## Chapter 1 Aw

$\\lambda$ COMPLETE ENCYCLOPEEDIA

OF NEW LAW

VOLUME XII

CONNELL UNIVERSITY

JUL 11 1912

LAW LIBRARY.

TOPICAL INDEX.\*

Use the index in your latest number. Ignore all previous indexes in volumes and numbers. The latest index cites by volume and page to the latest treatment of any subject. You do not have to study classification. This index contains the name of every subject you are familiar with and not merely the titles of our articles. The page citation at the beginning of each article directs to the particular subdivision wanted. There you can find its latest treatment and also a volume and page citation to the name 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 ge astray or mise anything.

**A.**

**ACCOUNTING, ACTION FOR, 11, 20. See, also, Estatese of Decedents, 11, 1314; Guardianship, 11, 1680; Partnership, 12, 1230; Trusts, 12, 2197.**

**ACCOUNTERS STATED AND OPEN AC-COUNUNTS, 13, 22.**

**ACCREITION, see Riparian Owners, 12, 1708, 1359; Infants, 12, 140.**

**ABATEMENT AND ENIVVAL, 11, 1.**

**ABBREVATIONS, see Contracts, 11, 155; Pleading, 12, 1238; Indictment, etc., 12, 15; Names, etc., 12, 949, and the Ilks.**

**ABDUCTION, 11, 9.**

**ABETTING CRIMKE, see Criminal Law, 11, 942.**

**ABIDE THE EVENT, see Costa, 9, 818; Payment into Court, 12, 1307; stay of Proceedings, 12, 1959; Stiputations, 12, 1962.**

**ABODE, see Domlele, 11, 1130.**

**ABORTION, 11, 10.**

**ABSCONDING DEBTORS, see Attachment, 9, 283; Civil Arrest, 11, 627; Bankruptcy, 11, 383; Limitation of Actions, 12, 609; ABSENTEEs, 11, 10.**

**ABSTRACTS OF TITLE, 11, 11.**

**ABUSE OF PROCESS, see Malicious Provention and Abuse of Process, 18, 638.**

**ABUTTING OWNERS, seee Highways and Streets, 11, 1752, 1761; Emnient Domin, 11, 1198; Municipal Corporations, 12, 938; ACCCEPTANCE. Titles treating of the subject of an acceptance should be consulted. See Contracts, 11, 138; Deeds, etc., 11, 1056, and the Ilkc.**

**ACCESION AND CONFUSION OF PROPENTITY, 11, 11.**

**ACCESORICES, see Criminal Law, 11, 942.**

**ACCIDENT--in equity, see Miatake and Acident, 12, 865--resulting in legal injury, see Maiter and Serra, 13, 677; Negilance, 12, 966; Carrlers, 11, 641; Damages, 11, 988; Insurance, 12, 278.**

**ACCOMMDATION PAPER, see Negotiable Instrumente, 12, 1025.**

**ACCOMPLICES, see Criminal Law (Iliability), 11, 942; Indictment and Prosecution (weight of testimony), 12, 48.**

**ACCORARD AND SATISFACTION, 11, 13.**

\*There is also a CUULATIVE INDEX to Volz, 1-9; a separate book of 836 pages containing thousands of key words leading from the word you think of to the point you seek. It also indexes the annotations and special articles.

**APPIDAVTS, 11, 65.**

**APFIDAVTS OF MERITS OF CLAIM OR DEFENSE, 11, 54.**

**APFIRMATIONS, see Vittnesses, 12, 2315;**

**APFIRMATIONS, see Vittnesses, 13, 2315;**

**APFRAX. No cases have been found during the period covered by Vol. 11, See 5, 64.**

**AGENCY, 11, 65: with Special Article, Agency Implied From Relation of Partice, 2, 101; Revocation of Agency By Operation of Law, 4, 1195.**

**AGENCY IMPLIED FROM RELATION OF PARTIES \[Specisi Article\], 8, 101.**

**AGISTMENT, see Animals, 11, 112; Lions, 12, 606.**

**AGRICDD CASE, see Submission of Controversy, 12, 1986; Appeal and Review, 11, 118; Stipulations, 12, 1962.**

**AGRICULTURE, 11, 84.**

**AIDER BY VERDICT, ETC., see Indictment and Prosecution, 12, 1; Pleading, 12, 1383.**

**AID OF EXBCUTION, see Creditore' Sult, 11, 936; Supplementary Proceedings, 13, 2005.**

**ALIBL see Indictment and Prosecution, 13, 1.**

**ALIENS, 11, 90.**

**ALIHONY, 11, 96.**

**ALITERATION OF INSTRUMENTS, 11, 106.**

**AMBASSADORS AND CONSULTS, 11, 108.**

**AMBIQUITY, see those parts of titles Ike Contracts, 11, 755; Statues, 12, 1937;**

**Wills, 12, 2350, which treat of Interpretation.**

**AMENDMENTS, see Indictment and Prosecution, 12, 24; Pleading, 12, 1862; Equfy, 11, 1255, and procedure titles generally.**

**AMICUS CURIAE, 11, 108.**

**AMOTION, see Associations and Societies, 11, 308; Corporations, 11, 854.**

**AMOUNT IN CONTROVERSY, see Appeal and Review, 11, 138; Jurisdiction, 12, 462; Costs, 11, 853.**

**ANCHENT DOCUMENTS, see Evidence, 11, 1894.**

**ANIMALS, 11, 109.**

**ANUNTIES, 11, 117.**

**ANOTHER SUIT PENDING, see Abatement and Revival, 11, 1; Stay of Proceedings, 12, 1958; Jurisdiction, 12, 465.**

**ANSWERS, see Equity, 11, 1259; Pleading.**

**ANNTENUPTIAL CONTRracts AND SETTLE-MENTS, see Husband and Wife, 11, 1840.**

**ANNTL-TRUSTZ LAWS, see Combinations and Monopoles, 11, 638.**

**APPEAAL AND REVIEW, 11, 118.**

**APPEARANCE, 11, 255.**

**APPELLATE COURTS AND JURISDICTION, see Appeal and Review, 11, 143; Jurisdiction, 12, 471.**

**APPLICATION OF PATMENTS, see Payment and Tender, 12, 1302.**

**APPOINTMENT, see Offleers and Public Employers, 12, 1138; Estates of Decedents, 13, 179; Trusts, 12, 2186, and the Ike; Powers, 12, 1410.**

**APPORTIONMENT LAWS, see Elections, 11, 1169; Offleers, etc., 12, 1131; States, 12, 1912.**

**APPRENTICES, 11, 262.**

**ARBRITATION AND AWARD, 11, 262.**

**ARCRTECTS, see Building and Contracts, 11, 470.**

**ARGUMENT AND CONDUCT OF COUNSEL, 11, 268.**

**ARMY AND NAVY, see Military and Naval Law, 12, 847.**

**ARRAGINMENT AND PLEAS, see Indictment and Prosecution, 12, 15.**

**ARREST AND BINDING OVER, 11, 178.**

**ARREST OF JUDGMENT, see New Trial and Arrest of Judgment, 12, 1095.**

**ARRREST ON CIVIL PROCESS, see Civil Arrest, 11, 627.**

**ARRSN, 11, 283.**

**ARSN, 11, 1470.**

**ASSULT AND BATTERY, 11, 285; with Special Article, Labability of Master For Assault by Servant, 8, 875.**

\*\*ASSIGNABILITY OF LIFES INSTRANCE POLICIERS

**LASTARDS, 11, 413.**

**BENEFIFICIAL ASSOCIATIONS, see Fraternal Mutual Bennett Associations, 11, 164, also Associations, etc., 11, 808; Corporations, 11, 810.**

**BENEFICIARIES, see Insurance, 12, 83; Trusts, 12, 2181; Willis, 12, 221; Fraternal, etc., Associations, 11, 1577.**

**BETTERMENTS, see Accession, etc. (right of occupying claimant to recover), 11, 12; Ebjectment, etc. (procedure for allow- and), 11, 1182.**

**BETTERMING AND GAMING, 11, 417.**

**BIGAMY, 11, 422.**

**BILL OF DISCOVERY, see Discovery and Inapection, 11, 1100.**

**BILLS AND NOTES, see Negotiable Instruments, 12, 1018; Banking and Finance, 11, 831.**

**BILLS IN EQUITY, see Equity, 11, 1285; and the titles treating of special relief such as Cancellation of Instruments, 11, 493; Induction, 12, 152; Judgment, 12, 426; Queting Title, 13, 1526.**

**BILLS OF LADING, see Carrlers, 11, 516; Sales, 12, 1711; Negotiable Instruments, 12, 1018.**

**BILLS OF SALE, see Sales, 19, 1712; Chattel Mortges, 11, 611; Fraudulent Conveyances, 11, 1620.**

**BIRTH REGISTERB, see Census and Statistics, 13, 590; Evidence, 11, 1380.**

**BLACKHAIL, 11, 428.**

**BLASPHEMCY, see Profanity and Blasphemy, 12, 1430.**

**BLENDED PROPERTIES, see Accession and Confusion of Property, 11, 11; Conversion as Tort, 11, 791; Conversion in Equity, 11, 804; Trusts, 12, 2171; Willis, 12, 2321.**

**BOARD OF HEALTH, see Health, 11, 1119.**

**BOARDS, see Officers and Public Employes, 12, 1131, also see various titles like Counties, 11, 933, 924; Municipal Corporations, 12, 912.**

**BODY EXECUTION, see Civil Arrest, 11, 627.**

**BONA FIDES, see Negotiable Instruments, 12, 1048; Notice and Record of Title, 12, 1100; Fraudulent Conveyances, 11, 1627.**

**BONADS, 11, 424.**

**BONADS, 11, 920; Municipal Corporations, 12, 939; States, 12, 1310.**

**"BOTTLE" AND "CAN" LAWS, see Commerce, 8, 717.**

**BOOTOMARY AND RESPONDENTIA, see Shipping and Water Traffic, 12, 1861.**

**BOUGHT AND BOLD NOTES, see Frauds, Statute of, 11, 1609; Brokers, 11, 446; Factors, 11, 144.**

**BOUNDARIES, 11, 427.**

**BOUNTIES, 11, 437.**

**BOYCOTT, see Conspiracy, 11, 675; Injunction, 12, 179; Threats, 13, 2114; Trade Unions, 12, 2145.**

**BRANDS, see Animals, 11, 116; Commerce, 8, 711; Forestry and Timber, 13, 1621; Trade Marks and Trade Names, 12, 2135.**

**BRACH OF MARRIAGE PROMISE, 11, 437.**

**BRACH OF THE PEACH, see Disorderly Conduct, 11, 1108; Surety of the Peace, 8, 2050.**

**BRIDERY, 11, 440.**

**BRIDGES, 11, 441.**

**BROKERS, 11, 446.**

**BUILDING AND CONSTRUCTION CON TBACTS, 11, 464.**

**BUILDING AND LOAN ASSOCIATIONS, 11, 475.**

\*\*BUILDINGS AND BUILDING RESTR

**CHATTELAS, see titles treating of various rights in personality other than choses in action. Distinction between chattels and reality, see Property, 12, 1435.**

**CHETAS, see False Proteanos, etc., 11, 1462;**

**Decett, 11, 1038; Fraud, etc., 11, 1583, and the like.**

**CHBECKS, see Banking, etc., 11, 375; Negotiab-ble Instruments, 12, 1018.**

**CHILDREN, see Adoption of Children, 11, 36;**

**parent and Child, 12, 1166; Infants, 12,**

**140: Descent and Distribution, 11, 1078;**

**Wills, 12, 221.**

**CHINESE, see Allens, 11, 92-95.**

**CIGARETTELS, see Tobacco, 12, 2126,**

**CITATIONS, see Process, 12, 1413; Estates of Decedents, 11, 1276; Appeal and Re-Yue, 11, 147.**

**CITIZENS, 13, 627.**

**CIVILARREST, 11, 627.**

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

**CIVIL DEATH, see Convicts, 11, 807.**

**CIVIL RIGHTS, 11, 629.**

**CIVIL SERVICE, see Offecers and Public Employors, 12, 1136.**

**CLEARING HOURES, see Banking and Finance, 11, 375.**

**CLEARKS OF COURT, 11, 629.**

**CLQUID ON TITLE, see Queting Title, 12, 1831; Covenants for Title, 11, 931; Venders and Purchasers, 12, 2213.**

**CLUBS, see Associations and Societies, 11, 805.**

**CODICILS, see Willis, 12, 2321.**

**COGNOVITY, see Confession of Judgment, 11, 668.**

**COLLERSES AND ACADEMIES, 11, 632.**

**COLLISION, see Shipping and Water Traftc, 12, 1865.**

**COLOR OF TITLE, see Adverse Possession, 11, 49.**

**COHINATIONS AND MONOPOOLIES, 11, 633.**

**COIMERCRE, 11, 643.**

**COMMERCIAL PAPER, see Negotiable Instruments, 12, 1018.**

**COMIMIMIENTS, see Arrest and Binding Over, 11, 282; Contempt, 11, 728; Indictment and Prosecution, 12, 98; Fines, 13, 1469.**

**COMMON AND PUBLIC SCHOOLS, see Schools and Education, 12, 1706.**

**COMMON LAV, 14, 661.**

**COMMUNITY PROPERITY, see Husband and Wilfe, 11, 1849.**

**COMPARATIVE ENGLIGENCE, see Negligence, 12, 996.**

**COMPLANT FOR ARREST, see Arrest and Binding Over, 11, 279.**

**COMPLANTS IN PLSADING, see Pleading, 12, 1338.**

**COMPOSITION WITH CREIDTROS, 11, 662.**

**COMPOUNDING OFFENES. No cases have been found during the period covered by Vol. 11. See 9, 594.**

**COMPROMIISE AND SETTLEMENT, see Accord and Satisfaction, 11, 15; Releases, 12, 1675; Discontinuaance, Dismissal, and Nonsult, 11, 1093.**

**COSCALED WEAPONS, see Weapons, 12, 8317.**

**COSCALING BIRTH OR DEATH, No cases have been found during the period covered by Vol. 11. See 5, 608**

**CODENNATATION PROCREDINGS, see Emn-ment Domain, 11, 1198.**

**CONDITIONAL SALLES, see Chattel Mortagages, 11, 611; Fraudulent Conveyance, 11, 1620; Sales, 12, 1758.**

**CONFESSION AND AVOOLANCE, see Plead-Ing, 12, 1382.**

**CONFESSION OF JUPGMENT, 11, 663.**

**CONFESSIONS, see Indictment and Prosecution, 12, 45.**

**CONFESSATION, see Constitutional Law**

**(due process), 11, 708; Fish and Game Laws, 11, 1471.**

**CONFLICF OF LAWS, 11, 663.**

**CONFORMITY ACT, see Courts, 11, 930.**

\*\*CONFUSION OF GOODS, see Accession and Confusion of Property, 11, 11COSTS IN THE CIRCUTI COURT OF APPEALS \[Special Article\], **3**, 954.

COUNTERECLALA, see Set-off and Counter-claim, **12**, 1821.

COUNTERFEITING, **11**, 908.

COUNTERIES, **11**, 908.

COUNTERIES AND PARAGAPHS, see Pleading, **10**, 1326, 1342; Indictment, etc., **10**, 64.

COUNITY COMMISSIONERS OR SUPERVIS-ORBs, see Comntes, **11**, **11**; Elphorus and Streets, **11**, 1740; Towns; Township, **12**, 2132.

COUNITY SEAT, see Counties, **11**, 911.

COUPLING CARS, see Master and Servant (Injuries to servants), **13**, 665; Railroads (statutory regulations), **12**, 1342.

COUPONS, see Bonds, **11**, 426; Municipal Bonds, **13**, 897, and titles relating to public or private corporations which customarily issue bonds; Negotiable Intuvanets (interest coupons), **13**, 1018; Curlers (coupon tickets), **11**, 498.

COURT COMMISSIONERS. Offerences so-call-ed are sometimes appellate judges (see Judges, **12**, 396; Courts, **11**, 927), and sometimes miniteral officers of courts (see Masters and Commissioners, **12**, 809; United States Marshals and Commissioners, **13**, 1208.

COUNERS, **11**, 926.

COVEENANT, ACTION OP. No cases have been found during the period covered by Vol. **11**. See **9**, 846.

COVEENANT, see titles relating to instruments, wherein covenants are embodied, e. g., Contracts, **11**, 729; Deeds of Convey-anco, **13**, 1057; Landford and Tenant (Leases), **13**, 532; Vendoros and Purchaers (land contract), **12**, 2227; see Building, etc. (covonants restrictive), **11**, 481.

COVEENANT's FOR TFTLE, **11**, 921.

COVEENATURE, see Hubbard and Wife, **11**, 1838, 1871.

CREDIT INSURANCE, see Indemmity, **11**, 1892; Insurance, **10**, 389.

CREDITORS' SUIT, **11**, 926.

CRIMINAL CONVERSATION, see Hubbard and Wife (evil liability), **11**, 1868; Adultery (crimle), **11**, 39; Divorce (ground) **11**, 1112.

CRIMINAL LAW, **11**, 940.

CRIMINAL PROCEDURE, see Indictment and Prosecution, **12**, 1.

CROPS, see Agriculture, **11**, 87; Emblements and Natural Products, **11**, 117; Landford and Tenant (renting for crops), **13**, 550; Chatted Mortgages (mortgages on crop), **11**, 611.

CROSS BILLS AND COMPLLAINTS, see Equitary, **11**, 1266; Pleading, **13**, 1862,

CROSSING, see Highways and Streets, **11**, 1720; Railroads, **12**, 1542.

CRUEL AND UNQUALY PUNISEMENTENTS, see Crithmal Law, **11**, 944.

CRUELATY, see Animals, **11**, 116; Divorce, **11**, 1116; Infants, **10**, 241; Parent and Child, **12**, 1168.

CUDUPLATIVE EVIPDENCE, see Trial (recept- tion and excision of evidence), **12**, 1266; New Trial, etc. (newly-discovered cumulative evidence), **12**, 1082.

CUDUPLATIVE PUNISEMENTENTS, see Criminal Law, **11**, 941.

CUDUPLATIVE VOTES, see Corporations, **11**, 856.

CURATIVE ACTS, see Statutes, **12**, 1954.

CUTRIESY, **11**, 948.

CUSTORS AND USAGERS, **11**, 950.

CUSTOM's LAWS, **11**, 952.

D.

DAMAGES, **11**, 956. See Special Article, Mental Suffering, **6**, 629.

DAMANN ABSQUE INJURIA, see Causes of Action, etc., **11**, 857; Torts,
DEL CRREDER AGENCY, see Agency, 11, 60; Factors, 11, 1454.

DEMAND, see titles treating of particular rights or remedies of which demand may be an element. Compare Payment and Tender, 12, 129; Payment into Court, 12, 1307.

DEMURRAGE, see Carriers, 11, 539; Shipping and Water Traffic, 13, 1875.

DEMURRERS, see Pleading, 12, 1354; Equtl.

DEMURRER TO EVIDENCE, see Directing Verdlet, etc., 11, 1082.

DENTISTS, see Medicine and Surgery, 12, 840.

DEPARTURE, see Pleading, 12, 1323.

DEPOSTARIES, of goods, see Balment, 11, 865; of public funds, see Counties, 11, 921; Municipal Corporations, 12, 940; States, 12, 114.

DEPOSITIONS, 12, 1069.

DEPOSITS, see Warehousing and Depouts, 10, 1994; Banking, etc., 11, 376; Payment into Court, 12, 1307.

DEPUTY, see Omore and Public Employees, 8, 1194, 1211; also titles relating to particular offices as Sheriffs, etc., 12, 1853.

DESSCENT AND DISTRIBUTION, 11, 1078.

DETECTIVES, see Municipal Corporations (police organizations), 13, 921; Officers and Public Employees, 12, 1311; Licenses (private detectives), 13, 393; and as to their credibility as witnesses, see Witnesses, 12, 3892; Dvorce, 11, 111.

DETERMINATION OF CONFLIUCTING CLAIMMS TO REALITY, see Questing Title, 12, 1356.

DETNUNE, 11, 1084.

DEVIATION, see Carriers, 11, 499; Shipping and Water Traffic, 13, 1853.

DILATORY PLEAS, see Abatement and Re-vival, 11, 5; Pleading, 12, 1323.

DIRECTING VERIDICT AND DEMURRER TO EVIDENCE, 11, 1055.

DISCLAIMERS, see Causes of Action and Defense, 11, 687; Costs, 11, 886; Pleading, 12, 1323.

DISCONTINUANCE, DISMISAL AND NONSUITY, 11, 1093.

DISCOVERY AND INSPECTION, 11, 1099.

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

Review or control of discretion, see Appeal and Review, 11, 233; Mandamus, 12, 642; Prohibition, Writ of, 13, 1430; Cortorari, 11, 581.

DISFRANCHISEMENT, see Elections, 11, 1170.

DISMINSAL AND NONSULT, see Discontinue, ence, etc., 11, 1033.

DISCOREDERLY CONDUCT, 11, 1108.

DISCOREDERLY HOUSSES, 11, 1109.

DISSOLUTION, see Corporations, 11, 830; Partnership, 12, 1227.

DISTRRESS, see Landford and Tenant, 12, 561.

DISTRUCT ATTORNEYS, see Attorneys and Counelors, 11, 565.

DISTRUCT OF COLUMBIA, see Territories and Federal Possessions, 12, 2123.

DISTRURRANCE OF PUBLIC ASSEMBLAGES, 11, 1111.

DITCHLES, see Sewers and Drains, 12, 1830; Waters and Water Supply, 12, 2230; Ditch and Canal Rights (Special Article), 8, 1112.

DIVIDDENDS, see Corporations, 11, 843; Bank-rupty, 11, 405; Assignments for Benefent or Creditors, 11, 306; Insolvency, 12, 217.

DIVISION OF OPINION, see Appeal and Review, 11, 142; Store Decisis, 12, 1903.

DIVRORCE, 11, 1111.

DIVRORCE, 11, 1128.

DIVRORCE, 11, 128.

DIVRORCE, 11, 1103.

DIVRORCE, 11, 1132.

DIVRORCE, see Sewers and Drains, 12, 1830; Waters and Water Supply, 12, 2231; Public Works, etc., 12, 1478.

DIVRORCE, DRUGGISTS, see Medicine and Surgery, 12, 846; Polons, 12, 1403.

DIRUNXENTNESS, see Intokatling Liquors, 12, 932;

**EXAMINATION OF WITNESSESSESS, 11, 1420.**

EXCEPTIONS AND OBJECTIONS, see Saying, Questions for Review, 12, 1763; Equity, 13, 1261; Masters and Commissioners, 12, 812; Reference, 12, 1669.\*\*

EXCEPTIONS, BILL OF, see Appeal and Review, 11, 161.\*\*

EXCHANGE OF PROPERT, 11, 1430.\*\*

EXCHANGES AND BOARDS OF TRADE, 11, 1431.\*\*

EXEUCTIONS, 11, 1435.\*\*

See, also, Civil Arts, rest, 11, 627.\*\*

EXEXCUTORS AND ADMINISTRATORS, see Estate of Decedents, 11, 1376.\*\*

EXEMPLARY DAMAGES, see Damages, 11, 961.\*\*

EXEXMPTIONS, 11, 1444. See, also, Home-steads, 11, 1767.\*\*

EXEURIBITIONS AND SHOWS, 11, 1447.\*\*

EXEURIBITS, see Pleading, 13, 134; Equity, 11, 1285; Trial (acception of evidence), 12, 153; Appeal and Review (inclusion in record), 11, 156.\*\*

EXCONERATION, see Contribution, 11, 783; Guaranty, 11, 1663; Surelyship, 12, 2017; Indemnity, 11, 1892; Marshalling Asseta, etc., 12, 664; Estates of Decedents, 11, 1276.\*\*

EXPERIMENTS, see Evidence, 11, 1414.\*\*

EXPERT EVIDENCE, see Evidence, 11, 1401.\*\*

EXPERSIVES AND INFLAMLABLES, 11, 1460.\*\*

EX POST FACTO LAWS, see Constitutional Law, 11, 713; Criminal Law, 11, 940.\*\*

EXPERSSO COMPANIES, see Carriers, 11, 624; Railroads, 12, 1542; Corporations, 11, 810.\*\*

EXTORITION, 11, 1451.\*\*

See, also, Blackmail, 11, 423; Threata, 12, 2124.\*\*

EXTRADITION, 11, 1452.\*\*

F.

**FACTORS, 11, 1454.**

FACTORS' ACTS, see Factors, 11, 1454; Pledges, 12, 1383; Sales, 13, 1712.\*\*

FALSE IMPINIONMENT, 11, 1456.\*\*

FALSE PERSONATION. No cases have been found during the period covered by Vol. 11. See 5, 1415.\*\*

FALSE PERTSNESS AND CHEATS, 11, 1460.\*\*

FALSE REPRESENTATIONS, see Deceit, 11, 1038; Fraud and Undue Influence, 11, 1683; Factopel, 11, 1285; Saole (varrantein), 13, 1728; Insurance (varrantein), 12, 271, 291, and all contract title.\*\*

FALSE SWEARING, see Perjury, 12, 1313.\*\*

FALSEIFYING RECORDS, see Records and Files, 12, 1566.\*\*

FALALY SETTLEMENTENTS, see Estate of Decedents, 11, 1276.\*\*

FEDERAL PROCEDURE, see Admiralty, 11, 83; Appeal and Review, 11, 118; Equity, 11, 1255; Jurisdiction, 12, 438; Removal of Causes, 12, 1680. Consult the particular titse treating of that matter of procedure under investigation. Operation of Conformity Act, see Courts, 11, 830.\*\*

FELLOW-SERVANTS, see Master and Servant, 12, 720.\*\*

FENCES, 11, 1468. Seo, also, Adjoining Owners, 11, 51.\*\*

FERRIES, 11, 1467.\*\*

FIDELITY INSURANCE, see Insurance, 12, 162; Indemnity, 11, 1892.\*\*

FILINGS, see Pleading, 12, 1386; Notice and Record of Title, 12, 1107; Records and Files, 13, 1664, and titles treating of matter in respect of which papers are may be filed.\*\*

FINAL JUDGMENTS AND ORDERS, see Appeal and Review, 11, 126.\*\*

FINDING LOST GOODS, see Property, 13, 141.\*\*

FINDNINGS (of trial court), see Verdiete and Findings, 12, 2261 (of appellate court), see Appeal and Review, 11, 248.\*\*

FINSES, 11, 1469.\*\*

FINSES, 11, 1470.\*\*
G. **MAMELING CONTRACTS, 11, 1633.**

GAME AND GAME LAWS, see Fish and Game Laws, **11, 1471.**

GAMING, see Betting and Gaming, **11, 417:**

Gambling Contracts, **11, 1633.**

GAMING HOULESS, see Betting and Gaming, **11, 417:**

GAMINSED INTERPRETATION, see titles treating of the various writings of which an interpretation is sought, as Contracts, 11, 763.

INTERPRETERS, see Examination of Witnesses, 11, 1420.

INTERPRETATE COMMERCE, see Commerce, 11, 643. Compare Carrriers, 11, 498.

INTERPENTENTION, see Parties, 12, 1186.

INTOXICATING LIQUORS, 13, 332.

INTOXICATION, see Incompetency (effect on capacity to contract), 11, 1886; Criminal Law (capacity to commit crime), 11, 943; Intoxicating LIQUors (offense of drunkness), 12, 3931; Habitual Drunkards (guardinsh), 11, 1690.

INVENTIONS, see Patents, 19, 1237; and as to rights in unpatented inventions, see Property, 12, 1436.

INVENTENTS, see Estates of Decedents, 11, 1286; Trusts, 12, 1290; also as to Investment institution, see Banking and FI-nance, 11, 376.

IBRIGATION, see Waters and Water Supply, 12, 2924, 2303; also see Special Article, 3, 1112.

ISLANDS, see Boundaries, 11, 483; Navigable Waters, 12, 958; Waters and Water Supply, 12, 2378; Riparian Owners, 12, 1702.

ISSUB, see Willis (Interpretation), 12, 2360.

ISSUBCS TO VURY, see Equity, 11, 1236; Jury, 12, 479.

J.

JEOFAIAI, see Harmless and Prejudicial Error, 11, 1690; Pleading, 12, 1862, and like titles.

JEOPARDY, see Criminal Law, 11, 944; Indictment and Prosecution, 19, 27.

JETTISON, see Shipping, etc., 12, 1859.

JOUNDER OF CAUESS, see Pleading, 12, 1342.

JOINT ADVENTURES, 12, 293.

JOINT EXECUTORS AND TRUSTERS, see Estates of Decedents, 9, 1199; Trusts, 13, 2171.

JOINT LIABILITYES OR AGREEMENTERS, see Contracts, 11, 729, and like titles; Torts, 12, 1217.

JOINT STOCK COMPANIES, 13, 396.

JOINT TENNACY, see Tenanta in Common and Joint Tenanta, 12, 2116.

JUDGES, 12, 396.

JUDGEMENT NOTES, see Confession of Judgment, 11, 663.

JUDGEMENTs, 12, 408.

JUDICIAL NOTICE, see Evidence, 11, 1346.

JUDICIAL SALES, 12, 452.

JURISDICTION, 12, 458.

JURY, 12, 478.

JUSTICES OF THE PEACE, 12, 498.

JUSTIFICATION, EXECASE, AND MITIGATION OF LIBEI AND SLANDER \[Special Article\], 6, 430.

JUVENILE COURTS, see Infanta, 12, 144.

K.

KIDNAPPING, 12, 627.

L.

L LABELS, see Commerce (unlabeled goods), 11, 643; Food (unlabeled food products), 11, 1483; Trade Marks and Trade Names, 12, 2116.

LABOR UNIONS, see Trade Unions, 12, 2145; Associations and Societies, 11, 308; Conplacracy (boycotting), 11, 675; Injunction, 12, 179.

LACHES, see Equity, 11, 1146.

LAKES AND PONDDS, see Navigable Waters, 12, 958; Riparian Owners, 12, 1702; Waters and Water Supply, 12, 2286.

LANDLORD AND TENAT, 12, 528. See Special Article, Fixtures of Tenanta, 6, 383.

LAND PATENTS, see Public Lands, 12, 1456.

LARCENY, 12, 567.

LARCENYIOUSNESS, see Indecency, Lewdness and Obesity, 11, 1891.

LATEERAL FLAFLOADS, see Eminent Domnati, 11, 1198; Rallroads, 12, 1642.

LATEERAL SUPPORT, see Adjoining Owners, 11, 31.

LAW OF THE CASE, see Appeal and Review, 11, 237.

LAW OF THE ROAD, see Highways and Streets, 11, 1747.

LEASENS, see Landlord and Tenant, 12, 688; Ballment LOAN AND TRUST COMPANIES, see Banking and Finance, 11, 376; Corporations, 11, 810. LOANS, see Ballment, 11, 865; Banking and Finance, 11, 381; Implied Contracts, 11, 180; Mortgages, 12, 878; Usury, 12, 2209. LOCAL IMPROVEMENTS AND ASSESB-MENTS, see Public Works and Improvements, 12, 1497. LOCAL OPTION, see Intoxicating Liquors, 12, 334. LOGS AND LOGOING, see Forestry and Timber, 11, 1524. LOST INTRUMENTS, see Restoring Instruments and Records, 12, 1699. LOST PROBERT, see Property, 12, 1441. LOTTERIES, 12, 636. M. MAMING; MAXTHER. No cases have been found during the period covered by Vol. 12, See 10, 636. MALICE, see Criminal Law, 11, 940; Homplicido, 11, 1801; Torts, 12, 1127. MALICIOUS ABUSE OF PROCESS, see Madielous Prosocation and Abuse of Process, 12, 638. MALICIOUS MISCHHEF, 12, 637. MALICIOUS PRODUCTION AND ADUSE OF PROCESS, 12, 638, supplementing special article, 4, 470. MANDAMUS, 13, 642. MANDATB, see Ballment, 11, 365; Appeal and Review, 13, 249. MARINE INSURANCE, see 2, 792, and topio Shiplping and Water Traffic, 12, 1881. MARTHAME LIENS, see Shipping and Water Traffic, 12, 1861. MARKEET REPORTMS, see Evidence, 11, 1881; Exchanges and Boards of Trade, 11, 1411; Telegraphs and Telephones, 6, 1677. MARKEETS, see Municipal Corporations, 10, 896. MARKEETS, see Animals, 11, 116; Commerce, 11, 644; Food, 7, 1870; Forestry and Timber, 11, 1521; Trade Marks and Trade Names, 12, 2165; and see Elections (marks on ballitol), 11, 117. MARRIAGE, 12, 659. MARRIAGE SETTLEMENTS, see Husband and Wite, 11, 1838. MARRIAGE, 12, 664. MARSHALING ASSETS AND SECURITIES, MARSHALING ESTTATE, see Estates of Decedine, 11, 1258. MARTHAME IAAW \[Special Article\], 2, 800. CM. 4, 840. MASTEEN AND SERVANT, 12, 665. See Special Article, Liability of Master For Asseault by Servant, 5, 276. MASTERS AND COMMISSIONERS, 12, 809. MASTERS OF VESSELS, see Shipping and Water Traffic, 13, 159. MIBCHANICS LIENS, 12, 815. MIBCHANICS AND SURGERY, 12, 840. MIBCHANICS AND SURGERY, 12, 840. MIBCHANICS AND SURGERY, 12, 840. MIBCHANICS AND SURGERY, 12, 840. MIBCHANICS AND SURGERY, 12, 840. MIBCHANICS AND SURGERY, 12, 840. MIBCHANICS AND SURGERY, 12, 840. MIBCHANICS AND SURGERY, 12, 840. MIBCHANICS AND SURGERY, 12, 840. MIBCHANICS AND SURGERY, 12, 840. MIBCHANICS AND SURGERY, 12, 840. MIBCHANICS AND SURGERY, 12, 840. MIBCHANICS AND SURGERY, 12, 840. MIBCHANICS AND SURGERY, 12, 841. MIBCHANICS AND SURGERY, 12, 842. MIBCHANICS AND SURGERY, 12, 843. MIBCHANICS AND SURGERY, 12, 844. MIBCHANICS AND SURGERY, 12, 845. MIBCHANICS AND SURGERY, 12, 846. MIBCHANICS AND SURGERY, 12, 847. MIBCHANICS AND SURGERY, 12, 848. MIBCHANICS AND SURGERY, 12, 851. MIBCHANICS AND SURGERY, 12, 852. MIBCHANICS AND SURGERY, 12, 853. MIBCHANICS AND SURGERY, 12, 854. MIBCHANICS AND SURGERY, 12, 855. MIBCHANICS AND SURGERY, 12, 856. MIBCHANICS AND SURGERY, 12, 866. MIBCHANICS AND SURGERY, 12, 866.

**NONRRESIDENCE, see Absentees, 11, 10:** PATENTS, 12, 1237.

Allens, 11, 90: Citizens, 11, 627: Domelle,

**PAUPERS, 12, 125**.

\*\*11, 1150: Attachment, 11, 116: Proces,

**PAWENROKERS AND SECONDAND DEALERS, 12, 1298.**

**PAYMENT AND TENDER, 12, 1299.**

**PAYMENT INTO COURT, 12, 1307.**

**PARENT AND CHILD, 12, 1168.**

**PARKS AND PUBLIC GROUNDS, 12, 1173.**

**NOTICB, see Notice and Record of Title, 12,**

**PAULATES AND FORFEATURES, 12, 1310.**

**Jeet-mater in respect to which notice is**

**IPENDING, 12, 1312.**

**PAWENROKERS AND CLAMS, see Fish and Game**

**Lawes, 11, 1475.**

**PAYMENT INTO COURT, 12, 1307.**

**PARENT AND CHILD, 12, 1168.**

**PARKS AND PUBLIC GROUNDS, 12, 1173.**

**supplementing special article 4, 876.**

**PARLLEMENTARY LAW, 12, 1174.**

**PARLIC EXUDENCE, see Evidence, 11, 1847.**

**PARLITES, 12, 1176.**

**PARITION, 12, 1193.**

**PARLITES, 12, 1206.**

**PARITY VALLS, 13, 1234.**

**PASSENGERS, see Carriers, 11, 641.**

**PATTENTS, 12, 1237.**

**APUERS, 12, 1295.**

**PARPARLITES, 12, 1298.**

**H1**

POOR LITIGANTS, see Costs (in forma paulpers), **11**, 889.

POSSE COMITATUS, see Arrest and Binding Over, **11**, 278.

POSSESSIGN, WRIT OF, **12**, 1403.

POSSESSORY WARIRANT, **12**, 1404.

POSTAL Law, **12**, 1404.

POSTONEMENT, see Continuance and Post-ponement, **11**, 728.

POWERTS, **12**, 1409.

POWERTS OF ATTORNNEY, see Agency, **11**, 60; Attorneys and Counselors, **11**, 352;

Frauds, Statute of, **11**, 1609.

PRACEICE, see Process, **12**, 1414; Witnesses (subpoen), **13**, 2409.

PRAYERS, see Equity, **11**, 1255; Pleading, **12**, 1347.

PREACTORY TRUSTS, see Trusts, **12**, 2171;

Wills, **12**, 2371; Charitable Girls, **11**, 604.

PRELIMINARY EXAMINATION, see Arrest and Binding Over, **11**, 282.

PRELIMINARY SUITS, see Causes of Action and Defenses, **11**, 387; Discontinuance, Dismissal and Nonsuit, **11**, 1093; Pleading, **12**, 1323.

PRESCRIPTION, see Adverse Possession, **11**, 41; Easements, **11**, 1145; Limitation of Actions, **12**, 609.

PRESUMPTIONS, see Evidence (clv1), **11**, 1350; Indictment and Prosecution (riminall), **12**, 34,

PRINCIPAL AND AGENT, see Agency, **11**, 60.

PRINCIPAL AND SUBETY, see Suretyahb, **12**, 5003.

\*\*PRIOR APPRORIZATION, see Waters and Water Supply, **12**, 2194.

PRIORITIES BETWEEN CREEDITORS, see Liens, **12**, 606, and titles there referred to, Also Bankruptcy, **11**, 403, and similar titles dealing with distribution of assets.

PRISON, JAILS, AND REFORMATORIES, **12**, 111.

PRIVACY, RIGHT OF, see Torts, **12**, 2127.

PRIVATE INTERNATIONAL LAW, see Conflict of Laws, **11**, 665.

PRIVATE SCHOLOLS, see Colleges and Academines, **11**, 632.

PRIVATE WAYS, see Easements, **11**, 1147.

PRIVILEGE, see Llbeel and Slander, **12**, 580;

Arrest and Binding Over, **11**, 279; Civil

Arrest, **11**, 621; Witnesses, **12**, 2406.

PRIVILEGED COMMUNICATIONS, see Llbeel and Slander, **12**, 676; Witnesses, **12**, 2386.

PRIZE, see War, **12**, 2173.

PRIZE FISHING. No cases have been found during the period covered by volume, **12**. See **4**, 1070.

PROZATE, see Willis, **12**, 2340.

PROCESS, **12**, 1413.

PRODUCTION OF DOCUMENTS, see Discovery and Inspection, **11**, 1101; Evidence, **11**, 1399.

PROZATIVE AND BLASPHEMY, **12**, 1430.

PROFENT, see Pleading, **12**, 1334.

PROFITS A PRENDRE, see Real Property, **12**, 1623; Easements, **11**, 1140.

PRORUBITION, WRIT OF, **12**, 1430.

PROMOTORERS, see Corporation, **11**, 817, also compare Contracts, **11**, 729; Fraud and Undue Influence, **11**, 1583.

PROFERRITY, **12**, 1435. Particular kinda, rights or transfers of property or subjects of property are excluded to supra-rate topics. See headings describing them.

PROSEUCTING ATTORNENTS, see Attorneys and Counselors, **11**, 356.

PROSTUTION, see Disorderly Conduct, **11**, 1108; Disorderly House, **11**, 1109; Fornication, **5**, 1518; Indecency, Lewdness and Obseentity, **10**, 42.

PROXISS, see Corporations, **11**, 856; Agency, **11**, 60.

PROXIMATE CAUSE IN ACCIDENT INSURANCE \[Special Article\], **4**, 282.

**RRHASONABLLP DOUBT, see Inditement and**: **Prescouten, 12, 65, 84.**

- RECAPTION, see Assault and Battery, 11, 289: Trespass, 12, 2149: ReplevIn, 12, 1688.\*\*
- RECEPTORS, see Attachment, 11, 823: Executions, 11, 1438.\*\*
- RECEPTORS, see Payment and Tender, 12, 189: Executions, 11, 1438.\*\*
- RECEPTORS, see Payment and Tender, 12, 189: Executions, 11, 1438. See also, for particular kinds of recepts Warabousing, etc. (warehouse recepts), 12, 2273: Banking, etc. (certificates of deposits), 11, 876: Executions (forthcoming recepts), 11, 1438.\*\*
- RECEIVERS, 12, 164.\*\*
- RECEIVERS STOLEN GOODS, 12, 1681.\*\*
- RECTIALS, see Entoppel, 11, 1327: MunicipalBonds, 12, 903: Statutes, 12, 1942.\*\*
- RECTIALS OF LAW IN ININCIPAL BONDS \[Special Article\], 4, 717.\*\*
- RECOGNIZANCES, 12, 1664.\*\*
- RECORDARI, see Justices of the Peace, 12, 496.\*\*
- RECORDING DEEDS AND MORTAGGES, see Notice and Record of Title, 12, 1108.\*\*
- RECORDING DEEDS, see Exexecutions (sales), 11, 141: Forecasting of Mortages on Land, 11, 1505: Judical Sales, 13, 452: Mortages, 12, 992.\*\*
- RE-EXCHANGLE, see Negotiable Instruments, 12, 1018: Banking, etc., 9, 339.\*\*
- REFERENCE, 12, 1666.\*\*
- REFORMATION OF INSTRUMENTS, 12, 1671.\*\*
- REFORMATORIES, see Prison, Jalis and Reformatories, 12, 1411.\*\*
- REIGHSTERS OF DEEDS, see Notice and Record of Title, 12, 1116; Officers, etc., 12, 1131.\*\*
- REGISTRATION, see Notice and Record of Title, 12, 1117.\*\*
- REHEKARING, see Appeal and Review, 11, 252: Equty, 11, 1259: New Trial, etc., 12, 1070.\*\*
- REINSURANCE, see Insurance, 12, 299.\*\*
- REJOINDERS, see Pleading, 12, 1233.\*\*
- RELATION, see topics treating of various legal acts to which the doctrine of relation may be applied, such as Contracts, 11, 179: Deeds, etc., 11, 1051; Trespass, 12, 2149.\*\*
- RELEKASES, 12, 1675.\*\*
- RELIEF FUNDS AND ASSOCIATIONS, see Fraternal, etc., Associations, 11, 1564: Master and Servant, 12, 655.\*\*
- RELIGOUS SOCETIES, 12, 1678.\*\*
- REMAINDERS, see Real Property, 12, 1623, Perpetuities, etc., 12, 1316; Willa, 12, 2356.\*\*
- REMEDY AT LAW, see Equty, 11, 1238: Injunction, 12, 153, and other topics dealing with equitable remedies.\*\*
- REMITITUR, see Appeal and Review, 11, 243: Judgments, 12, 417: New Trial, etc., 12, 1070: Danages, 11, 998.\*\*
- REMOVAL OF CAUSES, 12, 1680.\*\*
- REDNITION OF JUDGMENT, see Judgments, 12, 418: Justices of the Peace, 12, 496.\*\*
- REPLLEADER, see Pleading, 12, 1823.\*\*
- REPLLEGIANDO, see Habeas Corpus, etc., 11, 1681.\*\*
- REPLLEVIN, 12, 1688.\*\*
- REPLICATION, see Pleading, 13, 1852.\*\*
- REPORTED QUESTIONS, see Appeal and Review, 11, 142.\*\*
- REPORTTS, see Records and Flies, 12, 1664.\*\*
- REPORTTS, see Records and Flies, 12, 1674.\*\*
- REPORTTSENICATIONS, see Docett, 11, 103S.

S.

SAFE DEPOSITS, see Warehousing and Depostis, 12, 2274; Banking and Finance, 9, 838.

SALES, 12, 1711.

SALVAGE, see Shipping, etc., 12, 1578.

SATIFICATION AND DISCHARGE, see Accord and Satisfaction, 13, 19; Contracts, 11, 770; Judgments, 12, 443; Mortgages, 12, 890; Payment and Tender, 12, 1299; Releases, 12, 1675.

SAVING QUESTIONS FOR REVIEW, 12, 1783.

SALVINGS BANKS, see Banking, etc., 11, 375.

SCANDAL AND IMPERTINENCE, see Equty, 11, 1252; Pleading, 12, 1323.

SCHOOL LANDS, see Public Lands, 12, 1455; Schools and Education, 12, 1807.

SCHOOLS AND EDUCATION, 12, 1798.

SCIRE FACIAS, 12, 1817.

SEALS, see Namea, Signatures, and Seala, 12, 958. Compare titles relating to instructions wheref seen is required.

SEAMEN, see Shipping, etc., 12, 1850.

SEARCH AND SEIZURE, 12, 1817.

SEAVYEDED, see Waters and Water Supply, 12, 2278.

SEONDARY EVIDENCE, see Evidence, 11, 1362.

SECONDHEAD DEALERRS, see Pawnbrokers, etc., 12, 1298.

SECRET BALLOT, see Elections, 11, 1178.

SECURITY FOR COSTS, see Coste, 11, 887.

SEDUCTION, 12, 1818.

SELF-DEFENSE, see Assault and Battery, 11, 285; Homicide, 11, 1807, 1821.

SENTINCN, see Inditement and Prossoution, 12, 94.

SEPARATE PROPERTY, see Husband and Wife, 11, 1838.

SEPARATE TRIALS, see Trial (clv11), 12, 2162; Inditement and Prossoution (riminal), 12, 62.

SEPARATION, see Divorce, 11, 1112; Husband and Wife (separation agreements), 11, 1844.

SEQUESTRATION, 12, 1820.

SERVICE, see Process, 12, 1413,

SET-OFF AND OUTTERCLAIN, 12, 1821.

SETTLEMENT OF CASSE, see Appeal and Review, 11, 168.

SETTLEMENTS, see Accord, etc., 11, 131; Eatedates of Decodenta, 11, 1314; Guardian, ship, 11, 1680; Trusts, 12, 1271.

SEVERANCE OF ACTIONS, see Pleading, 12, 1232; Trial, 12, 1261.

SEWERS AND DRAINS, 12, 1830.

SHAM PLEADINGS, see Pleading, 12, 1333.

SHELLETY'S CASSE, see Real Property, 12, 1833; Decads of Converse, 11, 1051.

SHERIFFS AND CONSTABLES, 12, 1851.

SHERIFFS SALES, see Executions, 11, 149; Yudfical Sale, 12, 452.

SHIPPING AND WATER TRAFFIC, 12, 1859.

SIDEEVALKS, see Highways and Streets, 11, 1758.

SIGNATURES, see Names, etc., 12, 956.

SIMILITER, see Pleading, 12, 1352.

SIMILITEKOUS ACTIONS, see Election and Waiver, 11, 1162.

SLANDER, see Lluel and Slander, 12, 578.

SLAVES, 12, 1885.

SLEEPING CARS, see Carriers, 11, 49; Taxes, 12, 2022.

SOCETETIES, see Associations and Societies, 11, 808.

SODOMY, 12, 1885.

SOCITATION TO CRIME, see Criminal Law, 11, 940, and topics treating of the crime sollofted.

SPANISH LAND GRANTS, see Publio Lands, 8, 1508.

SPECIAL ASSESSMENTS AND TAKES, see Public Works and Improvements, 13, 1478.

SPECIAL INTERROGAATORIES TO JURY, see Verdicts and Findings, 12, 2268.

SPECIAL JURY, see Jury, 13, 495.

SPECIAL VERDICT, see Verdicts and Findings, 12, 2238.

**SPECIFIC PERFORMANCE, 12, 1886.**

SP SUPPOENA, see Witnesses, 12, 2409; Equuty, 11, 1260; Process, 12, 1413.

SUBROGATION, 12, 1997.

SUBSCRIBING PLEADINGS, see Pleading, 13, 1233; Equuty, 11, 1253.

SUBSCRIPTIONS, 12, 2000.

SUBSTITUTION OF ATTORNEYS, see Attorneys and Counesley, 11, 333.

SUBSTITUTION OF PARTIES, see Abatement and Revival, 11, 7; Parties, 12, 1184.

SUBWYAFS, see Pipe Lines and Subways, 12, 1311.

SUCCESS, see Descent and Distribution, 11, 1073; Estates of Decedents, 11, 1275; Taxes (succession taxes), 12, 2083; Wills, 8, 1305.

SUICIDE, 12, 2002.

SUMMARY PROCEDINGS, see Landiord and Tenant, 12, 563.

SUMMARY PROSECTIONS, see Inditement and Prosecution, 12, 136.

SUMMARY, see Process, 12, 1418.

SUMMARY, 12, 2002.

SUPERSEDEAS, see Appeal and Review, 11, 163-165; Executions, 11, 1435.

SUPPLEMENTAL PLEADINGS, see Equuty, 11, 1235; Pleading, 12, 1374.

SUPPLEMENTARY PROCEEDINGS, 12, 2006.

SUPPORT AND MAINTENANCE, see Allmony, 11, 105; Husband and Vife, 11, 1872; Infants, 12, 140; Innsate Persons, 12, 208; Parent and Child, 12, 1169; Guardiability, 11, 1673.

SURCARGING AND FALSEYING, see Accounting, Action for, 11, 20; Estates of Decedents, 11, 115; Trusts, 12, 2171.

SURFACE WATERS, see Waters, etc., 12, 2287; Railroads, 12, 1568; and as to duty to maintain highways in such manner as to prevent diversion, see Highways, etc., 11, 1733.

SUPPLUSAGE, see Equuty, 11, 1262; Pleading, 12, 133.

SUPPRISE, see New Trial, etc, 12, 1080; Deaths, 11, 1063; Mistake and Accident, 12, 869.

SUPROGATES, see Courts, 11, 925; Estates of Decedents, 11, 175; Wills; 12, 2311.

SUPRYCORS, see Counties, 11, 908; Bounds-aries, 11, 427.

SUPRYCORS REID, see Death and Survivor-ship (presumptions), 11, 1018; Deeds, etc. (interpretation), 11, 1055; Wills, 12, 2321.

SUPPENSION OF POWER OF ALLENATION, see Perpetuities and Accumulations, 12, 1316.

T.

TAKING CASE FROM JURY, see Directing Verdict, etc., 11, 1085; Discontinuance, Dismissal and Nonsult, 11, 1093; Question of Law and Fact, 12, 1521.

TAKES, 12, 2022.

TELEGRAPHS AND TELEPHONS, 12, 2090.

TENANTS IN COMM AND JOINT TENANTS, 12, 2116.

TENDER, see Payment and Tender, 12, 1299.

TERRMS OF COURT, see Courts, 11, 927; Dockets, Calendars and Trial Lists, 11, 1318.

TERRITORIES AND FEDERAL POSSESIONS, 12, 2121.

TESTAMENTARY CAPACITY, see Wills, 12, 2323.

The mathematics, see Buildings and Building Restructions, 11, 473; Exhilitions and Shows, 13, 1447.

THEFT, see Larceny, 12, 549.

THEREATS, 12, 2124.

TICKETS, see Carriers, 11, 546; Exhilitions and Showers, 11, 1449.

TIDE LANDS, see Public Lands, 12, 1466; Waters, etc., 13, 2279.

TIME, 12, 2125.

TIME TO PLEAD, see Pleading, 12, 1385.

TITLE AND OWNERSHIP, see Property, 12, 145, and topics treating of particular property and of the transfer thereof.

TITLE INSURANCE, see Insurance, 12, 283.

TODACCO, 13, 2126.

TOLL ROADS AND BRIDGES, 12, 2126.

TORRENS

**xvi**

UNDETTAKINGS, 13, 2204.

UNDUE INFLUENCE, see Fraud and Undue Influence, **11**, 1583; Wills, **12**, 2325.

UNFAIR COMPETITION, see Trade Marks and Trade Names, **12**, 2139.

UNION DEPOTS, see Railroads, **12**, 1533, 1567; Eminent Domain, **11**, 1208.

UNITED STATES, **12**, 2204.

UNITED STATES COURTS, see Courts, **11**, 925. As to procedure and jurisdiction, consult the appropriate title for the particular procedure under investigation.

UNITED STATES MARSHALS AND COMMISSIONERS, **12**, 2208.

UNIVERSITIES, see Collages and Academies, **11**, 632; Schools and Education, **12**, 1796.

UNLAWFUL ASSEMBLY, **12**, 2208.

USAGES, see Customs and Usages, **11**, 950.

USE AND OCCUPATION, see Landlord and Tenant, **12**, 560; Implied Contracts, **11**, 1883.

USES, **12**, 2208.

USURY, **12**, 2209.

V.

VAGRANTS, **12**, 2213.

VALUES, see Evidence, **11**, 1846; Damages, **11**, 958.

VARIANCE, see Pleading, **12**, 1889; Indictment, etc., **12**, 17.

VENDITIONI EXPONAS, see Attachment, **11**, 323; Executions, **7**, 1617.

VENDORS AND PURCHASERS, **12**, 2213.

VENDORS' LIENS, see Sales, **12**, 1712; Vendors and Purchasers, **12**, 2240.

VENUE AND PLACE OF TRIAL, **12**, 2245.

VERBAL AGREEMENTS, see Contracts, **11**, 729; Frauds, Statuts of, **11**, 1609.

VERDICTS AND FINDIINGS, **12**, 2255.

VERIFICATION, **12**, 2271.

VETO, see Statutes, **12**, 1919; Municipal Corporations, **12**, 905.

VIEW, see Trial, **12**, 2170; Eminent Domain, **11**, 1224; Mines and Minerals (statutory right of view), **12**, 851.

VOTING TRUSTS, see Corporations, **11**, 810; Trusts, **8**, 2169.

W.

WAVER, see Election and Waiver, **11**, 1162.

WARREHOUSING AND DEPOSITS, **12**, 2274.

WARRENT OF ATTORNEY, see Confession of Judgment, **11**, 663.

WARRANTS, see Arrest and Binding Over, **11**, 278; Search and Seizure, **12**, 1817.

WARRANTY, see Covenants for Title, **11**, 933; Sales, **12**, 1728, 1752.

WARSTE, **12**, 2278.

WATERS AND WATER SUPPLY, **12**, 2279; with Special Article, **8**, 1112.

WATS, see Easements, **11**, 1144, 1147; Eminent Domain, **11**, 1198.

WEAPONS, **12**, 2817.

WEIGHTS AND MEASURES, **12**, 2319.

WHAVRVES, **12**, 2320.

WHITE-CAPPING, see Threats, **6**, 1697.

WILLS, **12**, 2321.

WINDING UP PROCEEDINGS, see Corporations, **11**, 830; Partnership, **12**, 1226.

WITHDRAWING EVIDENCE, see Trial, **12**, 2162; Harmless and Prejudcial Error, **11**, 1690.

WITHDRAWING PLEADINGS OR FLLES, see Pleading, **12**, 1386; Records and Files, **12**, 1664.

WITNESS, **12**, 2375.

WOODS AND FORESTS, see Forestry and Timber, **11**, 1621.

WORK AND LABOR, see Assumpsit, **11**, 312; Implied Contracts, **11**, 1877; Master and Servant, **12**, 663.

WORKING CONTRACTS, see Building and Construction Contracts, **11**, 464.

WRECK, see Ship

## Current Law

(Copyright, 1909, by The Keefe-Davidson Company.)

Volumes XII. APRIL, 1908. NUMBER 1.

## 1. Imitation of Time to Institute, 2.

- 2. Jurladiction, 2.
- 3. Place of Trxecention and Change of Venue, 5.
- 4. Indictment and Information, 8.
- 5. Necessity of Indictment, 8.
- 6. Findings and Filing and Formal Requires, 8.
- 7. Requisites and Sufficiency of the Acusation, 11. General Rules, 11.
- 8. Certainty, 11. Bad Spelling and Ungrammatical Construction, 13.
- 8. Surplusage, 14. Venue, 14. Intent or Knowledge, 14. Time, 14. Designation of Persons, 15. Setting Forth Written or Printed Matter, 16. Description and Ownership of Property, 16. Description of Money, 16. Duplicity, 16. Exceptions and Proviso, 17. Conclusion, 17.
- 9. Issues, Proof and Variance, 17.
- 10. Time, 19.
- 11. New Trial, Arrest of Judgment, and Weit of Error Corum Nobis, 89.
- 12. Newly-Discovered Evidence, 91.
- 13. A Motion of Learser Degrees and Included Offenses, 24.
- 14. Parameter and Pless, 25. Pleas in Abatement and Special Pleas, 26.
- 15. Reperation For, and Matters Preliminary to, 28. Right to Speedy Trial, 29. Preliminary Inquest as to Sanity, 29.
- 16. Requirement of Trial, 29.
- 17. Requresentment of Trial, 29.
- 18. Dismissal or Nolle Prosequit Before Trial, 33.
- 19. Evidence, 34. Judicial Notice, 34. Pre-sumptions and Burden of Proof, 34.
- 19. Relevancy and Competency in General, 36. Competency of Evidence as Affected by Rights of Accused, 38. Acts Disclosing Consequences of Quilt, 40. Other Offenses, Convitions and Acquittals, 40. Character and Reputation, 43. Hearasy, 43. Admissions and Declinations, 44. Confessions, 45. Accts and Declinations of Co-conspirators, 48.
- 10. Trial, 59. Order of Trial in General, 59. Order of Proof, 60. Conduct and Requires, 55.
- 11. Re-Computation of Trial, 59. Order of Trial, 61. Consolidation, 62. Severance, 62. Production, Examination and Supervision of Without Change of Credit, 63. Accepting and Condition of Event, 64.
- 12. Argument and Conduct of Counsel, 65.
- 13. A. Proof of Correctness of the Criminal Procedure, 65.
- 14. Re-Computation of Trial, 66.
- 15. Re-Computation of Trial, 66.
- 16. Requirement of Trial, 66.
- 17. Re-Computation of Trial, 66.
- 18. Summary Prosecutions and Review Thereof, 136.

_The scope of this topic_ is noted below.

_Sources of the criminal procedure._ See 10 C. L. 88.-Criminal cases in the federal courts are governed and controlled by federal statutes, and federal decisions and

S2. This topic includes general criminal Law, 11 C. L. 840) and procedure before indictment procedure from indictment to final judgment.

- 19. The substantive law of crimes (see Criminal 278), are elsewhere treated, and matters of 19 Curr. L--1.

## 2 Inclicment and Prosecution SS 2.

12 Cur. Law. state statutes and decisions are inapplicable,\[11\] though in the absence of federal statutes, state statutes control;\[12\] but omission of the state satute to provide a remedy for the preservation of a substantial right of accused will not operate to deprive him of the right.\[13\] The act of congress creating the United States court for China and the treaty provisions relating thereto give to American citizens in China the benefit of American laws regulating criminal procedure,\[13\] but also make such citizens subject to American laws defining and punishing crimes, including the common law.\[14\] An indictment cannot be predicated on a statute which became effective after the act charged was committed.\[13\] A defendant proceeded against under the general penal laws of the state, in the superior court, is not, though a minor, entitled, in New Hampshire, to be tried under the provisions of the juvenile court act.\[15\]

SS 1. _Limitation of time to institute.\[16\]_ See 10 C. L. \[17\] The time within which criminal prosecutions must be instituted is fixed by statute.\[18\] The federal statute providing that crimes committed in territory, jurisdiction over which is ceded to and vested in the United State, shall receive the same punishment as provided by the law of the state in which the act was done, in the absence of a federal statute punishing such act, does not make the state statute of limitations applicable.\[19\] Whether a particular statute applies so as to bar a prosecution,\[20\] when the limitation period commences to run,\[13\] and under what circumstances the statute will be tolled,\[14\] depends upon the terms of the statute and the nature of the offense. The commencement of a criminal proceeding does not date from the filing of the information, but from the issuance of the warrant which is served.\[13\] A defective warrant is effective as a commencement of the prosecution if accused fails to object and gives bail for appearance.\[13\]

SS 2. _Jurisdiction.\[15\]_ See 10 C. L. \[17\]\_ Proceedings had without jurisdiction are of course wholly void.\[18\] A court has no power to proceed except at a term authorized indictment, evidence and procedure peculiar to particular crimes are treated under topics for conspiracy to commit such offense. Untitled with euch crimes (see Homlide, ed States v. Comstock, 162 F 416.

11 C. L. \[179\]; Larceny, 10 C. L. \[180\], and like topics.\[19\] S8, Jones v. U. S. \[C. C. A.\] 162 F 417.

84. United States v. Wells, 163 F 313.

01. Plea in abatement proper remedy by which to attack indictment on account of improper conduct of district attorney before read jury, though statutes did not provide needed. People v. Gibson, 191 N. Y. \[207\], therefor. United States v. Wells, 163 F 313.

01. Blidle v. U. S. \[C. C. A.\] 156 F 759.

01. Act June 30, 1906, c. \[3924 (34 Stat. S14), expressly extends common law as well as federal statutes. Blidle v. U. S. \[C. C. A.\] 156 F 159. Obtaining money by false pre-tenses is a crime punishing by such court.Id.

01. Barton v. State \[Miss.\] 47 S 521.

01. State v. Burt \[N. H.\] 11 A 30.

01. Prosecution for rape barred where more than one year had elapsed since first intercourse. Ex parte Black \[Tex. Cr. App.\] 113 SW 534.

01. Federal limitations act applies in such case. United States v. Andem, 158 F 996.

01. U. S. Rev. St. 1044, limiting offenses not capital to three years, is general and applies to all misdemanance constituting finesse against the United States whenever added by congress to list of statutory offenses. United States v. Central Vermont R. Co., 157 F 291. One year limitation for prosecution of violation of Bankr. Act 1898, by law."Courts can acquire jurisdiction of causes only in the mode prescribed by law, and agreements of parties in contravention thereof are of no effect."

The power and jurisdiction of municipal and other inferior courts, and whether the same is concurrent or exclusive,1 must be determined by reference to statutes applicable to the particular count or crime, the measure of jurisdiction being usually the nature and gravity of the offense and the penalty provided by law.2 Statutes also determine and fix the territorial jurisdiction of inferior courts.8 Courts of one state have no jurisdiction over an offense committed in another.4

Footnote 10: https://www.courts.com/courts

## 4 INDICMENT AND PROSECTION SS 2. 12 Cur. Law.

Where two courts have concurrent jurisdiction of an offense, jurisdiction of one does not attach exclusively until defendant has been formally charged therein \[4\] and arrested under the accusation thus filed.\[5\] When jurisdiction of one attaches, it becomes exclusive,\[6\] and an acquittal or conviction in one bars prosecution in the other,\[7\] even though the sentence imposed is illegal and less than that required by, law,\[8\] in the absence of fraud or collusion practiced to defeat jurisdiction of such other court.\[10\] That one is confined under sentence pronounced by one court does not prevent his prosecution for another offense in an inferior court.\[11\] Federal courts have no jurisdiction over crimes except such as are made cognizable before them by act of congress.\[12\] Congress has provided that offenses committed in territory ceded to the United States, but not specifically prohibited or made punishable by federal statute, shall be liable to and shall receive the same punishment as like offenses are liable to under the laws of the state within which such territory is located.\[13\] Where the state has ceded jurisdiction over such territory to the United State, state courts have no jurisdiction over offenses committed therein.\[14\] The jurisdiction of state courts over crimes being general, and that of federal courts special,\[18\] an indictment in a state court need not negative jurisdiction.\[18\]

State courts of Oklahoma have jurisdiction to proceed with criminal cases, not of a federal character, pending and not finally disposed of in the district courts of Oklahoma Territory and in the United States courts of Indian Territory, when the state was admitted to the union,\[17\] actual prosecution not having been commenced. The district court of the county in which the crime was committed has jurisdiction to proceed in such case.\[18\]

of crimes committed In neighboring state, court for trial, he cannot object that his REYION v. Com., 29 KY. L. R. 64, 91 SVW 696. No jurisdiction where offense, violation of or crop pooling law, took place in Ohio, if at all. O'Bannon v. Com. \[KY.\] 113 SWW 907.

5. Bare arrest of person and preliminary examination before justice, no indictment being returned, did not attach jurisdiction so as to exclude jurisdiction of district court. Greathouse v. State, 63 Tex. Cr. App. 218, 109 SW 165.

1. In a case in which a justice of the peace and the circuit court have concurrent jurisdiction, the jurisdiction of the latter does not attach exclusively until defendant has been arrested under the indictment. Smithey v. State \[Miss.\] 46 S 410.

1. Petit larceny, second offense, is only misdemeanor, not felony; hence, where one accused of that crime is first brought before police court, that court has exclusive jurisdiction, and has no power to order him bound over to grand jury in absence of motion under Code Cr. Proc. 1 $7. People v. Craig, 112 NYS 781.

1. Acquittal of assault in mayor's court held bar to prosecution in state court. Brooke v. State \[Ala.\] 46 S 491. Plea setting up such acquittal held sufficient. Id. Conviction in justice court may be pleaded in bar of prosecution in circuit court. Smithey v. State \[Miss.\] 46 S 410.

1. Fine only imposed. Imprisonment also required. Smithey v. State \[Miss.\] 46 S 410.

1. No fraud or collusion shown. Smithey v. State \[Miss.\] 46 S 410.

1. That defendant in criminal case is confined in jail under sentence for felony pronounced by superior court is no ground why he cannot be tried on misdemeanor in city court. At any rate, being before the state with consent of state, the state with consent of state, the state with consent of state, the state with consent of state, the state with consent of state and jurisdiction, the state with consent of state and jurisdiction, the state with consent of state and jurisdiction, the state with consent of state and jurisdiction, the state with consent of state and jurisdiction, the state with consent of state and jurisdiction, the state with consent of12 Cur. Law. INDICITMENT AND PROSECTION SS 3. \*\*Transfer.\*\*See 10 C. L. 61.--Statutes usually govern the transfer of causes from one court to another.10 In Kentucky, where it develops on the trial that the court has no jurisdiction, the offense having been committed in another county, the case may be transferred to such county,20 but it cannot be there tried upon the same indictment.21 On a preliminary hearing before a United States commissioner to determine whether defendants shall be held and removed to another district for trial, it is necessary to determine whether any offense against the United States has been committed 22 and whether there is reasonable cause to believe defendants guilty.23 In such proceeding the indictment is presumptive evidence of probable cause as against defendants,24 though other competent evidence may be received on the issue.25 If the indictment produced as evidence of probable cause is framed in the language of the statute with ordinary averments of time and place, and sets out the substance of the offense in language sufficient to apprise accused of the nature of the charge against him, it is sufficient to justify removal even though it may be open to a motion to quash or in arrest of judgment in the court in which it was originally filed.26 That it appears in such proceedings that acts have been committed which could be prosecuted in the district where the proceedings are had is no reason to deny the removal, when it also appears that accused may properly be proceeded against in the district where the indictment has been filed.27 Removal may be had from another district to the District of Columbia, though the offense charged is a common-law offense.28

SS 3. \_Place of prosecution and change of venue.\_See 10 C. L. 61.--Usually the prosecution must be in the county where the offense was committed. But the matter is largely controlled by statute, and in some cases an offense may be prosecuted in either of two or more counties.29 In the notes are given decisions as to the venue of the Territory, and pending in said court on ad- 394, 93 P 266. Entry on minutes of city mission of state into Union, is cognizable court of order of judge of superior court in district court of state in county where Officense transfer of certain indictments for offense was committed. Higgins v. Brown misdemeanors to city court, where such \[Okl.\] 94 P 703. Same holding as to crime transfer is authorized by law, is sufficient to of assault with intent to kill with a deadly weapon. Ex Parte Brown \[Okl.\] 94 P 566. Scarne holding as to crime of receiving stolen 62 SE 487. 20. Gearnhart v. Com., 38 Ky. L. R. 889, indictment for murder being returned nor prosecution commenced prior to the ad- 21. Since accused could not be convicted mission of the state, district court of county where committed had jurisdiction. Ex parte he should be held to answer to new in- 24 P 553. Indictment for manufacturer, committed under laws of Indian Territory, returned after admission of Oklahoma as state, no prosecution having been begun prior to such date, cognizable in the 25.44 court in county where offense committed. Ex parte Buchanen \[Okl.\] 94 P 943. Same holding in enbeziement case, complaint having been filed by United States commissioner, warrant issued, and prisoner apprehended prior to admission of Indian Territory as state, and indictment filed and prosecution commenced thereafter. Ex parte Curtee \[Okl.\] 95 P 414. 29. Order transferring cause from district to county court need not set out name and nature of offense charged. Setting it out is surpluese and immaterial. Massie v. State, 55 Tex. Cr. App. 548, 107 SV 846. Where, after change of venue from police court to justice of peace, defendant appeared and are- "presaly" vnixed all informalities and irregular parties, and submitted to trial without objection, he cannot object to irregularities in transfer of cause, if justice has jurisdiction of subject-matter. Ex parte Graye, 36 Mont. 10 C. L. 61.--Usually the prosecution must be in the county where the offense was committed. But the matter is largely controlled by statute, and in some cases an offense may be prosecuted in either of two or more counties.29 In the notes are given decisions as to the venue of the Territory, and pending in said court on ad- 394, 93 P 266. Entry on minutes of city mission of state into Union, is cognizable court of order of judge of superior court in district court of state in county where Officense transfer of certain indictments for offense was committed. Higgins v. Brown misdemeanors to city court, where such \[Okl.\] 94 P 703. Same holding as to crime transfer is authorized by law, is sufficient to of assault with intent to kill with a deadly weapon. Ex Parte Brown \[Okl.\] 94 P 566. Scarne holding as to crime of receiving stolen 62 SE 487. 20. Gearnhart v. Com., 38 Ky. L. R. 889, indictment for murder being returned nor prosecution commenced prior to the ad- 21. Since accused could not be convicted under charge of crime in another county, we should be held to answer to new in- 24 P 553. Indictment for manufacturer, committed under laws of Indian Territory, returned after admission of Oklahoma as state, no prosecution having been begun prior to such date, cognizable in the 25.44 court in county where offense committed. Ex parte Buchanen \[Okl.\] 94 P 943. Same holding in enbeziement case, complaint having been filed by United States commissioner, warrant issued, and prisoner apprehended prior to admission of Indian Territory as state, and indictment filed and prosecution commenced thereafter. Ex parte Curtee \[Okl.\] 95 P 414. 29. Order transferring cause from district to county court need not set out name and nature of offense charged. Setting it out is "surpluese and immaterial. Massie v.

offense of homicide,\[30\] conspiracy,\[31\] conversion,\[32\] theft,\[33\] receiving stolen property,\[34\] discrimination in freight rates under federal statute,\[35\] violation of statute requiring maintenance of railway station,\[36\] and violation of statute regulating form of corporate advertisements.\[37\]

_Change of venue._\[See 10 C. L. 62\] The right to a change of venue is not absolute\[38\] but rests upon statute. Thus the right may be denied as to certain cases\[39\] or may be limited to but one change.\[40\] In some states the state may secure a change of the place of trial under the same circumstances as a defendant may,\[41\] and statutes which so provide are constitutional.\[42\] In any case statutory requirements as to procedure must be complied with and some statutory ground for a change must be shown, the burden being upon defendant to make the proper showing.\[43\] Illustrative holdings as to notice of the application\[44\] and other prerequisites,\[45\] the form and sufficiency of the application and supporting afflavits,\[46\] power and duty of courts to hear the application and act upon it,\[47\] procedure at hearing, and scope of inquiry,\[48\] are given

**30.** By statute in some states, homide may be prosecuted either in country where injury was inflicted or in that where death occurred. Cr. Code 1902, SS 119. State v. McCommer, 79 S. C. 63, 60 SE 237.

**31.** An incident for conspiracy in the federal courts may be prosecuted either where the conspiracy was formed or where any overt act alone to effect it takes place. Arnold v. Weil, 167 F 429.

**32.** Conversion of money by draft drawn on St. Louis bank occurred in St. Louis, who defendant was in another county. State v. Mispaegel, 207 Mo. 557, 106 SW 513.

**33.** Offense of theft, committed within 400 yards of country line, may be prosecuted in either county, under statute. McElroy v. State, 55 Tex. Cr. App. 57, 11 SW 948.

**34.** Venue of crime of receiving stolen property is in county where it was received. No jurisdiction in county to which property was later sent. State v. Pray \[Nev.\] 94 P 218.

**35.** Requirement that prosecution of crimes against United States be had in district where offense was committed as required by U. S. Const. 6th Amend. is not violated by Elkins Act of Feb. 19, 1903, permitting of-fense of obtaining transportation of goods at less than publisher's rates to be tried in any federal district through which such transportation was conducted. Armour Packing Co. v. U. S., 207 U. S. 690, 52 Law. Ed. 354.

**36.** Violation of statute by failure to erect station (railway) at certain point was committed at that place, and not where office of company was located. Louisiana & A. R. Co. v. State, 85 Ark. 12, 166 SW 960.

**37.** Prosection for failure to use word "Incorporated" after name in advertising matter must be in county where corporation has principal office or agent for service, not in any county where advertisement is pub-Ished. Paracamph Co. v. Com. \[Ky.\] 112 SVV 687.

**38.** Giazier v. Ingham Circuit Judge \[Mich.\] 15 Det. Leg. N. 465, 116 N NV 1007.

**38.** Change of venue is not authorized in misdemance cases in Texas. Fox. V. State, 63 Tex. Cr. App. 150, 109 SVV 370.

**40.** Defendant entitled to only one change of venue. Gibson v. State, 63 Tex. Cr. App. 849, 110 SWV 41.

**41.** Rev. Code 1905, SS 9331. Zinn v. Morton in the notes. Whether the application should be granted or refused depends upon the circumstances shown.\[49\] The matter is one resting very largely in the sound discretion of the trial court,\[50\] the exercise of which is not reviewable except for abuse resulting in prejudice,\[51\] and the same rule applies to the selection of a county to which the cause is transferred.\[52\] An order granting change of venue, before issue joined, is premature.\[53\] Where a change of venue has been had, the court of the county to which the trial is transferred is invested with complete and exclusive jurisdiction,\[54\] and the court of the county in which the prosecution originated can call in another judge. State v. Fort, 210 Mo. overrule application for change of venue 512, 109 SW 731. The grant of power to try changes of venue carries with it the power to meet, open court, try the case, and adjourn. Id. The absence of counter affhants does not deprive the judge of his discretion to grant or refuse an application for a change of venue on account alleged prejudice of inhabitants of the county in which trial is to occur, but the judge may weigh and consider what he himself judicially knows of the development of the trial, of the situation of the case, and of the facts alluded to the application. Shields v. People, 132 Ill. App. 109.

48. A motion for change of venue in fell-ony case must be heard on afflavits. State v. Kline \[Or.\] 92 F 287. A request to allow an amendment to a motion for change of venue should specify the respect in which it is to be amended. Klinev v. State, 85 F 14, 109 SW 524. The Arkansas statute requiring a petition for a change of venue to be supported by the afflavits of two creditable persons does not contemplate that the truth or falsity of the facts shall be inquired into on the hearing. The inquiry must be confined to the question whether afflants are credible persons. Not error to exclude test-mony of sheffir as to facts. Strong v. State, 85 F 84. Klinev, 836, 109 SW 536. State only sought to prove denial of one fact stated in accused's petition for change of venue, and court refused to receive evidence from either side. Heid, facts stated in petition must be taken as true, except that which state sought to disprove. Uzzle v. Com., 107 Va. 919, 60 SE 62. On hearing of application for change of venue, witnesses should have been allowed to testify that "sentiment was against the man," but not that "ne could not have a fair trial;" but latter was harmless when all facts were testified to. State v. Vickers, 209 Mo. 12, 106 SW 99.

01. Detail of motion proper, it not being shown that defendant could have fairer or more impartial trial in another county, for to refuse change of venue. Anderson v. Glazier v. Inglam Circuit Judge \[Mis.\] 14 G 86. If it appears from the pct. Leg. N. 465, 118 NW 1007. Denial of motion held within discretion of court. People v. Boyd, 151 Mich. 57, 15 Det. Leg. N. 36, 115 NW 687. Evidence insufficient to show such local prejudice as to prevent defendant from having a fair and impartial trial. State v. Vickers, 209 Mo. 12, 106 SW 99. Refusal of change within courts disagreeing of venue. Anderson v. credit, court having heard evidence on credibility of afflants. Strong v. State, 85 F 536, 109 SW 536. Motion properly denied where persons making supporting affairs admitted that they had been in only one locality in the county and did not even know whether persons they talked to keep nothing about the crime or parties and vote. Klinev, 85 F 54, 109 SW 524. Proper to not, after a change of venue, proceed to try defendant upon a second information or indictment charging the same offense.\[58\] The clerk may be allowed to place file mark upon papers, after transfer, nunc pro tune, papers having been properly received and filed.\[59\]

SS 4. \_Indictment and information. A. Necessity of indictment.\_See 10 C. L. 64. Constitutional and statutory provisions control the question whether prosecution must be by indictment \[67\] or whether it may be by information or indictment.\[58\] In New York a court of special sessions of the city of New York may be divested of jurisdiction in misdemeanor cases by a certificate, issued by a judge of a court of general sessions or other officer authorized by statute, that it is reasonable that the charge against defendant should be prosecuted by indictment.\[59\]

SS 4. \_B. Finding and filing and formal requisites.\_See 10 C. L. 61

\_Indictment.\_See 10 C. L. 65.-No preliminary examination is essential to the finding of an indictment by a grand jury.\[60\] Where a bill is founded upon a constable's re-

Vyo. 381, 94 P 459. Since a defendant cannot

is one punishable either by fine or imprison-

be subject to trial at the same time upon

ment in the penitentiary, or both by fine and

two informations or indictments charging

Imprisonment in penitentiary, then prosecu-

the same offense. Id.

65. Two informations charging murder of

01. People v. Rosenberg, 112 NYS 816. The

same man at same time and place charge

barden is upon accused to show that such

same offense, though one charges two persons jointly with the crime, one being

application is readassely. Id. While such

gendant in first information. Keye V. Car-

creation of the judicial officer to whom it is

bon County Dist. Ct. 16 Wyo. 881, 94 P 459.

56. Papers were treated as properly filed,

be granted unless it is made to appear (1)

and neglect to place file mark on was oversight. Rice v. State \[Tex. Cr. App.\] 112

cated questions of fact, rendering a jury trial

SWY 299.

67. Felony can be prosecuted only upon

tions of law; or (3) that a property right is

dictment. People v. Craig, 112 NYS 781.

Involved; or (4) that a decision may be far-

Infamous offenses can only be tried, in the

feedingal courts, upon indictment. Charge of

ent which will regulate a matter of general

violation of U. B. Rev. St. 6 6440 is an

immets; or (5) that the case is of exceptional

famous offense. United States v. Wells, 163

character, and that defendant cannot, for

F 313. A. statute authoring prosecution of

some special reason, have a fair trial in the

the offense of keeping a disorderly house

court of special sessions. Id. Charge

otherwise than upon an indictment by the

grand jury is invalid on constitutional

New York Charter, Laws 1901, p. 137, c. 466,

grounds. Atlantic City v. Rollins \[N. J. Law\] 69 A 964. Under Rhode Island statutes a violation of act regulating practice of

issued, held not to involve any question or

destistry must be prosecuted by indictment,

and not by complaint and warrant. State v. Rosenkrans, 28 R. L. 474, 68 A 309. Failure

with misdemeanor in violating Pen. Code, 1

of railroad company to build station at certain

tain point property prosecuted by indictment

volve a matter of public interest so as to

under Laws 1905, p. 265. Louisiana & A. R.

Co, v. State, 85 A. Erk, 12, 105 SWY 69.

68. Const. art., 2, 8 23, authorizes legislation

ture to change, regulate, or abolish grand

VIIIs, 112 NYS 868. Under Laws 1897, p. 600,

jury system; hence legislature has power to

committing trials of certain misdemeanors

provide for prosecution by indictment or

formation. Saleem v. People, 41 Colo. 817, 92 P

power of certain judges to certify that it is

731. A prosecution by information for a delony

reasonable that a charge should be prose-

is not repugnant to the fifth amendment to

cuted by indictment, one charged with viol-

the federal constitution. Mo. Const. art. 2, 1 12,

lating Sabbath laws was entitled to such

providing for prosecution by indictment or

certificate. People v. Butts, 121 App. Div.

information, is valid. Ex parte McLaughlin,

210 Mo. 657, 109 SWY 626. Proceeduting

40. In the federal courts the grand jury

torsny may file information when grand jury

may return an indictment based on evidence

are not in actual session, having adjoured.

brought before them though there has been

Ball Ann. Codes & St. 1 6802. State v.

no preliminary hearing before a commission-

Strange \[Wash.\] 97 P 232. In Illinois, under

cer. United States v. Kerr, 159 F 1 turn, the offense charged in the bill must be identical with that, the essentials of which appear in the constable's return.\[61\] The grand jury must be legally constituted.\[62\] Irregularities in the drawing of the grand jury \[63\] or in proceedings before it \[64\] which do not prejudicially affect the rights of the accused person are immaterial, but a violation of accused's constitutional rights invalidates the indictment.\[65\] An indictment is not found until it is presented to the court.\[66\] The indictment should show that it was returned by a grand jury \[67\] and that the grand jurors were properly qualified, though in the latter respect the bill may be aided by the caption \[67\] or by statements in the record.\[68\] An indictment otherwise legally returned will not be set aside solely because returned on a legal holiday.\[69\] Holdings as to signature \[61\] and endorsements \[62\] are given in the note.
InformationSee 10 C. L. 88--A preliminary hearing before and commitment by a magistrate 73 is sometimes prerequisite to the filing of a valid information,74 and usually there must be a proper complaint affidavit or other accusation,75 and the information and preliminary complaint must correspond and charge the same offense,78 or at least be based upon the same transaction.77 An affidavit on which an information is based is sufficient if it charges the elements of the offense.78 An information can be exhibited only by the authorized public prosecutor.79 In the notes are holdings relating to signature,80 verification,81 endorsement of names of witnesses,82 and filing 88 of the information.

bill. Marion Phillips, Foreman of Grand \[rape. Harris v. State \[Neb.\] 114 NVP 168. Jury Filed Dec. 5th, 1906. Josiah M. Harrell, \[Where the affidavit on which an information Clerk." Held sufficient to show indictment is based conforms to statutory requirements, returned by grand jury into proper court. Stato v. Campbell, 210 Mo. 202, 109 SWV 706. Ground that the person who verified it had \[the\] no personal knowledge of the commission tense under any statute, it is immaterial that the wrong statute is endorsed on the indictment. Wechsler v. U. S. \[C. C. A.\] 158 F579.

76. Variance between amfdavi charging the grand jury or who are known to the state's attorney when the information is filed must be endorsed on the indictment or in-formation. Rev. Code Cr. Proc. 518 2016, 510. That amfdavi on which accusation is \[262. State v. Matejousky \[S. D.\] 115 NVP 96. Failure to endorse the names of such witness is granted for settling aside the indictment or information. Id. Failure to endorse names of witnesses on indictment does not invalidate it nor prevent the witnesses whose names are omitted from testifying. Dowell v. Com., 82 Ky. L. R. 1344, 108 SVW 847. Failure to endorse names of all witnesses on information not ground or quash. al where accused knew they had been summored and prosecuting attorney testified that he indorsed the names of all he knew about at the time. State v. Jeffries, 210 Mo. 302, 109 SWV 614. Names of witnesses may be permitted to be endorsed pending a motion to quash. Id.

01. See, also, Arrest and Binding Over, 11 C. L. 78.

01. In Utah an information cannot be filed until after examination and commitment by a magistrate, unless such examination be waived. Where one information was filed after examination and commitment, second charging separate offense, could not be filed after first was quashed, without new examination. State v. Jensen \[Utah\] 96 F 1085. Information was filed and bench warrant was then issued and accused arrested. Fro-cedure held not to violate his continuitational rights. State v. Ju Num \[Or.\] 97 F 96. That person jointly accused with defendant was fugitive from justice and had never been granted preliminary hearing held not ground for quash of information against defendant. State v. Jeffries, 210 Mo. 302, 109 SWV 614. Under Pen. Code, & 809, an information cannot be legally filed until the committing magistrate has made or endorsed on the complaint an order holding accused to answer. People v. Siefefens, 153 Cal. 387, 95 F 863.

01. Complaint is jurisdictional prerequisite of information. Roes v. State \[Tex. Cr. App.\] 30 Tex. Ct. Rep. 528, 106 SWV 340. Complaint charging an offense may be sworn to before county judge. Step v. State, & 63 Tex. Cr. App. 158, 109 SWV 1093. Wifre may sign and file compliant against husband for * \[12\] Cur. Law. INDICMENT AND PROSECTION SS 4C. 10 C. L. #7

\_Presentment.\_See 10 C. L. #7

\_Affidavits.\_See 10 C. L. #8

(SS 4) \_C. Requisites and sufficiency of the accusation. General rules.\_See 10 C. L. #8--The pleading cannot be aided by inference or presumption, since presumptions are in favor of accused, #4 but it is held that reasonable implications from facts clearly alleged may be properly made in determining the true meaning of the accusation. #5

The descriptive part of an indictment is to be construed with relation to the charging part. #6 The state in its pleading need not anticipate or negative any defense of accused, #7 and the taking of necessary steps preliminary to information need not be alleged. #8 Matters of which courts take judicial notice need not be set out. #9

\_Certainity.\_See 10 C. L. #7--Every essential element of the crime sought to be charged must be alleged #9 directly and positively, and not merely by way of recital or as a conclusion of the pleader, #1 and with sufficient clearness, particularity and certainty, #2 as to inform accused of the nature and character of the charge against tion thereof on them, the court may order the indorsement to be made nunc pro tunc. AEMdavit and information. Id. In Nebraska an information filed when the court is not in assessing is void. Error not waived by denumstance, aplication that unmurer, plee of not guilty and trial. Writ of habeas corpus granted after conviction and sentence of imprisonment. Cubbison v. Beemer \[Neb.\] 118 NW 861.

84. Indictment must show commission of crime; cannot be aided by presumptions, the presumption being in favor of innocence. People v. Schmitz \[CAL.\] 94 P 419. Presumptions against accused cannot be indugled in considering sufficiency of indictment. State v. Metsker, 169 Ind. 55, 83 NE 241. Any doubt as to what an indictment charges to be resolved in favor of the accused. Indictment for conspiracy to commit subordination of party under stone and timber act held not to charge offense in connection with final proofs. Williamson v. U. S., 207 U. S. 425, 52 Law. Ed. 278.

01. United States v. Barber, 157 F 88.

01. Commonwealth v. White, 83 Ky. L. R. 10, 198 SW 324.

01. State v. Bridgewater \[Ind.\] 85 NE 715.

01. The fact that defendant has been given a preliminary examination need not, in Missour, be alleged in the information. State v. McKee, 211 Mo. 138, 110 SW 729.

01. Regulations made by an executive department, pursuant to authority delegated by congress, have the force of law, and courts take judicial notice of their existence and provisions. Rules violated need not be set out in indictment either in terms or by number. United States v. Mooday, 147 F 269.

01. Smith v. U. S. \[C. C. A.\] 157 F 721.

Nothing will be taken by intendment or implication. State v. Hall, 130 Mo. App. 170, 108 SW 1077. Indictment is insufficient if all allegations, taken as true, fail to charge an offense. Id. Indictment insufficient to charge criminal negligence in operation of railroad train, resulting in death of certain named persons. State v. MacDonald \[Minn.\] 117 NW 482.

91. No material matter should be introduced wholly by way of argument, conclusion, or recital. Hewitt v. State \[Ind.\] 86

01. Charge must specifically describe offense; mere conclusions of law insufficient.

01. Charge must specify describe offense; mere conclusions of law insufficient.

01. Bridgewater \[Ind.\] 85 NE 715. Mo-nopoly in coal not properly charged where #7 of Penal Code was violated by an act

### 12 INDICMENT AND PROSECTION SS 4C. 12 Cur. Law.

him," enable him properly to prepare his defense," and to plead the result, whether conviction or acquittal, as his protection against another prosecution for the same offense." Only the ultimate facts need, however, be alleged." Introductory matter, or matter of inducement, need not be charged directly or in detail but may be alleged in general terms." The entire indictment is to be considered in determining whether the offense is fully stated."

An indictment in the form prescribed by statue," or in the language of the statute creating and defining the offense,1 or in language of equivalent meaning and import,2 is sufficient, if the statute sets forth all the essential elements of the crime with sufficient particularity.3 But, where the statute defines a crime in generic terms

endangering public peace, and openly out-

parjury charge. People v. Tatum, 112 NTS raging public decency, held sufficient in ab-

36. The use of the participle "being" l be sence of any objection. People v. Keeper of

archive in setting out matter of induce-

.Eric County Penitentary, 109 NTS 621.

.Eric health imsuliement: Indistment held proper-

facts. Hewitt v. State \[Ind.\] 88 NE 63.

ly quashed for uncertainty. Wilkinson v.

.Peeople, 226 Ill. 135, 80 NE 699. Information

.Peeople v. Tatum, 112 NTS held insuliement to charge a crime by viola-

18 Cur. Law. INDICMENT AND PROSECTION SS 4C.

only, an indictment in the language of the statute alone is insufficient.\* In such case, additional facts must be alleged so as to inform accused with certainty as to the nature of the charge.\* In some states it is held that the information or indictment should name the crime and state the acts constituting it,\* and that a variance between the designation and the facts pleaded is fatal;' in others it is held that, where the facts set out clearly show an offense defined by statute, it is immaterial that the information designates the offense by another name.\*

Where, by statute, the common-law distinction between principals and accessories has been abolished, one who at common law would be an accessory before the fact may be charged directly in the indictment with the commission of the offense,\* and on his trial evidence may be received to show that he procured the crime to be committed.\[10\] or he may be charged as principal by setting out the facts which at common law would constitute him such accessory.\[11\] An indictment charging him directly with the commission of the offense is not objectionable on the ground that it does not sufficiently inform him of the nature and cause of the accusation.\[12\] But where the common-law distinction still exists, one charged as principal cannot be convicted upon evidence showing merely that he was an accessory.\[18\]

_Bad spelling and ungrammatical construction_ See 10 C. L. 71 will not alone vitiate an accusation.\[14\]

scribed in the statute is charged in the im-

ments of offense (validity and existence of dictment, it is sufficent. State v. Leassman,

former marriage). Bryan v. State \[Tex. Cr. 187 Iowa, 191, 114 NPV 1082. If the act or

Appl. 111 SWV 744. Indictment under KSY. St.

acts constituting the offense are clearly defined by statute, it is sufficient to charge the

1903, 1222, relating to sending of threaten-

mme in the language of the statute, AHM-

sufficient. Letters sent should have been set

davit charging entering gambling house,

out. Commonwealth v. Patrick, 33 KSY. L. R.

suffient as against motion to quash. State

$43, 105 SWV 891. Indictment in language of

v. Bridgewater \[Ind.\] 85 NB 715. Indictment for kidnapping, following language

ent at certain time and place "sold indictract-

of statute which states essentials of the

ing liquor in less quantity than three gal-

orme, held sufficient. State v. Harrison, 145

lons," held insufficient. State v. Gibbs, 129

N. C. 408, 59 SB 867. Indictment against

bankrupt for concealing from truste prop-

status is sufficient only when statute is

erty of estate is sufficient if it follows laan-

complete in itself, and when the acts set

guage of statute (30 U. B. Stat. 554). United

out in statute have been done or performed. States v. Comstock, 161 F 444. Compilation

In language of Gen. Laws, 1386, 74, 5,

In addition of naguireda and gecribe weapon.

as amended by Pub. Lawe 1901, c. 925, prohib-

Commonwealth v. White, 33 Ky. L. R. 70, 109

iting riding or driving "faster than a common

SWV 324. Amdavi charging the adding of an

traveling pace" in certain towns or parts

escape, substantially in the language of the

thereof, charges the offense with sufficient

statute but also stating the facts out of

particularly. State v. Smith \[R.\] 8 A 824.

which the offense arose and the acts done

1901. Indictment in language of Gen. Code,

by accceed, held sufficient. State v. Sutton

$ 248, making assault by convict, likely to

produce great bodily injury punishable by

&. People v. Schlessel, 112 NYS 45. An

death, is sufficient; need not allege that sent

detment must charge or nams a crime and

tence was by court of competent jurisdiction.

must also allege facts showing the means

People v. Finley, 153 Cal. 59, 4 P 248.

4. Indictment under Burns' Ann. St. 1901.

IEEE committee. People v. Foster, 112 NYS

False claims to county commissioners must

706.

allego particulars of offense. State v. Meta-

ker, 169 Ind. 556, 83 NE 241.

S. It is necessary in some way to individu-

ualize the offense charged, though statutory

conform to Code Cr. Proc. 1 323, subd. 2.

language is used. State v. Mitchell \[Iowa\]

118 NPV 808. Where a statute upon which

A prosecution is based defense the offense in

facts showed crime under Pan. Code, $ 48.

generic terms only, the pleader must resort

to particular; mere language of statute in

sufficient. State v. Bridgewater \[Ind.\] 85 NB

715. General language of statute may be

ued, but must be accompanied by details

sufficient to inform accused of the nature of

the charge and the facts which he will be

obliged to meet on the trial,

Weston v. Terr.

\[Oxl. Cr. App.\] 98 P 380. Ind _Surplusage._ See 10 C. L. 71.--Unnecessary words may be rejected as surplusage and are harmless so long as they do not negative the offense meant to be charged.\[15\]

_Venue._ See 10 C. L. 72.--It must appear that the crime charged was committed within the jurisdiction of the court.\[16\] Reference to the caption may be had to aid allegations of the pleading,\[17\] and in Missouri, venue may be shown in the margin and need not be alleged in the body of the indictment.\[18\] An indictment in a state court need not negative federal jurisdiction.\[19\]

_Intent or knowledge._\[20\]--Alleging a particular intent in the language of the statute is usually sufficient.\[21\] Where the offense is one prohibited out of regard for the public health or safety the names of specific persons, and an intent to injure them, need not be alleged.\[22\] Where the intent constitutes the aggravation material to the punishment prescribed, the facts need not be alleged with the same particularity as where the statute prohibits some particular act.\[23\] Where the indictment alleges that the offense charged was against the form of the statute, it need not allege that the acts were unlawful or unlawfully done, unless this is an element of the statutory definition,\[24\] nor is an allegation that the act was feloniously done necessary in the case of a felony, unless required by the statute,\[25\] but, in the case of common-law felonies, the term "felonious" or "felonious intent" must be used.\[26\]

_Time_ See 10 C. L. 72\_ and place.--Time need not be alleged unless it is of the essence of the offense,\[27\] except in so far as it may be necessary to avoid prescription,\[28\]

worth v. State \[Ala.\] 46 S 618. Bud grammar 18. Under Rev. St. 1899, $ 2527, county mar wili not viliate an indictment, if two constructeds are possible, that will be accepted but he laid in body of indictment. State capped which will unbold the proceedings. Strobhar v. State \[Fla.\] 47 S 4. 19. An indictment in a state court against an Indian for the killing of another Indian word v. VOReds without which information is sufficient may be treated as surplusage, and discarded on an Indian reservation. State v. regarded. State v. McGowan, $ 68 Mont. 422, $ 20. See 10 C. L. 72. Also topics relating to selling, procuring, and consenting, to setting fire to property which was insured. VOReds "aiding," procuring, and consenting" could be rejected as surplusage and indictment would then charge substantive crime of "counseling" setting the fire under crimes Act, $ 126. State v. Brand \[N. J. Law\] 69 A 1092. Where an indictment contains facts sufficient to v. State \[Ind.\] 84 NE 884. Whatand a denurrer, other defective allegations may be disregarded as surplusage. Badley v. Com. \[Key.\] 113 SV 140. Surplusage in Indictment is not ground for aush-ing It. United States v. Moody, 164 F 269. 16. Where accusation of emnelzement men-tioned county, and stated offense was, "then and there," committed, venue was sufficiently shown. People v. Amer \[Cal. Appl.\] 86 F 401. Information held to show venue of emnelzement with required certainty. People v. McGanskill v. State \[Fla.\] 45 S 843. Where O'BrIran \[Cal. Appl.\] 97 P 679. Venue of latency sufficiently alleged. McGinnia v. State \[Wy.o\] 96 P 525. Act June 6, 1900, c. 786, $ 4, establishing district court for district of Alaska, and dividing such district in- to three divisions, gives court in each divl-sion jurisdiction throughout district. Hence, indictment is not defective for falling to state that offense was committed in division where indictment was returned. Griggs v. U. S. \[C. C. A.\] 158 F 876. 17. Where caption of Information gave county of prosecution, and charging part of information alleged commission of offense in "said county of --," the information was held to show venue of crime sufflectionly. People v. Thompson \[Cal. Appl.\] 85 P 884.

nor is an allegation of the exact place usually necessary if commission within the court's jurisdiction appears.\[29\] Where the court may look into prior proceedings and ascertain when the statute of limitations was arrested, facts relied on to avoid the bar of the statute need not be alleged.\[40\] It is not necessary that an indictment, under a statute which has been repealed or amended since the offense was committed, allege in express terms that the crime charged was committed in violation of said statute while it was in force. It is sufficient if the time of the commission of the offense was prior to the change in the law.\[21\] Time and place need be directly alleged but once.\[82\]

\_Designation of persons.\[See 10 C. L. 72--In designating accused, the use of his initials \[as\] and of a well known abbreviation of his Christian name \[54\] have been held sufficient. Where his name is correctly stated several times, an error in one place is immaterial.\[85\] Where other persons must be designated, failure to set out their names or to allege that their names are unknown is fatal error.\[28\]\_Setting forth written or printed matter.\[37--Indictment for certifying bank check when there were no funds in the bank, to cover the check, need not set out words of certification.\[88\]\_Description and ownership of property.\[89--In Nebraska an allegation of ownership in any one of several owners is sufficient.\[40\]\_La 522, 48 S 614. Exact time need not be al-leged in charge of rape on female under age of consent, time not being an essential element. People v. Sheffield \[Cal. App.\] 98 P 67. NOTE: Charging an offense at an imposed-able date is a fatal defect in the absence of statute abrogating the common law, whether the date is in the future (State v. Sestron, 10 N. C. \[Hawks\] 184, 14 Am. Dec. 584; Dickerson v. State, 20 Fla. 800; State v. Licht, 33 Vt. 67; State v. Ray, Rice L. \[8 C.\] 33 Am. Dec. 90; Markley v. State, 10 Mo. 291) or at a date too far past (State v. O'Donnell, 81 Me. 271, 17 A 66; Serpentine v. State, 1 How \[Mis.\] 556), although there are two decli-sions to the contrary (Conner v. State, 25 Ga. 515, 71 Am. Dec. 184; State v. Pierre, 39 La. Ann. 915, 3 S 60). Under the Missouri statute specifically remedying such defects, intentions placing the date of the offense on a future day have been sustained (State v. Burnett, 81 Mo. 121; State v. McDaniel, 94 Mo. 301, 7 SWP 364; State v. Crawford, 99 Mo. 74, 12 S W 354), likewise under a statute requiring the appellate tribunal to disregard technical errors (State v. Brooks, 85 Iowa, 366, 52 NWP 240). Under Tennessee Code, 8 5124, requiring the offense to be charged to have been committed previous to the finding of the indltemment, it is held that an objection to the indictment upon that ground comes too late after verdict, although under a similar provision of the Texas code a contrary result is reached (York v. State, 3 Tex. App. 15; Lee v. State, 22 Tex. App. 547, 8 SWP 89; McJuntkins v. State, 37 Tex. Cr. Rep. 117, 88 SYP 994; Hall v. State (Tex. Cr. App.) 38 SVP 996), when the mistake was obviously clerical (Kroble v. State, 5 Tex. App. 347); and in \[Massachusetts, in spite of a statute requiring all objections to process to be raised before judgment, it is held that an indltemment charging a future offense charges no offense and the objection may be raised for the first time on appeal (Commonwealth v. Doyle, 110 Mass. 103).--From 2 L. R. A. (N. S.) 251. 28. Where time is not of the essence of the offense, it need not be stated in the indltemment except so far as may be necessary to
Indiotment and prosecution SS 4C. 12 Cur. Law.

Description of moneySee 10 C. L. 14.In Missouri this matter is provided for by statute.\[41\]

DuplicitySee 15 C. L. 14.-An information or indictment may not in a single count charge more than one offense,\[43\] but the state may, in separate counts, charge the same offense in various ways in order to meet the proof.\[43\] If but one crime is charged, it is immaterial that the facts alleged incidentally, show the commission of another crime.\[44\] Where a statute defining a crime enumerates several acts, either of which or all of which constitute the offense, all or any of such acts may be charged conjunctively without rendering the accusation double.\[45\] But an indictment alleging several of such acts disjunctively is bad.\[45\] When a statute makes either of two or more distinct acts connected with the same general offense and subject to the same measure and kind of punishment indictable as separate and distinct crimes when committed by different persons, or at different times, they may, when com
mitted by the same person at the same time, be coupled in one count as constituting on offense.\[47\]

\_Exceptions and provisos.\_See 10 C. L. 18.--Exceptions or provisos which qualify or describe or form a part of the definition of the offense must be negatively.\[48\] Those which form no part of the definition or description of the offense need not be negatively,\[49\] but are matters of defense.\[50\] This rule is applied by the majority of the courts regardless of whether the proviso or exception is in the enacting clause or a subsequent section \[51\] though some courts seem to consider the location of the exception or proviso as decisive.\[52\] The negation of an exception need not be in the statutory language.\[58\] It is sufficient if the indictment as a whole shows that accused does not belong in any excepted class.\[54\] Where an allegation covering the affirmative part of a statute involves a negation of an exception contained in the statute, no further negation thereof is necessary.\[56\]

\_Conclusion.--\_The indictment or information must conclude "against the peace and dignity of the state,"\[58\] though such conclusion need not be repeated in each count." Where the offense is indictable at common law, the conclusion in the indictment, "contrary to the form of the statute," may be treated as surplusage and wholly disregarded.\[58\]

(SS 4) \_D. Issues, proof and variance.\_See 10 C. L. 17.--Every essential averment must be proved substantially as laid,\[59\] but unnecessary allegations need not be

47. Indictment for certifying check with-

clause, it must be negatively If it is so inter-

out having funds to cover it held not double,

woven with the clause defining the offense

United States v. Heinze, 161 p 425.

48. Conviction of performing worldly work

be one of the essential ingredients of the

on Sunday reversed where neither complaint

criminal act. Applied to Drugs Act, Rev. St.

nor record negatively exceptions contained

in the statute nor showed that worldly busi-

70, 107 SWV 1012. Proviso or exception need

ness done was not works of necessity nor

be negatively only when it is incorporated in

charity, Wright v. State \[Del.\] 69 A 1003.

49. Yaxel v. State \[Ind.\] 84 NE 972. Proviso in Rev. St. 4864-25. unlawfully keeping

place where intoxicating liquors are kept

for sale, is not part of description of offense,

and need not be negatively in indictment.

Hamilton v. State, 78 Ohio St. 76, 84 NE 601.

Where afflawit charging sale of wheat mid-

dlings without labels are required by law neg-

atived all proviso contained in defining

leagues. Rule applied to intoxicating liq-

clause, it was sufficient though it did not

not law. Yaxel v. State \[Ind.\] 84 NE 972.

negative an exception stated in a subsequent

53, 54. Adams Exp. Co. v. Comm. 83 Ky. L.

independent section. State v. Weller \[Ind.\] 85 NE 761.

55. Holmes v. State \[Neph.\] 118 NPV 99.

01. Const. art. 6, $ 38, requires informa-

only matter of excuse, It need not be nega-

itto conclude "against the peace and

lived, but is defensive matter. Proviso in

dental act need not be negatively. Ex parte

Hornef \[Cal.\] 97 P 891. If a proviso comes

209 Mo. 408, 107 SWV 1071. Indictment con

in a separate clause of the statute, that

cluding "against the peace and dignity of

the offense charged is within the proviso is

state" held not to comply with constitutional

matter of defense. Hyde v. State \[Ala.\] 46 S 48.

requirement that all indictments must con

48. Indictment for conspiracy to subject

clude "Against the peace and dignity of the

person to Involuntary exvitude is not bad

state." Defect fatal. State v. Campbell, 210

for falling to negative exception that such

ho. 202, 109 SWV 706. Indictment for murder

involuntary servitude was a punishment

held inanffelen to support conviction be

for crime. The exception in 13th amendment is defensive in character. Smith v. U.

dignity of the state of Alabama" as required

S. I. C. C. A.\] 157 F 721. Indictment for prac-

diting medicine without authority need not

show that accused was not within class

lowed to practice without authority (Laws

1901, c. 926, $ 3). Burden is on accused to

show that defense. State v. Heffernan, 28 R.

I. 477, 68 A 864.

51. Whether a statutory exception or proviso is contained in the clause of the statute

creating the offense or in a subsequent

13 Curr. L.-- 2.

proved,"*0 and an immaterial variance may be disregarded."1 Proof of a crime other than that charged will not warrant conviction,"22 but where an offense is charged in different ways in separate counts, proof sufficient to sustain one good count is enough,"* and a proper conviction on one count will not be set aside because of an unwarranted conviction of another count."4 Under statutes abolishing the common-law distinctions between principles and accessories, one indicted as principal may be convicted on proof that he procured the commission of the crime "65 or was present, aiding, counseling or assisting in its perpetuation,"6 though no other was jointly indicted with him,"7 and one indicted as an accessory may be convicted on proof showing him to be a principal."86 But where the common-law rule still exists, this rule does not prevail."9 Where persons are charged jointly with the commission of a crime,

for forgery and proof. People v. Johnson \[Cal. App.\] 93 P 1042. Variance between charge of larceny of diamond shirt stud and proof of larceny of diamond ring is fatal.

Proof of ownership of injured property held State v. Plant, 209 Mo. 307, 107 SWV 1076.

not material. Pate v. State \[Tex. Cr. App.\] 113 SWV 757. No variance where charge was not being those charged. Porter v. State \[Tex. Cr. App.\] 107 SWV 817. Proof held not to conform to allegations of indicment for perjury. Reversal. Belvins v. State, 85 Ark. 195, 107 SWV 393. Charge that corner extorted money for services in interest not sustained by proof that no inquest was held and money was paid in order that none might be held. State v. Wain-right \[Wash.\] 97 P 51. Where information stated specifically the manner in which accused committee of assisting in pool selling the proof was limited to the facts charged, though an accustation in the statutory language would have been suffl-client. State v. Scott, 80 Conn. 317, 68 A 253. Under indicment for burglary in the daytime, a charge that defendant could not be convicted if evidence showed beyond a reasonable doubt that the burglary was committed in the nighttime, but could be convicted if evidence showed commission of the act, but did not show beyond a reasonable doubt whether it was done in the daytime or nighttime, was sufficiently favorable to accused. Egan v. State, 136 WIs. 114, 116 NWV 755. A description of the place is material and must be proved according to the averment thereof. Where indicment charged keeping room for gaming purposes at No. 235 E. Twenty Second St., Chicago, proof of keeping such room at corner of Dearborn and Twenty Second streets in same city is insufficient. People v. Lewis, 140 Ill. App. 433.

60. State need only prove so much of matter alleged as is necessary to establish crime charged. State v. Bresee, 157 Towp, 673, 114 NWV 45. In criminal as in civil cases, only substance of charge need be proved. Tullis v. Shaw, 169 Ind. 662, 83 NE 876.

01. Under the modern rule, declared by statute in many states, a variance is not to be regarded as material unless it is such that it might prejudice or mislead the defense or might expose the accused to the danger of twice being put in jeopardy for the same offense. State v. Turnbaugh \[Ohio\] 85 NE 1060. Variance as to description of burglarized building held immaterial under Rev. St. $ 7216. Id. In prosecution for conspiracy to commit assault, proof of assault upon one is not variance from indicment charging conspiracy to assault number of proof of a conspiracy to commit it is admissible without an express allegation of such conspiracy,\[70\] though where conspiracy is the real crime or offense, it must be expressly alleged.\[71\]

\_Names.\_See 10 C. L. 18--Names of third persons or persons injured must be proved as laid\[72\] unless the allegation is immaterial.\[73\] The rule of idem sonans applies,\[74\] however, and an immaterial error will be disregarded.\[73\] Where a defendant is indicted under two names, alleged by an alias dictus, it is necessary only that state should show that he is commonly known by either of them.\[74\]

\_Time_See 10 C. L. 19 need be proved as laid only when it is an essential element of the crime.\[71\] The state is not restricted to proof of the date alleged. Proof of commission of the crime charged at any time within the limitation period, prior to the indictment, is sufficient.\[73\] But the allegation that prescription has been interrupted by the filing of an indictment is affirmative in character and must be proved.\[74\]

(SS 4) \_E. Defects, defenses and objections.\_See 10 C. L. 10--Formal or technical errors may be cured by verdict\[80\] or curative statute\[81\] and should be disregarded,\[82\] but fundamental defects cannot be cured or waived.\[83\] A motion to quash or plea in abatement is the proper remedy to raise defects not appearing on the face of the pleading or record,\[84\] such as irregularities prior to the finding of the indictment\[83\]

70,71. Cook v. State, 169 Ind. 430, 82 NE

only, which does not tend to prejudice accused, objections not affecting the merits will be overruled. Jones v. U. S. \[C. C. A.\]

1047.

0001. Vhere indictment alleged sale of liquor to "C. Wiltiti" and proof showed sale to

162 F 417. Objection that indictment did not

"C. Willis," variance was held fatal.

show on its face that grand jury came from Carnes v. State, 63 Tex. Crp. App. 490, 110 SW

165.

001. Variance as to name of owner of solit.

001. Morris v. U. S. \[C. C. A.\] 161 F 672.

en property immaterial. Territory v. Cald-

82. Failure to allegate vene directly not well \[N. M.\] 98 P 167. In prosecution for

prejudicial, reference to caption making it

embezzlement of check, variance between alien.

plain. People v. Thompson \[C.\]. App. 95

legation and proof of names of parties to

836. Formal effects in indictment under check held immaterial. State v. Laechelt

\[N. D.\] 118 NWW 240.

94. Indictment alleged deceased's name as

"Prederico Teraero" and proof was "Fedicro

Tersero." Spanish pronunciation same. Vax

cation of a grand jurv unless accused

finance not fatal. Hernandez v. State, 63 Tex. Crp. App. 468, 110 SW 758. In prosecution

109.
001.
001.

or filing of the information." Defects apparent on the face of the indictment or information should be raised by demurrer " or motion to quash." Defects of this nature not raised before pleading to the merits " by proper and timely objection are waived " and cannot subsequently be raised by objection to the introduction of evidence " or by motion in arrest of judgment." Matters of defense cannot be raised

empaneling them must be made by a motion ment, cannot be taken advantage of on motion or by plea in abatement before for new trial when not urged at or pleading in bar. Pentier v. State, 107 Md. for the trial. State v. McGee, 80 Conn. 614, 384, 68 A 1059. Motion to quash at time 69 A 1059. After a challenge to the suf-of-artragment and before plea, supported " deficiency of an indictment by motion to quash, by afflavits, is proper way to raise objection a plea of mismomer is too late and may be that grand jury was not properly constitted. " State v. Parametore, 146 N. C. 604, 60 SE 502. Where a sheriff fails to summon a a subsequent demurrer. Id. Objection that grand jury impartially as required by his information for robbery charged both vio-out of office, the court may, upon motion, lence and putting in fear waived by failure to demur or make motion to quash. State jury. As where sheriff was head of a politit. v. Calvert, 209 Mo. 280, 107 SW 1078. Lack. cal faction and summoned grand jurors from of certainty and precision in information be-his own faction only, who indicated members of opposite faction for political of-fence. " People V. Keeper of Erle County Penzes. State v. McCarthy \[N. J. Law\] 69 A 1075. "

**86.** The objection that accused was not 'seality' is a waived of legally committed by a magistrafter before objection that charge does not state an the information was filed is waived by "fallure to urge it by motion to set informa-ennumerated, such objection not being urged "side. People v. Morley \[Cal. App.\] 97 P 84. "

**87.** Indictment or information is demur-fable if more than one offense is charged. "

be called to testify against the others be-State v. Mudie \[S. D.\] 115 NUV 107. "

**88.** A motion to quash is directed to de-fence by "the head not testify or "fects appearing on the face of the pleading. "

The immediate himself, and does not in fact "State v. Conega, 121 La. 522, 46 S 614. Cr. "

Code 1902, $ 57, requires defect apparent on "not move to quash indictment on ground of face of indictment to be raised by demurrer " or motion to quash before jury is sworn."

State v. Firmatura, 121 La. 676, 46 S 691. "

Request to charge that certain count was fatically defective because of lack of averments "Ground of demurrer" cannot be subsequently unavailability. State v. Madox \[S. C.\] 61 SE 964. "

**89.** Motion to quash too late, coming after "plea of not guilty. State v. Banner \[N. C.\]

cannot be tested by an objection to the "fiction" of evidence after the first witness-fancy had no power to file information, "has been sworn. City of Ft. Scott v. Dunn-fared jury being in session, waived when not raised at time of arragment and piea of "noft guilty. State v. Strange \[Wash\] 97 P 80. "

123. Dissqualification of a grand juror must "to be taken advantage of by plea in abatement, which must precede the plea of not guilty. State v. Heffernan, 23 R. L. 477, 68 A 364. Objection that count of indictment is not sufficiently specific must be raised by demurrer before plea of not guilty. Too late when made in motion for arrest of judgment. Id. "

**90.** Cannot be urged after judgment that names of some of the witnesses were not endorsed on the indictment. State v. Long, 209 Mo. 386, 108 SW 35. Defect of duplicity, if any, waived by failure to demur. State v. Kline \[Or.\] 93 P 237. A motion to quash is the proper procedure to point out the defect of duplicity and indefiniteness in an indictment, and failure to file such a motion and entry of a general plea to the indictment is a waived of those defects. Arnsman v. Ohio, 11 Ohio C. C. (N. S). Failure to "object to formal defects or clerical errors" by demurrer or motion is waived thereof. State v. Means \[S. C.\] 61 SE 988. Formal defects in information, correctible by amend- "man v. Com., 107 Va. 912, 60 SE 99. " by motion to quash." It will be presumed that the indictment was based on legal and sufficient evidence," and illegality or insufficiency of evidence before the grand jury is not ground for motion to quash." In New York inspection of the minutes of the grand jury, in aid of a motion to quash, cannot be had as a matter of right," and does not depend upon whether or not a preliminary examination has been had." The sole purpose for which an inspection of the minutes can be granted is to enable defendant to make a motion to set aside the indictment for irregularities of procedure mentioned in the statute," or where his constitutional rights have been invaded." Application for such inspection must fully disclose a right thereto.1 Where the application is on the ground that defendant's constitutional rights have been invaded in that he has been illegally compelled to be a witness against himself, and that it is thought such evidence may have been used by the grand jury, it is insufficient unless it also shows that the legal evidence received was insufficient to warrant the finding of the indictment, or that illegal evidence was the sole basis for the indictment.2 This must appear in order to give a person indicted a constitutional right to make a motion to dismiss.3 A motion for inspection on constitutional grounds may be made after plea.4 Neither absence from the jurisdiction at the time the investigation was made by the grand jury nor ignorance that an investigation was in progress afford ground for a plea in abatement,5 nor is an omission by the court to call matters to the attention of the grand jury ground for such plea.8 The fact

93. That oath given accused was not that

Indictment founded solely on testimony of prescribed by law is matter of defense in

accompplice, dismissed. Id. Reception of l1-prosecution for perjury. Not ground for set-

legal evidence ground for quashal where

ting aside indictment. People v. Welz, 112

competent evidence was not alone sufficient.

NYS 326. A motion to quash does not raise

Id.

the objection that prosecution is hard by

96. People v. Gassett, 112 XYS 555. Ruling

limitations, no time being alleged and time

of court refusing, on motion to set aside

not being of the essence. State v. Conega,

indictment, to allow character of evidence

121 La. 522, 46 S 614. Where the indictment

head by grand jury to be shown, upheld.

does not show that the prosecution is hard,

Borell v. Amador County Super. Ct. \[Cal.

defendant may plead and prove prescription.

App.\] 96 P 404.

Id.

97. People v. Gassett, 112 XYS 555.

01. People v. Gassett, 112 XYS 555.

01. People v. Gassett, 112 XYS 555.

evidence is not ground for setting indictment

aside. Borello v. Amador County Super. Ct.

\[Cal. App.\] 96 P 404. Motion to quash be

cause of insufficiency of evidence cannot be

thereof should disclose as a reason the want

entertained. Question is for jury. Cox. v. of legal or competent evidence to sustain

State, 3 Ga. App.\] 609, 60 SE 283. On motion to set aside information, sufficiency of

constitutional right of accused. Motion de-

complaint on which accused was arrested is

immaterial. It will be presumed that com-

thing more than general allegations of in-

mitment was based on sufficient evidence,

sufficiency of testimony or irregularity of

and information is based on commitment.

people v. Gregory \[Cal. App.\] 97 P 912. The

to warrant giving defendant full access to

court is not authorized, on motion to set

the people's case (by copy of grand jury

aside an indictment, to review the sufficiency

minutes before trial. People v. Welz, 112

of the evidence on which it was based. People v. Glaser, 112 XYS 321. Motion to dis-

inspection of grand jury minutes, In aid of

mising indictment for insufficiency of evidence

motion to set aside indictment on ground of

before grand jury denied. Indictment for

unauthorized presence of persons in the

willfully destroying highway, under Pen.

grand jury room, held insufficient, not giv-

Code, $ 639. People v. Gillies, 67 Mixse. 568.

ing names of affluent's informants nor source

109 NYS 945. Indictment will not be dis-

mised because illegal evidence was

received before grand jury, if indictment was

4. A motion for leave to inspect the min-

sufficiently supported by competent

vites of the grand jury, in aid of a motion to

dence. People v. White, 111 NYS 1070. Eviv-

ket aside an indictment because based on

dence held insufficient. Id.

Contrin: An indictment may be quashed for

insufficiency of evidence before the grand

jury. People v. Hegeman, 57 Mixse. 295, 107

grounds mentioned in Code Cr. Proc. $ 313,

NYS 261. Indictment may be set aside for

insufficiency of evidence before grand jury.

People v. Acritelli, 67 Mixse. 574, 110 NYS 430.

6. It is duty of court to call attention of

**22**: **INDICMENT AND PROSECTION SS 4E.** 12 Cur. Law.\*\*

**that previous indictments have not been disposed of does not afford ground for the**

**quashing of an indictment.**${}^{\\dagger}$ **Where greater certainty or particularity is desired, the**

**remedy is a motion to make more specific**${}^{ullet}$ **or a motion for a bill of particulars.**${}^{ullet}$

**Whether such motion should be granted is largely discretionary with the trial court.**${}^{ullet}$

**The validity of the indictment cannot be tested by the writ of habeas corpus.**${}^{ullet}$ **A motion to quash should be disposed of before hearing on the merits is had.**${}^{ullet}$

**A demurrer or motion to quash must specify the grounds of objection relied upon**${}^{ullet}$ **by allegations of facts,**${}^{ullet}$ **and, if not shown by the record, the matters set up**

**must be supported by proof**${}^{ullet}$ **or an offer of proof,**${}^{ullet}$ **though a defect in the form of the plea may be waived.**${}^{ullet}$ **A general objection will be overruled if the pleading**

**contains a single good count**${}^{ullet}$ **or is sufficient to charge an offense.**${}^{ullet}$ **But a general**

**grand jury to matters requiring investiga-**

**to investigate the crime charged because**

**tion, and if a mistake were made in that**

**it was not within the local jurisdiction of**

**respect it would not afford ground for a plea**

**in aabatement. State v. Laning, 7 Ohio N. P. (N. S.) 281.**

**shows on its face commission of the crime**

**7. State v. Williams, 6 Ohio N. P. (N. S.) 406.**

**8. Motion to make specific is the remedy**

**when an allegation of time is deemed essent. State v. Conega, 121 La. 522, 46 S 614.**

**8. Mornis v. U. S. \[C. C. A.\] 161 F 672.**

**Not a demurrer, Bailey v. Com. \[Ky.\] 113 SWV**

**140. Revusal 1905, SS 3244, Provides for bill of particulars in case indictment is claimed to be defective in alleging facts. State v. Leaper,**

**146 N. C. 655, 61 SE 585. Rev. Laws, c. 218.**

**8. V provides for bill of particulars. Com.**

**fromwealth v. Bailey, 199 Mass. 683, 85 NE**

**85. Object of bill of particulars is to make**

**charge so definite and specific as to enable**

**defendant to prepare defense. State v. Sea-**

**board Air Line R. Co. \[N. C.\] 62 SE 1088.**

**10. Subject to review for abuse. Bailey v. Com. \[Ey.\] 113 SWV 140. Not error to refuse in prosecution under Mills' Ann. St. & 1332 (obtaining money by confidence game), in-attuctment being in statutory language.**

**Lee v. People, 43 Colo. 199, 95 P 502. Bill of particulars may be ordered in proper cases, but commonwealth need not supply facts within knowledge of other party, and should be allowed reasonable time to supply facts.**

**by. L. R. 92, 110 SWV 253. That bill of particulars obtained at second trial was insufficient was harmless where accused had learned all the state's case in former trial. State v. Seaboard Air Line R. Co. \[N. C.\] 63 SE 1088.**

**11. Ex parteWeb \[Tex. Cr. App.\] 113 SWV**

**12. State v. Conega, 121 La. 522, 46 S 614.**

**13. Mere claim in demurrer that statute on which it was based was unconstitutional held insufficient. State v. Christopher, 212 Mo. 244, 110 SWV 697.**

**14. A demurrer to a plea in abatement to an indictment is properly sustained when the grounds assigned in support of the plea do not consist of certain and distinct allegations of fact, but merely conclusions of law. Thompson v. U. S., 30 App. D. C. 552.**

**15. A plea in abatement or other dilatory plea must be verified or supported by some matter of record or by evidence. Beverett v. State \[Ala.\] 47 S 133.**

**A demurrer on the ground that the grand jury had no authority**

**to investigate the crime charged because**

**it was not within the local jurisdiction of**

**the county must show that it was not within**

**(N. S.) 281.**

**7. State v. Williams, 6 Ohio N. P. (N. S.) 406.**

**8. Motion to make specific is the remedy**

\*\*when an allegation of time is deemed essent. State v. Conega, 121 La. 522,12 Cur. Law. INDICMENT AND PROSECTION SS 4F. 23

demurrer which enumerates each count is in effect a separate demurrer to every count.20

(SS 4) \_F. Joinder, separation and election.\_See 10 C. L. 81.--Separate and distinct offenses cannot be joined in a single count,21 but in some jurisdictions offenses of the same nature may be joined,22 and no election by the state is required in such cases.23 A motion to require an election is the proper remedy, where it is claimed that two offenses are improperly joined,24 or that the evidence discloses more than one offense, only one being charged.25 A motion to require an election, on the latter ground, is premature if made before the evidence discloses more than one offense.26 It should usually be made at the close of the state's case, and it is not error or an abuse of discretion to defer ruling on the motion until such time.27 An election is not required where an indictment charges in different counts one offense committed in different ways,28 all referring to the same transaction,29 nor where all the acts alleged in a single count constitute but one offense.30 A motion to require an election waives

20. State v. Peet, $0 VT. 449, 68 A. 661.

01. See supra, $ 4C, Duplicty. Where a statute defines different offenses, and pro-

that they could not convert on both counts.

vides different penalties, they cannot be

State v. Carragin, 210 Mo. 351, 109 SWV 553.

joined. Murdock v. State, $2 Tex. Cr. App. 262, 20 Tex. Ct. Rep. 588, 106 SWV 374.

state's proof disclosed an attempt to prove

Indictment charged obtaining property by

two offenses under the one charge. War-

assault and putting in fear, and, also, by ex-

ford v. People, 43 Colo. 107, 96 P 556.

hibiting a pistol. Pen. Code 1895, art. 856,

Where information charged but one ass-

makes first punishable by imprisonment

sault, alleging place only in the county, a

and second by death or imprisonment. Two

motion before trial to compel state to elect

offenses could not be joined. Id.

22. In Texas, different misdemeanors may

made two assaults on person named on same

be joined in separate counts in the same

day. Id.

indientent or information and conviction

22. Refusal to require election until after

had for each offense. Roseboro v. State

evidence was 1m, not prejudicial, no evidence

\[Tex. Cr. App.\] 20 Tex. Ct. Rep. 352, 106 SWV 134. A single accusation or indictment may

Inadmissible under charge relied on. State

include, in separate counts, any number of

v. Johns \[Iowa\] 118 NWV 295. Not an abuse

distinct misdemeanars of the same nature.

of discretion to retuse to compel an election

Tosoke v. State \[Ga. App.\] 61 SE 917. Held,

between count for larency and one for re-

proper to join in one information a count

for rape and one for incest, both relating

motion being granted at close of state's case.

to same act, nor was state required to

State v. Roundtree \[S. C.\] 61 SE 1072. Where

elect, as it was entitled to go jury on

complaint contained two counts and court

ether phase of the evidence. State v. Good-

as, 210 Mo. 275, 109 SWV 9. Under the fed-

tion by state until the close of the case,

eral statute, violations of the same statute,

when the state elected to stand on second

constituting crimes or offenses of the same

count, accused was not prejudiced, trial hav-

class, may be joined in one indictment,

when stated in separate counts (Vlolations of

election been made sooner. People v. Bur-

commararine law, 24 Stat. 209, Morris v.

