against a mortgage foreclosure suit.\*\*14 A grantee of premises mortgaged, by a borrowing member, who assumes and agrees to pay the mortgage, becomes liable for all the obligations secured, such as dues and premiums, besides principal and interest.**15 But it is held elsewhere that the additional liability must be expressly assumed.**16****

**(SS 3)**_B. Usury. Conflict of laws._\*\*17--\*\*The contract of a borrowing member of a building and loan association is governed by the law of the place where it is incorporated and has its home office, and where subscriptions to, and instalments on, stock, and interest are payable, though the security is in another state.\*\*18 But

**4.** \*\*A complaint of which the by-laws of an association were made a part, held to sufficiently allege when payments on stock were to be made, that stock had not matured, that defendants were in default and that the loan was due and unpaid. Miller v. Wayne International Bldg. & Loan Ass'n \[Ind. App.\] 70 N. E. 180, See 1 Curr. L 392. 5, Winegardner v. Equitable Loan Co., 120 Iowa, 485, 94 N. V. 110. 6. Iowa Business Men's Bldg. & Loan Ass'n v. Berlau \[Iowa\] 88 N. W. 766. 7. Motes v. People's Bldg. & Loan Ass'n, 137 Ala. 369, 34 So. 344. 8. Columbian Bldg. & Loan Ass'n v. Rice \[S. C.\] 47 S. E. 63. Attorney's fees are properly allowed in foreclosure suit by receiver, the mortgage providing therefor. Ottensor v. Scott \[Fla.\] 37 So. 161. 9. Fidelity Sav. Ass'n v. Bank of Commerce \[Wy.\] 75 F. 448. Where fines for default in payments of dues on stock are by the by-laws made a lien on the stock, they will be allowed, if reasonable, in determining the withdrawal value of the stock, to be credited on the mortgage debt. Id. 10. One who made payments according to by-laws up to a certain time, and then paid the balance due in a single payment, was entitled to have the bond and mortgage securing the loan canceled, regardless of the consolensolensens or unconsolensolensolens.\*\*11 Hoskins v. Rochester Sav. & Loan Ass'n \[Mich.\] 95 N. W. 566. 12. 13. 13. 14. 15. 16. 17. 18. 19. 20. 18. 19. 30. 19. 40. 18. 19. 41. 19. 5. 19. 5. 19. 6. 19. 7. 20. 19. 8. 19. 21. 22. 23. 24. 25. 26. 27. 28. 29. 31. 32. 33. 34. 35. 36. 37. 38. 41. 39. 42. 39. 5. 5. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 7. 8. 7. 8.

if the contract is to be performed in a state other than that of the domicile of the corporation, the law of the place of performance governs.\[19\]

_Exemption from usury laws.\[20\]_--Building and loan associations are usually exempted from the operation of usury laws,\[21\] mutual participation in profits and losses being the basic principle underlying building and loan contracts, which renders them nonusurious.\[22\] Some courts hold that premiums and interest are payable under separate and distinct contracts, and are not to be confused so as to render the contract usurious.\[23\] A company cannot, by calling itself a building and loan association, acquire the privilege of charging more than the legal interest rate on ordinary loans, if it is not such an association in fact.\[24\] That a company bears the name of a building and loan association imports that it is such in fact, and the burden is on a member asserting the contrary to prove it.\[25\] Though the lender be a building and loan association, the contract must be shown to be a building and loan contract, and not a simple loan to one not a member.\[26\] If the relation of corporation and stockholder is a mere fiction, entered into for the purpose of effecting a loan, the contract will be construed as a simple loan.\[27\]

963; Pacific States Sav., Loan & Bidg. Co. v. & Loan Ass'n V. McLean, 120 Iowa, 527, 94 Green \[C. C. A.\] 123 F. 43. A contract re- quirling all payments to be made at the ing such associations from the usury laws, home office of the association in Virginia, is constitutional. Brooklyn Bldg. & L. Ass'n held a Virginia contract. Columbian Bidg. Co. v. Desnoyers, 4 Ohio C. C. (N. S.) 337. & Loan Ass'n v. Rice \[S. C.\] 47 S. E. 63. A bond and mortgage given to a Minnesota association, payable at its home office, is a public. Spies V. Southern Ohio Loan & Trust contract of that state, though real estate security is located in Idaho. Lewis v. Clark \[C. C. A.\] 129 F. 570. 19. A loan by a Missouri corporation, negotiated with its agent in Kansas, bond and mortgage being executed in Kansas by residents thereof, and mortgage security being situate therein and payment being there made, is a Kansas contract, Royal Loan Ass'n v. Forter \[Kan.\] 75 P. 484. It was held in Michigan that where a loan made by a foreign corporation, secured by a mortgage on property in Michigan, the premiums being payable to a local agent therein, the contract will be governed by the laws of Michigan. Hoskins v. Rochester Sav. & Loan Ass'n \[Mich.\] 95 N. W. 566. And a contract executed in Nebraska, secured by mortgage on property in Nebraska, was held a Nebraska contract, though the association was incorporated in New York and had its main office there. People's Bldg. Loan & Sav. Ass'n v. Parish \[Neb.\] 96 N. W. 243. After insolvency of an association, where evidences of indebtedness have passed into the hands of strangers, the rights of a borrowing member will be governed by the law of his domicile, not the domicile of the association. Spinney v. Chapman, 121 Iowa, 38, 95 N. W. 230. 20. See 1 Curr. L. 394. 21. Missouri. Stanley v. Verity, 98 Mo. App. 632, 75 S. W. 721. Iowa. Bacon v. Iowa. Sav. & Loan Ass'n, 121 Iowa, 49, 66 N. W. 977. The fact that one not a member becomes a surety for a member of an association, securing a loan, does not take the contract out of the statute permitting building and loan associations to charge rates of interest higher than the legal rate. Wife gave note and mortgage on her separate property, securing loan, her husband signing as surety. Wife was a member of the association, husband was not. La Mars Bldg.

## 2 Cur. Law. Building and Loan Associations SS 3B.

The statutes of many states exempting building association loans from the usury statutes provide for a system of competitive bidding to determine the premiums on loans.\[28\] The provisions of such statutes must be strictly followed in order to bring the contract within the protection furnished,\[29\] and, where they exist, the charging of premiums arbitrarily fixed in amount, renders the contract usurious.\[30\] But the mere existence of a by-law fixing a minimum premium will not render a loan usurious, if it was in fact made after free competition, and the premium bid was higher than the fixed minimum.\[31\] Where competitive bidding is not required, the statute may permit the borrower and association to agree on a premium rate in addition to interest,\[32\] sometimes limiting the total amount charged.\[33\] In some jurisdictions, building and loan contracts are subject to the usury laws,\[34\] and where regarded as usurious, all payments are credited on the principal and interest of the loan,\[35\] and if the amount so paid is in excess of the principal

& Sav. Ass'n v. Cornibe \[Tex. Civ. App.\] $0

& Nav. 1026. An answer setting up in sub- stance that a contract was a building and (age of the minimum so fixed. Daily v. loan contract in form only, to evade the \[Mich.\] $5 N. W. usury laws, was not subject to demurrer on \[Mich.\] $4

& Sav. Ass'n v. Cornibe \[Tex. Civ. App.\] $0

& Nav. 1026. An answer setting up in sub- stance that a contract was a building and (age of the minimum so fixed. Daily v. loan contract in form only, to evade the \[Mich.\] $5 N. W. usury laws, was not subject to demurrer on \[Mich.\] $4

& Nav. 1026. A comment on the \[Mich.\] $4

& Nav. Ass'n v. Cornibe \[Tex. Civ. App.\] $0

& Nav. 1027. A comment on the \[Mich.\] $4

& Nav. Ass'n v. Cornibe \[Tex. Civ. App.\] $0

& Nav. 1028. A comment on the \[Mich.\] $4

& Nav. Ass'n v. Cornibe \[Tex. Civ. App.\] $0

& Nav. 1029. A comment on the \[Mich.\] $4

& Nav. Ass'n v. Cornibe \[Tex. Civ. App.\] $0

& Nav. 1029. A comment on the \[Mich.\] $4

& Nav. Ass'n v. Cornibe \[Tex. Civ. App.\] $0

& Nav. 1029. A comment on the \[Mich.\] $4

& Nav. Ass'n v. Cornibe \[Tex. Civ. App.\] $0

& Nav. 1029. A comment on the \[Mich.\] $4

& Nav. Ass'n v. Cornibe \[Tex.

and interest, the excess may be recovered," in the absence of a statute to the contrary." But it has been held that one who voluntarily pays usurious interest cannot recover any part thereof, in an action at law, but if the payment of such interest was induced by fraud, a suit in equity will lie."

A valid compromise may be made of an alleged usurious debt." **A** grantee of property mortgaged to secure a debt to an association, usurious as to an illegal premium, who knows nothing of the premium, which is not mentioned in the mortgage, may set up the usury against the association." In an action to cancel a lien and declare a debt usurious, the court properly decreed cancellation of the stock given by defendant association, under the prayer for other and further relief." **(SS 3)**_C. Accounting with borrower while solvent."_--A\*\* borrowing member of a going concern is only chargeable with his loan and legal interest, and should be credited with all payments, whether made as dues, premiums or interest," and with the withdrawal value of his stock at the time he received the loan," together with the dividends earned previous to the association's insolvency." The value

Is held that borrowing members are entitled to have monthly payments of dues and premiums credited on the loan. Hiskey v. Pa-

Wayne International Bldg. & Loan Ass"n

offe States Sav., Loan & Bldg. Co. \[Utah\]

\[Ind. App.\] ? No. E. 180. Heid, under a

76 P. 20. In Oregon, bulting and loan asociation contracts calling for interest, pre-

ber, as to final settlement, he was to be

miums and dues are held usurious as to all

charged with the amount actually advanced

payments in excess of the stipulated rate

him, with interest at 8 per cent, and credited

of interest, and such payments in excess are

applied in extinguishment of the debt and

Interstate Bldg. & Loan Ass"n v. Edgesfield

interest. Contract called for 6% interest

Hotel Co., 120 F. 422. But not with pre-

annually, 6% annual premium, and 91.75 per

miums for insurance on mortgaged premises.

month on 16 shares of stock pledged to se-

Alexander V. Southern Homo Bldg. & Loan

eure the loan. Epping v. Washington Nat.

Ass"n, 120 F. 963. A provision of a.by-law

Bldg., Loan & Inv. Ass"n\[Or.\] ? 74 P. 923.

that where a contract is governed by stat-

86. Harper v. Middle States Loan, Bldg. &

Const. Co. \[W. Va.\] 46 S. E. 817.

87. Contract being usurious, the receiver

could recover only the principal, after de-

amount to the highest interest rate there

ducting all payments made, neither costs

allowed, the balance of premiums being

nor interest being in such case recoverable

\[Rev. St. 1893, 5 1380\]. Carpenter v. Lewis,

means that the benefit allowed can be taken

65 S. C. 400, 43 S. E. 881.

38. Action to recover payments made to

maturity of the stock. Georgia State Bldg.

an association represented to be a mutual

building association. Beach v. Guaranty

\[Miss.\] 34 So. 84.

\[Miss.\] 39. A resolution claimed debt v.ular

\[Minnesota law and borrower claimed it usu-

\[Minnesota law and borrower closely law. Gray v. U. S.

\[Miss.\] 000. Heid, in suit to foreclose mortgage,

Bav. & Loan Co., 55 Ky. L. R. 1120, 77 S. W.

\[Miss.\] 200.

\[Miss.\] 40. Lewis v. Farmere' Loan & Bldg. Ass"n

\[Miss.\] 31 S. W. 887.

\[Miss.\] 41. American Mut. Bldg. & Sav. Ass"n v.

\[Miss.\] 42. Centre \[Tex. Civ. App.\] 80 S. W. 1026. In

An action to cancel a lien and declare a

defbst usurious, evidence connecting the per-

son effecting the loan with a building and

loan association, defendant, was admissi-

ble. Id.

42. See 1 Curr. L. 398-400.

01. National Bldg. & Loan Ass"n v. Fris-

ble. 25 Ky. L. R. 449, 76 S. W. 7; Yager v.

National Bldg. & Loan Ass"n, 25 Ky. L. R.

1853, 79 S. W. 197. Where by-laws provided

for payment of 50 cents month on each

$100 of money borrowed, and a bond occur

ing a loan, provided for a premium of 50

cents a month on each share of stock, the

face value of which was $100, held, such

payments under the bond should be treated

as premiums by a borrowing member as

such, and not dues on the stock. Miller v.

of stock, surrendered to be credited on a loan, is determined by the assets end liabilities of the association at the time of the surrender, and not by the amount paid thereon.46 A member is bound by by-laws fixing the withdrawal value of his stock, if such by-laws do not contravene any law.47 A tender by a borrowing member, before the voluntary liquidation of the association, renders him liable only for his loan and interest, and not for losses, and entitles him to credit for all payments.48 A borrowing member is not entitled to have credited on his loan admission fees, stock dues, and fines, paid before he became a borrower.49 A borrowing member seeking to have his contract declared usurious cannot be credited, on the loan, with fines, withdrawal fees, and amounts paid on expense accounts as a stockholder.50 Where a borrowing member has a final settlement with the association, while solvent, he may recover thereafter for usury paid the association, and is not chargeable with losses accruing after such final settlement.51 Notice of settlement and withdrawal may be waived.52 A withdrawing stockholder should be charged with interest on the full amount of the loan, since the deductions of premium, being illegal, were credited on the loan.53 In Iowa, a borrower is charged with the full amount of the loan received by him, together with delinquent dues, interest, premium, and fines, and credited with the withdrawal value of the pledged stock, but no greater recovery can be had against him than the net amount of the principal actually received, with interest thereon at a rate not greater than twelve per cent.54 After completed settlement and withdrawal, it is immaterial whether the contract was one which the association had power to make.55

(SS 3) _D. Accounting after insolvency.56_--Insolvency works a rescission of the contract between the association and its members, and loans made by it become

stock and dividends, at the time he de-

on the loan, with interest at 12%, less the withdrawal value of the stock, and interest subsequent insolvency of the association.

After a borrowing member, having pledged stock as collateral, was permitted, in a suit

to foreclose a trust deed, to recover the dif-

forcing between the principal of the note

rowing members: The contract made by a

and the value of his paid-up stock and accumulated profits. Western Loan & Sav. Co. v. Gart \[Utah\] 75 P. 376.

46. Peal v. Citizens' Bldg. & Loan Ass'n's

Assignee, 25 Ky. L. R. 1048, T7 8. W. 932.

The credit to be allowed a withdrawing member, repaying his loan, on his pledged stock, is computed according to the actual

value of the stock at the time of settle-

ment. Reitz v. Hayward, 100 Mo. App. 216,

73 S. W. 374.

47. A deduction from first stock payment

for reserve fund is not violatve of Civ. Code,

$ 634, limiting an entrance fee to a smaller

burn. Provident Mut. Bldg.-Loan Ass'n v. Chris-

Davia \[Cal.\] 76 P. 1034.

48. National Bldg. & Loan Ass'n v. Fris-

ble, 25 Ky. L. R. 449, 76 is W. 7.

49. Interstate Bldg. & Loan Ass'n v. Holland, 65 S. C. 448, 43 S. E. 978.

01. - Georgia State Bldg. & Loan Ass'n v. Grants \[Miss.\] 34 So. 84.

01. Ollices v. Kentucky Citizens' Bldg. & Loan Ass'n's Assignee, 24 Ky. L. R. 1954, 72 S. W. 747.

52, 83. Reitz v. Hayward, 100 Mo. App. 216, 73 S. W. 374.

54. Bacon v. Iowa Sav. & Loan Ass'n, 121 Iowa, 449, 86 N. W. 977. In a suit to foreclose a mortgage securing a bond, which provided a greater rate of interest than 12%, the amount due was the amount received

on the loan, with interest at 12%, less the withdrawal value of the stock, and interest

withdrawal value of the stock, and interest

subsequent insolvency of the association.

After a borrowing member, having pledged

stock as collateral, was permitted, in a suit

to foreclose a trust deed, to recover the dif-

ference between the principal of the note

rowing members: The contract made by a

borrowing member with the association is

cumulated profits. Western Loan & Sav. Co. v. Gart \[Utah\] 75 P. 376.

46. Peal v. Citizens' Bldg. & Loan Ass'n's

provided for in the note or other evidence

Assignee, 25 Ky. L. R. 1048, T7 8. W. 932.

The credit to be allowed a withdrawing member, repaying his loan, on his pledged stock, is computed according to the actual

value of the stock at the time of settle-

ment. Reitz v. Hayward, 100 Mo. App. 216,

73 S. W. 374.

47. A deduction from first stock payment

for reserve fund is not violatve of Civ. Code,

$ 634, limiting an entrance fee to a smaller

burn. Provident Mut. Bldg.-Loan Ass'n v. Chris-

Davia \[Cal.\] 76 P. 103 5:0 BUILDING AND LOAN ASSOCIATIONS SS 3D. 3 Cur. Law.

at once due and payable, regardless of the terms of the contract.\[57\] The borrower is charged with the amount of his loan with interest.\[58\] Payments actually made, referable to the loan,\[59\] such as interest and premiums,\[60\] are credited thereon; but payments on the stock, such as dues, cannot be credited on a member's loan,\[61\] since credit therefor can be given only after final distribution by the receiver,\[62\] when all shareholders, borrowing and nonborrowing, will be paid pro rata from the fund for final distribution.\[63\] On final settlement, the borrowing member is entitled to be credited only with the actual value of his stock, not its face value.\[64\] Where a shareholder, after notice of withdrawal, borrows a sum less than the withdrawal value of his stock, he cannot, in an action by the receiver after in-solvency to recover the loan, offset the withdrawal value of his stock.\[65\] After insolvency, caused by no fault of a borrowing member, the latter is not chargeable

ing members on the same terms as stock-holders. Consequently, the borrowing mem-intersst on the installments of interest. her. after insolvency, cannot be credited with dues on stock, since this would amount to a withdrawal, to the prejudice of non-made. 7% on Minnesota, contract. Id. In rowing member, after insolvency, is therefore charged with the sum actually received on his loan, and interest thereon, and credit-ed with all payments made as a borrower, but not credited with sums paid as a stock-holder. Curtis v. Granite State Provident Ass'n, 69 Conn. 6, 36 A. 1033; Heleinkaemper v. German Bldg. & Sav. Ass'n, 22 Kan. 549; Rogers v. Rainis, 18 Key. L. R. 768, 38 S. W. 483; Strohen v. Franklin Sav. Fund & Loan Ass'n, 116 Pa. 273, 8 A. 842. It has been held in Illinois, however, that the borrowing member should not be credited with premiums. Choleser v. Young, 69 Ill. App. 251; Towle v. American Bldg., Lonn & Inv. Soc., 61 F. 446. In Maryland, the borrowing member is charged with interest at the legal rate only, and not the rate charged in the note and mortgage. Windsor v. Bandel, 40 Md. 172; Waverly Mut., the Ass'n v. Buck. 64 Md. 338, 1 A. 561. In North and South Carolina, the borrowing member is credited with all payments, including dues on the stock. Strauss v. Carolina Inter-State Bldg. & Loan Ass'n, 117 N. C. 308, 33 S. E. 450, 53 Am. St. Rep. 855; Bultat v. Bryan, 44 S. C. 121. S. E. 547, 51 Am. St. Rep. 787-"From note to Curtis v. Granite State Provident Ass'n \[Conn.\] 61 Am. St. Rep. 24. See 1 Curr. L. 400.

57. Lewis v. Clark \[C. C. A.\] 129 F. 570. After a building and loan association has become insolvent and passed into the hands of a receiver, the borrowing member's obligation will be regarded as a simple loan, upon which payments actually made, except stock payments, will be credited, and the balance will be regarded as a debt at once due and payable. Spinney v. Chapman, 121 Iowa, 38, 95 N. W. 230. But premiums agreed to be paid cannot be charged against the borrower. Roberts v. Murray, 40 Misc. 339, 81 N. Y. S. 1023.

01. In settling a debt of a borrowing member to an insolvent building and loan association, interest at 6% is computed on the sum actually received and all payments are credited on the loan. Carman v. Carrico, 25 Key. L. R. 2143, 80 S. W. 216. Upon foreclosure of a mortgage against a member after insolvency, the mortgagor should be charged with the amount of his loan, with * 3 Cur. Law. BUILDING AND LOAN ASSOCIATIONS SS 4. 571 with earned premium, bid by him for priority of loan and deducted from the sum loaned. \[88\]

- 4. \_Termination and insolvency. Voluntary liquidation."--An association may go into voluntary liquidation and so defeat the right of a borrowing member to a settlement with it as a going concern. \[88\] Under a statute permitting corporations to go into voluntary liquidation by the written consent of the owners of a majority of the stock, a pleading setting up such liquidation of a building and loan association must allege that a resolution to go into liquidation was passed with the consent required by law. \[89\]
- _Receivership. \[90\]--A_ mere debtor of an association cannot maintain a bill to wind up its affairs and distribute its assets. \[91\] A borrowing member of an association cannot in a single bill in equity ask, as debtor, that his stock be declared illegal and his obligation on the loan canceled for usury, and also, as stockholder, ask to have the business of the association wound up and its assets distributed. \[92\] Upon the appointment of a receiver of an insolvent association, its business ceases and nothing remains but liquidation. \[88\] To authorize the court to enter judgment directing a receiver to proceed with winding up the affairs of the association, the report of the receiver must be reasonably certain and definite as to assets and liabilities of the association, and probable cost of settling. \[93\] Before judgment may be entered winding up the affairs of the association, proof must be heard on contested questions of fact raised by shareholders' exceptions to the receiver's report. \[94\] Only reasonable diligence is required of a receiver. \[95\]
- _Insolvency_ \[96\] of a building and loan association consists of its inability to perform the purposes for which it was created. \[97\] Insolvency is always a question of fact and is never presumed. \[98\] Mere deficiency of assets does not constitute insolvency, but merely a loss of capital stock and security, and depreciation of stock held by the members. \[99\] Payments on stock are liabilities in determining solvency. \[99\]
- \_Rights of withdrawing shareholders. \[99\]--The directors of a building and loan association cannot require a member to withdraw his investment, except in purvances. \[99\]
- 60. Authorites pro and con cited. Ott-- video that stockholders may withdraw, on tensoser v. Scott \[F18\]. 37 So. 161. 67. See I Curr. L 403. 68, 69. Yager v. National Bldg. & Loan Ass'n, 25 Ky. L. R. 1853, 79 S. W. 197. 70. See I Curr. L 402. 71. Day v. Nat. Mut. Bldg. & Loan Ass'n, 53 W. Va. 550, 44 S. B. 779. 72. Bill dismissed for multiflavousness. Day v. Nat. Mut. Bldg. & Loan Ass'n, 53 W. Va. 550, 44 S. B. 770. 73. Monier v. Clarke \[N. M.\] 75 P. 35. 74, 75. Steele v. New Park City Bldg. & Loan Ass'n, 24 Ky. L. R. 2803, 74 S. W. 177. 76. Laws 1902, 60, 5 S, requiring the receiver of a building association to "proceed Immediately" to convert assets Into cash, requires only reasonable diligence and speed, and does not require a sacrifice of the assets. People v. New York Bldg. Loan Banking Co., 41 Miss. 363, 84 N. Y. S. 844. 77. See I Curr. L 402. 78. Lewis v. Clark \[C. C. A.\] 129 F. 570. 79, 80. Floyd-Jones v. Anderson \[Mont\]. 16 P. 751. 81. So an association incorporated under Laws 1851, c. 122 is insolvent when unable to repay contributions of members for stock. People v. New York Bldg. Loan Banking Co., 41 Miss. 363, 84 N. Y. S. 844. 82. NOTE. Withdrawal. The rules of building and loan associations usually pro-
- 83 Curr. Law. BUILDING AND LOAN ASSOCIATIONS SS 4. 571 with earned premium, bid by him for priority of loan and deducted from the sum loaned. \[88\]
- 84. \_Termination and insolvency. Voluntary liquidation. \[97\]--An association may go into voluntary liquidation and so defeat the right of a borrowing member to a settlement with it as a going concern. \[98\] Under a statute permitting corporations to go into voluntary liquidation by the written consent of the owners of a majority of the stock, a pleading setting up such liquidation of a building and loan association must allege that a resolution to go into liquidation was passed with the consent required by law. \[99\]
- _Receivership. \[90\]--A_ mere debtor of an association cannot maintain a bill to wind up its affairs and distribute its assets. \[91\] A borrowing member of an association cannot in a single bill in equity ask, as debtor, that his stock be declared illegal and his obligation on the loan canceled for usury, and also, as stockholder, ask to have the business of the association wound up and its assets distributed. \[92\] Upon the appointment of a receiver of an insolvent association, its business ceases and nothing remains but liquidation. \[98\] To authorize the court to enter judgment directing a receiver to proceed with winding up the affairs of the association, the report of the receiver must be reasonably certain and definite as
  572Buildings and Restrictions SS 1.3Cur. Law.

sunance of a valid by-law.\[83\] A borrowing member of an association who gives notice of withdrawal does not become ipso facto a creditor of the association for the withdrawal value of his shares, or for the excess thereof over his indebtedness, so as to exempt his stock from its share of the general indebtedness.\[84\] A member who withdraws at a time when the association is in fact, though not notoriously, insolvent, no legal steps having been taken to wind up its affairs, has only the right to a pro rata share in the distribution of assets, not the right of a creditor.\[85\] The fact that an agreement was made between the association and the withdrawing member, compromising the latter's claim, does not change the rule.\[86\] But where a stockholder serves notice of withdrawal of stock, in accordance with the constitution and by-laws, and the claim, though persisted in, is not paid, such claim, after insolvency and receivership of the association, becomes a preferred one.\[87\] Where a member of a building and loan association has made full settlement and withdrawn therefrom, such settlement and withdrawal cannot be set aside by the association without a showing of fraud or bad faith.\[88\]

BUILDINGS AND BUILDING RESTRICATIONS.

SS 1. Public Regulation (572). SS 2. Linkility for Unsafe Condition of

SS 2. Private Regulation. Restrictive Cov. Premises (576). SS 4. Linkility for Negitement Operation of

EEURATORS (576).

SS 1. Public regulation.\[89\]--An ordinance prohibiting construction does not

over outside creditors of the assoclation. S85, Colin v. Wellford \[Va.\] 46 S. E. 780. Barnard v. Tomson \[1894\] 1 Ch. 374: Walton

It is immaterial that the fact of insolvency

v. Edge, 10 App. Cas. 33, 54 Law J. Ch. \[N.\] 8. J362, 52 Law T. \[N.\] 8. J363, 52 Law T. \[N.\] 8. J364: In re Midrebsorba, R. S. & C. Dist. Permanent Ben. S87. Slivers v. Merchants' & M. Sav. Fund

is no such right of priority, when at the time of giving or maturity of such notice,

the association was known to be Insolvent. In re Sunderland 36th Universal BIMg. Soc., 24 Q. B. Div. 394. The American cases adopt a different doctrine and hold that when an association is

in fact insolvent, a withdrawing member has

the right to a pro rata share only, even

though he believed the association solvent

when he gave his notice, Chapman

v. Young, 65 Ill. App. 131. An order for the

amount of his claim does not make him a

general creditor. Christian's Appeal, 102 Pa. 184; In re National Sav. Loan & Bldg. Ass'n's

Estate, 9 Vkylx, Note Cas. 79. A judgment

for the amount of his claims cannot be

forced by execution so as to cut out creditors or stockholders, but may stand as the

basis on which to compute his pro rata share on final distribution. Hannery v. En-

therpile Sav. Fund & Bldg. Ass'n, 16 Vkylx. Notes Cas. 450. See 1 Cur. L 402. S83. A by-law permitting the directors to

require the withdrawal of a member, to be designated at their pleasure, such selection

not being based on any equitable principle

or rule of general application, is invalid and

inoperative as to one who was a member

when the by-law was passed. Ottawa Mut.

Loan & Sav. Ass'n v. Merriman, 67 Kan. 779,

74 P. 256. S84. Coggeshall v. McGrath, 89 N. Y. S. 334. A member, appearing as a claimant upon

the estate of an insolvent association, "upon

the ground of his stock interest, is to be

treated as a member, and not as a creditor."

Walker V. Terry, 138 Ala. 428, 35 So. 466. S85. 466. S86. 466. S87. Slivers v. Merchants' & M. Sav. Fund

88, Noyter. Validity of regulations: Build-

In fact insolventing being justifiable only as an

exercise of the police power (as to which

see Constitutional Law, 1 Curr. L. 576 and

Muntipal Corporations, 2 Curr. L. 677,), they

must not only be designed to serve some

end of public welfare, but must be reasona-

ble in their character. Thus requirement of

a building permit is usually sustained

(Hasty v. Huntington, 155 Ind. 640, 5 N. E.

559), but arbitrary power to deny the same

must not be vested in the officer charged

with their issunce (Bootock v. Same, 55

Md. 400, 82 A, 665, 93 Am. St. Rep. 394 \[with

not\]; City of Slovak Falls v. Kirby, 6 S. D.

62, 60 N. W. 156; State v. Tenant, 110 N. C.

609, 14 S. E. 387. S88.

To sustain a regulation as to the height 3 Cur. Law. BUILDINGS AND RESTRICTIONS 1. 573

prohibit repair," but under a statute prohibiting enlarging of buildings, no substantial change will be permitted." A city council cannot be vested with discriminatory power in granting building permits," nor can it deny lawful permits," nor forbid the erection of a negro church on the ground that it is a nuisance," nor during the life of a general ordinance, cancel a building permit granted in conformity with its provisions." The inadvertent omission of a word in a permit will not be allowed to negative the authority therein granted." Increased danger of fire and general depreciation of value of neighboring property are not grounds for injunctive relief against the erection of a building." A city granting a building permit does not render itself liable for the negligent act of the builder."

The supervision of construction of buildings by public authorities is regulated by statute."

A certificate issued by the building inspector that a statute relative to fire escapes has been complied with relates to the building and is available to succeeding owners;1 it is conclusive as to compliance, and relieves the owner from any liability,2 but it must affirmatively appear that inspection has been made." The

601, 61 N. E. 851; Willsly v. Muldedy, 78 N. X. (the street below. Copeland v. Seattle, 33 316; Schott v. Harvey, 105 Pa. 223); or the wash. 415, 74 P. 582. maintenance of water closets, severe, etc. 99. The fact that the public buildings (Sprigg v. Garrett Park, 89 Ma. 406, 43 A. 813; Com. v. Roberts, 155 Mass. 281, 29 N. E. 852); or the maintenance of a water supply buildings and exact construction in con- on each floor of a teemment building (Health) ( superintendent of buildings of New York City, and not the state factory inspector, has exclusive jurisdiction in regard to fire escapes on factories within the city.\* Under the statute forbidding the obstruction of passageways in theaters by persons occupying them during a performance, a manager is liable for the penalty imposed when he permits people to stand in the space necessarily used as a passageway by those entering through a side entrance.\*

SS 2. _Private regulation. Restrictive covenants.\*_--Restrictive covenants run

escape that was sufficient under Act 1879 (P. L. 128), is sufficient under Act 1885 (P. L. 68). Id. P. L. 128, providing that "nothing in this act shall interfere with free escapes" favor, 161 Ill. 440, 43 N. E. 1076; Graham v. now in use and approved," does not relieve the execution of any other buildings on the escapes required by the act. Snyder v. Bonlight, 123 F. 817.

3. Certificate of inspection of ropes and chains no proof of inspection of starways. Snyder v. Bonlight, 123 F. 817.

1. History of legislation on subject re-viewed. City of New York v. Trustees of Salitors' Snug Harbor, 85 App. Div. 355, 83 N. Y. S. 442.

1. Laws 1897, pp. 263, 272, c. 378 (Charter 162, 173). Sturgis v. Hayman, 84 N. Y. S. 126.

1. NOTE. Building restrictions in decelai

The purpose of these is generally to prevent the creation of such buildings as will impair the value of the residue of the land belonging to the granator or conveyed to others. So long as the restriction is reasonable and in accord with public policy, no valid objection to it is discernible. These restrictions assume various forms. Some of them are directed toward the height, material, or value of buildings that may be constructed on the land conveyed. See Quatman v. McCray, 128 Cal. 255, 60 P. 856; Hobson v. Cartwright, 93 X. 568, 20 B. W. 831; Keening v. Ayling, 126 Mass. 404; Prink v, Hughes \[Mich.\] 94 N. W. 601; Clark v. Martin, 49 Pa. 288. Others place limitations on the building line, requiring that no building shall be located less than a certain specified distance from the street or approach to within a certain distance of the boundary of the land. See Evertsen v. Gerstenberg, 186 Ill. 344, 57 N. E. 1051; Herrick v. Marshall, 66 Me. 455; Linze v. Mixer, 101 Mass. 512; Atty Gen. v. Gardiner, 117 Mass. 492; Sanborn v. Rice, 129 Mass. 387; Nowell v. Boston Academy, 120 Mass. 209; Payson v. Durham, 141 Mass. 547, 8 N. E. 708; Hamel v. Werner, 144 Mass. 396, 11 N. E. 684; Atty Gen. v. layer, 148 Mass. 584, 20 N. E. 451; Atty Gen. v. Algoruin Club, 153 Mass. 447, 27 N. E. 2; Smith v. Bradley. 154 Mass. 227, 8 N. E. 14; In re Welsh, 175 Mass. 68, 55 N. E. 1043; Best V. Nagle, 182 Mass. 495;

65 N. E. 842; Sutcliffe v. Eisele, 62 N. J. Eq. 222, 50 A. 68. A pizza attached to a house, whether covered by its own roof or by an extension of the roof of the house, if it projects beyond the line prescribed, violates the restriction or condition against the construction of buildings nearer than a specified distance from the street. Bagnall v. Davies, 140 Mass. 6, 2 N. E. 786; Reardon v. Murphy, 163 Mass. 501, 40 N. E. 854. So does a bay window, one story high and built up from the foundation wall (Kirkpatrick v. Peshne, 24 N. J. Eq. 206), and a pore built upon brick foundations. _rorefed and perma-_ (Mich.).

The purpose of the present paper is to provide a brief description of the problem. In this section, we describe the details of the paper. In Section 2, we describe the details of the paper. In Section 3, we describe the details of the paper. In Section 4, we describe the details of the paper. In Section 5, we describe the details of the paper. In Section 6, we describe the details of the paper. In Section 7, we describe the details of the paper. In Section 8, we describe the details of the paper. In Section 9, we describe the details of the paper. In Section 10, we describe the details of the paper. In Section 11, we describe the details of the paper. In Section 12, we describe the details of the paper. In Section 13, we describe the details of the paper. In Section 14, we describe the details of the paper. In Section 15, we describe the details of the paper. In Section 16, we describe the details of the paper. In Section 17, we describe the details of the paper. In Section 18, we describe the details of the paper. In Section 19, we describe the details of the paper. In Section 10, we describe the details of 3 Cur. Law. BUILDINGS AND RESTRICTIONS SS 2.575

**with the land**7\*\* and are strictly construed.\*Nothing will be regarded as a violation thereof that is not in plain disregard of its terms,' thus, a covenant against the erection of tenement houses does not forbid the erection of a modern apartment house,10 nor does a covenant against the erection of a building restrict the erection of a wall.11 A restrictive covenant in a lease is not violated by a subletting for the forbidden use.12 They will not be enforced against trivial violations, especially where there has been a substantial violation which has been allowed to remain unmolested;13 they are terminated when the occasion for them ceases;14 and are waived by a failure to enforce them,18 but not by making a more favorable covenant to subsequent grantee of lots in same plat,16 nor by accepting payment of rent.17 That restrictive conditions may be available to other grantees of lots in the same plat, a general scheme whereby restrictions were to apply to all the lots must be shown,18 and such a covenant cannot be enforced by one not an owner within the plat.19 A covenant which does not pass any estate may be a general scheme which when acted upon will be binding on those joining therein,20 and a grantee

suitable one for residence, but owing to be built on the rear 10 feet of a lot is not the general growth of the city and the typical of there is nothing built on it. Id. present use of the whole neighborhood for business, this purpose can no longer be achouse, is inapplicable, Kitching v. Brown, complished, no matter how rigidly the re-scription is enforced, it is oppressive and 11. Clark V. Lee \[Mass.\] 70 N. E. 47. inequality to give effect to it, and equity will not emjoin its violation, though when there is no remedy at law the bill may be retained for the purpose of assessing damages. Jackson V. Stevenson, 165 Mass., 496. Co. \[IN. J. Eq.\] 55 A. 994.

31 N. E. 691, 32 Am. St. Rep. 476. See too

14. A. granted solid adjoining land with a Roth v. Jung, 19 App. Div. 17 N. Y. S. 822.

2 Equity will refuse to enforce a covenant not to devote a certain property to business purposes where there has been such a change in the character of the neighborhood by the building of an elevated railway and the increase of business houses, as to defeat the object of the agreement, and render it indefinitely to deprive the owner of the privi-lege of using his property as its surroundings required. Trustees of Columbia College v. Thacher, 87 N. Y. 311, 41 Am. Rep. 365. And so where there is a covenant against the erection of cheap buildings, if conditions so change that only such buildings are suited to the vicinity, the covenant will not be enforced. Page v. Murray, 46 N. Y. Zel. 325, 19 A. 11.--From note to Wakefield v. Van Tassel, 95 Am. St. Rep. 208. See 1 Curr. L. 404.

7. A condition that a deed shall be void if indications are sold on the premises. Jetter v. Lyon \[Neb.\] 97 N. W. 596. Covenant in a lease against selling liquor. Grantee Bldg. Corp. v. Green R. I. 57 A. 649.

1. That nothing but a dwelling house should be erected south of the railroad track. Later the track was moved farther north. The covenant did not apply to the strip thus added. Stein v. Lyon, 91 Ap. Div. 593, 87 N. Y. S. 125. Restrictive building covenants in deeds are to be construed most strongly against the covenant, but in accordance with the intent of the parties as expressed or implied from surrounding circumstances. Deeves v. Constable, 87 App. Div. 352, 84 N. Y. S. 892.

1. Thindowelling household be erected not violated by an addition to a church which contained a study and living rooms. Crofton v. St. Clements Church \[Pa.\] 87 A. 570. A restriction that no building should with actual notice thereof will be restrained from violating it, though his ded was recorded first.\[21\]

SS 3. \_Liability for unsafe condition of premises.\[22\]--A municipal corporation is exempt from liability for injuries sustained through its negligence in the management of a building operated by it in its governmental capacity,\[28\] but private owners\[34\] and occupants must use ordinary care to keep their premises in such condition that those who come there by invitation may not be exposed to danger,\[28\] and are liable, though they did not know of the defect, if they could by the exercise of due diligence have discovered it.\[40\] Where a construction company is engaged in repairing a building which the owner continues to use, the construction company must use reasonable care to protect the employes of the owner.\[41\] The only duty owed a trespasser is to refrain from willfully injuring him.\[42\]

It is negligence to leave debris scattered over a yard,\[29\] or to leave obstacles in such a position that they are liable to fall,\[43\] but it is not negligence to leave the door of a vacant house open,\[44\] nor to leave a vacant house without inspection for a month.\[22\]

Evidence showing the dangerous condition of the premises,\[28\] or notice thereof,\[45\] is admissible. The question of contributory negligence is ordinarily for the jury.\[46\]

SS 4. _Liability for negligent operation of elevators.\[47\]_--Liability for accidents falls on the party who has control of the elevator.\[48\]

21. Several beach front owners covenant--ed that they would not build on the ocean--bury. Wear, 89 Minn, 241, 94 N. W. 683.

side of a board walk which the city was allowed to build under such covenant. Atlan-tlc City v. New Auditorum Pier Co. \[N. J. Eq. 1 58 A. 728.

22. See I Curr. L. 406.

01. School building. Ernst v. West Cov-

and against a wall fell without being touched, ington, 26 Ky. L. R. 107. 76 S. W. 1089.

Note: Counties are not liable for injuries caused by negligence in construction or

wavy a year before it fell; was not supmanittenance of public buildings. Kineval v. J. Hardin County, 53 Iowa, 480, S. N. W. 589.

by wall. Travers v. Murray, 87 App. DIV. Hamilton County Com's v. Miglest, 7 Ohio, 552, 84 N. Y. S. 558.

86. 19. Sheppard v. Pulaski County, 18 Ky.

01. Chill playing therein was injured by L. R. 672, 18 S. W. 15; Vigo County Com's v. Daily, 132 Int. Th. 73, 11 N. E. 531; Hill V. 0, her O'Connor v. Brucker, 117 Ga. 451, Boston, 122 Mass. 344: Eastman v. Meredith, 43 S. E. 731.

36 N. H. 284; Hughes V. County of Monroe, 38. Gas leakage caused explosion. Consol. Gas Co. v. Getty, 96 M. 683, 54 A. 660.

note.

34. Stair broke down and injured prospective lessee. Smith v. Jackson \[N. J. Law\] 56 A. 118.

01. Injury by the breaking of rapidity moving belt in a creamery, which the owners knew was quite liable to break. True v. Meredith Creamery \[N. H.\] 65 A. 893. Where there was no fault in the construction of a cellar door in the sidewalk, the owner of the premises not in possession is not liable for injuries sustained by one falling into it. Fehlhauer v. St. Louis \[Mo.\] 77 S. W. 84.

License fell down an unguarded cellarray. MoHugh v. Kerr \[Pa.\] 57 A. 520. Injury by breaking of platform scales. McIntyre v. Brualder Vacuum Fermentation Co. \[Mich.\] 95 N. W. 527.

95 N. W. 527.

26. Evidence led to show that he should have discovered a defect in platform scales. MeIntyre v. Pfaudler Vacuum Fermentation Co. \[Mich.\] 95 N. W. 527.

01. Gile v. Bishop Co., 184 Mass. 413, 68 N. E. 837.

01. One fell into an excavation. Freder-

01. Where debris, sticks, and stones were lying in a yard, evidence held to show a dangerous condition. Wesener v. Smith, 89 App. Div. 211, 86 N. T. 8. 837.