U. S. \[C. C. A.\] 161 F 672): the only limita-

Defandant not entitled to have state elect,

tion being that the offenses ought not to be

at beginning of trial, between two counts

so numerous as to confound the accused

mhls defense or prejudice him. Id.

23. No election required between count for

latency and count for receiving stolen

goods. State v. Roundtree \[S. C.\] 61 SE 1072.

24. Where it is claimed that two cognate

offenses under one statute are charged, rem-

edy is to require an election, not a motion to

quasi. State v. Leepe, 146 N. C. 655, 61 SE 855. Where

indient charged illicit in-

tercourse on a certain day and on various

other days up to a certain date, and on

tion of defense, state elected to stand on

day first charged, jury was not mislead as to

specific charge submitted to them. Leedom

v. State \[Neb.\] 116 NWV 496.

25. Where two distinct felonies are

charged, the court should require the state

to elect at the close of its case (Forgery of

endorsement, and uttering forged instru-

portalal cause under which the state the claim that the state had elected to stand on the offense, evidence of which was first introduced.\[31\] Where an indictment charges an offense and also a previous conviction in aggravation, the prosecuting attorney may waive proof of the prior conviction and try defendant only on the offense charged.\[32\]

(SS 4) \_G. Amendments.\_See 10 C. L. 84--In most jurisdictions, an indictment or information may be amended as to formal or immaterial matters at any time.\[33\] The amended pleading should be verified when the statute so requires.\[34\] In South Carolina, where clerical errors or formal defects in an indictment may be amended at any time before the plea, with the consent of the grand jury.\[35\] Further testimony need be taken only when a further finding of fact is necessary.\[36\]

_Substitution_ is usually provided for in case of loss of papers.\[37\]

(SS 4) \_H. Conviction of lesser degrees and included offenses.\_See 10 C. L. 85--Conviction may be had of any offense included in that charged,\[38\] or any lesser degree of

prosecutes. State v. Dudenberger \[La.\] 47 Sinformation was sufficient without it, since

614.

Rev. St. 189, SS 2481, allows amendments as

31. Warford v. People, 43 Colo, 107, 96 P to form and variance to be so made. State v. Standifer, 209 Mo. 264, 108 SWV 17. Un-

01. Selling liquor illegally. State v. Doyle

der Code 1906, SS 1508, relating to amendments, held proper for court to allow in-

33. Formal amendment of information not

dotrim targeting murder to be amended

prejudicial under Rev. St. 1889, SS 2481, allowing such amendments In court's discretion.

ceased from "Will Johnson" to "Convict No. State v. Sharpless, 212 Mo. 176, 111 SWV 69.

12." Witnesses identifying him by latter

Under Cr. Code Prac. $ 125, an error in name

name, but not being positive as to his real

of accused does not vitiate indictment; order

name. Thurmond v. State \[Miss.\] 47 S 434.

may be entered of record showing true name

of accused. Russellville Home Tel. Co. v.

Stance of the indictment may be allowed at

Com., 33 Ky. L. R. 132, 109 SWV 340. Under

the close of the state's ease to make it con-

Kirby's Dig. $ 2232, where corporation was

com to the proof. Amendments as to dates

called "railway" instead of "railway," the court, on finding the true name, properly

made an order directing further proceedings

to be in correct name, party before the court

being the one indicted. Louisiana & A. R.

Co. v. State, 85 Ark. 12, 106 SWV 960. The

public officer by whom the information is

presented being always present in court,

but may be amended on his application to

any extent which the judge deems to be consistent with the orderly conduct of judicial

business with the public interest and private rights. Bergstrasser v. People, 134 Ill.

App. 609. Amendment to information held

properly allowed. Giroux v. People, 132 Ill.

App. 562. Proper to permit amendment so

that date of filing information and jurato

affladavit correctly appear, People v. Nylin,

139 Ill. App. 500. Amendment to indictment

held merely one of form, properly made

der statute. State v. Gibson, 120 La. 343,

45 B 271. Amendment to affladavit charging

use of profense language properly allowed;

affladavit filed in justice court, and warrant

Issued returnable in courtly criminal court, and amendment being to make affladavit con-

form to warrant. Cobb v. State \[Ala.\] 45 S

223. Filing amended information without

leave of court held not jurisdictional

ror and not prejudicial to rights of accused

who pleaded thereto without objection. McGinnis v. State \[Vyo.\] 86 P 525. Correction

of date in indictment by person who drew

It before preventment in court not ground

of error. Haney v. State, 52 Tex. Cr. App. 645, 107 SWV 858. Inditment may be amend-

ed, after announcement of ready for trial, as to form, but not as to matters of substance.

Wade v. State, 52 Tex. Cr. App., 619, 108 SWV 677. Amendment during trial proper, where

from to the proof. Amendments as to dates

and other matters not affecting the sub-

out, on finding the true name, properly

made an order directing further proceedings

to be in correct name, party before the court

being the one indicted. Louisiana & A. R.

Co. v. State, 85 Ark. 12, 106 SWV 960. The

public officer by whom the information is

presented being always present in court,

but may be amended on his application to

any extent which the judge deems to be consistent with the orderly conduct of judicial

business with the public interest and private rights. Bergstrasser v. People, 134 Ill.

App. 609. Amendment the offense charged," or of an attempt to commit the offense charged," but not of an offense containing elements not included in the offense charged."

SS 5. _Arraignment and plea._," See 10 C. L. "_A plea to the merits_ waives prior informalities" which are properly raised by motion to quash or plea in abatement." Defendant may plead guilty, and such plea authorizes the sentence prescribed by law upon a verdict of guilty." Such plea should be entirely voluntary, with knowledge of consequences, and not induced by fear, misapprehension, persuasion, promises, inadvertence or ignorance." A plea of guilty will be referred to a good count, where some are good and some bad." A plea of guilty admits only facts charged, and if

and entering as illustrative of intent, de-

fedant may be convicted of lareny through

fense or of simple assault. State v. Milis

not guilty of burigary. Fluctuations v. State,

(Del.) 69 A 844. Conviction of assault in eec-

3 Ga. App. 300, 59 SE 848. Though accusa-

and degree, under charge of assault in first

tion and evidence make out case of burigary,

degree, sustained. People v. Randazzo, 112

yet defendant may be convicted of lareny

NYS 104. Under charge of assault with

from the house, if that offense also is shown.

Let to do bodily harm, simple assault may

Lockhart v. State, 3 Ga. App. 480, 60 SE 215.

Le. Neg. N. 646, 817 NW 568. No distinction

"guilty of misdemean" as charged, where

ned be made, in an indictment or in a verdict,

dict, between principals in the first and sec-

proof of which was waived by the state.

and degree, and, where two persons are

State v. Doyle \[W. Va.\] 62 SE 453. Under

Kentucky features under an indictment for

first degree, if evidence shows one to be

murder by stabbing, conviction may be had

for malicious cutting and wounding, or cut-

under such indictment. Jones v. State, 130

ing and wounding in sudden afray, or sudden heat and passion, where proof fails to

40. Conviction of attempt to commit rape

show that death resulted from wound

on infant may be had under indictment for

lifted. Housman v., Com., 33 Ky. L. R. 311,

l10 SWV 236. Where, in prosecution for mal-

sivably disturbing any railway fixtures,

41. Where evidence, under indictment for

evidence does not show malice in carrying

assault with intent to murder, shows no as-

away switch light, malice being required by

sault other than one consummated by a

Ky. St. 1903, $ 807, court may authorize

completed battery, a verdict of simple ass-

viotion, under 1 256, for carrying away

sault is not lawful. Harris v. State, 3 Ga.

property of another. Commonwealth v.

App. 457, 60 SE 127. Under indictment for

Welis, 33 Ky. L. R. 964, 112 SWV 568. Conviction of lareny is warranted under indictment

son, accused cannot be convicted of shooting

ment charging greater offense of breaking

not railroad car and stealing and carrying

App. 289, 20 Tex. Ct. Rep. 408, 106 SWV 236.

away property therefrom (attattues con-

strued). State v. Shapiro \[R. L\] 69 A 340.

(Conviction for offense less than that defined

Laughlin, 210 Mo. 657, 109 SWV 626. Failure

in statute on which prosecution is primarily

based may be sustained if information

lieges existence of all essential facts constituting

such offense, and more liberal

containe of pleading is allowed in such case

delinev to accused a copy of endorsements

than ordinarily. State v. Way, 76 Kan, 928,

93 P 159. Conviction of petit lareny may be

what under indictment for grand lareny,

by placing to merits without objection.

where evidence shows value of property to

be less than $30. State v. Walker \[Mo.

App.\] 113 SWV 221.

sBu. Where evidence submitted authorizes

it. Fields v. State, 2 Ga. App. 41, 58 SE 327. Under indictment for murder in first degree,

defendant may be convicted of any lesser

degree of homiede. Montgomery v. State,

136 Wis. 119, 116 NWV 876; Commonwealth

v. Couch, 32 Ky. L. R. 688, 106 SWV 830. Ver-

dict of manslaughter may be found under

charge of murder. People v. Borrego \[Cal.

Appl.\] 95 P 381. Verdict of manslaughter

may be returned under indictment charging

murder by attempting criminal abortion.

People v. Huntington \[Cal. Appl. 97 P 760.

One indicted for assault with intent to murder

der may be convicted of lesser offense. State

v. Harris, 209 Mo. 423, 108 SWV 2

### 26.1.2.2 INDICITMENT AND PROSECTION $ 5.

The idea of a new concept the court should receive evidence relative to the question raised. \[50\] Evidence may be received in support of a replication to a plea of misnomer. \[60\] Where, before pleading to the indictment, defendant suggests his true name, the court should comply with the suggestion and correct the indictment. \[61\] Accused cannot complain of the overruling of special pleas available to him under the plea of not guilty. \[62\] A de-murrer to a replication to a plea in abatement admits facts stated in the replication. \[63\] The defense that the prosecution is barred by the statute of limitations cannot, in the federal courts, be raised by demurrer. \[64\] If the evidence shows that the prosecution is barred, the defendant is entitled to the benefit of it, though he has not pleaded the statute in bar. \[65\]

_Former jeopardy. \[50\]_ 10 C. L. \[51\]--The plea of former jeopardy should be interposed in the trial court \[50\] at time of arragnignment \[51\] and a ruling obtained. \[52\] If it raises a question of fact, it is triable by jury. \[53\] But the sufficiency of the plea in the first instance is for the court, and if it is specific and raises only a question of law, that question is one for the court alone. \[54\] If frivolous or clearly insufficient, it may be stricken. \[55\] A demurrer to a plea of former jeopardy need not set out facts. \[56\] It admits the truth \[52\] and tests the sufficiency of \[52\] facts alleged in the plea. The plea should show the former accusation, \[52\] an acquittal or conviction thereof, \[53\] and judgment, \[54\] and also facts showing identity of the offense and of the person. \[55\] The plea is not of a criminal nature, but is a collateral civil issue as to former action of the court, and the verdict on such issue, whether for or against defendant, may be set aside by the judge in his discretion or if against the weight of the evidence. \[55\] Defendant is a competent witness on such issue, and he may testify thereon without being compelled to testify on the main issue. \[56\] The two issues can be tried separately. \[57\] To sustain the plea it must appear that defendant was in fact placed in jeopardy \[57\] and that the two offenses are identical in fact and in law, \[58\] and the burden of showing these matters is on the defendant. \[58\]

**59. Louisiana & A. R. Co. v. State, $5 Ark.**

be stricken by the court, and the jury need. \[59\] 12, 105 SW 950.

**60. Plea of misnomer alleged that accus-**

on the plea. Johnson v. State \[Okl. Cr. App.\] cds name was "Hadley Y. B." and not "Hod-\*\*

**59** P 1059. A plea of former acquittal which leg"" as set up in indictment, and state re-\*\*

**59** P 1159. A plea of differing, such as one, filed that second letter of accused" name\*\*

**59** P 1159. A plea of differing, such as one, filed that second letter of accused" name was "a" and not "o," and it was the intent. \[59\] To sustain the plea it must appear that defendant was in fact placed in jeopardy \[57\] and that the two offenses are identical in fact and in law, \[58\] and the burden of showing these matters is on the defendant. \[58\]

\*\*59. Louisiana & A. R. Co. v. State, $5 Ark.

## 6 Preparation for, and matters preliminary to, trial

In the notes are given decisions in regard to such preliminary matters as appointment of counsel for accused, \[88\] the allowance of time to file pleeadings, \[87\] services of venire on accused, \[89\] services of copy of indictment or information, \[89\] and the right to subpoenas for witnesses. \[90\] Under federal laws, if the indictment is not for a capital offense, defendant is not entitled as a matter of right to a list of witnesses or jurors. \[91\] The right and informations for two offenses of same \[50\]. Burden is on accused to show by pre-kind on same day being copies of each other, and witnesses testifying to two transactions, action. Benton v. State, 52 Tex. Cr. App. and conviction is had, with nothing to show 423, 101 SW 837. The production of the in-which transaction is basis of conviction, accident and judgment in former action is on prosecation was barred. Alexander v. State, 63 Tex. Cr. App., 553, 140 SW 918. Where two indictments charged separate of-fenses, but were consolidated for trial, a plea of not guilty and judgment discharging defendants on one was not a bar to prosecation \[50\]. See 505.

on the other. Thomas v. U. S. \[C. C. A.\] 156 F 897. The entry of a noble presquation a count for manslaughter, at the close of the state's case, is not an acquitat of the crime of manslaughter under other counts of the indictment. People v. McGinnis, 234 III. 68, 84 NE 687. An afflavit charging the commission of two or more things in the disjunctive is bca for uncertainty, and the record of the dismissal of a case predicated upon each an afflavit is not a bar to a subsequent prosecation. Gilliam v. State, 7 Ohio N. P. (N. S.) 482. Where court caused charges against accused to be dismissed because of defects in indictment, and it did not appear that there was any trial, but new charges were at once filed, accused was not thereby placed in jeopardy twice. Price v. U. S. \[C. C. A.\] 156 F 950. The reversal of the judgment in a criminal case places the state and defendant in the same position they occupied before the trial, and where a defendant secures a reversal of a verdict which was silent as to the first and second counts and found him guilty under the third count of the indictment, the cannot thereafter maintain a plea in bar to the first and second counts. State v. Dickerson, 7 Ohio N. P. (N. S.) 208. Where a new trial has been granted on motion of defendant, he cannot, upon such trial, rely upon the plea of former jeopardy. Yeates v. Roberson \[Ga. App.\] 62 SE 104.

S83. Thomas v. U. S. \[C. C. A.\] 156 F 897; State v. White, 146 N. C. 608, 60 SE 505. After conviction for assault with intent to kill, the victim died, and prisoner was indicated for murder. Held, plea of former jeopardy was untenable. Commonwealth v. Ramunno, 219 Pa. 204, 68 A 184. Demurrer to plea of former jeopardy is properly sustained where prosecation is for carrying concealed pistol, and plea sets up a former conviction for carrying the pistol to a church, though it is alleged that the two transactions were one and the same. Yeassy v. State \[Ga. App.\] 62 SE 561. Transactions not idenfthened as matter of law, since one who carries a concealed pistol to church is guilty of two offenses, neither of which includes the other. Id.

84. Burden of proof is on defendant to sustain plea of former jeopardy. Mance v. State \[Ga. App.\] 62 SE 1053. The burden is upon defendant to prove that a former acquitat or conviction was for the identical offense. State v. White, 146 N. C. 608, 60 SE 505.

01. See 10 C. L. 90. As to rights of accused, see, also, Constitutional Law, 11 C. L. 689.

01. If accused has no counsel when brought up for arrangement, it is customary to ask him if he desires counsel, and to appoint counsel to assist him if he signifies a desire for such appointment. Such is general practice in Florida. Cutts v. State \[Fla.\] 45 S 491. It is court's duty to appoint counsel for a defendant who appears to be ignorant or weak minded, though in the case of intelligent persons he need not do so unless requested. Williams v. Com., 32 K. L. 33, 110 SW 339. Where court appointed two attorneys to defend accused, held not error to excuse one and appoint a substitute, under circumstances shown. Brown v. State, 52 Tex. Cr. App., 267, 20 Tex. Ct. Rep., 556, 106 SW 368.

01. Defendant is allowed 2 days after arrest and during term to file written pleadings. Starbeck v. State, 52 Tex. Cr. App. 192, 109 SW 162.

01. See 1 of accused to have returned to him property alleged to have been obtained by an unconstitutional search and seizure may be determined on motion in advance of trial."2

_Right to speedy trial._ See 10 C. L. #2.\_--Acused has a constitutional right to a speedy trial "a which is regulated by statutes in many states,"4 which usually provide that defendant shall be entitled to be discharged if not brought to trial within the time limited."5 Such statutes should be liberally construed in favor of accused."6

Decisions under statutes of this nature are given in the note."7 Void proceedings in a court having no jurisdiction do not operate to extend the time."8 It is held that the fact that accused is serving a penitentiary sentence on another charge does not excuse delay in prosecution,"9 since convicts are entitled to the benefit of the constitutional and statutory right to speedy trial.1 In a habeas corpus proceeding, the burden of showing good cause for delay is upon the state."

_Preliminary inquest as to sanity._"--Whether a plea of not guilty should be permitted to be withdrawn in order that a preliminary hearing, as to accused's sanity may be had is a matter resting largely in the trial court's discretion." Denial of such request is not error where the suggestion of insanity is not supported by affl-davit and the court offers to and does receive, at the trial, evidence of accused's mental condition both at the time of the commission of the offense and at the time of trial."

fered with on appeal only, where a clear abuse of discretion appears." Subject to this rule, lack of time for preparation,8 absence or illness of counsel,9 and surprise,10 may or may not be ground for continuance, according to the showing made. While the showing for a continuance should make it appear that the continuance is not sought for delay only,11 this need not appear by direct oath of defendant; it is sufficient if the showing as a whole indicates that mere delay is not sought.12 Though failure to produce, an eye witness in a homicide case would entitle defendant to a postpement of the proceedings, the absence of such witness 13 is not ground for continuance at his request, before trial. In Georgia, motions for a continuance made at the term at which the indictment is found, while addressed to the discretion of the court, stands on a different footing from such motions made at a subsequent term.14 That the regular jury for the week has been excused and a new one called is not ground for a continuance, in Texas, where the cause has been set by agreement of counsel, without the knowledge of the court.15 The right to one day's time for preparation for trial, after plea, given by statute in North Dakota is absolute, if requested in time.16 In Rhode Island, the court has no power to adjourn for more than fourteen days without consent of accused, and his consent to a longer

of nonresident witnesses. State v. Thomp-

from, accused was in jail unal.le to give

bond, and trial would have gone over 6

months had continuance been granted. State

823. No abuse of discretion in denying continuance. Duckworth v. State \[Ark.\] 111 SW

direction to deny continuance on account of

268; People v. Boyd, 151 Mich. 577, 15 Det.

hose of leading counsel where only issues

Leg, N. 36, 115 NW 687. Refusal of continuance for absence of witness, proper. State

abe counsel. State v. Hunter, 79 S. C. 84, 60 SE 241. Discretion of court not abused in

of court exercised in passing on weight of

evidence contained in showing and counter

absence of defendants' leading counsel. Cate

showing made upon hearing motion for

continuance will not be controlled by appeal

late court. Kimberly v. State \[Ga. App.\] 62 SE 671.

**S. Refusal of continuance asked to allow**

counsel additional time to prepare, not an

abuse of discretion. State v. Walker, 79 S. C.

107, 60 SE 309. No abuse to deny continuance asked by defendant for preparation

where he had had had Jan. 24 to Feb. 5, and

had no reason except assumption that trial

would not occur until next term. State v. Rabene, 79 S. C. 842, 60 SE 442. Retusal to

postpone until next day on account of fatigue

of defendant's counsel not abuse, where defendant had other counsel and court had no

other word. Id. Defendant entitled to continuance, where he had no notice of trial suff

element to enable him to obtain witness. How

ell v. State \[Ga. App.\] 62 SE 1000. Application for continuance for more time to prepare

addressed to discretion, where accused has

had 6 or 7 weeks and has been represented

by counsel. Johnson v. State \[OKL Cr. App.\]

97 P 1059. Denial of continuance on ground

of want of time to examine evidence heard

by coroncer, not an abuse of discretion. State

v. Franklin \[S. C.\] 60 SE 953.

\*\*D. Illness and absence of one attorney not

ground for continuance, two being present to

try the case. Howerton v. Com., 23 Ky. L. R.

1008, 112 SW 606. Absence of one attorney

not ground for continuance when defendant

had three present. Kennedy v. Com., 32 Ky.

L. R. 1881, 108 SW 89L. Continuance for absence of defendants' counsel properly

fused where several prior continuances had

been granted, counsel had not been heard

from, accused was in jail unal.le to give

bond, and trial would have gone over 6

months had continuance been granted. State

823. No abuse of discretion in denying continuance. Duckworth v. State \[Ark.\] 111 SW

direction to deny continuance on account of

268; People v. Boyd, 151 Mich. 577, 15 Det.

where of fact, and accused was represented by

, Mills, 79 S. C. 84,

60 SE 241. Discretion of court not abused in

refusing second continuance on ground of

absence of defendants' leading counsel. Cate

v. State \[Neb.\] 114 NW 942.

**S. Refusal of continuance asked to allow**

counsel additional time to prepare, not an

abuse of discretion. State v. Walker, 79 S. C.

107, 60 SE 309. No abuse to deny continuance asked by defendant for preparation

where he had had had Jan. 24 to Feb. 5, and

had no reason except assumption that trial

would not occur until next term. State v. Rabene, 79 S. C. 842, 60 SE 442. Retusal to

postpone until next day on account of fatigue

of defendant's counsel not abuse, where defendant had other counsel and court had no

other word. Id. Defendant entitled to continuance, where he had no notice of trial suff

element to enable him to obtain witness. Howerton v. State \[Ga. App.\] 62 SE 10

### 12 Cu. Law. INDICIMENT AND PROECUTION SS 7.

adjointment should appear of record,17 but any error in this regard is waived where accused voluntarily appears without objection after such adjournment.18

_Continuance should be granted for the absence of a witness_ See 10 C. L. 98 when it is made to appear that due diligence has been exercised to procure the attendance of the witness,19 that he will probably be present at the time to which the continuance is taken,20 that the facts to which he would testify cannot otherwise be proved,21 and when it is further made to appear that the testimony of the witness would be competent, relevant and material,22 probably true,23 and not merely cumulative,24 or

17. Court & Prac. Act 1905, SS 167. State (here was no reasonable expectation that he would appear. Anderson v. State, SS 167 Tex. Cr. App. 341, 110 SWV 64. 19. Continuance should have been granted to be made by absent witnesses could not be made by witnesses who were available. State (Iex. Cr. App. 111 SWV 94.

impeaching.\[25\] A continuance sought on the ground of absence of witnesses may be avoided by the state by admitting as true the facts to which the absent witness would testify.\[26\] A mere admission that the witness would, if present, testify as alleged is not sufficient,\[37\] unless it appears that there is no reasonable certainty that the attendance of the witness can be procured within a reasonable time.\[28\] An admission of the latter character suffices where continuance is sought to obtain the deposition of the witness.\[29\] In Kentucky, where the trial is called at the same term at which the indictment is returned, the state, in order to avoid a continuance, must admit the truth of the facts to which absent witnesses would testify,\[30\] but if continuance is asked at a subsequent term, the state need only admit that the witnesses would testify as alleged.\[31\] Where the state admits the truth of testimony as stated, in showing for continuance, it cannot thereafter contravene the same.\[32\] Only that portion of an affladavit for continuance which sets out the facts to which the witnesses would testify, if present, may be read to the jury.\[33\]

would directly contradict the state's evil-

Where a stipulation is made conceding all-

dence. Brooks v. State, 3 Ga. App. 458, 60 SE

that would have been obtained by granting

211. Continuance should have been granted

continuance, a motion therefo is properly

where testimony was material, and was not

denied. People v. Nyplin, 133 ILL App. 500.

merely cumulative, though corroborative of

Commonwealth's attorney, to avoid continua-

accused. Morgan v. State \[Tex. Cr. App. 213\]

ance, admitted truth of facts stated in show-

SWW 934. First application for continuance

ing for witness. Acused not prejudoted by

should be granted where testimony is

half of court to charge that such facts

terlal, and diligence was shown. Green v.

were to be taken as true, in absence of re-

State, 53 Tex. Cr. App. 534, 110 SWW 829.

quest so to charge. Stamper v. Com., 33.

innuance should have been granted to obtain

witnesses when application was the first one,

27. Continuance should have been granted

evidence would be material, and defendant

was the only witness in his own behalf.

state's case, and prosecuting attorney would

Hardin v. State, 52 Tex. Cr. App. 283, 20 Tex.

ct. Rep. 529, 106 SWW 352. Continuance should

fered to admit that witnesses would so testil

have been granted. Destired testimony

Tyr. Pruy v. State, 52 Tex. Cr. App. 316, 20 Tex.

ct. Rep. 396, 106 SWW 355. If it appears that the

presence of the witness can be secured with-

an was arrested and placed on trial for

murder a few days later, it was reversible

been used to procure his presence, and that

error to refuse continuance.to allow him to

his testimony is material, it is error to

procure attendance of only (disinterested witness

, the case being close one. Magee v.

an admission that witness, if present, would

State \[Miss.\] 45 S 860. Continuance should

have been granted to allow defendant to

since where witness was in hospital, within.

secure, as witnesses, persons who were on

car where alleged assault occurred. Collins

v. State, 52 Tex. Cr. App. 465, 107 SWW 852.

23. Continuance properly refused when ap-

plication did not show that desired testimony

was material or probably true. Robinson v.

State, 53 Tex. Cr. App. 565, 110 SWW 908.

Where desired testimony appears to be prob-

ably untrue, continuance need not be granted.

Price v. State, 53 Tex. Cr. App. 428, 111 SWW

654.

001. Merely cumulative testimony not

ground for continuance. State v. Horn, 209

Mo. 452, 108 SWW 3; Owen v. State \[Ark.\] 111

SWW 466; Dobbs v. State \[Tex. Cr. App.\] 113

SWW 921; Burnett v. State, 53 Tex. Cr. App.

515, 112 SWW 74. Continuance properly re-

fused where testimony of absent witnesses

would have been cumulative only, and court

offered compulsory process. Brock v. Com., 33 Ky. L. R. 630, 110 SWW 878.

25. Continuance to obtain merely impeaching

testmony properly refused. Elsworth v.

State \[Tex. Cr. App.\] 111 SWW 863. Retusal

of continuance to allow accused to get: proof

of conviction of witness for state not abuse

of discretion. Murph v. State \[Ala.\] 45 S 208.

26. State v. Wilcox \[B. D.\] 114 NWW 687.

v. State \[Neb.\] 117 NW 407.

- 12Cur. Law. INDICMENT AND PROSECTION SS 8. **88**

_The application_ See 10 C. L. **90** must be timely made. **94** The supporting affidavits must conform to statutory requirements. **95** The showing for an absent witness must be definite and certain. **96**

SS 8. \_Dismissal or nolle prosequi before trial. **97**--Where an indictment is quashed or dismissed for curable defects, **98** or a jury discharged because of a variance between the allegations and the proof, **99** accused may be held to answer to another charge, and a dismissal does not in such case operate as a final judgment or bar. **90** Where an indictment is dismissed because of insufficient proof before the grand jury, the court may direct a resubmission of the matter to the grand jury if it appears that the missing evidence is of a technical nature and may be supplied, **91** but where it appears that all the evidence at hand has been submitted, there will be no direction to resubmit. **92** Where an information is dismissed because not filed in time, the dismissal is held not to bar further proceedings. **93** Where a demurrer is sustained for misjoinder of counts, a subsequent allowance to the state of a nolle prosequi as to all but one count operates to set aside the judgment on demurrer, and cures the indictment as to the remaining count. **94** In Louisiana the district attorney has **94**

- 134. _Where a defendant proceeds to trial_ **97**, See 10 C. L. 100. See, also, SS 6, Right without requesting a continuance or suggest- to Speedy Trial.\*\*
- 135\*\* **the absence of expected witnesses, he**
- 136\*\* **is not entitled to a continuance to obtain**
- 137\*\* **the evidence has all been in-charged, but should be held to answer to a troduced. Napier v. Com. 33 Ky. L. R. 635,**
- 138\*\* **the request for one day's time,**
- 139\*\* **the value of the risk of a nolle prosequi as under Dakota statute, should ordinarily be made immediately after the plea and before the taking of any other step preliminary to trial. Too late when not made until four judgments**
- 138\*\* **the value of the risk of a nolle prosequi as under Dakota statute, should ordinarily be made immediately after the plea and before the taking of any other step preliminary to trial. Too late when not made until four judgments**
  84 INDICITMENT AND PROSECTION SS 9. 12 Cur. Law.

power to enter a noble prosequi upon an indictment, though its validity has been recognized by the trial court, where he doubts its sufficiency.45 The accused is not thereby injured, not having been placed in jeopardy.46 In Texas the county attorney may for good cause and with consent of county court, enter a dismissal of a cause appealed from justice court.47 The statute requiring him to file his reasons for such action is directory only, and failure to do so does not invalidate the judgment of dismissal.48 Where two parties are jointly indicted and a severance allowed, the district attorney may, for proper reasons, dismiss one case,49 and it is not improper, where this is done, to tender to the remaining defendant, as a witness, the person against whom the prosecution has been dismissed.50 In Missouri it is provided by statute that if there are two indictments pending against accused for the same offense the one first found shall be suspended by the second.51 Hence defendant cannot be legally tried upon an indictment when a second has been found for the same offense.51

SS 9. \_Evidence. Judicial notice.\_See 10 C. L. 100--Courts take judicial notice of public laws and statutes,53 public documents and maps,54 regulations of the executive departments of the federal government pursuant to authority delegated by congress,55 of the fact that prohibition is in force in a certain county,56 of the location of a city within the county,57 and of matter of common knowledge.58 The court will not take judicial notice that a certain object is a deadly weapon.59

\_Presumptions and burden of proof.\_See 10 C. L. 101--Innocence being presumed,50 the burden is upon the state 41 to establish beyond a reasonable doubt 62 every essential element of the crime charged.63 It is now generally held that the interposition 12 Cur. Law. INDICTMENT AND PROSECTION SS 9. 35 of the defense of insanity or an alibi does not cause the burden of proof to shift. In such case, defendant is entitled to be acquitted if, upon all the evidence, the jury entertain a reasonable doubt of guilt." The burden is upon defendant to show by a fair preponderance of evidence circumstances reducing the degree of crime " or excusing the act proved against him," and to show an alleged lack of jurisdiction of a state court of general jurisdiction." It is competent for the legislature to make proof of certain facts prima facie evidence of a violation of law," and a statute imposing upon a defendant the burden of proof upon a particular issue does not violate any vested right." The ordinary inferences or presumptions commonly recognized by courts are indulged in criminal cases," but are, of course, disputable." One inference or presumption cannot be based upon another." In the absence of any testimony as to defendant's character, there is no presumption in regard.to it." Failure of defendant to call available witnesses is a circumstance which may be considered by the jury," though no legal presumption is thereby raised." In Georgia

64. An alibi is no longer considered an affirmative defense, to establish which defendant and has the burden of proof; but if the proof thereof is, with the other evidence in the case, sufficient to raise a reasonable doubt as to the guilt of accused, he is entitled to proof of violation of local option law. King must be of "strong convincing character," and exclude any reasonable hypothesis except the nonpresence of accused," held prejud-dially erroneous. State v. Nelson \[N. D.\] is 114 NYW 478. Where defense is an alibi, ac-cused should be acquitted if upon a conclusion of the evidence thereof, together of setting up or exhibiting gambling table with all the other evidence in the case, there prima facie evidence that it was done with remains a reasonable doubt of accused's permitson of person occupying or control-guilt. Tasis v. Ter. \[N. M.\] is 94 P 947. Where the defense of insanity is interposed, it is the duty of the jury to consider all the evidence, and if they then entertain a reasonable doubt of the sanity of accused at the crime of committing the offense must be committed with, thus placing on defendant, acquitted. People v. Casey, 231 Ill. 681, 83 NE 778. The defense of insanity is not to be separately tried, but is a part of the issue of not guilty and the burden is on the state. State v. Speyer, 207 Mo. 640, 106 SW 505. The defense of insanity admits only the commision of the act charged, not that it was a crime. Id. While sanity is presumed in the first instance, yet, where accused introduces evidence of insanity, the burden of proof does not shift, but still rests with the state to prove defendant was criminally responentienti to support finding, though there is evitable. If jury entertain a reasonable doubt of defendant would all the evidence, they must acquit. State v. Premier, 16 Wyvo. 214, 92 P 806. Where insanity is relied on a defense, it is not error to refuse a charge that if evidence creates a reasonable doubt of defendant's sanity jury must acquit. State v. Herron \[N.\] is 988 and a statute 65. Burden is on prisoner to reduce crime or show self-defense, killing being proved. State v. Peterson \[N. C.\] is 87. State needed not show that former judgment of con- viction had not been reversed, vacated or settion saide. Such proof is for defendant. Tall v. Com., 33 Ky. L. R. 541, 110 SW 425. 66. Accused must show self-defense by farfootnote 67. People v. Komnals \[Mich.\] is 15 Det. Legg. preponderance only. Commonwealth v. Palmer \[Pa.\] 71 A 100. 67. An Indian indicted in a state court for killing another Indian has burden of show- ing that crime was committed on Indian the statutory presumption arising from failure of defendant to produce the strongest evidence available does not apply where he introduces no evidence, but relies wholly on his statement,71 nor is it applicable where witnesses are equally accessible to the state.72

Footnote 72: The _true_ signature of the _true_ signature serious doubt as to the admissibility of evidence, the doubt should be resolved in favor of accused.\* Evidence is admissible which tends to connect accused with the crime * or to establish his identity,\* and to show animus, motive, guilty knowledge or intent.\* Proof of the actions of bloodounds used to track criminals is admitted in most jurisdictions, when the proper foundation has been laid,\* by proper proof of the training, experience and breeding of the dog used, and by further proof connecting accused with the trail followed.\* Proof of the conduct of other bloodounds trained by the same person is inadmissible.\* Evidence which is relevant and competent to show guilty of accused is not inadmissible because of an admission or offer to admit the fact sought to be proved,\* especially where defendant's conces-

court. People v. Hutchings \[Cal. App.\] 97 P & which detailed them. People v. Stemsen, 153 825. Remoteness of testimony goes to its \[Cal. 287, 95 P 883.

weight, not to its competency. State v. Por-

\[Mo.\] 111 SVW 529. Proper to refuse to

exclude proof of tracks into which defendant's

vistlet her, by what name he was known,

ants' feet had been placed on ground that

evidence was not reliable, the weight of it

\[Mo.\] 46 S 273.

being for jury. State v. Williams, 120 La.

\[Mo.\] 175. 45 S 94. Letter by deceased to defendant

guilty knowledge of accused, accomplice in

prior to their marriage, and three years

forgery, properly received. Elinson v. State,

prior to homicide, properly excluded as too

\[Mo.\] 143, 109 SW 174. Question

remote. Montgomery v. State, 136 Wins. 119,

whether defendant had not returned portion

\[Mo.\] 116 NUV 876. An objection to evidence or a

\[Mo.\] 111. 111.

sion is not as broad as the fact alleged.91 Evidence of a certain kind or to show certain facts having been introduced by one side, evidence similar in nature is admissible in behalf of the other side.92

\_Competency of evidence as affected by rights of accused.93 The right of accused to be confronted by witnesses against him includes the right to cross-examine,94 and where this right is unduly limited by the circumstances, though formally permitted by the court, prejudicial error results.95 The right of accused, to be confronted with witnesses is not violated by the introduction of documentary evidence.96 Acused cannot be compelled to testify, and his failure to testify cannot be shown or commented on.97 But it has been held that failure of accused to deny facts within his knowledge warrants inference that he could not truthfully deny them.98 Evidence obtained from him with his consent or voluntarily disclosed is competent.99 Accused is not compelled to give testimony against himself by being compelled to put his foot in a track found near the scene of the crime in order to identify him.1 Evidence of guilt which a defendant either directly or indirectly is compelled to disclose by an illegal seizure and search of his person under an unlawful arrest is inadmissible against him.2 But if his premises or belongings are searched by an-

though accused admitted shooting and pleudical error, It being proper to decline pleaded justification. State v. Young \[Or.\] 96 to cross-examine under these circumstances, P 1067, and improper to permit state to ask the one important question. Wray v. State \[Ala.\]

ducing proof to establish a prior conviction, charged in the indictment, by a concession of the fact of prior conviction by the defense after the state had commenced to make its proof, the concession not being as broad as the indictment. People v. Jordan, 109 NYS

by copy of record of United States revenue collector, held constitutional and valid.

92. Where accused claimed an alibl and that he was sick, it was not error for state to ask him what he was sick of, though he answered that he had a "bad" disease. Moore v. State, 52 Tex. Cr. App. 364, 107 SV

01. Where defendant was in court and of-355. Where accused proved incompetent statements by deceased, he could not object to similar proof by state. Thomas v. State \[Tem.\] 113 SV 1041. Evidence of certain kind being offered by accused, evidence of same character was competent for state. Brown v. State, 52 Tex. Cr. App. 267, 20 Tex. Ct. Rep. 555, 106 SV 368. Where statement by accused admitting killing was-proved, accused should have been permitted to prove other details and explanation given to witness by accused a short time after. Code

C. Proc. 1895, Art. 791, makes entire conversation competent. Pratt v. State, 53 Tex. Cr. App. 281, 109 SV 138. Where defendant brought out part of conversation, state could show all of it. Lowry v. State, 53 Tex. Cr. App. 562, 110 SV 911. Showing for witness being offered, it was competent to show by persons familiar with and acquainted in community where witness was claimed to reside that no such person lived there. Walker v. State \[Ala.\] 45 S 640.

93. See, also, Constitutional Law, 11 C. L.

683: Witnesses, 10 C. L. 2079.

94. Wray v. State \[Ala.\] 45 S 697.

01. Witness was brought in on cot, and court, on consultation with physician, refused to allow him to be examined on the ground that it might cause death of witness. He allowed witness to answer one question, however, whether witness shot deceased. Defendants counsel declined to cross-examine, though court gave permission. Held, other, although without a vestige of authority, the evidence thus disclosed may be used against him.3 The rule is applicable only to searches of a defendant's person after an unlawful seizure thereof.4 Evidence obtained by a search of his person after a lawful arrest is admissible.5 A defendant, being separately tried cannot successfully object to evidence on the ground that it was obtained by means of an illegal search and seizure of a codefendant.6 Failure to object to the admission of evidence illegally obtained is a waiver of its incompetency, and evidence so obtained and received without objection may warrant conviction.7 That evidence was obtained by the illegal act of a private person or petty officer does not make it inadmissible,8 nor does its introduction violate any constitutional right of defendant.9 Where the appearance of the defendant is relied upon to sustain a material ingredient of the offense charged, he should be identified and his appearance proved in the regular manner.10

Witnesses whose names were not endorsed on the indictment or information may testify,11 especially where their testimony is purely rebuttal,12 and their names may be endorsed subsequent to the filing of the indictment or information.18 The state may call as witnesses persons whose names are not endorsed when they did not testify before the grand jury and were not known to the state's attorney when the in- and which was discovered by use of force.

Footnote 18: Our Law.

legal custody are admissible in evidence. Reference to pistol inadmissible, defendant not having been arrested. Davis v. State \[Ga. App.\] 61 SE 404.

3. The test is: Who furnished or produced the evidence. Glover v. State \[Ga. App.\] 61 SE 862. Evidence obtained by searching defendant's house without warrant admissible. Rogers v. State \[Ga. App.\] 62 SE 96. Arrest and seizure being legal, though without warrant, evidence as to finding liq- nor in locked box was competent. Jenkins v. State \[Ga. App.\] 63 SE 574. That evidence was obtained by an illegal search of defendants house held to render it inadmissible, though he was under illegal arrest at the time. Tockey v. State \[Ga. App.\] 61 SE 917. Evidence elicited through use of a search warrant is admissible however irregular the search warrant may have been and however improper its use for the purpose of securing evidence. Hardesty v. U. S. \[C. C. A.\] 164 F 420.

1. Glover v. State \[Ga. App.\] 61 SE 862. Evidence taken from the person of one illegally detained is inadmissible. Concealed weapons. Hughes v. State, 2 Ga. App. 29, 58 SE 390. When by an unlawful search and seizure under an illegal arrest a person is compelled by an officer to furnish incriminating evidence against himself, such evidence is not admissible against him in criminal prosecution. Croy v. State \[Ga. App.\] 61 SE 848. But where accused interfered in an attempt to arrest another, and in a scuffle disclosed a pistol in his pocket, which officer then took from him, proof of these facts was competent. Id.

1. Eaker v. State \[Ga. App.\] 62 SE 99. Competent to prove that shoes taken from defendants while under legal arrest, and without force or intimidation, fitted certain tracks. Id. Shoes worn by defendant at time of arrest competent. State v. Jeffries, 210 Mo. 302, 109 SVV 614. Papers taken from accused after his arrest, by the officer arresting him, may be received in evidence. State v. Sharpless, 212 Mo. 176, 111 SVV 69. Evidences of guilt found upon a person in formation was filed,\[14\] and, in such case, accused is not entitled as a matter of right to notice of the names of witnesses who will be called against him.\[15\]

_Acts disclosing consciousness of guilt,\[14\]_ such as flight,\[17\] resistance of arrest,\[18\] attempts to suppress evidence,\[19\] if defendant is connected therewith,\[20\] and incriminating statements and conduct of accused,\[21\] may be proved.

_Other offenses, convictions, and acquitals.\[Sec 10 C. L. 107\]_--Evidence relating to separate and distinct offenses committed by accused wholly unconnected with the offense charged is inadmissible,\[22\] but evidence otherwise competent and relevant is\_

14. State v. Matejousky \[S. D.\] 115 NWW

_15. Matter of protecting defendant from surprise is discretionary with jury. State v. Matejousky \[S. D.\] 116 NWF 86._

_16. See 10 C. L. 106._ Conduct of defendant

_17._ State v. Anderson, 121 La 366, 46 S

_17._ State v. Ralston \[Iowa\] 116 NWF 1058.\_

_18._ Flight of accused, hie arrest, escape and going to place where detection was unlike-ly, could be shown. Shumway v. State \[Tex. Cr. App.\] 117 NWF 407. That sheriff looked for accused

_19._ Former conviction for violation of liquor

_19._ Weight for jury. Sweatt v. State \[Ala\]. 47 S 184.\_

_19._ Mitchell v. State, 52 Tex. Cr. App. 37, 120 Tex. Ct. Rep. 372, 106 SWV 124.\_

_19._ Evidence admissible to show that wit-ness was one whom defendant had caused to leave the county. Rice v. State \[Tex. Cr. App.\] 60 SE 87. Where, in embezzlement case, in-Ap.\] 112 SWV 299. Attempts to get the prosecuting witness to leave the state and offers to pay him money, admissibile as circumstances against accused when connected

_19._ State v. Constantine, 48 Wash. 248, 111 SWV 248, 110.\_

_20._ Admission of proof of attempts to bribe

_19._ Writness is error when such attempts are not connected

_19._ Writness is error when such attempts are not connected with accused. Bruner v, U.

not inadmissible, because it incidentally tends to show commission of other similar offenses by accused.\[23\] Thus, proof of crimes other than that charged is admissible where some connection between them is shown,\[24\] or where other offenses are so blended with the one charged that proof of one involves proof of the other,\[25\] both being part of the same transaction.\[26\] Evidence of other crimes is also admissible to show motive, guilty knowledge, or criminal intent,\[27\] and to identify accused

Clarke v. State \[Ga. App.\] $2 SE $63. Evidence of disfareful, immoral, or criminal not esto the state from proving the same conduct of one accused of crime, which is in fact s where they tend to prove a different no way connected with the crime itself, is a landmarkisable. Dungan v. State \[VHS.\] 115 SE $66.

**NVV** $50. In rape case, other acts than that charged between prosecuting witness and defendant could not be proved. People v. Ah scale unless necessary to establish identity, clean \[Cal. App.\] $95 P $80. Proof that defendant had been indicted for another offense unless such acts are so interwoven with and that there was record of conviction, crime charged that they cannot well be prejudicial error, though record was ex- separated, or unless such other offense or cluded when offered. People v. Jones, 191 offenses were committed to conceal the crime N. Y. 291, $4 NE 61. Proof of other bur-charged, or vice versa. Morse v. Com., 33 glaries, not in any way connected with Ky. L. R. $31, $94, 111 SVV 714.

charge on trial, erroneously admitted. Light-foot v. State \[Tex. Cr. App.\] 108 SVV 345.

\*\*2.8. State v. DuLaney \[Ark.\] 112 SWV 158. Evidence which is distinctly relevant is not criminal act for which he is indicted. are inadmissible, because it tends to show accused's connection with other crimes. Ray Breaking into shanty and assault on immates v. State \[Ga. App.\] $6 SE $18. Evidence relevant to crime charged is admissible, though State v. Deliso \[N. J. Err. & App.\] $9 A 218.

**3.1.** It tends to show another crime also. State \[Z. Reinfeve v. State, $4 Ark. 16, 104 SWV $61.

**42.** Under charge of embealing a horse, other murders not inadmissible, all the acts being part of one scheme and closely con- transaction, was admissible to show intent.

**4.1.** In prosecution for killing an officer, the reason for the arrest without a warrant became another were part of same transaction, proof material, competent on this issue to show that accused was being arrested for commission of felony. Wounding of witness by defendant. State v. Honore, 121 La. 573, 46 S 655. In prosecution for gambling, evidence tending to sustain the charge was admissible though it incidentally tended to show another offensive similar nature. State v. Landrum, 127 Mo. App. $653, 106 SWV 111.

**4.1.** Where conversation with defendant was competent to prove an admission by him, it was admissible for that purpose though it disclosed commission of another offense. People v. Cahill \[N. Y.\] $6 NE $9. Where defendant attempted to prove he was rail-road conductor by showing certain cards, proof by the real conductor and owner that the cards had been stolen from him was admissible, though it incidentally tended to show another crime. Esker v. State \[Ga. App.\] $2 SE $9. In prosecution for having burglarious tools with intent to use same, proof that hall near defendants' abode was broken into and a safe blown open was held admissible. Commonwealth v. Johnson, 199

**4.2.** Consider the event of a crime, which is a member of a crime, which is a member of a crime. The event of a crime, which is a member of a crime, is a member of a crime.

and connect him with the offense charged.28 Where evidence of this kind is admitted for a limited purpose, the jury should be so informed at the time,29 though a proper charge to the jury at the close of the evidence may be sufficient.30

Former conviction of crime or commitment to prison may be proved when charged in aggravation or as a part of the offense.31 Details of former charges should, however, be excluded,32 and proof of former conviction is not to be considered on the issue of guilt of the principal charge.33

162 F 417. In prosecution for perjury in severning to another's residence on public lands, proof that witness took up a home-stead on certain lands in section and that defendant swore to his residence on the land, though he had not in fact resided there, as defendant knew, was admissible to show knowledge, design, and system to defend. Barnard v. U. S. \[C. C. A.\] 162 F 618. Proof of other similar sales admissible in prosecution for keeping "blind tiger." Gorman v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 406, 106 SWV 384. Stealing of other property at same time as that alleged, admissible on intent and as part of same transaction. Territory v. Caldwell \[N. M.\] 98 P 167. In prosecution for obtaining money by false pretenses, proof that same representations were made to others for same fraudulent purpose competent. People v. Whalen \[C.A.\] 98 P 194. In prosecution for obtaining money by false pretenses from county by presenting claims twice, proof that he had collected twice for other claims about the same time admissible, where he claimed he did not know he had been previously paid for claim in question. State v. Sparks \[Neb.\] 114 NW 598. On trial of defendant charged jointly with another of obtaining money by false pretenses, proof of a general scheme by the two to defend others and of similar representations by defendant to others was admissible. Griggs v. U. S. \[C. A.\] 158 F 672. Under indictment charging bank officer with embealing funds of bank, proof of enselezment of different amounts at various times and the manner in which he did it was held admissible to show offense charged. Chamberlain v. State \[Neb.\] 115 NVV 555. In prosecuting of county auditor for corruply counterismism warrant, proof of the giving and receiving of bribes to induce favorable action in condemation proceedings, the acts being part of a series culminating in the one being prosecuted, was competent to show a guilty purpose. People v. Neft, 191 N. Y. 210, 88 NE 970. First assault on sherift was to secure release of companion, second was in resisting arrest when sherift overtook accused and his companion a short time later in the day Eidd, proof of either was admissible to show move and intent in other, though indictment charged but one assault. Warford v. People, 43 Colo. 107, 96 P 556. In trial of charge of incest, criminal acts of like nature prior to the one charged may be proved. Smothers v. State \[Neb.\] 116 NWV 152. In prosecution for conspiracy to obtain money from prostitute by allowing her to carry on her occupation without being molested, proof of payments by others under like agreements, about the same time, was admissible. State v. Routzahn \[Neb.\] 115 NWV 756. In prosecution for uttering forged instrument knowingly with intent to defraud, proof of other similar acts is admissible only on question * \[12\] Cur. Law. INDICMENT AND PROSCUITION SS 9.

- \[13\] \_Character and reputation.\_See 10 C. L. 110--Proof of the good character of defendant,\[54\] or of his good reputation,\[58\] is admissible in his behalf, but the evidence should be confined to the trait involved in the crime charged.\[59\] "General character" is the same as "general reputation" and is determined by how the person is generally regarded or esteemed in the community in which he lives.\[60\] \_Hefee, proof of particular acts or conduct is inadmissible on the issue.\[61\] \_Testimony that witness has never heard the reputation of defendant questioned is competent.\[62\] \_Proof that accused has never before been arrested or accused of crime is incompetent.\[63\] \_Proof of specific good conduct in certain respects is not competent to negative proof of bad conduct afforded by defendant's confession.\[64\] \_The prosecution cannot impeach defendant's character or reputation unless he puts it in issue.\[65\] \_But, where defendant calls witnesses to testify as to his good reputation, the state may cross-examine as to what they have heard concerning defendant.\[66\] \_Proof of reputation is properly confined to the reputation of the individual in the vicinity in which he lives or in which he formerly resided,\[65\] \_and only witnesses acquainted with the general reputation of the prisoner in such neighborhood or vicinity are qualified to testify in regard thereto.\[67\] \_Hearsay.\_See 10 C. L. 111--Unsworn statements of third persons, not in the presence of accused,\[68\] \_and testimony based on information derived from others,\[69\] _is inadmissible._ _._

by record of verdict and judgment of con- \[never heard anyone except members of his viction and sentence, not by entire record, \[family speak of him. State v. McClellan since this would show all the facts of former \[Kan.\] 98 P 209. charges, which is not permissible. Indictments should have been excluded. Tall v. \[P 938. * \[14\] _State v. Foster, 136 Iowa, 527, 114 NVV 33. Davis v. State, 134 Wis. 632, 115 NWV 36._

150. - \[15\] \_Evidence of good character is always admissible for defense. Lewis v. State \[Miss.\] 47 S 467. Evidence of good character of defendant is substantive evidence and may of itself create a reasonable doubt and lead to an acquittal. Error to charge that if jury is satisfied of defendant's guilt beyond a reasonable doubt, under all the evidence, evidence of previous good character cannot overcome such conclusion. Commonwealth v. \[Miss.\] 45 S 982. Where ac- \[Miss.\] 47 S 467. Evidence of good character of defendant is substantive evidence and may of itself create a reasonable doubt and lead to an acquittal. Error to charge that if jury is satisfied of defendant's guilt beyond a reasonable doubt, under all the evidence, evidence of previous good character cannot enforce such conclusion. Commonwealth v. \[Cate, 220 Pa. 138, 69 A 332. * \[16\] _State v. Dickerson, 77 Ohio St. 34, 82 NE 96._
001. - \[17\] _Character for peace and quiet competent in homicide case. State v. Dickerson, 77 Ohio St. 34, 82 NE 96._
001.
001. - \[38\] \_Theoretical and experimental evidence of defendant is

## 44 INDICMENT AND PROSECTION SS 9.

12 Cur. Law.

Admissions and declarationsSee 10 C. L. 1112. Self-serving declarations by accused are not admissible,48 but inculpatory or incriminating statements and admissions are admissible,49 if freely and voluntarily made.50 A statement made in the third person as to what accused said. Choice vation, long prior to alleged false entry by v. State, 62 Tex. Cr. App. 385, 20 Tex. Ct. Rep. 649, 106 SWV 384. What prosecuting witness witness? competent. May v. U. S. \[C. C. A.\] 157 P. L. 184 and declarations of accused are not ad-ing liquor from accused. Smith v. State, 52 Tex. Cr. App. 607, 107 SWV 819; Henderson v. State \[Ind.\] 85 NE 776. Self-serving declations. 62 Tex. Cr. App. 514, 107 SWV 820. Prations by defendant, 30 minutes after shoot-What witness had said out of court. Hallo-ing deceased, on reaching jail, telling why way v. State \[Tex. Cr. App.\] 113 SWV 228, he did it. Pryse v. State \[Tex. Cr. App.\] 113 SWV 938. Private account book of ac-that she was afraid to stay with accused (her husband). State v. McNamara, 212 Mo. of certain company and kept for purpose of submitting to president of company and ac-scription which he gave sheriff of man who robbed him. Testimony by sheriff as to such description being given to him, held hears-as, oiltott v. State, 135 Wis. 634, 116 NW 252. More accusation against one is hear-say and inadmissible, unless it appears that accused failed to deny it or in some way ad-mited it. People v. Long \[Cal. App.\] 112 SWV 943. Statement 387.

Held not within hearsary rule: Statements in presence of accused may be proved, ob-jecot not being to show truth of facts stated. State v. Monfre \[La.\] 47 S 546. That witness gave to prosecuting attorney a bottle of whiskey, which he obtained from certain person, not hearsars. Henderson v. State, 52 Tex. Cr. App. 614, 107 SWV 820. Fixing a time as of the date of a rumor of a certain event is not hearsay. Hodge v. State \[Ala.\] 45 S 90.

47 Machem v. State, 53 Tex. Cr. App. 115, 109 SWV 126. Information obtained by hears-say. Patterson v. State \[Ala.\] 47 S 52. What another said. McBride v. State \[Ala.\] 47 S 52.

4802. That another pointed out whiskey to witness as that which defendant had. Welch v. State \[Ala.\] 46 S 856. Evidence of making of assays, based on information given by others. People v. Challet \[Cal.\] 98 P 194.

Testimony that witnesses understood, had heard, or had been informed of certain facts. Gorman v. State \[Tex. Cr. App.\] 20 made as soon as he saw him, "T know what Tex. Ct. Rep. 406, 106 SWV 384. What witnesses had heard about accused doing certain acts. Hargrove v. State, 52 Tex. Cr. App. 53 Tex. Cr. App. 541, 110 SWV 913. Testimony that witness "obtained information" from certain source. Griffin v. State \[Ala.\] 46 S 481. Hearsay gopindo of expert on insality. State v. Electeding, 120 La. 90, 45 S 566. Statements \[S1. Records so signed by coinsigne's au-by witness, which must have been based on hearsars, and which accused resented. State \[Aa.\] 46 S 48. State v. Peterson \[N. C.\] 63 SE 87; Anglin v. State, 65 Tex. Cr. App. 475, 107 SWV 820.

Testimony that witness "obtained information" from certain source. Griffin v. State \[Ala.\] 46 S 481. Hearsay gopindo of expert on insality. State v. Electeding, 120 La. 90, 45 S 566. Statements \[S1. Records so signed by coinsigne's au-by witness, which must have been based on hearsay, and which accused resented. State \[S1. Records so signed by coinsigne's au-by witness, which must have been based on hearsay, and which accused resented. State \[S1. Records so signed by coinsigne's au-by witness, which must have been based on hearsay, and which accused resented. State \[S1. Records so signed by coinsigne's au-by witness, which accused resented. State \[S1. Records so signed by coinsigne's au-by witness, which) are issued. State \[S1. Records so signed by coinsigne's au-by witness, which) are issued.

presence and hearing of accused, charging him with the crime, not denied by him, may be shown,\[51\] though accused is under arrest at the time.\[52\] An admission of one defendant is not ordinarily competent against his codefendant.\[63\] Confessions, admissions and declarations of the accused must be given in their entirety,\[54\] and the whole conversation in which they were made should be proved.\[55\] Accused should be allowed full latitude in explaining alleged written or verbal admission or equivocal statements.\[66\]

\_Confessions.\_See 16 C. L. 114. The admissibility of confessions is goverened by statute in many jurisdictions.\[57\] A confession offered in evidence is prima facie competent, and the necessity of showing its incompetency devolves upon accused.\[58\] For this purpose a preliminary examination by the defense should be allowed,\[59\] and a goods on credit, concealing them, and be- 55 Tex. Cr. App. 344, 20 Tex. Ct. Rep. 845, 106 after date of alleged conspiracy, while try- 55 Tex. Raymond v. State \[Ala.\] 45 S 895. such a scheme, that he had "handled sever- 55. In separate trial of one defendant, a al such cases," was admissible against him. \[dication of the other, jointly indicted with Alfton v. U. S. \[C. C. A.\] 163 F 810. Test- 166 defendant, incriminating defendant is made- 166, which he was not guilty but knew how the \[Miss.\] 45 S 859. Where two defendants are 166, tried together, proof of an admission by one, not in the presence of the other, should be 166, but the other, and 166, but * \[58\] A. A. K. K. K. _et al._, "The 11 also appear that accused was duly warned that his statement could be used against him," in others no formal warning is necessary." A confession otherwise voluntary and competent is not rendered incompetent by the fact that accused was at the time in custody of officers," or under illegal arrest," or in confinement," or that the confession was made in response to leading questions," or that accused was sworn before a notary." In Texas, a confession by accused while under arrest " for the crime to which his statement relates " is inadmissible," unless reduced to writing and signed," and unless the written statement itself " shows that accused was duly warned " by the person to whom the confession was made."

A written report of a confession is competent if properly verified." A con fession is admissible as a whole though it refers to other crimes than the one on trial, and evidence to corroborate it may cover the same acts as the confession.**14**Facts, discovered in consequence of confessions obtained by threats or violence, may, if relevant, be proved.**15**A confession made by one of several defendants jointly indicted is binding upon any other of the defendants, if made in his presence and approved by him, to the extent of his ratification or approval.**16**

_Acts and declarations of co-conspirators_ **165** **16** \*\*C. L.**17** in furtherance of the conspiracy,**17** after the formation of the conspiracy.**18** and prior to the accomplishment of its purpose,**19** are admissible against each other,**19** when accompanied by proof of the existence of the conspiracy.**20** The latter fact may be shown by circumstantial evidence.**21**Ordinarily, a prima facie showing of the fact of conspiracy should be made before proof of acts or declarations of a co-conspirator are received,**19** but the order of proof is largely discretionary.**21**Whether a conspiracy has been shown, so as to render evidence of this kind competent, may be for the jury.**21**In the trial of one indicted as an accomplice or accessory, the guilt of the principal must be proved beyond a reasonable doubt,**22** and evidence competent to show guilt of the principal, in his trial, is admissible in the trial of the accessory.**22** Thus, declarations of the principal, tending to show his guilt, are competent, though made in the absence of the accessory and after the commission of the offense.**22**

\*\*1039. Proof of conspiracy held sufficient to permit introduction of proof of declarations of a conspirator.**16** \*\*C. L.**17** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C. L.**18** \*\*C.

Res gestae.See 10 C. L. 119--In general, all the facts and circumstances forming part of the transaction in issue may be shown, \[99\] and this has been held to include, in homicide and assault cases, the killing or injury of a person not charged. \[1\] Exclamations or declarations of parties to the transaction, or persons present, contemporaneous or nearly so with the facts in issue, which they tend to explain or illuminate, are admissible as a part of the res gestae, \[2\] provided they may be fairly considered as arising naturally from the transaction, \[3\] and where all idea of premeditation and declination.

Werma \[N. Y.\] 85 NE 690. Statement of declaresons in a residence, proof of means used to get others away from house was admissible as part of res gestae. People v. White has \[Cal. App.\] 85 P 379. Proper to admit evidence to show witnesses to be feigned and statements of deceased within an hour accompliles, and to show what they did, as part of res gestae. People v. Emmons \[Cal. App.\] 95 P 1032. In prosecution for robbery of express agent and taking of certain package, \[Tex. Cr. App.\] 112 SWP 299. Statements of age, taking of other packages at same time was provable. Tabor v. State, 52 Tex. Cr. App. 837, 107 SWP 111. That large num- bypour people were present at time and place of alleged shooting. Mansum v. State \[Ala.\] 47 B 104. Occurrence which caused assault admissible as part of res gestae. Thompson v. State \[Tex. Cr. App.\] 113 SWP 636. Statements and acts during assault admissible as centor for iercury. Mason v. State \[Ind.\] 85 NE 716. Prayer of deceased, after being abt and mortally wounded by accused, that parties at time of alleged illegal purchase of whisky competent. Potts v. State, 52 Tex. Cr. App. 368, 108 SWP 695. In assault case, where it was claimed that prosecution for perjury in swearing to aning witness threatened accused with a knife, proof that a witness picked up a knife at the place and gave it to a boy who claimed it held not part of res gestae. Pescock v. State, 52 Tex. Cr. App. 432, 107 SWP 346. A casualu on husband of deceased at time of killing deceased admissible as part of res gestae. Pescock v. State, 52 Tex. Cr. App. 185, 20 Tex. Ct. Rep. 857, 107 SWP 55. Shooting or sister of deceased by defendant as she ran from house, and her screams for help, admissible as part of res gestae. Arnold v. State \[Ala.\] 62 SE 806. All that occurred at time and place of shooting, including wound- \[S. It is only when declarations accompanying of another, admissible as part of res gestae. State v. Bakr, 290 M.44, 108 SWP 8, and to emanate from it that they can be rightly regarded as excepted from the rule was cause of trouble shortly before the killing part of res gestae. Moore v. State, 52 Tex. Cr. App. 386, 107 SWP 640. That accused shot his wife just after killing deceased admissible as part of res gestae and stunted. Young v. State \[Tex. Cr. App.\] 113 SWP 1041. What deceased said hair hour after 2. Declaration by deceased at time she destroyed letters from prisoner. State v. State \[Ala.\] 47 S 321. Remark of de-Ryder, 80 Vt. 422, 68 A 652. What person ceased after being shot, "I would not have accused of their said to police officer to explain possession of etiol property immeditedly after his arrest. State v. Jacobs \[M. App.\] 113 SWP 244. Proof that defendant said, just after stabbling deceased, that "I have got shut of you now." Bradley v. State \[Tex. Cr. App.\] 113 SWP 124. Characterisation between personal assaulted and another immediately after assault. State v. Harris \[R.\] 169 A 506. Statements by deceased shortly v. State \[Ala.\] 96 P 138. Declarations of party to contract, after Its completion, and in absence of other party. State v. Murphy \[N. D.\] 115 NWP 84. Statement of deceased, after that accused stub him. People v. Del being shot while riding in a buggy, that a 12 Curr. L-4.

sign is excluded.\* Declarations may be admitted though declarant would not be competent as a witness.\*

\_Expert and opinion evidence.\_See 10 C. L. 121--Ordinarily witnesses are not allowed to testify to bare conclusions of fact.\* An opinion or conclusion is admissible, however, where the nature of the facts on which it is founded makes their adequate statement impossible, or where the matter is one involving such special knowledge,

person other than accused rede with him in mere conclusions. Heningburg v. State \[Ala.\] the buggy and got out and left him before reaching the place where he was shot, Richards v. Com., 107 Va. 881, 59 SE 1104. Statement of one who crossed the street to see what trouble was that "she guessed, etc.," held hearsay, People v. Long \[CaL\] App. 93 P 387. Acts and saying of participants at time of homelide or so soon after striking of blow as to preclude Idea of reflection are part of res gestate and admissible; subsequent statements of mere observers cannot be so proved; they must be called to testify. State v. Howard, 120 La. 311, 45 S 260. Declarations by prosecurtz in rape case, shortly after regaining consciousness, and while excited about disappearance of her baby and baby earrizes during the assault, held competent as res gestae: those made after baby was found, defendant not being present. incompetent. State v. Alton \[Minn.\] 117 NW 617.

4. Declarations of a self-serving character, made some time after one is accused of theft, to explain possession of the property, should be excluded. State v. Jacobs \[Mo. App.\] 113 SWV 244. Words of accused after shooting wife, on being discovered by witnesses with gun in hands, held not so connected with act as to be free from suspicion, and not res gestae. Lyles v. State, 130 Ga. 294, 60 SE 578. The court may refuse evidence of accused's conduct after he had reason to believe he was suspected of the offense charged, tending to show a consciousness of innocence on his part, although the prosecution has offered evidence of conduct tending to show a consciousness of guilt. Crawford v. U. S., 30 App. D. C. L.

1. Statements of boy of 4 as to injuries admissible as res gestae, though he would not be a competent witness. Soto v. Ter. \[Ariz.\] 94 P 1104.

1. Held Incompetent: Mere opinion on question of fact. State v. Hunkor, 16 N. D.

7420, 114 NW 986. Testimony by prosecurtz that she was worried because she was afraid she was pregnant. People v. Corey \[CaL\] App.\] 97 P 907. Statement that there were bloody prints on defendant's shirt "in the judgment" of witness. Walker v. State \[Ala.\] 45 S 640. Whether another witness was condemning defendant in harsh terms. Decker v. State, 85 Ark. 64, 107 SWV 182. Testimony by witness that he did not see where pistol came from but that "in his judgment" it came from accused's pocket. Hammond v. State \[Ala.\] 46 S 654. Nonex-pert improperly allowed to give conclusion or opinion on identity of certain letter paper. State v. Denny \[N. D.\] 117 NW 869. Question calling for opinion of witness as to cause of killing improper. Marsh v. State \[Tex. Cr. App.\] 112 SVV 320. Questions to witness as to how drunk his father was, and whether he was erasy, held to call 857.

skill or experience that it is not to be supposed that the jury can, unaided, draw a proper conclusion therefrom.\[7\] As to such matters, any person shown to have the requisite learning or experience may testify,\[8\] the proper qualification of such a witness being a preliminary question addressed largely to the discretion of the trial court.\[8\] Nonexpert opinion is received on matters adequate knowledge of which may be gained by observation,\[9\] including a person's sanity or insanity,\[11\] mental or physical condition or appearance,\[12\] when a proper predicate has been laid by a statement of the facts on which the opinion is based\[18\] accompanied by a showing as to the extent and means of observation of the witness.\[14\] Some courts hold that where

7. Expert may testify to probable effect

court, and not for the witness, Physician of liquor on the mind. State v. Bridgham

held qualified on insanity, though he dis-

\[Vwash\] 9T 1096. That wounds examined

claimed being an expert. Id. by witness, physician, produced death. Fay

\[10\]. Nonexpert may testify whether gun

\[11\]. state, 52 Tex. Cr. App. 185, 20 Tex. Ct. Rep. 867, 107 SW 55. Cause of and manner

\[10\]. Nonexpert may testify

a person's intent is material, he may testify directly thereto; \[15\] others that one cannot testify to his secret, uncommunicated motives or intentions.\[16\] The trial court is vested with wide discretion in the matter of permitting hypothetical questions to be propounded to experts.\[17\] Such questions must be based on facts shown by evidence,\[18\] but they need not embrace all the facts so shown.\[19\] They may properly state the theory contended for by the party propounding them if supported by evidence.\[20\] Medical works are inadmissible, and, when not alluded to in direct examination of an expert, cannot be placed before the jury on cross-examination.\[21\] Where a witness, however, bases his opinion on a particular treatise, extracts from it may be introduced to impeach him.\[22\]

_Best and secondary evidence,_ See 10 C. L. 125--The rule that best evidence available must be produced \[28\] excludes oral or other secondary proof of the contents of a writing \[24\] or record,\[25\] except where it is but collaterally involved,\[26\] or where the writing or record has been lost or destroyed,\[27\] and due search made, if lost,\[28\] or where the writing is in the possession of the other party " who has failed to produce it after notice to do so." Where there is evidence showing that certain documents material to the issues are in defendant's possession the state may prove the contents orally without giving defendant notice to produce them," since defendant could not be compelled to furnish evidence against himself." There are no degrees of secondary evidence."

\_Documentary evidence.\_See 10 C. L. 176--Private writings, the contents of which are relevant, are admissible " when properly authenticated " and connected with accused." Summaries or abstracts of book accounts are competent where the accounts are complicated and voluminous." Entries contained in the books of account of a bank may be competent without the production of the persons who actually made the entries when the production of such persons is practically impossible." Properly certified copies of records are competent." A mere certificate that a record does not show certain facts is incompetent." The state cannot be compelled to produce a written unsigned statement by a witness which would not be competent as evidence."

_Depositions_"--In Idaho, where it appears that the presence of the witness can not be secured owing to his death, infirmity, sickness, or insanity, or because he is absent from the state, and that due diligence has been used to secure his attendance, his deposition may be read if all the statutory requirments have been observed in the taking of it.\[43\] These facts must all appear at time deposition is offered.\[44\]

\_Demonstrative evidence and experiments.\_See 10 C. L. 127--Objects and articles are admissible in evidence,\[45\] when relevant and material to the issues.\[46\] Photographs,\[47\] diagrams,\[48\] and models,\[49\] illustrative of the testimony, and throwing light on the facts in issue, are admissible. Where articles are offered in evidence which are pertinent to the issue, the court will not exclude them on account of the manner in which they were obtained.\[50\] Where the appearance of a person is in issue, it is proper to make profit of the person.\[51\] Whether experiments in the presence of the jury shall be permitted rests in the trial court's discretion.\[52\] Proof of experiments made out of court is admissible when conditions surrounding them are shown similar to those

43. The necessary steps are: (1) That deposition was taken before the magistrate who conducted the preliminary examination, or the judge of the court to which such party had been held for trial; (2) that it was shown to such magistrate or judge up-on each that there was reason to believe that witness whose deposition was sought would not appear and testify unless security was given; (3) that the magistrate or judge made an order requiring witness to enter into a written undertaking, with sureties, under provisions of Rev. St. 1897, $ 7585. State v. Zarijenga, 14 Idaho, 205, 94 P5. When all the preliminary steps have been taken and witness is shown under ont to be unable to prove sureties, he may be forthwith conditionally examined on behalf of the people under Rev. St. 1887, $ 7588; but it should further be shown (1) that demand had been advised of this right to counsel and to be represented by such, and that defendant was present in person and by counsel if he desired it, or had notice of such examination If on ball; (2) that deposition was taken and examination conducted in the same manner as the examination before a committing magistrate, and certified as required by Rev. St. 1887, $ 7576. Id.

01. Proper to exclude deposition where facts were not shown. State v. Zarijenga, 14 Idaho, 305, 94 P5.

01. Prosecution under liquor law. Not error to allow exhibition of bottle. Phillips v. State \[Ala.\] 47 S 245. Vessels officially tested and stamped, and used by witnesses in measuring liquor sold by defendant, competent evidence. People v. Nylin, 236 IL 19, 86 NE 156. On trial of indictment for receiving pligs of tin stolen from certain pliles, it was proper to receive in evidence other pigs from the same pliles to show identity of those in question. Ahearn v. U. S. T. C. A.\] 158 F 606. Articles of wearing apparel shown to have been property of defendant properly admitted in evidence. State v. Jeffries, 210 Mo, 302, 109 SWV 614. Coat and handkerchief referred to in confession, and found by officer just where accused said they would be admissible. State v. Landers \[S. D.\] 114 NWV 717; State v. Vey \[S. D.\] 114 NWV 719. Broken gun, used in striking deceased, admissible. Tolivier v. State, 53 Tex. Cr. App. 329, 11 SWV 655.

Garments worn by deceased admissible, their present condition being properly explained. People v. Besol \[Ca.\] 87 P 871.

in issue.\[58\] The purpose of a view is not to supply evidence but to enable jury to understand it.\[54\] Granting or refusing it in a particular case is a matter resting in the trial court's discretion.\[58\]

Evidence at preliminary examination and at former trial.\[58\] C. L. 128--Where it is shown that the witness is dead or beyond the jurisdiction, or otherwise inaccessible,\[59\] his testimony at the preliminary hearing, coroner's inquest, or former trial, is admissible,\[67\] and may be proved by the testimony of persons who heard it,\[58\] or by properly authenticated report or record.\[59\] But to render competent testimony at a preliminary hearing or inquest, it should appear that accused was present and had opportunity to confront and cross-examine the witness.\[60\] Testimony of the defend-ant himself, voluntarily given in a former trial, or hearing, and properly preserved and authenticated, may be introduced at subsequent trial,\[61\] accused having thus waived his privilege.\[62\] Testimony at a preliminary hearing on one charge is not competent on the trial of a different charge.\[68\] The offer of the record in another case is not an offer of the evidence taken therein.\[64\] The offer should specifically refer to the evidence desired to be introduced.\[65\] Acquittal of one offense does not exclude evidence used in that trial from being used in the trial for the second offense.\[66\]

58. Proof of experiments inadmissible, unless conditions shown same. Richards v. App. 281, 108 SWV 183. If such testimony is Com., 107 Va. 831, 59 SE 1104. Experiments to show distance at which shots passing through cloth were fired, admissible, but not to show distance at which shot which struck deceased's head, conditions not being shown same. People v. Flori, 123 App. Div. 174, 108 NYS 416. In bromide case, experiments made by shooting off revolver at various distances to show effect on cloth, powder having held to be properly authenticated, marks, etc., could be proved, circumstances being shown similar. Pollock v. State, 136 \[CaI. App.\] 98 P 247. Testimony of witness, Wis. 136, 116 NWV 851.

01. Hanley v. Com. \[Ya.\] 63 SE 10.

01. No error in refusing to allow view of premises, where diagram was in evidence, Stanley v. Com. \[Ya.\] 63 SE 10.

01. Witnesses shown to be beyond jurisdiction, so as to make competent their testimony on the preliminary hearing. Somers v. State (Tex. Cr. App.) 113 SWV 833. Former

estimony of witness should not be received unless it appears that witness cannot, with reasonable diligence, be produced. State v. McClellan \[Kan.\] 98 P 209. More production of subpoena, with return, without showing as to witness' whereabeutics or search for him, is insufficient. Id. Testimony of witnesses on preliminary hearing indmissible, the only showing as to their wherseabouts is dead or beyond the jurisdiction. Nixon v.

being that sheriff had been unable to locate them in southern part of county and neigh-

State, 55 Tex. Cr. App. 325, 108 SVV 931.

being part of Florida. Bell v. State \[Ala.\]

Testimony at combined inquest and preliminary handmissible, where it did not applyon that witness was dead, and evaluated examination, and it did not appear death, being hearsay, held insufficient to make competent witness' testimony at pre-

diction. Id.

liminary trial. Driggers v. V. S. \[OkL\] 95 P 612.

67. Testimony of witness on former trial

who had subsequently removed from the state. State v. Simmons \[Kan.\] 98 P 277.

Testimony of witnesses on former trial ad-

miselible, witnesses being shown to be beyond jurisdiction. Burrow v. Hot Spring, 85

Ark. 836, 108 SWV 823. Testimony of witness

on former trial, when defendant had opportunity to cross-examine, admissible on subsequent trial after witness' death, after
\_Quantity required and probative effect.\_See 10 C. L. 130--The credibility of witnesses and the weight of testimony, including that of experts and of the accused are for the jury, who may apply the usual tests of credibility." Ordinarily, positive testimony is to be given greater weight than negative," but the rule is not absolute," since the opportunity of the respective witnesses for observation should be considered." The rule does not apply when one of two persons having equal facilities for seeing or hearing a thing swears that it occurred and the other that it did not occur." In such case the testimony of neither is negative." Every essential element of the crime must be proved " beyond a reasonable doubt," but need not be proved by direct or positive testimony; circumstantial evidence may

different case, not used on the trial of that case, inadmissible under offer of record in that case. State v. Ayles, 120 La. 661, 45 S 608. No presumption can be indulged that limitation statute v. Ayles, 120 La. 661, 45 S 608. Aequltion from robbery does not exclude admission of the same evidence to show burglary with intent to murder. Nagel v. People, 229 Ill. 598, 83 NE 815.

#7. There is no presumption that a witness tells the truth. Error to so instruct. State v. Aravorson, 102 Minn. 265, 114 NW 957.

Senveri epimona on insanity not conclusive but should be considered. United States v. Chrisholm, 149 F 284. Opinions on value are not to be accepted by jury as conclusive.

111 be sufficient "\* and will alone support a conviction when it is such as to exclude every reasonable hypothesis of innocence, being at the same time consistent with the theory of guilt." In passing on the weight of circumstantial evidence, the circumstances need not be segregated, nor it is necessary that each subordinate fact should be proved beyond a reasonable doubt." A motive need not in all cases be proved." While it is the duty of the state's counsel to present all the testimony on the material facts, whether adverse to the defendant or favorable to him," he need not call every available eye witness," particularly where he is led to believe that a witness is unreliable." In such case it is sufficient if he notifies accused that such witness will not be called by the state." The state is not bound by every statement made by its witnesses." Testimony of an accomplice " is not ordinarily sufficient to support * conviction unless corroborated,85 though in same jurisdictions uncorroborated testimony of an accomplice is sufficient86 in certain cases.87 Evidence in corroboration of an accomplice is sufficient if, independently of the testimony of the accomplice, it tends in some degree to establish the guilt of the accused,88 it need not be of sufficient weight, standing alone, to make out a prima facie case.89 The testimony of one accomplice cannot be considered as corroborating that of another witness who is also an accomplice,90 nor can an accomplice be corroborated by proof of statements made by him in absence of accused.91 Testimony of accused himself has been held sufficient corroboration.92 An extra-judicial confession will not alone sustain a conviction; 93 it must be corroborated 94 by other proof tending to show commission of

egin{tabular}{l|l} \\multicolumn{2}{l}{reversible error to instruct to the contrary.} & \\multicolumn{1}{l}{c}{c} & \\multicolumn{1}{l}{c}{c} & \\multicolumn{1}{l}{c}{} \\ People v. Holden, 111 NYS 1019. Boys who & with the commission of the crime, and \\ stole wire held not accomplices of one & comes from an independent source and goes \\ charged with crime of knowingly receiving & to some material facts tending to show \\ the stolen property; their testimony not that & commission of the offense and that defend- \\ of accomplices. State v. Gordon \[Minn.\] 117 & ant was implicated, but it must amount to \\ NPV 482. Where there was some evidence that & more than suspicious circumstances. People- \\ a witness was an accomplice, but he denied & ple v. Acritelli, 110 NYS 430. Evidence to \\ having anything to do with the crime, it was & corroborate accomplices is sufficient if it \\ proper to instruct jury that if they believed & tends to connect accused, with the crime; it \\ him his testimony would be sufficient to corporate other witnesses who were accomod & is insufficient if it does not connect him \\ & with it. Celender v. State \[Ark.\] 109 SWV 1024. \\ places and to sustain conviction. People v. & 1024. \\ Russo, 111 NYS 190. Proper for postal agents & Corboration of accomplICE sufficient in \\ to enter into correspondence with persons & burigary case. Crime v. State, 55 Tex. Cr. \\ suspected of violating postal laws and induce & App. 174, 109 SWV 128. Testimony of ac- \\ such persons to mail improper matter, and & complice sufficiently corroborated in \\ such agents do not become accomplices so & bery case. People v. Ortega \[Cal. App.\] 94 \\ as to require corroboration of their testi- & P 869. \\ money. Shepard v. U. S. \[C. C. A.\] 160 F 584. \*\*Detective's testimony need not be corrobo- & \\ matched though that of an accomplice must & participation of defendant. Denney v. State \\ be. Spencer v. State, 52 Tex. Cr. App. 289, & \[Tex. Cr. App.\] 111 SWV 404. Corboration 20 Tex. Ct. Rep. 408, 106 SWV 386. Whether & of accomplice insufficient to connect Acc- \\ a witness is an accomplice requiring cor- & used with burigary. Franklin v. State, 58 \\ robotation is question for the jury. Proper & Tex. Cr. App. 388, 110 SWV 64. Testimony of \\ to refuse requested instruction that witness & accomplices not sufficiently corroborated in \\ was an accomplice. Driggers v. U. S. \[Ok1\] & arson case. People v. O'Brien, 109 NYS 267. 95 P 612. & Witness held an accomplice in theft, and 85. Convection cannot be had upon testi- & judgment reversed for want of corroboration. Shilling v. State, 52 Tex. Cr. App. 326, \\ now. Laws 1905, $ 4744. State v. Gordon, & 20 Tex. Ct. Rep. 551, 106 SWV 257. Where \[Minn.\] 117 NPV 483. Conviction of offense & accomplices to charge of fribing witness to \\ of aiding, etc., an illegal registration (for & stay away from trial of gambling case were \\ voting) cannot be had upon testimony of accomplice alone. People v. Acritelli, 110 NYS & not corroborated except by proof of flight of \\ & the witness bribed, the corroborating evidence was insufficient. Birch v. State \[Tex. 430. & 86. Jury may convict on uncorroborated \\ evidence of accomplice if they believe such & orc. App.\] 20. Tex. Ct. Rep. 350, 106 SWV 34. \\ evidence to be true and worthy of belief. & \\ People v. Frankenberg, 236 Ill. 408, 86 NE & In a prosecention of an accomplice, cor- \\ & roborative evidence must show not only \\ People v. Frankenberg, 236 Ill. 408, 86 NE & commission of the offense but that accused 128. A conviction may be had and sustained & was connected therewith as an accomplice. \\ in a criminal case upon the uncorroborated & Testimony the crime."85Corroboration by circumstantial evidence is competent."A confession is not conclusive; accused may disprove statements in it and jury may give it snch weight as it is entitled to under all the evidence."77A judicial confession may alone sustain conviction,"88 and a confession in open court before a magistrate, in a preliminary hearing is held, a judicial confession."87Statutes in some states require corroboration of the prosecuting witness," or testimony of more than a single witness in particular crimes," or testimony equivalent to that of at least two witnesses." Evidence inherently incompetent cannot be considered though admitted without objection."Evidence of good character or reputation is substantive evidence and may have the effect of creating a reasonable doubt and thereby produce an acquittal; the weight to be given it is for the jury."8810. \_Trial.\_See 10C. L. 132--The right to trial by jury and matters connected with the selection of the jury are elsewhere discussed."88(SS 10)\_A. Conduct of trial in general.\_See 10C. L. 132--This is a matter which must of necessity be left largely to the discretion of the trial court." Accused is of course entitled to a fair88 and public9 trial. While the judge, in the exercise of a

by defendant. Layton v. State, 62 Tex. Cr. Oral testimony as to prior indictment of accused having gone in without objection could be considered by jury. Pontier v. To corroborate means not merely to tend to produce confidence in the truth of the confession but to refer to the facts which constitute the corpus delittal. People v. Ran- ney \[Mich.\] 15 Det. Leg. N. 442, 116 NWP 998. There must be evidence to show commission of crime outside confession or statements of accused. People v. Beosold \[Cal.\] 97 P 871. Confession, not in open court, insufficient without other proof of commission of offense. Mosby v. Com. \[Ky.\] 113 SNV 850. Confession, without proof aliquude of corpus delittal, is not sufficient to cont. 116 NWP 8510. Confession, without proof aliquude of corpus delittal, is not sufficient to cont. 117 P. Not error to take recess at 4 P. M. un- vict. Boyd v. State \[Ga. App.\] 60 SE 801. 11 regular time of convening next morning confession of having made whisky held not corroborated. Allen v. State \[Ga. App.\] 61 SEE 840. A confession may be considered in determining whether defendant was connected with the crime charged, though not jury had twice refused to indict him, and alone sufficient proof thereof. People v. Brasch \[N. Y.\] 85 NE 809. The corpus delittal may not be proved by the naked, extra-ju- diletal confession of accessed. Corpus delittal held shown by corroborative evidence in prosecution for obtaining money by false prised of a fair trial. DeGson v. State, 52 pretenses: check returned unpaid. People v. Ranney \[Mich.\] 15 Det. Leg. N. 442, 116 NWP 999. 116 NWP 378. Audience broke into applause, lasting several minutes, when state's coun- sel made sharp retort to counsel for accused during alteration. Court sharply re- baked audience, imprisoned one man, and instructed jury in strong terms on duty to disregard matter. Held no reverebile error. State v. Harrison, 145 N. C. 408, 59 SE 867. NOTE Protection of deaf defendant in criminal prosecution! It is held in Ralph v. State, 124 Ga. 81, 52 SE 298, 2 L. R. A. (N. S.) 509, that a deaf prisoner is entitled to be informed of the proceedings and testi- thuro witnesses or that which is equivalent court to employ an expert stengrapher or the homidetal or other act or particular view of his known infirmity, make pro- vignons for his own assistance. In this case it was held that for the court to allow counsel for the accused to write out and exhibit the testimony to the pris- oner-ware not an abuse of discretion. The sound discretion, may, without violating this right, exclude from the court room during the trial, for any sufficient special reason,10 such portion of the spectators as fall within the class to which the special reason applies,11 Yet an order over defendant's objection to clear the room of all persons except those connected with the case is too sweeping and is error12 from which prejudice to accused is conclusively presumed.13 Private counsel may be employed to assist in the prosecution.14

Footnote 13: The \_L.

dence tending to show guilt of defendant should be introduced in chief '\* and in rebuttal; evidence tending to meet defendant's case is proper,\[10\] but a departure from this rule may be permitted, in the discretion of the court.\[20\] A confession is not rebuttal,\[21\] and where it is admitted out of its regular order, the case is reopened and accused should be allowed to prove that he did not make a confession.\[22\] The court may, of its own motion, withdraw testimony when other testimony, proposed to show its competency, is not introduced.\[23\] In Texas, failure to read the indictment to the jury until the state's case is closed, in a felony case, is reversible error, though it would be competent to reintroduce the testimony after the reading of the indictment. It cannot be presumed that the testimony was introduced.\[24\] Accused may waive the reading of the indictment or the reintroduction of proof, but such waiver must be made to appear clearly.\[25\]

\_Conduct and remarks of judge.\_See 10 C. L. 185.--The presiding judge must at all times during the trial be present and in control,\[20\] but the integrity of a trial is not destroyed by his changing his seat or by a temporary absence from the room if he remains within hearing and in control.\[27\] The judge should carefully avoid any intimation or expression of opinion on witnesses, testimony, counsel, the parties, or the cause, during the progress of the trial,\[28\] but error in this regard may be cured by proper instructions to the jury,\[29\] and will not result in reversal in the absence of a showing of prejudice.\[30\] Illustrative holdings are given in the note.\[31\]

111-treatment, should have been admitted.

25. No waiver shown. Essary v. State, Garrett v. State, 62 Tex. Cr. App. 255, 20 53 Tex. Cr. App. 596, 111 SW 927 Tex. Ct. Rep. 552, 106 SWV 889 26. Skaggs v. State \[Ark.\] 113 SWV 346 38. Error to withhold it and offer it in guinea or rebuttal. People v. Schmitz \[Cal.\] utes not error, it not appearing that he was out of hearing. Skaggs v. State \[Ark.\] 113 SWV 346.

01. Evidence to meet that first offered by defendant is proper. State v. Skillman \[N.\] 25. Court should not directly or indirectly - Lawj 70 A 83. The state has the right to rebut testimony elicited on cross-examin- nation of accused testifying in his own behalf. State v. Heidelberg, 120 La. 300, 45 s 266. Evidence properly offered in rebuttal is not inadmissible because it incidentally strengthens the case made by the state originally. State v. Howard, 120 La. 811, 45 s 260. Admission of testimony reply is largely discretionary. State v. Harmon, 79 Frord, 128 App. Div. 174, 108 TXS 416. Re-Lawj 70 A 83. Proper to allow in rebuttal evidence to meet testimony of accused, though some of it would have been proper in chief. Adams v. Com., 83 Ky. L. R. 779, 111 SWV 348. Admission in chief of evidence properly receivable in rebuttal or rebuttal. People v. Maugha \[Cal. App.\] 96 F 407. It is within the sound legal discretion of the judge to allow prosecution to introduce evidence at the close of defendant's case which might have been more properly introduced as part of the case in chief, and such discretion will not be reviewed in the absence of gross abuse. Crawford v. U. B., 80 App. D. C. L.

01. Should be offered as part of case in chief. State v. Smith, 120 La. 630, 45 S 416. Reversible error to refuse to allow accused to rebut proof of confession so received. State v. Smith, 120 La. 630, 45 S 416. Wickham v. People, 41 Colo. 346, 93 F 478.

01. Record must show it. Essary v. State, 58 Tex. Cr. App. 598, 111 SWV 927.

1.1.1.1.1.2.2.3.3.4.5.6.6.7.6.7.8.8.

## 13 Cur. Law. INDICMENT AND PROSECTION SS 10A.

into custody when the indictment is returned \[87\] or at time of trial.\[88\] Where several persons jointly indicted demand and are granted separate trials, the state may elect which one it will try first,\[39\] and if conviction of one is reversed may elect to try another before a second trial of the first.\[40\] Where two defendants, jointly indicted and tried, are represented by separate counsel, each is entitled to cross-examine witnesses for the state.\[41\]

\_Production, examination and supervision of witnesses.\[42\]--In such matters as the separation or exclusion of witnesses from the court room,\[43\] of cautioning witnesses excluded,\[44\] of allowing witnesses who have violated a rule of exclusion to testify,\[45\] and of limiting the number of witnesses to particular facts,\[46\] the trial court is reseted with wide discretion, the exercise of which is reviewable only for an abuse resulting in prejudice. Courts have power to allow the use of interpreters when justice demands.\[47\] An inquiry as to the qualifications of an interpreter may be waived.\[48\] An objection to the testimony of a witness on the ground of his mental incompetency does not require the court to stop the trial at that point and immediately institute an inquisition as to the mental capacity of the witness.\[49\]

_Statement of accused under Georgia practice.\[50\]_ C. L. 140--In Georgia accused has the right to make a statement to the court and jury not under oath.\[50\] The contents of the statement are not to be restricted or governed by the rules controlling the admissibility of evidence,\[51\] and the fact that statements made by accused are irrelevant is no ground for a ruling or interruption by the court excluding them,\[52\]

trial may be denied, and the various parties

Refusal not prejudical. People v. Hutchmay be tried severally, separately and suc-

Ings \[Cal. App.\] 97 P 325.

cessively, In the discretion of the court. Not

43. Whether witness who violates rule of error to refuse joint trial under Alabama

exclusion and hears other testimony should statute. Burkett v. State \[Ala.\] 45 B 682.

be allowed to testify rests in trial courts

37. Only one belng before court at term

discretion. Boyd v. State \[Ala.\] 45 S 691.

at which indictment was returned. Slezmore

Not error to allow newspaper reporter to v. Com., SS 25 Ky. L. R. 1154, 108 SW 254.

testify, though he had heard part of trial.

38. Especially where the codefendant

other witnesses having been excluded, but could have demanded a separate trial under

this witness not having been sworn. State

the statute. State v. Merchant, 48 Wash.

v. Benjamin \[R. I.\] 71 A 65. Vitness who

69, 92 P 890.

remains in or returns to court room in vlo-

39,40, Napier v. Com., 23 Ky. L. R. 635,

lation of order separating witnesses, and

110 SW 842.

41. People v. Billis, 68 Mlec. 150, 110 NYES

nesses, is not rendered incompetement as witness. State v. Stewart, 63 W. Va. 597, 60 SB

387.

001. See 10 C. L. 137: Examination of VIt-

001. Violation of a rule separating witnesses, 11 C. L. 1420; Vitnesses, 10 C. L. 2078 (for privileges of witnesses). As to

room does not render the witness incompet-

rights of accused, see Constitutional Law, 11

C. L. 688; also, ante, &, 9, Competency of Evi-

violation can only affect his credibility or

dence a affected by Rights of accused.

subject him to punishment for contempt of

43. Granting or refusing motion for sepor-

caution or sequestration of witnesses is

by reason of fact that he remained in court

within sound discretion of trial judge. State

v. Daniels \[La.\] 47 S 599. Excluding witness from court room rests in trial courts

742, 64 SE 744.

d. Court may limit number of witnesses

P 172. It is proper to allow some officer ac-

to fact already proved and not in dispute.

tive in the prosecution to remain for the

purpose of advising with the district at

at. Noun Y. Com., 33 Ky. L. R. 62, 108

torney, though other witnesses for state are

excluded. Id. In trial of charge of felony,

the court should, upon request, exclude from

the court room witnesses for the state who

are not testifying. Maynard v. State \[Neb.\]

116 NW 63. But a denial of oath request

is not a ground of reversal in the absence

of an abuse of discretion resulting in prej-

udice to accused. Id.

44. Matter of instructive witnesses ex-

cluded from court room not to talk with

each other or other persons concerning the

case lies one resting in court's direction.

though the court may properly prevent repetition or exclude facts wholly disconnected with any fact in issue or with the defense.\[53\] The right to make a statement is a personal right granted to defendant and extends no further than to permit him personally to make to the court and jury such statement as he deems proper.\[54\] His counsel has no right to ask him questions while he is making the statement,\[55\] though the trial judge may in his discretion permit counsel to make suggestions to defendant while he is making or when he has concluded it.\[56\] The statement cannot properly be made the means of introducing documentary evidence. Such evidence should be formally offered.\[57\] Defendant cannot be cross-examined on his statement without his consent.\[58\]

_Acoused should be present_ See 10 C. L. 140 throughout the trial, but this rule does not require his presence during the taking of preliminary steps before the trial " or formal proceedings after sentence.\[60\] The right of accused to be present may be waived, in some jurisdictions, where the trial is for a misdemeanor,\[61\] or error in proceeding in his absence may be cured,\[62\] and this rule is applied by some courts even in felony cases.\[63\] But if the right to be present is held to be absolute, it cannot be waived or cured.\[64\] Defendant may waive his right to be present with jury when

SB 916. Prejudicial error for court to inter-

may be entered by counsel. Walston v. Com.,

rupt accused whhle making statement and

32 Ky. L. R. 535, 106 SWV 224. Where defendant was at liberty on ball and left court

compel him to confine the statement to what

room shortly after jurors went to view

was stating reasons for his acts. Woodall

scene of crime, and court did not refuse to

v. State \[Ga. App.\] 62 SE 485.

53. Richardson v. State, 9 Gs. App. 313, 58

was construed as voluntary, and he could

SE 916. Trial judge, in retusing to allow

not complain. Owen v. State \[Ark.\] 111 SWV

counsel to examine defendant or call his

466. Right to be present when verdict is

tention to "one other matter," did not err in

returned may be waived, and is waived

saying in presence of jury. "I have allowed

where defendant is at liberty on bond and

him to make a free and full statement," this

is voluntarily absent when verdict is re-

remark not relating to weight or credit of

evdevdev. State v. Way, 76 Kan. 925, 92 P 159.

statement. Bass v. State \[Ga. App.\] 62 SE

62. No prejudial error where testimony

01.

given during defendant's temporary absence

was strictken when objection was made.

540.

001.

001.

001.

001.

001. Frequency v. State, 129 Ga. 759, 59 SE

taken in absence of accused not reversible

788.

error where court did not know of his

58. Harper v. State, 129 Ga. 770, 59 SE 792.

sence and when he learned if it the testi-

50. Disqualification of presiding judge,

money taken was withdrawn and juror told

calling of another, adjourning court on his

to disregard it, and same testimony was

failure to appear, application for continua-

then taken in his presence. Casson v. State,

ance, and denial thereof, held not steps at

62 Tex. Cr. App. 220 Tex. Ct. Rep. 239,

trial at which defendant must be present.

108 SWV 387. In local option case, defendant

State v. Long, 209 Mo. 266, 108 SWV 35.

temporarily went to an adjoining room during

60. Acoused need not be personally pres-

ent, when bills of exceptions are presented

and signed. Thurman v. Com., 107 Va. 912,

gument and had defendant brought back.

60 SE 99. The personal presence of defendant

and in proceedings connected with his case

man v. State, 53 Tex. Cr. App. 570, 112 SWV

subsequent to his trial and sentence is not

92.

required where such proceeding relates

merely to the correction of the record. Na-

applied to trials of felonies by some courts.

61. In South Carolina a defendant may be

trled for a misdemeanor punishable only by

p 46. The right to be present at every step

imprisonment in his absence. State v. Rab-

ens, 79 S. C. 542, 60 SE 442. The trial of

a misdemeanor may proceed in the absence

of accused if he is represented by an attorney. B. & C. Comp., 1 3778. State v. Way-

mire \[Or.\] 97 P 46. Right of accused and his attorney to be present when the verdict

is rendered may be waived. Right waived

where accused and counsel left court room

without leave and were not present. Id.

In misdemeanor cases, defendant may, if

adly summoned, or on ball, be tried in his

46. The right to be present during the

absence, and any plea save that of guilty

wholes of the trial cannot be waived or they go to view premises.\[65\] In noncapital cases in Mississippi, accused, when out on bond, may waive the right to be present when the verdict is received, having been present throughout the trial.\[66\] But such waiver is strictly his personal right and cannot be exercised by his counsel.\[67\] In capital cases, whether defendant is in jail subject to the power of the court to produce him, or on bond, it is fatal error to receive the verdict in his absence, and in noncapital cases it is fatal error to receive the verdict in his absence where he is in jail.\[68\] In Kentucky, upon an indictment for a misdemeanor, defendant, if duly summoned, or on bail, may be tried in his absence, and may though absent, by counsel, put in any plea save that of guilty.\[70\] If no plea is entered, judgment may go against defendant by default and the court may impose a fine if fixed by law.\[71\] If the fine be not fixed by law, or if imprisonment may be part of the punishment, a jury must be called to assess the punishment,\[72\] but may be instructed by the court to find defendant guilty and assess the punishment.\[73\] (SS 10) _B. Argument and conduct of counsel._ See 10 C. L. 141.It is improper for counsel to persist in attempting to get incompetent evidence before the jury,\[74\] or to introduce incompetent matters by indirect means,\[75\] but the offering of incompetent evidence, in good faith, is not error.\[76\] _Opening address.\[86\]_ See 10 C. L. 142.While the opening statement should include only facts which are material and competent and proper to be proved\[71\] and which counsel expects to prove,\[78\] reasonable latitude should be allowed where the subject

taken away by the court. State v. Steven-

reversible error. Spencer v. Com., 32 Ky. L. son (IV. VA.) 62 SE 688. Where special

R. 838, 107 SWV 342. It is only where disjudge heard case and received plea of

trict attorney persists in asking improper guilty, and regular judge then appeared and

questions or attempting indirectly to get im-

examined witnesses and questioned special

proper matter before the jury that judgment judge in absence of accused to inform him-

will be reversed on account of improper

self of the facts, and then pronounced judgment. No error where he voluntarily

ment, held reversible error. Id. It being

abandoned a line of questions, saying he

necessary for court to inform himself of

would stop for fear of making an error.

facts to ascertain degree of crime, this is a

Peeople v. Cowley \[Cal. App.\] 94 P 866.

part of the trial, and accused is entitled to

be present. Id. Rendition of verdict in

felony case in absence of accused and his

to ensure, and dispersal of jury without giving

tesity to, court having excluded the mat-

ing accused right to poll the jury, under

Code 1896, SS 5308, held to amount to an ac-

until. Judgment reversed and prisoner

order discharged. Harris v. State \[Ala.\] 45

S 216. Fact that court called jurors for

ward after they had dispersed and asked

them if verdict read to them was their verdict.

dict, to which "some of them" replied it

was, did not cure the error. Id. In trial

of misdemeanor where imprisonment is part

of penalty, no part of trial can be had in

defendant's absence, and error in receiving

evidence in his absence cannot be cured by

an offer to have it reintroduced. Washing-

Gowan, 86 Mont 422, 93 P 552. Not reversal-

bc to offer certain documentary and real

evidence, In good faith, and have it marked

for identification, though it was excluded.

People v. Simmons, 103 NYS 190.

77. Numerous statements by prosecuting

attorney held within the evidence, in larency

case, against "confidence men." People v.

NYS 190; People v. Stone, 109 NYS 199.

78. Not error to refer to confession of ac-

complete, signed also by accused, which was

proved by state. People v. Siemsen, 163 CaI.

87, 95 P 863. Opening statement should be

confined to statement of case and evidence

expected to be produced. Proper for court is not so elementary that every lawyer should know it." Discussion of the law or admonitions or instructions to the jury are improper." The bill of particulars filed by the state may be read." In Indiana, the defendant has the absolute right to present his defense in the order fixed by statute." A request to be allowed to make the opening statement out of the statutory order is addressed to the court's discretion." In Washington, the court may require the opening statement for accused to be made at the close of the state's case." In Georgia, accused has the right to open and close only when no evidence has been offered in his behalf." Where evidence has been introduced on behalf of accused, or heard and examined by the jury, counsel for accused cannot, as a matter of right, withdraw such evidence and thus gain the right to open and close."

\_In summing up.\_See 10 C. L. 142--Counsel may refer to any matter proved," draw legitimate inferences from the testimony," discuss the character and credibility of witnesses," illustrate his argument," show the enormity of the crime," call attention to the form of the instructions," and within the limits of the record and well settled rules of procedure use in his argument any arts and devices," and all the

to soon confine counsel. Maynard v. State \[Fabir inferences from the evidence held not reversible error. People v. Kirk, 151 Mich. 253, 14 Det. Leg. N. 927, 114 NVV 1023. State's evidence held not reversible error. People v. Simmons, 109 NYS 190; People v. Stone, 109 NYS 199. 80, Maynard v. State \[Neb.\] 116 NVV 58. 81. Cooke v. People, 134 Ill. App. 41. 82. Statute provides for statement of defense after state's evidence in chief is In. Williams v. State \[Ind.\] 85 NE 349. 83. A request by defendant to vary the statutory order la addressed to the discretion of the trial judge, the exercise of which is reviewable only for abuse. Held not abuse of discretion to deny request of defendant to make statement to jury directly after statement of state's case by prosecuting attorney. Williams v. State \[Ind.\] 85 NE 349. 84. Under Ball. Ann. Codes & St., # 4993, it is proper for court to require defendant to make a statement to the jury at the close of the state's case, though it is optional with defendant to make such statement before or at close of state's case. State v. King \[Wash.\] 97 P 247. 85. Proceedings at trial reviewed, and held that certain documentary evidence was offered and received in behalf of accused. Hence, counsel for accused did not have the right to open and close the argument. Lewis v. State, 129 Ga. 731, 59 SE 782. 86. Lewis v. State, 129 Ga. 731, 59 SE 782. 87. Evidence held to warrant argument of prosecuting attorney. Lacy v. State \[Ala.\] 45 S 680. Where testimony showed death of person robbed, proper for prosecuting attorney to allude to his death to account for his failure to testify. State v. Martin \[Mo.\] 113 SWV 1089. Where it appeared, in robbery case, that defendant gave his gripps to his attorney and that they were spirited away and could not be searched, comment of such facts was proper, though the attorney could not be made to testify. Tabor v. State, 52 Tex. Cr. App. 387, 107 SWV 1116. 88. Statement by district attorney as to what evidence showed held not improper. 89. 80. 81. 81. 82. Argument of prosecuting attorney as to what evidence showed held not improper. 89. 81. 83. Argument of prosecuting attorney to alluded to the court. 89. 80. 81. 84. Argument of prosecuting attorney to alluded to the court. 89. 81. 82. Argument of prosecuting attorney to alluded to the court. 89. 81. 83. Argument of prosecuting attorney to alluded to the court. 89. 80. 81. 84. Argument of prosecuting attorney to alluded to the court. 89. 81. 82. Argument of prosecuting attorney to alluded to the court. 89. 81. 83. Argument of prosecuting attorney to alluded to the court. 89. 81. 84. Argument of prosecuting attorney to alluded to the court. 89. 81. 84. Argument of prosecuting attorney to alluded to the court. 89. 81. 85. Argument of prosecuting attorney to alluded to the court. 89. 81. 86. Argument of prosecuting attorney to alluded to the court. 89. 81. 87. Argument of prosecuting attorney to alluded to the court. 89. 81. 88. Argument of prosecuting attorney to alluded to the court. 89. 81. 80. Argument of prosecuting attorney to alluded to the court. 89. 81. 82. Argument of prosecuting attorney to alluded to the court. 89. 81. 80. Argument of prosecuting attorney to alluded to the court. 89. 81. 82. Argument of prosecuting attorney to alluded to the court. 89. 81. 83. Argument of prosecuting attorney to alluded to the court. 89. 81. 84. Argument of prosecuting attorney to alluded to the court. 89. 81. 85. Argument of prosecuting attorney to alluded to the court. 89. 81. 86. Argument of prosecuting attorney to alluded to the court. 89. 81. 87. Argument of prosecuting attorney skill, power and learning at his command." He should not refer to matters not in evidence," especially where such matters are legally incompetent or have been expressly excluded," deny the truth of a showing made for an absent witness, admitted to avoid a continuance," assert his personal belief as to the merits," discuss the question of punishment, where the jury does not fix it," use abusive epithets,1 seek to inflame the minds of the jurors ' by appeals to prejudice 8 or by reference to mat-

94. Within the limit of the facts proved | stable error. Polon v. Com., SS2 Ky. L. R. and fair inferences therefrom, counsel may 138%, 108 SW 84%. Held prejudidal error for employ all the skill, learning, power and prosecuting attorney to refer to wholly differ force at his command in argument. House-

ferent crime committed by other men, where man v. Com., SS3 Ky. L. R. 311, 110 SW 23%. the argument was persisted in after objection and court refused specific ruling at the time, though general instructions told but license is confined to facts in evidence, jury to disregard such remarks. State v. State v. State v. Market, 103 Mc. 63, 68 A 464. Violation of this rule is ground for new trial

bloggett \[Or.\] 92 P 820. Where prosecution

by motion or for exception to the court's

journally indicted, it is improper for counsel

refusal to check counsel and caution jury.

to comment on the failure of defendants to

lde the other on the stand as a witness.

95. Comments of counsel should be con-

Harville v. State \[Tex. Cr. App.\] 113 SW 283.

fined to evidence. Lightfoot v. State \[Tex. Cr. App.\] 106 SW 345. Proper for court to

argue that absent witness would not have

stop argument not warranted by evidence.

pittman v. State \[Ala.\] 45 S 245. Argument

monwealth had admitted to be read to avoid

not based on testimony should have been

a continuance. Howerton v. Com. \[Ky.\] 112

excluded. Hill v. State \[Ala.\] 46 S 864.

PSecuting attorney should not read to jury

affavit of prosecutrix on preliminary which

opinions on effect of evidence; but argument

has not been introduced in evidence. State

held not error. Crenshaw v. State \[Ala.\] 45

v. Campbell, 210 Mc. 202, 109 SW 706. Re-

S 681. It is improper for prosecuting at-

mark of county attorney interrupting argu-

turned to state his personal opinion of the

ment of accused's counsel, and outside the

evidence, held erroneous. Garrett v. State, 52

Text. Cr. App.\] 255, 20 Tex. Ct. Rep.\] 552, 106

SVW 889. Argument as the "break in pre-

tended all!" improper, defendant not rely-

494.

ing on that defense, and offering no proof

99. Argument relating to power of court

thereof. Johnson v. State \[Fla.\] 46 S 154.

Argument as to mistake made by jury in

tending to induce conviction of certain

another case, improper, and court properly

steps of bromide. V. Mindham v. State \[Mis.\]

stopped it. Batties v. State, SS 53 Tex. Cr. App.\] 202, 109 SW 195. Argument that de-

for accused to argue for penetlentary sen-

fendant has been previously convicted for

violating local option law, and had "bootstrap"

former was imposed no appeal would be

legged" whiskey over the country, preju-

taken and county would be saved expense.

divial error, when there was no evidence to

phillips v. State \[Mis.\] 45 S 572.

support it, and defendant's character was not

1. Where defendants did not testify, and

in issue. Instruction to jury to disregard

ditdit attorney called jury\* attention to

it held not to cure error. McKinley v. State,

their "hard" and "criminal" faces and argued

62 Tex. Cr. App.\] 182, 20 Tex. Ct. Rep.\] 250,

they were just the kind of men to commit

106 SWY 342.

96. Argument outside the record, to get

toned such argument, prejudical error was

in inadmissible evidence, held reversible

err. Askew v. State \[Tex. Cr. App.\] 113 SW

287. Argument that defendant was charged

with other acts but state could not show

tension, improper. Batties v. State, SS2 Tex. Cr. App.\] 108 SW 195. Argument held not

such allusion to former conviction of man-

ldeughter as to constitute error. Burnett v. State, SS1 Tex. Cr. App.\] 515, 112 SW 74. Referenc to

then v. Com. \[Ky.\] 112 SW 606. Argument, in

erence to another murder improper where

there was no evidence of it, though jurors

were questioned as to it on the vlor dire-

People v. Helm, 152 Cal. SS2, 93 P 99. In

prosecution for carrying a pistol, it was

reversible error for counsel to argue that

pistol was carried for purpose of shooting

another person. Hubbard v. State, SS2 Tex. Cr ters which jurors ought not to consider.4 Direct or indirect reference to the failure of accused to testify is error.5 Reference to the appearance " or demeanor " of defendant, while testifying, and of his failure to produce available witnesses " has been held proper. Reference to failure to introduce evidence of good character," or to offer proof which would be incompetent," improper. Argument or remarks otherwise improper may be permitted when provoked by or in answer to argument for the other side.11 The reading of law to the jury is a matter resting in the sound discretion of the trial court.12 Errors in statements of fact may be corrected,13 and a outside this record, appealing to prejudices while on stand in his own behalf not imporer. Moore v. State, 52 Tex. Cr. App. court and rules which should govern trial of criminal causes, held prejudical and cause for reversal. State v. Kaufman \[S. D. J118\] on the stand is matter which can properly be commented on. Battles v. State, 53 Tex. Cr. App. 202, 109 SWP 195. No error where tending to degrade administration of justice to put certain person, present in court, on the white man not on his oath before you will a negro who is sworn. You can swallow those negroes if you want to but John R. Cooper will never swallow them." Battle v. U. S., 209 U. S. 36, 52 Law. Ed. 670.

Footnote 12: Not an abuse of discretion to allow the use of the law to be made.

legally erroneous argument made in good faith is not ground for reversal.\[14\] It is the duty of the court to keep attorneys within the bounds of legitimate argument and to check them when they exceed such bounds.\[15\] In case of controversy as to the testimony of a witness, during the arguments, the court may have the witness recalled or have his testimony read by the reporter, and, if neither of these courses is insisted on by counsel, the matter may be left to the recollection of the jury. It is not the duty of the court to settle such controversy by stating his recollection of the testimony.\[10\] The time to be allowed in preparation for argument,\[17\] the length,\[18\] and the number\[19\] of arguments, and the interruption of arguments by the taking of a recess,\[20\] are matters resting in the court's discretion. In Georgia the party entitled to the concluding argument should be required to state to his adversary, before he addresses the jury, the questions of law which he will raise and read or present the authorities he expects to use.\[21\] But this rule does not apply where the only question is one of fact, and there is no controversy as to the law. Refusal of the court to require notice of questions and authorities used in concluding argument is not ground for new trial, the proper practice being to apply for leave to reply to arguments not used excepting in concluding address.\[22\]

Improper remarks or argument are not cause for reversal, unless under the circumstances, prejudicial to accused.\[23\] Error of this kind is usually held to be cured when the remarks are withdrawn, or when the court checks or rebukes counsel, and instructs or cautions the jury to disregard the objectionable remarks or argument.\[24\]

counsel to read authorities and portion of

Remarks of counsel in opening statement recruit charge, which was afterwards given,

ferring to another act of accused, harmless Buchanan v. State, 55 Tex. Cr. App. 235,

where accused testified to act without objection. Crofton v. State, 84 Ark. 623, 106

from decisions as part of argument held le-

SWF 671. Harmless error to allow employed

gitimate. Robinson v. State \[Ala.\] 45 S 916,

counsel to make argument, trial being other-

wise regular. Adams v. Com. \[Ky.\] 111 SWV

other case to be read to the jury. Cordes v. State \[Tex. Cr. App.\] 112 SWV

948.

Remark of prosecuting attorney that

jury had nothing to do with the law of the

13. Error in statements by prosecuting

ofcer may be corrected. State v. Montgomery,

instruct jury to disregard the remark,

121 La. 1005, 46 S 897.

14. Yetdict will not be set aside because

for an opinion given by him (the judge) on

prosecuting attorney argued an erroneous

proposition of law to the jury. State v. State, 107 Md. 11, 68 A 286.

proposition of law to the jury. State v. State, 121 La. 55, 46 S 99.

That claim made

by counsel is legally erroneous, not ground

for reversal. People v. Boyd, 151 Mich. 577,

15 Det. Leg. N. 36, 115 NVV

687.

001. State v. Blogdet \[Cor.\] 92 P 820.

001. Fort v. State, 3 Ga. App. 448, 60 SE 282.

001. Time to be allowed in preparation for

argument after evidence is in rests in courts

discretion. State v. Heidelberg, 120 La. 300,

45 S 256.

18. Limiting time of argument discretion-

ary. Welch v. State \[Ala.\] 46 S 856.

19. Within court's discretionary power to

limit arguments for accused to two, state

having same number. Watson v. State \[Ala.\] 46 S 232.

20. No rule requires that arguments of

counsel should be completed before a recess

is taken; such matters discretionary. State

v. Walker, 79 S. C. 107, 60 SE 309.

21, 22. Fort v. State, 3 Ga. App. 448, 60 SE

22. Argument harmless where record

showed guilt. Cordona v. State, 53 Tex. Cr. App. 619, 111 SWV

145. Extravagant statements

of counsel and statements unstained by

evidence are not ground for reversal when

harmless. Lowell v. People, 131 Ill. App. 137.

17.

- (SS 10) \_C. Questions of law and fact.\_See 10 C. L. 147.--The weight of evidence and credibility of witnesses,\[28\] and all controverted questions of fact,\[26\] are for the jury. Where facts are undisputed, whether they constitute the crime charged is a question of law." In Maryland, the jury are the judges of the law as well as of the facts in criminal cases,\[28\] though it is proper for the presiding judge to advise them in regard to his interpretation of the law, where he informs them that they are free to reject or adopt his view as they see fit.\[29\] If there is any doubt as to whether a witness was an accomplice, the issue should be submitted to the jury,\[28\] but if there is no sacused to testify not reversible error where court at once admonished jury to disregard accused, and court, on objection, rebuked it, and It could not have been prejudicial in him and told him to address jury. State v. View of proof. People v. Amer \[CaI. App.\] 96 & Jeffries, 210 Mo. 302, 109 SW 614. Where defendant's counsel referred to possible 30-year sentence, it was improper for solicitor to state that defendant would probably calal, especially in view of cautionary instructions by court. State v. Peterson \[N. C.\] & (N. H.) 71 A 30. The declaration by the prosecuting attorneys in this case as to what a certain "black jack" could tell and what the accused could tell, where followed by an admontion from the court that the remark should be disregarded and not re-peated, did not amount to prejudicial mis-conduct. Williams v. Ohio, 11 Ohio C. C. (N. S.) 4.
- 25. Starke v. State \[IVyo.\] 96 P 148. Weight to be given testimony of experts on insanity for jury. Commonwealth v. Shuts \[Pa.\] 70 A 823. Jury not obliged to believe regulatory statements of defendant inconsistent with physical facts and other testi-monary, though defendant admitted the killing. Wing v. State \[Miss.\] 45 S 862.-Weight and effect of evidence is for jury. State v. Walker \[N. C.\] 63 S 276.
- 26. Questions of fact for jury, evidence being conflicting. State v. Farr \[R. L.\] 69 A 6. Whether time charged was proved held for jury; not error to refuse to exclude testimony. Hodge v. State \[Ala.\] 45 S 800. Capacity of defendant to entertain criminal distressed them and defendant elected to proceed and court did caution the jury, no reversible error was shown. Drane v. State \[Miss.\] 45 S 149. Comments of private prosecuting counsel not prejudicial error when withdrawn and jury were instructed to disregard them. Wilson v. State, 52 Tex. Cr. App. 173, 20 Tex. Ct. Rep. 134, 105 SW 1026.
- 27. Abmolition to counsel held to cure imm-proper argument. Gibson v. State, 58 Tex. Cr. App. 349, 110 SW 41. Argument by prose-cutting attorney outside the evidence not prejudicial when he was admonished by court on objection. People v. Weick, 123 App. Div. 828, 107 NYS 988. Argument outside the evidential credence caused by admonition of court to counsel and jury. Cordes v. State \[Tex. Cr. App.\] 112 SW 943. Argument, relating to objections to excluded testimony, not shown to be prejudicial, court having told counsel to confine himself to the record. Innocente v. State, 107 Md. 11, 68 A 286.
- 28. The argument that the jury that question as to this fact, the court should charge that the witness was an accomplice.\[81\] The form or extent of punishment is sometimes left to the jury.\[82\]

(SS 10) \_D. Taking case from jury.\_See 10 C. L. 148.--If there is evidence to support conviction, the case should not be withdrawn from the jury,\[83\] but a verdict of not guilty should be directed,\[84\] or the prosecution dismissed,\[85\] where the proof is insufficient to sustain convictions. Defendant is entitled to have the cause submitted to the jury if there is any evidence from which they might infer that he is not guilty,\[86\] and ordinarily a court has no power to direct a verdict of guilty\[87\] after plea of not guilty.\[88\] In Michigan the court may inform the jury that they should render a verdict of guilty, but cannot compel them to render such verdict.\[88\] In Arkansas it is held that a court has power, in a prosecution of a misdemeanor punishable by fine only, to direct a verdict of guilty where the facts are undisputed and admit of but one inference,\[40\] but it has no such power where the offense is one punishable by fine or imprisonment.\[41\] Where there is no dispute as to the facts, it is the duty of the court to direct a verdict on a plea of former jeopardy or former acquittal.\[42\]

(SS 10) \_E. Instructions. Necessity and duty of charging.\_See 10 C. L. 148.--It is the duty of the court to give full, clear and proper instructions on the law of the case,\[43\] and requested instructions should be given if the request is timely\[44\] and is

11 reasonably tends to show guilt. State v. Dobbins \[N. C.\] 62 SE 635. Case should go court may charge that witness is an accomplice. Spencer v. State, 62 Tex. Cr. App. 289, true, would justify conviction. State v. Walker \[N. C.\] 63 SE 76. It is not a ground of demurrer that the jury may not draw from all the testmomy the Inference necessary to justify conviction. Whatever state, 53 Tex. Cr. App. 336, 110 SWV 59. Proper to instruct jury to assess punishment at confinement in theory if they found her guilty (of theft), there being no evidence that she v. Brown, 33 Utah, 109, 93 P 52. If the evidentiale introduced by the state fails to terminate defendant or is wholly Insulfient. SWV 363.

33. Evidence is for jury unless it is so palpably inconclusive as to fail to make prima facale case. Wway v. State \[Ala.\] 46 S 273. General charge properly refensed where evidence is in conflict. Wright v. State \[Ala.\] 47 S 201. General affirmative charge properly refused. Barkett v. State \[Ala.\] 45 S 682. Question of guilt for jury; general affirmative charge properly refused. Fewer v. State \[Ala.\] 45 S 913. Evidence being sufficient to go to jury on issue of guilty, instructions in the nature of an affirmative charge for defendant were properly refused. Moore v. State \[Ala.\] 46 S 656. Verdict of not guilty will not be directed unless proof is exceedingly clear and without contradiction. State v. Franklin \[S. C.\] 60 SE 953. Evidence sufficient to go to jury on question of guilty at another with intent to do bodily harm. State v. Hunskor, 16 N. D. 420, 114 NVP 96. In Louisiana, judge does not take case from jury on ground of want of evidence. State v. Dudenberger \[La.\] 47 S 614. Case is for jury it there is any evidence connecting accused with crime. Creech v. Com., 32 Ky. L. R. 808, 107 SWV 212. If there is any evidence, however slight, tending to show the guilt of accused, the issue must be left to the jury. Commonwealth v. Murphy \[Ky.\] 109 SWV 353. Testimony should go to jury, though weak, unless wholly conjectural, if in due form,\[45\] and if it is a correct statement of law 46 and applicable to the facts.47 Requests which are incorrect,\[48\] or which are not responsive to the issues,\[49\] or warranted by the evidence,\[50\] or which are argumentative,\[51\] misleading,\[52\] unintelligible,\[53\]

01. Refusal to give requested instructions is not available error where requests were not signed by accused or his counsel and delivered to court before commencement of argument, as required by Burns' Ann. St. 1901, 18 1829, subd. 6. Faaecok v. State, 169 Ind. 488, 82 NFC 1039. Not error to refuse to recall jury for additional instructions requested by accused where no former request had been made to give such instructions. Barton v. State, 55 Tex. Cr. App. 443, 111 SWW 1042.

01. Oral request for general charge properly refused. Stallworth v. State \[Ala.\] 46 S 518. Charge on impeachment of witnesses not required, no written request therefore having been made; not error to refuse oral request. Strickland v. State \[Ga. App.\] 61 SB 841.

01. Request to charge that state must show commission of crime in county of prosecution should have been granted. Holocene v. State \[Ga. App.\] 62 SE 647.

01. Court should give requested instructions applicable to evidence. State v. Short. 120 La. 187, 45 S 98. Error to refuse charge that testimony of witnesses considered unworthy of belief might be disregarded. Burgett v. State \[Ala.\] 45 S 682. Requested charge on issue whether crime was committed within limitation period should have been given. Battles v. State, 53 Tex. Cr. App. 202, 109 SWV 195. Heid error to refuse to charge jury in rape case that delay in prosecution should be considered, and that acquittal should follow if her explanation of delay is unreasonable, or delay was for purpose of extrorting money or property. Commonwealth v. Myraserczyk, 34 Pa. Super. Ct. 256. Where one accused of violating liquor law stated that he acted as agent for two named buyers and obtained whiskers from a named illegal vendor, and prosecuting attorney commented on his failure to produce the named men as witnesses to corroborate his statement, it was prejudicial error to refuse a proper request to charge that no man can be completed to incriminate himself. Williams v. State \[Ga. App.\] 62 SE 671.

01. Instruction not stating correctly law applicable to facts shown properly refused. Clements v. State \[Neb.\] 114 NWV 271. Erroneous requests should be refused though errors favor the state. Smith v. State \[Ala.\] 45 S 626. Instruction partially incorrect may be refused. Id. Not error to refuse charges requested by defendant requiring acquittal on hypothesis warranting conviction. Lacy v. State \[Ala.\] 45 S 680. Proper to refuse charge that jury are not to consider fact that grand jury have found indictment, since it must necessarily be considered. Crenshaw v. State \[Ala.\] 45 S 631. Requested charges properly refused because argumentative, confusing, incorrect in law, invading province of jury, and misleading. Vway v. State \[Ala.\] 46 S 273.

01. Instructions not applicable to evidence properly refused. Reynolds v. State \[Ala.\] 45 S 844. Fowler v. State \[Ala.\] 45 S 913; West v. State \[Ala.\] 45 S 93; Lawson v. State elliptical,\[54\] or which invade the province of the jury,\[55\] are properly refused. If the general charge covers the case, more particular instructions need not be given unless requested,\[56\] and defendant cannot complain of the omission of an instruction which he failed to request\[57\] in the manner required by law or the rules of the

v. State \[Ala.\] 45 S S91; Lacy v. State \[Ala.\] 45 S 882.

45 S 680; Burkett v. State \[Ala.\] 45 S 883.

Fowler v. State \[Ala.\] 45 S 813; Robinson v. State \[Ala.\] 46 S 273.

State \[Ala.\] 45 S 816; Logan v. State \[Ala.\] 45 S 8174; McG-46 S 48; Patton v. State \[Ala.\] 46 S 863; Poland v. State \[Ala.\] 46 S 176; State v. Ross Gibbs v. State \[Ala.\] 47 S 865; Carter v. State \[Ala.\] 47 S 819; Sweatt v. State \[Ala.\] 47 S 842; 115 Nw 275. Not error to further amplify 194; People v. Cowley \[Carb.\] 49 S 86;

functions in absence of any request there. People v. Coulon, 151 Mich. 200, 14 Det. Legg.

N. 907, 114 Nw 1013. Instruction answering

Charge on character sufficient, in absence of argument of prosecuting attorney properly

written request for further charge. Jones v. refused. Ward v. State \[Ala.\] 45 S 221.

State, 130 Ga. 274, 60 SE 840. Instruction not

quested charge on quantum and character

required by evidence on defense of insanalty,

of proof held argumentative and on the

none being requested. Cate v. State \[Neb.\] weight of the evidence. Gibson v. State \[Si.\] 114 Nw 942.

Omission to give particular

Tex. Cr. App. 349, 110 SW 41.

Sn. Morrison v. State \[Ala.\] 46 S 846;

error when no such instruction was requested

O'Grady v. People, 42 Colo. 312, 95 P 346;

Minor v. State \[Fla.\] 45 S 816. Misleading;

abstract. Thomas v. State \[Ala.\] 41 S 827.

Agurmentative, confused, misleading. Hill v.

State \[Ala.\] 46 S 864. Confused and mislead-

ment, and evidence was in conflict therewith,

ing request properly refused. Burkett v.

Court was not bound to charge on the law

State \[Ala.\] 45 S 862. Proper to refuse Instructions; bad in law, misleading, and

abstraction. Hirt v. State \[Ala.\] 46 S 858.

He. G.

quest to charge containing correct law in the

abstract may be refused if likely to be mis-

leading or confusing as applied to facts of

case. Hagood v. State \[Ga. App.\] 62 SE 641.

Requested charge, misleading in view of

facts, properly refused, though abstractivity

correct. Lawson v. State \[Ala.\] 46 S 859.

Charge not based on evidence and misleading.

Hays v. State \[Ala.\] 46 S 471. Charge singling out certain phases of evidence,mislead-

Ing and argumentative, properly refused.

Switt v. State \[Ala.\] 45 S 801.

Requested charge containing an erroneous designation

of party properly refused. Moore v. State \[Ala.\] 45 S 856.

S3. Unintelligible charge properly refused.

Lacy v. State \[Ala.\] 45 S 680. Unintelligible,

defective and misleading. Greer v. State \[Ala.\] 47 S 800. Unintelligible, abstract,

liptical, ignoring lower offenses charged.

McBryde v. State \[Ala.\] 47 S 802.

54. Brooke v. State \[Ala.\] 46 S 491. Elliptical and partially unintelligible charge

properly refused. Parker v. State \[Ala.\] 45 S 248. Elliptical; properly refused,

change on effect of evidence of character.

Burkett v. State \[Ala.\] 45 S 683.

55. Charge on weight of evidence properly

refused. Wilson v. State, 53 Tex. Cr. App.

$56, 110 SW 904; Cordes v. State \[Tex. Cr. App.\]. 112 SW 943. Proper to refuse instruction

invrading province of jury on question of

intent. Crenshaw v. State \[Ala.\] 45 S 831.

Requested instruction in conflict with rule

where vense was clearly proved, failure to

that jury are sole judges of weight of tes-

trimony and credibility of witnesses properly

request for such charge being made. McBrused. People v. Oliver \[Cal. App.\] 95 P 30.

Donald v. State \[Fla.\] 46 S 176. Not error

172. Request that testimony of persons who

say they saw a will signed by testator,

lowering degree of offense,

### 74.1 Indictment and Prosecution $ 10E.

12 Cur. Law. court."In some jurisdictions it is held that a request may properly be refused if any modification is required." The practice of requesting an unnecessarily large number of instructions is disapproved." In Texas, requests given for accused must be signed and verified by the judge." The jury should be instructed with especial accuracy where the evidence is close and conflicting." Doubt as to the propriety of a particular instruction should be resolved in favor of accused." Additional instructions should be given when requested by jurors," and such instruction is properly confined to the point covered by their request."

_A requested instruction substantially covered by the charge given_ See 10 C. L. 118 may be refused." The exact language of the request need not be used; it is sufficient if the charge covers the point fully and correctly."

egin{tabular}{l|l} any request. Williams v. State, 55 Tex. Cr. & Burrow v. Hot Springs, $5 Ark. 396, 108 SVW App. 396, 110 SVW 63. & 823; Grissom v. State \[Ark.\] 113 SVW 1011; People v. Simmons \[Cal. App.\] 95 P 48; People not error in absence of written request. & v. Oliver \[Cal. App.\] 95 P 172; People v. Emmons \[Cal. App.\] 95 P 1032; People v. Maughs \[Cal. App.\] 96 P 407; People v. King \[Cal. App.\] 96 P 916; People v. Whalen \[Cal.\] 98 P 194; Ofrady v. People, 42 Cool. 312, 95 P 346; Hamilton v. State, 129 Ga. 74, 59 SEN 803; Crawford v. State \[Ga. App.\] 62 SE 501; flaggood v. State \[Ga. App.\] 62 SE 641; Holcounbe v. State \[Ga. App.\] 62 SE 647; People v. Hornkler, 231 Ill. 566, 88 NE 425; People v. Frankenberg, 236 Ill. 408, 86 NE 128; Racock v. State, 169 Ind. 488, 82 NE 1039; State v. Gage \[Iowa\] 116 NWV 596; State v. Hoel \[Kan.\] 94 P 267; Dowell v. Com., 82 Ky. L. R. 134, 108 SVW 847; Commonwealth v. Jewelle, 199 Mass. 558, 85 NE 851; People v. Coulon. 151 Mich. 200, 14 Det. Leg. N. 907, 114 NWV 1013; State v. Soper, 207 Mo. 502, 106 SWV 32; State v. Campbell, 210 Mo. 203, 109 SWV 706; State v. Page, 212 Mo. 244, 110 SWV 1057; State v. Miller, 212 Mo. 73, 111 SWV 185; Leedom v. State \[Neb.\] 116 NWV 496; Shumway v. State \[Neb.\] 117 NWV 407; State v. Skillman \[N. J. Law\] 170 A 83; George v. U. G2. Sheppelman v. People, 134 Ill. App. 556, 83 G. Gambrell v. State \[Miss.\] 46 S 188. Instruction on lower degrees should be given if court has any reasonable doubt whether evidence requires such instruction; if court is not in doubt, such instruction need not be given. State v. McGowan, 86 Mont. 422, 93 F 562. & 64. Additional instructions may be properly given, though requested by only one juror. State v. Daly, 210 Mo. 664, 108 SVW 53. Where the jury returns and asks for additional instructions, the court should give them, even though instructions have already been given on requested points. Error to refuse to give additional instructions in answer to questions by jury, on ground that they had already been answered. Commonwealth v. Smith \[Pa.\] 70 A 850. & 65. Where the jury, having been charged, returns and requests an instruction on a particular question, it is not error to confine the Instruction to the specific point suggested by the jury. Kimberly v. State \[Ga. App.\] 62 SE 571. & 66. Smith v. State \[Ala.\] 45 S 626; Boyd v. State \[Ala.\] 45 S 634; Burkett v. State \[Ala.\] 45 S 682; Lawson v. State \[Ala.\] 46 S 253; Way v. State \[Ala.\] 46 S 273; Shillender v. State \[Ala.\] 46 S 756; Carter v. State \[Ala.\] 47 S 191; Greer v. State \[Ala.\] 47 S 300; Thomas v. State, 85 Ark. 357, 108 SVW 224; \\ \\end{tabular}

egin{tabular}{l|l} any request. Williams v. State, 55 Tex. Cr. & Burrow v. Hot Springs, $5 Ark. 396, 108 SVW * \[12\] Cur. Law. INDICMENT AND PRODUCTION $ 10E.

Form and substance of charge in general.See 10 C. L. 186.--In some jurisdictions the charge must be in writing "if requested," though the right to a written charge may be waived," and a written charge may be supplemented by an oral presentation of issues." Instructions should be addressed to jury as a whole." While it is not reversible error to state that an intruction is given by request, the better practice is to omit any reference to the fact that an instruction is requested by counsel." The giving of numerous and repetitious instructions in improper," especially the undue repetition of instructions favorable to one side."

The court should define the crime charged," and in so doing may follow the statutory language," but is not required to do so." The punishment which may be inflicted is not a proper subject of instruction to the jury " where it is not to be

assessed by them. Proper instructions on the burden of proof, presumption of innocence, and reasonable doubt should be given," though definition of terms may be unnecessary."

The instructions should be predicated upon and conform to the evidence," and should be responsive to the issues " and cover and submit every issue, theory or defense raised by any evidence;" and instructions ignoring any material issue or theory are erroneous.\[85\] On the other hand, no issue or theory not raised by the accusation \[86\] or supported by any evidence \[87\] should be submitted. The instructions

between conflicting theories. Gatilff v. Com. | tectre and one that he was an accompllee, 32 Ky. L. R. 1063, 107 SVW 139. Court should court should have charged on both theories. charge on every theory having any support in the evidence, regardless of the probability of such evidence. Washington v. State, 53 give charge requirings proof of venue error, Tex. Cr. App. 480, 110 SVW 751, Charge should cover every phase of the evidence and every defense, though judge may believe state \[Ala.\] 47 S 52. Where defendant is certain evidence untrue. Freeman v. State, 52 Tex. Cr. App. 500, 107 SVW 1127. State is entitled to have given instructions fully presenting its theory as shown by evidence.

De acted in self-defense must be disproved Cook v. State, 169 Ind. 430, 82 NE 1047. Failure to share one embezlement, which was where defendant takes the stand. Casey v. charged in indiciment, error. Mailing v. State, 53 Tex. Cr. App. 220, 108 SW 1182.

85. Field error for trial court in proseccu-Assault with intent to rape should have been submitted where evidence warranted finding for rape and to utterly ignore second count thereof. State v. Blackburn, 136 Iowa, 743, 114 NW 531. Proper to submit phase of evil- or. Walker, 33 Pa. Super. Ct. 167. Instrucduce partly shown by one side and parity tion disregarding evidence and claim of by the other. Cooper v. State \[Ark.\] 109 state error. People v. Helm, 152 Cal. 532, SWW 1023. Proper to charge in reference to 93 P 99. Instruction erroneous because facts which some evidence tends to show, ignoring theory of self-defense, Terrell v. though preponderance of evidence is against such facts. Lyles v. State, 130 Ga. 294, 80 there was evidence tending to show justify-SE 578. Accused has right to Instruction fromable homelde, it was error to instruct that presenting his theory of case. De Silva v. proof of an unjustifiable killing is sufficient State \[Miss.\] 45 S 611. Failure to instruct evidence of malice. State v. Smith \[Kan.\] on defense of habitation (homelde case) 96 P 39. Charge on presumption of inno-harmful error. State v. Brooks, 79 S. C. cence and reasonable doubt erroneous because not applicable to one degree of crime of alibi reversible error where that was the sole defense and there was evidence to sup-. port it. Ballentine v. State, 52 Tex. Cr. App. 591, 108 SVW 365. Instrucu-369, 107 SWW 546. Facts held to require charge on alibi defense. Colbert v. State, 52 Tex. Cr. App. 485, 107 SWW 115. Where allib was the main defense, court should have instructed thereon without request. Detonable as depriving accused of benefit by Eugene V. State, 3 Ga. App. 332, 59 SE 846. Where evidence to show accused's presence at scene of robbery was all circumstantial, charge on aibi was not error. Tabor v. taling money by false pretenses) was im-State, 52 Tex. Cr. App. 387, 107 SWW 116. Error to omit charge on defense shown by evidence. Noble v. State \[Tex. Cr. App.\] evidence to support it. State v. King 113 SWW 281. Error to fail to submit defense and mitigating circumstances shown by evidence. Long v. Com. \[Ky.\] 112 SVW 841. Statement of accused held to warrant court's instructions as to contentions of accused and what was admitted. Johnson v. State, 130 Ga. 22, 60 SE 158. Instructions on flight of accused supported by evidence. People v. Maughs \[Cal. App.\] 96 P 407. Where court trying man for preventing abortion and woman for having committed it charged jury that if they failed to find woman did act there was no offense on part of man, and if they found she did commit it question would be whether he procured her "to do what she did," held not to have effect of withdrawing question from jury. Mavey v. U. S., 30 App. D. C. 63. Where evidence was circumventantial, aside from admission of one defendant (two being on trial), court should have charged that confession alone, unless made in open court, unaccompanied by other proof, is insufficient. Polson v. Com., 32 Key. L. R. 1388, 108 SVW 844. Where there were two theories, one that witness was defeated.

should not give undue prominence to any particular evidence, issue or phase of the case.88

tions which intimate any opinion on the weight of the evidence 90 or the merits,91

90. Instruction held erroneous. Wright v. \[struction to find defendant guilty if jury State, 52 Tex. Cr. App. 542, 107 SWV 822.\] believe certain facts is reversible error if Charge that recent possession of stolen property raises presumption which must be visible, or where evidence is conflicting. State explained. Slater v. U. S. \[OkL\]. 98 P 110. In prosecution for receiving stolen property, instruction on effect of evidence of possession of recently stolen goods. Thomas v. State, 85 Ark. 138, 107 SWV 890. Charge on weight of testimony defendant and other witnesses. Ross v. State, 63 Tex. Cr. App. 295, 109 SWV 152. Charge on accompliece, including instruction that certain witnesses is an acceptable. Oldham v. State, 106 SWV 895.

50 Tex. Cr. App. 280, 109 SWV 145. In embarzlement case, instruction that employer, whose money was taken, and an employee, were not interested. State v. Ownby, 146 N. C. 677, 61 SE 630. Instruction authorizing jury to discard so much and such parts of the evidence as is deemed "worthy of belief." Feagle v. State \[Fla.\] 46 S 182. Charge that there was no evidence that certain person other than defendant did the killing. Wright v. State \[Ala.\] 46 S 469. Instruction that proof of oral admissions is to be received with caution. State v. Fisk \[Ind.\] 83 NNE 995. Instruction that evidence of various witnesses was negative and did not disprove affirmative testimony of same fact. Sheppelman v. People, 141 Ill. App. 556. Statement by court to jury of what prosecuting witness testified to. Edwards v. State \[Ga. App.\] 60 SE 1033. Instruction that defendant should be convicted if ceramic facts were shown. State v. Altain to disprove" them held proper. State v. Altaine T. Re. Co. (N. C.) 62 SE 755. Instruction that testimony of defective should be received with greatest caution and disclaim to be an expert, yet was permitted to trust. State v. Oibphant, 128 Mo. App. 252, 107 SWV 32. Instruction that unexplained possession of goods warrants conviction of micron. J. Reeder v. State \[Ark.\] 111 SWV 272. Instruction that weight to be given testingmory of accused, "if any," criticized for use of quoted phrase. State v. Porter \[Mo.\] 46 setsession furnishes evidence of the illicit answer. But since it is possible to use the defendant to disprove.

or which assume as true disputed facts,92 are improper, though conceded or undisputed facts may properly be assumed.93 In some states it is improper for the court to sum up the facts; 94 in others the court may summarize or state the facts hypothetically 95 and even comment on the evidence,96 provided the jury is left entirely free to find the truth of the matter.97 If the evidence for the state is summarized, that for the defense should be stated also.98

error, as intimating opinion that accused( committed crime charged; some such refer- ). Since to accusation is necessary, State v. McGowan, 36 Mont. 422, 93 P 552.

92. Improper to assume that any fact has been proved against accused. Schwartz v. State, 53 Tex. Cr. App. 449, 111 SW 399.

Instruction erroneous as assuming facts which were disputed. State v. Vickers, 209 Mo. 12, 106 SW 999. Where a defendant enters a plea of not guilty, he puts in issue all the material facts, including the corpus dellett, and a charge to the jury in such a case to the effect that the theft of the goods was not disputed or open to controversy is an invasion of the province of the jury and constitutes reversible error. Premack v. State, 11 Ohio C. C. (N. S.) 364. Error to charge that defendant admits an essential element of crime charged, which he did not in fact admit. Bendross v. State \[Ga. App.\] 52 SE 728. Charge erroneous as assuming a fact, and on weight of evidence. Marsden v. State, 53 Tex. Cr. App. 458, 110 SW 897. Instruction erroneous because reversing burden of proof by assuming facts relied on by state. Moody v. State, 52 Tex. Cr. App. 232, 20 Tex. Ct. Rep. 334, 105 SW 1127. Instruction assuming two facts which should have gone to jury erroneous. De Silva v. State \[Miss.\[ 47 S 464. Where accused neither contended nor conceded that killing was a crime, instructions assuming that it was a crime were erroneous. Phillips v. State \[Ga.\] 62 SE 239.

Charge not erroneous as assuming guilt, or other facts in issue (homicide). Barton v. State, 53 Tex. Cr. App. 443, 111 SW 1042. Instruction hold not assume fact in dispute. State v. Baker \[Or.\] 92 P 1076. Charge, construed as whole, held not to assume death of murdered man as established, but to require jury to find it beyond reasonable doubt. State v. Washelesky \[Conn.\] 70 A 62.

93. Not error to assume facts which are not in dispute. People v. Casey, 231 Ill. 261, SS 328. Not error for charge to assume fact admitted by accused on witness stand. May v. U. S. \[C. C. A.\] 157 F 1. Assumption of killing not improper in homicide case. Jones v. State, 130 Ga. 274, 60 SE 540. Not error to assume fact of killing by accused which he admitted in statement, claiming it was accidental. Lyles v. State, 130 Ga. 234, 60 SE 578. Court may give to jury conceded facts and law applicable thereto. State v. Reed \[Or.\] 97 F 627. Where facts are admitted to be true, or are placed beyond doubt without contest, the court may so assume in its charge assumption of marriage of defendant in adultery case proper where he admitted it. Russell v. State, 53 Tex. Cr. App. 500, 111 SW 658. Existence of local option law properly assumed, being proved without dispute. Cordona v. State, 53 Tex. Cr. App. 619, 111 SW 145.

01. The charge should not collate the facts. Young v. State (Tex. Cr. App.\] 113 SEV 276.

01. Instruction based on hypothetical statement of evidence not error. State v. Mills, 79 S. C. 187, 60 SE 64. Charge that defendant could be convicted if certain facts (recited, and shown by evidence) were found true, held proper. Sanders v. State \[Tex. Cr. App.\] 112 SW 938. Charge held not on weight of evidence, but merely to state contentions of state. Hooton v. State, 53 Tex. Cr. App. 6, 108 SW 651.

01. Comments on testmony during the charge for the purpose of explaining, applying, and elucidating the testmony for the convenience and assistance of the jury, present no ground for exceptions. State v. Skillman \[N. J. Law\] 70 A 83. The court may direct jury's attention to obvious inconsistency in defendants' case. Leading questions as to alleged conversation with witness which, if it occurred, defeated allb. State v. Feiss, 74 N. J. Law. 638, 66 A 418.

01. Had not error for court to intimate to jury that the considered testimony of little weight, so long as jury were left free to exercise their own judgment. Common-wealth v. Shults \[Pa.\] 70 A 823. Comments by the court concerning the value of evidence are not assignable for error when the jury are left at full liberty to determine the issues of fact themselves. Comment by judge, where jury had returned after being out nearly a day, discussing evidence, and telling them he did not believe one witness, held not error, jury being left free to form conclusions. Smith v. U. S. \[C. C. A.\] 167 F 721. The expression of his opinion upon the facts by judge of federal court in his charge to jury is not reviewable on appeal if no rule of law is incorrectly stated, and the matters of fact are ultimately submitted to In determining the sufficiency of the charge, it is to be construed as a whole." There need be no repetition,1 and each particular instruction need not state all the law relating to the subject-matter.2 An error in one instruction may be cured or rendered harmless by other instructions.3 Instructions should be clear,4 definite * and concrete,5 and not argumentative.7 Minor errors are usually harmless.8

facts relied on by the state." Waters v. State, & Ga. App. 649, 60 SE 335,

99. Wyard v. State, &5 Ark. 179, 107 SWV 677;

People v. Cain \[Cal. App.\] 93 P 1021; Warren v. People, 43 Colo. 107, 96 P 556; State v. McGee, 80 Conn. 614, 69 A 1059; Lewis v. State \[Fla.\] 45 S 993; Leedom v. State \[Neb.\] 116 NWV 496; Proctor v. State \[Tex. Cr. App.\] 112 SWV 770. Instructions sufficient if, when taken together, they fairly and fully present the law. Lacker v. Comm., 53 Ky. L. R. 944, 111 SWV 676; Territory v. Caldwell \[N. M.\] 98 P 167. Charge not erroneous when construed as whole. Jones v. State, 130 Ga. 274, 60 SE 840; People v. Hagenow, 236 IL 514, 86 NE 370; Gebhardt v. State \[Neb.\] 114 NWV 296; Hamburg v. State \[Neb.\] 115 NWV 850: State v. Hampton, 79 S. C. 179, 60 SE 669; Moore v. State, 53 Tex. Cr. App., 113, 107 SWV 833; Crimer v. State, 65 Tex. Cr. App.\] 108 App. 174, 109 SWV 128; Thomas v. State, 53 Tex. Cr. App. 272, 109 SWV 155; Ranton v. State, 53 Tex. Cr. App. 251, 109 SWV 155; Rernandez v. State, 53 Tex. Cr. App. 254, 109 SWV 155; Hernandez v. State, 53 Tex. Cr. App. 468, 110 SWV 753. Instruction not erroneous as requiring conviction of some crime, when taken as whole. State v. Hampton, 79 S. C. 179, 60 SE 669. Qualification of requested instructions relating to particular case held proper, and charge as a whole proper. Commonwealth v. Strait, 220 Pa. 483, 69 A 866. An assignment to a portion of the charge must fail, if, taken as a whole, the charge is full, fair, and correct. Johnson v. State \[Fla.\] 46 S 174. If entire charge, taken together, is correct, error cannot be predicated on single clause or expression. Clements v. State \[Neb.\] 114 NWV 271. Alleged erroneous instruction is to be reviewed in connection with entire charge. Tinsley v. State \[Ga. App.\] 62 SE 93.

1. Correct rule being once given need not be repeated. State v. Connars, 37 Mont, 15, 94 P 199. Usual instruction on reasonable doubt being given need not be repeated with reference to each element of crime. Territory v. Caldwell \[N. M.\] 98 P 167.

1. Lewis v. State \[Fla.\] 45 S 993. Each paragraph of the instructions need not cover all elements of the crime. Instructions are sufficient if, as a whole, they cover all elements of the crime and correctly state the law. Shumway v. State \[Neb.\] 117 NWV 407.

1. If instructions are correct, construed as a whole, inaccuracies or technical errors are not ground for reversal. Eaccock v. State, 169 Ind 483, 82 NE 1039; Cate v. State \[Neb.\] 114 NWV 942; State v. Hiblet, 79 S C. 170, 60 SE 438. Isolated errors in charge not ground for reversal when charge as whole is correct. Jiron v. State, 53 Tex. Cr. App. 18, 108 SWV 655. Erroneous instruction may be cured by subsequent one. State v. De Lea, 86 Mont. 531, 93 P 514. Defect in one instruction may be remedended or supplied by another. Lewis v. State \[Fla.\] 45 S 998. Slip of tongue by judge in stating general designation of offense not error, when im-designation of offense not error, when im-designation of offense not error.

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Form and propriety of particular chargesSee 10 C. L. 161.- Holdings as to the form and sufficiency of instructions as to the burden and degree of proof,9 presumption of innocence,10 presumption from failure to call witness,11 rules for considering evidence in general,12 and of particular kinds of evidence, such as circum-

witnesses not ground for new trial. Jor- a degree of proof; properly refused. Fatton dan v. State, 130 Ga. 406, 60 SE 1043. Mere v. State \[Ala.\] 46 S 862. Instruction on bure-repetition of part of charge not ground for reversal. Woodard v. State \[Tex. Cr. App.\]. burden to defendant. Yeoman v. State \[111 SW 941. Use of "or" instead of "and" \[Neb.\] 115 NW784. Instruction which shifts immaterial. School v. State, 52 Tex. Cr. App.\]. burden of proof to defendant and requires evidence to show beyond reasonable doubt

9. Charge on burden of proof and reasonable doubt approved. Moore v. State, 62 Tx. Cr. App.\] 36, 107 SW 355; Clay v. State \[Ga. App.\] 60 SE 1028. Instructions on weight of evidence proper when construed as a whole. Anderson v. State, 133 Wis.

114 NW 112. Instruction erroneous because authorizing verdict based on preponder-

erroneous on burden of proof in relation to once of evidence. Commonwealth V. Deitrick \[Pa.\] 70 A 275. Instruction that "proof may be by direct and positive testimony or by

elevunstantial evidence" not erroneous. State v. Fisk \[Ind.\] 83 NE 995. Request on bure-

den of proof and quantum of proof properly

covered. Cook v. U. S. \[C. C. A.\] 159 F 919. Charge in murder case erroneous because

not requiring acquittal of m#nslaughter, if jury have reasonable doubt of facts es-

cmission of crime by defendant beyond

sental to constitute that offense. Fuller v. State \[Tex. Cr. App.\] 113 SW 540. In prosecution for carrying weapon, instruction

which required accused to show beyond reasonable doubt defense that he was a traveler was error. Steel v. State \[Tex. Cr. App.\] 113 SW 16. Instruction in homoledge case not

erroneous as shifting burden of proof, or misleading, or on weight of evidence. Dobbs v. State \[Tex. Cr. App.\] 113 SW 928. Instructions given on quantum of proof

proper; those requested property refused. People v. Corey \[CaL. App.\] 97 P 907. Error to charge that "should you believe from the testimony that defendant is not guilty

beyond a reasonable doubt" etc., since it

shifts the burden of proof. Godsoev v. State, 52 Tex. Cr. App. 626, 108 SW 388. Charge

held not erroneous as placing burden on defendant. Clay v. State, 52 Tex. Cr. App.\] 555, 107 SW 1129. Instruction erroneous because

shifting burden of proof. Huddeston v. State \[Tex. Cr. App.\] 112 SW 64. Instruction erroneous because shifting burden

of proof on defendant to prove innocence. Greer v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep.\] 597, 106 SW 359. Properly refused:

"If the evidence is evenly balanced as to the guit or innocence of defendant, then

"\*" you should lean to the side of mercy

and decide in favor of defendant." Way v. State \[Ala.\] 46 S 273. If there are two plausible theories, one tending to prove defendant guilty and the other tending to

show that bystanders committed the act, it

is the jury's duty, if they cannot determine

from the evidence which is true, to adopt

that theory most favorable to defendant.

Instruction approved. Windham v. State

\[Miss.\] 45 S 861. Requested instructions on

quantum of proof erroneous and properly

refused. Mason v. State \[Ala.\] 45 S 472. Instruction requiring jury to be satisfied of

truth of state's evidence required too high

in
Cur. Law. INDICTMENT AND PR of witnesses,21 definition of reasonable doubt,22 definition and description of crime charged,23 and the issues of insanity 24 and alibi,25 are noted below.

they can consider It. Taylor v. State \[Tex.\] \[Wash.\] 94 P 663. Charge on quantum of Cr. App.\] 20 Tex. Ct. Rep. 400, 106 SW 366.

21. Instruction on credibility sufficient. Decker v. State, 85 Ark. 64, 107 SW 182. Instructions of credibility approved. People v. Maughs \[Cal. App.\] 96 P 407. Instruction on weight of testimony and credibility of witnesses approved. State v. Connors, 37 Mont. 15, 94 P 198. Instructions on impeachment subdifferent. Summerlin V. State, 130 Ga.

791, 61 SE 849. Charge on impeachment app. proved. Arnold v. State \[Gan.\] 62 SE 806: Parker v. State, 3 Ga. App., 386, 85 SE 823. Instruction on credibility of witnesses and duty of jury in passing thereon critielsed but held not prejudically erroneous. People v. Horchler, 231 III. 566, 83 NE 428. Instructions on weight of evidence and credibility of witnesses being for jury, held sufficient. State v. Sharpless, 212 Mo. 176, 111 SW 69. Charge that in passing on credibility of witness jury should consider fact that every statement he made on stand was unchallenged, and that he was not contradicted by any evidence, held not erroneous, words unchallenged and uncontradicted being used in same sense and indicated that no one had been called who contradicted testimony of witness and jury could only have had same understanding. Commonwealth v. Martin, 34 Pa. Super. Ct. 451. Charge that it was for jury, etc., whether Impeaching evidence "absolutely disproved or falsified" testimony Improper. Benson v. State \[Tex. Cr. App.\] 111 SW 403. Instruction on disregarding testimony of witnesses believed to have willfully testified falsely, etc., held not objectionable as being directed specally at defendant, who was a witness. Shumway v. State \[Neb.\] 117 NW 407.

22. The law requires no particular formula In charging on reasonable doubt. State v. Dobbins \[N. C\] 62 SE 635. Instruction on reasonable doubt approved. People v. Manasse, 153 Cal. 10, 94 P 92; People v. Yun Kee \[Cal. App.\] 96 P 95; Parker v. State, 3 Ga. App.\] 96 P 97; Q. T. \[Natureh 130 Ga.\] 406, 60 SE 1063: Arnold v. State \[Gan.\] 62 SE 806: People v. Zajolek, 233 III. 186, 84 NE 249; Kennedy v. Com. \[Ky.\] 109 SW 313: Shumway v. State \[Neb.\] 117 NW 407; Holmes v. State \[Neb.\] 118 NW 99; State v. Dixon \[N. C\] 62 SE 615; Commoweault v. Belserawitzwitz, 35 Pa. Super. Ct. 77; State v. Hampton, 79 S. C. 170, 60 SE 669; Bryant v. State \[Tex. Cr. App.\] 111 SW 1009: Harlson v. State \[Tex.\] 118 F 572. Instruction on reasonable doubt \[Tex. Cr. App.\] 113 SW 544. Instruction not open to objection urged, People v. Buester, 238 III. 274, 84 NE 218; State v. De Lea, 36 Mont. 531, 98 P 814. Instruction disapproved. State v. Kaufmann \[S. D\] 118 NW 387. Charge on reasonable doubt and burden of proof approved. Brinegar v. State \[Neb.\] 118 NW 475. Charge authorizing ac-quilt for reasonable doubt of innocence properly refused. Parker v. State \[Ala.\] 45 S 248. Charge correct, and burden of proof not improperly shifted. State v. Owens, 79 S. C, 125, 60 SE 205. Instruction held not ground for reversal, though not to be commended. Clements v. State \[Neb.\] 114 NW 271. Instructions not erroneous or misleading taken as a whole. State v. Kling 12 Cur. Law. INDICMENT AND PROSECTION SS 10F. 85

_Cautionary instructions_ See 10 C. L. 170 limiting the effect of evidence, \[20\] or requiring corroboration, \[27\] should be given when the evidence is such as to require them, and it is proper for the court to correct any erroneous impressions which might arise from argument of counsel, \[28\] but no instruction is required as to matters well known to the jurors and as to which they could not be misled. \[29\] The giving of cautionary instructions rests largely in discretion. \[30\]

(SS 10) \_F. Custody of jury, conduct and deliberations._See 10 C. L. 170_--Whether misconduct of jurors, or acts or language of the court or acts or language of the court or deputias or others during the trial and deliberations of the jury, are such as to call for a reversal of the judgment or the granting of a new trial depends upon the circumstances. Whether accused has been injured is the test. \[31\] In the notes are

A 18. Instructions construed as a whole held proper on defense of insanity and bur- or to instruct as to the limits within den of proof thereon. People v. Casey, 231 Nil. 261, 83 NE 278. Instructions on insanity as defense approved; others criticized, proof of former conviction erroneous be- state v. Porter \[Mo.\] 111 SW 529. Instruction that if defendant introduces evidence sufficient to raise a doubt as to his sanity, state, 53 Tex. Cr. App. 388, 110 SWV 64. state must prove sanity beyond a reason- able doubt, proper. Hamblin v. State \[Neb.\]

(115 NV) 850. Instruction on mental condition of accused as defense proper and ap-plicable to evidence. Id. Charge on defense of insanity held not erroneous to be given when it also tends to prove the prejudice of accused. Rusk v. State \[Tex. Cr. App.\]

(112 SWV 298.

(116) Charge on allibproved.

(117) Where there were only two witnesses and both were accomplices, and their test- 356, 106 SWV 347; Benge v. State, 62 Tex. Cr. App. 381, 107 SWV 81. Charge on burden of conformity or corroborating circumstances, proof as to allibproved. Jones v. State, 130 Ga. 274, 60 SE 840. Charge on ailib sut.

(118) Where there were only two witnesses and both were accomplices, and their test- 356, 106 SWV 347; Benge v. State, 62 Tex. Cr. App. 381, 107 SWV 81. Charge on burden of conformity or corroborating circumstances, proof as to allibproved. Jones v. State, 130 Ga. 274, 60 SE 840. Charge on ailib sut.

(119) Where there were only two witnesses and both were accomplices, and their test- 356, 106 SWV 347; Benge v. State, 62 Tex. Cr. App. 381, 107 SWV 31. Charge on burden of conformity or corroborating circumstances, proof as to allibproved. Jones v. State, 130 Ga. 274, 60 SE 840. Charge on ailib sut.

(120) Where there were only two witnesses and both were accomplices, and their test- 356, 106 SWV 347; Benge v. State, 62 Tex. Cr. App. 381, 107 SWV 31. Charge on burden of conformity or corroborating circumstances, proof as to allibproved. Jones v. State, 130 Ga. 274, 60 SE 840. Charge on ailib sut.

(121) Where there were only two witnesses and both were accomplices, and their test- 356, 106 SWV 347; Benge v. State, 62 Tex. Cr. App. 381, 107 SWV 31. Charge on burden of conformity or corroborating circumstances, proof as to allibproved. Jones v. State, 130 Ga. 274, 60 SE 840. Charge on ailib sut.

(122) Where there were only two witnesses and both were accomplices, and their test- 356, 106 SWV 347; Benge v. State, 62 Tex. Cr. App. 381, 107 SWV 31. Charge on burden of conformity or corroborating circumstances, proof as to allibproved. Jones v. State, 130 Ga. 274, 60 SE 840. Charge on ailib sut.

(123) Where there were only two witnesses and both were accomplices, and their test- 356, 106 SWV 347; Benge v. State, 62 Tex. Cr. App. 381, 107 SWV 31. Charge on burden of conformity or corroborating circumstances, proof as to allibproved. Jones v. State, 130 Ga. 274, 60 SE 840. Charge on ailib sut.

(124) Where there were only two witnesses and both were accomplices, and their test- 356, 106 SWV 347; Benge v. State, 62 Tex. Cr. App. 381, 107 SWV 31. Charge on burden of conformity or corroborating circumstances, proof as to allibproved. Jones v. State, 130 Ga. 274, 60 SE 840. Charge on ailib sut.

(125) Where there were only collected decisions relating to such matters as separation of jurors,"24 admonitions to jurors by the court,"33 their custody and conduct,"34 mode of living and place of abode,"14 and amusements,"48 newspaper comment,"37 remarks of bystanders in hearing of jury,"49 attempts to influence jurors,"9 misconduct of deputy in charge of jury,"40 qualification of officer in charge,"41 requests by jury for testimony"42 or bill of participants,"43 taking evidence to the jury room,"44 sending jury back for further deliberation,"45 the length of time the jury may properly be kept out,"46 and their discharge."47

searching, a trial really fair and proper should not be set aside for the mere suspicion or appearance of irregularity shown to have done no actual injury. Commonwealth L. R. 485, 110 SW 842.

L. 485, 110 SW 842.

M. 302, 109 SW 814), but will not be held complealling in order to throw upon the state the burden of explanation. More is, however, that juror, name unknown, was called out by a stranger and handed sum of money not sufficient. State v. Foster, 186 lova, 527, 114 NNV 86. Misconduct of jury in discussing former verdict not ground for reversal where evidence supported conviction, unless it clearly appears that accused was prejudiced. Smith v. State, 52 Tex. Cr. App. 344, 20 Tex. Ct. Rep. 845, 106 SW 116L No prejudice where only result was to make two jurors who favored death penalty agree to life sentence. Id.

32. Separation of jury, not shown to be prejudicial, not reversible error, court not having intended to make order that they be kept together. People v. Maughs \[Cal. App.\] 86 P 407. Separation of jurors, after order of court that they be kept together, held not cause for reversal where affdavits show-ed separations to be for innocent purposes. People v. Emmons \[Cal. App.\] 85 P 1032. Where court exercised discretion and allow-ed nine jurors selected to separate, burden was on accused to show that they heard remarks prejudicial to him and that they were influenced thereby. Reeves v. State, 84 Ark. 659, 106-SW 945.

01. Presumed that court properly admonished jury before allowing them to separate; failure to do so not prejudicial in absence of some showing. State v. Walker, 79 B. C. 107, 60 Else 309.

01. Evidence insufficient to show misconduct of jurors in excessive drinking during trial. People v. Emmons \[Cal. App.\] 85 P 1032. Not reversible error for juror to say that question had been asked a number of times and to tell judge that jury wanted to hear the evidence. Kennedy v. Com., 33 Ky. L. R. 83, 109 SW 818. Held not ground for new trial that jurors took meals in common dining room of hotel, sat on balenoy and spoke to passersby, and were shaved by a barber, two tiptaves being always present, and it being admitted that the trial was never discussed by them with third persons. Commowealth v. Lombardi \[Pa.\] 70 A 122. Mere fact that jury passed and saw place of killing as testified to by witness not ground for reversal. Sims v. Com., 32 Ky. L. R, 448, 106 SW 214. That juror visited outhose where crime was charged to have been committed not a cause for reversal, it not appearing that he went there for any improper purpose. State v. Gage \[Iowa\] 116 NVE 596.

01. Improper for jurors trying a case to board at home of prosecuting attorney who has charge of it. Napier v. Com., 33 Ky. L. R. 485, 110 SW 842.

01. Allowing the jury in a capital case to be taken in a body to a theatrical performance is displayed (State v. Jeffries, 210 Mo. 302, 109 SW 614), but will not be held prejudicial error unless it is shown that improper influences were thus brought to bear upon them (Id.). No prejudice where jury attended minstrued show, did not separate, and had no communication with others. Id.

01.

01. Fact that local newspaper comment-ed on case during trial, and that jury was allowed to separate, will not be ground for discharging the jury unless it appears that the jurors, or some of them, read such comments and were so impressed thereby as to be disqualified for service. State v. Hoffman, 120 La. 949, 45 S 951.

01. Remark of bystander in hearing of jury not prejudicial when subject-matter was cleared up by evidence beyond question.

01. W. Hoffman, 120 La. 949, 45 S 951.

01. Where during trial of criminal case the court is informed of an alleged attempt to influence one of the jurors, the court may stop proceedings long enough to examine juror, and continue case if satisfied that no harm has been done. Evidence held to show juror was uninfluenced and to sustain lower courts conduct. Commowealth v. Timly, 33 Pa. Super, Ct. 35.

01. Reversal required whether deputy sheffer, in charge of jury, said to two jurors who were holding out for acquittal that they were hardheaded and were holding out against ten men of brains. Booker v. State {Tex. Cr. App.} 111 SW 744.

01. That the officer appointed by the court to have charge of the jury was not sworn does not itself constitute prejudicial error requiring the granting of a new trial. State v. Foster, 136 Iowa,

## 12 Cur. Law. INDICMENT AND PROSECTION SS 10G.

Any communication between court and jury while the jury are deliberating, without the consent of the parties, or in their absence, is reversible error.\[48\] The verdict must rest solely upon the evidence, and a reversal will result if it appears that the jurors discussed and considered other matters.\[49\] Where the prosecution claims the right to have an elisor appointed to take charge of the jury, under the California practice, defendant has a right to be heard as to the qualifications of the sheriff and coroner and the proposed elisor.\[50\]

(SS 10) \_G. Verdict.\_See 10 C. L. 119. The verdict must be responsive to the information or indictment \[51\] and the issues submitted,\[52\] and should be certain, positive

from their confinement. Commonwealth v. on previous trial is reversible error. Casey Martin, 34 Pa. Super. Ct. 451. No error v. State, 51 Tex. Cr. App. 433, 19 Tex. Ct. where witness' testimony was re-read to Rep. 351, 102 SWV 725. Judgment reversed jury, and court refused to hear a juror's testimony as to their disagreement, jury

tained by one of the jurors stating that he having again retired and returned verdict of

half just recognized accused as one who had guilty, Harrison v. State \[Tex. Cr. App.\] been acquitated of charge of carrying a

113 SWV 544. Further charge by court, on

just, though in fact guilty, that he was jury returning, as to desirability of arriving

bad man, etc. Helvenston v. State, 53 Tex.

at some verdict, and direct them to retire

Cr. App. 638, 111 SWV 95. Reversible error

for further deliberation, held not coercive.

where jury discussed and considered matters

People v. Coulon, 151 Mlch. 200, 14 Det. Leg.

not in evidence, such as credibility of wit-

N. 907, 114 NWV 1013. Case was submitted

ness personally known to a juror. fact that

to jury on Friday. Next day court told jury

acused was under indictments for

he would soon leave and told them they

similar offenses and willingnesses of jurors

could separate in case they reached an

to sign petitions for pardon. Bettles v.

agreement and return a sealed verdict, and

State, 53 Tex. Cr. App. 202, 109 SWV 195. New

that he would return at 7:30 Monday even-

trial granted where jurors discussed ac-

ing. Jury said there was a chance of agree-

cused's character and life, the failure of his

ment. They returned verdict three hours

later before court adjourned. Held verdict

Juror's personal knowledge, these matters

not geceed. Gebhardt v. State \[Neb.\] 114

not being in evidence. Hall v. State, 53 Tex.

NVV 290.

46. Jury was out 17 hours, received fur-

ther instructions, and then were out 14

Proof not sufficient to show misconduct

hours. Claim that they were kept together

an unreasonable length of time not ten-

ed to testify, Step v. State, 63 Tex. Cr.

able. State v. Richardson, 137 Iowa, 591,

App. 158, 109 SWV 103. Casual reference to

115 NWV 220.

former conviction of defendant not cause for

47. The discharge of a jury before the end

of the term without defendants consent,

place in jury room, Moore v. State, 53 Tex.

and without any necessary or legal war-

rant, entilties defendants to a discharge.

50. Error to act on ex parte affladavits of

Dockstader v. People, 43 Colo. 437, 97 P 254.

A minute entry by the clerk, without order

or direction of the court, that jury was dis-

charged because unable to agree, was of no

free or effect. 1d.

48. Judge stepped to door of jury room

in answer to knock, and being asked as to

nature of offense and what he could do,

said it was a minor offensive punelable by

fine of not over $500 or imprisonment for

not over one year, and that he could find one

suspend sentence. Reversible error. People v. Bowers, 111 NYS 623. It is prejudical

error as a matter of law for the judge to

have any conversation or communication

with the jury, in the jury room during their

deliberations, in the absence of defendant

and his counsel. New trial necessary where

judge was told jurors wanted to communi-

cate with him, and he went to the jury

room, knocked, and opened the door and on

being told jury could not agree asked them

to consider further, door remaining open.

State v. Murphy \[N. D.\] 118 NWV 84.

40. Under Code Cr. Proc. 1895, art. 823,

providing that effect of new trial is to place

cause in same position as if it had never

does not charge grand larecry nor contain

been tried, etc., discussion by some of jurors

while deliberating of the sentence received

andand free from ambiguity 58 as to the offense,54 and the person or persons convicted.58 The verdict should be read in connection with the indictment or information,56 and so construed as to give effect to the manifest intention of the jury.57 All fair intendments should be made to sustain verdicts,58 and if the language used clearly manifests the jury's intention, a verdict is not vitiated by informalities,59 such as bad spelling and faulty grammar,60 or surplusage.61 Where defendant is found guilty of two offenses, punishment should be assessed for each separately.62 A verdict "guilty as charged" must be construed as a conviction of the offense charged and submitted by the court's instructions.63 A verdict of guilty should show the count on which it is based, where there is more than one,64 but a general verdict of guilty is not contrary to law if there is evidence sufficient to authorize it on any or all counts.65 Upon an indictment containing more than one count, all charging misdemeanors, a general verdict of guilty is to be construed as convicting defendants on all the counts.66 Where the indictment states but one offense, though it contains the value of the property concerned. State v. Braden \[Kan.\] 96 P 840.

52. People v. Lemen, 231 III, 193, 83 NE

01. Where court submitted issues of agrassvated and simple assault, verdict finding defendant guilty, and assessing punishment at fine of $25, is too indefinite, since the degree of assault must be specified. Moody v. State, $2 Tex. Cr. App. 232, 20 Tex. Ct. Rep. 324, 105 SWV 1127.

01. Washington v. State \[Fla.\] 46 S 417.

01. Verdict of guilty of "assault with in-Mcorris v. State \[Fla.\] 45 S 456; Pugh v. State \[Fla.\] 45 S 4023. The verdict should be regarded with reference to the intention of the jury, and effect given accordingly, and if the verdict is not sufficient clearly to show their intention, it is falsly defective. Simthey v. State \[Mis.\] 46 S 410.

A test of certainty is whether the court can give judgment upon it. Washington v. State \[Fla.\] 46 S 417.

54. A verdict finding defendant guilty of one act "or" another is fatally defective where either constitutes the offense charged. State v. Grossman \[Xo.\] 113 SWV 1074. Verdict must contain, either in itself or by reference to the indictment, every material that constituting the crime. Verdict fatally defective because not containing or showing finding on essential elements of crime. People v. Lemen, 231 Ill. 193, 83 NE 147. Verdict held fatally defective: "Ve the jury find the defendant guilty of aggravated asault with intent to murder. So say we all." Two separate offenses are included under Florida statutes. Simthey v. State \[Mis.\] 46 S 410. Verdict in murder case, reading: "Ve, the jury, find defendant guilty as charged, but cannot agree as to punishment, but do agree to ask the mercy of the court," was held too indefinite; court should have required jury to clear it up. Sykes v. State \[Mis.\] 45 S 838.

01. Where verdict found each defendant guilty of a certain crime by name, use of words "defendants" was unnecessary. McDonald v. State \[Fla.\] 46 S 176. Accused in-Micked as "Jno. M." and identity of person v.

01. If the charge pleading to indictment was not questioned and defendant himself used names "Jno. M." and "John M." indifferently in record. Verrdict and judgment convicting him as "John M." not error, though verdict did not refer to him as "defendant." Id.

01. Edwards v. State \[Fla.\] 45 S 21. Verdict so construed held to find that property 61 SE 917.

- 12 Cur. Law. INDICEMENT AND PROSECTION SS 11.

- 13 A number of counts variously stating the manner of committing the offense, a general verdict of guilty will be upheld as against the objection that it is contrary to the evidence, if any of the counts are supported by proof." If the indictment states in different counts several distinct offenses, a general verdict of guilty cannot be upheld unless there is sufficient proof to sustain a conviction upon each count." The jury may legally acquit as to some of the counts and convict as to others." Where there are several counts charging more than one distinct misdemeanor, the better practice is to require a separate verdict as to each count not abandoned or withdrawn, and the jury should be instructed to return a general verdict of guilty only in case defendant is found guilty on every count." Where several persons are jointly indicted but the evidence as to acts committed by each differs, one may be convicted though others are acquitted." A special finding under erroneous instructions will not invalidate a general verdict and judgment of guilty where another special finding justifies the verdict." A defective verdict need not be entered, but the jury should be required to correct it," or the court may correct it with the consent of the jury." Where this is not done, the verdict must be set aside and a new trial ordered." Where the verdict, fairly construed, finds defendant not guilty," the court has no power to amend it to the prejudice of accused." The verdict must be returned by a jury of twelve."

_Receiving verdict."_

SS 11. \_New trial, arrest of judgment, and writ of error coram mobis.\_See 10 C. L. 178

\_Grounds for new trial in general.\_See 10 C. L. 178

New trial should be granted only where it appears that substantial rights of accused have been violated so as to deprive

- 14 Lanceny of town orders, several per- \[ State, 94 Md. 429, 50 A 1041, 56 L. R. A. 457, an \] sons participating in scheme, but evidence \[ omission was supplied to make the sealed and \] showing eashing of orders only by one contract. Vought v. State \[Vis.\] 114 NW 518.
- 15 State v. Martin \[N. J. Law\] 69 A 1091.
- 16. Smithev. State \[Miss.\] 46 S 410.
- 17 Where the verdict returned is improper and out correction. It is to be noted that the \]contrary to the charge of the court, it is \]proper to direct the jury to retire and consider their verdict further. As where verdict was guilty of murder in first degree and \]dict by correction after separation, was a assessed punishment of 99 years in pentin- \]triv1 action. On the other hand the right tary. Jones v. State \[Tex. Cr. App.\] 113
- 18 SW 761. No error where verdict was signed only with foreman's name, the word "fore- \]nnel in the following cases. Allen v. State, mana" being omitted, and court directed jury \] 85 WPs, 22, 64 NW 99; Parley V, People, 138 to return and sign it. State v. Gibson, 120
- 191, 97, 27 NE 927; Koch v. State, 126 WPs, La. 423, 45 S 271. It would have been valid \]470, 106 NW 531, 3 L. R. A. (N. S.) 1086; without the word "foreman." Id.
- 194 Not error for court to add line to ver- \]monmonwealth v. Tobin, 125 Mass. 202, 28 \]dict, inserting name of offense found by jury \]Am. Rep. 220. In the last case the distincc- \]verdict when read to them. Tinsley v. State, \]affecting the rule is clearly drawn. Cor- 52 Tex. Cr. App. 91, 20 Tex. Ct. Rep. 356, 106
- 195 SW 447.
- 20 NOTE. Right to amend sealed verdict after separation of jurors: While in many jurisdictions a sealed verdict in a civil ac- \]mon may be amended under certain circumstances by the court or jury after separation \]of the jury, and there is not lacking text book authority for the general right to amend such verdicts irrespective of the nature of the action (Proffatt, Jury Trial, \]S 456, 440; 1 Bishop, Crim. Proc. 1 1003, A. & E. Enc. Pl. & Prac. 1011), the weight of American authority is against such practice \]dir was pointed out and reconsideration took place before actual separation of the jury. State v. Clementson, 69 WPs. 628, 35 NW 56, -Ed.
- 215 Smithev v. State \[Miss.\] 46 S 410.
- 226 V. Verdict, though informal, so construed.
- 227 State v. Whisenant \[N. C.\] 63 SE 91.
- 228 A. Accused cannot waive a trial by a jury of twelve and consent to a jury of eleven \](Jennings v. State, 134 WPs. 307, 114 NW 492.
- 230 See also, Jury, 10 C. L. 541), and a verdict by a jury of eleven, and judgment thereon, are invalid (Id.).
- 231 See 10 C. L. 175; also ante, & 10a, Accused Must be Present, etc.

him of a fair trial.80 Prejudicial misconduct of the jury,81 or the prosecution,82 and manifest insufficiency of evidence to support the verdict,83 have been held grounds for new trial. The reading by jurors of unfair and highly colored newspaper articles, calculated to prejudice them, constitutes ground for new trial in a proper case,84 but may be waived by accused.85 Misconduct of counsel,86 absence of a witness,87 surprise88 and disqualification of a juror,89 are not grounds for new trial when they have not been properly raised during the trial. Error in ruling on demurrer,90 or motion for change of venue,91 and matters defensive in nature,82 are not available as grounds of the motion. The matter rests largely in the trial court's

80. Failure of record to show that sheriff, at close of case, was sworn when he took the change of jury, not ground for new trial. State v. Page, 212 Mo. 224, 110 SWV 1057.

01. New trial granted where jurors disquested matters concerning accused's life and character not connected with offense charged nor shown in evidence. Hall v. State, 52 Tex. Cr. App. 280, 20 Tex. Ct. Rep. 690, 108 SW 379.

01. Comment by state's counsel on failure of accused to take the stand, and refusal of court to grant a new trial or instructed jury to disregard the argument, objection being duly made, is ground for new trial. Griffin v. State, 54 GAp. 476, 60 SE 277. In prosecution for gaming, the act of the prosecutor, without the knowledge of defendant or his counsel, in entering the jury room and laying on a table a pack of cards which had been identified as the ones used by defendant, but not offered or introduced in evitim, etc., does not affect discretionary power dence, was ground for new trial. Griffin v. State \[Ga. App.\] 62 SE 685.

01. Refusal to grant new trial error, there being no proof of corpus delict. Varner v. State, 84 GAp. App. 605, 60 SE 283. New trial should be granted if it appears to court difficult to reconcile verdict with justice and manifest weight of evidence. McDonald v. State \[Fla.\] 47 S 485. Verdict held contrary to law because evidence as whole justified defendant's act. New trial should have been granted. Lewis v. State \[Ga. App.\] 60 SE 1048. Proper to deny new trial, verdict being based on conflicting evidence. Stanley v. Com. \[Va.\] 63 SE 10.

01. See cases cited in which new trials were granted in United States v. Marrin, 159 F 767.

01. Where accused told counsel to withdraw motion for withdrawal of juror, after examining jurors, and learning that same had read newspaper articles. United States v. Marrin, 159 F 767.

01. Misconduct of counsel, in argument, on which no action or ruling of court was asked, not a ground for new trial. Hill v. State, 189 Ind. 661, 83 NE 243.

01. Absence of witness not ground for new trial, no postpement of trial being requested. Shows v. State \[Alss.\] 46 S 705. Denial of new trial on ground of absence of witnesses not error, where no continuance was asked for and accused did not take stand in support of theory which absent witnesses would have sustained, though he could have done so. Nickelson v. State, 83 Tex. Cr. App. 631, 111 SWV 414.

01. Where evidence was offered to prove commission of offense on day other than * 12 Cur. Law. INDICMENT AND PROSECTION SS 11.

discretion." A new trial cannot be granted after verdict of not guilty." The California statute authorizing grant of new trial where records have been destroyed and motion for new trial was pending does not apply where motion for new trial had been made and denied and an appeal taken."

_Newly-discovered evidence._\[86\] 10 C. L. 178.--Motions based on this ground are not favored " and are addressed to the discretion of the trial court." To require granting of the motion, it must appear that the alleged newly discovered evidence was not previously known," that due diligence had been used to discover it," that the evidence is material 1 and not merely cumulative 2 or impeaching," that it is probably true," and likely to change the result of the trial." Evidence is not merely cumu

### 92 INDICEMENT AND PROSECTION SS 11. 12 Cur. Law.

lative when it relates to a particular fact concerning which no witness testified,6 though there was other evidence tending to support the same contention.7 Where two persons are jointly indicted and one is tried and convicted, and subsequently the other is tried and acquitted, a new trial will be granted the former to obtain the testimony of the latter, where the new evidence appears to be competent, relevant, and material.8

_Practice on motion._ See 10 C. L. 181--The motion " or petition 10 and the supporting affidavits 11 must be filed within the time allowed by law, must state specifically the grounds relied upon 12 and support them by a showing of facts 13 properly made,14 and must otherwise substantially comply with statutory requirements.16

must be of very material character and well

cussing failure of accused to testify. Reincalculated to change the result. Ludwig v.

hard v. State. 52 Tox. Cr. App. 59, 20 Tex. State \[Ind.\] 85 NE 345. Evidence hold not

Ct. Rep. 379, 106 SWV 128.

such that it would probably change result

on new trial. Nioum v. Com. \[Ky.\] 108 SWV 945. Newly discovered evidence held not to

out will not be considered. State v. Scott warrant new trial. Williams v. State \[Ind.\] \[Mo.\] 113 SWV 1069. Assertion in such mo-85 NE 349; Edwards v. State \[Ga. App.\] 61

tion that conviction is against the law is SE 502. Allaged new evidence held immaterial. Not their trial properly refused,

their trial: not likely to change verdict; due

where only general grounds were raised,

diligence not shown. Davis v. State, 52 Tex.

insufficient to raise any question as to ad-Cr. App. 149, 20 Tex. Ct. Rep. 362, 106 SWV

misibility of evidence. Hart v. State \[Ga.

144. Supreme court will not reverse judge-

app.\] 61 SE 511. Grounds of motion for ment refusing new trial on ground of newly

-discovered evidence, where such evidence is

solves. Appellate court will not search reco-only cumulative and impeacching and of such

character that it would not constrain a dif-ferent verdict. Drane v. State, 130 Ge. 349,

40 SE 863. When such evidence is deduced

from witnesses properly vouched for, and it

appears there was no want of diligence in

-discovering the new evidence, which may

probably cause a different result on another

hearing, it is error to refuse a new trial.

Grow v. State \[Ga. App.\] 62 SE 669. That

trial judge did not consider that alleged new

evidence would change result was immaterial, the effect of that evidence being for

-jury. State v. Brown, 121 La. 599, 46 S 664.

6,7. Grow v. State \[Ga. App.\] 62 SE 669.

S. Sanders v. State, 52 Tex. Cr. App. 465,

20 Tex. Ct. Rep. 801, 107 SWV 839.

8. Court has no power to pass on motion

for new trial or in arrest unless died during

-term at which trial was had. State v. Faw-

-cett, 212 Mo. 729, 111 SWV 562. Motion for

new trial must be filed within four days after

-verdict or it will not be considered on ap-

-pcal. State v. Chenault, 212 Mo. 132, 110 SWV 696. After expiration of term at which

-caused was convicted and sequenced, court

-has no power to grant new trial for newly

-discovered evidence. Saleen v. People, 41

-Practice on motion.\_ See 10 C. L. 181--The motion " or petition 10 and the supporting affidavits 11 must be filed within the time allowed by law, must state specifically

-the grounds relied upon 12 and support them by a showing of facts 13 properly

-made,14 and must otherwise substantially comply with statutory requirements.16

must be of very material character and well

-cussing failure of accused to testify. Reincalculated to change the result. Ludwig v.

-hard v. State, 52 Tex. Cr. App. 59, 20 Tex. State \[Ind.\] 85 NE 345. Evidence hold not

Ct. Rep. 379, 106 SWV 128.

such that it would probably change result

on new trial. Nioum v. Com. \[Ky.\] 108 SWV 945. Newly discovered evidence held not to

out will not be considered. State v. Scott

-warrant new trial. Williams v. State \[Ind.\] \[Mo.\] 113 SWV 1069. Assertion in such mo-85 NE 349; Edwards v. State \[Ga. App.\] 61

tion that conviction is against the law is SE 502. Allaged new evidence held immaterial. Not their trial properly refused,

their trial: not likely to change verdict; due

-difference not shown. Davis v. State, 52 Tex. Ct. Rep. 362, 106 SWV 144. Supreme court will not reverse judge-

-rep.\] 61 SE 511. Grounds of motion for ment refusing new trial on ground of newly

-discovered evidence,

## 12 Cur. Law. INDICMENT AND PROSECTION SS 11.

Affidavits of jurors may be received to sustain but not to impeach their verdict.\[16\] Holdings relating to the granting of leave to file a motion,\[17\] amendment thereof,\[18\] postponement of hearing,\[19\] and service of rule fixing day for hearing,\[20\] are given in the notes. Where motion in arrest of judgment precedes motion for new trial, the right to a new trial is waived.\[21\] The order granting a new trial should specify the ground or grounds on which it is based.\[22\] If it appears to the court after over-ruling motion for new trial, or in arrest, that there was irregularity in obtaining judgment he may of his own motion modify or set aside his order, at the same term.\[28\] In the federal court, a motion for new trial is addressed to the discretion of the court,\[24\] and the court has power to act any time before final judgment has been entered and at a term subsequent to that in which verdict was rendered.\[25\] Where a new trial is granted because pleadings are defective, the filing of a new affidavit and information constitues a new case.\[26\]

_A motion in arrest of judgment_ See 10 C. L. \[18\] must be predicated upon some defect appearing on the face of the record or pleadings,\[27\] and where controlled by statute a statutory ground must appear.\[28\] Alleged errors during the trial,\[29\] insufficiency of the evidence,\[30\] question of former conviction\[31\] or acquittal,\[32\] or curable defects

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egin{tabular}{l l} \\multicolumn{1}{c}{} & \\multicolumn{1}{c}{} \\ \\multicolumn{1}{c}{} \\ \\multicolumn{1}{c}{} \\ \\multicolumn{1}{c}{} \\ \\multicolumn{1}{c}{} \\ \\multicolumn{1}{c}{} \\ \\multicolumn{1}{c}{} \\ \\end{tabular}

egin{tabular}{l l} \\multicolumn{1}{c}{} & \\multicolumn{1}{c}{} \\ \\multicolumn{1}{c}{} \\ \\multicolumn{1}{c}{} \\ \\multicolumn{1}{c}{} \\ \\multicolumn{1}{c}{} \\ \\multicolumn{1}{c}{} \\ \\multicolumn{1}{c}{} \\ \\multicolumn{1}{c}{} \\ \\end{tabular}
in the accusation \[38\] cannot be raised by the motion. The motion should be granted if the accusation is insufficient to state an offense,\[34\] but the sufficiency of the charge will be more liberally construed when so attacked than when attacked by motion or demurrer,\[38\] and the motion will be denied if any count is good.\[38\] A mere suggestion of insanity, after trial, not supported by affldavivi, is not ground for arresting judgment.\[37\] Where a motion for new trial has been granted, a motion in arrest of judgment need not be considered.\[38\]

\_Writ of error coram mobis.\_See 10 C. L. 184

SS 12. \_Sentence and judgment.\_See 10 C. L. 184.\_It is generally the court's duty to fix the sentence,\[38\] though the jury may make recommendations concerning it.\[40\] It is held proper for the court to allow affldavits in aggravation of the offense of which accused has been found guilty to be read when defendant is called for sentence.\[41\] Such course is not a denial of defendant's right to be confronted by witnesses against him, since the verdict is not affected.\[42\] Where a special judge has heard a cause and taken the defendant's plea of guilty, it is reversible error for the regular judge to assume jurisdiction, proceed with the trial, and pronounce judgment.\[43\] Upon a plea of guilty, the court, and not the jury, must, in Oklahoma, fix the punishment.\[44\] Where a plea of guilty is entered in a homicide case, accused should be fully advised of the nature and consequences of his act and his rights in the premises before sentence is passed, and usually evidence should be taken to determine the nature and circumstances of the act and the degree of the crime.\[45\] After plea of guilty, accused cannot complain that sentence is excessive.\[46\] A sentence and commitment on

33. The invalidity of a count in the infor- 37. State v. Khoury \[N. C.\] 62 SE 638.

mation on ground that defendant's name was omitted from blank space provided in the printed form cannot be raised in motion

sentence, as in lareveny case, though jury is in arrest of judgment after an adverse verdict where it appears defendant's name appears elsewhere in the count and charge is clearly against him. Pfeffer v. U. S., 31

App. D. C. 103.

**Dupelity cannot be taken advantage of by motion in arrest. State v. Stevens \[Vt.\] 70 A. 1060.**

**Technical error in form or an imperfection in statement which might be held bad on a motion to quash is not always sufficent, after verdict of guilty, to arrest judgment. City of Ft. Scott v. Dunkerton \[Kan.\]**

**96 P 50.**

**Surplusage in complaint for maintaining nuisance under liquor laws not ground for arresting judgment. City of Ft. Scott v. Dunkerton \[Kan.\] 96 P 50.**

\*\*84. Judgment should have been arrested where indictment for lareveny failed to allege value of bill of exchange stolen. People v. Silbertrust, 236 IL 144, 86 NE 203. Insulin-clency of indictment to charge an offense may be first raised by motion in arrest. State v. Hall, 130 Mo. App. 170, 108 SW 1077.

**85. Sufficiency of allegations of information will be more liberally construed when attacked by motion in arrest than when raised by demurrer. State v. Johnson \[N. D.\] 118 NVW 230. Information in language of statute stating offense in general language, sufficient though some necessary allegations were made by way of rectil or inference. Id.**

**86. Motion in arrest properly denied, at least one count in accusation being good. Howell v. State \[Ga. App.\] 62 SE 1000.** * 13 Cur. Law. INDICMENT AND PROSECTION SS 12. 95

a legal holiday is void." It is not necessary that the court formally adjudge defendant guilty before pronouncing sentence on the verdict."

The sentence should be definite and certain " and should conform to statutory requirements or provisions." Where different counts charge the same offense and there is a conviction on each count, there should be but one sentence on all the counts for the one offense." Where sentence is imposed generally, without application to any particular one of several counts on which accused was convicted, it will be referred to a count which warrants the sentence." A sentence different from the kind or character authorized by law is void." A sentence of the kind authorized by law, but excessive, is not wholly void," but is enforcible to the extent that it is authorized by law." A sentence less than the minimum fixed by law is not void." Where the trial court has imposed an illegal sentence, it has power to substitute a valid sentence, though the illegal sentence has been partly executed." But it cannot set aside a valid sentence and impose a new and different one after defendant has been remanded to jail to await execution of the sentence " or after expiration of the term at which sentence was imposed."

In some jurisdictions, sentence may be imposed at a term subsequent to that at which conviction occurred; " in others the court has no power to impose sentence at a future term." In Massachusetts the court may, with the consent of defendant,

- 47 Under California statutes. Ex parte
- 54. May be corrected on appeal. Ex parte
- 55. Sentence of & years minimum and 7
- 48. A sentence of imprisonment must in
- 56. People v. Oliver \[Cal. App.\] 95 P 172,
- 57. Ex parte Vitali \[Mich.\] 15 Det. Leg. N. 1066,
- 58. Most court could do was to correct record to make it show valid sentence. In re
- 59. When court has legally imposed sentence and the term at which it was imposed has passed, the power of the trial' court over it is at an end except for the purpose of enforcement. Exclusive control of sentence
- 60. So under Texas statute. Mitchell v. State, 52 Tex. Cr. App. 87,
- 61. Where a case is continued indefinitely after plea of guilty, though the postponement is by agreement of parties, the court has no power to impose sentence at a future term. There was no pretense of proceeding under parole statute, under which sentence after a plea or verdict of guilty, place the case on file where it appears best not to impose sentence at once.\[42\] The case then stands on the records and may be called up at any time and sentence imposed or other disposition of the case made.\[68\] But this course may be pursued only where defendant consents. He may insist on final disposition without unreasonable delay \[44\] and may enforce his right by a resort tomandamus proceedings.\[69\] Where sentence is not imposed but defendant is placed on probation, where the court deems the object of probation to have been accomplished and punishment unnecessary the cause may be finally dismissed.\[69\] In North Carolina the court has power to hold the matter of final punishment under consideration during the term and to take further testimony,\[67\] and where this is done at defendant's request he cannot complain of the sentence finally pronounced.\[69\] It is held by some courts that a court has inherent power to stay execution of sentence and that consent of accused thereto will be presumed.\[70\] By others it is held that, though a court has power to suspend or postpone imposition of sentence, it has no power to enter judgment and then suspend execution thereof.\[70\] The time at which a judgment or sentence shall be carried into effect is, however, no part of the judgment,\[71\] and the judgment is not invalidated by a void order suspending punishment or staying execution.\[72\] Sentence of imprisonment can be executed only by suffering actual confinement, unless sentence is remitted,\[73\] and mere lapse of time without imprisonment is not an execution of the sentence.\[74\] Hence a convicted defendant who is at liberty and who has not served his sentence may, in the absence of a statute to the contrary, be rearrested as an escape and ordered into custody upon the unexecuted sentence.\[75\] But it is elsewhere held that where the court makes an illegal order suspending sentence, under which defendant is discharged from cus-

could be imposed and then suspended. State v. Hockett, 129 Mo. App. 639, 108 SWV 599.

62. This practice is recognized by statute and authorized for all courts, including police court. Marks v. Wentworth, 199 Mass.

44, $5 NE 81.

63. Marks v. Wentworth, 199 Mass. 44, 85 NE 81.

01. Error to continue cause against defendant's objection, he having long been on probation. Marks v. Wentworth, 199 Mass.

44, $5 NE 81.

65. Writ issued requiring police justice to make final disposition of case. Marks v. Wentworth, 199 Mass. 44, $4 NE 81.

01. Though statute does not expressly confer this power. Rev. Laws, c. 217, $ 84; c.

220, $ 2. Marks v. Wentworth, 199 Mass. 44, 85 NE 81.

67. State v. Stevens, 146 N. C. 679, 61 SE

01. Court gave sentence, but set it aside at defendant's request and heard testimony of doctor, and gave more severe sentence. Second sentence valid. State v. Stevens, 146 N. C. 679, 61 SE 629.

01. Being for his benefit. Ex parte Collins \[Cal. App.\] 97 P 188.

01. Execution rests with other officials.

Ragland v. State \[Fla.\] 46 S 724. VWhile court has power to suspend sentence in proper cases, it has no power to suspend execution of sentence lawfully imposed except for purpose of giving effect to an appeal, or where cumulative sentences are Imposed, and in some cases of necessity and emergency. Tanner v. Wiggins \[Fla.\] 45 S 45. In Oklahoma when a judgment of imprisonment is imposed by a court plea of guilty or conviction and the same is not stayed as provided by law, court has no power to suspend sentence. Ex parte Clenching \[Okl.\] 97 P 650. Defendant should forth the committed to the proper officer for interaction. Constitution and statutes contemplate this procedure. Id.

71. Ex parte Collins \[Cal. App.\] 97 P 188.

01. Hence unnecessary to consider whether order of justice "withholding commitment" was void. Ex parte Collins \[Cal. App.\] 97 P 188.

01. Valid sentence of imprisonment is not rendered illegal but on attempt to suspend execution thereof. Ragland v. State \[Fla.\] 46 S 724.

46 S 724.

73. Ex parte Collins \[Cal. App.\] 97 P 188.

Valid judgment stands until satisfied. Ragland v. State \[Fla.\] 46 S 724.

74. Term of imprisonment does not begin until actual delivery to place of imprisonment. Ex parte Collins \[Cal. App.\] 97 P 188.

Exploration of the time without imprisonment is not an execution of the sentence and does not entitle defendant to a discharge.

75. Ex parte Collins \[Fla.\] 46 S 727. Judgment imposed vault sentence of imprisonment and contained a void provision attempting to suspend sentence on payment of a fine and compliance with certain conditions. Payment of fine and compliance with conditions did not relieve defendant from valid portion of sentence. Ragland v. State \[Fla.\] 46 S 724.

01. Ex parte Collins \[Cal. App.\] 97 P 188.

01. Ex parte collins \[Cal. App.\] 97 P 188.

Where justice withheld commitment, accused making no objection or demand for immediate commitment, justice had power to issue commitment subsequently and compel accused to serve sentence. Id.

today, it has no power or jurisdiction, after the lapse of time involved in the sentence and after the term, to issue commitment on such judgment.76

Footnote 76: The author is grateful to the anonymous referee for his comments on the manuscript.

_Judgment._ See 10 C. L. 188--The judgment should be properly entered 77 and should conform to statutory requirements.78 It should follow the verdict,79 should specifically show the offense of which accused was found guilty 80 and the punishment imposed,81 though it may be aided in these respects by the accusation 82 or by statutes upon which the proceedings are based.83 A judgment rendered against "defendants and each of them" is several and not joint and is sufficient in form.84 A criminal judgment abates on death of the defendant.88 But it is held that when the term at which a final judgment was rendered has expired, the court has no power to make an order declaring the judgment abated by defendant's death.84

SS 13. _Record or minutes and commitment._ See 10 C. L. 187--The record must show every fact or step essential to the jurisdiction of the court and validity of the proceedings,87 but misakes or omissions may usually be corrected or supplied by amendment.88 Where an attack is made upon the minutes at the same term at which they

78. Authorities collected and reviewed. Ex

offense where it referred to complaint which parte Clendenning \[Ok1\] 97 P 650.

specifically charged a statutory offense, and 77. The judge need not sign the entry of 77. The judge need not sign the entry of 77. The judgement judgment record showing pro-

on conviction of said-charge, and penalty codeglags held sufficient, though signature of

imposed was definite and certain and within judge did not appear. Connella v. Haskell

power of court to impose for such offense.

\[C. C. A.\] 158 P 285. More inadvertence in

Ex parte Bagshaw, 152 Cal. 701, 93 P 864, entering judgment at law in book used for

83. Judgment that the prisoner suffer entry of chancery orders and decrees by same court does not, as between parties, in-

near prescribed by law is sufficiently definite

validate or affect such judgment. It is sufficient under the statutes of New Jersey. Statutes

cient memorial for enforcement of judgment

fix time, place and manner. State v. Tomasi

or appeal therefrom by virt of error. State

\[N. J. Err. & App.\] 69 A 214. A judgment

v. Blair, 83 W. Va. 635, 60 SE 755.

must be read and construed in the light of

78. Entry of judgment held not to conform

the indeterminate sentence law where such

to Code Cr. Proc. 1895, 8 485, defective. Cas.

exists, and of the statute punishing the of-

key v. State \[Tex. Cr. App.\] 108 SWF 665.

false for which sentence is imposed. Sen-

Judgment held not to conform to Code Cr.

tence of 3 to 21 years construed as one of

Proc. 1895, 8 485, prescribing form of judg-

2 to 21 years. Check v. State \[Ind.\] 85 NE

ment imposing fine. Hence no final judg-

719.

ment to support appeal. Trayler v. State

84. Bergstrasser v. People, 134 Ill. App.

\[Tex. Cr. App.\] 20 Tex. Ct. Rep. 348, 106 SWF

609.

001. The object of criminal punishment is

to punish the criminal and not his family.

ery and alleged value making offense a

demy. Conviction thereon was reversed,

commerce law abates on death of defendant.

and on second trial it was agreed that prosec-

United States v. Pomeroy, 152 F 279.

vution under same indictment should be for

86. Court having lost all power over judg-

mendemen. United States v. New York Cent., etc.,

charged. Held, judgment adjdging defendant guilty of misdemeanor followed the verdict.

87. Judgment reversed where record failed

to show that accused was present when a

monwealth v. Bartholomew, 35 Pa. Super. Ct.

114. Judgment on the verdict is properly

v. State \[Ala.\] 46 S 229, Record held to

entered where jurisdiction, trial and verdict

are all regular.

88. Judgment held sufficient to show

ture of Offense of which accused was found

guilty. People v. Gregory \[Cal. App.\] 97 P

912. A judgment which recites conviction

of a felony, but does not designate the particular felony, is sufficient as against an

at-
tack upon hakes corpus. Ex parte Von

Vetesta \[Cal. App.\] 93 P 1036.

81. A judgment of conviction need not

specify that the defendants convicted be put

to hard labor. Shields V. People, 132 Ill.

10 C. L. 187--The record must show

App. 109. Recital in judgment "terms not

to run together" does not make sentence of

7 years indefinite. Record in another case

showed judgment and sentence against accused

cused for separate offense. State v. Webber

\[N. J. Law\] 68 A 1100.

82. "udgment not void for failure to show

12 Curr. L. --7.

were entered, accused has the right to be heard and to offer proof as to their correctness.88

Footnote 88: The author is grateful to the anonymous referee for his help and to the anonymous made below are waived "" and will not be considered on appeal." This rule has been applied to formal defects in the accusation," irregularities in procedure prior thereto,1 invalidity of statute on which prosecution was based,2 qualification of jurors,3 rulings of evidence,4 failure to swear a witness,5 misconduct of witnesses,6 qualification of interpreter,7 rulings on application for continuance,8 matters occurn-97. State v. Harp, 210 Mo. 254, 109 SWP 678,

No exception being taken to ruling of court,

Objection is deemed waived. People v. Emmons \[Cal. ApJ\] 95 P 1082. Objection to

Admission of evidence afterwards shown drawing jury waived when not made known to be incompetent not error in absence of the court. Tinsley v. State, 52 Tex. Cr.

App. 91, 20 Tex. Cl. Rep. 356, 106 SWP 347.

98. Questions not raised in lower court will not be considered. People v. Richards,

156 Mich. 48, 14 Del. Leg. N. 745, 114 NW

157 Mich. 48, 14 Del. Leg. N. 745, 114 NW

280. Only matters ruled on by lower court

raveable, being admitted without objection, except as to certain portions. State v.

P 287.

99. Imperfect statement of venue in affl-davit charging illegal sale of liquor held not reversible error, no objection being made below. Smith v. Corporation of Oxford

Kemming \[Mich.\] 15 Del. Leg. N. 382, 116 NWP

\[Aliss.\] 45 S 365. Objection to competency of impeachments in afflavit not considered, not having evidence not made below. State v.

ing been raised below and being curable by amendment. Evans v. State \[Aliss.\] 45 S 706.

Deletea in form are waived unless raised by motion to exclude being made, defendant

motion to quash or plea in alternation and

exceptionals taken to ruling and properly preserved. Patrick v. State \[Vyo.\] 96 P 527.

Ruling overruiling demurrer is final in ab-

see of an exception. State v. Herfenan,

28 R. I. 477, 68 A 364. Defeats ln afflavit not pointed out in demurrer will not be con-

adrected's wife not reviewable, no objection

altered. Houston v. State \[Ala.\] 45 S 467.

Mo. 111, 111 SWP 24. Question on cross-ex-

1. Failure to accord accused a preliminary examination of accused not reviewable, no objection

examination would be a mere irregularity

jection being made. State v. Ollphant, 128

which must be called to court's attention by

appropriate motion and offering of proof to

establish the fact State v. McKee, 212 Mo.

able, no exceptions at trial being taken.

183, 110 SWP 729. Defendant having waived

preliminary hearing cannot challenge a sub-

g927, 114 NWP 1023; State v. Soper, 207 Mo. 502,

sequent indicment on the ground that it

106 SWP 8; State v. Skillman \[N. J. Law\] 70

was found during tendency of preliminary

hearing. Nonappearance at preliminary examination, indicments on same day, and an

other found next day. State v. Rabens, 79

5. C. 542, 60 SE 442. Objection to qualiflex-

tion of grand juror, not made ground of motion to set aside indicment or to dismiss,

need not be considered on appeal. People v.

Quljada \[Cal.\] 97 P 689.

2. Accused could not raise invalidity of

portion of act (intoxicating liquor law) not

brought into question below. People v. McKee, 234 Ill. 146, 84 NE 865. Supreme court

will not pass upon constitutionality of statute, unless it appears that question was

made and passed upon in the court below, and the provision claimed to have been violated clearly designated. Grigkas v. State,

130 Ga. 16, 60 SE 108.

3. Failure to object to juror or challenge

because of inability to understand English,

which was known to counsel before jury

were empanelled, waived of incompetence.

Okerhauser v. State \[Vis.\] 116 NWP 768.

That a juror had expressed an opinion that

acused was guilty and had thereafter become a member of the jury not reviswable,

the matter not having been brought to trial

courts attention. State v. Walker, 79 S. C.

107, 60 SE 303.

4. Ruling on evidence not reviewable, no

no initial condition for the correct answer.

117, 60 SE 303.

4.

Ruling on evidence not reviewable, no

having been made below. State v. Bell, 212

do. 111, 111 SWP 24. Question on cross-ex-

amination of accused not reviewable, no objection

which must be called to court's attention by

by appropriate motion and offering of proof to

establish the fact State v. McKee, 212 Mo.

able, no exceptions at trial being taken.

183, 110 SWP 729. Defendant having waived

## 100. Incident and Proscution SS 14.

12 Cur. Law. ring at trial,\* remarks, or conduct of judge,\* arguments * * and misconduct of counsel,\* * \[12\] errors in instructions,\* and error in the form of substance of the judgment.\* Irregularities or errors which are ground for new trial and which are not assigned as such in the motion for new trial will not be considered.\* \[15\] Defendant cannot complain of invited error,\* or rulings to which he consented or in which he acquiesced.\* \[17\]

no bill of exceptions being reserved. Sample v. State, $5 Tex. Cr. App. 505, 108 SWV 685.

- \[0.\] Arrest of prosecuting witness for per-jury, at conclusion of itstimony, she having said she testified falsely at preliminary, not error, no objection being made at time. States v. Skraggs v. State \[Ark.\] 118 SWV 346.

- \[10.\] Remarks of court not reviewable, no objection or exception being taken at trial. State v. Clem \[Wash.\] 34 P 1079. Course of trial judge in making preliminary examination of jurors himself, and controlling examination and challenges by counsel, not reviewable, no exceptions being taken or preserved. People v. Trask \[Cal. App.\] 93 P 891.

- \[11.\] Improper argument not objected to at time not reviewable. State v. Blodgett \[Or.\] 92 P 820. Sufficiency of rebule by court for improper remarks by counsel not reviewable, no exception being taken. State v. Baker, 203 Mo. 444, 108 SWV 6. Improper argument not reviewedable when not objected to in trial court. Chapman v. Com., 38 Ky. L. R. 865, 112 SWV 667. Improper argument not reviewable, no objection or exception being taken. Napier v. Com., 33 Ky. L. R. 835, 110 SWV 842. Improper argument cannot be considered on appeal where no action or ruling of court below is requested. State v. Chen-ault, 212 Mo. 132, 110 SWV 696. Alleged improper argument is not reviewable unless objection is made and same ruling of court obtained, and exception thereto taken. State v. Jeffries, 210 Mo. 302, 108 SWV 614. Where record contained no exception relating to improper remarks of counsel except an exception to a special instruction relating to them, they were not reviewable. Bandon v. State, 53 Tex. Cr. App. 251, 109 SWV 159.

While the supreme court of errors may in diagram cases grant a new trial on account of improper argument of the state's attorney, though no motion was made below and court's attention was not called to it, yet it will not do so in ordinary cases. State v. Washeleksy \[Conn.\] 70 A 62. Remarks of state's attorney held not to require granting of new trial by appellate court. Id.

- \[12.\] Misconduct of counsel cannot be considered as ground for reversal when no adverse ruling was made by lower court. Hamblin v. State \[Neb.\] 115 NWV 850. Misconduct of district attorney in referring to failure of accused to testify not reviewable on appeal from judgment, no ruling of court being had, and it not being made ground of new trial. People v. Amer \[Cal. App.\] 96 P 401. Remarks of counsel not reviewable, no objection or exception being made or taken at the time. State v. Harrison, 145 N. C. 408, 58 S 867. Remarks of district attorney not ground for reversal unless ruling of court obtained and exception taken. Gllatti v. State, 135 Vris, 634, 118 NWV 252. Improper remarks of counsel not reversible error when no ruling of lower court is obtained. People v. Amer \[Cal. App.\] 96 P 401.

- \[13.\] Only matters in charge to which ex12 Cur. Law. INDLUTMENT AND PRINCENTIONIONARY LIBRARY1

\_Sufficiency of objection or motion.\_See 10 C. L. 192.--Objection must be made or exception taken when the matter arises \[18\] in apt time to allow some action or ruling by the court,\[19\] or, in the case of exceptions, within the time allowed by rule or statute,\[20\]

was made in motion for new trial, ques-

subsequent charge not waived. Id. Where,

tion was not properly saved for review in

day before holiday, counsel asked if court

apellate court. State v. McKee, 212 Mo.

would sit next day, and court said he knew

188, 110 SW 729. Error in overvalling of a

of no law to prevent holding trials on legal

motion to exclude testinomy may be as-

holidays (February 22), and counsel made

signed by exceptions pendente life, or re-

no objection when case was called next day,

viewed on motion for new trial. Soell v.

the point was waived. State v. Cook, 78

State \[Ga. App.\] 61 SE 514. Judparent af-

s. C. 253, 65 BS 862.

firmed where excerpts from charge to which

18. Evidence being received without ob-

exception was taken were not erroneous for

section and no motion to strike it being

any reason set forth in any proper assign-

made, held not error to refuse instruction to

ment of error contained in motion for new

ury at close of trial to disregard it.

trial, and evidence was sufficient to support

Younger v. State \[Nc.\] 114 NWV 170.

by:

Voterlee v. State,

130 Ga. 15, 60

lection to admission of confession must be

SE 103. Overvalling motion for continu-

made when it is offered. Walker v. State,

ance is ground for new trial and cannot be

58 Tex. Cr. App. 336, 110 SW 69. Request

assigned as independent error. Yazel v.

to charge jury to disregard evidence is

State \[Ind.\] 84 NE 972. Errors, if any, in

improper; objection should be made to its

giving or refusing instructions, can only be

presented by motion for new trial, assign-

194. Objection waived because not reviewed

ing them as causes for new trial; cannot be

when incompetency of testinomy appeared.

assigned as independent error in appellate

State v. Mills, 78, 78, 167, 68 BE 646. Where

court. Check v. State \[Ind.\] 85 NE 779.

a state's attorney is assisted by outside

Omission in charge cannot be first complain-

counsel, it is not error to refuse to permit

ed on appead, motion must contain all

the defendant to show who employed and

errors complained of in charge, or bill of

paid such outside counsel where no objection must be

execptions must be reserved. Boy v. State

1Tex. Cr. App.\] 106 SW 149. Refusal to

Bergstrasser v. People, 134 Ill. App. 603.

quasi jury panel not reviewable, no evil-

where no objection was made to witness

done in support of motion having been offered in trial court. Fox v. State, 53 Tex.

ers of accused, worm when selling liquor,

Cr. App.\] 108 SW 370. Questions not as-

until garments were on, accused could not

signed as ground for new trial nor assigned

object on appead. Dooley v. State, 52 Tex.

as error cannot be revived. Ross v.

Cr. App.\] 491, 108 SW 676. Objection that

State, 16 Wy. 285, 94 P 217. Where court,

jurors were improperly summmed and

on objection, checked counsel in argument

lected too late when first made in motion for

for going outside the record and cautioned

new trial. State v. Page, 212 Mo. 241, 110

jury, and no motion for new trial was made

SW 1057. Objection to evidence first made

on this ground, the matter was not ground

in motion for new trial not reviewable.

for exceptions. State v. Martel, 103 Me.

Nicoun v. Com., 33 Ky. L. R. 56, 108 SW 946.

63, 68 A 454.

Objection to evidence cannot be first made

16. Accused, introducing heavy and

momptent evidence, cannot object to similar

v. Speyer, 207 Mo. 540, 106 SW 506. Under

cr. Code Prac. # 281, decisions of court first

Duncan \[Cal. App.\] 36 P 414. Admission of

made on motion for new trial are not

signed statement by prosecution's witness

grounds of exception. Sims v. Com., 32 Ky.

harmless where accused first cross-examined

L. R. 443, 106 SW 214. Under Cr. Code Prac.

witness in regard to it. Cohen v. U. S. \[C. A.\] 157 F 651. Charge held to contain

review alleged error which is presented for

nothing of which defendant could complain

first time in motion for new trial. Napier

in view of his requests. State v and the objection or exception must be specific and certain " as to the matter objected to " and the ground of the objection,"23 and some ruling of the court must be obtained thereon,"24 as only the particular objection urged and passed upon below will be considered on appeal,"25 and objections not insisted upon will be considered waived.26 Mere exception to remarks of counsel without a request to exclude or to

new trial was made. People v. Long \[Cal. (540, 106 SVV 505. Objection that question was incompetent and immaterial held not to raise point that is was not proper redirect cognition to admission of testimony. Pryse v. Vickers, 209 Mo. 12, State (Tex. Cr. App.1 118 SVW 938. Objection that charge did not fairly and properly charge the law and was on weight of evidence too general. Taylor v. State, 53 Tex. Cr. App. 615, 111 SVW 151.

**Motion for new trial did not assign error in charge given, but alleged that court did not instruct on all the law of the case. Instructions given or reviewable. State v. Espensched, 212 Mo. 215, 110 SWV 1072. Such exception too general, without request to give certain charges, or particular exceptions to portions of charge. Id. Alleg-tion In motion for new trial that verdict is against the evidence is not sufficient; verdict will be disturbed only when there is no substantial evidence to support it. Id. Grounds of motion for new trial based on exclusion of questions insufficient because not showing evidence to be elicited. Morris v. State \[Ga.\] 62 SE 806.**

**22. Objection to letters should specify objectionable parts, other parts being competent. People v. Gillette, 191 N. Y, 107, 83 NE 680. Request for ruling as to each of two counts properly refused where inapplicable to one. Commonwealth v. Hollander, 200 Mason. 73, 85 NE 844. Exception to refusal to give particular request does not avail to open objections to charge as a whole but raises only the matters to which the attention of the court was specifically called. Commonwealth v. Jewelle, 193 Mass. 558, SS NE 858. Accused cannot complain that court allowed state to select county to which cause was removed, defendant objecting only to one county and not objecting to selection made by state. State v. Harrison, 145 N. C. 408, 59 SE 867.**

\*\*23. A mere objection to a question does not raise objection that proof was not subsequently offered to make it competent. Raymond v. State \[Ala.\] 45 S 895. Objection to evidence on wrong ground, and failure to improve to have it stricken, held waiver of any error. Commonwealth v. Johnson, 199 Mass. 55, 85 NE 188. Objection to materiality of testimony does not raise qualifications of witness. People v. Burmans \[Mich.\] 15 Det. Leg. N. 640, 117 NW 583. Objection to cross-examination as irrelevant, immaterial and incompetent, held not to raise point that witness, who was being examined as to test-imony on preliminary examination had not testified at such examination. People v. Hart, 153 Cal. 261, 94 P 1042. Objection to witness stating his "understanding" is not an objection to the admissibility of the facts sought to be shown. People v. Weston, 286 Ill. 104, 86 NE 188. Expectations so general that particular objection cannot be determined not considered. Leonard v. State, 63 Tex. Cr. App. 187, 109 SVW 149. Objection to question on cross-examination of expert haled insufficient. State v. Speyer, 207 Mo.

instruct the jury to disregard them presents nothing for review.27 A general objection to evidence is insufficient \[28\] unless all of the evidence objected to \[29\] is clearly inadmissible in any view.30 The refusal to allow a witness to testify,31 or a ruling sustaining an objection to a question, is not reviewable unless an offer of proof is made,32 and an offer of proof is properly rejected unless all the offered evidence is competent.33 Where a question calls for improper or incompetent evidence, an objection must be made to the question and a ruling obtained 34 as ordinarily, evidence received without objection will not be stricken;35 but where a question is proper, a motion to strike is the proper remedy when the testimony given is nonresponsive,36 or is otherwise objectionable and incompetent.37 A motion to strike

as error upon writ of error. State v. Ham \[S. D.\] 114 NWP 713,

complement as an admission, and only a general objection was made, its admission was not error; defendant should have requested court being requested. Skaggs w. State \[Aark.\] 118 SW 346. More interruptions of argument, no ruling of court being asked, held not exceptions. Pr yes v. State \[Tex. Cr. App.\] 113 SW 938. Where objection was to renatr of district attorney to explain why he abandoned a line of questions, and no motion to strike testimony or remark was made, refusal to strike was not error. People v. Cowley \[Cal. App.\] 94 P 866. Deendant not entitled to review of conduct of solitor in attempting to get improper evidence before the jury where no objection was made or ruling of court requested in lower court. State v. Boyles \[S. C\] 60 SE 233. Misconduct of state's counsel is not a statutory ground for new trial. Acused's counsel should have asked court to within-draw statement from jury and excepted to any refusal to do so. Here objection to assume presents nothing for review. Hille v. State, 169 Ind. 561, 83 NE 243. Where defendant excepted to argument of prosecetting attorney, but failed to ask the court to give cautionary instructions or to take any action in the matter, there was nothing for apellate court to review. State v. Farr \[R. L\] 69 A 5.

28. Admission of evidence over general objections proper. State v. Long, 209 Mo. 386, 108 SW 35. General objection to question properly overruled. Patton v. State \[Ala.\] 46 S 862. An objection that evidence is incompetent, irrelevant and immaterial is too general. State v. Crone, 209 Mo. 316, 108 SW 655. Objection that evidence is irrelevant and immaterial held insufficient. State v. Page, 213 Mo. 225, 110 SW 1057.

01. Paper containing dying declaration being admissible in part, general objection was properly overruled. State v. Hood, 63 W. Va. 182, 59 SE 91. Objection to admission in evidence of a record as a whole not sufficient when part of it was competent. State v. Dahquist \[N. D.\] 115 NWP 81. General exception unavailing where part of evidence objected to came within offer of proof to which accused had made no objection. State v. Ryder, 80 Vt. 422, 68 A 652.

01. Where evidence called for is not patently irrelevant, general objection to question is properly overruled, though it was leading. Moore v. State \[Ala.\] 45 S 656. General objections to evidence, not specifying grounds, will not be considered unless evidence is inadmissible in any view. Lewis should be directed specifically to the alleged improper testimony.\[38\] A motion to strike all of a witness' testimony is properly denied if a part of it is competent.\[39\] A motion to strike must be based upon some feature of the evidence rendering it inadmissible; it cannot properly be based on the sufficiency of the evidence.\[40\] The omission of a particular instruction,\[41\] or an error in a portion of the charge,\[42\] cannot be complained of unless a request for a proper instruction is made in due season \[43\] and in proper form,\[44\] and an exception reserved to its refusal \[45\] or omission.\[46\] An exception to the charge as a whole is properly overruled if it is correct in part.\[47\] A mere objection to a portion of the charge presents nothing for review; an exception must be taken.\[48\] Objection to change of venue cannot be made by a plea to the jurisdiction of the court to which the cause is removed.\[49\] Exception must be taken to the order directing the change in the court making the order.\[50\] Plain and vital error should be corrected, regardless of the sufficiency of the exception saved below.\[51\]

. **SS 15.**_Harmless or prejudicial error._ See 10 C. L. 199--In respect to some matters responsive to the question, containing both he cannot complain of the charge as given. matters of opinion and hearsay, the answer should be stricken out by the trial judge. Commonwealth v. Howe, 25 Pa. Super. Ct. 554.

**37.** State v. Blodgett \[Or.\] 92 P 820. Where question is proper, only remedy against improper answer is motion to strike. People v. Emmons \[Cal. App.\] 95 P 1032. When question is unobjectionable, and the answer is incompetent or irrelevant, the answer may be stricken without previous objection to the question. People v. Long \[Cal. App.\] 93 P 837. If improper testimony is given in response to a proper question, a motion to strike is the proper remedy. Thompson v. State \[Fla.\] 46 S 842.

**38.** Thomas v. State \[Ala.\] 46 S 771.

**39.** Objection should be specific. Lewis v. State \[Fla.\] 45 S 998; \[Calendar v. State \[Ark.\] 109 SWV 1024. A motion by accused to strike out all physician's evidence as prosecution's witness as hearsay is properly denied where on direct examination the witness testified as to patients condition and his opinion of the cause thereof, and on cross-examination in response to questions asked by defendant's counsel he testified as to patient's declarations as to the cause of her condition. Thompson v. U. S. 30 App. D. C. 352.

**40.** Lewis v. State \[Fla.\] 45 S 998.

**41.** Failure to give particular instruction cannot be complained of, accused not having requested it. Hobbs v. State \[Ark.\] 111 SWV 264. Where defendant's counsel requested 7 instructions and court gave 6, and counsel did not request the giving of others which he claimed to have handed to judge, but which judge claimed not to have received, no question was raised as to others. People v. Laudiero \[N. Y.\] 85 NE 182.

**42.** Defendant cannot complain of misleading oral charge when he did not request an explanation, Millimeter v. State \[Ala.\] 46 S 756. If accused considers charge misleading, he should request explanatory charge. Hengburg v. State \[Ala.\] 45 S 246. If counsel does not consider an instruction given sufficiently clear or intelligible, it is his duty to suggest the supposed defect and a suitable instruction, and, failing to do so, of procedure, notably argument and conduct of counsel,\[52\] and custody and conduct of the jury,\[58\] the rulings usually blend the propriety of particular acts and their harmful effect in such manner that separate treatment would be misleading, and sections of this article dealing therewith should be consulted in connection with the holdings here given. Error is presumptively prejudicial,\[54\] doubt as to its harmful effect being resolved in favor of accused,\[55\] especially in close cases.\[60\] Defendant cannot complain of error which is in his favor \[67\] or prejudicial only to the state's

egin{tabular}{|p{199.2pt}|p{199.2pt}|} \\hline
52\. See ante, $ 10B. & 350. Unwarranted cross-examination prejudicial error where used as basis for evidence which should have been offered in & 53. See ante, $ 10F. & 350. Unwarranted cross-examination prejudicial error where used as basis for evidence which should have been offered in & 54. Error apparent in the record is pre-suptively prejudicial unless the contrary appears beyond doubt. Williams v, U. S. \[C. C. A.\] 158 F 30. & 407. Erroneous rejection of 'questions on cross-examination to test witnesses' credibility held prejudicial. People v, Hart, 153 & 55. Errors in charge are prejudicial if they affect prejudicially defendants' rights as to a lower offense, or as to a defense, and if errors have tendency to induce conclusion of higher offense, or conviction path-having exhausted his preemptory challenges. For than acquital. Pannell v. State \[Tex: Cr. App.\] 94 P 407. & 407. 47. Erroneous charge on interest of witnesses prejudicial though in-adverting made; effect on accused's case cannot be considered. State v. Ownby, 148 N. C. 677, 61 SE 630. Giving of incorrect charge, and refusal of correct charge, rever-submitted error; court not called upon to specu-not very strong, substantial errors cannot be late as to what jury would have done if correct charge had been given. Cohen v. NE 676. Where the evidence is close and State, 53 Tex. Cr. App.\] 422, 110 SW 66. Giving of manslashighter instruction reversible error where accused was manifestly guilty of murder or innocent and was convicted of manslashighter. Stovall v. State \[Miss.\] 47 S 479. Judgment must be reversed if the charge on the law is incorrect, motion for new trial on this ground having been denied. Lee v. State \[Tex. Cr. App.\] 118 SW 301. In the federal courts the rule is that where a party persists in putting in test-compilation of error in his favor. People v.mony which was objected to and which was erroneous, the error is fatal if the testimony was or might have been prejudicial. Al-Kan v. U. S. \[C. C. A.\] 163 F 810. Two conflicting charges on measure of proof in & 57. Erroneous to the work of the jury,\[58\] the rules that were not being confused with the argument that is not being confused with the argument case \[58\] or to a codefendant.\[59\] The rule that trivial or technical errors may be disregarded, when defendant appears to have had a fair trial,\[60\] does not warrant courts in disregarding violations of established rules of procedure or evidence,\[61\] or substantial rights of the defendant \[62\] guaranteed by the constitution or statutes.\[63\]\_Trivial or immaterial error.\_See \[10\] C. L. \[196\]\_The rule that reversal will not ordinarily be had for errors not affecting the result \[44\] or the substantial rights of the parties \[65\] has been applied to the qualifications of grand jurors,\[66\] defects in pleadings,\[67\] allowing amendment of pleadings,\[68\] drawing,\[69\] qualification,\[70\] examination,\[71\] and selection \[72\] of trial jurors, failure to arraign,\[73\] granting \[74\] or refusal of

was direct and positive. Wimberly v. State, \[18\] required by Code Cr. Proc. $ 542 to give 53 Tex. Cr. App. 11, 108 SW 384. Charge tbat judgment without regard to technical errors it was for jury to decide whether defendant or defects, or to exceptions which do not had been denied constitutional guarantant of specedy and public trial before impartial pyle v. Strollo, 191 N. Y. 42, $2 NE 578. Pajury cannot avail defendant where judge red proof that defendant was a wholesale had already ruled defendant had not been de deprived of his guarantanty and it was in de-fendant's favor that court allowed jury to Villiams v. U. S. \[C. A.\] 158 F $6. Convention not reversed because jury may have

58. Admission of testimony prejudical only to state's case not ground for complaint by accused. People v. Hutchings \[Cal. App.\] 97 P 325.

01. Where a confession by one of two persons jointly indicted is proved, he cannot complain that court failed to instruct that confession could be considered only as against him. Jones v. State, 130 Ga. 274, 60 SE 840. Where evidence showed tenants guilty of maintaining nuisance, and land-jord innocent error in finding both guilty jointly was not prejudical to the tenants. People v. Kent, 151 Mich. 134, 14 Det. Leg. N. 904, 114 N NV 1012.

01. Courts should not be astute to sustain technical errors where it appears that accused has had a fair trial. Commonwealth v. Fisher \[Pa.\] 70 A 865.

01. Judgment reversed because of admission in evidence of letters sent by accused to his wife and given by her to prosecuting attorney. Commonwealth v. Fisher \[Pa.\] 70 A 865.

01. Rev. Code Cr. Proc. $ 500, requiring technical errors to be disregarded by supreme court, does not authorize court to disregard a variance such that judgment would not bar second prosecution for same offense. State v. Hann \[S. D.\] 114 N NV 713.

01. Commonwealth v. Fisher \[Pa.\] 70 A 865.

01. Where jurors could not, without disregarding their oaths, have found any verredict but guilty under the evidence, errors in charge held harmless, under Burns' Ann. St. Supp. 1906, $ 1977. Mason v. State \[Ind.\] 83 NE 613. Instruction and evidence which could not have affected result, harmless. People v. Monreal \[Cal. App.\] 93 P 385.

If exclusion of evidence was correct, ruling will not be reversed because erroneous reasons were assigned. State v. Ayles, 120 La. 661, 45 S 540.

65. Judgment must be given without regard to technical errors or defects or to exceptions which do not affect substantial rights. Code Cr. Proc. $ 542. People v. Simmons, 109 NYS 190. Exception overrule, no prejudice being made to appear. State v. Washington \[S. C.\] 61 SE 896. In criminal cases the Court of Appeals of New York continuinance,78 change of place of trial,79 exclusion of evidence,77 admission of evidence,78 receiving evidence out of its proper order,79 cross-examination of witnesses,89

one or more objectionable jurors for want

harmless. Boyd v. State \[Ala.\] 45 S 591; of peremptory challengas. Shumway v. Robinson v. State, 180 Ga. 361, 60 SE 1005: State \[Neb.\] 117 NW 407. Error in disel-

kidell v. Com., 33 Ky. L. R. 764, 111 SVW 301; Shumway v. State \[Neb.\] 117 NW 407; where accused did not exercise all peremptory challenges. People v. Maughs \[Cal.\] 96 P 407.

Tabor v. State, 62 Tex. Cr. App. 387, 107

Svy 116; Jones v. State, 62 Tex. Cr. App. 519, 107 SVW 849; Faulkner v. State, 63 Tex. Cr. App. 258, 109 SVW 119. Erroneous ad-

of not guilty, and having enjoyed all rights

which he would have had had he been duly

arragined. Hobbs v. State \[Ark.\] 111 SVW 264.

74. Error in continuance of cause did not

emtitle accused to be discharged, and was

not ground for reversing judgment Ash-

lock v. Com. \[Ya.\] 61 SE 752.

75. Refusal of continuance not prejudicial

75 Tax. Cr. App. 493, 108 SVW 695; Didry v. witness would not have been admissible.

State v. Simmons, 121 La, 561, 46 S 651.

76. That November term was extended

heavy harmless, facts being otherwise

into December, and place of trial changed

from criminal court building to county

61 SE 14. Admission of evidence to prove

court house, held not ground for reversal.

People v. Weick, 123 App. Div. 328, 107 NYS

prejudicial, though evidence might properly

968.

001. Exclusion of evidence harmless, facts

being otherwise proved. State v. Harris,

116 NWW 606. The erroneous admission of

209 Mo. 423, 108 SWW 28; Boyd v. State \[Ala.\]

same fact is proved by other testimony

45 B 591; Brooks v. State, 88 Ark. 376, 108

swp 205; State v. Long, 209 Mo. 366, 108 SWW 168. Admission of

SVW 35; State v. Hunter, 79 S. C. 84, 60 SE

openion evidence harmless, facts being

241. Exclusion of evidence, which could not

clearly proved. Fay v. State, 62 Tex. Cr.

have been material, harmless. Groce v. Terr.

App. 185, 20 Tex. Ct. Rep. 857, 107 SWW 55.

\[Ariz.\] 94 P 1108; Kennedy v. Com., 33 Ky.

Admission of incompetent evidence harmless,

L. R. 85, 109 SWW 313. Exclusion of

error of guilt being clear without it. Smith

dence harmless in view of negative v.

v. State, 52 Tex. Cr. App. 351, 107 SWW 55.

swer of witness. Drennan v. State, 53 Tex.

Admission of evidence harmless, where ver-

Cr. App. 311, 109 SVW 1090. Erroneous ex-

dlet would have been demanded without it.

clusion of testimony of defendant, as to

Smith v. State, 3 Ga. App. 326, 59 SE 934.

whether he had ever been convicted of crime

Where the competent evidence clearly just-

in Italy, harmless. People v. Laudiero \[N.\] -

fies the finding, the admission of certain in-

Y.J. 85 NE 132. Vitness having admitted

competent evidence will not be ground for

inconsistency in former testimony, not er-

ror to refuse to allow to be read portion of

Admission of incompetent evidence harm-

afflavit for continuance relating to such

less, where verdict is abundantly sustained

former testimony, state having admitted

by competent evidence. People v. Woston,

truth of facts in afflavit to avoid continua-

238 Ill. 404, 86 NE 188. Where verdict shows

ance. Stamper v. Com., 33 Ky. L. R. 880, 110

that jury did not act on evidence erroneous-

swp 389. Exclusion of testimony not ground

for reversal, where trial was by court with-

State \[Ga. App.\] 62 SE 540. Opinion harm-

out jury and court had denied continuance

less where witness afterwards gave posi-

and held evidence immaterial. Turner v.

State \[Tex. Cr. App.\] 108 SVW 661. Where

dying declaration had been reduced to writ-

ing and writing was lost instructions \[81\] and submission of issues, \[82\] refusal of requested instruction, \[83\]

State \[Tex. Cr. App.\] 111 SVW 1017. Admis-

\[55\]. Admission of evidence of attempt to set-

\[command\]

\[0.8em\]

- 12 Cur. Law. INDICITMENT AND PROSECUTION SS 15. 109

- 13 \*\*The development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the development of the 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### 110.1.2 The 100.11 Experiment

The experiment was conducted on a 1000-inch test of the state court for review of habeas corpus proceedings by federal court does not deprive state court of power to set aside its order admitting prisoner to bail before bail has been accepted thereunder.1

SS 17. \_Appeal and review. A. Right of review.\_See 10 C. L. 210.\_The right of appeal is purely statutory,2 and no appeal can be taken in the absence of a statute authorizing it.3 Usually the state of government has no right to an appeal or writ of error * for the purpose of reversing the cause on the merits, but a right to a review of purely legal questions is conferred by statute in many jurisdictions * in order that criminal procedure may be settled and uniform.4 The state may appeal only in cases provided for by statute,7 and upon a review of questions of law judgment operating as defendant gflying recognizance, and notice of appeal had been given. Held, jurisdiction of Applegate court had attached, and trial court had no power to accept recognizance or do any act except supply missing papers. Ex parte Barnbaugh \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 405, 106 SVW 362. 99. Judgment after appeal taken, entered numre pro tunc, is void. Hinman v. State \[Tex. Cr. App.\] 113 SVW 280. 1. Ex parte Collins, 151 F 358. 2. In re Montgomery, 110 NYES 793. An appeal from a judgment of conviction is not a matter of right, nor is it a necessary element of the process of law. Yeates v. Roberson \[Ga. App.\] 62 SS 104. 3. Hebbed v. Loeb, 103 NYES 1116. Conat art. 85 makes liability to imprisonment at rest of judgment. Id. The state may appeal labor, and not actual sentence, test of appealability in a prosecution under a statute. State v. Davis, 121 La. 623, 46 S 673. Senje of not guilty and enter a plea of guilty fence to imprisonment in penitentiary la in fact, though not in words, sentence to "Imprisonment at hard labor." Id. Dismismisal of the district attorney. All these acts of middemeanor case by justice in final disposition of case. Pen. Code, & 4387. Donati v. Rigetti \[Cal. App.\] 97 P 1128. Montipal-Id. Appeal of state from acquittal sustained lty has no right of appeal from judgment discharging defendant tn prosecution for Fisk (Ind.) 83 NE 985. The improper exclu-violation of ordinance, charter giving no such right. Code 1886, & 2868, confers right upon which the state may reserve a question on defendant only. Town of Brighton v. Milea \[Ala.\] 45 S 160. City of Bessemer has nation a statutory right to appeal from judgments in favor of defendants charged with violation of ordinance. City of Bessemer v. Milea \[Ala.\] 46 S 467. Where accused has been acquitted of violation of an ordinance of city of St. Paul, city cannot appeal to have constitutionality of ordinance deter-mined. City of St. Paul v. Stamm \[Minn.\] 118 NWV 154. Defendant prosecected before a justice of the peace by complaint and warrant for violation of village ordinance, the acts charged being misdemeanors under state laws, has not right of appeal from judgment of guilty under City. Code 1806. Buffling v. State \[Neb.\] 114 NWV 583. In such case the right of appeal under Cr. Code & 324, applies pursuanto to Comp. St. 1807, art. L. 14, & 52. Id. On appeal to county court from inferior courts where fine imposed is not over $100, its decision is final and not appealable. Cramer v. State \[Tex. Cr. App.\] 11 SWW 931. 4. A writ of error will not lie at the instance of the government in a criminal case. United States v. Baltimore, etc., R. Co. IC. C. A.\] 159 F 38. 5. By recent statute, the United States is entitled to review by writ of error where emotion to quash or demurrer is sustained.

a bar to further prosecution cannot be reversed.\* On such appeal the appellate court will only discuss and dispose of questions proper to be determined as precedents.\* Questions of fact will not be reviewed.**10**\*\*

(SS 17) _B. The remedy for obtaining review._See 10 C. L. 210__.\_The statutory remedy by appeal or writ of error should be pursued where applicable,**11**\*\* and not certioriari,**12**\*\* prohibition\*\*18\*\*\*\* or habeas corpus.**14**\*\* Thus the writ of habeas corpus cannot be employed to correct errors,**15**\*\* but is available only where proceedings are void or the court is without jurisdiction.**16**\*\* An appeal is a statutory right and is a continuation of the original suit.**17**\*\* A writ of error is regarded as a new suit, and, at common law, was a writ of right.**18**\*\* In Wyoming pending constitutional questions may be reserved to the supreme court by the district court.**19**\*\* In Oklahoma where there is

appeal not being allowed by Code 1906, $ 40.

tion of jurisdiction of the person or subject-State v. Key \[Aliss.\] 46 S 75. Under D. C. Code $ 935 (31 Stat. 1341, c. 85(4), giving prost-County Dist. Ct. \[N. D.\] 114 NWV 475.

**14.** Decision of trial court on facts can-in criminal cases, but providing that if error is found a verdict for defendant shall not be set aside, appeal from judgment dis-ccharging accused after verdict of acquitated based on exceptions taken during trial does not lie. United States v. Evans, 30 App. D. C. 58.

**8.** Judgment cannot be disturbed. Code $ 5463. State v. Gilbert \[Iowa\] 116 NWV 142. Though verdict in favor of defendant was found on appeal by state to be presumptively wrong owing to erroneous instructions, yet the judgement was affirmed by operation of law. State v. Cooper \[Iowa\] 116 NWV 691. State may have review but judgment operating as her cannot be reversed. Kirby's Dig. $ 2602-2604, prescribe procedure. State v. Dulaney \[Ark.\] 112 SWV 158. State may appeal, but where defendants may be punished if convicted, judgment of acquitated cannot be reversed. Kirby's Dig. $ 2614, 2614, 2618, 5146. State v. Black \[Ark.\] 111 SWV 993.

**9.** Code $ 5462. State v. Gilbert \[Iowa\] 116 NWV 142.

**10.** Instructed verdict for defendant not relevitable. State v. Gilbert \[Iowa\] 116 NWV 142. State cannot except to finding by court that presumption of malice (monicole case) was rebutted. State v. Walker, 145 N. C. 567, 59 SE 878.

**11.** A writ of error is the only mode by which judgment of trial court in criminal case may be brought to appellate court for review. Statue has made no provision for appeal. In criminal case. Griffith v. People, 133 Ill. App. 275. There being no right to appeal, the people are not bound to follow the case to the appellate court even to move for a dismissal. Appeal dismissed where state's attorney failed to appear by brief, argument or otherwise. Id. Under Laws 1907, $ 162, only judgments and sentences upon convictions for felonies and misdemeanors under the criminal code may be brought to supreme court by petition in error. All other cases, such as those for violating city ordinances, not constituting defenses against the state, must go up by appeal. Brandt v. State \[Neb.\] 115 NWV 227.

**12.** Certiorari not proper where right of appeal existed. In re Goldsmith \[Ark.\] 115 SWV 799.

**13.** Irregularities in drawing, surmoning or impaneling grand jury cannot be reviewed through writ of prohibition, no ques a conviction requiring judgment of death, a statement of the conviction, judgment, and testimony taken on the trial must be at once transmitted to the governor, who may require the opinion of the justices of the supreme court upon the statement.26 The supreme court then has power to review the case on the statement and render its opinion but has no power to affirm or reverse the judgment.21

(SS 17) _C. Adjudications which may be reviewed._See 10 C. L. 211_._.\_ Appeal or error ordinarily lies only from final judgment,22 and not from intermediate orders 23 or orders after judgment 24 reviewable on appeal from the judgment,25 though there are statutory exceptions to this rule.26 Usually, the judgment must have been entered on the record 27 in the statutory form,28 but entry of judgment is not essential in some jurisdictions.29

Laws 1903, c. 72. State v. Keefe \[Wyo.\] #8

P 122.

20. Wilson's Rev. & Ann. St. 1903, SS 5588,

01. State v. Johnson \[Okk\]. 96 P 26.

01. State v. Johnson \[Ok1\]. 96 P 26.

01. In the absence of a statutory authorizing it, no appeal can be taken from a judge.

ment or order which is not a final disposition of the matter in controversy. Common-wealth v. Reinsel, 34 Pa. Super. Ct. 265. Appeal is authorized only from judgment of conviction, under Cr. Code 1896, SS 4813,

Vick v. State \[Ala.\] 46 S 566. There is no right of appeal from a conviction by court of special sessions on which sentence is suspended without judgment. People v. Finally, 110 NYS 699. Court of appeals cannot affirm or reverse unless sentence has been passed. Robinson v. State \[Tex. Cr. Appl.\] 118 SW 763. A sentence is the final judgment, without which an appeal cannot be consummutated except in capital cases. Hinzman v. State \[Tex. Cr. App.\] 118 SW 280. An order requiring the giving of a bond to keep the peace is not appealable. Not final, and not given by statute. Lowe v. Com., 38 Ky. L. R. 1078, 112 SW 647. In proceeding by state for destruction of gambling devices seized under search warrant, an order of court overruling motion to destroy, and directing property to remain in possession of sherift until ordered destroyed in due course of law, and directing money taken from slot machines to be paid to defendant, is not final or appealable, there being no controversy as to the money. State v. Derry \[Ind.\] 85 NE 765.

23. Ruling on motion to quash indictment is not reviewable. Cr. Code Prac. SS 281. Ehrlick v. Com., 33 Ky. L. R. 979, 112 SW 565. No appeal from an order denying motion to require stenographer of grand jury to furnish copy of evidence taken before them on which indictment was based. In re Montgomery, 110 NYS 793. Order denying continuance not appealable. People v. Beseld \[Cal.\] 97 P 871. No appeal lies from order granting new trial, made before sentence, since the sentence is the final judge.

ment, and supreme court can review only appeals after final judgment. State v. Byars, 78 S. C. 174, 60 SE 448.

24. Denial of a motion in arrest of judgstem in that appealable. People v. Mullen \[Cal. Appl.\] 94 P 867; People v. Oliner \[Cal. App.\] 95 P 117; People v. Amer \[Cal. App.\] 96 P 401.

01. An order refusing to allow withdrawal of plea of guilty is not appealable, 13 Curr. L. - 8.

(SS 17) _D. Courts of review and their jurisdiction_. See 10 C. L. 212--Appellate courts have supervising and controlling power over lower courts in criminal as well as civil cases.\[30\] This supervisory power, as distinguished from the strictly revisory power, is elsewhere discussed.\[31\] Appellate jurisdiction depends upon the jurisdiction of the trial court.\[32\] A judgment void for want of jurisdiction will not support on appeal.\[33\] In Texas the court of appeals has no power to amend the judgment below so as to make the sentence cumulative.\[34\] The jurisdiction of the federal supreme court depends upon the existence of a constitutional question at the time when the writ of error was sued out.\[35\] The question must have been raised in the lower court.\[36\] A federal question cannot be brought into the record by denial of a motion for rehearing by supreme court of Philippine Islands so as to sustain a writ of error to the United States supreme court.\[37\] The court of appeals of Georgia is not authorized or required to certify any question to the supreme court on the ground that it is a constitutional question, unless it is specifically raised in the record necessary to a determination of the case.\[38\] Whether a cause should be dismissed or sent to the supreme court is to be decided by the court of appeals.\[39\] Questions settled by decisions of the supreme court will not be certified, especially where no review of these decisions is requested.\[40\] The court of appeals has power to grant a supersedeas in proper cases.\[41\] The supreme court of South Carolina now holds that it has no jurisdiction to entertain a motion to suspend an appeal in order that a motion for new trial may be made in the trial court.\[42\] The circuit court alone has jurisdiction

108 NYS 1116. But where application is 10 C. S., 207 U. S. 368, 52 Law. Ed. 249. Conviction under P. I. Pen. Code, art 300, subds. 4, court, on the ground that verdict is contrary to evidence, etc., this comes under $ 4724, and writ of error lies only after final judgment. Id. 30. State v. Helms \[VWs.\] 118 NY 168. 31. See Certiorari, 11 C. L. 591; Mandamus, 10 C. L. 662; Prohibition, Writ of, 10 C. L. 1277. 32. Appeal dismissed, court below being without jurisdiction (court held at term not authorized by law). Hodo v. State \[Ala.\] 47 S 134. Justice court not having power to remove defendant from office, in addition to imposing fine, circuit court could not, on appeal, impose such fine. Moore v. State \[Mis.\] 45 S 866. 38. Curts below not having jurisdiction 10 C. L. 662; Prohibition, Writ of, 10 C. L. 1277. 32. Appeal dismissed, court below being without jurisdiction (court held at term not authorized by law). Hodo v. State \[Ala.\] 47 S 140. 47 S 141. Justice court not having power to remove defendant from office, in addition to imposing fine, circuit court could not, on appeal, impose such fine. Moore v. State \[Mis.\] 45 S 866. 38. Curts below not having jurisdiction 10 C. L. 662; Prohibition, Writ of, 10 C. L. 1277. 32. Appeal dismissed, court below being without jurisdiction (court held at term not authorized by law).

to entertain such motion.\[43\] In Missouri, jurisdiction to review misdemeanor cases is vested in the courts of appeal,\[44\] and the supreme court has jurisdiction in such cases only when the constitutionality of a statute is raised.\[45\] The supreme court has exclusive jurisdiction of appeals in felony cases.\[46\]

(SS 17) \_E. Procedure to bring up the cause.\_See 10 C. L. 218...The statutes regulating appeals must be substantially complied with; otherwise the appellate court acquires no jurisdiction.\[47\] A proper notice of appeal,\[48\] definitely describing and identifying the judgment or order appealed from,\[49\] must be duly filed and served.\[50\]

\_A recognizance on appeal_See 10 C. L. 218 is required in misdemeanor cases\[51\] in Texas. The recognizance must correctly recite the offense of which appellant was convicted\[52\] and the punishment imposed by the lower court.\[63\] Where several persons appeal, a separate recognizance must be given by each.\[54\]

(SS 17) \_F. Perpetuation of proceedings in the "record."\_See 10 C. L. 215...The record proper must show an appeal duly taken\[55\] and perfected,\[56\] and other matters

which order or judgment appealed from is filed or entered, a notice stating the appeal formation does not inform accused of na-type or charge against him does not give upon the attorney for the adverse party.

State v. Squires \[Idaho\] 97 P 411. The at-ophere, 212 Mo. 244, 110 SWV 697.

45. Constitutional question not raised by demurrer which did not raise specific point.

She has authority to act for the state. Id. State v. Christopher, 212 Mo. 244, 110 SWV 697.

46. Appeal from conviction of assault with intent to kill (a felony) is within exclusive jurisdiction of supreme court. State v. Mc-Mahill \[Mo.\] 113 SWV 1071.

01. State v. Preston \[Nev.\] 95 P 918.

01. Under Cr. Prac. Act, SS 474, written notice of defendants' "Intention" to appeal is defective should be that does appeal. State v. Preston \[Nev.\] 95 P 918.

01. State v. Preston \[Nev.\] 95 P 918.

Where separate verdicts and judgments were entered against two defendants, a notice that they appealed from "the judgment," etc., was fatally defective as falling to show judgment appealed from, or that each appealed. Id.

50. Supreme court without jurisdiction, no notice of appeal having been filed. State v. Davis \[Iowa\] 118 NWV 318. Where record did not show notice of appeal, and clerk certified none had been entered, appeal dismissed. Teague v, State, 53 Tex. Cr. App. 503, 111 SWV 496. Filling and service on county clerk and district attorney of proper notice of appeal (as required by Cr. Prac. Act, SS 474, 475) are necessary in order to give supreme court jurisdiction. State v. Preston \[Nev.\] 95 P 918. Where notice of appeal is served and filed about same time of same day, it is immaterial which is done first, under Pen. Code, SS 1240. People v. Schmitz \[Cal. App.\] 94 P 407. No jurisdiction where record failed to show service of notice of appeal. People v. Finerty \[Cal. App.\] 97 P 73. District attorney cannot set up want of proper service after admission of "due service." People v.

forming a part of the record proper should appear thereby "7" and cannot be brought up by bill of exceptions.\[68\] Matters not a part of the record proper should be brought up by bill of exceptions.\[69\] Petitions signed by jurors and citizens asking judge to set aside verdict should not be made part of record on appeal.\[40\] In some jurisdictions the record proper must show filing of the bill of exceptions.\[61\]

\_Form, transmission and filing of transcript or statement of facts._See 10 C. L. 216_

The transcript or statement of facts must be in the form required by law or the rules of the court,\[62\] must be properly verified,\[63\] must be filed within the time prescribed by law or the court's order,\[64\] and must be served on the adverse party when this is

Finerty \[Cal. App.\] 97 P 73. Record failed to show notice of appeal given or entered; appeal dismissed. Teague v. State, 53 Tex. \[C. App.\] 508, 111 SWV 405. \[G. Transcript will be stricken when not script showing only indictment and notice of appeal, there being nothing to show idgment against defendant, appeal was dismissed. State v. Westerman \[Iowa\] 116 \[M\]hould 97 P 411. Rev. St. 1887, & 8051, re-surving certification by clerk, may be wavyed by stipulation as to correctness and completeness of record. Id. To make oral matters occurring at trial part of record for grave, 36 Mont. 394, 93 P 166. \[S. Motion In arrest of judgment, shown only by bill of exceptions, not reviewable. \[Welch v. State \[Ala.\] 46 S 856. \[G. Motion to dismiss information, and minutes relating there, are not part of judgment roll, should be brought into record by bill of exceptions. People v. Russo \[Cal. App.\] 97 P 700. All matters occurring in open court in the progress of a case should be brought into the record by bill or bills of exception. Allaged improper remarks of counsel must be so shown. State v. Young, 77 Ohio St. 529, 83 NE 898. Such matters cannot be brought up for review by affidavit. Id. \[G. State v. Arnold, 146 N. C. 602, 60 SE 504. \[G1. Purported bill of exceptions no part of record where record proper did not show that it was filed with clerk after being signed by judge. Williams v. State \[Ind.\] 85 NE 350. \[G2. Statement of facts consisting wholly of questions and answers cannot be considered in absence of anything in record to show judge considered it necessary to have it in such form. Essary v. State, 53 Tex. Cr. App.\] 596, 111 SWV 927. Statement of facts containing evidence in form of questions and answers not considered, there being nothing in record showing court considered that form necessary. Hargrave v. State, 53 Tex. Cr. App. 147, 109 SWV 163. Transcript of stenographer's notes, containing, besides the evidence, objections, statements and arguments of counsel, and colloquies between counsel and court and counsel, not a proper brief of evidence, which should contain evidence alone. Wright v. State, 3 Ga. App. 683, 60 SE 329. Assignment or error requiring consideration of evidence not considered. Id. The certified copy of the record below which the clerk is required to transmit, without charge to the clerk of the appellate court, under Pen. Code, & 2821, must conform to the rules of the supreme court rule 6, subd. 2, and rule 7. State v. Foster, 36 Mont. 278, 92 P 761. Clerk had no authority to copy into record 106 SWV 340. \[G. Transcript will be stricken when not verified by clerk, and there is no stipulation as to its correctness. State v. Squires \[Iowa\] 97 P 411. Rev. St. 1887, & 8051, re-surving certification by clerk, may be wavyed by stipulation as to correctness and completeness of record. Id. To make oral matters occurring at trial part of record for review, judge must certify statement of facts showing objections, or reporters transcript. Molina v. Ter. \[Ariz.\] 95 P 102. Un-authenticated and unexplained lead pencil interlineations (exceptions) in typewritten record cannot be considered as part of record. Hobbs v. State \[Ark.\] 111 SWV 264. \[C. App.\] 97 P 700. All matters occurring in open court in the progress of a case should be brought into the record by bill of exceptions. Shyder v. Stone \[Ark.\] 111 SWV 465. Statement of cranks cannot be brought into the record by bills of exception. Allaged improper remarks of counsel must be so shown. State v. Young, 77 Ohio St. 529, 83 NE 898. Such matters cannot be brought up for review by affidavit. Id. \[G. State v. Arnold, 146 N. C. 602, 60 SE 504. \[G1. Purported bill of exceptions no part of record where record proper did not show that it was filed with clerk after being signed by judge. Williams v. State \[Ind.\] 85 NE 350. \[G2. Statement of facts consisting wholly of questions and answers cannot be considered in absence of anything in record to show judge considered it necessary to have it in such form. Essary v. State, 53 Tex. Cr. App.\] 596, 111 SWV 927. Statement of facts containing evidence in form of questions and answers not considered, there being nothing in record showing court considered that form necessary. Hargrave v. State, 53 required.\[45\] Delay in filing may be excused if the appellant shows that he was not at fault,\[46\] but where there is a conflict between the court and counsel as to diligence shown in obtaining a statement, the appellate court will not interfere.\[47\] In some jurisdictions it is the duty of the clerk to transmit the record,\[48\] and his default is not chargeable to appellant.\[49\] In Iowa a transcript will be ordered at the expense of the county only where it appears to be necessary,\[40\] and where appellant has, in fact, no means, and is not seeking to avoid the cost.\[41\]

_Making, settling, approval, and filing of bills of exceptions.\[45\]_ See 10 C. L. 217.\_The bill of exceptions should be made up and prepared in the manner prescribed by rule or statute\[42\] and presented,\[43\] signed,\[44\] and filed\[45\] within the time allowed by law,

65. Transcript must be served on attorney general: if not so served, it may be stricken. State v. Squires \[Idaho\] 97 P 411.