01. Door taken from its hinges and lean-

40 against a wall fell without being touched, and injured one. Kiffke v. Webb \[VVis.\] 97 N. W. 901. Chimney had been seen to

59 Nav a year before it fell; was not supmanittenance of public buildings. Kineval v. J.

ported or secured in any manner to a near-

59 Nav a year. Travers v. Murray, 87 App. DIV.

59 Nav a year before it fell; was not supmanittenance of public buildings.

## 3 Our. Law. BUILDINGS AND RESTRIRCTIONS SS 4.

Some courts seem to hold that operators of elevators must use that degree of care required of common carriers of passengers,\[88\] but others require only the highest degree that a prudent person would exercise under the same circumstances,\[88\] and others merely the exercise of ordinary care,\[40\] and this only toward those on the premises by invitation.\[41\] Where an occupant directs one on his premises by invitation to use an unsafe elevator, he is liable for injuries sustained.\[42\] The operator must give a passenger a reasonable opportunity to alight,\[41\] and negligence in attempting to alight is no defense where the passenger is injured through the subsequent gross negligence of the operator.\[44\]

Elevator shafts in rooms where customers or visitors are liable to go must be guarded,\[48\] but to show negligence it must appear that the opening was so situated as to be dangerous,\[46\] and that persons injured were on the premises by the express or implied invitation of the owner.\[47\] The question of negligence is ordinarily one for the jury.\[48\]

While it is ordinarily true that one who walks into an open elevator well is guilty of contributory negligence,\[48\] the contrary may be shown,\[49\] and it is generally a question for the jury.\[41\]

Ing. Held no contributory negligence, open, the landlord being obligated by lease Brown v. Stevens \[Mich.\] 99 N. W. 12.

So. See I cur. L. 499.

87. Where an owner of a building took care of the elevators, testimony of a lessee Breuer v. Frank, 2 Ohio N. P. (N. S.) 69.

of a part of the building held sufficient to store floor left open, people standing round trol. Humphrey v. Portmouth T. & G. Co., and plaintiff, a customer, not sufficiently warned. Held negligence, Brown v. Ste-a. deed of trust who constitutes the trustee bus \[Mich.\] 99 N. W. 12. Elevator in dark his attorney In fact to take charge of the bundle remains the principal of an elevator - see into shaft in daytime, door partly open operator employed by the trustee. Luckel v. Century Eldg. Co., 177 Mo. 608, 76 E. W.

88. Where an incarn was directed by the work of the author. Held to allow negligence, a freight elevator, petition for injuries held - to allow negligence. Haye v. Pitts- not to allege the relation of passenger and carrier, and owner was liable only for ordinary care. Downe v. Seeley \[Conn.\] 56 A. 602.

01. Where a passenger was caught in the door of an elevator and injured by its moving up and down, evidence held to show negligence. Luckel v. Century Eldg. Co., 177 Mo., 608, 76 E. W. 1035.

01. Burgers v. Stowe \[Mich.\] 98 N. W. 29.

01. Not to one on his premises doing business with his servants. Muench v. Heldemann, 119 WIs. 441, 96 N. W. 80.

Whether opening the gate and calling "elevator" was an invitation to enter was a question for the jury. Burgess v. Stowe \[Mich.\] 98 N. W. 29.

42. Ford v. Crigler, 25 Ky. L. R. 66, 74 S.

W. 661.

43. Luckel v. Century Eldg. Co., 177 Mo. 608, 76 S. W. 1035.

01. Cagight between the roof of the car and floor of the building. Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S. W. 1035.

01. Shaft in a dark storage room. Evidence held sufficient to show negligence. Reld v. Linck, 206 Pa. 109, 55 A. 849. Evidence that other persons had previously fall-en down the shaft was admissible. Id. Embloge fell through and was killed. Hillebrand v. Standard Biscutt Co., 139 Cal. 233, 78 F. 163. Where an employee of a tenant of a building was injured by falling down the shaft of an elevator, the door of which was $ Curr. Law--37.

01. Curr. Law--37.

Points already covered need not be made the subject of a subsequent instruction."

Admissions of the owner of the way in which the accident was caused are admissible," but it was no error to refuse a question relative to signals, where the statute requiring them was recently enacted and the person injured had no notice of it." To hold an owner liable on imputed knowledge, the facts constituting it must be clearly alleged, especially where he suffers a default."

**BURGLARY.**

**SS 1. What Constitutes (578).**

**SS 2. Evidence. Sufficiency (581).**

**SS 2. Indietment and Proof Therender (579).**

**SS 1.**_What constitutes." Breaking and entry."_--To constitute a breaking, defendant's acts must have made an entry possible." Unlocking" or otherwise unfastening doors" is sufficient. An entry which is not in itself a trespass may be sufficient, if made with felonious intent."

shatt when car was not there. Bremer v. \[76 Am. Dec. 602; Anderson v. State, 48 Ala. Pleiss \[Wis.\] 98 N. W. 945. Where a server was injured by the autocatalytic opening of a trap door covering an elevator shaft, evidence held to show contributory negligence. Connors v. Merchants' Mfg. Co., 184 Mass. 466, 69 N. E. 218.

\*\*SS 3. Where a five-year-old boy, visting a store with his grandmother, went away from her and fell down an open elevator well, evidence held insufficient to show contributory negligence. Hayes v. Pittsburgh C0., 188 Mass. 262, 67 N. E. 249. Where a new employee fell down an open elevator well, located in a dark place, evidence held to show that be was in the exercise of due care. Humphreys v. Portsmouth T. & G. Co., 184 Mass. 422, 68 N. E. 836.

**SS 4.** Whether an employee was guilty of contributory negligence in stepping on a trap door over an elevator shaft was for the jury. Hillebrand v. Standard Physicu Co., 139 Cal. 233, 73 P. 163. A submission of all the evidence of contributory negligence is sufficient, and it is no error to refuse to charge certain parts thereof. Hayes v. Pittsburgh C0., 183 Mass. 262, 67 N. E. 249.

**SS 5.** Whether an employee was guilty of contributory negligence in stepping on a trap door over an elevator shaft was for the jury. Hillebrand v. Standard Physicu Co., 139 Cal. 233, 73 P. 163. A submission of all the evidence of contributory negligence is sufficient, and it is no error to refuse to charge certain parts thereof. Hayes v. Pittsburgh C0., 183 Mass. 262, 67 N. E. 249.

**SS 6.** Whether one who stepped into an elevator well when the owner opened the gate and called "elevator" was guilty of contributory negligence was for the jury. Burgess v. Stowe \[Micb.\] 96 N. W. 29.

**SS 7.** Relative to operator's and passenger's duty. Luckel v. Century Bldg. Co., 177 Mo. 608, 76 S. W. 1035. It was not error to refuse to instruct that recovery could not be had because of the defective shaft, where the court had already instructed that recovery could not be had unless entrance to the elevator was made at the owner's invitation. Burgess v. Stowe \[Micb.\] 96 N. W. 29.

**SS 7.** Manner in which a pulley was attached to the ceiling. Muench v. Heinemann, 119 Vis. 441, 96 N. W. 800.

**SS 7.** Stat. 1901, c. 439. Connors v. Merchants' Mfg. Co., 184 Mass. 466, 69 N. E. 218.

**SS 8.** Downs v. Seeger \[Conn.\] 96 A. 502.

**SS 9.** Note: Burglarky is an offense against the security of the dwelling house or habilation. It is the possession that is invaded, and the crime is not against the buildings as property. State v. Toole, 29 Conn. 342, 3 Cur. Law. BURGLARY SS 2. 579

_Intent._"--Felonions intent in breaking and entry is essential." Such intent may be inferred from the breaking, entry and carrying away of property."

_The degree_ of the offense is made by statutes to depend on the time of, or special circumstances attending, its commission,"65 and on this issue the mental condition of defendant, such as intoxication, is irrelevant, being relevant only on an issue of intent."

_Accomplices._"--One who aids or abets in the breaking and entry,"68 or in concealment of the stolen property," will be treated as an accomplice. Mere receipt of stolen goods without knowledge of the theft will not make one an accomplice in the burglary." The accomplice of one who breaks and enters a building may be convicted of an attempt to break and enter a building."

_Nature and situation of building._"--One charged with burglary of a dwelling house may be convicted on proof of burglary of a barn within the curtilage." A hotel is a building within the meaning of a statute defining burglary as a breaking or entering a dwelling house "or other building."74 To constitute the offense of burglary of a private residence,"8 the family need not be personally present at the time of the burglary." A flat car is not a "railroad car" within the meaning of a burglary statute."

SS 2. _Indictment and proof thereunder._"--The sufficiency of the indictment"8 will of course be determined by reference to the statute under which it was drawn." If an indictment charging lareeny from the house is good under either

of burglary If he opens a closed door or

74. Bruen v. People, 206 Ill. 417, 69 N. E. raises aash and enters the building, not

01.

for the purpose of using the house as a

75. The punishment for burglary in the

lodging place, but with intent to steal his

daytime is not changed by the fact that the

master's goods. State v. Howard, 64 S. C. building

344, 42 S. E. 173, 58 L. R. A. 685.

62. See 1 Curr. L11.

01. State v. Tough \[N. D.\] 96 N. W. 1025.

01. Under White's Ann. Pen. Code, art.

Intent to commit rap. State v. Worthern

100 N. W. 320.

83. C. 526.

01. State v. Peebles \[Mo.\] 77 S. W. 618.

01. Day or nighttime in California. Peo-

loaded on a flat car and covered with a

ple v. Dowell, 141 Cal. 493, 75 P. 45. Breaking Into a chicken house is burglary in the

Held, not burglary. State v. Pettl, 32 Wash.

second degree, regardless of the purpose for

which the chickens were kept there. State

v. Helms \[Mo.\] 78 S. W. 592.

79. Incomplete \[N. D.\] 96 N. W. 1025.

01. See 1 Curr. L. 829, 81. 87-92.

01. State v. Peebles \[Mo.\] 77 S. W. 518.

An accomplice must have known the nulsarl intent of the

principal. Glenn v. State \[Tex. Cr. App.\]

76 S. W. 757. Conviction for breaking and

entering an office, not adjoining to or occen-

piled with a dwelling house, in the night-

time, affirmed, the proof showing accused

aided and abetted in commission of the offense. People v. McDonald \[Mich.\] 94 N. W.

1064.

0001. A sister who assisted In hiding stolen

goods after the burglary. McDaniel v. State

(Tex. Cr. App.) 1 S. W. 501.

70. Though the circumstances were such

as to put him on inquiry. Short v. Comm., 25

Ky. L. R. 451, 76 S. W. 11.

71. Sufficiency of instruction on the point.

State v. Mahoney \[How\] 97 N. W. 1088.

72. See 1 Curr. L 411.

01. A statute (Pub. Acts 1899, No. 34, p. 56), providing punishment for burglary of

barn or outbuilding, did not change the common law of burglary. People v. Griffith

74. Bruen v. People, 206 Ill. 417, 69 N. E.

01. The punishment for burglary in the

long place, but with intent to steal his

daytime is not changed by the fact that the

master's goods. State v. Howard, 64 S. C. building

344, 42 S. E. 173, 58 L. R. A. 685.

62. See 1 Curr. L. 411.

01. State v. Tough \[N. D.\] 96 N. W. 1025.

01. Under White's Ann. Pen. Code, art.

100 N. W. 320.

64. State v. Peebles \[Mo.\] 77 S. W. 618.

01. Day or nighttime in California. Peo- of two sections of the statute, the court may treat it as drawn under either. \[81\] No distinction need be made in the indictment between defendants who are principals. \[82\] An indictment which, after stating the county, alleges that defendant did "then and there," commit the offense, sufficiently alleges the venue of the burglary." An indictment to meet anticipated proof may charge night and day burglary in different counts. \[94\] Ownership of the building burglarized must be alleged and proved \[95\] unless it is otherwise sufficiently described, so that defendant cannot be misled. \[96\] Where the complaint and information both identify a building by street and number, there is no variance, though the terms of the description are not otherwise identical. \[97\] Where two or more persons own the property in common or jointly, the ownership may be alleged as in either or all. \[98\] An indictment for burglary of community property must allege ownership in the husband. \[99\] Ownership of the property in the building, which it is charged: accused intended to steal, need not be alleged; \[99\] but, if alleged, must be proved as laid, and a failure to do so constitutes a fatal variance. \[91\]

\_Sufficiency of proof; variance. \[92\]--Proof of commission of the crime on a day other than that charged is sufficient if the defendant is not thereby prejudiced. \[99\] Occupancy and possession is all that is required to prove ownership in burglary. \[94\] A slight variance between the allegations of the indictment or information and the proof as to the description \[98\] or ownership \[99\] of the premises burglarized will be disregarded if the defendant is not thereby prejudiced. \[97\] Where defendant is charged with an attempt to break and enter a building, proof of an actual breaking and entry is not a variance, but establishes the attempt. \[99\] There may be a conviction under an indictment charging a statutory burglary, though the evidence shows the greater offense of common-law burglary, since such conviction would sustain a plea of former jeopardy upon an indictment for burglary based on the 3 Cur. Law. BURGLARY SS 3. 581

same facts." Where burglary of a private residence in the daytime and night-time are made separate offenses and an indictment alleges both in different counts, but the evidence clearly showed burglary in the nighttime, it was error to submit the issue of burglary in the daytime.1

SS 3. _Evidence. Sufficiency._"--Recent unexplained possession of goods shown to have been feloniously taken by means of a burglary is prima facie evidence of guilt of burglary,4 providing the jury find that the breaking and entering and stealing of the goods were parts of the same transaction.4 This prima facie showing is not a presumption requiring, but only authorizing, conviction,5 and it may be overcome by a reasonable explanation of his possession.4 More possession of recently stolen property, without evidence of a breaking, is not sufficient." But the evidence need not show immediate, actual possession of the goods at the time when defendant was taken.8 Proof of the possession of stolen property by defendant places on him the burden of explaining his possession,9 and the giving of a reasonable explanation does not place on the state the burden of proving such explanation false.10 The identity of the stolen goods, having no distinctive earmarks, may be established by coincidence in quantity and kind.11 The elements of the crime,12 the fact of its commission by defendant,14 and the fact that it was committed within the limitation period,14 may be shown by circumstantial evidence. For sufficiency of evidence in particular instances, see cases cited in note.18

\_Admissibility.\_14--Evidence as to the location of stolen property,17 or as to keys,18 or other property found in defendant's possession at time of arrest,18 and of his conduct and statements at that time,19 is competent, and the property itself

99. State v. Staton, 133 N. C. 642, 45 S. Jonee v. Com., 25 Ky. L. R. 2062, 79 S. W. E. 362. 1188. Circumstantial evidence showing possession of stolen goods and other circumstances. 580. 2. See 1 Curr. L. 412. 3. Instruction upheld and conviction afterward. People v. Lang, 142 Cal. 482, 76 P. 232. 4. State v. Brady, 121 Iowa, 561, 97 N. W. 62. 5. State v. Brady, 121 Iowa, 561, 97 N. W. 62. 5. State v. Brady, 121 Iowa, 561, 97 N. W. 62. 6. 7. 8.

so found is admissible.21 Evidence of other similar offenses is inadmissible unless some connection with the offense charged is shown.22 But where there were two or more burglaries at about the same time, evidence as to one may be admitted on trial of another when a part of the res gestae and tending to connect defendant with the offense charged.23 The condition of the house at the time defendant was seen leaving it may be shown,24 but evidence by prosecuting witness that since the burglary he put a lock on the door and carried the key is inadmissible to show he had control at the time of the burglary.25 A confession is admissible if not exorted by fear and violence.26

SS 4. \_Instructions and verdict.27--\_The defendant is entitled to an instruction to the jury on the definition of the crime he is charged with intending to commit.28 Instructions based on defendant's testimony,29 or statements testified to by another witness,20 or on defendant's theory of the case,21 should usually be given. As to propriety of instructions on particular issues,22 or the necessity of a charge based on circumstantial evidence,23 see cases cited in the notes.

One indicted for burglary and larceny may be convicted of lareny only,24 or may be convicted of burglary and acquitted of the accompanying larceny.28 A verdict of 30 years confinement for burglary of a private residence is not a "cruel and unusual punishment.29 The value of the property stolen is immaterial in fixing the punishment.27 A verdict that "the jury find defendant guilty as charged in the indictment, assess his punishment in the penitentiary for two years," is suffi 3 Cur. Law. CANALS. 583

ciently intelligible. \[48\] Where the indictment charges day and night burglary in different counts, a verdict of guilty will be imputed to the count justified by the evidence. \[38\]

**CANALS.**\*\*\*\*

The right of eminent domain when given to a canal company is, as in all cases, strictly limited in its exercise to the terms of the grant. \[41\] Where a canal is a public highway, the abandonment of a part of it will not affect the status of what remains in use. \[42\] By observing certain conditions, railroad companies have the right to bridge canals, \[43\] but the fact that such conditions will be violated cannot be raised on an appeal from an order granting the right to erect the bridge. \[44\] The transferee of the state succeeds to the duties of the state with respect to the canal. \[45\]

A canal company is liable for damages by flooding the lands of abutting owners, \[46\] though the work be not negligently done, \[47\] and such damages are not awarded in condemnation proceedings. \[48\] Liability for negligence does not arise from a failure to guard a canal. \[49\]

Whether the exercise by a transferee of a franchise granted to the original company is ultra vires is a question between the state and purchaser, \[50\]

entering in the daytime." State v. Hullen, \[30\] velle v. New Orleans & S. F. R. Co., 110 La. 133 N. C. 656. 45 S. E. 513. 38. Cabellero v. State \[Tex. Cr. App.\] 80 45. To maintain bridges over the canal, \[30\] S. V. 1014. 39. Miller v. State \[Tex. Cr. App.\] 77 S. 800; State v. Lewis \[Mo.\] 78 S. W. 671. 40. 40. Franchise by compact between states: Where a compact entered into between Virfimia and North Carolina (2 Rev. St. p. 225) 513. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 41. 48. 49. 42. 43. 45. 48. 49. 40. 41. 43. 45. 47. 48. 49. 42. 44. 46. 48. 49. 43. 47. 49. 44. 45. 48. 49. 45. 49. 46. 47. 48. 49. 48. 49. 40. 41. 49. 42. 45. 49. 41. 42. 43. 44. 46. 47. 48. 49. 45. 49. 46. 47. 48. 49. 48. 49. 49. 40. 41. 42. 44. 49. 41. 43. 44. 45. 46. 47. 48. 49. 49. 41. 42. 44. 45. 47. 49. 48. 49. 49. 40. 41. 44. 49. 42. 45. 49. 41. 44. 46. 48. 49. 42. 45. 47. 49. 48. 49. 49. 40. 41. 44. 49. 42. 45. 49. 43. 44. 46. 47. 48. 49. 49. 41. 44. 45. 49. 42. 46. 47. 49. 48. 49. 49. 40. 41. 44. 49. 42. 45. 49. 43. 44. 46. 48. 49. 44. 47. 49. 45. 49. 46. 47. 48. 49. 49. 48. 49. 49. 49. 49. 40. 41. 44. 49. 42. 45. 49. 43. 44. 46. 47. 48. 49. 49. 41. 44. 49. 42. 45. 49. 44. 46. 47. 49. 48. 49. 49. 49. 49. 40. 41. 44. 49. 42. 45. 49. 43. 44. 46. 47. 49. 48. 49. 49. 49. 49. 40. 41. 44. 49. 42. 45. 49. 44. 46. 47. 49. 48.

Cancellation of instruments SS 1. 3Cur. Law.

CANCELLATION OF INSTRUMENTS.61

**SS 1. Nature of Remedy (S84).**

**SS 2. Cause of Action and Grounds for Re- (S85).**

**Ref (S85). Conditions Precedent (S87).**

**SS 3. Procedure (S90).**

**SS 4. Relative of the number of instruments or contracts is a purely equitable remedy,88 and cannot be maintained or brought in a court of law.84 Having acquired jurisdiction in a suit for cancellation, the equity court will retain it to settle the equities between the parties,85 and may grant relief upon both equitable and legal rights,86 providing legal relief is asked for in the prayer,87 and necessary facts are pleaded.88 But the court cannot grant relief inconsistent with the cause of action pleaded,89 or based on findings unwarranted by the evidence or the prayer for relief.89 On the other hand, cancellation may be granted in a suit brought for another purpose, the prayer being for general relief and the proof warranting such a decree.81**

**SS 5. The title includes cases in which can- for her daughter's children.**

**C. Kester v. Cu- **c**ellation of such instruments as deeds or mortgages of real property, leases, chattel or mortgages, Insurance policies and promis- **c**are being taken of them by their children.**

**Sec 6. The dead was set aside for incompetency, annulment or recission of contracts has been the relief sought.**

**The titles**
**Frandulent**
**Conveyances, 2 Curr. L. 116;**
**Frand**
**and**
**Unde**
**Influence, 2 Curr. L. 104, and**
**Mistake**
**and**
**Acedent, 2 Curr. L. 903, respectively treat of the nature, elements and effect of fraud such as will avoid a transfer to defeat creditors and purchasers in good faith, of fraud or undue influence**

**having a like effect between the parties, and**

**of**
**Mistake**
**and**
**acedent**
**having that effect.**

**for**
**a**
**of**
**Mistake**
**and**
**acedent**
**having that effect.**

**Mistake**
**and**
**acedent**
**having that effect.**

**Mistake**
**and**
**acedent**
**having that effect.**

**Mistake**

**and**
**acedent**

have that effect.\*\*

**Mistake**

**and**
**acedent**

have that effect.\*\*

**Mistake**

**and**
585

3 Cur. Law. CANCELLATION OF INSTRUMENTS SS 2. 585

It was held in California that, within the meaning of statutes of limitation, a suit to set aside a conveyance for fraud was a suit for the recovery of real property,"a in Kansas, the limitation statute governing actions for fraud was held to apply."

_Adequacy of remedy at law_" will, as in other cases, oust equity jurisdiction." If the averments of the bill show the instrument to be absolutely void, it will not be set aside in equity, as plaintiffs have in such case a complete and adequate remedy at law." Suit will not lie for cancellation of an instrument which is a mere receipt, since its terms may be contradicted or varied by parol, thus giving an adequate remedy at law."

A Federal court of equity will not take jurisdiction of a suit for the delivery up and cancellation of a policy when misrepresentations and concealment can be perfectly well established in a defense at law in an action on the policy." The rule is not altered by the fact that suit has been, or may be brought, in a state court, where such defense cannot be made, if the right of removal to the Federal court exists;" and it is immaterial that such removal will result in a forfeiture of the company's license to do business in the state, since such forfeiture is the result of the company's own act."

3 2. _Cause of action and grounds for relief._"--Equity will ordinarily grant granted, though the prayer be for specific court, _et_, \_et relief when the instrument or contract sought to be canceled or set aside was procured by fraudulent misrepresentations71 or other fraud,78 or duress,74 or undue influence, especially when the parties to the transaction stand in a fiduciary relation.78 Relief on the ground of fraud will not be granted if it appears that the fraud was not directly connected with the transaction,79 or that the petitioner has not suffered injury or cannot show some special ground for equitable relief,71 or that the 'fraud was made possible by plaintiff's agent, the other party acting in good faith.78

A mistake of fact is ground for the remedy, whether mutual,79 or unilateral,80 but a mistake of law, unaccompanied by special circumstances, such as misrepresentation, undue influence, or misplaced confidence, is not.81

Conveyances made82 or recorded82 without authority may be set aside. Fail-

the only party interested, the patent is

feeble-minded foster sister to convey, there

charged to have been obtained by fraud in

was found to be a fiduciary relation, and

representations or conduct; second, where

the land by appropriate reservation is not

71 N. E. 422. Where a wife executed a dec-

subject to patent, but is nevertheless

functionally patented; third, where the land,

though subject to patent in the ordinary ad-

milstration of the land office, is patented

to the wrong person, either through fraud

or by reason of mistake or inadvertence."

U. S. v. Bell Tel. Co., 197 U. S. 235, 17 S. Ct.

809, 42 Law. Ed. 144. Quoted in Lynch v.

U. S., 13 Okl. 142, 73 P. 1095.

72. Misrepresentations as to purchaser,

A Catholic corporation, against which seller

was prejudeded. Thompson v. Barry, 184

Masa. 429, 68 N. E. 674. False representations and promise of marriage by married

man held sufficient ground for setting aside

conveyance. Harris v. Durmont, 207 Ill. 583,

69 N. E. 811. A false representation that de

fendant would take up and cancel two other

mortges if plaintiff would execute to him

a new mortgage, and failure of the mortgage to carry out the agreement is sufficient ground for cancellation of such mortgage. Hill v. Getts \[N. C. J 47 S. E. 449. A railway company fraududently represent

ed that it would build through a rival town

if certain notes were not given, when in

facet, it had already contracted to build

through plaintiff's town. Notes given were

canceled. Highower v. Mobile, J. & K. C. R. Co. \[Miss.\] 36 S. 82. A petition seeking

cancellation of conveyance and alleging

fraudulent misrepresentations as to value

of mineral leases given in exchange for feed

of land, states a cause of action. Cooper v. Muggard \[Tex. Civ. App.\] 17 S. W. 607.

73. Evidence held to show defendant's

agent knew of and participated in fraud in

proving deck, which is set aside. Schreck

hise v. Wisconsin \[Va.\] 45 S, E. 745. Where

one who has promised to leave property to

a person at his death conveys it to a third

person in fraud of the promise, a cause of

action at once arises to set the conveyance

side. Teske v. Dittherner \[Neb.\] 98 N. W.

57.

01. A married woman who makes a con-

veyance in consequence of a threat that her

husband will be prosecuted for forgery and

a promise that he will be protected if the

conveyance is made is not debarred from

relief under the maximin in part delite, since

the parties are not in an equal position, and

the conveyance may be set aside for duress.

Turner v. Overall, 173 Mo. 271, 78 S. W. 644.

75. Where a lawyer induced his ignorant,

01. Whether a lawyer induced his ignorant,

01. A mutual mistake of fact, if material

is ground for rediscision or cancellation of

the contract by either party. Lease canceled on showing of mutual, material mis

take as to condition of premises. Barker

v. Fitzgerald, 105 Ill. App. 536. Where the

instrument intended by both parties to embody a contract of conditional sale was

canceled in the form of a chattel mortgage,

the instrument was canceled, in suit for re-

plevin of plano solo. Kimball Co. v. Deacon, 102 Mo. App. 45, 74 S. W. 427.

80. But the court said that when the mis-

take is mutual, the remedy is reformation.

Deed conveying property to order rescinded

for unilateral mistake. Wirschng v. Grand

Lodge of Free and Accepted Masons \[N. J.

Eq.1 56 A. 713.

81. Norris v. Crowe, 206 Pa. 438, 55 A.

01.

01. Contract of exchange of lands set

side because made without authority from

plaintiff church corporation. North Louis-

lana Baptist Assn v. Milliken, 110 La. 1002,

83 S. 264. In foreclosure action, the mortgage and note were ordered delivered up

and canceled because vold, having been ex-

counted without authority, after revocation, 3 Cur. Law. CANCELLATION OF INSTRUMENTS SS 2. 58:

ure to record is not ground for cancellation."16 Inadequacy of consideration is not alone a sufficient ground for setting aside a conveyance,"17 but if coupled with circumstances tending to show oppression or undue influence or mental incapacity, relief will be granted."18 Complete failure of consideration seems to be sufficient."19 Where a grantor conveys land in consideration of an agreement by the grantee to support the grantor during his or her natural life, failure of the grantee to carry out the agreement is ground for cancellation of the conveyance."19 This is on the theory that there was fraud in the inception of the contract, and does not apply when failure to perform is by the grantee's heirs."19 When this ground is relied upon, plaintiff must plead a re-entry or demand for possession,"19 and demand for performance,"19 or facts showing that demand for performance would have been unavailing."20 Where cancellation is sought on the ground of incompetency of the parties on one side, it will not be granted if any of the parties on that side appear capable of contracting."21 The right to rescission of a contract of conveyance is not affected by the fact that title was in a third person for the plaintiff's benefit."22 Where cancellation of a deed by defendant to a third person is sought, plaintiff must show a right to specific performance of, or damages for breach of, an agreement relating to the same land."22 \_Conditions precedent."23 It is the general rule that a party seeking to have a contract canceled must show himself ready to place the other party in statu quo,"23

Footnote 17: The author is grateful to the anonymous referee for the support of the work.

Footnote 18: The author is grateful to the anonymous referee for the support of the work.

Footnote 19: The author is grateful to the anonymous referee for the support of the work.

Footnote 20: The author is grateful to the anonymous referee for the support of the work.

Footnote 21: The author is grateful to the anonymous referee for the support of the work.

Footnote 22: The author is grateful to the anonymous referee for the support of the work.

Footnote 23: The author is grateful to the anonymous referee for the support of the work.

588 Cancellation of Instruments SS 2. 3 Cur. Law.

as by tendering back benefits received under the contract,\*\* and relief may be denied where the parties,\*\* or innocent third parties,\*\* cannot be so placed. The tender of benefits received must be absolute and made in good faith;\*\* but may be sufficient if made in the bill.\*\* But- where the other party has been guilty of fraud or unconscionable conduct, equity may grant relief without an offer to place him in statu quo.4 Such tender may be unnecessary where all performance is denied.5 In Louisiana, tender of the price received is not a condition precedent to the bringing and maintenance of an action to rescind a sale for lesion beyond moiety.\*\*

\_Laches.'--\_Unexplained delay for an unreasonable period bars the remedy.\*\* But if the delay is not unreasonable,\*\* or is caused by ignorance of rights,\*\*10 \*\*it will not preclude relief. Laches of a grantor will not har suit by his heir to set aside a conveyance.\*\*11 \*\*The plaintiff may be precluded from maintaining suit for cancellation by an equitable election.\*\*12

**39 W. Va. 406, 19 S. E. EST; Christlan v.** **vantage of grantor's incompetency, and the Vance, 41 W. Va. 754, 24 S. N. 596. This is** **confidence** **reposed in him. Return of con-the general rule where the transaction is** **alter111.211.77N.E.855A.wife was granted solely to property rights, and the doctrine** **cancellation of a separation contract pro-** **have been carried so far that a court of equ-** **cured by fraud, though she was unable to try has refused relief, though a party has** **repay money given her to findue her to** **been unable to restore what he has received** \*\*agree to the contract. Cheuvront v.

- 3Cur. Law. CANCELLATION OF INSTRUMENTS $ 2.589 \_Effect of death of party.--\_After a loss on the policy by death of the insured, such a suit cannot be maintained, in the absence of special circumstances invoking equity jurisdiction: \[18\] but before such loss it may be maintained, \[14\] and jurisdiction, when acquired, is not affected by death of the insured after commencement of the action. \[18\] The grantor's heirs may have cancellation of a conveyance for nonperformance of a condition to provide support. \[16\]

\_Evidence and proof. \[17\]--\_The allegations setting out the grounds on which relief _is_ sought must be substantially and clearly proven. \[18\] But in a suit to set aside a conveyance between parties between whom a fiduciary relation exists, the burden is on the grantee to show the transaction free from fraud or undue influence. \[18\] A certificate of acknowledgment is not evidence of a grantor's mental

- 13The misrepresentation and conceal- ment being an adequate defense in an action on the policy. Riggs v. Union Life Ins. N. Y. S. 1080. Evidence held insufficient to Court below as to this proposition. See unit to set aside mortgage. Mohr v. Griffin. Union Life Ins. Co. v. Riggs, 123 F. 812; 137 Ala. 456, 34 So. 378. Proof of fraud in- Mutual Life Ins. Co. v. Blair, 130 F. 971; 1310. 871; 1311.
- 14The Riggs v. Union Life Ins. Co. \[C. C. A.\] 128 F. 207; Mutual Life Ins. Co. v. Blair, 130 F. 971.
- 15Riggs v. Union Life Ins. Co. \[C. C. A.\] 128 F. 207. A pless in bar alleging the insured's death, and the bringing and penderer ON of an action at law, held not available to present the objection that the bill proven. Grantor's testimony will not over-was not sustainable for want of equity.
- 16Man and wife conveyed to two children in consideration of support, care, medical attendance, etc. After the grantor's death, other heirs brought bill to cancel conveyance on ground of failure to perform any of the conditions of the agreement. A demurrer to the bill was held to have been erroneously sustained. Fluharty v. Fluharty v. Fluharty v. Vi-1478 S. E. 199.
- 17Sec 1 Curr. L. 419.
- 18Evidence Insuffincent to show incompetency, undue influence, or failure of support by grantees. Parment v. Warner \[Mich.\] 97 N. V. 629. In action to set aside assignments of mortgage, evidence held to show a delivery before death of assignor, and decree for assignor affirmed. Peirson $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.590 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.591 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.589 $ 2.592 $ 2.589 $ 2.589 $ 2.593 $ 2.

capacity,20 nor is a record in a former suit to set aside another conveyance admissible on that issue.21

SS 3. _Procedure.22_--Since the action is equitable, the court tries all questions of fact and should make findings thereon.23 The statutes granting new trial of right in actions affecting title to land apply to a suit to cancel a conveyance.24

_Pleading.25_--The bill must set out facts sufficient to constitute fraud when it is the ground of the relief prayed for.26 But only the result of undue influence, not the particular acts constituting it, need be alleged.27 The bill must show a sufficient tender of the property received,28 and must show complainant's title to that transferred.28 A bill to cancel a conveyance by a common donor to defendant of plaintiff's property, which shows that the donor at the same time made a gift of other property to plaintiff, must disclose the value of the property received by plaintiff.29 A petition by the United States to annul a patent for fraud must, under the code, contain all the material averments essential to a good bill in equity under the chancery practice.21 Equitable considerations, which it is claimed warrant the court in refusing to annul a mortgage without restoration of the consideration, must be presented by answer and cannot be raised on demurrer.29 In a purely equitable action to cancel a contract, a mere allegation that plaintiff has an adequate remedy at law is not good as a defense under the code.29

_Parties.34_--All persons interested in the subject-matter of the contract sought to be canceled are necessary parties.35 In suit to cancel an agreement to pay commissions, the other party to the contract, for procuring which the commission is sought, is not a necessary party.36 In suit for cancellation of a policy of insurance on the ground of a fraudulent conspiracy between the insured and others, brought after the death of the insured, the co-conspirators may be made parties defendant with the executors or beneficiaries for the purpose of having liability for costs adjudicated.37

the husband to show she acted with full knowledge and that the transaction was fair. Cheuvront v. Cheuvront \[Wv. Va.\] 46 S. E. 233. In a suit by the wife to cancel a conveyance by her to her husband, the burden is on defendants to show the contract of fair and equitable. Evidence held not sufficent. Harraway v. Harraway, 136 Ala. 499, 34 So. 536.

20. It is evidence only of those facts to which the notary is required to certify. Walker v. Shepard \[III.\] 71 N. E. 422.

01. Defendants not having been parties to the former action. Bolloww v. Roach \[III.\] 71 N. E. 454.

01. See 1 Curr. L 416.

01. 'Action to set aside conveyance for fraud sent back for retrial because improperly tried by jury and court omitted to make findings. Flanigan v. Skelly, $9 App. Div. 108, $5 N. Y. 8. 4.

01. Krize v. Wilson, 31 Ind. App. 590, 68 N. E. 893. Burns' Ann. St. 1901, $1076. Tomlinson v. Tomlinson \[Ind.\] 70 N. E. 881.

01. See 1 Curr. L 417.

01. To cancel bill of sale of stock for fraud. Bill held demurrable. Wetherell v. Johnson, 208 Ill. 247, 70 N. E. 229. Allregions of fraud held to be sufficient. Tomlinson \[Ind.\] 70 N. E. 881.

01. McLeod v. McLeod, 137 Ala. 267, 34 So. 228.

01. Alaska & C. Commercial Co. v. Solner (C. C. A.) 123 F. 855.

01. Cancellation of a lease being sought the bill must allege title to the lands in plaintiff. Indiana Natural Gas & OII Co. v. S. E. 233. In a suit by the wife to cancel a conveyance by her to her husband, the turn it. An election is involved and he must do equity. Barrier v. Kelly \[Miss.\] 33 So. 974.

01. The United States in such suit has no rights superior to any other suitor. Lynch v. D., 13 Okl. 142, 73 P. 1095.

01. Lange v. Geiser, 138 Cal. 682, 72 P. 343.

01. Contract for royalties on songs to be published, plaintiff alleging publisher did not intend to publish them, but made contract to prevent competition. EEMonds v. Stern, 89 App. Div. 539, 85 N. Y. S. 665.

01. See 1 Curr. L, 417, with annotations.

01. In a suit to cancel a patent, every person having an interest in the land covered by the patent is an indispensable party. without whom equity will not proceed. Lynch v. U. S., 13 Okl. 142, 73 P. 1095.

01. Where a municipality made a contract for construction of a system of waterworks, authorizing the contractor to mortgage the same to secure loans to enable him to proceed with the work, the mortgages are necessary parties in a suit by the municipality to cancel the contract. City of El Reno v. El Reno Water Co. \[Okl.\] 76 P. 126.

01. Warren v. Miller \[Iowa\] 99 N. W. 127.

01. Union Life Ins. Co. v. Riggs, 123 F.

## Part I In General

### 1 Definitions and distinctions

Street railway companies40 and persons maintaining or operating passenger elevators,41 especially in a public building. are within the term common carriers.42

Irrigation companies are regarded as quasi-public servants, analogous to common carriers,44 and so are telegraph companies.44

This topic treats only of the laws re- labilities. Luckel v. Century Bldg. Co., 177 lasting to common carriage of persons or goods. That relating to corporations engaged in carriage (see Rairoda, 2 Curr. L. 1382; Shipping and Water Traffic, 2 Curr. L. 1648), is pertinent to other topics specifically devoted to it. Likewise the relations between the carrier and its employers are those of Master and Servant, 2 Curr. L. 801. The rules peculiar to water carriage are treated in Shhpping and Water Traffic, 2 Curr. L. 1648.

### 39 See 1 Curr. L. 422.

40 Lincoln Traction Co. v. Heller \[Neb.\] 100 N. W. 197.

41 See article Buildings, 1 Curr. L. 44, for a complete treatment of their duties and 593 CARRIFERS \[IN GENERAL\] SS 3. 3 Cur. Law. Validity of incorporation is immaterial in fixing the duties of a carrier.\[48\] A common carrier may become a private carrier or bailee for hire, when he undertakes to carry something which it is not his business to carry.\[46\] In such case he has a right to limit or release himself from liability by contract.\[47\]

SS 2. _Duty to undertake and provide carriage.\[48\]--The carrier must undertake carriage and may be penalized for a refusal.\[49\] A common carrier may make such reasonable rules and regulations for the conduct of its business as it may deem necessary.\[50\] It is subject to such reasonable regulations as each state or the United States may under the constitution establish.\[51\]_

_There must be no unequal discrimination\[52\]_ against those seeking to use regular trains, even in favor of a patron who has voluntarily expended more than his share in procuring such service.\[48\]\_

_Charges.\[44\]--The common law prevents unjust or unreasonable discriminations.\[50\] Rates must also conform to such rates as the states on local and the United States on interstate business\[50\] respectively prescribe, and as the charter contemplates.\[51\]_

A railroad sending its cars over a branch must not discriminate against any shipper thereon,\[68\] and where it has acquired terminal rights, must not make discriminatory charges for use thereof.\[49\] A statutory permission to charge expenses of maintenance to owners of private sidetracks does not authorize an arbitrary charge imposed on shipments from such tracks.\[50\]

45. Express company. Adams Exp. Co. v. State, 161 Ind. 328, 67 N. E. 1038. 1038.

3 Cur. Law. CARRIERS \[IN GENERAL\] $ 9. 593

\_What constitutes discrimination."!--\_Conditions must be similar to establish discrimination,"2 and unfairness of a long haul rate does not depend on actually greater mileage."8 A carrier may make a difference in rates to competitive points,"4 hence a charge of lower rates for a longer haul due to competition is not an unjust discrimination if a greater rate for a shorter haul is not unreasonable,"8 and a through rate may be less than the sum of local rates."9 A contract to maintain rates from one point to competitive points, not exceeding the rates from two other places, is not discrimination within the meaning of the Inter State Commerce Act," neither is a milling in transit agreement."4

Carriage at established rates to pay a legal and determined debt is not a discrimination,"6 and where not a blind to cover a low rate, a carrier may buy a commodity and sell it for delivery at another point at less than cost plus established freight charges."9

In a proceeding for discrimination between localities or charging more for a shorter haul, it need not be shown that more than commission rates are charged."1

\_Statutory provisions against discrimination_7 may require the carrier to forward freight in the order received and impose a liability for ensuing damages,"8 and penal provisions are construed strictly."4

Under certain statutes, triple damages and attorney's fees are recoverable."8

\_Remedies.\_7".--\_The existence of a remedy against the person favored does not absolve the carrier."1 An agreement to pay an extra charge reserving legal rights does not waive remedies for discrimination."8 Each act of discrimination need

**61. See 1 Curr. L. 428. See Commerce, 1**

**62.** Interstate Commerce Comm. v. Chesa-Curr. L. 538, for discussion of effect of In-Peake & O. R. Co., 128 F. 69. 70. Contract held to show violation of $ 3

**63.** Held lawfai. Refusal to furnish cars of Interstate Commerce Act. Interstate to be loaded with coal from wagons as had Commerce Comm. v. Chesapeake & O. R. Co., 128 F. 69. \[C. C. A.\] 125 F. 445. To charge greater 71. Rev. St. 1899, **113**, 1184. Cohn v. rate for car lot made of small lots com-St. Louis, I. M. & S. R. Co. \[Mo.\] 79 S. W. blned by a forwarding agent, than for the car lot of a single owner (24 Stat. 819, $ 21). 72. Rev. St. 1899, $ 1126, is not repealed Lundquist v. Grand Trunk Western R. Co., by $ 1124, McGrew v. Mo. Pac. R. Co., 117 117 F. 915. 73. Rev. St. 1899, $ 1133, 1134. Cohn v. St. Louis, I. M. & S. R. Co. \[To.\] 79 S. W. 961. 64. A mere possibility of competition will not make a greater rate to a point obrac-?4. Penalties provided by Acts 1887, p. 110, is to the long and short haul clause of Interstate Commerce Act. Rates from Newr & Orieans to La Grange, Ga., based on Atlanta as a competitive point, held proper. Interstate Commerce Comm. v. Louisville & N. R. Co., 190 U. S. 273, 28 S. Ct. 687, 47 Law. Ed. 1047. Lower rates from Chicago and west-?4.000. Va. per point to Norfolk and Richmond, Va. than to Willington, N. C., held justified by conditions. Interstate Commerce Comm. v. Cincinnati, P. & V. R. Co., 124 F. 624. 65. Interstate Commerce Comm. v. South- 65. R. Co., (C. C. A.) 122 F. 800. 66. Const. $ 215. Within this meaning, a contract may be through, though there is no express agreement between the connecting carriers. Southern R. Co. v. Com., 25 Ky. L. R. 1078, 77 S. W. 207. 67. Laurel Cotton Mills v. Gulf & S. I. R. Co. \[Miss.\] 37 So. 134. 68. Laurel Cotton Mills v. Gulf & S. I. R. Co. \[Miss.\] 37 So. 134. And in an action for breach of such contract, the burden is not on the plaintiff to show that the contract rate had been filed with the:Interstate Commerce Commission and approved by the State Railroad Commission. Id.

3 Curr. Law--38.

**64.** See 1 Curr. L. 428. See Commerce, 1\*\*

**65.** Interstate Commerce Comm. v. Chesa-Curr. L. 538, for discussion of effect of In-Peake & O. R. Co., 128 F. 69. 70. Contract held to show violation of $ 3 of Interstate Commerce Act. Interstate to be loaded with coal from wagons as had Commerce Comm. v. Chesapeake & O. R. Co., 128 F. 69. \[C. C. A.\] 125 F. 445. To charge greater 71. Rev. St. 1899, **113**, 1184. Cohn v. rate for car lot made of small lots com-St. Louis, I. M. &
594CARRIERS \[IN GENERAL\] SS 3. 3Cur. Law.

not be made a separate cause of action.78In statutory and penal actions, the acts coming within the statute must be well pleaded.80Quo warranto will not lie for a discrimination which affects private interests only,81 but if a franchise be violated, it can be remedied only by public suit.82The United States may maintain a suit in equity to restrain discrimination.83

SS 3. _Bights and relations between carrier and connecting carrier, draymen, or transfer men.84_--A railroad is bound to accept freight from another carrier at its published rate.85By statute generally it is required that other carriers be treated with equal fairness.86It is not an unreasonable preference under the interstate commerce act for a railroad to refuse shipments of cattle for delivery at a stockyards on a different line, with which, however, it has physical connection, if it maintains at the same city of general destination a stockyards on its own line.87The carrier may give one transfer agent the exclusive right of soliciting business on its trains,88and may exclude soliciting draymen from its depot grounds, where not employed by passengers and when passengers are afforded reasonable facilities of egress.89

Statutes imposing penalties for not stopping passenger trains at junction points, being penal, are to be strictly construed.80

Part II. _Carriage of Goods._

SS 4. _Delivery to carrier and inception of liability.91_--A carrier has the right to make reasonable rules concerning the classification and suitable preparation of

79Rev. St. 1899, SS 1133, 1134. .Cohn v. Curr. L. 140, for duty to make transfer connections.

85C. There need not be an agreement for a joint through rate. A combination of lo- and that the carrier refused to receive the the initial carrier. The fact that the cars an action for a penalty under Code 1883, 86the carrier would have to pay mileage, is not material, nor is the fact that the initial carrier, in consideration of a given per cent tion under Rev. St. 1899, 8113, held suffi-

86C. A complaint alleging that goods were a joint through rate. A combination of lo- and that the carrier refused to receive the initial carrier. The fact that the cars an action for a penalty under Code 1883, 86the carrier would have to pay mileage, is not material, nor is the fact that the initial carrier, in consideration of a given per cent tion under Rev. St. 1899, 8113, held suffi-

87So. A complaint alleging that goods were a joint through rate. A combination of lo- and that the carrier refused to receive the initial carrier. The fact that the cars an action for a penalty under Code 1883, 86the carrier would have to pay mileage, is not material, nor is the fact that the initial carrier, in consideration of a given per cent tion under Rev. St. 1899, 8113, held suffi-

88C. There need not be an agreement for a joint through rate. A combination of lo- and that the carrier refused to receive the initial carrier. The fact that the cars an action for a penalty under Code 1883, 86the carrier would have to pay mileage, is not material, nor is the fact that the initial carrier, in consideration of a given per cent tion under Rev. St. 1899, 8113, held suffi-

89C. Acts requiring express companies to return in equal accommodations to all other ille companies are held constitutional. See

89C. Acts: A. Acts: A.

4. \[3\]

## 3 Cur. Law. CARRIERS \[OF GOODS\] SS 5.

articles for shipment,\[92\] and the place where it will receive articles for carriage,\[93\] and may change and modify rules on reasonable notice to the public.\[94\] Liability may accrue without issuance of bill of lading or intent to ship at once.\[95\] Whether entire and exclusive custody of goods has been given the carrier, imposing liability as such, is a question for the jury.\[96\]

Special contracts for carriage,\[97\] and bills of lading.\[98\]--It is not essential that every detail shall be predetermined.\[99\] Within the scope of apparent or disclosed authority, the carrier's agent may make binding contracts.\[1\] An undisclosed principal is bound by the terms agreed to by his agent.\[2\] Words will be taken as the parties intended.\[2\] A written contract merges a previous oral one,\[4\] but under certain circumstances an action may be maintained on a verbal contract, although a written contract may subsequently have been entered into.\[6\] Rebilling and fixing destination at a transfer point does not necessarily make a new contract.\[9\] Where a contract for preferential rates was for the benefit of a shipper and his assigns, it did not pass to a legate under the will of the shipper.\[9\]

_Bills of lading.\[98\]--A carbon copy of a bill of lading designed for filing is not a duplicate requiring a revenue stamp.\[9\]_

Between the carrier and parties entitled to receive the property at its hands,

## 6 The question is one of law. Chicago,

disregarded prevents his act in accepting R. I. & P. R. Co. v. Colby \[Neb.\] 94 N. W.

145. \[3\] Where a carr has a defective draw bar, being binding. Bessiling & Co. v. Houston & the carrier waives such objection by agreeing to haul it by the sound draw bar at the rear of a train. Illinois Cent. R. Co. v.

Glime freight agent who contracts without disclosing limitations on his general authority to solicit business. Baker v. Chicago

where coal would be received, which was not an unreasonable place, shipper could not compel it to receive coal at sibling where other merchandise was received merely because it was more convenient to him. Rob-

## 7 A contract to furnish "a train" to haul inson v. Baltimore & O. R. Co. \[C. C. A.\] 129

fifty cars of freight construed to mean trains sufficient. Outland v. Seaboard Alr

can at other sliding, taking possession of cars and blocking siding with teams, thus creating public nuisance. Id.

As where goods are delivered to and received by a carrier for shipment. Missourl, K. & T. R. Co. v. Beard \[Tex. Civ. App.\] 78 S. W. 253.

Botties and cases deposited on depot platform, it being contended that defendant had no notice they were ready for shipment. Stapleton v. Grand Trunk R. Co. \[Mich.\] 94

N. W. 739. Evidence held insufficient to show custom to regard goods on platform awaiting shipping instructions as in custody of carrier. Missouri, K. & T. R. Co. v. Beard \[Tex. Civ. App.\] 78 S. W. 253.

## 10 See 1 Curr. L. 455.

## 11 See 1 Curr. L. 456.

## 12 See 1 Curr. L. 456.

A contract to furnish a train may be complete, though the time is left to be determined. Outland v. Seaboard Air Line R. Co., 184 N. C. 350, 46 S. E. 175. Final destination not fixed. Soper v. Tyler \[Conn.\] 58 A. 699.

A general freight agent has power to bind the company by an agreement to furnish a train. Outland v. Seaboard Air Line R. Co., 184 N. C. 350, 46 S. E. 175. A station agent has no power to contract for a discriminatory rate. Myar v. St. Louis South-western R. Co., 71 Ark. 552, 76 S. W. 557.

## 14 Soper v. Tyler \[Conn.\] 58 A. 699.

## 15 Soper v. Tyler \[Conn.\] 58 A. 699.

A general freight agent has power to bind the company by an agreement to furnish a train. Outland v. Seaboard Air Line R. Co., 184 N. C. 350, 46 S. E. 175. A station agent has no power to contract for a discriminatory rate. Myar v. St. Louis South-western R. Co., 71 Ark. 552, 76 S. W. 557.

### Disclosure of limitations

A statement by agent that his routing would probably be bills of lading are symbols of title.\[10\] A shipper is bound by the conditions of a bill of lading which he accepts at the time the shipment is made, though he does not receive it, or agree to it in writing,\[11\] and it will not be presumed that a deviation was assented to.\[12\] Parol evidence of the forwarding route is admissible where the bill of lading is silent,\[13\] but a mere instruction in writing to forward by a certain route has no effect.\[14\]

\_Interpretation.\[15\]--\_Names written on the bill have such significance as the parties intended,\[16\] and the force and meaning to be given words may be shown by extrinsic evidence.\[17\] Meaningless blanks are not to be considered.\[18\] An apparent good order receipt refers only to the outward appearance of the package.\[19\]

_Indorsement and transfer,\[20\]_ as affecting rights between the carrier and the owner or holder of the bill of lading, will be treated in succeeding sections. As affecting title to the goods or rights respecting attached drafts, it is not germane to this title.

SS 6. _The duty to furnish cars\[21\]_ does not require provision for an unusual amount of freight offered occasionally and at long intervals.\[22\] In case of scarcity, cars may be fairly apportioned.\[23\] Where there is an agreement to furnish cars, the shipper is not bound to cease the preparation of freight on finding that the carrier may not be able to furnish the cars.\[24\] Unreasonable neglect in providing cars is usually a question for the jury,\[25\] though seventy-five or eighty days' delay has been held unreasonable as a matter of law.\[26\]

SS 7. \_Forwarding and transporting goods.\[27\]--\_The transportation must be with reasonable expedition, unless there is notice of necessity for unusual haste.\[28\] A 3 Cur. Law. CARRIERS \[OF GOODS\] SS 8. 597

code provision requiring freight to be forwarded in five days under penalty does not remit the common-law liability.\[20\] The consignee must use ordinary care in ascertaining and removing causes of delay.\[30\] What is proper diligence is a question of fact for the jury.\[81\]

\_Delivery to succeeding carrier.--\_If no forwarder be specified the initial carrier may select it.\[22\] Otherwise does so at its own risk.\[38\]

When the connecting carrier refuses a shipment, the initial carrier should use the same care that the owner, being a man of ordinary care and prudence, would have exercised under the same knowledge in forwarding.\[44\] It is the duty of the initial carrier to give notice to the consignor unless the property is of such character that injury will result from the time consumed.\[45\]

SS 8. \_Loss of or injury to goods.\[38\]--\_A carrier is not liable for loss of goods not in its possession or under its control, or in no way attributable to its negligence.\[46\] If in its custody, it is not absolved by the fact that the act of its agent representing a third person caused the loss,\[47\] nor does the shipper's knowledge always excuse the carrier's negligence.\[48\] The carrier may be responsible for the burning of goods placed on its platform.\[40\] It is not negligence for a carrier to fail to take precautions against loss by fire of cars on a siding in the open country,\[41\] and it is not liable for loss by unprecedented storm, though had cars been delivered promptly they would have been previously unloaded,\[42\] the question of negligence in such cases being for the jury.\[48\] Nondisclosure of value or the signing of a clear receipt may wholly or partially release the carrier.\[44\]

W. 425, 28 L. R. A. 80. The carrier is held | 85. Louisville & N. R. Co. v. Duncan, 137 l lable for delay in transporting goods caused | 44. 46, 34 So. 988. by a strike of its employees, unaccompanied | 36. See 1 Curr. L. 428. by violence or intimidation. Central R. & Banking Co. v. Georgia Frult & Vegetable | 37. Not liable for cotton burned while in | 51 Ga. 835, 17 S. E. 904: Pittsburgh | 37. Not liable for cotton burned while in | 52. No. v. Texas. 91 & 53.55: 17 S. E. 904: 1116, 25 and paid by carrier. Edwards & Co. v. Texas. Am. Rep. 422; Missouri Pac. R. Co. v. Levi | 37.56: 164, 37.56: 165, 37.56: 166, 37.56: 167, 37.56: 168, 37.56: 169, 37.56: 169, 37.56: 169, 37.56: 169, 37.56: 170, 37.56: 171, 37.56: 172, 37.56: 173, 37.56: 174, 37.56: 175, 37.56: 176, 37.56: 177, 37.56: 178, 37.56: 179, 37.

## 9 Delivery by carrier and storage at destination

In the absence of a special contract or custom to the contrary, the duty of a common carrier of goods is not completed upon their mere arrival at destination, but includes their delivery to the consignee,\[46\] or their deposit in depot or warehouse, and notice given,\[47\] though there is a custom not to notify;\[48\] but a custom may remove the necessity of giving notice on particular days.\[49\] Where the contract contemplates delivery upon the carrier's premises at the place of destination, and no time for their arrival or delivery is stipulated for, the carrier is bound to allow the consignee a reasonable time in which to make inquiries as to their arrival,\[50\] or else to give him notice of such arrival.\[51\] In either case, the consignee is entitled to a reasonable time and opportunity, after notice of their arrival, in which to take the goods away.\[52\] What is a reasonable time depends upon all the circumstances of the case, and is a question of fact.\[53\] A well known custom that the carrier shall notify the consignee by mail is to be considered as part of the contract of transportation.\[54\] Demand for delivery and tender of charges may not be essential.\[55\] The consignees are not bound to make inquiry if they have reason to think a shipment overdue.\[66\] Misinformation in response to an inquiry may make a liability, though the notice had been sent.\[57\] After refusal to deliver, the carrier is liable for subsequent damages.\[58\] Presentation of the shipping receipt or bill of lading properly indorsed is essential on a shipment to consignor's order,\[59\] and usage and custom will not dispense therewith,\[50\] nor will the shipper's direction to deliver without it.\[48\] A right to presentation of a shipping bill is waived by refusal to deliver on ground of unpaid freight.\[52\] A statute punishing the delivery of goods without production of the bill of lading, unless non-negotiable, cannot be made a basis of recovery by one induced to take the bill through a forgery rendering it apparently negotiable.\[58\] Liability for delivery of goods at a wrong station is waived by direction of

sives, so discarded, was allowed to stand 3 or goods and the consignor informed the car-4 days on a transfer track, is for the jury.

Flor to return them and an agent of the Phoenix Powder Mfg. Co. v. Wabash R. Co.,

carrier called on the consignor, looked at his 101 Mb. App. 442, 74 S. W. 492,

receipt and said he would trace the goods.

44, 45. See 1 Curr. L. 429.

46. Burr v. Adams Exp. Co. \[N. J. Law\]

01. A. 609.

01. Pa, R. Co. v. Naive \[Tenn.\] 79 S. W.

01.

01. Where the agent of the consignee inquires for freight, it is negligence to fail Ala, & V. R. Co. v. J. M. & C. B. Pounder

\[Miss.\] 35 S6.

155.

001. Liability exists for freight destroyed by fire in depot. Gulf & C. R. Co. v. Fuqua

\[Miss.\] 38 S6.

49.

01. July 4th. One who ships goods to that destination is bound by the custom. Pa. R. Co., v. Naive \[Tenn.\] 78 S. W. 124.

59, 51. Burr v. Adams Exp. Co. \[N. J. Law\]

58 A. 609.

52. Plaintiff learned of arrival of goods at 5 D. m., paid charges and arranged for delivery to expressman the next morning.

Goods stolen that night. Company held like. Burt v. Adams Exp. Co. \[N. J. Law\]

58 A. 609.

53. Burr v. Adams Exp. Co. \[N. J. Law\]

58 A. 609. It is not an unreasonable delay to fail to deliver goods at Denver, July 10th, which had been shipped from New York July 2d. Brooks v. Del, L & W. R. Co., 88

N. Y. S. 961.

54. Roth Clothing Co. v. Maine S. S. Co..

88 N. T. S. 987.

55. Where a consignee refused to accept 8. Cur. Law. CARRIERS \[OF GOODS\] SS 9. 599

the consignee to forward to another and acceptance there." The carrier may demand its production of the bill of lading as a condition to a diversion of the shipment." Whether the setting of a car at an agreed point is a delivery is a question of fact."

Delivery to duly authorized agent of consignee is sufficient." The person rightfully entitled to possession," or an officer of the law under a prima facie valid authority," may claim delivery from the carrier, but the carrier must show that such delivery is binding on the consignee." The carrier may be justified in delivering goods to the actual purchaser, though be not named in the bill of lading and does not produce it."

\_Acceptance and unloading.--\_Mere payment of transportation charges does not amount to acceptance of delivery, the goods not having been removed."

For damages resulting from delay in unloading, the consignee may be liable."

\_Refusal by consignee."--\_The shipper should be notified in a reasonable time of refusal," but to prevent loss the carrier may sell unaccepted perishable goods."

\_Storage at destination.--\_The extraordinary liability as a carrier continues until the consignee has had a reasonable opportunity to inspect and remove the goods during business hours," or until the consignee accepts." Thereafter if proper storage facilities do not exist at destination, the carrier may store unclaimed freight elsewhere." The happening of an injury does not raise presumptive negligence as against a warehousing carrier."

\_Liability for conversion."--\_There must be an absolute denial of the right to the goods or the excuses for nondecivery must be unreasonable, inconsistent or made in bad faith to constitute a conversion."

- 64. Hayman v. Canadian Pac. R. Co., SS 8
- 75. Not sufficient that person be consignee. Ryan v. Great Northern R. Co., 90
- 71. Where such had been the course of Minn. 12, 95 N. W. 758.
- 66. Whether the consignee has a right to assume that it is so placed with the purpose of delivering it to him. Brown v. Pontac, 0
- 72. Bur v. Adams Exp. Co. \[N. J. Law\]
- 73. Evidence held insufficient to show damage to boat frozen in before unloading. Scott v. International Paper Co., 86 N. Y. S.
- 756. Where the shipper has not had right-ful possession, the carrier must surrender on demand of the rightful owner at any time before delivery to the consignee. An action of replavin in such case need not allege that the defendants' line passes through the counn- 2 notices and affording indications of decay to in which suit is brought as required in 12
- 76. Fish not called for in 54 hours, after an action for injury to person or property. Atchison, T. & S. F. Ho. Vo. Jordon Stock Mileg. 654, 83 N. Y. S. 166.
- 77. Liability exists for loss by fire with-delivered to a mortgage entitled to possession on condition broken. Johnston v. Chicago, B. & Q. R. Co. (Neb.) 97 N. W. 479. A car-
- 78. The carrier is not liable for the der-reler must deliver goods to the true owner, claiming under the consignee, when it has notice of his rights, and the bill of lading has already been surrendered. Certified orders for cars of grain held notice of the right of the bank, to whom they had been delivered. National Newark Banking Co. v. Del., L. & W. R. Co. (N. J. Err. & App.) 58
- 79. Facts held not to show liability where it was carried back 14 miles to Galveston and there destroyed by an unprecedented storm. Gulf, C. & S. F. Ho. Vo. North Tex.
- 70. Grath Co. \[Tex. Civ. App.\] 74 B. W. 657. Evidence held Insufficient to show wet-ting of goods. Thylyl V. New York & L. B.
- 71. See 1 Curr. L. 480.
- 72. Facts held not to show conversion.

sion of them, the same as a total failure to deliver them;"84 but mere delay is not a conversion.84 A demand by the owner upon the carrier for goods in its possession, and a refusal on its part to deliver them, constitute a conversion, in the absence of a sufficient legal ground for such refusal.85 The right or duty to demand a bill of lading controls the question of whether a refusal to surrender without its production is a conversion.86 A conversion is not excused by mistake,87 or the fact that the property is susceptible of unlawful use.88 A tender of the goods to the owner, where there has been no previous demand and refusal, is a defense to an action for their conversion,89 but an offer to return freight is not, though it may go in mitigation of damages.90 A lien for freight must be pleaded to go in mitigation of damages for wrongful taking.91

Footnote 808: The author is * 3Cur. Law. CARRIERS \[OF GOODS\] SS 11. 601

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  bility for negligence,17 but may be invoked when an affirmative act of wrongdoing is not shown.18 Limitations, however, may have the effect of shifting the burden of proof of negligence.19 An express company taking a draft for collection cannot limit its liability to that of an ordinary carrier.20 In the absence of a statement of value, a limitation thereof is valid,21 and having limited amount of its liability, the carrier cannot by its bill of lading secure the benefit of insurance on the excess value of the goods.22 An exemption from liability for damages by fire, expressed in the bill of lading, is valid.23 Any deviation from the terms of the contract of carriage will deprive the carrier of the benefits of limitations of liability therein.24

- \[3\] Cur. Law. CARRIERS \[OF GOODS\] SS 13. 603

\_Necessity and sufficiency of agreement between carrier and shipper."--Limitations in the bill of lading must be distinctly brought to the shipper's notice in order that a contract may result from his nondissent.29 Where the shipper has possession of and fills out his own shipping receipts, there is a special contract." A limitation of common-law liability must be on consideration,31 which is not presumed,32 but a lack of independent consideration expressed in the bill will not avoid such provision if the contract be entire.33

Footnote 33: The author is grateful to the anonymous referee for the support of this paper.

SS 12. \_Public records of traffic.--\_The names and addresses of consignor and consignee are "marks" which must be recorded by carriers before delivering liquors to nonliecens towns in Massachusetts.34

SS 13. \_Remedies and procedure.35 Timely notice or suit.--\_Provisions in bills of lading, requiring notice of claims to be presented and actions for damages to be brought within a certain time, are generally held to be valid conditions precedent,36 but this rule does not apply to cases where there has been a conversion of the goods.37 Provision for timely claim is waived by acceptance of informal notice and refusal of payment on other grounds.38

Footnote 33: The author is grateful to the anonymous referee for the support of this paper.

\_Persons who may suc.\_39--A consignee who is injured may suc on a contract with his consignor,36 and must suc when title has passed to him.34 Bankers to whom a draft with bill of lading attached is forwarded for collection, by becoming responsible for the freight, are entitled to complain of a conversion by the carrier,34 but the consignors on election to hold the bank, for negligence in surrendering control of the shipper, cannot.35 An action for a breach of a special rate contract during lifetime of the promisee could be maintained only by his executors

Footnote 33: The author is grateful to the anonymous referee for the support of this paper.

on the validity of stipulations limiting the amount of the carrier's liability. Pac. Exp. Cv. Poley, &64 Kan. 457, 26 F. 665, 12 L. R. 31. Limitation of liability for fire where A. 199 (valid): Ohio & M. R. Cv. Taap, 98 not in consideration of less rate, or no rate Ky. 603, 32 S. W. 168, 36 S. W. 18, 34 L. R. A. 685, 688 (invalid). The general rule will be

Footnote 34: The author is grateful to the anonymous referee for the support of this paper.

Footnote 35: The author is grateful to the anonymous referee for the support of this paper.

Footnote 36: The author is grateful to the anonymous referee for the support of this paper.

Footnote 37: The author is grateful to the anonymous referee for the support of this paper.

Footnote 38: The author is grateful to the anonymous referee for the support of this paper.

Footnote 39: The author is grateful to the anonymous referee for the support of this paper.

Footnote 40: The author is grateful to the anonymous referee for the support of this paper.

Footnote 41: The author is grateful to the anonymous referee for the support of this paper.

as personal representatives.44 Statutory remedies avail only the parties within the statute.45

\_Particular remedies available.--\_When a carrier having possession declines to deliver to the person having title, replenvin will lie.46 Under the Code in North Carolina, it is not material whether suit is brought in assumpsit or in case for loss from delay in transmission.47 The penalty for delay in paying damage is now abolished in South Carolina.48

_Venue49_ in the absence of statute is determined by ordinary rules.50 By some statutes, connecting carriers on through contracts may be sued jointly in a county where any one is found.51 The venue of an action in Georgia for failure to trace freight, or to inform the owner by which of connecting carriers it was lost, is the county where the principal place of business of the initial carrier is located.52

\_Pleading, proofs, and evidence.58--\_The complaint must not declare on alternatively distinct causes of action against the defendant as through carrier and connecting carrier.54 In an action against a railroad company to recover for violation of its duty as a common carrier, plaintiff is not required to plead or prove the written contract under which the shipment was made.55 If a special contract be declared on, the existence of the consideration therein stated cannot be denied,56 the party being bound by a bill of lading as set out unless he avoids snch result by his pleading,57 but a suit on a contract evidenced by a bill of lading does not prevent denial of validity of restrictive clauses.56 When the suit is tortwise, the duty to carry must be well pleaded.56 Plaintiff in trover must show title.50 Negligence must be pleaded to a legal conclusion,51 but not by setting out facts.52

Under general denial to the consignee's action, freight cannot be allowed nor money paid the consignor recouped.58

Footnote 44: Sullivan v. Louisville & N. R. Co., 138

56. In an action on a contract of car-Ala. 650, 35 So. 694. Such a contract is one for the performance of services and not for the payment of money. Id.

01. Under Gen. St. 1901, $ 5943, only the consignee, his heirs or assigns can recover for shortage of grain shipped. Owner and consignor cannot. Weber v. Chicago, etc., R. Co., 129 F. 774.

01. Complaint in action for damages to machinery due to misdelivery, held sufflection on demurrer, there being an allegation that the bill of lading on which carrier replied was not delivered until after the loss. Cleveland, etc., R. Co. v. Potts & Co. \[Ind. App.\]. 71 N. E. 685.

01. Parker v. Alt. Coast Line R. Co., 133 N. C. 335, 45 S. B. 658.

01. Code 1902, $ 1711, providing that carriers shall be liable for breakage, and if they refuse to pay for 60 days, for a penalty in addition, was repealed by Acts 1903, p. 81. Johnson v. Southern E. Co. \[S. C.\] 48 S. E. 260.

01. See 1 Curr. L. 436.

01. See article Venue, 2 Curr. L. 2000, es-pecially p. 2003, n. 29-34, p. 2003, n. 52-62.

01. Plea containing practical denial of a through contract held sufficient to entitle defendant, one of connecting carriers, to be sued in another county (Rev. St. 1895, art. 331a\]. Tex. & P. R. Co. v. Lynch \[Tex.\] 75 S. W. 486. See, also, 2 Curr. L. 2004, n. 62.

01. Civ. Code 1895, $ 2317, 2318, McCall v. Central of Ga. R. Co. \[Ga.\] 48 S. E. 157.

01. See 1 Curr. L. 436.

01. Louisville & N. R. Co. v. Duncan, 137 Ala. 446, 34 S. 988.

01. Is matter of defense. Empire State Catille Co. v. Atchison, etc., R. Co., 129 F. 480.

01. Sullivan v. Louisville & N. R. Co., 138

01. In an action on a contract of car-Ala. 650, 35 So. 694. Such a contract is one for the performance of services and not for the payment of money. Id.

01. Under Gen. St. 1901, $ 5943, only the consignee, his heirs or assigns can recover for shortage of grain shipped. Owner and consignor cannot. Weber v. Chicago, etc., R. Co., 129 F. 774.

01. Complaint in action for damages to machinery due to misdelivery, held sufflection on demurrer, there being an allegation that the bill of lading on which carrier replied was not delivered until after the loss. Cleveland, etc., R. Co. v. Potts & Co. \[Ind. App.\]. 71 N. E. 685.

01. Phoenix Powder Mfg. Co. v. Wabash

R. Co., 101 Mo. App. 442, 74 S. W. 492.

59. In an action in tort for injuries to setup train, a petition allegation sech contract as a matter of inducement only, and that the same was void, and that it was a part of the railroad's duty as a carrier 3 Cur. Law. CARRIERS \[OF GOODS\] $ 13. 605

The plaintiff must, according to his allegations,64 prove every material issue65 by evidence legally sufficient,66 and the carrier must do the same as to defenses.67 Cases illustrating these general rules are cited. The burden is cast on carrier by a showing of good condition on delivery to it and damage while in its possession.68 A presumption of ownership of goods arises from production of a bill of lading with draft attached bearing an unrestricted indorsement.69 The consignee, if a buyer, need not show payment of purchase price in order to sne for conversion.70 To avail of a limitation the carrier must prove such freedom from fault as it exacts.71

Footnote 69: The author is grateful to the anonymous referees for their comments.

Footnote 70: The author is grateful to the anonymous referees for their comments.

Footnote 71: The author is grateful to the anonymous referees for their comments.

Footnote 72: The author is grateful to the anonymous referees for their comments.

Footnote 73: The author is grateful to the anonymous referees for their comments.

Footnote 74: The author is grateful to the anonymous referees for their comments.

Footnote 75: On negligence in storing goods in an unsafe place, condition of negligorbing buildings may be shown, together with city ordinance prohibiting smoking in the vicinity. Judd v. New York & T. S. S. Co., 130 P. 951. 76 In an action for conversion, where the carrier has resaimed possession and stored the freight, evidence of a custom so to store is immaterial. Marshall & M. Grain Co. v. Korn. City, etc., R. Co., 176 Mo. 480, 75 W. 638. 77. See 1 Curr. L. 438. 78. The author is grateful to the anonymous referees for their comments.

Damages.\[90\]--Damages for delay may be measured by diminution in value\[81\] or value of use.\[82\] On wrongful delivery, the measure of damages is the market value less charges, also any special damage which might have been foreseen.\[83\] On failure to give shipper notice of a refusal, the carrier is liable for decline in the market value from the time at which by ordinary care it could have given notice to the consignor,\[84\] or when notice is not until unreasonable time after return, for the difference in value at time of notice and at time and place when delivery should have been made.\[85\] If settlement is to be on terms made by an intermediary, his decision and not ordinary rules governs.\[86\] Value and damages are proved as in other cases.\[87\] Newspapers admitted to show "the condition of the market" may be read to show existence of a strike and acts of the carrier with regard to it.\[88\]

Freight and other charges.\[89\]--The power of a state to regulate rates does not extend to rates on interstate commerce.\[90\] In the absence of special contract, an agreement for usual freight rate is implied.\[91\] After classification and ac 5. \[3\] Cur. Law. CARRIERS \[OF GOODS\] SS 14. 607

ceptance of freight at a given rate, the carrier cannot recover a greater rate without notice on a reclassification,92 but notice of increase in accordance with the interstate commeree act is waived by payment without protest.98 A shipper is not protected against an increase in rates by the fact that he has a quantity of goods on hand for shipment.94

Footnote 114: See 1 Curr. L. 49.

Footnote 124: See 1 Curr. L. 49.

Footnote 125: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 126: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 127: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 128: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 129: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 120: The author is grateful to the anonymous referee for his comments on the manuscript.

cannot recover them back when he had other means of reaching cars consigned to him.\[18\]

Part III. Carriage or Livre Stook.

SS 15. _Duty to carry and contract of carriage generally.\[16\]_--A carrier, though bound to furnish cars in pursuance of a contract,\[17\] is not bound to furnish the particular kind of cars demanded when others are suitable,\[18\] but on demand of a particular kind of cars, it is not bound to furnish other suitable ones.\[19\] Demand must be written to impose liability for a statutory penalty.\[20\] Nine days may be assumed to be a reasonable time.\[21\]

Signature of the contract by the carrier is not essential where the contract has been acted on.\[22\]

A contract of carriage of cattle is not void as contemplating a violation of a quarantine law, unless it is shown that the regulations of such law could not have been complied with.\[28\]

Receipt of stock in the carrier's pens,\[34\] or in cars,\[28\] initiates its liability. Where the contract provides that liability shall end at the terminus named, a parol agreement for shipment farther does not extend the liability.\[26\]

SS 16. _Care required of carrier.\[27\]_--The carrier is liable only for a violation of duty, statutory or otherwise,\[28\] not for injury necessarily incurred,\[29\] or due to the peculiar nature and propensities of animals,\[30\] or the shipper's negligence.\[21\]

Liability exists for negligence occurring with act of God.\[22\]

15. Bernhardt v. Carolina & N. W. R. Co., Instruction held proper. Nelson v. Great Northern R. Co., 28 Mont. 291, 72 P. 642.

01. See 1 Curr. L. 440. See ante, SS 4, 6, for related matter in carriage of ordinary freight.

01. Evidence held to show negligence in failing to procure cars. Tex. & P. R. Co. v. Powell \[Tex. Civ. App.\] 79 S. W. 88.

01. Failure to furnish stable cars does not subject to penalty under Sayles' Civ. St. 1897, art. 4491. Tex. & P. R. Co. v. Barrow \[Tex. Civ. App.\] 77 S. W. 643.

01. Tex. & P. R. Co. v. Barrow \[Tex. Civ. App.\] 77 S. W. 643.

01. Sayles' Civ. St. 1897, art. 4491. Tex. & P. R. Co. v. Barrow \[Tex. Civ. App.\] 77 S. W. 643.

01. Dev. St. 1895, SS 4497-4500. Tex. & P. R. Co. v. Smith \[Tex. Civ. App.\] 78 S. W. 614.

01. Duplicate contract held binding. though the name of the carrier was affixed only by rubber stamp, where it appeared by the consigned's signature thereon that he had accepted a pass issued by the carrier in accordance with its stipulations. Burriss v. Mo. Pac. R. Co. \[Mo. App.\] 78 S. W. 1042.

01. Tex. Cent. R. Co. v. Pitman \[Tex. Civ. App.\] 79 S. W. 847.

01. Lackland v. Chicago & A. R. Co., 101 Mo. 420, 74 S. W. 505. Instruction as to degree of care a carrier must exercise toward cattle in its pens held proper. Ft. Worth, etc., R. Co. v. Waggoner Nat. Bank \[Tex. Civ. App.\] 81 S. W. 1060.

01. Where hogs are watered and loaded. Just prior to the scheduled time for the arrival of the train on which they are to be shipped as directed by defendants' agent, there is a delivery imposing the duty of transporting without unreasonable delay. McCarry v. Mo., etc., R. Co., 99 Mo. App.\] 518,

74 S. W. 2. In tort no recovery can be had for damages prior to the loading. Cattle. \[50\].

3 Cur. Law. CARRIFERS \[OF LIVE STOCK\] SS 16. 609

\_Rest and feeding.--\_The shipper need not demand a rest.\[33\] The carrier is not, however, under an absolute duty to unload stock for rest, feed and water on the shipper's request.\[34\] It is no defence for exceeding the statutory period of confinement that part of the period was while the cattle were in the hands of an antecedent carrier.\[35\]

\_Unreasonable delay.\[86\]--\_In the absence of special contract,\[37\] delivery must be in a reasonable time,\[38\] which is a jury question.\[39\] There must be evidence of the time requisite and that actually consumed.\[40\] Judicial notice of increase in traffic may be taken.\[41\] The carrier is not liable for delay anticipated by the shipper,\[42\] or caused by him,\[43\] or by act of God;\[44\] but the carrier is not freed from liability for delay caused by Act of God, where with knowledge it accepts cattle without informing the shipper.\[48\]

Time necessarily occupied by stops as required by the Federal statute must not be considered as delay,\[48\] or time required to give attention to cattle.\[47\]

s2. Jones v. Minneapolis & St. L. R. Co. \[AIM.\] 97 N. W. 893. No liability where train is snowbound in Blizzard and cattle \[Tox. Civ. App.\] 81 S. W. 322. A charge that frozen in the absence of concurring negil- \[Tox. Civ. App.\] 81 S. W. 322. A charge that fence. Id. \[AIM.\] 33. Southern Pac. Co. v. Arnett \[C. C. A.\] 126 F. 76. Contra, a carrier is not chargeable with the neglect to afford an opportunity to feed \[Tox. Civ. App.\] 81

W. R. Co. v. Lovelady \[Tex. Civ. App.\] 81

taker, until it has been requested by him to do so and has refused. McKenzie v. Mich. \[AIM.\] 100 N. W. 260. \[AIM.\] 46 S. E. 613. Unreasonableness of delay and cause of shrinkage of cattle. Chinn v. Chinn. \[Sajes\] Ann. Civ. St. 1897, art. 326; U. S. \[AIM.\] 576, 76 S. W. \[AIM.\] 575. Whether delay was due to unavoidable. \[AIM.\] 40. Johnston v. Chicago, etc., R. Co. \[Neb.\] 97 N. W. 479. \[AIM.\] 41. Action for unreasonable delay in car- \[Tox. Civ. App.\] 81

was no evidence that such failure contributed to their injury, it was not error to refuse to charge that if injuries resulted from their being left in the cars for 28 hours the verdict should be for defendant. St. Louis S. W. \[AIM.\] 81 S. W. 1040. Where no charge presenting the defense of inherent weakness of the cattle was requested, the carrier could not complain of the failure of the court to present it. Id. \[AIM.\] 35. Rev. St. U. S. # 4386, punishing confinement of cattle more than 28 hours. Clinnnat, etc., R. Co. v. Gregg, 25 Ky. L. R. 3229, 80 S. W. 512. \[AIM.\] 36. See 1 Curr. L. 441. 37. Where a carrier had agreed that cattle should be delivered at its pens on a certain day, it was liable for injuries to them because of its negligence, though it did not have notice that the cattle had been placed in the pens. Evidence held for the jury as to whether the cattle were lost. Pt. Worth, etc., R. Co. v. Vraggner Nat. Bank \[Tex. Civ. App.\] 81 S. W. 1050. \[AIM.\] 38. Bosley V. Baltimore & O. R. Co. \[Va.\] 46 S. E. 613; Southern R. Co. v. Railey Bros. \[Ky.\] 80 S. W. 786. A common carrier is bound to transport live stock only with reasonable dispatch. Delays due to wash- \[AIM.\] 49. McKenzie v. Mich. Cent. R. Co. \[Mich.\] 100 N. W. 260. It is the duty of a carrier to transport live stock with reasonable dispatch, in view of the character of the ship- \[AIM.\] 56 A. 128. \[AIM.\] 8 Curr. Law--99. 8

\_Rest and feeding.--\_The shipper need not demand a rest.\[33\] The carrier is not, however, under an absolute duty to unload stock for rest, feed and water on the shipper's request.\[34\] It is no defence for exceeding the statutory period of confinement that part of the period was while the cattle were in the hands of an antecedent carrier.\[35\]

\_Unreasonable delay.\[86\]--\_In the absence of special contract,\[37\] delivery must be in a reasonable time,\[38\] which is a jury question.\[39\] There must be evidence of the time requisite and that actually consumed.\[40\] Judicial notice of increase in traffic may be taken.\[41\] The carrier is not liable for delay anticipated by the shipper,\[42\] or caused by him,\[43\] or by act of God;\[44\] but the carrier is not freed from liability for delay caused by Act of God, where with knowledge it accepts cattle without informing the shipper.\[48\]

Time necessarily occupied by stops as required by the Federal statute must not be considered as delay * 17 Delivery. \[48\]

- 18 Liability of carrier or connecting carrier. \[49\]--A carrier undertaking the carriage of cattle as agent of another is held to reasonable care. \[50\] In the absence of special contract, the initial carrier discharges its liability for cattle to be transported beyond its line by delivery to the connecting carrier. \[51\]

The fault is with the initial carrier in not forwarding a way bill, where the connecting carrier's agents refuse a shipment for that reason under their rules, though they might have obtained necessary information from other sources. \[52\] Where freight has been transported by successive carriers and is damaged en route, the presumption is, in the absence of evidence to the contrary, that the injury occurred upon the line of the last carrier through whose hands it passed. \[53\]

_Through contracts. \[54\]--When the undertaking is joint, all of the connecting carriers are liable for the negligence of each. \[55\] The initial carrier is liable for damages sustained on the connecting line, with a right of judgment over against such line. \[56\] A way bill to a particular destination does not show through contract. \[57\]_

_Limitation of liability, \[58\]--Where the carrier limits its liability to its own line, it cannot be held for negligence of connecting carriers, where there is no evidence of partnership or agency. \[59\]_

_Delay. \[60\]--A connecting carrier is liable for delay occasioned by defect in a car which it accepts from another. \[61\]_

- 19 Limitation of liability. \[62\]--The carrier cannot by contract free itself from liability for negligence, \[63\] or the duty to furnish a fit car, \[64\] save that the shipper may waive patent defects. \[65\] These principles are applicable to express companies. \[66\]\_

_Limitations as to amount. \[67\]--A carrier cannot limit the amount of its liability for losses caused by its negligence, \[58\]_

- 48 No cases for this section, but see 1 Curr. L. 441; and for related matter, see ante, 1 & 9. \[75\]
- 49 Rights where separate bill of lading are taken, see 1 Curr. L. 442. Rights where quarantine arises en route, see 1 Curr. L. 442, n. 10. \[75\]
- 50 Southern Kan. R. Co. v. Crump \[Tex. Civ. App.\] 74 S. W. 335. \[76\]
- 51 Pa. Co. v. Dickson, 31 Ind. App. 451, 67 N. E. 538. liability exists for injury while its employees are londing animals into car of connecting carrier. Guit, etc., R. Co. v. Danthew \[Tex. Civ. App.\] 76 S. W. 607. \[77\]
- 52. 101 Live Stock Co. v. Kan. City, etc., R. Co., 100 Mo. 674, 75 S. W. 782. \[78\]
- 53 Et. Worth, etc., R. Co. v. Shanley \[Tex. Civ. App.\] 81 S. W. 1014. In such case the burden is on the last carrier to show that the damage occurred before it received the goods, and, if it does so, the burden is then cast upon the next preceding carrier to acquire itself in the same way, and so on. Id. Initial carrier held not a joint wrongdoer with connecting carrier, so as to preclude its recovering against the latter for its liability to plaintiff for damages due to, delay in shipping cattle. Tex. Cent. R. Co. v. Cauble \[Tex. Civ. App.\] 81 S. W. 1023. \[75\]
- 54 See 1 Curr. L. 441. \[75\]
- 55 Chicago, etc., R. Co. v. Halsell \[Tex. Civ. App.\] 80 S. W. 140. \[86\]
- 56 Tex. & & & p. R. Co. v. Andrews \[Tex. Civ. App.\] 80 S. W. 890. \[87\]
- 57 Stock. Inferring v. Chesapeake & W. R. Co., 101 Va. 778, 45 S. E. 322. \[88\]
- 58 See 1 Curr. L. 442. See, also, ante, 11, 12 for related matter. \[89\]
- 59 International & G. N. R. Co. v. Startz \[Tex.\] 77 S. W. 1. Limitation to own line prevents liability for delays on connecting lines. International & G. N. R. Co. v. Earns-est \[Tex. Civ. App.\] 77 S. W. 29. \[90\]
- 60 See 1 Curr. L. 442. \[91\]
- 61 St. Louis, etc., R. Co. v. Carlile \[Tex. Civ. App.\] 78 S. W. 553. \[92\]
- 62 See 1 Curr. L. 443. See, also, ante, 11, 12, for related matter. \[93\]
- 63 Gulf, etc., R. Co. v. Dunman \[Tex. Civ. App.\] 81 S. W. 789; Botts v. Wabash R. Co. \[Mo. App.\] 80 S. W. 976. Delay \[Civ. Code, 11\]
- 2876 S. W. 782. \[94\]
- 64 See 1 Curr. L. 442. \[95\]
- 65 See 3 Cur. Law.carriers \[OF LIVE STOCK\] SS 19.

in advance as to value of stock," which agreed value or limitation merely limits recovery beyond such amount," and a rising market causing stock, though damaged, to sell on arrival at more than the agreed valuation, will not prevent recovery of actual damages up to the amount of valuation." The valuation must be reasonable." The shipper must show that an agreed valuation is not binding."

_Consideration."_--Limitations of common-law liability must be on consideration" other than the original contractual relation of the parties," hence if stipulated rates be exceeded, the limitation will not avail," but a consideration is not needed to support a limitation of liability to the carrier's own line," or a stipulation that cattle shall be valued at the place of shipment."