01. A statement of facets not signed or filed in time will be considered, if the delay is due to no fault of appellant or his attorney, but to causes beyond their control. Caruthers v. State, 52 Tex. Cr. App. 458, 107 SW 857.

01. Affdavits of court and state's attorney controverted that of appellant's counsel as to cause for delay and what appellant's counsel had done. Caruthers v. State, 52 Tex. Cr. App. 458, 107 SW 857. Affdavits, controverted by state, held not to show due Gilligence in filing statement of facts, so as to require consideration of same, when filed too late. Crawford v. State, 53 Tex. Cr. App. 310, 108 SW 1181.

01. Clerk of court must transmit record to supreme court and certify it. State v. Squires \[Idaho\] 97 P 411. Under Pen. Code. $ 2281, it is the duty of the clerk with whom notice of appeal has been filed to transmit to the clerk of the appellate court, without charge, a copy of the record, though no bill of exceptions has been settled, and review is desired on the technical record only. State v. Foster, 36 Mont. 278, 92 P 761. In Texas, it is the duty of the clerk to transmit the record to the appellate court in criminal cases. Attoreneys have nothing to do with it. Davis v. State, 52 Tex. Cr. App. 546, 107 SW 828.

01. Failure of the clerk to file record within timely days is not ground for dismissal. Davis v. State, 52 Tex. Cr. App. 546, 107 SW 828.

01. Not an abuse of discretion to refuse to order transcript at expense of county where accused had been once convicted and judgment reversed for an erroneous instruction, evidence being same on both trials, and it not appearing that accused could not have bill of exceptions settled on second appeal without having transcript made. State v. Kehr, 137 Iowa, 91, 114 NW 542.

01. One who makes a voluntary transfer of all his property, after a formal accuasion against him, is not entitled to the benefit of the statute allowing to paupers a transcript of the evidence at the expense of the county. Transfer of land in trust for wife and children and to pay debts held voluntary and for the purpose of audding expense on county. State v. Shaffer, 137 Iowa, 83, 114 NW 540.

01. Statute making shorthand notes and their extension a bill of exceptions does not take away authority of court to approve and settle a bill of exceptions according to former practice. State v. Kehr, 137 Iowa, 91, 114 NW 542. Bill of exceptions sufficiently entitled which states names of parties in beginning. Starling v. State \[Eq.App.\] 62 SE 993. Under nature, reporter's transcript cannot serve as bill of exceptions unless certified by judge. Romero v. Ter. \[Aritz\]. 95 P 101.

Stauses and rules of court providing the manner and time of making up, filing and authenticating a bill of exceptions must be compiled with or appellate court cannot consider it. Montgomery v. State \[Fla.\] 45 S 813.

73. Judge may refuse to sign bill of exceptions presented too late under rules of his court. State v. Berry \[La.\] 47 S 597.

01. Girl of error will not be dismissed for failureal.

ture to have bill of exceptions certified in time, when it appears that it was presented in time, returned for correction, and re-evired again within 10 days and then verified and signed by judge. McDonald v. Ludowel, 's G. App. 654, 60 SE 337.

74. Bill of exceptions signed after ad-journment cannot be considered, record proper failing to show any order extending time or allowing signing in vacation. Battle v. State \[Ala.\] 45 S 67; Id. \[Ala.\] 45 S 68. Court had no power to sign bill of exceptions after expiration of time allowed by orders and bill so signed was not a proper part of the record. State v. Brannon, 212 Mo. 173, 110 SW 69. Time for signing bill of exceptions cannot be extended beyond commencement of term succeeding that of trial, even by written agreement of parties or counsel. Bill signed after such time, by agreement, stricken, on motion. Dates v. State \[Ala.\] 45 S 163. Bill of exceptions stricken where it was signed after adjournment, and record proper did not show any order extending the time. Brooke v. State \[Ala.\] 45 S 62. Irregularities unless the time has been duly extended by the court,78 though unavoidable delay, not caused by appellant, will not be charged against him.77 If bill is duly prepared and presented within time allowed by statute or order of court, it may be authenticated afterwards as of the day it was presented,78 appellant not being at fault.78 A valid order extending the time cannot be made after the expiration of the time prescribed by law.80 A bill of exceptions not signed 81 or otherwise identified, certified or authenticated 82 cannot be considered. The certificate of the trial judge to a bill of exceptions imports absolute verity,83 and the bill of exceptions must be accepted by the appellate court as true where defendant has not availed himself of the statutory mode of settling a bill refused by the court.84 In case of disagreement between the court and counsel as to what took place before the court, the statement of the court transmitted with the record must be accepted.85 Qualifications of a bill by the judge will control over statements in the main body of the bill,88 and where the court states

facts filed after adjournment could not be of exceptions, in order that appellate court considered, record not containing any order extending time. State v. Jackson, 209 merely does not make them part of bill of Mo. 397, 107 SWV 1057; Aden v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 838, 106 SWV 1154; Bill of exceptions, to become part of receiptals. State \[Tex. Cr. App.\] 108 SWV 683; Moods v. State \[Tex. Cr. App.\] 108 SWV 683; Machem v. State \[Tex. Cr. App.\] 108 SWV 1184. Nothing to review where record did not contain 20-day order authorizing filing of bill of exceptions and statement of facts. Benge v. State \[Tex. Cr. App.\] 107 SWV 832.

76. Recital in judgment entry that defendant has 60 days in which to take an appell is not an extension of time for signing bill of exceptions. Battle v. State \[Ala.\] 45 S 68.

01. If a party does everything in his power to present a bill for authentication but there is no judge to sign it, and the party is in no way at fault, the time during which he is unable for such reason to have the bill signed is not to be counted against him. Montgomery v. State \[Fla.\] 45 S 813.

01. Montgomery v. State \[Fla.\] 45 S 813.

01. Where bill was duly prepared and filed with clerk in time, and party had it certified by clerk and three persons present at trial but could not have it signed because the judge was suspended, and his successor had not been appointed, he was allowed to present it to the succeeding judge, who was allowed to sign it nune pro tune as of date of presentation to clerk. Montgomery v. State \[Fla.\] 45 S 813.

01. When the time for filing a bill of exceptions has expired, the court is without power to extend the time. State v. Bragg, 207 Mo. 586, 106 SWV 23. And a bill filed during time fixed by a void order cannot be considered. Id. Order extending time for signing bill of exceptions is without effect unless made within time allowed for signing the bill. Thomas v. State \[Ala.\] 46 S 757.

01. Bill of exceptions, filed before being signed by judge, no part of record. Williams v. State \[Ind.\] 85 NE 350. Purported bill of exceptions, not signed or approved by judge, not considered, Williams v. State, 52 Tex. Cr. App.\] 430, 107 SWV 825. Bill refused by court and not otherwise verified not considered. Relnhard v. State, 52 Tex. Cr. App.\] 59, 20 Tex. Ct. Rep. 379, 106 SWV 128.

01. All datavis on which motion for change of venue is based must be made part of bill that matter contained in a bill is incorrect, it will not be considered."7: Statutes provide modes for proving bills of exceptions by bystanders " or personb present at the trial who know the truth of matters presented,"8: when the judge refuses to approve the same; but when a party accepts and files bills of exceptions given by the judge, he cannot thereafter contradict them by bills proved by bystanders."9: In California a valid extension of time in which to present a bill of exceptions for settlement can be had only by complying with statutory provisions,"1 and where relief is sought for a default in failing to follow the statute, facts must be presented showing excusable neglect."9: The question whether statutory requirements may be waived seems to be unsettled."9: In Georgia, grounds of a motion for new trial not approved by the trial judge will not be considered by the appellate court." This approval may be entered on the motion or ground of the motion may be verified in the bill of exceptions."5: The approval of a ground of a motion extends no further than to verify statements contained therein as written."4: A mere allowance of an amendment to a motion for new trial is not a sufficient verification."7: The duty of authenticating the record on appeal rests primarily on the trial court,"8: and an appellate court will not interfere, in the trial court's exercise of that duty in the settlement of a particular bill."9: The

01. Drennan v. State, 53 Tex. Cr. App. 311, to present a bill of exceptions for settlement cannot be extended by stipulation, prove bill of exceptions, but made a statement contrary to matters stated therein, and no bill was proved by bystanders, the bill could not be considered. Wade v. State, 53 Tex. Cr. App. 184, 109 SW 191.

01. Where court refused to sign a bill of exceptions showing that district attorney referred, in argument, to failure of accused to testify, and a bill was proved by bystanders, it was held, the bystander's bill, supported by several afflavits, should be considered, though centroverted by district attorney. Vaden v. State, 52 Tex. Cr. App. 299, 20 Tex. Ct. Rep. 404, 106 SW 367.

01. When Judge refuses to sign a bill properly tendered, it is lawful for three persons to sign same in the presence of the judge, and to certify that it was presented to the judge and that he refused to sign it, and such bill of exceptions is then valid if the persons certifying it were present at the trial, had knowledge of matters stated and of the truthfulness thereof. Montgomery v. State \[F1a\]. 45 S 813.

01. Drennan v. State, 53 Tex. Cr. App. 311, 109 SW 1090. Bills held to have been accepted where counsel paid no further attention to them, after court modified, signed and filed them. Id.

01. People v. Simmons \[Cal. App.\] 95 P 48.

01. Mere opinion not availiling. People v. Simmons \[Cal. App.\] 95 P 48. Proper to refuse to settle bill of exceptions when presented after expiration of statutory time, an order of court granting an extension being invalid because no cause was shown, and a subsequent stipulation being without effect. Pen. Code, 81 1171, 1174. Id. Code Civ. Prac. 8 473, allowing court to grant relief from default caused by excusable neglect, applies where accused has presented bill of exceptions after statutory time, in reliance upon orders extending time, made without statutory prerequisites of notice and cause shown. People v. Everett \[Cal. App.\] 97 P 175.

01. Pen. Code, 8 1174, that time in which the appellate court may interfere only when the trial court refuses to act ! or is without power to grant the desired relief.2 The petition for such relief should disclose facts authorizing interference by the appellate court.3 A bill of exceptions will not in any event be acted upon by the appellate court without notice to the adverse party.4

Footnote 4: The _C. App._ is a the court thereon 10 and the exception taken,11 and sufficient of the evidence, instructions or proceedings to show affirmatively the alleged error.12 Where there is no

writing and what purports to be a copy of the jury panel. Williams v. Ohio, 11 Ohio C. C. C. (N. S.) 4. On appeal from judgment, appellate court may not examine sufficiency of evidence to support verdict and judgment, nor afflavits fled on motion for new trial on ground of misconduct of jurors, but may examine bill of exceptions to review errors committed on trial. State v. Gallagher, 14 Idaho, 581, 94 P 581.

Wherever matters of fact are involved in the ruilings of the trial court, such rulings will not be revised on appeal unless the facts are verified by proper hills of exceptions. Norris v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 527, 106 SWV 137: Mitchell V. State, 52 Tex. Cr. App. 87, 20 Tex. Ct. Rep. 372, 106 SWV 124. Bill of exceptions as verified held not to include fact relied on as ground of exception. Hill v. State, 52 Tex. Cr. App. 241, 20 Tex. Ct. Rep. 326, 106 SWV 145. Statements in a motion for new trial or in assignments of error will not be sufficient. Norris v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 527, 106 SWV 137: Hubert v. State (Tex. Cr. App.) 109 SWV 934. Errors not reviewable unless raised in motion for new trial or by bill of exceptions. White v. State, 52 Tex. Cr. App. 193, 20 Tex. Ct. Rep. 852, 106 SWV 1167; Greathouse v. State, 53 Tex. Cr. App. 218, 109 SWV 165.

\*\*Matters presented in motion for new trial not reviewable in insence of bill of exceptions or statement of facts. Ross v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 528, 106 SWV 340: Perkins v. State \[Tex. Cr. App.\] 106 SWV 345: Mayberry v. State, 52 Tex. Cr. App.\] 601, 108 SWV 659: Aguillar v. State \[Tex. Cr. App.\] 109 SWV 934: Brown v. State \[Tex. Cr. App.\] 109 SWV 937: Davis v. State \[Tex. Cr. App.\] 110 SWV 60; Innocente v. State \[G Tex. Cr. App.\] 110 SWV 61; Sanders v. State \[Tex. Cr. App.\] 112 SWV 938: McConnico v. State \[Tex. Cr. App.\] 113 SWV 14; Jones v. State \[Tex. Cr. App.\] 113 SWV 17. Unverified statement in ground of motion for new trial not embodied in bill of exceptions not reviewable. Roberson v. State, 53 Tex. Cr. App.\] 109 SWV 160; Sanders v. State \[Tex. Cr. App.\] 112 SWV 938: Evidence insufficient to support verdict. Taylor v. State \[Tex. Cr. App.\] 111 SWV 734. Improper argument presented only in motion for new trial. Bryant v. State \[Tex. Cr. App.\] 111 SWV 109.

\*\*.\*\*Motions for change of venue and cen-financed, not made part of bill of exceptions, and supporting afflavits not being referred to therein, cannot be considered. People v. Weston, 236 Ill. 104, 86 NE 188. Ruling on application for continuance not reviewable when motion was indicated in record only by statement in motion for new trial and there was no bill of exceptions. Walker v. State, 58 Tex. Cr. App.\] 20

\*\*.\*\*Meleged refusal of continuance not reviewable, no application for continuance appearing in record and there being no bill of exceptions to courte ruling. Mims v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 840, 106 SWV 1157. Exception should have been taken to action of court reflavg to allow motion for new trial to be filed, and motion made to after an exception taken at the time.

made part of record on appeal. McGinnis State v. Zeilman \[N. J. Law\] 68 A 468. Assignments of error predicated upon asserted facts not disclosed by the record cannot be considered. Shear v. State \[Fla.\] 45 S 986.

Shil of exceptions calling attention to rules based, trial court's refusal to quash in and objections, but not containing any-thing further to show error in the rulings, heid insufficient. State v. Zeilman \[N. J. Law\] 68 A 468. Bill of exceptions must contain so much of evidence as may be necessary to present the question of law upon which exceptions were taken. Id. Where transcript omits evidence, rulings of court, and instruction given and refused, court cannot, on appeal from judgment, review errors at the trial. State v. Baker \[Kan.\] 97 P 785. Alleged errors not re-viewable in absence of statement of facts, Green v. State \[Tex. Cr. App.\] 107 SW 840.

Where there was no bill of exceptions nor statement of facts, alleged error in charge, in rulings on evidence, and misconduct of jury, could not be reviewed. Douglass v. State \[Tex. Cr. App.\] 107 SW 350.

Record lawsfficient to present question: Alleged improper remarks cannot be reviewed when not presented in bill of exceptions or elsewhere in record. Groce v. Ter. \[Ariz.\] 94 P 1108. Bill of exceptions held not to show that remarks of counsel referred to failure of accused to testify. Har-grave v. State, 53 Tex. Cr. App.\] 107, 109 SW

163. Bills of exceptions failing to show counsel's comments, objections thereto were not reviewable. Tinitely v. State, 52 Tex. Cr. App. 91, 20 Tex. Ct. Rep. 356, 106 SW 347.

Bill of exceptions not purporting to show all the evidence, question whether evidence warranted argument not reviewable. Jones v. State \[Ala.\] 47 S 100. Improper statement in argument must be shown in bill of exceptions. Miller v. Com. \[Ky.\] 113 SW

518. Question of misconduct of county attorney and jury relied on as cause for new trial not considered where record did not disclose what it consisted of. State v. Powell \[Iowa\] 115 NW 761. Mere objection that witness was not an expert does not show that fact. Cornelius v. State \[Tex. Cr. App.\] 112 SW 1050. Bill of exceptions held not to present issue of invalidity of ordinance for violation of which accused was prosecuted. Smith v. Oxford Corp. \[Miss.\] 45 S 865. Authority of town board to pass resolution at special meeting could not be considered where record of board was introduced in evidence but was not made part of record on appeal. People v. Rich-ards, 150 Mich. 434, 14 Det. Leg. N. 745, 114

NNV 230. Ruling on application for containment not reviewable without statement of facts. Reese v. State, 55 Tex. Cr. App. 565, 110 SW 910. Where record showed no variance between complaint and information and original papers were not before court, alleged variance could not be considered. Rice v. State \[Tex. Cr. App.\] 107 SW, 833. Where facts do not appear in record and then is no bill of exceptions to court's action, ruling on plea that accused was not subject to prosecution because not property verified. Merely scrudiated was not reviewable. Fisch v. State \[Tex. Cr. App.\] 111 SW 410. Appellate court could not pass on question of former conjectures when no record of conclusion was produced in lower court, and v. State, 52 Tex. Cr. App. 173, 20 Tex. Ct. Rep. 134, 105 SWV 1026. Charge responsive to facts which could be shown under indictment not reviewable in absence of statement of facts or bill of exceptions. Booher v. State \[Tex. Cr. App.\] 107 SWV 832. Sufficiency and correctness of charge are not ordinarily reviewable in absence of statement of facts. Mims v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 840, 106 SWV 1157; White v. State, 52 Tex. Cr. App., 193, 20 Tex. Ct. Rep. 852, 106 SWV 1167; Davenport v. State \[Tex. Cr. App.\] 107 SWV 853; Holland v. State \[Tex. Cr. App.\] 107 SWV 854; Weatherford v. State \[Tex. Cr. App.\] 107 SWV 825; Moland v. State \[Tex. Cr. App.\] 118 SWV 155. Action of court in givings and refusing instructions must be considered in light of any conceivable evidence against defendant where evidence actually received is not in record. People v. Stimmons \[Cal. App.\] 95 P 48. Admission of evidence: No objection to evidence below shown and all evidence not set out. Admissibility of evidence not reviewable. Oates v. State \[Ala.\] 47 S 74. In absence of proper bill of exceptions, rulings on admission and exclusion of evidence are not reviewable. Romero v. Ter. \[Ariz.\] 95 P 101. Evidence not being made part of record by bill of exceptions, errors in admission thereof cannot be considered. Summerlin v. State, 130 Ga. 791, 61 SE 849; Donovan v. State \[Ind.\] 83 NE 744; Thomas v. State \[Tex. Cr. App.\] 108 SWV 646. Jiection to question not considered, no answer of witness being shown by bill. Earles v. State, 52 Tex. Cr. App. 140, 20 Tex. Ct. Rep. 522, 106 SWV 138. Bill of exception showing introduction of proof that accused had been warned in hearing before justice, not showing that any statement of accused was offered, presented nothing for review in support of objection to the introduction of such statement. Mitchell v. State, 52 Tex. Cr. App. 87, 20 Tex. Ct. Rep. 372, 106 SWV 124. Bill of exceptions to admission of evidence of prior charge against witness, to impeach him, should show date of occurrence in order to show whether or not it is too remote. Caldwell v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 349, 106 SWV 343. Exception to refusal to exclude testimony cannot be considered when it does not state the testimony nor show where it may be found in the record. Cornellus v. State \[Tex. Cr. App.\] 118 SWV 1050. Bill of exceptions to admission of evidence must show its inadmissibility. Hargrave v. State, 53 Tex. Cr. App.\] 147, 109 SWV 163. Bill of exceptions must show how or wherein admits.

State v. Simmons, 121 La. 561, 46 S 651. Al-Step rul. \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 349, 106 SWV 343. Exception to refusal to exclude testimony can not be considered when it does not state the testimony nor show where it may be found in the record. Cornellus v. State \[Tex. Cr. App.\] 118 SWV 1050. Bill of exceptions to admission of evidence must show its inadmissibility. Hargrave v. State \[Tex. Cr. App.\] 148 SWV 163. Bill of exceptions must show or wherein admits. Biddy v. State \[Tex. Cr. App.\] 149 P 108 SWV 658. Objectation to alleged admission by defendant, that it appeared to have been made while saleep, not tenable, the record not showstring whether it was made while saleep or awake. State v. Rocker \[Iowa\] 118 NWV 797. Where ordinance alleged to have been violated was not abstracted in record, alleged error in admitting testimony as to acts prior to that charged to show character of house of accused could not be passed upon. La Flute v. Pt. Collins, 43 Colo. 299, 95 P 927. Errors in admission of testimony not considered, no objection being made, the court is not otherwise satisfied that it including matter necessary to determine testimony.

## 12 Cur. Law. INIDITMENT AND PRODUCTION 178

v. State, 52 Tex. Cr. App. 173, 20 Tex. Ct. Rep. 134, 105 SWV 1026. Charge responsive to facts which could be shown under indictment not reviewable in absence of statement of facts or bill of exceptions. Booher v. State \[Tex. Cr. App.\] 107 SWV 832. Sufficiency and correctness of charge are not ordinarily reviewable in absence of statement of facts. Mims v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 840, 106 SWV 1157; White v. State, 52 Tex. Cr. App., 193, 20 Tex. Ct. Rep. 852, 106 SWV 1167; Davenport v. State \[Tex. Cr. App.\] 107 SWV 853; Holland v.

### 184 INDICMENT AND PROSECTION SS 17F. 12 Cur. Law.

bill of exceptions or statement of facts, only error appearing on the face of the record will be considered \[13\] and if no error thus appears, judgment will be affirmed.14 Matters not shown by the record \[18\] or bill of exceptions \[16\] cannot be considered. It will not be assumed that a bill of exceptions contains all the evidence unless there is a recital to that effect.17 A bill of exceptions should be specific \[18\] and complete in itself.18

Footnote 17: the clerk, after the term, without an order of the court.20 Proper practice is for court to correct the minutes upon notice and motion.21 After such correction either party may file a copy of a record as finally corrected, or a copy of the corrected portion, as an addition to the record.22 Where a bill of exceptions is returned by the judge for corrections, it must be again presented within a reasonable time or the exceptions will be considered waived.23 Judgment of the trial court substituting papers, after loss of originals, cannot be attacked by affidavits,24 through error in copying substituted papers into the record may be shown.25 The court which is to hear a cause may order substitution of a lost record.26 Such order being made upon notice, a motion to strike the substituted record as incorrect will not be entertained.27 Amendments or corrections may be made in the appellate court 28 by complying with statutory requirements,20 and the appellate court may of its own motion order a defective record to be corrected.30

( SS 17) \_G. Practice and procedure in reviewing court.\_See 10 C. L. 228--The record will not be returned to the trial court to allow it to pass upon a motion for new trial for newly-discovered evidence where that court would be without power to entertain the motion owing to lapse of time,31 or where the alleged new evidence does not warrant granting of a new trial.32 Appellant need not, in Texas, be notified of the day on which the appeal will be submitted.33 In Georgia, a plaintiff in error has no unqualified right to withdraw his writ of error after argument or submission.34 Whether such withdrawal should be permitted is a question addressed to the sound discretion of the court.35 Jurisdiction to allow withdrawal remains in the court of appeals, though that court has certified questions in the case to the supreme court, but in passing on the question, what has taken place in the supreme court will be duly considered.36

20, 21. Mann v. Com., 32 Ky. L. R. 449, 105 SW 1182.

22. Appeal continued for this to be done where clerk, without authority, corrected and transmitted corrected record. Mann v. Com., 32 Ky. L. R. 449, 105 SW 1182.

01. Forty days unreasonable time. Clay v. State \[Ga. App\] 68 SE 1028.

24, 25. Davis v. State, 52 Tex. Cr. App. 546, 107 SW 828.

26. Transcript having been destroyed before transfer of course by supreme court to court of appeal, latter had power to make order substituting record, under act June 16, 1906. People v. Garnett \[Cal. App.\] 98 P 247.

01. Court of appeals having made order of substitution of transcript, after due notice to appellant, would not thereafter entertain 479.

appellant's motion to strike substituted record on ground that substituted copy was incorrect. People v. Garnett \[Cal. App.\] 98 P 247.

28. When original bill of exceptions was signed by judge below, by order of supreme court, after time allowed by law, owing to special circumstances, plaintiff in error was allowed to take steps to have certified transcript on file in supreme court amended to correspond with duty authenticated record below. Montgomery v. State \[Fa.\] 45 S 813.

01. Amendments to bill of exceptions allowable under City. Code 185, 8 & 857, are such as contain matters which relate to imperfections or omissions of necessary and proper allegations which can be supplied from the transcript of the record. Summer-Min v. State, 130 Ga. 791, 61 SE 849. Though
    Assignments, briefs, etc.See 10 C. L. 229.--Questions raised in the trial court, or exceptions there taken, will not be considered by an appellate court unless assigned as error 57 and discussed in the brief 38 or otherwise argued.39 Assignments of error must be specific 40 and not multifarious,41 and should be complete in themselves 42 or make specific references to portions of the record which must be examined.43 It should appear that the matter was fairly presented in the lower court,44 and the reasons for the alleged error should be pointed out.45 The statement of facts in the v. State \[Ga. App.\] 61 SE 842. Court of appeals certified questions to supreme court and thereafter plaintiff in error applied to court of appeals for permission to withdraw his writ of error, and the court of appeals then certified to supreme court question whether such withdrawal should be allowed. Supreme court sent back record and certified questions to court of appeals, and directed in to decide question whether withdrawal of writ of error should be allowed. In case of refusal to allow withdrawal, certified questions and record could be resubmitted: if withdrawal permitted. no such return would be necessary. McNelis v. State, 130 Ga. 748, 61 SE 840.

01. Execptions to portions of the trial court's charges to the jury will not be considered where error is not assigned upon them. Pfrefer v. U. S., 31 AApp. D. C. 109. Errors not assigned will not be considered by the United States supreme court on writ of error. Paraiso v. U. S., 207 U. S., 58, 52 Law. Ed. 249. Objection that judge, by questions to witnesses, intimated opinions in disparagement of witnesses or raised by assignment that verdict is contrary to law and evidence. Smith v. State, 3 Ga. App. 508, 60 SE 274.

01. Execptions to jurors waived when not relied on in brief. State v. Banner \[N. C.\] 63 SE 84. Question not argued in brief. Waved. Ross v. State, 16 Vy., 285, 94 P 217. Exceptions taken at trial but not relied on in brief are taken as abandoned. State v. Freeman, 146 N. C., 615, 60 SE 986. Assignment not mentioned in brief considered waived. State v. Doyle \[W. Va.\] 62 SE 453. Points made in record but not referred to briefs will be considered as waived. Jones v. State, 130 Ga. 274, 60 SE 840. Demurrers held abandoned when not referred to in brief or argument on appeal. Dick v. State, 107 Md. 11, 68 A 286. Where an assignment is based on denal of motion for new trial, and none of the grounds of the motion are argued, defendant simply stating in his brief that motion should have been granted, the assignment will be considered as abandoned. McCall v. State \[Fla.\] 46 S 321. Where brief contains bare statement that ruling complained of is erroneous, and there is no discussion or citation of authorities, the assignment will be treated as waived unless the error is so glaring and patent that no argument is needed to demonstrate it. Id.

01. Assignments not argued, abandoned. Pugh v. State \[Fla.\] 45 S 1028; Baker v. State \[Ark.\] 113 SW 205. Only grounds of objection to evidence argued in appellate court (and urged below) will be considered. Lewis v. State \[Fla.\] 45 S 998. Where one assignment of error is the overruling of a motion for new trial, only such grounds as are argued will be considered on appeal. Johnson v. State \[Fla.\] 46 S 174. Exception brief should confirm to the rules of the court.46 Motion to strike argument because not filed in time is properly denied where adverse party has replied.47

still at large."22 Dismissal will not be granted merely to allow appellant to obtain better bills of exception, when it appears from an unofficial report of the trial that no prejudicial error was committed."33 The merits of the cause will not be considered on a motion to dismiss."44 Motion to reinstate must be timely."55 An appeal, dismissed for want of a good recognizance, will be reinstated when it is made to appear by proper evidence, accompanied by the clerk's certificate, that the cognizance was correctly taken in the trial court, but incorrectly transcribed in the record."55

\_Rehearing.\_See 8 C. L. 262--A motion for rehearing will not be granted where substantial justice has been done in the original decision, even though all the reasoning in the opinion is not approved."71 A petition for hearing need not be considered where defendant has been pardoned."8 Questions not before raised will not be considered on a rehearing."80 Whether judgment may be reviewed on writ of error cannot be determined upon a petition for rehearing after the dismissal of an appeal."80

(SS 17) H. \_Scope of review.\_See 10 C. L. 230--The appellate court is not required to consider matters not properly saved for review "1" or not presented by the record "71 in the manner required by law or rule of court,"72 but may consider such matters in the interests of justice."44 Only those assignments of error, consideration of which

62. Appeal dismissed where it appeared defendant had broken jail and was still at large. State v. Moses \[N. C.\] 63 SE 68. The appeal will be dismissed when it appears that the prisoner has broken jail and escaped, and is beyond the court's jurisdiction when his case is called. State v. Keebler, 145 N. C. 560, 59 SE 872. Appeal dismissed where, pending same, appellant escaped from jail and remained at large and had not entered into recogilance. Jackson v. State \[Tex. Cr. App.\] 109 SV 149. Where defendant escapes from jail, pending the appeal and does not voluntarily return, the appeal will be dismissed. McCullough v. State \[Tex. Cr. App.\] 108 SV 1171. Question of con-Medition to dismiss denied where accused had escaped and was reequired and permitted to give bond; lower court, by permitting him to give appeal bond, judicially reog-nized that he was in custody and entitled to prosecute an appeal. Bush v. State, 53 Tex. Cr. App. 213, 109 SV 184. Motion to dismiss appeal, on ground that apellant had escaped from jail, denied where he was retaken and made a showing that his escape was for the majorth be had. People v. Hopkins, sole purpose of procuring bond. Leonard v. State, 53 Tex. Cr. App. 187, 109 SV 149.

01. State v. Zeimman T. N. Lawly 88 A. 468. Tusmilencev of the indictment to charge an offense, and want of jurisdiction of the subject-matter, involve the validity of the judgment and will not be considered on motion to dismiss. Patrick v. State \[Vyv.\] 96 P 527.

01. Where dismissal is for defect in the recognizance, motion to reinstate must be made within the time allowed by the rules (15 days). Fortenberry v. State \[Tex. Cr. App.\] 111 SV 740.

01. Williams v. State \[Tex. Cr. App.\] 19 Tex. Ct. Rep. 880, 20 Tex. Ct. Rep. 517, 105 SV 1024.

01. Roper v. U. S. \[Ok\]. Cr. App.\] 97 P 1022.

01. Former opinion unofficially published in 95 Pac, 811, withheld from official publication. State v. Luper \[Or.\] 96 P 1063.

01. Errors in charge will not be considered when presented for first time on motion for rehearing. Wilson v. State, 52 Tex. Cr. App. 173, 20 Tex. Ct. Rep. 134, 105 SV 1026.

Question not raised or argued in brief can-not be raised for first time on petition for rehearing. Ross v. State, 16 Wyq. 285, 94 P 217.

70. Quaere, whether writ of error lies in Nevada? State v. Preston \[Nev.\] 97 P 388.

01. See ante, $ 14.

01. See ante, $ 17F. Constitutionality of a statute will not be considered when it is not raised by the record proper but only by an agreed statement of facts. Ex parte Thompson \[Ark.\] 109 SWV 1171. Question of con-Medition to dismiss denied where accused of contactable veragons not considered because not presented by the record. McInlin-Hir to give appeal bond, judicially reog-nized that he was in custody and entitled to prosecute an appeal. Bush v. State, 53 Tex. Cr. App. 213, 109 SV 184. Motion to dismiss appeal, on ground that apellant had escaped from jail, denied where he was retaken and made a showing that his escape was for the majorth be had. People v. Hopkins, sole purpose of procuring bond. Leonard v. State, 53 Tex. Cr. App. 187, 109 SV 149.

01. State v. Zeimman T. N. Lawly 88 A. 468. Tusmilencev of the indictment to the charge an offense, and want of jurisdiction of the subject-matter, involve the validity of the judgment and will not be considered on motion to dismiss. Patrick v.

is necessary to a decision, will be reviewed." Though moot questions will not be considered, a cause involving personal rights will be reviewed though the decision can have no other practical result."

Every presumption is in favor of the regularity of the proceedings prior to "I and during the trial," and all fair intendments consistent with the record are to be indulged in favor of the verdict," and the rulings of the trial court." Thus, on a silent record or on one which does not disclose all that transpired in the trial court, it is presumed jurors were qualified " that jury was properly impanelled," that in-

which prosecution was based was unconsti-

toney. State v. Ralston \[Iowa\] 116 N NVU 1058. Where abstract showed demurrer and overturning thereof, and that defendant was dos not appear that court made a ruling on it. State v. Davis, 121 La. 623, 45 & 675. Where assignment that evidence does not support verdict is overrule but cause is remanded for errors of law at trial, evidence in absence of any showing, that court folence will not be discussed, Slater v. U. S. \[Okl.\] Cr. App.\] 98 P 110. Where one court warrants sentence imposed, assignments of error affecting only other counts need not be considered. Cook v. U. S. \[C. C. A.\] 159 F 70. Edwards v. State \[Fla.\] 45 S 21. Where 70. Where, on appeal from sentence of fine and removal (of sheirlf) from office, the court found the sentence invalid as to the verdict. Rather, and the structions were proper and adequate,83 and that they were followed by the jury,84 that jurors conducted themselves properly,85 that sentence was proper,86 and that settlement of bill of exceptions was proper and after due notice given.87 Where record shows presence of accused at any stage of the trial, his presence throughout will be presumed in the absence of any showing to the contrary.88 Where the same name appears in different parts of the record, it will, in the absence of any dispute as to identity, be presumed to refer to the same person in each instance.89

\_Law of the case.\_See 10 C. L. 233--A decision on a former review becomes the law of the case,90 where the facts are the same.91

\_Rulings on matters within the discretion of the trial court,\_See 10 C. L. 233 such as rulings on application for bail,92 rulings on qualifications of jurors challenged for cause,93 rulings on motion for withdrawal of plea,94 for change of venue,95 for con-

stature" and nothing in bill of exceptions \[571; State v. Symens \[Iowa\] 115 NW 878.\] negatively correctness of recital and neo challenge to array appeared, there could be no reversal on ground that jury was not properly impaneled. State v. Tromasi \[N. J. Err. & App.\] 69 A 204. Overruling of challenge for cause presumed proper, evidence heard not being in record. State v. Howard, 120 La. 311, 45 S 260. Cannot be presumed that accused exhausted all perempory challenges, no showing being made, complaint being error in disallowing challenge for bias. People v. Maughs \[Cal. App.\] 86 P 407. 83. Charge is to be construed as a whole. People v. Besoldi \[Cal.\] 97 P 871; State v. Doherty \[Or.\] 98 P 152. Charges should receive fair and reasonable construction and should be tested with reference to language used as a whole and in its proper connection. Hooton v. State, 53 Tex. Cr. App. 6, 108 SVW 651. Instruction presumed correct, not appearing in record. Stamper v. Com., 33 Ky. L. R. 580, 110 SVW 389. Charge presumed correct in absence of facts. White v. State, 52 Tex. Cr. App. 193, 20 Tex. Cr. Rep. 852, 106 SWW 1167. Omissions in charge will not be presumed erroneous in absence of bills of exception or statement of facts. Wilson v. State, 52 Tex. Cr. App. 173, 20 Tex. Ct. Rep. 134, 105 SVW 1026. Burden on accused, on appeal, to show alleged error in instruction and prejudice therefrom. People v. Cain \[Cal. App.\] 92 P 1037. Presumed that instruction was refused because mapplicable to evidence, there being no showing by record or statement of judge that evidence required it. State v. Haywood, 121 La. 862, 46 S 899. In absence of evidence, it will be presumed that instructions refused by court were not applicable to the evidence. People v. Simmons \[Cal. App.\] 95 P 48. Presumption is that 'instruction not shown in record was correct and sufficient'. People v. Russo \[Cal. App.\] 97 P 700. Evidence not being In record, presumption was that it warranted instructions given by court. State v. Pressler, 16 Vwo. 214, 92 P 806. In absence of evidence, instructions will be presumed to have been applicable thereto. State v. Connors, 37 Mont. 15, 94 P 189. Presumed that court told jurors that if a juror knew anything relative to the case he should discloses it in open court and not to the jury. State v. Lawin \[V. Va.\] 60 SE 888.

84. Presumed that jury followed law as given them by court. Schultz v. State, 135 Vis. 644, 15 Det. Leg. N, 358, 116 NWW 259,
    titnuance,"" for bill of particulars," rulings on competency of witnesses," and on motions for new trial," are not ordinarily reviewable, in the absence of abuse or mani-fest error. The sentence will not be disturbed, if authorized by law.1

_On questions of fact_ See 10 C. L. 284 the finding of the trial court is conclusive, unless manifestly erroneous.2 In like manner, the verdict of the jury will be sus-

$4. Prisoner cannot object to court's excusing a juror. State v. Peterson \[N. C.\] 63 SE 87.

$9. Exercise of discretion in permitting or assigned and verdict was supported by evl-refusing to allow withdrawal of plea of guilty is reviewable for abuse. Pope v. State \[Fa.\] 67 S 487.

$8. Application for change of venue addressed to discretion. Johnson v. State \[Okl. Cr. Appl.\] 87 P 1059. Application for change of venue on ground of local prejudice is addressed largely to court's discretion, and its finding of fact will not be disturbed unless manifest error occurred. State v. Vickers, 209 Mo. 12, 106 SWV 99.

$9. Granting or refusal of continuance dis-retionary. State v. Horn, 209 Mo. 452, 108 SWV 8.

$9. Refusal of continuance not reviewable, no prejudice being shown and grounds of motion not appearing. Gibson v. State, 53 Tex. Cr. App. 349, 110 SWV 41.

$9. Requiring of blll of particulars and proper compliance therewith. State v. Sea-

$3. Cap. 532, 60 SE 284. The discretion of board Air Line R. Co. \[N. C.\] 62 SE 188.

$9. Ruling of court on competency of child as witness not reviewable. People v. Greg-
tained if supported by any evidence,3 or if the evidence is conflicting,4 or if its suffil-

v. State, 85'Ark. 64, 107 SWP 182. Supreme court will not weigh evidence submitted to v. Barton \[Mdo.\] 113 SWV 1111. Refusal court on motion for new trial. State v. Baker \[Kan.\] 97 P 785. Discretion of trial cure is no material testimony tending reasonably to establish it. State v. Hampton,ity of evidence submitted on hearing of motion for new trial is not reviewable. Four-

aker v. State \[Ga. App.\] 62 SE 116. Denial of motion for new trial on ground of Insur-

c. 48, 59 SE 867. It is only when there is: ficiency of evidence not reviewable. Mason v. State \[Ind.\] 85 NE 776. Overvuling of motion for new trial not disturbed where evidence in support thereof was conflicting (ground was disqualification of juror by ex-

the evidence. Eacock v. State, 169 Ind. 488,

presasion of opinion. State v. Smith \[Mdo.\] 82 NE 1039. Verdict not disturbed where evidence was sufficient if believed by jury.

to set aside verdict for insufficiency of evidence. Github \[Vwash.\] 96 P 512. When

dence not reviewable. State v. Arnold, 146

there is evidence to sustain verdict, appeal-

N. C. 602, 60 SE 64. Great weight is to be

giveton action of trial court in granting or re-

asde, no question of law being involved.

fusing a motion to set aside verdict, espe-

People v. Caulfield \[Cal. App.\] 95 P 666.

cially in capital case. State v. Vwasnelevsky

Verdict based on circumstantial evidence

\[Conn.\] 70 A 62. Motion for new trial on

not disturbed. People v. Morris \[Cal. App.\] 93 P 1132. In a criminal case where the

by an expression of opinion is addressed to

weight and sufficiency of the evidence is

contr's discretion. Commonwealth v. Gar-

troub that question, a conviction should

ritto \[Pa.\] 71 A 2.

not stand unless the evidence is such, if

S. Verdict not disturbed if supported by

credible, that a jury may reasonably convictione. Nelson v. State \[Ga. App.\] 60 SE

clude defendant's guilt beyond a reasonable

1072; Mathews v. State \[Ga. App.\] 61 SE

292; Brown v. State, 130 GA. 623, 61 SE 477;

a new trial granted unless it is so manifestly

Strickland v. State, 130 GA. 740, 61 SE 720; Thorn-

impeach the integrity, motive or intelli-

iton v. State \[Ga. App.\] 61 SE 736; Patterson

gence of the jury so that in justice it ought

Y. State \[Ga. App.\] 61 SE 881; Boyer v. State

\[Ga. App.\] 62 SE 95; Robereon v. State \[Ga. App.\] 62 SE 95; Robereon v. State \[Ga. App.\] 62 SE 539; Craig v. State \[Ind.\] 86

295. Verdict sustained evidence and approved by trial judge will

438; Tyler v. State \[Tex. Cr. App.\] 106 SW

863; Fox v. State, 65 Tax. Cr. App.\] 150, 109

SWP 370; Curlee v. State, 53 Tex. Cr. App.\] 985, 110 SWV 66; Howard v. State, 53 Tex. Cr. App.

App. 378, 111 SWV 1038; Olds v. State \[Tex. Cr. App.\] 113 SWV 272. If supported by sub-

stantial evidence. State v. Hamlett, 212 Mo.

80, 110 SWV 1082; State v. Sharpless, 212 Mo.

176, 111 SWV 69; State v. Scott \[Mdo.\] 113 SWV 1046b. Verdict will not be disturbed if sup-

'ported by any evidence. People v. Kauffman,

\[152 Cal. 381, 92 P 861; People v. Oliver \[Cal. App.\] 95 P 172; Jarbo v. Comm., 23 FX. L. R.

'755, 107 SWP 227. Only question on appeal is

whether there is any evidence tending to

show emult. Sims v. Com., 32 K. L. R. 443,

106 SE 214; Martin v. Com., 32 Ky. L. R. 657, 106 SWP 863; Begley v. Com., 32 Ky. L. R. 850, 107 SWP 243; Spencer v. Com., 32 Ky. L. R. 850, 107 SWP 342; Payne v. Com., 33 Ky. L. R. 829, 110 SWP 311; Foster v. Com., 33 Ky. L. R. 975, 112 SWP 563; Ehrlick v. Com ciency cannot be determined without passing upon the credibility of the witnesses \[5\] or the weight of the evidence,\[9\] appellate courts being generally without power to review questions of fact; \[7\] but a verdict will be set aside as contrary to law if there is not evidence to support it,\[8\] or if it appears that the jury arbitrarily disregarded evidence which should have been considered.\[9\] On a review of the evidence, only that received on the trial will be considered.\[10\] In New York the unanimous affirmance of a judgment of conviction by the appellate division precludes consideration of the sufficiency of evidence by the court of appeals.\[11\]

**NVW 290.** Whers evidence is conflicting, ver- to support some material element of the of-dict will not be disturbed if supported by refugee charged. Williams v. State \[Ind.\] $5 evidence. Van Schack v. U. S. \[C. C. A.\] $NE 113.\*\* Judgment of circuit court affirm-159 F $47. Controverted questions of fact **ing** that of common pleas, after weighing are not reviewable. McElroy v. State, $5 the evidence, held final and conclusive on the facts. Lemmon v. State, $7 Ohio St. **427**, $8 NE 608.

**7.** Findings of facts below are conclusive **? Gibson v. State, $5 Tex. Cr. App. 348**, $10 SW SW 41.\*\* Verdiates on conflicting evidence not dis-turbed unless palably contrary to decided not rewewable. Soell v. State \[Ga. App.\] $1 weight of evidence. People v. Nylin, $26 Ill. $19, $6 NE 156.\*\* Verdict based on conflicting **?** 186, where entire record is returned with evidence will not be disturbed if substan- tially supported. State v. Baldwin \[Mo.\] $26 to review the evidence adduced at the **?**. It3 SWV 1123.\*\* Finding of jury on pleas of former jeopardy, based on conflicting evidence: **?**. Thera v. State, $5 face. Cliv. App. 422, $10 SW 837.

**5.** Jury are judges of credibility of witnesses and weight of testimony. Thomas that witness was not an accomplice and is v. State, $5 Ark. 157, $108 SW 224; Dowell v. Com., $3 E Ky., L. R. 1344, 108 SWV 847; State v. Flavorson, $103 Min. 265, $11 NW 957.\*\* Jury

being sole judges of credibility of witnesses, verdict will not be disturbed because prosec- euting witness was impenched. Henderson v. State, $52 Tex. Cr. App. 514, $107 SW 820.\*\* Court

will not interfere in prosecution in police court for betting on horse race, credibility and weight of evidence being involved. Pheffer v. U. S., $11 App. D. C. 109. Conviction based on conflicting evidence not dis-turbed as contrary to evidence, weight thereof, and credibility of witnesses being for jury and trial court, which denied new trial. People v. Calin \[Cal. App.\] $2 P 1037. Act Feb. 15, $187, requiring supreme court to review law and evidence in first degree murder cases, does not require court to pass on credibility of witnesses and weight of evidence, but only to investigate whether there is sufficient evidence, if believed, to be required, to be required amount of evidence, being based on suspicion only. Thompson v. State \[Ga. App.\] $2 SE 571.

**6.** Weight of evidence, and whether it establishes facts claimed by state is for jury. State v. Washeelsky \[Conn.\] $70 A 62; State v. McDowell \[Mo.\] $13 SWV 113; Malone v. State \[Tex. Cr. App.\] $13 SWV 530.\*\* Appellate court cannot weigh the evidence. Cheek v. State \[Ind.\] $5 NE 779; State v. Long, $209 Mo. $66, $108 SW 35; Cordes v. State \[Tex. Cr. App.\] $12 SW 943. Determination of jury as to sufficiency of evidence and degree of crime not reviewable where based solely on facts. People v. Fosseetti \[Cal. App.\] $5 P Henry, $11 NYS 1005. Evidence heard on $84. Appellate court does not pass on question of preponderance of evidence. City of $24 Italian v. Fannin, $128 Mo. App. 324, $107 SWV 479. An appellate court will not weigh conflicting evidence, or attempt to deter- \*\*?\*\*me its preponderance, and will reverse only in case of a failure or want of evidence
(SS 17) \_I. Decision and judgment of the reviewing court.\_See 10 C. L. 238--Affirmance results where the members of the appellate court are equally divided in opinion \[12\] and, in some jurisdictions, where appellant fails to appear,\[13\] or fails to present a proper record.\[14\] Where no final judgment appears, the cause may be remanded.\[15\] Where the error results only in a mistrial, the cause will be remanded for new trial.\[16\] If the proceedings, were otherwise valid, an erroneous or illegal sentence does not necessitate a new trial; in such case the cause will be remanded with instructions to impose proper sentence.\[17\] A judgment of conviction on several counts should not be affirmed in part and reversed in part but should be reversed or affirmed as a whole;\[18\] but judgment may be reversed in part and affirmed in part when the legal part is severable from the illegal part.\[19\] Judgment may be affirmed as to one defendant and reversed as to a codefendant.\[20\] Evidence being admitted on two charges, and case being submitted thereon, reversal must follow where part of statute on which one charge was based is held inavlid.\[21\] Reversal, with instructions to dismiss, follows where indictment is fatally defective and evidence shows no offense.\[22\] Defendant will be ordered discharged where further prosecution would be barred.\[23\] The judgment on appeal must conform to the law in force at the time.\[24\] The su preme court of the Philippine Islands may reverse the judgment of the lower court in a criminal case on defendant's appeal and convict him on the same facts of a different offense calling for an increased penalty,\[25\] and defendant is not thereby placed twice in jeopardy for the same offense.\[26\] The decision may be controlled by practical considerations, such as the purpose of obtaining an authoritative decision by a federal court on a federal question.\[27\]

(SS 17) \_J. Proceedings after reversal and remand.\[28\]\_See 10 C. L. 287.--It is the duty of the lower court, on receiving the mandate of the appellate court affirming the judgment complained of to see that :- is carried into execution,\[28\] unless leave is granted the lower court to exercise its discretion in the matter of granting a new trial on the ground of newly-discovered evidence.\[29\] When a judgment is affirmed by the supreme court, all questions raised by assignments of error and all questions that might have been so raised are to be regarded as finally adjudicated,\[30\] and no lower court or judge thereof has jurisdiction to declare the judgment void or to grant a writ of habeas corpus to determine the validity of the imprisonment thereunder.\[31\] Where a trial is had upon an indictment charging murder in the first degree, a verdict for manslaughter is an acquittal of higher degrees of homicide,\[32\] and on a new trial, obtained by defendant, he cannot be again tried for or convicted of any degree higher than manslaughter.\[33\] In such cases the court should at the outset of the new trial instruct the jury that they must confine their inquiries to the offense of manslaughter and to lower degrees of crime included therein.\[34\] Evidence tending to establish elements of the higher degrees of homicide, and not tending to establish the crime of manslaughter, should not be received,\[38\] and argument with reference to such matters should be excluded,\[30\] though it has been held that a conviction of manslaughter may be had on evidence showing murder.\[37\] Similarly, conviction of murder in the second degree is an acquittal of murder in the first degree and bars subsequent prosecution for that offense.\[30\]

- \[noitemsep,nolistsep\]

## 18. Summary

### 18. Summary

_Prosecutions for violations of municipal ordinances are sometimes considered civil in nature._\[49\]\_ _Prosecutions in city courts and before magistrates and justices and other inferior courts are regulated by ordinance, charter or statute, and procedure varies in different jurisdictions. In the notes are given decisions relating to the jurisdictions of such courts,_\[49\] _disqualifications of presiding officer,_\[41\] _the sufficiency of the accusation_ _\[42\] _and amendment thereof,_\[43\] _variance between accusation and proof,_\[44\] _right to jury trial and waiver thereof,_\[45\] _necessity of bond for costs,_\[46\] _power to continue causes,_\[47\] _perpetua-_\[30\]_. A proceeding against one charged with violation of a municipal ordinance is partly civil and partly criminal in nature. Character of proceeding and power of municipality discussed, validity of ordinance being issue. O'Haver v. Montgomery \[Tenn.\] 111 \_In proceeding for violation of fish and game act (Laws 1903, p. 534, $ 3), before a justice, it is not essential that a special note of the dagy, month and year of institution of action be endorsed on the complaint, or that name of person prosecuting or title of statute be endorsed on summons. Minard v. ishable by fine of "not less than $100," or 30 days imprisonment. Town of Central v. Madden \[S. C.\] 11 SE 1028. The legislature has power to authorise municipal courts to arrest and try offenders against municipal ordinances for offenses committed outside the county. Intoxicating liquor ordinances. Jurisdiction beyond county lines upheld Town of Gower v. Agee, 128 Mo. App. 427, 107 SVV 999. Accused were arrested on magistrate's warrant, but taken before circuit court, which alone had power to try them and require them to be put under bond to keep the peace. Held, accused could not complain. Lowe v. Com., 33 Ky. L. R. 1078, 112 SWV 647. Loc. Acts 1907, p. 329, creating inferior court and conferring on it original and exclusive jurisdiction of all miscellaneous remmitted in county, held valid. Ex parts O'Neal \[Ala.\] 45 S 712. Unless one accused of violating \_P_ev. St $ 4405, governing sale of drugs by registered pharmaceuists, waive a jury in writing, the magistrate has no authority to punish and can only bind prisoner over to the proper court. Sickles v. State, 7 Ohio N. P. (N. S.) 338. 41. Blas or prejudice on part of presiding justice of peace does not disability him; only kinship or pecuamary interest. Const $ 171; Code 1906, $ 2724. Evans v. State \[Sliss.\] 45 S 706. 42. In prosecutions in police court for violations of ordinances, no written information or indictment is required, and proceedings are not closely scrutinized as to form. Burrow v. Hot Springs, 85 Ark. 396, 108 SWV 823. A complaint charging a violation of an ordinance is not to be so strictly construed as an indictment. Only that degree of certainty is required which will inform defendant of what he is called upon to defend. City of Galtain v. Fannin, 128 Mo. App. 324, 107 SWV 479. Accusation in city court based on affdavi made before magistrate for purpose of procuving warrant for arrest of accused is sufficient compliance with act creating city court, requiring trial on "written accusation, setting forth plainly the offense charged, founded on the affdavi of the prosecutor." Griffin v. State, 3 Ga. App. 476, 60 SE 277. Claim of maximum fine in complaint in city court held surplus; tion of testimony, \[48\] power to find facts and necessity or propriety of such findings, \[49\] power to assess punishment, \[50\] and as to the form, \[51\] correction \[52\] and suspension \[58\] of sentence. In Wisconsin a commitment by a justice is proper where the sentence is imprisonment without a fine, and where sentence is imprisonment in default of payment of a fine, a commitment issued to carry such judgment into effect is not void, \[44\] though an execution against the body would be the appropriate mode of enforcing the judgment. \[58\] Upon conviction and sentence of imprisonment before a justice of the peace, in Minnesota, a commitment may be issued at any time while the judgment stands unexecuted, \[50\] and where an appeal is taken to the district court, but dismissed, the justice may proceed after the dismissal. \[57\]

_Review._ See 10 C. L. 238. \_Jurisdiction to review proceedings of inferior courts is statutory, \[58\] as are proceedings necessary to perfect an appeal. Holdings as to transmission \[59\] and amendment \[50\] of the transcript or record and sufficiency of appeal bond \[51\] are given in the notes. Payment of a fine by one prosecuted for violation of days after being arrested or taken into cus- \[51. Laws 1905, p. 574, c. 305, provides that today. Merriweather v. State \[Aia.\] 45 S 420. _Magistrate shall not fix limit of period of flight to jury trial in city court waived by_ imprisonment, but that a sentence fixing a failure to make timely demand. Harrison v. \[Aia.\] 48 S 980. _Jury trial in coun- \[51\] sentenced shall be entitled to benefits of act._ Commitment for "three years, unless sooner before first jury term after arrest, under \[Aia.\] 45 S 654. \_Jacobs, 57 Misc. 655, 109 NYS 1068. \_Same ruling under statute and rule of Gad- \[52\]. Where a justice of the peace has Im- \[53\] post an erroneous sentence, he should issue late. Stafford v. State \[Aia.\] 45 S 673. \_Same ruling under \[54\]. 46. _Under Kirby's Dig. $ 2476, accused need not give bond for costs in prosecution_ \[46\] S 140. _Magist_ _Same_ _Same_ _Same_ _Same_ _Same_ _Same_ _Same_ _Same_ _Same_ _Same_ _Same_ _Same_ _Same_ \_passed by police judge is not invalidated by provision that defendant may go upon his exceeding 60 days are within his discretion under Pen. Code, $ 1052. _Alleged abuse of_ \_Magistraction can be reviewed only on appeal from judgment, with proper record. In re \[Cai.\] 86 P 24. _Magistrates have_ \_power to continue causes for cause shown, in South Carolina, though no statute expressly confers the power. Power incidental to power to hear causes; also would probab- \[51\] by exist under provisions of Cr. Code 1902, $ 20. \_State v. Pope, 78 S. C. $7, 60 SE 234. \_S. Maycora having powers of magistrates, must take down testimony of witnesses in \[52\]. _Magist_ _Same_ an ordinance is not a bar to proceedings for review.62 On appeal from the judgment of an inferior court or magistrate, trial is commonly de novo.63 In such case, accused is entitled, in some jurisdictions, to be arranged in the appellate court.64 Usually pleadings may be amended in the reviewing court 65 or new pleadings filed therein.66 No presumptions are indulged in favor of the judgment below.67 Special findings of the trial court, not authorized by law, will not be considered.68 But when authorized, findings of facts, in a trial by a judge without a jury, will not be disturbed on appeal 69 unless the evidence is legally insufficient.70 If conviction is supported by competent evidence, a reversal need not result from the introductiton of incompetent evidence.71 Erroneous sentence in a police court may be corrected on appeal.72 In Kentucky where a defendant pleads guilty in a justice court, he may, on appeal, introduce evidence for the purpose of reducing the sentence without withdrawing the plea of guilty.73 Such plea may, however, be withdrawn at any time in the circuit court,74 and if the former plea of guilty be then offered in evidence, defendant may show that it was entered under duress and fear.75 In Mississippi on appeal from a mayor's court, verbal testimony of the mayor is incompetent to amend the transcript of the record.76 Such amendment must be by the book itself or by certified amended transcript from the book.77

In many jurisdictions, review is by certiorari. In the notes are given holdings as to the necessity and sufficiency of the bond required in such cases,76 sufficiency of

v. State, #2 Tex. Cr. App. 618, 108 SW 378.

EOM on appeal from justice to district court
the petition for certiorari," the office \*0 and sufficiency of the answer or return," the time of hearing thereon \*2 and notice of such hearing," the nature and office of the writ of certiorari and scope of review theron.\*4 Application for a writ of certiorari

1902, p. 105, as condition precedent to ap- 81. The evidence as specifically set forth pileation for certiorari from municipal court, is in effect payable to corporation when writ of certiorari le conclusive unless travrance. Anode payable to mayor and hie accessors in office. Such bond, otherwise good, is a sufficet compliance with statute. Williams v. Titoma, 3Ga, App. 445, 60 SE 113, A writ of certiorari without a legal bond is a nullity and must be dismissed. The filing of a prop- 81. The evidence as eet forth in the ear bond or an afflavit in forna paqueries is an infligenable prerequisite to the issue.

sinflient to support finding, only error as- 81. signed being that finding is not supported App.1 60 SE 1036. Certiorari bond, ln proceeding to review judgment of mayor of fore with judgment of superior court over- 81. Furthering certiorari, Id. Where transcript of pearance of defendant to abide final order, judgment or sentence of municipal court or 81. Furthering certiorari, Id. Where transcript of quarter court. McDonald v. Ludowel, 3Ga. App. 654, 60 SE 337. Such bond should be payable to municipality and be in an amount and with surety approved by officer giving judgment or clerk of the court. Id. Certiorari properly dismissed where bond was not conditioned as required by statute, and not approved. McDonald v. Ludowel, 3Ga. App. 654, 60 SE 337; Tooke v. Ogle- 81. Bond conditioned to pay eventual condemation money not a substitute for bond required by Acts 1502, p. 105, Simon v. Savannah \[Ga. App.\] 60 SE 1036.

78. Petition for certiorari to correct errors of criminal court of Atlanta is properly verified by afflavit in the former prescribed by Civil. Code 1895, SS 4638. Hood v. State \[Ga. App.\] 62 SE 570. The allegations of the petition for certiorari must be taken as prima facte true until the answer is filed. Green v. State \[Ga. App.\] 61 SE 234. It is unnecessary that a copy of the accausation upon which defendant is convicted be attached to his petition for certiorari, or that such copy be presented or identified by the trial court prior to the coming in of the answer to the writ. Id. Where the accausation is attached to the petition to support a claim of error in failing to sustain a demurrer to it, it need not be verified by the trial judge in advance of his answer. Id. When a petition purports to contain all the evidence, and it does not appear therefrom that the venue of the crime was proved, it is error to refuse to sanction the petition for certiorari, assigning error upon the ground that the verdict was contrary to the evidence and not supported thereby. Id. Error to refuse to sanction petition for certiorari properly verified where according to statement of evidence contained in petition, finding sought to be reviewed as unwarrant- 81. The evidence as eet offhting, only error as- 81. Furthering certiorari, Id. Solitor general does not represent state in quasi criminal proceedings in municipal courts in his district, and notice of sanction of certiorari directed to municipal corporation need not be served on him, and failure to make such service is not ground for dismissing certiorari or error to court of appeals. McDonald v. Ludowel, 3Ga. App. 654, 60 SE 337.

A petition for the writ of certiorari to re- 81. Our proof is not yet * 140 INFANTS SS 1. 12 Cur. Law. and prohibition, made before rendition of any judgment, is premature where the trial court has jurisdiction on the face of the record.\[85\]

Indorsing Papers; Infamous Crimes, see latest topical index.

## 11. Status and Disabilities in General, 140.

- 1.

clusive, the state through its courts "2" also having the right to exercise control over infants," and to deprive the parents or others of their custody and control where the same has been relinquished or forfeited," or the circumstances af the case would justify the court acting against their right for the welfare of the child, which in such cases is a primary consideration."

The custody of an infant may usually be determined only by the court of the infant's domicile," in a proper proceeding for that purpose." The determination of

way of alimony was invested in house, and

wife had become sick and unable to support

or eight years of its life and permitted some" children. Id. Parents cannot by contract

one else to feed, cothe, and care for it,

tween themselves, nor can court by any or

der it may make in divorce suit, irrevocably

dissertation on subject of court sandering

determine amount of money father shall con-

tribe for support and education of children who, by reason of her necessitous

dren, so as to deprive that court of power

circumstances at time, places her little son
upon proper showing and notice to alter

in care and custody of its paternal grand-

sald decree in interests of justice and for

mother and leaves him with her for sev-

benefit of children. Connett v. Connent

\[Neb.\] 116 NWW 658. Decree changed so as

to require father to contribute $30 instead of

better fortune, State v. Steel, 121 La. 215, 46

$10 per month. Id.

$2. Supreme court under its equity power

play promise on her part never to retake him.

may in proper case, having regard for welfare of infant, take its custody from one le-

gally entitled thereto and give it to another.

People v. Beaudoin, 110 NYS 692. Circuit

court held to have jurisdiction to award

custody of child to mother suing for separate maintenance, where husband has refused

to further support him. Low v. Low, 133

III. App. 613.

93. Juvenile Court Bill, Laws 1905, ch. 59,

p. 305, does not repeal Laws 1897, ch. 36, p. 241, providing for guardianship in certain

cases. In re Quinette \[Neb.\] 115 NWW 546.

94. Sloan v. Jones, 180 Ga. 836, 62 SE 21.

Interests of child brought up by aunt without assistance or aid of father, who only in-

frequency visited him, held to require his

custody to remain in aunt. Smidt v. Benenga

\[Iowa\] 418 NWW 439. Matter of gift of child

was properly alleged and considered with

other facts arriving at conclusions as to

where custody of child should be placed. Id.

While parent has no property interest in child which is subject of being given away,

and cannot relieve himself of his parental

b obligations, and while standing alone on

attempted gift of child would be invalid, still

fact of gift having been made would place

parent in attitude of invoking powers of

court of equity in seeking to regain possession of child and give equity jurisdiction of

all facts controlling case. Peese v. Gellerman \[Tex. Civ. App.\] 110 SWW 136. Evidence

held insufficient to warrant taking girl of

eight from custody and control of aunt, with

whom she had been since birth and giving

her to father who had neglected her for

eight years until he married woman of ques-

tionable character. Id. When father sues for

custody of child, and it appears that the volu-

untarily parted with such custody, contribute

uted little or nothing to its support, and

allowed someone else to do what he should have

done, any presumption that might arise as

to his peculiar fitness to rear child is destroyed

ed and he will be required to establish his

superior fitness before he can be awarded

child's custody. Id. There is no presumption that promptings of parental affection

will cause father to tenderly care for his

child in future, when he has failed to so act

in past. Id. If man has voluurlarily sur-

in the question of custody rests largely in the discretion of the court," but such discretion should be governed by the rules of law, and be exercised in favor of the party having the legal right," unless, as before indicated, the evidence shows that the interest and welfare of the child justify awarding the custody to another.1 In this connection, the relative financial ability of the respective parties, seeking custody of the infant2 and religious belief,3 are usually proper to be considered, though not controlling. General fitness and qualifications to act as custodians of an infant,4 and the extreme youth of the child,5 are usually controlling considerations. No agreeing-ment between counsel can bind the minor so as to permit the chancellor to decide the question of a child's custody partially from evidence produced in court and partially on an investigation which he caused others to make out of court.6 The mere issuance of letters of guardianship is not an adjudication as to the right of custody where the guardianship is of the person, and jurisdiction of the person of the infant or his guardian was not obtained.7

In New York the state in its protection of the rights of infants can prohibit the use of an infant's photograph or portrait, except under such conditions as will prevent an abuse of its use.8

Where a minor plaintiff has been emancipated and permitted by his parents to

88. Sloan v. Jones, 130 Ga. 836, 62 SE 21.

Which home is best for child is question of

of his child because mother had early tmfact to be determined primarily by trial

parted protestant faith to it and father court. Peese v. Gellerman \[Tex. Civ. App.\]

110 SWV 196. Court held not to have abused

130 Ga. 836, 62 SE 21.

discretion in refusing to remove children in

4. Alligation that new wife of father was

mother's custody to that of father, where

not woman of good reputation, and that,

shown that mother, due to sickness, was

though she was not married prior to her

able to support them, but where father was

merrigee with him, she had given birth to

ordered to contribute to such support. Shattery \[Iowa\] 116 NWV 608. Where

child, and that she was not suitable person

to care for and advise a girl, held proper

study adopted by keeper of brothel has been

being subserved by giving custody to father

awarded on habess corpus to an Incopropaced

whose home was presided over by such

rated benevolent society, and no exception is

wife. Peese v. Gellerman \[Tex. Civ. App.\]

taken to such judgment, and foster mother,

110 SWV 196. Evidence held to sustain find-

within two months thereafter, sues out writ

ing that wife was not addicted to use of mar

of habess corpus on ground that since

cortes and alcoholic liquors so as to be un-

mer proceedings she had abandoned her immodal life and is proper person to be

Http://www.idl.gov/

App. Div. 421, 108 NYS 864.

trusted with care of infant, judgment denying

5. In case of child of less than two, whose

relief sought will not be changed in absence

of abuse of discretion. Vandiver v. Augusta

Associated Charities, 130 Ga. 413, 60 SE 99.

99, 1. Sloan v. Jones, 130 Ga. 836, 62 SE

12. Where financial ability of parties was

about equal and mother lived near her

parents who were willing to and had in past take

en care of child, while husband wished to have

child cared for by his brother's family, held

proper not to make permanent award but

to give child to mother temporarily. Wallace \[Miss.\] 46 S 388. Court will

give mother custody, though grandparents

have held it for some time, where she is fit

person and amply able to care for child

under eight years old, even though grandpar

ends are better situated financially. People

v. Beaudoin, 110 NYS 592. Mere difference

in worldly circumstances is not cause for

disturbing custody of child, except perhaps

in extreme cases of poverty. Sloan v. Jones,

130 Ga. 836, 62 SE 21. Fact grandmother

was more wealthy than father is insufficient

to deprive him of child's custody, where he

is otherwise suitable. Id.

12 Cur. Law.

work for himself, he may recover for loss of time or wages during his minority as a result of injuries caused by defendant."

SS 3. \_Status for the protection of infants.\_See 10 C. L. 241.--The presence of minors in certain specified places, usually deemed injurious to health or morals,10 except under certain conditions 11 is frequently prohibited by statute. Child labor laws,11 founded on the supervisory control of the state over minors,18 and passed by the legislature in exercise of the police power,14 are usually upheld as constitutional.16 Such statutes are usually penal,16 and should be strictly construed.17 The term person, however, may include a corporation,18 and the penalty may also be incurred not only by the owner of the establishment in which a child is illegally employed 19 but also

9. Donk Bros. Coal & Coke Co. v. Retzloff, 133 Ill. App. 277. Evidence held to show emancipation, Id.

1. Evidence held insufficient to sustain conviction, under Pen. Code, $ 299, punishing person permitting children to remain in places of entertainment injurious to health and morals, etc., unless accompanied by parent or guardian, where there was no evidence that place was injurious to health and mor- altions, is police regulation for public as, nothing but moving pictures being ex- hlighted, nor was there any evidence that children were unaccompanied by guardian.

People v. Samwick, 111 NYS 11. Laws 1908, c. 185, $ 2, (P. L. 1908, p. 375), making it misdemeaner to admit children below certain age to certain places of amusement but.

A. C. C.

any person actually entering into the contract by which such child is employed, \[20\] without regard to any illegal intent, \[21\] but an employee of a corporation, superior in authority to another, is not individually liable for such employment in the interest of, and for the beneficial purposes of, the corporation, when such employment is made by the subordinate without the knowledge or consent of the person charged with the crime and contrary to his express direction. \[22\] The remedies provided in such acts do not necessarily supersede the right of action for damages in a civil proceeding. \[23\] One who deliberately falsifies, regarding his age, to get employment is not estopped from recovering a claim for injuries. \[24\] Where the act is not intended to advance education but to promote the health, safety and general welfare of minors, the fact that a minor also attends school does not excuse his employment. \[25\] The practice under such acts is usually regulated by statute. \[26\] _Crimes against children._ See 10 C. L. \[41\] _Juvenile courts._ See 10 C. L. \[41\] \_-In some states the juvenile court is given jurisdiction only of charges of misdemeanor under the act, \[27\] in others the law covers the punishment of both misdemeanors and certain felonies, \[28\] while in still others, the provisions of the juvenile court acts are held not to contemplate the punishment of infractions of the criminal laws. \[29\] The juvenile court law of the District of Columbia, gives such court no power to punish the father of an illegitimate child for failing to support it. \[30\] Such statutes, so far as they provide for the punishment of children, are usually held not to be criminal or penal statutes. \[31\] The Idaho act, providing for the care of delinguent children, has been held constitutional by the courts of the state, \[32\] while the Florida law has been held constitutional as to certain

20, 21. People v. Taylor \[N. Y.\] 85 NE 759. provides that \[4\] It shall not be construed to 22. Defendant held not liable either as \[4\] repeal any portion of criminal law of state, principal or accessory. People v. Taylor \[N. Y.\] 85 NE 759. \[N. Y.\] 85 NE 759. \[N. Y.\] 85 NE 759. \[N. Y.\] 85 NE 759. \[N. Y.\] 85 NE 759. \[N. Y.\] 85 NE 759. \[N. Y.\] 85 NE 759. \[N. Y.\] 85 NE 760. \[N. Y.\] 85 NE 761. \[N. Y.\] 85 NE 762. \[N. Y.\] 85 NE 763. \[N. Y.\] 85 NE 764. \[N. Y.\] 85 NE 765. \[N. Y.\] 85 NE 766. \[N. Y.\] 85 NE 766. \[N. Y.\] 85 NE 767. \[N. Y.\] 85 NE 768. \[N. Y.\] 85 NE 769. \[N. Y.\] 85 NE 775. \[N. Y.\] 85 NE 761. \[N. Y.\] 85 NE 762. \[N. Y.\] 85 NE 763. \[N. Y.\] 85 NE 764. \[N. Y.\] 85 NE 765. \[N. Y.\] 85 NE 766. \[N. Y.\] 85 NE 767. \[N. Y.\] 85 NE 768. \[N. Y.\] 85 NE 769. \[N. Y.\] 85 NE 777. \[N. Y.\] 85 NE 767. \[N. Y.\] 85 NE 768. \[N. Y.\] 85 NE 769. \[N. Y.\] 85 NE 778. \[N. Y.\] 85 NE 779. \[N. Y.\] 85 NE 779. \[N. Y.\] 85 NE 780. \[N. Y.\] 85 NE 781. \[N. Y.\] 85 NE 782. \[N. Y.\] 85 NE 783. \[N. Y.\] 85 NE 784. \[N. Y.\] 85 NE 785. \[N. Y.\] 85 NE 786. \[N. Y.\] 85 NE 787. \[N. Y.\] 85 NE 788. \[N. Y.\] 85 NE 789. \[N. Y.\] 85 NE 781. \[N. Y.\] 85 NE 782. \[N. Y.\] 85 NE 783. \[N. Y.\] 85 NE 784. \[N. Y.\] 85 NE 785. \[N. Y.\] 85 NE 786. \[N. Y.\] 85 NE 787. \[N. Y.\] 85 NE 788. \[N. Y.\] 85 NE 789. \[ 12 Cur. Law. INFANTS SS 4.

of its provisions, \[**8**\] but unconstitutional as to others. \[**84**\] Under the Florida act a commitment on a finding not in conformity with the statute is invalid. \[**85**\] For all offenses against the district of Columbia and against the United States within the jurisdiction of the Juvenile court of the District of Columbia, the prosecution should be on information by the corporation counsel, and in the name of the District of Columbia or of the United States. \[**86**\]

**SS 4.**\_Property and conveyances.\_See 10 C. L. 242--Rights and liabilities respecting the minor's property as between guardian and ward, the effect of guardian buying at sale of infant's land, and the rights of an infant to recover property improperly disposed of by his guardian, are treated in another topic. \[**87**\]

and is not depriving either parent or child \[**12**\]. Id. Section 3 of act held to merely make of any constitutional or linalenable right.

ruling of probate court final on matters term-Id. It is not unconstitutional as depriving "rregularities or defects of form" or "tech-parent of custody of child without due process of law, and in violation of constituum-recentment of Rev. St. 1887, SS 421. Id.

election 13 of act providing for review only bate court in such matter is one in personam \[**14**\] and acts upon child alone. It is paternal unless he has appeared, and if he does apparsedure hand of state reaching out \[**87**\] and pareval order affecting or binding him is as parens patriate to take hold of chhd during minority for purposes of fostering, pre-tables and educating child, and this power, authority and duty is intended to be exercised only in cases where chld is without legal representative, and legal representing may appeal under Rev. St. 1887, SS 4831.

or where parent or guardian has become undable or neglects or refuses to control, manag, care for, educate, and protect child. Id.

Law not obscuous as depriving parent of natural right to care and custody of chld, since he may appear and present objections if he objects to state's action; is not bound by judgment, nor his rights precluded it he is not party to hearing and proceeding, may contest state's right to act in court and have hils own rights fully and completely adjudi-cated. Id. Such order or decree should ad-judge both that child is delimoment within \[**88**\]. Id.

Law unconstitutional in so far as it that he is either without care and protection \[**88**\]. Id.

or parent or guardian, or that parent or guardian, or that parent or guardian is neglecting and failing to discharge duties he owes to child, but such decrease simply establishes status and condition \[**88**\]. Id.

or child and existing necessity for granting \[**88**\]. Id.

, but unconstitutional as to others. \[**88**\]. Id.

under the Florida act a commitment on a finding not in conformity with the statute is invalid. \[**88**\]. For all offenses against the district of Columbia and against the United States within the jurisdiction of the Juvenile court of the District of Columbia, the prosecution should be on information by the corporation counsel, and in the name of the District of Columbia or of the United States. \[**88**\]

or of the United States. \[**88**\]
The conveyance of a minor is usually not absolutely void, but only voidable," and unless the grantor disaffirms within a reasonable time after attaining his majority \[39\] and proves his infancy at the time the conveyance was made,\[40\] the conveyance is binding upon him; but an infant conveying a contingent remainder need not disaffirm until after the death of the life tenant.\[41\] To constitute a ratification of a conveyance by an infant after reaching his majority, there must be some act which necessarily recognizes the existence and efficacy of the obligation.\[42\] A simple declaration acknowledging the title of the grantee being insufficient,\[43\] and while a new consideration is not usually requisite,\[44\] some states require the ratification to be by an instrument in writing.\[45\] The infant, may, by his conduct after attaining his majority, be prevented from availing himself of the statute under the doctrine of equitable estoppel,\[46\] or he may be estopped by his conduct at the time of the conveyance from setting up his infancy \[47\] though in the latter respect the contrary is the rule in many states.\[48\] In some states before a suit by an infant for the possession of land decided away by him during his minority may be brought, some previous act of disaffirmance must have been made.\[49\] In Arkansas a purchaser whose conveyance from an infant has been disaffirmed is entitled to and chargeable with certain set-offs.\[50\]

jorty. Phillips v. Hoskins, 33 Ky. L. R. 378, 108 SVW 283. Infant on arriving at age may avoid his decd in an action at law. Smith v. Ryan, 191 N. Y. 452, 84 NE 402.

39. Minor testifying that she signed deed conveying land to father without under-recover land conveyed during infancy, can-standing purport and effect of deced because she was told by her father to do so, and her brothers and sisters did likewise, that she received no part of consideration, but continued to live with father in joint possession with him, and she refused to affirm dead on first occasion offered her after disabilities were removed, held to have disaffirmed with-in reasonable time, though not until two years after disabilities were removed. Stone v. Wolfe \[Tex. Civ. App.\] 108 SVW 981. Mortgage by husband and wife after former has attained his majority operates as disaffirmance of deced previously given while husband was minor. Phillips v. Hoskins, 33 Ky. L. R. 378, 108 SVW 283.

01. Edgar v. Gertison \[Ky.\] 112 SVW 83L.

EWidence held to show alleged minor was twenty-one. Pace v. Cavwood, 33 Ky. L. R. 677, 110 SVW 414. Evidence held insufficient to show grantor was minor at time conveyance was made. Edgar v. Gertison \[Ky.\] 112 SVW 831.

41. Has no interest to protect until death of life tenant, and need not disaffirm within reasonable time after reaching majority. Steele v. Poe, 79 S. C. 407, 60 SE 951.

01. There must be after majority, with full knowledge of his right, acquinescence from which assent may be fairly inferred, adequate benefit enjoyed which has grown directly or indirectly out of contract, or some direct act or express consent. Steele v. Poe, 79 S. C. 407, 60 SE 951.

01. Steele v. Poe, 79 S. C. 407, 60 SE 951.

01. No new consideration is requisite to sustain validity of deced given by one after he has attained his majority to same grantee, or to another at his request, in ratification of conveyance of property made during minority. Calhoun v. Anderson \[Kan.\] 98 P 275.

01. Under Civ. Code 1902, 8 2656, providing It is the special duty of the chancellor to guard the interests of infants, and the law has carefully provided that their rights shall be protected.\[51\] While there is a conflict as to whether the court of chancery has inherent power to decree the sale of an infant's real estate for the purpose of investment,\[52\] such power is often conferred by statute,\[53\] or may attach by virtue of the provisions of the instrument under which the infant's title is derived.\[54\] The chancellor is vested with a broad discretion in the matter of affirmance or disaffirmance of sales of the property of infants,\[55\] but such discretion is not an arbitrary one \[56\] and must be exercised according to settled principles.\[57\] If a judgment against infants is reversed, the purchaser, if he be the plaintiff or a party to the action, will not be permitted to hold against their interest real property bought under it at a judicial sale.\[58\] In such case, however, the infants may either elect to allow the sale to stand or they may have the sale set aside and take the property upon the payment of the debt which is a lien thereon.\[59\] In New York, upon a sale of real estate of an infant, the proceeds are deemed property of the same nature as the estate or interest sold until the infant arrives at full age.\[60\] In Arkansas, where a will is by statute inoperative as to an omitted child, he cannot be divested if his rights by a sale of the estate under the will,\[61\] and the statutory remedy against the devisees or legatees is not exclusive.\[62\] In Georgia a trust estate may be created for the benefit of minors.\[58\] In Kentucky a deed signed by a minor husband and his wife is not binding upon either.\[64\] In Louisiana'a family meeting in which the minors are not represented by an underutor is illegal, and the defect is not cured by the subsequent appointment of the husband of one of the major plaintiffs in the suit to that position.\[65\]

to consideration for taxes, repairs and im- In District of Columbia for sale of vested movements, which infant may offset with reminder in fee in lands belonging to inrents, accruing within three years. Tobin & statuit of tenant for life, or for sale at v. Spann, 85 AFL, 556, 109 SWV 534.

snit of such tenant of contingent interest in 51. District of Clifton v. Pferman, 33 Ky.

land limited over by will or deed to infants L. R. E529, 410 SWV 406. Record held to show nothing prejudilat to rights of infants in proceedings to sell land to enforce purchase- money lien. Leavell V. Carter \[Ky.\], 112 SWV 209.

1118. Where adult coopereners conceal from infant coaprener true value of land, and after taking it at its appraised value sell it at greatly enhanced figure, they will be re-quired to account to minor for profits thus derived, and in such case the court is not bound to support judgment among joint wrongdoers, but may render general judg- $7,800 was worth $200 to $500 more. Id.

ment against all defendants. Murr v. Murr, 111 Ohio C. C. (N. S.) 439.

s2. Equilty court has no inherent power to decree sale of infants real estate for purchase of investment, and its jurisdiction to decree sale of infant's reality is wholly statutory. Morse v. U. S., 29 App. D. C. 433.

Court of chancery has inherent power to convert estates of persons under disabilities for purposes of reinvestment where to their manlifest interest. Holt v. Hamlin \[Tenn.\]

s11 SWV 241. Held error for chancellor to L.

dismiss certain bill where under facts alleged, if proved, duty of chancellor would have been to order sale of real estate for purposes of reinvestment. Id.

s58. Court has jurisdiction, under Civ. Code Prac, $ 491, to sell property left in trust for minors for purposes of reinvestment. Curry's Guardian, 31 Ky. L. R.

guardian v. Monsch's Guardian, 31 Ky. L. R.

s54. Will held to authorize such sale. Curry's Guardian Y. Monsch's Guardian, 31 Ky. L. R.

s59. L. R. E556, 104 SWV 313. Prior to adoption of code there existed no statutory authority

## 5 Contracts

See 10 C. L. 143.-Except in the case of necessaries, an infant's contract is ordinarily voidable, 64 and may be affirmed or disaffirmed upon the majority of the infant. 67 In some states a minor may be estopped by his conduct from setting up his infancy, 66 while in other states he cannot be so estopped, 69 and in still others cannot be estopped in the absence of fraud. 69 One holding an infant out as of full age is estopped to set up the infancy. 61

A contract made with a minor for necessaries is usually invalid unless the parent or guardian on such minor refuses or fails to supply him with sufficient necessaries, 72 and then only for the reasonable value of such necessaries. 73 A minor cannot ordinarily bind himself by an executory contract for necessaries 74 and may re-pudiate 75 or ratify it as in the case of other contracts. 76 The determination of what are necessaries involves a variety of considerations." Education furnished to an infant may be necessary to him, but is so only when it is suitable to his wants and condition," and whether such is the case is a question of fact."

In Texas the rule that if a minor uses money or other property for purchasing necessitates he must restore or account for its equivalent if he seeks to set aside an act performed by him during minority, or if he retains possession or control of property obtained by him during minority he must restore such property if on reaching majority he seeks to avoid the contract through which he obtained the property, does not apply when he has never received anything beneficial through the contract." In Georgia an infant engaged in business with his parent's consent is liable under the statute, upon contracts connected with such business," but not upon any contract of guaranty or suretyship; " and in Alabama an infant properly. decreed relieved of the disabilities of nonage is liable upon contracts made under such decree."

ered on question of ratification. Interna-tional Text-Book Co. v. Doran, 80 Conn. 307, 68 A 255.

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The burden of proving all the conditions necessary to the validity of the contract of an infant is upon the party asserting such validity.\[84\]

SS 6. \_Torts.\_See * C. L. 276.

SS 7. \_Crimes.\_See * C. L. 276.-In Georgia in order to convict a minor between the ages of sixteen and twenty-one of the offense of vagrancy, the state must allege and prove, in addition to the usual allegations, that the minor's parents were unable to support him and that he was not in attendance upon an educational institution.\[85\]

SS 8. \_Actions by and against.\_See * C. L. 244.-Chanery has general jurisdiction over the persons and property of infants.\[88\] Minors can neither sue nor be sued except as specially provided by law,\[87\] nor can any valid judgment or order be rendered against them where the suit is not prosecuted in the manner so provided.\[88\] However, the failure to appoint a guardian ad litem for an infant plaintiff is not a jurisdictional defect, but a mere irregularity which can be cured, if necessary, during the progress of the trial,\[88\] and a plea based on such irregularity is usually ineffieacious where the infant has become of age before such plea is filed.\[90\] Such a plea must, therefore, allege that the plaintiff is still an infant.\[91\] A guardian ad litem cannot be appointed where the court has failed to acquire jurisdiction of the case.\[92\] In West Virginia suits upon contracts affecting the infant's interests not made by his guardian must were he of age, is not void because not intended as guardian cannot represent his specifically deceneing that minor was re-lieved of disabilities of nonage. Kekethum v. Where it does not appear that the guardian ad litem appointed consented to act, a judgg-der Civ, Code 1896, SS 835, minor is relieved of disabilities of nonage as soon as decere to Cowan, * Gnanius, * S3 Misc. 141, * NYS 470. that effect is rendered, and liability therefor, * Justice show appointment, but no written scutechum v. Fairchild-Sersent Co. \[Ala.\] 46 S 476. No error in action in thetime against turn. Id. No order can be made in action minor for personal property covered by certain mortgages to admit certified transcript * Couty by guardian ad litem. Gross v. Gross, of proceeding in chanery court decereing * Civ. Proc. * 471, court cannot order infant * S4. James v. Sassex, * S6a, * S6b * S29. Evidence held not to warrant reversal * S70. Evidence held not to warrant reversal * S71. Evidence held for content for failing testimony was inconclusive and apparently inconsistent with certain facts disclosed at trial. Brook v. Kalfon, * S8 Misc. 192, * NYS 1102. Evidence held to show that alleged minors were of age when convergence in question was signed. Harris v. Ronk, * S30. * Kly. L. R. 866, * 107 SVV 341. * S8. Act Aug. 7, * 1903 (Laws Ga. 1903, p. 46). Rogers v. State (Ga. App.) * S1 SE 496. * S6. Greenlee v. Rowland, * S5 Ark. 101, * 107 SVV 193. See ante, SS 4, Property and Conveyances. * S7. See Guardians Ad Litem and Next Friend, * C. L. 1668. Gilbert v. Mazerat, * 121 La. 35, * 45 S 47. In order to subject land descending to minors under statute of descent and distribution to vendor's licen, it is necessary that minors be represented by guardian ad litem. Shehane v. Caraway * \[Ala.\] 45 S 469. Answer in behalf of minors cannot be considered where no guardian ad litem was appointed. Id. Complaint cannot subject property of minors to sale in absence of their being properly before court. Id. Infant may sue during his infancy by guardian ad litem. Muller v. Manhattan R. Co., * 124 App. Div. 295, * 108 NYS 852. Action for injury to inheritance by creation of elevated railroad. Id. SS. Minors appearing in their own right not properly before court. Gilbert v. Mazerat, * 121 La. 35, * 46 S 47. Father never con be in the name of the infant by next friend.93 In Indiana the guardian is neither a necessary nor proper party to an action affecting the title of the infant's real estate.94 The service of process upon minors is usually regulated by statute,95 which, as a general rule, requires personal service on all minors,96 and, as to all minors under fourteen years of age, service on the father, mother or guardian is also required,97 and in the latter case, in Iowa, the parent or guardian cannot waive the minor's right to such personal service.98 The same presumptions are indulged in favor of regularity of service as in other cases.99 In Arkansas, where a guardian acts as counsel, hostile to the interests of his ward and chooses inferior counsel for them, proper counsel may be employed, and the infants and their estates are liable for reasonable attorney's fees.1

If infancy exists where a cause of action first accrues, the time for commencing the action is usually extended for a certain period after the infant becomes of age.2 So, also, it is held that a decree against an infant must be attacked by him within a certain time after reaching his majority.3

It is not necessary that the minor join with his guardian ad liter in an appeal

93. McMullen v. Blecker \[W. Va.\] 60 SE 117 N NV 22. Where mother of minors was also party to action and apparently in acknoweldging service acted for herself alone, and was not served with notice as mother of minors, and from all that appeared she has not have noticed that they were made parties, her acknowledgement did not bind them. Id.

Wise court obtains no jurisdiction to renet not with strict proof required, held suffh-interest in property. Id. Failure to make infant codefendant party to appeal held to require dismissal for want of jurisdiction.

Wees, 76 S. C. 484, 67 SE 614.

1. Where guardian of minors becomes

1. Where record shows service on person

with whom infants resided, but failed to show that father was absent from state, as required by Code 1902, 8 155, subd. 2, father's absence from state will be presumed. Kayelor v. Hiller, 77 S. C. 393, 58 SE 2.

96. Where record shows that mother as guardian at litem admitted service upon herself and certified to service upon infants,

served held sufficient to show that infants

were parties to suit, at least where long

period of time had elapsed. Clark v. Neves,

76 S. C. 484, 67 SE 614. When it affirmatively

appears on face of record that infant has not been served with summons, infant is not

guardian to purchase property and ward did

bound by proceedings, Id. Minor over

age of 14 who has no guardian may be

served personally. Douglas v. Johnson, 130

da, 472, 60 SE 1041. Statutory action for

partition of land where minor is interested. Id. Since Acts 1876, p. 103 (Cv. Code 1895, & 4987), personal service of application to

sell trust property must be made on infant.

Turner v. Barber \[Ga.\] 62 SE 587.

97. Cv. Code 1902, 8 155. Clark v. Neves,

76 S. C. 484, 57 SE 614. Service on minors

under age of 14, in Iowa, is required by

shatute to be upon father, mother, guardian,

pbrson caring for them, or person with whom they reside or are employed. Cummings v. Landes \[Iowa\] 117 NVE 22. Code, bond,4 nor need the affidavit given by the guardian ad litem in lieu of a bond show that the minor is unable to pay cost of appeal or give security therefor,5 but if a minor have an estate sufficient to pay the cost of an appeal adjudged against him, this estate is liable to the party to whom the cost is due, and such cost may be recovered in a proper proceeding for that purpose unless the litigation out of which it grew was instituted and prosecuted under conditions which would not be binding on the minor.6

Information; Informezes; Initiative and Referendum, see latest topical index.

## 11. Introduction

- 8. Nature of remedy and grounds therefor, 162.
- 8. Particular occasions for Injunction; Who and What Many be Enjoined, 157.
- 8. Nations, 177.
- 8. Nations, 179.
- 9. Nations, 181.
- 10. Nations, 181.
- 13. Nations or Actions for Injunction, 181.
- 14. Preliminary Injunction, 180.
- 15. Nations and Grounds, 189.
- 16. Nations and Grounds, 192.
- 17. Nations, 168.
- 18. Nations, 192.
- 19. Nations and Public or Quasi Public Places, 168.
- 20. Nations of Causal Public and Private Corporations or Associations, 169.
- 23. Nations or Actions for Injunction, 181.
- 24. Preliminary Injunction, 180.
- 25. Nations and Grounds, 182.
- 26. Nations and Grounds, 183.
- 27. Nations and Grounds, 184.
- 28. Nations and Grounds, 185.
- 29. Nations and Grounds, 186.
- 20. Nations and Grounds, 187.
- 21. Nations and Grounds, 188.
- 21. Nations and Grounds, 189.
- 22. Nations and Grounds, 189.
- 23. Nations and Grounds, 189.
- 24. Nations and Grounds, 189.
- 25. Nations and Grounds, 189.
- 26. Nations and Grounds, 189.
- 27. Nations and Grounds, 189.
- 28. Nations and Grounds, 189.
- 29. Nations and Grounds, 189.
- 20. Nations and Grounds, 189.
- 21. Nations and Grounds, 189.
- 22. Nations and Grounds, 189.
- 23. Nations and Grounds, 189.
- 24. Nations and Grounds, 189.
- 25. Nations and Grounds, 189.
- 26. Nations and Grounds, 189.
- 27. Nations and Grounds, 189.
- 28. Nations and Grounds, 189.
- 29. Nations and Grounds, 189.
- 20. Nations and Grounds, 189.
- 21. Nations and Grounds, 189.
- 22. Nations and Grounds, 189.
- 23. Nations and Grounds, 189.
- 24. Nations and Grounds, 189.
- 25. Nations and Grounds, 189.
- 26. Nations and Grounds, 189.
- 27. Nations and Grounds, 189.
- 28. Nations and Grounds, 189.
- 29. Nations and Grounds, 199.
- 20. Nations and Grounds, 199.
- 21. Nations and Grounds, 199.
- 22. Nations and Grounds, 199.
- 23. Nations and Grounds, 199.
- 24. Nations and Grounds, 199.
- 25. Nations and Grounds, 199.
- 26. Nations and Grounds, 199.
- 27. Nations and Grounds, 199.
- 28. Nations and Grounds, 199.
- 29. Nations and Grounds, 199.
- 20. Nations and Grounds, 199.
- 21. Nations and Grounds, 199.
- 22. Nations and Grounds, 199.
- 23. Nations and Grounds, 199.
- 24. Nations and Grounds, 199.
- 25. Nations and Grounds, 199.
- 26. Nations and Grounds, 199.
- 27. Nations and Grounds, 199.
- 28. Nations and Grounds,
      12 Cur. Law. INJUNCTION SS 1.

An injunction will be granted only where a proper case in accordance with the principles and practice of equity is made out,\[12\] being issued by grace, when, upon a broad consideration of all the parties in interest, good conscience requires it,\[13\] and it is the duty of the court to inquire if complainant has a clear legal right to the use, occupation, or enjoyment of the property or right, the invasion of which it is sought to enjoin.\[14\] The plaintiff, furthermore, must make out a plain case of injury and damages \[15\] of a permanent and irreparable character,\[16\] for which there is no adequate remedy at law,\[17\] but irreparable injury does not mean beyond the possibility of compensation in damages or that it must be very great, and the fact that no actual damages can be proved, so that in an action at law the jury could award only nominal damages, often furnishes the best reason why equity should interfere,\[18\] though an injunction may be refused on the ground that the injury is merely nominal or theoretical.\[19\] There is considerable confusion upon the doctrine of comparative equities as affecting the right to an injunction.\[20\] The conflict, however, is more seeming

**12. Myersdale, etc., R. Co. v. Pennsylvania,** (matter as set forth. Heslip v. Anderson, 134 etc., R. Co, 219 Pa. 568, 69 A 82. Remedy by \[Ill. App. 8\]. Injunction should not be extended in its operation to cases not falling within well reorganized principles. People v. Grand Trunk Western R. Co., 232 Ill. 292, 83 NE 839. Party cannot be deprived of his right to trial by jury nor subjected to the stringent methods for measurement of damages due to nature rendered by courts of equity, unless the facts conferring equitable jurisdiction are alleged proved and found. Fox v. Fitzpatrick, 180 N. Y. 259, 82 NE 1108. Statute provides that district court may issue injunctions in all cases where the applicant for such writ shows himself entitled under the principles of equity. Rev. St. 1895, art. 2859, cl. 3. Steger & Sons Plano Mfg. Co. v. MacMaster \[Tex. Civ. App.\] 113 SWV 337.

13. Denied where abutting owner permitted and consented to construction of street railway and then sought to enjoin its operation. Maust V. Pennsylvania, etc., R. Co., 219 Pa. 568, 69 A 80.

01. Myersdale, etc., R. Co. v. Pennsylvania, etc., R. Co., 219 Pa. 558, 69 A 92.

01. Berkey v. Berwind-White Coal Min. Co., 220 Pa. 65, 69 A 229. A petition to re-strain the enforcement of a law, on the ground that it would destroy a business built up after a period of years and that it is unconsutritional, authorizes as against a demurrer relief in equity to prevent irreparable injury. Merchants' Exch. of St. Louis v. Knott, 212 Mo. 616, 111 SWV 655. The disging of a trench and laying a steam pipe across a town lot, which was occupied by another under contract with the city, is not an injury of such irreparable nature that injunction will issue. Jacobs v. Lakeside Lumber Co., 134 Wis. 179, 114 NWV 443. Threatened cancellation of an insurance certificate by officers of the company is not ground for an injunction, unless such threats, if carried into execution, would produce some substantial injury. Royal Fraternal Union v. Lundy \[Tex. Civ. App.\] 115 SWV 155.

01. Myersdale, etc., R. Co. v. Pennsylvania, etc., R. Co., 219 Pa. 558, 69 A 92; Devon v. Pence, 82 Ky. L. R. 697, 106 SWV 874.

01. No necessity for injunction without notice to restrain collection of judgment at law, where law court had jurisdiction of \[Ill. App. 8\]. Injunction, the authorizes as set forth. Heslip v. Anderson, 134 etc., R. Co., 219 Pa. 568, 69 A 82. Remedy by \[Ill. App. 8\]. Injunction should not be extended in its operation to cases not falling within well reorganized principles. People v. Grand Trunk Western R. Co., 232 Ill. 292, 83 NE 839. Party cannot be deprived of his right to trial by jury nor subjected to the stringent methods for measurement of damages due to nature conferred by courts of equity, unless the facts conferring equitable jurisdiction are alleged proved and found. Fox v. Fitzpatrick, 180 N. Y. 259, 82 NE 1108. Statute provides that district court may issue injunctions in all cases where the applicant for such writ shows himself entitled under the principles of equity. Rev. St. 1895, art. 2859, cl. 3. Steger & Sons Plano Mfg. Co. v. MacMaster \[Tex. Civ. App.\] 113 SWV 337.

01. Denied where abutting owner permitted and consented to construction of street railway and then sought to enjoin its operation. Maust V. Pennsylvania, etc., R. Co., 219 Pa. 568, 69 A 80.

01. Myersdale, etc., R. Co. v. Pennsylvania, etc., R. Co., 219 Pa. 558, 69 A 92. A 92. Remedy by \[Ill. App. 8\]. Injunction, the authorizes as set forth. Heslip v. Anderson, 134 154

**INJUNCTION SS 1.** 12 Cur. Law.

than real, and the cases may usually be reconciled under the doctrine that, while as a general rule the comparative injury to the parties will not control the grant or refusal of an injunction where the complainant's rights and the injury thereto are

Roberts v. West Jersey & S. R. Co. \[N. J. Eq.\]

no man can complain that he is injured by 65 A 460; Nitmany Valley Jr. Co., Empire

being prevented from doing to the hurt of Co., 218 Pa. 224, 67 A 349), or where there is another what he has no right to do." Sullivan adequate remedy at law (McCarthy v.

van v. Jones & Laughlin Steel Co., 208 Pa.

Mining & Coal Co., 147 F 981; Manu V. Par.

540, 57 A 1068, 66 L. R. A. 712. "We do not ker, 48 Or Or. 321, 68 P 598; Lloyd V. Catlin Coal

think that the fact that an actual injury Co., 210 III. 460, 71 NE 335; McClure V. Leay.

resulting from a right is small and the in-crraft, 183 N. Y. 36, 75 NE 961), or the plaintiff

terest to be affected by the injunction is has been guilty of lachees (Washington Lodge

large should weigh against the interposition v. Frelinghuysen, 138 Mich. 350, 101 NWV 569), a somewhat extended examination of the

clear that on one hand a right is violated

cases reveals no conflict upon the proposition

that actual damage to the rights of another

American S. & R. Co. v. Godfrey \[C. C. A.\]

may, in the absence of lachees or an adequate remedy at law, be perpetually enjoined,

modern English cases are to the same irrespective of the annoyance or injury such

effect. Shelfer v. London, 1 Ch. 287: Imperial

injunction may work to the defendant as

Gas Co. v. Broadbent, 7 H. L. C. 600, (after. 7

compared with the injury sought to be reme-

De Gex M. & G. 436). Attency General v.

dled or the inconvenience suffered by private

Birmingham, 4 Kay & J. 528; Cowper v. Laid-

persons or by the public by reason thereof

ler, 2 Ch. 337; Attoreberg General v.

Co. \[ Cornings v. Factory, 40 N. Y. 191; Stock v.

Judson Twp., 114 Mich. 357, 72 NW 132, 38

shire Co., & Ch. App. 125; Pennington v.

L. E. A. 355; Village V. Hayes, 150 III. 273, 37

Bringsop Co., 5 Ch. Div. 769; Young v. Banker

N. E. 218; Atl. Am. St. Rep. 367; Harper v.

C., 1831 ApJ. Cas. 681; Diffuse Co., 97 N. Yater

Vater Co., 65 N. J. Eq. 479, 56 A 297; Higgins

Co., 9 Ch. App. 451; Goodson v. Richardson,

v. Water Co., 96 N. J. Eq. 538; Henness v.

v. Carpony, 50 N. J. Eq. 616, 25 A 374; Evans

It will be noted that the Pennsylvania

v. Fertilzing Co., 160 Pa. 209, 28 A 702:

v. Eureka Lake Co., 15 Cal. 271; Amsterdam Co., V. Dean, 13 App. Div., 42;

result from that indicated by the language

48 NYS 29; Banks v. Frazier, 111 Ky. 909, 64

SWV 883; Suffolk Co. v. San Miguel Co., 9

Colo, 40, 48 P 82; Hobbs v. Amador Co., 66

Cal. 161, 4 P 1147; Cheustee Co. v. Caven-

dars Co., 118 Ga. 255, 45 SE 267; Weston Paper

C. v. Pope, 156 Ind. 394, 77 NE 119, 56 L. R.

A. 893; Townsend v. Bell, 62 Hum (N. Y. 306,

17 NYS 210; Brown v. Ontario Co., 81 App.

Dlv. 273, 80 NYS 837; Beckwith v. Howard,

6 R. T. I; American Smelting & Refining Co.

v. Godfrey \[C. C. A.\] 158 F 225; Sullivan v.

Jones de Laughlin Steel Co., 208 E 540, 57 A 1065, 66 L. R. A. 712; Burrall v. American

Tel. Co., 224 Ill. 266, 79 NE 705).

Thus, in Commonwealth clearly established," yet in certain cases, each depending upon its own peculiar circumstances, an injunction may be refused because the injury complained of is so trivial or so doubtful that, in view of the grave consequences which would result from the granting of such relief, it would be unconsionable to grant the writ.22 In no case will the seriousness of damage from lawful acts raise the equities of trespasser to the dignity of rights enforceible by injunction.23 The mere imminency of an act, of the possibility in case of necessity, without a showing of a necessity or an attempt or intent to do the act, affords no grounds for injunctive relief.24 Courts will

found that there was present either the ele-

names from plaintiff's copyrighted trade

ment of laches or that the damage to the

book in a much larger and more complete

plaintiff was doubtful or an adequate remedy

work issued by defendant held not ground

existed at law, or the case arose upon an

for injunction, complainant being reminded

interlocutory application. The same will be

to remedy at law. Dun v. Lumbermen's

found true with regard to the following

Credit Asso., 209 U. S. 20, 52 Law. Ed. 663.

cases which are frequently cited in support

where railroad breaks its contract to op-

of the "balance of injury" theory (Hall v.

Reotod, 40 Mich. 46, 29 Am. Rep. 528; Buchanan v. Log. Co., 48 Mich. 364, 12 NYW 490;

cation granted, an injunction will not lie to

Blg Rapids v. Comstock, 65 Mich. 78, 21 NYW 491;

the public have acquired rights requiring

$11: Miller v. Cornwall, 71 Mich. 270, 38 NVW 912; Blake v. Cornwall, 65 Mich. 467, 32

East Coast R. Co. \[Fla.\] 45 S 574. Where

NVW 803: Lopansport v. Uhl, 99 Ind. 531, 50

government had spent millions of dollars in

Am. Rep. 112; Powell v. Bentley & Gewis

improving river in vicinity of an island,

Fur. Co., 34 W. Va. 804, 12 SE 1085, 12 L. R. A.

and had contracts for six millions more of

53: Amelia Milli, Co., V. Tenn. Coal, Iron & L.

Improvements, and use of dynamic was

Co., 123 F 811; Sellers v. Parvis, 80 F 164;

asamyante had been stored on

Mann v. Parker, 48 Or. 321, 86 F 598. See, also,

16 Am. & Eng. Enc. of Law \[2nd Ed.\] 363, 364

protest, an injunction would be granted only

and cases cited), and the strongly contra

to restrain storage of dynamic on the

case of Madison v. Ducktown, etc., Co., 113

Tenn. 31, 83 SWW 658, will be found to be

to complainant, who resided in the vicinity,

based upon the construction of a local stat-

ute. In the recent case of Dun v. Lumbermen's Credit Asso., 209 U. S. 20, 52 Law. Ed.

\[C. C. A.\] 159 F 46. Equity will not enjoin

663, the snpreme court of the United States

seems to hold that comparative injury may

be considered in determining the adequacy

of the remedy at law in such cases. It is to

be noted, however, that in this case, also,

the evidence of defendant's wrong seems to

have left the court in doubt in regard there-

to. \[Ed.\]

**21.** American Smelting & Refining Co. v.

Godfrey \[C. C. A.\] 158 F 225. The right of

junction is not defeated by reason of the

fact that to compel defendant to design from

operating its cars in a street so as to

continue a nuisance would cut the throat of

its yards and destroy the value of its property. Galveston, etc., R. Co. v. De Goff \[Tex.

Civ. App.\] 110 SWW 1066.

22. Injunction to restrain owner of coal

rights from endangering the surface refused,

where there were no buildings or structures.

Berkeley v. Berwind-White Coal Min. Co., 220 Pa. 65, 69 A 329. Injunction will not lie

restraining emptying drainage upon complainant's land where it was necessary to

preserve a highway, Devon v. Pence, 32 KY.

L, R. 697, 106 SW 874. Where the construction of a sewer and dicharge of sewage onto

land was consented to by a former owner and

conditions had existed for some time, and

the sewer had been extended and its dis-

continuance would work a great hardship,

and the injury was permanent and all damages could be recovered in one action, the land

owner was not entitled to an injunction.

Somerset Water, Light & Trac. Co. v. Hyde,

83 Ky. L. R. 866, 111 SWW 1005. Use of a few

132 Cur. Law.

Injunction SS 1.

Clearly established," yet in certain cases, each depending upon its own peculiar circumstances, an injunction may

## 11 Introduction

19 Cur. Law. **INJUNCTION SS 2B.**

**SS 2.**\_Particular occasions for injunction; who and what may be enjoined. A. In general,\_See 10 C. L. 280.\_Equity will prevent by injunction the threatened invasion of property rights,\[38\] and where one undertakes to decide for himself a question involving controverted rights, he may be enjoined regardless of the absolute merits of the controversy.\[38\] On the other hand, an injunction may issue to protect a party from exposure to the risk of litigation.\[9\] An injunction may also issue to preserve the status quo pending litigation.\[88\] Statutory injunctions are allowable in particular situations or for the protection of particular rights.\[39\] The question of who may be enjoined is usually reducible to one of parties,\[40\] or one of the nature of the remedy,\[41\] or one of the nature of the particular wrong.\[42\]

**(SS 3)**\_B. Actions or proceedings.\_See 10 C. L. 251.\_Courts of different sovereign-ties cannot interfere with the power of each to enforce its own judgments, even indirectly by injunction operating upon the parties litigant,\[48\] nor will a court of equity enjoin the prosecution of an equitable action in a court of full equity jurisdiction in a sister state upon any theory that the former can better weigh evidence or more justly apply any general principle of law or equity,\[44\] or upon the ground that such

Adams Y. Birmingham Realty Co. \[Ala\_\] 45 \[fee of small section of railroad right of way S 891. Delay is not necessarily laches. Daly v. Fosss, 199 Mass. 104, 85 NE 94. Facts did not show laches preventing plaintiff from being right of way in laying enjoining use of well which depleted water supply. Verdugo Canon Water Co. v. Verdugo, 152 Cal. 655, 93 P 1021. Failure of one owing royaltes to require equitable claim-ant to establish right there, prior to injunction against collection by legal claim-ant, held, under circumstances of case, not laches. Benziger v. Steinhauser, 154 F 151. Where defend before beginning section of building was notified by plaintiff that certain area must be left open for his benefit and tendered amount of money required to contrives. Southern Bell Tel. & T. Co. v. conflict him to have area left open, which defendant refused to accept but continued to build, it was held that right of complain-ant would not be denied on ground that he had delayed until injunction would cause more damage to defendant than its refusal would cause complainment. Tolsima v. James Z. Schrippe Corporation \[Mich\_\] 15 Det. Leg. N. 853, 116 NW 822. **33.** Lester v. Sullivan, 82 Ky. L. R. 925, 107 SVV 300. Where one pleaded and prosecected defenses for a period of five years in an action In one state, he is estopped from bringing bill in a sister state to restrain proceedings, on the ground that the truth is contrary to the findings In the original action because of delay and acquiescence. Bigelow V. Old Dominion Copper Min. & Smelting Co. \[N. J. Eq. 71\] 153. Complainst who saw defendant's plans for building projecting into street and watched building, taking no action until year after its completion, was estopped from maintaining suit for manda-tory injunction for removal of projection. Adams v. Birmingham Realty Co. \[Ala\_\] 45 S 81. Upon the evidence plaintiff not escapped from enjoining defendant as prayed. Piedmont Cotton Mills v. Georgia R. & Elced. Co. \[Ga\_\] 62 SE 52. Facts held not to estop plaintiff from enjoining use of a well which depleted his water supply. Verdugo Canon Water Co. v. Verdugo, 152 Cal. 655, 93 P 1021. **34.** Where evidence shows that the plaintiff, who is not an abutting owner,

###### Acknowledgements.

I would like to thank my supervisor supervisor for his guidance and support.

12 Cur. Law. INJUNCTION SS 2B.

tion of proceedings in state courts in future.\[82\] The policy of the law is, likewise, to prevent a conflict of jurisdiction between the courts of the same state.\[83\] Equity, therefore, has no jurisdiction to enjoin the prosecution of a criminal proceeding \[54\] except where property rights are involved \[85\] or where the equity proceedings are merely ancillary to proceedings already pending; \[86\] nor will equity entertain a suit, the sole purpose of which is to enjoin regular and orderly proceedings at law,\[87\] nor enjoin the prosecution of an action at law for matters which may be asserted in defense thereto; \[88\] nor will equity enjoin the enforcement of a judgment where there is other adequate remedy; \[89\] nor will such an injunction issue for mere error of law \[80\]

52. Suit in a federal court against attorney or that the city court in which that suit had general to enjoin the enforcement of an unconstitutional state statute by bringing crimal proceedings for its violation 18 not within this prohibition. Lindsley v. Natl-Partal Carbonlc Gas Co., 162 F 954.

01. Under Burns' Ann. St. 1908, SS 1437, 1438, providing that where the subject-matter of a suit is located in more than one county the court first taking cognizance shall retain the same, etc., injunction will not lie in one county to enjoin the destruction of a highway bridge in the construction of a drain under a drainage proceeding brought in another county, any one affected by the proceeding and not a party to it having an adequate remedy by being made a party. American Steel Dredge Works v. Putnam County Com'rs \[Ind.\] 85 NE 1. See, also, American Steel Dredge Works v. Putnam County Com'rs \[Ind.\] 82 NE 995.

01. Logan v. Postal Tel. & Cable Co., 157 F 570. Threatened prosecution for alleged crimeus will not be enjoined. State v. Canty, 207 Mo. 439, 105 SWP 1078; Logan v. Postal Tel. & Cable Co., 157 F 570. See SS 2D, Infra. & Cable Co., 157 F 570. See SS 2D, Infra. & Cable Co., 157 F 570. See SS 2D, Infra. & Cable Co., 157 F 570.

01. Hall v. Dunn \[Or.\] 97 F 811; Logan v. Postal Tel. & Cable Co., 157 F 570.

01. Logan v. Postal Tel. & Cable Co., 157 F 570. Criminal proceedings commenced by one already a party to a suit in equity may be enjoined. Ex parte Young, 209 U. S. 123, 52 Law. Ed. 714.

01. WU fill not enjoin proceedings to correct the record of a judgment so as to show true date of entry. Thompson v. Great Western Acc. Assp'n, 138 Iowa, 557, 114 NVY 31.

01. Steger & Sons Piano Mfg. Co. v. MacMaster \[Tex. Civ. App.\] 113 SWP 337. Injunction against forelble entry and detainer refused. Jossey v. Perlstein \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 190, 107 SWP 558. A bill to enjoin an ejectment suit and for cancella- tion of a dead cannot rest for its equity upon cancellation independent of other relief sought. Hall v. Slaustier \[Ala.\] 47 S 108.

01. Matthews v. Carman, 122 App. Div. 582, trees will not be enjoined on the ground that defendant entered under the belief that he had title, for such a defense could be made in this original action. Ryder v. Johnston \[Ala.\] 45 S 181. Where the maker of a promissory note brought suit to receiver possession of note on the ground of payment, and its possession had been refused on defendant to an equid- to be granted.

01. Suit in a federal court against attorney or that the city court in which that suit had general to enjoin the enforcement of an unconstitutional state statute by bringing crimal proceedings for its violation 18 when he bought had no equitable jurisdiction. Long v. McIntosh, 129 Ga. 660, 59 SE 779.

Where, in suit on note, defenses are comfortable within this prohibition. Lindsley v. Natl-Partal Carbonlc Gas Co., 162 F 954.

60. Under Burns' Ann. St. 1908, SS 1437, 1438, providing that where the subject-matter of a suit is located in more than one county the court first taking cognizance shall determine issues. Norton v. Graham, 130 Ga.

01. Go SE 1049. Complaintant not entitled to in one county to enjoin the destruction of a highway bridge in the construction of a drain under a drainage proceeding brought in another county, any one affected by the proceeding and not a party to it having an adequate remedy by being made a party. American Steel Dredge Works v. Putnam County Com'rs \[Ind.\] 85 NE 1. See, also, American Steel Dredge Works v. Putnam County Com'rs \[Ind.\] 82 NE 995.

01. Logan v. Postal Tel. & Cable Co., 157 F 570. Threatened prosecution for alleged crimeus will not be enjoined. State v. Canty, 207 Mo. 439, 105 SWP 1078; Logan v. Postal Tel. & Cable Co.,

## 160 Injunction SS 2B.

or for a mere irregularity," or where there is an appeal pending," or where the grounds relied on could have been asserted by way of defense to the action at law." In a proper case," however, and subject to such conditions as the court may impose in the sound exercise of its discretion," actions at law may be enjoined, as where the defendant in such an action has a defense which he cannot interpose therein," or to prevent a multiplicity of suits " by the party seeking the injunction " or against him," provided there is no adequate remedy at law; " but the bare fact of imminent defendant, but a party of similar name is \[Mandell, 150 Mieh. 621, 14 Det. Leg. N. 791, the real defendant. Mantz v. Kistler \[Pa.\] 114 Nw 392.

70 A. 545. Whether complainants were entitled under an agreement to a larger estimate in defendant's premises than a monthly tenancy, as found by the court, will not be considered in a suit to enjoin enforcement of the judgment, since, if true, there is a remedy at law. Mc. Redgrave Co. v. Redgrave \[N. J. Eq.\] 71 A 147.

60. Steger & Sons Piano Mfg. Co. v. MacMaster \[Tex. Civ. App.\] 113 Svy 837: Coa Cola Co. v. Allison \[Tex. Civ. App.\] 113 Svy 808. Allagations of errors of law in a bill to restrain the entry of final judgment and disassance of execution thereon must be designated. Monmouth County Elec. Co. v. Eatontown Tp. IN. J. Eq. 70 A 994.

01. Where there was valid claim and no defense. Lindberg v. Thomas, 187 Iowa, 48, 114 Nw 562.

01. Where courts of equity in one state have rendered an alleged unjust judgment against one, and an appeal is entered, courts of equity in a sister state will not enjoin parties from proceeding further, for there is a plain remedy in the prosecution of the appeal. Bigelow V. Old Dominion Copper Mfn. & Smeiting Co. \[N. J. Eq.\] 71 A 153.

01. Tyrrell v. Wood \[R. I.\] 68 A 545. Injunction restraining collection of judgment will not be issued where relief sought could have been obtained from trial judge in action at law. Central Stock & G. Co. v. Pine Tree Lumber Co., 140 Ill. App. 471. Where a plea of privilege to be used in another county is ignored or improperly overrided, the district court may enjoin the execution of judgment. Coca Cola Co. v. Allison \[Tex. Civ. App.\] 113 Svy 808.

Failure to appeal from the denial of motion to be made party does not preclude one who was a proper but not necessary party from proceeding to enjoin the enforcement of any judgment recovered in such action at law. Spainding Mfg. Co. v. Chandon \[Ark.\] 112 Svy 1087. Right to enjoin fraudulent judgment may be lost by failure to appeal, Hughes v. Clark, 35 Pa. Super. Ct. 518.

64. Where a mortage was executed by two coprinolals, the foreclosure thereof by the mortage could not be enjoined until the debtors adjusted their liability between themselves. Eureka Lumber Co. v. Satchwell \[N. C.\] 68 SE 310. It was Improper to enjoin an action by a guardian for the illegal detention of her ward on allegations that the guardian, after a release by the ward, fraudulently attempted to show that the ward was incompetent at the time and for that purpose procured appointment as her guardian, since the appointment of the guardian cannot affect the validity of the release, she not having been under guardian, and having been then presumptively competent. Gallon v.

VOL. XII. NO. 2. CURRENT LAW, MAY, 1909.

(Copyright, 1909, by the Keefe-Davidson Company.)

INJUNCTION--Cont'd.

or pending criminal prosecutions is not ground for the intervention of equity.13 The enforcement of a judgment or decree may, likewise, be enjoined where a proper case for equitable relief is made out,72 as where a judgment or decree is obtained by fraud 73 or without jurisdiction.74 The enforcement of an execution may be enjoined where it is fraudulently obtained 75 or where the judgment upon which it issues is invalid 76 or dormant,77 but not where the execution is void on its face.78 No court

entitled to enjoin the bringing of separate actions, where the defendants were insolues commissioned against officers, current, and complainants had counterclaims

whfch might not be available in the law

change. Merchants' Exchange of St. Louis

actions. Aimee Reality Co. v. Haller, 128 v. Knott, 212 Mo. 616, 111 SWV 655.

Mo. App. 66, 106 SWV 588. Equity will en-

72 The collection of a judgment at law

join the prosecution of 110 suits for death

may be properly restrained by an injunction, plaintiff offering to pay the claim if

defense is the same in each suit although

established in the proceeding. Brin v. Topp, not established in law, for the plaintiffs are

131 Ill. App. 394. Court was authorized to

all insolvent and the defense of so many ac-

colon sale of reality under execution

tions at different times and in different

comuts would be ruinously expensive. South-

the wife's separate property. Texas Brew.

ern Steel Co. v. Hopkins (Lal.) 47 8 274.

Co. v. Bisso (Tex. City. App.) 109 SWV 270.

Where complainants to the number of 400

sued to enjoin the operation of smelters

by statement that declaration in action

owned by different corporations as nu-

where judgment was rendered did not state

sances, equity had jurisdiction to avoid

cause of action. Reed v. New York Nat.

tplicity of suits. American Smelting &

Exch. Bank, 131 Ill. App. 434.

Refining Co. v. Godfrey (C. C. A.) 158 F 225.

Injunction refessed: Where, pending suit

An unconstitutional legislative act may be

enjoined where a failure to comply there-

released and execution returned with the

with would subject the complainant to

increase endorsed thereon, an injunction will

numerable suits for penalties. Act

be, denied. Thompson v. Godolsky (Tex.

vided for the furnishing of gas at a certain

Civ. App.) 20 Tex. Ct. Rep. 733, 106 SWV 936.

price, the gas company to be subject to a

Injunction restraining sale under vendi-

penalty on account of each consumer to

toni responsa properly dissolved, as pro-

whom it failed to furnish gas at that price.

ceedings were proper. Dillard v. Stringfel-

Consolidated Gas Co. v. New York, 157 F

849. A suit by property owners on behalf

001. Matthews v. Carman, 122 App. Div.

of themselves and all others interested to

582, 107 NYES 694. The collection of a judg-

restrain the enforcement of a city ordinance

ment at law prevented by fraud may be re-

requiring owners to construct sidewalks,

strained where it is clear that defendant

currbng, etc, is within the rule that equity

has used due diligence and exhausted every

will in a single suit take cogninance of a

legal means of defense or reders, or was

controversy to avoid a multiplicity of suits.

prevent, without fault of his own, from

Brizzolara v. Ft. Smith (Ark.) 113 SWV 181.

so doing. Hughes v. Clark, 35 Pa. Super.

Under Const. 1890, 8 160, of Miss., equity

Ct. 518. Equities of defendant in fraudulent

may major element proceedings where

volgment may be lost by negligence in

complainant has several defenses, both legal

ascertainment of fact of judgment. Id.

and equitable, to avoid a multiplicity of

74. Coca Cola Co. v. Allison (Tex. City.

suits and to allow all matters to be ad-

Appl.) 118 SWV 308. Equity will enjoin judg-

judicated in one proceeding. Butler v. Scott-

ment procured in an action where neither

tish-American Mortig. Co. (Miss.) 46 83.

plaintiff nor wifce were served with process

ZEquity has jurisdiction to enjoin enforce-

and an attorney who accepted service and

ment of rates by different boards of super-

visors to determine in a single suit the

legality of such rates. San Joaquin & Kings

Stiver Canal & Irr. Co. v. Stanislaus County,

183 F 567.

70. Multiplicity of criminal or clvfli actions is not alone sufficient to authorize an

injunction where relief may be obtained at

law. Hall v. Dunn \[Or.\] 97 P 811.

Parser of corporate stock may enjoin

sherrift from selling stock under execution

against vendor. Everett v. Farmers 163 INJUNCTION SS 2C. 13 Cur. Law. can directly enjoin proceedings in another court by restraining action of the court itself.78 Equity may enjoin the introduction of evidence obtained by fraud and duress,86 but objections available upon the offer of evidence will not support an injunction against the introduction thereof. Preliminary injunctions against actions jeopardizing the status quo are treated in a subsequent section.81

(SS 2) \_C. Public, official, and municipal acts.\_See 10 C. L. 283--A court of equity cannot, by injunction, control the exercise of political 82 or legislative 83 functions, nor will it thus control the discretion of public officers and authorities,84 except to prevent an abuse of discretion 85 and to require that such discretion be exercised in good faith 86 and according to law,87 there being no other adequate remedy,88 one of

and under such circumstances, where no

adopted in valuing property, in absence

steps have been taken to revive judg-

of fraud or clearly shown adoption of a

ment within a year of death, an execution

wrong principle. Western Union Tel. Co. issued is void and may be enjoined. Update/

v. Wright, 158 F 1004.

graff v. Lucas, 76 Kan. 456, 93 F 630.

Location of school districts, etc., is left to

78. Under Rev. St. 1855, art. 2889, of Texas,

judgment of school board and in the ab-

authorizing an injunction where it shall ap-

year of misconduct their action cannot be

pear that the party applying for relief is

restrained. Pickler v. Davie County Board entitled to the same and such relief requires

of Education \[N. C.\] 62 SE 902. Adminis-

restraint, etc., an execution running against

trative powers of country boards. Roberts

property, showing on its face that it is void

v. Thompson (Neb.) 118 NW 106. Reim-

and that it cannot constitute a cloud on

quishment of eity rights in matter of pur

title, will not be enjoined. Thompson v. Ogden

Gooldsby \[Tex. Civ. App.\] 20 Tex. Ct. Rep.

Waterworks Co., 33 Utah, 285, 93 F 828. En-

78. Smilv. Reed \[N. J. Eq.\] 70 A 961.

forcement of railroad rate regulations, Cen

Injunction staying proceedings at law oper-

961. Equity will not restrain collection of

ates in restraint of party and not of

tax assessed by municipality against com

comrt, and judgment rendered in disobebal

planant's property. Buchanan v. MacFar

ence of injunction is not void. Geddis v.

Danovan, 151 Mich. 122, 14 Det. Leg. N. 878,

mitting postmaster general to issue fraud

114 NW 874.

80. Matthews v. Carman, 122 App. Div.

is satisfactory to the postmaster general to

582, 107 NYS 694. Where order for peti-

sustain a fraud order, his decision of the

tioner in summary proceeding is void for

question of fact upon which the order was

lack of jurisdiction, defendant may not en-

join its use as evidence in a law action,

used by the courts. People's United States Bank

since advantage of the defects may be taken

v. Glison (C. C. A) 161 F 286. Insufficient

when the order is offered in evidence. Id.

81. See post, SS 4A.

01. Political powers of county boards.

ute but does not show the proofs adduced.

Roberts v. Thompson \[Neb.\] 118 NW 106.

Wilth not enjoin opening and canvassing re-

85. But to compel payment by South

turns and declaring the result of an election

Canrolla dispenary commission. Fleisch-

tion to determine the location of a county

seat. Townsen v. Mersfelder \[Tex. Civ.

that the facts could not possibly support a

App.\] 109 SW 420. Injunction will not lie

fraud order. Appleby v. Cluss, 160 F 984.

to restrain the holding of an election.

Bill for injunction in effect charging that

Thompson v. Mahoney, 136 Ill. App. 403.

83. Legislative acts of city authorities not

offerers for commercial purposes with intent

subject to injunction on ground of extrava-

gance. Brummitt v. Ogden Waterworks Co.,

business is destructive of the armory, states

33 Utah, 285, 93 F 828. Equity will not

terence to enjoin the exercise of the power

of legislatures to fix rates for transportation of passengers and freight. Chicago,

tinction of passengers and freight. Chicago,

tinction of school systems and authorities,84 except to

etc., R. Co. v. Winnett \[C. C. A.\] 161 F 242.

Passage of ordinance which is in exercise

of legislative discretion will not be en-

jonted, Missouri & K. I. R. Co. v. Olathe,

156 F 624.

84. Discretion of city officers not con-

troillable by injunction on ground of mere

extravagance. Brummitt v. Ogden Waterworks Co., 33 Utah, 285, 93 F 828. Injunction

against use of armory hall for dancing and

## 12 Cur. Law.

**INJUNCTION SS 2C.**

the most frequent occasions for the intervention of equity being to protect taxpayers from an unreasonable increase of their burden by waste or illegal disposition of public funds,\*\* \*\* **or by the inearring of illegal debts** \*\* **or by making assessments therefor.** **\[**91**\]** **Entirely unauthorized interference with property rights may be enjoined.** **\[**92**\]** **Officers**

\*\*v. Deep River \[Howa\] 117 NWW 1078. Injunction against carrying out proposition to build school house under School Laws, 147, clauses 11, 12, where election on proposition is void. Thompson y. Mahoney, 136 Ill. App. 402. Injunction against acts of food commissioner in distributing bulletins condemning property of manufacturer, 147, and 151, respectively. In-entry 115 NWW 675. A suit for perpetual inspection is the proper remedy to prevent the collection of illeally leuded taxes from citizens of annexed territory. Luterloh v. Fayetteville \[N. C.\] 62 SE 758. Will enjoin illegal and unconstitutional tax levy. South-en R. Co. v. Mecklenburg County Corn's \[N. C.\] 61 SE 690; Jordan v. Logansort \[Ind.\] 86 NE 47. Where the sole question in proceedings by a county treasurer to assess property withheld from taxation was whether the property was exempt, and it was established beyond controversy that the property was exempt, the enforcement of a tax thereon might be enjoined. Bednar v. Carroll \[Iowa\] 118 NW 315. Where decision of state board in equalizing back taxes is void for lack of quorum to hear an appeal, a bill to enjoin enforcement of the judgment, is maintainable. Smoky Montain Lamad, Lumber & Imp. Co. v. Lattimore \[Tenn.\] 105 SW 1028.