A shipper need not be tendered the option to hold the carrier to his common-law liability, but the carrier must be in readiness to issue a common-law bill of lading."

_Assent to limitation."_--A limitation of liability not in the contract cannot be raised by custom," though a custom to sign similar contracts raises a presumption of knowledge of the shipper."

Though a shipper has objected to a car furnished under a special contract, he reaffirms the contract if it is deemed to be abrogated, by insisting on other of its provisions."

_Provision that shipper shall accompany and care for or load and unload stock."_--A contract imposing on the shipper the duty to feed and water is valid," in the absence of statute," but failure to accompany stock as provided in a way bill does not prevent recovery for neglect of the actual duty of transportation." A custom

A contract that in case of delay the meas-

**81. See 1 Curr. L. 448.**

ure of damages shall be the cost of food

\*\*82. McCMillian V. American Exp. Ce., 133 and water while the cattle are detained

Iowa, 236, 98 N. V. 629.\*\*

will not relieve against negligence. Bosley

**83. Nashville, etc., R. Co. v. Stone \[Tenn.\]**

v. Baltimore & O. R. Co. \[W. Va.\] 46 S. E. 613: Baltimore, etc., R. Co. v. Ross, 105 III.

84. Objection as to preparation of floor

Appl. 54.

**69. Hill v. Northern Pac. R. Co., 33 Wash.**

69.74 F. 1054.

70. Nelson v. Great Northern R. Co., 28

01. See 1 Curr. L. 443.

Mont. 297, 72 P. 642.

86. Lewis v. Pa. R. Co. \[N. J. Law\] 56 A.

**71. U. S. Exp. Co. v. Joyce \[Ind. App.\]**

128; Paul v. Pa. R. Co. \[N. J. Law\] 57 A.

69 N. E. 1015.

72. A valuation of hogs at $5.00 each is

unreasonable. Nashville, etc., R. Co. v. Stone

\[Tenn.\] 179 S. W. 1031.

73. U. S. Exp. Co. v. Joyce \[Ind. App.\] 69 N. E. 1016.

01. See 1 Curr. L. 443.

01. Rice v. Wabash R. Co. \[Mo. App.\] 80

01. W. 974. Where a contract is not for a reduced rate, a limitation of liability is without consideration. Summers v. Wabash R. Co. \[Mo. App.\] 79 S. W. 481.

01. Value. Evansville, etc., R. Co. v. Keevckorder \[Ind. App.\] 69 N. E. 1022.

01. Charging larger rate for shipment of

live stock than that stipulated for, due to

fact that carrier turned car over to another

company. Hendrix v. Wabash R. Co. \[Mo. App.\] 80 S. W. 970.

78. Nashville, etc., R. Co. v. Stone \[Tenn.\] 79 S. W. 1031.

01. 101 Live Stock Co. v. Kan. City, etc., R. Co., 100 Mo. App., 674, 75 S. W. 782.

01. Evidence that person who had shipped

for years never had one is admissible to show

they had never been offered a common-law

contract. Nashville, etc., R. Co. v. Stone \[Tenn.\] 79 S. W. 1031.

81. See 1 Curr. L. 448.

01. McCMillian V. American Exp. Ce., 133 and water while the cattle are detained

Iowa, 236, 98 N. V. 629.

83. Nashville, etc., R. Co. v. Stone \[Tenn.\]

79 S. W. 1031.

84. Objection as to preparation of floor

wavived by demand of free transportation.

Gilleland v. Louisville & N. R. Co., 119 Ga.

68. Yes. See 1 Curr. L. 443.

01. Lewis v. Pa. R. Co. \[N. J. Law\] 56 A.

128; Paul v. Pa. R. Co. \[N. J. Law\] 67 A.

87. By the gylung of a reduced rate and to ship without a person accompanying is not admissible where the contract stipulates for such accompaniment."

The burden of showing cause of death is not placed on the shipper by the fact that his agents accompany the shipment," and an injury to stock through defective car flooring is not covered by an agreement by the shipper to assume care in transit."

\_Provisions for notice of injury."--\_A requirement of a verified claim for loss or damage within five days from removal of stock is valid."

\_Waiver of limitation."--\_A carrier which undertakes the duty of feeding and watering cattle without consent of the shipper who is bound to take care of them under the contract, is.liable for negligent performance."

Time of filing claim is waived by a refusal to settle based on other grounds," and a defective claim is waived by failure to object," or by denial of liability."

SS 20. \_Procedure in actions relating to carriage of stock. Right of action; parties; venue."--\_An action in tort based on violations of the carrier's common-law duty may be maintained though a special contract has been entered into, but a complaint in such an action cannot be amended to authorize recovery on the special contract."

Owners of a joint shipment may join in a suit to recover damages sustained by each." The owner may sue for stock shipped in the name of an agent."

Statutes often make the carrier s unable in any one of several counties where it may be found." Such statutes extend to shipments beyond the state boundary."

\_Pleading."--\_The facts showing negligence should be averred? and causal connection shown between the breach of duty and the injury." Gross negligence

SS8. Needy v. Western Md. R. Co., 22 Pa.

resident corporation may be sued In a country where another road, with which it has entered into a through contract, has an agent. 8t. Louis, etc., R. Co. v. White & Co. \[Tex. Civ. App.\] 76 B. W. 947. Under statutes providing that any or all of connecting carriers may be sued In any county in which either extends, it is not material that the shipper has accompanied the stock \[Gen. Laws 26 Leg. B. 214, e. 125, $ 11. Tex. & P. R. Co. v. Murtishaw \[Tex. Civ. App.\] 78 S. W. 958. Consult Venue, etc., 2 Curr. \[L. 2004.\] 85 N. V. 750.

SS. Tex. & P. R.

- 3Cur. Law. CARRIERS \[OF LIVE STOCK\] SS 20.

supervening a limitation of liability must be pleaded if relied on.\* An action may be brought on a written contract of shipment without adopting a clause limiting value, the invalidity of which is set up in the complaint,10 though a declaration on a special contract cannot be amended to aver that the contract set out is not binding.11 Where special damages are claimed, facts showing them to have been within the contemplation of the parties must be alleged.12

The pleading will be taken as in tort or on contract according to the legal effect of its allegations.13 The fact that a complaint sets up a special contract does not necessarily render the cause of action ex contract.14

Under the codes, a reply to a defense of overloading is not necessary.16 An averment that it was the carrier's duty to place a car of stock in position to be unloaded immediately on arrival is admitted by demurrer making its neglect negligence.16 A contract limiting liability is admissible under the general issue in case.17 It is a variance if negligence18 or a cause of injury19 or damage20 substantially different from that pleaded, be proved.

\_Burden of proof and evidence.21--\_The shipper has the burden of showing compliance with conditions precedent to recovery.22 It cannot be assumed that injuries are due to the fault of the carrier rather than to the natural propensities of the animals where the causes are of equal probability.23 The shipper must establish negligence concurring with an overpowering cause when such cause is established.24

Footnote 23: The author is grateful to the anonymous referee for the support of this paper.

Footnote 24: Jones V. Minneapolis & St. L. R. Co., \[Minn.\] 17 N. W. 1989.

Footnote 25: Proof that horses were in good condition when shipped, that the car in which they were was a dead and thrown down an embankment, that they bore marks of the accident and were since unservicable, timid, and different to handle, presents a prima facie case. Keyes-Marshall Bros. Livery Co., St. Louis & H. R. Co. \[Mo. App.\] 8 S. W. 1989.

Footnote 26: A contract to load and take care of hogs, to unload and also to inspect the condition of the car, and to see that doors and windows are kept fastened, prevents the per to show negligence,\[27\] the carrier has burden of showing that loss falls within the exemption,\[28\] and has burden of showing assent to a limitation,\[29\] a presumption of which arises from the signature of the shipping contract.\[30\] A shipper alleging want of consideration for a limitation of value has the burden.\[81\]

There is no presumption that the time scheduled to be made by cattle trains is reasonable.\[32\]

_Admissibility\[28\] and sufficiency\[34\] of evidence_ are discussed in illustrative cases

hurden of proof of freedom from negligence

\[estimty as to value of cattle at destination passing on mere proof of failure to deliver the number of hogs loaded. Needy v. West-

\[real\] had they been delivered in the condition they should have been. Gulf, etc., R. Co. v.
3 Cur. Law. CARRIERS \[OF LIVE STOCK\] SS 20. 615 cited. Testimony as to market value at a certain place and on a certain day is admissible even though acquired from market reports and newspapers.\[85\] Nonsuit cannot be directed in an action for failure to promptly furnish cars though there is no proof of value at destination.\[86\] Evidence that cattle were sold at an established market in the usual manner is sufficient to establish sale at market value.\[87\] Where an initial carrier delayed stock during the most trying time of day, the jury may infer that the injury occurred on that rather than a connecting line.\[88\]_Instructions._--The rules usual in civil actions are applicable.\[32\] Where the carrier's liability is limited to its own line, a special charge must be given on dam-

suitable for shipping and to warrant sub-

by other cattle in cource of transportation. mission of question as to which of two con-

\[Covered by general charge.\] Gulf, etc., R. meeting carriers was liable for such failure. Co. v. Dunn \[Tex. Cliv. App.\] 81 S. W. Chicago, etc., R. Co. v. Carroll \[Tex. Cliv.\]. 789. As to liability for delay caused by an-

App.\] 81 S. W. 1020. Unreasonable delay, landing cattle for food, water, and rest. Ft. damaging hogs, over contention that it was

Worth, etc., R. Co. v. Alexander \[Tex. Cliv.\], exp.\] 81 S. W. 1015. As to burden of show-

v. Mo., etc., R. Co., 99 Mo. App.\] 518. 74 S. W. 2. Negligence in billing cattle to con-

for injuries to horses,-erroneous. Ft. meeting carrier. 101 Live Stock Co. v. Kan-

Worth, etc., R. Co. v. Shanley \[Tex. Cliv. App.\] 81 S. W. 1041.

S. W. 782.

Instructions in action for damage and

executed on false representation of agent

etc., R. Co. v. Battle \[Tex. Cliv. App.\] 81 S.

that initial carrier assumed through lia-

Worth, etc., R. Co. v. Alexander \[Tex. Cliv. App.\] 78 S.

biltry, Louisville & A. R. Co. v. Bennett,

"reasonably prudent" is harmless. St. Louis

26 Ky. L. R. 834, 76 S. W. 408. Unwarranted

delay and failure to shower hogs. Wallace

V. Lake Shore, etc., R. Co. \[Mich.\] 95 N. W. 1021.

W. 750.

W.S. Chicago, etc., R. Co. v. Halesell \[Tex. Cliv. App.\] 81 S. W. 1241.

W. 83. Plaintiff entitled to at least nominal

damage. St. Louis S. W. R. Co. v. Muick

\[Tex. Cliv. App.\] 80 S. W. 673.

**37. St. Louis, etc., R. Co. v. White & Co.**

\[Tex. Cliv. App.\] 76 S. W. 947.

**38. Wallace v. Lake Shore, etc., R. Co. \[Mich.\] 95 N. W. 750.**

\*\*39. See generally article Instructions, 2

Curr. L. 461; also specifically consult 1 Curr.

emitted to designate connecting earlier held

L. 446.

Queactions for jury see 1 Curr. L. 446. n.

66-72. Instructions in action for damages

for injuries to cattle held not objectionable

as tending to confuse the jury. Gulf. etc.,

R. Co. v. McCord \[Tex. Cliv. App.\] 81 S. W. 1032. Question submitted just as requested.

Cibicago, etc., R. Co. v. Carroll \[Tex. Cliv. App.\] 81 S. W. 1020. As to counterclaim

for negligent killing of Jack, held covered

by other instructions in action to recover

for his transportation. Pacific Exp. Co. v. Emerson, 101 Mo. App. 62, 74 S. W. 132.

That failure to transport stock on regular

stock train was not negligence \[refused as

outside issues\]. St. Louis S. W. R. Co. v. Loveday \[Tex. Cliv. App.\] 81 S. W. 1040.

**Partleuler instructions**: An Instruction

that the carrier would not be liable for the

**rough handling** of cattle for lione in the usual

and customary manner held erroneous. Chicago, etc., R. Co. v. Carroll \[Tex. Cliv. App.\]. 81 S. W. 1020. In an action for injuries to

cattle where defendant claimed that they

were weak from prior lack of care, Instructions

tion falling to require that plaintiff's prior

treatment of cattle must have proximately

caused or contributed to cause the injuries

In order to preclude recovery, held erroneous. Ft. Worth, etc., R. Co. v. Alexander

\[Tex. Cliv. App.\] 81 S. W. 1015. As to lia-

Instructions as to damage for delay in tur-

bility of carrier for Injuries to cattle hooked

W. 83.

**40.** ages which the evidence shows to be due to delay by a connecting carrier, though a general charge is given.40 Defendant is entitled to have submitted the issue of injury being proximately caused by condition of cattle and not delay.41

SS 21. \_Damages.42--\_The measure of damages is usually the difference between the market value at the time and in the condition they arrive and the value at the place, time, and in the condition in which they should have arrived,48 and necessarily added expense,44 but only such as is reasonably necessary.48 Value at final destination controls.46 Where expense of feeding at point of delivery and also shrinkage is recovered, the weight should be taken after feeding.47 Interest from time of demand of damages may be awarded.48 The measure of damage for cattle dying en route is reasonable net value at destination.49 A carrier guilty of negligence or unreasonable delay proximately causing injury is liable though the results may have been more disastrous than had the cattle been in good condition.50 In the absence of notice of a special contract of sale, it does not bear on damages.51 A contract, silent as to time, does not exclude special damage from failure to reach a market in time.52 The carrier tardy in furnishing cars is responsible for loss occasioned by failure to reach a particular market though connecting carriers also delayed the shipment, and had they not done so the market would have been reached.56

ing double damages. St. Louis S. W. R. Co. N. E. 804. Mares may be shown to have v. Musick \[Tex. Civ. App.\] 80 S. W. 673. Not erroneous as authorizing recovery for nat- \[Tex. Civ. App.\] 78 S. W. 673. Not erroneous as authorizing recovery for nat- \[Tex. Civ. App.\] 78 S. W. 673. Not erroneous as authorizing recovery for nat- \[Tex. Civ. App.\] 81 S. W. 674. Not erroneous as authorizing recovery for nat- \[Tex. Civ. App.\] 81 S. W. 675. There is harmless error in allowing the jury to fix market value at a point a as to measure of damages in action for indin- \[tom. 101 Live Stock Co. v. Kan. Civ. etc., to Inform jury that carrier would not be \[tom. 101 Live Stock Co. v. Kan. Civ. etc., Ilabic for injuries caused by their inherent weaknesses. St. Louis S. W. R. Co. v. Loveday \[Tex. Civ. App.\] 81 S. W. 1040. In: action for damage to and delay in shipment of stock erroneous as precid- \[tom. 101 Live Stock Co. v. Kan. Civ. App.\] 81 S. W. 1015. Intstructions limiting amount of recovery to that fixed by contract, erroneous, where delay due to carrier's negligence. Botts v. Wabash R. Co. \[Mo. App.\] 80 S. W. 976. Intstruction as to measure of damages for delay in shipping cattle erroneous as stating wrong rule, and as deciding a question of fact in issue. Chicago, etc., R. Co. v. Hall- \[Tex. Civ. App.\] 81 S. W. 1241. Under evidence and contract, instruction that carrier was not liable for damages for failure to feed and water stock at station, approved. St. Louis S. W. R. Co. v. Hunt \[Tex. Civ. App.\] 81 S. W. 322.

40. Gulf, etc., R. Co. v. Dunman \[Tex. Civ. App.\] 76 S. W. 588.

01. Tex. & P. R. Co. v. Dawson \[Tex. Civ. App.\] 78 S. W. 235.

01. See 1 Curr. L. 447. General questions of damages are treated in the article Damages.

01. Chicago, etc., R. Co. v. Halsell \[Tex. Civ. App.\] 81 S. W. 1241; Gulf, etc., R. Co. v. Ware \[Tex. Civ. App.\] 78 S. W. 961. Charge held not prejudicial. St. Louis, etc., R. v. Barnes \[Tex. Civ. App.\] 80 S. W. 104. Market value means price cattle will bring when market is opened after their arrival. Southern Kan. R. Co. v. Crump \[Tex. Civ. App.\] 74 S. W. 335. Evidence as to proceeds of sale a month later is immaterial. Cleveland. etc., R. Co. v. Patton. 203 III. 376. 67 3. Cur. Law. CARRIERS \[OF passengers\] $ 32. 617

The shipper must not be negligent in preventing further damage.\* A shipper of cattle for sale is not bound to hold and feed them in order to obviate the effect of a carrier's negligence, but may dispose of them at once and sue for the difference between the market value and what it would have been if they had been properly transported.\[58\] Evidence on damages and instructions on same have already been discussed.\[59\]

Part IV. CARRIAGE OF Passengers.

SS 22. \_Who are passengers.\[57\]--\_A passenger is one who travels in some public conveyance, by virtue of a contract, express or implied, with the carrier.\[58\] A contract will be implied from knowledge and consent of the conductor,\[59\] and from the boarding of a car with intent to pay fare,\[60\] or in good faith.\[61\] Passengers include all those who solicit the services of the carrier.\[62\]

The possession of a ticket is not essential,\[63\] and the person may be on the

reasonable dispatch. Pa. Co. v. Dickson, 31

pose of taking the cars as soon as they are

Ind. App. 451, 67 N. E. 538.

S3. Tex. & F. R. Co. v. Smith \[Tex. Civ. App.\] 17 S. E. 698, 20 L. R. A. 520; War. App. J. 79 S. W. 614.

54. Facts held not to warrant application of rule. Hogs. Lackland v. Chicago & A. R. Co., 101 M. App. 420, 74 S. W. 505.

01. St. Louis S. W. R. Co. v. Hunt \[Tex. Civ. App.\] $1 S. W. 322.

01. See ante, $ 20.

01. Who are common carriers, see ante,

$ 1. See 1 Curr. L. 448, 449.

58. An employee of the shipper accompanying live stock, whose transportation has

been included in the price paid as freight,

Is a passenger within meaning of act exempting railroad company from liability for injuries to anyone not a passenger (Act April 4, 1868; 2 Purd. Dig. p. 1604, p. 6). Rowdin

v. Pennsylvania R. Co., 208 Pa. 622, 57 A.

1128.

NOTE. When one becomes a passenger

The relation of passenger and carrier is

commonly to be implied from circumstances

which must be such as to warrant the implication that the one has offered himself

as a passenger and the other has accepted

him. Ordinarily the carrier will not be

deemed to have accepted one as a passenger

ger unless he has presented himself to be

carried in a proper condition, in a proper

manner and at a proper place. The previous

purchase of a ticket is not a controlling circumstance. Thus one who had a ticket and

was running across the railway premises

outside the station to catch a train, and was

struck by an incoming train, was held not

a passenger. Webster v. Fitchburg R. Co.,

161 Mass. 298, 37 N. E. 165, 24 L. R. A. 521.

On the other hand, a person may under certain circumstances be entitled to the rights

croplitan St. R. Co., 167 Mo. 471, 57 S. W.

of a passenger, though he has not yet purchased a ticket. So where one goes to

station in good faith at a reasonable handle

to take a train (Grlmes v. Pa. Co., 36 F.

72); or who goes to station to take a train

(Grlmes v. Pa. Co., 36 F.

72); or who goes to station to take a train

in case he found a friend on board (Tex. & Q.

72). In Canada v. Sixth Ave. R. Co.,

P. R. Co. v. Best, 66 Tex. 116, 18 S. W. 224):

or is on his way to the station in a stage

managed by the company (Buffett v. Troy &

B. R. Co., 40 N. T. 168): or on who has not

bought a ticket because told by the agent

to pay on the train (Allender v. Chicago,

etc., R. Co., 37 Iowa, 264). The relation

or, finally commences at least as soon as a

ticket is purchased with the immediate pur-

(Grlmes v. Pa. Co., 36 F.

72); or who goes to station to take a train

in case he found a friend on board (Tex. & Q.

72). In Canada v. Sixth Ave. R. Co.,

P. R. Co. v. Best, 66 Tex. 116, 18 S. W. 224):

or is on his way to the station in a stage

managed by the company (Buffett v. Troy &

B. R. Co., 40 N. T. 168): or on who has not

bought a ticket because told by the agent

to pay on the train (Allender v. Chicago,

etc., R. Co., 37 Iowa, 264). The relation

or, finally commences at least as soon as a

ticket is purchased with the immediate pur-

(Grlmes v. Pa. Co., 36 F.

72).

wrong train,54 though a person who offers to pay fare only to a station for which the train does not receive passengers becomes a trespasser.54 One entitled to carriage in a particular manner may be a trespasser if he fail to comply with the agreement.54 The same person may be both an employee and a passenger.54

One riding on a pass which was void because declared so by statute can, it has been held, recover for injuries sustained.54

Persons stealing rides55 or attempting to evade payment of fare are trespasser,56 and such acts are made criminal in some states.57

Persons on other than passenger trains.58-Ordinarily one is not a passenger who boards a train not designed for such traffic,54 but a person of authority may permit one to so become a passenger.59

Mere belief in his authority does not suffice,50 nor does silent acquiescence of a conductor in a person's riding on an engine at the engineer's invitation make him a passenger.50

said: "A newsboy jumping on and off a moving street car to sell his newspapers, 79 S. W. 598.

not hailing to stop the car to receive him, 65. Flood v. Chesapeake & O. R. Co., 25

nor signaling to stop to allow him to alight, 66. A newsboy on running board is a trespasser when his sole rights were under a leave or license, but jumping on and off an contract to enter and leave by rear plat-der circumstances that clearly indicate no purpose to pay fare, and no aim to be transferred. Poston El. R. Co. \[Mass.\] 70 N. E. 52.

ported, but only to avail himself of the press-

67. Telegraph lineman riding to and from ence of persons on the ear likely to buy his his work and having nothing to do with the papers. is in no sense a passenger." It has also been held that he is in no better posi-

01. Flood v. Chesapeake & O. R. Co., 25

tion if he is ready to pay fare if called upon.

69. Laws 181, 520, 5, 4, making it an

Raming v. Metropolitan St. R. Co., 157 Mo.

unjust discrimination. McNeill v. Durham & 471, 67 S. W. 268. The cases are not in ac-

cords as to the degree of care required of the

company under these circumstances. In

effect. Id. Authorities collected and dis-

North Chicago St. R. Co. v. Thurston, 43 III.

cussed on the doctrine of pari delicate. Dis-

App. 587, it was held that the plaintiff could

not recover unless he could prove that the

by Montgomery, J., holds that the traveler

company wantonry or willfully infinded an

must either found his action on a riding

injury upon him, and in Fleming v. Brooklyn

without fare, which is uniteful, or on a con-

City R. Co., 1 Abb. N. C. 433, affirmed 74 N. Y. 5618, the court said: "The complaint pro-

69. See Railroads, 2 Curr. L. 1382; Street

ceeds upon the theory that, by permitting

newsboys to traffic with the passengers on

the carre; dules toward them. Pledger v.

the cars, the defendant becomes charged

with the duty of looking after their safety,

of seeing that they do not run into danger,

and of stopping and slackening the speed

of the car for them to leave, whether requested to do so or not. I do not think the

railroad company can fairly be said to have

assumed any such obligation. Of course the

driver had no right to do anything which

would reclassically or needlessly expose this

boy to danger." In Pledgitt v. Moll, 159 Mo.

143, 60 S. W. 121, it was held that, while the

plaintiff was in no sense a passenger, and

the carrier was not under any obligation to

observe towards him the same degree of care

which it was obliged to show its passengers,

nevertheless the law did require, under each

circumstances, the exercise of ordinary care.

If a newsboy is allowed on a car, and is

then ordered to get off when he can do so

with safety, he is a trespasser if he remains

on the car, and protected from will in-

jury only (Indianapolis St. R. Co. v. Hocket

\[Ind. App.\] 54 N. E. 633), but he must hear

the order (Indianapolis St. R. Co. v. Hocket,

161 Ind. 196, 67 N. E. 105)--From Clark, St.

Ry. Acc. Law \[2d Ed.\] $ 11.

64. Is entitled to the same care. St.

- 3 Cur. Law. CARRIERS \[OF passengers\] $ 22. 619

A continued and open and notorious disregard of rules by employees may amount to a waiver.\[77\] It will not be presumed that a brakeman on a freight train has authority to make an agreement 'to carry a passenger,\[78\] even though the carrier knows they have previously done so,\[79\] or that one becomes a passenger by getting on a coal car\[80\] not open to passengers.\[81\] The burden is on plaintiff to prove that such is the case.\[82\] Caretakers of live stock in transit are passengers for hire,\[83\] and the freight contract need not bear their names.\[84\] _When relation begins.\[85\]_--The passenger may be such though he has not yet paid his fare,\[86\] or have actually boarded the car or train provided he has indicated his intention,\[87\] but until some offer is made to become a passenger, the conductor is not bound to anticipate such intention,\[88\] and the purpose of becoming a passenger must be so evinced that the conductor or carman could or should have observed, it.\[89\] The character attaches when the intending passenger passes over the carrier's premises in his approach to the car,\[90\] even though he mistakes his car.\[91\]

The intending passenger's coming must be a reasonable time before departure of the train,\[92\] and he must remain in the station and places provided the belief that a track superintendent had the express company's agents and conductor the right to authorize him to ride thereon, of the train consented to his presence. Id. is a trespasser, but not a Wilful one. Ala. 85. See 1 Curr. L. 448.

& V. R. Co. v. Livingston \[Miss.\] 36 So. 256. 86. As where he intends to and is prepared to pay. Dallas Rapid Transit R. Co. v. Payne P. 212. 77. Carriage of passengers on freight trains. Greenfield v. Detroit & M. R. Co. \[Mich.\] 95 N. W. 646. 87. Montreal relation between passenger and carrier begins as soon as the passenger comes within the sphere of peri in- 78. Missouri, etc., R. Co. v. Huff \[Tex.\] 81

& V. W. 625. 79. Does not raise an inference that they have authority to do so. Missouri, etc., R. Co. v. Huff \[Tex.\] 81 S. W. 525. In action for injuries received while riding on coal car in freight train, where plaintiff claimed to have paid his fare to a brakeman, instruction as to plaintiff's right to assume brake. & passenger, though he may be neg- 78. Missouri, etc., R. Co. v. Huff \[Tex.\] 81

& V. W. 625. 79. Does not raise an inference that they have authority to do so. Missouri, etc., R. Co. v. Huff \[Tex.\] 81 S. W. 525. In action for injuries received while riding on coal car in freight train, where plaintiff claimed to have paid his fare to a brakeman, instruction as to plaintiff's right to assume brake. & V. W. 646. 88. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 99. 91. 92. 94. 99. 93. 95. 97. 98. 99. 99. 91. 92. 94. 99. 95. 99. 96. 99. 97. 99. 98. 99.

for his accommodation." Whether the relation exists is for the jury on a conflict of evidence."

\_When relation ceases or is interrupted."--\_The relation exists from starting point to usual stopping place at final disposition,"88 and during the period needed for a safe exit." The arriving passenger is entitled to remain at the station such time as is reasonably necessary to prepare for departure."8 It does not cease when one goes on the platform to change cars" or recheck baggage."

After alighting from a street car in the street, passenger becomes at once a traveler on a public thoroughfare;" otherwise during unnecessary departures from his'car while en route." The fact that a passenger assumes a dangerous position on the car does not alter his character as a passenger."

Where a person is injured while riding on a train at a distance from a station, his status as a passenger is not determined by the relation he may have borne to the carrier at the station." One who, having once disembarked from a train, returns for the purpose of using it as a mode of crossing the track, is a mere trespasser."

SS 23. \_Duty to receive and carry passengers."--\_A railroad as a common carrier must permit all who pay the regular fare to travel on their trains," unless their condition is such as to render them dangerous to the safety or comfort of other passengers," or their known purposes in traveling are unlawful."10 If departure. Holcombe v. Southern R. Co., #6 S. C. 6, 44 S. E. 68.

**93. Holcombe v. Southern R. Co., #6 S. C. 6, 44 S. E. 68.**

**94. Citizen's St. R. Co. v. Jolly, 161 Ind. 50.**

**95. See 1 Curr. L. 448.**

**96. One does not as a matter of law cease to be a passenger on leaving a train on which he is riding in charge of property at a temporary stop before it was placed at a spot to be unloaded and returning next morning. Hardin v. Ft. Worth, etc., R. Co. \[Tex. Civ. App.\] 17 S. W. 431.**

**97. Is entitled to the highest degree of care. Filinsham v. St. Louis Transit Co., 103 Mo. App. S73, 77 S. W. 314. Carrier liable if, after plaintiff started to leave street car, but before she reached platform, it was suddenly started and she was thereby thrown down and injured. Kroner v. St. Louis Transit Co. \[M. App.\] 80 S. W. 915.**

**98. St. Louis S. W. R. Co. v. Wallace \[Tex. Civ. App.\] 74 S. W. 581.**

**99. One having a through ticket, who is required to go upon a platform in order to change cars. Wood v. Metropolitan St. R. Co. \[Mo.\] 81 S. W. 152.**

**1. Where, with knowledge, the carrier permits a passenger to alight to recheck baggage. Chicago, etc., R. Co. v. Gore, 105 III. App. 16.**

**2. Indianapolis St. R. Co. v. Tenner \[Ind. App.\] 67 N. E. 1044; Louisville R. Co. v. Meglemery, 25 L. R. 1587, 78 S. W. 217; L. 25 Ky. L. R. 2642, 79 S. W. 287. See Clark. St. Ry. Acc. Law (2d Ed.) 7, 8.**

**3. One who leaves a through train on which he is a passenger at a temporary stop for the purpose of getting a drink is not a passenger, and his negligence in attempting to cross a track ahead of a train bars any recovery for injuries \[Comp. St. 1901, c. 72, art. 1, $ 3\]. Sattler v. Chicago, etc., R. Co. \[Neb.\] #8 N. W. 663.**

**4. Standing on a projection outside the**

**5. C. 6, 44 S. E. 68.**

**93. Holcombe v. Southern R. Co., #6 S. C. 6, 44 S. E. 68.**

**94. Citizen's St. R. Co. v. Jolly, 161 Ind. 50.**

**95. Radley v. Columbia Southern R. Co. \[Or.\] 75 P. 212.**

**96. Injured by stumbling over water hose and sudden jerking of train. Rattenee v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 81 S. W. 666.**

**97. See 1 Curr. L. 453-459.**

**8. The fact that a passenger has been drunk on previous occasions does not justify his exclusion when in fit condition. Code \[1883, 1895 is, mandatory as to duty to transport. Bottery v. Norfolk & S. R. Co., 133 N. C. 59, 45 S. E. 349. Nor can the carrier show intoxication at a later date. Id. A new agent subject to the rules of the carrier, though not in its employ, on being ejected for an infarction of the rules, is entitled to ride on tender of fare. Choctav, etc., R. Co. v. Hill, 110 Tenn. 396, 75 S. W. 963. A person engaged in ticket scaling cannot for that reason be refused passage on payment of fare. Ford v East Louisiana R. Co., 110 La., 414 S. 58.**

\*\*99. A 3 Cur. Law. CARRIERS \[OF PASSENGERS\] $ 23. 621

it is necessary that a violent lunatic be transported, the carrier is entitled to notice to make proper arrangements.\[11\] A carrier is not required to take a passenger on a train which is not a passenger train.\[12\] Punitive damages for a wanton or aggravated exclusion,\[18\] and special damages in contemplation of the parties,\[14\] may be recovered.

_Through trains_ may be run, not stopping save at schedule stations,\[18\] but there must be no discrimination in receiving and refusing differently ticketed passengers.\[16\] Stops\[17\] are obligatory, at customary places only.\[18\] They must be such as to enable one to board.\[19\]

_Stops must be made at flag stations_ on proper signal,\[20\] if seen and understood\[21\] by the engineer or trainmen,\[22\] else the carrier will be liable both for compensatory\[28\] and punitive damages,\[24\] if the failure to stop was willful.\[28\]

\_Ejection of passengers.\[26\]-A passenger failing to produce a ticket good on its face,\[27\] or a transfer slip,\[28\] or other indicia of right, or to pay fare, may be expelled. It is no excuse that he has lost it,\[29\] or has entrusted it to another

whom it knew to be traveling for the execu- | thrd person held confusing. Southern R. Co. v. Lanning \[Miss.\] $5 So. 417.

**11.** A carrier cannot be bound to transport a lunatic in a baggage car. Owens v. gineer to understand the signal. Southern Macon & B. R. Co., 119 Ga. 230, 46 S. B. 87.

**12.** One code out on an emergency train.

**22.** The question of whether employees the conductor refused to carry him back. Louisville & N. R. Co. v. Du Bose \[Ga.\] 47

**3.** B. 817.

**13.** When, In the presence of a large crowd, the conductor pushes back an Intending passenger, telling him he was drunk and fault, there is no ground for recovery, and a nuisance, there is evidence of "wanton- " 638 CARRIERS \[OF PASSENGERS\] $ 23. 3 Cur. Law. who fails to board the train.\[30\] Though the carrier was first in the wrong by refusing a proper transfer\[31\] or ticket,\[32\] the attempt to travel without paying the demanded fare will subject one to ejection;\[33\] but where a passenger boards the first train he is given an opportunity to, he cannot be ousted because the limit of his ticket has expired\[34\] by reason of the carrier's delay.\[35\] One who is on a car without right to free passage, and refuses to pay his fare, may be ejected\[36\] after demand of ticket or fare and refusal.\[37\] Disorderly conduct will justify expulsion,\[38\] but not merely ungracious language and demeanor.\[39\] If a ticket is invalid, the traveler's good faith in assuming to ride does not protect him,\[40\] unless the carrier or its agent sold a defective ticket and he had no notice.\[41\] Similarly, the holder of a transfer slip which is defective by the carrier's fault is entitled to ride\[42\] on proper explanation.\[43\] He need not have examined it,\[44\] but a transfer may be properly refused after expiration of the hand. Harp v. Southern R. Co. \[Ga.\] 47 S. 38. 39. 39.

3 Cur. Law. CARRIERS \[OF PASSENGERS\] SS 23. 623

time limited on its face.\[45\] The passenger must show the carrier at fault in giving an expired transfer,\[46\] and when he has opportunity or occasion, he should demand a new transfer before leaving his car.\[47\] One conductor's statement to another will not take the place of a transfer.\[48\]

A mistaken passenger on a wrong train should be transported back or left at a proper place until it is done.\[49\] But if one knowingly boards a train not for passengers,\[50\] or requiring pay for extra accommodations which he refuses,\[51\] or not scheduled for his station,\[53\] he may be expelled.

_Tender of fare to avoid expulsion.\[54\]--After expulsion begins, tender of fare is ordinarily,\[54\] but not always, too late.\[55\] The carrier was in a late case held bound to accept tender of fare by fellow passengers after threat of expulsion and refusal to pay.\[56\]_

_Manner of ejection.\[57\]--The act of ejection must be with no unnecessary force,\[58\] and at a proper place\[59\] and with respect to obvious or known conditions.\[60\] The carrier must be foresighted to guard an apparently helpless person from danger after ejection.\[61\]_

_Injuries caused by resistance.\[62\]--Injuries occasioned by undue resistance,\[53\]_

45. Passenger must pay hie fare, but may stop, refusing to pay fare to the next regu- have an action against the company in case the fault' is the company's. Garrison v. United R. & Elec. Co., 97 Md. 341, 55 A. 371.

01. Hornosely v. Ga. R. & Elec. Co. \[Ga.\] 48 S. E, 839.

Note: The numerical weight of the decisions favors the rule that he may rely on what has been given him. Clark, St. Ry. Acc. Law, 8 83.

47. Time limit expires through delay of the car on which he is riding. Held, that passenger who voluntarily left the car and attempted to reach the transfer point before the time limit expired could not recover, though a company's custom was not to Issue new transfers in case of delay. Hornes-by v. Ga. R. & Elec. Co. \[Ga.\] 48 S. E, 839.

01. Conductor of connecting line failed to furnish a transfer and informed the re-evolving conductor that the fare was paid. A passenger refusing to pay under such cir-cumstances is evading payment of fare with-in he. Laws, C. 111, 8 251, and his arrest is justified. Crowley v. Fribourg & L. St. R. Co. \[Mass.\] 70 N. E. 56.

01. Evidence held for jury as to negligence in putting off female passenger without money at a point requiring many hours visit. St. Louis S. W. R. Co. V. Pruit \[Tex. Civ. App.\] 79 S. W. 593. Instruction held not erroneous as stating that it was negligence to refuse to carry a person boarding the wrong train to a particular station where she had relatives. Id. \[Tex.\] 80 S. W. 72.

01. Wulver of rules: Where rules against carriage of passengers are opiny and habitually violated, and for such time that the officers by use of ordinary care might have known thereof, they are presumed to be abrogated. The same rule applies to authority of employees to invite passengers to board and to collect fares. Evidence held sufficient. Mo., etc., R. Co. v. Huff \[Tex. Civ. App.\] 78 S. W. 249.

01. Ticket not good except in hands of purchaser of berth. Ames v. Southern Pac. Co., 141 Ca. 728, 75 P. 310.

01. A person who goes on a train with knowledge that it does not stop at his destination and does not get off at the previous 634CARRIERS \[OF PASSENGERS\] SS 23. 3Cur. Law. beyond that which is incidental to a removal by force and compulsion,64 will not be compensated, and where violent and unnecessary force is used, contributory negligence of the passenger in resisting need not be submitted.65

Footnote 64: The author is grateful to the anonymous referee for the support of this paper.

Footnote 65: The author is grateful to the anonymous referee for the support of this paper.

Footnote 66: The author is grateful to the anonymous referee for the support of this paper.

Footnote 67: The author is grateful to the anonymous referee for the support of this paper.

Footnote 68: The author is grateful to the anonymous referee for the support of this paper.

4. 3 Cur. Law. CARRIERS \[OF PASSENGERS\] $ 33. 625

tract growing out of an expulsion for defect in a transfer.\[77\] They may be awarded where the conductor refuses to accept a female passenger's explanation that she has been directed by a station agent to take that particular train, and ejects her alone and in the night.\[18\]

_Remedies and procedure for ejection.\[79\]_--Wrongful expulsion from a train is not only a breach of contract but also a tort.\[80\] For wrongful ejection, the cause of action arises where the ejection occurs,\[81\] and if plaintiff seeks to recover for the physical and mental pain, the action is one for personal injuries, and venue is so fixed.\[82\] The action is ex contractu when the negligence was in defectively punching the return portion of a ticket.\[83\] The municipal court of New York has jurisdiction of an action for wrongful ejection.\[84\]

An action on a violation of a contract of carriage and one for excessive force in ejection cannot be joined,\[85\] nor can negligence of a ticket seller and wrongful ejection be pleaded in the same count.\[86\] Allegations of inducement that plaintiff purchased a ticket do not sound in tort.\[87\] Actual ejection must be pleaded.\[88\] An averment that an assault was committed by a carrier through its employees is sufficient.\[89\] A plea that a conductor was acting as a police officer in ejecting a passenger is insufficient without alleging ground for so acting.\[90\] Where disorderly conduct is set up in justification of ejecentent, it must be averred that only such force was used as was reasonably necessary.\[91\] Where it is alleged that excessive force was used, variance between an allegation that plaintiff was a passenger and proof that she was a trespasser is immaterial.\[92\]

The carrier must establish refusal to pay fare,\[93\] and contributory misconduct on the part of plaintiff,\[94\] but there is no presumption that a person riding on the blind baggage is a passenger.\[95\] The general rules as to admissibility of evidence are applicable as illustrated below.\[96\] In the absence of directions in the ticket, plaintiff, in an action for ejection, may show declarations of ticket agents and conductors as to proper routes.\[91\] Evidence of plaintiff's good character is not admissible.\[98\] Accepting a ticket sold by another company is evidence that the selling company acted as agent for the road accepting the same.\[99\] Instances of sufficiency of evidence,\[1\] and holdings as to the propriety of particular instructions will be found in the footnotes.\[2\]

\_Delays.--\_By the sale of a ticket, a carrier impliedly contracts to transport the passenger to his destination without unreasonable delay,\[9\] on schedule time.\[9\] The burden is on the carrier to show the cause of a delay, and that it was excusable.\[9\] For delay the passenger may recover such actual damages as the

Coine v. Chicago, etc., R. Co. \[Iowa\] 99 N. \[of negro policeman. Randell v. Chicago, W. 194. As explaining failure to produce tickets taken up, one with knowledge may be found in the footnotes.\[2\]

Footnote 1: http://www.math.ucsd.edu/ carrier might reasonably have anticipated would result,\* but not punitive damages unless the carrier's conduct was willful, wanton and malicious.\* Wanton disregard of duty is not shown by the detaching of an engine from a train for the purpose of forwarding a Pullman car in pursuance of orders issued on account of a wreck.\* Allegations that defendant "wrongfully and unlawfully" refused to convey plaintiff according to its schedule are to be disregarded, since they do not assign specific legal character to the acts of defendants.\*

SS 34. _Rates and fares, tickets and special contracts._\[10\] Right of public to supervise rates.\_\[11\]--Except where it has been lawfully bargained away,\[12\] the state or its authorized subdivisions\* may regulate fares and rates in a reasonable degree,\[14\] especially when so reserved or fixed in charter or franchise.\[13\] A statute fixing the rate per mile does not require the charge to be divided for distance less than a mile.\[16\] The statutes of New Jersey give railroad companies an uncontrolled discretion to fix such rates as their own interests may from time to time require, subject only to the maximum rates therein specified, and to the reserved right of repeal and modification by the legislature.\[17\] The courts may decide whether a particular rate is reasonable or unreasonable, or a given statutory rate confiscatory, but they have no power to declare in general what rates shall not be exceeded.\[18\] An injunction pendente lite may be granted by a Federal court against the enforcement of an order of a state railroad commission unwarrantedly reducing rates.\[19\] It is not a discrimination\* to refuse the United States the benefit of a

- **G.** Verdict excessive where no evidence of him laf are to school children (Acts 28th Leg. time lost and little as to physical comfort \[1903\] c. 116, p. 182), in view of constituluonal provision that all franchises are sub-Co. v. Harder \[Tex. Civ. App.\] 81 B. v. 356. Not for inconvenlence, loss of time or fatigue, unless it has produced pecuetary damage or S. W. 106. The power to regulate rates to personal loss. Miller v. Southern R. Co. \[S. De charged by carriers belongs to the legis-

C.1 48 S. E. 99. Mere inconvenience, annoyance and delay cannot be recovered for on S. Fraction Co. \[N. J. Err. & App.\] 85 A. 332. breach of contract for through transportation. Miller v. Baltimore & O. R. Co., 89 App.\] 85 A. 332. Div. 457, 85 N. Y. S. 883. 884. 7. Miller v. Southern R. Co. \[S. C.\] 48 S. E. 99. Where a train was delayed 10 hours and no information given the passengers, a charge that the company was not liable for \[Mass.\] 70 N. E. 37.

- **14.** Must not work a practical destruction of carrier's property. No evidence in man-

- **S. E. 565.**

- **10.** See 1 Curr. L. 449, and consult re-

- **11.** 1 Curr. L. 452, round

- **12.** Imparing contract or vested rights: Acceptance of a location granted by a town

- **13.** Charactered under a provision reserving

- **14.** The acceptance of an ordinance securing

- **15.** The acceptance of a ordinance securing

- **16.** The possible the benefit of a five cent fare

- **17.** Cerad a contract right to charge such fare

- **18.** The possible the possibility of a new fare

- **19.** The possible the possibility of a new fare
  "ten party" rate in the transportation of soldiers." An agreement between a railroad company and a competitor, that during a limited period the former will not reduce passenger rates unless required by law to do so, is not contrary to public policy."

Penalties for overcharge."--A mistake in good faith as to the right to make an increased charge because of grades overcome is within an exception from penalty of those acting by mistake." A penal action is one founded on a "statute," and hence each statute declared on must in New Jersey be indorsed on the process."

Tickets and contracts.--Except as there has been an express agreement, the contract is implied from circumstances and the duty of carriage, and not from subsequent statements of employees," or mere coincidences." The contract may exist on payment of fare by a stranger," but the fact that one purchases a ticket for another does not constitute a contract between the purchaser and the carrier." In so far as the ticket is a mere voucher or receipt," parol evidence is admissible to show the terms of the contract," but the terms of a contract ticket, signed by the passenger cannot be so varied."

Conditions and limits.--The carrier may exact as a condition to a reduced rate excursion ticket that the holder identify himself by signature, and if this is not satisfactory, by other proofs." A ticket torn in two pieces is not a "mutilated" one and therefore void." A passenger has a right to ride on a first class ticket for which he has paid full fare, at any time." The validity of a ticket cannot be limped as a single line where the road is credited with increased business and reduced expenses. The value of the property returned for taxation is not conclusive. The railroad commission of Florida is not exempt from injunction as a judicial body. Louisville & N. R. Co. v. Brown, 123 F. 946.

20, 21. See ante, & 2. The rate being established for parties travelling for the giving of exhibitions, limited closely as to time.

By a single line where the road is credited with increased business and reduced expenses. The value of the property returned for taxation is not conclusive. The railroad commission of Florida is not exempt from injunction as a judicial body. Louisville & N. R. Co. v. Brown, 123 F. 946.

22. Martin River R. Co. v. Middlesex & S. Traction Co. (N. J. Err. & App.) 58 A. 332.

01. See 1 Curr. L. 424, n. 33-38.

01. Laws 1899, p. 1096, c. 565, # 37, 39.

Goodspeed V. Ithea St. R. Co., 88 App. Div. 147, 84 N. Y. S. 383.

25. In qui tam action to recover penalty under Gen. St. p. 2673, & 149: Act of March 11, 1880; Gen. St. p. 2701, & 270, must also be endorsed on the process. Hunter v. Erie R. Co. \[N. J. Law\] 56 A. 128.

01. Where one got onto a car that ran only to an intermediate point and there was no system of transfers to the cars that ran further, there was no contract of carriage beyond such point. A statement by the superintendent who was on the car that he would have the through car pick him up did not constitute such a contract. Braymer v. Seattle, etc., R. Co. \[Wash.\] 77, 495.

Not did a statement made by him the next day that he intended to have the conductor pick him up had forgotten. Id.

27. Where a street car bound only for an intermediate point was boarded by a through passenger and there was no system of transfers, the fact that the through car left at about this time was immaterial on the question of the contract of carriage.

Braymer v. Seattle, etc., R. Co. \[Wash.\] 77 P. 495.

28. Where there was evidence from which a jury might have found an implied contract to carry in consideration of payment for tickets by a third person, nonsuit was properly denied. Mims v. Seaboard Air Line R. \[S. C.\] 48 S. E. 269. Failure to prove contract did not render denial erroneous. Id.

01. Where a husband purchased a ticket for his wife, she alone could maintain an action for breach of the contract to carry.

Ga., etc., R. Co. v. Brown \[Ga.\] 47 S. E. 942.

20. Ames v. Southern Pac. Co., 141 Cal.

728, 75 P. 810, and authorities there cited.

21. May be shown that compliance with certain regulations as to securing berts was necessary to passage. Ames v. South-ern Pac. Co., 141 Cal. 728, 75 P. 810. Disenting opinion that specification of certain train excluded an implied condition that berth must be purchased. Id.

01. Mo., etc., R. Co. v. Harrison \[Tex.\]

80 S. W. 1139.

33. Where validating agent is not satisfied with signature, the plaintiff must have offered additional proofs. The question of the reasonableness of the act of the agent is for the jury. Baltimore, etc., R. Co. v. Hudson, 25 Ky. L. R. 2154, 80 S. W. 454.

01. Within the meaning of a stipulation thereon that it shall be void if mutilated. Young v. Central of Ga. R. Co. \[Ga.\] 47 S. E. 566.

01. Ellis attention was not called to conditions printed on the back. Dagnall v. South-ern R. Co. \[S. C.\] 48 S. E. 97. Question as to whether he knew of conditions on back of ticket properly excluded. Id * 3 Cur. Law. CARRIERS \[OF PASSENGERS\] $ 24. 639 cited by custom, rule or notice not brought home to the passenger:" e. g., a rule that the most direct of several routes must be taken."

_Mileage books and credential contracts."--Refusal to issue an exchange ticket for interchangeable mileage, for passage over any part of the road, held out as a portion of its system, whether used under right of absolute ownership, leasehold or special permit, renders a carrier liable."_ The measure of damages is the value of plaintiff's time, his expenses and loss directly occasioned thereby."\_ An obligation to buy tickets under a credential contract at the station may be waived by allowing conductors to customarily issue credit slips on cash fares."\_ Mileage good only for a trip wholly within a state may be used on a trip, beginning outside the state, but covered by other tickets until the state line is crossed."\_

\_Property, ownership and redemption of tickets."--_Unused mileage goes to personal representatives of the owner and cannot be used for the transportation of the remains of the owner."_

If the ticket be lost or taken up by any agent of the carrier who had authority to take it, the carrier is responsible."\_ The passenger may purchase another and sue for the price."\_ A husband may recover the amount paid for his wife's ticket, though she does not join or assign."\_

_Generally speaking, the carrier or its legal successor" must honor or redeem outstanding or unused tickets. This may be compelled by statute_" under reasonable penalties."\_ In an action for such penalty, proof must show a sale of the ticket by the carrier,"\_ but not of the degree required in criminal cases."\_

_A conductor is'not a proper party to an action for refusal to honor a ticket."_

_Where a second fare was paid under protest to prevent further abuse and insult from a conductor, the passenger's recovery cannot be limited to the fare so paid."_

- 36. Carvey v. Detroit & M. R. Co. \[Mich.\]
- unused tickets issued by them. Erie R. Co.
- 35 N. V. 716.
- 37. III. Cent. R, Co. v. Harper \[Miss.\]
- 38. 76.

Dealing in nontransferable special rate tickets has been restrained," despite the invalidity of an agreement from which the rate resulted,"84 but there must be no adequate legal remedy,"87 and other equitable circumstances must coexist."88

_Lien for charges._--A carrier has no lien for fare on the baggage of a wife, where, without her knowledge, it refunds to her husband the money paid for the passage and allows him to retain the prepaid certificate.89

_Cash fares_ must be in legal tender."0 An extra charge for cash fares81 cannot be imposed where the fare thereby exceeds the statutory maximum.82 A higher charge by a street car company is not justified unless tickets are on sale at all points where it receives passengers.84

85. See 1 Curr. L. 451, n. 42-46. An n- - 3 Cur. Law. CARRIERS \[OF PASSENGERS\] SS 24. 631

_The duty of furnishing transfers_ may be imposed on urban carriers which consolidate or extend their privileges,\[44\] even though there is another route over which plaintiff might travel for one fare,\[65\] or though undue crowding of streets at transfer points would ensue.\[98\] The corporation need not be within city if railroad is.\[97\] Corporations organized under the Stock Corporation Law are amenable.\[99\] A statute requiring the giving of transfers for continuous rides does not prevent their being limited as to time of use,\[98\] which must cover the passage of a car and convenient time to board it.\[90\] Liability is not removed by the fact that conductor has no transfers, or that the passengers who are boys are skylarking,\[97\] or that the passenger has been riding to collect penalties.\[12\] A franchise condition requiring the issuance of transfers between lines within the city does not require them to lines in another city, though owned and operated in common;\[98\] but a right to carriage on transfers within city limits extends to after-acquired municipal territory.\[99\] Penalties for refusal have been prescribed,\[98\] which the passenger is the party entitled to recover under the New York law for refusing a transfer.\[99\] A penalty cannot be recovered for not giving a transfer where it is not shown that plaintiff took the proper car or that had he taken the transfer, it would have been refused, though it was refused on the car he boarded.\[99\]

_Limitation of liability.\[99\]_--A stipulation limiting the liability for injuries to a passenger for hire to an arbitrary sum is void.\[99\] One is bound by the express conditions on a thousand-mile ticket accepted by him, that the company selling it assumes no responsibility thereon beyond its own lines.\[99\]

The common-law liability toward a newboy cannot be avoided by a condition imposed for his transportation.\[99\] A limitation in the contract with an express company may relieve the carrier from liability for negligent injury of an express messenger.\[99\]

63. Kennedy v. Birmingham R., L. & P. passenger can recover the penalty thereby provided for refusal of a lessee company 64. A consolidation under the New York railroad law carries with it the obligation to another. ORefully v. Brooklyn Heights to give transfers. Topham v. Interurban St. R. Co., SS N. Y. S. 41. But this statute has 65. 63. 68 N. Y. S. 295.

R. Co., 42 Misc. 503, 86 N. Y. S. 295.

Statutes requiring corporations contracting for mutual use of roads wholly within 7. 89.

T. B. 295.

T. B. 296. Under Railroad Law, 104; Laws 1890, held. Under Laws 1890, p. 1114, c. 655, 55 C. 1082; Amended Laws 1892, c. 676, 78, 105, the Interurban Street Railway Company must give transfers over all its lines 1045, 1406, he is the aggrieved party.

A minor may also be guardian and item \[Code within New York City for single fare. Cliv. Proc. 4681, Fox v. Interurban St. R. Blume v. Interurban St. R. Co., 41 Misc. 171, So., 42 Misc. 538, 86 N. Y. S. 64.

S3 N. Y. S. 898. Law includes leases of 77. Weinstein v. Interurban St. R. Co., 86 roads as well as traffic agreements. Topham N. Y. S. 781.

v. Interurban St. R. Co., 42 Misc. 503, 86 N. Y. S. 295.

T8. Limiting liability for injuries to one 65, 66, 67, 68. Topham v. Interurban St. R. Co., 42 Misc. 503, 86 N. Y. S. 295.

G9. Act Assem. 1900, c. 313, p. 463. Garrison v. United R. & Elec. Co., 97 Md. 347, 56 A. 371.

T0. Hormesby v. Ga. R. & Elec. Co. \[Ga.\]

T1. Evidence held to show willful refusal. Rosenberg v. Brooklyn Heights R. Co., 91 App. Dtv. 58, 87 N. Y. S. 871.

72. Leave to appeal was granted to have the question determined and also that of whether more than one penalty could be had. McLean v. Interurban St. R. Co., 87 N. Y. S. 135.

01. City of Montpelier v. Barre & M. T. & Power Co. \[Vt.\] 66 A. 278.

01. Ind. R. Co. v. Hoffman, 161 Ind. 593, 68 N. E. 899.

01. Under Laws 1892, p. 1406, u. 676, a 633CARRIEERS \[OF PASSENGERS\] SS 35. 3Cur. Law.

The United States supreme court has held that a stipulation in a free pass may relieve a carrier from liability for the ordinary negligence of its servants toward one using it with knowledge of the condition." In this it is at variance with certain state courts," the decisions of which are sometimes based on local statutes."

Notice of the stipulation need not have been brought home to the passenger," and a wife using a pass obtained by her husband is bound by its conditions, though she has not authorized him to agree thereto." It may be shown that a pass was issued on a mutual consideration and not as a gratuity, though the pass recites that it is complimentary."

SS 25. \_Condition and care of premises.--\_Only ordinary care to preserve the lives, health and persons of passengers who are awaiting at stations the arrival of trains is required." The carrier must provide reasonable accommodations at its stations for passengers for a reasonable time before and after departure of trains" scheduled to stop." Rules as to care of station apply to any point where it is made necessary or proper by the acts of the carrier to go to board the trains." Failure to keep a station warm is not excused because the station agent sometimes invited passengers into his office," or because the passenger was cold when he arrived."

_The carrier must keep its platforms safe(tm)_ from obstructions," or apparently dangerous conditions," and safe to alight upon," and must not lead passengers into

held charged with notice. Long v. Lehigh from the unheated condition of the wait- Valley R. Co. \[C. C. A.\] 130 F. 870. 88. Provision that company "shall not be failure to transport. Brown v. Ga., etc., R. liable under any circumstances, whether of Co., 119 Ga., 88, 46 S. E. 71. negligence of agents or otherwise, for any 92. San Antonio, etc., R. Co. v. Turnery to the person. Northern P. R. Co. v. \[Tex. Civ. App.\] 78 S. W. 256. Adams, 192 U. S. 44, 24 S. Ct. 408; Boering v. Chesapeake Beach T. Co., 20 A. App. D. C. Subch custom cannot be shown. Mo., etc., 500. 84. Condition in free pass causing user to assume all risk is invalid. Mo., etc., R. Co. v. Flood \[Tex. Civ. App.\] 79 S. W. 1106. 85. A stipulation in a free pass against which led error as allowing recovery liability is void. (Comp. St. C. 72, art. 1, 3). Chicago, etc., R. Co. v. Collier, L. Neb. 7106. 72, 86 S. W. 472. 86. Boering v. Chesapeake Beach R. Co., 193 U. S. 44, 24 S. Ct. 615. 87, 88. Boering v. Chesapeake Beach R. Co., 20 A. App. D. C. 500. 89. Slichess resulting from exposure at station. Ga., etc., R. Co. v. Brown \[Ga.\] 47 S. E. 942. 90. Need not keep a station comfortable all night. Brown v. Ga., etc., R. Co., 119 Ga., 88, 46 S. E. 71. Where a station is closed on arrival, a passenger may recover for damages resulting from exposure to the weather during the time reasonably necessary to secure accommodations. Rev. St. 1895, art. 4521 requires stations to be kept open one hour before and after arrival and departure of trains. St. Louis S. W. R. Co. v. Wallace \[Tex. Civ. App.\] 74 S. W. 581. 91. Where a mistake is made by the carrier in directing a passenger to take a train not stopping at his destination, the passenger cannot recover because the station there is closed, if on being informed of the mistake he remains on the train after a request to get off at the proceeding station. St. Louis S. W. R. Co. v. Wallace \[Tex. Civ. App.\] 74 S. W. 581. Where the train on which a passenger is entitled to carriage does not stop and plaintiff suffers damage 3 Cur. Law. CARRIFERS \[OF PASSENGERS\] SS 26. 633

danger from passing trains," by overcrowding,1 or injure them by careless movement of baggage.2 These rules apply where the carrier is but a licensee of the premises,3 and even to structures on premises of others which it knows are used by passengers,3 and to abutting streets3 or paths.4

and operated, the fact that a coach door is opened does not impose liability for an injury from cinders.20 Where street cars are equipped with inner footboards, it is not negligence to omit to post notices warning passengers to keep off of them.21 If the cause of collision is the failure of the company to restore a street to its former safe condition, a street car company is liable.22 The use of usual and approved appliances and methods,28 not the most improved in use,24 is essential. The duty of inspection has been held not to require the carrier to find and remove from car steps mud gathered en route.25

_In case of the common use_ of the line by several roads, the responsibility of the carrying company is the same as if it alone used it, and it is bound to use due care for the maintenance of the whole line in proper condition.26 In the discharge of such obligation, the other companies and their agents are to be deemed the subordinate agents of the carrying company.27 Where a dining car is placed at the rear of a train and passengers invited to it, the carrier is bound to provide a safe passage, and is responsible for defects in intervening Pullman cars hauled by it.28 The liability that in the ordinary transaction of business in a freight yard, cars would escape and run down onto the main line, held one which reasonable foresight would have perceived, and hence it was duty of carrier to make adequate provision against it, though such yard was used in common with other companies.29

_Separate accommodations for white and colored passengers._--A complaint for compelling plaintiff to ride in the negro car must aver that she was entitled to ride with the white passengers and negative her color.29

Indictments must follow the statute,21 and the case be brought within the section relied on.22

SS 27. \_Operation and management of trains and other vehicles.28--\_That high degree of care which skillful and practical railroad operatives would exercise under similar circumstances must be exercised.24 This may include a reasonable degree of presence of mind in the presence of danger.25 High speed\*\* coupled with other dangerous conditions is negligence. Jerks or bumps incidental to mixed trains, when operated with proper care, are not a basis of liability.\[97\] Street railways are bound to extraordinary care at crossings.\[88\] Where a passenger is injured by a collision with a wagon, it has been held that the paramount right of the car must be exercised in a reasonable manner.\[99\] Passengers on the steps must be protected in passing other cars\[40\] or wagons\[41\] too closely. Motormen must recognize the fact that alighting passengers are apt to cross tracks behind cars, and the carrier must exercise reasonable care as to cars on other tracks.\[42\] Running a special train past a platform on which are passengers for a regular train, at a high speed and without notice to the station master, is not negligence per se.\[43\] Cars must be adequately warmed.\[44\]

Reasonable regulations on travelers may be adopted.\[45\] A rule of a street railway forbidding the carriage of dogs,\[46\] or cumbersome packages,\[47\] are reasonable, and the decision of a conductor as to what is "cumbersome" should be sustained unless unreasonable.\[48\] Overcrowding cars may be negligence.\[49\] The 35: Motorman. Howell v. Lansing City Elec. R. Co. \[Mich.\] 99 N. W. 406.

**46.** Such a rule excludes all dogs. O'Gor-held to apply to railroads. Southern R. Co. \[Mich.\] 71 N. E. 275. Evidence that a train was run down grade around a curve with apparently roten cross ties is sufficient to go to the jury on recklessness. Injectation Co., 89 N. Y. S. 49.

Injectation Co., 89 N. Y. Co., 66 S. C. 77, 44 S. E. 562. Running street car at high rate of speed down grade toward curve, causing derailment, held negative. South Covington. etc., R. Co. \[Mich.\] 71 N. E. 158, 74 S. W. 705.

Injectation Co., 89 N. Y. S. 87. 85. 87. 86. 167; Id., 25 Ky. L. 83, 74 S. W. 671.

**38.** Richmond Traction Co. v. Williams \[Ya.\] 46 S. E. 292.

**39.** Frank v. Metropolitan St. R. Co., 91 App. Dlv. 485, 86 N. Y. S. 1018. High speed in a dense fog may be negligence, although the motorman sees the danger as soon as possible and then does all in his power to avert accident. Fisher v. Unton R. Co., 89 App. Dlv. 365, 83 N. Y. S. 694. See Clark, St. Ry. Acc. Law (24 Ed.) 83 S. 54.

**40.** When a passenger on a step is injured by a car of another company on a curve, such other company should not be relieved by an instruction from liability, though its car has come to a stand. Parks v. St. Louis, etc., R. Co., 178 Mo. 108, 77 S. W. 70.

**41.** Negligence of motorman in moving car forward past a vehicle in such a manner that its hub passed over the car steps, held for jury, where he had knowledge that passengers were standing on the steps. Seller v. Market St. R. Co., 139 Cal. 268, 72 P. 1006.

**42.** Reed v. Metropolitan St. R. Co., 87 App. Dlv. 427, 84 N. Y. S. 454.

**43.** Lugh Valley R. Co. v. Dupont \[C. C. A.\] 128 F. 840.

**44.** Where a passenger was injured by the "trailer" car while boarding a train, It was held that an ordinance requiring a fender and a conductor and a motorman on each car did not apply to "trailers." Von Diest v. San Antonio Traction Co. \[Tex. Civ. App.\] 71 S. W. 682.

**45.** The question of the propriety or reasonableness of a rule is for the court.

**46.** The question of the propriety or reasonableness of a rule is for the court.

There fact that a passenger is compelled to stand on a steam car platform is not ground for recovery.\[50\] Where passengers are riding on the rear platform, there is a duty imposed of handling the car with increased care.\[51\] Young children should not be allowed on platforms.\[52\] As to adults on platforms and running board, negligence is usually a question for the jury.\[88\]

SS 28. _The duty to protect its passengers_\[84\] renders a carrier, though a corporation, liable for a willful assault by a conductor on a passenger.\[88\] It is liable for acts of injury by an employe in the course of his employment, though in departure from the authority conferred or implied;\[89\] but when the person is not a passenger, the carrier is not liable for an assault unless by its authority or under its direction.\[90\] Where a conductor's manner is insolent and abusive, a passenger who pays fare twice to avoid such abuse may recover for the tort.\[88\]

Damages cannot be recovered where the passenger himself provokes the wrong,\[89\] but abusive or opprobrious language alone will not justify an assault by a conductor,\[60\] nor will a statement by a passenger that he will have to be put off if another is.\[81\] An assault is not justified by the mere fact that it is in an honest and proper effort to eject a passenger, unless in self-defense.\[62\]

The carrier not being an insurer\[83\] is not liable for unanticipated acts of fellow passengers.\[64\] It may be liable to one injured by being crowded into a car.\[88\]

Pa. Co. Ct. R. 277. Where a passenger testl-fed that he stood with one foot on the platform and one on the step, with articles in both hands, and that he was crowded between two men and fell from the car while it was in ordinary motion, there was held to be no evidence of negligence. Barry v. Union Traction Co., 194 Pa. 576. It is lack of due care, as a matter of law, for a passenger to get upon the front platform on a very stormy night, when the car is too crowded for him to ride in safety (Trgear v. Dry Dock, etc., R. Co., 14 Abb. Pr. 18: S. N. Y.) 49), and where a passenger who made his way from the car onto the crowd-ed platform was pushed off, it was held that, even assuming negligence on the part of the company in permitting such crowding, nevertheless the passenger knew that the crowd was there, and could not recover for the injury (Chicago City R. Co. v. Considine, 50 Ill. App. 471). Where the company allows its car to be greatly overcrowded without objection, and then runs a car so near the intersection of a switch of the main track that cars cannot pass without injury to passengers, it is gross negligence. Topeka City R. Co. v. Higgs, 38 Kan. 575, 5 Am. St. Rep. 754. Where a passenger in a crowded car stood in the gripman's alsle, and was struck by a brake, it was held that, when a street railway company allows its car to be crowded, they are not to be relieved from using the high degree of care required of them because a passenger lightly disobsys a rule, unless he is warned of the danger so that he appreciates it. West Chicago St. R. Co. v. Johnson, 77 Ill. App. 142, affirmed 180 III. 285. It has been held that a street railway company must use greater care than usual when it allows its cars to become crowded. Geddes v. Metropolitan R. Co., 103 Mass. 391: Archer v. Ft. Wayne, etc. R. Co., 87 Mich. 101: Klinkade v. Atlantic Ave. R. Co., 9 Misc. 273, 29 N. Y. S. 747: Anderson v. City R. Co., 42 Or. 505, 17 B. 659: Sandford v. Hestonville, etc., R. Co., 138 Pa. 54, 20 A. 799: McCaw v. Union Traction Co., 205 Pa. 271, 54 A. 893.--From Clark, St. Ry. Acc. Law (24 Ed.) 49. 50. There must also have been negligence. Rolette v. Great Northern R. Co. \[Minn.\]

It was in ordinary motion, there was held to be no evidence of negligence. Barry v. Union Traction Co., 194 Pa. 576. It is lack of due care, as a matter of law, for a passenger to get upon the front platform on a very stormy night, when the car is too crowded for him to ride in safety (Trgear v. Dry Dock, etc., R. Co., 14 Abb. Pr. 18: S. N. Y.) 49), and where a passenger who made his way from the car onto the crowd-ed platform was pushed off, it was held that, even assuming negligence on the part of the company in permitting such crowding, nevertheless the passenger knew that the crowd was there, and could not recover for the injury (Chicago City R. Co. v. Considine, 50 Ill. App. 471). Where the company allows its car to be greatly overcrowded without objection, and then runs a car so near the intersection of a switch of the main track that cars cannot pass without injury to passengers, it is gross negligence. Topeka City R. Co. v. Higgs, 38 Kan. 575, 5 Am. St. Rep. 754. Where a passenger in a crowded car stood in the gripman's alsle, and was struck by a brake, it was held that, when a street railway company allows its car to be crowded, they are not to be relieved from using the high degree of care required of them because a passenger lightly disobsys a rule, unless he is warned of the danger so that he appreciates it. West Chicago St. R. Co. v. Johnson, 77 Ill. App.

3 Cur. Law. CARRIERS \[OF passengers\] SS 29. 637

bility does not exist to a passenger preparing to alight, who is injured by a person attempting to board before the train stopped, though the conductor was momentarily inattentive.\*\* Where a passenger is jostled from a platform, it should be shown that it was the result of defendant's negligence.\*\*7

The carrier must use ordinary care to protect its passengers while in its stations,**8** or on its trains,**9** or even after alighting,**70** against assaults and insults of which it knew or might have known or foreseen.\*\*71

SS 29. \_Taking on or setting down passengers._72_ Taking on.\_72--Trains must stop a sufficient time to allow passenger to board with safety,**74** but it has been held that elevated trains need not be held until all persons on the platform get aboard.**75** A carrier by street railroad is bound to extraordinary care to avoid injuring passengers boarding or alighting from its cars at stops at regular places,**76** but it is not an insurer, even as to a cripple.**77** It is negligence to increase the passenger's peril by coming in contact with him on mounting the step,**78** or jerking the car when the conductor knows one is attempting to board,**79** and it may be so to prevent one from boarding who does not know that the signal has been given to start.**80** Some indication of readiness to start should be manifest.**81** In starting, the conductor should not signal from a point whence he cannot see the platform steps or passengers attempting to board,**82** but it is not negligence for street car to start

Heights R. Co., 88 N. Y. S. 558. Premature

256. Car stopped at regular station for a starting of a car in consequence of a signal

3 short period, none of the employees were in

4 given by another passenger. McDenough v.

558. Third Avenue R. Co., 88 N. Y. S. 609. Fall-

69 over a broken ticket box which the

69 crowd had broken down. Wagner V. Brook-

701 Hyn Heights R. Co., 88 N. Y. S. 791.

69. Elevated road. Viemeister v. Brook-

01. See 1 Curr. L. 464, 470.

01. See 1 Curr. L. 464.

01. See 1 Curr. L. 464.

01. Fritz v. Southern R. Co., 132 N. C.

01. See 1 Curr. L. 464.

01. Mobile & O. R. Co. v. Reeves, 35 Ky.

829, 44 S. E. 618.

75. Notwithstanding Laws 1890, c. 566, p.

01. Rolette v. Great Northern R. Co.

1126, and Penal Code, $ 419, requiring a

68. Carrier liable where those in charge

of depot knew, or by exercise of ordinary

77.

01. Chouldar Traction Co. v. Williams

01. Chouldar and porter

01. Evidence of knowledge or reason to

01. Chouldar and porter

know held for jury. Id. Failure to light a

79. Chouldar and porter

station cannot be held proximate cause of an

77. Chouldar and porter

assault on a female passenger therein. Al-

78. Chouldar and porter

01. Instruction making the carrier an Inument that carrier should have foreseen the

01. Thust not expose female to indecent

01. Chouldar and porter

language. St. Louis S. W. R. Co. v. Wright

78. Chouldar and porter

01.

while passenger is passing from the platform into the car." It is the duty of the motorman to keep a lookout for those who may desire to ride, and when this is manifest, to give them a reasonable opportunity to get on in safety;" but a motorman who obeys the signal of the conductor and does not know that it will result in an injury to a passenger is not negligent."

Slowing a car in obedence to a signal is an invitation to board it," though not to board it while in motion." So stopping a crowded car is an implied invitation to take passage unless warning or notice is given." Where a car has stopped to receive passengers, the question of who gave the signal to stop does not affect the duty to passengers getting on board." Employes are not bound to prevent a person from attempting to board a moving car." One who signals a street car coming around a curve has no right to assume that it will stop at any particular point on such curve, and until he has been given to understand by some act of the conductor or motorman that he can safely attempt to board it, or until the conditions are such that he can do so, the company owes him no duty." The fact that one voluntarily assumes a position of danger relative to a passing street car, and not the sudden acceleration of the speed of the car, is the proximate cause of the injury to such person by being struck by the overhang of such car." The care required is the same at any point made proper by the acts of the carrier as it is at a station."

\_Setting down."--It is the duty of a carrier to set passengers down safely at a station at the termination of their journey." Railway passengers should be apprised of approach to their stations," and trains should not start up suddenly after slowing." If, after such announcement, the train makes its next stop short of or beyond the station, that fact must also be announced." Street car passengers should be warned if a stop, made after a transfer point is called, is not to discharge

Crosstown R. Co., 84 N. Y. S. 477. Where a street crossing is not a notice of intention a conductor looks to see if any one is board-

to stop or an Invitation to board while in ing or is desirous to board the car, it is

motion. Fromont v. Metropolitan St. R. Co., not negligence for him to signal to start.

83 App. Div. 414, 82 N. Y. S. 307.

Foster v. Seattle Elec. Co. \[Wash.\] 76 P.

88. Citizens' St. R. Co. v. Jolly, 161 Ind.

01. It is negligence for a conductor to

80, 87 N. E. 385. One boarding a crowded start his car when he could have seen that

car might implied invitation may assume a passenger was in the act of boarding it.

88. Sharp v. New Orleans City R. Co.; 111

01. Stoddard v. St. Louis, etc., R. Co. \[Mo.

01. the car. Canavan v. Interurban St. R.

Appl. 80 S. W. 38.

Co., 87 N. Y. S. 491.

84. Jaques v. Slovux City Traction Co.

Appl. 80 S. W. 273.

\[Iowa\] 93 N. W. 1069.

91, 92. Garvey v. Rhode Island Co. \[R. I\]

88. Foster v. Seattle Elec. Co. \[Wash.\] 58 A. 456.

01. San Antonio, etc., R. Co. v. Turney

01. Where motorman Is looking at intend-

\[Tex. Civ, App.\] 78 S. W. 256.

ing passenger when he signals to stop the car, a slackening of speed may be an invitation to enter. Mulligan v. Metropolitan St. R. Co., 89 App. Div. 207, 85 N. Y. S. 781.

88. Labillity exists for misleading passenger

01. Th. Louis Transit Co. \[Mo. App.\] 89 N. W. 388. Where a car has been slowed down in obedence to a signal at a usual stopping place, the motorman must use a high degree of care such as would be exercised by a skillful and careful motorman under like circumstances to so manage the ear as to allow plaintiff to safely get on the car and reach a place of safety. Eikenberry v. St. Louis Transit Co. \[Mo. App.\] 89 N. W. 380.

01. The fact that a car slackens speed at a 3 Cur. Law. CARRIERS \[OF PASSENGERS\] $ 29. 639

passengers." To slacken speed after a stop signal is given, and then increase it, is evidence of negligence in not stopping.\[1\] It may be negligence for conductor to direct passenger to get up and go on platform while car is in motion.\[2\] A motorman must exercise reasonable care in listening for signals to stop, given by passengers intending to alight.\[3\] A departing passenger should signify his intention to alight.\[4\]

The train must stop a time reasonably sufficient to enable passengers to alight at the station of their destination in safety,\[5\] by the usual mode of egress from its cars,\[6\] and not be negligently carried by a station after notice.\[7\] Having done so, its duty is discharged in the absence of notice of special conditions.\[8\] The announcement of a station is not an invitation for passengers to alight before the train is brought to a standstill.\[9\] A stool should be furnished where the platform is low.\[10\] A custom of conductors to lend special assistance to alighting female passengers is not binding unless the carrier has knowledge of it.\[11\]

The duty of street car company as to length of stop is no greater than that of a steam railroad,\[12\] but the company must use great care while the passenger is alighting.\[13\] Sufficient time must be given,\[14\] and passengers allowed to get to safe

90. United R. & Elec. Co. v. Woodbridge, storm, possible error in a charge extending the carrier's liability to her as a passenger is not prejudideal. Id. \[Tex. Civ. Appl. 78 S. W. 1685. 8. It is not bound to know whether other passengers are in the act of alighting or on Co. \[Mich.\] 97 N. W. 36. 3. 3.

640 CARRIERS \[OF PASSENGERS\] $ 39. $ Cur. Law.

place before starting.\[18\] The conductor must see that no one is in act of alighting before starting.\[18\] Where a person is accompanied by a child, the stop must be long enough to permit her to assist the child to alight.\[17\] The stop need not have been at a usual point if a passenger is endeavoring to alight with knowledge of the employees.\[18\] The servants must have reason to suppose that passenger intends to alight.\[19\] A motorman is not bound to anticipate that a passenger will attempt to alight between crossings, though he has seen her signal for a stop at the preceding crossing and has slackened speed.\[20\] Even though a car did not stop to discharge passengers, plaintiff can recover if those in charge thereof suddenly started it forward when they knew, or by the exercise of proper care could have known, that she was alighting therefrom.\[21\] Negligence in not stopping a car will be assumed where the signal to stop was given and the speed of the car was at first lessened and then increased.\[22\] Carriage of passenger beyond destination is not proximate cause of injury sustained from fall on sidewalk while going back to her destination.\[28\]

The carrier is bound to provide a safe place for the passenger to alight\[24\] at any point where it stops to discharge passengers,\[25\] but it is not liable for accidents

sengers upon street cars are entitled to

16. After stop to receive or discharge passenger time to get off, and the duty of the carrier is not discharged until the passenger is free from the car. The relation of passenger and carrier certainly exists while the passenger is in the act of alighting.

01. Hannon v. St. Louis Transit Co., 102

01. M.907. 158. $W. 158. $W. 158. $W. 158. $W. 159. $W. 160. $W. 171. $W. 172. $W. 173. $W. 174. $W. 175. $W. 176. $W. 177. $W. 178. $W. 179. $W. 170. $W. 171. $W. 178. $W. 179. $W. 170. $W. 171. $W. 172. $W. 173. $W. 174. $W. 175. $W. 176. $W. 177. $W. 178. $W. 179. $W. 170. $W. 171. $W. 177. $W. 178. $W. 179. $W. 170. $W. 171. $W. 170. $W. 171. $W. 172. $W. 173. $W. 174. $W. 175. $W. 176. $W. 177. $W. 178. $W. 179. $W. 171. $W. 170. $W. 171. $W. 172. $W. 173. $W. 174. $W. 175. $W. 176. $W. 177. $W. 178. $W. 179. $W. 171. $W. 170. $W. 171. $W. 172. $W. 174. $W. 175. $W. 176. $W. 177. $W. 177. $W. 178. $W. 179. $W. 170. $W. 171. $W. 171. $W. 172. $W. 173. $W. 174. $W. 175. $W. 176. $W. 177. $W. 177. $W. 178. $W. 179. $W. 170. $W. 171. $W. 171. $W. 172. $W. 174. $W. 175. $W. 176. $W. 177. $W. 177. $W. 178. $W. 179. $W. 170. $W. 171. $W. 171. $W. 172.

which cannot be reasonably anticipated.\[28\] If a passenger selects the place to alight, he assumes the risk incident thereto.\[27\]

A street car company must guard the passenger from injury from the dangerous condition of the highway where it stops to discharge him or warn him of the danger where it has notice and he has not,\[28\] and if it is negligent in stopping the car at the place it did and not assisting a passenger to alight, the city which has excavated the street at that point is not liable for injury.\[29\] Failure to stop at crossing is not the proximate cause of injury to a passenger alighting at the point where the car stops.\[30\]

An elevated road should have an employe at the rear of its cars to see that gates are not closed before admission of passengers to the station.\[31\]

SS 30. \_Duty to persons other than passengers.--\_These usually fall within the category of employees\[32\] or licensees, trespassers, and strangers.\[33\] To persons boarding cars by permission to assist passengers, the same duty is owing as to passengers.\[34\] Such are not trespassers,\[38\] and must not be ejected from a moving train.\[39\] The carrier is bound to use ordinary care and diligence for the safety of one not a passenger who boards its car for a lawful purpose and on the implied invitation of its servants.\[31\] A carrier owes no duty to trespassers on its trains except not to hurt them if discovered in a position of peril.\[39\]

Toward a passenger in the cars of another company, a street railroad is bound only to reasonable and ordinary care.\[30\] Where unnecessary force is used in ejecting one from a street car, he is entitled to recover for the assault, irrespective of whether he is entitled to the rights of a passenger or not.\[40\]

SS 31. _Liability for personal injuries. A. General principles. What law governs.\[41\]_-\_In a common-law action for injuries received in another state, the common law of the forum governs.\[42\]

gers. Track on a public road. Macon R. & Light Co. v. Vining \[Ga.\] 48 S. E. 232. 26. Adult passenger who secured the stoppage of the train for his own accomodimation cannot recover for an injury sustaining ed by stepping on a cinder and falling, the place being perfectly safe and the ground in full and plain view. Bascomp V. Vibasch R. Co., 102 Mo. App. 430, 76 S. W. 697. Carrer is not liable for strain sustained by passenger in alighting at a point off a crossing, but without apparent risk to alighting passengers. Lynch v. St. Louis Transit Co., 102 Mo. App. 830, 77 S. W. 100. Recovery cannot be had where a female passenger misjudges the distance she can safely step from a standing car and falls, she not being rmlsted or misdirected and the conditions being perfectly apparent and the track conforming to the highway. Scanlon v. P. P. Think Rapid Transit Co., 208 Pa. 195, 57 A. 521. 27. Macon R. & Light Co. v. Vining \[Ga.\] 48 S. E. 232. 28. Leaving car at night and stepping into excavation. Ft. Wayne Traction Co. v. Movrilus, 31 Ind. App. 446, 68 N. E. 304. Should not stop at dangerous points. Lever v. Shreveport Belt R. Co., 110 La. 399, 34 So. 579. 29. Yecker v. San Antonio Traction Co. 17 Tex. Civ. App.\] 76 S. W. 780. 30. Lynch v. St. Louis Transit Co., 102 Mo. App. 630, 77 S. W. 100. 31. Metropolitan St. R. Co. v. Hanson, 67 Exa. 256, 72 P. 773. 32. See Master and Servant, 2 Curr. L. 801. Consult 1 Curr. L. 448, and , 22. 33. See Rafiroads, 2 Curr. L. 1882; Street Railways, 2 Curr. L. 1742. 34. Conductor should see that he is given time to get off. Bishop v. Ill. Cent. R. Co., 25 Ky. L. R. 1863, 77 S. W. 1099. 35. One accompanying his sister to a train to assist her to board it and going on board. Morrow v. Atlanta & C. Air Line R. Co., 134 N. C. 52, 46 S. E. 12. 36. Where one escorted passengers onto a train which moved out before he got off and the conductor put him off while it was moving, he was entitled to recover. Southern R. Co. v. Merritt \[Ga.\] 47 S. E. 98. 37. One boarding car for purpose of inducing those in charge of it to make an extra trip, as it sometimes did, injured by being thrown off by its being suddenly started. Brock v. St. Louis Transit Co. \[Mo. App.\] 81 S. W. 219. 38. One using train as means of crossing track. Rattenrey v. Galveston, etc., R. Co. (Tex. Civ. App.\] 81 S. W. 566. 39. Klinger v. United Traction Co., 92 App.\] 10, 87 N. Y. S. 864. See Railroads, 2 Curr. L. 1882; Street Railways, 2 Curr. L. 1742. 40. Citiens' St. R. Co. v. Clark \[Ind. App.\] 71 N. E. 63. Evidence held to show that Degree of care required.44--A carrier of passengers is not an insurer of their safety,44 but is bound to a very high degree of care which is variously defined,45 and this rule applies equally to street railroads,46 eabs, and the like.47 This duty arises only from the relation of passenger and carrier,48 and the servants of a carrier cannot be held to personal liability under the same rules as the carrier,40 being liable only for negligence or excess of duties.50 It does not follow that the trainmen performed all the duties which they owed travelers from the fact that they performed all that were required of them by the company.51

Negligence must be proximate cause of injury,52 but a carrier is liable for injury from its negligence concurring with that of another.53 The question of

43. See 1 Curr. L. 459.

01. Must exercise the care a very cautious, prudent, and competent person would exercise under the circumstances. Tyler v. Tex. & P. R. Co. \[Tex. Civ. App.\] 79 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 79 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 79 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 79 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 79 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 79 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 79 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 80 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 81 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 82 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 83 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 84 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 85 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 86 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 87 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 88 S. W. Tex. & P. R. Co. \[Tex. Civ. App.\] 88 S. W. Tex. & P.