\*\*88. Injunction against manicipality re-entaining it from cutting off a supply of water will only be granted to prevent irreparable injury or injuste. Anderson v. Berwyn, 135 Ill. App. 8. Drain commissioners may be enjoined from wrongfully over-flowing compliantants' land by constructing a new drain which empties into a stream above complainant's land, where drain does not traverse such lands and complainants are not parties to the drainage proceedings. Smafield v. Smith \[Mich.\] 15 Det. Leg. N. 487, 116 NWW 990. A enloonkeeper may enjoin country officers from prohibiting the eale of liquques pursuant to the result of an election, for if he used a writ of review he would be liable to prosecation for sales made, and further, the prosecutors appearing insolvent and the municipality not being liable, it might be impossible to recover damages. Hall v. Dunn \[Or.\] 97 811. As the landowner's remedy at law was ample, it was not erroneous to refuse to enjoin county commissioners from continuing a proceeding to establish a public road pursuant to Code, 136 520-522, in advance of the hearing provided for in 522 El. Hutchinson V. Lowndes County \[Ga.\] 62 SE 1048. No injunction against issue of bonds which will be void on their face. Streator v. Lingestl, 163 Cal.

**88.** **\[**91**\]** **As**

**88.** **\[**92**\]** \*\*Injunction will lie to restrain a municipal person in the past, and the amount of money is 147, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 200, 211, 222, 231, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274,may usually be enjoined from enforcing unconstitutional statutes where they act in a ministerial capacity only,98 but acts made mandatory by a valid statute cannot be enjoined.99 Courts may enjoin official acts to avoid a multiplicity of suits,99 and one may avoid the acts of an executive officer and enjoin its execution on the ground that it was issued in a case which was not within the jurisdiction of such officer,99 or that through fraud or a gross mistake of fact the officer fell into a misapprehension of the facts which caused him to act in a manner palpably wrong," or that it was issued in the absence of any evidence to sustain it, or upon facts found which do not sustain it, or that its issue was induced by any other error of law.99 Equity will not restrain the acts of authorized officers for mere informality or irregularity,99 but will enjoin acts done contrary to mandatory requirements of statute.1 Official acts within the proper scope of authority will be enjoined only in a clear case of illegality or fraud.2 The aid of equity cannot be invoked to declare in advance that certain acts of public officers proposed or threatened to be done in the future will, if performed, be illegal and void,2 and as a general rule official acts will not be enjoined until:

93. See SS 2B, infra, and SS 26, post. General discretion of attorney general of state regarding enforcement of laws when and as he deems fit, is not interfered with by an injunction restraining him from enforcing an unconstitutional statute. Ex parte Young, 209 U. S. 123, 52 Law. Ed. 714.

01. Where petition for removal of county seat has been filed, notice required by statute must be issued by auditor and he cannot be enjoined from so doing on ground that petition has been taken from his office and cannot be found. Evenson v. O'Brien \[Minn.\]

01. State v. District Court \[N. D.\] 115 NWV 675. Equity has jurisdiction of sult by irrigation company to enjoin boards of supervisors of counties through which its canal passes from enforcing rates which do not enable company to earn reasonable income, and to determine in single suit legality of such rates. San Joaquin & Kings' River Canal & Irr. Co. v. Stanislaus County, 163 F 567.

01. Postmaster general's fraud order. People's United States Bank v. Gibson \[C. C. A.\] 161 F 286.

01. Fraud order issued by postmaster general. People's United States Bank v. Gibson \[C. C. A.\] 161 F 286.

01. Fraud order by postmaster general. People's United States Bank v. Gibson \[C. C. A.\] 161 F 286.

01. In proceeding to establish drainage ditch, if county board possesses jurisdiction and authority to act in premises, injunction will not lie on account of mere irregularities in exercise of power conferred. Campbell v. Youngson \[Neb.\] 114 NWV 415. Irregularities and informalities in levies by school authorities cannot be questioned by bill in equity, and payment of tax warrants sold in anticipation of such levies. Gray v. School Inspectors, 231 Ill. 63, 83 NE 95. Eleven in case of perpetual lease, lesser to pay taxes, the assessment of taxes in the name of another upon the land and buildings erected by the lessee is not such error as to create a ground for having collection of taxes enjoined. City of Norfolk v. J. W. Perry Co. \[Va.\] 61 SE 867. Where change in boundaries of school district is made by some injury to the complainant is at least threatened.4 Equity will not interfere to enforce a public duty where no private right is involved,5 and a private party cannot enjoin a threatened wrong where the injury which he would sustain would be no other or different from that suffered by the community generally,6 but equity will restrain an attempted wrong when it clearly appears that in no other proceeding can public or private interests be fully protected, and the writ will issue at the instance of a private individual who shows that he may suffer financial injury if the contemplated wrong be not enjoined, even though it appears that part of the public may suffer in the same way.7 Mandatory injunctions are not granted where the only ground of equitable relief is the failure of the defendant to perform an independent public duty which he owes to the plaintiff individually as well as to others.8 Title to public office cannot be tried in a suit for injunction,9 but interference with an officer in the performance of his duties may be enjoined.10

(SS 2) \_D. Enforcement of statutes and ordinances.\_See 10 C. L. 256--Injunction will not, as a general rule, lie to enforce a municipal ordinance,11 especially where no private right is involved,12 but the legislature may establish such remedy,18 and it is held, even in the absence of statutory provision to such effect, that violation of building restrictions may, in some cases, be enjoined at the instance of a property owner.14 Injunction is the appropriate remedy for avoiding the enforcement of an illegal and unconstitutional statute or ordinance,15 where such enforcement will

Footnote 14: Here 1999 of a certificate of pub-

relations with a water company so as to

lic convenience and necessity issued pursuu-

bind itself to pay unreasonable rates or re-

ant to the railroad law, Laws 1892, p. 1895,

quire the payment of unjust charges, tax-

c. 676, & 59, is insufficient to warrant

papers affected directly as users of water,

junctive relief, but it must appear that pur-

or indirectly as taxpayers, may sue to enjoin

sount to certificate defendant is about to

enforcement of the ordinance, although

do something or threatening to do some-

tasse of others are proportionately raised.

thing harmful to plaintiff. Errie R. Co., v.

Ruchester-Corning-Elmira Trac. Co., 67 Misc.

Utah, 285, 93 P 828.

180, 107 NYS 940. Equity should not

S. To compel performance of quast public

entertain a bill for an injunction against

duty to furnish gas. Cox v. Malden & Mel-

a tax collector who threatens to seize and

rose Gaslight Co., 199 Mass. 324, 85 NE 180.

sell personal property except in rare cases

b. Harrison v. Stroud, 33 Ky. L. R. 653, 110

where the property is peculiarly valuable

SWY 825. Injunction cannot issue in election contest to prevent one holding certification damages. H. W. Metcalf Co v. Martin

cate of election from qualifying and dis-

\[Fla.\] 45 S 468. As general rule, injunc-

charging duties of office pending contest.

tion will not issue against passage of un-

lat. Public officer not in possession of office

authorized municipal resolutions or or-

is not entitled to injunction to enforce his

dinances, no one having cause to complain

right of possession. Lucas v. Futrall, 84

until some attempt at enforcement is made.

Ark. 540, 106 SWY 667.

Lee v. McCook \[Neb.\] 116 NW 955.

**10.** Injunction is proper remedy to pre-

5.\*\* Election of livery stable infringing no

private rights although contrary to or-

dimance. Mason v. Deterring \[Mo. App.\] 111

SWY 862.

G. Lee v. McCook \[Neb.\] 116 NWY 855;

Semones v. Needes, 137 Iowa, 177, 114 NWV

904. Validity of special assessments for

local improvements cannot be determined in

action brought by general taxpayer to re-

strain the authorities from making Im-

sprovement. Merritt v. Duluth, 103 Minn.

236, 114 NWV 758. Taxpayer cannot enjoin

the removal of public records temporarily

from the state for use In a federal court.

Dickinson v. Klingsbury \[Cal. App.\] 96 F

829.

001. Where statutes provided for the sale

of liquor in communities of certain size,

individual citizens of a city might enjoin

the retaining of names on the census roll

fraudently padded. Semones v. Needes,

187 Iowa, 171, 114 NWV 904. If the city

cracts an invalid ordinance regulating its

the question of the constitutionality of injure property rights,10 but only to the extent that the complainant will thus be injured.11 As in other cases, a proper case for equitable relief must be made out, the limitations upon the power of equity to interfere with the exercise of discretionary powers being the same as in other cases,18 and the grounds of equitable relief being the same, such as inadequacy of other remedies 19 and multiplicity of suits.20 Federal courts may enjoin the enforcement of unconstitutional state statutes and regulations,21 and for that purpose may enjoin officers empowered to enforce them.22 A federal court of first instance acting upon afflavits, which pronounces a state statute unconstitutional, assumes a grave responsibility justified only by most exceptional circumstances,23 and such an injunction should issue only in a clear case.24 The

a statute is properly raised in a suit to re-strain action under 1t. Sult to restrain vestion \[Tex. Civ. App.\] 111 SWV 1076.

seader of weights from condemnning a com- 20. Act provided for the furnishing of gas putting scale under Statutes 1907, p. 517, c. 535. Moneyweight Scale Co. v. McBride, 199 Mass. 503, 85 NE 870.

16. Plumbing regulations preventing a firm from securing the services of journey- \[Tex. Civ. App.\] 111 SWV 1076. Petition to re-strain enforcement of law on. ground that it would destroy business built up after period of years, and that it is unconstitutional, authorizes, as against a demurrer, relief in equity to prevent Irpraphable injury. Merehants' Exch. v. Knott, 312 Mo.

## 13 Cur. Law. INJUNCTION SS 2D.

equity jurisdiction of a federal court to enjoin enforcement of an unconstitutional state statute to protect the property rights of complainant from irreparable injury is not defeated by the fact that the means of enforcement provided by the act are by criminal prosecutions for its violation \[28\]. Equity will not usually interfere with the enforcement of municipal penal ordinances either by enjoining prosecutions thereafter \[26\] or by enjoining police interference \[27\]. Equity may, however, enjoin a seeming attempt to enforce the law which is in reality a continuous trespass \[28\], or where property rights are involved \[29\], or where an officer undertakes to construe a law ex parte and to enforce as thus construed \[30\]. Complainant does not lose his right to injunction because after being denied a preliminary hearing and pending final hearing he-complies with the statutory order to avoid penalties to which he would otherwise be liable \[31\]. Equity will not enjoin proceedings authorized by positive statute upon any other ground than the invalidity of the statute \[28\].

Act N. Y. May 20, 1908, to prevent waste of future and wax work shows on Sunday. Eden natural mineral waters, and prohibiting Musee American Co. v. Bingham, 110 NYS pumping of mineral waters, etc., is not so 210. Cannot enjoin police from interfering clearly unconstitutional or beyond police with Sunday roller skating. Olympic Athl-powers of state as to justify a federal court in granting a preliminary injunction to re-stanra its enforcement at suit of a land-owner engaged in pumping gas for sale from wells drilled into rocks in his lands, 213. VIII not enjoin police from interfering with the giving of a moving picture show on Sunday, Moore v. Owen, 58 Misc. 332, 109 NYS 585. Police interference with moving picture show. Shepard v. Bingham, 110 NYS 217. Requiring license for vehicles and regulating use of street for public hack stands. Klassinger v. Hay (Tex, City, App.) 113 SW 1005. VIII not enjoin board of health from prosececting for slaughtering, etc., poul- tings. Central of Georgia R. Co. v. McLen-den, 157 F 961.

25. Lindsley v. Natural Carbonic Gas Co., 162 F 954.

01. Gonyo v. Wilmette, 133 Ill. App. 645. Equity generally has no power to enjoin threatened prosecutions under municipal ordinances or state laws. Ordinance against maintaining any cemeterless except a certain one named. Bryan v. Birmingham (Ala.) 45 S 922; Canon City v. Manning, 42 Colo. 144, 95 P 537. Equity will not interfere to prevent anticipated criminal prosecutions, especially where ordinance has been found valid as a police regulation. Rider v. Leatherman, 85 Ark. 230, 107 SW 986.

01. Equity will not use the enforcement of municipal penal ordinances either by enjoining prosecutions thereafter \[26\] or by enjoining police interference. Equity may, however, enjoin a seeming attempt to enforce the law which is in reality a continuous trespass \[28\], or where property rights are involved \[29\], or where an officer undertakes to construe a law ex parte and to enforce as thus construed \[30\]. Complainant does not lose his right to injunction because after being denied a preliminary hearing and pending final hearing he-complies with the statutory order to avoid penalties to which he would otherwise be liable \[31\]. Equity will not enjoin proceedings authorized by positive statute upon any other ground than the invalidity of the statute \[28\].

01. Equity will not enjoin proceedings authorized by positive statute upon any other ground than the invalidity of the statute \[28\].

01. Hall v. Dunn \[Or.\] 97 P 811.

01. Where a penal ordinance forbids the sale of liquor, equity will enjoin the officers of the city from declaring ex parte that the sale of liquor for social enjoyment by mem-bers and guests of a club is a nuisance and attempting to prevent same. Canon City v. Manning, 43 Colo. 144, 95 P 537.

01. In a suit to enjoin the enforcement of national ratlroad rates as fixed by a railroad commis-sion, complainant's right to a preliminary invention or to relief on the merits is not prejudiced by the fact that, being denied preliminary injunction on its ex parte application, it put into effect the rates prescribed by the order, being constrained thereto by the statutory penalties to which it would otherwise be liable. Central of Georgia R. Co. v. McLendon, 157 F 961.

01. Will not enjoin a multiplicity of Ilens on the ground of overpayment. Aimee Reality Co. v. Haller, 128 Mo. App. 66, 106 SW 588.

(SS 2) \_E. Exercise of right of eminent domain.\_See 10 C. L. 257--An injunction will issue to enforce the constitutional right of a property owner against dangerous aggression, under the guise of the exercise of the right of eminent domain,\[38\] and damages may be awarded for the trespass,\[34\] unless as an alternative such damages as would be awarded in condemnation proceedings are paid.\[38\] The rule that the taking and injuring of private property for public use will not be restrained if compensation in damages can be made and defendant is willing to make such compensation and a serious injury will result from the issuance of the injunction is confined in its application to takings by public service corporations.\[39\] A property owner may be estopped to complain in equity of the violation of his rights.\[87\] A property owner will not ordinarily be enjoined from resisting a trespass upon his property in order that the trespasser may have time to ascertain the damages to be paid,\[38\] but in an action to enjoin condemnation of land, it is not error to admit testimony of the condemner that he sought to purchase the land sought to be condemned but failed.\[39\]

(SS 2) _F. Acts affecting rights in highways and public or quasi public places.\[39\]_

10 C. L. 258--A municipality may sue to restrain injury to or encroachments upon,\[40\] or obstructions\[41\] of highways under its care and charge, where there is no adequate remedy at law.\[42\] An injunction against a street obstruction may issue at the instance

SS3. In absence of consent, tacit or express, it is well settled in Minnesota that, without compensation first made, entry by railroad company upon lands with intention to permanently appropriate them is unlawful and will be restrained. McCord v. Eastern R. Co., 136 Wis. 254, 116 NWV 845. In action against railroad company for damages to property, by reason of elevation of its tracks in front of said property and operation of same, plaintiffs were entitled to decree enjoining operation of such trains until payment of any damages recovered. Anderson v. New York Cent., etc., R. Co., 58 Misse. 72, 110 NYS 232. Where statute provides that one taking waters from stream must give bond to riparian owners to secure payment of any damages, a riparian owner may enjoin use of water from stream until water company executes payment of damages as provided by statute. Bland v. Tipton Water Co. \[Pa\]-71 A 101. If in condemnation proceedings an attempt to condemn more than is necessary is made, owner may enjoin condemnation of unnecessary part. Pledmont Cotton Mills v. Georgia R. & Elec. Co. \[Ga.\] 62 SE 52.

84. Duncan v. Nassau Elec. R. Co., 111 NYS 210.

01. Laying of tracks in a street. Duncan v. Nassau Elec. R. Co., 111 NYS 210. One using to enjoin maintenance of elevated railroad In street in front of his premises, and for damages for past maintenance is entitled to no greater relief than he would obtain in condemnation proceedings. Smyth v. Brooklyn Union El. R. Co. \[N. Y.\] 85 NE 1100.

01. City of Paterson v. East Jersey Water Co. \[N. J. Eq.\] 70 A 472.

01. Where owner consented to laying of tracks in highway and made no objection to construction of road. Maust v. Pennsylvania, etc., R. Co., 219 Pa. 58, 69 A 80. In action to enjoin street railway from operation of line, where abutting owner had told de 13 Cur. Law. INJUNCTION SS 2G.

of a private person where he is or will be specially damaged," but not otherwise,44 and these principles apply also in the case of abandonment of a highway.45 An obstruction cannot be enjoined by an adjacent landowner where the place obstructed is not a public one, the landowner having, furthermore, no private rights therein.46 An injunction may issue even though the title to property is involved.47 The fact that a complainant summarily and illegally abated an unlawful obstruction of a public alley would not justify the denial of an injunction to restrain further threatened obstructions.48 Highway commissioners may be restrained from opening a road where the petition thereof does not confer jurisdiction.49 In an action to enjoin repeated trespass for traveling over a discontinued highway, evidence that another highway which was open and might have been used was not regularly laid out was properly rejected.50 In enforcing, as against a municipality, the right to use streets for a particular purpose, the court may impose terms to protect the rights of the municipality.51

(SS 2) G. \_Acts of quasi public and private corporations or associations.\_See 10 c. L. 268--The internal management of a corporation will not ordinarily be interfered with by the court at the instance of a minority stockholder,52 but the rights of a stockholder will nevertheless be protected by injunction from injury by illegal acts on the part of the corporate officers.53 A bona fide purchaser of corporate stock may

43 Where manner of construction of same service as before, Schmidt v. Nagel, street railway and use to which it is put destroys practical usefulness of street to abutting owners, they have no adequate familiarity's land abuts upon street, for it is injunction, especially where occupation of street is unlawful. Swinhart v. St. Louis & _providing_ for compensation for takings for public use. Southern R. Co., 207 M. 423, 105 SWV 1043. One obstructing public highway, thereby preventing its use by public at places of encrachen-enjoin acts of balance of board in voting ment and causing special damages to another, is liable in special damages and may also be enjoined from maintaining such obstruction. Barnes v. Midland R. Terminal Co., 110 NYS 44. C. 545. Abutting property owners may enjoin the unreasonable use of a highway by a railway company. Facts held not to show the unreasonable interference. Foudry v. Dangles over land. Barnes v. Midland R. St. Louis, etc., R. Co., 130 M. App. 104, 109 SWV 80. Abutting owner may restrain street railway company from maintaining sliding on his property where street railway has restrained, even if title to land is in dispute, by ordinance to construct its railway route, and defendant is entitled to a trial of that question at law, and even though he ler, etc., R. Co., 220 Pa. 612, 69 A 1047.

44. Injunction will not lie on petition of erral Bath Co. v. Stroh Brew. Co., 151 Mich.

property owner against the connecting of buildings on opposite sides of street by bridge twenty feet above pavement, where heres and egress of plaintiff are in nowiles impaired, and injury which he will sustain, if any, is not different in kind from that suffered by the public at large. Offutt v. Roth Packing Co., 11 Ohio C. C. (N. S.) 357.

45. To enjoin abandonment of public street, plaintiff must allege and show a damage different in kind and not merely in degree from that of the public generally. Petition alleging diminution in value of lots insulin-cient. Southern R. Co. v. Albes \[Ala.\] 45 S 234. Although authority of common coun-cl all under city charter is not absolute as, to location, closing, etc., of alleys, a contemplated change in an alley will not be enjoined where, as a means of interest and egress, the alley as changed will furnish the sue in equity to compel the corporation to enter the assignment upon its books and to issue a new certificate therefor.\[54\] Equity has no inherent power to try disputed title to corporate office and enjoin one in possession from the exercise of its functions.\[55\] In some states an injunction is the statutory remedy for usurpation of corporate franchises,\[56\] but in the absence of statute such a remedy is not available,\[87\] and, in any case where a statute authorizes injunction against certain acts of corporations, it will not be extended by the courts.\[58\] Equity will not, in the absence of fraud, interfere with the enforcement of by-laws, rules and regulations of beneficial or other associations,\[59\] but will protect property rights from injury or forfeiture under invalid regulations.\[60\]

(SS 2) \_H. Breach or enforcement of contract or trust.\[See 10 C. L. 259\]\_An injunction may, in a proper case, issue against an apprehended breach of contract,\[51\] where

corporation from changing its artcles so as to change its location, where defendants contend for their right to make such change at a called meeting. Bobzin v. Gould Balance Valve Co. \[Iowa\] 118 N70 40. A circuit court of the United States, other requisites to the exercise of jurisdiction being satisfied, will enjoin de facto equally with de jure officers of a corporation from perpetrating, facilitating, or permitting violations of law to the detriment of innocent stockholders who have no adequate remedy at law and are unable to induce the corporation to adopt effective measures for their protection. Morrell v. Brooks & Son Co., 164 F 501.

54. No remedy at law. Everitt v. Farmers' & Merchants' Bank of Elm Creek \[Neb.\] 117 N70 401.

01. Office of director. Moir v. Provident Sav. Life Assur. Soc., 112 NYS 57.

01. Remedy, under St. 1906, p. 346, c. 312, its exclusive. Attorney General v. New York, etc., R. Co., 197 Mass. 194, 83 NE 408.

01. P. L. 1871, p. 1386, does not authorize determination of charter powers in conjunction proceedings. Myersdale, etc., R. Co., v. Pennsylvania, etc., R. Co., 219 Pa. 558, 69 a 82.

01. While P. L. 1871, p. 1380, has been given liberal construction in attempt to reach equites between rival street railroad companies, it has not been and cannot be extended so as to authorize determination of charter powers or forfeiture thereof. Myersdale, etc., R. Co. v. Pennsylvania, etc., R. Co., 219 Pa. 558, 69 A 92. Does not authorize injunction by individual. Id.

01. Complaminant had been expelled by lower trbunal on order but case had not been tried by higher tribunal as required by by-laws. Camp No. 6, Participa Sons of America v. Arrington, 107 M&A, 319, 68 A 548. Equity will not enjoin the expulsion of a member of an association not organized for pecuarray profit for violation of the rules and by-laws, the remedy, if any, being at law. Allen v. Chicago Unptakers' Assur.

232 Ill. 458, 83 NE 952. Where member of fraternal benefit society agreed to abide by regularly made amendments to constitution and by-laws, injunction wili not lie to prevent enforcement of such amendment,\[51\] where

56. Where members of employer asso-chained party do not have been asked to be able to be 12 Cur. Law. INJUNCTION SS 2H.

there is no adequate remedy at law.\[62\] There must be a valid and subsisting contract between the parties,\[68\] susceptible of specific enforcement.\[64\] Negative or restrictive covenants, provided they are legal and valid,\[65\] may be enforced by injunction against the violation thereof.\[66\] Breach of contract for personal services usually will

Kissel v. St. Louis, etc., R. Co., 111 NYS 965.

Whenel v. Baltimore & O. R. Co. \[Md.J 69\] Where a lessee of privilege of carriage serv- 1ce for hotel shows clearly his rights in 65. Contract in restraint of trade will not premises and invasion thereof by lesser, injunction pendente life will be granted in 10. The party in favor of whom given. Taylor Robert P. Murphy Hotel Co., 112 NYS 915.

Iron & Steel Co. v. Nichols \[N. J. Err. & Breenen not enjoined: No error in refusa- (Appl.) 63 A 186. Equity will not enjoin a ing to enjoin breach of contract as to operation of street cars over plaintiff's land.

in a competing business in breach of contract.

Virginia-Carolina Chemical Co. v. Rome R.

Simms v. Patterson \[Fla.\] 46 B 91. Equity & Light Co. \[Ga.\] 61 SE 1116.

will not enforce agreement made between 62. Threated revocation of contract will not be enjoined where party seeking should not engage to work for anyone in 63. Installed by the party in favor of whom given. Taylor

such revocation is threatened at time when 64.

years after termination of employment. contract is peculiarly valuable, latter consideration at 64. Restriction as to sale of liquor. Gayer

ages. Hess v. Roberts, 124 App. Div. 328, 108

NYS 894. No injunction against sale of 64.

Vendor not to trade in vendee's territory.

pledges where there is no allegation that defendants is insolvent or that property threat- 65. Contract not to enter into commended to be sold has no ascertainable value, it

peting ice business for one year within not appearing that there is no adequate rem- 65. American Ice Co. v. Lynch

edy at law. Howley v. Press, 111 NYS 1080.

(N. J. Eq.) 70 A 138. Claim for injunction

Where school board authorized committee

against breach of agreement not to engage to erect school building and to procure

in business of extracting teeth by use of plans under arrangement for competitive

examination with agreement to select plan

from those presented, losing competitors to be paid a certain sum, and plans were sub- 65.

will not foundation where such method

mitted and board then proceeded to selection of architect under different plan, an action at law for breach would afford no adequate remedy and a bill to compel board

to act would lie. Palmer v. Pittsburg Board

of Education, 220 Pa. 568, 70 A 433.

63. Length of time of contract was un- 65.

certain. Platte County Independent Tel. Co. \[Neb.\] 116

v. Leigh Independent Tel. Co. \[Neb.\] 116

NNV 611. Evidence held to establish allegations of answer that contract as alleged in bill was only part of contract, which in its entirety was in violation of public policy and would not sustain suit in court of justice. Camors-McConnell Co. v. McCConnell,

163 F 638. Oral agreement, without consideration, adding possession of property in 65.

and it is immaterial that right has no sub- 65.

perculty without obligation upon party

receiving possession to retain same, will

not be enjoined in face of legal decision

that legal relation of parties is at an end

and that owner is entitled to possession.

M. Redgrave Co. v. Redgrave \[N. J. Eq.\] 71 A 147.

64. Gillespie v. Fulton Oil & Gas Co., 140

Bll. App. 147. Bill praying injunction to en- 65.

force covenant of lease equivalent to bill

for specific performance. Launta v. Vogt,

133 Ill. App. 255. Injunction to restrain

breach of contract is a negative specific

performance, and jurisdiction does not attach unless contract is one which might afirmatively be specifically enforced. Fox v.

Filigmatrick, 190 N. Y. 259, 82 NE 1108.

Where injunction if granted would accomplish all that decree for specific performance could effect, the principles governing bill for specific performance control.

Witcup & Holmes Co. v. Boyce, 112 NYS 874.

of 68. Restriction as to sale of liquor. Gayer

w. Auers, 132 Ill. App. 520. Covvenant by

vendor not to trade in vendee's territory.

New York Phonograph Co. v. Davegn, 111

NYS 363. Contract not to enter into commended to be sold has no ascertainable value, it

peting ice business for one year within

not appearing that there is no adequate rem- 65. American Ice Co. v. Lynch

edy at law. Howley v. Press, 111 NYS 1080.

(N. J. Eq.) 70 A 138. Claim for injunction

Where school board authorized committee

against breach of agreement not to engage

to erect not be enjoined. \[97\] Where, however, the contract relates to personal services of a special unique or extraordinary character which can be performed by no one else, and there is a negative covenant, the court sometimes enforces the negative covenant by injunction. \[98\] A covenant restricting the use of land will be enforced by injunction, although not of the class technically running with the land. \[99\] The disclosure of trade secrets \[100\] in violation of contract will be enjoined. \[11\] Difficulty in detecting all violations of a contract and the alleged insolvency of the defendant do not make out an equity for an injunction upon an original bill. \[12\]

(SS 2) _I. Interference with property, business, or comfort of private persons. \[98\]_

10 C. L. \[262\] Equity will enjoin the unlawful interference with one's business, \[73\] but only where some injury has been inflicted on the person or some right of property has been invaded, destroyed or prejudiced, \[74\] or where such acts are threatened. \[75\] By statute in New York one may restrain the use of his portrait for advertising. \[76\] Ordinarily an adjacent property owner, suffering injury in his proprietary rights from an enterprise for the public benefit under a quasi public charter, is restricted to an action for damages, or some statutory method of redress and cannot enjoin the owner of the enterprise from carrying it on. \[71\] The unreasonable use of water in a stream to the injury of another riparian owner may be enjoined, \[98\] despite the fact that the 12 Cur. Law. INJUNCTION SS 2I. 173 plaintiff cannot prove the extent of his injury with absolute precision." The flooding of lands may also be enjoined." Further, miscellaneous instances of the protection of the property and comfort of private persons are given in the note."

\_Trade and firm name.\_See 10 C. L. 268--Equity will enjoin an unfair use of trade names, labels, etc.," but only when such use is likely to deceive the public or purchasers of ordinary caution." Use of a trade mark or name to describe the lawful use of an article lawfully acquired will not be enjoined." In a suit to enjoin the use of a trade name and a conspiracy to deprive the plaintiff of its use, there can be no relief where the right to and ownership of the name is in defendants, or one of them." One who is himself practicing what amounts to a fraud on the public cannot

'''
1zing it to run its plant, may enjoin driving company from interfering with its riparian rights by storing water, causing artificial pinitius premises. Mentel v. Wall \[Coo.\] freshets so as to compel plaintiff plant to remain idle. Kalami Elec. L. & P. Co. v. '''

with one's right to hunt on the navigable kalama Driving Co., 48 Vdash. 612, 94 P46.

water of a stream. Alisonv. V. Munos-

In suit to restrain diversion of water of stream to injury of plaintiff's riparian rights, question whether uniafulness of the proper remedy for continuing partner, diversion depends on proof of actual percepcep-

where retiring partner interferes with his tribe damage, if diversion is made permanent and possession of mail addressed and for purpose of sale, is one the solution of to old firm by claiming an interest therein which depends on decision of courts of this state which control it, and hence plaintiff as well.

withhold it from delivery. Pedretti v. preliminary condition to equitable relief will

Pedretti, & Ohio N. P. (N. S.) 113. One

causing and permitting sewage to flow into reaffirm right already settled as matter of law. City of Paterson v. East Jersey Water Co. \[N. Y. Eq.17 & 472.

70. Where one sunk well on his land and pumped underground water for his use, thereby interfering with rights of another, latter is not limited to action for damages but may enjoin continuous of wrongful act. Varding Canon Water Co., V. Verdugo, 152 Cal. 655, 93 P 1021. Where lower ripa-

rian owner may restrain unlawful diversion though he fails to show actual diminution, where continuance of diversion may

not submit to trepassage and bring elecment.

serption and defendant has made long term contracts to supply water. City of Paterson v. East Jersey Water Co. \[N. J. Eq.1\]

Join Interference with gas meters causing damage and leaks by company attaching apparatus to check flow of gas but cannot in-

constitutes permanent and continuing ob-

terfires with property owner's right to have

structure to free use by owner, and is

wrong which equity will prevent by injunc-

tion. United States v. Rickey Land & Catt

sty 91. Employive of telephone company may

tie Co., 164 F 486. Injunction against di-

version of natural watercouse by land-

tion as to use of telephone exchange, es-

owner, effect of which will be to cause

stream to overflow land of lower propriter. Although act is not completed and damage

which will result therefrom has not been

inflicted. Wood v. Craig \[Mo. App.\] 113 SW 676.

81. Attorney may be enjoined from paying excessive charges from amount recovery. After recovery for personal injuries

client sought to enjoin payment of phy-

sician's bills. Falardeau v. Washburn, 199

Masa. 853, 855 NE 171. Equity has jurisdicd-

tion to enjoin illegal sale of land to prevent cloud on title but will not interfere

where proceeding or instrument on which claim is asserted is void on its face, or

where threatened proceeding will neces-

arily show on its face that it is void.

Brizolara v. Fit Smith \[Ark.\] 112 SW 181.

enjoin unfair competition. \[88\] Where one acquires by use the right to use a name, whether an individual, partnership or corporation, equity will protect its use by injunction. \[87\]

_Copy rights, trade secrets, literary property, and the like. \[See 10 C. L. 264\]_-Equity will protect trade secrets by injunction as against those trying to disclose or use them in violation of confidential relations \[88\] or obtained by fraud or bad faith, \[90\] especially where there is a written contract not to reveal them. \[90\] This doctrine is not confined to secret processes, but includes the use of names of customers. \[91\] Where one is not only making use of information gained through his employment with the complainant to win complainant's customers for a competitor but is also making fraudulent misrepresentations of fact, the complainant has no adequate remedy at law. \[92\] Any person, however, lawfully acquiring knowledge of such secrets, not patented, may use them, if the manner of obtaining such knowledge and the use thereof does not constitute a breach of good faith. \[93\] Equity will enjoin the infringement of a patent, irrespective of the fact that the patented device has never gone into commercial use, \[94\] and of its nonuser, \[95\] but a preliminary injunction should not be granted in a patent case without a showing that the patent has been adjudged valid by a court of competent jurisdiction or that its validity has been generally acquiesced in by the public or has been admitted by the defendant. \[96\] No notice of patent rights is necessary under the statute where the object is merely to secure an injunction to restrain the defendant from

**86. Leslie E. Keeley Co. v. Hargreaves, \[fair competition affirmed, but, especially as 236 111. 316, 86 NE 132. Evidence reviewed. Id.\] parties do not agree as to completeness of ST. For many years Carthusian monks record, full reservation made for final hear-manufactured a liquuer called Chartreuse, \[C. C. A.\] 162 F 649.**

**Theorem 1.1.5**: \_Property * 12 Cur. Law. INJUNCTION SS 2L.

future infringement."7 State courts have no jurisdiction to enjoin infringements of patents." Where a decision in favor of the defendant gives him the right to make and sell the article covered by the patent, a subsequent injunction by the complainant against the defendant's customers is a violation of the first injunction," but this rule does not preclude an injunction in one circuit against the infringement of a patent declared invalid in another circuit; the parties defendant being different," especially where the rights of the defendant in such other circuit are protected by a epecial provision in the restraining order." A bill to restrain the alleged violation of a license contract under a patent states no ground for relief under the patent laws, and a federal court is without jurisdiction to grant relief thereon." An injunction will not issue against improper use of copyrighted matter where the complainant's injury is comparatively insignificant and he has a remedy at law."

\_Waste.\_See 10 C. L. 264.--Equity will enjoin threatened waste by a tenant for years," and one in possession under claim of title is entitled to an injunction pending adju-dication of his title to prevent waste and injury by the defendant." Equity will not grant an injunction to restrain waste at the suit of one tenant in common, copar-cener or joint tenant against another except in special circumstances, as where the waste is destructive to the estate or where the respondent is sworn to be insolvent."

\_Incorporal property.\_See 10 C. L. 264.--An injunction may issue to protect incorporal property right."

\_Easements and rights of way.\_See 10 C. L. 264.--Equity will restrain interference with the enjoyment of an easement where the right is clear and certain and an injurious interference is threatened, even though the easement has not been established at law." In determining what will be enjoined as an obstruction, the questions are what use can the complainant reasonably be expected to have occasion to make of it, and what right has he to such use?" Grade crossings, whether private or public,

- 97. Morton Trust Co. v. American Car & Foundry Co., 161 F 546.
- 98. Eastern Extracting Co. v. Greater New York Extracting Co., 110 TXS 788. Bill to enjoin secret process which, while employ-ing some of the elemental ideas covered by patent, is unpatented and much superior to patented process, is cognizable by state court. Id.
- 99. Kesser V. Eldred, 206 U. S. 285, 51 Law. Ed. 1065.
- 1. Consolidated Rubber Tire Co. v. Diamond Rubber Co. \[C. C. A.\] 157 F 677; Id., 162 F 892.
- 2. Consolidated Rubber Tire Co. v. Diamond Rubber Co. \[C. C. A.\] 162 F 892. A decree enjoining Infringement of a patent may provide that it shall not apply to a sale by defendant of articles made by the defendant in another suit in another juris-dication in which the patent was adjudged would; but this proviso will not be extended to cover other articles made in the latter circuit where the question of such right is not directly involved. Id.
- 3. St. Louis Street Flushing Mach. Co. v. Sanitary Street Flushing Mach. Co. \[C. C. A.\] 161 F 725.
- 4. Equity will not enjoin Improper use of a copyrighted book published by a mercantile agency with respect to a few names by a corporation engaged in publishing a similar work limited to a special trade,
- where the latter has 25 per cent more names and 6 times as much information as
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- are so dangerous that equity will protect the right to use them only when such right is so clear that the chancellor must recognize it.\[13\] One cannot have an injunction, where no easement has been acquired, merely because he may suffer damage.\[12\] A littoral owner, though not entitled to construct a whart out of tide lands in front of his property is entitled to enjoin the erection of a structure interfering with his right of access.\[13\] The application of the maxim "de minimis non curat lex" as a defense to an injunction against the diversion of water of a stream depends upon the condition of stream, whether the water is at its lowest flow or at its flood stage.\[14\] Restrictive covenants may create easements enforcible by injunction.\[13\] A street railroad company may by injunction protect its easement in streets.\[16\] One seeking to enforce an easement must himself have so acted as to entitle his claim to the consideration of equity,\[17\] but relief will not be denied on account of violations by other parties,\[18\] or even on account of a violation by the complainant, where such violation is not a substantial one.\[19\]

the way, but what use can he reasonably be expected to have occasion to make of it. Wills not enjoin construction of a bay window 11% ft. above the ground. Bitello operation of furnace: Complainants secured v. Lipson, 80 Conn. 497, 69 A 21. Where an existing easement to erect telephone lines is incidental to the maintenance of a water plant will be but slightly increased by per-milting the erection of additional line for commercial uses, this will not justify the Defendants continued to operate their furness, trying all possible means to prevent the construction of such additional lines, esaged to a certain extent. Complainants soon and use of the land were expressly reserved by the grant to the water company subject only to that grant. North-eastern Tel. & T. Co. v. Hepburn \[N. J. Err. & App.\] 69 A 249.

11. McKinney v. Pennsylvania R. Co. \[Pa.\] 70 A 946.

01. Where upper owner constructs dam for temporary use which does not affect rights of lower owner and which may be abandoned at any time, lower tenant acquires no right to continuance of structure and cannot enjoin change. Lake Drummond Canal & Water Co. v. Burnham \[N. C.\] 60 SE 650.

01. Construction of a street across tide land. McCloskey v. Pacific Coast Co. \[C. C. A.\] 160 F 794.

01. City of Paterson v. East Jersey Water Co. \[N. J. Eq.\] 70 A 472.

01. See ante, $ 2H.

01. Injunction under P. L. 1871, p. 1360, against use of right of way by rival street railroad company, does not necessarily involve determination of charter power, though charters of both companies cover practically same route. Myersdale & S. St. R. Co. v. Pennsylvania & M. St. R Co., 219 Pa. 558, 69 A 93. Charter powers not involved in such case where compliant company is in possession of and has undoubted right to use street and defendant invades such right. Id. See ante, $ 2 G.

01. Injunction will not lie to enjoin neighbor from making use of adjacent alley, on theory that easement had been abandoned by nonuser and also estoppel, where abandonment was not shown and complainant, when purchasing, had made no injuries. Brunntaver v. Talty, $1 App. D. C, 134.

01. 19. Adams v. Howell, 58 Misc. 435, 108 NYS 945.

01. 20. NOTE. Scope of injunction restraining wisdom 11% ft. above the ground. Bitello operation of furnace: Complainants secured v. Lipson, 80 Conn. 497, 69 A 21. Where an injunction perpetually restraining de-existing easement to erect telephone lines is incidental to the maintenance of a water plant will be but slightly increased by per-milting the erection of additional line for commercial uses, this will not justify the Defendants continued to operate their furness, trying all possible means to prevent the injuries complained of. The dust still escaped to a certain extent. Complainants now petition that the directora and officers of the defendant corroboration be adjudged in contempt of court. Held, that the peition be refused. Sullivan v. Jones & Laughlin Steel Co. \[Pa.\] 70 A 775. Mestre-zat, J., In dissenting, said: "The defendants are still causing their furnaces to be operated so as " " " to be emitted from them clouds of ore dust, " " causing substantially the same kind of injury, though not as great in extent." The court refused to grant the petition because the acts complained of were not clearly within the inhibition of the injunction, saying no injunction would have issued had there been no other injuries than the ones objected to in the petition. The following cases accord in principle: Colluid Co. v. Collar & Cuff Co., 24 F 586; Woodruft v. Gravel Co., 45 F 129; Verplanck v. Hall, 21 Mich. 470; Porous Plaster Co. v. Seabury, 48 Hun. 620, 1 NY8 134. The majority opinion is most practical. The acts en-joined were such as brought exceptional injuries to complainants. These had ceased. The damage objected to in the petition was such as must come to all who choose to live in a manufacturing centre.--From 7 Mich. L. R. 266.

Where one puts his property to such a use that it emits offensive, poisonous or noxious fumes and vapors, producing dangerous to health and injury to adjoining property, he may be enjoined from continuing this injurious use of his property. Appeal of Pennsylvania Lead Co., 66 Pa. 116, 4 12 Cur. Law. INJUNCTION SS 2I.

\_Nuisances.\_See 16 C. L. 125.--In a proper case an injunction will issue against the maintenance of a nuisance.20 Equity will abate a public nuisance injurious to public safety and good morals, and may perpetually enjoin the owners of property from maintaining and conducting it in the future.21 The rule that property rights must be involved does not apply to proceedings to enjoin a public nuisance as such,22 but a private person cannot restrain a public nuisance unless he sustains damages different in kind from those sustained by the public generally.23 The thing complained of need not be a nuisance per se24 or exist in praesenti,25 nor is it essential that the complainant's rights shall have been established at law,26 though all doubt as to the existence of the nuisance may be settled by a finding of a court of law.27 Where the fact of the existence of a nuisance has not been established at law, an injunction will not lie unless the allegations of the bill are proved by clear and satisfactory evidence.28

of real property who wrongfully causes

that sustained by public at large from noxious vapors to rise on the land of an-

stable, and no interference with property

other is liable therefor the same as if such

rights. Oehler v. Levy, 139 Ill. App. 294.

vapors had been wrongfully caused to rise

Facts alleged as to erection of livery stable from his own land. Garland v. Aurin, 103

held sufficient to show special injury, and

Tenn. 555, 53 SW 940, 76 Am. St. Rep. 699,

fact that structure would not be nuisance

48 L. R. A. 862.--From 123 Am. St. Rep. 575.

par se was immaterial. Mason v. Deiter-

XL State v. Canty, 207 Mo. 439, 105 SW

ing \[Mo. App.\] 111 SW 862. Where hotel-

1078. Wall eight feet high, constituting

keeper is injured by vibrations and noises

part of stoop and entrance to residence.

city street as yard. Galveston, etc., R. Co.

NYS 641. Where dealer conducting saloon

v. De Grorf \[Tex. Civ. App.\] 110 SW 1006.

business keeps open in violation of code,

hls business thereupon becomes a nuisance

and at grade in such manner as to cause

and so continues though he ceases to violate

drains to fill up and turn surface water into

late law, and hence suit to enjoin business

middle of street whence gullies have formed

lies at any time after violation. Hammond

n front of plaintiff's property materially

v. King, 137 Iowa, 648, 114 NW 1065.

interfering with access thereto, continuing

22, State v. Canty, 207 Mo. 439, 105 SW

nuisance is created for which there is no

1078.

adequate remedy at law and as to which in-

junction will lie. HaN. P. C. C. & St. L. R.

Though matter is not nuisance per se,

Co., 11 Ohio C. C. (N. S.) 97.

where it is clearly shown to be a nuisance

24. Mason v. Deitering \[Mo. App.\] 111 SW

in fact not merely greater in degree than

82. Under code abolishing distinction

that of general public, but special in char-

twein law and equity actions, a complaint

acter, it may be enjoined at the suit of

although that defendant is maintaining

individual. Caskey v. Edwards, 128 Mo.

bowning alleg causing much noise and im-

App. 237, 107 SW 37.

Noe special damage: Where railway tracks

are laid across a street and at a grade

constitute a nuisance per se, because fur-

which raises grade of street at that point,

inconvenience to dealer in coal and sand

of alleg's operation at unreasonable hours,

located in same square, who is obliged to

etc. Page v. Pratt Institute, 113 NYS 854.

haul heavy loads over obstructions thus

created, is of the same kind as though dif-

prehend the creation of a nuisance, and de-

ferent in degree from, that suffered by gen-

fendant threatens it and has the power to

eral public. Hall v. P. C. C. & St. L. R.

commit it, injunction will issue. Caskey v.

Co., 11 Ohio C. C. (N. S.) 97. Where law-

ful use of street by railroad resulted in

Facts alleged in regard to erection of a

noleses and vibrations caused by such user

in making up trains, switching, etc. Gal-

to show that a nuisance would reasonably

veston, etc., R. Co. v. De Grorf \[Tex. Civ. App.\] 111

Appl.) 110 SW 1006. From unavoidable

noles resulting from operation of feplant

26. Prior determination at law is unnec-

under municipal permit as provided for by

cessary to maintenance of suit to enjoin a

cods. Le Blanc v. Orleans Ice Mfg. Co., 121

nuisance caused by stabling of horses ad-

La. 249, 46 S 226.

Special damage: Where an unlawful act

234 Ill, 595, 85 NE 271,

is of special and particular irreparable hurt

37. A judgment of conviction

\*\*

**As in other cases, it must appear that there is no adequate remedy at law** 28 \*\*and that the injury is or will be irreparable.\*\*30 \*\*In an action to enjoin a nuisance, it is no defense that the nuisance is located in the most convenient place for the purposes of the nuisance,\*\*31 \*\*not is it a defense that the business is conducted in reasonable manner, employing all the latest devices.\*\*32 \*\*Both lessee and lessor may be enjoined where the latter knowingly and willfully permits a nuisance to be conducted on his premises by the former.\*\*33 \*\*The statute of Utah authorizing a court in its discretion to refuse an injunction in a suit to abate a nuisance, upon defendant's giving a bond to pay all damages, applies only to preliminary injunctions, and does not confer the power to perpetuate a nuisance for all time, amounting to the taking of private property merely upon the giving of a bond.\*\*34 \*\*_Trespans._****See 16 C. L. 156****--A single trespans, temporary in its nature, will not usually be enjoined,\*\*35 **but if continuous in its nature, if repeated acts of trespans are done or threatened, the entire wrong will be enjoined**36 **if it is accompanied by such peculiar circumstances as will make the injury irreparable** 37 \*\*or will avoid a multiplicity of suits, despite the fact that no irreparable damage is shown.\*\*38 \*\*If defendant is not pecuniarily responsible, an injunction should be granted.\*\*39 \*\*No action will lie where there is an adequate remedy at law,**30 **and so where a bill alleges a continuous** 29**. Randall V. Freed \[Cal.\] 97 P 669. Where continuing trespans and constantly aeru-plaintiff sued to restrain operation of bowling damages. Sequim Bay Canning Co. v.ing alley, nuisance being continuous, there was no adequate remedy at law, and plaintiff was entitled to equitable relief. Pape v. Fact Institute, 111 NYR 354. McGGuire v. Boyd Coal & Coke Co. \[III\] 88 80. Exception and use of a tuberculosis hospital In a residential locality temporarily restrained. Cherry v. Williams \[N. C.\] 61 SE 267. Threated acts of repeated trespans and use of offensive language do not authorize injunctive relief, even though nuisance will be created by such acts. Rankadil v. Freed \[Cal.\] 97 P 669. One threat-ening to commit repeated trespasses and use of offensive language does not threaten to create a nuisance within Civ. Code, $ 3480, defining a public nuisance. Id. $ 31,32, American Smelting & Refining Co. v. Godfrey \[C. C. A.\] 158 F 225. **33**. Sale of liquor a nuisance under Dispensary Act 1907, $ 29. State v. Riddock \[S. C.\] 61 SE 210. **34**. American Smelting & Refining Co. v. Godfrey \[C. C. A.\] 158 F 225. **35**. MoGuire v. Boyd Coal & Coke Co. 236 **III**. 69, $ 174; Munger v. Yelsen \[Neb.\] 114 NY 166; Socyy Oyster Co. v. Gaskill \[N. J. Eq.\] 69 A 1084. Allegation in answer whereby defendant seeks to justify single act of trespans is not sufficient to show attempt or purpose to repeat trespans. Cox v. Sheen \[Neb.\] 118 NY 125. **36**. Destruction of a fence and threatened repetition thereof as often as replaced. Munger v. Yelsen \[Neb.\] 114 NYR 166. Act intended to be committed which is in nature of trespans or tort may be enjoined. Berkoy & Berruind-White Coal Min. Co., $ 220 Pa. $ 65, $ 432. Interlocutory injunction properly Eranted in action to try titie and to enjoin cutting of timber. Reviscal 1995, $ 807, $ 805. Sherrood v. Battle \[N. C.\] 68 NE 647. Holder of tide lands under lease from state is entitled to enjoin another from trespassing and removing claims, there being no adequate compensation for the trespans and removing claims, $ 812. **37**.

**As in other cases, it must appear that there is no adequate remedy at law** 28 \*\*and that the injury is or will be irreparable.\*\*30 \*\*In an action to enjoin a nuisance, it is no defense that the nuisance is located in the most convenient place for the purposes of the nuisance,\*\*31 \*\*not is it a defense that the business is conducted in reasonable manner, employing all the latest devices.\*\*32 \*\*Both lessee and lessor may be enjoined where the latter knowingly and willfully permits a nuisance to be conducted on his premises by the former.\*\*33 \*\*The statute of Utah authorizing a court in its discretion to refuse an injunction in a suit to abate a nuisance, upon defendant's giving a bond to pay all damages, applies only to preliminary injunctions, and does not confer the power to perpetuate a nuisance for all time, amounting to the taking of private property merely upon the giving of a bond.\*\*34 \*\*_Trespans._****See 16 C. L. 156****--A single trespans, temporary in its nature, will not usually be enjoined,\*\*35 **but if continuous in its nature, if repeated acts of trespass are done or threatened, the entire wrong will be enjoined**36 **if it is accompanied by such peculiar circumstances as will make the injury irreparable** 37 \*\*or will avoid a multiplicity of suits, despite the fact that no irreparable damage is shown.\*\*38 \*\*If defend12 Cur. Law. INJUNCTION SS 2I. 179

trespass and asks damages therefor and for an injunction, the remedies are inconsistent, for if the plaintiff is willing to accept damages for the future injury he cannot ask to have it enjoined.\[44\] Damages for trespass may be allowed, however, as an incident to injunctive relief.\[42\] As a general rule a verdict for damages for trespass given on the law side of the court, though conclusive on the right of possession, is not conclusive of the right to relief by injunction.\[43\] The complainant must show that he has title,\[44\] or possession and entire right to possession as against the defendant,\[45\] or a property interest.\[44\]

\_Conspiracies by Labor unions.\_See 10 C. L. 267.-Equity will enjoin unlawful acts by labor unions, such as interfering with employees or those desiring to become such by means of threats, intimidation or personal violence on the one hand,\[47\] or by boycotting

Lumber & Shingle Co. v. Johnson, 181 Mich. 47. When defendants attempt to coerce 205, 14 Det. Leg. N. 898, 115 NW 52. Where part of foundation wall encroaches upon ploy and what business policy they should adjolphins property, there is a trespass for which there is an adequate remedy at law, and a mandatory injunction compelling re-unton attempts to coerce employers to sign moral will not issue, Mercantile Library Co. v. University of Pennsylvania, 220 Pa. 47., seeking by conspiracy, violence, and threats to make such employers agree to employ only union employees, etc., such acts jury in asking for damages that the plaintiff intended further to ask for an injunction, the verdict cannot be held to cover future damages. Mason v. Apalache Mills \[S. C.\] 62 SE 339. 48. Taking by eminent domain. Duncan v. NASAa Silec. R. Co., 111 NYS 210. Where damages are asked for a trespass and it appears that it is a continuous one, the fact that a verdict was rendered for damages was not inconsistent with the view rule, or insult and follow them to and from the trespass was continuing, and hence an injunction was rightly granted. Mason v. Apalache Mills \[S. C.\] 62 SE 339. 48. Wood v. Paoclet Mfg. Co. \[S. C.\] 61 SE 95. 44. Injunction will not lie to restrain cut-ting of timber where only issue is as to title to land. Simmons v. Day, 161 Mich. 14 Det. Leg. N. 863, 114 NW 853. Evidence of title to land in action by one railroad to enjoin construction of roadbed by another considered, and held to justify finding that plaintiff had no title on which it would maintain injunction. Columbia Valley R. 110. 94 F 918. In action to enjoin trespass, it is not necessary for complainant who is saying his grant to prove title in grantor's grantor, and force plaintiff to accede to union's de-ionized. One having equitable title may enjoin trespass. Id. 45. Mining lessee, though he cannot maintain an action for unlawful dettainer, may restrain trespass upon his possession. Integrity Min. & Mill. Co. v. Moore, 130 Mo. 48. Where the owner of property by con-trat so restricts its use as to confer upon a third party a species of property interest in it, a purchaser may be used to restrain his use so as not to interfere with such property interest not on the ground of negative covenant, but because he cannot stress on the special property right knock to be in another. New York Phong-graph Co. v. Davega, 111 NYS 363.

on the other.\[48\] A strike will not be enjoined, however, when no such unlawful means are employed,\[48\] and unlawful interference or threatened interference with the complainant's property rights must be shown in order to authorize the writ.\[50\] Equity will not enjoin strikers from attempting to persuade others by proper argument as by picketing from taking their places,\[61\] so long as they do not resort to intimidation,\[53\] or obstruct the public thoroughfares,\[53\] but some courts hold that the act of picketing is, in itself an annoyance and embarrassment of an employer's business, and is unlawful and will be enjoined.\[54\] As to where the line of demarcation between intimidation and inoffensive persuasion lies, this is a question depending upon the circumstances of each case.\[65\] If there is a malevolent intent to produce an illegal result and it is produced, it makes no difference whether it is accomplished by mere persuasion or physical violence.\[56\] A labor union is a legal entity endowed with the same right as an individual to threaten to do that which it may lawfully do,\[57\] and mere apprehension of injury from striking members of a union is insufficient to justify an injunction.\[68\] Peaceful quitting of work, singly, collectively, or as a union, and the use of 'lawful means to make the strike effective, is legal and will not be enjoined.\[59\] Courts

500. In a smit to restrain labor unions and the continuance of a strike injunction, there 'their members, evidence held insufficient to warrant a finding that acts of violence already committed were for the benefit of the 'union or that they were the result of a 'collapse' to injure plaintiff or his business. Russell v. Stampers' & Gold Leaf Loa-cal Union No. 22, 57 Mlsc. 96, 107 NYS 303. Though ratification by a trade union of acts of violence committed by its members during a strike may be proved by circumstantial evidence, where a compulsracy is alleged 'the circumstances must amount to direct 'proof.' Id. '48, Where purpose and effect of putting employer on "unfair list" is to establish 'bycott, members of a union will be re-strained from so doing. Wilson v. Hey, 232 Ill. 389, 83 NE 928. During strike of 'local employees of complainant, the members of certain labor organizations by concerted 'accepting' posted circulars for the expressed 'purpose of inducing patrons of complainant to withdraw patrange and preventing 'persons entering its employ unless it would 'accede to defendant's demands. Defendants, also, exported people not to patronize 'compilantant and stated that the members had voted to give patronage only to certain 'firms' because others had refused to stop 'using complainant's telephones. Held, such acts established an unlawful conspiracy to destroy business, and complainant was entitled to an injunction to restrain defendants prosecuting the object of the conspiracy by such methods. Rocky Mountain Bell Tcl. Co. v. Monfana Federation of Labour, 155 F89. 40. The unlawful interference or threatensd in interference with complainant's property rights must be shown. Will not enjoined, but strike where no unlawful measures are used. Delaware, etc., R. Co. v. Switchmen's Union of North America, 158 F 54. Where the by-laws of a union provided for a two-thirds' vote and the consent of the president of the union in order to justify a strike, and a poll was taken resulting in favor of a strike, the consent of the president did not constitute such an inclement or inducement to strike as would justify

**18**: **Cur. Law.** **INJUNCTION SS 3.** **181**: **will not enjoin employees from seeking, taking, or following the advice of officers of their union with reference to the advisability of a strike.**${}^{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{

## 10.11 Introduction

The study of the effects of junctions to stay proceedings in a suit or execution on a judgment shall be returned to and tried in the court where such suit is pending or such execution issued.\[82\] Courts of equity cannot by injunction usurp or interfere with the proper exercise of courts of law.\[83\] Nor has one court of chaneery jurisdiction to grant an injunction affecting the subject-matter of another pending a suspensive appeal in such suit.\[84\] Equity has jurisdiction to enjoin the performance of acts beyond its jurisdiction in cases where the parties reside within the jurisdiction,\[85\] and the entry of a general appearance by a nonresident confers jurisdiction to grant an injunction, though the subject-matter is in another state,\[88\] but the injunction may, in such case, be refused because not enforcible.\[87\]

_Parties.See 10 C. L. 276_.--The right of particular parties to sue and the liability of particular parties to suit are treated more particularly in another section.\[88\] Necessary parties are all who have an interest in the subject and object of the suit and all persons.\[89\] against whom relief must be obtained in order to accomplish the object of the suit.\[88\] Where the court has acquired jurisdiction of receivership proceedings, it may, in order to render such jurisdiction effective, issue an injunction against any of the parties.\[90\] Where an injunction bond provides that loss or injury sustained by defendants shall be "ascertained as the court directs," the surety becomes a quasi party to the proceeding, and the court may enter a summary decree and award execution against it in the original suit.\[91\] Suits involving only public rights cannot usually be maintained by private individuals,\[92\] but should be instituted by the duly authorized public officers

S2. Injunction issued by district court of O county to restrain sale of lands by or- Id. App. 96.

der of court in L county should have been returned in L county. Broocks V. Lee \[Tex\], other state. Hawley v. State Bk. of Chi-Civ. App.110 SWV 756. Suit to enjoin en-

forcement of a fine imposed by a county judge in a prosecution for obstructing a

S8. McLean V. Farmers' Highline Cahal & highway cannot be maintained in a circuit court, under Civ. Code, SS 285, providing for bringing suit to enjoin in court in which any joining issue and going to trial judgment was obtained. Evans V. Cook, SS 285 does not apply where the court cannot proceed to judgment without the presence of other who have not been made parties.

S3. Supreme court having taken jurisdicde-

tion of matter in ejcontent, the court of Id. On bill to enjoin administrator from chaneery cannot seise jurisdiction or attempt to deprive the supreme court of it

to his intestine on the ground that deed or interfere in any way with the ordinary

process of common-law courts. City of Hookeen v. Hoboken & M. R. Co. \[N. J. Eq.\]

these years. Winn v. Fitzwater, 151

70 A. 926.

S4. Where A and B were contestants for the nomination for a judgeship and A was

in subject-matter and whose only conne-

declared the nominence by the party committion with matter was because he had pre-

tee and B 184 INJUNCTION SS 3. 19 Cur. Law. or authorities.\*10 In a suit to restrain the exercise of public functions, a public officer is not a necessary party defendant merely because he bears an official relation to the defendant,\*10 though he may be a proper party by reason of his statutory relation to the subject-matter of the suit.\*11 A private individual having no interest in such a suit cannot intervene therein.\*11 A bill to enjoin enforcement of a statute must be brought against one clothed with the duty of enforcing it, and not against an officer whose duty is merely to determine whether or not the statute applies to the complain-ant.\*11 An unincorporated trades union may not be made defendant in a suit to restrain acts in furtherance of a strike,\*11 but members of such an association may be sued as representatives of the total membership.\*11 Where a suit is brought by a corporation to enforce or protect a private right by injunction, a claim that the corporation is illegal or is a monopoly cannot be made collaterally as a defense.11

\_Pleading and evidence.\_See 10 C. L. 271.--Where the practice is to transfer to the proper docket cases improperly docketed, failure to style a petition for an injunction as a petition in equity is not ground for dismissal.2 In a suit for injunction, the pleadings must allege clearly and definitely the facts on which complainant relies for relief,3 and must show an interest in the subject of the 12 Cur. Law. INJUNCTION SS 3. 185

suit, a right to the thing demanded, and a proper status to institute suit concerning it.4 If no facts are alleged upon which injunctional or other equitable relief should be granted, the bill of complaint should be dismissed,8 but where defect may easily be cured by amendment, it is not available on a motion to dismiss.6 The allegations will not be aided by presumption.7 Averments of mere opinions or conclusions are too general and indefinite to afford a basis for relief by injunction,8 and thus a mere allegation that injury will be irreparable is insufficient.9

demurrer, where it did not appear that in- **S. Metcalf Co. v. Martin \[Fla\_\] 45 S 463.**

testate owed petitincer any money and **Where in salt to enjoin use of trade secret**

**where is no allegation of damage or prayer**

**ment of debts. Hutchinson v. Willey, 130**

**for accounting and no evidence which**

**Ga. 526, 61 SE 130. Petition to enjoin**

**might be used as basis for accounting, a**

**breach of contract to sell tobacco held to**

\*\*motion for an order directing that defend- **state sufficient facts to warrant temporary**

**and account for damages complainant has**

**injunction. Owen County Burley Tobacco**

**suffered must be denied. Vulcan Detinning**

**Soo, V. Brumback, 31 Ey. L. R. 916, 107 SW**

**Co. v. American Can Co. \[N. J. Eq.\] 69 A**

**710. Allegations of threatened treparas**

**willficently positive and certain to sustain**

\*\*f. Name of a party not stated. South- **Injunction upon demurrer. City of Chicago**

**v. Burton Co., 140 111. App. 344.**

**4. Consolidated Gas, Elec. L. & P. Co. v.**

**for accounting and no evidence which**

**for the same reason.**

**the same reason.**
A bill to enjoin a threatened act must show with reasonable certainty that such act will be committed\[10\], but it need not appear that the anticipated result will necessarily follow\[11\]. The code rule of liberal construction of pleadings does not apply in cases of applications for extraordinary writs, such as injunctions\[12\]. On the contrary, the rule that the pleadings will be taken most strongly against the pleader applies particularly in injunction suits\[13\]. It has been held that where a complaint was not clear and distinct in its averments, from which the court might determine whether the threatened injury was likely to be irreparable, or that a remedy at law was available, it was good as against a general demurrer\[14\]. Although a complaint would be insufficient in an action to quiet title, yet as a complaint for an injunction it may be sufficient\[18\], and where a statutory cause of action is defectively framed, but enough is alleged to constitute a cause of action to restrain a trespass or waste, the allegations under the statute will be treated as surplusage and the cause retained\[19\]. Conclusions of fact are not admitted by demurrer\[17\]. A bill is not necessarily multifarious because uniting a demand for relief and a demand for damages\[18\]. If the affidavit to a bill is defective, it should be pointed out at the proper time, and such defects cannot be relied on to cure defective verification of the answer\[19\]. No particular form of verification to a petition is necessary\[20\], but positive affirmation.of facts as to which the affiant has no means of knowing the truth is insufficient\[21\]. The absence of an offer

ground that no dedication had been made,

13. The rule that statements are to be and there was nothing in bill to show that

taken most strongly against the party mask-parties to ordinance had not by waver or

ing them is reinforced in injunction suits:

other arrangement satisfactorily adjusted

by the further requirement that the mate-matter, equity could not restrain proceed-

rial allegations emitting him to relief shall

ings under ordinance, though there had been

be sufficiently certain to negative every rea-no waver or other arrangement made by

sonable inference from which it might be

eity, People v, Grand Trunk Western R.

deduced that he might not, under other,

Co., 232 Ill. 292, 83 NE 839. Allegation that

supposable facts connected with the subject,

corporate election Is void, mere conclusion

be entitled to relief. City of Paris v. Stur-

and Insuffment. West Endictice As#'n v.

Seon T\[ex, Civ. App.\] 110 SWP 459.

Geoger, 140 Ill. App. 578.

B. Schock v. Garrison \[IN. J. Eq.\] 70 A.

above low-water mark. Gianella v. Gray

147: H. W. Metcalf Co. v. Martin \[Fla.\] 45

S 463. Where bill alleges in general terms

that irreparable injury will result from act,

NB 507.

but does not specify how it will arise, or

that defendant is peculiarily irresponsible,

or that damages will not be easily ascertainable and reoverable, no ground for relief is

shown. Schock v. Garrison \[N. J. Eq.\] 70 A.

A 147. Bill to restrain interference with

erection of poles by electric company, which

merely shows beginning of new line and in-

terference by defendant with election there-

of, and alleging generally that irreparable

injury will result, does not show sufficiently

that the injury is or is likely to be irreparable. Consolidated Gas, Elec. & P. Co., w. Northern Cent. R. Co., 107 M. 671, 69 A

518.

001. Nuisance. Mason v. Deiting \[Mo. App.\] 111 SWP 862.

001. Especially where life and health are

involved. Mason v. Deitering \[Mo. App.\] 111 SWP 863. Allegation that plaintiff has

contested issuance to railroad of certificate

of public convenience and necessity cannot

be regarded as substitute for fact that

plaintiff will be irreparably injured by

threatened proceedings under the certificate.

Erie R. Co. v. Rochester-Corning-Elimra

Trac. Co., 57 Misc. 180, 107 NYPS 940.

12. Bishop v. Huff \[Neb.\] 116 NWP 665;

School Dist. No. 25 v. De Long \[Neb.\] 114

NWP 934.

13. The rule that statements are to be

ground that no dedication had been made,

13. The rule that statements are to be

and there was nothing in bill to show that

taken most strongly against the party mask-parties to ordinance had not by waver or

ing them is reinforced in injunction suits:

other arrangement satisfactorily adjusted

by the further requirement that the mate-matter, equity could not restrain proceed-

rial allegations emitting him to relief shall

ings under ordinance, though there had been

be sufficiently certain to negative every rea-no waver or other arrangement made by

so enable inference from which it might be

eity, People v, Grand Trunk Western R.

deduced that he might not, under other,

Co., 232 Ill. 292, 83 NE 839. Allegation that

supposable facts connected with the subject,

corporate election Is void, mere conclusion

be entitled to relief. City of Paris v. Stur-

and Insuffment. West Endictice As#'n v.

Seon T\[ex, Civ. App.\] 110 SWP 459.

Geoger,

## 12 Cur. Law. INJUNCTION SS 3.

to do equity, in an action to restrain the collection of a judgment, is waived by failure to demur.\[22\] As in other equity suits, the answer must be responsive.\[28\] The answer in a suit against county commissioners may be verified by one of such commissioners.\[24\] The same matter may be pleaded in defense and as a counterclaim.\[28\] Where parties joined are merely formal, the court can proceed to hear the application for an injunction without their answers being filed.\[28\] Overruling a demurrer to an answer is harmless when the plaintiff will have an opportunity to urge his objection on the trial on the merits.\[27\]

In federal courts it is not an objection to affidavits filed with the bill and motion for a preliminary injunction in support thereof that they were previously executed and not entitled in the cause, where it is reasonably apparent that they were made for the purpose of being used in a suit between the parties.\[28\] Objections to affidavits filed with a motion for a preliminary injunction in a federal court which go to a matter of form only must be made in advance of hearing where there is ample time.\[29\] An affidavit on information and belief as to immaterial facts is sufficient.\[30\] Affidavits must usually be served on the opposite party if so required by the court,\[31\] and where affidavits are refused because the opposite party was not notified as required by the court, the persons making the affidavits cannot testify orally to matter contained therein,\[32\] nor is it error to refuse another continuance that notice may be given.\[38\] Cross-examination of the affiant is sometimes allowed.\[34\] Proof may be rendered unnecessary by the admissions of the answer.\[35\] Otherwise the complainant must prove his case \[36\] substantially as laid,\[37\] the burden of proof being upon the plaintiff to make

28. Brin v. Topp. 131 III. App. 394. 28. An answer which states the particulary of the transactions charged and in-quired into by the bill is responsive. Thomsoms * v. Borden \[Pa.\] 70 A 1051. An argument in an answer that the written agreement used on had been rescended and an oral agreement substituted is responsive, and if not overcome by proof the bill is properly dismissed, Id. 24. Answer signed by counsel and affidavit * sworn to by one of county commissioners which does not show his authority to make affidavit are admissible in evidence upon hearing for interlocutory injunction to restrain taking of land for a road. Hutchinson v. Lowndes \[Ga.\] 62 SE 1048. 25. Telulah Paper Co. v. Patten Paper Co., 132 Wis. 425, 112 NWV 522. 26. Camp No., Patrlic Order Sons of American v. Arrington, 107 Md. 319, 68 A 548. 27. Where an answer to a bill to enjoin * v. condensation proceedings does not set up a defense, but merely states defendants' view of the facts, an order overruling plaintiff's demurrer to answer for want of facts is no ground for reversal, for plaintiff would be afforded an opportunity of having question * v. The answer in whether condemation was appropriate remedy determined on trial on merits on plaintiff attempting to show equitable grounds. City of Columbia v. Melton \[S. C.\] 62 SE 245. 28. Modox Co. v. Moxie Nerve Food Co. \[C. C. A.\] 162 F 649. 28. No caption to affidavits, Modox Co. v. Moxie Nerve Food Co. \[C. C. A.\] 162 F 649. 30. Faine v. Carpenter \[Tex. Civ. App.\] 111 SWV 430. 31. Where at the time set for the interlocutory hearing of a petition for injunction * the case was continued, and the judge notf bed the parties that all affidavits intended for use as evidence must be served on the opposite party 24 hours before the hearing, it was no error to refuse to allow affidavits to be introduced which had not been thus served. Hester v. Exley, 130 Ga. 460, 60 SE 1653. 32. Hester v. Exley, 130 Ga. 460, 60 SE 1653. 34. By Equity Rule 124a. Campbell v. Hough \[N. J. Eq.\] 68 A 759. Such cross-examination when taken is available to adverse party, even if party taking it sees fit not to use it. Id. 35. No n an action to enjoin cutting of timber where the answer admits many allega-tons of the bill as to title, etc., it is not necessary for the plaintiff to prove the things admitted, and where the averment of new matter as to defendants' rights is not sufficiently established, the burden of proof is not cast on the plaintiff, and he is entitled to a decree. Griffith v. Henderson \[Fla.\] 45 S 1003. 36. Evidence insufficient to sustain injunction against interference with plaintiff's conduct of school, Epps v. Thomas \[Ga.\] 61 SE 1117. In an action for an accounting and to restrain a partner from disposing of partnership property, evidence held sufficient to warrant function restraining defendant from transferring certain property pending an accounting. Causten v. Barnette \[Vwash.\] 96 P 225. 37. Where, in a suit on a complaint to restrain cutting of timber on the theory of trexpasas, it appears that there was no unlawful trexpas but a lawful energy and commission of waste, a motion to dismiss was properly denied, since the relief sought was substantially the same. Roots v. Borring

## 189 Injunction $ 3.

out his case, \[88\] and it being the defendant's right to insist on proof of every material allegation controverted by the answer; \[99\] but the defendant has the burden of proving an affirmative defense. \[40\] A complainant need not resort first to a court of law to establish his title to land and damage where defendant has not raised the question in his answer and the parties have argued and submitted such questions of legal right to the court. \[41\]

\_Trial.\_See 10 C. L. 278--The court cannot, on motion before trial, make an order granting a permanent injunction, the relief demanded by complainant. \[42\] It is error to submit a case to a jury on the assumption that if any of the complainants are entitled to a decree all are. \[43\] As in the case of suits in equity generally, \[44\] when a case is set down for hearing on bill and answer, all the facts well pleaded in the answer are taken for true whether responsive to the bill or not, \[45\] but where it is set down for hearing on bill, answer and replication, only those averments of the answer which are reponsive are taken as true, \[40\] and all allegations in avoidance or justification, denied by the replication, are taken as untrue. \[47\] Where the only issue is as to which party is liable for costs, the court may suspend the trial of the main case and in the exercise of sound discretion proceeded to tax the costs. \[48\] A finding by a referee that certain acts committed were in the interest and for the benefit of defendant labor unions is a conclusion of law rather than a finding of fact. \[49\] The general principles of appeals are treated elsewhere. \[50\]

\_Appeals.\_See 10 C. L. 278--The right to appeal and'enjoy the fruits of a judgment or decree are wholly inconsistent, and an election to take one course is a renunciation of the other. \[61\] An appeal must, of course, be timely. \[52\] The dismissal of a bill without

Junction Lumber Co. \[Or.\] 92 P 811. Where he is a mere trespasser. Swinheart v. St. plaintiffs in a suit to enjoin interference with growing trees show title but not as alleged, and there is no evidence of any right of water to injury of plaintiffs' riparian or title in anyone else, It is error to direct a verdict for defendant because of failure to prove title as alleged. Williams v. Hicks, 129 Ga. 785, 59 SE 897.

3S. In an action to enjoin the diversion of water by irrigation, the burden is on the plaintiff to prove an abandonment of priorities awarded there by a prior auditory decree. Alamosa Creek Canal Co. V. Nelson, 42 Co. 140, 9 S P 1112.

3B. Suit to enjoin a union from interfering with plaintiff's business. Crescent Feather Co. V. United Upholtersters' Union Local No. 28, 153 Cal. 438, 96 P 871.

40. Where defendant leased a room ln hls hotel to plaintiff and sought thereafter to remove a post projecting up through the floor which supported certain noisy and jarring machinery, the burden was on plaintiff to show that it was operating the machinery by authority of defendant. Spokane Stamp Vorke v. Ridpath, 48 Wash. 370, 93 P 533. Where a senior seeks to enjoin a junior appropriately or water from diverting the same, and the junior seeks to avoid the same upon the ground that if the use which he threatens to make is restrained the owner of the senior right will derive no benefit, such defense should be clearly established. Alamosa Creek Canal Co. V. Nelson, 42 Co. 140, 93 P 1112. Where the constitution provides for corporate authority to permit construction of street railways, it is not incumbent on the plaintiff, in a bill to enjoin construction of a street railway, to prove the negative averment of lack of authority, as such must be shown by defendant as without it * 18Cur. Law. **INJUNCTION SS 4A.**

hearing defendant's evidence under rule of court is in the nature of a nonsuit at law, and if error is committed in granting such motion, it is not to be corrected by entering a decree for plaintiff, but by setting aside the dismissal and reinstating the bill with a procedendo.\[83\] On consideration of an appeal, the facts alleged by the bill will be taken as true.\[54\]

**SS 4.**_Preliminary injunction. A. Issuance and grounds._\[See 10 C. L. 274--The terms "temporary injunction" and "restraining order" are often used synonymously,\[58\] but a distinction is sometimes made which limits the meaning of the term "restraining order" to such orders as are operative only until a hearing can be had upon an application for an injunction,\[58\] and of the term "temporary injunction" to orders operative usually until the final hearing is had of, or a further order made in, the case.\[57\] In any aspect, however, the only purpose of a preliminary injunction is to preserve the status quo pending final hearing.\[58\] Where it appears that the writ is necessary for this purpose, it will issue,\[58\] but, in granting a preliminary injunction, the court will go no further than necessary to preserve and protect existing rights pending the litigation.

- 5A. Where an order is made dissolving an injunction and sustaining a demurrer, and any act which might render any judgment no amendment is made and judgment of dis-

obtained in a pending action infecctual.

missal is entered, and plaintiff appeals with-

Injunction against mining operations pend-

in one year after its entry and more than

**to** **account to** **recover** **land**. Waskey v. Mc

**to** **days** \*\*after entry of the first order, the appeal is timely and will be considered on

**plication for an injunction pendente the its merits, but the appellate court will not**

**review the dissolution of the injunction.**

**ground and** **restrain operations, it was not**

**Neustadier Bros. v. Donst, 13 Idaho, 617, 92**

**pass** \*\*pass tion." The status quo is not always a condition of rest, but may be one of action," but a mandatory preliminary injunction will issue only in rare cases." The granting of a preliminary injunction rests largely in the sound discretion of the chancellor," but such discretion is controlled by established principles of equity." A probable right, and a probable danger that such right would be defeated in case an injunction was not issued, may be sufficient to authorize a preliminary injunction," and it is not necessary that the court be satisfied that plaintiff is entitled to prevail on final hearing," the writ being granted in some cases even where there is doubt as to the law and

60. Eau Claire Dells Imp. Co. v. Eau \[or v. Florida East Coast R. Co. \[Fla.\] 45 S Claire, 184 WIs, 548, 115 NWV 155. Injury\] 574; State v. Parsons \[Kan.\] 95 P 391; Somm threatened must be irreparable. Alaska Pac. R. & T. Co. v. Copper River & N. W. R. Co. \[C. C. A.\] 160 P 862. Injunction pendente \[Lfd.\] 69 A 597. Plaintiff, upon verified should not usurp place of final decree, neither should it reach out any further than as matter of right to temporary injunction is absolutely necessary to protect rights of petitioner from injury not only irreparable but which must be expected before the suit can be heard on Its merits. Goldfield Consol. Mines Co. v. Goldfield Miner's Union, 159 F 600. It is improper to compel defendant to deliver logs described as shipped from various places under an alleged contract upon complainant's switches as previously done for many years, since that permitted plaintiff to determine what logs he was entitled to ship under the contract, and was not preserving a status known to both parties. Gates v. Detroit & M. R. Co., 161 Mich. 48, 16 Det. Leg. N. 2, 115 NWV 420. Where land-lord expressly declares that under no cir-cumstances will be execute or consent to assignment of lease to plaintiff, it is useless to continue temporary injunction restraining defendants from interfering with plaintiff possession. Miles v. Samaels, 111 NYS 537. Will not issue against sale of repieved goods under Code 1902, $ 435, where it does not appear that remedy at law for testing validity of repievy is unavailable. Evans v. Mayes (S. C.) 62 S 207.

01. Will compel delivery of logs at a certain place as required by an agreement and as done for a long period of time. Gates v. Detroit & M. R. Co., 151 Mich. 548, 16 Det. Leg. N. 2, 116 NWV 420. In a suit for specific performance of contract to convey land, temporary injunction restraining defendant from interfering with plaintiff's possession and an order requiring plaintiff to pay into court monthly rental to abide result of the action, were both proper. Ellis v. Foley, 136 WIs, 28, 116 NWV 857.

01. If mandatory injunction will issue at all before final hearing, it is only "where case is clear and certain. Lanham v. Wenat-chee Canal Co., 48 Wash. 337, 93 P 522. Except In rare cases where right is clear, mandatory injunction will not issue before final hearing. Florida East Coast R. Co. v. Taylor for \[Fla.\] 47 S 345; Atchison, etc., R. Co. v. Billings \[Kan.\] 93 P 690. Court refused to enjoin revocation of license to take water. Lanham v. Wenatchee Canal Co., 48 Wash. #37, 93 P 522. Will not compel a railroad to construct a half mile of railroad and a depot and operate trains forever. Florida East Coast R. Co. v. Taylor (Fla.) 47 S 346.

01. Eau Claire Dells Imp. Co. v. Ezau \[or v. Florida East Coast R. Co. \[Fla.\] 48 S 574; State v. Parsons \[Kan.\] 95 P 391; Sommestened must be irreparable. Alaska Pac. R. & T. Co. v. Dryde, 38 Ky. \[C.\]. L. R. & 866, 111 SWV 1005; Bonaparte v. Den- \[C. C. A.\] 160 P 862. Injunction pendente \[Lfd.\] 69 A 597. Plaintiff, upon ver- \[Lfd.

- 12 Cur. Law. INJUNCTION SS 4A.

the facts," but as a general rule it will issue only in a reasonably clear case." A fortiori will the writ not issue ex parte where upon the showing made the defendant has a prima facie right to do the thing sought to be enjoined." A preliminary injunction, being purely ancillary, should not be granted where it is apparent that the principal relief sought cannot be granted." Generally the gravity of the injury which will result from the grant or refusal of the writ will be considered." The writ may usually issue either at term or in vacation."

- 67 Where there is grave doubt as to law or facts, a temporary injunction will be granted to prevent great hardship or irreparable damage until hearing and determining. The risk of the injury which will result from the grant or refusal of the writ will be considered." The writ may usually issue either at term or in vacation."
- 68 The risk of the injury which will result from the grant or refusal of the writ will be considered." The writ may usually issue either at term or in vacation."
- 69 The risk of the injury which will result from the grant or refusal of the writ will be considered." The writ may be regarded as a primary injunction with the grant to prevent hardship or irreparable damage.

Notice of applicationSee 10 C. L. 277.--An injunction without notice should be granted only in extreme cases where it clearly appears that the rights of the complaint will be unduly prejudiced unless so granted,17 but a court should not hesitate to issue an injunction ex parte upon proper showing and in a proper case.17 Great care, however, should be exercised lest the grant of the writ cause irreparable injury to those affected instead of saving the applicant from such injury,18 and hence the issuance of an injunction without notice must be predicated upon facts from which irreparable injury to the complainant is manifest.19 Where the defendant is present and heard on the question at issue, the sufficiency of notice need not be considered,17 nor can a party after hearing on the merits complain of lack of notice.18 In New York it is provided by statute that an injunction shall not be granted ex parte which will suspend generally the ordinary business of a corporation.19 The necessity of presenting or serving the complaint with the moving papers is sometimes dispensed with by statute.19 Where a notice to show cause is issued, a court cannot also issue a restraining order pending hearing, as the order to show cause implies that defendant should not be restrained until hearing.19

(SS 4) B. BondsSee 10 C. L. 277.--Ordinarily a temporary injunction is only granted upon security to the party enjoined.19 This is required by statute in many states,18 and such statutes are held mandatory both as to the necessity of the bond 19

163 F 567. Where plaintiff's business re-vent refusal to supply water. Kers v. quired electerite current and defendant com-gancy was bound to furnish the same to consumers within one hundred feet of its lines, but defendant refused to so furnish current on the ground that plaintiff fraudulently invn-Laughlin, 137 Ill. App. 83.

163 F 567. Where plaintiff's business re-vent refusal to supply water. Kers v. quired electerite current and defendant com-gancy was bound to furnish the same to consumers within one hundred feet of its lines, but defendant refused to so furnish current on the ground that plaintiff fraudulently invn-Laughlin, 137 Ill.

and as to its conditions."5 There is no statute not rule restricting the discretion of a federal court fixing the amount of an injunction bond."4 A bond may be given nune pro tune pending appeal by the defendant."7 Under some circumstances a new bond may be required."8 In some instances, injunctions may be allowed without bond "8 especially if public interests are involved."9 A party cannot, after hearing on the merits, complain of the failure of the other party to give bond."1 A statute requiring a cost bond of corporation plaintiff does not preclude the issue of a preliminary injunction at the instance of a corporation without such bond."2 The character of a restraining order is not affected by the giving of a bond."9

(SS 4) \_C. Dissolution, modification or continuance; reinstatement.\_58e 10 C. L. 278 An injunction limited to a certain period is dissolved ex vi termini upon the expiration of such period." The dissolution of the temporary injunction and the dismissal of the bill is proper where the allegations are insufficient and incapable of amendment,"5 or where the injunction has been issued without notice and is unwarranted,"9 or where every material allegation is unequivocally denied with a full re-

is required by statute, injunction issued, requiring undertaking. Shea v. Bergen, 110 without one is void. Castleman v. State \[Miss.\] 47 S 647.

85. It is not necessary that the order granting the injunction or bond should name the amount for which the makers are liable. Code, & 278. Alexander v. Gardner \[Ky.\] 113 SWP 908. Where collection of judgment is en-

, but & 92. Under Clv. Code Prac. & 617, an injunction bond filed by a corporation did not

, and such damages may be awarded in case injunction is dissolved. Rev. St. c. 68, & 8. Reed v. New York Nat. Exch. Bank, 131 III. App. 434. Bond given upon

, granting of injunction restraining collection of judgment should be conditioned for payment of judgment and costs. Rev. St. c. 68, & 8. Central Stock & Grain Co. v. Pine Tree Lumber Co., 140 III. App. 471;

, and such damages may be awarded in case injunction is dissolved. Rev. St. c. 68, & 8. Reed v. New York Nat. Exch. Bank, 131 III. App. 434. Bond given upon

, granting of injunction restraining collection of judgment should be conditioned for payment of judgment and costs. Rev. St. c. 68, & 8. Central Stock & Grain Co. v. Pine Tree Lumber Co., 140 III. App. 471;

, and such damages may be awarded in case injunction is dissolved. Rev. St. c. 68, & 8. Reed v. New York Nat. Exch. Bank, 131 III. App. 434. Bond given upon

, granting of injunction restraining collection of judgment should be conditioned for payment of judgment and costs. Rev. St. c. 68, & 8. Central Stock & Grain Co. v. Pine Tree Lumber Co., 140 III. App. 471;

, and such damages may be awarded in case injunction is dissolved. Rev. St. c. 68, & 8. Reed v. New York Nat. Exch. Bank, 131 III. App. 434. Bond given upon

, granting of injunction restraining collection of judgment should be conditioned for payment of judgment and costs. Rev. St. c. 68, & 8. Central Stock & Grain Co. v. Pine Tree Lumber Co., 140 III. App. 471;

, and such damages may be awarded in case injunction is dissolved. Rev. St. c. 68, & 8. Reed v. New York Nat. Exch. Bank, 131 III. App. 434. Bond given upon

, granting of injunction restraining collection of judgment should be conditioned for payment of judgment and costs. Rev. St. c. 68, & 8. Central Stock & Grain Co. v. Pine Tree Lumber Co., 140 III. App. 471;

, and such damages may be awarded in case injunction is dissolved. Rev. St. c. 68, & 8. Reed v. New York Nat. Exch. Bank, 131 III. App. 434. Bond given upon

, granting of injunction restraining collection of judgment should be conditioned for payment of judgment and costs. Rev. St. c. 68, & 8. Central Stock & Grain Co. v. Pine Tree Lumber Co., 140 III. App. 471;

, and such damages may be awarded in case injunction is dissolved. Rev. St. c. 68, & 8. Reed v. New York Nat. Exch. Bank, 131 III. App. 434. Bond given upon

, granting of injunction restraining collection of judgment should be conditioned for payment of judgment and costs. Rev. St. c. 68, & 8. Central Stock & Grain Co. v. Pine Tree Lumber Co., 140 III.

### 194.1 Injunction $ 4C.

Cital of facts," but the court has a large discretion in the matter and will not dissolve where irreparable injury will result from dissolution." An injunction awarded on a bill showing no good cause for relief is properly dissolved, though no exception is taken thereto." Where an injunction is issued in contravention of one then in force, it is improvidently issued and should be vacated.1 In Florida a temporary injunction will not be dissolved merely because the relief granted by such injunction might be obtained by equitable defense in an action at law." The dismissal of a bill upon dissolving a temporary injunction is improper where the court holds that the allegations are sufficient but that the preponderance of evidence as shown by the affidavits is against its verity.3 A motion to dissolve for want of equity apparent on the bill has the same effect as a demurrer, and facts stated are to be taken as true.4 Affidavits in rebuttal of a motion to dissolve a temporary injunction filed in court by defendant a week before hearing need not be served on complainant.5 On motion to quash a temporary injunction for lack of plaintiff's signature on the bond, leave may be granted to his attorney to sign, and on this being done the motion may be overruled.4 Dissolution of injunction before final hearing is not conclusive and cannot be pleaded as res judicata of right to an injunction on final hearing.7 Where one judge sitting for another refuses to dissolve an injunction, such order is binding upon the absent judge when he resumes the conduct of the case.5 Dissolution by an appellate court discontinues the injunction permanently or until final trial in the lower court.5 Where it appears that a restraining order is partly proper and partly improper, it may be modified accordingly,10 but an injunction against the enjoyment of a public easement, based on the ground that the grant of such easement is

Footnote 194: The author is grateful to the anonymous referee for the support of this work.

### 195.2 Injunction $ 4C.

Injunction $ 4C.

Cital of facts," but the court has a large discretion in the matter and will not dissolve where irreparable injury will result from dissolution." An injunction awarded on a bill showing no good cause for relief is properly dissolved, though no exception is taken thereto." Where an injunction is issued in contravention of one then in force, it is improvidently issued and should be vacated.1 In Florida a temporary injunction will not be dissolved merely because the relief granted by such injunction might be obtained by equitable defense in an action at law.2 The dismissal of a bill upon dissolving a temporary injunction is improper where the court holds that the allegations are sufficient but that the preponderance of evidence as shown by the affidavits is against its verity.3 A motion to dissolve for want of equity apparent on the bill has the same effect as a demurrer, and facts stated are to be taken as true.4 Affidavits in rebuttal of a motion to dissolve a temporary injunction filed in court by defendant a week before hearing need not be served on complainant.5 On motion to quash a temporary injunction for lack of plaintiff's signature on the bond, leave may be granted to his attorney to sign, and on this being done the motion may be overruled.4 Dissolution of injunction before final hearing is not conclusive and cannot be pleaded as res judicata of right to an injunction on final hearing.7 Where one judge sitting for another refuses to dissolve an injunction, such order is binding upon the absent judge when he resumes the conduct of the case.5 Dissolution by an appellate court discontinues the injunction permanently or until final trial in the lower court.5 Where it appears that a restraining order is partly proper and partly improper, it may be modified accordingly,10 but an injunction against the enjoyment of a public easement, based on the ground that the grant of such easement is

Footnote 195: The author is grateful to the anonymous referee for the support of this work.

Footnote 196: The author is grateful to the anonymous referee for the support of this work.

Footnote 197: The author is grateful to the anonymous referee for the support of this work.

Footnote 198: The author is grateful to the anonymous referee for the support of this work.

12 Cur. Law. INJUNCTION SS 4D.

invalid, cannot be modified so as to allow partial enjoyment of such easement.11 A perpetual injunction may be granted on a motion to continue an interlocutory one.13

If, after dissolution of an injunction on answer denying the equity of the bill, testimony afterwards taken and filed shows the right to such relief, the injunction may be reinstated.14 A motion to vacate a restraining order which has spent itself will not revive it for or against either party.14 Reinstatement by an appellate court is binding on the court below and on the parties.15 When an order dissolving an injunction has once taken effect, it will not be affected by a subsequent supersedeas.16

(SS 4) \_D. Damages on dissolution and liability on bond.\_8ee 10 C. L. 280--The damage arising from the granting of an injunction pendente lie, in the absence of statute or rule of court, is damnum absolue injuria.17 A formal injunction bond is not, however, an indispensable prerequisite to the assessment of damages in the dissolution of an injunction for a condition may be imposed requiring plaintiff to make good any damage sustained,18 and in some states, in case of the wrongful suing out of an injunction, the defendant, upon dismissal, has the right to institute an independent action for damages.19 Where a bond is required, damages will be allowed on the dissolution of the injunction.20 The pendency of an appeal does not preclude an action on the bond after dissolution of the injunction,21 nor is it necessary for the defendant to appeal from the order granting the injunction in order to recover upon the bond upon subsequent dissolution.22 Where the complainant has the right to dismiss without prejudice, such a dismissal does not constitute an adjudication in favor of the defendant,23 and the latter, in order to recover on the injunc tion bond, must disprove the allegations upon which the injunction was sought,24 but the dismissal of a bill on the merits for want of equity, and the dissolution of a preliminary injunction issued thereon, is a determination that the injunction was wrongfully issued for the purpose of entitling the defendant to the damages thereby sustained, even though it may have been properly granted in the first instance.25 Where a preliminary injunction has been granted pending the action, but suspended during an appeal, and upon reversal upon appeal the action is discontinued by the plaintiff, the defendant is entitled under the bond to compensation for expenses and damages, although not actually restrained from doing anything.26 An action on an injunction bond, filed to prevent the collection of a judgment, for costs and the judgment and damages, is only one cause of action.27 Damages upon the dissolution of an injunction should not be awarded in favor of those who were in priority with or guilty of fraud in a former proceeding for an injunction, involving the same subject-matter.28 While damages cannot be awarded to strangers to the suit or to solicitors who are not parties,29 where damages are awarded to the proper party cash security deposited in lieu of a bond may be distributed to the parties ultimately entitled thereto.29 Service upon a party is not always necessary in order to make him a party within the foregoing rule.21 A bond may protect several parties, though it runs in terms to the defendant in the singular.28 Liability on a bond ceases when a new and permanent injunction is granted without reference to the restraining order.28 The penal sum fixed by the bond is the maximum of the recovery allowable,24 but subject to this limitation the measure of damages 28 is the actual damage suffered by reason of the injunction,28 except, of

titled to relief at the time bill was brought. Sackett & Wilhelms Lithographing & Printing Co. v. Employing Lithographers' Nat. Asy.113 NYS 110.

24. Fit Madison St. R. Co. v. Hughes, 137 Iowa, 122, 114 NYW 10.

01. Micka Insulator Co. v. Commercial Mica Co., 157 F 9.

01. In re Reed, 110 NYS 834.

01. New York Nat. Exch. Bank v. Reed, 132 Ill. 123, 83 NE 548.

01. Order awarding damages for solicitor's fees, reversed. Vanderpoel v. Cravens, 139 III. App. 463.

01. Moore v. West, 128 Ill. App. 452.

01. Not error to direct such money to be paid to solicitors as fees. Moore v. West, 128 Ill. App. 452.

01. Where an order restraining buliding by defendant was served on the contractor alone, who at once ceased operations, and the defendant was not served with notice and knew nothing of the proceedings, yet she was entitled to recover on the bond given, for she suffered the injury. Hutchins v. Munn, 209 U. S. 246, 52 Law. Ed. 776.

01. Where bond was conditioned to pay "defendant" damages, etc., but order of injunction restrained "defendants", etc. Hutchins v. Munn, 209 U. S. 246, 52 Law. Ed. 776. A bond accompanying a temporary restraining order directed against defendants and each of them was held to run in favor of plaintiff, a woman, although the bond was expressed to "make good to the defendant all damages by him suffered." Id.

01. Houghton v. Cortevolou, 208 U. S. 149, 52 Law. Ed. 432.

01. Cimotti Unhairing Co, v. American Fur Refining Co., 158 F 171; United States v.

01. Lewis Pub. Co., 160 F 989; Harrison v. Hind'

& Harrison Plush Co., 128 App. Div. 460, 112 NYS 834. When the amount of the bond is fixed, its penal sum is notice to the applicant for injunction of the maximum risk he must assume 1f the injunction is issued. United States v. Lewis Pub. Co., 160 F 989; Climotti

Unhairing Co. v. American Fur Refining Co., 158 F 171. Liability of varieties is limited by amount of bond, but upon reference, under Code City, Proc. $ 623, to ascertain defendants damages from preliminary injunction, full amount thereof, though in excess of bond, is properly found. Harrison v. Hind & Harrison Plush Co., 128 App. Div. 464, 112 NYS 834.

35. Instructions as to adamesurement of damages, approved. Kers v. Wolf, 131: Ill. App. 387. Instructions of court as to damages, consolidated. Collins v. Huffman, 48 Wash., 184, 93 P 220.

01. A bond covers only the damages that are the proximate and natural result of the injunction. Cimotti Unhairing Co. v. American Fur Refining Co., 158 F 171. Evl-

01. Gene held to show that collection of debt was not interfered with by injunction, and hence no damages could be allowed on this account. Collins v. Huffman, 48 Wash. 184, 93 P 220. No damage for interference with stock of goods where injunction defendant. under arrangement with plaintiff, received full credit for such stock at invocle value. Id. Value of use of dwelling house for period or season during which owner was

01. Deprised of it as direct result of wrongful use of order temporarily restraining further construction is the proper measure of damages recoverable upon undertaking to makegood resulting injury, exacted by court as * 12 Cur. Law. INJUNCTION SS 4D.

- 13-course, as otherwise provided by statute." If no limit is established by the bond or by order of court, the liability of the obligors is coextensive with the damages the defendants may sustain by reason of the writ." 14 Counsel fees are usually allowable," 15 but not in the federal courts," 16 and in an action in a state court on a bond given in a federal court the rule in the federal courts will be followed." 17 Where counsel fees may be recovered, they must be for services rendered in securing a dissolution of the injunction as distinguished from services rendered in connection with the main case." 18 The question of damages may be referred to a master." 19 In Illinois in case of an ancillary injunction wrongly issued, the court may hear suggestions of damages
- 19 The amount of execution, unless greater damages are proved. Rivet v. Murrell Plant-dence held to warrant amount of verdict. Hill v. Peeter \[Tex. Civ. App.\] 20 Tex. Ct. Schwran v. Sanders, 121 La. 461, 46 8 573. Rep. 53, 105 SW 109C. Where foreclosure decree was wrongfully enjoined, purchaser was entitled in a suit on bond to recover rental value of premises up to time he was placed in possession. Steves v. Smith \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 877, 107 SWV 141. In suit to enjoin enforcement of execution where injunction was dissolved, defendant could not recover on bond amount of execution without pleading and proof that temporary injunction, and no motion was made to dissolve the latter order, and servomed by. Stringfellow \[Tex. Civ. App.\] 111 USW 768. Where, because of injunction re-streaming cutting or timber, certain mules used in work remained idle, this is not element of damage in suit on bond; if by ordinary diligence other work might have been found. United States Fidelity & Guaranty Co. v. Jones, 38 Ky. L. R. 187, 111 SWP 298. Refusal of court of original jurisdiction to allow damages in suit on bond for period during which injunction was in force cannot be sustained as appropriate exercise of discretion where by such order postmaster general was prevented from collecting postage on publications on which rates demanded should have paid, and which had for long time been carried at less rate than was proper. Houghton v. Cortelyou, 208 U. S. 149, 52 Law. Ed. 432. Where there \[Is no proof that injunction was ever issued or served on the sherift to restrain sale of property under an execution, it was error to direct verdict against surety and plaintiff on injunction bond. Webb v. Caldwell \[Tex. Civ. App.\] 112 SWP 97.
- 14 Star. Under Code Civ. Proc. 1 & 3251, court or judge may, on any reference specified in 19 3236, award costs, not exceeding $10, besides necessary disubreements for referee's fees as damages. Harrison v. Hilden & Harison Prison Plus Co., 128 App. Div. 460, 112 NYS 834.
- 15 Alexander v. Gardner \[Ky.\] 118 SWP 906.
- 16 On dissolution. Allison v. Taylor, 183 TII. App. 70. Recovery upon injunction bond for solittor's fees in procuring dissolution of injunction not precluded by fact that so-lictor stated he would obtain fees out of bond. Kera v. Wolf, 131 TII. App. 387. All-lowance of solittor's fees upon dissolution of injunction not precluded by fact that defendant was solittor and performed servomed. Rees. Reed v. New York Nat. Exch. Bank, 131 Ill. App. 434. Under Louisiana Code, on dissolution of an injunction restraining enforcement of an execution, defendant may recover for attorney's fees only 20 per cent /
- 17 The amount of execution, unless greater damages are proved. Rivet v. Murrell Plant-dence held to warrant amount of verdict. Hill v. Peeter \[Tex. Civ. App.\] 20 Tex. Ct. Schwran v. Sanders, 121 La. 461, 46 8 573. Rep. 53, 105 SW 109C. Where foreclosure decree was wrongfully enjoined, purchaser was entitled in a suit on bond to recover rental value of premises up to time he was placed in possession. Steves v. Smith \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 877, 107 SWV 141. In suit to enjoin enforcement of execution where injunction was dissolved, defendant could not recover on bond amount of execution without pleading and proof that temporary injunction had caused such damage. Dillard v. Stringfellow \[Tex. Civ. App.\] 111 USW 768. Where, because of injunction re-streaming cutting or timber, certain mules used in work remained idle, this is not element of damage in suit on bond; if by ordinary diligence other work might have been found. United States Fidelity & Guaranty Co. v. Jones, 38 Ky. L. R. 187, 111 SWP 298. Refusal of court of original jurisdiction to allow damages in suit on bond for period during which injunction was in force cannot be sustained as appropriate exercise of discretion where by such order postmaster general was prevented from collecting postage on publications on which rates demanded should have paid, and which had for long time been carried at less rate than was proper. Houghton v. Cortelyou, 208 U. S. 149, 52 Law. Ed. 432. Where there \[Is no proof that injunction was ever issued or served on the sherift to restrain sale of property under an execution, it was error to direct verdict against surety and plaintiff on and allow the same before final hearing.44 A federal court, having required a bond as a condition to the granting of an injunction, has the power in its discretion, on dissolution of the injunction, to assess the damages recoverable on the bond.45 The Wisconsin statute contemplates a separate suit to recover damages after a decision in the injunction suit.46

(SS 4) \_E. Appeal and review.\_See 10 C. L. 281.--The appealability of an order dissolving an injunction is not affected by a reference to ascertain the damages.47 In Louisiana an appeal will not lie from an interlocutory order dissolving an injunction on bond where the alleged injury is pecuniary in its nature and the alleged damages compensable in dollars and cents.48 Where special provision is made for appeals from interlocutory orders, the granting of a preliminary injunction cannot be assigned as error on appeal from a permanent decree.49 The Texas statute authorizing appeals from orders granting or dissolving temporary injunctions applies only to interlocutory orders,50 nor does such statute authorize an appeal from 'an order over- ruling a motion to dissolve such an injunction and continuing the same until final hearing,51 or from an order denying a temporary injunction.52 In Nebraska an order dissolving a temporary injunction may be superseded.53 In Louisiana a suspensive appeal should not be granted from an order dismissing an injunction for lack of jurisdiction by reason of the pendency of a suspensive appeal in the main cause of action in another district.44 Where the plaintiff dismisses his suit after dissolution of the injunction, there is nothing from which to appeal.55 An appeal must, of course, be perfected within the time prescribed by the statute.56 The granting or refusal of a temporary injunction will not be reversed except for an abuse of discretion,57

44. See Hurd's St. 1905, c. 69, 1 12. Demp- 55. Where after dissolving of a temporary ster V. Lansingh, 234 Ill. 381, 84 NE 1032.

injunction the plaintiff stated in open court 45. Cimiotti Unhahiring Co. v. American Fur Refining Co., 158 F 171,

fused to incorporate this in the order of 46. Lewis v. Eagle \[VWs.\] 115 NW 361.

dissolution and plaintiff appealed, held such 47. Milota Insulator Co. v. Commercial Mica Co., 157 F 82.

48. Goldstein v. Harris, 120 La. 744, 45 S

pear from, and if the appeal was from an interlocutory order no appeal can be taken.

49. Leslie E. Keeley Co. v. Hargreaves, 236 Liver. Alif. 36, 85 NE 138.

SWY 177.

50. Act April 16, 1907, 1 2 (Gen. Laws, p. 207, c. 107), does not apply to penal judgments granting or dissolving temporary intentions. Act April 16, 1907, 1 2 (Gen. Laws, p. 207, c. 107), applies only to interlocutory orders. Perry v. Turner \[Tex. Civ. App.\] 108 SVV 182.

01. Laws 30th Leg., p. 206, c. 107, do not authorize appeal from order refusing to disclose. Baumerger v. Allen \[Tex.\] 107 SWV 506. Centre. Chancery v. Allison \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 230, 107 SVV 605.

01. Proceeding held to amount to dissolution of temporary injunction, and not a denial of a temporary injunction, and was therefore appealable under the statute. Casswell v. Fundenberger \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 64, 105 SWV 1017.

01. State v. Graves \[Neb.\] 117 NWV 717.

01. Where a suspensive appeal had been granted in a contested nomination case, and an injunction subsequently granted in another district against secretary of state from accepting name of appellant for ballot had been dismissed by court issuing it for want of jurisdiction, it was proper for such court to refusus suspensive appeal and to force opposing party to have recourse to Supreme court for mandamus. Le Blanc v. Michel \[La.\] 47 S 832.

01. Where after dissolving of a temporary ster V. Lansingh, 234 Ill. 381, 84 NE 1032.

injunction the plaintiff stated in open court 45. Cimiotti Unhahiring Co. v. American Fur Refining Co., 158 F 171,

fused to incorporate this in the order of 46. Lewis v. Eagle \[VWs.\] 115 NWV 361.

dissolution and plaintiff appealed, held such 47. Milota Insulator Co. v. Commercial Mica Co., 157 F 82.

appeal could not be sustained, for if the suit was dismissed there is nothing to appeal from, and if the appeal was from an interlocutory order no appeal can be taken. Clevenger v. Carliker \[Tex. Civ. App.\] 111 Nil. 36, 85 NE 138.

56. Under Laws 30th Leg. p. 206, c. 107, amending Sayles' Ann. & Civ. St. title 56, art. 285, allowing appeals in proceedings wherein an injunction is granted or dissolved provided same be taken within 15 days after entry of order of record, and Sayles' Ann. Civ. St. 1877, 1 2995, providing that party to whom any writ is 12 Cur. Law. INJUNCTION SS 5.

but if an order modifying a temporary injunction is based on a mistaken view of the law, it is reviewable upon appeal,\[88\] and so, also, on appeal, a permanent injunction granted on interlocutory hearing may be amended so as to make it merely interlocutory.\[89\] When upon the undisputed facts the complainant is not entitled to the injunction, the order granting it will not be affirmed in order to preserve the status quo,\[90\] but the appellate court will not enter into the merits in a complicated case.\[91\] In passing upon the propriety of a temporary injunction, the sufficiency of the complaint will be assumed if a fair doubt of law or fact as to plaintiff's ultimate right of recovery is presented.\[92\] Where a statute provides for an appeal on the bill and answer and such afflavits and evidence as may be admitted by the judge, the court on appeal is authorized to consider the answer and afflavits and evidence only when the same constitute a part of the case before the judge.\[88\] No case on appeal is necessary on appeal from an order granting or refusing an injunction,\[84\] and the appeal itself is a sufficient exception and assignment of error, likewise when the judgment is rendered upon a case agreed, as when it is rendered upon a demurrer.\[85\]

SS 5. _Decree, judgment, or order for injunction.\[89\]_ See 10 C. L. 282--An injunction should be as clear and precise in its terms as possible, so that there may be no excuse for disobeying or misunderstanding it.\[89\] Relief by injunction must not be broader than is reasonably necessary for the complainant's protection.\[90\] A decree may be sufficiently complete to adjust all matters and rights affected by the injunction.\[88\] Money damages may be awarded together with an injunction,\[99\] and some-736, 61 SE 599: Stephenson v. James, 130 Ga.

eration, where case presented was compli-782, 61 NE 735; Cannady v. Herrington \[Ga\] acted, court would not consider offer of 62 SE 20; Meagher v. Schussier \[Minn.\] 118 purchaser to furnish other considerations. NWP 664. Preliminary injunction is a matter of discretion and is not subject to reverver-gal in an appellate court unless there has 62. Eau Claire Dolls Imp. Co. v. Eau Claire, been an abuse of discretion evidenced by a disregard of the facts or the principles of equity applicable to the case. Alaska Pac. R. & Terminal Co. v. Copper River & N. W. R. Co. \[IC. C. A.\] 160 F 862; Phoenix Ins. Co. v. Carey, 80 Conn. 426, 68 A 983.

Dhaereton held not abused. In refusing to set restrain city from taking land for a street. Wail v. Clayton, 130 Ga. 428, 60 SE 1047, in refusing to enjoin proceedings to lay out road. Hutchinson v. Lowndes County \[Ga.\] 62 SE 1048. In refusing injunction of levy of school tax. Henselve v. McLaury \[Ga.\] 62 SE 66. In refusing to restrain city from preventing obstructing of alleged public to enjoin defendant from keeping any crossing over tracks until final hearing. Georgia R. & Banking Co. v. Atlanta \[Ga.\] 61 SE 1035. In restraining cutting of trees. Loudermilk v. Martin, 130 Ga. 525, 61 SE 122. In restraining enforcement of state grain inspection law pending final hearing on its constitution. Andrew v. Globe Elevator Co. \[C. C. A.\] 156 F 64.

58 Eau Claire Dolls Imp. Co. v. Eau Claire, 134 Vis. 548, 115 NW 156.

59. City of Brunswick v. Williams \[Ga.\] 62 SE 230. Decree for injunction entered on interlocutory hearing, directed by supreme court to be amended so as to show that it was not a perpetual injunction. Unity Cotton Mills v. Dunson \[Ga.\] 62 SE 179.

01. Colby v. Equitable Trust Co., 124 App. Div. 262, 104 NYS 978.

01. On appeal from order granting temporary injunction in suit by stockholder to restrain execution of contract to transfer property of company without substantial considid-

736, 61 SE 599: Stephenson v. James, 130 Ga.

eration, where case presented was compli-782, 61 NE 735; Cannady v. Herrington \[Ga.\] 62 SE 20; Meagher v. Schussier \[Minn.\] 118 purchaser to furnish other considerations. NWW 664. Preliminary injunction is a matter of discretion and is not subject to reverver-gal in an appellate court unless there has 62. Eau Claire Dolls Imp. Co. v. Eau Claire, been an abuse of discretion evidenced by a disregard of the facts or the principles of equity applicable to the case. Alaska Pac. R. & Terminal Co. v. Copper River & N. W. R. Co. \[IC. C. A.\] 160 F 862; Phoenix Ins. Co. v. Carey, 80 Conn. 426, 68 A 983.

Dhaereton held not abused. In refusing to set restrain city from taking land for a street. Wail v. Clayton, 130 Ga. 428, 60 SE 1047, in refusing to lay out road. Hutchinson v. Lowndes County \[Ga.\] 62 SE 1048. In refusing injunction of levy of school tax. Henselve v. Mc times in lieu thereof.70 The court may by its final order grant a decree whether or not it has granted an injunction pending proceedings.71 A decree should not issue where the act sought to be enjoined has been completed,72 but the bill in such case may, under some circumstances, be amended so as to authorize relief from the effect of such act.78 An injunction may be granted in praesenti, to take effect upon the filing of a bond,74 and a restraining order which does not contemplate a hearing as to whether a temporary injunction shall be allowed is of itself a temporary injunction.79 Continuing in force, a temporary restraining order made by a clerk is in effect the granting of an injunction.76 An injunction to restrain diversion of waters is a remedy in personam, and a decree is entitled to full faith and credit in a sister state, and may be enforced there.77 The words "until the further orders of this court," contained in a restraining order in conjunction with a day set for hearing, have no other nor further meaning than "in the meantime."78 An injunction against acts in futuro does not usually operate retroactively.79 An injunction against the doing of acts in an illegal manner does not prohibit the subsequent doing of such acts in a legal manner.80 An injunction conditioned upon the plaintiff allowing the defendant to do certain things which the plaintiff is primarily legally bound to do does not impose upon the defendant the burden of doing such things.81 Extra-judicial provisions in an injunction should be construed as advisory only, and not as an advance adjudication.82 An injunction temporary in effect, though permanent in form, will be treated as a temporary injunction.83

removal of such appliance by the company L. R. 767, 111 SWV 285. But see Baumberger in case of failure to pay therefor. Laciade v. Allen \[Tex.\] 20 Tex. Ct. Rep. 456, 107 SWV 4.83L 526, where it was held that continuing of Mo. App. 442, 106 SWV 91. Where, in coal mining, entries are wrongfully driven by eating of injunction within statute enjoning the former from taking of any coal of the latter he is properly enjoined from going into or using such entries. McGuire v. Boyd Coal & Coke Co., 336 Ill. 69, 88 NE 174.

69. An action for injunction is always equitable, and when the court, in the exercise of its chanery powers, undertakes to administer such relief, it has jurisdiction to award compensatory damages when there has been a trepsang. Atlantic & C. Air Line R. Co. v. Victor Mfg. Co., 79 S. C. 26, 60 SE 675. For other cases, see $\\lx@sectionsign$ 21, and other special headings.

To Damages in lieu of an injunction for unreasonable diversion of waters of a river to supply a municipality. City of Paterson v. East Jersey Water Co. \[N. J. Eq.\] 70 A 472.

71. Hurt v. Chess & Wymond Co., 33 Ky. L. R. 767, 111 SWV 285.

01. Error to enjoin settlement of judgment against town where settlement had already been made. Farnsworth v. Wilbur \[Wash.\] 95 P 642.

01. Court should have permitted amendment to conform to proof, and then should have set aside settlement of judgment against town, though bill asked for injunctive relief only. Farnsworth v. Wilbur \[Wwash.\] 95 P 642.

01. Order that injunction be granted, and that upon giving of bond an injunction shall issue, held itself an injunction, and hence no further order was necessary upon giving of bond. Collins v. Huffman, 48 VAsh. 184, 93 P 220.

01. State v. Graves \[Neb.\] 117 NWV 717.

01. Hurt v. Chess & Wymond Co., 33 Ky.

01. Hurt v. Chess & Wymond Co., 33 Ky. L. R. 767, 111 SWV 285.

01. Ex parte Grimes \[Oki.\] 94 P 668.

01. Where an injunction ancillary to ejectment enjoined rocking and slucing, or in any manner working on premises in question, it did not prevent defendants from working dirt, taken from the ground in dispute, and removing to other property. Washcy v. McNaught \[C. C. A.\] 163 F 929.

01. Injunction, permanent in form, re-straining town from enforcing relaying of sidewalk because town had failed to take proper preliminary steps, does not affect town's right afterwards to compel by proper steps the relaying of the walk. Converse v. Deep River \[Iowa\] 117 NWV 1078. Injunction restraining road commissioners from carry-ing out or letting contract, or from issuing bonds, or from levying tax, , etc., does not enjoin board from proceeding under state-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-at-atat-at-atat-at-atat-atat-atat-atat-atat-atatat-atatat-at

## 8 Violation and punishment

See 10 C. L. 288. Where the court has jurisdiction to render the decree, parties are bound to obey its terms or suffer for contempt of court 84 despite the trivial damages resulting from such violation.85 Although the injunction may be erroneously granted, it is not void, and until set aside or reversed on appeal it must be obeyed.88 Where, however, the injunction is void, there is no contempt.87 An appeal from an injunction does not have the effect of dissolving or suspending it, and any violation thereof is a contempt.88 It must appear that there was an intentional violation of the injunction in order to punish for contempt.88\_ Punishment for violation.See 10 C. L. 288. Where a contempt is committed in connection with an injunction, it is not necessary to docket a new case against the contemnor under the Iowa Code.89 Where there is no statute authorizing the appropriation of a fine imposed for a contempt to the party injured, an order that execution issue for the collection of the fine in the name of the people for the use of complainants will, on appeal, be modified by striking out the latter feature.89 An injunctionjoining officers and agents of a corporation operates in personam only, and can be enforced only by attaching the bodies of the contumacious individuals and the inflation of punishment upon them.89 Where the plaintiff seeks to have the defendant adjudged in contempt for the violation of an injunction against interfering with the plaintiff's lands, the plaintiff's title to the lands interfered with must be proved.88

## 7 Liability for wrongful injunction

### INNS, restaurants and LODging houses

#### The scope of this topic

is noted below.89

#### Definitions

See 10 C. L. 288. The legal definition of an inn and a hotel is practically the same,89 and a bar to supply the guests with drink and a stable for the care

#### 8.1.1 Training intervening creditor from proceed-

for parties to appear and show cause why temporary injunction should not issue, and sets, injunction was in effect a temporary one upon such day neither party appears, and no pending a hearing on the merits, and the fact that it was rendered at chambers was immineral. Whilden v. Chapman \[S. C.\] 61

SEG 249.

#### 8.1.2 Mutual Milk & Cream Co. v. Heldt, 128

of their horses are now no longer essential requisites of an inn," nor is a dining room, cafe or restaurant to supply the guests with food now an essential requisite of an inn or hotel;\*\* but there is a clear distinction between a mere private lodging house and a hotel where no meals are served,\*\* and between a boarding house and an inn or hotel.1 One cannot keep an inn and tavern in a boarding house,2 but a hotel does not lose its character as such by reason of being located at a summer resort or a watering place.3 Whether or not a particular place is an inn or a boarding house is a question of fact depending on the intention of the propriator as evidenced by the character of the business conducted.4 The propriator of a lodging house, in connection with which meals are served and a bar operated, is an innkeeper,5 and a patron, paying a stipulated sum for board and lodging at such a house, is a guest * as distinguished from a boarder.7

Footnote 4: The name of the Criminality, in such case, consists in the fraudulent purpose with which the act is done.\[10\]

\_Duty to receive guests.\_See 10 C. L. 285.-At common law it is an indicitable offense for the keeper of an inn or hotel to refuse to receive any guest and entertain him with meals or lodging or both,\[11\] and by statute, in some states, it is made a misdemeanor to do so without just cause or excuse,\[11\] and, hence, evidence that would suffice to show that a private house was a house of assignation might entirely fail to prove that of a licensed inn or hotel.\[18\]

\_Liability for safety of guests.\_See 10 C. L. 288.-An innkeeper, operating a passenger elevator, must exercise at least ordinary care in the character of the appliance provided and in its maintenance and operation,\[14\] and this duty is owed to every person entering the hotel, either as guest, visitor or otherwise, using the elevator and having lawful business on the premises.\[16\]

\_Rights and liability of guests.\_See 10 C. L. 288.-The authorities are meager upon the question of the rights of the guest with respect to the room or apartment assigned to him as against the right of the landlord to transfer him to some other room or apartment.\[16\]

\_Liens.\_See 10 C. L. 288.-Under the common law and in some states by statute, a landlord has a lien upon the baggage and other property in and about an inn belonging to or under the control of his guest.\[17\]

\_Liability for effects.\_See 10 C. L. 287.-There is no substantial difference as to the rights and liabilities of the keepers thereof between an inn and a hotel.\[18\] An inn-repealing clause of 1905 (Laws 1905, p. 757, 168, $ 699). Id.

10. Not in manner of obtaining food, etc., Clark v. State \[Ind.\] 84 NE 984. Affidavit on which prosecution was based held sufficient, when ln language of statute stating that he obtained accommodation at hotel "with intent to defraud" owner and keeper. Id.

01. People v. Drum, 110 NYS 1096.

01. Penal Code, $ 381. People v. Drum, 110 NYS 1096.

01. Evidence held insufficient to show that defendant had knowledge that woman, registering twice on same evening as wife of different parties, was the same woman. People v. Drum, 110 NYS 1096. Fact that man and woman received as man and wife are not such in fact held not sufficient to convict propriter without knowledge thereof. Id.

01. McCracken v. Meyers \[N. J. Err. & App.\] 68 A 805.

01. McCracken v. Meyers \[N. J. Err. & App.\] 68 A 805. Privity of contract not essential. Id. Member of Master Car & Locomotive Painter's Association, having headquarters at defendant's hotel, injured in fall of elevator while going to floor above in reference to matter with which association was concerned. Defendant held Iiable. Id.

01. NOTE. Right of innkeeper to transfer event: A search of the authorities fail to reveal any reported case bearing directly upon this point, except the Canadian case of Doyle v. Walker, $ 0. C. G. B. 502, and the recent case of Hervey v. Hart, 149 Ala. 604, 42 S 1013, 129 Am. St. Rep. 67, 9 L. R. A. (N. S.) 213, in both of which it is held that an innkeeper has the right to assign the guest to an apartment, and to change such assignment without liability, except such as might result in damages for offering improper accommodations. In Mallin v. McCutcheon, 33 Tex.

01. At the beginning of the paper, the author is aware of the author's intention to keeper, at common law, is liable as an insurer for the loss of goods and money of the guest when placed infra hospium \[19\] and by virtue of statute, in some states, the common-law rule applies where the innkeeper fails to comply with statutory requirements as to the posting of notices \[20\]. An innkeeper is responsible for property or valuables placed in his care \[21\], and this rule is extended to boarding house keepers as well \[22\]. An innkeeper is absolutely liable for all thefts from within or unexplained losses of property belonging to his guest \[23\], irrespective of negligence on his part \[24\]. In some states liability for goods placed in a hotel for safe keeping is based upon the creation of a bailment \[25\], and the proprietor will be held liable for failure to exercise ordinary care \[26\], a presumption of negligence arising, however, in case of an unexplained loss \[27\]. A boarding house keeper may be discharged from liability by the contributory negligence of his guest \[28\]. Liability as absolute insurer does not extend to the keeper of a boarding house \[29\], his duty being merely to exercise such care as a prudent man would exercise over his own property under similar circumstances \[30\], and the proprietor of a hotel is liable to a regular boarder only for his own or his employe's failure to exercise ordinary care with respect to the boarder's property \[31\]. A boarding house keeper is responsible for negligence of his servants in respect to a boarder's property \[32\]. Delivery of clothing by a patron to a restaurant waiter establishes between the patron and the restaurant keeper a bailment \[33\], and an unexplained loss makes a prima facie case of negligence on the part of the bailce \[34\]. In such a case

01. Holstein v. Phillips, 146 N. C. 366, 59

E1037. Plaintiff arranged with proprietors

E1038. Holyst v. Clinton Hotel Co., 35 Pa. Super.

reduced rate per week, but no definite time

Ct. 297. Where evidence failed to show ex-

was fixed: Held, relation of innkeeper and

erise of ordinary care or delivery of suit-

guest was created, rendering proprietor

lble as insurer for loss of valuables in plaintiff's room, keys to room being in custody

Helser v. Berger Catering Co., 128 Mo. App.

of hotel during plaintiff's temporary absence.

Id.

hire cannot by special contract relieve him-

20. Revisal 1905, $ 1913, not followed.

Common law applicable. Holstein v. Phillips,

146 N. C. 366, 59 SE 1037.

21. Hart v. Roeckers, 7 Ohio N. P. (N. S)

01.

Evidence held to show that money was deposited for safekeeping by giving same to

employe, held out and authorized to act as

clerk, rendering proprietor liable for loss.

Zimmerman v. Murphy, 131 Ill. App. 56.

Evidence held to show that innkeeper returned money to guest, notwithstanding

that latter retained former's receipt therefor

and produced same in evidence. Vander-

grift v. C. O. Clark Hotel Co., 140 Ill. App. 256.

22. Where one pays a stipulated amount

for his board and lodging and deposits a sum of money with his landford for safekeeping,

the latter is liable for the money so taken,

whether he be regarded as an innkeeper or

boarding-house keeper. Roeckers v. Hart,

11 Ohio C. C. (N. S) 380.

23. Gilbert v. Williams, 107 NYS 715.

01. Money stolen in nighttime, where no

negligence on part of either party. Nelson

v. Johnson, 104 Mim. 440, 118 NW 828.

25. Placing trunk in custody of proprietor

of hotel, in room provided for that pur.

pose, held to create a bailment. Hoyst v.

Clinton Hotel Co., 35 Pa. Super. Ct. 297.

Suit case with contents left with proprietor

26. Host v. Clinton Hotel Co., 35 Pa. Super. Ct. 297.

01. Hoyst v. Clinton Hotel Co., 35 Pa. Super. Ct. 297.

01. Insisting on having door of boarding

house left unlocked at all times held an

element tending to show negligence on

boarder's part. Gilbert v. Williams, 107 NYS 715.

715.

001. Holstein v. Phillips, 146 N. C. 366, 59

SE 1037: Gilbert v. Williams, 107 NYS 715.

30. Gilbert v. Williams, 107 NYS 715.

01. Holstein v. Phillips, 146 N. C. 366, 59

SE 1037.

32. Gilbert v. Williams, 107 NYS 715.

01. Helsten v. Phillips, 107 NYS 715.

01. Vogelsang v. Fredkyn, 133 Ill. App.

01. That defendant did not authorize head

walter or any waiter to accept hats or coats

from guests, where it did not appear that he

did not permit them to so do, held no defense.

Id. Fact that defendant could not find waiter

who took possession of property, and that

the expected to prove that no waiter took 12 Cur. Law. INSANE PERSONS $ 205:

"not responsible" notices are not binding upon a patron unless he has notice- thereof \[85\] and consents to their terms.

Inquest of Damages; Inquest of Death, see latest topical index.

**INSANE PERSONS.**

8 1. Existence and Effect of Issanarity in Gen., $ 6, Contracts and Conveyances, 214., $ 205, $ 7, Toris, 215.

8 2. Inquisitions, 205., $ 8, Crimes, 215.

8 3. Custedy, Gunrdianship and Support, 205., $ 9. Actions By or Against, 215.

8 4. Commitment to Asylum, 212., $ 10. Removal to Residence in Another State, $ 6. Property and Debts, 213.

_The scope of this topic_ is noted below.\[30\]

$ 1. _Existence and effect of insanity in general_. See 10 C. L. 287.--One is deemed to be insane when unable to transact the ordinary affairs of life, understand their nature and effect, and exercise his will respecting them.\[37\] Generally, the presumption of sanity prevails and the burden of proof rests upon one who asserts the contrary; \[38\] but when a man becomes chronically of unsound mind,\[39\] or is adjndged to be of unsound mind, he will be presumed to so continue until the contrary is shown.\[40\] Similarly, it has been held that the appointment of a guardian for a person alleged to be non compos mentis by a court having jurisdiction creates the same presumption of mental infirmity, which presumption will prevail for at least a reasonable time thereafter.\[41\] An adjudication of insanity, however, cannot of itself relate to a prior time as evidence of incapacity, but, when it is shown that the mental condition of the ward had been the same for a considerable length of time and was the same at the time of the act affected by it as when the adjudication was had, the adjudication is competent evidence of previous insanity.\[42\]

$ 2. _Inquisitions_. See 10 C. L. 288.--In the absence of any statute regulating the procedure, the chanery or probate courts of the place of residence of the supposed lunatic is usually the proper forum in which to conduct an inquiry as to sanity; \[43\] but

$ 35. Vogelsang v. Fredkyn, 133 Ill. App. ing given period, throws upon party relying upon act done by lunatic during this period burden of showing that it took place during lunatic interval. In re Kehler (C. C. A.) 159 of adjudicated lunatics. Contractual capacity in general (see Incompetency, 11 C. L. 1885), testamentary capacity (see Wilts, 10 C. L. 2085) and capacity to commit crime (see Criminal Law, 11 C. L. 940), are elsewhere treated. General principles applicable to all guardinships, such as the person, appointment and qualifications of the guardian or committee, the compensation of the guardin, and his liability upon his bond, are more fully treated elsewhere. See Guardianship, 11 C. L. 1671.