## 3 Cur. Law. Carriers \[of passengers\] $ 31A.

proximate cause is one of fact.\[54\] There is no liability for casualties which cannot be reasonably guarded against or anticipated.\[55\] Violation of a statute or ordinance is negligence per se.\[50\] There are no degrees of negligence.\[67\]

Gross negligence may also impose criminal liability.\[56\]

_Carriage of passengers on freight trains.\[50\]--Passengers on freight and mixed trains assume the risks necessarily incident to that means of transportation,\[50\] but the carrier is nevertheless held to the utmost care\[61\] consistent with practical operation.\[62\]_

_Duty toward intoxated, infirm, or delicate persons.\[63\]--Though the carrier has no notice of the infirm condition of a passenger, he is entitled to the same high care which is the right of other passengers,\[64\] and if the carrier has such notice the care must.be such\[65\] and only such\[68\] as is appropriate to the condition._

_Liability of carrier or connecting carrier.\[67\]--Under an agreement to divide through business on a mileage basis, connecting roads are liable as partners.\[69\] The initial carrier is liable, under an agreement for the use of one car, for an entire trip over two roads, for failure to furnish a car which is capable of being made comfortably warm.\[69\] But it is the duty of the connecting carrier, in such case, to use the highest degree of care to preserve the comfort of its passengers, and the_

## 4.2 Highest practicable degree of care

_Adm'r, 25 Ky. L. A. 2036, 79 S. W. 261; Frank_

_v. Metropolitan St. R. Co., 91 App. Div. 485,_

_86 N. Y. S. 1018._

_854. Harris v. Pittsburg, etc., R. Co. \[Ind. App.\] 70 N. E. 407._

_855. Conductor's transfer punch fell from his pocket and hit a passenger in the eye._

_856. Dreyne v. Van Brunt, etc., R. Co., 89 N. Y. S. 1026._

_857. A passenger standing on running board_

_858. See 1 Curr. L. 461._

initial carrier is not liable for its failure to do so.70 An express company is liable for injuries to a passenger on a train employed by it for purposes of transportation, though such train belonged to, and was operated by, the agents of and over the line of, a railroad company, and the injuries were caused by the negligence of the latter company.71 In such case, the railroad company is the agent of the express company and the latter is strictly responsible for its acts,72 and an action will lie in favor of the injured passenger against either or both of such companies.73

(SS 31) \_B. Contributory negligence of passenger.74--A passenger is required to exercise such reasonable care for his own safety as persons of ordinary prudence and intelligence would ordinarily exercise under the same circumstances,75 though by statute in some states this duty is modified;76 but a city ordinance that conductors shall not allow women and children to leave moving cars does not abrogate rules as to contributory negligence.77 The character of the train is an element.78 His negligence must proximately contribute to the injury,79 but the amount of influence which it exerts cannot be considered.80 Reckless or wanton conduct of the carrier may prevent its assertion,81 but the duty of the carrier to use every means in its power to prevent injury to one who has, by his own negligence, exposed himself to injury, does not arise until his peril is discovered.82 If they do not know of it, no duty is imposed on them, even though, by the exercise of ordinary care, they might have discovered it.83 The passenger never assumes the risk of the carrier's negligence, there being a distinction between assumption of risk and contributory negligence.84 The negligence of a carrier is not imputed to a passenger who is injured by 70. Mo., etc., R. Co. v. Harrison \[Tex.\] Chicago, etc., R. Co. v. Armes \[Tex. Ctv. 80 S. W. 1138. 71, 72, 73. American Exp. Co. v. Ogles \[Tex. Civ. App.\] 81 S. W. 1023. 74. See 1 Curr. L. 474. 75. Chicago City R. Co. v. Bundy \[Ill.\] 71 N. E. 28. A carrier is not required to guard against heedlessness of personal safety by passengers or disregard of its reasonable rules. Lauterer v. Manhattan R. Co. \[C. C. A.\] 128 F. 540. Contributory negligence is usually a matter of defense. Negligence in leaving train after call of station, held matter of defense. Coe. V. Louisville & N. R. Co., 28 K. Y. L. R. 1679, 78 S. W. 439; Ill. Cent. R. Co. v. Jolly, 25 KY. L. R. 1735, 78 S. W. 476. A passenger traveling in a street car is not bound as a person approaching a dangerous crossing to keep all his senses alert and be on the lookout for danger. He may assume that the carrier will exercise the care toward him required by law. Jones v. United Railways & Elec. Co. \[Md.\] 57 A. 620. 76. Contrutory negligence no defense for injury by kicking switch in municipal limits, but this statute does not apply outside such limits. Yazoo, etc., R. Co. v. Humphrey \[Mdiss.\] 36 So. 154. 77. Shareman v. St. Louis Transit Co. \[Md. Appl.\] 78 S. W. 846. 78. Held for jury when woman on mixed train was injured by a jolt, she being then standing in a tale talking to a friend. Yazoo, etc., R. Co. v. Humphrey \[Miss.\] 36 So. 154. 79. Instruction to such effect is proper. St. Louis, etc., R. Co. v. Smith \[Tex. Civ. App.\] 79 S. W. 340; St. Louis S. W. R. Co. v. Cannon \[Tex. Civ. App.\] 81 S. W. 778. Injury from sudden start while alighting.

3 Cur. Law. CARRIERS \[OF PASSENGERS\] SS 31B. 645 the concurrent negligence of the carrier and another, and he may recover against both," nor does negligence of the driver of a vehicle collided with affect the passenger." Where a child is not guilty of negligence, no negligence of his mother may be imputed."

_Acts due to impulse of sudden danger._"--Reasonable efforts to prevent injury are not negligent," such as jumping from a car in well grounded fear of imminent danger."

_Acts done at direction of employees._"--Directions of the carrier's employes, unless involving obvious danger," may prevent an imputation of negligence," and it is not a want of due care if a passenger prudently uses the means which the company affords him for disembarking;" but a protest by an employee against a passenger's act does not render it negligent per se."

_Approaching car._"--A passenger must use ordinary care to discover the situation of the platforms and approaches," and of the car which he seeks to enter."

_Boarding moving train or cars._"--Negligence in attempting to board a moving train is usually a question for the jury,1 unless the surrounding facts are such

85. Louisville & C. Packet Co. v. Mullil-

01. Southern R. Co. v. Bandy \[Ga.\] 47 S. gan, 25 Ky. L. R. 1287, 77 S. W. 704.

01. Frank V. Metropolitan St. R. Co., 91 95. Getting off train in motion. Central App. Dlv. 485, 86 N. Y. S. 1018.

01. Child jotted from car. Nashville R.

S. R. 430.

Co. v. Howard \[Tenn.\] 78 S. W. 1098.

96. See 1 Curr. L. 476.

01. See 1 Curr. L. 476.

01. An intending passenger, unaware of the fact that passing trains overlap the tect herself from falling on sudden start of platform, may assume that they do not, but can while she was alighting, held not to must use the platform with ordinary care show contributory negligence. Brazis v. St. and prudence. Lehigh Valley R. Co. v. Du-Louis Transit Co., 102 Mo. App. 224, 76 S W. 708.

01. Palmer v. Warren St. R. Co., 206 Pg. 674, 86 A. 49: Howell v. Lanning City Elec.

a place of safety on the approach of a train R. Co. \[Mich.\] 98 N. Y. 406. Where smoke and flames appeared in different parts of a car, causing a panic, and a passenger was injured while attempting to escape, or absence.

a position which is safe with reference to of negligence. Dorf v. Brooklyn Helights R. Co., 88 N. Y. S. 483.

91. See 1 Curr. L. 476.

01. Alighting from moving train. South-

01. Where planks are placed between coaches for use, a passenger is not negligent

W. 865.

per se in attempting to cross, though he notices their shaky condition. St. Louis S.

87. R. Co. v. Kelt \[Tex. Civ. App.\] 76 S. W.

01. One attempting to board a car not in 311. An intending passenger is not negligent unless he saw such that per se in going on a narrow platform

01. Just before passage of a special at the direc-

injuries received by one who, after signaling tion of a station master. Lehigh Valley R.

car about to round curves to stop, places him-

Co. v. Dupont \[C. C. A.\] 128 F. 840. Where

self so near the track that he is bound to be the duty to announce is statutory, the pas-

hit by the overhang of the car. Garvey v. sengers may assume, unless warmed, that

Rhode Island Co. \[R.\] 88 A. 466.

the first stop after the announcement is at

99. See 1 Curr. L. 476.

the station. Coe v. Louisville & N. R. Co., 1. South Chicago City R. Co. v. Dufresne, 25 Ky. L. R. 1679, 78 S. W. 439. A passenger

102 Ill. App. 493: Schmidt v. North Jersey does not assume the risk in an attempt to

St. R. Co. \[N. Y. Law\] 68 A. 72; Chicago & alight at a place selected by the employees.

A. R. Co. v. Gore, 105 Ill. App. 16. Train

Fillingham v. St. Louis Transit Co., 102 Mo.

moving three miles an hour. Creech v. App. 573, 77 S. W. 314. Where one allighted

86. Car whlch had slackened speed in obe-

that the carrier was negligent in that the

direct to signal. Clinton v. Brooklyn

porter told the passenger to slight. New-

Highlights R. Co., 91 App. Dlv. 374, 86 N. Y. S. comb v. New York Cent., etc., R. Co. \[Mich.\] 832. Car whlch had almost stopped. Mullil-

81 S. W. 1069. If by direction of a conductor

ligan v. Metropolitan St. R. Co., 89 App. Div. a passenger alights from a moving train,

207, that the court may say that it would not be undertaken by a reasonably prudent person,2 although there is no complete unanimity of authority.3 The person attempting to board assumes risks from acceleration of speed, if not seen by the persons in charge.4 It is not negligence, as a matter of law, for a woman with an armful of bundles to attempt to get on a standing street car.5 A passenger may, in the exercise of due care, grasp something to prevent himself falling.4

_Boarding crowded car._\*\*--\*\*An attempt to board a crowded car is not negligence per se,6 but a passenger on such a car must exercise the care customary to ordinary prudent persons under the circumstances.9

\_Biding in dangerous position.10--\_It is as a rule negligence to ride in a dangerous position with knowledge, or in disobedience to known rules of the carrier,11 but one in the baggage car through necessity and with permission of the conductor is not negligent per se,12 nor is it negligence for a passenger to temporarily leave his seat for a legitimate purpose, though he is compelled to stand on his return, it having been taken by another,13 nor to ride by an open window;14 but attempting to pass from one coach to another while the train is going at full speed is contributory negligence.15

3 Cur. Law. CARRIEERS \[OF passengers\] $ 31B. 647 weight of authority legally inferred from riding on a platform or footboard of a street car, though a seat can be obtained;17 but one so riding accepts the additional risks.18 The use of a footboard is not restricted to boarding and alighting,19 and one using a footboard along an open car is not negligent per se, nor is his failure to look around.20

_Riding on platform of railroad train.21_--It is not negligence per se to be on the platform of a moving train in the absence of conditions making the act dangerous,22 but the passenger must obey or endeavor to obey direction to go inside,23 and though he cannot find a seat, the passenger is not justified in standing on the platform if there is standing room inside.24

_Allowing body to project from car._--As to whether a passenger is negligent per se in allowing his body to project beyond the car line is a matter of conflict,23 though there appears to be an increasing tendency to submit the question to the jury.24 The fact that a passenger in an open car rests his elbow on a side rail without allowing it to project does not establish his negligence.27

\_Acts preparatory to alighting.28--The usual acts of a passenger preparatory to leaving a train or car as it nears his destination are ordinarily not held negligent per se,29 so it is not negligence per se for him to leave his seat and go forward as

16. See Curr. L. 477. 17. 17. Kre...lemmann v. Jourdan \[Mo. App.\] 80 S. W. 323. One who could obtain seat on v. St. Louis Transit Co. \[Mo. App.\] 79 S. W. 1021. 19. Passengers may pass along it to not negligent per se, especially when knowl- seats. Krelemlemmann v. Jourdan \[Mo. App.\] 80 S. W. 323. 16. Question for jury in sitting on body of open car and resting feet on running board are in dangerous proximity and is going to in case of boy of 18. Seller v. Jarket St. a seat, there being no precautions taken against such use. Krelemlemmann v. Jourdan \[Mo. App.\] 80 S. W. 323. 21. 22. 23. 24. 25. 10. 14. 478. 22. 23. 24. 25. 10. 1142. 26. 11. 11.

train slows at destination,\[30\] but the passenger must not expose himself to unnecessary danger.\[41\]

_Leaving moving train or car.\[32\]_--Negligence in alighting from a moving train or car is in general a question of fact for the jury,\[38\] as is the speed at which the train is moving.\[34\] The jury should not be charged that a warning not to alight given by a bystander too late to be acted on rendered the passenger negligent.\[38\]

_Alighting at unusual place.\[38\]_--The absence of a conductor may confer a greater discretion on the passenger as to where to attempt to alight.\[37\] A notice that cars stop at near sides of cross streets is not sufficient alone to charge a person attempting to alight elsewhere with negligence.\[38\] The attempt may be excused by custom,\[39\] or by misleading acts of the carrier.\[40\]

held for the jury. Baltimore & P. R. Co. v. St. Louis Transit Co., 102 Mo. App. 277, 76 Jean \[Md.\] ST A, 540. A boy seven years and eight months old is not negligent in going on and remaining on a front platform to tell \[Ind. App.\] 70 N. E. 886. For woman to get the motorman where he wished to get off while street or is in motion is contribu-Parker v. Wash. Elec. St. R. Co., 207 Pa. story negligence; otherwise if it started while she was alighting after a stop. Richmond through open gates of slowly moving car \[Traction Co., Williams \[Va.\] 46 S. E. 292. The act of a passenger in voluntarily alight-notifying motorman to stop, is for the jury. Paganini v. North Jersey St. R. Co. \[N. J.\] negligence. Pittsburg, etc., R. Co. v. Miller \[Lw\] 67 A, 128. Facts held not to make prima face case of contributory negligence of passenger slipping on slippery deck. Gil-Ium v. New York & T. S. S. Co. \[Tex. Civ. App.\] 76 S. W. 322. Woman is not negligent in attempting to alight with a grip, it not being shown that she was unable to carry it. Weight of 60 pounds. Chicago, etc., R. Co. v. Armes \[Tex. Civ. App.\] 74 S. W. 77. Not negligence per geo to fall to take hold of hand Fall. Crump v. Davis \[Ind. App.\] 70 N. E. 886.

**30.** Chesapeake & O. R. Co. v. Topping, 25 Ky. L. R. 1390, 78 S. W. 135. Question of contributory negligence in standing in alight on approach to destination is for jury, though the injury is due to an unusual jerk; if the jerk is incident to proper care, he cannot recover. Ill. Cent. R. Co. v. Jolly, 25 Ky. L. R. 1735, 78 S. W. 476.

**31.** One standing up at the extreme edge of the car and riding backward cannot recover for a sudden stop in obedience to his signal, though he is thrown off. Jennings v. Union Traction Co., 206 Pa. 31, 65 A. 766. Leaving seat and stepping down on running board and remaining there while the car is in motion is negligent. Bainbridge v. Union Traction Co., 206 Pa. 71, 55 A. 836. Not negligent per se to prepare to alight from car elowed to 3 miles per hour in obedience, as the passenger supposed, to his signal, preventing recovery for a jerk. Dawson v. St. Louis Transit Co., 102 Mo. App. 277, 76 S. W. 689.

**32.** See 1 Curr. L. 479.

**33.** Bishop v. Ill. Cent. R. Co., 25 Ky. L. R. 1383, 77 S. W. 1099. Jumping from train moving 5 miles an hour to avoid being carried by. Harris v. Pittsburg, etc., R. Co. \[Ind. App.\] 70 N. E. 407. Attempt to alight from car which is moving slowly and has started after female passenger has reached lowest step of platform. St. Louis S. V. R. Co. v. Massay \[Tex. Civ. App.\] 76 S. W. 885. Passenger alighting in dark and not noticing train is in motion. Atchison, etc., R. Co. v. Loewe \[Kan.\] 74 P. 234. Attempt to leave car moving ? miles per hour. Dawson v. \[Trad.\] 70 N. E. 407. Attempt to alight from car which is moving slowly and has started after female passenger has reached lowest step of platform. St. Louis S. V. R. Co. v. Massay \[Tex. Civ. App.\] 76 S. W. 885. Passenger alighting in dark and not noticing train is in motion. Atchison, etc., R. Co. v. Loewe \[Kan.\] 74 P. 234. Attempt to leave car moving ? miles per hour. Dawson v. \[Trad.\] 70 N. E. 886.

**40.** Where, after a transfer point has been called, the car stops, though not on the crossing, it is not negligence per se to attempt to alight. United R. & Elec. Co. v. \[Trad.\] 74 P. 234. 41. W. Woodbridge, 97 Md. 629, 55 A. 444.

3 Cur. Law. CARRIERS \[OF PASSENGERS\] SS 31C. 649

Care required after alighting."--One who is old, crippled and deaf is not negligent in traveling alone and without arranging to be met at her destination." One passing along tracks to a station from a freight caboose on which he is riding may rely on the exercise of the utmost care by the carrier, and need guard only against known and apparent peril."

After alighting from a street car, a passenger becoming a mere traveler must look and listen for cars on parallel tracks." If he looks and listens before he passes on the parallel track, he is not per se negligent in not looking after he passes the car from which he alighted."

(SS 31) _C. Remedies and procedure."--The measure of damages differing in no respect from that in other cases of personal injury, it is elsewhere treated." No notice of the injury need be given to the carrier."_

_Pleading."--The pleading should show that plaintiff was a passenger," and that defendant's breach of duty was the proximate cause of injury."_ When one or more facts are essential to a cause of action and any one of them is not sufficiently alleged, the complaint is bad."\_

It is usually held that negligence may be alleged in general terms,"\_

though specific averments are sometimes required," and where the use of offensive language is the gravamen of the action, the words

41. See 1 Curr. L. 480.

Ifgence in not having a proper and efficient brake, and in running in excess of the speed limit fixed by a city ordinance, held defect-vided being a stile over a barbed wire fence, which by reason of the darkness, she did not see. Tex. & P. R. Co. v. Reid \[Tex. Clv. App.\] 71 N. 43. Evidence held not to show negligence. Chicago, etc., R. Co. v. Troyer \[Neb.\] 97 N. 308.

44. Indianapolis St. R. Co. v. Tenner \[Ind. App.\] 67 N. E. 1044.

01. Reed V. Metropolitan St. R. Co., 87 App.\] 427, 84 N. Y. S. 454.

01. See topics treating of practice generally, 1 Curr. L. 484.

01. See Damages, 1 Curr. L. 833.

01. Rev. Laws, c. 112, SS 44, does not require notice of the time, place, and cause of injury where injury results from unsafe condition of ground near track on defendant's private property on which plaintiff alighted. Joslyn v. Milford, etc., R. Co., 184 Mass. 65, 67 N. E. 866.

01. See articles on Negligence and Pleading for general rules.

01. Pleading held sufficient prima facie. Citizens' St. R. Co. v. Jolly, 161 Ind. 80, 67 N. E. 935. A complaint alleging a direction by a tenant to an ice man to deliver tee by means of a freight elevator controlled by the tenant does not show him a common carrier. Downs v. Seeley, 16 Conn. 317, 65 A. 502.

01. An allegation held sufficient to show that a sudden stop was the proximate cause of an injury from a passenger being thrown against another. McCauley v. Rhode Island Co. \[R. I.\] 87 A. 376. Complaint in action against street railway company for injuries to passenger by derailment of car, held to sufficiently aver that defendants negligence was the proximate cause of the injury. Indianapolis St. R. Co. v. Schmidt \[Ind.\] 71 N. E. 201.

01. Complaint in action for injuries to passenger on freight train due to collision, alleging that such collision was due to nag-F. 866.

need not be set out.55 On the other hand, the averments of fact may dispense with the necessity of characterizing defendant's conduct,56 but recital of evidentiary facts will not supply an averment of willfulness.57 An act characterized in a count as both negligent and willful will support both actual and punitive damages.58

Under an ordinance prohibiting conductors from allowing women and children to alight while cars are in motion, a petition which alleges that the motion was imperceptible may be amended to make it imperceptible to her.59 A complaint showing that plaintiff was injured while doing what is negligence per se is bad.60

_Conformity of pleadings and proof and variance._--As in all pleadings,61 the proof must conform substantially to the averments but immaterial variance may be disregarded,62 and evidence not conforming to the averments is not admissible.63 Where several acts of negligence all essential to recovery are alleged, all must be proven,64 but an election is not required where the same facts support more than one imputation of negligence.65

\_Presumptions and burden of proof.66--\_The showing of an injury to plaintiff while a passenger from a cause within the carrier's control or incident to the carriage raises a presumption of negligence. Illustrations of this rule are grouped in the notes.67 The rule that negligence is implied from the happening of the accident.68

55. Permitting use of offensive language in presence of female. St. Louis S. W. R. Co. v. Wright \[Tex. Civ. App.\] 75 S. W. 565.

01. Other facts alleged may remove the necessity of an averment that the place of a stop was "unsafe" or "dangerous." Filliingham v. St. Louis Transit Co. \[Mo. App.\] 573, 77 S. W. 314.

01. To recover for a willful injury, it is not sufficient to allege the willful starting of a car without alleging that defendant intended willfully and purposely to Injure plaintiff. Union Traction Co. v. Lowe \[Ind. App.\] 67 N. E. 1031.

01. Act 1898 (22 Stat. 638). Steedman v. South Carolina, etc., R. Co., 68 S. C. 542, 45

01. Petition held to state cause of action. Shareman v. St. Louis Transit Co. \[Mo. App.\] 78 S. W. 846.

01. A complaint disclosing the fact that plaintiff, voluntarily and without reason, left the train while it was in motion, under circumstances rendering such action dangerous, as he must have known, is demmutable. Complaint alleged that on account of darkness plaintiff believed train had stopped. Pittsburg, etc., R. Co. v. Miller \[Ind. App.\] 70 N. E. 1006. It is not necessary for a declaration for injury to a passenger riding on the platform of an electrte street car to show that it was necessary for plaintiff to stand there. Not per se negligence. Brunn-chow v. Rhode Island Co. \[R. I\] 58 A. 656.

01. See Pleadings, 2 Curr. L178.

01. Hammerial Between averments of negligence and proof of an assault where the complaint discloses all the circumstandes. Morris v. Interurban St. R. Co., 84 N. T. S. 162. Where place of accident is stated, erroneous averment of the particular one of the defendants' lines on which it was. Powell V. Hudson Valley R. Co., 85 App. Dtv. 133.

84 N. Y. S. 337. Allegation that bearings were overheated and proof that plate over wheel was overheated. Id. Between an allegation of failure to afford time to alight and proof that plaintiff individually had time to alight but injury was occasioned by a pause to assist a child with her. Hannon v. St. Louis Transit Co., 102 Mo. App. 216, 77 S. W. 168. Proof that ear suddenly started held not variant from petition. Shareman v. St. Louis Transit Co. \[Mo. App.\] 78 S. W. 846.

Material: Proof of a smooth start before gates were closed does not support allegation of sudden and violent start throwing plaintiff to platform. Lake St. El. R. Co. v. Shaw, 203 Ill. 3, 67 N. E. 374.

63. Negligence: Evidence that just as plaintiff attempted to step from the car, the train gave a lurch, tends to support an allegation that the train was, as plaintiff was about to alight, suddenly and violently moved. Lake St. El. R. Co. v. Shaw, 203 Ill. 3, 67 N. E. 374.

01. Contributory negligence: Where contributory negligence is not pleaded, evidence that plaintiff, having a weak ankle, was negligent in alighting, is inadmissible. Belley v. Seattle & R. R. Co., 22 Wash. 640, 73

01. 679.

Nature and extent of injuries: Under allegation of Inflammation of the ovaries, evidence of its effect on other organs may be introduced. Mo., etc., R. Co. v. McCutcheon \[Tex. Civ. App.\] 71 S. W. 332. Evidence of special paralyzing effects may be given under experiment of permanent injury to spine. Grady v. St. Louis Transit Co., 102 Mo. App. 212, 76 S. W. 673.

64. Petition held to reoutre proof of all acts of negligence alleged. Williams v. Galveston, etc., R. Co. TTex. Civ. App.\] 78 S. W.

01. Where the petition charges two acts of negligence jointly, both must be proved. Raising water hose in ear

## 3 Cur. Law. CARRIERS \[OF passengers\] SS 31C.

dent does not apply where happenings are ordinarily incident to the prosecution of the carrier's business in the usual manner or accidents not such as do not usually occur without negligence,\* and the rule applies only to passengers.\* The doctrine of res ipsa loquitur may be relied on though there is an unsuccessful attempt to prove the precise cause.\* Where the doctrine of res ipsa loquitur does not apply, plaintiff must prove negligence and in some states absence of contributory negligence.\*

The burden of establishing facts raising the presumption is on plaintiff,\*\* and thereafter the carrier has the burden of showing contributory negligence or excepted

## 47. City & S. R. Co. v. Svedborg, 20 App. D. C. 543: Rowdin v. Pa. R. Co., 208 Pa. 623.

Evidence of negligence of horse-car driver held for jury where horses swerved and upset car. Doolin v. Omnibus Cable Co., 140 Cal. 869, 73 P. 1060. Plaintiff thrown from electric car by sudden jerk or lurch. Fitch v. Mason City, etc., Traction Co. \[Iowa\] into to reach a place of safety. Stoddard v. 100 N. W. 618. Collision of car, running at his speed, with wagon, Thurston v. Detroit United R. Co. \[Mich.\] 100 N. W. 395. Passenger on street car injured while at returning to align. Chicago City R. Co. v. Sunday \[Ill.\] 71 N. E. 28. The fact that a site directions on the same track. Hedrix v. collision results from car being run in op-choice, etc., R. Co. \[Mro. App.\] 71 S. W. 455.

Car of another company taking the wrong track at a switch operated by the company Louis & B. R. Co. \[Mro.\] 81 S. W. 1158. in whose car plaintiff was riding causing a collision. Klinger v. United Traction Co., 574, 56 A. 49. Doralment of car. Logan v. 92 App. Dlv. 100, 87 N. Y. S. 854. Collision Metro Polling St. R. Co. \[Mro.\] 82 S. W. 126; due to defective appliance on another car of the same company. Palmer v. Warren St. R. Co. v. Schmidt \[Ind.\] 71 N. Co., 206 Pa. 574, 56 A. 49. Acts inducing a passenger to jump on well grounded fear of dry. Chicago, etc., R. Co. \[Vis.\] 99 N. W. injury from an impending collision. Id. 1034.

Derailment. Cronk v. Wabash R. Co., 123 Iowa, 849, 98 N. W. 884; International, etc., R. Co. v. Thompson \[Tex. Civ. App.\] 71 S. W. 439. Proof of freedom from contributory negligence of injury from experiment. Burning out of fuse. Cassady v. Old Colony Heyde v. St. Louis Transit Co., 102 Mo. App. St. R. Co., 184 Mass. 156, 88 N. E. 10, The 537, 77 S. W. 127. That platform gate swung barden, in an action for personal injuries open allowing plaintiff to fall. Aston v. St. Louis Transit Co., \[Mro. App.\] 79 S. W. 999.

Heating by friction of a plate in car floor. Poverl W. Hudson Valley R. Co., 88 Ap. Dlv. R. Co., Chapman \[Tex. Civ. App.\] 80 S. W. 183, 84 N: Y. S. 837. Falling of trolley pole. St56. To shift burden, plaintiff must show Chicago City R. Co. v. Carroll, 206 Ill. 318, 68 N. E. 1087. Evidence that burning out of fuse produced a flame greater in intensity and duration than could have resulted had 71 feen In proper condition. Cassady v. Old Colony St. R. Co., 184 Mass. 156, 88 N. E. 10. The injury from malpouon hanging beside track. McCord v. Atlanta, etc., R. Co., 134 N. C. 63.

cause unless plaintiff's proof tends to show such defenses.78 The burden on defendant is discharged by showing that the injury complained of was caused by plaintiff's want of care.74

Statutory provisions that proof of injury inflicted by the running of locomotives or cars is prima facie evidence of negligence do not apply to injuries to passengers.78

\_Admissibility of evidence.79--\_Decisions as to the admissibility of evidence in actions by passengers for personal injuries are collected in the footnotes.77

78. Boone v. Oakland Transit Co., 139 CaI.

greasy platform, evidence that shortly after490, 73 P. 243. Where one is injured in getting on or off a moving car, he has the burlemoth in safety was inadmissible. Newcomly v. New York, etc., R. Co. \[Mo.\] 81 S. the jury as an exception. Hunterson v.

W. 1069. Where one was injured while Union Traction Co., 205 Pa. 568, 55 A. 543.

In Indiana, the burden is on defendant to

golng in the opposite direction, reports to show contributory negligence, and does not

cause are hearsay. Allen v. R. Louis Tran-

v. Pittsburg, etc., R. Co. \[Ind. App.\] 70 N.

E. 407), and the burden of proof of assumption

Rules, regulations, and records of carrier:

tion of risk is on defendant (Citizens' St. R.

Co. v. Jolly, 161 Ind. 80, 67 N. E. 935; Rowdin

v. Pr. R. Co., 208 Pa. 623, 67 A. 1125).

74. City & S. R. Co. v. Svedborg, 20 App.

P. 176. A company rule in violation of a

D. C. 543.

75. Rev. Code 1892, 18108, Yazoo, etc., R.

Co. v. Humphrey \[Miss.\] 86 So. 154.

76. See 1 Curr. L. 487.

01. Prior and subsequent occurrences and conditions: Evidence of prior assaults and newspaper accounts of occurrences at its

park are admissible to show negligence of earlier toward a colored person assaults at its amusement park. Indianapolis St. R. Co. v. Dawson, 31 Ind. App. 605, 68 N. E. 908.

Sudden plots at the same point in the track on prior occasions. Nashville R. R. V. How-

ard \[Tenn.\] 78 S. W. 1088. Breaking of ralls

at other and nearby points on the road.

Vhiltlesey V. Burlington, etc., R. Co., 121

Iowa, 597 N. W. 66. Previous condition

of gate, Gulf, etc., R. Co. v. Phillips \[Tex.

Cly. App.\] 74 S. W. 798. Evidence as to ddim-

cutly in starting a sliding car door on the same or similar cars is incompetent where

the injury was not shown to have been from

the difficulty of starting, or that the cars

were in the same condition. Williams v.

Citizens' Place. St. R. Co., 184 Mass. 437, 68 N. E. 840. Condition of track 13 months

after accident is inadmissible. Cronk v. Wabash R. Co. \[Iowa\] 88 N. W. 884. Evidence as to whether other passengers were injured

In the collision. Mullin v. Boston El. R. Co. \[Mass.\] 70 N. E. 1021. Evidence of the condition of a switch eight days after the accident. Logan v. Metropolitan St. Ry. Co.

\[Mo.\] 82 S. W. 126. That another passenger had fallen at the same place is admissible.

Holzhauser V. Brooklyn Heights R. Co., 43

Misc. 145, 88 N. Y. S. 269. It was proper for

a witness who had worked for the company to testify how often coupling had become uncoupled or broken. Birmingham R., L. & P. Co. v. Bryum, 139 Ala. 389, 36 No. 736.

Evidence that many persons had previously

ridden on seat where plaintiff was sitting

when thrown off electric car admissible to

show that plaintiff was using seat provided

for passengers or used by them with defendant's consent. Fitch v. Mason City & C. L.

Traction Co. \[Iowa\] 100 N. W. 618. Where a passenger was injured by falling on a

a passenger was injured by falling on a 3 Cur. Law. CARRIBERS \[OF PASSENGERS\] $ 31C. 653

_Sufficiency of evidence._"--The presence or absence of due care must be determined from all the facts and circumstances appearing in the particular case, and is usually for the jury." Cases in which the sufficiency of evidence to establish particular grounds of recovery, or to authorize submission of the question to the jury, has been considered, are grouped in the footnotes." Where a street is ob ob-

conductor after returning to the car after

Trumbull v. Donahue \[Colo, App.\] 72 P. 684, having gone back half a block to a fallen

In an action for injury by contact with a passenger are not resgstate. Boons v. Oak

stone on aragon passing a street car, evil-

land Transit Co., 139 Cal. 490, 73 P. 243.

dence of the noise made by the stone strike-

Declaration of brackemann showing that

ing the car before it reached plaintiff's seat

rounding of curve caused plaintiff's hand to

so admissible, Jones V. United R. & Elice.

be caught in door held resg setae. Trumbull

Co. \[Md.\] 67 A. 620. Plaintiff may corrobo-

v. Donahue \[Colo. App.\] 72 P. 684. Evic

rate his evidence of his position by the evil

dence as to what was said and done by the

dence of others who noticed him. Trumbull

conductor is admissible where plaintiff

lages that she was negligently carried by

dinance making it an offense for passengers

her destination and that the conductor

treated her rudely and on her return trip

Denison & S. R. Co. v. Johnson \[Tex. Civ.

wuntonly carried her beyond her stopping

App.\] 81 S. W. 780.

place. Memphis St. R. Co. v. Shaw, 110 Tenn.

Miscellaneous matters: Notice of defect

467, 75 S. W. 713. Statements by car starter

in a street railroad is admissible without re-

after the accident and when not engaged

gard to the source. Notice from railroad

in the company's business are inadmissible.

commissioners is admissible though a state-

Wimmer v. Metropolitan St. R. Co., 92 App.

Div. 258, 86 N. Y. S. 6152. That plaintiff

pair legal rights and duties \[Laws 1880, p.

asked conductor to let her off at certain

1131, 5, 656, 162, as amended by Laws 1892,

place and that he said he would, admissible.

p. 1416, c. 676\]. Baruth v. Poughkeepsis

Chicago City R. Co. v. Bundy \[Ill.\] 71 N. E.

City, etc., R. Co., 88 App. Div. 324, 85 N. Y.

28. Declarations made by a conductor

meldately after the injury were not res

be shown as bearing on negligence where

segstate, Nelson v. Georgia, etc., R. Co. \[S.

injury was caused by collusion with cattle.

C.1\] 47 S. E. 722.

Remarks of bystanders: Statements of

passengers in response to request to ring a

signal to stop are immaterial. Boone v.

Oakland Transit Co., 139 Cal. 490, 73 P. 243.

Statements of injured party made to physi

class in course of treatment. Chicago City

R. Co. v. Bundy \[Ill.\] 71 N. E. 28; St. Louis

S. W. 76. Co. v. Burke \[Tex. Civ. App.\] 81 S. W. 774. Complaints and expressions of

pain made by passenger forobly ejected

from train held admissible. Battis v. Chile

to throw plaintiff against it and injure her.

cago, etc., R. Co. \[Iowa\] 100 N. W. 543. In

an action for personal injuries it is compe-

1
ent to prove expressions of pain or suffer-

ing or the indication of such condition by

groans or inarticulate rates. Indianapolis

St. R. Co. v. Schmidt \[Ind.\] 1 N. N. E. 201.

Error in allowing plaintiff's husband to state

that she made complaints, immaterial. Chi

cago City R. Co. v. Bundy \[Ill.\] 71 N. E. 28.

Contributory negligence: Possession of

accident policy does not show contributory

negligence. Missouri, etc., R. Co. v. Flood

(Tex. Civ. App.\] 79 S. W. 1106. Warrant for

plaintiff's arrest, of which she is not shown

to have had knowledge, is inadmissible to

show an attempt to leave the train before it

reached the station. St. Louis, etc., R. Co. v. Smith \[Tex. Civ. App.\] 79 S. W. 340. That

passenger was warned of damage of standing

or walking in the aisle is improperly excluded. Taroo, etc., R. Co. v. Humbrey

\[Miss.\] 86 So. 154. An alteration with no-

torman over face is admissible in action for

failure to obey signal to stop as justifying

plaintiff's attempt to leave the car while

notion believing he would be carried farther. Fuller v

### 654 CARRIERS \[OF PASSENGERS\] $ 31C. 3 Cur. Law.

structed it is a question for the jury whether a motorman is justified in assuming that he can operate his car and that a driver will use reasonable care to get out of his way.\[81\] Plaintiff's evidence alone may be sufficient,\[82\] but not when shown to

City Traction Co. \[Iowa\] $9 N. W. 1059. & P. R. Co. v. Bratcher \[Tex. Civ. App.\] 78 Where a passenger alighted from a crowded & W. 531. Misleading passenger as to time car to let other passengers off and in attempting to regain his place was injured by \[Mid.\] $7 A. 540. Allowing one train to ap- the sudden starting of the car, evidence of proach another so as to cause commitment dan-negligence and contributory negligence was grf of collision. Williams v. Galveston, etc., for the jury. Michelson v. Metropolitan St. R. Co. \[Tex. Civ. App.\] 78 S. W. 45. Deralment of street car: Logan v. Metropolitan Means toward transportation: Negligence in maintenance of automatic coupling. Holland v. St. Louis, etc., R. Co. \[Mo.\] $2 S. W. 126: Indianapolis St. R. Co. v. Schmidt \[Ind.\] $1 N. E. 201.

\[\] $3 W. 508. Ineffective repair of brake.

Howell v. Lansing City Else. R. Co. \[MIech.\] $9 N. W. 408. Defect in ear wheel. Greena: Collins \[Ill.\] $1 N. E. 396. Passenger's dress field v. Detroit & M. R. Co. \[Michel.\] $5 N. W. 546. Diligence in guarding against broken wheel danges. Carwwell v. Macon, etc., R. Co. \[Mo.\] $1 S. W. 1112. Collision be-Co., 118 Ga. $26, 45 S. E. 695. To show greater flame than should attend burning out of fuse in proper condition. Cassady v. Old Colony St. R. Co. \[184 Mass. 156, 68 N. E. 10, 18 J. 184. Failure to lock switch. Heyc v. St. Louis Tront Co., 102 Mo. App.\] $57, 77 S. W. 127. Proper loading of logs where a fall of one derailed the train. Greenfield v. Detroit & M. R. Co. \[Mid.\] $9 N. W. 546. Failure to provide proper coupling plan. Birmingham R. L. & P. Co. \[Ala.\] $6 So. 736. Absence of fenders and conductor. Lincoln Traction Co. v. Heller \[Neb.\] $100 N. W. 197. Whether gate of stock pen which swung loose and struck arm of passenger in passing train was unfastered by a stranger. Gulf, etc., H. Co. v. Phillips \[Tex. Civ. App.\] $14 S. W. 793. Passenger knocked from run-ning board by pillar. Canavan v. Interurban St. R. Co. 87 N. X. $491; Cusick v. Interurban St. R. Co., 86 N. X. $78.

\[\] $81. Frank v. Metropolitan St. R. Co., 91 App. Div. 485, 86 N. Y. $8, 1018. Leaving a side foot board open when passing cars render it dangerous. Kremelmelman v. Jourdan \[Moc.\] $8 W. 232. The question of whether a jerk of a mixed train is unusual or extraordinary in degree is for jury. Chesapeake e. O. R. Co. v. Jordan, 25 Ky. L. R. $74, 76 S. W. 145.

Care en route: Question for the jury whether the street was maintained in a safe condition. Freeland v. Brooklyn Heights R. Co., 43 Misc. 132, 88 N. Y. $264. Collision between two companies at switch held to impose liability on both. Klinger v. United Traction Co., 92 App. Div. 100, 87 N. X. $84. Negligence of motorman in collision with truck. Smith v. Metropolitan St. R. Co., 92 App. Div. 123, 86 N. Y. $1, 1087. Ex-cessive speed of horse car on curve. Vogler v. Central Crosstown R. Co., 83 App. Div. 101, 82 N. Y. $48. Causuing plaintiff to be thrown from street car at curve. Zimmer v. Fox River Valley Electric R. Co., 118 W. 516. Breaking in two of train. Feldschneider v. Chicago, etc., R. Co. \[VWs.\] $9 N. W. 1084. Plaintiff thrown by sudden jar. Davis v. Seaboard Air Line R. Co., 123 N. C. 291, 43 S. E. 840.

\[\] $1. Severe jerk throwing passenger from body of car to street. Higgs v. St. Louis Transit Co., 102 Mo. App. 529, 71 S. W. 98. Exposing passenger to crowding by intoxated smoking and disorder passengers. Texas3 Cur. Law. CARRIES \[OF passengers\] $ 31C. 655

be false in some respects,89 and the question of where car stopped may be for jury though plaintiff is contradicted by two of her own witnesses;84 but plaintiff's evidence wholly uncorroborated and contradicted by disinterested witnesses will not sustain a verdict.88

St. R. Co. v. Polkey, 203 Ill. 225, 67 N. E. 793,

Co., 102 Mo. App. 573, 77 S. W. 314. Attempt Where a passenger was injured while standing on the inner footboard of a street car,

to alight from a street car as it was starting on the inner footboard of a street car,

ing after a stop. Lee v. Elizabeth, etc., R. evidence of the carrier's negligence was for

Co., 69 N. J. Law, 607, 55 A. 106. Passenger

the jury. Allen v. St. Louis Transit Co. \[Mo.\]

shown in front of car on parallel track.

81 S. W. 1142. Evidence that, a woman, 78

Scamell v. St. Louis Transit Co., 103 Mo.

years old, was thrown down by a violent lurch

Appl. 18, 76 S. W. 660. Attempting to use a

of the car is in the absence of evidence of

site in place of other means of egress from

contributory negligence sufficient to take the

a carrier's grounds. Cotant v. Boone Sub-

question of negligence to the jury. Harry v.

urban R. Co. \[Now\] 98 N. W. 115. Ques-

New York, etc., R. Co., 88 N. Y. S, 422. Neg-

tion of whether intending passenger could

ligence becomes a question for the jury

have seen ditch and of negligence in falling

when a freight train is started so that a

to warn him, held for jury. San Antonio,

person with a drover's pass is injured while

etc., R. Co. v. Ternary \[Tex. Civ. App.\] 78 S.

trying to reach the caboose thereon on which

We 256. Evidence of passenger that he was

he is to ride by being compelled to pass

unaware of danger from stone on a passing

tween moving trains, the engineer knowing

wagon is not overcome by evidence that the

of his presence, and all other facts concern-

noles made by the stone in striking the car

ing the approach of the other train. Lake

before it reached plaintiff should have been

Shore, etc., R. Co. v. Hotchkiss, 24 Ohio Circ.

beard. Jones v. United R. & Elec. Co. \[Mo.\]

R. 431.

57 A. 620. Where there is no evidence that

Starting or jerkins while passenger is

reasonable time was given plaintiff to reach

aligning: Evidence held for jury. Keues

v. Metropolitan St. R. Co., 86 App. Div. 611,

receive passengers, her contributory neglig-

83 N. Y. S. 880; Gunn v. Metropolitan St. R.

gence need not be submitted. Stoddard v.

Co., 86 N. Y. S. 241; Fox v. Metropolitan St.

St. Louis, etc., R. Co., \[Mo. App.\] 80 S. W. 33.

R. Co., 87 N. Y. S. 784; Yazoo, etc., R. Co. v.

Proximate cause: Here showing that car

Hatch \[Miss.\] 35 S. 841; Meade v. Boston

started is insulfulent without showing how

El. R. Co. \[Mass.\] 70 N. E. 197; Baker v. In-

was started or that it caused plaintiff to

terurban St. R. Co., 88 N. Y. S. 91; City & S.

fall while boarding. Meyerowitz v. Intertwir

R. Co., 84 N. Y. S. 233. Evidence

v. Metropolitan St. R. Co., 88 N. Y. S. 233. Evidence

held to show that splinal trouble resulted

Bente v. Metropolitan St. R. Co., 90 App. Div.

from physical hurts other than an electric

213, 86 N. Y. S. 885; Andrews v. Metropolitan

shock for the injuries from which recovery

St. R. Co., 91 App. Div. 63, 86 N. Y. S. 385;

could not be had. Perry v. Detroit United

Chicago City City K. Co., v. Bundy \[Ill.\] 71 N. E.

R. \[Mich.\] 98 N. W. 17. Evidence

25; Abbitt v. St. Louis Transit Co. \[Mo.\]

sufficient to connect injury to passenger's

App.J. 81 S. W. 841; Duffy v. St. Louis Transit

finger from defective door with his subse-

sit Co. \[Mo. App.\] 78 S. W. 831. Evidence

that conductor caused the car to move for

show that injury was occasioned by the

ward is not necessary though the sole neglig-

door. Williams V. Citizens' Elec. St. R. Co.

gence alleged in starting while passenger

184 Mans. 437, 68 N. E. 840. Evidence held Where a passenger was last seen going out of a car toward the next which he did not enter, there being no evidence of intent to commit suicide, it is a fair inference that he was thrown from the train by a lunch.\*\*

Where evidence is undisputed tending to show possession of a transfer, failure to produce it at the trial is not fatal." Slight evidence, uncontradicted, is sufficient to support ownership by defendant where not an issue but an inducement to the general charge of negligence averred.\*\*

On trial of an action to recover for use of indecent language, the plaintiff must state the particular language used by other passengers as near as possible; it is not sufficient that she state they cursed, and used vulgar and obscene language.\*\*

_Confusing and misleading instructions._**\[**?**--Instructions as to paramount right of defendant to use of tracks are properly refused where liability on collision with vehicles has been correctly stated.**\[**51**\] Decisions as to the definiteness and clearness of instructions or their contradictory character are grouped in the notes.**\[**?\*\*\]

_Instructions as to burden of proof._--Proper instructions as to the burden of proof are indicated in the notes.\*\*\[**52**\]

S5. Start while alighting. Manning v. \[Civ. App.\] 78 S. W. 253. Instruction modified Metropolis St. R. Co., 86 N. Y. S. 112. \[Vedrick set aside on contradiction in plain-such. Louisville R. Co. v. Meglemetry, 25 Ky. \[H7\]'s evidence in action for injuries in board-L. R. 2062, 17 S. W. 287. \[H8\]. \[H9\]. \[H10\]. \[H11\]. \[H12\]. \[H13\]. \[H14\]. \[H15\]. \[H16\]. \[H17\]. \[H18\]. \[H19\]. \[H19\]. \[H12\]. \[H13\]. \[H14\]. \[H15\]. \[H16\]. \[H17\]. \[H18\]. \[H19\]. \[H19\]. \[H13\]. \[H15\]. \[H16\]. \[H17\]. \[H18\]. \[H19\]. \[H19\]. \[H14\]. \[H16\]. \[H17\]. \[H18\]. \[H19\]. \[H19\]. \[H19\]. \[H12\]. \[H13\]. \[H14\]. \[H15\]. \[H16\]. \[H17\]. \[H18\]. \[H19\]. \[H19\]. \[H19\]. \[H16\]. \[H18\]. \[H19\]. \[H19\]. \[H17\]. \[H19\]. \[H18\]. \[H19\].

- Cur. Law. CARRIERS \[OF passengers\] $ 31C. 657

\_Instructions invading province of jury.*.--\_The existence of negligence or facts in issue should not be assumed.\*\* The charge should not assume mitigating circumstances.* A special interrogatory does not assume the fact of injury by requiring a finding of whether a defective condition of a track contributed to the injury of plaintiff.\* On the other hand, questions of law should not be submitted.\*\*_Instructions emphasizing or omitting particular facts.\*_--Where facts are grouped in an instruction all that are material should be considered and prominence given to none.\*\*1

v. Heller \[Neb.\] 100 N. W. 197. In action for injuries to passenger, charge that plain- liability. Houston Elice. Co. v. Nelson \[Tex. 117 started with undertaking on him to \[Pasasnger was "compelled to walk" and the collation was not due to defendant's negligence, plaintiff could not recover. Savage v. which are shown by the proofs in this case." Marlborough St. R. Co. \[Mass.\] 71 N. E. S1.

In an action for injuries caused by collision, where defendant offers no explanation of the accident, an instruction that the mere fact of the collision was not evidence of negligence is Improper. Id. Instruction as to \[Pasnger was "compelled to walk" and the collision was not due to defendant's negligence, plaintiff could not recover. Savage v. which are shown by the proofs in this case." Marlborough St. R. Co. \[Mass.\] 71 N. E. S1.

In an action for injuries caused by collision, where defendant offers no explanation of the accident, an instruction that the mere fact of the collision was not evidence of negligence is Improper. Id. Instruction as to \[Pasnger was "compelled to walk" and the collision was not due to defendant's negligence, plaintiff could not recover. Savage v. which are shown by the proofs in this case." Northern Tex. Fraction Co. v. Hooper \[Tex.\] 80 S. W. 113. Where the defendant has introduced evidence tending to show that it has used proper care to avoid the accident, a charge that the fact of injury is prime facile evidence of negligence which the defendant must rebut by a showing of such care. St. Louis S. W. R. Co. v. Parks \[Tex.\] 76 S. W. 740.

Proper to give such instruction though the \[Pasnger is "compelled to walk" and the collision was known. Id." 183 A. 614, 85 So. 701.

**94. See 1 Curr. L. 490.**

\*\*95. Should not assume plaintiff's drunk-anneas where controverted. Birmingham R., L. & P. Co. v. Mullen, 183 Ala. 614, 85 So. 701. Must not exclude from jury questions of whether runaway was unavoidable. Tallion v. Mears \[Mon.\] 74 F. 421. Error to instruct as to facts rendering the surface of a tree to stand where it might fall across the track negligence, unless such as to continue negligence per se. Ala. Midland R. Co. v. Gullford, 119 Ga. 523, 46 S. E. 655. An instruction assuming absence of negligence cannot be given where question is prop- early for the jury. City & S. R. Co. v. Sved-borg, 194 U. S. 201, 24 S. C. 656. Should not assume an issue of fact as to distance plain- till was compelled to walk through failure to stop car. Northern Tex. Traction Co. v. Peterman \[Tex. Cyr. App.\] 88 N. W. 538.

**Held proper: As not assuming that car**

was stopped when plaintiff attempted to alight. St. Louis S. W. R. Co. v. Dolan \[Tex. 117 N. E. S1.

Civ. App.\] 77 S. W. 415. As to liability toward person boarding car held not to with- draw defendant's negligence as a question of fact. Doering v. Metropolitan St. R. Co., 42 Mise. 192, 85 N. Y. S. 400. In action by person pushed off of train held good on criticisms that it was on the facts and failed to submit contributory negligence. Tex. & P. R. Co. v. Terms \[Tex. Cyr. App.\] 77 S. W. 230.

Held not to inform the jury that they should find for plaintiff as a matter of law in case his version of an accident while alighting from a car was true. Bente v. Metropolitan St. R. Co., 90 App. Div. 213, 86 N. Y. S. 85.

Held not to assume that speed was dangerous. South Covignon, etc., R. Co. v. Constans, 25 Ky. L. R. 158, 174 S. W. 705. Instruction as to alighting from moving train not bad as assuming that an admitted fact was a material issue. Harris v. Gulf, etc., R. Co. \[Tex. Civ. App.\] 80 S. W. 1023.

**Held improper:** Instruction as to negligence of passenger in exposing himself to binders. Mo., etc., R. Co. v. Flood \[Tex. Civ. App.\] 79 S. W. 1106. Instruction that mere 1023.

**3 Curr. Law--42.**

\*\*43.

_Conformity of instructions with evidence._\[2\]--The instructions must be justified by the evidence.\[3\]

_Conformity of instructions with issues._\[4\]--The issues must be defined,\[5\] and instructions must not be given as to matters not in issue,\[6\] but issues should not be ignored.\[7\]

moving car need not have been given where there is a finding that the car was at a stand. Indianapolis St. R. Co. v. Brown North Chicago St. R. Co. v. Polkey, 203 IL. \[Ind. App.\] $ N. E. 407. Instruction as to $25, 67 N. E. 792. Where plaintiff evidy not to start while passenger is slight-dence is confined to a fall from catching her foot in a hole under defendant's rail, it is proper to confine the jury to such issue.\[6\]

Instructions held supported by evidence: Aluding to "Wreck and derallment." San Antonio Traction Co. v. Williams \[Tex. Civ. App.\] $ N. E. 407. Instruction as to App.\] $ N. W. 542. The effect of the 3 Cur. Law. CARRIERS \[OF PASSENGERS\] SS 31C. 659

\_Instructions as to the extent of the carrier's liability,$s$ where the decisions appear to be based on the form, are considered in the notes. The substantive law of liability has already been treated." An abstract definition of the degree of care to assist in alighting should not be ignored, that it must have "proximately" contributed Chicago, etc., R. Co. v. Armes \[Tex. Civ. App.\] 74 S. \[v7. 77. Where complaint was founded on negligence of defendants' em-

S. W. 656. Instruction as to degree of care on part of carrier not objectionable as cal-

which passed through a car door and in

culated to mislead jury as to the decisive suddenly starting the train, Instruction held

issue which it was called upon to determine.

not erroneous for failure to include neglig-

Babbitt v. St. Louis Transit Co. \[Mo. App.\]

gence in placing the hose in such position.

Ratteree v. Galveston, etc., R. Co. \[Tex. Corp.\] 81 S. W. 656.

for injuries resulting from being struck by

Dicke hadle, approved. Kentucky, etc., R. Co. \[J. Clarke \[Tex. Civ. App.\] 80 S. W. 1944. As to

"Bee ante, $ 23 ct seq.

negligence of motorism in action for in-

Approved: As to effect of arm being out-

side of street ear, without additional charge

sers, not objectionable as falling to specify

that it was negligence in the passenger to

which was meant. Galveston City R. Co. v. allow his arm to protrudem. Zeilf v. New

Chapman \[Tex. Civ. App.\] 80 S. W. 856.

Jersey St. R. Co., 69 N. J. Law, 641, 65 A.

A so degree of care required, ap-

96. As to effect of failure to see intending

passenger's signal. Clinton v. Brooklyn

71 N. E. 28. Instruction as to speed of elec-

Bleights R. Co., 91 App. Div. 374, 86 N. Y.

S. B$ar{ar{ar{ar{ar{ar{ar{ar{ar{ar{ar{ar{ar{ar{ar{ ar{ar{ar{ ar{ ar{ arbar{ }}}}}}{}}}}{{}}}{{}}}{{}}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{ }{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{ }{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{ }{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{ }{}{{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{ }{{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{{}{}{ }{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{{}{}{}{}{}{}{}{}{ }{}{{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{{}{}{}{}{}{ }{}{}{{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{}{{}{}{}{}{}{ }{}{}{}{}{}{}{}{}{}{}{}{}{}{}{ required of the carrier in setting down passengers is not requisite where the duty under the particular facts is stated.10 Defendant is entitled to have the issue of proper care submitted to the jury in terms.11 An instruction as to care due an alighting passenger must not omit element of notice to carrier of his intention.12

Footnote 12: https://www.fnal.gov/

_Instructions as to contributory negligence_\[18\] should not be given where the issue is not presented.14 As to the propriety of particular instructions, see the footnote.15

Footnote 14: https://www.fnal.gov/

\_Instructions cured by other instructions.16--\_The instructions are to be construed as a whole,17 and defects may be so cured.18

Footnote 18: https://www.fnal.gov/

26 Ky. L. R. 393, 81 S. W. 695. Instructions

going, etc., R. Co. v. Armes \[Tex. Civ. App.l\] making a failure of the passenger to exer-

74 S. W. 77. As to contributory negligence

else ordinary care a bar to recovery, without

of plaintiff in attempting to leave moving

the condition that it must have contributed

car, approved. Denison & S. R. Co. v. John-

to the injury, are erroneous. St. Louis B.

son \[Tex. Civ. App.l\] 81 S. W. 780. As to

W. R. Co. v. Cannon \[Tex. Civ. App.l\] 81 S. W. 209.

degree of care required of passenger, ap-

W. 778. It is error to submit the question

proof. Chicago City R. Co. v. Bundy \[Ill.\] of negligence without instructing as to what

11 N. E. 28. Defendant entitled to instruction that failure to stop street car and give

(Mo.) 81 S. W. 1158. An Instruction that the

plaintiff an opportunity to align did not

duty of the motorman and conductor to to

give plaintiff right to jump from moving

exercise toward passengers the highest degree of care consistent with the proper

100 N. W. 592.

discharge of their other duties is erroneous.

Foster v. Seattle Elec. Co. \[Wash.\] 76 P.

955.

001. Henning v. Louisville R. Co., 24 Ky. L.

17 R. 2419, 74 S. W. 209.

18. Houston Elec. Co. v. Nelson \[Tex. Civ. App.l\] 75 S. W. 978.

01. Texas Southern R. Co. v. Long \[Tex. Civ. App.l\] 80 S. W. 114.

01. See 1 Curr. L, 492.

01. In the absence of plea of contributory

negligence, jury need not be instructed that

issue is not in case. Duffy v. St. Louis

International, etc., R. Co. v. Anchonda \[Tex.

plaintiff claimed that she was showed from

A train and defendant denied that, or that

subarray assumption by plaintiff of danger

she even fell therefrom, an instruction as to

contributory negligence is not justified. Clin-

granular trip, erroneous. Brock v. St. Louis

innati, etc., R. Co. v. Halcomb, 25 Ky. L. R.

Tranati Co. \[Mo. App.l\] 81 S. W. 219.

144, 78 S. W. 205.

15. Approved: Shelley v. South Carolina

cient time to align with street car, and as

& 3 Cur. Law. CARRIERS \[OF Baggage\] SS 33. 661

Part V. CARRIERS OF Baggage and Passengers' Effects.

SS 32. _Rights, duties, and liabilities._\[19\]--A contract to carry a reasonable amount of personal baggage is implied in the contract of carriage,\[20\] but this implied obligation is limited to such articles as are reasonably required for the comfort or convenience of the passenger and his family having regard to his circumstances, the length of the journey, etc.,\[21\] and the carrier may refuse to carry other articles except as freight,\[22\] though there is a statutory provision entitling a passenger to a certain weight of baggage.\[28\] At common law, there is no fixed limit to the value of baggage, the reasonableness of the quantity for which liability exists being for the jury.\[24\] Where no partnership or special contract is shown between connecting carriers, one could not be held liable for a loss of baggage by the other.\[25\]

SS 33. _Care of baggage and effects._\[26\]--The general liability is that of an insurer,\[27\] but where a passenger does not intend to accompany his baggage, the carrier is in the absence of a special contract liable only as a gratuitous ballee,\[28\] though

a defect in trucks not discoverable by the \[heavy winter clothing is proper baggage on exercise of the utmost care, skill and dill-short trip in summer ia for the jury. Mo., gence. Louisiana, etc., R. Co. v. Crumpier etc., R. Co. v. Meck \[Tex. Civ. App.\] 17 S. W. \[C. A.\] 122 F. 425. Omission of contribu-

317. Whether mechanale's tools were proper tory negligence idea held cured by other instructions. Louisville R. Co. v. Moglemery, goods and articles that generally go as 25 Ky. L. R. 1587, 78 S. W. 217. Retusal

to instruct that if a passenger had failed to

when family is moving from one state to exercise the degree of care required of him

another, are not ordinarily included, where

while standing on an inner foothard, he

the carrier has no notice that they are being

should not recover, was not cured by char-

transported. Yazoo, etc., R. Co. v. Baldwin

ging that if he exercised ordinary care he

\[Tenn.\] 51 S. W. 599.

could recover. Allen v. St. Louis Transit

22. Sautore v. Southern R. Co. \[C. C. A.\]

Co, \[Mo.\] 81 S. W. 1142. Not error to refuse

128 F. 15. The fact that the manager of a

charge as to proximate cause which was

theatrical trupe bought a ticket for

subfficiently covered in main charge. St. Louis S. W. R. Co. v. Burke \[Tex. Civ. App.\]

pected to carry does not imply any agree-

81 S. W. 774. Requested instruction as to

contributory negligence covered by that

not proper baggage. Id.

given. Fitch v. Mason City & C. L. T. Co.

23. Wileon's Rev. & Ann. St. 1903, # 708,

\[Iowa\] 100 N. W. 618. Failure to charge

709, does not cover butcher's tools to be

what liability rests on "other carriers" cured

by instructions enumerating facts which

R. Co. v. Zwirtz, 13 Okl. 411, 73 P. 941,

must have been proved. Masonic Fraternity

Temple Assn v. Collins \[Ill.\] 71 N. E. 396.

As to care required in keeping track in safe

condition in action for injuries due to derall-

ment of street car at switch. Any generality

v. McKernan, 88 N. Y. S. 365.

therein cured by other instructions. Logan

v. Metropolitan St. R. Co. \[Mo.\] 82 S. W. 126.

19. See 1 Curr. L. 498.

01. Saunders v. Southern R. Co. \[C. C. A.\]

128 F. 15: Yazoo, etc., R. Co. v. Baldwin

\[Tenn.\] 81 S. W. 699.

21. Saunders v. Southern R. Co. \[C. C. A.\]

01. Saunders v. Southern R. Co. \[C. C. A.\]

01. Saunders v. Southern R. Co. \[C. C. A.\]

01. Saunders v. Southern R. Co. \[C. C. A.\]

01. Saunders v. Southern R. Co. \[C. C. A.\]

01. Saunders v. Southern R. Co. \[C. C. A.\]

01. Saunders v. Southern R. Co. \[C. C. A.\]

28 F. 15. The term baggage cannot be accurately defined since what it includes depends largely on the circumstances of each

particular case. Yazoo, etc., R. Co. v. Baldwin

van \[Tenn.\] 81 S. W. 599. Woman's clothing

man, but when the passenger wished to

and think of her children, fancy work, and

miscellaneous ornaments, savings bank and

contents, zither key, and small amount of

her husband's clothing, all in her trunk,

held baggage, where family was moving. Id.

Stage consumes, sc a husband may join with his wife in suing on the general liability as to her baggage though not himself a passenger.29

The fact that baggage given Pullman porter is not returned shows negligence,30 but as to hand luggage taken into a day coach, the carrier is not an insurer.31

The passenger need not inform carrier at time of delivery to it, of the specific articles contained in baggage,32 but must exercise good faith to impose liability for unusual or improper articles.33 The carrier is not liable as bailee for storage of articles improperly shipped as baggage.34

SS 34. \_Limitation of liability.38--\_The carrier may contract for a reasonable limitation of its common-law liability for loss or damage to baggage not resulting from its negligence,38 or, as a condition, a free pass may require the passenger to assume all risk as to baggage,37 but a statute permitting limitation does not apply to baggage lost by theft at the station of departure before the passenger had an opportunity to check it.38

A statute prohibiting limitation of common-law liability for property is applicable to interstate shipments.39 A contract in general terms will be construed consistently with law not to release liability for negligence.40 The passenger must consent to a limitation of liability,41 and must have notice in such a way as to afford an opportunity for acceptance or rejection.42

and windows secured in the ordinary man-

frequently refuse to carry baggage on cerner. Id.

tain trains. There seems to be no reason for requiring the owner of a ticket to get 81 S. W. 598.

upon the train which carries his baggage.

NOTE. Liability for baggage not secommended by passenger! It was recently held

concludes that both reason, based on modern in Michigan that one who purchases a rail-

transporting methods, and authority are road ticket for the sole purpose of checking

contrary to the Michigan decision. See case his baggage upon it, with no intention of

and note in \[Mich.\] 55 L. R. A. 650.

becoming a passenger on the train, can hold

the carrier liable only as a gratuitous ballee

N. Y. S. 248.

where a porter told a passenger he could safely leave his baggage in

if is stolen from the baggage room, unless

his benth, and it was stolen while he was

the carrier is guilty of gross negligence.

absent, evidence held for the jury as to the Marshall v. Pontice, etc., R. Co., 126 Mich.

negligence of the carrier. Arthur v. Pullman Co., 88 N. Y. S. 881.

can Co., 88 N. Y. S. 881.

nonc to this case in the L. R. A.: "The de-

cision is * * * unexpected and * * * much at variance with the common support-

tion that the carrier accepts liability for a

trunk when it accepts it as baggage and

regularly checks it upon a valid ticket, with-

ccepted with notice and without deception.

out regard to the owner's transportation on

the same train." The writer claims that the

authorities most nearly in point are clearly

opposed to the decision in the Michigan

greater than that as carrier. Mo., etc., R. case and go far to support the contrary

Co. v. Meek \[Tex. Civ. App.\] 76 S. W. 317.

docrine. Among the cases cited by him are

S. See 1 Curr. L. 494.

Beers v. Boston, etc., R. Co., 67 Conn. 417.

34 A. 641, 32 L. R. A. 6355; Fairfax v. New

128 F. 15. Passenger held bound by Imitta-

York, etc., R. Co., 73 N. Y. 167, 29 Am.

tion printed on excursion ticket. Jacobs v. Rep. 119; Vramer v. Burlington, etc., R. Co.,

Central R. Co., 208 Pa. 535, 57 A. 982, Liml-

25 Iowa, 166, 92 Am. Dec. 388; Black v. Station of carrier's liability for loss of a

The Trent, 18 La. Ann. 664. Two cases cited

passenger's baggage to 150 pounds at $1 a

by the court in the Michigan decision are

pound, unless special agreement be made.

said not to support that decision: The

Elvira Harbeck, 2 Blatch. 336, Fed. Cas.

37. Holly v. Southern R. Co. \[Ga.\] 47 S.

No. 4,424 and Wilson V. Grand Trunk R. Co.,

E. 188.

66 Me. 50, 96 Am. Dec. 435 and 57 Me. 128,

88. Williams v. Central R. Co., 93 App.

2 Am. Rep. 26. "The reason of the matter

beems very clear, in view of the modern de-

89. Limitation of liability for baggage to

velopment of baggage transportation in this

8100 held invalid where loss occurred on

country. * * * Baggage is checked when

taken into the carrier's possession and kept

\[Tex. Civ. App.\] 77 S. W. 234.

in the carrier's exclusive custody and control

40. Saunders v. Southern R. Co. \[C. C. A.\] until it reaches" its destination. Carriers

128 F. 15. Limitation in amount does not 3. Cur. Law. CAUSES OF ACTION AND DEFENSES. 663

SS 35. _Damages._\[48\]--The measure of damages is the value of baggage at destination and not at point of connection._\[44\] The value of wearing apparel and articles of daily use is not governed by market value._\[45\]

SS 36. _Remedies and procedure._\[44\]--Where delivery in good condition to the first carrier is shown, it is presumed to continue while in his possession and liability is imposed on the succeeding carrier._\[47\] A derailment causing damage raises a presumption of negligence._\[48\]

### Case, Action on.

Case lies for consequential injuries resulting indirectly from a wrongful act,\_\[1\] _as for injuries resulting from negligence,_\[2\] _or for wrongful act committed by one's servant without his orders for which he as principal is responsible._\[8\] _Plaintiff must declare on a wrong and not on a promise._\[4\] _A count in trespas cannot be joined in an action brought in case._\[8\] _A release may be proved under the general issue, though made after issue joined._\[4\]

## 6 CAUSES OF ACTION AND DEFENSES.

This article deals only with abstract and fundamental principles. The specific applications of the rules governing the joinder and splitting of causes are pertinent to Pleading,\_\[7\] _the joinder of parties to Parties,_\[8\] _and the consolidation and severance of trials to Trial._\[9\] _Relatively to the law of pleading, a cause of action is some particular right of the plaintiff against the defendant, together with some definite violation of that right,_\[10\] _and is for the purposes of the suit, whatever the plaintiff declares it to be in his pleadings._\[11\] _The "gist of the action" is the cause for which the_

- \[leftmargin=0.5cm\]
- \[leftmargin=0.

664 CAUSSES OF ACTION AND DEFENSES. 3 Cur. Law.

action lies.\[12\] A legal right in plainiff,\[13\] and a violation of that right\[14\] are essential. The omission of a duty does not constitute the foundation of an action unless it results in injury to one for whose protection the duty was imposed.\[15\] Abstract questions of law cannot be made the subject of litigation.\[16\] To maintain an action for the use of another, there must be a legal right of action in the party bringing suit.\[17\] The same legal right may be violated more than once, and each violation may give rise to a new and distinct cause of action.\[18\] A wrong, in a legal sense, is a violation of only one right,\[19\] and from a single wrong but one cause of action can arise.\[20\] All of a series of acts having in view the consummation of a single fraudulent purpose, being parts of one subject-matter, which is the primary subject of the action or an incidental part of a subject of controversy, may be brought into a single action for adjudication.\[21\] In some states, certain crimes give rise to two statutory actions, one the criminal action, the other a civil action for a penalty.\[22\] A person having a legal right needing judicial enforcement or judicial protection is entitled to be accorded a legal remedy.\[23\] Causes of action are ex contractch\[24\] or ex delicto.\[28\] Whether a cause of action is one arising out of contract or by a tort becomes material in applying certain remedies.\[28\]

\_Defenses.\[27\]--\_One possessing a right may enforce it notwithstanding his motive,\[28\] but the court will refuse to hear collusive suits.\[29\] The question of collusion will not generally be determined on demurrer.\[30\] Prematurity in bringing the action is a defense.\[31\] That others are liable or culpable with defendant is no

12. Penoyer v. People, 105 11. App. 481.

01. Legal title to a promissory note is sufficient, though such owner has no bene-ficial interest. Manley v. Park \[Kan.\] 78 P.

01. Cannot enficial interest. Manley v. Park \[Kan.\] 78 P.

01.

A private citizen cannot in a civil action try the issue as to whether or not a corporation is violating the law. ManGimnis v. Boston & M. Consol. C. & S. Min. Co. \[Mont.\] 78 P.

16. S9. Private citizen cannot challenge validity of ordinance unless he shows some injury peculiar to himself. Unger v. Fanwood Tp. 59 N. J. Law, 548, 55 A.

01. Cannot enficial public improvements without special injury being shown. Ray v. Colby \[Neb.\] 97 N. W. 591. See 1 Curr. L. 496. n. 20.

01. City of Columbus v. Anglin \[Ga.\] 48 S. E. 318.

01. Eric R. Co. v. McCormick \[Ohlo\] 58 N. E. 571. Declaration must show such duty.

01. Horentsing v. Virginia-Carolina R. Co. \[Va.\] 47 S. E. 995.

01. Where, before trial In a suit to reform an instrument, the parties executed a contract embodying the provisions sought to be inserted, there is no occasion for the court to act. Daugherty v. Curtis \[Iowa\] 97 N. W. 67. A controversy is settled by a conveyance to one who effects a settlement pending appeal, agreeing that it shall not be affected by the appeal. Wedelault V. Bell, 26 Nov. 395, 89 P. 612. See 1 Curr. L. 496, n. 31.

01. State v. Bank of Quitman, 117 Ga. 849, 45 S. E. 236.

01. City of Columbus v. Anglin \[Ga.\] 48 S. E. 318. A single transaction causing one item of damage is a single cause of action.

01. The same act may violate any num-

8 Cur. Law. CEMETETERIES. 665

defense." In an action for a joint tort, a separate defense may defeat a joint recovery.\[88\] In matter of substance, the distinction between legal and equitable defenses is preserved.\[44\] An agreement of warranty independent of a complete written agreement can only be availed of by way of counterclaim.\[86\]

CEMETETERIES.

Public control."--Cemeteries are subject to regulation or suppression by the exercise of the police power.\[87\]

Acquisition of land for cemetery purposes.\[88\]--Cemeteries are among the purposes for which land may be dedicated in the United States,\[89\] and no particular form or ceremony is necessary to such dedication.\[40\] The legislature may lawfully condemn land for a public burial ground, to be maintained by a public or private corporation or voluntary association;\[41\] but private use of land by a private corporation, though it may be in a sense a public convenience and necessity, is not strictly a public use justifying condemnation of land for the purpose.\[42\] The legislature may authorize one cemetery association to take land already owned by another association, providing the latter has condemned or appropriated the land for the purpose of preventing its use for the public purpose, and not to carry out the avowed purposes of its organization.\[43\] A provision in a grant to a municipality that the land is to be used forever as a public burial place will not be construed as a condition subsequent unless there is a provision for re-entry or reversion to the grantors or their heirs or representatives.\[44\] The city of Denver, Colo., acquired an absolute, alienable title to land, under a patent to its mayor in trust,

fore date of its taking effect. Nellsen v. \[ Location. Wormley v. Wormley, 207 Ill. 411, Mayer, 85 N. T. S. 1069. An action for fraud in the sale of property does not arise until \] bye, church officers exercising general Young, 87 N. T. S. 678. Damages subsequent to bringing the action cannot be re-covered. Jones v. Kramer & Bros. Co.,\[13\] Presbterian Church \[B. C.\] 47 S. E. 974. N. C. 446, 45 S. E. 827. The commencement of an action is a sufficient demand for the amount of the claim. Hopkins v. International Chamber Co.,\[3\] V. Nash, 181, 73 P. 1113. See 1 Curr. L. 497, 4. 46. \[32\] City of Kewanev v. Otley, 204 Ill. 402, 68 N. E. 388. \[33\] Fogarty v. Southern Pac. Co.,\[123\] F. \[34\]. The defense of purchaser for a valuable consideration without notice is always equitable in its nature. Maxwell v. Foster \[8. C.\] 45 S. E. 927. One cannot base an equitable defense on a contract which he has failed to perform. Howard v. Hewitt, 139 Cal. 614, 75 P. 414. \[35\]. Atwater v. Orford Copper Co.,\[85\] N. T. S. 426. \[36\]. See 1 Curr. L. 497. \[37\]. Ordinance prohibiting burlals within city or country of San Francisco valid, and not in conflict with certain other states. \[38\]. Can Francisco,\[39\]. Can Francisco,\[40\]. The 460 Cellows' Cemetery Ass' v. San Francisco,\[140\]. 226, 73 P. 987. \[38\]. See 1 Curr. L. 497. \[39\]. Wormley v. Wormley, 207 Ill. 411, 69 N. E. 865. \[40\]. Express setting apart of land for such purpose, staking out land and permitting burlals therein, and notorious use for 20 years, cited as examples of dedications. In case at bar, the cemetery was recognized as such over 60 years and owner and relatives used it for burial purposes. Held a ded- and/or the 460 L. 461. \[41\]. The city of Denver, Colo., acquired an absolute, alienable title to land, under a patent to its mayor in trust, 45. Wright v. Morgan, 191 U. S. 55, 24 S. \[the offense, and court should instruct on Ct. 6. \[the onfense, and court should instruct on Ct. 6. \[the onfense, and court should instruct on Ct. 6. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct. 7. \[the onfense, and court should instruct on Ct.

3 Cur. Law. CERTIOARI SS 1. 667 births and deaths" is sufficient to warrant the inclusion in the act of provisions requiring physicians to keep a record of and report births or deaths at which they attend professionally \[63\]. Statutes requiring such records and reports are within the police power \[64\], and are not unconstitutional because not providing for compensation to the physicians \[65\]. An indictment against a physician for failing to comply with such a statute must allege that he was a practicing physician during the period for which it is alleged he did not do his duty \[66\], and that he attended professionally at births or deaths \[67\]. An act requiring a record of marriages and births to be kept and a report thereof to be made within ten days, on penalty of a fine of $100, is penal in nature and cannot be enlarged by judicial construction \[68\]. Mailing a birth notice is a sufficient compliance with a provision requiring report of births by physicians assisting therein professionally \[69\]. The super-intendent of state prisons cannot be compelled by mandamus to return photographs and Bertillon measurements of a prisoner, though the conviction is subsequently reversed and he is acquitted \[70\]. By statute in Vermont, no public record of births, marriages or deaths, required by law to be kept, nor any certified copy thereof, is competent to prove any fact stated therein, except the fact of birth, marriage or death \[71\].

**CERTIOARI."**

**SS 1. Nature, occasion and Propriety of the** (672). Service of Writ (673). The Return Remedy (607). Ancillary Certiorari (670). (673). Objections and Amendments (673). Prerogative Writ (670). Quashal or Dismissal (673). \*\*SS 2. Right to Certiorari; Parties (670). \*\*SS 4. Hearing and Questions Which May 8 3. Procedure for Writ Writ, Service he Raised or Setted (674). **SS 5. Judgment (675).** **SS 6.5 Judgment (676).** \*\*Proposition of Costs (672). The Writ (672). **SS 6.5 Costs (676).** **Notice of Writ to Parties in Original Cause** **SS 7. Review of Certiorari (676).**

\*\*SS 1. Nature, occasion and propriety of the remedy \[71\].-\*\*From a common-law remedy to superintend proceedings assailed for defective jurisdiction, the remedy has been variously enlarged and restricted by statutes, and special forms of certiorari established in many of the states \[74\]. In some of the western Code states it is known as the writ of review \[75\]. It lies to remove to a superior court for review the record and proceedings \[76\] of an inferior court, officer, tribunal or board exercising judicial functions \[77\]. Its revivory nature is not destroyed by statutory enlargements of its scope to admit of trials of fact \[78\].

**SS 2. Jets 1873-74, p. 13, c. 154. Com. v. McCannli 25 Ky. L. R. 652, 76 8. W. 41.** **64, 65, 66, 67. Com. v. McCannell, 25 Ky.** **76. The writ will not bring up the evidence, but only the record, from an Inspection of which jurisdiction and the correctment of Health v. Owen, 42 Misc. 221.** **SS 8. Y. S. 397.** **69. New York City Charter, 8 1237, 1239.** \*\*77. A civil service commission, created by a city charter, is such a tribunal whose action, judicial in character, will be reviewed on certiorari. Corbett v. McCluff Service Comm., 33 Vash. 150, 73 P. 1116. An award by a board of revision of assessment, made in the exercise of a discretion vested in it, is not judicial. People v. Phillips, 88 App. Div. 560, 85 N. Y. S. 200. Action of board of supervisors of a country in the matter \[70\]. incorporation of a city is legislative and ministerial. Borchard v. Ventura County Sup's \[71\]. 7 P. 708. Except where a writ of certiorari issued in an ancillary proceeding, it has no legitimate use except to try the validity, or jurisdictional grounds, of some judicial or quasi judicial determi It is not essential, however, that the proceedings should be judicial in the sense that the word is used when applied to a court of justice; they may be only quasi-judicial," such as the removal of public officers or servants," the issuance of liquor licenses," the action of tax commissioners in fixing an assessment," or the passage of a resolution at a township meeting, fixing the sum of money to be raised for lighting purposes."

In order that this remedy may avail, three requisites are indispensable," namely, the action complained of must have been in excess of or without jurisdiction," there must be no right of appeal," adequate to afford relief," nor any nation. In Wisconsin, it is now considered \[sections in question are of a judicial nature, that where there is jurisdiction to hear proceedings upon habeas corpus, error In de-affect rights or property, the determination of the questions involved is judicial, and in question must be considered as minis-not lie. State v. Whitcher, 117 Wils, 685, 94 N. W. 787. The action of the state auditor, 1d.

ex office commissioner of lands, in refusing to grant an application for a mineral lease, is ministerial. State v. Iverson \[Minn.\] 100 N. W. 91. See I Curr. L. 459, n. 94.

N NOTE, **Critorari de proceedings of a judicial nature forming the basis of executive action. In People v. Hoffman, 168 N. Y. 462, 64 L. R. A. 597, it is said that there is grave doubt whether the courts could compel the governor to make return to a writ of cer-dop. Div. 270, 83 N. Y. S. 788.**

Gorari \[clting People v. Morton, 165 N. Y. 136, 41 L. R. A. 231\]. Such a writ was directorally held not judicial.

rected against the governor In People v. In re Carter, 141 Cal. 316, 74 P. 997, he will be the question was not raised. In People v. Hoffman, supra, the writ though issued to the governor was not served, but it was served on the adjustment general, as custodian of the record of a military tribunal which the writ sought to \[the power of removal is at pleas-review\]; and it was held, sustaining the writ, not lie. See note 40 Am. St. Rep. 45, and tive action, but of the judicial proceedings \[the power of removal is at pleas-results in findings upon which the governor removed a milltia officer from his \[the power of removal is at pleas-confirmed. The court said, "While we cannot touch the person of the governor, we can pass upon the effect of his acts and de-clde whether they are valid or invalid." The military tribunal having acted without jurisdiction, the removal based upon its findings was a nullity. People v. Hoffman, supra.

78. The special statutory certiorari of New York does not cease to be a writ of review by reason of the enlarged scope in the proceedings, which may be had thereafter. It possesses all of the requisites of the common law and code writs, and in addition thereto, authorizes a relearning on the question at issue and the introduction of additional proofs bearing thereon. People v.

Fointer, 92 App. Div. 518, 87 N. Y. S. 304.

78. The perplexity of determining whether or not certiforari will lie in any given case arises out of the difficulty in distinct.

Fushling between legislative, executive or ministerial acts, and those of a judicial nature in which an officer or special tribunal is called upon to act in a judicial or quasi-judicial capacity. Minn. Sugar Co. v. Iverson \[Minn.\] 97 N. W. 454. If the determination of the tribunal or the officer called upon to act affects the rights or property of a citizen, analogous to the manner in which they are affected by proceedings or decisions of courts acting judicially, the pro- 3 Cur. Law. CERTIGRARI SS 1. 669

other plain, speedy and adequate remedy.88 It is also essential that a final order or determination shall have been made,89 or some action taken.90 Want of other remedy and judicial finality may in emergencies and exceptional cases be non-essentials.91 The writ will not reach mere error, either of fact or of law, in the

viewed upon certiorari, unless in the proceedings the justice has exceeded his juris-

ances incident to an appeal do not affect the diction. Kehoe v. Stagmeier \[N. J. Law\] 66

adequacy thereof. State v. Denney, 34 Wash. A. 262.

Illustrations: In forelble entry and de-

talmer. Johnson v. Booge \[N. J. Law\] 66 A.

438. On discharge of prisoner by clutch

440 warranto and centroforari is the proper

court commission on habas corpus. Long-

staff v. State \[Wis.\] 97 N. W. 900. On ap-

pointment of receiver for a corporation

A. 394. Where the party whose title is

penadente life. Gibbs v. Morgan \[Idab\] 72

sailed is already inducted into office, cer-

P. 733. Failure of assessors to make "a

atorial can in no event lie, quo warranto le

careful, particular and thorough comparis-

only remedy; but where he has not yet gains-

son" of tax duplicates as required by statute

ed possession, there is conflict as to appro

is jurisdictional. Borough of Woodstown v.

pilateness of certiorari. MacFall v. Dover Board of Assessors \[N. J. Law\] 67 A. 126.

Allowance of a claim against an estate,

Primary remedies not exhausted: Not

barred by the statute of limitations, Is in

every order which is not appealable is the

excess of jurisdiction. Farrow v. Newin

subject of the writ of review. No

\[Or.\] 75 P. Till. Where n motion is made

sency being shown why the questions pre-

which the trial court has power to entertain,

sented for review may not as effectively

and the party the right to present, the

be determined after final judgment, the writ

tion of the court on the motion cannot be

will not be granted. State v. Super, Court,

reviewed. Motion to set aside a judgment

34 Wash. 248, 75 P. 809. It is not the proper

in a divorce case. Grannis v. Super. Court

\[Csl.\] 77 P. 647.

s66. Kent v. Crenshaw: \[Iowa\] 94 N. W.

s68. State

1131; State v. Lebe \[La.\] 36 S0. 868; State

v. Denney, 34 Wash. 56, 74 P. 1021. An order

granting an amendment to a statement

upon motion for a new trial is not an ap-

65.

pealable order, and hence certiorari lies to

review such an order. Fountain Water Co.

v. Super. Court, 139 CaL 648, 73 P. 590. In

ssometimes regarded as quasi criminal and

New Jersey, certiorari Is the only remedy

for the review of proceedings in a district

pent on which character is given to the

court in forelble entry and detamer and

ceeding in the particular state: Thus, ha-

tenancy cases. Act of 1902, giving appeal,

bears corpus to determine the custody of an

does not apply. Johnson v. Booge \[N. J. Law\] 66 A. 238. Certiorari and not appeal

viewable by appeal, like other civil sults, al-

is the proper method of obtaining a review

in the supreme court of the United States of

a decision of the circuit court of appeals,

made in the exercise of its jurisdiction to

revise an order under the Bankrupty Acts

of 1898, SS 24b. Such revising order is not

appcalable as a decision allowing or reject-

ing a claim under SS 25b. Holden v. Stratten,

191 U. S. 115, 24 S. Ct. 45. See 1 Curr. L

500, n. S.

87. The proper method to review a pro-

ceeding adjidging a party guilty of criminal

contempt is not by appeal, but by certiorari.

In re Teitelbaum, 84 App. Dlv. 351, 82 N. Y.

S. 887. Certiorari is the proper remedy to

vacate a judgment of a United States com-

missioner, whether he had either lost juris-

diction of the subject-matter or of the

fedant. If appeal should be taken in the

former case, it would be dismissed, if in the

latter it would be an appearance. Franklin

v. Bottoms \[Ind. T.\] 76 S. W. 287.

NOTE. Review of econtempt proceedings

by certiorari: The proprity of certiorari in

contempt cases and the matters reveivable

thereby are discussed in the cases cited in

notes 22 Am. SR. R. 420, 425, 40 Am. St. R. 36.

s88. Hegenbaumer v. Heckenkamp, 202 III.

621, 67 N. B. 389. Contested election. Kehoe

v. St exercise of a rightful jurisdiction," or where the writ can accomplish nothing." In New York, a refusal to exercise jurisdiction may be thus reviewed."44

_Ancillary certiorari_,"55--Sometimes the writ issues as ancillary to another proceeding, as habeas corpus."6 Certiorari issues in aid of an appeal only when diminution of the record is suggested." The circuit court of appeals has power to issue writs of certiorari only in aid of its appellate jurisdiction, and cannot issue such a writ to review an order of a circuit court which is not appealable."

_A prerogative writ69_ will issue from a court having a general superintendence and control over inferior jurisdictions newly created and not otherwise reviewable." In New Jersey, the supreme court is, excepting one instance, the sole depository of the prerogative writ."

SS 2. \_Right to certiorari; parties.\_9--Review by certiorari is a matter of grace resting in the discretion of the court allowing the writ."

So too if the exigency in of such an extreme sentence as obviously to justify and demand the interposition of the extraordinary superintending power of the court of last resort, certiorari will issue. Commitmentment to a home for feeble minded is not such an exigency. In re Mielke \[Wis.\] 98 N. W. 245.

92. McAnish v. Grant \[Or.\] 74 P. 396; Farrow v. Nevin \[Or.\] 75 P. 711; People v. Court of Appeals \[Coo\]. 75 P. 921; People v. Court of Appeals \[Coo.\] 75 P. 407.

Question of fact involved, no appeal to a jury having been entered. Singer Mfg. Co. v. Falls \[Ga.\] 45 S. E. 725.