$ 37. K'aack v. Stanton \[Tex. Civ. App.\] 112 SWV 702.

$ 38. Schindler v. Parzoo \[Or.\] 97 P 755.

$ 39. Schindler v. Parzoo \[Or.\] 97 P 755.

$ 39. Schadler v. Parzoo \[Or.\] 97 P 755.

$ 39. K'aack v. Stanton \[Tex. Civ. App.\] 112 SWV 702.

$ 40. West v. McDonald \[Ky.\] 118 SWV 872;

$ 41. Schindler v. Parzoo \[Or.\] 97 P 755.

$ 42. Where mental weakness is concomitant of old age and has been gradual and continuous for considerable period and not the result of recent or intervening cause, but of natural and gradual decay, such evidence is competent to show that conditions have not changed. Schindler v. Parzoo \[Or.\] 97 P 755.

$ 43. Probate court and upon appeal, apple- late court are proper forums in which to determine fact of mental incapacity. In re Phill-Ips \[Mich.\] 15 Det. Leg. N. 683, 117 NWV 630.

Under Rev. St. 1899, # 4160 (Ann. St. 1906, p. 2253) and Rev. St. 1889, # 3650, 3653, 3654 (Ann. St. 1906, p. 2060), as amended by Laws.

806 INSANE PERSONS $ 2. 12 Cur. Law. in Kentucky, when no court of general equity jurisdiction is in session, inquests may be held by the presiding judge of the county, or city court, or the police judge,\[44\] and the validity of proceedings in such case depends upon the action taken at the time and not upon the failure of the judge to perform clerical duties.\[45\] A substantial compliance with the statutes regulating such proceedings is all that is necessary.\[46\] In New York any person, even a stranger, may present a petition for the issuance of a commission to inquire into the mental condition of an alleged incompetent.\[47\] Notice of such application is required by statute to be given certain persons,\[48\] unless sufficient reasons are shown to exist for dispensing with such notice,\[49\] and, although the statute does not so state, it is also necessary that personal and written notice shall in general be given to the alleged incompetent.\[50\] It is then the duty of the court to which the petition has been presented either to issue a commission or to direct the questions of fact to be tried before a jury, if it presumptively appears to the satisfaction of the court from the petition and the proofs accompanying it, that the case is one of a person incompetent to manage himself or his affairs and that a committee ought in the exercise of a sound discretion be appointed,\[61\] but the court is not limited to the petition and proofs accompanying it, and should accept from those entitled to be heard whatever aid that they can render to the court in the exercise of its sound discretion.\[52\] Finally, in this same state, the validity of a finding by the jury is not affected by the fact that the commissioners add a statement thereto that certain of their number do not concur in such finding.\[53\] In the District of Columbia, where the lunacy charged is of such dangerous character as to constitute a public menace, notice to the person charged on the day of the hearing is sufficient as against collateral attack, provided, of course, it be given before the hearing.\[54\] The Florida statute, as amended is held to be constitutional.\[56\] The person charged with mental incapacity is usually entitled to a finding by a jury if he so elects.\[56\] Generally, any witness who knows the facts, having stated such fact, may express opinions, founded on such knowledge, as to a person's mental condition.\[57\] The judgment in such a proceeding merely determines the mental.\[1903, p. 200, wifre residing with husband and having her property in certain county is resilient to such county and within jurisdiction of its court in proceedings to determine sanity, though place in anyment county.\[191\] It NYS 1004.\[192\], NYS 1004.\[193\], NYS 1004.\[194\], NYS 1004.\[195\], NYS 1004.\[196\], NYS 1004.\[197\], NYS 1004.\[198\], NYS 1004.\[199\], NYS 1004.\[199\], NYS 1004.

state at the time of the last inquest and in no way conflicts with or annuls prior contrary judgments.\[88\]

\_Appeal.--\_The holdings are not uniform on the question of the right of appeal in lunacy proceedings: Thus, in Texas, no appeal lies from a decision in a proceeding to have a person adjudged a lunatic and sent to an asylum,\[89\] in Missouri no appeal may be taken from a verdict of the jury in lunacy proceedings,\[90\] the superintending control of the circuit court over the probate court being exercisable only by an original writ of certiorari, mandamus, or prohibition, issuing out of the former and directed to the latter;\[88\] while in Indiana a prosecuting attorney, appearing and defending a proceeding for an adjudication of incompetency and for the appointment of a guardian for a person of alleged unsound mind, cannot appeal from a judgment in favor of the petitioner.\[88\] In New York, it is held that the court's discretion under the statute is the discretion of supreme court, and not of any one part or term thereof, and that when an appeal from a discretionary order is taken to the appellate division the party appealing is entitled to have it reviewed.\[88\] Where the right to appeal lies, the ordinary rules governing appeals apply, and a verdict or finding on the question of a person's sanity will not be disturbed on appeal if sustained by the evidence,\[88\] and a verdict which the jury is coerced to render will be set aside.\[89\]

In Louisiana, where the alleged lunatic dies pending appeal from a judgment of interdiction, the suit abates and the judgment has no effect as res adjudicata.\[90\]

\_Costs.--\_In New York costs and disbursements should not be awarded against an unsuccessful petitioner where there is reason to believe that respondent was not of sound mind when the proceedings were begun,\[88\] nor can the court award costs in such case against the incompetent's property since a finding of sanity deprives the court of any control over such property,\[91\] nor should an alleged incompetent, tried and adjudged a lunatic without an opportunity to defend, be required to pay any part of the expenses incurred in such proceeding as a condition to setting aside the verdict and ordering another hearing.\[88\] The compensation of the commissioners in New York is fixed by court rule.\[92\] In New Jersey, the unsuccessful petitioner is entitled to costs, including counsel's fees and expenses, where he has acted in good faith from justifiable motives, and there is a fund under the court's control out of which payment can be ordered to be made.\[93\] In Missouri where the person at whose

58, Judgment of circuit court committing (@3. In re Burke, 110 NYS 1004. one to asylum does not conflict with, nor is it annulled by, a subsequent judgment of county court finding him sane about a month later, after dismissal from asylum as improved. Logan v. Vanarsdall, $3 Key. L. R. 1112. 65. Evidence held to show jury were covered into agreement. In re Lewis, 57 Misc. 670, 109 NYS 1112. 66. Such judgment is not res adjudicata in cause contesting will on ground of testator's one under Rev. St. 1855, act. 2735, regulating probate proceedings. Glenn v. State \[Tex. City. App.\] 20 Tex. Ct. Rep. 828, 107 SW 621. 66. Rev. St. 1859, 6, 39, $278, 1674 (Ann. St. 1906, pp. 434, 1217, 2060-2073), make no provision for such appeal. Morris v. Morris, 128 Mo. App. 673, 107 SW 405. 61. Morris v. Morris, 128 Mo. App. 673, 107 SW 405. 62. Under Burns' Ann. St. 1901, $ 2715, prosecutor has no further duty nor statutory authority to proceed after motion for new trial is stricken from files. Kelly v. Keely, 41 Ind. App. 672, 84 NE 767. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 71. 78. 79. 81. 82. 83. 84. 85. 86. 87. 88. 89. 80. 81. 83. 84. 86. 88. 89. 81. 84. 89. 82. 85. 87. 89. 81. 88. 89. 80. 81. 89. 82. 83. 84. 86. 89. 81. 89. 82. 84. 88. 89. 80. 81. 89. 83. 84. 89. 81. 84. 89. 85. 86. 87. 88. 89. 81. 89. 82. 89. 83. 84. 89. 85. 86. 87. 89. 88. 89. 89. 80. 81. 89. 80. 81. 89. 81. 89. 82. 83. 84. 89. 81. 89. 82. 84. 89. 83. 85. 86. 87. 88. 89. 89. 8 instance insanity proceedings are had is not an officer acting officially, the court may tax the costs against him if the suit is unsuccessful,\[12\] and no appeal may be taken from a judgment for costs in a lunacy inquiry or from the action of the court in any ruling on a motion to tax or retax costs.\[78\] In Nebraska a county cannot recover from the insane person's estate the costs and expenses incident to the examination before the commissioners of insanity.\[14\]

SS 3. \_Custody, guardianship and support. Guardianship._See 10 C. L. 288_--The state has inherent jurisdiction over insane persons for the purpose of protecting both the public and the incompetents from their insane acts,\[75\] the jurisdiction of the courts and the manner of its exercise being usually regulated by statute,\[76\] though where that has not been done jurisdiction may usually be exercised according to the established practice of the courts in lunacy cases.\[77\] In exercising this jurisdiction in the appointment of committees, the health and comfort of the incompetent and the preservation of his estate are primary and guiding considerations, the consideration to which the claims of the next of kin are entitled being merely secondary.\[78\]

The proceedings for the appointment of a committee are generally initiated by petition of one authorized by statute to so petition,\[79\] together with notice to the persons required by statute to be notified,\[80\] but such notice may in some states be dispensed with.\[81\] After proper petition and notice, questions of the sufficiency of commission in nature of writ de lunatice in- oitrendo, case is made which moves court to appoint receiver pendente lite, and afterwards, upon the lunquest subject of insulinationismphant, 48 Vdash. 374, 93 P 534.

In discharging receiver, allow him compensation for his services, and will allow petitioner taxed costs of proceedings, including reasonable counsel fee and expenses reasonably and properly incurred. Id.

72. Rev. St. 189, $ 3656 (Ann. St. 1906, p. 2062). Morris v. Morris, 128 Mo. App. 673, 107 SW 405.

01. Rev. St. 1899, $ 39, 278, 1674 (Ann. St. 1906, pp. 434, 1217, 2060-2072), make no provision for such appeal. Morris v. Morris, 128 Mo. App. 673, 107 SW 405.

01. Such action not authorized under Cobbye's Ann. St. 1903, $ 9637. Xeramey County v. Elsam (Neb.) 116 NW 270.

01. Sporza v. German Sav. Bank, 192 N. Y.

8, 84 NE 406.

76. In re Andrews \[N. Y.\] 85 NE 699, rvg. 109 NYS 831. Const. 1894, art. 6, $ 1, continuing supreme court with general jurisdiction in law and equity, preserves jurisdiction over lunatice and their property, originally vested in chancellor and court of chancery, and subsequently transferred to supreme court as it existed prior to Const. 1846. Id. On separation from Great Britain at time of revolution, so much of law as formed part of king's prerogative as was applicable under our form of government was vested in people of state and by legislative enactments was transferred to chancellor, who should have care of and provide for safe keeping of all llotts and lunatice and of their real and personal gestures. Act March 20, 1801 (1 Rev. Laws 1813, p. 147, c. 30). Sporza v. German Sav. Bank, 192 N. Y. 8, 84 NE 406. Upon organization of supreme court, this jurisdiction was transferred to it. Id. Superior court has juris the evidence to warrant the appointment,"2 and as to the person of the appointee," are governed by the ordinary rules,"4 though where the next of kin or the heirs are equally as well qualified as others, they should be given the preference."8 In New York a committee of the person and estate of an insane infant is not ordinarily appointed though there is no legal objection to such course,"4 and the court appointing a committee has power to correct the spelling,of the incompetent's name by stating the various names under which he has been known."8 In Michigan findings of law and fact need not be made in proceedings for the appointment of a guardian unless required by statute,"8 and the question of appointing a special guardian is addressed to the sound discretion of the court and is to be determined by the apparent condition of the ward or his estate or both,"9 and where the issue of incompetency has been determined on application for a general guardian, it is not necessary that there be a new hearing and determination of that issue,"9 a proper showing within the statute being made by the proofs produced at the hearing on the application for a general guardian."1 In Washington, where the court has jurisdiction to appoint guardians for insane persons wholly independent of its jurisdiction to commit to hospitals, the validity of the order appointing the guardian depends in no manner upon the validity of the previous adjudication of insanity, in the absence of fraud or conspiracy."2 In Virginia an order appointing a committee is an adjudication upon all the facts necessary to give the court jurisdiction to make the order and it is to be presumed that the record in which the order was entered was such as to authorize its entry, and and therefore its validity cannot be collaterally impeached or inquired into."8 In Nebraska the heirs, apparent or presumptive, or those dependent upon an alleged incompetent for support, may appeal from an order of the county court dismissing their petition for the appointment of a guardian for such incompetent,"4 and in Ohio such an appeal transfers to the appellate court the entire case and empowers it upon a proper finding to appoint a guardian." Whereupon it is the duty of the clerk of such court to certify, by a duly authenticated transcript,

state that service would excite and harm. 88. No statute so requires. In re Phillips'8 In re Andrews, 112 NYS 167. Jurisdiction \[Mich.\] 15 Det. Leg. N. 853, 117 NW 680. of court over person and property of incompetent is general, and, although original. 74, 14 Det. Leg. N. 826, 114 NW 868.

marily notice of presentation of petition origin. 90. Comp. Laws, & 8710. Wagner V. Wayne

Inally for appointment of committee is re-quired to be given to husband or wife, if any, or to one or more relatives of incompetent, or to public officer specified by statute, yet court acquires jurisdiction without such notice if sufficient reasons for dispensing there."8 With are set forth in petition or accompanying affidavits. In re Andrews, 109 NYS 831.

82. Evidence sufficient to sustain order appointing guardian of incompetent person. In re Deleglise, 147 Wis. 41, 114 NW 120.

Evidence held insuffment to warrant appointment of committee where alleged incompetent 95 years old had conveyed his eetate to himself and four other trustees for purpose of founding charitable organization, reserving income to himself for life. In re Burke, 110 NYS 1004.

88. In re Anderson, 109 NYS 831.

01. See Guardinship, 11 C. L. 1671.

01. In re Andrews, 109 NYS 831.

01. In re McMillan, 110 NYS 622. In case of infant incompetent, general guardian can exercise all functions of committee. Id.

01. Sporas v. German Sav. Bank, 152 N. X.

8, 84 NE 406.

19 Curr. L--14.

88. No statute so requires. In re Phillips'8 In re Andrews, 112 NYS 167. Jurisdiction \[Mich.\] 15 Det. Leg. N. 853, 117 NW 680.

01. Wagner v. Wayne Probate Judge, 151 competent is general, and, although original. 74, 14 Det. Leg. N. 826, 114 NW 868.

01. Comp. Laws, & 8710. Wagner V. Wayne

01. Wagner v. Wayne Probate Judge, 151 Mich. 74, 14 Det. Leg. N.

826, 114 NW 868.

92. Donaldson v. Winningham, 48 Wash, 374, 93 P 534.

01. Silence or incompleteness of record of county court respecting orders appointing committees of lunatic will not avail in collateral attack. Howard v. Landsberg's Committee \[Va.\] 60 SS76. Lunatics committee in ejectment to recover land sold in action against former committee cannot question validity of order appointing former committee nor of sale, where after such appointment and sale and upon temporary restoration to sanity and upon his motion order was made that this committee surrender to him such of estate as was then in his hands.

Id. Alleged failure to notify incompetent. Id.

94. Tierney v. Tierney (Neb.) 116 NW 764.

01. Rev. St. & 6302. Appeal from probate order refusing to appoint guardian, and dismissing application, to court of common pleas. In re Oliver's Guardinship, 77 Ohio St. 474, 82 NE 785.

the order, judgment and proceeding to the lower court." In Ohio exclusive original jurisdiction to remove a guardian is vested in the probate court and the court of common pleas is without original jurisdiction to entertain an application for such purpose." In New York a committee cannot be removed without notice, or in a proceeding not asking for such relief, where proper independent proceedings for such removal have been instituted,"8 and the court has no power to amend an order removing a committee on a motion to resettle such order where the ostensible purpose is to reverse and nullify the removal ordered."

Statutes regulating the appointment of guardians for insane persons must, of course, conform to constitutional limitations.1

\_Custody.--\_Where an insane person is released from a sanatorium during proceedings to remove the committee on charges involving the latter's fitness and mortality, other provision should be made for the former's custody than placing him in the latter's custody pending determination of removal proceeding.2

_Support in general,_ \[85, 19, C. L. 288\]--At common law an insane person was liable for the reasonable value of things furnished him necessary for his support." In Virginia the jurisdiction of the court to authorize the application of the proceeds of the corpus of insane infants' real estate to their maintenance is entirely statutory and, according to statute, such authority must be given, if at all, before and not after the expenditure has been made." In New York, where an estate if carefully managed will yield sufficient income for the incompetents' needs, the principal should not be reduced until the income substantially fails." In West Virginia the committee of a lunatic acts in a fiduciary capacity and is entitled to have doubt and uncertainties as to the construction of a will removed by a court of equity, where the law affords him no method by which his rights, powers and liabilities may be defined."

86. In re Oliver's Guardianship, 77 Ohio St. under Code Civ. Proc. $ 2323a does not 474, 83 NE 795.

01. Rev. St. $ 524. In re Oliver's Guardianship, 77 Ohio St. 474, 83 NE 795. Where application for removal is made in first instance to court of common pleas, it is not

01. State Commission in Lunacy v. Eldridge

error to sustain general demurrer to such application and to dismiss proceedings. Id.

4. Code 1904, 91 2604, 2605, 1702, 1708. Hess

1. Under Code Civ. Proc. $ 2322, 2323a, 2335, 2335, 2339, 2342. In re Andrews \[N. Y.\] $ 62 NE 699, rvg. 109 NYS 831.

1. Where bond of substituted committee

1. When borrowed and flied and application

1. If not, the court of the court 12 Cur. Law. INSANE PERSONS $\\lx@sectionsign$ 3. 211

\_Support of inmates of hospitals and asylums.\_See 1e C. L. 258--In Iowa the relatives of a person confined in an asylum are liable for the latter's support,7 and the auditors of the several counties are authorized and empowered by statute to collect from the property of patients in insane hospitals any sum paid by the county on their behalf in the same manner as any other claim is collected.8 However, where such a claim is filed in guardianship proceedings in the probate court, it has been held that it is not triable by jury " and the district court, as a court of probate, having obtained jurisdiction of the guardianship, alone has authority to order the guardian to pay over to the state money in his hands.10 In such an action testimony of a member of a board of supervisors that he made an estimate, based on the expenses of keeping all patients, and found that the expense for each was approximately a certain sum per month, is competent.11 A county obtaining judgment against an insane person may obtain an order on the guardian to pay enforcible by attachment or by execution sale.12 In the District of Columbia the reduced rates of maintenance provided by act of congress to be deducted from the pensions of the inmates of the government hospital is intended to apply to all pensioners and not alone to inmates of the national home for disabled volunteers transferred to that institution.14 In California the statutory requirements that certain persons are liable for the support of their indigent, insane kindred confined in a state hospital have been held constitutional.14 An action to enforce such liability for support of a patient in the state hospital 15 may be brought in the name of the hospital,18 and

property of ward to pay indebtedness and hospital, In which the guardian appeared maintenance, will construed not to authorize and did not object to the form of the pro- such procedure. McDonald v. Jarvis \[W. Va.\] 60 SE 990.

transferred to another court, Is valid, at 7. Wrepello County v. Eikelberg \[Iowa\] least as an allowance of a claim against the guardian and the incompetent's estate. Id. for sums paid by it to state for care of wife 13. Act Congress Feb. 26, 1906 (33 Stat. 731, confined in insane hospital. Id. Code, $\\lx@sectionsign$ 2297, construed. Id. Words "relative" Logue v. Fenning, 29 App. D. C. 195. Act and "relation," technically construed, refer to one connected by ties of blood, but em-ployed in generic senses include those connected by affinity as well as consanguinity. Id.

8. Code, $\\lx@sectionsign$ 2297, authorizes collection of claim by action, judgment and execution.

1. PoL Code, $\\lx@sectionsign$ 2176, is not unconstitution as class legislation, taking property without due process of law, nor as amounting to double taxation. State Commission in Lunacy v. Eldridge \[Cal. App.\] 94 P 597. Act 1897, p. 311, c. 227, providing for recovery of cost of supporting insane patients from certain classes, is not unconstitution as class legislation. Napa State Hospital v. Dasso, 153 Cal. 698, 96 P 355. Act 1897, p. 311, c. 227, providing for recovery for cost of supporting patients of Napa Hospital, is not unconstitution under Const. art. 12, $\\lx@sectionsign$ 1, since that section relates to creation of private corporations by special law, while law above creates public hospital as governmental agent of state. Id.

1. Action for the support of a patient in the Napa State Hospital brought in 1901 under the statute of 1897 is unaffected by the statute of 1903, and may be prosecuted to final determination regardless of the passage of such statute. Laws 1897, p. 311, c. 227, expressly not affected by St. 1908, p. 485, c. 364. Napa State Hospital v. Dasso, 153 Cal. 698, 96 P 355.

1. Action for support of patient in hospital may be brought in the name of the in the absence of a showing that the court lacked jurisdiction of the alleged insane person, it will be presumed that the preliminary steps which the law required to be taken in order to warrant the adjudication of insanity were regularly had.\[17\] Where the incompetents' debts at the time of his commitment exceed the value of his estate, the state has no claim thereon for his support and maintenance.\[18\]

SS 4. \_Commitment to asylums.\_See 10 C. L. 290 _Commitment._--Ordinarily one may not be committed by the authorities without legal inquiry unless he be violently or dangerously insane,\[19\] nor may one be committed without notice to the proper persons,\[20\] though in New York notice may be dispensed with under certain conditions.\[21\] In New York, also, every individual committed to a state hospital is entitled to a trial by jury upon the demand of himself or any friend in his behalf,\[22\] but this right is personal to the alleged incompetent and those specially mentioned by statute\[23\] and may be waived.\[24\] In Florida the statute as amended, regulating the commitment to asylums, has been held constitutional.\[25\] A commitment of a person to an insane hospital is usually held to be an adjudication by the court\[26\] to which the ordinary rules with reference to collateral attack apply.\[27\] In Nebraska a county cannot recover from the estate of an insane person the costs and expenses paid by such county incident to his commitment and transportation to the hospital for the insane.\[28\]

_Discharge._--The discharge of patients committed to an asylum or hospital for the insane and the effect thereof is generally regulated by statute.\[29\]

Inspital by its treasurer, and need not be brought by the hospital trustees. Act March 3, 1897, p. 311, c. 227. Napa State Hospital 11, p. 312, p. 313, p. 314, p. 315, p. 316, p. 317, p. 318, p. 319, p. 319, p. 317, p. 318, p. 319, p. 320, p. 321, p. 322, p. 323, p. 324, p. 325, p. 326, p. 327, p. 328, p. 329, p. 320, p. 321, p. 323, p. 324, p. 325, p. 326, p. 327, p. 328, p. 329, p. 329, p. 330, p. 331, p. 332, p. 333, p. 334, p. 335, p. 336, p. 337, p. 338, p. 339, p. 339, p. 340, p. 341, p. 342, p. 343, p. 344, p. 345, p. 346, p. 347, p. 348, p. 349, p. 349, p. 350, p. 351, p. 352, p. 353, p. 354, p. 355, p. 356, p. 357, p. 358, p. 359, p. 360, p. 361, p. 362, p. 363, p. 364, p. 365, p. 366, p. 367, p. 368, p. 369, p. 369, p. 370, p. 371, p. 372, p. 373, p. 374, p. 375, p. 376, p. 377, p. 378, p. 379, p. 380, p. 381, p. 382, p. 383, p. 384, p. 385, p. 386, p. 387, p. 388, p. 389, p. 389, p. 390, p. 391, p. 392, p. 393, p. 394, p. 395, p. 396, p. 397, p. 398, p. 399, p. 399, p. 399, p. 390, p. 391, p. 392, p. 393, p. 394, p. 395, p. 396, p. 397, p. 398, p. 399, p. 399, p. 399, p. 399, p. 390, p. 391, p. 392, p. 393, p. 394, p. 395, p. 396, p. 397, p. 398, p. 399, p. 399, p. 399, p. 399, p. 391, p. 392, p. 393, p. 394, p. 395, p. 396, p. 397, p. 398, p. 399, p. 399, p. 399, p. 399, p. 399, p. 399, p. 39 * \[12\] Cur. Law. INSANE persons $ 5. 213

- \[13\] $ 5. \_Property and debts.\_See 10 C. L. 291.--All matters not peculiar to the property and debts of adjudicated insane persons, such as the general powers, duties and liabilities of guardians or committees, the administration of the property, the presentation and allowance of claims, judicial proceedings to sell the ward's property, accounting and settlement by the guardian or committee, and rights and liability between guardian and ward, are more fully treated elsewhere.\* If an act of bankruptcy was committed while the bankrupt was sane, the court obtains jurisdiction and may continue the proceedings though he subsequently becomes insane, but if the act of bankruptcy is committed while the bankrupt is insane, the court has no jurisdiction.\[11\] In New Jersey the court may appoint a temporary receiver pending the determination of the inquisition,\[52\] and allow him compensation for his services upon his discharge.\[84\] In New York no trust results in favor of a lunatic where a conveyance to the lunatic's committee is not supported by a consideration entirely taken from the lunatic's

nounce judgment or order, it is conclusive void, should have been in form of notice of as to the condition or relation of the person.

motion to modify above orders on notice to Code Civ. Proc. 81 1766, 1908. Aldrich by Bar-

parties entitled thereto. In re Andrews, 111 ton, 153 Cal. 488, 95 P 900. Proceeding for

NYS 417.

restoration of insane person to capacity under Code Civ. Proc. 8 1766, is inapplicable to

mitment, detention and discharge of the inapfinal to hospitals but not put under

sane are not penal in any sense of the word, guardianship. Id. Statute authorizing

and term "ex post facto" laws has no apparentement of state hospital for in-

plication to lawe which merely affect or

sane to discharge patient who in his judgment has recovered gives him no juris-

\[Vwash.\] 94 P 926. Act Feb. 21, 1907 (Laws

diction to issue certificate of discharge to

1907, p. 35, c. 30, $ 6), is not unconsutritional

one not a patient to extent of having been

as ex post facto. Id. Under Laws 1907,

committed to asylum and having remained

there, except for temporary absence, for care

and treatment at time of his discharge. Id.

dicharged petition is properly served on

Under Pol. Code, $ 2189, one released in 1392

prosecuting attorney of county from which

from asylum, occasionally visiting physicians

be was committed, and not on prosecuting

of same until 1900, which visits ceased

attorney of county where case originated,

tween 1900 and 1905, when he received

since prosecuting attorney for county from

tificate of discharge, was not inmate when

written committed must resist application. Id.

certificate was granted. Id. Statute giving

Act Feb. 21, 1907 (Acts 1907, p. 35, c. 30, $ 6),

applies to all criminal insane, regardless of

force possessed by judgment under statute

governing proceedings to judicially deter-

Id. Applicable to one committed before act

mine fact of restoration to sanity is not to

be construed as putting it beyond power of

Wyoming: Proper officers of state hospital

party against whom such certificate is of-

for insane have authority to discharge re-

fered to show that in fact it was issued in

case in which superintendent of asylum had

no power to act. Code Civ. Proc. $ 1766,

reasonable discretion, whenever circum-

1908, constructol. Id. Certificates of

stance are such as to justify such course,

pacity granted by superintendent of insane

anylum under St. 1897, p. 331, c. 227, regard-

either unconditionally or temporarily, upon

ing commitment and care of insane persons,

expressed conditions. Rev. St. 1899, 1 $ 4888,

or under St. 1901, p. 639, c. 211, providing

for discharge of patients committed to hos-

232, $ P 59. Person unlawfully restrained

pital but not confined therein, constitute

merely prima facle proof of sanity. Id.

wht of habeas corpus upon proper applica-

While a discharge by hospital authorities

under Code Civ. Proc. $ 1766 is adjudication

that person committed has recovered from

insault, it afforded, prior to enactments of

1908, only prima facle evidence of legal

pacity in the discharged person, under Code

Civ. Proc. $ 40, Id. Such order not within

meaning of phrase "restoration to mental

soundness and capacity" used in will. Id.

New York: While orders of court deciding

that insane person shall remain in certain.a

manatorium until further order of court on

notice to certain persons remain in full

force, application for removal of such person

from such sanatorium, so far as it is not

based on claim that incompetent had

nounced as being criminally insane to be

covered sanity and that commitment was

a
for insane have authority to discharge re-

or, in order to be consistent with the

of the law.

1910, p. 35, c. 30, $ 6),

and, in order to be consistent with the law.

**funds,34** but the lunatic's estate has an equitable lien upon land for money improperly used by the committee to purchase land on the latter's own account.35 In this state an insane widow of a testator cannot legally elect to take under the will in lieu of dower, nor can such right be exercised by the state commission of lunacy for her.36 The proceeds of the sale of an incompetent's property are deemed property of the same nature as the estate or interest sold, until the incompetency is removed.37 The court may authorize the committee to vote stock in a corporation owned by an insane ward.38

**SS 6.**\_Contracts and conveyances.\_See 10 C. L. 201.\_The cancellation of instruments on the ground of incapacity is treated elsewhere.39 As a general rule the deeds and contracts of a person of unsound mind who has not been judicially declared incompetent are voidable,40 but an executed contract, made with a person of unsound mind in good faith, for a valuable consideration, without knowledge of the mental un-

**84, 35.** Storm v. McGrover, 189 N. Y. 668, 82

**86.** Laws 1886, p. 586, c. 547, **1** 180; Laws

\*\*1907, p. 1010, c. 462, **SS 6a, subd. 2.** Right

**is personal.** Camardella v. Schwartz, 110

**NYS 611.** Dover right remains in land and thus renders unmarketable title derived un-

**weral to contract with sister to give her call**

\*\*der executor's deed from testator's admins-

**turns with will annexed. Id.**

**87.** Code Civ. Proc. **6** 235b.\*\* Where person

\*\*whoes land is sold during his infancy 1e in-

**curable incompetent from birth, the nature**

\*\*of his property remains unchanged during lifetime. In re McMillan, 110 NYS 622,

**Property sold descends as it would have**

**descended if unsolc. Id. See Descent and Distribution, 11 C. L. 1078.**

**88.** **Held proper for court to authorize committee to vote on stock of company, majority of which was owned by incompetent, and to**

**make committee eligible to election as president. In re Andrews, 109 NYS 831.**

**89.** See Cancellation of Instruments, 11 C. L. 493. See, also, Incompetency, 10 C. L. 40,

**40.** Smith v. Ryan, 191 N. Y. 452, 84 NEW 402.\*\*

**Ground on which ded of incompetent his**

**avoided is that by infirmity of intellect his**

**is incapable of giving assent. Id.**

\*\*Evidence sufficient to invalidate: Evidence

**in partition action held sufficient to show**

**plaintiff's deed from aged person to have been executed while grantor was of unsound mind, and to have been procured by undue influence. Lindily v. Lindily \[Tex. Civ. App.\] 109 SW 467, aff. \[Tex.\] 113 SW 750.**

**Evidence held to show that grantor was not**

**mentally competent to understand transaction of executing deed. Schindler v. Parzo \[Or.\] 97 P 756s. Court of equity at suit of committee of lunatle will set aside transfers of his property made by lunatic to his**

\*\*gon and agreement dissolving partnership between them where it appears from medical and other testimony that father to knowl-

**edge of son was non compong for some time before he made transfers, at which time son was transacting his father's business under**

**power of attorney from him, and that in each transaction son and not father was**

**benefited. Smith v. Smith, 29 App. D. C. 408,**

\*\*Evidence insuffetent: Evidence held in-

**sufficient to show grantor of deed 20 years old was so unsound at time of conveyance as to warrant setting same aside. Logan v. Vanradall, 33 Ky. L. R. 608, 110 SW 821.**

\*\*Held that there was senile dementia bit too insignificant degree to invalidate will. Suc-

\*\*95, 50 Am. St. Rep. 96; Yoe v. Benjamin C.

soundness, will not be avoided unless there is a return of the consideration,41 though the rule is otherwise where the grantee takes with knowledge of grantor's incapacity.42

SS 7. \_Torts.\_See 8 C. L. 827

SS 8. \_Crimes.\_See 10 C. L. 829.\_In New York, where one on trial for murder defends on the ground of insanity, he has a right to appear in person, to be represented by counsel, and introduce evidence,43 and if, on all the evidence and the verdict of the jury, the court should decide that his discharge would be dangerous to the public peace and safety, it may commit him to an insane hospital until sane,44 and such procedure has been held constitutional.45 In New Jersey, insanity, to prevent the execution of a sentence of death, must be of such a character as to render the prisoner incapable of understanding the nature of the proceedings against him and his impending execution.46

SS 9. \_Actions by or against.\_See 10 C. L. 839.\_Actions by and against guardians and committees, not peculiar alone to persons adjudicated to be insane, are treated elsewhere,47 as is also the appointment of guardians ad litem and next friends.48

Since an insane person is in law incapable of making a change of residence,49 an action against an insane defendant in tort may be brought in the county where the insane defendant has his legal residence.50 His legally appointed guardian may be joined as a party defendant,51 and where, in such case, the guardian waives issue and service of summons, enters his appearance, and summons is issued to another county for the insane defendant and is personally served upon him, and the action is subsequently dismissed as to the guardian only, it is error for the court to quash the service on the insane defendant and dismiss the action for want of jurisdiction over his person.52 In New York an incompetent person is a necessary party to an action brought to recover damages for acts done by him personally,53 but where the committee of the incompetent puts him out of the case by stipulation, such committee cannot question his absence and throw the costs of a dismissal due to the absence of the incompetent upon plaintiff,54 though where the action, if it were to proceed against Howard Masonic Mut. Benev. Ass'n, supra), but not where the contract makes the pay-ments due only upon "notice" (Coortney v. U. S. Masonic Ben. Ass'n \[Iowa\] 53 NW 283), constitutional null contrary is shown because, under the by-laws of a fraternal word reasonable doubt, since it has been order, the lodge upon due notice to it must unquestioned for long period of time. Peo-pay the assessments of an incapacitated pl. V. Baker, 110 NYS 848.

member, such incapacity will not excuse the glving of due an formal notice thereof be-acquitted of homelide on ground of insanity fore delimuency. Sterling v. Woodman, 28

and committed to hospital had opportunity to introduce evidence as to present montal R. A., 87 Minn. 417, 92 NW 337; Smith v. Soverision Camp W. W., 179 M.o., 119, 77 SWP 852. In Buchanan v. Supreme Conclave I. O. H., 178 Pa. 465, 35 A 873, 56 Am. St. Rep. 714, 34 L. R. A. 436, it was held that upon the insured becoming insane the society, up-

of not guilty by reason of insanity. People clary, should notify such beneficiary of any further assessments, and that notice to the insured, under the circumstances, did not release the society. The general principle

alver common-law rule. In re Lang \[N. J. Law\] 71 A 47. Instruction given by judge held correct, and instruction offered by defendant incorrect. Id.

L. R. A. (N. S.) 319.

41. Smith v. Ryan, 191 N. Y. 452, 84 NE 402.

Deed made by person of unsound mind before an adjaction of insanity to person who has no knowledge of such incapacity is voidable only, and the grantee must be put in statu qo before the avoidance of the dead or contract. Stadbaker v. Faylor

\[Jnd.\] 83 NE 1747.

the committee, might raise serious complications to the prejudice of the incompetent, and a judgment against the committee might be prejudicial to the incompetent, the court having general supervision over incompetents and their estates may properly prevent the action from proceeding.\[55\] In Illinois an action affecting real estate, the title to which is in an insane person, must be against the ward, and not the conservator.\[56\] In Virginia a lunatic is not a necessary party to a suit to sell his property for a debt, his committee being the proper party defendant,\[57\] and in such a proceeding the appointment of a guardian ad litem is wholly unnecessary where there is a committee, unless there is a conflict of interest between the lunatic and the committee.\[58\] In Ohio in the absence of any special provision with regard to procedure as to an insane party to a divorce suit, the general statutes apply, and the appointment of a trustee for an insane defendant in a divorce proceeding is proper,\[59\] and property rights of parties to a divorce proceeding may be adjudicated notwithstanding the defendant is insane.\[60\] In Texas, in certain actions, it is a matter for the discretion of the judge whether the mental condition of an alleged lunatic be determined in limine or whether it be submitted to the jury along with the other issues of the case.\[61\] Where it appears that the presence of a lunatic who has escaped from a certain state to another is necessary to the trial of a cause instituted in the former state, a writ of protection will sometimes issue permitting him to enter and remain in the former state without molestation provided he remains during the entire time in the custody of designated persons.\[62\] Limitations do not operate against a lunatic until his sanity is restored,\[63\] regardless of whether he has been so adjudged insane or not,\[64\] but it is held that where after one is adjudged a lunatic, he is discharged as restored to sanity, limitations commence to run and continue to do so notwithstanding a recurrence of the insanity later.\[65\] In some states, judgments may properly be rendered against insane persons,\[66\] in others a judgment rendered against an insane person is voidable.\[67\] In New York, where the committee of a lunatic is an unsuccessful contestant upon probe, and there has been no special guardian appointed for the lunatic, costs cannot be awarded to the committee.\[68\] $ 10. _Removal to residence in another state.\[69\]_ See 10 C. L. 294\_

56. Under Illinois statute now in force changing statute existing prior to 1874. Nimmons v. Stryker, 132 Ill. App. 414. 57,58. Howard v. Landsberg's Committee \[Va.\] 60 SS 769. 59,60. Kerlick v. Kerlick, 10 Ohlo C. C. (N. S.) 524. 61. In action in partition wherein deed from alleged lunatic was sought to be set aside, it is matter of discretion with trial court as to whether he would inquire into mental condition of alleged lunatic in limine or hear evidence and submit question to jury along with other issues of case. Landly v. Lindly \[Tex. Civ. App.\] 109 SW 467, afd. \[Tex.\] 115 SW 750. 62. Where one adjudged insane in New York escaped to Virginia, where he was declared sane, and instituted action in conversion against his committee in the federal court in New York, alleging citizenship in Virginia, setting up adjudication of sanity and that New York judgments were void for lack of jurisdiction, federal court, where it appears that his presence in New York is necessary to trial of issues joined, will issue writ of protection permitting him to enter New York, remain there during trial,

## 11 INOLVENCY.

- 1. Effect of Federal Bankruptcy Act on 4. Administration of Insolvent Estate, 217. State Insolvency Laws, 217.
- 1. Problems and Particles to Adjudicate Insolvency and Discharge of Insolvent, 218.
- 1. Property Passing to Assignee, 217.

_The scope of this topic is noted below. \[50\]_

SS 1. _Effect of federal bankruptcy act on state insolvency laws._ See 10 C. L. 200\_

The suspension of state statutes by the national bankruptcy act is treated in an appropriate topic. \[70\]\_

SS 2. _Procedure and parties to adjudicate insolvency._ See 10 C. L. 200\_--The supreme judicial court of Massachusetts has supervisory jurisdiction of insolvency cases, \[71\] and a motion to dismiss a bill for relief without prejudice before the entry of the decrease of that court is discretionary. \[72\]\_

SS 3. _Property passing to assignee._ See 10 C. L. 200\_--

SS 4. _Administration of insolvent estate._ See 10 C. L. 200\_--A claim is provable which is recoverable in an action at law. \[73\] Damage for breach of contract is a legitimate claim against an insolvent's estate. \[74\] The right to priority generally depends upon the character of the creditor's claim. \[78\] An unlawful preference made by the insolvent may be recovered by the assignee, \[76\] but a receiver of an insolvent cannot, in addition to having an assignment of uncollected claims set aside, recover the sums collected which have been applied to the payment of another creditor's claim. \[77\] In

eq. This article treats only of the general

gage from corpus of estate unless it be law or insolvency and insolvency procedure

shown that credit was given upon faith of and settlement. Matters pertinent to bankruptcy (see Bankruptcy, 11 C. L. 383), assign-

also that there was diversion of such income

ments for the benefit of creditors (see As-

for benefit of mortgage. Fordyce V. Kansas

gments for Benefit of Creditors, 11 C. L.

City & N. Connecting R. Co., 145 F 566. Buyer

$00), the appointment, rights, and duties of

ordered brokers to purchase certain stock
receivers (see Receivers, 10 C. L. 1465), and purchase was made by another concern

discharge of insolvents from imprisonment

which advanced purchase price, whereupon

for debt (see Clivil Arrest, 11 C. L. 627), the

buyer paid amount due and requested trans-

marshaling of assets (see Marshaling Assets

and Securities, 10 C. L. 690), and composition

plished brokers suspended and purchasing

with creditors (see Composition with Creditors, 11 C. L. 662), are elsewhere treated.

brokers' general account. Buyer held pre-

70. See Bankruptcy, 11 C. L. 383.

ferred creditor, entitled to stock or value

71. Rev. Laws, 163, 817. Jackson v. En-

thereof. Harmon v. Sprague \[C. C. A.\] 163 sign, 193 Mass. 116, 85 NE 527. jurisdiction

Invoked by bill in equity. Id. Not technically an appeal, as suit does not stay pro-

proceeds to be applied to purchase of other

socks, but sale was not consummated on ac-

72. Jackson v. Ensign, 193 Mass. 116, 85 NE 527. Dismissal of bill to revise decision

of court of insolvency but not "without prejudice," not harmful to plaintiff, since sub-

ssequent revision by plaintiff on grounds alleged would be barred by dismissal without

ry prejudice. Id.

73. Where bucket shop represented profits to customer which it would be estoped to

deny in action at law. No collusion of creditor. Weiss v. Haight & Freese Co., 156 F

$77. Forest City Steel & Iron Co. v. Detroit, etc., R. Co. \[Mich.\] 117 NW 645.

75. Debts (due United States are entitled to

priority by Rev St. U. S. SS SS 466, 3467, Comp. St. 1901, p. 2314. Claim based on insolvent

the reassessing on government land and remov-

ing timber, United States v. Flint Lumber

Co. \[Ark.\] 112 SWP 217. Creditor of insolv-

ent railroad company for supplies furnished

not entitled to preference over prior mort-

money supplied by maker, ruling that such

fact would constitute no defense inasmuch

as insolvent's estate were not diminished

held properly refused, since fraud consisted

In transfer of notes by insolvent, and not in

payment. Id.

P. Claims assigned to bank and proceeds

endicted paid to creditor. Farmers' de M-

sales' Bank v. Stra

## 111 INSTRUCTIONs.

determining whether a sale by an insolvent was in the usual course of business, the criterion is the conduct of the insolvent's business."

SS 5. _Rights and liabilities affected by insolvency and discharge of insolvent."_

- C. L. ss2

Inspection, see latest topical index.

## 11 INSPECTION LAWS."

_The scope of this topic_ is noted below."

In Kentucky the selling or offering for sale of oil below a certain standard, or oil that has been condemned by an authorized inspector as unsafe for illuminating purposes, is prohibited by statute," but such statute does not prohibit one whose oil has been found below the test or has been condemned from mixing it before it is sold or offered for sale so as to bring the entire quantity up to the statutory test." One pleading such mixing as a defense to a penal action for offering for sale oil below the required test has the burden of proving that the mixture was up to the standard." The enforcement of inspection laws may be restrained in a proper case." Such suits, though against state officers, are not necessarily suits against the state." Inspection laws are subject to constitutional limitations."

## 11 INSTRUCTIONs.

- 1. Object and Purpose, 219.

- 2. Province of Court and Jury, 219.

- 3. Duty of Instructing, 220. Necessity of Request in Particular Cases, 221.

- 5. Charging with Respect to Matters of Limiting Number of Instructions, 223.

- Form and Sufficiency of Request, 223.

- Time of Making Requests, 224. Dispo-

- 78. Jaquith v. Davenport, 197 Mass. 397, 84

- 1903, $ 2209, where defendant admitted that NE 125. Fact that sale was by clerk outside of office, or that insolvent was overstocked and required ready money, would not of it- self establish sale as out of usual course of business. Id.

- Evidence as to value of goods held admisible, Jaquith v. Davenport, 197 Mass. 397, 84 NE 125. Remote evidence properly excluded. Id. Evidence of sale by buyer admissible to show that buyer purchased from insolvents at true value. Id. Sale not in course of business as matter of law when made out of office under statements that ready money was required, etc. Id.

- 79. See 10 C. L. 295.

- 80. Includes both state and federal inspection. Excludes regulation of food products (see Food, 11 C. L. 1481), aduliteration (see Auditeration, 11 C. L. 28), police power of state and municipalities to legislate in the interest of purity of food products (see Contributed Law, 11 C. L. 685; Municipal Corporation, 10 C. L. 881), health regulations (see Health, 11 C. L. 1717), and regulations as to purify of drugs and medicines (see Medicine and Surgery, 10 C. L. 823).

- 81. Ky. St. 1903, $ 2209. Commonwealth v. Standard Oil Co., 83 Ky. L. R. 1074, 112 SW 632.

- 82. Ky St. 1903, $ 2209, held not to prohibit mixing of oil below test. Commonwealth v. Standard Oil Co., 83 Ky. L. R. 1074, 112 SW 632.

- 83. In penal action for offering for sale illuminating oil below test fixed by Ky. St.

- 6. Form and General Substance of Instrucus- 8.12. Rules of Evidence; Credibility and Conlon, 231.

- 6. Relation of Instructions to Pleading and Evidence, 236.

- 8. Stating Issues to the Jury, 240.

- 9. Ignoring Material Evidence, Theories and Defenses, 241.

- 10. Giving Undue Prominence to Evidence, Issues and Theories, 242.

- 11. Definition of Terms Used, 244.

_The scope of this topic is noted below."_

SS 1. _Object and purpose_,"85e 10 C. L. 296.--The purpose of instructions is to explain the issues"85 and lay down the law applicable thereto"86 for the guidance of the jury."86

SS 2. \_Province of court and jury.\_91.--It is the exclusive province of the jury to pass on controverted questions of fact82 in respect to which the evidence is conflicting "86 or into which any element of uncertainty enters,"46 the weight and sufficiency of the evidence introduced being for them."87

Footnote 87: The author is grateful to the referees for the support of the manuscript.

Footnote 88: The author is grateful to the referees for the support of the manuscript.

Footnote 89: The author is grateful to the referees for the support of the manuscript.

Footnote 90: The author is grateful to the referees for the support of the manuscript.

Footnote 91: The author is grateful to the referees for the support of the manuscript.

Footnote 92: The author is grateful to the referees for the support of the manuscript.

Footnote 93: The author is grateful to the referees for the support of the manuscript.

Footnote 94: The author is grateful to the referees for the support of the manuscript.

Footnote 95: Value and weight of testmony is for jury.

Footnote 97: The author is grateful to the referees for the support of the manuscript.

Footnote 98: The author is grateful to the referees for the support of the manuscript.

Footnote 99: The author is grateful to the referees for the support of the manuscript.

Footnote 90: The author is grateful to the referees for the support of the manuscript.

Footnote 91: The author is grateful to the referees for the support of the manuscript.

Footnote 92: The author is grateful to the referees for the support of the manuscript.

Footnote 93: The author is grateful to the referees for the support of the manuscript.

Footnote 94: The author is grateful to the referees for the support of the manuscript.

Footnote 95: Value and weight of testmony is for jury.

Footnote 97: The author is grateful to the referees for the support of the manuscript.

law 2 or mixed questions of law and fact 3 be submitted, and a question of law is presented by the evidence when reasonable minds cannot differ as to the inference to be drawn therefrom 4 or when the facts are admitted,5 or undisputed.6 It is not, however, error to submit an undisputed issue in connection with others as to which there is conflict.7

Footnote 2: The author is grateful to the anonymous referee for the support 12 Cur. Law. INSTRUCTIONS 3. 231

terial \[13\] issues,\[14\] supported by the pleading and evidence,\[15\] should be given, but as a general rule, only when asked for.\[16\] By constitution in some states, however, it is made the court's duty to declare the law,\[17\] while in other jurisdictions it is the court's duty to instruct on all issues properly raised, whether requested or not,\[18\] and again, although not requested, the court may instruct on any proposition of law when, in its opinion, justice requires it.\[19\] It is not the court's duty, however, to instruct separately on particular phases of evidence not decisive of the case,\[20\] nor to give unnecessary instructions,\[21\] nor to charge that its refusal to dismiss is not an intimation on the facts of the case.\[22\]

v. Woldert Grocery Co., 133 Ill. App. 362; Co. v. Harrington \[Tex. Civ. App.\] 112 SWV Matton Heat L. & P. Co. v. Walker, 134 Ill. App. 414; Kidd v. White, 138 Ill. App. 107; Byw 703; Trimble v. Burroughs \[Tex. Civ. App.\] 118 SWV 551; Childs v. Childs \[Wash.\] Chicago v. Wileland, 193 Ill. App. 197; Illinois Commercial Men's Ass/n v. Permi, 139 Ill. App. 543; Champlin v. Baltimore, etc., R. Co., 140 Ill. App. 94; Power v. Turner \[Month\] 97 P 950; Struble v. De Witt \[Texb.\] 116 NWV 164; Swing v. Bates Mach. Co., 32 Pa. Super. Ct. 403; El Paso Elec, R. Co. v. Boiziano \[Tex. Civ. App.\] 109 SWV 383; Love v. Perry \[Tex. Civ. App.\] 111 SWV 205; International & G. N. R. Co. v. Welbourne \[Tex. Civ. App.\] 113 SWV 780; Burgett v. Mull-SWV 780; Burgess Shulphite Fibre Co., V. Drew \[C. C. A.\] 157 F 212. It is court's duty to instruct when request clearly and affirmatively presents issue raised. Missouri & de T. R. Co. v. Kennedy \[Tex. Civ. App.\] 112 SWV 339. Error in refusing to give special instructions before argument where of a proper character and correctly expressed, is not cured by giving of like instructions in the general charge. Mueller v. Busch, 11 Ohio C. C. (N. S.) 353. See post 11, Curing Bad Instruction. 13. See post, # 7. Request submitting a correct proposition of law on a material issue should be given unless covered by general charge. Bishop v. Riddle \[Tex. Civ. App.\] 113 SWV 151. 14. See post, # 7, 8. Dolvin v. American Harrow Co. \[Ga.\] 62 SE 198; Bowman v. Salingling \[Tex. Civ. App.\] 111 SWV 182; Western Union Tel. Co. v. Johnsey \[Tex. Civ. App.\] 109 SWV 251. It is duty of court to instruct as to facts presented upon and within issues, but duty ends there. In re Darrow \[Ind. App.\] 83 NE 1026. Party who raises an Issue and introduces testimony thereof cannot complain of instructions given with reference thereto. Miles v. Schurunk \[Iowa\] 117 NWV 791. 185, See, post, # 7. Mississippi1 Valley Trac. Co. v. Coburn, 132 Ill. App. 624; Walkup v. Seebe \[Iowa\] 116 NWV 321; Lee v. Conrad \[Iowa\] 117 NWV 1984; Harrison v. McLaughlin \[Md.\] 70 A 424; Ghere v. Zey, 128 Mo. App. 862, 107 SWV 415; Lechane v. Butte Elec. R. Co., 87 Mont. 654, 87 P 1083; Joyce v. Miller \[Neb.\] 116 NWV 506; Jacobson v. Fraade, 56 Misc, 631, 107 NYS 706; Stouffer v. Erwin \[Is C.\] 62 SE 845; Galveston, etc., R. Co. v. Berry \[Tex. Civ. App.\] 109 W 393; Northern Texas Trac. Co. v. Moberly \[Tex. Civ. App.\] 110 19 SWV 483; Houston & T. C. R. Co., 109 SWV 982; Miscwourl, K. & T. R. Co. v. Pennewell \[Tex. Civ. App.\] 110 SWV 758; Rushing v. Lanier \[Tex. Civ. App.\] 111 SWV 1089; Atchison, etc., R.

1. _Necessity of request in particular cases._"See 10 C. L. 298.--A request is necessary if it is desired that instructions be restricted 23 or amplified," made more explanatory," specific," or definite." Hence a request must be made if it is desired that the court should instruct on the principles of law necessary to constitute adverse possession," on the converse of a proposition," or if it is desired that issue be presented affirmatively as well as negatively," or if instruction in language of the statute is desired," or if a repetition is desired." Likewise if a party relies on a different theory repugnant to that of his adversary, he must ask instructions presenting his theory;" or if a particular feature of the case is desired to be noticed," or if a charge on burden of proof is desired," or it is desired that testimony be touched on," a request must be made. It must also be made if instructions are to be corrected " or omissions

1. _Necessity of request in particular cases._"See 10 C. L. 298.--A request is necessary if it is desired that instructions be restricted 23 or amplified," made more explanatory," specific," or definite." Hence a request must be made if it is desired that the court should instruct on the principles of law necessary to constitute adverse possession," on the converse of a proposition," or if it is desired that issue be presented affirmatively as well as negatively," or if instruction in language of the statute is desired," or if a repetition is desired." Likewise if a party relies on a different theory repugnant to that of his adversary, he must ask instructions presenting his theory;" or if a particular feature of the case is desired to be noticed," or if a charge on burden of proof is desired," or it is desired that testimony be touched on," a request must be made. It must also be made if instructions are to be corrected " or omissions

1. _Necessity of request in particular cases._"See 10 C. L. 298.--A request is necessary if it is desired that instructions be restricted 23 or amplified," made more explanatory," specific," or definite." Hence a request must be made if it is desired that the court should instruct on the principles of law necessary to constitute adverse possession," on the converse of a proposition," or if it is desired that issue be presented affirmatively as well as negatively," or if instruction in language of the statute is desired," or if a repetition is desired." Likewise if a party relies on a different theory repugnant to that of his adversary, he must ask instructions presenting his theory;" or if a particular feature of the case is desired to be noticed," or if a charge on burden of proof is desired," or it is desired that testimony be touched on," a request must be made. It must also be made if instructions are to be corrected " or omissions

1. _Necessity of request in particular cases._"See 10 C. L. 298.--A request is necessary if it is desired that instructions be restricted 23 or amplified," made more explanatory," specific," or definite." Hence a request must be made if it is desired that the court should instruct on the principles of law necessary to constitute adverse possession," on the converse of a proposition," or if it is desired that issue be presented affirmatively as well as negatively," or if instruction in language of the statute is desired," or if a repetition is desired." Likewise if a party relies on a different theory repugnant to that of his adversary, he must ask instructions presenting his theory;" or if a particular feature of the case is desired to be noticed," or if a charge on burden of proof is desired," or it is desired that testimony be touched on," a request must be made. It must also be made if instructions are to be corrected " or omissions

1. _Necessity of request in particular cases._"See 10 C. L. 298.--A request is necessary if it is desired that instructions be restricted 23 or amplified," made more explanatory," specific," or definite." Hence a request must be made if it is desired that the court should instruct on the principles of law necessary to constitute adverse possession," on the converse of a proposition," or if it is desired that issue be presented affirmatively as well as negatively," or if instruction in language of the statute is desired," or if a repetition is desired.

- 12Cur. Law. INSTRUCTIONS SS 3.
- cured. \[88\] A party may, however, avail himself of a positive error in the charge without having requested a correction. \[39\]
- \_Limiting number of instructions.\_See 10C. L. 800--Only such instructions should be given as will fully and clearly present the pivotal points, \[40\] hence they should not be multiplied wholly out of proportion to the necessities of the case; \[41\] and while it is technically erroneous to limit their number, \[42\] the court may, in a proper case, refuse to consider more than a specified number, if the jury is fully and fairly instructed. \[43\]
- _Form and sufficiency of request._\[44\]--Requests must be in writing \[45\] and are sometimes required to be signed, \[46\] but, as the object of the signature is to identify the instructions, \[47\] the statute requiring it is not mandatory. \[48\] The requests should be correct in form, \[49\] couched in apt, \[50\] intelligible \[61\] and definite \[52\] language, and should not be made in the form of mere suggestions. \[58\] They must be consistent with each other \[44\] and must correctly state the law. \[58\] If bad in part, a request may be
- 88St. Louis S. W. R. Co. v. Shipp \[Tex Civ. \] 48But where unsigned request is refused, App.\] 108 SV 286; El Paso Eleclec. R. Co. v. failure to sign may be invoked by opposite Kelly \[Tex. Civ. App.\] 109 SV 41; Dallas party to sustain refusal. Terry v. Daven-Consol. Elec. St. R. Co. v. Mouffiler \[Tex.\] port \[Ind.\] 88 NE 638.
- 109 SW 918; Missouri, etc., R. Co. v. McDuffey \[Tex.\] 49Kress v. Lawrence \[Ala.\] 47 S 674; \[Tex Civ. App.\] 109 SW 1104; St. Louis S. Western Union Tel. Co. v. Rowell \[Ala.\] 45 W. R. Co. v. Cleland \[Tex. Civ. App.\] 110 SW 8 73; Alabama Iron Co. v. Smith \[Ala.\] 46
- 123St. Louis S. W. R. Co. v. Nelson \[Tex. S 478.
- 111 SW 1062; Galveston, etc., R. Co. v. Olds \[Tex. Civ. App.\] 111 SW 762; Galveston, etc., R. Co. v. Olda \[Tex. Civ. App.\] 112 SV 787; Steger & Sons Piano Msfs. Co. v. McMas-
- 124L. 150, 83 NSh \[Tex. Civ. App.\] 113 SW 337; Orange \[Tex. Civ. App.\] 114. 151 SW 633. Omlesion to instructon a par-
- 125L. 152. 153. 154. 155. 156. 157. 158. 159. 159. 160. 151. 159. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 199. 200. 210. 221. 230. 231. 232. 233. 234. 235. 236. 237. 238. 239. 240. 241. 242. 243. 244. 245. 246. 247. 248. 249. 250. 251. 252. 253. 254. 255. 256. 257. 258. 259. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270. 271. 272. 273. 274. 275. 276. 277. 278. 279. 281. 282. 283. 284. 285. 286. 287. 288. 289. 290. 291. 292. 293. 294. 295. 296. 297. 298. 299. 300. 311. 311. 311. 311. 311. 311. 311. 311.

whichly rejected." It has been held, however, that when there has been no instruction on an issue an erroneous request is sufficient to call the attention of the court to its duty in that respect."

_Time of making requests._\[58\]--Requests are often required to be presented before the argument begins," and the court is not ordinarily required to receive them when presented out of time."

_Disposition of requests._\[See 10 C. L. 301--It is usually held that the court need not give instructions in the precise form in which they are requested " and may modify the instruction and give it as modified," though in some states the power of the court to modify a requested instruction is denied."

While the duty to correct an imperfect instruction is sometimes declared," the

56. **Maff v. Stephens \[Tex. Civ. App\] 108**Powell v. Fowler, $5 Ark. 451, 108 SVW 1008. A request containing both a 827; Cashman v. Proctor \[lass.\] $6 NE sound and unsound proposition of law 284; Ratliff v. Quincy, etc., R. Co. \[Mo.\] should be refused. Armour & Co. v. Koll-meyer \[C. C. A.\] 161 F 78. \[em R. Co. \[Tex.\] $7. Wade v. Galveston, etc., R. Co. \[Tex.\] 109 Civ. App.\] 110 SWW 84. And see post, this section, Disposition of Requests, as to power and duty to modify.

01. \*\*See 10 C. L. 301. See post $16. \[em R. Co., 59. Grace v. Anderson, 104 Minn. 476, 116 N7W 116. A request comes too late during closing.argument. Quimby v. Jay, 196 Mass. 584, 82 NE 1084. A court rule which requires all instructions to be presented at the conclusion of evidence does not prevent court from giving an instruction not so presented if, in the court's opinion, it is proper to do so. Frank Parmelse Co. v. Grifman, 136 Ill. App. 307. Rule has no application \[138 Ill. App. 627. Modification of proffered instruction not embracing all material facts for an estoppel held not prejudical. Central Brew. Co. v. American Brew. Co., 135 Ill. App. 648. Instruction contanining "and when amended a request is made to have it \[you will return verdict for defendant if given. Chicago City R. Co. v. Hackett, 136 Ill. App. 594. \[em R. Co., 198 Mass. 594, 84 NE 858. \[em R. Co., 198 Cham.\] 70 A. 1033; yon are unable to determine as to its pre- and 71 Ell. App. 627. Modification of proffered instruction not embracing all material facts for an estoppel held not prejudical. Central Brew. Co. v. American Brew. Co., 135 Ill. App. 648. \[em R. Co., 253 Ill. App. 652 NTE.\] 744. Court may reject all prayers and instruct in its own language, but when this is done, law ought to be fully and accurately declared in explicit and intelligible terms. Roenkovitz v. United Railways & Elec. Co. \[Mo.\] 70 A. 108. Where proper special instructions are requested, but not to be given before argument, court is not required to give them in precise terms or language submitted. It is sufficient if substance thereof be given in other instrucutions or in general charge. R general rule is that the court need not correct imperfect requests, but may refuse them.\[65\]

Where an instruction is modified, the court need not indicate to the jury what part thereof is as originally requested,\[66\] but a requested instruction should not be made confusing by the addition of modifying matter not germane to the request.\[67\]

Stattutes in some states require that the disposition of requests be noted thereon,\[68\] the purpose being to preserve a proper record,\[69\] and, on review, unmarked requests are deemed to have been refused.\[70\] In the absence of statute, the disposition of requests need not be so indicated.\[71\]

\_Repetition.\_See 10 C. L. 300--Though the court may in some cases repeat an instruction,\[72\] yet, as repetitions tend to mislead the jury\[73\] and give undue prominence to issues,\[74\] the court should not and cannot be required\[76\] to repeat matters previously charged\[74\] where such repetition can serve no useful purpose,\[77\] even if the request is

L. R. 1211, 108 SW 241. If evidence is sufflement to raise issue, an imperfect request post, SS 10.\[\]

which suggests issue should be corrected and given.\[71\]

given.\[\]

Rushing V. Lanier \[Tex. Civ. App.\]

111 SW 108.

05, Edwards v. Western Union Tel. Co. \[N.\]

C.\]

60 SE 900; Houston & T. C. R. Co. v.

Oram \[Tex. Civ. App.\]

30 Tex. Ct. Rep. 681,

107 SW 14; Chicago, etc., R. Co. Johnson

\[Tex. Civ. App.\]

111 SW 758; Ramm v.

McCellan \[Ala.\]

45 841; Greene v. Here-

Hewitt-Lee Lumber Co. \[Wash.\]

95 P 105; St. Louis, etc., R.

Court need not revise a faulty request nor

frame a correct one.\[Wilimans.\]

152 Mich. 169, 15 Det. Leg. N. 168, 115 NW

961; Chicago, etc., R. Co. v. Johnson \[Tex.\]

108 SW 964; Kansas City So. R. Co. v. Williams \[Tex. Civ. App.\]

111 SW 186.

108 SW 964; Kansas City So. R. Co. v. Williams \[Tex. Civ. App.\]

111 SW 108.

6. Farrell v. Citizens' Light & R. Co., 137

108, 308, 114 NW 1063.

67. Taylor v. McClintock \[Ark.\]

112 SW 108.

405. The failure of court to mark instructions not given is improper under statute

Leman v. U. S. Fidelity & Casualty Co., 137

111. App. 258.

001. The object of designating requests as

"given," "refused" or "modified" is intended

simply to preserve a proper record. Farrell v. Citizens' Light & R. Co., 137 Iowa, 309, 114

106. Leman v. U. S. Fidelity & Casualty Co., 137 Ill. App. 258.

001. The disposition of requests need not be noted on margin of instructions. Van Buskikk v. Quincy, etc., R. Co. \[Mo. App.\]

111 SW 832.

72. If instruction asked does not give undue prominence to a phase of case covered by court's charge, it may be given.\[\]

Cigar Stores Co. v. Kramer \[Tex. Civ. App.\]

109 SW 990, Held, two charges on issue of contributory negligence did not give undue prominence to that issue. Wade v. Gal-

4ue prominence to that issue. Wade v. Gal-

veston, etc., R. Co. \[Tex. Civ. App.\]

110 SW 84. Two instructions covering same question

but worded differently, may be given.\[\]

Huss v. Heydt Bakery Co., 210 Mo. 44, 108 SW 63.

73. Rosenkovitz v. United Railways &

Elec. Co. \[Md.\]

74. As undue prominence may be given an

issue by recurring to it often in a charge

when an issue is fully presented there is no necessity for repeating it in a special charge.

Herring v. Galveston, etc., R. Co. \[Tex. Civ. App.\]

112 Cur. Law. 15.

125

126

127
etc., R. Co., 236 Ill. 219, 86 NE 231; Chicago \[129 Mo. App. 325, 108 SVW 628; Penney v. St. City R. Co., v. Hagenback, 121 Ill. App. 557; Joseph Stockyards Co., 212 Mo. 309, 111 SW SW Village of Montgomery v. Robertson, 132 Ill., 79: Thompson v. Independence \[Mdo.\], 111 SWW App. 362; East St. Louis, etc., R. Co. v. Zink, 621; Heingle v. Metropolitan St. R. Co. \[Mo.\] 138 Ill. App. 217; City of Chicago v. Kubler, 111 SWV 536; Vaddell v. Metropolitan St. R. I. 138 Ill. App. 52; Press v. Hari, 133 Ill. App. 52; Vrandin, 133 Ill. App. 528; Mattoon Heat L. & P. Co. v. Walker, 134 Stockyards Co. \[Mo.\] 111 SWV 1186; Brown III. App. 414; Chicago City R. Co., v. Donnelly, v. Globe Print Co. \[Mo.\] 112 SVW 462; Sirev v. 136 Ill. App. 204; Chicago City R. Co., v. Clark \[Mo. App.\] 112 SWV 526; International Phillips, 138 Ill. App. 488; Mohr v. Martewicz, 138 Ill. App. 173; Illinois Commercial Men's Hudson v. Truman \[Neb.\] 112 NWV 325; Assu v. Ferrin, 138 Ill. App. 181; Vernet v. Werbich v. De Witt \[Neb.\] 116 NWV 154; Plover Koborts, Johnson & Rand Shone Co., 140 Ill. v. Neylon \[Neb.\] 116 NWV 159; Maxason v. J. App. 61; Cleveland, etc., R. Co. v. Wueset, 41 I. Case Threshing Co. \[Neb.\] 116 NWV 281; Ind. App. 210, 83 NE 629; Oil Neil Supply Billingsley v. Dutton \[Neb.\] 116 NWV 301; Co. v. Priddy, 41 Ind. App. 200, 83 NE 623; Joyce v. Miller \[Neb.\] 116 NWV 506; Perrine City of La Porte v. Henry, 41 Ind. App. 197, v. Union Stockyards Co. \[Neb.\] 116 NWV 716; S8 NE 655; City of Whitting v. Bagan, 41 Ind. \[Morse v. Chicago B. & Q. R. Co. \[Neb.\] 116 App. 377, 83 NE 1016; Baltimore, etc., R. Co. NV 859; Dasgett v. North Jersey St. R. Co., v. Walker, 41 Ind. App. 588, 84 NE 780; Brinkman v. Pacholke, 41 Ind. App. 662, 84 ING 187; Brinkman v. Pacholke, 41 Ind. App. 662, 84 ING 762; Kelly v. Chicago, etc., R. Co. \[Iowa\] 118 NWV 563; Mickey v. Indianapolis \[Iowa\] 114 Grant v. Milam \[OoR.\] 95 P 424; Citizens' NWV 1072; Swinery v. American Exp. Co. \[Iowa\] 115 NWV 212; Beck v. Umshler \[Iowa\] 116 NWV 214; D'Amica-E in proper form." A refusal to charge, except as already charged, is however, an intimation to the jury that the rule requested is not wholly sound, and is error if the requested instruction has not been fully given."

**SS 4.**_Assumption of facts."_--The court may not assume the existence of controverted facts " as to which there is an issue for the jury," and a fortiori must not

1135; San Marco Elec. L. & P. Co. v. Comp- (App.) 112 SVW 839; Gulf, etc., R. Co. v. Coletton \[Tex. Civ. App.\] 107 SW 1151; Rapid Transit R. Co. v. Strong \[Tex. Civ. App.\] 108 SW 734; Houston, etc., R. Co. v. Brunet \[Tex. Civ. App.\] 112 SW 394; Houston, etc., R. Co. v. Brunet \[Tex. Civ. App.\] 108 SW 404; Missouri, etc., R. Co. v. Brunet \[Tex. Civ. App.\] 118 SW 787; Crouch Hard-R. Co. v. Morgan \[Tex. Civ. App.\] 108 SW 714; Gulf, etc., R. Co. v. Farmer \[Tex. Civ. App.\] 108 SW 726; Texas Midland R. R. v. Hitney \[Tex. Civ. App.\] 108 SW 727; Texas Midland R. R. v. Hitney \[Tex. Civ. App.\] 108 SW 732; St. \[Tex. Civ. App.\] 108 SW 733; St. Louis S. W. R. Co. v. Hawkins \[Tex. Civ. App.\] 113 SW 74; St. Louis S. W. R. Co. v. Hawkins \[Tex. Civ. App.\] 113 SW 74; St. Louis S. W. R. Co. v. Hawkins \[Tex. Civ. App.\] 113 SW 745; St. Louis S. W. R. Co. v. Hawkins \[Tex. Civ. App.\] 108 SW 746; Susan Ap.\] 108 SW 747; St. Louis S. W. R. Co. v. Martin \[Tex. Civ. App.\] 118 SW 748; St. Louis S. W. R. Co. v. Martin \[Tex. Civ. App.\] 118 SW 738; Gulf, etc., R. Co. v. Smith \[Tex. Civ. App.\] 108 SW 988; Hall V. \[Tex. Civ. App.\] 113 SW 767; St. Civ. App.\] 108 SW 1008; Self- \[Tex. Civ. App.\] 108 SW 786; St. Civ. Highlatter \[Tex. Civ. App.\] 113 SW 784; Brunsen v. Williams \[Tex. Civ. App.\] 113 SW 721; St. Louis S. W. R. Co. v. Harbkins \[Tex. Civ. App.\] 113 SW 732; Stan Antonio Light Pub. Louis S. W. R. Co. v. Hawkins \[Tex. Civ. App.\] 113 SW 754; St. Louis S. W. R. Co. v. Hawkins \[Tex. Civ. App.\] 113 SW 745; St. Louis S. W. R. Co. v. Jackson \[Tex. Civ. App.\] 108 SW 746; Susan Ap.\] 108 SW 745; San Ap.\] 108 SW 747; St. Louis S. W. R. Co. v. Martin \[Tex. Civ. App.\] 118 SW 743; St. Louis S. W. R. Co. v. Martin \[Tex. Civ. App.\] 118 SW 738; Gulf, etc., R. Co. v. Smith \[Tex. Civ. App.\] 108 SW 988; Hall V. \[Tex. Civ. App.\] 113 SW 767; St. Civ. App.\] 108 SW 1008; Self- \[Tex. Civ. App.\] 108 SW 786; St. Civ. Spelling v. Consolidated R. & P. Co., Missouri, etc., R. Co. v. Hlbits \[Tex. Civ. App.\] 109 SW 783; St. Civ. Highlatter \[Tex. Civ. App.\] 109 SW 728; St. Civ. Highlatter \[Tex. Civ. App.\] 109 SW 723; St. Civ. App.\] 109 SW 748; St. Civ. App.\] 109 SW 748; St. Civ. App.\] 109 SW 492; Consolidated Kansas City Smellting \[Tex. Civ. App.\] 109 SW 751; Galveston, etc., R. Co. v. Graham \[Tex. Civ. App.\] 109 SW 765; St. Civ. App.\] 109 SW 766; St. Civ. App.\] 109 SW 767; St. Civ. App.\] 108 SW 768; St. Civ. App.\] 109 SW 785; St. Civ. App.\] 109 SW 786; St. Civ. App.\] 109 SW 787; St. Civ. App.\] 1 assume the existence of facts as to which there is no evidence.88 The court may assume facts when but one inference can be drawn 84 or where they are admitted 85 or

R. Co. v. Limback \[Ind.\] 85 NE 354; Hill. App. 220. That appellee had been derelict Hollerbach & May Contract Co. v. Wilkins \[Ir.\] 112 SWV 116; Crown Cork & Seal \[Lein, 134 Ill. App. 207. That if appellant had Co. v. ,O'Leary \[Mid.\] 89 A 1068; Seaboard Air Line R. Co. v. Phillips \[Mid.\] 70 A 223; Ruthfurt V. Faust \[Mich.\] 15 Delt. Leg. N. 783, 117 NWV 902; Harley v. Calbrattel, 127 Mo. 137 Ill. App. 25.

App. 559, 106 SWV 570; Christian v. McDonnell, 127 Mo. App. 630, 106 SWV 1104; Glover v. Atchison, etc. R. Co., 129 Mo. App. 653, 108 SWV 105; Haynor v. Excesslier Springs L. P. H. & Water Co., 129 Mo. App. 691, 108 SWV 580; Gessner v. Metropolitan St. R. Co. \[Mid.\] App. 112 SWV 30. International Bank v. Enderle \[Mo. App.\] 113 SWV 262; Holton v. Cochran, 208 Mo. 314, 108 SWV 1035; Crov v. Houck's Missouri & A. R. Co., 212 Mo. 589, 111 SWV 583; Wilson v. New York, etc., R. Co. \[R. I\] 69 A 364; Dallas Consol. Elec. St. R. Co., V. Lytle \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 820, 106 SWV 900; Thompson v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 756, 106 SWV 10; Peille v. San Antonio Trac. Co. \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 862, 107 SWV 367; Hunter v. Malone \[Tex. Civ. App.\] 108 SWV 709; St. Louis S. W. R. Co. v. Shipp 117ex. Civ. App.\] 109 SWV 286; Champion v. Johnson County \[Tex. Civ. App.\] 109 SWV 1146; Missouri, K. & T. R. Co. v. Steele \[Tex. Civ. App.\] 110 SWV 171; Kansas City So. R. Co. v. Williams \[Tex. Civ. App.\] 111 SWV 196; Yates v. Bratton \[Tex. Civ. App.\] 111 SWV 416; Chicago, etc., R. Co. v. Groner \[Tex. Civ. App.\] 111 SWV 64; Texas. Civ. App.\] 111 SWV 657; Yates, etc., R. Co. v. Powell \[Tex. Civ. App.\] 112 SWV 697; Hansen v. Williams \[Tex. Civ. App.\] 113 SWV 812; Orange Lumber Co. v. Thompson \[Tex. Civ. App.\] 113 SWV 563; Hess v. Webb \[Tex. Civ. App.\] 113 SWV 618; Fordram v. Stovers \[Tex. Civ. App.\] 113 SWV 631; St. Louis, etc., R. Co. v. Boshear \[Tex.\] 113 SWV 651; St. R. Co. v. Boshear \[Tex.\] 113 SWV 66; District of Columbia v. Duryee, 29 App. D. C. 327.

Rule Volated: Assumption that statement is true. American Nat. Bank v. Fountain \[N. C.\] 62 SE 738. That sale was not bona fide. Griffin \[Miss.\] 46 S 945. That plaintiff has made prima fidee case. Barry v. Madarla \[Ala.\] 47 S 152. Actual damages from levy of attachment. Seal v. Holcomb \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 808, 107 SWV 916. That contract claimed by appellant to have been made was made. Brougham v. Paul, 138 Ill. App. 455. That contract was parol one relied on by appellee, and not writ-ten one relted upon by appellants. Summer-ville v. Klein, 140 Ill. App. 38. That disputed words "in full to date" were in a check at time of delivery. McKinnie v. Lane, 133 Ill. App. 438. Instruction which in effect directs verif. Glict. Klofski v. Railroad Supply Co., 235 Ill. 146, 85 NE 274; Chicago, etc., R. Co. v. Gurck, 131 Ill. App. 128. That facts recided did not constitute contributory negligence. Conklin uncontroverted.\[86\] However, the failure to assume an undisputed fact is not error if the charge does not authorize a finding if such fact be not found.\[87\] To determine whether an instruction assumes a fact, the language must be construed as a whole.\[88\]

SS 5. _Charging with respect to matters of fact or commenting on the weight of evidence.\[89\]_--Reference to evidence should be made in a general way \[90\] and only so far as is necessary to present leading issues,\[91\] unless the ruling being made is necessarily the conclusion of the case.\[92\] Federal courts are allowed to comment on the weight of the evidence,\[98\] but the general rule, declared by statutes in some states,\[94\] is that trial courts may not charge with respect to matters of fact nor comment on the weight of evidence.\[95\] Before an instruction is obnoxious in this respect, there

SWV 450; Ft. Worth, etc., R. Co. v. Hawves \[Tex. Civ. App.1 107 SWV 556. Appellant having expressly admitted agreement to pay 95. Arizona. Greene v. Hereford \[Ariz.\] for board, washing, etc., cannot be heard to easy that court erred in assuming liability to pay. Tsynery v. Kane, 138 Ill. App. 72. It is not error to state that a fact which is admitted by either party is so admitted, provided a correct statement of admission is made. Cooley v. Bergstrom, 3 Ga. App. 496.

60 SE 220. If court gives correct interpretation and exposition of law as it relates to admitted or uncontroverted, there can be no ground for complaint. Choctaw, O. & G. R. Co. v. Burgess \[Ookl.\] 97 P 271.

86. Cahill v. Dellenback, 139 Ill. App. 320; Loulsulfhe & N. R. Co. v. Crow, 32 Ky. L. R. 1145, 107 SWV 807; De v. Nachbar, 207 Mo., 680, 106 SWV 35; McMahon v. Welsh \[Mo.\]. 132 SWV 83; Cvcut v. Century Bldg. Co. \[Mo.\] 112 SWV 582; Anderson v. South Carolina & G. R. Co. \[S. C\] 61 SE 1096; McCarty v. Pledmont Mut. Ins. Co. \[S. C\] 62 SE 11; Harris v. Jackson \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 470, 106 SWV 1144; St. Louis, te., R. Co. 112a & G. R. Co. \[S. C\] 61 SE 1096.

V. Cassidy S. W. Commission Co. \[Tex. Civ. App.\] 107 SWV 623; El Paso & S. W. R. Co. v. Smith \[Tex. Civ. App.\] 108 SWV 988; Aleerander v. Erlihard \[Tex. Civ. App.\] 113 SWV 184; San Antonio Light Pub. Co. v. Lewy \[Tex. Civ. App.\] 113 SWV 574; Anderson v. Lewis W. V.-1 61 SE 160.

87. Parkham v. Ft. Worth & D. C. R. Co. \[Tex. Civ. App.\] 113 SWV 154.

01. Crowley v. Taylor \[Wash.\] 95 P 1016.

01. See 10 C. L. 307. See ante, **SS 2**, 4.

01. It is sufficient to charge in a general way ae to light in which testimony should be weighed. Drown v. New England Tel. & T. Co. \[Vt.\] 70 A 599.

01. Should refer to evidence only as far as is necessary to present leading issues,\[91\] and should omit reference to minor details of testimony. Farkas v. Brown \[Ga. App.\] 60 SE 1014.

01. Language likely to be prejudicial to rights of either party should be studiously avoided, unless ruling being made is necessarily conclusive of case. Martin v. Thrower, 8 Ga. App. 784, 60 SE 825.

01. In federal courts, trial judges may express their opinion on facts. Mead v. Darling \[C. C. A.\] 159 F 684.

01. Statute prohibiting court from commenting on weight of evidence Is mandatory. Orange Lumber Co. v. Thompson \[Tex. Civ. App.\] 113 SWV 563. Constitution, art, 5 & 36, provides that judges shall not charge juries in respect to matters of fact. While the answer is not correct, the answer is not correct.\[95\]

01. A. T.

App. 511, 65 SE 904. Effect of certain iso- 856. That, if jury found certain facts to be listed facts. Woodbury V. Sparrell Print, 198 Masse. I, 84 NE 441.' Directing jury to adopt lowest estimate made by any of the witness- 1016. That railroad company must use one. Missouri, K. & T. R. Co. v. Rich \[Tex. Civ. App.\] 112 SWV 114. That certain facts constitute negligence. Lay v. Nashville, etc., R. Co. \[Ga.\] 6 SE 189: Anderson V. SWV 690. That if accident occurred by reason of failure of engineer to place reverse 1096. That it was plaintiff's duty to look and listen. Missouri, K. & T. R. Co., Paillet \[Tex. Civ. App.\] 107 SWV 906. "If jury find that evidence sustaining plaintiff's case preponderates in his favor, although but slightly, that it is sufficient for jury to find issues in his favor and to find a verdict against defendant." City of Chicago v. Fields, 139 Ill. App. 250. In action for slanism or, in that plaintiff had not "even externale of refinement" instruction that "pos- 856. That either was custom." Plummer v. Bos- 856 of observation, because you know by seeing person whether they have externals of refinement," is erroneous. Barry v. McColom \[Conn.\] 70 A 1035. Error to construct that because a witness has not been implemented presumpton is in favor of truth of statements. Elder Dempster & Co. v. Menge \[C. C. A.\] 160 F 341. That plaintiff, being present and not testifying, is bound by evidence given in his hearing and not disputed by him. Smith v. Wahash R. Co., 129 Mo. App. 413, 107 SWV 22. That plaintiff is interested in result of issue, and any statement made against his own interest is presumed true, but jury must give only such weight to statements in his own favor as they believe from all facts and circumstances they are entitled to. Brown v. Quincy, etc., R. Co., 127 Mo. App. 614, 106 SWV 561.

Term "if jury believe from evidence" should be used instead of speaking of a preponderating probability "if it exists in minds of jury." Clinchfield Co. v. Wheeler's Adm? \[Va.\] 62 SE 269.

Not violated: On motion to strike, remark of court that evidence is proper. Fritz v. Chicago Grain Elevator Co., 136 Iowa, 699, 114 NWV 192. That court does not intend to intimate what its opinion is as to any fact in dispute. Chicago Terminal Transfer R. Co. v. Reddik, 131 Ill. App. 515. That before recovery can be had, jury must find that contract was ratified, with full knowledge of its terms. Sterling v. De Laume \[Tex. Civ. App.\] 20 Tex. C. C6. Rep. 198, 105 SWV 118. Not to find certain amount claimed in certain item is not intimation to find for plaintiff everything claimed by him except said amount. Missouri, K. & T. R. Co. v. House \[Tex. Civ. App.\] 113 SWV 154. "Did plaintiff or not abandon her husband with intention of remaining away from him" Mahary v. Kennedy \[Tex. Civ. App.\] 108 SWV 176. Language "if you find and believe from the evidence," etc. Missouri, K. & T. R. Co. v. Hendrick \[Tex. Civ. App.\] 108 SWV 745. Words "If you so find,"etc., cannot be fairly constructed as into making an opinion of court as to existence of certain facts. St. Louis, S. W. R. Co. v. Cleland \[Tex. Civ. App.\] 110 SWV 122. To say that defendant is prima fade liable where, viewed in light of remainder of charge, this meant no more than to say defendants were liable unless they showed loss not to their negligence. Davis v. Blue Ridge R. Co. \[S. C.\] 62 SE 26.

185. That, if jury found certain facts to be true, there was no contributory negligence. Kitthen s v. Southern R. Co. \[S. C.\] 61 SE 1016. That railroad company must use one, dinary care in running trains over part of track commonly used by pedestrians. Gulf, etc., R. Co. v. Coleman \[Tex. Civ. App.\] 112 SWV 690. That if accident occurred by reason of failure of engineer to place reverse lever at center of notch of quadrant or by reason of failure to open cylinder cooks to let must be some comment " addressed to the jury," and not a mere general remark." The prohibition applies only to expressions of opinion as to whether a fact or series of facts is or is not established; " hence the court may state a general legal proposition " such as the legal effect of conclusions of fact which the jury are at liberty to deduce from the evidence," or that certain conclusions necessarily result from a given statement of facts," so that the jury may be enabled to see their way clearly to a right verdict." The court may also present in detail facts pertaining to a theory," and may remark on admissibility of evidence," and it has been held that an instruction as to the weight to be given to expert testimony is proper."

SS 6. _Form and general substance of instructions._"--The instructions should embrace only material matters " with which the jury are concerned." Since the charge is to be construed as a whole," matters once given need not be repeated in connection with other instructions " or portion of a charge." The charge may present a hypothetical case," but if it does it must put before the jury all the facts." It may also

\*\*6. In action for damages to timber by gases, the word "noxious" used in instruction adds nothing to it. Johnson v. North-

dence, or refusing nonsuit, or to direct verport Smelting & Refining Co. \[Wash.\] 97 P 746.

**97.** Provision that judges shall not charge juries with respect to matters of fact, but may state facts in issue and declare law,

**97.** Court may instruct any that they are "not bound to accept as true opinions of

has no application to remarks of court that

if had considered motion for nonsuit, and,

while it had grave doubt of right to re-

cover, case should go to jury, such remarks,

though in presence of jury, not being di-

, not being di-

, noted to them. McFeat v. Philadelphia, W.

**98.** A mere general comment in a charge

disparaging quality and value of expert testimony is not ground for reversal. Berk-

ley v. Maurer, 34 Pa. Super. Ct. 363.

**90.** This prohibition must be regarded as

restraint only on expression of opinion as

to whether a fact or series of facts is or is not established. It was not designed to de-

, not established. It was not designed to de-

,

prive court of all power to deal with facts

proved. It may sum up evidence, state its legal effect, and indicate its proper application. Plummer v. Boston EL R. Co., 198 Mass. 49, 84 NE 849.

**1.** Anderson v. South Carolina & G. R. Co.

**\[S. C.\] 61 SE 1096.**

**2.** Jacobson v. Fraade, 56 Misc. 631, 107 NYS 706.

**3.** Crant v. Chicago City R. Co., 235 III.

**262.** SE NE 235. When evidence uncontro-

,

verted, court may charge that facts proved. Fitzerald Cotton Oil Co. v. Farmers' Supply Co., 3 Ga. App. 212, 59 SE 712. A statement that there is a conflict In evidence,

where such fact is not in dispute, is not a charge on facts. Wilson v. Moss, 79 S. C. 120, 60 SE 213.

**4.** To this end, court may elucidate proper

application of legal principals by illustrations drawn from common experience, or by reference to cases where similar questions have been decided, and define degree of

weight which law attaches to whole class of

testimony. Whitney v. Wellesley & Boston St. R. Co., 197 Mass. 495, 84 NE 95.

**5.** A charge is not upon weight of evidence simply because it presents in detail

facts pertaining to theory of recovery

lied on by plaintiff. El Paso Elec. R. Co. V. Ruckmann \[Tex. Civ. App.\] 107 SW 1158.

group the facts,16 or state them, and tell the jury if they find them that way they must find for the plaintiff.17 A charge upon a statute is sufficient if in the language of the statute.18 It should be fair 19 and complete,20 clearly,21 unambiguously,21 and substantially covering the matter requested 23 in such a way as not to mislead the jury.24 It should proceed on a correct theory,25 not reversing 20 but presenting,

Footnote 23: The $\\chi^{2}$ of the $\\chi^{2}$ is not a good candidate for the $\\chi^{2}$.

as a whole," correct principles of law "8" applicable to the case," and while substantial

App.1 109 SWV 1146: Sparks v. De Bord \[Tex.\] is no material difference as to amount due

Civ. App.J 110 SWV 757: Trout v. Gulf, etc.,

R. Co. \[Tex. Civ. App.\] 111 SWV 220: Yates

Pompeli Parliament of Prudent Partielians,

v. Bratton \[Tex. Civ. App.\] 111 SWV 416: Schow v. McCloskey \[Tex.\] 113 SWV 739.

Utah. Mantri City Sav. Bank v. Peterson,

$3 Utah, 209, 85 P 566.

Vermont. Drown v. New England Tel. &

T. Co. \[Vt.\] 70 A. 559.

Virginia. Southern R. Co. v. Hansbrough's

Adm'x, 107 Va. 733, 60 SE 58; Southern R. Co, v. Davies \[Va.\] 61 SE 748: Norfolk R. &

L. Co. v. Higgins \[Va.\] 61 SE 766: Life Ins.

Co. v. Harrison \[Va.\] 62 SE 1067.

West Virginia. White v. Sohn, 63 W. Va.

$0, 59 SE 890.

Wisconsin. Wenger v. Marty \[Wia.\] 116

NWF 7.

Wyoming. Blyth & Fargo Co. v. Kastor

\[Wyyo.\] 87 P 921.

Rule violated: Instruction susceptible of

two different constructions, one of which is

prajudicial to party. White v. Sohn, 63 W.

Va. 80, 95 SE 890. Instruction to return verdict not exceeding specified sum, especially

in view of fact that verdict was for sum

specified. Missouri, K. & T. R. Co. v. Rich

\[Tex. Civ. App.\] 118 SWV 114. In action for

damages resulting from assault and battery

upon plaintiff by defendant, to instruct jury

that a crime has been committed, and to defnce crime of assault and battery. Carlle

v. Bentley \[Neb.\] 116 NWV 772. Instruction,

in substance telling jury that if they be

lieved from evidence that appellent pleded

certificates and delivered them to bank to

secure notes, bank had an interest in shares,

etc. Beggs v. First Nat. Bank of Arcola,

1% Ill. App. 403. Instruction singling out

one established fact in case and informing

jury that, as a matter of law, a certain

clusion does not necessarily follow. Atter-

bury v. Chicago, etc., R. Co., 134 Ill. App. 389.

Where there is no conflict or an entire absence of evidence, instruction that evidence

is conflicting on several subjects "Wenger v.

Marty \[Wis.\] 116 NWV 7. Instruction limiting

kind of evidence to prove contributory negligence.

Pittsburg, etc., R. Co. v. O'Conner

\[Ind.\] 85 NE 969. In close personal injury

case Instruction speaking of "wrongful acts,

neglience and default," even limiting them

to such as were charged in declaration. City

of Chicago v. Sutton, 186 Ill. App. 221.

Instruction in personal injury case instituted

under Mines and Mines' Act, employing

phrase "Lonewingly negligent." Clark v. O'Gara Coal Co., 140 Ill. App. 207. Instruction

held misleading as giving jury to understand

that parents could ignore street ear

many in permitting child less than 2 years

old to play on street. Englund v. Mississippi

sippi Valley Trac. Co., 139 Ill. App. 512.

struction terminating "without liability to

plaintiff therefor" objectionable, as it might

have led jury to believe there could be no

recovery at all, etc., properly refused.

Broughan v. Paul, 138 Ill. App. 455.

Net violated: The opening of charge need

not be predicated on "belief of evidence by

jury." Birmingham R. L. & P. Co. v. Lee

\[Ala.\] 45 S 164. Use of word "natural"

stena' of "reasonable." Sicard v. Albenberg

Co. \[Wia.\] 118 NWV 179. Charge that there

as a whole," correct principles of law "8" applicable to the case," and while substantial

App.J 109 SWV 1146: Sparks v. De Bord \[Tex.\] is no material difference as to amount due

Civ. App.J 110 SWV 757: Trout v. Gulf, etc.,

between plaintiff and defendant. Duford v.

R. Co. \[Tex. Civ. App.\] 111 SWV 220: Yates

Pompeli Parliament of Prudent Partielians,

v. Bratton \[Tex. Civ. App.\] 111 SWV 416: Schow v. McCloskey \[Tex.\] 113 SWV 1416: Schow v. McCloskey \[Tex.\] 113 SWV 139.

1057. Instruction that if jury answer first

question in accuracy is sufficient where there is no countervailing testimony and the evidence justifies the verdict,\*o if the case is close,\*i or the evidence conflicting,\*2 great aco-

v. Reddict, 181 III. App. 515; Campbell V. App.J 26 Tex. Ct. Rep. 839, L07 SVV 147; Fellte Fleplen, 184 III. App. 207; Chicago City R. V San Antonio Trac. Co. \[Tex. Civ. App.\] Co. v. Hackett, 138 III. App. 594; Wells Bros. 20 Tex. Ct. Rep. 862, 107 SVV 867; St. Louis, Co. v. Flanagan, 139 III. App. 287; Asher v. S. W. R. Co. v. Smith \[Tex. Civ. App.\] I07 East St. Louis & Suburban R. Co., 140 Ill. SVV 638; Missouri, & T. R. Co. v. Hollen App. 220; Funston v. Hoffman, 232 III. 160; \[Tex. Civ. App.\] 107 SVV 642; Texas & N. O. 83 NE 917. Instruction should state the law correctly as far as it goes. Ratner v. Chl-

capo City R. Co., 233 III. 169, 84 NE 201. Must properly state law as to pleadings. Trnsteers of Schools v. Yoch, 133 Ill. App. 82. An instruction which does not -pupport to

sum up entire case not erroneous in failing to state particular proposition of law appli-

table to case, if same, standing alone, is correct statement of law. American Steel

Foundries v. Kistner, 136 Ill. App. 48.

Indinna. Toledo & C. I. R. Co. v. Wagner \[Ind.\] 85 NE 1025; Reed v. Light \[Ind.\] 85 NE 9.

Iowa. Mickey v. Indianapolis \[Iowa\] 114 NWV

1072; Baker v. Mathow, 137 Towa, 410, 115

NVV 15; Beck v. Unshler \[Iowa\] 116 NWV 128;

Sheker v. Machovec \[Iowa\] 116 NWV 1042.

Kansas. Missouri Pac. R. Co. v. Bentley \[Kenn\] 33 PS 150.

Kentucky. Louisville & N. R. Co. v. Rayl,

82 Ky. L. R. 870, 107 SVV 298; Illinois Cent. R. Co. v. Tandy, 32 Ky. L. R. 862, 107 SVV

715; Louisville & N. R. Co. v. Onan's Adm'r,

83 Ky. L. R. 462, 110 SVV 380; Cincinnati, etc. R. Co. v. Evans' Adm'r,

33 Ky. L. R. 896, 110 SVV 844.

Louifiana. Muscarelli v. Hodge Fence &

Lumpber Co., 120 La. 335, 45 S 268.

Massachusetts! If error pointed out. is

duty of court to correct it. Zamor v. Boston El. R. Co., 198 Mass. 594, 84 NE 858.

Michigan, Goodes v. Lansing & Suburban

Trac. Co., 150 Michel. 494, 14 Det. Leg. N. 768, 114 NWV 383.

Mimatsippi. Mobble, etc., R. Co. v. Jackson \[Miss.\] 46 S 142; Kneale v. Lopez \[Miss.\] 46 S 715.

Missouri. Dee v. Nachbar, 207 Mo. 680, 106 SWV 85; Brown v. St. Louis, etc., R. Co., 127 No. App. 499, 106 SWV 83; Holton v. Cochran,

208 Mo. 314, 106 SWV 1035; Toncery v. Metro-

polltan St. R. Co., 129 Mo. App. 596, 107 SWV 1091; Kirkpatrick v. Metropolitan St. R. Co., 211 Mo. 68, 109 SWV 882; Wann v. Veshlin, 210 Mo. 429, 109 SVV 688; Sackmann v. Freeman,

130 Mo. App. 384, 109 SWV 818; Peterson v. Metropolitan St. R. Co., 211 Mo. 498, 111 SWV 87; Newft v. Cameron \[Mo.\] 111 SWV 1159; Huff \[Tex. Civ. App.\] I111 SVV

83 NE 917. Instruction should state the law correctly as far as it goes. Ratner v. Chl-

111 SWV 1155; Ross v. Metropolitan St. R. Co., \[Mo. App.\] 112 SWV 9: Brown v. Knapp & Co. \[Mo.\] 112 SWV 474; Sires v. Clark \[Mo. App.\] 112 SWV 52 curacy of instruction is necessary and the practical test of the soundness of a charge is how the jurors understand it.\[33\] While a rule of law may be first stated in the abstract and then in the concrete,\[44\] abstract instructions are apt to mislead \[45\] and should be avoided,\[48\] especially in a closely contested case.\[47\] A charge is not abstract which merely eliminates the effect of improper evidence,\[48\] nor where there is any evidence from which the jury may infer the existence of the facts supposed.\[49\]

_Instructions should be certain \[40\] and definite,\[41\] but they need not give any statement of facts if none are disclosed by the evidence.\[42\]_

_Instructions need not be numbered.\[45\]_ See 10 C. L. 815\_

_Verbal inaccuracies and inelegancies.\[45\]_ See 10 C. L. 815\_

_Although surplusage should be avoided,\[43\] inaccuracies which do not mislead the jury\[44\] are not ground for reversal.\[48\]_

_Ienson, 134 Ill. App. 256; Kidd v. White, 128_

_Gray, 136 Ill. App. 642. Giving abstract rule_

_III. App. 107; City of Chicago v. Fields, 139_

_III. App. 250._

\_S3. The practical test as to soundness of instructions is not what ingenuity of coun-

\_well can, at leisure, work out instructions to

\_well can, but how and in what sense, under evidence be found and circumstances of

_Jollet & Eastern R. Co. v. Lawlor, 132 Ill._

_Jor. 280; Hughes v. Hughes, 138 Ill. App. 654; Campbell v. Pierlein, 134 Ill. App. 207._

_The giving of an instruction containing an abstract proposition of law, not correctly_

_applied to a case, will not reverse in absence of a showing of prejudice resulting._

_City of Farmington v. Wallace, 134 Ill. App. are sometimes misleading, but to be ground_

_for reversal, it must affirmatively appear_

_if it states laws with substantial accuracy_

_is not misleading. Wallace v. Farmington,_

_Cool & Iron Co. v. Heald \[Ala.\] 46_

_Floriaia Sawmill Co. v. Smill \[Fla \] 46_

_S3. City of Chicago v. Sutton, 136 Ill. App. 382; Salmon v. Helena Box Co., 158 F 300._

_36. St. Louis, etc., R. Co. v. Brockher_

_Lark.\] 109 SWF 1199; Bryant Lumber Co. v._

_Poster evidence received without objection_

_Stantey \[Ark.\] 112 SWF 740; Ducharme v. Is not abstract proposition of law. Pereira_

_St. Peter, 135 Ill. App. 530; Leiserowitz v. v. Star Sand Co. \[Or.\] 94 P 835._

_Foyarty, 135 Ill. App. 609; Chicago City R._

_So. v. Reddick, 139 Ill. App. 160; Englund v._

_Ark. 568, 107 SWF 1171._

\_Mississippi Valley Trac. Co., 139 Ill. App. 672; McKenzie Furnace Co. v. Mallers, 231 Ill. 661, 85 NE 461; Davis v. Illinois Colifer-

_41. Should direct attention of jury to_

_Socile issues, embracing only statements_

_Chicago City R. Co., 255 Ill. 406, 818 NE 860;_

_Tarashaky v. Illinois Cent. R. Co. \[Iowa\]_

\_117 NWV 1074; Starett v. Chesapeake & O. R. Co., 83 Ky. L. R. 809, 110 SWF 282; Ed-

\_R. Co., 83 Ky. L. R. 809, 110 SWF 282; Ed-

_wards v. Western Union Tel. Co., N. C. 60_

_SE 900; Richardson v. Augusta & A. R. Co., 79 S. C. 556, 61 SI 83; Maff i. Stephens TEx._

_Uiv. App.\] 108 SV 1095; Squilache v. Tfloetwater Coal & Coke Co. \[V. Va.\] 62 SE 446._

_Murhard Estats Co. v. Portland & Seattle R. Co. \[C. C. A.\] 168 Y 194._

_It is better in all cases to abstain from statement of merely_

_abstract propositions of law, and at times it may be positive error to \[the them, Thompson V. Galveston, etc., R. Co. \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 756, 106 SWF 910._

_There should be a setting of facets to make them applicable to the case. Kelley v. Torrington, 80 Conn. 378, 68 A 856._

\_Refusal of court to gry s abstract instruction works no prejudice against party asking it, hence no error
_Argumentative instructions_\[48\] should not be given,\[47\] though this fault alone will not ordinarily require a reversal.\[48\] Repetition,\[49\] and not merely calling attention to certain facts in evidence necessary to a recovery,\[50\] may make a charge argumentative, but to determine whether it is so the whole of it must be looked to.\[51\]

_Instructions should be consistent,\[52\]_ but they cannot be held in conflict where one explains and qualifies the other,\[53\] and if, reading them together, they are found to be consistent in their main scope, they will be upheld.\[54\]

\_SS 7. Relation of instructions to pleading and evidence.\[55\]--Instructions must be based on the material issues\[50\] made by the pleadings,\[57\] and the competent\[58\] evi-person was in charge. Galveston, etc., R. Ko. \[Ad.\] 70 A 108; IthI-Co. v. Cochran \[Tex. Civ. App.\] 109 SWV 261.\[65\] Meansless misuse of word "physical" for 55: Gesner v. Metropollist St. R. Co. \[Mdo. App.\] 112 SWV 30; Central Mantel Co. v. other instructions, not misleading. St. Louis, Manaler \[Mdo. App.\] 113 SWV 220; Hoskovec v. ete., R. Co. v. Day \[Ark.\] 110 SWV 220. In-Onaha St. R. Co. \[Neb.\] 115 NWV 312; Hart-advert misplacing of words "plainit" and "defendant", not misleading. Galveston, v. Hansbrough's Adm'x, 107 Va. 732, 60 SE. etc., R. Co. v. Wafer \[Tex. Civ. App.\] 20 SE 787. Instructions in direct conflict in "Williamson" instead of "Williams" held not "theory and conclusions are erroneous. B. F. misleading. Rushing V. Lanfer \[Tex. Civ. App.\] 118 SWV 1089. Use of word "and" in-stead of "or" not material as jury not mis-led. Selklrik v. Watkins \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 586, 105 SWV 1161.

45. Fowler Packing Co. v. Enzenberger \[Kan.\] 94 P 995.

01. See 10 C. L. 315. See post, SS 9, 10.

01. Morris v. McClellan \[Ala.\] 45 S 641; Nashville, etc., R. Co. v. Garth \[Ala.\] 46 S 583; Hays v. Lemoine \[Ala.\] 47 S 97; Jack-son v. Turbble \[Ala.\] 47 S 810; Taylor v. McCllanock \[Ark.\] 112 SWV 405; Dodge v. Cowrat \[Ga.\] 62 SE 87; Perkins v. Wabash \[Ind. App.\] 84 NE 156.

R. Co., 233 Ill. At. 88, 48 NE 167; Elgin Aurora & So. Trac, Co. v. Wilcox, 132 Ill. App. 446; Sangster v. Hatch, 134 Ill. App. 340; City of Farmington v. Wallace, 134 Ill. App. 366; Tiffnio sCent. R. Co. v. Collisions, 134 Ill. App. 448; Wabash R. Co. v. Perkins, 137 Ill. App. 514; Louisville & S. I. Trac. Co. v. Short, 41 Ind. App.\] 570, 83 NE 265; Ryley-Wilson Grocery Co. v. Seymour Canning Co., 129 Mo. App. 525, 108 SWV 628; Ford v. Gray \[Mdo. App.\] 110 SWV 692; Missouri, K. & T. R. Co. v. Hibbits \[Tex. Civ. App.\] 109 SWV 228; Missouri, K. & T. R. Co. v. Malone \[Tex. Civ. App.\] 110 SWV 958; Ramm v. Hewitt-Lea Lumber Co. \[Twash.\] 94 P 1081.

48. Louisville & N. R. Co. v. LIde \[Ala.\] 45 S 699.

01. Instruction that "If you find for plaintiff, in estimating damages, you have right to take into consideration nature of accident and character of injuries, pain, if any, caused thereby, loss of sight, disfigurement, mental and physical pain, and loss of service," held to contain unnecessary repetition. Baltimore, etc., R. Co. v. Walker, 41 Ind. App. 588, 84 NE 730.

01. Landrum v. St. Louis & S. F. R. Co. \[Mdo. App.\] 112 SWV 1000.

01. Whitney v. Wellesley & Boston St. R. Co., 197 Mass. 495, 84 NE 95.

01. See 10 C. L. 315. See ante, this section.

Taylor v. McClintock \[Ark.\] 112 SWV 405; O'Dwyer v. Northern Market Co., 30 App. D. C.

for defendant is improper, as it submits only

theory that defendant owed duty which pri-question of credibility of witnesses of defendant instead of question of negligence of plaintiff and defendant. Gabel v. Brooklyn, etc., R. Co., 112 NYS 1047.

SF. See ante, SS 3, Duty of Instructing.

Alabemma: Alabama, G. S. R. Co. v. McWhorter \[Ala.\] 47 S 84; Alabama City, G. & A. R. Co. v. Bullard \[Ala.\] 47 S 678.

Arkansas. St. Louis, etc., R. Co. v. Ozer \[Ark.\] 110 SW 596.

Colordo. Rude v. Sissack \[Colo.\] 96 P 976.

Georgia, Martin v. Monroe, 130 Ga. 79, 60

SE 253; Coweta County v. Central of Georgia

R. Co. \[Ga. Ap.\] 60 SE 1018; Georgia, F. & A. R. Co. v. Maecker \[Cra. Appl.\] 61 SE 506;

A. R. Co. v. Basser \[Ga. Appl.\] 61 SE 506;

Hewitt v. Lamb, 120 Ga. 799, 61 SE 716.

Idaho: If no allegation as to loss of time and no evidence showing loss thereof or value of it, instruction theorem improper.

Tarr v. Oregon Short Line R. Co., 14 Idaho, 198, 93 P 957.

Illinois. Ratner v. Chicago City R. Co., 233 Ill. 169, 84 NE 201; Hackett v. Chicago

City R. Co., 258 III. 116, 85 NE 230; Kenyon v. Chicago City R. Co., 258 III. 406, 85 NE

Stony v. Chicago City R. Co. v. Redearin, 138 Worth & D. C. R. Co. v. Watkins \[Tex. Clv.\]. 111 App. 85; American Home Circle v.

Schneider, 134 Ill. App. 600; Reynolds v.

Wray, 135 Ill. App. 527; City of Rock Island

v. Larkin, 136 Ill. App. 579.

Towa. Kirkpatrick v. Aetna Life Ins. Co.

\[Iowa\] 117 NW 1111.

Kentucky. Morgan v. Chesapeake & O. R.

Paso Elec. R. Co. v. Sierra \[Tex. Clv. App.\] 109 SW 86; Hamilton v. Johnson County

Garrison, 32 Ky. L. R. 1278, 108 SW 293;

Sympson v. Bell \[Ky.\] 112 SW 1133.

Massachusetts. Plummer v. Boston El. R.

K. Co. v. Byrd \[Tex. Clv. App.\]. 110 SW 109 193; Missouri, K. & T. R. Co. v. Groseclosse

Michigan. Ruthruff v. Faust \[Mich.\] 15

Det. Leg. N. 783, 117 NW 902.

Missouri. Dee v. Nachbar, 207 Mo. 680, 106

SWV 85; Lattimore v. Union Elec. L. & P. Co.

v. Haegsbaum & D. C. R.

128 Mo. App. 37, 106 SW 543; Laiblenth v.

Metropolitan St. R. C., 127 Mo. App. 577, 106

SWV 548; Collins v. Fillingham, 129 Mo. App.

340, 108 SW 618; Davidson v. St. Louis Tran-

sit Co., 211 Mo. 320, 109 SW 583; Kirkpatrick v. Metropolitan St. R. Co., 211 Mo. 68, 109 SW 682; Beave v. St. Louis Transit Co.

321 Mios. 381, 111 SW 52; Crow v. Houcke sansan

Missouri & A. R. Co., 212 Mo. 589, 111 SW

583; Yan Buskirk v. Quiney, etc. R. Co.

\[Mc. App.\] 111 SW 832; Central Mantel Co.

v. Thaler \[Mo. App.\] 113 SW 230. If without the issues, instruction erroneous, but not necessarily reversible error. Comnelly Jr.

llinois Cent. R. Co. \[Mo. App.\] 113 SW 233.

A charge submitting an hypothesis not authorized by pleadings should not be given.

Atchinger v. St. Joseph \[Mo. App.\] 113 SW 679.

No rule is better settled than that which prohibits an enlargement in Instructions of scope of cause pleaded. Kellogs v. Kirks-

ville \[Mo. App.\] 113 SW 296.

Montana, Mitchell v. Henderson, 37 Mont.

515, 97 P 942.

Nebraskat It is reversible error to in-

struct on questions not raised by pleadings

nor applicable to evidence, when such instructions have

## 12 Cur. Law.

dence introduced \[50\] It cannot be said that an instruction is a departure from the

68. First Nat. Bank v. Brown \[Neb.\] 116 INV 685; Anderson v. Lewis \[V. Va.\] 61 SE 82 NE 263; Grand Rapids k. I. Co. v. King,

01.

01. See ante, 1 3, Duty of Instructing. R. Co. v. Walker, 41 Ind. App. 588, 84 NE

Alashnam. Birmingham R. L. & P. Co. v. Lee \[Ala.\] 45 S 164; Birmingham R. L. & P. Co. v. Landrum \[Ala.\] 45 S 198; Neft v Williamson \[Ala.\] 46 L. 238; Pelham v. Chattahooche Grocery Co. \[Ala.\] 47 S 172. When there are two or more counts in complaint, and evidence to support any one of them, charges directed to other counts, unsupported by any evidence, but which Instruct generally to find for defendant, should not be given. Burns v. George \[Ala.\] 45 S 421. Instruction authorizing jury to adopt any theory which may be suggested, whether supported by evidence or not, is erroneous. McBride v. Sullivan \[Ala.\] 45 S 902.

Arizona. Greene v. Hereford \[Arlz.\] 95 P 165.

Arkansas. One Chair Co. v. Cook, 85 Ark.

590, 108 SV 203; Taylor v. McClintock \[Arl.\] 112 SW 405; Arkansas Cent. R. Co. v. Workman \[Arl.\] 112 SVV 1082; Little Rock & M. R. Co. v. Russell \[Arl.\] 113 SW 1021.

California. Central Pac. R. Co. v. Feldman, 152 Cal. 303, 92 P 849. That a different theory may also find support in evidence

18 no valid ground of objection where instruction is hypothetical and pertinent. Vistrom v. Redlick, & Cal. App. 671, 92 P

1448.

Colorado. Rimmer v. Wilson, 42 Colo. 180,

98 P 1110; Reynolds v. Hart, 42 Colo. 150,

94 P 14; Coors v. Brock \[Colo.\] 96 P 963; Rio Grande So. R. Co. v. Campbell \[Colo.\]

96 P 986.

Florida. Florala SawmIII Co. v. Smith \[Fla.\] 46 S 332.

Georgia. Cooley v. Bergstrom, 3 Ga. App. 486, 60 SE 220; Georgia S. & F. R. Co. v. Wright, 130 Ga. 696, 61 SE 713; Neel v. Powell, 130 Ga. 756, 61 SE 729; Darsey v. Darney \[Ga.\] 62 SE 26; McElwaney v. Darnmid \[Ga.\] 62 SE 20; Southern R. Co. v. Griga \[Ga.\] 62 SE 177; Fullbright v. Neeley \[Ga.\] 62 SE 188; Dodge v. Cowart \[Ga.\] 62 SE 987.

Illinois. Davle v. Illinois Collerles Co., 121 III. 254, 83 NE 836; Dorrance v. Dearborn Power Co., 233 Ill. 254, 84 NE 269; Kennedy v. Swift & Co., 233 Ill. 254, 84 NE 269; Kennedy v. West & Co., 234 Ill. 665, NE 187; Smith v. Treat, 234 Ill. 552, 85 NE 289; Murphy v. Evanston Elec. R. Co., 235 Ill. 275, 85 NE 184; Jacobson v. Heywood & Morrill Rat. \[Atc.\] 85 NE 9. Evidence

134. Jacobson v. Heywood & Morrill Rat. \[Atc.\] 85 NE 111, 570, 86 NE 110; Chicago, etc.,

R. Co. v. Gill, 132 III. App. 310; McMahon v. \[Atc.\] 856, 132 III. App. 582; Donk Bros. Coal &

Coke Co. v. Streeter, 133 Ill. App. 198; Lepman v. Woldert Grocery Co., 133 Ill. App. 362; Koehn v. Tomlinson, 134 Ill. App. 256; Spring-

Geld Consol. R. Co. v. Johnson, 134 Ill. App. 536; Litchfeld & M. R. Co. v. Shuler, 134 Ill. App. 615; Tripoll Sav. Bank v. Schnadt, 135 Ill., App. 373; Telesorwitz v. Fogarty, 138 Ill. App. 609; Cowe v. Kinser, 138 Ill. App. 143; Henreddy v. Pallinnas, 139 Ill. App. 148; Summerville v. Klein, 140 Ill. App. 38 pleadings where the pleadings contain all the allegations of fact which the instruction requires to be found,80 nor is a departure from them in an immaterial matter

112 SWV 17; Gessner v. Metropolitan St. R. \[App.\] 108 SW 1044; Texas & N. O. R. Co. v. Co. \[Mo: App.\] 112 SWV 30; Brown v. Globe Parons \[Tex. Civ. App.\] 109 SV 240; WestPrinting Co. \[Mo.\] 112 SWV 462; Barree v. \[ern Union Tel. Co. v. Johnsey \[Tex. Civ. Cape Girardeau \[Mo. App.\] 112 SWV 724; Heldbrink v. United R. Co. \[Mo. App.\] 113 SWV 223; International Bank v. Enderie \[Mo. App.\] 113 SWV 282. Court will not instruct in face of evidence. Atchison v. St. Joseph \[Mo. App.\] 113 SWV 678. Must be predicated on evidence and not a mere surmise. New Madrid Bank. Co. v. Poplin, 126 Mo. App.\] 114, 108 SWV 115. Comment on city ordinance not in evidence, but excluded when offered, is error. Lattimore v. Union Elec. L. & P. Co. 118 Mo. App. 37, 108 SWV 643. Montana, Power v. Turner, 37 Mont. 521, 7 P 950. Nebraska. Allen v. Chicago, etc., R. Co. \[Neb.\] 118 NWV 655. New Hampshire. Steerns v. Boston, etc. R. Co. \[N. H.\] 11 A 21. New Jersey. There must be some basis in evidence for hypothesis proposed by request. Daggett v. North Jersey St. R. Co. \[N. J. Err. & App.\] 68 A 179. New York. Rockmore v. Kramer, 108 NYS 555; Pulcino v. Long Island R. Co. 109 NYS 1076. If evidence shows that accident was not caused by any act of operator, it is error to instruct that if elevator negligently operated recovery may be had. Keller v. Wove Reality Co., 112 NYS 538. North Carolina. Vreaver v. Love, 148 N. C. 414, 69 SE 1041; Wade v. McLean Contracting Co. \[N. C.\] 62 SE 619. \[On. Anderson v. Aupperie \[Or.\] 95 P 130. Pennsylvania, Weir v. Haverford Elec. \[Tex. Civ. App.\] 113 SWV 108; Ligh t Co., \[Pa.\] 70 A 874. South Carolina Hall v Latimer \[S. C.\] 61 SE 1057; Jones v. Parker \[S. C.\] 62 SE 621; Cheek v. Seaboard A. L. R. \[S. C.\] 62 SE 602. Unless attention of court is called to matter, that there is no basis in evidence \[cf. to be published in the proceedings of the 113 SWV 140; Press, charers thereon is uncalled for. \[Tr.\] 114, 108 SWV 420; Texas & P. R. Co. v. Bradshaw \[Tex. Civ. App.\] 114, 108 SWV 421; Texas & P. R. Co. v. Hansborough's Adm't, 107 Va. \[Tex. Civ. App.\] 20 Tex. Ct. Rep.\] 106 SWV 724; St. R. Co. v. Jenkins \[Tex. Civ. App.\] 108 SWV 425; Texas & P. R. Co. v. Johnsson \[Tex. Civ. App.\] 109 SWV 261; Texas Brev. Co. v. Blanksworth's Adm't, 107 Va. \[Tex. Civ. App.\] 20 Tex. Ct. Rep.\] 106 SWV 724; St. R. Co. v. Jenkins \[Tex. Civ. App.\] 109 SWV 261; Texas Brev. Co. v. Blanksworth's Adm't, 107 Va. \[Tex. Civ. App.\] 108 SWV 724; St. R. Co. v. Jenkins \[Tex. Civ. App.\] 106 SWV 725; St. R. Co. v. Jenkins \[Tex. Civ. App.\] 109 SWV 726; St. R. Co. v. Jenkins \[Tex. Civ. App.\] 113 SWV 727; St. R. Co. v. Jenkins \[Tex. Civ. App.\] 114, 108 SWV 728; St. R. Co. v. Jenkins \[Tex. Civ. App.\] 115 SWV 729; St. R. Co. v. Jenkins \[Tex. Civ. App.\] 116 SWV 729; St. R. Co. v. Jenkins \[Tex. Civ. App.\] 117, 108 SWV 729; St. R erroneous.\[41\] An instruction may be based on matters judicially noticed\[42\] or on circumstantial evidence\[63\] or other evidence\[which\] is not full and clear\[44\] or conclusive.\[65\]

SS 8. \_Stating issues to the jury.\[66\]--The court should submit all material issues\[67\] clearly\[68\] and fairly,\[69\] and this may be done in the language of the pleading,\[70\] or, "as set forth and claimed in some count thereof," though some counts be withdrawn, if the jury know of such withdrawal.\[71\] Failure to state all the issues is not waived by omission to ask for an instruction thereon,\[72\] but if an error is made in the statement it is the duty of counsel to call the court's attention to it.\[73\] The court may state what issues are made by the pleadings, as preliminary to stating what are withdrawn, and what are left for consideration,\[74\] but issues stated should include, or be followed immediately by, the instruction applicable thereto.\[75\] Where action is based on two theories, both should be submitted, if recovery may be had on either,\[76\] and, in submitting special issues, it may be necessary to instruct in such a way as will assist the jury in returning pertinent and intelligent answers,\[77\] but points answered in the negative need not be submitted,\[78\] nor is it necessary to construe an in-

SS89, 107 SVV 147; St. Louis S. W. R. Co. v. \[App. 520, SS2 NE $86: Seal v. Holcomb \[Tex. Smith \[Tex. Civ. App.\] 107 SVV 683; Kansas City. App.\] 107 SVV 916. \[69, See post, $9, 10; ante, $6. Issues to \[Tex. Civ. App.\] 107 SVV 883. Issues need not be specifically set out, if substance is there. Southern Pac. Co. v. Godfrey \[Tex. Civ. App.\] 107 SVV 1135; Torts & Perry Planing Mill Co. v. Weil \[Ky.\] 118 SVV 474. \[61. Gibson v. Senger \[Iowa\] 116 NWV 325. \[62. While instruction must be based evidence, facts of which courts take judicial notice are a part of case as facts, and court may instruct upon them. Spliking v. Consolidated R. & Power Co., $3 Utah, $13, $3 P S strument not affecting the issues,70 and if there is no evidence to sustain a fact, it is proper for the court to say so,80 Though inquiry should be narrowed to the precise issue,81 and this reduced to as limited compass as is consistent with full instructions,82 if the pleading is broad enough to embrace the issue, it should not be narrowed.83

Footnote 81: The author is grateful to legal presumptions."1 The court may tell the jury to disregard evidence that has been excluded,"2 or, when it is admitted for a restricted purpose, may instruct as to the limits within which it may be considered."3 The court may also ignore an issue which is not debatable "4 or a matter not pleaded or involved,"5 or may confine the jury to a crucial issue,"9 and need not instruct on an affirmative defense that raises no new issue."7 Where the jury has been informed of the withdrawal of certain counts, it will be assumed they knew the instruction referred to counts not withdraw."8

dence and merely state the claims of the respective parties," and an instruction that correctly states the law may not be objectionable." Undue emphasis should not be put upon disputed " facts " and issues; " but an instruction which might be misleading in one state of the record may be proper in another," and it is not error to state the claim of a party if the evidence is not characterized," nor is the mere mention of the amount sued for condemned." Where the contentions of one party are as fairly presented as those of another, there can be no ground for complaint,10 and the fact

128 Mo. App. 852, 107 SVW 415; Tazlin v. 10 others. Sangster v. Hatch, 124 III. App. 840. An instruction purporting to summar- \[Vt.\] 71 A 72: Salchert v. Reing 840. An instruction purporting to summar- \[VtIs.\] 115 Nvw 182; Hamann v. Milwaukee Bridge Co., 136 VtIs. 83, 116 Nw 854. It is error to single out and isolate testimony of designated witnesses and lay particular stress upon It in cases where evidence is contradictory. Hughes v. Hughes, 135 III. App. 853: Tau- 664; Tanner v. Clapp, 139 III. App. 855; Tautert v. Taubert, 168 Minn. 247, 114 NWF 763. Instruction improper which singles out test- \[mov of a particular witness as being antagonistic to other testimony. Sangster v. Hatch, 134 III. App. 840. Where five different instructions were given for appelle, aimed in different ways at credibility of witnesses, where there was no occasion for se many, held error to give them. Tripoll Sav. Bank v. Schnadt, 128 III. App. 873.

2. Sackett v. Carroll, 80 Conn. 874, 68 A 42.

1. In action for injuries from assault by baggage master in ejecting plainff from truck, an instruction that if jury belleve from evidence that baggage master used no more force than was reasonably necessary to remove plainff from premises of defendant then they should find for defendant is not open to objection that it gives undue prominence to evidence of baggage master that he used no more force than was necessary to remove plainff from truck. Hub- \[hard v. Louisville, etc., R. Co., 22 Ky. L. R. 1287, 108 SVW 231.

1. Galveston, etc., R. Co., v. Worth \[Tex. Cliv. App.\] 20 Tex. Ct. Rep. 712, 107 SVW 958.

1. Rule violated when there is undue emphasise on certain facts. G(bler v. Qutnov, etc., R. Co., 129 Mo. App. 83, 107 SVW 1021.

Giving them special importance over other facts of equal or greater importance. Land- \[rum v. St. Louis & S. F. R. Co. (Mo. App.) 115 SVW 100. Isolated facts unuly emphasized. Swinery V. American Exp. Co. (Iowa) 116 Nw 112. Excluding all but certain facts. Condie v. Rio Grande Western R. Co. (Iowa) \[Utah\] 97 P 120; Parkersburg Nat. Bank v. Hannaman, 63 W. Va. 358, 60 SE 243. Part only of relevant facts such facet given controlling effect in determining issue. Wolf Cigar Stores Co. v. Kramer \[Tex. Cliv. App.\] 109 SVW 990. Particular facts singled out. Funston v. Hoffman, 233 III. 360, 38 NE 817; Ekelbrig v. Citizens' Ine. Co., 234 III. 251, 84 NE 897; Trustees of Schools v. Yoch, 133 Ill. App. 82; Wababak R. Co. v. Perkins, 137 Ill. App. 814; Illinois Commercial Men's 0. Mentioning amount used for, except Ass'n v. Perrin, 139 III. App. 543; Bennett v. Knott \[Ky.\] 112 SVW 849; McKay, V. Peterson to amount of verdict, le not condemned. El T(Tex. Cliv. App.) 118 SVW 911. Singling out Pasco Elec. R. Co. v. Kelly \[Tex. Cliv. App.\] relatively unimportant matter. Froberg v. 109 SVW 415.

Smith \[Minn.\] 118 NWF 87. Oligolemable as 101: Farkas v. Brown \[Ga. App.\] 60 SE improperty slinging out certain occasions involved in evidence and omitting reference that the contentions of one are stated more at length than those of another will not make the charge objectionable.11

**SS 11.**\_Definition of terms used.12--\_It is not error to omit definition of terms used,13 especially where the jury has been otherwise fully instructed,14 or the meaning of the term is well understood,15 or no request has been made;16 but, if a definition is given, it should be clear17 so as to aid the jury,18 and though perfect accuracy is not required,19 it should be correct.20 While it is better to do so, it is not necessary to define terms in the very language of the statute,21 but usual definitions should be conformed to 22 and not changed.23 In defining terms the court should take into account what the parties understood them to mean.24

**SS 12.**_Rules of evidence; credibility and conflicts.25--Bules of evidence,_ such as relate to the degree of proof required26 the burden of proof27 and preponderance of:

**11.** That a statement goes more at length : abama City, G. & A. R. Co. v. Bullard \[Ala.\] into contentions of one party than another does not make it objectionable as giving more prominence to that side than other. Macon, D. & S. R. C. v. Joyner, 129 Ga. 683, 59 SE 902: Millen, etc., R. Co. v. Allen, 130 Ga. 656, 61 SE 541. 12. See 10 C. L. 327. See ante, SS 3, Necessity of Request in Particular Cases, also Disposition of Requests. 13. O'Leary v. Kansas City, 127 Mo. App. 17, 106 SW 94. Instruction in action against railway company held not erroneous because of failure to define term "accident," instruction being to effect that no liability attached If injury was result of mere accident. Larsen v. Chicago Union Trac. Co., 131 III. App. 286. 14. Where jury has been otherwise fully instructed, defintions or qualifications are not necessary. Road District No. 1. v. Beebe, 231 III. 147, 83 NE 131. 15. Court need not define "Tregligence." Main v. Hall, 127 Mo. App. 713, 106 SW 1099; Landrum v. St. Louis & S. F. R. Co. \[Mo. App.\] 112 SW 1000. It is best not to define "reasonable time." Houston & T. C. R. Co. v. Roberts \[Tex. Civ. App.\] 109 SW 982. 527. In action on contract it is error to in-incal meaning as to call for a definition. Texas Midland R. Co. v. Ritchey \[Tex. Civ. App.\] 108 SW 732. 108 SW 732. 10. See ante, SS 3, Necessity for Requests in Particular Cases. Savannah Elec. Co. v. Bennett, 130 Ga. 997, 61 SE 529: Texas Midland R. Co. v. Ritchey \[Tex. Civ. App.\] 108 SW 732; Missouri, K. & T. R. Co. v. Hendricks \[Tex. Civ. App.\] 108 SW 745. 17. Murphy's Ex'v. Hoagland, 32 Ky. L. R. 839, 107 SW 303. 18. A definition that will not aid jury should be omitted. Fenton v. Iowa State Traveling Men's Ass'n \[Iowa\] 117 NW 561. Instruction that such waters as are navigable in fact are navigable waters, though useless as a guide to jury, not misleading. Orange Lumber Co. v. Thompson \[Tex. Civ. App.\] 113 SW 563. 18. Perfect accuracy is not required if jury cannot be mislead by definition as given. West Chicago Park Com'rs v. Boal. 523 III. 424, 83 NE 824. The use of the term "reasonable care" instead of "ordinary care" in defining negligence will not invalidate judgment. Spaulding v. Metropolitan St. R. Co., 129 Mo. App. 507, 107 SW 1049. 20. Should correctly state definitions. Al * 12 Cur. Law. INSTRUCTIONS $ 12. 245 evidence, \[23\] must be correctly stated. \[29\] Demonstration is never required, \[30\] and it is within the discretion of the court to charge as to the relative weight of affirmative and negative testimony. \[31\]

\_The credibility of witnesses.\_See 10 C. L. 217. Though the credibility of witnesses is for the jury, \[32\] and the court can hardly err in refusing instructions thereon, \[33\]

## 12. Introduction

The study of the effect of 18 Cur. Law. INSTRUCTIONS SS 14.

but this is largely in the discretion of the court,"1 nor is the doctrine applicable to witnesses other than those who have knowingly or willfully sworn falsely."1

SS 13. \_Admonitory and cautionary instructions.\_25e 10 C. L. 880e.\_The court may, within its discretion,"1 give admonitory instructions."26

SS 14. \_Necessity of instructing in writing.\_27_The power, when it exists, to submit oral instructions, should be cautiously exercised,"2 and though, where no prejudice results, that the jury were instructed orally will not work a reversal,"28 unless waived,"29 if the statute require it they must be in writing."29 but in the absence of evidence to the contrary it will be presumed they were written."30 While the presence of a stenographer taking the proceedings will not relieve the court of the duty to instruct in writing,"31 the charge, if taken by a stenographer employed by both parties, is in writing within the meaning of the statute."31

that if jury believe under all evidence any | tried to evade in any way questions put to any witness has knowingly and willfully | him is erroneous. Tucker v. Dudley, 111 testified falsely to any material fact they | NYS 700.

may disregard whole of his testimony, or | NYS 700.

give it such weight on other points as they | a witness who has sworn falsely are largely | may think proper, and tells them they are | existing> judges of weight of testimony, | NYS 700.

as | NYS 700.

**INSTRUCTIONS 15.** **12** Cur. Law.

SS 15. \_Presentation of instructions.\_See 10 C. L. 331.--There is no prescribed way in which the judge is to announce to the jury the giving of a requested instruction in writing.\*

SS 16. \_Additional instructions after retirement.\_See.\_After retirement of the jury, the court may, within its discretion,\[51\] give additional instructions,\[52\] and while it is the better practice to have council present when such instructions are given,\[53\] if they merely urge the jury to agree and are not on a point of law neither a party nor his counsel need be present or have notice of the proceeding.\[54\] Such instructions must not be erroneous and misleading,\[55\] must not tell the jury the verdict is insufficient in amount,\[56\] nor impress upon them that the necessity of agreement will justify a compromise with conscience.\[57\]

\_Recalling instructions.\_See 10 C. L. 331.--At any time before the jury is discharged, the court may withdraw erroneous instructions,\[58\] but not orally.\[59\]

SS 17. \_Review. Objections and exceptions below.\_See.\_The record on appeal.\[51\]

\_Invited error.\_See.\_Harmless error.\[52\]

\_Instructions must be considered as a whole.\_See.\[54\]--Putting emphasis where it properly belongs,\[68\] and assuming that the jury gave due consideration to them,\[68\] instruccltions will be considered as a whole,"47 the court dealing with them in relation to each

them as a whole, rather than to isolated \[762; City of Garrett v. Winterlich \[Ind. portions. Tarr v. Oregon Short Line R. Co. 14 Idaho, 192, 93 P 957. Considered as a "Wagner \[Ind.\] 85 NE 1045; Louisville & S. whole in same connection in which it was "I Tract, Co. v. Worrell \[Ind.\] 86 NE 78; given, and on assumption that jury did not "Iridians Natural Gas, & Oil Co., v. Wilhelm \[Ind.\] 88 NE 86." \[N. C.\] 62 SE 1081." \[N. C.\] 62 SE 1081." \[N. C.\] 62 SE 1081." \[N. C.\] 62 SE 1081." \[N. C.\] 62 SE 1081." \[N. C.\] 62 SE 1082." \[N. C.\] 62 SE 1083." \[N. C.\] 62 SE 1084." \[N. C.\] 62 SE 1085." \[N. C.\] 62 SE 1086." \[N. C.\] 62 SE 1087." \[N.

other "8" and in the connection in which they were used." So construing them, if they fairly state the law "0" and are not so inharmonious as to be misleading," they will be held sufficient, though one standing alone might be erroneous."2

nor, brought on account of injuries recceiv- & Washington. Wikstrom v. Preston Milli ed in machine which he was feeding, is tried on theories that defendant failed to instruct plaintiff as to extra hazard arising from change in material which he was feeding into machine, charge is not erroneous because of omission in paragraph defining ordinary care to refer to age of plaintiff, if it appear from charge taken as a whole that jury were not mislead thereby. K. D. Box & Label Co. v. Caline, 11 Ohio C. C. (N. S.) 81.

Oldaheman. Instructions are to be considered together to end that they may be understood. Grant v. Milam \[Ok1.\] 95 F 424.

South Carolina. Columbia, etc. R. Co. v. Clarke Laurens Cotton Milli \[S. C.\] 61 SE 1089; Cannon v. Dean \[S. C.\] 61 SE 1012; Du Bose v. Atlantic Coast Line R. Co. \[S. C.\] 62 SE 285; Jones v. Parker \[S. C.\] 62 SE 261.

Texas. Houston, etc., R. Co. v. McHale \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 161, 105 SWV 1149; Thompson v. Planters' Compress Co. \[Tex. Civ. Rep.\] 106 SWV 470; Texas & P. R. Co. v. Hollow \[Tex. Civ. App.\] 107 SWV 629; Missouri, etc., R. Co. v. Balllet \[Tex. Civ. App.\] 107 SWV 906; Dunn v. Taylor \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 864, 107 SWV 892; Evans v. Aabe \[Tex. Civ. App.\] 108 SWV 388; Fit Worth, etc., R. Co. v. Watkins \[Tex. Civ. App.\] 108 SWV 487; Gulf, etc. R. Co. v. Farmer \[Tex. Civ. App.\] 108 SWV 729; Fit Louis S. W. H. Co. v. Hawkins \[Tex. Civ. App.\] 108 SWV 736; Orient Ins. Co. v. Wingfield \[Tex. Civ. App.\] 108 SWV 788; San Antonio, etc., R. Co. v. Martin \[Tex. Civ. App.\] 108 SWV 881; El Paso, etc., R. Co. v. Smith \[Tex. Civ. App.\] 108 SWV 888; Galveston, etc., R. Co. v. Cochran \[Tex. Civ. App.\] 109 SWV 861; Southern Kansas R. Co. v. Yarbrough \[Tex. Civ. App.\] 109 SWV 880; El Paso Elec. R. Co. v. Kelly \[Tex. Civ. App.\] 109 SWV 415; Missouri, etc., R. Co. v. Dawson \[Tex. Civ. App.\] 109 SWV 1110; Missouri, etc., R. Co. v. Williams \[Tex. Civ. App.\] 109 SWV 1126; Missouri, etc., R. Co. v. Steele \[Tex. Civ. App.\] 110 69 SWV 171; Poland v. Sutherland \[Tex. Civ. App.\] 110 SWV 487; El Paso, etc., R. Co. v. O'Keefe \[Tex. Civ. App.\] 110 SWV 1002; St. Louis S. W. H. Co. v. Garber \[Tex. Civ. App.\] 111 SWV 227; St. Louis S. W. H. Co. v. Garber \[Tex. Civ. App.\] 111 SWV 1092; Tex. Cockrill \[Tex. Civ. App.\] 111 SWV 1092; Tex. Cok & G. R. Co. v. First Nat. Bank \[Tex. Civ. App.\] 112 SWV 583; Galveston, etc., R. Co. v. Clarke Co. v. Olds \[Tex. Civ. App.\] 112 SWV 787; Parham v. Fit Worth, etc., R. Co. (Tex. Civ. App.) 113 SWV 154; Hansen v. Williams \[Tex. Civ. App.\] 118 SWV 312. General and special charges are to be regarded as one entire Instrument, and considered together. Galveston, etc., R. Co. v. Berry \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 156, 105 SWV 1019; Houston, etc., R. Co. v. Finn \[Tex. Civ. App.\] 107 SWV 94. Clerical omissions may be supplied by reading charge as a whole. Texas & P. R. Co. v. Johnson \[Tex. Civ. App.\] 120 Tex. Ct. Rep. 410, 106 SWV 712; St. Louis S. W. H. Co. v. Wilbanks \[Tex. Civ. App.\] 113 SWV 318.

Virginia. Burton v. Frank A. Seifert Plater Relif Co. \[Va.

### 12 Cur. Law.

###### Curing error in instructions

\*\*--\*\*Erroneous instructions are presumed prejudicial,74 but they may usually be cured by the giving of correct ones,75 especially where the error is slight76 or consists in incompleteness,77 omissions78 or a tendency to

make it apparent jury not misled, and \[ tion of defendant. Southern R. Co. v. Hans-charge as a whole correctly defines law, it is sufficient. Adult v. Nebraska Tel. Co. (Neb.) 75. Pettus & Burford V. Kerr \[Ark.\] 112 SWV 118 NV 73. That some instructions are incomplete, not covering entire case, not re- \[Co.\] 152 Cal, 604, 93 F 677; Foote v. Brown versible where series states law with substantial accuracy. Varney v. Taylor, 133 11L App. 154. It is a familiar value that in reviewing a charge it will be examined as a whole, While one or more paragraphs standing alone may be inaccurate or even prejudically erroneous, yet, if they are qualified and explained by other portions of charge in part materials, and, taken together with them and rest of charge, fully and fairly submit case to jury, verdict and judgment should be sustained. Harrington v. Butte A. & P. R. Co., 26 Mont.
478, 93 P 640.
71\. Must be considered as a series, and may supplement each other, but there must be such harmony between them as that jury will not be misled. Funston v. Hoffman, 232 Ill. 360, 83 NE 917.
72\. Considered as a whole, and if, when taken together, law correctly given, will not be reversed, though single instruction alone might seem incorrect. Pittsburgh, etc., R. Co. v. Wood \[Ind. App.\] 84 NE 1009.
73\. Even though one single instruction standing alone is misleading, a reversal will not follow if all considered together are correct in law and free from conflict. Page v. Smith, 139 Ill. App. 441. Must be read as a whole, and when so read, if they are not contradictory, and are supplementary to each other, and fairly state law, case will not be reversed because any one instruction does not state all the rule, with its modifications. De Witt v. Floriotton Pulp & Paper Co. \[Cal. App.\] 98 P 397. When considered as a whole, if they fairly and fully state law applicable to evidence, giving them is not error, although detached sentences or separate charges considered alone might be erroneous or misleading. Barrow v. Lewis Lumber Co., 14 Idaho. 688, 95 p 688. If, when so considered, they are not misleading and announce correct propositions of law, there will not be a reversal because a single paragraph thereof deals with but a part of proposition presented. Montrose Sav. Bank v. Clausen, 137 Iowa, 73, 114 NPV 547; Hawkins v. Young, 137 Iowa, 281, 114 NPV 1041. Instructions held proper taken as a series, where if one had been sole one in cause it might have been objectionable as misleading and erroneous as applied to facts. Chicago City R. Co. v. Ratner, 138 Ill. App. 628.
73\. See 10 C. L. 33. See ante, this section.
74\. Abney v. Indiana Union Trac, Co., 41 Ind. App. 53, 83 NE 387. Where, after all instructions are read as a whole, it is still apparent that a false doctrine was injected into the case, court will assume that jury misled by error. Hovev v. Aaron \[Mo. App.\] 113 SWV 718. It will not do to say instruction was harmless because defendant asked for and obtained instruction setting forth its version of law applicable to facts dealt with in instruction given for plaintiff over objec mislead." A cure may also be effected by a direct statement by the court to the jury " or by withdrawing the charge," but where the instructions are conflicting " and it cannot be said by which the jury were influenced," charges clearly wrong are not cured because correct ones on the same subject were given," nor can an erroneous instruction be cured by another with which it has no relation " nor which neither modifies nor refers to it."

## 11 Insurance Laws, Regulations and Supersion In General, 253

- 2. Corporations and Associations Doing an Insurance Business, 254.
- A. Corporate Existence, Character, Management, Rights and Liballities, 254.
- Dissolution and Insolvency, 256.
- B. The Right to Negotiate Insurance and Regulations Thereabout, 258.
- C. Rights and Liballities of Agents, 258.

the evidence" instead of phrase "If you believe from a prepondence of the evidence," caused by one giving correct rule, and it is though objectionable, held not prejudicial impossible to say which one jury followed.

- Kath v. East St. Louis & S. R. Co., 232 IL.

- 126, 83 NE 538; Ratner v. Chicago City R. Co., 235 III. App. 127. Instruction Ignoring a law contained in one instruction is not cursed by a correct statement of the law in submitting it to jury. Lange v. Missouri

- Pac. R. Co., 208 M.o. 458, 106 SW 660.

- 79. A misleading Instruction may be cured by a correct one given on courts own motion. Baltimore, etc., R. Co., v. Walker, 41 Ind. App. 583, 84 NE 730.

- 80. Cucclarro v. New York, etc., R. Co. (C. A.) 163 F 38; Cumberland Tel. & T. Co. v. Overfield, 32 KY. L. R. 421, 106 SW 242.

- 81. Abney v. Indiana Union Trac. Co., 41 Ind. App. 53, 83 NE 387.

- 82. One instruction does not cure another when they are in conflict. Fowler v. Chicago & E. I. R. Co., 234 Ill. 619, 85 NE 298.

- Erroneous instruction is not cured by another which is contradictory in terms. Burton's Adm' r. Cincinnati, etc., R. Co. (Ky.)

- 113 SW 442; Huff v. St. Joseph Ry., L., & P. Co. \[Mo.\]. 11 SW 1145; Cobb V. Dunlevlev, 63 W. Yu. 398, 60 SE 384. Instruction free from ambiguity, but affirmatively erroneous, is not cured by contradiction contained in another instruction. McDivitt v. Des Moines City R. Co. \[Iowa\] 118 NWV 459. One instruction not cured by another which allows jury to apply conflicting principles of law at their discretion. Blumberg v. Sterling

- 124. Where instructions of successful party state erroneous rule or law and those of defeated party state rule correctly, latter do not cure former. Ross v. Metropolitan St. R. Co. \[Mo. App.\]. 112 SWV 9. An inaccurate Instruction will not be cured by a correct one where the two are contradictory and the contradiction

- 125. Forteism Insurers and Companbles, 257.

- 126. A. Corporate Existence, Character, Management, Rights and Liballities, 254.

- 127. The Right to Negotiate Insurance and Regulations Thereabout, 258.

- 128. Conditions Necessary to Engage in

- 129. A. Inc. \[Ark.\] 112 SWV 889; Kath v. East St. Louis & S. R. Co., 232 Ill. 126, 83 NE 533.

- 130. The Right to Negotiate Insurance and Regulations Thereabout, 258.

- 131. The Right to Negotiate Insurance and Regulations Thereabout, 258.

- 132. Conditions Necessary to Engage in

- 133. A. Inc. \[Ark.\] 134. The Right to Negotiate Insurance and Regulations Thereabout, 258.

- 134. Instruction clearly wrong cannot be cured by one giving correct rule, and it is though objectionable, held not prejudicial impossible to say which one jury followed.

- 135. A. Inc. \[Ark.\] 135. A. Inc. \[Ark.\] 136. A. Inc. \[Ark.\] 137. A. Inc. \[Ark.\] 138. A. Inc. \[Ark.\] 139. A. Inc. \[Ark.\] 139. A. Inc. \[Ark.\] 138. A. Inc. \[Ark.\] 139. A. Inc. \[Ark.\] 139.

- 5. Insurable Risks and Interests, 259. Flre Insurance, 265. Life Insurance, 260. Liquidity Insurance, 260. Burglary Insurance, 261.

- 6. Application, 261.

- 7. The Contract of Insurance In General, and General Rules for Its Interpre- tition, 261. Definitions and Disfunctions, 261. Agencies, and Authority of Agents in General, 261. Essentials and Validity; Acceptance, 264. Construction, 266. Conflict of Laws, 267.

- 8. Premulus and Premulus Notes, Dues and Assessments, and Payment of the Same, 267.

- 9. Warranties, Conditions and Representations, 271.

- 10. The Risk or Object of Indeminity, 278. Reformation of Policy for Mistake, 283.

- 11. The Benefelary and the Insured, 283. Rights of Employive Under Employive's Liability Policy, 285. Rights of Mortgages, Creditors, Trustees, etc., Under Loss Payable Clauses, 285. Insurance by Bailee or Agent, 286.

- 12. Policy Value in Cash or Loons, and Right to Share In Surplus Before Loss, 286.

- 13. Options and Privileges Under Policy, 286.

- 14. Assignments and Transfers of Benefits or Insurance, 288.

- 15. Insurance laws, regulations and supervision in general.See 10 C. L. 386. The- state may regulate insurance companies either under its police power for the protection of the public or as a controller of corporations generally. \[88\] It may, through its- legislature, prescribe standard forms of policies, \[88\] or require policies to contain prescribed provisions \[90\] or to be executed in a specified manner. \[91\] Insurers may be required to submit forms of policies for the inspection and approval of the insurance commissioner, \[92\] and may be punished for using policy forms not approved by the commissioner or by the court on review of his action. \[93\] Among other regulations are such as pertain to the incorporation of insurance concerns, \[94\] investments, \[95\] con-

- 87. Matters relating generally to agency (see Agency, 11 C. L. 60), corporations, do-

- 199 Mass. 190, 85 NE 410. St. 1907, p. 895, mmetic and foreign (see Corporations, 11 C. L. 1410; Foreign Corporation, 11 C. L. 1508),

- 110. Informality bonds (see Indeminity, 11 C. L. 1892), marine Insurance (see Shipping and Water Traffic, 10 C. L. 1655), and insurance contracts of fraternal benefit associations (see Fraternal Mutual Benefit Associations, 11 C. L. 1564), are excluded.

- 88. New York Life Ins. Co. v. Hardison, 199 Mass. 190, 85 NE 410.

- 89. New York Life Ins. Co. v. Hardison, 199 Mass. 190, 85 NE 410. For questions as to compliance with prescribed forms, ses post, $ 7, subd. Essentials and Validity.

- 90. New York Life Ins. Co. v. Hardison, 199 Mass. 190, 85 NE 410. For statutory requirements, see post, $ 7, subd. Essentials and Validity.

- 91. For right to combine more than one class of insurance in one policy, see post, $ 7, subd. Essentials and Validity. For effect of requirements that application or other matters be attached to policy, see post, $ 7, subd. Construction,

- 11. The Role of Policy for Mistake, 283.

- 12. Policy Value in Cash or Loons, and Right to Share In Surplus Before Loss, 286.

- 13. Options and Privileges Under Policy, 286.

- 14. Assignments and Transfers of Benefits or Insurance, 288.

- 15. Change or Substitution of Contract, or Risk, or of Conditions Thereupon, 289.

- 16. Reselsalon, Forfetture, Cancellation and Avoidance, 290.

- 17. Under Statute or Agreement, 290.

- 18. For Breach of Contract, Condition, or Warranty, or Mirepresentation, 291.

- 19. C. Estoppel or Waiver of Right to Cancel or Avoid, 294.

- 17. Contracts of Relevance and Concurrent Insurance, 290.

- 18. The Loss or Benefit, Its Extent, and: Extent of Lability Therefor, 300, 19. Notice, Claim, and Proof of Loss, 302. False Swearing, 303. Waiver, 304.

- 19. Argument and Arbitration, 304.

- 10. Option to Pay Loss or Restore Prepure, or to Take Dmmaged Property at Appartiad Value, 305.

- 11. Option to Pay Loss or Benefit and Actors of Lability Policy, 285. Rights of Employive Under Employive, 285. Rights of Mortgages, Creditors, Trustees, etc., Under Loss Payable Clauses, 285. Insurance by Bailee or Agent, 286.

- 12. Policy Value in Cash or Loons, and Right to Share In Surplus Before Loss, 286.

- 13. Options and Privileges Under Policy, 286.

- 14. Assignments and Transfers of Benefits or Insurance, 2

**254**

INSURANCE SS 2A.

12 Cur. Law.

tracts with employes "" expenditures in procuring new business," the medical examination of applicants for insurance," discriminations and rebates," and the filing of annual reports.1 A superintendent of insurance cannot exercise judicial powers not expressly conferred upon him.2

SS 2. _Corporations and associations doing an insurance business. A. Corporate existence, character, management, rights and liabilities._"-Insurance companies are generally of three kinds, namely, stock, mutual and mixed.4 A stock insurance company is one wherein the stockholders contribute all the capital, pay the losses and take the profits." In a mutual company the members are both insurers and insured, contribute by assessments toward a fund for liabilities and divide profits in proportion to their interest." A mixed company has the characteristics of both stock and mutual companies." Matters relating to the incorporation " and mutualization of companies," the eligibility of directors," stock subscriptions," the amendment of by-shares in constituent companies acquired by 11 C. L. $10.

Footnote 23: http://www.

12 Cur. Law. INSURANCE SS 2A.

laws,\[13\] and the kind of insurance that may be written,\[14\] are usually regulated by statute or charter. A company with charter power to write insurance on different plans may discontinue a plan at any time unless prohibited by agreement with its policyholders.\[15\] Whether one's membership in an indemnity exchange has been withdrawn may depend upon the provisions of the subscription agreement.\[16\]

A company is responsible for mismanagement and misappropriations in violation of its contracts with certificate holders,\[17\] and for such wrongs a receiver may be appointed on application of the proper persons,\[18\] or the company may be restrained from unlawfully changing the securities in which funds are required to be invested.\[19\] When other adequate relief can be granted for alleged wrongs and there has been no

Invited, and hence such subscriptions are in-

belonged to it, though it had previously re-

valid unless 10 per cent. is paid in cash ag

resented that it belonged to certificate holders, and charging wrongful change of secu-

(Laws 1829, p. 1855, c. 688). Van Schalck v. Mackin, 113 NYS 408.

l2. Insurance Law N. Y., Laws 1892, p. 2013, c. 690, $ 209, requiring mutual com-

pense to cause amendments to by-laws to

Under provisions by which safety fund

be mailed to members so as to give them at

should be divided among certificate holders

least 6 days' notice of time and place of con-

when outstanding insurance should run be-

alteration, amounts to requirement that

low $1,000,000, but was not premature,

reasonable notice be given, and 5 days is not

though outstanding certificates amounted to

reasonable where amendments are compli-

$40,000,000, it being admitted company

cated and members scattered over United

claimed ownership of fund and that same

States and foreign countries. Robinson v.

had been diminished $80,000,000 since 1897.

Mutual Reserve Life Ins. Co., 159 F 564.

Id. All integrations held sufficient to justify

money damages. Id. Certificate holders

gained under provisions of Sess. Laws 1897,

properly joined as plaintiffs. Id. Bill not

c. 45, p. 267, are not impliedly authorized to

multifracs for joining insurance company,

transact a reinsurance business. Allison v.

tag officers and directors, and a survey com-

Pidelity Mut. Fire Ins. Co. (Neb.). 116 NVP

pany which was custodian of fund in con-

274. Reinsurance company held not estopped

to plead ultra virea in suit to recover as-

charge fraud by construction of certifi-

essments on policies of reinsurance. Id.

cates contrary to circulars sent out by com-

Act March 11, 1867 (Laws 1867, p. 150, c. 71),

pany, as to justify admission of such cir-

authorising reinsurance of life insurance

vilas, applies to life insurance companies

which was not clear. Id. Complaint al-

generally, and should be construed together

with Act March 9, 1897 (Laws 1897, p. 381, c. 195), consistent with earlier statute and

lasing fraudulent wording of certificate

recognizing and limiting right to reinsure,

piantiffs could not understand certificates

Federal Life Ins. Co. v. Kerr (Ind. App.)

of were misled. Id. All integrations charge-

$5 NE 796. Where transference of insurer's

business notified policy holders that their

policies would be continued on same terms,

held sufficient without stating that diversion

it would not be presumed in action on a pol

was wrongfully made. Id. Certain allega-

icy that transference had no power to insure

on terms indicated. Mutual Reserve Life Ins.

construction of contract with reference to

Co. v. Koss \[Ind.\] $8 NE 606.

14. Insurance company authorized by

chapter to write insurance on other than

"satisfy fund" plan, and not under promise

to certificate holders not to issue policies

on other plans or to continue to issue safety

tend certificates, held entitled to discontinue

issuing such certificates against protest of holders. Dresser v. Hartford Life Ins. Co.,

80 Conn. $81, 70 A 39. Company's motives

immaterial. Id.

15. Subscription agreement by members of

an indemnity exchange considered, and held

that withdrawal of members thereunder

was not complete until 30 days after notice

of withdrawal, or until prior reinsurance or

cancellation of unexplored insurance, and

payment to him of proper portion of funds

held by a committee. Williamson v. War

field, Pratt Howell Co., 136 Ill, App. 168.

16. Allegations showing fraudulent claim

by defendant that a certain "safety fund"

belonged to it, though it had previously re-

presented that it belonged to certificate holders, and charging wrongful change of secu-

(Laws 1829, p. 1855, c. 688). Van Schalck v. Mackin, 113 NYS 408.

large sums from such fund, held sufficient

to authorize accounting. Dresser v. Hart

2013, c. 690, $ 20 actual or intended rescission of the insurance a forfeiture of money lawfully received by the company from certificate holders will not be declared.10

\_Dissolution and insolucency.\_See 10 C. L. 387--Voluntary dissolution is sometimes authorized.20 When a company is insolvent 21 and its further operation would be hazardous to its policy holders,22 its affairs may be wound up in the manner provided by law.23 Policy holders become creditors with the same right as other creditors tosue for liquidation,24 and failure to reduce their claims to judgment and have executions issued thereon may be waived by the company.25 On the insolvency of a title insurance company, policy holders are entitled to the return of unearned premiums the same as in the case of fire and similar insurance.26 Funds set aside for the protection of policy holders must ordinarily be distributed by order of court in a proceeding wherein all interested persons may be heard.27

\_Taxation_See 10 C. L. 388 of the property or business of foreign and domestic companies is fully treated elsewhere.28

**18. Certificate holders among whom a**

"safety fund" is agreed to be divided on insurance in a certain department being reduced to a specified amount are sufficiently increased, even before the reduction specified, to enable them to save to restrain a trust company from unlawfully changing the securities in which the final is required to be kept invested. Dresser v. Hartford Life Ins. Co., 80 Conn. 681, 70 A 29.

**19. Alleged misappropriations and mis-management. Dresser v. Hartford Life Ins. Co., 80 Conn. 681, 70 A 39.**

\*\*20. Hurd's Rev. St. 1905, c. 73, $ 2, authorizing voluntary dissolution of insurance corporations on application of majority in number or interest of members or stockholders, is constitutional. Cullion v. Traders' Ins. Co. (C. C. A.) 163 F 45. Not essential that any.controversy exists for adjudication. Id.

\*\*21. In determining financial condition of insurance company organized under natural premium or mutual assessment plan, probablec income from premiums must be considered. Dempster v. Opcemsky (Neb.) 116 N NW 524. Under Rev. Laws, c. 118, $ 1, St. 1907, p. 839, c. 576, $ 1, defining "net assets" as the fund available for payment of obligations after deduction of unpaid losses and "claims for losses," company whose assets exceed by $30,000 tlabillies, not including claims under policies for $300,000, is in-solvent, so as to authorize insurance comcompan, and, in absence of such requirements under Rev. Laws, c. 118, $ 7. Cutting v. American Ins. Co., 197 Mass. 131, 83 NE 396.

**22. Further proceedings of company held**

"hazardous to the policy holders" within Rev. Laws, c. 118, $ 7, where company proposed to continue to settle losses while insolvent, though it did not propose to write any new insurance, and injunction and re-ceiver was therefore authorized. Cutting v. American Ins. Co., 197 Mass. 131, 83 NE 396.

**23. Rev. St. $\\lx@sectionsign$ 274 merely prescribes powers and duties of superintendent of insurance where assets of companies are reduced below capital required by law, and does not confer on equity courts any enlarged powers with reference to winding up affairs of a company, especially where suit is by a policy holder or shareholder. Benson v. Co., 197 Mass. 131, 83 NE 396.**

**24. Robinson v. Mutual Reserve Life-**

Ins. Co., 162 F 794.

surance in a certain department being reduced to a specified amount are sufficiently "conditionally". Do, 104 Minn. 447, 116 NWP 944. Not entitled interested, even before the reduction specified that part of premium which it was stipuited company could retain for investigating title. Id. In determining earned portion of premium, time elapsing between date of policy and insolucency controls. Id.

**27. On insolucency of mutual assessment**

**28. Alleged misappropriations and mis-management. Dresser v. Hartford Life Ins. Co., 80 Conn. 681, 70 A 39.**

\*\*29. Hurd's Rev. St. 1905, c. 73, $ 2, authorizing voluntary dissolution of insurance corporations on application of majority in number or interest of members or stockholders, is constitutional. Cullion v. Traders' Ins. Co., 162 F 45. Not essential that any.controversy exists for adjudication. Id.

**21.** In determining financial condition of insurance company organized under natural premium or mutual assessment plan, probablec income from premiums must be considered. Dempster v. Opcemsky (Neb.) 116 NWP 524. Under Rev. Laws, c. 118, $ 1, St. 1907, p. 839, c. 576, $ 1, defining "net assets" as the fund available for payment of obligations after deduction of unpaid losses and "claims for losses," company whose assets exceed by $30,000 tlabillies, not included.

**21.** In determining financial condition of insurance company organized under natural premium or mutual assessment plan, probablec income from premiums must be considered. Dempster v. Opcemsky (Neb.) 116 NWP 524. Under Rev. Laws, c. 118, $ 1, St. 1907,
(SS 2) B. Conditions necessary to engage in insurance business, and certification and withdrawal of right.See 10 C. L. 333.--Companies are often required to obtain a license from the insurance commissioner 20 or pay a privilege tax,34 and to deposit securities with some state officer for the protection of contract or policy holders,31 or give a bond to secure the prompt payment of claims.32 Domestic companies need not comply with provisions applicable only to foreign ones.33

SS 3. Foreign insurers and companies.See 10 C. L. 388.--Companies doing business in foreign states 84 must comply with the insurance laws of such states applicable to foreign companies,35 such as license 38 and process regulations,37 and penalties are sometimes imposed on foreign companies and their agents doing insurance business without authorization.38 An insurance commissioner cannot be compelled to license

20. Validity of policies issued by unlicen-

send companies, see post, $ 7, subd. Essentials

and Validity.

34. See, also, Foreign Corporations, 11 C.

01. Validity of premium notes where privl-

L. 1508. Where application was sent by mail

liege tax is not paid, see post, $ 8.

to home office in another state and policy

31. Distribution of fund on insolvency of

sent by mail from there to applicant, comcompany, see, eute, $ 2A, subd. Insolvency.

snu did no business in state where appli-

Statute does not make procuring of securities or deposits thereof with state audi-

then for assessments. Stone v. Penn Yan,

tor condition precedent to doing of business

etc., K. Co., 109 NYS 374. Contract soliected

by companies organized on natural pre-

in Pennsylvania of citizen of that state and

mium or mutual assessment plan. Dempster

mailed to him from Ohio, where executed by

v. Opceensky (Neb.116 N NVV 524. Deposit

company, and acceptance of which was by

of securities necessary only on accumulation

him signed in Pennsylvania, held made in

of money for purpose of fulfillment of poli-

Pennsylvania, Swing v. Dayton, 124 App.

cies. Id. Industrial life insurance com-

Div. 58, 108 NYS 155.

panies to be entitled to do business need

35. Evidence held to sustain finding that

only deposit with secretary of state bonds in

company was not authorized to do business

accord-v.e with Act 65, p. 101, of 1986, and

in state so as to entitle its receiver to re-

need tax also comply with Act 105, p. 132,

of 1898, requiring mutual companies to first

Swing v. Red River Lumber Co. (Minn.) 117

proven insurance, premiums on which shall

mount to $25,000. State v. Michel, 121 La.

36. Where company had not procured cer-

350, 46 S 353. Under Code 1904, $ 1271, re-

tificate from proper officer as required by

quiring companies to deposit bonds with

state treasure as security for payment of

foreign insurance companies to do business

polices to residents, treasurer holds first

withour complying with the act, and Penn-

for policy holders, then for company, and

within courts would therefore not enforce

neither he nor courts can divert fund for

other purposes. German Nat. Ins. Co. v.

York. Swing v. Dayton, 124 App. Div. 58,

Virginia State Ins. Co. \[Ya.\] $1 SE 870.

Improper to allow fee to treasurer's prit-

87. Insurance company is estopped to de-

vate counsel. Id. Railway company taking and retaining bonds and mortgages to

lated St. 1898, $ 1878, prohibiting companies

cover amount claimed under policies held

not policy holder entitled to share in securities

dents of state without qualifying insurance\*

ties deposited with insurance commissioner to receive service of process,

under statute for protection of policy holders. Commonwealth v. Guarantors' Finance

facts. Corbett v. Physicians' Casualty Ass'n,

Co., 55 Pa. Super, Ct. 547. "Contract holders" for whose benefit money is required to

was negotiated through mails did not ap-

be deposited with state treasurer, under

Laws 1891, p. 126, c. 116, $ 2, by mutual

assessment companies, include only holders

of insurance contracts issued by company

titled to protection of North Carolina stat-

under such law, excluding a departure by

the company in substance a mere promise to

voking designation of process agent so long

pay a certain sum two years after date

with interest, and referring to insurance

it in state. Hunter v. Mutual Reserve Life

only by concluding provision giving owner

Ins. Co., 192 N. Y. $5, $4 NE 576.

option at its maturity to take a policy in

38. Title of chapter $3, p. 214, Laws 1871,

line of money. Ensewight v. Pacific States

LLife Assur. Co., 152 Cal. 183, 96 F 7.

38. Sufficiency of complaint, see post, $4B,

01. D. C. Code, $ 648 (31 St. at L 1590, c.

854), requiring filling of copies of * 258 INSUANCE $ 4A. 12 Cur. Law. a company while he is still engaged in a statutory investigation as to its compliance with the law.30

- 34 _Agents and solicitors for insurance. A. Distinctions and kinds of agency.40_

- 35 _B. The right to negotiate insurance and regulations thereabout. See $ C. L._

- 365--Agents and brokers are often required to take out licenses 41 or pay privilege taxes,42 and prohibited from writing insurance in companies not authorized to do business in the state,43 or where applicant has not passed a medical examination.44 Misconduct on the part of an agent may be ground for revocation of his certificate.44 Questions relating to the existence of agencies and the authority of agents as between the insurer and the insured are treated in subsequent sections.44

- 37 _C. Rights and liabilities of agents.See 10 C. L._ 340--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 38 _A. Agents and solicitors for insurance. A. Distinctions and kinds of agency.40_

- 39 _B. The right to negotiate insurance and regulations thereabout.See $ C. L._ 395--Agents and brokers are often required to take out licenses 41 or pay privilege taxes,42 and prohibited from writing insurance in companies not authorized to do business in the state,44 or where applicant has not passed a medical examination.44 Misconduct on the part of an agent may be ground for revocation of his certificate.44 Questions relating to the existence of agencies and the authority of agents as between the insurer and the insured are treated in subsequent sections.44

- 38 _C. Rights and liabilities of agents.See 10 C. L._ 340--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 39 _C. Rights and liabilities of agents.See 10 C. L._ 395--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 40 _C. Rights and liabilities of agents.See 10 C. L._ 395--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 41 _C. Rights and liabilities of agents.See 10 C. L._ 395--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 42 _C. Rights and liabilities of agents.See 10 C. L._ 395--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 43 _C. Rights and liabilities of agents.See 10 C. L._ 395--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 44 _C. Rights and liabilities of agents.See 10 C. L._ 395--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 45 _C. Rights and liabilities of agents.See 10 C. L._ 395--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 46 _C. Rights and liabilities of agents.See 10 C. L._ 395--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 47 _C. Rights and liabilities of agents.See 10 C. L._ 395--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 48 _C. Rights and liabilities of agents.See 10 C. L._ 395--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 49 _C. Rights and liabilities of agents.See 10 C. L._ 400--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 41 _C. Rights and liabilities of agents.See 10 C. L._ 395--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 42 _C. Rights and liabilities of agents.See 10 C. L._ 395--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 43 _C. Rights and liabilities of agents.See 10 C. L._ 395--The general rules of contract and agency apply as between the company and its agents.41 Questions relating to commissions or other compensation,44 and the duration of the agency,44

- 44 \_C. Rights and liabilities of agents * 13 Cur. Law. **INSURANCE SS 5.** 259

are usually governed by the terms of the contract of employment if this is valid.\* Refusal to remit collected premiums held subject to the company's call renders the agent amenable to remedies for conversion or breach of trust,\[51\] and the contract sometimes provides that the agent shall forfeit his rights thereunder \[52\] if he fails to remit money as required,\*\* increases the company's liabilities by corrupt acts,\[54\] or fails to make reports according to agreement.**\[85\]**Liability on the agent's bond will not be extended by implication.**\[85\]**

An agent may be rendered liable for a loss by failure to carry out a definite oral contract to insure.**\[91\]**One who acts for an owner of property in procuring insurance must obtain the most advantageous terms,**\[85\]**and if he fails to do so the owner is not bound to accept and pay for his services.**\[85\]**

SS 5. _Insurable risks and interests._ _Fire insurance._\[85\]**10 C. L. 841\_--Insured must have an insurable interest in the property covered by the policy.**\[85\]\*\*

to authorize company to discharge agent at debt, payment of checks having been stop-any time after one year, in which case he would be entitled to commissions on renew- 52. Contract held to forfeit agents' rights for reasons therein stated only as to rights discharge at any time for acts operating to which would have accrued in future had forfeit bis rights, "good cause" applying to matters specified in contract. Armstrong v. National Life Ins. Co. \[Tex. Civ. App.\] 112 SSV 827.

- 53. Evidence held not to show agent collected money for company and failed to re- "employment for more than 12 months was "mt. Armstrong v. National Life Ins. Co. \[Tex. Civ. App.\] 112 SW 827.
- 54. Increase of company's liabilities held and hence parties not being in parl delitco
- 55. Aftrustal Life
- 56. Aftrustal Life
- 57. Aftrustal Life
- 58. Evidence held not to show agent collected money for company and failed to re- "employment for more than 12 months was "mt. Armstrong v. National Life Ins. Co. \[Tex. Civ. App.\] 112 SW 827.
- 59. Increase of company's liabilities held and hence parties not being in parl delitco
- 50. Aftrustal Life
- 51. Aftrustal Life
- 52. Aftrustal Life
- 53. Evidence held not to show agent collected money for company and failed to re- "employment for more than 12 months was "mt. Armstrong v. National Life Ins. Co. \[Tex. Civ. App.\] 112 SW 827.
- 54. Increase of company's liabilities held and hence parties not being in parl delitco

124.

Iiquors are insurable in states where they are recognized as property.\[41\] The validity of policies covering property held or used for illegal purposes is treated in a subsequent section.\[42\]

_Life insurance_,See 10 C. L. 842.--Insurable interest as affecting assignments is treated hereafter.\[83\] Though policies issued to persons who have no insurable interest are invalid,\[64\] one may in good faith insure his own life in favor of whmsoever he pleases, paying the premiums himself.\[65\] A person has an insurable interest in the life of another when there is a reasonable probability that he will gain by the latter's remaining alive or lose by his death:\[66\] An agreement between a person having an insurable interest in a life and one having no such interest that the latter shall insure such life and apply the proceeds towards the former's support does not operate to transfer to the policy holder the insurable interest of the obligee.\[67\] A beneficiary may agree with one who is without insurable interest that the latter shall receive a portion of the proceeds of the policy in consideration of paying part of the premiums.\[68\] If a policy is valid in its inception, subsequent cessation of interest will not avoid it in the absence of any proviso.\[69\] Only the insurer can raise the question of lack of insurable interest in the beneficiary.\[70\]

_Liability insurance_.--One has the right to protect himself by insurance from an adverse result of uncertain litigation.\[71\]

ing property sold by him, but not delivered, such relationship. Chandler v. Mutual Life-for which he might be held liable. Burke v. & Industrial Ass'n \[Ga.\] 61 SE 1038. Official Continental Ins. Co., 128 App. Div. 319, 112 NYS 865.

&n. Insurable in Missouri. Kellogg v. Ger-man-American Ins. Co. \[Mo. App.\] 113 SWP 663.

&n. See post, $ 7, subd. Essentials and Validity.

&n. See post, $ 14.

&n. Where object of an association was to furnish burial expenses to members by system of mutual contribution and if employed soliciting agents and was not found-ed on principals of philanthropy, its contacts were contracts of "life insurance" within Burns' Ann. St. 1988, $ 4713, forbidding taking of applications for insurance on life of any person in favor of another person not having a bona fide insurable interest in life of insured or who is not related to him within a certain degree, State v. &n. See 1038.

&n. See 1038.

12 Cur. Law. INSURANCE SS 7. 261

_Burgary insurance.--To authorize recovery by an assignee, he must show that he had an interest in the property.\[12\]_

SS 6. _Application._ See 10 C. L. 842--Insured on receiving his policy may assume that his application authorized the company to issue it,\[78\] and need not return the policy because of provisions therein in seeming conflict with the application.\[74\] The effect of statutes requiring the application or a copy thereof to be attached to the policy or delivered to insured,\[76\] and of information acquired by the company from the application,\[78\] and questions relating to the completeness of such information,\[77\] are discussed in other sections.

SS 7. \_The contract of insurance in general, and general rules for its interpretation. Definitions and distinctions._See 10 C. L. 842--Except when the insurance is against accident or death,\[78\] insurance contracts are plain indemnity agreements\[79\] whereby the insurer for a stipulated consideration undertakes to compensate the insured for loss of the kind and to the extent agreed upon.\[80\] A fire policy is a contract for the personal indemnity of the insured and does not follow the property to purchasers unless the policy is transferred.\[81\]_

\_Agencies, and authority of agents in general.\[82\]--Agency may be established as in other cases by implication as well as by formal appointment.\[83\] An insurance broker is not the agent of the insurer so as to bind the latter by agreements to insure,\[84\] nor can an agent be said to act for his company while he procures from it insurance for himself.\[83\] A local agent for a certain county has no authority to appoint other agents for the company;\[85\] and power in an underwriter's attorney to conduct the business contemplated does not imply authority to bind the principal by stipulation that the outcome of a suit against one of the subscribers shall conclude all.\[81\] An agent may bind the company by any agreement within the actual or apparent scope of his authority,\[88\] and the company may waive express stipula-

7A. Complaint by assistance of burglary policy held bad for failure to allege that goods stolen were property of plaintiff or in his possession or that he had any interest and validity, and post, SS 16C, 19, 20.

therem. Pearlman v. Metropolitan Surety Co., 11 NYS 882.

7A. Allen v. Phoenix Assur. C9A. 14

7B. John, 728, 95 P 829.

7C. See post, SS 7, subd. Construction.

7C. See post, SS 16C.

7C. See post, SS 9.

7C. Unlike fire insurance contracts, accident and life insurance contracts are not mere contracts of indemnity but investment contracts enttling insured to sum stipulated, regardless of damages actually suffered. Gataveriler, V. Milwaukee Ellee. R. & that mentioned in agreement between L. Co., 136 Wis., 34, 116 NYS 633. Life and broker and insured held not reformable, accident insurance contract is agreement whereby one agrees to "indemnify" another for injuries by accident or death. State v. Laws, SS 1642, 1716, broker is insurer's agent willlett \[Ind.\] 88 NE 68.

7B. Policy is contract of indemnity and cannot be made subject of profit by insured.

7E. Policy insuring rents. Palatine Ins. Co. v. O'Brien, 107 M.d. 341, 68 A 484.

8B. State v. Willett \[Ind.\] 88 NE 68. Insurance is a contract by which one party, called insurer, binds himself to other, called insured, to pay him a sum of money or otherwise indemnify him. Rogers v. Shaw-

7E. Price Ins. Co. \[Mo. App.\] 111 SWP 692.

8A. Parchares continuing business in old trade name in which policy was issued could not recover. American Steam Laundry Co. v. Hamburg Bremen Fire Ins. Co. \[Tenn.\] 113 SWP 394.

8B. Company not liable for acts of ap-

8B. State v. Willett \[Ind.\] 88 NE 68. Insurance is a contract by which one party, called insured, binds himself to other, called insured, to pay him a sum of money or

8B. Agent is presumed to have authority

8C.

tions negative agency." An owner of property may ratify the unauthorized act of another in procuring insurance for him," but he cannot ratify after a loss when the company was without knowledge of the true conditions." The liability of agents for failure to carry out agreements to insure has been treated in a previous section."22

_Essentials and validity; acceptance._See 10 C. L. 843__--Binding insurance may rest in parol," and an agreement may become effective before a contemplated written policy is actually issued."44

Pelican Assur, Co. v. Schliakknecht, 32 Ky. L. 11 Key. L. 1016, 104 SW 373.

S8. Provision that no person not authorized in writing should be deemed company's agent with respect to the insurance held weived by writing policy on application taken by one not authorized in writing and accepting premium therefor. Allen v. Phoenix Assur, Co., 14 Idaho, 728, 95 F 829.

Pelican Assur, Co. v. Schliakknecht, 32 Ky. L. 11 Key. L. 1016, 104 SW 373.

S8. Provision that no person not authorized in writing should be deemed company's agent with respect to the insurance held weived by writing policy on application taken by one not authorized in writing and accepting premium therefor. Allen v. Phoenix Assur, Co., 14 Idaho, 728, 95 F 829.

Wavier of provisions against power of agents to waive stipulations in policy, see post, 1 16C.

P0. Insured could ratify broker's acts in overinsuring property and accept policies which remained in force after refused request by broker to company that latter mark them off. Boutwell v. Globe & Rutgers Fire Inc. Co. (N. Y. 185 NE 1087.

S8. Where company did not know that policy in another company had not been canceled because insured had not been notified, surrender of old policy and taking new one from agents after loss did not bind second company. Aetna Ins. Co. v. Renno \[Miss.\] 46 S 947.

92. See ante, # 4C.

01. Cunningham v. Connecticut Fire Inc. Co. \[Mass.\] 86 NE 787. No recovery on alleged oral contract where parties contemplated contract to spring into existence on delivery of policies and payment of premiums. Id. Agent duly authorized to make insurance contracts may bind his company by parol agreement before policy is issued, in absence of specific charuer requirements that contracts be written (Ripka v. Mutual Srire Ins. Co., 36 Pa. Super. Ct. 617), but in such case contract and authority of agent must be satisfactorily proved (Id.). Mere statement by plaintiff that he knew person in question to be defendants agent held in-sufficient to establish agency. Id. Liability of agents on oral contracts to insure, see ante, # 4C.

NOTE. Oral contract; statute of frauds: Appelle owned property known as the "WII-son property," on which she had $1,000 insurance in the appellant company, good from September 20th, 1904, to September 20th, 1907. In October, 1904, she traded this property for the "Gant property," and sought to have the policy on the former transferred to cover the latter. The agent refused to do this, but agreed to issue a policy on the Gant property for the unearned portion of the premium on the Wilson residence. In 1905 the Gant house was destroyed by fire. It then appeared that the agent had transferred the Wilson policy to one Tapscott, to whom the property had been traded. The evidence of Tapscott and appelle's two sons showed conclusively that this had not been contemplated by the parties. Held there was an oral contract here and appelle is entitled to 12"Cur. Law. INSUANCE $ 7. 263

An agreement to furnish burial is valid."\* A policy taken out on property used for an illegal purpose is not void where it does not tend to promote the unlawful business." That a collateral agreement to give special benefits to insured is violative of statute does not necessarily invalidate the contract of insurance." Policies made in a state where the company was not authorized to do business are held void in some jurisdictions." The validity of provisions requiring suit on the policy to be brought only in certain courts is treated in a subsequent section."

Statures requiring certain provisions to be incorporated in policies must be at least substantially complied with.1 Companies are sometimes forbidden to include more than one kind of insurance in a single policy.2

Safe Deposit & Surety Co., 130 Mo. App. 401, 110 SWV 1), and if a policy is subsequently issued it relates back to the time specified that substitution is in every way as advan- for the insurance to begin and covers a loss without that time (Id.).

\*\*95. Contract on legal consideration to fur- nish obliges or his near relatives with bur- lal reasonably worth a fixed sum is valid in- cemitly contract. State v. Willett \[Ind.\] $6

extect provisions of St. 1907, p. 895, c. 576, 110 SWV 1), and if a policy is subsequently issued it relates back to the time specified that substitution is in every way as advan- for the insurance to begin and covers a loss without that time (Id.).

**96. Policy** Contract on legal consideration to fur- nish obliges or his near relatives with bur- lal reasonably worth a fixed sum is valid in- cemitly contract. State v. Willett \[Ind.\] $6

extect provisions of St. 1907, p. 895, c. 576, 110 SWV 1), and if a policy is subsequently issued it relates back to the time specified that substitution is in every way as advan- for the insurance to begin and covers a loss without that time (Id.).

**98. Policy** Contract on legal consideration to fur- nish obliges or his near relatives with bur- lal reasonably worth a fixed sum is valid in- cemitly contract. State v. Willett \[Ind.\] $6

with statutory requirement that policies provide for grace of one month for payment of every premium after the first. Id. Clause Continu v. Royal Ins. Co. \[Mas.\] 45 S 361.

require policy to state that insurance cen- if drugist when he insured drug stock in- tract shall consist of policy and application tended to conduct unlawful liquor business, and that no statement not contained in insurance would be void as protecting him application attached to policy at the in illegal purposes (Kellogx V, German-Am- erlcan Ins. Co. \[Mo. App.\] 113 SWV 663), but if he intended to conduct legitimate drug constituted entire contract and was free of store business and use liquens only in con- condition as to residence, etc., held not compliance with requirement that it be full manner, insurance was valid (Id.). Pres- stateted that policy "and the application" con- ence in drug store of 10 barrels of beer and stittle entire contract, and that all state- 70 gallons of whiskey and fact that insured occasionally made unlawful sales and had shall be deemed representations and not thriving trade in liquens held not to establish as matter of law that plaintiff's business and practices were unlawful. Id.

appication, copy of which shall be endorsed on or attached to policy. Id. Provision violated Revisal 1905, $ 4775, held no defense making policy incontectable from date does to action on premium note, insured having not comply with requirement that it be made retained policy. Security Life & Annuity Co. \[N. C.\] $3 SE 304. That agent returned to insured part of first premium paid of all arrears with interest not to exceed which belonged to himself as commission held not to invalidate policy under Ky. St. 1903, $ 653, prohibiting life insurance companies from discriminating between persons and other indebtedness to company with in- charred persons of same class, equal expectation of life, etc. Interstate Life Assur. Co. \[C. C.\] 165 F 176. Right to recover premium or avoid liability therefor on ground of rebate or special favor, see post, $ 8.

**98.** Policies made in state where company was not authorized to do business held void though statute only prohibited companies from doing insurance business without certificate from insurance commissioner and did not expressly make policies void. Swing v. Silgo Furnace Co., 138 Til. App. 217.

**99.** See post, $ 24.

**1.** Since provisions prescribed by St. 1907, p. 895, c. 576, $ 75, are intended for protection of policy holders, if policy contains them in substance their form may be varied and additional provisions inserted beneficial to insured, provided statutory provisions are satisfied and left undiminished by that which is added. Aetna Life Ins. Co. v. Hardison, 199 Mass. 181, $5 NE 407. No departures from 264 INSUANCE SS 7. 12 Cur. Eaw. As in the making of other contracts, the minds of the parties must meet on all essential terms.3 To render a policy binding, it is also essential that it be delivered4 and accepted;5 but delivery to applicant is complete in law when nothing remains to be done but the agent's ministerial and unconditional transfer of the policy to insured.6 So, also, delivery to insured's agent is delivery to insured,7 and depositing the policy in the mail completes such delivery.8 It is sometimes expressly stipulated that the insurance shall not take effect until after acceptance and approval of the application by the company at its home office9 and payment of

charged as indebtedness against policy with \[Ind.\] 85 NE 703. Mere receipt of policy for ness then outstanding shall be within limits secured by cash surrender value. Mutual Reflect to complete contract, intent being Ben. Life Ins. Co. v. Commissioner of Ins., controlling. Id. Receipt and retention of policy is prima facte proof of its delivery and acceptance. Citizens' Ins. Co. v. Helbig, 138 ININANCE companies authorized to issue both \[Ind.\] App. 115. 116 and accident and health insurance are not entitled to join both classes of insurance in same policy. Aetna Life Ins. Co. v. Hard-on company before actual delivery to insured \[son, 199 Mass. 181, 85 NE 407. Policy held objectionable as combining both life insurance and accident and health insurance. Id. to entities him to possession and there rests on agent the ministerial duty of transferring injury preventing insured from pursuing policy to insured, agent holds for insured and parties are bound. New York Life Ins. for him premiums afterward accruing held \[Ind.\] App. 84 NE 1101. 188, forbidding inclusion of life Insurance and insurance against bodily injury or death by accident in same policy. Travelers' Ins. contract was thereby completed, and when sent to agent for delivery, agent became statute held also violated by provision in life \[Policy that use of injury causing perma-\] delivery to insured though agent did not hant and total disability to perform work or follow any occupation for compensation was by contract made essential to validity of or profit, or in case of accidental loss of policy. Id. Evidence held to support finding sight, hands or feet, insured in lieu of con-\] thinking policy may receive in his lifetime for delivery to insured. Id. Rule that face value in annual installments, or life an agent's receipt of policy for unconditional injury as per table in policy. Id. 8 Evidence held to show minds of parties and not meat as to insurers premium term. \[Dassen and though contract requires de-\]ivery to applicant, held not applicable where accident Fire Ins. Co. \[Mass.\] 86 NE 787. No first premium had not been paid to company contract where application was made with intent not to accept policy if applicant could when applicant was fatally ill when agent 'obtain satisfactory insurance in another \[company and there was no meeting of minds take effect until payment of first premium as to premium, term, or amount of concurrent-\] and delivery of policy when insured was rent insurance, notwithstanding attempted in good health. Michigan Mut. Life Ins. Co. acceptance and payment of premium at re-\]. Thompson \[Ind.\] 86 NE 503. 7. Brokers with unlimited instructions to many was ignorant. Nordness v. Mutual Consah Gur. Fire Ins. Co. \[S. D.\] 114 NW 1992. Travelers' Fire Ins. Co. v. Globe Soap Co., 85 Evidence held to show that oral insurance contract was made with company's agent on day of fire and before loss. Pelican Asur. Co. v. Helbig, 32 Ky. L. R. 1257, 108 SW 312. 4 Where application makes delivery of policy a condition precedent to completion of contract, contract is not binding until delivery of policy, especially where it is provided policy shall not take effect until delivery. \[Dassen and collaborators\] 86. No contract where application was never received by company at home office and approved as required by its terms. Lovey \[Ind.\] 86 NE 503. 5 Evidence sufficient to sustain finding that policy was accepted. Citizens' Ins. Co. v. Helbig, 128 III. App. 115. Certain transac-\] Here retention of application and premium actions and correspondence hold not to show acceptance acceptance of fire policy before loss so as to The first premium,10 and unless insured is alive and in sound health when the policy is delivered.11 Payment to the company's agent is payment to the company,12 and prepayment may be waived by the company or its agent.13 Payment of the first

Footnote 13: https://www.com/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/en/enen/en/en/en/en/enen/en/en/enen/en/en/enen/en/enen/en/enen/en/enen/en/enen/en/enen/en/enen/enen/en/enen/enen/enen/enen/enen/enen/enen/enen/enen/enen/enen/enen/enen/enen/enen/enen/enen/enen/enenen/enen/enenen/enenen/enenen/enenen/enenenen/ * \[23\] 12 Cur. Law.

- \[24\] premium is not a condition precedent to the taking effect of the policy unless it is made so by agreement.\[14\]
- \[25\] 10 C. L. 844--The usual rules for the interpretation of contracts apply to a large extent.\[15\] The natural tendency is, however, to favor the insured or the beneficiary,\[18\] especially in the construction of conditions, warranties or representations,\[17\] and in cases of doubt or ambiguity\[18\] rendering provisions susceptible of more than one construction.\[19\] When there can be but one reasonable construction, that of course must govern.\[20\] In case of variance between the application and the policy, the latter controls as to description of the property.\[21\] When provisions are obscure, the acts of the parties pursuant thereto and conditions existing when the policy was written may be resorted to.\[22\] Custom cannot be shown to contradict the written agreement.\[23\]
- \[25\] 14. Vhere neither application nor policy for benefit of insured or beneficiary. French required payment of first premium before v. Pidelity & Casaulty Co. \[VWa.\] 115 NWP delivery of policy, payment was not condi- 869. Object is indemnity, and if fairly war- "mented", such construction should be adopted "Ins. Co. v. Greenle \[Ind. App.\] 84 NE 1101."
- \[26\] 15. Insurance contract should be reason- "," Atlas Mut. Ins. Co., 193 Mass. 380, 85 NE only construed. Jacobson V. Liverpool, Lon- 174. Contract of insurance not construed "," Idowal & Globe Ins. Co., 135 111. App. 20. Effect must be given to all language if possi- "," tract of guarantator or surety is construed ",". Hastings v. Bankers' Acc. Ins. Co. \[Iowa\] 119 NWP 79. Court will endeavor to "," Idily & Guar, Co. v. First Nat. Bank, 187 arrive at intent and purpose of parties. ",". App. 382. Words "legal representatives",". American Ins. Co. v. Egyptian Logge No. 11. Op. 112 NIL App. 161. Policy of insurance should be construed as other con- "," hearing in life Insurance policy may be "," to reach parties' intention, except "," forfeiture "," provisions and ambiguous ones should be construed most favorably to ",". Hague v. Estate of Hague, 11 Ohie C. C. v. Sred. French v. Fidelity & Casaulty Co. (N. S.) 406.
- \[27\] 115 NWP 869. Policy should be construed ",". Referently Life Ins. Co., 80 meaning of language, and intention gathered ",". Co. v. Defendon \[Go. App.\] 62 SE 101; Min- ",". Defen, 197 Mod. 431, 68 A 484. Freened par- ",". Resota Mut. Life Ins. Co. v. Link, 131 IL ",". App. 89; Merchants' Underwrites v. Park- ",". Referently ",". Referently ",".

12 Cur. Law. INSURANCE SS 8. 267

The contract usually consists of the policy proper and the application,24 existing statutes25 and other documents or regulations made part of the policy by reference28 or attached thereto.27 In many states the application or other agreement or representation cannot be considered as part of the contract or used in defense unless attached to or endorsed on the policy28 or expressed therein.29 In the District of Columbia no defense is allowed in an action on a policy of life insurance unless the insurer delivered with the policy a copy of the application.20

\_Conflict of laws.258 10 C. L. 448--This subject is fully treated separately21 except as to questions controlled by special insurance statutes32 and attempts to evade the insurance laws of the state by stipulations.33

SS 8. _Premiums and premium notes, dues and assessments, and payment of the same.See 10 C. L. 448--Premiums for employer's liability insurance are commonly based on the wages paid to employees.34_

Northwestern Fire & Marine Ins. Co. **v.** page, within Rev. Laws, c. 118, $ 73, require-Connecticut Fire Ins. Co. \[Minn.\] 117 NWI 825. \[Minn.\] 117, 1965, p. 24. Where policy is written based on application constituting only information in- \[Minn.\] 197, 85 NE 1057. State-surer has, application becomes part of contents to medical examiner which with ap-tract and insurer is bound by its provision and conditions to same extent as in- \[Minn.\] 197, 85 NE 1057. State-surer has, application becomes part of contents to medical examiner which with ap-tract and insurer is bound by its provision and conditions to same extent as in- \[Minn.\] 197, 85 NE 1057. State-surer is bound by provisions and conditions of policy. Allen v. Phoenix Ins. Co., 14 Idaho, 278, 95 P 829. \[Minn.\] 1986, p. 25. Rev. St. 1899, $ 7896 (Ann. St. 1906, p. 2750), declaring when suicide shall and when it shall not be a defense, is part of Missouri contracts of insurance. Tennent v. Union surance or any agreement as to policy Con- \[Minn.\] 112 SWF 754. \[Minn.\] 112. Terms incorporated by reference are part of policy, \[Minn.

In the absence of waiver or estoppel," policies are usually rendered void by failure to pay premiums or dues at maturity" or within a period of extension" or of grace." Failure to pay premium notes will not, however, avoid the policy in the absence of stipulation to that effect," and, unless expressly waived," notice of maturity of premiums is often essential to forfeiture." A statute against for-

feature without notice does not affect the doctrine of abandonment by failure to keep up the insurance.\[42\] The burden is on one who claims credit for overpayment of previous premiums.\[43\] The right to paid up or extended insurance on failure to pay premiums,\[44\] jury questions,\[45\] and presumptions relative to payment or extension of credit,\[46\] are postponed for subsequent treatment.

Premiums or dues usually become the absolute property of insurer when paid,\[47\] and cannot be recovered back in the absence of valid agreement,\[48\] want of consideration,\[49\] or circumstances justifying rescission.\[50\] On rescission of a life policy, premiums paid by insured go to him and not to his beneficiary.\[51\] A severable agreement for special benefits to insured, though void under the statute, does not relieve him of liability on his premium note\[83\] or entitle him to recover premiums paid.\[52\]

A premium note to an agent who has not paid his privilege tax is void understuate declaring void all contracts with persons who have failed to pay the tax.\[54\]

knowledge otherwise acquired its insufficient. Miner v. Farmers' Mut. Fire Ins. Co. \[Mich.\]

agers to return sick benefit dues after 10:

15 Det. Leg. N. 571, 117 NW 211, But for

Aid Ass'n v. Watson \[Aia.\] 45 S 649.

great length of time during which premiums

49. Where insured gave agent I. O. U. for

were not paid, petition held to state cause

first premium and agent paid company, in-

of action, though plaintiff had failed to pay

sured's wife was not entitled to recover premiums, it being stated contract provided

amount of such premium on theory of double

it should be governed by New York laws

payment where shortly before insured's,

which require company to give written no-

death she merely took up the I. O. U. by

tice of premiums, which notice had not been

paying agent. Jackson V. Security Mut. Life

given. McGeehan V. Mutual Life Ins. Co.,

Ins. Co., 233 Ill. 161, 84 NE 198. Where

\[Mo. App.\] 111 SWV 604. Where policy re-

agent's agreement, by which he took pre-

quired payment without notice, of a matrix

minu note from an applicent and promised

uary premium and dues, amount to be fixed

to return it should insured decline policy,

by notice if one was received, otherwise to

was unauthorized and repudiated by com-

be same as last premium paid, absence of

pany, applicent could recover from company

notice was no excuse for failure to pay any

amount of such note where agent negotiated

premium on date specified. Kray v. Mutual

It contrary to his agreement and company

Reverve Life Ins. Co. \[Tex. Civ. App.\] 111 SWV 421.

receive proceeds. Mutual Reserve Life Ins.

SWV 421. For questions for jury, see post,

$ 24C.

50. See post, $ 10.

01. Failure to pay for $ years held abandonment, despite want of notice. McGeehan

Sloem v. Northwestern Nat. Life Ins. Co.

v. Mut. Life Ins. Co. \[Mo. App.\] 111 SWV 766.

\*3. Could not be presumed, in absence of

evidence, that money paid on issuance of

policy was for premiums in advance and did

not include policy fee, where policy was is-

sued in consideration of premium and policy

fe. Greenwald v. U. S. Health & Acc. Ins.

Co., 52 Misc. 253, 102 NYS 157.

44. See post, $ 13.

45.4 See post $ 24C.

47. Where company maintained a safety

fund department in which certificates were

issued obligations members to pay to com-

pany a fixed sum as expense dues while

certificates remained in force, expense dues

paid belonged to company, and certificate

holders had no interest therein, though

company ceased to issue new certificates. Dreser

or V. Hartford Life Ins. Co., 80 Conn. 681,

70 A 39.

48. Applicant held entitled to recover pre-

mium where it was paid on understanding

with agent that it be returned if applicent

should decline policy and he did decline it.

Moutal Reserve Life Ins. Co., V. Seidel ITex.

spaid benefits as affecting validity of

Civ. App.\] 113 SWV 945. In absence of fraud,

right to recover premiums cannot be predic-

cated on agreement which is ultra vires,

Payment of the liability

and since policy was enforceible during first

claimt with a certain under 678, requiring

time. No recovery as for money had and re-

cited where corporation had no power to

into effect on that date merely prescribing.

# Insurance $ 8.

Premium notes, like other notes, are also vitiated as between the parties by fraud" or failure of consideration," but a slight difference in the amount of a premium as stated in the note and as stated in the policy will not prevent recovery on the note where insured retained the policy." An agent may sue in his own name on a note payable to him."

\_Mutual companies.\_See 10 C. L. 859--The right to levy assessments" with or without notice," or to increase the same," the method of proceeding"; and questions relating to the maximum amount of assessments," the time of payment," and the right to forfeit the insurance for nonpayment," are usually dependent upon

fine and imprisonment against persons or \*seemsents on members to meet losses and corporations exercising privilege without paying tax. Young v. State Life Ins. Co. \*semment in specified cases, notice by mall to \[Miles.\] 45 S 706. Whether agent resided policy is gufficient. Id. One not where he paid municipal privilege tax held for jury. Simpson v. Goodman \[Miles.\] 45 S \*notice of original petition and of hearing. Id. Could not insist on personal service of process. Id.

- 55. Frand in obtaining premium note held not sustained by mere proof that insurance contract was not as advantageous as that stated times of mortuary premiums for such agreed upon. State Life Ins. Co. v. Bolton \[Neb.\] 118 NW 122.
- 56. Burden of showing want of considera- tion held sustained by defendant, in suit on premium note, by showing that he received premium might be changed to correspond no policy nor any notice that application had been approved, it being then incumbent on plaintiff to show that application had been accepted and approved at home office buters. Schmerer v. Mutual Reserve Fund under agreed condition precedent to liability on part of company. Van Asrdale v. Young \[Oki.\] 95 P 778.
- 57. Verdict for amount of premium note held proper where insured retained policy until maturity of note, though policy recited elightly larger sum as annual premium than what given in note. Caldwell v. Campbell \[Ga. App.\] 61 SE 290.
- 58. Where premium note was payable to agent, and on maker's refusal to accept policy agent settled with company, he could save on, note in his own name as real party in interest. Graham v. Remmel \[Ark.\] 112 SW 141.
- 59. In action by receiver of foreign mutual fire insurance company to recover assessment on policy holder under decree of foreign court, evidence held to show that company had never reorganized under amendatory state imposing contingent liability on policy holders, so as to authorize assessment. Swing v. Red River Lumber Co. \[Minn.\] 117 NW 442. Evidence held to show that assessment leveled by assessment company was illegal because wholly unnecessary, so that failure to pay same did not work forfeitture of insurance. King v. Hartford Life & Annuity Ins. Co. \[Mo. App.\] 114 SW 62. Insured held not liable for assessments. Swing v. Crane, 11 Ohio C. C. (N. S.) 297. Company held authorized by by-laws made part of contract to levy extra assessments. Kray v. Mutual Reserve Life Ins. Co. \[Tex. Civ. App.\] 111 SW 421.
- 60. Where by-law of mutual fire insurance company provided that when company was without sufficient funds to pay losses directors should make assessments on members for amount needed, directors could levy assessments without notice. Hammond v. Knox, 109 NYS 367. Under Rev. Laws Mass. c. 118, $1 47, 48 at seq., providing that mutual fire insurance companies shall make asthe terms of the statute or the contract. Levels by order of court, or by directors of a company under the contract, are prima facie valid in proceedings in other states."

When an assessment is made sufficient to pay a loss in full, paying members are not subject to further assessment for that loss to make good a deficiency arising from failure of other members to pay." Licins to secure assessments are sometimes provided by statute." Limitations will bar recovery."

SS 9. _Warranties, conditions and representations. In general._ See 10 C. L. 850. There is a well recognized distinction at common law between a warranty and a representation in that a warranty is a statement by the insured which forms a part of the contract of insurance," and which must be literally true to permit a recovery on the policy, regardless of materiality to the risk," while a representation is a mere inducement to the contract, must relate to a material matter, and need be

prevent a forfulture for failure to pay the same liability as first assessment with probsum demanded. King v. Hartford Life &

able costs of collection added. Swing v. Annuity Ins. Co. \[Mo, App.\] 114 SWV 63. BeClr that extra assessment was unauthorized

Crane, 11 Ohio C. C. (N. S.) 297.

held not to excuse failure to pay subsequent

the policy itself or by the terms of the policy regular bimonthly assessment. Krx y. Mutual Reserve Life Ins. Co. \[Tex. Civ. App.\]

ranty. Where policy we express terms makes

111 SWV 421.

**66.** Where court of sister state directs levy

baia thereof or is declared to be issued on of assessments on members of mutual fire

lashance company of such state in manner

tion are part of policy and hence warranties

provided by statute made part of contract

(Spence v. Central Acc. Ins. Co., 236 Ill. 444,

of insurance, determination of court is at

least prima facie evidence of necessity and

tion is insufficient to make statements there-

validity of assessments. Hammond v. Knox,

109 NYS 87. Common-law proof not easen-

lased in consideration of warranties and

tal. Id. Assessment by directora or court

agreements in application and specified sum

on insolvency of company held prima facie

held not to make application part of policy.

evidence of necessity thereof and that

lad. Statement in application as to age of

amount was proper. Stone v. Penn Yan, etc.

invest held a mere representation, though

R. Co., 109 NYS 874. Order for assessment

application warranted statements therein

on policy holders made by court in one state

held not conclusive on courts of another

tract. Id. Application cannot be considered

state in proceeding to enforce same against

on question whether it is part of policy, this

policy holder not party to assessment pro-

ceeding. Swing v. SIrog Furnace Co., 133

guage of policy itself. Id. A schedule of

Ill. App. 217.

**67.** Member sustaining loss held entitled

only to be abrogated to company's lien for

exceptions are not filled. Error to exclude

assessment and, under by-laws, to any sur-

plus from annual assessment for expenses.

MeTindall v. Piedmont Mut. Ins. Co. \[S, C.\]

eases, etc., though phrases "except as fol-

42 SE 213.

68. Under Ky. St. 1903, $ 712, giving

operative insurance associations a llen on

property insured to secure assessments, and

providing that subsequent purchasers or

junior lienholders shall be entitled to bene-

or disease other than those incident to

ft of the insurance, lien operates against

a subsequent purchaser, though he had no

rated into contract warranting all state-

notice thereof at time of purchase. Farmers

Home Ins. Co. v. Carey \[K.J.\] 113 SWV 841.

Lien is only for assessments and calls, not

for membership fees. Id. To subject in-

sured property to payment of pro ratio of in-

sured of indebtedness of a co-operative insurance association, petition must allegege that

such pro rata is based on calls or assess-

ments, and must set up the facts showing

same to have been legally made. Id.

**69.** Six years' statute of limitations runs

against assessment levied on policy holder,

and running of statute is not barred by ap-

proval by supreme court of a second assess-

ment against same party when it covers

same liability as first assessment with probsum demanded. King v. Hartford Life &

able costs of collection added. Swing v.

Annuity Ins. Co. \[Mo, App.\] 114 SWV 63. BeClr that extra assessment was unauthorized

**70.** Unless a statement or answer is in

held not to excuse failure to pay subsequent

the policy itself or by the terms of the policy

regular bimonthly assessment. Krx y. Mutual Reserve may

clearly made a part thereof, it is not a warranty

tual Reserve Life Ins. Co., \[Tex. Civ. App.\]

ranty. Where policy we express terms makes

application part of contract, or makes it the

beginning & & \\ only substantially true.74Intention controls as to whether a statement is to be regarded as a warranty or as a representation,75 mere terminology not being conclusive.74Courts are averse to warranties75 and will construe them strictly against the insurer,76 as in the case of provisoos and conditions generally.77 Where the answer to a question purports to be complete, any substantial misstatement avoids a policy issued on the faith thereof,78 but where a question is either not answered at all or appears to be imperfectly answered, the issuance of the policy waives imperfections or deficiencies.79 Only the insurer can take advantage of a misrepresentation.80 Statutes in many states now provide in effect that no misrepresentation or false statement made by insured shall avoid the policy unless fraudulent81 or material to the risk.82Such statutes cannot be evaded by stipulation.83Though to nature of fact warranted, whether state- --whom you have personally employed or comments are material or not. National Fire suited," held not to establish breach where: Ins. Co., V. Duncan (Colo. 1) 88 F 634. at time of application insured had no physicalism, though he had previously personally 44, 86 NE 104. False representation does not avoid unless material or risk. Mutual Co. (Ind. App. 1) 85 NE 125.

Footnote 75: The 104.0 13 Cur. Law. INSURANCE SS 9. 378

it is sometimes held that the parties are entitled to determine for themselves what representations shall be deemed material to the risk,84 it is doubtful whether they can by agreement make material in law, statements which are clearly not material in fact.85 Good faith is usualy immaterial if a statement is untrue and material to the risk86 except in policies which have incontestable clauses.87 The question whether materiality is for the court or for the jury is treated in a subsequent section.88

\_Burgary insurance._See 10 C. L. 852_--Insured is commonly required to keep such books and accounts as will show the actual loss.80

\_Employer's liability insurance.\_See 10 C. L.362--A covenant to maintain safety devices is not a guaranty against accidents of the kind the devices are designed to prevent.80 As a rule action lies only to recover for loss actually paid in satisfaction of a judgment.81

\_Fire insurance._See 10 C. L. 852_--It is commonly stipulated that the policy shall be void if insured has concealed or misrepresented material facts or circumstances,82 such as the value of the property,89 or has failed to truthfully answer questions rel-

materiality of statements. Mutual Life Ins. (under policy requiring insured to keep such Co. v. Mullan, 107 Md. 457, 69 A 385, books and accounts as would show actual loss. Verification in policy that it is subject to loss. Pearlman v. Metropolitan Surety Co., laws of another state held contrary to public 111 NYRS 882.

policy, statute of forum requiring that un-

90. By provision that "all mantle machines true statement be material to risk. Mutual. Life Ins. Co. v. Mullan, 107 Md. 457, 69 A 385, or safety feed tables adjusted at the point of

Immaterial that defendant's name indicated

contact of the role so as to prevent the

it was a mutual company. Id.

84. Making inquiries and answering, shows

drawn into the rolls," assured did not guar-

parties deemed matters material. United

sates fidelity & Gunar. Co. v. First Nat. Nat. Bank, 137 Ill. App. 82.

85. Provision that each statement was ma-

that, so far as practicable, they would pro-

terial held ineffectual to render material

act employees from injury during their la-

a statement which was in fact immaterial.

bore. Degpatch Launch Co. v. Employer's

Fidelity Must. Life Ins. Co. v. Mizza \[Mizs.\]

138. Coverant to defend on notice and pro-

001. 817.

001. Mutual Life Ins. Co. v. Mullan, 107 Md.

vision that no action should lie except to re-

457, 69 A 385. Positive material mistaken-

cover for loss actually sustained and paid by

ment avoids, regardless of ignorance, mis-

inured in satisfaction of a judgment held

take or good faith. United States fidelity & de

dependent so that insured could not recover

Gunar. Co. v. First Nat. Bank, 137 Ill. App. 82.

832; Western & So. Life Ins. Co. v. Quinn

action against him. Lawrence v. General

\[KY.\] 118 SV 456; Fidelity Must. Life Ins. Co. Acc. Assur. Corp., 124 App. Div. 546, 108 NYRS

v. Mizza \[Mizs.\] 46 SS 817. Under Cat. P89,

Provision requiring action to be

June 23, 1985, SS 1, against avoidance because

brought by insured himself to reimburse him

of statements in good faith unless material

for loss actually sustained and paid by him

to risk. Paulhamus v. Security Life & An.

and in satisfaction of judgment after trial

nuty Co., 163 F 554.

of the issue did not preclude action by as-

87. See post, SS 16B.

signee of indemitty claim who had assumed

88. See post, SS 24C, subd. Questions of Law

and paid judgment liability, such transac-

and Fact.

88. Under burigary policy avoiding itself

Maryland Casuality Co. v. Omaha Eice, L. &

if "books and accounts" were not so kept

P. Co. \[C. C. A.\] 157 F 514

that actual loss could be determined there-

92. Representation that building was 20 by

from, held proper to consider both account

36 feet when It was 16 by 24 held not of

books and invoices of purchase. Schwartz

itself material within policy provision that

v. Metropolitan Surety Co., 113 NYRS 66. Acc.

insurance should be vdd if insured concealed

count book and invoices held sufficient if

or misrepresented any material fact or

from both actual loss was ascertainable. Id.

cumstance. National Mut. Fire Ins. Co. v. Condition in burigary policy that insured

Duncan \[Co.\] 19 S P 634. Failure of member

should keep books or account, being intended

of mutual co-operative insurance association

for protection of insurer against an excess-

to answer letters to him inclosing policles

sive claim, where amount of loss was not

and inquiring as to premium he was paying

in dispute, insurer was not relieved because

on other insurance held not fraud or con-

books and invoices were destroyed after

coalment of material facts. Merchants' Un-

communication of ative to specified matters," if he is not the owner of the premises in fee," or the unconditional and sole owner," or if he has or obtains additional insurance," or fails to observe the requirements of the so-called "iron-safe clause, furnish plans and specifications or other proof of loss," or if without the insurer's consent there is any change in title, interest or possession,1 or in use and occu-

Luther, S5 Ark. E79, 109 SWV 1022, Requirement that unless complete inventory of stock had been taken within 12 months preceding date of policy one should be taken within 30 days, and that last preceding inventory should be kept in safe, held must where, on discovering that part of inventory taken before policy issued had been destroyed, insured took new inventory and preserved it though he did not preserve undisturbed or disd inventory. Arkansas Ins. Co. v. McManus \[Ark.\] 110 SWV 197. Complaint that part of inventory was in Hebrew held without merit, it not being stated what I10 SWV 394. Bankrupte one hour after in-inventory shown by record was in Hebrew.

Luther, S5 Ark. E79, 109 SWV 1022, Requirement that unless complete inventory of stock had been taken within 12 months preceding date of policy one should be taken within 30 days, and that last preceding inventory should be kept in safe, held must where, on discovering that part of inventory taken before policy issued had been destroyed, insured took new inventory and preserved it though he did not preserve undisturbed or disd inventory.

pancy," or increase of risk," or if the property becomes vacant\* or ceases to be operated," or is or becomes incumbent without insurer's consent," or if foreclosure proceedings be commenced." It is implied that insured will not himself voluntarily and wrongfully burn the property." The severability of policies covering distinct items of property is treated later," as are also waivers and estoppels.10

\_Life, accident and health insurance.\_See 10 C. L. 856--Policies are often avoided by false statements as to previous or present health,11 past medical treatment, con-

2. Change in use and occupancy avoids to mortgage such other article to him with-policy under stipulation to that effect. Cone v. Century Fire Ins. Co. \[Iowa\] 117 NV 207.

ford Fire Ins. Co. v. Liddell Co., 120 Ga. 8, 6: Insurer need not prove that change of occuency or use of premises made risk more

serial. Id. Where as between mortgagor hazardous, Code 1897, # 1743, expressly proving that section is inapplicable to pro-plead want of consideration for release of visions avoiding policy for vacancy or uncocompancy. Id.

Insurer could not set up want of consideration.

3. Fire hazard held not increased by deton and claim breach of warranty against incubrancer. Home Fire Ins. Co. v. Dower

nuisance and ordering its removal. Irwin v.

\[Ark\] 112 SWV 200.

Westshester Fire Ins. Co., 58 Misc. 441, 109

Consent: Indorsement on policy by comm-NYS 612. No defense that traves stored

pany's agents consenting that interest of insuled hay in school house and that certain

sured "as owner of property covered by this

rafts occupied it at night, where neither

policy" be assigned, held insufficient as writ-

was shown to have had any relation to fire.

tens consent to incubrancer required by Mississippi Home Ins. Co. v. Stevens \[Miss.\]

policy. Mulrooney v. Royal Ins. Co., 161 F 46 8245.

58. Verbal consent not authorized by Iowa

01. Vacancy clause construed and held to

Code 1897, # 1750, conferring on argenta au-

require notice of vacancy to insurer only

\[n case no permits are granted authorizing

since verbal agreements are not within scope vacancy. National Mut. Fire Ins. Co. v.

Duncan \[Colo.\] 98 P 634.

1. Policy describing reality as a building

"as owner of the property" be assigned is

"occupied as an ice factory" and personality

as engines, etc., "and all appurtenances

that transaction was in nature of mortgage

"essary to and used in their business," held

and verbally consented. Mulrooney v. Royal

not to insure an ice manufacturing plant

Ins. Co., \[C. C. A.\] 163 F 833. Agent who ie-

in operation within clause forgetting policy

if subject of insurance was a manufacturing

sestablishment, and it should cease to be

he was cashier and part owner could not as-

operated for more than 10 consecutive days

without insurer's consent and hence contin-

7. Policy held avoided under provision that

ned failure to operate did not work forfeit-

it should be void unless otherwise provided

ture. Home Ins. Co. v. North Little Rock

by agreement endorsed thereon or added?

Ice & Slec. Co. \[Ark\] 111 SWV 994.

6. Provision avoiding policy for incubrancer

closure proceedings be commenced or notice

brances not consented to in writing by in-

surer is reasonable and valid. Mulrooney v. Royal

Royal Ins. Co., 167 F 598; Mulrooney v. Royal

faces, or the possibility of insurer's consent

proceedings, and to obtain endorsement on

Ins. Co. v. Knelled, 11 Ohio C. C. (N. S.) 183.

Volary, and having been notified on day pro-

Warranty on existence or amount of incubran-

ceedings were begun. J. L. Kelly Co. v. St.

brances is material as matter of law. Con-

Paul Fire & Marine Ins. Co. \[Fla\] 47 S 742.

ecticut Fire Ins. Co. v. Manning \[C. C. A.\] 160 F 382. Existence of mortgage is material

9. See post, $ 16B.

and failure to disclose same when asked

about incubrances avoids policy. Hollen-

11. As to breach of condition that insured

beck & Co. v. Mercantile Town Mut. Fire Ins.

be alive and in sound health when policy

Co. \[Mo, App.\] 113 SWV 217. No recovery in

is delivered, see ante, $ 7, subd. Essentials

absence of evidence that failure to indorse

and Validity. Warranty of "sound condition

consent was through fraud or mistako. Na-

physically" refers to sound health, which is

tional Fire Ins. Co. v. Knelled, 11 Ohio C.

not same as perfect health, and does not

C. (N. S.) 199. Clause avoiding policy "If

include mere temporary indispositions or

the subject of insurance by personality, and

aliments. French v. Fidelity & Casualty Co.

be or become incumbered by a chatted mort-

\[Vhis.\] 1 * 12. Cur. Law. INSURANCE SS 9.

- 13.5.5 **S**ultation, or attendance," other insurance,"13 earnings,"14 or use of intoxicants.15 In the absence of fraud, the company is not relieved of liability merely because insured was not a fit subject for insurance when the policy, was issued.16 It is provided by statute in some states that statements by insured as to age, physical condition, etc., shall be binding on insured unless insured was required to undergo a medical examination.17 One cannot enforce a policy taken out by a minor and 13.5.5 **S**olutable Life Assur. Soc., 159 F 206. **W**ar-rants against past or present "**breachit**" considered illness," held insulinClient to show held to mean only a chronic disease not readily treated and tending to impair health, and to exclude acute bronchitis from which a special sense. Fish v. Metropolitan Life (inured had fully recovered. French v. Fitch v. **J**eality &\*\* Casualy Co. \[VWs.\] 115 NV 869. **E**vidence held not to conclusively show in- without warranty that applicant had not eensured ever suffered from bronchitis. Id. **S**oluted a physician. Metropolitan Life Ins. Negative answer to inquiry as to past all-ments held qualified by words "or any other "**eoriue**" alment," so as to refer only to serious alimente. Minnesota dut. Life Ins. **M**ullan, 107 Md. 457, 69 A 385. **T**nt In-Co. v. Link, 131 III, App. 89. Evidence held "**to** sustain findings that insured did not to his knowledge have bronchitis or gall stones. Id. **V**edric for plaintiff on issue as to **V**eredered disease or failing to direct verdict, see post, ease held against weight of evidence. Poria Life Ass'n v. Goodwin, 134 III. App. 464. **Evidence held not to sustain verdict for plaintiff, but to show that insured, feiring fatal disease, procured policy by suppression of truth and false statements. Iowa Life Ins. Co. v. Houghton (Ind. App.) 85 NB 127. **As** to sufficiency of evidence for jury, see post, SS 24C, subd. Questions of Law and Fact. **12. V**Whether applicant has consulted or absent treated by physicians is material to risk except where aliment is trivial. Mutual Life Ins. Co. v. Mallan; 107 Md. 457, 69 A 385. **Answers held material, so as to avoid policy. Id. Proof of ear trouble and treatment therefore within 2 years held to show breach of warranty that applicant had no 4-effects and that he had had had no medical treatment except for stomach trouble. Col-aner V. General Acc. Assur. Corp., 110 NYS 678. **F**orest of previous treatment for neph-rilia, and death from delirium tremens and chronic nephritis, held to bar recovery under postvision avoiding policy if insured before its date had been treated for any serious disease or if he had any of certain ennumer-acted allments. Gerlach v. Metropolitan Life Ins. Co., 112 NYS 1095. That insured had been operated on for undecended testable by named physicians held sufficient to put company on inquiry, it not being expected that answers be more than suggestive, especially those given to medical exammer. Paulhamns v. Security Life & Annuity Co., 169 F 554. **F**ailure to require definite finding as to truthfulness of representation that insured had not been under a physician's eare within "two years held error. Bryant v. Metropolitan Life Ins. Co. \[N. C.\] 60 SS 983. **Not** necessary that applicant should have been bedridden to constitute breach of represen- "ander" **the** care" **-**of** "a physician, it being sufficient if amplification," **and** around," **in**trusted his case to physician for regular or continuous treatment. Id. **That examining physician on being told the** **That** examining physician on being told the** **That** asking to be a physician for regular or continuous treatment. Id. **That** examining physician on being told the** **That** examining physician on being told the** **That** asking to be a physician for regular or continuous treatment. Id. **That** asking to be a physician for regular or continuous treatment.

at the same time disaffirm the minor's warranties.14 Waivers, estoppels,19 and jury questions20 are treated in subsequent sections.

\_Tornado insurance.\_See 10 C. L. 358

SS 10. \_The risk or object of indemity. Accident and health insurance._See 10 C. L. 358._--Accident policies usually promise indemnity for injuries or death21 resulting solely and proximately22 from external, violent and accidental means,21 the accident and injury occurring while insured was acting in the capacity specified in the policy 24 and being of the class contemplated thereby 25 and of such character as to cause at once continuous and total disability.24 The indemnity is often spe-

18. Metropolitan Life Ins. Co. v. Brubaker show that death was caused by injury directly and independiency of all other causes, \[Kan.\] 96 P 62, 19. See post, $ 16C. McAuley, V. Casanity Co., $7 Mont. 256, 96 P 20. See post, $ 24C, subd. Questions of Law

01. Death from rupture of walle of heart weakened by fatty degeneration, after over-

01. "Injury" within policy insuring against by insurance against disability or death en-

and accidental means, is injury to the percent, traceable exclusively to the accident, and every result traceable to the accident, however remote in time, is potentially cause. A.\] 185 F 1.

23. Accident within accident Insurance

ulty Co., 197 Mass. 101, $3 NE 398,

22. Under a policy insuring against death resulting solely from accidental injuries, all

from an unknown cause or an unusual effect of a known cause not within expectations or texture of bodily organs resulting from or induced by such injury should be

Benet Ass'n V. Stiver (Ind. App.) $4 NEB

regarded as effect thereof, and not as independent causes (Ward v. Aetna Life Ins. Co.

(Neb.) 118 NW 70), and death resulting from

such morphid changes is caused by accident

within meaning of policy (Id.). One who, after recovery from an accident, sucembus

death was unexpected: "means" must be ac-

to a disease which would not have been fatal but for lowered vitality following injury,

As'n \[Ind. App.\] $5 NE 1082. Injury or dies from the disease, and not from lowered

death, though unexpected, resulting from

vitality. Id. Condition that death must

intontonal acts, is not produced by "accidental means." Id., reviewing many author-

the injury held satisfied by showing that in-

lites. Death from physical exertion in climb-

jury was predominating and efficient cause

ing steps carrying heavy satchelis, In rarl-

of death, it being immaterial that other con-

ded atmosphere, held not within accident

ditions were set in motion by injury which

policy. Id. Accident policy indemnifying may have contributed to death. Continental

only for death or injuries resulting from

Casanity Co. v. Colvin \[Kan.\] 95 P 655.

"external, violent and accidental means"

Where death results from a disease caused

correct only cases where force and accident

directly by an accident, accident is prox-

concur in producing death or injury. Id.

mate cause of the death, and death is regard-

24. Evidence held to show insured was en-

ed as having resulted from the accident independently of all other causes. General Acc.

accident occurred, so as to authorize recov-

Fire & Life Assur. Co. v. Bromley \[Ad.\] 71

A. $24. Death resulting from disease fol-

lowing naturally, though not necessarily, an

performing his duties held not riding "as accidental physical injury, results from

such injury independently of all other causes, the disease not being considered as

an independent cause. French v. Fidelity &

Causality Co. \[Win.\] 115 NW 869. Death

from blood poisoning 15 days after accident

tal injury to leg, causing abrasion of skin,

held within rule. Id. If one is injured and

6 months later is again injured and dies

within the 90 days limited by policy, he may

recover if he would not have died but for

the second injury, though last injury would

not have been fatal but for the first. Baehr

v. Union Casaulity Co. \[Mo. App.\] 113 SW

689. Evidence sufficient to authorize finding

that accident was sole cause of death. Ches-

well v. Fraternal Acc. Ass'n, 198 Mass. 267, 85 NE 96. Evidence that deceased was injured on leg, suffering abrasion, and there-

after died of crysipelas, held insufficient to

12 Cur. Law.

at the same time disaffirm the minor's warranties.14 Waivers, estoppels,19 and jury questions20 are treated in subsequent sections.

\_Tornado insurance.\_See 10 C. L. 358

SS 10. \_The risk or object of indemnity. Accident and health insurance._See 10 C. L. 358._--Accident policies usually promise indemnity for injuries or death21 resulting solely and proximately22 from external, violent and accidental means,21 the accident and injury occurring while insured was acting in the capacity specified in the policy 24 and being of the class contemplated thereby 25 and of such character as to cause at once continuous and total disability.24 The indemnity is often spe-

18. Metropolitan Life Ins. Co. v. Brubaker show that death was caused by injury di-

(Kan.) 96 P 62,
12 Our. Law. INSURANCE SS 10.

cifically limited or denied if the injury or death is cause or contributed to by bodily or mental infirmity\[27\] or by infection,\[28\] or if insured when injured was violating the law,\[29\] or was engaged in acts pertaining to more hazardous occupations,\[30\] or was voluntarily or unnecessarily exposing himself to obvious danger,\[31\] or was failing to exercise due diligence for his protection,\[32\] or was entering or leaving a street car\[33\] or a moving conveyance,\[34\] or was at a place prohibited by the policy,\[35\] or was

need not result from injury causing "at \[had passed same car that struck him held once" total and continuous disability in under to enable them with knowledge order to entitle beneficiary to recover. Con- of its dangerous nearness to car on which mental Casualty Co. v. Colvin \[Kan.\] 95 P \[he was riding. Id. Handling explosives by 565.

27 Death from blood poisoning after \[unnecessary exposure to obvious demarcation of finger, insured not being psychiatry \[or, "Alloway v. General Acc. Ins. Co., 35 only afflicted with physical or mental infirmity, held not within exception in case of \[what finding that loss of hand was not injury or death wholly or partly, directly or indirectly or indirectly, from bodily or mental infirmity, or disease in any form, as primary, second-) \[L. R. S56, 107 SW 325.

ary or final cause of accident, injury or death. Riehhelmer v. Aetna Life Ins. Co., 77 Ohio St. 360, 83 NE 491. For Injury questions, see post, SS 24C.

28 Under provision limiting insured's liability If loss was occasioned or contributed to by Infection, "infection" held to refer only to external injuries, and not to internal infirmity, statements, where pus is formed by presence of pus germs. Continental Casualty Co. v. Colvin \[Kan.\] 95 P 565. Where original injury to bone of foot was within terms of accident policy, fact that infection resulted did not bring disability within provision limiting liability in event of "inquires or dis-ability" resulting from poison or infection.

128 App. Div. 106, 108 NYES 186.

29 Injury while "attempting" to get on moving railroad car held fatal to recovery under limitation if insured should be injured \["while violating the law," Code, SS 4811, making it a misdemeanor "to get upon any rail-road car while in motion," etc. Flower v.

Contrinental Casualty Co. \[Iowa\] 118 NWV 761. Instruction held not prejudical under the evidence. Id.

30 One killed while hunting for recreation held killed while "doing any act or thing pertaining to" any occupation classified as more hazardous than that of "sheep farmer or," where occupation of hunter was classified as more hazardous, though insured had not changed occupation. Lane v. General Acc. Ins. Co. \[Tex. Civ. App.\] 118 SWV 324.

31 Under exemption in case of voluntary or unnecessary exposure to apparent danger, danger must either be known or one which in exercise of ordinary prudence should be known to insured. Correll v. National Acc. Soc. \[Iowa\] 118 NWV 1046. "Voluntary exposure to unnecessary danger, or obvious risk of injury, or the intentional act of in-sured," are affirmative acts, implying knowl-edge of the danger and excluding mere negligence, though insured will be held to have known what an ordinarily prudent man of ordinary intelligence in the same situation would have known. Dillon v. Continental Casualty Co., 130 Mo. App. 502, 109 SWV 83.

Instructions properly modified by requiring knowledge in order to preclude recovery and by striking phrase "or might have known accidents to all others save when they are \[id.\]

14 That insured shortly before accident for occupancy of passengers during transit, under the influence of intoxicants or narcotics.86 Contributory negligence will not bar recovery on an accident policy in the absence of stipulation to that effect.87 Sick benefits are frequently reduced if the disability is due to certain specified ailments,88 and policies often do not cover an illness not requiring confinement to the house89 or the nature of which is unknown or incapable of direct proof.80

Jury questions and the burden of proof are treated in the section on procedure.41

\_Burgilary insurance.\_See 10 C. L. 261.--The policy usually covers burglary, lareny, or theft42 made possible by forcible entrance by means of tools or explosives.43

\_Employer's liability insurance.\_See 10 C. L. 261.--Under some policies no recovery lies if explosives are used on the premises.44 Insurer having been duly notified of the suit against the employer, the latter as well as the former is concluded by the judgment in that action on issues determinative of the insurer's liability.45

\_Fire insurance.\_See 10 C. L. 262.--"Fire" includes both slow and rapid combustion.46 What property is insured,47 and whether the protection continues with

Id. One entering upon platform of a car 42. Evidence insufficient to establish when train is still, intending to alight on "burglary, lareny or theft" of bag of jew-other side, but thrown down and injured by car wheel by sudden jerk of train while in glary policy, Schindler v, U. S. Flidelity & act of alighting, held not platform or "guaranty Co., 58 Misc. 532, 109 NYS 728. steps of car "when injured," within liability 43. Evidence insufflement to show forcible exemption. Id. Evidence, findings and pe-titane into safe "by use of tools or ex-tition held not inconsistent with finding that insured when injured was crossing a rail-road track on a public highway, and was not "elsewhere on railroad roadbed. McClure v. Great Western Acc. Ass"In \[Iowa\] 118 NWW 269.

36. Provision held reasonable limiting liability if when injured insured was under influence of intoxicants or narcotics. Furry's Adm'r v. General Acc. Ins. Co., 80 Vt. 526, 68 A 655. Finding that insured was not under influence of intoxicants, "so as to prevent him from being "fairly" able to take care of himself," showed he was "under the influence" of intoxicants when injured, so as to limit liability. Id.

01. Not where policy merely limited amount of recovery in case of unnecessary exposure to danger or to obvious risks of injury. Kephart v. Continental Casualty Co. \[N. D.\], 116 NWW 345.

01. Clause indememifying for confining illness and clause limiting liability to one-fifth for disability for paralysis, etc., held not repugnant, but both effective. General Acc. Ins. Co. v. Hayes \[Tex. Civ. App.\] 113 SWW 980. Provision in sick benefit policy covering only aliments requiring insured to be confined to the house for 14 days dId not preclude recovery because insured was not in air and sunshine by advice of physician, where he was entirely incapable of work or business. Jennings v. Brotherhood Acc. Co. \[Colo.\] 96 P 982.

01. Provision denying indemnity on account of sickness, nature of which was unknown or incapable of direct and positive proof, held intended only to guard against simulated illness, so that insured could re-cover where it was clearly proven he was in fact incapable of work or business, though he could not definitely name the illness or its origin or cause. Jennings v. Brotherhood Acc. Co. \[Colo.\] 96 P 982.

01. See post, $ 24C.

01. Evidence insufflement to establish when train is still, intending to alight on "burglary, lareny or theft" of bag of jew-other side, but thrown down and injured by car wheel by sudden jerk of train while in glary policy, Schindler v, U. S. Flidelity & act of alighting, held not on platform or "guaranty Co., 58 Misc. 532, 109 NYS 728. steps of car "when injured," within liability 43. Evidence insufflement to show forcible exemption. Id. Evidence, findings and pe-titane into safe "by use of tools or ex-tition held not inconsistent with finding that insured when injured was crossing a rail-road track on a public highway, and was not "elsewhere on railroad roadbed. McClure v. 44. Large metal tube filled with metals and materials of explosive and dangerous nature held an "explosive," within promis-sory warranty in employer's liability policy that no explosives should be used on premises. B. Roth Tool Co., V. New Amsterdam Casualty Co. \[C. C. A.\] Casualty Co. \[C. C. A.\] 161 F 709.

01. Action against employer held to involve issue whether employer permitted use of "explosives" on premises, no that, such Issue having been adjudicated in the affirma-invence" of intoxicants when injured, so by accepting such risk. B. Roth Tool Co. v. New Amsterdam Casualty Co. \[C. C. A.\] 161 F 709.

01. Furbush v. Consolidated Patrons' & Farmers' Mut, Ins. Co. \[Iowa\] 118 NWW 371. Combustion from gas explosion resulting from striking match held a "free" within frc policy not excepting explosions. Id.

NOTE. Meaning of "fire" in polfey: Plain-litrs' wood was insured by defendant against direct loss or damage by fire. The wool was stored in a warehouse but became entirely submerged by 12 Cur. Law. INSURANCE SS 10.

change of location," occupancy or use," are questions of construction. Interests of third persons are not covered in the absence of proper provisions to that effect." Among excepted risks are explosions," earthquakes," orders of civil authorities,"

111. App. 265. A lamp is not a fire so that which it was insured for subsequent removv-recovery may be had for damages caused by smoke therefrom, where no ignition occurs note the lamp. Fitzgerald v. German American Ins. Co., 62 NYES 824. The break-lag of plate glass in a store by the explosion of gas generated from gasoline used to clean clothes, was not caused by fire although the explosion was caused by a light-ed match. Vorse v. Jersey Plate Glass Ins. Co., 119 Iowa, 555, 93 N NVP 69, 97 Am. St. Rep. 330, 60 L. R. A. 898. But see Scripture v. Lowell Mutual Fire Ins. Co., 64 Mass. \[10 Chush.\] 365, 67 Am. Dec. 111, in which it was held that, where damage was caused in part by combustion and in part by explosion from a lighted match attached to gunpowder, only "while the premises are occupied as a store and dwelling" is a more condition sub-purpose of heating a building, the insurer not erroneous to submit to jury question long as the fire is confined within the limits of the agencies employed. 1 Wood on Fire Ins. Co., 103; Cannon v. Phoenix Ins. Co., 110 Ga., 563, 35 SE 775, 78 Am. St. Rep. 124. The court in this case, in applying the above principle, held that the insurer was not diab-ble for damages caused by smoke and soot from such a fire. But see Way v. Ahignon Mut. Fire Ins. Co., 16 Mass. 67, 55 Am. St. Rep. 79, 32 L. R. A. 608, where it was held that, where fire in a stove used for heating purposes ignites the soot accumulated in the flue and causes smoke and burning soot to escape into a room, the resulting damage is a damage caused by fire. Insurance covering damage by fire extends to loss occasioned by water used to put the fire and to prevent the further destruction of the insured property. Davis & Co. v. Insurance Co., of North America, 115 Micb. 382, 73 NWP 393.-From 4 Micb. L. R. 288.

001. Policy Insurance horses, mules, hay, wagons, buggles, harnesses and corn, held as to damage caused by ensuing fire, it car-not to cover saddles, microbes or whips, or unburrage recovery for use of horses or loss of buses. American Inc. Co. v. Hornbar-Ger, 85 Ard. 307, 108 SW 213. Building decision precedes fire only loss by the fire to reach from main dwelling but used as part of it is an "addition," within policy on "dwelling and addition." Tate v. Jasper sion. Id. Fire preceding explosion and l13 SW 659. Policy on "dwelling and addition" and contents of dwelling" does not cover contents of addition. Id. Fire policy on a mere blaz produced by lighting a match, gas jet, or lamp. Id.

ing but not "awnings held in storage or for repairs" held to cover swnings stored in billing but attached thereto when swnings were required. Wicks v. London & Land-cashire Fire Ins. Co., 111 NYES 63.

48. "Drummer floater" policy, insuring property of salesman "while travelling," though covering the property during incul-dental stops at points of travel, does not cover it when returned to starting point. Jacobson v. Liverpool, London & Globe Ins.

01. Provision excepting loss by fire caused by withdraw to any other fire, or lamp. Id.

01. Condition that policy shall be effective by making the removal" thereof permitted by the policy, held'not to cover it while tempo-, or by the agent, 288 Insurance $ 10. 12 Cur. Law. or fire originating within machines."4 A fire policy does not cover damage by lightning without fire,"88 but lightning is often expressly insured against."64 Voluntary and wrongful destruction of the property by insured precludes recovery,"87 unless insured was insane at the time."88

_Hail insurance._--Such loss only is indemnified as occurs while the policy is in force."89

\_Life insurance._See 10 C. L. 883._--Execution for crime is covered unless expressly excepted."00 Insurer is often exempted if insured commits suicide81 while sane or insane88 or violates the law."88 Death must occur within the policy term."94

_Plate glass insurance._--Accidental breakage85 is commonly insured against, with exception if the loss is due to fire."89

loss "occasioned by or through earthquake,"88

held to show insured procured another to recovery is precluded if evldence shows that but for earthquake fire would not have de-

North America, 103 Mo. 299, 69 A 110.

stroyed insured property, and fire spread

58. If insane, burning no defense. Blindell

from another building fired by earthquakes

s within exception. Henry Hilp Tailoring

33 Ky. L. R. 885, 108 SV 325.

Co. v. Williamsburgh City Fire Ins. Co., 157

59. Evidence held sufficient to sustain Ver-

F 288. Exception against loss "caused, di-

dict that plaintiff suffered no loss by hall:

rectly, or indirectly," by invasion, \*, \*, prior to noon, September 1st, when policy,

or for loss or damages "occasioned by or

explred. Flakne v. Minnesota Farmers' Mut. through" any earthquake, \*, \*, com-

ms. Co. \[Minn.) 117 NW785. Where policy,

pany was exempt only where earthquake

reminated hail insurance at noon, September 1st, and by-laws terminated it "after"

her 1st, and by-laws terminated it "after"

of fire. Baker v. Williamsburgh City Fire

September 1st," but were legally amended,

ms. Co., 157 F 288. On other hand, exemp-

to conform to policy, no recovery could be

t tion could not be limited so as to apply only

had for loss by hall after noon of September

to loss or damage by earthquake and not

ist. Id.

by fire. Id. Company held exempt only

60. No defense that insured was executed

where loss was caused directly by earthquakes.

for murder. Collins v. Metropolitan Life Ins.

quake and not where fire spread from other

Co., 322 Ill. $7, 83 NE 542, rvg. 133 Ill, App.

buildings fired by earthquake. Williams

386.

burgh City Fire Ins. Co. v. Willard \[C. C.

61. Under Rev. St. 1899, $ 7896, suicide is

A.J. 164 F 404. Insurer not exempted by Civ.

no defense unless insured contemplated it

Code Cal. 6283, providing that when a peril

when he took out insurance. Tennent v.

is especially excepted loss which would not

Unlon Cent. Life Ins. Co. \[Mo. App.\] 112 SW

have occurred but for such peril is thereby

154. Evidence held to show suicide. Metro-

expected. Id.

83. Under provision against liability for

low caused by order of civil authority,

post, $ 24C subd, Questions of Law and

while building permits were refused by city

Fact.

authorities pending decision concerning cer-

42. Under policy limiting liability, if in-

tain street \[improvements. Palatine Ins. Co.

sured should commit suicide while sane or

v. O'Brien, 107 Md. 341, 68 A 484.

154. Damage to automobile through explo-

sion, by Ignition from oil lamp, of gasoline

showing from tank after an accident, and

theorwegian water in a ditch, held not covered

by policy excepting damage by fire originat-

ing "within" the vehicle. Preston v. Aetna

18. Co. \[N. Y.\] 85 NE 1006.

01. Prior custom of company of paying

damage caused by lightning without fire

though policy covered only loss by fire, and

fact that plaintiff had contributed assess-

ments to meet such invalid claims, held not

to entitle plaintiff to recover for damage by

lightning when no fire ensued, on theory that

custom of company was part of contract.

Sleet v. Farmers' Mut. Fire Ins. Co. \[Ky.\] 113 SWV 5175.

54. Evidence insufficient to show rule was

killed by lightning. Warren v. Farmers'

Mult. Fire Ins. Co., 130 Mo. App. 226, 109 SW

88.

01. Voluntary, fraudulent, corrupt or

wrongful destruction of property by insured

himself precludes recovery, though policy

does not provide for such contingency. Bin-

dell v. Kenton County Assessment Fire Ins.

Co., 33 Ky. L. R. 885, 108 SW 325. Evidence

12. Our. Law.

- \[12\] Cur. Law. INSURANCE SS 11.

- \[13\]\_Salesman's samples.--_The excepted risks are usually specified in the policy."7_Title insurance._"So 10 C. L. 361--Claims and liens not of record are often excepted."8

- \[14\]_Information of policy for mistake._"So 10 C. L. 361--Principles common to reformation of instruments in general are discussed in another article."8 When there is a mere agreement to "renew" a policy, without more, reformation lies if a new policy at variance with the old is,delivered."8 Courts hesitate to reform policies in favor of insurer after loss,"8 especially when there is evidence of laches."8

- \[15\]_The beneficiary and the insured._"So 10 C. L. 361--The beneficiary is the person to whose benefit the insurance contract primarily inures on the happening of the contingency insured against."13 Insured's intention as to who shall be beneficiary must be given effect if not contrary to statute or public policy."8 Under a policy payable to children in case of death of the designated beneficiary before death of insured, the legal representatives of the designated beneficiary take in default of children."8 The surviving wife of one who before his marriage took

- \[16\]\_delity & Casualty Co. \[Mo. App.\] 112 SVW_by the policies, and cannot'wait until after destruction of the property and then sue for reformation on ground of mistake as to the building by town authorities or concert-property insured. National Union Fire Ins. Co. v. John Spry Lumber Co., 235 Ill. 98, 85 res of approaching fire, held within pro-vision exempting company if loss should happen by or in consequence of any fire, whether on insured premises or not. Fris-bie v. Fidelity & Casualty Co. \[Mo. App.\] 112 SVW 1024.

- \[17\]_G_. Evidence held to show loss of salesman's samples by theft, in city where assured had permanent offices not covered by policy excluding losses by theft and pre-viding it should not attach in places where assured had permanent offices or salerrooms. Cohn v. Federal Ins. Co., 113 NYS 12.

- \[18\]_G_. Title policy excepting claims of tenure by present occupants and instrumentation, terms, etc., not shown by any public record, covers record title only and not claime sustainable only by proof of adverse possession. Bothin v. California Title Ins. & Trust Co., 153 Cal. T18, 96 P 500. Recorded deck of trust by occupant who was stranger to record chain of title held not covered. Id.

- \[19\]_G_. See Reformation of Instruments, 10 C. L. 149.

- \[20\]_T_. Evidence held not to authorize reformation of fire policy by striking theorem rewards as to amount of other insurance, if appearing that policy conformed to pre-liminary agreement, if any existed, and, if not, then relations of parties arose only from delivery and acceptance of policy. Kenyon Paper Co. v. Nederlandsche Lloyda, 124 App. Div. 886, 109 NYS 311.

- \[21\]_T_. Where owner's agent applied for insurance on common form, which was issued in such form, and delivered to and paid for by insured, company was not entitled after fire to have policy reformed so as to cover only part of property, on ground that owner's agent asked for insurance on only part of property and that rate charged did not cover property destroyed. National Union Fire Ins. Co. v. John Spry Lumber Co., 235 Ill. 98, 85 NE 266, aff. Queen Ine, Co. v. Spry Lumber Co., 138 Ill. App. 620.

- \[22\]_T_. Insurance company having copies of policies in its possession for several months is bound to know what property is covered by the policies, and cannot'wait until after destruction of the property and then sue for reformation on ground of mistake as to the building by town authorities or concert-property insured. National Union Fire Ins. Co. v. John Spry Lumber Co., 235 Ill. 98, 85 res of approaching fire, held within pro-vision exempting company if loss should happen by or in consequence of any fire, whether on insured premises or not. Fris-bie v. Fidelity & Casualty Co. \[Mo. App.\] 112 SVW_by the policies, and cannot'wait until after destruction of the property and then sue for reformation on ground of mistake as to the building by town authorities or concert-property insured. National Union Fire Ins. Co. v. John Spry Lumber Co., 235 Ill. 98, 85 res of approaching fire, held within pro-vision exempting company if loss should happen by or in consequence of any fire, whether on insured premises or not. Fris-bie v. Fidelity & Casualty Co. \[Mo. App.\] 112 SVW_by the policies, and cannot'wait until after destruction of the property and then sue for reformation on ground of mistake as to the building by town authorities or concert-property insured. National Union Fire Ins. Co. v. John Spry Lumber Co., 235 Ill. 98, 85 res of approaching fire, held within pro-vision exempting company if loss should happen by or in consequence of any fire, whether on insured premises or not. Fris-bie v. Fidelity & Casualty Co. \[Mo. App.\] 112 SVW_by 1024.

- \[23\]_G_. Evidence held to show loss of salesman's samples by theft, in city where assured had permanent offices not covered by policy excluding losses by theft and pre-viding it should not attach in places where assured had permanent offices or salerrooms. Cohn v. Federal Ins. Co., 113 NYS 12.

- \[ 284 INSUANCE SS 11. 13 Cur. Law.

out a policy payable to his estate is not entitled to the proceeds as community property.74 Insurer is sometimes given the option to pay the proceeds of the policy to any person deemed by it equitably entitled thereto.77 After full performance of a life policy by insured by payment of premiums and otherwise, the insurer cannot defend an action thereon by pleading illegality in the designation of beneficiary.78

As a general rule79 the beneficiary in a life policy has a vested interest in the insurance80 which passes to him and his legal representatives81 free from the claims of creditors of insured82 and which, subject to the right of insured to discontinue the payment of premiums,83 cannot be impaired or destroyed unless the policy authorizes it by change of beneficiary or otherwise,84 or without the consent of such beneficiary first obtained.85 If the policy allows a change of beneficiary, provisions thereof must be at least substantially complied with,86 but a change clearly au-

76. Succession of Verneuille, 120 La. 605, 123 NYS 45 S 520. Premiums paid by community held

01. Where policy to wife on life of husband

properly credited to it. Id.

77. Person who under terms of the policy

1s designated by company as equitably en-

hubbard, proceeds on latter's death went to

titled to receive a sum thereunder becomes

her executor and not to husband's executor,

vested with the absolute property in the

found and may deal with it as his own. Hus Hus Hus Hus-

band not required to account to wife's repre-

Scuative where company was authorized to

pay funeral benefits to legal representative,

or relative by blood, connection by marriage,

or other person whom it deemed equitably

entitled. Althouse v. Roth, 35 Pa. Super. Ct.

400.

001. Could not assert policy was unlawfully

made payable to estate of insured. Garfinkel

which cannot be diminished or affected by

v. Alliance Life Ins. Co., 140 Ill. App. 380.

79. Interest of beneficiary of fraternal or

inward not provided for in original contract.

mutual benefit insurance, see Fraternal and

Arnold v. Empire Mut. Life Ins. Co., 8 Ga.

Mutual Benefit Associations, 11 C. L. 1564.

App. 685, 60 SE 470. Stipulation that non-

In Wisconsin insured may dispose of policy

payment of premium note should forfett

by assignment, will or gift without consent

policy held not to affect beneficiary. Id.

of beneficiaries. Slocum v. Northwestern

Where right to change beneficiary is re-

Nat. Life Ins. Co. \[Vis.\] 115 NW7 796. Bene-

served in policy, beneficiary has no vested

ficary's interest being "mere expectancy"

interest and another may be substituted at

cannot be basis of claim for damages by

instance of insured. Warning v. Wilcox \[Ca\]

benefitary on insurer's wrongful reseension

App. 96 P 910. Where policy is made pay-

of contract, insured being the one entitled to

able to one's wife but no further disposition

damages. Id. But note further this section,

of proceeds is made either to her legal repre-

sature making life policy wife's separate

resentatives or otherwise, insured may desig-

property.

sno. Where policy was payable to wife and

wife. Smith v. Metropolitan Life Ins. Co.

to "helts at law" of insured if wife died be-

\[Pa.\] 71 A 11.

fore he did, on death of wife before insured,

sno. Isured could not change beneficiary

and later of an only child, interest in policy

after wife's death without consent of her

vested in brothers and sisters of insured un-

legal representative, policy being silent on

affected by his subsequent attempted assign-

right to change beneficiary. Smith v. Met-

ment to another, "heirs at law" having re-

ropolitan Life Ins. Co., 34 Pa. Super. Ct. 73.

erence to time of death of insured. Birge v.

S8. If policy provides for change of bene-

Franklin, 103 Minn. 482, 115 NW7 278.

ficary, vested right of beneficiary can be

S1. Where policy was payable to wife and

directed only by strict conformity with such

children, their executors, etc., child living

provision. Arnold v. Empire Mut. Life Ins.

when policy was issued but who died be-

Co., 3 Ga. App. 685, 60 SE 470. No change

fore insured died took vested interest on

where policy was not sent to be indorsed as

delivery of policy, and on her death inter-

required by its terms and where insured

est passed by descent or succession same

continued to pay premiums and sent recepts

as other personality. V. Vedworth v. Aetna

to old beneficiary. Begley v. Miller, 137 Ill.

Life Ins. Co. \[La.\] 45 S 417. Where

App. 278. Immaternal whether notice and

husband acted only as wife's agent

request of assured to company to change

taking out policy on his life for wife's

name of beneficiary was signed on sick bed

benefit and benefit of children in case

or elsewhere, if in fact signed by insured.

of her death, and in keeping same in his

Metropolitan Life Ins. Co. v. McCray \[Ala.\]

poss 12 Cur. Law. INSURANCE $ 11. 285

thorized by the policy. is not affected by false representations by insured to the old beneficiary \[87\] or by want or illegality of consideration. \[88\] A substitution of beneficiary with the consent of the old beneficiary will be enforced subject to the latter's rights recognized therein by the parties, notwithstanding insured could have elected to make the substitution without the consent of the original beneficiary. \[89\] Though the interest of a beneficiary in the proceeds of a life policy is ordinarily transmissible as well as vested, \[90\] the policy may be worded so as to make it nontransmissible, \[91\] but the presumption is that it was intended that the interest should descend. \[92\] It is provided by statute in some states that a life policy payable to a married woman shall be her sole and separate property. \[93\] Such statutes do not prevent insured from stipulating that the beneficiary shall have no interest in the cash surrender value of the policy. \[94\] The beneficiary has no interest in sums paid as premiums by the insured so as to be entitled thereto on rescission of the policy. \[95\]

_Rights of employee under employer's liability policy. \[89\]_ See 10 C. L. 866

_Rights of mortgages, creditors, trustees, etc., under loss payable clauses. \[89\]_ See 10 C. L. 866

A mortgage, creditor, or other third person to whom as his interest may appear the loss is made payable has an equitable lien on the proceeds of the policy, \[96\] and his interest cannot be affected by unauthorized adjustments between insurer and insured, \[97\] nor by other acts or omissions of insured guarded against by express stipulation. \[98\] On the other hand he is entitled to no greater rights as

87. Where policy in favor of insured's funds for payment of premiums. Perkinson mother reserved right to change beneficiary, v. Clarke, 135 Wis. 584, 116 NVW 229. fact that insured falsely represented to 94. Statute of 1885, 8247, giving wife ex-mother that he had married and wanted to clivus and separate interest in policy on make wife beneficiary, when in fact he was liffe of husband, expressed to be for her living in illicit relations with the woman, benefit. Hilliard, v. Wisconsin Life Ins. Co. held immartial in determining rights of \[Vis. 117 NVW 998. 95. Slocum v. Northwestern Nat. Life Ins. Co. \[Vis.\] 115 NVW 766. See 6 Mich. L. R. representation to company held also immaterial as between claimants to fund. Id. \[Vis.\] 96. Loss payable to mortgage. Hanson 88. That change of beneficiary was in-duced or prepared by promise of substituted beneficiary to continue illicit relations with insured did not render it void, no consideration being essential. Warning v. Wilcox \[Cal. App.\] 96 P 910. 89. Parties having acquessed in construction recognizing rights of original beneficiary and having undertaken to conform thereto, new beneficiary could not base rights on proposition that change would have been valid without consent of original beneficiary. Crowell v. Northwestern Nat. Life Ins. Co. \[How.\] 118 NV 412.

against insurer than insured could have,99 and may be rendered liable to the latter for loss due to an unauthorized settlement with the company.4

\_Insurance by bailee or agent.\_See 10 C. L. 887

SS 12. Policy value in cash or loans, and right to share in surplus before loss. See 10 C. L. 888. By their terms policies often have what is called a cash surrender value, sometimes expressly exempted from any claim on the part of the beneficiary, and which may be recovered by insured by complying with conditions prescribed.\* Frequently insured may borrow a certain amount from the company on his policy under such regulations for payment as may be agreed upon.4 Conditions in loan contracts more onerous than the terms provided in the policy on which insured may borrow money are invalid in the absence of further consideration.5

SS 13. Options and privileges under policy.899 see 10 C. L. 888. After the policy has been in force for a certain length of time, insured is often entitled either by its terms or by statute to a specified amount of paid up or extended insurance6 if he should allow the policy to lapse7 by failing to pay further premiums,8 or he may

mand for appraisers. Reed v. Firemen's Ins. | Where surrender of policy as provided there-

Co. \[N. J. Law\] 69 A. 724. #9. Under clause that loss be paid to a

iff was entitled to judgment conditioned on third person, latter recovers only as insured's

surement of policy. Id. Under policy on appointee, and where policy is avoided as to

which premium was payable on June 6th of

Insured, appointee cannot recover. Brecht v. | each year and which stipulated for cash surrender

Law Union & Crown Ins. Co. \[C. C. A.\] 160

render value on surrender of policy while in

F 399. Provision that when with Insurer's

force, where company's answer to request of

consent an interest under policy should ex

Insured as to amount of earrender values and

ist in favor of any one having an interest in

method of realizing. same was sent June 6th

property other than insured's interest, "the

and was in effect a refusal to pay any cash

conditions hereinbefore contained shall ap-

value, insured was relieved of duty of

play in the manner expressed in such pro-

ing absolute offer of surrender before June

visions and conditions of insurance relating

with or thereafter, so that company could not

to such interest as shall be written upon, at-

defend action for surrender value on ground

tached or appended hereto," did not change

that premium due June 6th was not paid.

legal effect of attached elips making loss

Hill v. Bankers' Life Ins. Co., 112 NY 124.

payable to a creditor, whlch was merely to

4. Where reserve exceeded loan and Inter-

constitute him insured's appointee to receive

est, provision that if loan and interest should

whatever might become due if policy should

equal legal reserve company could demand

remain valid as to insured. Id. Such pro-

immediate payment and cancel policy if pay-

vision was intended only to apply where in-

ment was not made was inapplicable. Boze-

surer by special agreement with mortgage

man's Adm't v. Prudential Ins. Co. \[Ky.\] 113

or third person has consented to modifica-

tions or waivers. Id. Under change of ownership

5. Forfeiture clause, Bozeman's Adm't v.

ership clause, neither owner nor contractors

could recover on policy where owner became

6. Separate paper signed by special agent

bankrupt one hour after insurance, though

of insured and delivered with policy, giving

same was taken out for contractors' benefit.

amount of paid-up insurance to which insured

New Kensington Lumber Co. v. German Ins.

sured should be entitled at end of 15 year

Co., 36 Pa. Super. Ct. 32.

period under option in policy, held mere

1. Where mortgage made unauthorized

statement of expectation not binding on

sentiment but evidence showed amount of

sentiment was reasonable value of loss sus-

something may be wrongly

signed and owner made no bona flag effort

promises or representations not contained in

to carry out pending arbitration, mortgage

was not liable to account to owner on basis

Co., 113 NY 221.

of loss claimed by latter, Jacob Tome

7. Statements by agent as to amount of

stitute v. Whitcomb \[C. C. A.\] 160 F 838.

paid-up insurance insured would be entitled

Mortgage not entitled to credit for attor-

to if he should allow policy to lapse held

ney's fee. Id.

Ineffectual where policy specified method of

determining such amount. United States

tioned that it shall have cash surrender

Life Ins. Co. v. Wood, 82 Ky., L. R. 1120, 107

value in which beneficiary shall have no in-

sured, is not as to such feature controlled

stress, is not as to such feature controlled

by statue of 1898, # 2347, giving wife

clusive and separate interest in policy on

milled of husband expressed to be for her bene-

to payment of premiums after third or any

fit. Hilliard v. Wisconsin Liffe Ins. Co.

subsequent policy year. Royal Union Liffe

\[VWs.\] 117 NYW 999.

s. Not where plaintiff did not surrender

policy as required by its term. Hilliard v.

Wisconsin Liffe Ins. Co. \[VWs.\] 11 12 Cur. Law. INSURANCE SS 13.

be entitled to have his policy exchanged for one of a different kind," or to share in some fund on the happening of a specified contingency.10 What deductions are permissible in fixing the amount of extended insurance,11 and whether any affirmative notice or election is necessary to the execution of provisions conditioned on payment of premium and death of insured.

the nonpayment of a premium," will depend on the agreement or the statute. Application for paid up or extended insurance may be oral or written," and time is not of the essence of a provision as to when it must be made;" but under a policy providing for extended insurance "if applied for" after failure to pay a premium, application therefor must be made in the lifetime of insured."

SS 14. Assignments and transfers of benefits or insurance. Accident insurance. See 10 C. L. 370

Employer's liability insurance.--The policy may provide against assignment without insurer's consent."

Life insurance.See 10 C. L. 370

A policy may be sold, assigned as collateral, or given in payment of a debt17 subject to considerations attending fraud, duress or incapacity," the laws of the state on questions relating to insurable interest,"

Id. Loan and pledge contract held not viewed until time of payment, her interest independent of policy but contemplated thature permitting married women to diagnose their separate estate so settled, renstheory. Id.

12. Under policy simply allowing paid-up insurance in accordance with c. 347, Laws of 1879, of New York, on failure to pay any Trocende v. Hligheyman \[Ky.\] 113 SVW 512. premium after three years, insured was not required to elect between paid-up and ex- tended insurance, statute providing that ae not yet available, could not be complained agreed." United States Life Ins. Co. v, Wood, 32 Ky. L. R. 1120, 107 SVW 1195. Where policy provided for extended insurance "if applied for" after failure to pay premium, in- supr as not required to notify insured to make election. Balthaser v. Illinois Life Ins. Co., 33 Ky. L. R. 253, 110 SVW 258. Where note for policy loan provided that on non- hlighest \[Ky.\] 118 SVW 891.