NOTE. Certiorari will not review the decision of a board as to who is the lowest and best bidder on a public contract, if there is any rational basis of fact to support the determination reached in making the award. If there is such a basis, the evidence will not be weighed in order to review the action which the co-cision reached. McGovern v. Board of Public Works, 57 N. J. L. 580: Sheffbauer v. Karney, 57 N. J. L. 588, cited In note 50 Am. St. R. 495.

93. As where a claim has been audited and allowed and the record thereof has passed on in its regular order to another body. People v. Cross, 87 App. Div. 56, 88 N. Y. S. 1083. See 1 Curr. L. 500, n. 99.

01. Where commissioners appointed to assess damages caused by changes of grade of streets dismissed claim of a landowner for damages on ground that they had no jurisdiction, the remedy of the claimman was not by application to them to reopen the case, but certiorari to review the decision. People v. Leonard, 87 App. Div. 259, 84 N. Y. S. 341.

01. See 1 Curr. L. 501.

01. As distinguished from habeas corpus, certiorari reaches and requires the production of a judicial or quasi-judicial record, but never the body of any person, while habeas corpus reaches the latter, but not the former. When the latter writ is used for its general purpose, the former may, in aid of it, be used for its particular purpose. State v. Whitcher, 117 Wis. 688, 94 N. W. 787. In New York, the writ of certiorari as a writ of review in criminal cases has been abolished. In case of a conviction, it may issue to inquire into the cause of detection, in which event its use is designed to reach those cases only where the production of the body is unnecessary to the decision of the 3 Cur. Law. CERTIOARI SS 8.

To entitle one to a writ of review, he must have been a party to the suit or matter in controversy," or show some interest" or injury peculiar to himself." He may lose the right through tardiness in seeking the remedy."

The taxpayers in townships of a disorganized county are proper parties and may join."

Judgment below may not be amended at the request of respondent in certiorari who does not otherwise complain."

So far as certiorari reviewing a municipal ordinance is a proceeding in rem, the governmental authorities of the town, being custodians of the record, are the only necessary parties." The contractor, to pay whom a board of supervisors ordered the levy of a tax, is not a necessary party in proceeding to test the legality of such order." Any person or body, however, beneficially interested in the determination to be reviewed, may, in the discretion of the court, be admitted to defend." Persons may be brought in whose interests have attached pendente lite."

SS 3. Procedure for writ; writ, _corvice and return.--Application_" must be timely," contain proper allegations," specifically assign errors of law," and affirmatively show necessary jurisdictional facts." Where the remedy by certiorari is

proper body, but this was remediable. State

Ing papers. Stroud v. Western Union Tel. v. Gosnell, 116 Wis, 606, 93 N. V. 542, 61

Co., 133 N. C. 268, 45 S. E. 592. In New L. R. A. 33.

York, the time to apply for a writ of certiorari to review the determination of comma-

(Idahol) 74 P. 956. See 1 Curr. L. 501, n. 20.

G. One sung as a public officer cannot

begin to run until the order laying out the maintain centorari where his only interest

highway is recorded in the town clerk's is that of an individual taxpayer. People v. Office, People v. Vandewater, 83 App. Div, Cross, 87 App. Div. 56, 83 N. Y. S. 1083.

G, 82 N. Y. S. 626.

A prosecutor's lack of interest in the contro-

If. There must be substantial compliance

versy is not affirmately shown by the

with statutory provisions, if any. Farrow v. mere fact that the return brings np an or-

Newin \[Or.\] 75 P. 711. A petition for oer-

dinance instead of a conviction under it.

Cent. R. Co. v. Ellaabeth \[N. J. Law\] 87 A.

required to contain conclusions of fact with-

404. On final hearing, It will be assumed

that the prosecutor in certiorari has sufficent interest to give him a standing in

court unless his interest has been previously

challenged. Lantry v. Sage, 69 N. J. Law,

560, 55 A. 34. See 1 Curr. L. 501, n. 21.

7. Ungar v. inhabitants of Fanwood Tp.,

69 N. J. Law, 548, 55 A. 42.

8. Five years' delay. Hopewell v. Board

of Trustees, 69 N. J. Law, 597, 55 A. 653.

Delay of two months in sending papers to

Judge for settlement of case. Stroud v. Western Union Tel. Co., 133 N. C. 253, 45 S. E. 592. See 1 Curr. L. 501, n. 24.

9. Fitch v. Board of Auditors of Claims

(Idich.) 94 N. W. 952.

10. Ware v. Couvillon, 112 La. 43, 36 So.

01.

01. Schwarz v. Dover \[N. J. Law\] 57 A.

394; MacFall v. Dover \[N. J. Law\] 57 A.

18. Tod v. Crisman, 123 Iowa, 693, 99 N.

W. 686.

13. People v. Leonard, 83 App. Div. 643,

82 N. Y. S. 110. Where, in a certorari to a

state board of tax commissioners, a city or

local board of assessors is to be affected,

such city or board is entitled to be made a

party. People v. Priest, 41 Misc. 546, 85 N. Y. S. 235. See 1 Curr. L. 502, n. 30.

14. Judgment may be deferred to bring

in additional parties. Allen v. Board, etc., of

Hunterdon County \[N. J. Law\] 58 A. 346.

15. See 1 Curr. L. 502, n. 31.

01. Ftve years' delay too long. Hopewell

v. Trustees of Flemington, 69 N. J. Law,

597, 55 A. 653. Two months' delay in send-

Ing papers. Stroud v. Western Union Tel. v. Gosnell, 116 Wis, 606, 93 N. V. 542, 61

Co., 133 N. C. 268, 45 S. E. 592. In New

L. R. A. 33.

York independent of the one by appeal, it is not necessary that the application for the writ show cause why the applicant did not appeal.20 While exceptions to the judgments in two separate and distinct cases cannot be embraced in one petition for certiorari, it is proper to embody in one such petition exceptions to every ruling or judgment rendered during the progress of a single case, adverse to the party against whom the final judgment is rendered.21 A petition is not defective because not entitled in a particular court as a complaint in an ordinary action,22 or because of the incorrect statement of the name of the court.23 Verification may be by the authorized attorney of the applicant.24

Where an application for a writ of review is not sufficiently specific, defend-ant's remedy is by motion to make it more definite and certain, and not by denmurrer.25

In Louisiana, a rule of the supreme court requires that an applicant shall file an application for a rehearing in the court of appeal, which must be acted upon finally, before the applicant will be entitled to apply for certiorari or review.25

_The statutory bond27 and prepayment of costs28_ are prerequisite to the issuance of the writ,29 and with the certificate for the payment of costs should be filed with the petition.30 Prepayment of fees is necessary if demanded.31 The applicant for the writ is required to pay only the costs accrued on the trial resulting in the judgment to which he excepts.22

_The writ38_ is sufficient if issued by order of the court, though attested and sealed by the clerk.34 Failure to issue the formal writ may be waived.35 It must run to the court of whose proceedings review is sought,35 and where it runs to a board or body other than a court having no official name, it must be directed to the members thereof by name.37

_Notice of writ to parties in original cause38_ must be within the time prescribed by statute or rule of court.38 Where public interests are attacked, notice of the writ must be served on the proper officer representing such public interests.30

Footnote 38: The author is grateful to the anonymous referee for the assistance of the author.

Footnote 39: The author is grateful to the anonymous referee for the assistance of the author.

Footnote 40: The author is grateful to the anonymous referee for the assistance of the author.

Footnote 41: The author is grateful to the anonymous referee for the assistance of the author.

Footnote 42: The author is grateful to the anonymous referee for the assistance of the author.

Footnote 43: The author is grateful to the anonymous referee for the assistance of the author.

**VOL. III, NO. 3. CURRENT LAW, NOVEMBER, 1904.** 673

**Copyright 1904, by Keefu-Davidson Co.**

**CERTIGRARI--Cont'd.**

_Service of writ."_--In Georgia, the plaintiff must have the writ served upon the officer whose judgment is sought to be reviewed.\[42\] If the clerk at the request of the petitioner undertakes to perform any act in connection with the service of the writ, he does so as the agent of the petitioner.\[43\]

_The return,\[44\]_ in order to supply jurisdictional matter, must not only be under oath, but should set out facts conferring jurisdiction which were actually adjudi-cated, but by inadvertence omitted from the record.\[45\] When made by a board or body composed of two or more persons, it should be in the name of the board or body, and be executed by a majority of the members thereof.\[46\] Proper practice requires that the lower court should be called on to certify the facts found. If it is unable to certify the facts, depositions may be taken to determine what facts were found.\[47\] Where the petition attacks the judgment on the ground that it is contrary to evidence, the record must state the facts on which the judgment was based.\[48\] If the return is false in fact, the remedy is in an action for false return; if insufficient in form, by compelling a further and more specific return.\[49\] The special statutory certiorari of New York does not require the controller to return the grounds of his refusal to revise or readjust the account for taxes.\[50\] Payment of the fees for preparing and certifying the record is a condition precedent to the right to have it sent up.\[51\]

_Objections and amendments.\[52\]_--Findings of fact not objected to in the trial court will be accepted by the reviewing court as conclusive.\[53\]

_Quashal or dismissal.\[54\]_--Mere irregularities in procedure do not necessitate a dismissal,\[55\] but such as prevent a transfer of the cause are fatal.\[56\] The writ must be prosecuted with reasonable diligence.\[57\] The failure of the trial judge

**Gs. 355, 45 S. E. 409; Southern R. Co. v. Hornsby, 118 Ga. 358, 45 S. E. 410.**

**40. Tippet v. McGrath \[N. J. Law\] 56 A.**

**41. County commissioners who as a court**

**gas judgment in a road tax proceeding are**

**42. People v. Eno, 176 N. Y. 613, 68 N. B.**

**not the original parties who must be notified.**

**hold. Either the state's attorney or the road**

**overser must be notified. Notice to the**

**thorse, the law (Code 1895, $ 4647) provides a members of the court which rendered the judgment complained of its not sufficient.**

**sheppard v. Walker, 118 Ga. 47, 44 S. E. 801.**

**43. See I Curr. L, 603, 14-51.**

**44. Civ. Code 1895, $ 4644. Tucker v.**

**K. Y. S. 341.**

**Graysville \[Ga.\] 47 S. E. 523.**

**45. Not as agent v. the law. Civ. Code 1895, $ 15125. Tucker v. Graysville \[Ga.\] 47 S. E. 523.**

**46. See I Curr. L. 605.**

**NOTE. What the record is, and what is**

**extrasise to it, and whether the evidence is**

**a part of the record, depends on and varies with the character of the original tribunal.**

**If the original court be one of record, all**

**the matters essential to a memorial of the**

**proceedings and such as have been specialist**

**by made a part of the record may be con-sidered and no others. See 3 Curr. L. 206,**

**speeal and Review, $ 9. The contents of**

**the record of inferior courts or those of**

**summary jurisdiction and the mode of making up the same for return to a writ of cer-**

**the**
**if**

**the**
**other**
**is pointed out in Farmington, etc., Co. v. County Com'rs, 112 Mass. 206.**

**48. Inhabints of South-Berwick v. Coun-**

**for**
**the**
**of**
**the**
**documentary evidence submitted upon**

**procedure**
**from**
**the**
**trial should not be attached to a petitioner for effortar, the fact that they were so attached is not cause for dismissal.**

**on**
**w. Dunnho, 118 Ga. 225, 44 S. E. 991.**

**56. A writ, void because issued before the applicant has given the bond required by the statute. must be dismissed, it not being competent to amend the bond. Miller Co. v. Anderson, 118 Ga. 432, 45 S. E. 365.**

\*\*57. Where the proceeding was prosecuted in good faith six months from date of issue to return, held not ground for dismissal Warren V. Superior Court of San Francisco \[Caal.\] 77 P. 910. Where, through mistake of674

CERTIGRARI SS 4. 8 Cur. Law.

to file a proper answer is not sufficient reason to dismiss the certiorari,"8 but it is proper where no move is made to correct an unresponsive return.89 The objection that the officer allowing the writ had no authority so to do can be raised only by motion to dismiss and not by the return.60 Where the impropriety of certiorari was decided after the return, the cause was allowed to stand as on appeal.61

SS 4. \_Hearing and questions which may be raised or settled.62--Ordinarily, the questions presented by this writ are only such as go to the jurisdiction of the inferior tribunal, or to the legality of its action;63 but where there is no other remedy for reviewing the action of the inferior tribunal, it is frequently provided by statute that the court may investigate and decide the questions involved on their merits, even to the extent of considering the facts.64 Ordinarily, however,

the celerk, the writ is not served within the client to support the findings of an essentime required by law and the officer falls to anser, the writ must be dismissed. Tuckerslavson V. Fepple, 9 Mich. 111, 77 Am. Dec. 58. Not filed on first day of the term, but during such term and before motion to dismiss was filed. Sutton v. State \[Ga.\] 48 S. L. 112; Ex parte Madison Tea Co., 62 Ala. 833. Rosen v. McElvaine, 49 Mich. 194; State v. Whitford, 54 Wis. 150; Gerdes v. Chamon, 108 Ill. 137; People v. Smith, 45 N. Y. 776; People v. Betts, 55 N. Y. 600; Duggan v. McGruder, 12 Am. Dec. 529, 837 (note). 61. A case in a circuit court on a writ of certorari to a judgment of a justice of the peace awarded before the decision of Richmond v. Henderson, 48 W. Va. 839, 87 S. E. 653, and within the requisite period of time, will upon request be treated as being in said court on appeal. Schaffer v. McJunkin \[V. Va.\] 46 S. E. 153. 62. See 1 Curr. L. 504. 68. The court, on certiorari to review the action of a city council in an election contest for the office of alderman, cannot consider whether the evidence before the coun-cli justified its action, but is confined to the sole question of jurisdiction. City Council of Cripple Creek v. Hanley \[Colo.\] 75 V. Kemen, 61 Wis. 494; People v. Fire P. 600. Where no irregularity is disclosed, the writ should be dismissed without considering any other question. Appeal of Plains Tp., 206 Pa. 556, 56 A. 60. In Penn- sylvania, the proceedings being entirely statutory and without appeal, the findings of facts or the merits of the case cannot be reviewed; but under the general supervisory powers of the court it is entitled on certiorari to inspect the whole record to ascertain whether the court below exceeded its jurisdiction or its proper legal discretion. Independence Party Nomination, 208 Pa. 108, 87 A. 344. 307. **NOTE. Errors which are reviewable** in the certiorari under the varying scope which that remedy has in different states. Where the common law function of a certiorari remains unchanged, it will of course reach only jurisdictional and not judicial errors. See cases collected in exhaustive note, 40 Am. St. L. 28, also Territory V. Dunbar, 1 Ariz, 810; State v. LaBlanc, 42 La. Ann. 1190; State v. Judge, 42 La. Ann. 1089; Barber v. Harris, G. Mackey, 686; Brown v. Roberson, 123 Ill. 631; Bayers v. Super. Ct., 84 Cal. 642. Cited in Note 2, 23 Am. St. R. 108. In many states the writ has been broadened so that it is analogous to a writ of error. It will reach errors of law, and for this purpose the evidence may be examined in order to ascertain whether it was legally su * 3 Cur. Law. CERTIGARI SS 5. 675 the findings of the lower court, \[85\] and the denials and allegations of a return, so far as they put in issue the material allegations of a petition, must be taken as true. \[66\] The mere allegation that a trial judge is biased, without a rule to take testimony as to such bias, cannot be considered. \[67\] Only the proceedings as they existed at the time of the adjudication can be reviewed. \[68\] Certiorari, in reviewing the action of a board of review, reaches only the judgment of the board, not the manner in which it was executed, \[69\] but the opinion as well as the judgment may, if necessary, be considered. \[70\]

- 5. _Judgment._\[71\]--Where certiorari is overruled, it is not erroneous to order that the judgment of the lower court proceed, \[72\] but final judgment may not be entered where certiorari is sustained, \[73\] though a former certiorari in the same case, complaining of a similar verdict, may have been sustained; \[74\] unless under no view of the case could there be a recovery against the petitioner. \[75\] The case may be remanded, however, to the justice court with instructions. \[76\] When the sole question is legal insufficiency of proof, it should not be rendered. \[77\] An injunction will not be set aside in proceedings for certiorari. \[78\] Where it appears that the necessary consequence of a judgment such as the prosecutor seeks will be to injuriously affect the interest of third parties, or public interests not already represented in court, it is within the discretion of the court to defer judgment until those who are interested in sustaining the proceeding under review are made parties. \[70\] In New Jersey, the legislature may confer upon a single justice of the supreme court power to hear and determine, after return and upon notice, any proceedings in certiorari, and direct that the order and determination of such justice therein shall be entered as the judgment of the supreme court. \[78\]
- issersertion. Independence Party Nomination, ciple. City of Newark v. Weeks \[N. J. Law\] 308 Pa. 108, 57 A. 844. 56 A. 118. 71. See 1 Curr. L. 505. 86. People v. Eno, 176 N. Y. 513, 68 N. E. 858; State v. Aucoin, 110 La. 959, 35 So. 141. At the hearing nothing can be considered but the petition and the answer, unless both 117 Ga. 827, 45 S. E. 72. parties agree that the court may consider facts not appearing in the record. Tyner v. Leake, 117 Ga. 827, 45 S. E. 250. The return to a writ of review may not be contradicted by anfadavits of the petition. 76. Patterson v. Central of Georgia R: Co., 117 Ga. 827, 45 S. E. 250. 844. 56 S. E. 77. Where the only error alleged in a experiment that the petition and answer to the evidence, the writ should shalt be taken as true where not conflicting, it involves a comparison of two different statements and tends to create conflict where clearness is required. Central of Georgia R. Co. v. Potter \[Ga.\] 47 S. E. 924. 67. State v. De Maio \[N. J. Law\] 55 A. 844. 68. A board of supervisors had been en-joined from levying a tax, to pay for a diet. An amendment of its record made after submission of the injunction suit was sought to be availed of. Tod v. Crisman, 123 Iowa, 693, 89 N. W. 686. \[69\] State v. De Maio \[N. J. Law\] 55 A. 844. 68. A board of supervisors had been en-joined from levying a tax, to pay for a diet. An amendment of its record made after submission of the injunction suit was sought to be availed of. Tod v. Crisman, 123 Iowa, 693, 89 N. W. 686. \[70\] State v. De Maio \[N. J. Law\] 55 A. 844. 68. A board of supervisors had been en-joined from levying a tax, to pay for a diet. An amendment of its record made after submission of the injunction suit was sought to be availed of. Tod v. Crisman, 123 Iowa, 693, 89 N. W. 686. \[71\] State v. De Maio \[N. J. Law\] 55 A. 844. 68. A board of supervisors had been en-joined from levying a tax, to pay for a diet. An amendment of its record made after submission of the injunction suit was sought to be availed of. Tod v. Crisman, 123 Iowa, 693, 89 N. W. 686. \[72\] State v. De Maio \[N. J. Law\] 55 A. 844. 68. A board of supervisors had been en-joined from levying a tax, to pay for a diet. An amendment of its record

56. _Costs_\[81.\] are not ordinarily to be taxed against a board, officer or judge who it is alleged has exceeded lawful jurisdiction, but against the person procuring the order adjudged illegal to be entered." The discretion lodged by the statutes in the court in the matter of costs is not revisable."

SS 7. _Review of certiorari_."--Error lies to the refusal of a certiorari," and to review the action of the court below on the hearing." All presumptions, however, are in favor of the judgment of the court below," and questions which might have been made in the inferior judicatory, but which are not referred to in the petition for certiorari," and questions not raised by the pleadings, will not be considered." Neither will assignments of error and rectils of fact in a petition for certiorari not affirmatively verified in the answer." In Georgia, where certiorari is the remedy for reviewing a justice's judgment on the merits, the grant of a first new trial, where the evidence conflicts and does not as a matter of law imperatively demand the verdict rendered, will not be reviewed." Neither, where there is substantial evidence to support the verdict or finding, will the appellate court interfere with a judgment overruling the writ;" but where there is no sufficient evidence to support the verdict, a certiorari setting up such want of evidence should be sustained."

80. Brown v. Street Lighting Diet. No. 1, 69 N. J. Law, 485, 55 A. 1086.

01. See 1 Curr. L. 505.

01. If not a party to the action, he may be brought in for this purpose by proper notice. Coffey v. Gamble \[Iowa\] 94 N. W. 936.

01. Louisville & N. R. Co. v. Solomon, 138 Ala. 151, 34 So. 1025.

01. See 1 Curr. L. 506.

01. Lenney v. Finley, 118 Ga. 718, 45 S.

01. Longstaff v. State \[VWs.\] 97 N. W.

01.

01. Where the answer of the justice of the peace does not set forth the evidence introduced on the trial of the case, nor verify that contained in the petition for certiorari, and where none of the assignments of error can be properly considered and determined without a reference to the evidence, an affirmance of the judgment overruling the certiorari necessarily results.

01. Under the assumption that the answer of the justice of the peace does not set forth the evidence introduced on the trial of the case, nor verify that contained in the petition for certiorari there. Hodges v. Smith, 118 Ga.

01. Shrinking v. Kennon, 119 Ga. 501, 46 S.

01. Player v. Vandersville, 118 Ga. 63, 44 evidence, an affirmance of the judgment overruling the certiorari necessarily results.

01. If not a certiorari, it was not error to sans-Ballard v. Parker, 119 Ga. 88, 47 S. E. 970.

01. Lovingood v. Lovingood, 119 Ga. 26, 45 S. E. 697.

01. E. 697. Flancke v. Wood, 113 Ga. 635.

01. E. 975. Frery & Co. v. Mattov, 118 Ga.

146, 44 S. E. 1005; Shrley v. Swafford, 119 Ga.

89. Ga. 43, 45 S. E. 721; Walker v. Hillery, 119 Ga.

01. Ga. 225, 46 S. E. 92; Lovern v. Jones, 119 Ga.

01. Lovingood v. Lovingood, 119 Ga. 229, 46 S. E.

01. Lovingood v. Lovingood, 119 Ga. 26, 45 S. E. 697; Flancke v. Wood, 113 Ga. 635.

01. Lovingood v. Lovingood, 119 Ga. 26, 45 S. E. 697; Flancke v. Wood, 113 Ga. 635.

01. Lovingood v. Lovingood, 119 Ga. 605.

01. Lovingood, 119 Ga. 226, 45 S. E. 697; Trery & Co. v. Mattov, 118 Ga.

146, 44 S. E. 1005; Shrley v. Swafford, 119 Ga. 43, 45 S. E. 721; Walker v. Hillery, 119 Ga.

89. Lovingood v. Lovingood, 119 Ga. 225, 46 S. E. 92; Lovern v. Jones, 119 Ga.

01. Lovingood v. Lovingood, 119 Ga. 229, 3 Cur. Law. CHAMPERTY AND MAINTENANCE. 677

**CHAMPERTY AND MAINTENANCE.**

_A grant of land held adversely by one in the actual occupancy thereof\* under a claim of title is void.\*_ There must, however, be an ouster of possession.\*\* In some states, however, such sale not coming within the statutory definition of "litigious rights," the sale is valid.\*\_ This rule against conveyances of land held adversely does not apply to judicial sales,\*\* nor to a purchase-money mortgage given by the purchaser at such sale,\*\* though by statutes in some states it applies to execution sales.1 In states where the ded is void as to the adverse possessor only, an action cannot be maintained against the latter in the name of the grantee,2 though one may be maintained against such claimant in the name of the grantor for the grantee's use.3 The "adverse possession" intended by the Kentucky statute seems to be the same as that which might ripen into a title.4\_

Footnote 1: The author is grateful to the anonymous referee for the support of the work.

_Contingent fees_ are not champertous,5 if no interest in the cause of action passes,6 but it being shown that they are obtained from the suitor by any undue influence of the attorney over the client, or by any fraud or imposition, or that the compensation is clearly excessive, so as to amount to extortion, the court will protect the aggrived party.7 In New York, however, an agreement for a contingent fee, the attorney to advance all court costs, is champertous.8 An agreement whereby an attorney is to be paid nothing for his services and disbursements in case of failure,9 nor to have a debt for the same in case of success,10 is champ 678CHARITABLE GIFTS SS 1. 3Cur. Law.

pertous,${}^{11}$ and such contract providing that it should cover services rendered or to be rendered, its invalidity is not affected by the fact that services were rendered prior to its execution.${}^{12}$ An assignment of an allowed claim to secure fees is not a "buying * * * in order to bring action."${}^{13}$ In Washington, the doctrine of champerty respecting fees to be paid out of the recovery has been abrogated.${}^{14}$_Contracts by litigants${}^{15}$_ with others in consideration of aid given to share in the fruits of the litigation are not void.${}^{16}$ An agreement by one having any interest in the subject-matter, whether it be legal or equitable, great or small, vested or contingent, certain or uncertain, to prosecute the suit is not champerty or maintenance.${}^{17}$ A wife assisting her husband financially in prosecuting a suit to judgment is not guilty of champerty.${}^{18}$_A bona fide sale or assignment of a right of action_ is not champertous, even though legal proceedings may be necessary to reduce it to possession,${}^{19}$ nor is such an assignment of an interest in a pending action, each party to pay his proportionate share of the expenses of the litigation, maintenance.${}^{20}$ The assignment of an interest in the cause of action to one's attorney is not bartrury where the attorney did not induce the employment by personal solicitation nor by loans or promises thereof.${}^{21}$ In states where an attorney is prohibited from purchasing choses in action, a bona fide assignee of an attorney purchasing such a claim may enforce the claim;${}^{22}$ but the attorney cannot maintain an action on a claim assigned to him for the purpose of bringing an action in the county.${}^{23}$_Champerty is a defense${}^{24}$_ only where the champertous agreement is sought to be enforced.${}^{25}$ Equity has jurisdiction to relieve one from a champertous contract on the ground of constructive fraud,${}^{28}$ and the aggrived party is not debarded from such relief on the ground that he is in pari delicto and does not come into equity with clean hands.${}^{27}$\_CHARITABLE GIFTS.

**SS 1. Nature and Essentials; Validity (978). SS 4. Administration and Enfercement** SS 2. Capacity of Donee or Practice (680). (681). SS 3. Interpretation and Construction (680). SS 1. \_Nature and essentials; validity.${}^{28}$_To come within the rule of charitable_

be enforced by either attorney or client. Adye v. Hann, 47 Iowa, 264, 29 Am. Rep. 484. --From note to Bowman v. Phillips, 13 Am. St. Rep. 292, 289. 11. Note: But there are numerous authorities holding that a contract to pay the attorney a percentage of the recovery, contingent upon his success in the suit, is not champertous but valid (McDonald v. Chienago & N. W. R. Co., 29 Iowa, 170; Newkirk v. Cone. 18 II, 449; Jewell, Nvidd, 61 Iowa, 299, 16 N. W. 141; Stewart v. Z. & T. C. R. Co., 62 Tex. 246; Jeffries v. Mut. L. Ins. Co., 110 U. S., 205, 4 S. C. 8; unless some un-fair advantage is taken of the client (Davis v. Webber, 66 Ark. 190, 49 S. W. 822, 74 Am. St. Rep. 31-Form note to Shlrik v. Neible, 83 Am. St. Rep. 150, 170. 12. Gargano v. Page, 184 Mass. 571, 69 N. B. 34. 13. Pen. Code, 1 161. In re Cummins's --to late \[Cal.\] 77 P. 479. 14. 2 Ball. Ann. Codes & St. & 5165. Agree- ment to sue for a third and pay all dis- bursements is valid. Smits v. Hogan \[Wash.\] 71 P. 39. 15. See 1 Cur. L. 607. 16. As against public policy. Fenn v. McCCarrell, 208 Pa. 615, 67 A. 1108. 17. An agreement whereby an assignor who retains a contingent interest in the property agrees to prosecute for an allegedness for the benefit of the assignee at the latter's expense is not champertous nor in violation of Pen. Code, & 320. Finlen v. Heline, 28 Mon. 548, 72 P. 133. 18. Ex parte Hilers (S. C.) 46 S. B. 146. 19. Assignment of claim for damages, consisting only of attorney's fees to attor-, hek valid. Lacey v. Davis (Towrah 98 N. W. 366. 20. Mills' Ann. St. 1 1299. O'Driscoll v. Doyle, 31 Colo. 193, 72 P. 27. 21. Mo., K. & T. R. Co. v. Bacon \[ uses, the gift must be to a public charity;" thus a Young Men's Christian Association," or a gift to a school district, to be devoted to the education of poor children," or a devise to the pastors and deacons in trust for a church," or a devise to furnish homes to industrious girls at the least possible cost to them, and providing that others so inclined might add to it," but not a railroad relief department maintained by sums deducted from the wages of employees," nor a devise for the purpose of educating the descendants of two persons named," is public. There must be a sufficiently defined property or fund given." No trustee is necessary." In most of the states, it is regarded inherent in a public charity that the beneficiaries be somewhat uncertain, and in these it suffices if a purpose be indicated and the ultimate beneficiaries be capable of selection or ascertainment in administering it." Where the doctrine of charitable gifts is not in force, the essentials of a private express trust must be found." Thus a definite beneficiary," and a trustee capable of taking, are essential." If a particular donee be indicated, it must at least be ascertainable." A vested" gift for charity is not within the
$680$CHARITABLE GIFTS SS 2. 3Cur. Law. rule against perpetuities.${}^{44}$Such rule, however, defeats a trust in those states where charitable trusts are not recognized,${}^{45}$ but not a gift direct without any trust.${}^{46}$The doctrine of charitable uses does not exist in Michigan${}^{47}$ nor Wisconsin,${}^{48}$ and formerly not in New York,${}^{49}$ but does in Massachusetts.${}^{50}$

The validity of a charitable gift in a will depends on the law of the state where the testator was domiciled and the lands devised are situated.${}^{51}$Where the instrument creating the gift is required to be attested, the attestation must be legal.${}^{52}$

SS 2. \_Capacity of done or trustee.${}^{58}$--The donee's capacity is measured at the time when the gift must yes,${}^{54}$ hence nonexistence of a contemplated corporate donee is not an objection.${}^{55}$A limitation in the charter of a corporation as to the amount of property it may hold is for the benefit of the general public, and heirs cannot object,${}^{58}$ nor can the state up to that amount.${}^{57}$Where charitable trusts are not recognized if the donee is not empowered to take at the death of the testator, the gift is void.${}^{58}$A legislative "sanction" of such gifts may be read in a general charter power to take real estate.${}^{59}$

SS 3. _Interpretation and construction.${}^{60}$--The ordinary rules of interpretation apply.${}^{61}$A few specific instances follow._

Where the trustee or donee is designated by ambiguous terms, that construction will be adopted which seems to accord with the intention of the donor.${}^{62}$

621. Domestio and foreign missionary society not entitled to take. Id.

001. It has no application where a post-ponent respecting the gift goes only to its form or mode. It is vested. Brigham not take. Murray v. Miller, 86 App. Div. v. Peter Bent Brigham Hospital, 126 F. 76. 44. Acommunulations can be directed beyond hives. Brigham v. Peter Bent Brigham Hospital, 126 F. 796. 45. Gift to officer of unincorporated society, being im trust to be applied to the ueta, 126 F. 796. See 1 Curr. L. S12, n. l1.

001. It has no application where a post-ponent respecting the gift goes only to its form or mode. It is vested. Brigham not take. Murray v. Miller, 86 App. Div. v. Peter Bent Brigham Hospital, 126 F. 796. 44. Acommunulations can be directed beyond hives. Brigham v. Peter Bent Brigham Hospital, 126 F. 796. 46. Gift to officer of unincorporated society, being im trust to be applied to the ueta, 126 F. 796. See 1 Curr. L. S12, n. l1.

001. If not, for a post-ponent respecting the gift goes only to its form or mode. It is vested. Brigham not take. Murray v. Miller, 86 App. Div. v. Peter Bent Brigham Hospital, 126 F. 796. 44. A gift of personalty to an Incorporated association to be invested and the proceeds applied for its own benefit is a gift absolute and vallid. Not a trust. Statute against perpetuities does not apply. In re Dantiely${}^{44}$Elstate, 41 Alice. 299, 84 N. Y. S. 884.

001. A gift to establish a bed in perpetuity in a hospital and income of another sum to be applied to relief of certain needy poor is vold. Hopkins v. Crossley \[Mich.\] 86 N. W. 499.

001. A devise to trustees to be conveyed to a city for specified purposes held to convey absolute title. Hence not in violation of the rule. Danforth v. Oshkoch, 119 Wis. 252, 97 N. W. 258. Strong dissenting opinion dis-cuses origin of the doctrine. Id.

001. Murray v. Miller, 85 App. Div. 414, 83 N. Y. S. 591.

50, SL. Brigham v. Peter Bent Brigham Hospital, 126 F. 796.

52. Under P. L. S22, one witness signed a vfill before the testator and the other without seeing the testator sign. Appeal of Apple, 206 Pa. I, 154 A. 795.

01. See 1 Curr. L. S13.

01. A gift limited after a life estate to a 3 Cur. Law. CHARITABLE GIFTS SS 4. 681

Where the corporate name was "The mayor and aldermen of the city of Huntsville," a gift to the "City of Huntsville" was certain." Words defining the number of beneficiaries will mean so many each year if revenue is to be applied annually." A bequest for the benefit of the poor of a certain district is not for the exclusive benefit of the paupers of such district."

A deed of feoffment to a society able to take land, for the use of another passes title to the latter under the statute of uses." Under a devise to a school district unless testator's son should return, the district took a defeasible fee." A gift is not contingent merely because the executor may die before the charity is organized to which he is to transfer the property." Different charities do not necessarily hold a gift in severalty because it was given in "parts."

SS 4. _Administration and enforcement."_--Only trustees legally appointed may act," and long acquiescence by the clerical managers in the actions of others did not give such others the right to act." Where the original trustees die, others may be appointed in their stead," and persons who by the language of the will would have been suitable to the donor should be appointed." The trust must be accepted." The board of managers may act by the concurrence of a majority of its members."

The gift must be administered according to the directions of the donor," but when it becomes impossible to administer it according to his directions, the general purpose should be carried out as nearly as practicable." Where a beneficiary

Baptist church and society of K. This description was equally applicable to two societies. One of which the donor had at times agreed of a fund and the office was abolished attended. Preston v. Foster, 76 Conn. 709, and the mayor and aldermen became their 55 A. 658. A devise to create a charity and directing the executors to obtain a charter (Boston v. Doyle, 184 Mass. 373, 68 N. E. 851. organization was completed. No failure as to trustee. In re Daly's Estate, 283 Pa. 58, 57 A. 180. A provision appointing as managers of a fund the ministers of the oldest (EpicsoPalian, Congregational and Presby).

184 Mass. 373, 68 N. E. 851.

of Boston v. Doyle, 184 Mass. 373, 68 N. E. 851.

851. Where the minister of the oldest (E. 77. 76, 45 S. 63. City of Huntsville v. Smith, 137 Ala. 382, 35 So. 120. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 141. 142. 132. 133. 143. 144. 145. 146. 147. 148. 149. 150. 151. 160. 152. 153. 154. 155. 156. 157. 158. 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. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 199. 198. 199. 199. 200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. 211. 222. 223. 224. 225. 226. 227. 228. 230. 231. 232. 233. 234. 235. 236. 237. 238. 239. 240. 241. 242. 243. 244. 245. 246. 247. 248. 249. 241. 245. 246. 247. 249. 248. 249. 241. 249. 240. 241. 241. 242. 242. 243. 244. 245. 246. 247. 248. 249. 241. 249. 242. 244. 245. 246. 247. 248. 249. 249. 240. 241. 240. 241. 242. 241. 242. 243. 244. 245. 246. 247. 248.

682 CHATTEL MORTGAGES SS 1. 3 Cur. Law.

church established another and then went out of existence, the case was a proper one for the application of the cy pres doctrine.70 A trustee cannot compromise with those contesting the validity of a bequest and accept less than the amount thereof,70 and an agreement entered into by his attorney without his consent with a part of the heirs is not binding.81 Under a bequest of certain corporate stock, the dividends of which were to be reinvested in the same stock until the fund reached a certain amount, the trustees had power to sell the stock when its market value would realize such amount.82 Where a town was the real trustee, it was the proper party to maintain an action for an interference with the fund.83 The fact that the trustees incorporated does not constitute an attempt to divert funds contrary to the provisions of the will.84

\*\*CHATTEL MORTGAGES.\*\*1

**SS 1.** What Constitutes a Chatitel Mortgage **SS 8. Right of Possession (691). (682). **SS 2.** Subject-Matter. What may be Mortgage **SS 10.** Disposal and Use of the Property by the Mortgage (694). **SS 4.** Fundamental Convenances (685). **SS 11.** Assignment of the Mortgage (695). **SS 5.** Form, Execution, and Delivery (686). **SS 12.** Payment and Discharge (695). Acknowledgment, Affladavit and Extension **SS 13.** Redemption (696). **SS 6.** Filling or Recording and Notice of **SS 14.** Remediens as Between the Particles Tribute or Rights (697). Notice of Title or (698). **SS 16.** Remediens Against Third Persons (698). **SS 7.** Title and Ownership (699). **SS 1.**_What constitutes a chattel mortgage._**?\*\*--The essential element of a chattel mortgage is that it be given to secure a debt.3 No particular form is necessary;' there must, however, be a present conveyance of the property,6 and an express or implied defeasance.6 If possible, the intention of the parties will be given effect;7 thus bills of sale,8 conditional sales, title remaining in the vendor,8 leases,10 deeds of trust,11 and a written assignment of an insurance policy as col

**79.** Osgood v. Rogers \[Mass.\] 71 N. E. Smith v. Hope \[Fla.\] 35 So. 865. See 1 Curr. 308. The supreme judicial court in a case **L. 513, n. 36, pending before it has power to frame a scheme for administration under the cy pres** **115.**

**SO, SS1.** Lake v. Hood \[Tex. Civ. App.\] 79 S. V. 323. **SS 2.** Bellows Free Academy v. Sowles \[Vt.\] 57 A. 996. **SS 3.** Regardless of the fact that trustees appointed by It had incorporated. Bellows Free Academy v. Sowles \[Vt.\] 67 A. 996. **SS 4.** will provided that trustees appointed by the town should have charge of the fund. A private act was passed under which they incorporated. Nothing has been done or attempted contrary to the provisions of the wills. Bellows Free Academy v. Sowles \[Vt.\] 67 A. 996. **SS 1.** See Bankruptcy, 1 Curr. L. 511, for chattel mortgages as preferences or fraudulent transfer under bankruptcy act. See 1. Limitation of Actions. 2 Curr. L. 746, for operation of limitation laws on chattel mortgage. See Fraudulent Convenyances, 2 Curr. L. 116, for mortgage in fraud of creditors. **2.** See 1 Curr. L. 518. **3.** First Nat. Bank v. Taylor \[Kan.\] 76 P. 425. The existence of this element is not implied in a provision that a bill of sale shall be void if the grantors shall pay a certain sum of money by a certain day. **SS 1.** The essential element of a chattel mortgage is that it be given to secure a debt.3 No particular form is necessary;' there must, however, be a present conveyance of the property,6 and an express or implied defeasance.6 If possible, the intention of the parties will be given effect;7 thus bills of sale,8 conditional sales, title remaining in the vendor,8 leases,10 deeds of trust,11 and a written assignment of an insurance policy as col

**79.** Osgood v. Rogers \[Mass.\] 71 N. E. Smith v. Hope \[Fla.\] 35 So. 865. See 1 Curr. 308. The supreme judicial court in a case **L. 513, n. 36, pending before it has power to frame a scheme for administration under the cy pres** **115.**

**SO, SS1.** Lake v. Hood \[Tex. Civ. App.\] 79 S. V. 323. **SS 2.** Bellows Free Academy v. Sowles \[Vt.\] 57 A. 996. **SS 3.** Regardless of the fact that trustees appointed by It had incorporated. Bellows Free Academy v. Sowles \[Vt.\] 67 A. 996. **SS 4.** will provided that trustees appointed by the town should have charge of the fund. A private act was passed under which they incorporated. Nothing has been done or attempted contrary to the provisions of the wills. Bellows Free Academy v. Sowles \[Vt.\] 67 A. 996 3 Cur. Law. CHATTEL MOTGAGES SS 3. 683

lateral security for a note,\[12\] have been held chattel mortgages. A bill of sale absolute upon its face may be shown by parol testimony to be a chattel mortgage,\[18\] but if the circumstances which render a conditional sale a mortgage in law do not appear from the bill, they must be set up by plea or answer.\[14\] A statute providing that a conveyance absolute on its face, the maker parting with the possession of the property, cannot, in the absence of fraud, be shown to be a mortgage, applies only to tangible property.\[15\] The test to distinguish a mortgage from an assignment for the benefit of creditors is: whether the intention at the time of execution was to divest the debtor of the title, and so make an appropriiation of the property affected to the raising of a fund to pay debts, or merely was to secure the payment of debts.\[16\]

SS 2. \_Subject-matter. What may be mortgaged.\[17\]--Any property which may be sold, is, as a general rule, capable of being mortgaged.\[18\] An alienable contingent interest\[19\] may be mortgaged, and a mortgage on future acquired property is valid in equity;\[20\] thus a manufacturer may make a valid mortgage of raw material to be purchased in the future, and of the product to be made therefrom.\[21\] Growing crops,\[22\] and crops to be grown,\[23\] may be mortgaged, the lien attaching, as between the parties, upon the property coming into the possession of the mortgagor,\[24\] and, as between such parties, it relates back to the date of the mortgage,\[25\] and it makes no difference whether the crops are raised by the mortgagor or his sub-lessee.\[26\] In some states it is a crime to mortgage personal property held under conditional purchase.\[27\]

_Title and interest of mortgagor.\[28\]--The mortgagor must have title to the property.\[29\]_

_Description of property.\[30\]--The description must be such as, aided by the inquiries which the mortgage itself indicates and directs, will enable third persons to identify the property.\[31\]_ One being in possession of facts from which he must,

12 Manhattan L. Ins. Co. v. Wright \[C. 13 Okl. 541, 75 P. 286. An agreement to C. A.\] 126 F. 82.

13. Miller V. Campbell Commission Co., in the future will be enforced in equity If 13 Okl. 75, 74 P. 507.

01. In such a case the conditional sale established, and the situation of the parvill not be held a mortgage upon demurrer.

https and property is such that justice and Smith v. Hope (Fla.), 35 S6. 865.

15. Rev. Code 1892, SS 4233 does not embrace the transfer of life insurance policies \[Neb.\] 98 N. W. 232, 659; Ryan during the life of the assured Armstrong \[Miss.\] 35 So. 320.

01. Smead v. Chandler & Co., 71 Ark. 505, 76 S. V. 1066.

01. Sec I Curr., L. 514.

01. For exceptions see 1 Curr. L. 514, n.

01. 20. 19. 21. 22. 23. 24. 25. 26. 27.