12 Cur. Law. INSURANCE SS 15. 289

and the requisites of assignments in general,\[20\] except as provided in the policy." No particular phraseology is necessary,\[22\] and the assignment may be either for a valuable consideration or by way of gift.\[28\] The extent of the assignee's interest will be determined by the terms of the assignment contract.\[24\]

\_Fire insurance.\_See 10 C. L. 172.--The consent of insurer or its agent is usually required,\[28\] and sometimes, also, entry on the company's books.\[26\] Where a policy is assigned after loss and deposited with insured, assignee's assent and acceptance may be presumed.\[27\] An adjusted claim for insurance is a chose in action subject to assignment.\[28\] The insurance may be transferred from one property to another.\[29\]

SS 15. _Change or substitution of contract, or risk, or of conditions thereupon\[29\]_

10 C. L. 173--Policies may be changed or substituted by mutual consent,\[30\] and mutual

tion of debt and that creditor shall pay all

America, 57 Misc. 608, 108 NYS 745. Where future premiums held valid, where debt and

life policy prescribed no method of assignee of policy are not so disproportionate

ment and was payable to anyone connected as to constitute wagering. Lake v. New

by marriage to insured, or equitably entitled

York Life Ins. Co., 120 La. 971, 45 S 959.

ed by reason of having incurred expense,

Transaction, pursuant to previous agreement,

and on receipt of policy insured delivered it

where policy was taken out and then as-

to the wife saying "Take this policy and pay

signed to one who paid all premiums under

on it," and wife took it, retained it and

promise to pay a certain per cent of pro-

paid premiums and Insured\*s burial expen-

ceeds to estate of insured, held illegal

sees, jury could find there was both a gift

far as assignee was concerned, entilting in-

sured's representative to proceeds less

24. Proviso in assignment by insured and

amount paid by assignee for premiums.

benefetary that it policy matured by death

Bendet v. Ellis \[Tenn.\] 111 SW 795.

assignee should recover from insurer "only

to extent of his actual insurance interest

policy may be assigned in same manner as

more chosen in action. McNevins v. Prun-

dential Ins. Co., 57 Misc. 608, 108 NYS 745.

Entry in pocket memorandum book kept

by insured, reacting that a surety held a life

policy to secure him, held insufficient as

assignment, entry not being dated or policy

described. Little v. Berry \[Key.\] 113 SW 902.

Where by terms of policy mere delivery

will give no right as against the designated

benefetary, the presumptions arising from

merce possession are rebutted. Stewart v.

Gwynn, 41 Ind. App. 320, 83 NE 758. Pro-

ceeds of policy are payable to extent of his

claim to assignee without delivery, in pre-

erence to subsequent assignee in whose pos-

session policy was placed. Mechanice' Banks

ing Co. v. Equitable Life Assur. Soc., 10 Ohio

C. C. (N. S.) 396. Paper found in desk of as-

sured after his death, directing payment of

amount of life policy to H. held insufficient

to show assignment of policy, there being

no evidence paper or policy was ever deliv-

ered to H. Huestis v. Prudential Life Ins. Co., 111 NYS 401.

21. Though policy provided no assignment

should be valid without indorcement of

company's consent thereon at a designated office, separate written consent by

company's agent held sufficient, assignor

and assignee not knowing that agent could

not value provision as to manner of assignee

ment, and company or agent not subsequent

by objecting or tendering unearned premium.

Home Ins. Co. v. Myere, 82 Ky. L. R. 199, 107

SW 719. Where insurer wasured strict com-

pliance with requirements as to assignment

of policy by insured to secure a debt, wife

and children could not predicate rights on

noncomppliance, as against assignee. Clark

v. Southwestern Life Ins. Co. \[Tex. Civ. App.\] 118 SW 335.

23, 28. McNevins v. Prudential Ins. Co., of

19 Curr. L. 19.

companies often reserve the right to modify the contract by amendments to the by-laws.\[31\] An agreement between two companies by which all the assets of one, and its liabilities on outstanding policies, are transferred to the other on specified terms, is a breach of contract as against the policy holders,\[32\] but if they elect to accept the reinsurance offered by the transferee company, they will be bound by the terms proposed.\[38\] A purchasing company can defend only on such grounds as would have been available to the original insurer\[34\] unless it has expressly limited its liability.\[38\]

Renewals are common.\[36\] It is presumed that a contract to renew calls for a policy similar to the old.\[37\] Payment of premium is not essential to the validity of a contract to renew a fire policy,\[38\] and such contract may be made though the policy has yet several months to run.\[59\] An action will lie on a contract to renew.\[40\]

SS 16. _Rescission, forfeiture, cancellation and avoidance. A. Under statute or agreement. Burglary insurance.\[58\] 10 C. L. 374_

_Fire insurance.\[58\]_ See 10 C. L. 374\_

Cancellation may be either by virtue of statute\[41\] or pursuant to agreement\[42\] under policies authorizing same on notice.\[43\] Cancella.

**31.** Where by-laws of mutual hall insur- agreed to keep certain insurance In force, it once company provided that company should not be liable on policies "after September 1st," and were amendable by terms of policy which on its face expiler "onon, September 1st," amendment of such by-laws so that

39.\*\* Visibility not affected because renewal company should not be liable after "noon," September 1st, held reasonable and valid.

Glinke v. Minnesota Farmers' Mut Ins. Co.

108 SW788.

**32.** Northwestern Nat. Life Ins. Co. v. Wingfield \[Tex. Civ. App.\]

Gray \[C, C. A.\] 161 F 488.

33.\*\* Evidence held to bind original holder of assessment policy by reinsurance subject to single premium item. Northwestern Nat. Life Ins. Co. v. Gray \[C. C. A.\] 161 F 488.

34. Company taking over assets and liabilities of another company could not assert defenses not existing in favor of original issurer. Federal Life Ins. Co. v. Kerr \[Ind. App.\] 85 NE796.

01. Company buying out another company and expressly limiting its liability to members or beneficiaries of other company to "claims arising by reason of death upon policies or certificates of membership of selling company, occurring subsequent to reflection of agreement." held not liable under cash surrender value provision of policy in old company. Mutual Reserve Fund Life As#n v. Green \[Tex. Civ. App.\] 108 SW7131.

38.\*\* Evidence held to authoring finding of contract to renew, though agent claimed many decline to mark off, while in latter misunderstanding. Orient Ins. Co. v. Wingfield \[Tex. Civ. App.\] 108 SW788.

37.\*\* Presumed renewal was with same in- \[N. Y.\] 85 NE 1087. Return of binding slip surrer for same time, terms, premium and property. Orient Ins. Co. v. Wingfield \[Tex. Civ. App.\] 108 SW788. Where plainiff held so as to terminate contract ipso facto, where $600 insurance on certain tobacco for 3 months, agent's agreement to keep it in force by renewal held not void for uncertainty, it being understood a new policy should be issued on same property and on same terms, Georgia Home Ins. Co. v. Kelley \[Ky.\] 113 SW 882.

38.\*\* Orient Ins. Co. v. Wingfield \[Tex Civ. App.\] 108 SW788. In ascertaining whether payment of premium was wavled, course of dealing between parties may be looked to.

Id. Where agent had regularly renewed policy and given credit for premiums and tion provisions will be strictly construed against insurer\[44\] and must be fully complied with in the absence of acquiescence or waiver\[45\]. Insured will not be bound by the acts of persons not authorized to act for him\[46\], nor by instructions not brought to his notice\[47\], and unearned premiums must be returned if this was contemplated\[48\]. Whether withdrawal from an insurance association operates to cancel policies held by the members will depend on the terms of the agreement\[48\].

_Life insurance\[50\]_ 10 C. L. 274--Voluntary abandonment of the contract by insured is treated in the next subsection\[50\].

(SS 16) _B. For breach of contract, condition, or warranty, or misrepresentation_\[50\], 10 C. L. 275--The most common grounds for forfeiture are failure to pay premiums, dues or assessments\[51\], and breach of warranties, conditions or representations\[52\], though the number of forfeitures is undoubtedly much reduced by the "incontestable clause" now found in many policies\[58\]. There is a conflict on the severability of fire policies as bearing on their avoidance for breach of condition relating to only part of the property insured\[54\]. The general disfavor with which forfeitures are regarded extends to policies of insurance\[58\], and the one of two possible constructions should be adopted which will prevent a forfeiture\[59\].

tional Ins. Co., 200 Mass. 50, 85 NE 841. Evl-dence held to show insured had surrender-ed fire policy for immediate cancellation before fire, Acetna Ins. Co. v. Robard's Tobacco Co.'s Trustee, 32 K. D. K. 257, 109 SWY.

43. Provision authorizing company to can-el policy on 5 day's notice means actual, not constructive, notice, Hartford Fires Ins. Co. v. Teves, 132 Ill. App. 321. Notice of al-legged agent insuffClient. Id. Three-day notice of cancellation insuffClient under five-day provision. Id. Time runs from actual receipt of notice. Id.

01. Williamson v. Warfield Pratt Howell Co., 136 Ill. App., 168.

01. Short period of silence by assured after receipt of notice of cancellation not made pursuant to terms of policy held insuffClient to establish asquiescence. Hartford Fire Ins. Co. v. Teves, 132 Ill. App. 321.

That insured in proofs of loss mentioned certain insurance procured by one not authorized to act for him did not show consent to cancellation where policy required him to state "all other insurance, whether valid or not". Id. His using on both old and new policies held not a concession that old was not in force. Id.

46. Authority in one to procure insurance on certain property for another does not confer authority to have canceled the poliers obtained. Horn v. Dorchester Mut. Fire Ins. Co., 193 Mass. 534, 85 NE 853. Evidence held to show that in what a certain person did in respect to cancellation relied on by insurer he acted as agent of insurer, and not as agent of insured. Id.

01. Aetna Ins. Co. of Hartford v. Renno

01. Insurer seeking to cancel policy under agreement therefore must tender return of unwanted premiums. V'illimason v. Warfield

Prett Howell Co., 136 Ill. App., 168. To effect cancellation, unearned premiums must be tendered where policy provides that when canceled by company by giving notice "It shall retain only the pro rata premium."

Hartford Fire Ins. Co. v. Teves, 132 Ill. App., 321.

49. Subscription agreement and policies need not to require 1pso facto cancellation of policies on withdrawal of a member from insurance association. Williamson v. Warf-hed Prett Howell Co., 136 Ill. App., 168; Warfield Pratt Howell Co. v. Williamson, 23 III. App., 168; Warfield Pratt Howell Co. v. Williamson, 23 III. App., 235 Ill. App., 168.

01. Provision authorizing company to can-el policy on 5 day's notice means actual, not constructive, notice, Hartford Fires Ins. Co. v. Teves, 132 Ill. App., 321.

01. See note, $ .

01. See ante, $ .

01. See ante, $ .

01. A policy by its terms incontestable except for fraud cannot be avoided by false warranties not fraudulent. Poor Life Asa'In receipt of notice. Id.

01. Hines, 132 Ill. App. 642. Incontestable clause held to preclude defense of fraudulent concealments as to health of applicant and relations. Federal Life Ins. Co. v. Flannigan, 134 Ill. App., 595.

01. Where premium is single policy is en-ficent to establish asquiescence. Hartford Fire Ins. Co. v. Teves, 132 Ill. App. 321.

ent items of property, and hence breach of condition aa to title of buildings avoids policy also as to goods therein. Johnson v.

thorized to act for him did not show consent to cancellation where policy required him to state "all other insurance, whether valid or property, each separately stated and insured for a specific amount, breach of con-new policies held not a concession that old

dition as to one class does not affect right was not in force. Id.

46. Authority in one to procure insurance on other classes in on certain property for another does not confer authority to have canceled the poliers. Arkansas Ins. Co. v. Cox \[Ok1\]. 98

01. Policy providing "This entire policy has Co., 193 Mass. 534, 85
    Acts on the part of insured amonnting to a voluntary abandonment of the insurance contract will of course preclude recovery thereon,\[97\] and the doctrine of abandonment is not affected by a statute precluding forfeiture for nonpayment of premium without giving notice to insured.\[98\] Fraud perpetrated by insurer or its agent,\[99\] or by insured,\[60\] is ground for rescission or avoidance of liability. After successful repudiation of the policy no recovery lies thereon.\[61\] A beneficiary may not disaffirm warranties made by an insured minor and at the same time enforce the policy.\[22\]

vent them. Royal Union Life Ins. Co. v. Mc-London \[Ga. App.\] 62 SE 101.

sponsible for fraud of agents within line of their agencies. Mutual Reserve Life Ins. Ins. Co. \[Neb.\] 118 NW 65.

If fairly suscep.

Gbie thereof, policy will be construed so as

Evidence held to show fraud of agent in nec. to avoid forfeiture. Aetna Life Ins. Co. v. Wimberly \[Tex. Civ. App.\] 108 SW 778.

agreement to return it to applicent should

57. Plea of voluntary discontinuance of

later decline policy. Id. Held, under eviapxment of dues and direction that policy

b canceled held complete bar to action.

ferred authority on alleged agent to accept

Price v. Mutual Reserve Life Ins. Co., 107

promium not before acceptance of application. M. 374, 68 A 689. Plaintiff's failure to pay

special assessments claimed to be unauthorized and subsequent failure to pay regular

agent having fraudulently negotiated note

bl-monthly assessments held equivalent to

voluntary abandonment of policy. Kray v. Mutual Reserve Life Ins. Co. \[Tex. Civ. App.\] 111 SW 621.

defendant amount paid. Weidenaar v. New

111 SW 421. Refusal to pay assessment sole-

York Life Ins. Co., 36 Mont. 592, 94 P 1.

ly on ground that it had been increased and

Fraudulent acts of alleged agent in procur-

formal notification of withdrawal from cometary held abandonment of contract precluding recovery thereon. Roth v. Mutual Reserve Life Ins. Co. \[C. C. A.\] 162 F 282.

SS. Elight years' failure to keep up insurance held abandonment, notwithstanding

every of amount of premium note fraudu-

stante requiring notice. McGean v. Mutual Life Ins. Co. \[Mo. App.\] 111 SW 604.

qual Life Ins. Co. \[Mo. App.\] 111 SW 604.

SS. Fraud in representing that application

was rejected and issuing policy to another

under pretended assignment is ground for

ancellation. Petition not demurrude. Miquall Life Ins. Co. v. Chambliss \[Ga.\] 61 SE

1034. Petition and evidence held to show

bad faith and to authorize recovery of at-

tory's fees. Id. Mutual fire insurance

company issuing policy without word "mu-

tnal" conspicuously printed therein, as pro-

goods, had over-valued stock, falled to keep

vided by Rev. St. 3653, and inducing its

acceptance by falsely and fraudulently rep-

resenting that there would be no contingent

Idability thereon, acts unlawfully and com-

mits fraud on persons induced thereby to

enter into agreement with company; and

when insured informed agent he would not

accept a policy in a mutual company, or in

one where there was such contingent

Idability for future assessments, and there was

recommending risk would not have been

sent him through said agent a paper writing,

in form and appearance like unto a stand-

National Life Ass'n, 137 Iowa, 696, 116 NW

ard cash policy of insurance, which was re-

ceived by him after paying sum specified

death of insured as to insured having been

therein as cash premium and placed with

other like papers without critical inspection, where it remained until he received

notice to pay assessment thereunder, several

months later, he did not enter into an un-

dertaking to accept such policy, nor is he

estopped from denyling liability therein-

der. Williams v. Aetna Fire Ass'n Receiver, 10 Ohio C. C. (N. S.) 422. Alleged

fraud in inserting matter in policies without

insured's consent held no defense in action

for earned premiums, it not appearing

in-

soured was deceived or misled. Yidelity &

Casualty Co. v. Dierks Lumber & Coal Co.

12 Cur. Law. INSURANCE SS 16B. 293

One seeking to rescind for fraud or breach of the contract must act with reasonable promptness, \[48\] otherwise he will be held to have waived his rights. \[44\] Return of unearned premiums within a reasonable time \[48\] is essential to rescission at the instance of insurer, \[96\] but when provable damages are sustained by fraud on the part of insured, a rescission without return of premiums received will be held effectual as against a suit in equity for reinstatement of the policy, \[97\] and the courts are not entirely agreed as to the necessity of affirmative rescission and tender of premiums by insurer as a condition precedent to its right to set up forfeitures in defense of an action on the policy. \[48\]

63 Rule that election to take advantage of breach of contract must be promptly made by held a mere conclusion of law. Id. is peculiarly applicable to mutual insurance contracts where insured practically is both the insured is entitled to the premiums paid hisver and insured. Voss v. Northwestern Nat. Life Ins. Co. Nat. Life Ins. Co. \[Wis.\] 118 NW7 212. \[Wis.\] 115 NW7 796 is in line with the au- 64. Alleged breach on part of company by passage of by-law increasing premium held \[Aden.\] 199 Pa. 39, 1 A 256; Knight Templaris waived where beneficiary and insured without objection continued to pay premiums for four years. Voss v. Northwestern Nat. Life Ins. Co. \[Wis.\] 118 NW7 212. Insured could not assert ignorance of contents by-law \[Iowa, 621, 63 NW7 892; Supreme Council v. share he received copy thereof and letters and notices as to premiums and their increase. Id. One who accepts and recepts for a policy different from that applied for and thereafter pays a premium note and \[28\] 19 No. 388, 17 A.m. Dec. 129; McCail v. Ins. Co. retains the policy without objection with \[3\] 19 W. Va. 237, 27 Am. Rep. 568; Braswell v. actual knowledge of Its contents cannot after four months reesion and recover \[Ling No., 138 X. C. 5; Smallwood v. amount paid and enjoin the collection of further premiums. Smith v. Smith \[Ark.\] 13 Am. Rep. 565; Thompson v. Insurance Co., 110 SWV 1038. Several years acqualescence \[21\] 19 C. 466, 28 P 628; Strauss v. Mutual Re- \[Ling No., 517, 36 SE 352, 83 Am. part of Insurer, or mistake in including in \[Ling No., 69, 64 L. R. A. 605; True v. Bankers' \[Ling No., 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, 98, 99, 99, 90, 91, 93, 97, 99, 92, 94, 99, 95, 97, 98, 99, 99, 99, 90, 91, 94, 99, 99, 92, 95, 99, 96, 99, 97, 98, 99, 99, 99, 98, 394 INSURANCE $ 16C. 18 Cur. Law.

(SS 16) _C. Estoppel or waiver of right to cancel or avoid."_--The doctrines of waiver and estoppel\* play an important part in determining the right of insurer to insist on forfeiture provisions.\[11\] They apply in the many cases of uncondition-al\[72\] declarations or conduct inconsistent with its intention to take advantage of a known breach,\[73\] such as issuing the policy with knowledge of all the facts,\[74\] the collection\[75\] or retention of premiums after a breach,\[76\] or of overdue premiums,\[77\]

ing accordingly opinion in 32 Ky. L. R. 999, 107 SWV 719, Though policy provides it shall

ranty as to previous loss by burigary, held be void for breach of warrant, it is in law

only vodable at insurer's election, so as to

by insurer to lead insured to believe it did
require resession and tender of premium

not intend to take advantage thereof.

received in order that insurer may defend

action thereon for the breach. United States

NYS 20. Treating policy in force with:

Health & Acc. Ins. Co. v. Clark, 41 Ind. App.

knowledge of breach of condition waives

$45, $2 NE 760.

$9, See 10 C. L. 380. Water of provisions

require pregnancyment of the first premium

or delivery of the policy while insured is

Hyman, 42 Co. 165, 94 P 27: November 1999

port to insurance commissioner including

sentials and Validity, of notice to pay pre-

miums (see ante, $ $), of notice or proofs

of loss (see post, $ 19), of provisions for

being explained that doubtful policies were

arbitration (see post, $ 20), and of contract

limitations as to time of bringing suit (see

Sasur. Soc., 234 Ill., 492, 84 NE 1073. Estoppo, Post, 244), are treated in other sections.

$70. Though in law of insurance terms

knowledge to insurer by reason of notice

"waiver" and "estoppel" are often used

soynynynously (German Am. Ins. Co. v. Hyman, 42 Co. 165, 94 P 27: Webster v. State

Mint. Fire Ins. Co. \[V.t\] 69 A 319), they have

distinctive characteristics, same as when

used in other connections ("Vevater v. State

Mut. Fire Ins. Co. \[V.t\] 69 A 319). Waiver

involves act of only one party, is voluntary

relinishment of a known right, and does

not necessarily imply that other party is

mlisted to his prejudice, while estoppel

in-

volves conduct of both parties, and misleading of one party to his prejudice. Id.

71. Doctrines of waiver and estoppel\* play an important part in determining the right of insurer

to insist on forfeiture provisions.\[11\] They apply in the many cases of uncondition-al\[72\] declarations or conduct inconsistent with its intention to take advantage of a known breach,\[73\] such as issuing the policy with knowledge of all the facts,\[74\] the collection\[75\] or retention of premiums after a breach,\[76\] or of overdue premiums,\[77\]

admission of facts showing breach of war-

107 SWV 719, Though policy provides it shall

reury as to previous loss by burigary, held

be void for breach of warrant, it is in law

only vodable at insurer's election, so as to

by insurer to lead insured to believe it did

require resession and tender of premium

not intend to take advantage thereof.

received in order that insurer may defend

action thereon for the breach. United States

NYS 20. Treating policy in force with:

Health & Acc. Ins. Co. v. Clark, 41 Ind. App.

knowledge of breach of condition waives

$45, $2 NE 760.

$9, See 10 C. L. 380. Water of provisions

require prepayment of the first premium

to insured's tenanium. German Am. Ins. Co. v. Hyman, 42 Co. 165, 94 P 27: November 1999

Formura 42 Co. 165, 94 P 27: November 1999

port to insurance commissioner including

sentials and Validity, of notice to pay pre-

pulicy in question as in force held immma-

miums (see ante, $ $), of notice or proofs

terial as between company and insured, it

of loss (see post, $ 19), of provisions for

being explained that doubtful policies were

arbitration (see post, $ 20), and of contract

always included. Weston v. State Mut. Life

limitations as to time of bringing suit (see

Sasur. Soc., 234 Ill., 492, 84 NE 1073. Estoppo, Post, 244), are treated in other sections.

$70. Though in law of insurance terms

knowledge to insurer by reason of notice

"waiver" and "estoppel" are often used

soynynously (German Am. Ins. Co. v. Hyman, 42 Co. 165, 94 P 27: Webster denial of liability on grounds other than those finally asserted" or taking steps toward settlement of the loss." All the various conditions, warranties and representations," including provisions relating to the payment of premiums," the

Northwestern Fire & Marine Ins. Co. v. Con-

nace of premium in ignorance of loss held

nectectut Fire Ins, Co. \[Minn.\] 117 NWV 825.

nect to revive policy. Johnson v. Continental

See, also, ante, B, this section, on necessity

Ins. Co. \[Tenn.\] 107 SWV 688. Insured not

for return of unearned premium as condition

miled by company's previous indulgence

to right to defend for breaches,

where notified by company of importance

77. Forfeiture for default in payment of

premium held waived. Receipt and retention

default. Id. Subsequent acceptance of

of overdue payments. Security Mut. Life Ins.

premiums without knowledge that insured

Co. v. Riley \[Ala.\] 47 S 785. Notice by gen-

did not meet conditions on which forfeiture

eral agent that provision for payment of

for nonpayment of premiums was waived

permin on first of month would not be

held no waived. Mutual Reserve Fund Life

eisted on, and his acceptance of payments

as'n v. Tuchfeld \[C. C. A.\] 159 F 833.

In-
any time before tenth of month. North Am-

struction that acceptance of premiums

erican Acc. Ins. Co. v. Whitesides, 134 Ill.

worked estopped held erroneous. Id.

App. 290. General agent's demand for over-

78. Denial of liability on specified ground

due premium. New England Mut. Life Ins. Co. v. Briginsgate \[LKy.\] 113 SWV 824.

with knowledge of other grounds of

C. v. Briginsgate \[LKy.\] 113 SWV 824.

reptance of late premiums or payment of

Parmers' Alliance Inc. Co. \[Kan.\] 98 P 321.

premium note after due generally waives

Company is not restricted in its defense to

forfeiture. Duncan v. Missouri State Life

reasons assigned in its refusal to pay, it not

Ins. Co. \[C. C. A.\] 160 F 644. General agent's

appearing plaint has been miled or in-

receipt May 8 of check of date May 7 from

jured by failure to give other reasons. Let-

collecting agent for amount of premium

ter stating that contract was never com-

due May 1st and failure to inquire whether

premium was overdue when paid held

before for nonpayment of premium. West-

walver. Security Mut. Life Ins. Co. v. Riley

on v. State Mut. Life Assur. Soc., 334 Ill. 492,

\[Ala.\] 47 S 735. General agent's return of

premium to company's collecting agent held

79. Treating policy in force by retaining

not return to insured so as to avoid waived

premiums and endeavering to adjust loss

on ground premium was not paid when due.

after knowledge of breach of conditions

Id. If notwithstanding forfeiture for fail-

cedent as to ownership and incumbrances

ure to mail premiums until after due

held waived. Allen v. Phoenix Assur. Co., 14

Insure applied proceeds of draft to premium

Idaho, 728, 95 P 829. Adjusted" examination

due without more, such action would be

of owners with reference to sale and loss

waived. Mutual Reserve Fund Life Ass'n v.

held no estopped to assert avoidance for un-

Tuchfeld \[C. C. A.\] 159 F 833.

sutrofeiture not waived: acceptance of late

pressily provided against waived in such caso,

premiums only after insurer was satisfied of

Mulrooney v. Royal Ins. Co., 157 F 598. Pay-

insert's good health and reinstatement after

ment of tos, procured by fraudulent repre-

ter medical examination held not sufficient

to waive right to forfeitor for subsequent

deniture. Palatine Ins. Co. v. Kehoe, 197 Mass.

Ins. Co., 187 Iowa, 184, 114 NWV 1051. Collec-

by accident and health company to make out

tion of premium note with express under-

randomise that policy had been forfeited for

company from invoking provision in policy

nonpayment on due date and that payment

should be for protection received before

forfeiture held no waived. Leages v. F

delity Mut. Life Ins. Co., 120 L 610, 45 S 532.

Vault v. U. S. Health & Acc. Ins. Co., 52

Unsuccessful efforts to collect overdue

mium note held not waived forfeiture already

refected in law by nonpayment at

turity, insured not having changed his position in any way. Iles v. Mutual Reserve

Life Ins. Co. \[Wash.\] 96 P 522. Provision

in premium note that if not paid when due

full premium shall be considered as having

been earned and note payable without

vivor or policy to ra valid (Duncan v. Missouri

State Life Ins. Co. \[C. C. A.\] 160 F 646), and 296 INSURANCE $ 16C.

title or interest of insured,"32 other insurance,"33 incumbrances,"44 increase of risk,"35 the iron safe,"58 vacancies,"67 or the transfer or removal of the property,"38 may be

note, allowing dividend, etc. Arnold v. Em-
delivery contained provision against con-

pire Mut Life Ins. Co., 3 Ga. App. 685, 60 SE

current insurance contrary to oral agree-

470. Where note for loan on policy gave

ment, and agent received premium without

company option to cancel policy for non-

notifying Insured of the manufacturer proh-

payment of premiums or of interest on

bitlon, forfeiture on ground of additional

note, acceptance of premiums when there

surance was waived. Hersch v. German Fire

was interest past due on note held not to

Ins. Co., 130 MO. App. 457, 110 SWY 23.

waive condition in note as to future payment

Agent's knowledge of outstanding insurance

of premiums. Wilson v. Royal Union Mut.

held waiver though agent did not know

Life Ins. Co., 137 Iowa, 184, 114 NW 1051.

amount of such insurance. Insurance Co. of

Payment in cash may be waived by accept-

North America v. De Loach & Co., 3 Ga. App.

ance of note or other obligation in lie of

807, 61 SE 406. Indersement by agent "5800

cash by authorized officers. Arnold v. Em-

additional concurrent insurance permitted"

pire Ins. Co., 3 Ga. App. 685, 60 SE 470. Proh-

held to refer to insurance in addition to that

vision that payment of premiums could be

vading that then being written, and not

made to certain authorized persons only on

production of receipt signed by head officers

merely to limit amount of insurance in add-

held waived where insurer knowingly action to amount of policy. Id. Company's re-

cepted premium money paid to agent who

tion of policy for over a month under

did not give the required form of receipt.

promise to amend it so as to consent to other

Matthews v. Metropolitan Life Ins. Co. \[N.\]

insurance taken out, insured having re-

C.J 61 SE 192. Company estopped to assert

quesed that policy be either amended or

nonpayment where insured relied on receiver-

canceled on account of such insurance, held

ing customary notice and stamped envelope

in which to send money and small receipt

\[Ark.\] 112 SWY 387. Immaterial that policy

book, Knoebel v. North American Acc. Ins.

stipulated company should not be bound by

Co. \[Wis.\] 115 NWY 1094. If after issuing

sots or statements of agents unless inserted

policy insurer authorizes or acqu acquisees in

in policy, Id.

sending of premiums by small, deposit in mail

s4. The ordinary loss payable clause does

in time to reach home office by time premium

is due will prevent forfeiture though pre-

Insured could not mortgage to conditional

mimu does not in fact reach such office until

sale vendor of part of property, remainder in

after due date and though policy provides

which mortgage had no interest when policy

that premiums shall be paid at insured's

sasued. Hartford Fire Ins. Co. v. Liddell Co.,

home office by a certain time. Mutual Re-

serve Fund Life Ass'n v. Tuchfeld \[C, C, A.\]

formed by insured he intended to place a

159 F 833. Agent's and company's retention

mortgage on the property replied that it

of renewal policy pending negotiations for

would make no difference held not to work

change therein on assurance that insured

waiver or estopped, especially where policy

would be protected until new policy was

authorized mortgaging of property if com-

sued held waiver of forfeiture for nonpay-

pany's consent was written thereon. Mc-

went of premium falling due in meantime,

Carty v. Piedmont Mut. Ins. Co. \[S. C.\] 62

conduct and statements of agent and insured

SE. I.

being such as to lead insured reasonably

to believe premium was not to be paid until

maintaining specified articles on premiums.

new policy was issued and delivered. Con-

German Am. Ins. Co. v. Hyman, 42 Colo, 156,

'inmental Casualty Co. v. Bridges \[Tex. Civ.

49 F 27. Assent to installation of acetylene

App.1 114 SWY 170. Agent's statements that

phant and knowledge that it was in house

he was attending to fire policy and that if

when assignment of policy was allowed held

hone burned insured would get his money

to preclude assertion of increase of risk by

held not to justify insured in assuming that

the gas plant. Furbush v. Consolidated Pa-

he could recover despite delay ln paying

froms' & Farmers' Mut. Ins. Co. \[Iowa\] 118

premium, Johnson v. Continental Ins. Co.

NW 371.

\[Tenn.\] 107 SWY 688.

S2. Agent's knowledge as to absolute own-

kept in an iron safe held waiver by insur-

crshly. Plunket v. Piedmont Mut. Ins. Co.

ing on application showing insured kept no

\[S.

thus affected. The rule that a landlord cannot excuse a breach by showing it was the act of his tenant without his knowledge has no application where the insured expressly consents." When a forfeiture is once waived, it cannot afterwards be invoked."

The acts, declarations and knowledge of insurer's agent\*1 are those of insurer," when the agent acts within the scope of his authority." Insurer cannot therefore,

such requirements. Plunkett v. Piedmont Lite Ins. Co. v. Howell, 32 Ky. L. R. 935, 107 Mut. Ins. Co. \[S. C.\] 61 SE 893; Hankinson v. Piedmont Mut. Ins. Co. \[S. C.\] 61 SE 905. Judgment for insured on finding that insurer with source each information was divided court. Slawson v. Equitable Fire has Co. \[S. C.\] 69 SE 782.

87. Objection that premises had been vacant for five days without permit held waived by issuance of permit for further vacancy. National Mut. Fire Ins. Co. v. Duncan \[Co.\] 98 P 634. Agent's knowledge that building insured as school house was not occupied at night or during school vacations held to setup company to set up vacancy clause. Mississippi Home Ins. Co. v. Stevens \[Mins.\] 46 S 246.

SS. Agents's knowledge that insured goods were removed to another place and failure of insurer to cancel policy and return unearned premium. McIntyre v. Liverpool, London & Globe Ins. Co. \[Mo. App.\] 110 SW 604. Waiver not affected by worde insuring property while contained in a specified building "and not elsewhere." Id.

s9. Where agents without landlord's knowledge permitted tenants to generate gasoline vapor. German Am. Ins. Co. v. Hyman, 42 Co. 156, 94 P 27.

90. Company's letter that unless overdue note was paid at once it would be returned and insurance canceled held waiver where, when letter reached insured, he was unconcious and died next day and widow thereafter remitted payment. New England Mut. Life Ins. Co. v. Springgate \[Ky.\] 112 SW 681.

01. Knowledge of one taking application, receiving premium, and delivering policy, as to ownership of property and incumbranes, held knowledge of company, where latter accepted application and premium and issued policy thereon, company not being in position to assert such person was not its agent. Allen v. Phoenix Assur. Co., 14 Idaho, 728, 95 P 829. Breceiver affecting insurance without being employed by insurer but on commission on premium received for such risks as insurer chooses to accept is not agent of insurer so that notice of transfer of property to brokers who affected insurer and divided commistions with insurer's agent was not binding on company. Ameri- can Steam Laundry Co. v. Hamburg Bremen

01. Agent's knowledge that of company. Reader v. State Mut. Life Ins. Co., 78 S. C. 56, 90 SE 1106. Rule as to agents' knowledge be- ing company's knowledge applies to mutual assessment companies. Hankinson v. Piedmont Mut. Ins. Co. \[S. C.\] 61 SE 905; McCarty

01. Piedmont Mut. Ins. Co. \[S. C.\] 62 SE 1. Rule applicable whether form or substance was not being used by agent's knowledge of facts respecting to the agent's knowledge of facts respecting to the agent's knowledge of arguments. He received a message of opinion in his country. He received a message of opinion in his country.

298

INSURANCE $ 16C.

18 Cur. Law.

set up the falsity of answers written by the agent after he was truthfully informed," or base avoidance on matter contained in the application but not known to insured because of the agent's fault," nor can it predicate rights upon a construction of a question asked insured which is at variance with that made when the insurance was written." Authorities disagree on the effect of clauses prohibiting or regulating waivers or agreements on the part of agents."

knowledge it was overdue, and this though

company's contract with him unbeknown to

Ins. Co. v. Clark, 41 Ind. App. 345, 83 NE 760.

public prohibited such action on his part.

Security Mut. Life Ins. Co. v, Riley \[Ala.J\]

47 S 783. Where agent has actual authority

of policy of insurance against loss by bur-

to solicit insurance, take and forward appli-

action, deliver policy, collect premium and

continue negotiations for change in policies,

and latter cannot escape liability on ground

stopped against forfeformer for nonpayment

of premium is the same as it would be in

case of an individual insurer, himself present

and acting. Continental Casauty Co. v. S. 449.

Bridges \[Tex. Civ. App.\] 114 SW 170. Evidence led to warrant finding of stepped to

policy provides that agreements or waivers

premium for. defendant. State Life Ins. Co. v, Murray \[C. C. A.\] 159 Y 408. Company is

not bound by statements of agent not in

conmany. Consent to incumbrance. Mul-

course of his employment. Agent's promise

after execution of policy that he would take

care of it and not allow forfeforfor

nonpayment of premiums held not admissible in

evidence. Johnson v. Continental Ins. Co.

\[Tenn.\] 107 SW 688. To authorize recovery

on ground of agent's extension of time for

payment of premium note, insured must

show not only agency but that continuing

policy in force was within real or apparent

scope of agents authority. American Ins.

Co. v. Hornbarger, 85 Ark. 387, 108 SW 213. Authority to solicit, receive and write appli-

actions, receive and deliver policies and collect premiums, held not to authorize agent

to continue policy in force by extending time

for payment of premium note (Id.), nor to

empower him to waive proof of loss as re-

quired by policy (Id.).

94 United States Health & Acc. Ins. Co. v, Clark, 41 Ind. App. 345, 83 NE 760; Iowa Life

Ins. Co. v, Houghton \[Ind. App.\] 85 NE 127. One who solicits insurance, takes application, receives premium and delivers policy

is at least, for these purposes, company's

agent (Allen v. Phoenix Assur. Co., 14 Ind.)

728, 95 P 829), and it he writes down false

statements after he has been truthfully

informed, his knowledge will be imputed to

company (Id.).

95. Insurer is estopped to set up falsity of

answers in application where insured signs

same, not knowing contents, on assurance

of insurer's agent, that it was prepared

according to insurer's regulations. Roe v. Na-

tional Life As'n, 137 Iowa, 696, 115 NW 600.

Insured held not bound by answer in

pplication as to existing incumbranes

where same was written by agent who had

not inquired of insured relative there

and insured had no knowledge of such

answer when he signed application. Holten-

beck & Co. v. Mercantile Town Mut. Fire

Ins. Co. \[Mo. App.\] 113 SW 217. Evidence sufficient to prove that insured had no

actual knowledge of contents of application

or policy but relied on agent who failed to

call his attention to all the statements or negligently checked statements without

reading them. United States Health & Acc.

company's contract with him unbeknown to

Ins. Co. v. Clark, 41 Ind. App. 345, 83 NE 760. Where agent in filling out application

for policy of insurance against loss by bur-

47 S 783. Where agent has actual authority

glary or laremy consumes a certain question

solect of applicent to suit the circumstances

of the particular case, he acts for insurer,

continue negotiations for change in policies,

and latter cannot escape liability on ground

of incorrectness of a statement in applica-

of memoritness to have on a contrary construction. Kan-

and acting. Continental Casauty Co. v, S. 449.

Bridges \[Tex. Civ. App.\] 114 SW 170. Evidence led to warrant finding of stepped to

policy provides that agreements or waivers

premium for. defendant. State Life Ins. Co. v, Murray \[C. C. A.\] 159 Y 408. Company is

to policy, verbal agreements are not binding

on company. Consent to incumbrance. Mul-

course of his employment. Agent's promise

after execution of policy that he would take

laws, 1897, SS 1750, making persons acting for

payment of premiums held not admissible in

evidence. Johnson v. Continental Ins. Co.

in "scope of his employment." Id. Fro-

on ground of agent's extension of time for

system against agent's modification of vaviv

or of terms except by written

advent of terms except by written 18 Cur. Law. INSURANCE SS 17. 399

(SS 16) _D. Reinstatement._ See 10 C. L. \*\*\*.--A fire policy cannot be reinstated after destruction of the subject-matter." Health policies often provide that insurer shall not be liable for any illness originating within a specified time after reinstatement."

SS 17. _Contracts of reinsurance and concurrent insurance._ Reinsurance.\_ See 10 C. L. \*\*\*.--The power of companies to reinsure is treated in a previous section.1 Modifications of the contract must be clearly proven." The reinsured need not pay the loss before proceeding against the reinsurer unless there are controlling provisions in the contract." The usual rules of procedure apply.4

_Concurrent insurance._ See 10 C. L. \*\*\*.--Breach of conditions has been treated in an earlier section." The policy sometimes requires insured to take out concurrent insurance" or become a coinsurer in default thereof." Often it is agreed that the

his actual or apparent authority may waive

required was company's knowledge, though conditions in the policy, notwithstanding by-laws provided agents had no power to express prohibition therein. United States

waive conditions as to safe or books. Plun-Health & Acc. Ins. Co. v. Clark, 41 Ind.

insurance shall not attach until all specific insurance has been exhausted.1 The extent of the liability of coinsurers is treated in the next section."

SS 18. _The loss or benefit, its extent, and extent of liability therefor_.See 10 C. L. 380 Questions relating to interest, attorney's fees and penalties are treated in the section on remedies and procedure,10 except the right of employers to interest and costs recovered from them by employees.11

_Accident and health insurance_.See 10 C. L. 380. The policy controls as to amount of indemnity and the period for which the same can be recovered.12 Sometimes it is provided that any one of several promised indemnities shall be in lieu of the others,13 in which case insured may be put to an election.14 Provisions limiting or increasing the indemnity if illness, injury or death should result from specified causes are common.15

_Credit insurance_.See 10 C. L. 380. Employer's liability insurance.See 10 C. L. 380. If insurer is duly notified of the action against insured, it will be bound by the judgment therein, though it makes no appearance.16 The policy often gives insurer the right to settle or defend the suit against the employer at its own cost,17 and prohibits the latter from interfering or from voluntarily assuming or incurring any liability or expense.18 If

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the insurer agrees that insured may settle with the employe and be entitled to the same rights as if he had paid a judgment for the amount paid in settlement, the intention of the parties in making the settlement will of course control as to the amount due under the policy.19

\_Fire insurance.\_See 10 C. L. 181--Depending on the terms of the policy and subject to statutory regulations,20 recovery may be _to_ the extent of the actual cash value of the property,21 or a certain per cent thereof.22 Policies insuring rents often require insured to rebuild or repair as soon as practicable.23 By express stipulation, only the assets of the company named in the policy may be reached in satisfaction of policy demands.24 Under so-called coinsurance clauses, each insurer's liability is generally determined by the proportion the amount insured by it bears to the total amount of insurance.25

\_Valued policy laws.\_See 10 C. L. 181--Stattutes in many states render the insurer liable, in case of total loss for the full amount of insurance specified in the policy,24 and prohibit the taking of risks in excess of a given fraction of the value of the property.27

incurred by him in defending employee's suit -- Maas, 380, 85 NE 174. Under fire policy IIn-after company had disclaimed all liability -- and withdrawn from the case. Sanoval amount thereof bore to "whole insurance Zinc Co. v. New Amsterdam Casualty Co., 140 III. App. 247.

19. Where settlement and consent thereto were silent as to whether amount paid by employer in part covered injuries sustained by same employee before policy was issued, or exceeded by some employee held admissible to show that whose amount was in settlement of injury -- Fire Ins. Co., 116 App. Div. 723, 102 NYS 82. covered by policy. Moran Bros. Co. v. Pacific Coast Casualty Co., 48 Wash. 529, 94 P 106.

20, 21. Under policy insuring straw hats to extent of actual cash value "not to exceed what it would then cost the insured to re-par or replace the same with material of like kind and quality," insured held entitled to actual cash value, where goods could be neither repaired nor replaced in time to be of any value. Phillips v. Home Ins. Co., 128 App. Div. 528, 112 NYS 769.

22. Under policy rendering company liable for 80 per cent of cash value of property, evidence held to justify finding that loss occurred after 8:55 a. m., June 8, 1905, that oash value of cotton Insured was 8:55 entents per bound when loss or damage occurred. McFadden v. Liverpool & London & Globe Inc. Co., 162 P 783.

01. Where fire insurance policy insuring rents required insured to rebuild or repair as soon as nature of case would permit, it was presumed plaintiff took possession as soon after fire as possible. Palatine Ins. Co. v. O'Brien, 107 Md. 341, 68 A 48. In-struction against recovery for loss between fire and time plaintiff took possession held unauthorized without evidence of delay in taking possession, Id.

01. Provision that capital stock and funds of company named as insurer in policy shall alone be anwreakble to demands theruenter and that stockholders should not be liable beyond amount of stock, not only exonerated stockholders but also precluded recovery against another company claimed to be un-disclosed principal. Western Sugar Refining Co. v. Helvetia Swiss Fire Ins. Co., 163 P 644.

01. Cutting v. Atias Mut, Ins. Co., 193

01. Under Wilson's Rev. & Ann. Sci. 1908, 3204, providing that "if there is no valuation in the policy the measure of indemity in an insurance against fire is the full amount stated in the policy," measure of indemity in case of total loss is full face value of policy, in absence of valuation therein, and plaintiff need not prove actual value of property at time of loss. Oklahoma Farmers' Mut. Indemity Ass'n v. McCordle \[OKL\], 97 P 270. Instruction authorizing recovery of full amount of insurance specified in policy held proper notwithstanding claim of overvaluation of the property, under Code of Laws 1902, SS 1816, 1817, prohibiting is-suance of policies for more than value of property stated in policy, to be fixed by parties, authorizing recovery of full amount in case of total loss, and estopping companies after 60 days from denying truth of statements in application, except for fraud, parties having agreed on $5,000 as value on which $1,500 insurance was granted, total loss occurring within 60 days, and court having properly submitted question of fraud. McCarty v. Piedmont Mut. Ins. Co. \[S. C.\] 62 SE.

01. Rev. St. 1899, SS 7979 (Ann. St. 1906, p. 3793), prohibiting insurance companies from taking any risk for more than three-fourths of value of property insured, and providing that when taken its value shall not be questioned in any proceeding, applies to insurance of personally, Gragg v. Northwestern Nat. Ins. Co. \[Mo. App.\] 11 SW7 184. In case of total loss, insured is entitled to amount of insurance stated in policy less de-preciation in value or quantity. Id. State-ute is a direction to companies not to insure for more than three-fourths value, and when value is fixed it cannot be denied that sum
    \_Life insurance.--\_The policy often provides for the deduction from its face value of any indebtedness of insured to the company,\[28\] and sometimes for adjustment of the insurance for understatements as to age.\[20\]

\_Title insurance.--\_When the contract is one of indemnity and not of guaranty, recovery is limited to loss actually sustained.\[30\]

SS 19. \_Notice, claim, and proof of 188.\_See 10 C. L. 882.--\_Proof of loss as evidence are discussed in the last section,\[31\] and all jury questions are also there collected.\[31\] Subject to waiver\[38\] or other excuse sufficient in law,\[34\] notice and proofs containing the required information\[35\] must be given\[36\] within the time prescribed\[37\] or within

fixed is three-fourths value of property, caused by his being run over held sufficient Crossam v. Pennsylvania Fire Ins. Co. \[Mo.\], as notice of happening of accidental required App.113 SWV 704. Where personality was insured for gross premium in gross sum of \[Iowa\] 116 N NVV 1046. Requirement that Ins.\[36\] divided into three separate classes of different kinds of property, contract was negative that names of witnesses to accident severable, and should be construed as though

about of insurance assigned to each class

**Employer?'s liability Insurance.** Statement was three-fourths of value of property included in the particular class. Id. If Insured goods are totally destroyed, recovery is for full amount insured, unless goods had

**expected by carpenders,** held not failure to depreciated in value since policy issued, in which event recovery would be face value of policy less depreciation (Mcnftype v. Liverpool, London & Globe Ins. Co. \[Mo. App.\] 110 SNV 604); if not totally destroyed, difference between their reasonable value before and after fire is amount of recovery (Id).

**28.** Policy held to render notes given for a premium with interest proper charge against amount of policy, Southwestern Ins. Co. v. Woods Nat. Bank \[Tex. Civ. App.\] 20

**29.** Under provision for adjustment of Insurance for understatement of age, equitable adjustment after death consists in paying beneficiary such amount as premiums actually paid would have insured at three age of insured. Keenan v. Mutual Life Ins. Co. \[N. J. Law\] 11 A. 37.

**30.** Policy insuring against unmarketability of title to estate, mortgags or interest in certain reality covered by mortgage held by plaintiff as collateral, and also guaran-teeing completion of certain buildings, held contract of indemnity, and not guaranty, so that plaintiff, having purchased mortgage at full amount of loan as authorized, was without loss and could not show defect in title or noncompiction of buildings, in action on policy. Wheeler v. Equitable Trust Co. \[Pa.\] 70 A 750. Immaterial that plaintiff and not a stranger purchased mortgage, and that only other bidder was insured borrower. Id.

**31.** See post, SS 24C, subd. Evidence,

**32.** See post, SS 24C, subd. Questions of Law and Fact.

**33.** See post, Waiver.

**34.** Provision requiring notice of an accident on pain of forefetture will not be construed to require strict performance when performance is made impossible by act of God, as where insured becomes mentally de-ranged. Reed v. Loyal Protective Ass'n \[Mich.\] 15 Det, Leg. N. 648, 117 NWV 600.

**35.** Accident Insurance: Letter stating insured was found. dead in nighttime on railroad track and that apparently death was * 12 Cur. Law. Insurance $ 19. $ 803

a reasonable time if the policy contains no controlling provision on the subject\* or requires notice or proofs immediately;\*\* but failure to furnish proofs will not work a forfeiture unless it is expressly so provided in the contract,\*\*40 \*\*nor will delay have such effect if insurer fails to furnish blanks for proofs as agreed.\*\*41 \*\*Unless so stipulated, no particular words are necessary in request for blanks for proofs.\*\*42 **False swearing.** See 10 C. L. 804--An affidavit overstating value of the property destroyed will not avoid the policy where the actual value exceeds the insurance.\*\*43 \*\*as stipulated in policy, held no defense. Mis-issippi Home Ins. Co. v. Barron \[Miss.\] 45 **for expiration of the twelve months bars rc-s** \*\* * \[12\] **C. L. 394**, **C. L. 394**, **C. L. 395**, **C. L. 396**, **C. L. 397**, **C. L. 398**, \*\*C. L.

12 Cur. Law. INSUANCE SS 23.

acter of the loss is important in determining the necessity of hearing the parties at the appraisers' meeting.\[50\] The appraisers are not the agents of the persons selecting them,\[60\] and the latter are not precluded from complaining of the former's decision because of the selection.\[61\] Fraud is ground for complaint,\[62\] but unless set aside for such or other equitable ground the appraiser's award is conclusive.\[63\] Jury questions are postponed for subsequent treatment.\[64\]

SS 21. _Option to pay loss or restore property, or to take damaged property at appraised value_,See 4 C. L. 210

_Burglary insurance_,See 10 C. L. 398

_Fire insurance_,See 10 C. L. 396

_Plate glass insurance_,--Where insurer elects to replace broken glass it impliedly agrees to do so within a reasonable time.\[65\]

SS 22. _Payment of loss or benefits and adjustment of interests in proceeds_.See

10 C. L. \*\*\*-Matters relating to compromises\[66\] and releases\[67\] are elsewhere fully treated. The question of payment is usually one of fact.\[68\] Where proofs are waived, benefits otherwise due a specified time after filing will be due at the expiration of such period after the waiver.\[69\] Policies sometimes authorize insured to make payment to any person equitably entitled to the fund by reason of having incurred expense on account of insured.\[70\] A provision making the company's production of a receipt given by the representative of insured or legal beneficiary conclusive evidence of satisfaction of the policy does not authorize payment to the legal representative as against a beneficiary whose rights are fixed by the policy.\[71\] The proceeds of life policies are exempt from the claims of creditors in many states\[72\] and the proceeds of fire policies on exempt property are usually exempt.\[73\]

SB. Where, before destruction or after partial destruction leaving sufficient to show size, architecture, and quality of material,\[71\],

- 63. Under fire policy. Mayer v. Phoenix ed building, hearing and opportunity to introduce evidence of value need not be granted (Cariston v. St. Paul Fire & Marine Ins. Co., 37 Mont. 118, 94 P 756), but, where strangers are selected to estimate loss after total destruction of property, notice of time, place of appraisers' meeting and oppor.
- 64. Control to recover delay. Id. Landa-tunity of parties to be heard is essential to validity of award (Id.).
- 65. Carliston v. St. Paul Fire & Marine Ins. Co., 37 Mont. 118, 94 P 756.
- 66. Traud in appraisal in behalf of several companies' utilities as to innocent as well as guilty companies. Meyer v. Phoenix Asaw.
- 67. See Release, 10 C. L. 1502.
- 68. Evidence sufficient to authorize finding that insured had never received check for Vojc, 124 App. Div. 241, 108 NYS 711. Pev-weekly indeminity mailed him by company, and which, if received, would have precluded aside award of appraisers for fraud held not to join improper defendants where insured had appointed one appraiser, the two companies one, and the two appraisers had appointed an unmpire, though there were two policies, one issued by each defendant. Id.
- 69. Where by-law provided weekly bene-produced an unmpire, though there were two files of satisfactory proofs, and proofs were waived, perfold must be computed from date of waiver. McClure v. Great Western Acc. Ass'n \[Iowa\] 118 NVE 269.
- 70. See ante, 11.
- 71. Provision, on effect of production by company of policy and receipt for amount thereof, signed by person proving to satisfaction of company that he is personal rep-resentative, husband, wife or lawful benefit-clary. Smith v. Mentropolitan Life Ins. Co.
- 72. See, also, Exemptions, 11 C. L. 144.
- 73. DeGroot who became such after issanance of policy cannot claim proceeds as against des

## 8 23. Subrogation and other secondary rights of the insurer

See 10 C. L. 399

When an insurer pays the insured the total amount of the loss it becomes subrogated by operation of law to all of the assured's rights of action against third persons responsible for the loss,74 and it may set up in defense of an action on the policy

ignated beneficiary. Lehman v. Gunn \[Ala.\] \[11Bradw.\] 240; Smith v. Rateliff, 66 Misa. 46 S 620. Act Feb. 18, 187 (Gen. St. 1896-97, p. 1377), entitled "an act to regulate the upon Wvooster v. Page, supra, and disapprov-business of insurance in this state," must be construed as to constitutionality in form in which it was orginally enacted without reference to codification, having been merely copied into Code of 1896 by act of codifier.

Is the furniture (i. e. the property insured) Rayford v. Faulk \[Ala.\] 45 S 714. Section 22, p. 1893, exempting insurance money from claims of creditors of insured or beneficiary held cognate to and embraced in title of act.

I. Fund held not garnishable by creditors of beneficiary. Id. Policy payable to insured's estate is exempt from creditors as against claims of wife and children, under Code 1896, $ 2607, though wife and children are also mentioned in statute as persons who may be beneficiaries. Mitchell v. Allie \[Ala.\] 47 S 715. Proceeds of life policy rests in beneficiary and may not be subjected to insured's debits without form-er consent regardless of solvency or insured when he paid premiume. Johnson v. Bacon \[Mis.\] 45 S 858. Under attute exempting to amount of $10,000 proceeds of insurance policies payable to a designated beneficiary from liability for insured's debits, proceeds in excess of that sum are liable for premiums paid by insured while insolvent to keep up entire policy, not merely such excess. Id. Under Ky. St. 1908, $ 656, giving proceeds of life policies to lawful beneficiaries designated therein as against creditors of representatives of insured, policy on life of bankrupt, payable to wife, does not pass to truste. In re Pfaffinger, 164 F 626. Question not affected because insured was authorized by policy to change beneficiary and, after bankruptcy, applied for surrender value which company did not pay. Id.

73. Consult, also, the topic Exemptions, 11 C. L. 144.

NOTE. Garnishment proceeds: Defendant company being indebted upon a policy of insurance to plaintiff, and plaintiff being a judgment debtor of one, is the latter used out a writ of garnishment against defendant company. The company answered admitting its indebtedness, whereupon plaintiff intervened, claiming the money. The property insured was used by plaintiff in his business as a restaturate and was exempt from execution. Held, that the proceeds of an insur-ance policy on articles exempt from execution are not subject to garnishment in the hands of the insurance company. Geise v. Pennsylvania Fire Im. Co. \[Tex. Civ. App.\]

The narrow issue here presented has caused the courts considerable difficulty, giv-Ing rise to two distinct lines of authority reaching diametrically opposite conclusions.

L. The Courts of New Hampshire, Illinois, and Mississippi hold that an insurance company is liable as garnishee of the insured as after a loss though the property insured was exempt from attachment and execution.

V. Page, 54 N. H. 125, 20 Am. Rep. 128; Monnieva v. German Ins. Co., 12 Ill. App.

an unauthorized settlement by insured with the wrong doer;" but insurer takes nothing by subrogation but the rights of the insured," and the rule first stated has been held inapplicable to accident insurance."

SS 24. \_Remedies and procedure. A. Rights of action and defenses, parties and limitations.\_See 10 C. L. 440--Matters relating to venue 18 and process 76 are treated elsewhere.

\_Bights of action and defenses.\_See 10 C. L. 440--A provision that suit must be brought only in the highest court of original jurisdiction is against public policy." Prior reformation is not essential to recovery in an action on a written policy not expressing the actual agreement entered into." A tender of less than what was due is no defense."

\_Parities.\_See 10 C. L. 441--Action must be by or in the name of the party in interest88 or the person having legal title," and against insurer or underwriters or some one agreed upon to defend." Where a life policy is pledged to insurer and, on default, it makes an invalid sale thereof, the beneficiary may sue the insurer on the policy after death of insured."

\_Time of commencing action.\_See 10 C. L. 441--A provision postponing action for a specified time after filing of proofs of loss is waived by insurer's denial of all liability under the policy."

\_Limitations.\_See 10 C. L. 441--Contract limitations where valid" must be complied with " in the absence of fraud, estoppel," or waiver."

268. Insurance company subrogated under clause forbidding concurrent Insurance. policy to rights of cotton owner against Hearsh v. German Fire Ins. Co., 130 Mo. railroad company from whose locomotive App. 457, 110 SWY 23.

sparks were thrown. Sea Ins. Co. v. Vicksburg S. & P. R. Co. \[C. C. A.\] 159 F 676.

for which polly authorized recovery held In snt by insured against wrongdoer, after insufflenet as defense. Vicks V. London & collection of insurance money not sufficient to cover entire loss, for recovery of whole amount thereof, held permissible, under Code plesding, for insurer to file cross complaint setting out defendant's wrong and plaintiff's damage substantially as alleged in plaintiff's color-coded, and could not have complaint, and asserting equitable assignment to it' of a stated portion of whatever plaintiff might recover, such procedure not being objectionable as a splitting of the cause of action Lake Erle & W. R. Co. v. Inso. Co., 110 NYS 77.

Hobbs, 40 Ind. App. 511, 31 NE 90. Right of subrogation is valuable and material to risk. Fire Ass'n v. La Orange & Lockhart comprise Co. \[Tex. Civ. App.\] 108 SVV 114.

Ill. App. 642. Suit in name of insured "for 75. To sustain defense of settlement with wrongdoer so as to prevent operation of sub-l.

Id.

rogation clause, it must appear that there actually was a claim against the alleged wrongdoer, and that insured without insurer's consent actually released such claim, the underwriters, suit was properly brought Merchanits' Underwriters v. Parkhurst-Davits Mercantile Co., 140 III. App. 504. Evidence in insufflenet. Id.

76. Southern R. Co. v. Blunt, 165 F 258.

01. Company making payment under accident policy does not thereby become subrogated to rights of insured against person responsible for accident, rule not being same as in case of fire insurance. Gatzwell- or V. Milwaukee Else, R. & L. Co., 138 Wie.

84, 116 NWY 638. Insurer not necessary party in personal injury suit. Id.

78. See Venue and Place of Trial, 10 C. L. 1186.

01. See Proces, 10 C. L. 1162,

01. Blair v. National Shirt & Overalls Co., 137 III. App. 413.

01. Where insured had not agreed to
    (SS 24) \_B. Pleading and practice.\_See 10 C. L. 402.--The usual rules of pleading apply,92 including those relating to amendments93 and exhibits.94 Waiver95 or

ble. Gill v. Manhattan Life Ins. Co. \[Ariz.\] -- ties to state to secure prompt payment of 95 P 89. Held applicable to infant. Id. claims, and not to show bond had expired Action on accident policy within two years held timely under statute, notwithstanding policy contained nine-month limitation. Keep- short v. Continental Casualty Co. \[N. D.\] 116 sect complaint. Id. Plea "defendant did NNV 349.

89. Contract limitation held applicable to infant. Gill v. Manhattan Life Ins. Co. \[Ariz.\] 95 P 89. In action on policy repairing suit to be brought within six months after disability terminated or assumed a permanent character, suit. being brought after slx months from time of injury, evidence as to gradual improvement in health held to justify jury in finding injury had not assumed a permanent character though petiton, before amendment, asserted permanent character of injury. McClure v. Great West- orren Acc. Ass'n \[Iowa\] 118 NW 26. Provision in fire policy, requiring suit thereon to be brought thereon within one year after fire, relates to original suit and does not require error to be sued out within same time. Helbig v. Citizens' Ins. Co. \[N. J. Law\] 69 A 724. 251, 84 NN 897. Under provision in employ- er's liability policy, requiring action to be brought within 60 days after final judgment against assured and payment and satisfaction of same on record, action two days before satisfaction of judgment held premature. United States Tube & Iron Co. v. Maryland Casualty Co., 220 Pa. 42, 68 A 1026.

01. Allegation that defendant "purposely and willfully" concealed contents of appilation containing limitation of action to induce plaintiff to delay suit, and "purposely, willfully, and with intent to defend." Induced her to delay bringing action until expiration of time therefor, held insufficient to show fraud or estopped so as to preclude company from pleading contract limitation. Gill v. Manhattan Life Ins. Co. \[Ariz.\] 95 P 89. Contract limitation as to time of bringing suit held waived by letter of company's counsel explaining delay in taking up the matter of settlement. Dolsen v. Phoenix Preferred Acc. Ins. Co., 151 Mich. 228, 14 Det. Leg. N. 894, 115 NW 50. Provision requiring suit to be brought within six months from time of injury held waived, where general manager advised plaintiff to wait till he got well before filling final proofs and company made no objection when blanks were applied for after expiration of the six months. Mastenbrook v. U. B. Acc. Ass'n \[Mic.\] 15 Det. Leg. N. 691, 117 NW 543.

01. Count charging insurer with fraudulently procuring money on policy could not be joined with common counts in assumption and counts alleging breaches of contract of insurance. Price v. Mutual Reserve Life Ins. Co., 107 Md. 374, 68 A 685. Pethion held to state cause of action under accident policy where insured died of blood poisoning following scratch of finger, name not being objectionable as showing that death resulted from exceeded peril. Rheinhelmer v. Aetna Life Ins. Co., 77 Ohio St. 260, 83 NE 491. Compilaint held to state cause of action for breach of head given by company and sure- or other excuse for breach of condition \*\* must be pleaded. Where defendant pleads violation of a restrictive clause, plaintiff may plead waiver or estoppel without first having the contract reformed so as to embody the waiver." If plaintiff has been released from performance of any condition, he should aver such facts in his petition," but mere defensive matters can be met by reply." In an action on a fire policy the complaint must allege the contract," plaintiff's interest therein," the loss and notice thereof," the value * and location * of the property lost or damaged, and that the sum claimed is due and payable."

As a general rule insurer must specially plead defenses based on breach of warranties, conditions or representations," failure to furnish proofs," facts limiting the

transfer is attached to policy as a rider by direction of transferee and does not contain terms of contract of transfer. Mutual Reserve Life Ins, Co. v. Ross \[Ind.\] 86 NE 506.

**DS.** Waiver of deficiency in proofs of death broken must be specially pleaded. Ameri-Metropolitan Life Ins. Co. v. Wagner \[Tex. Civ. App.\] L09 SW 1120.

**06.** Reply held to sufficently, though in-apply, aver insimality of insured at time he burned the property. Bindell v. Kenton County Assessment Fire Ins. Co., 33 Ky. L-R. 385, 108 SW 325.

**97.** German American Ins. Co. v. Hyman, 42 Colo, 156, 94 P 27.

**98.**, 90.\*\* Burigary and lareny insurance.

Kandar v. Aetna Indeminity Co., 10 Ohio C.

C. (N. S.) 449.

**1.** Petition alleging that defendant by written policy for stated consideration by contract insured plaintiff against loss by fire held to contain a sufficient statement of contract for indeminity against such loss and of defendant's promise to pay. Rogers v.

**58.** Bawnee Fire Ins. Co. \[Mo. App.\] 111 SW SW 592.

**2.** Declaration that policy was payable to estate of P but plaintiff were parties really interested and were the beneficial owners of policy and that legal and equitable title \[the\] was issued and at time of loss held not denumerable.

**48.** Alllegation that insured "assigned, transferred and delivered" policy to plaintiff held sufficient to admit proof of a gift. Mc-Nevins v. Prudential Ins. Co., 57 Misc. 608, 108 XYS 746. Averment that company had in writing consented to assignment of policy held not denumerable. Home Ins. Co. of New York v. Myers, 32 Ky., L. R. 999, 107 SW 719.

**2.** Must allege notice of loss. Hilyun v. Phoenix Ins. Co., 129 Mo. App. 670, 108 SW 576.

**4.** Hilburn v. Phoenix Ins. Co., 129 Mo. App. 670, 108 SW 576.

**5.** Petition bad for not stating that property was in building described therein. Hillburn v. Phoenix Ins. Co., 129 Mo. App. 670, 108 SV 576. Allegation that property was in country in which action was brought held jurisdictional. Id.

**6.** Hilburn v. Phoenix Ins. Co., 129 Mo. App. 670, 108 SV 576. Allegation that insurance was due though a mere conclusion held sufficent to support judgment. Rogers v. Shawnee Fire Ins. Co. \[Mo. App.\] 111 SW SW 592. Allegation that defendant company had refused to pay amount due on policy was not equivalent to allegation of nonpay- liability," payment under special provision in the policy,"\[16\] limitations," and the statutes of other states.\[12\] Deductions for unpaid premiums must also be claimed in the pleadings.\[18\]

_Variance_.\[800\] 10 C. L. 408

_Practice_.\[80\] 10 C. L. 404--It is proper to proceed in equity when the remedy at law is inadequate.\[14\] When there are rival claimants to the proceeds of a policy, interpleader will lie.\[15\]

(SS 24) _C. Evidence; questions of law and fact. Presumptions and burden of proof_.\[80\] 10 C. L. 404--Plaintiff must prove the contract and that it was in force at the time of the loss.\[16\] When the proofs of loss show facts rendering insurer not liable, the burden is on plaintiff to prove error.\[17\] If an excepted peril contributes to a loss, insured must show the extent of the damage done by the peril insured against.\[18\] Delivery of a policy prima facie acknowledges receipt of the first premium \[19\] and casts upon the insurer the burden of showing nonpayment.\[19\] If the policy is delivered without demand for the first premium, the presumption is that credit was extended.\[21\] The burden is on insurer to show affirmatively the existence of grounds of forfeiture,\[22\] such as breach of warranty or condition,\[23\] or

- Where company's liability is limited by a separate clause following a general one, butrend is on insurer to plead and prove facts and therefore subsequent clause operative. General Acc. Ins. Co. v. Hayes \[Tex. Civ. App.\] 113 SVW 990. Insurer held not entitled to benefit of evidence showing illness limiting its liability, not having pleaded each illness. \[19\] If an excepted peril contribute to the liability, not liable, or liable.\[20\] If an excepted peril contribute to any relative or connection by marriage, etc., and payment to insured's husband, held not deurrable for failure to aver that plaintiff, original beneficiary, had consented to be replaced by any other beneficiary. Metropolitan Life Ins. Co. v. McCray \[Ala.\] 47 B 65.
- Limitations not available, insurer not having given notice of defenses as per court rule. Hare v. Workringment's Mut. Protective Ase'n, 151 Mich. 225, 114 Det. Leg. N. 897, 114 NUV 1009. That causes of action alleged were discovered by plaintiff more than three years before suit and policy was canceled as directed by mutual consent held sufficient by patients of limitations. Price v. Mutual Reserve Life Ins. Co., 107 Md. 374, 68 A 689.
- Failure to plead statute of another state as to validity of provisions limiting time for making proof of claim and commencing suit held to preclude reliance thereon. Kephart v. Continental Casualty Co. \[N. D.\] 116 NUV 849.
- Nephart v. Continental Casualty Co. \[N. D.\] 116 NUV 349.
- Field proper to proceed in equity to enforce fire policies where insurance association was unincorporated and composed of large and shifting membership, and accounting was necessary and trust fund involved. Williamson v. Warfield, Pratt, Howell Co., 136 Ill. App. 168; Warfield, Pratt, Howell Co. v. Williamson, 233 Ill. 487, 84 NE 706; Merchants' Underwriters v. Parkhuret-Davis Mercantile Co., 140 Ill. App. 504.
- Player held sufficient to justify specific performance. Williamson v. Warfield, Pratt, Howell Co., 136 Ill. App. 168.
- Similar to the case of a policy

## 13 Cur. Law. INSURANCE SS 24C.

fraud, misrepresentation or materiality to risk,\[34\] and also to show excepted risks,\[28\] such as self-inflicted injury or suicide.\[24\] Presumptions in favor of plaintiff are not destroyed by defendant's verification of a plea of general issue.\[27\]

_Evidence.\[58\]_ 10 C. L. 404.\_The usual rules of evidence apply,\[28\] including those as to admission of expert and opinion evidence,\[29\] privileged communications,\[34\] transactions or communications with deceased persons,\[31\] parol evidence,\[32\] secondary, hearsay and res gestae evidence,\[33\] self-serving statements,\[34\] and the declarations and requiring insured to maintain sprinkler held \[burden was on insured to show that accel condition subsequent as to which insurer had burden of proof, and not within Balling- or's Ann. Codes & St. 5 4954, as to pleading and proof of conditions precedent. Port files were self-inflicted within exemption. Blakely Mill Co. v. Hartford Fire Ins. Co. \[Iowa\] \[Vwash.\] 97 P 781. General pleading that plaintiff had complied with all terms and conditions authorized by statute relative to pleading conditions precedent held to refer only to conditions precedent and not to conditions subsequent as to which insurer has burden of proof. Id.

\*\*24. Misrepresentation and fraud will not be assumed on doubtful evidence or circumstances of mere suspicion. Life Ins. Co. v. Hairston \[Va.\] 62 SE 1057. Under statute precluding forfeitures unless untrue statements were material or made in bad faith, burden is on company to prove falsity of statements and that they were material or made not in good faith. Mutual Life Ins. Co. v. Mullan, 107 Md. 457, 69 A 385. Under Rev. Laws, c. 113, & 21, providing that no misrepresentation or warranty made in negotiating insurance shall be deemed material or defeat policy unless such "misrepresentation or warranty" is made with actual intent to deceive, or unless the matter misrepresented or made warranty increased the risk, common-law rule is changed as to warranty not within body of policy, and, as in case of representations, burden of showing that broken warranty not in body of policy was fraudulent or increased risk in on insurer. Barker V. Metropolitan Life Ins. Co., \[198 Mass. 875, 84 NE 490. Statute inappili- cable to warranties in body of policy. Id.

\*\*25. After proof of execution of policy, loss, amount thereof, and notice to company, bur-den is on latter to show that loss or part of it was within exceptions in policy. German American Ins. Co. v. Hyman, 42 Colo. 156, 94 P 27. Burden on insurer to show voluntary or unnecessary exposure to apparent danger within accident policy, Correll v. National Acc. Soc. \[Iowa\] 116 NWV 1044; McClure v. 118 NWV 412. Great Western Acc. Assu \[Iowa\] 118 NWV 289. Under accident policy exempting from liability for injury through walking or being on roaded of a railway, insurer makes out defense on showing insured was on such roaded and injury or death occurred from cause inhering in hazards peculiar to such place, plaintiff being then required to show that insured's presence there was excusa-ble. Correll v. National Acc. Soc. \[Iowa\] 116 NWV 1046. Insurer has burden of proving that insured was on railroad roaded not at highway crossing, within stipulation reducing inflammatory for injuries received while he was on roaded of any railroad except crossing at a highway, McClure v. Great Western Acc. Ass' in \[Iowa\] 118 NWV 269. Contenton that though burden was on defendant to show insured was on a railroad roadbed by evidence other than books of

## 313 Insurance $ 94C.

12 Cur. Law.

admissions of agents, parties and others.\[35\] Among illustrative issues are such as relate to the making, delivery and acceptance of the contract of insurance,\[36\] its provisions,\[37\] including the term of insurance\[38\] and the intended beneficiary,\[39\] the payment of premiums,\[40\] the occasion for assessments,\[41\] misrepresentation or breach of warranty,\[42\] waiver or estoppel,\[43\] and the cause of injury or death.\[44\] Unless

count and inventory. Retail Merchants'

Ass'n Mut. Fire Ins. Co. v. Cox, 138 Ill. App. 14.

34 Letter by insurer to agent and entries

v. German Fire Ins. Co., 130 Mo. App. 457,

en its office record referring to policy both long after policy was taken out held ex parte

self-serving statements not part of res ges-

ae and not admissible. Helibg v. Citizens'

Ins. Co., 224 Ill. 251, 84 NE 897.

35. Declarations by insured before apply-

ing for insurance and not part of res geste

are not admissible against beneficiary to

show breach of warranty. Minnesota Mut. Life Ins. Co. v. Link, 131 Ill. App. 89. Benef

36 In contract between lawful and deste-

sected or otherwise has such interest there-

in that misrepresentations by assured can-

net be proven by evidence of his declarations unless they are part of res gestea, and

otherwise such evidence is inadmissible in

absence of independent proof of falsity of statements made and then only to prove his

knowledge of their falsity. Johnson v. Fraz-

ternal Reserve Ass'n \[Wis.\] 117 NV 1019. Declarations by beneficiary as to statements

made by assured before he died concerning

manner in which he had been injured held

inadmissible as admissions of decedent

cause not denied by him. Hill v. Aetna Life

Ins. Co. \[N. C.\] 63 SE 124, WWhere insurer

Iled on statement made by wife of insured

in proofs of loss as estoppel, she could tes-

tify to facts surrounding her when statement was made. Metropolitan Life Ins. Co.

v. Thomas, 32 Ky., L. F. 770, 106 SW 1175. Company's letter to obtain compromise held

handmissible. Southwestern Ins. Co. v. Woods

Nat. Bank \[Tex. Civ. App.\] 20 Tex. Ct. Rep.

761, 107 SW 114.

36. On issue of meeting of minds on in

urance contract, insured's testimony on

cross-examination that after applying for

policy but before delivery he had taken

agent extended time for payment of pre-

same insurance in another company held not

exclindable as not within issues raised by

sured had not solicited credit. Id.

general denial of company. Nordness v.

41. Where in action on life policy plaintiff

Mutual Cash Guaranty Fire Ins. Co. \[S. D\] 114 NW 1092. Evidence of condition and

of which insured after policy became ef-

fective held immaterial under policy pro-

viding it should not become effective unless

issued and first premium paid during good

health of insured. Life Ins. Co. v. Halirston

King v. Hartford Life & Annuity Ins. Co.

\[Va.\] 62 SE 1057. On issue of acceptance of

policy by insured, evidence of his request

for a new policy on different terms held immaterial, policy having been burned.

Caus

then v. Hartford Life Ins. Co. \[S. C.\] 61 SE

428. On issue of acceptance of policy prior

to loss, memorandum by mortgage's agents'

sured had refused to receive it held inadmis-

sible, clerk having no authority to accept

policy as binding mortgage. New v. Germ

mania Fire Ins. Co. \[Ind.\] 85 NE 703.

37. Pleadings held to supply proof of

terms of policy where petition alleged destruction of policy before delivery, answer

function of policy before delivery, answer

and the possibility of the existence of a new policy.

43. On issue of acceptance of policy prior

to loss, memorandum by mortgage's agents'

sured had refused to receive it held inadmis-

sible to show defend's financial condition.

King v. Hartford Life & Annuity Ins. Co.

\[Mo. App.\] 114 SW 63.

44. On issue of misrepresentation as to

prior health, evidence that insured had suffered from acute mania and mental derangement

held admissible. Fidelity Mut. Life

Ins. Co. v. Miazza \[Miss.\] 46 S 817. Evidence

as to bronchitis held admissible under an-

sured pleading breach of warranties against

bodily infirmities and unsoundness of physi

sible, clerk having no authority to accept

cal condition, though breach of another warranties

raights against bronchitis was not pleaded.

Franch v, Fidelity & Casuality Co. \[Wis.\] 115

37. Pleadings held to supply proof of

NFW 869. Evidence as to condition and facial

terms of policy where petition alleged destruction of policy before delivery, answer

made held admissible under allegation of otherwise provided in the policy,45 proofs of loss or death are usually held admissible only for the purpose of showing compliance with provisions respecting them,46 especially where not put in evidence by defendant,47 though in some jurisdictions they are prima facie evidence against plaintiff as to facts showing nonliability.48 In an action on a health policy, preliminary reports furnished insurer by a physician are not admissible to show the nature of the disease which confined insured.49 The verdict of a coroner's jury is inadmissible to prove the cause of death 50 unless made so by agreement,51 in which case insured cannot be deprived of the benefit thereof by willful omission of the same from the proofs of death.53 A prima facie case is established by proof of the contract of insurance, the contemplated loss, and proper and timely proofs thereof.53

answer that despite statement in application that he proofs of that his vision was not impaired insured had death required thereby should be evidence lost an eye and that this was peculiarly of facts therein stated for but not against within his knowledge. United States Health & Acc. Ins. Co. v. Clark, 41 Ind. App. 345, 83 Ing physician that insured died of kidney NSE 760. On cross-examination of medical disease of long standing, though evidence examiner, plaintiff could show what weight examiner would have given to diagnosis of hisured's physician had he known insured Mass. 37%, 84 NEE 490.

was treated when application was made, on question whether examiner was misled by particular case, to allow introduction of application. Roe v. National Life Assn., 137 proofs of loss against defendants' objection Iowa, 686, 115 NWV 600. Where incorrect answers did not influence medical examiner's report, insurer could not show what weight result casualty Co. v. Colvin \[Kan.\] 95 P 565.

would ordinarily be given to correct answers to inquiries similar to those Involved. Id. claim's statements in proofs of death as proof 43. Agent's letters recognizing policy in of facts injurious to plaintiff's case held at force held competent on Issue of waiver of least not prejudical. Minnesota Mut. Life forfeiture for nonpayment of premium. UnIns. Co. v. Janki, 131 Ill. App. 89.

136 Ill. App. 187. On issue whether insured's impaired vision was obvious to agent when he took application question, "Tell jury the condition and facial expression of" the insured, held not objectionable as calling for opinion of witness. United States Health & Acc. Ins. Co. v. Clark, 41 Ind. App. 345, 83 NE 760.

137 Defetation of the insured's health. Research v. State Mut. Life Ins. Co., 73 S. C. 526, 60 SE 1106. Competent to show agent who took application had solicited business in community where insured lived. Id. Paroi evidence admissible to show reparation of application by insurer's agent and latter" representation that same conformed with insurer's rules and regulations so as to estop insurer from setting up falsity of statements therein. Roe v. National Life Assn., 137 Iowa, 696, 115 NWV 500.

138 Further work on the issue of the insured's health. Research v. State Mut. Life Ins. Co., 73 S. C. 526, 60 SE 1106. Competent to show agent who took application had solicited business in community where insured lived. Id. Paroi evidence admissible to show reparation of application by insurer's agent and latter" representation that same conformed with insurer's rules and regulations so as to estop insurer from setting up falsity of statements therein. Roe v. National Life Assn., 137 Iowa, 696, 115 NWV 500.

139 Further work on the issue of the insured's health. Research v. State Mut. Life Ins. Co., 73 S. C. 526, 60 SE 1106. Competent to show agent who took application had solicited business in community where insured lived. Id. Paroi evidence admissible to show reparation of application by insurer's agent and latter" representation that same conformed with insurer's rules and regulations so as to estop insurer from setting up falsity of statements therein. Roe v. National Life Assn., 137 Iowa, 696, 115 NWV 500.

140 Plaintiff held entitled to make full proof that fail of deceased from a window was accidental, though defendant admitted that deceased did fall from window, since such admission was not conclusive that fall was accidental and did not preclude defendant from showing fall was not accidental. Fenton v. Iowa State Traveling Men's Asn's \[Iowa\] 117 NWV 251. In suit on accident policy, issue being whether death resulted from accident, bodily condition of assured between injury and death is relevant, and so are all things done or said by insured expressing or showing his bodily condition with reference to injury. Ward v. Aetna Life Ins. Co. \[Neb.\] 118 NWV 70.

41 The insured's health. Research v. State Mut. Life Ins. Co., 73 S. C. 526, 60 SE 1106. Competent to show agent who took application had solicited business in community where insured lived. Id. Paroi evidence admissible to show reparation of application by insurer's agent and latter's representation that same conformed with insurer's rules and regulations so as to estop insurer from setting up falsity of statements therein. Roe v. National Life Assn., 137 Iowa, 696, 115 NWV 500.

42 The insured's health. Research v. State Mut. Life Ins. Co., 73 S. C. 526, 60 SE 1106. Competent to show agent who took application had solicited business in
\_Questions of law and fact.\_See 15 C. L. 406.-It is ordinarily for the jury to determine questions pertaining to the existence of agreements,44 the acceptance of the policy,68 the property covered thereby,69 the meaning of ambiguous marks or figures,77 the payment of premiums,68 requests for extended insurance,68 abandonment,69 illegal trades,61 fraud or bad faith,62 the truth or falsity of warranties or representations,63 breach of conditions,64 materiality to risk,65 agency,66 knowledge,67 waiver

hattan Life Ins. Co. v. Verneuille \[Ala.\] 47 S Id. Breach of warranty as te age. Mutual Reserve Life Ins. Co. v. Jay \[Tex, Civ. App.\] 12. 54. Whether there was contract of insur- 109 SW 1116. Question of misrepresentation ame, company contending policy did not be- "as to prior health." Fidelity Mut. Life Ins. Co. oome binding because of failure to comply v. Milazza \[Miss.\] 46 S 817. Whether insured with conditions precedent and terms of "had had any serious illness prior to that policy depending on parcol testimony." Cau- "which caused death." Keiger v. Equitable then v. Hartford Life Ins. Co. \[S. C\] 61 SE Life Assur. Soc., 159 F 206. Where, under 428. Where it was clear employer had not "evidence, jury might have found that applica- "contracted to insure employee against accol- "can did not have a disease warranted "deat, as alleged affirmative charge should "against, and that either me made no mistake- "have been given for employer. United States Cast Iron Pipe & Foundry Co. v. "not made with intent to deceive, and were "Bragg \[Ala.\] 47 S 66." Whether burglary policy was accepted "Laws, c. 118, $ 21," in order to avoid policy, and credit given for premium, "Manson v. "cont properly declined to order verdict for "Metropolitan Surety Co., 128 App. Div. 577, 112 XYS 886." Whether policy on stock of merchant- "misrepresentations," held, under evidence, "discovered fireworks kept during Christ- "proper to refuse to direct verdict for insurer, "making holidays, whether fireworks were more hazardous than articles specified in policy, "and effect of custom as to keeping fireworks "Bradley, 32 Ky. L. R. 748, 107 SW 209." When "stements in application for life insurance v. Com. Ins. Co., 3 Ga. App. 436, 60 SE 120." 57. What uncertain figures in application as to age of insured were. United States Health & Ace. Ins. Co. v. Clark, 41 Ind. App. 345, 83 NE 760. Whether check marks in blank following statements should be treated as denial of any exceptions or as waiver of "statements and answers thereto." French v. Fidelity & Casaulty Co. \[Viz.\] 115 NW 869." 58." Whether premium, payment of which was acknowledged by policy, was in fact "paid." Cauhun v. Hartford Life Ins. Co. \[S. C\] 61 SE 428." 59." Whether insured requested extended insurance or was misled by agent into "belving that on failure to pay premium "quest was unnecessary." Wortham v. Illinois Life Ins. Co., 32 Ky. L. R. 827, 107 SW 276." 60." Whether insured voluntarily allowed "policy to lapse, or result was accomplished by wrongful act of insurer." Ballilet v. Metropolitan Life Ins. Co., 110 NYS 77." 61." Whether insured was engaged in "lawful liquor trade so as to avoid policy on "drug stock." Kellogg v. German Am. Ins. Co. \[Mo. App.\] 113 SW 663." 62." 62.

or estoppel," disability," suicide," the cause of loss, death or injury," notice," consideration," reasonable time," and veracious delay in paying the loss."

_Instructions._--The general rules apply to instructions 74 on the burden of

free policy. Cone v. Century Fire Ins. Co. \[Iowa\] 117 NV 307. Sole ownership of prop-

less proofs as to each cause are so convinc-

erty. Himburn v. Phoenix Ins. Co., 129 Mo.

ing that reasonable men would adopt same

App. 670, 108 SWV 676.

68. Of facts suppressed. Keiper v. Equita-

blife Lifex Assur. Soc. 153 F 206. Or representation that insured was 62 years old, when he was 64. Spence v. Central Acc. Ins. Co., 286 Ill. 444, 88 NE 104. Materiality of a rep-

resentation is sometimes a question of law

where statement is made in response to direc

recent inquiry or where parties have settled

Commercial Mens As'n \[C. C. A.\] 159 F 114.

materiality by agreement. Id. Materiality

to risk is for court where character of warrant

proximate cause of illness and death. Gen-

ranty or entre evidence on materiality is

such that decision but one way may be law-

\[Md.\] 71 A $24. Whether drowning or im-

fully sustained by court. Connecticut Fire

Ine. Co. v. Manning \[C. C. A.\] 160 F 832. For

fury when all admissible evidence is such

that decision either way may be thue law-

fully sustained. Id. False warranty as to

incumbrance held material as matter of law,

and court erred in submitting question to

employe was injured by reason of violation

of rule of employer so as to bar recovery un-

\[C. C. A.\] 160 F 832.

66. Whether one to whom notice was

given by insured and who made representations as to policy, was insurer's agent.

Wortham v. Illinois Life Ins. Co., 32 Ky. L. R.

827, 107 SWV 276.

73. Predicts of consideration held not suff-

plication, knew of question and answer written therein by agent. Hollenbeck & Co. v. Mercantile Town Mut. Fire Ins. Co. \[Mo. App.\] 113 SWV 217. Whether plaintiff had

such information of revocation of agency

Ins. Co. \[Iowa\] 117 NWV 807.

before agent's consent to transfer of title

to insured property as to give person of

ordinary prudence notice agency had terminated. Gragg v. Home Ins. Co., 32 Ky. L. R.

R. 888, 107 SWV 321.

88. Waiver of proofs of loss by fire. Ball

v. Royal Ins. Co., 129 Mo. App., 34, 107 SWV

1097; Webster v. State Mut. Fire Ins. Co.

\[VL\] 89 A 319. Defendant's waiver of ap-

graisl. Ball v. Royal Ins. Co., 129 Mo. App.

34, 107 SWV 1097. Of provision against in-

embrances. Id. Of each payment of pre-

mium. Caution v. Hartford Life Ins. Co. \[S. C.\] 61 SE 428. Of provision in employer's

Ishability policy that insured should forward

to home office of company all summons or other process in suits against him. Sandoval

Zinc Co. v. New Amsterdam Casualty Co., 140

111, App. 247.

69. Whether insured was wholly disabled

for a year. Province v. Travelers' Ins. Co.

\[Mo. App.\] 111 SWV 113. Evidence insufficient to warrant submission of question of

temporary disability. Id.

70. Evidence for jury whether insured was

poisoned by himself or beneficiary. McCarthy v. Metropolitan Life Ins. Co. \[N. J. Err. & App.\] 63 A 170.

74. Whether fire preceded explosion, so as

to render company liable for whole loss under fire policy excepting loss by explosion.

German American Ins. Co. v. Hyman, 42 Col.

161, 94 P 27.

316 INSURANCE SS 24D. 12 Cur. Law. proof,77 misrepresentations 78 and their materiality,79 waiver 80 and suicide,81 or other cause of death.82

(SS 24) _D. Verdict, findings, judgment, costs and fees,See 10 C. L. 407_-A general verdict for plaintiff is not necessarily inconsistent with a special finding that statements in the application were untrue.83

Interest usually runs from the date when the loss is payable.84 It is properly allowed on the full amount of a judgment which includes statutory damages.84

77. Instruction on burden of proof held er-

of policy held misleading as ignoring agent's

roneous as confounding two exemptions in

possible violation of instructions with knowledge of insured. Life Ins. Co. v. Hairston

respects applicable to both. Correll v. Na-

\[Va.\] 62 SE 1057.

tional Acc. Soc. \[Iowa\] 116 NWV 1046. In suit

81. Instruction that fact that insured was

on fire policy, instructions held not erroneous

found in convulsions which continued until

as throwing on defendant burden of proving

that policy was not accepted. Citizens Ins.

In his stomach, was not sufficient to prove

Co. v. Heibig, 138 Ill. App. 115. Certain

in-

suitable, held misleading. Life Ins. Co. v.

structions relating to presumptions as to acceptance of policy and payment of premium,

arising from delivery of policy and plaintiff

covered, according as disease with which

possession thereof, held not to cast on defendant burden of proof on whole evidence.

to cause death in co-operation with accident-

Helbig v. Citizens Ins. Co., 234 Ill. 251, 84 ND

89. Instruction on burden of proof when

Causality Co. v. Epuple \[Kz.\] 112 SW 1122.

company sets up suicide held sufficient, but

halt would have been better to have said

that death was caused by accident

then evidence to warrant verdict for com-

dent of all other causes, in order to entitle

pany should exclude every reasonable

phiptiff to recover. General Acc. Fire &

hypothesis of accidental death. Life Ins. Co. v. Hornely \[Md.\] 71 A 524.

v. Hairston \[Va.\] 62 SE 1057. Instruction

Instruction barring any recovery unless

erroneous as not stating evidence should

clude every reasonable hypothesis. Id.

178. Issue of misrepresentations in application held properly submitted. Life Ins. Co. v. Hairston \[Va.\] 62 SE 1057. Instruction

requiring answers by applicant to have been

fullfully false or fraudulently made in order

to avoid policy held in language of statute

and properly given. Id.

79. Help improper to allow jury to determine according to their own standards what

in-

user would reasonably have done had

truth been stated by applicant. Supreme

Loofg K. P. v. Bradley, 32 Ky. L. R. 743, 107

SWV 209. Court in one instruction should

instruct that if any of the answers were sub-

stantially untrue, and according to the usual

course of the insurance business policy

would not have issued had truth been stated,

they should find for insured, and another

n-
struction should state that question was not

whether insured's physicians were mistaken

as to his aiment, or whether he at time of

application in good faith believed he was

healthy, but whether answers were substan-

tially true, and if untrue, whether according

to usual course of business policy would

have been issued had truth been stated. Id.

Where problem had appendicitis, held

proper to mistrust be could recover unless

representation in application was materially

false and he thereby induced issuance of

policy. Atea Life Ins. Co. v. Howell, 82 Ky.

L. R. 935, 107 SWV 294.

80. Instruction submitting question of

waiver must state facts which if found

would constitute waiver. Robinson V. Insurance Co., 113 XYS 105. Instruction

predicating waiver of preayment of first premium

on agents delivery of policy to insured and

failure of company to request cancellation

10 12 Cur. Law. INTEREST $ 1. 317

Underwriters sometimes agree that the decision in a suit against one on a policy shall conclude all the others.\[85\] The subject of costs is elsewhere fully treated.\[87\]

Statutes in some states authorize the recovery of penalties and attorney's fees on proof that insurer wrongfully refused or delayed payment of the loss,\[88\] A tender after demand and refusal cannot affect the right to damages and fees.\[89\]

($ 24) \_E. Enforcement of judgment.\_See 6 C. L. 156

INTERREST.

$ L. Right to Interest and Demands Hearing

Right to Interest, $20. Compound In Interest, $31. It May Rest in Contract, $32. Interest as Damages Ex Con-

$ 2. Rate and Computation, $21. 19. Interest on Damages for

$ 3. Remedles and Procedure to Receiver

Torts, $19. Interest on Statutory Re-

$ 32. 19. Cessation or Loss of

_The scope of this topic_ is noted below.\[90\]

$ 1. \_Right to interest and demands bearing interest._See 10 C. L. 400_--Interest was not recoverable at the common law.\[91\] While in the allowance of interest equity generally follows the rules of law,\[92\] equity usually has a large discretion in regard to interest\[93\] and often may allow it where it would not be recoverable at law.\[94\] In some cases the question of interest is for the jury;\[95\] in others for the court.\[96\] The cases are in conflict as to the liability of a municipality for interest on contractual

$6. Judgment of justice of peace is within

from beneficiary attorneys "requesting" agreement between underwriters making decision in suit against one conclusive on all

to base recovery of damages and attorney's

others. Blair v. National Shirt & Overalls

Iees under Rev. St. 1895, art. 8071. Pennsylvania-

Co., 187 Ill. App. 412.

$7. See Costa, 11 C. L. 886.

$8. Laws 1805, p. 308, providing for damages and attorneys fees for failure of in-

to demand payment, precluding objection

surer to pay loss within time prescribed in

policy after demand, held constitutional. Arctman

Aetna Life Ins. Co. v. Kansas Ins. Co. v. McMans \[Ark.\] 110 SW

$7. Clv. Code 1895, $ 2140, allowing recovery of damages and attorney's fees from

for refusal in bad faith to pay loss within 60

companies for failure or delay in meeting

losses, held not violative of U. S. Const.

Amentol. 14, $ 1, or or of paragraphs 2, 3, 4, art.

recoverable in absence of formal demand for

1, of Georgia Const. Harp, v. Firmann's Fund

payment in addition to commenents suit on

Ins. Co., 130 Ga. 726, 61 SE 724. Question of

policy. Mutual Reserve Fund Life Ass'n v.

vexatous delay held for jury. Kellogg

Tuchfield \[C. C. A.\] 159 F 83.

German American Ins. Co. (Mo. App.) 113 SW

$8. Pennsylvania Mat. Life Ins. Co. v.

663. Statute on recovery of damages and

Maner \[Tex.\] 109 SWV 1084.

attorney's fees "where life or health insurance"

$90. Interest on judgments (see Judgment,

ance company" fails to pay held inseparable

10 C. L. 467), taxes (see Taxes, 10 C. L. 1776),

to accident Insurance, Lane v. General Acc.

Inca. Co. (Tex. Clv. App.) 113 SWV 824. Addi-

Improvements, 10 C. L. 1307), is discussed

tional amount required to be paid by Rev.

St. 1895, art. 3071, is not a penalty but dam-

of illegal interest (see Usury, 10 C. L. 1937),

ages, and every life policy made in state is

As to application of payments to Interest,

made in view of statute. Mutual Reserve

see Payment and Tender, 10 C. L. 1147.

Life Ins. Co. v. Jay \[Tex. Clv. App.\] 149 SWV

$1. Recovery dependent upon statute.

1116. Rev. St. 1895, art. 2071, literally making

Schwitters V. Springer, 2816 Ill. 271, $8 NE 102.

ing companies liable for damages and attor-

Interest not recoverable at law in absence

ney's fees for failure to pay loss on demand

of express agreement or unless prescribed

within time specified in policy, must be re-

by statute. Sill v. Burgess, 134 Ill. App. 873.

sembly construed, and does not apply when

$2. Prior v. Buffalo, 113 NFYS 249.

there are adverse claimants to the fund and

$9. On eigentent bill to establish title to

company merely refuses to pay until person

and record value of timber cut, allow-

antitled thereto has been determined in

court. Southwestern Ins. Co. v. Woods Nat.

Not reweighting on appeal. Whitaker v. Pos-

Bank obligations, in the absence of special contract therefor," but it is well settled that a municipality is liable for interest on money wrongfully obtained or withheld."

_It may rest in contract_ See 10 C. L. 408 express 99 or implied 1 from usage and custom." When contracted for interest is a part of the debt,3 and interest to exceed the statutory rate can be recovered only by virtue of contract.4 A written contract must show when the payment is due in order that interest may be recovered thereon.5 The ordinary rules of contract construction are applicable.6 In the absence of special agreement, interest is not usually recoverable upon advances to a partnership 7 or joint venture.8

12 Cur. Law. INTEREST $ 1. & 319

Interest as damages ex contractuSee 10 C. L. 405

When not provided for by contract, interest is usually considered as damages for the default in failing to make a payment when due,9 and according to this rule interest should not be assessed when the failure to pay is due to the plaintiff's fault.10 Interest may be recovered on money paid by mistake 11 or secured by fraud,12 but of course the right is denied where the plaintiff is the perpetrator of the fraud.13 Interest is recoverable against a guarantor on the debt after maturity though the effect is to increase the judgment beyond the limit fixed by the contract of guaranty.14 Interest upon unliquidated, contractual demands is allowable when the amount is capable of ascertainment by computation.15 Statutes in some states provide for interest on liquidated claims in cases of unreasonable and veracious delay in payment,16 or where property is held for the use of another.17 Interest is not recoverable from a trustee whose sole duty is to hold the money in question, to pay on demand, where he is ready to comply with such demand.18

Interest on damages for torts.See 10 C. L. 410

Where the damage is complete at a particular time, interest is allowable.19 Interest is usually allowable in cases of conversion 20 or the destruction of property by negligence.21

Interest on statutory recoveries.See 10 C. L. 410

Verdicts.See 10 C. L. 410

By statute in some states interest on a verdict from the

clusive right to manufacture patented article

California Safe Deposit & Trust Co. \[Cal. and they advanced money, profits to be

Appl. 95 P 788. Not allowed where plaintiff

equality divided. Thurston v. Hamblin, 199

claimed 60 per cent more than he recovered.

Mass. 151, 85 NE 82.

0. Dame v. Wood \[N. H\] 70 A 1081; In re

NYS 53,

Burke, 191 N. Y. 437, 84 NE 405; Evers v.

16. Delay must be both unreasonable and

Glynn, 110 NYS 405. Purchaser refusing to

vacatious. Kempton v. People, 139 Ill. App.

accept legal title and pay cash price agreed

563. Interest not allowed where there was

upon must pay interest from date of default.

Metropolitan Bank v. Times-Democrat Pub.

Que. Street v. Thompson, 131 Ill. App. 546.

Co., 121 La. 547, 45 S 622.

10. Additional interest inequitable when

plaintiff lost bond. Prescott v. Williamport

& N. B. R. Co., 159 F 244.

11. In action by administrator to recover

amount paid by mistake or dissolution of

partnership, and to recover an interest in

certain lands, where notice of mistake was

made few days after settlement, with demand for money, which demand was

peated, Interest on amounts found due was

proper. Moylan v. Moylan \[Vwash.\] 15 P 271.

12. Stationary rate recoverable where

phase of certain notes was induced by fraud.

Schwitters v. Springer, 236 Ill. 271, 86 NE 102.

13. Where pledgee of personal property

fraudently represented that he had eold

same and sent a sum as balance of purchase

price which pledger retained until discovery

of fraud, pledger was not liable for interest

on sum retained. Moyer v. Leavitt \[Neb.\]

117 NNV 698.

14. Johano v. Norton \[C. C. A.\] 159 F 361;

American Surty Co. v. Pacific Surety Co.

\[Conn.\] 170 A 854.

15. Costes v. Nyark, 111 NYS 476. On ter-

mination of contract before full performance

entifling contractor to compensation

work done, interest is not recoverable until

amount due is ascertained. Coates v: Nyack,

111 NYS 476.

Mechanics' Hens \[See 10 C. L. 814\]: Inter-

set allowed where mechanically' Item might be

determined by computation or reference to

market rates. Civ. Code $ 2287. Farnham v.

10 C. L. 405

Alsvive right to manufacture patented article

California Safe Deposit & Trust Co. \[Cal. and they advanced money, profits to be

Appl. 95 P 788. Not allowed where plaintiff

equality divided. Thurston v. Hamblin, 199

claimed 60 per cent more than he recovered.

Mass. 151, 85 NE 82.

0. Dame v. Wood \[N. H\] 70 A 1081; In re

NYS 53,

Burke, 191 N. Y. 437, 84 NE 405; Evers v.

16. Delay must be both unreasonable and

Glynn, 110 NYS 405. Purchaser refusing to

vacatious. Kempton v. People, 139 Ill. App.

accept legal title and pay cash price agreed

563. Interest not allowed where there was

upon must pay interest from date of default.

Metropolitan Bank v. Times-Democrat Pub.

Que. Street v. Thompson, 131 Ill. App. 546.

Co., 121 La. 5 380 INTERESTSS 1. 12 Cur. Law.

time of its rendition to the time of entry of judgment is to be included in and made a part of the judgment.\[22\]

\_Cessation or loss of right to interest.\_See 10 C. L. 410_Claim for interest as damages is waived by acceptance of the principal without interest,\[28\] but such is not the effect of the acceptance of the principal where there is an express contract to pay interest,\[24\] nor is a creditor debarred from claiming interest by accepting dividends from the assets of an insolvent debtor.\[25\] The liability of stockholders for interest on the corporation's debts is not extinguished by the exhaustion of the corporation's assets in suits by creditors.\[26\] The rule that interest ceases when the court takes charge of the property by a receiver applies only in so far as a distribution of the assets among the creditors is concerned.\[27\] The homologation of a provisional account by an administrator does not prevent the accrual of interest until the date of actual payment.\[28\] A creditor does not necessarily forfeit his right to interest by refusing to furnish the debtor with a statement of his account.\[20\]

Cessation of interest may be effected by tender of the sum due \[30\] and keeping the sum available for the creditor.\[31\] The general consideration of what constitutes a valid tender is treated elsewhere.\[32\]

\_Compound interest._See 10 C. L. 410_.Although a stipulation for compound interest which is in effect usurious cannot be enforced,\[33\] an agreement for interest upon the interest after maturity is valid.\[34\] In an accounting between a mortgagee in posses-

**32.** Code Civ. Proc. $ 1035. United States -- Proper tender of amount due on mortgagee Nat. Bank v. Waddingham \[Cal. App.\] 93 F -- Note. Ordway v. Farrow, 78 Vt. 182, 64 A 1046. Judstem apparently entitling holder -- 1116.

to rate of interest called for by note until

**31.** Interest stopped where mortgageor execution of judgment erroneous. Id. Im-

proper to render verdict for principal sum deposited same with trust company subject and provide for interest. Minnesota Mut. Life Ins. Co. v. Welsh, 131 Ill. App. 103.

**33.** Defendant not liable for interest where it appeared that principal had been paid

ther energy before action. Strauss v. Gilbert,

three years before action. Strauss v. Gilbert,

232 Ill. 441, 83 NE 946. Creditor having accepted payment of principal cannot subsequently maintain action for interest. Flynn v. American Banking & Trust Co. \[Mc.\] 69 A 71. Acceptance of refund of improperly exacted duties where interest was withheld on ground of no appropriation. Bidwell v. Preston \[C. C. A.\] 160 F 653. Repayment by government of moneys improperly collected by officer held not payment of stranger which would not invute to benefit of collector, and hence collector could plead acceptance of such payment as waiver of interest. Id.

**24.** Froment v. Oltarikh, 11NFN 657.

**25.** In proceedings against corporation for interest on Instaments at sequestration and division of assets, the reception and application of sums received as dividends does not entail a forfeiture of the accruling and accumulated interest. Flynn v. American Banking & Trust Co. \[Mc.\] 69 A 71.

**26.** Flynn v. American Banking & Trust Co. \[Mc.\] 69 A 71.

**27.** Interest may still run and is charge-

able against collateral security held by creditor. First Nat. Bank v. Campbell \[Tex. Ctv. App.\] 114 SW 887.

**28.** Succession of Howell, 121 La. 955, 46 S 938.

**29.** Right of a bank to charge interest on advances held not lost by failure or refusal to furnish statements of account to a debtor. Clark v. Smallwood, 156 F 409.

**30.** Interest ceases after refusal to accept sion and a mortgagor, there should be no rest resulting in the compounding of interest,\[35\] but where promissory notes provide for the payment of interest annually, the court is authorized to compound the interest,\[38\] and in computing interest on running accounts between an attorney and client annual rests should be made.\[17\]

SS 2. \_Rate and computation.\_See 10 C. L. 411.--The statutes of many states contain regulations as to the rate and computation of interest\[38\] in addition to the ordinary usury laws.\[38\] In the absence of agreement fixing the rate, the legal rate applies.\[40\] In the absence of contractual stipulations to the contrary, when the contract rate is lower than the legal rate, the latter rate applies after maturity,\[41\] unless the debtor is prevented by the plaintiff from earning such higher rate.\[42\] Where interest is given on the theory of damage, it does not accrue until a breach of the contract.\[43\] On a liquidated demand, interest is payable from the date when the sum is due,\[44\] and interest on an unliquidated amount from the institution of the suit\[48\] or the adjudica-

35. Lynch v. Ryan \[Wis.\] 118 NW 174.

01. Foley's Guardian v. Hook \[Ky.\] 113

01. Gordon v. Mead \[Vt.\] 69 A 134.

01. Eight per cent rate of interest prescribed by Act Cong. 1901, SS 8 (31 Stat. 795),

the up fund, on judgment in their favor, purputting in force in Indian Territory certain provisions of Arkansas laws as to corpora-

Prior v. Buffalo, 113 NYS 249.

tions, is restricted to banks or trust com-

43. Action of debt on bond, American panes organized under laws of Arkansas

Surety Co. Pacific Surety Co. \[Conn.\] 70 or other states, but authorized under SS 8 to

A 584. Where no demand for indeminity was

do business in Indian Territory. Brewer

made of surety until rendition of judgment v. Rust \[Cokl.\] 95 P 233. Act Cong. 1901, SS 8 (31 Stat. 795), does not provide general in-

in suit where surety defended on theory of

terest law for Indian Territory, or repeal or

proclaims of obligations only. Id.

modify Mansl. Dig. c. 109 (Ind. T. Ann. St. 44. Though cross-claims are unliquidated.

1899, c. 60). Id. Taylor v. Merrill \[Okl.\] 97

Chilts v. Krey, 199 Mass. 852, 85 NE 442.

P 871. Where a settlement was arrived at

Interest under insurance policy not payable and the defendant paid in instalments, it was

until proofs of death not recoverable until

held that in an action on an account stated

such proof is presented. Minnesota Mut.

that the decree should have followed Kirby's

Life Ins. Co. v. Welsh, 131 Ill. App. 108. Un

Dig. $ 5838 in calculating interest when par-

der contracts whereby streets were laid out

tial payments have been made. Park v.

and constructed under Laws 1891, p. 880, c.

Smith, 84 Ark. 623, 105 SWP 253. Under Code

328, and amendatory acts, and assessments

Civ. Proc. SS 1035, interest after verdict is

delayed until damages against owners for

computed at legal rate upon aggregate

taking of land and construction were

amount of principal and interest due at con-

tract rate, until time of verdict. United

whose damages exceeded assessments were

States Nat. Bank v. Waddingham \[Cal. App.\]

not entitled to interest prior to determination of balance due after allowance of set-off

93 P 1046.

of amounts assessed upon land for better-

40. Jersey City v. Flynn \[N. J. Eq.\] 70 A

01. Where land was conveyed to defendants

01. NB 1017. Where one was employed to

in payment of mortgge debt and defendants

render services during football season and

as trustees undertook to sell property and

contract fixed no time of payment except

account for surplus, etc., agreement stating

that payment should be made at close of sea-

no rate of interest, rate fixed by law was ap-

son, interest was properly allowable from

plicable. Weitner v. Thurmond \[Wyv.\] 98 P

Dec. 1. Sleberts v. Spangler \[Towa\] 118 NWV

590. On default in purchase of corporate

001. Where broker's commission was to con-

stock, plaintiff was entitled to g per cent in-

sist of last three instalments of purchase

terest from time sum became due under Rev.

ptc of certain land, maturing on the first

St. 1889, 8705 (Ann. St. 1906, p. 2073), pro-

day of July, August, September, 1907, he was

viding rate in absence of agreement. Pounds

entilted to interest from date such sums

v. Coburn, 210 Mo. 115, 107 SWP 1080, Legal

rate applies to claim for damages for fraud

Co. v. Spindle \[Va.\] 62 SE 266.

Industrie purchase of notes. Schwitters v.

Springer, 236 Ill. 271, 86 NE tion of liability.46 When a demand is necessary to create a default, interest runs from demand,47 as where no time is fixed for the payment of a debt,48 or where the claim is against a municipality49 or a state,50 but a demand is not otherwise necessary to start the running of interest.51 The method of computation adopted by the parties will usually be adopted by the courts.52 Interest as damages for the commission of a tort is usually allowed from the date of the injury53 but where the commission of a tort involves a breach of contract, the interest properly accrues from the breach.54

SS 3. \_Remedies and procedure to recover interest.\_See 10 C. L. 412--A separate action cannot be maintained for interest as damages,55 but interest due by contract may usually be recovered in a separate action.56 The statutory liability of shareholders may be resorted to for the recovery of interest where a corporation is insolvent and the assets suffice only for the payment of the principal of the debt,57 and proceedings against the stockholders in such case do not constitute a separate action for interest.58 Where interest is authorized by statute, it need not be specially pleaded.59

46. Where surety disable, on public officer's in equity suit the issue was the proper bond, to many creditors whose claims were method of computing interest, a settlement not adjudicated, filed bill to have liability made 7 years prior to contract and referred established, interest was chargeable from date of decree adjudging liability, not from method; such reference not amounting to an adoption of method of computation. Id. Guaranty Co. v. Rainey \[Tenn.\] 113 SW 397.

01. In action to recover damages for divent of waters, interest is recoverable claiming as decedent's done, interest should be allowed from date of demand. Chamberlain v. Eddy \[Michel.\] 15 Det. Leg. N. 865, 118 NW 499. In action against administrator where claim did not mature until death of deceased, at which time plaintiff had election of remedies, interest should be computed only from date of demand to administrator. Contract for services payable by will. Pelton v. Smith \[Vash.\] 97 P 460.

01. Dame v. Wood \[N. H.\] 70 A 1081. Express money order wherein no time is stated is payable on demand, and demand is necessary to entitle holder to interest. Rosenberger v. Pacific Exp. Co., 129 Mo. App. 105, 107 SWV 459.

01. Demand of payment is necessary to set interest running against municipality. Appleton Waterworks Co. v. Appleton, 136 Wis. 395, 117 NWV 816. Under charter of city of Appleton (Laws 1876, p. 83, c. 47, sube. 5, & 25; Laws 1885, p. 1301, c. 441, sube. 5, & 24), demand is requisite before claim can draw interest. Id.

01. State not in default untl demand. Evers v. Glynn, 110 NYS 405.

01. Flynn v. American Banking & Trust Co. \[Mc.\] 69 A 771. Bank held liable for leaf rate upon default with notice or demand. Id. Claims due under guaranty became due by action of directors, and interest started running without demand. Id. Yote of dil-retors to stop payment and sequestration of assets deprived bank of right to demand. Id.

01. Though different from method provided by contract. Bower v. Walker, 220 Pa. 294, 69 A 984. Where interest was computed and rendered for nine years according to practical construction of contract by parties, such method will be sustained, Id. Where

## 12 Cur. Law. Internal revenue laws & 2.

### 1. Provisions and Principles Common to All

**SS 1.** _Provisions and Principles common to all_**.** See 10 C. L. 413--A statute for raising revenue, even when highly penal, is to be construed as a whole and in a fair and reasonable manner and not strictly in favor of the one on whom the burden is imposed,61 but such statutes should be liberally interpreted on behalf of such persons,62 and in case of doubt or ambiguity every intendment should be taken against the taxing power.63 The heading of a statute, while not conclusive on what is to be taxed, may be considered for the purpose of ascertaining the intention of the law makers.64 Taxes illegally imposed and collected to be recoverable must have been paid involuntarily or under protest,65 but the character of the protest is not of vital importance,66 and under certain circumstances, it is wholly unnecessary to enter a protest with the collector each time a purchase of a stamp or stamps is made.67 An appeal 68 to the commissioner and a decision thereon, unless such decision shall have been delayed more than six months, is a condition precedent to the maintenance of a suit to recover back any internal revenue tax claimed to have been illegally or erroneously collected,69 but where before the payment of the tax a claim for abatement is presented to the commissioner and rejected, the same is equivalent to an appeal.70 The appeal condition is not waived by failure to plead it.71 Where different actions are brought by the same plaintiff to recover internal revenue taxes paid under the same law on the same class or articles, a judgment in one case is conclusive in the others.72

**SS 2.** \_The tax on liquors and tobacco.\_See 10 C. L. 413--Bay rum is not a distilled spirit within the revenue act.73 The minimum eighty per cent capacity tax must be

**60.** This title covers only the federal in- made and plaintiffs were constantly using tetral taxes leveled for revenue. It excludes customs duties (see Custom Laws, 11 C. L. 852), also licenses (see Licenses, 10 C. L. 622), and state revenues (see Taxes, 10 C. L. 1776; Licenses, 10 C. L. 622), and 624 (see Taxes, 10 C. L. 622).

**61.** Construction of legacy statute, U. S. Rev. St. 8465, U. S. Comp. St. 1901, p. 2279. 5. 1901. 2279. 5. 1910. 2279. 5. 19283. 5. 1938. 52 Law. Ed. 452. 5. 194. 5. 1958. 5. 1961. 464 (U. S. Comp. St. 1901, p. 2807), held not to cover property passing under contract based on sufficient consideration. Heroid v. 1968. 1976. 1988. 1998. 2000. 1998. 201. 202. 203. 204. 205. 206. 207. 208. 209. 209. 201. 202. 204. 206. 207. 208. 209. 201. 209. 202. 203. 204. 205. 206. 207. 208. 209. 209. 201. 202. 204. 206. 207. 209. 208. 209. 201. 209. 202. 209. 201. 202. 203. 204. 206. 208. 209. 209. 201. 202. 204. 207. 209. 201. 208. 209. 201. 209. 202. 209. 201. 209. 202. 209. 201. 209. 202. 209. 201. 209. 202. 209. 201. 209. 202. 209. 201. 209. 202. 209. 201. 209. 201. 209. 202.

paid, regardless of any reduction of the actual capacity of the distillery by reason of the quality of materials used,\[74\] but in order to charge a fruit distiller with a deficiency tax, due notice of the deficiency must be given to him within six months after the receipt of his monthly report.\[78\] In case a delinquent liable for taxes neglects or refuses to pay them after demand, the United States has a lien upon all property and rights to property belonging to the delinquent from the time the taxes were due,\[79\] and even in a case of conflicting liens the government's remedy by a regular suit in equity is not exclusive.\[77\] On a seizure and sale of distilled liquors under the internal revenue law for nonpayment of the tax thereon, the proceeds are applicable to such tax and, if sufficient, extinguish the tax,\[78\] and in an action by the government on a distiller's bond, an answer containing allegations under which the defend-ant is entitled to prove such facts is not demurrable.\[79\] When distilled spirits deposited in a warehouse are destroyed by accidental fire or other casualty without fraud, collusion or negligence of the owner thereof, no taxes can be collected on such spirits,\[80\] and such destruction may be set up as a defense to an action on the distiller's bond, to recover the taxes.\[81\] A surety on a distiller's bond is responsible for the taxes accruing against the distiller,\[82\] but before the taxes can be collected from the surety a judgment against the distiller and the surety must first have been obtained.\[83\] The sureties on a distiller's bond for payment of taxes are discharged by seizure of the spirits for fraudulent acts of the distiller and sale thereof by the marshal and payment of the taxes out of the proceeds of the sale.\[84\] While the cardinal purpose of the provisions of the internal revenue law imposing special taxes on dealers in liquors is the raising of revenue for the United States,\[85\] the federal courts may in the exercise of the power vested in them rightly enforce the penalties provided for a violation of such law for the secondary purpose of aiding in the enforcement of the law of a state regulating or prohibiting the sale of liquor.\[86\] The term "cask" as employed in the statute respecting the manufacture and sale of spirituous liquors by wholesale dealers has a well recognized import.\[87\]

nomine, Id. Fact that alcohol in bay rum may be used for other purposes immaterial. Id. 1879, c. 125, $ 6, 20 Stat. 341 Id. 1879, c. 125, $ 6, 20 Stat. 341 Merch 1, 1879, c. 125, $ 6, 20 Stat. 340, and Act May 28, 1880, c. 108, $ 21 Stat. 147 (U. S. Comp. St. 1901, p. 2087), exemption not dependent on discretionary action of secretary of treasury. Freeman v. U. S. \[C. C. A.\] 157 EP 195. 151 S. Comp. St. 1901, p. 2158). 111 S. Sureties entitled to raise defenses available to distiller. Freeman v. U. S, \[C. C. A.\] 157 EP 195. 152 United States v. National Surety Co. \[C. C. A.\] 157 F 174. 106. 1879, c. 125, $ 6, 20 Stat. 340, Act May 28, 1880, c. 108, $ 21 Stat. 147 (U. S. Comp. St. 1901, p. 2158). 111 United States v. National Surety Co. \[C. C. A.\] 157 F 174. Where government made tax assessment against distiller of spirits made from material used and not re-ported, portion of spirits were seized, sold, and tax on such part paid from proceeds, sucety on bond was entitled to credit for part of tax so paid but not for remainder of proceeds of sale. Id. 1879, c. 1879, c. 1879, c. 1880, c. 1881, $ 16 (18 Stat. 310, not superseded by Act of July 20, 1886 (15 C. 36), amending $ 3242 of Rev. St. (U. S. Stat. at L. 125, 167, ch. 186, U. S. Comp. St. 1901, p. 2095). In re Charge to-Grand Jurf, 162 F 736, c. 1879, c. 1879, c. 1880, in re Charge to Grand Jurf, 162 F 736, c. 1879, c. 1879, c. 1881, $ 7. Vessel containing not less than twenty, ten or five gallous wine measure. Rev. St. $ 3287, 3223, 3244 (U. S. Comp. St. 1901, pp. 2130, 2167, 2086). Williams v. U. S. \[C. C. A.\] 158 F 30. Under Rev. St. $ 3244 (U. S. Comp. St. 1901, p. 2086), indicment charging defendant as wholesale dealer with 12 Cur. Law. INTERNAL REVENUE LAWS SS 3. 825

Adding mere coloring matter after the stamping of the barrel and before sale does not constitute adding "anything else" within the meaning of the statute." Every person who participates in the violation of the federal laws relative to revenue on liquors is himself a complete offender, a liquor dealer within the statutes." Negligence of a government storekeeper whereby an unlawful removal of liquors is allowed constitutes a misdemeanor, regardless of the storekeeper's intent." Intent seems to be an essential element of the crime of failing to remove stamps from barrels after emptying them." Good faith may constitute a defense for failure to keep records in strict conformity with the statute." Under the statute requiring every wholesale liquor dealer to enter in his record book the day when and the name and place of business of the person to whom spirits are sent, etc., the gist of the offense being sending out of any spirits without complying with the section, the quantity sent out is not an essential element of the offense," nor need the indictment for such offense specify the name of the consignee or the place where the casks were sent." The burden of proof is upon the prosecutor throughout to prove every fact essential to constitute the offense charged."

SS 3. _Oleon margarine Acts._" 15 C. L. 415--Except as made directly applicable, the provisions of the general internal revenue legislation do not apply to the Oleomargarine Act of August 2, 1886," and hence one assessed with a special tax as a "dealer" " under such law, who before paying the tax makes application to the commissioner for an abatement of the same, need not, as a condition precedent to an action to recover taxes illegally imposed, make an appeal to the commissioner." Butter containing an abnormal quantity of water is taxable as "adulerated butter." " Book entries and returns by wholesale dealers must be made in accord-

sending out two "casks" of distilled spirits

Second of two instructions held to give de- without marking required entries in record

fendant full benefit of defense of good book, as required by SS 318, p. 2164, held suf-

falth, and hence be could not complain that

fclient charge that casks contained each not

lastens turn five gallons. Id.

83. \_Indictment under Rev. St. $ 318 (U. S. "Anything else" in U. S. "Rev. St. "S. "Comp. St. "1901, p. 2164), not finally de-

s 3455, U. S. Comp. St. "1901, p. 2279, held not

to embrace substances which are not in

ped. Williams V. U. S. (C. C. A.) 156 F 30.

themselves taxable under laws of the United States, even though forfeiture is provided by

Williams V. U. S. (C. C. A.) 158 F 30.

s 95. Instruction under Rev. St. $ 318, U.

and a heavier penalty in case of fraudulent

intent, United States v. Graf Distilling Co.,

s 208 U. S. 198, $2 Law. Ed. 469.

s 89. Members of "locker club" held liquor

declers. In "Craspe to Grand Jury, 162

F 736. Members of "locker club" held

idour dealers within internal revenue

law subject to apecial tax as such and to

penalty imposed for carrying on business

without payment of tax where a single tax

atamp only was taken out in name of club.

Id. Charter or license from municipal corporation held no protection to members of

"locker club," municipality being without authority to grant such license or charter

under Georgia statutes. Id.

90- Rev. St. $ 3169 (U. S. Comp. St. "1901, p. 2059). Mason v. U. S. (C. C. A.) 167 F 23.

91. Convection under Rev. St. $ 3224 (U. S. "Comp. St. "1901, p. 2168), not sustainable on

evidence that on sale of a single barrel by

defendant he expressly directed employ to

empty it of liquor and to destroy stamp be-

free delivery of barrel to purchaser, and

that failure of removal was unknown to de-

fendant. United States v. Rogers, 164 F

520.

001. Williams v. U, S. (C. C. A.) 158 F 30.

001. Williams v. U, S. (C. C. A.) 158 F 30.

001. Specifications being evidential facts.

Williams v. U. S. (C. C. A.) 158 F 30.

95. Instruction under Rev. St. $ 318, U.

intent, United States v. Graf Distilling Co.,

cumbent upon defendant to show that he

made entries prescribed by internal revenue

department, etc., held erroneous. Williams

dcalers. In "Craspe to Grand Jury, 162

V. U. S. (C. C. A.) 158 F 80.

96. General provisions not applicable to

idour dealers within internal revenue

lew subject to apecial tax as such and to

comp. St. 1901, p. 2228), except sections

p penalty imposed for carrying on business

without payment of tax where a single tax

atamp only was taken out in name of ance with provisions therefor made and provided.1 The provisions requiring such reports are purely regulatory,3 and prior to the revision of 1907 the oath to the report required by the commissioner's regulations, was not such that a false oath would constitute perjury under the statute relative to crimes against justice.8 The oath required was to the recapitulation only and not to the list of customers contained in the return.4 Under entries required may be made by an agent, an indictment for failure to make such entries should aver that the dealer did not make such entries or cause them to be made.5 An indictment charging violation of the oleomargarine act by failure to pack the oleomargarine sold as therein described must specify in what respect the package used was unlawful.5 An indictment for failure to pay the required license is sufficient if in the language of the statute.7 It need not negative a statutory exception which is mere surplusage and does not except from the operation of the statute anything which would otherwise be within the same.8 Under such an indictment a prima facie case is made by proof that the defendant carried on the designated business at a certain time and place,9 the defendant having the burden of proving the payment of the tax when such payment is relied on as a defense.10 All offenses created by the act of 1886 are statutory misdemeanors of the same class, regardless of the various penalties prescribed,11 and charges under its different provisions may be joined in the same indictment.12

12 Cur. Law. INTERNAL REVENUE LAWS SS 4.

and sold," nor does such enumeration include an article made after a standard, known, nonproprietory formula, and sold in packages containing no semblance of trade mark, no advertisement of medicinal value, no directions for use, and no name except a pharmaceutical one.14 In this connection, a name indicative of use as a remedy for a certain disease indicates a medicinal value,18 and so, also, a name indicating that a certain medicinal drug is contained in the article, where such article is advertised as a medicine,16 but not so as to names indicating merely mechanical use or application to particular parts of the body.17 The use of a possessive proper name before the name of the article indicates proprietorship.18 A product prepared from a natural fruit juice, without chemical compounding, does not come within the enumeration "medicinal articles compounded by any formula published .or unpublished."19

\_The legacy tax.\_See 10 C. L. 414.--The act imposing a tax on property transferred by "deed, grant, bargain, sale or gift," to take effect after the death of the transfer, applies only to conveyances without consideration.20 Property does not, within the meaning of this act pass by will or intestine laws, where it is distributed pursuant to a compromise of a will contest as authorized by a state law.21 It is well settled that the intent of the war revenue acts, as to legacies and gifts, etc., to take effect after the death of the grantor or donor, was to tax only such interests as were virtually vested in possession or enjoyment of the beneficiary, and not interests which, though technically vested as to the title, really remained contingent as to possession or enjoyment;22 but there is considerable confusion and some conflict as to the application of this doctrine,23 and it is held on the one

13. Under Act, June 13, 1898, Johnson v. 145, $ 15, held not within Act June 13, 1898, . 448, $ 29, 30, 30 Stat, 464, 465 (U. S. Comp. St. 1901, pp. 2507, 2310). McCoy v. Gilli, 156 151 F 593.

01. Lynch v. Union Trust Co. \[C. C. A.\] 164 161 161; Westhus v. Union Trust Co. \[C. C. A.\] 164 167 168; Intersect of children, in portion of estate set apart for benefit of widow during her life, held not to vest either in possession or enjoyment during her lifetime, but to become subject to tax on occurrence of that event prior to July 1, 1902. Title Guarantee & Trust Co. v. Ward, 164 F 459.

01. NOTE. What estates are vested in present possession or enjoyment? Vanderbilt v. Eldman, 19& U. S. 480, 49 Law. Ed. 563, in-volved a limitation by will in trust to pay the net income to the beneficiary until he reached a certain age, at which time he was to receive the corpus of the estate. It was held that the beneficiary's interest in the corpus of the estate was not taxable. The question as to the taxability of the interest in the income was not involved or decided, but the scope and intent of the act under consideration was discussed generally and at some length, it being held, furthermore, that the refunding act of 1902 was merely declaratory of the proper construction of the prior acts as to what interests were taxable thereafter. In Heroid v. Shanley \[C. C. A.\] 146 F 20, it was held that a limitation in trust to pay the income to the beneficiary until he reached a certain age, the corpus then to vest in him absolutely, created no taxable interest. It is to be noted that in this case the beneficiary's interest in the corpus was his death to the extent of the return, as was also the case in Vanderbilt v. Eldman, supra, but the court seems to have considered this hand that the right to receive an income from an estate left in trust for a certain period was not taxable,24 though under the terms of the will the corpus of the estate would vest absolutely in the beneficiary of the income,25 while on the other hand it is held that the right to receive such an income was taxable, even though the remainder in the corpus went to another,26 and that where there was an absolute limitation of income and corpus, subject only to the intervention of a stated period during which the corpus should be held in trust and the right of possession deferred, the beneficiary's interest in the corpus was taxable.27 There is also some conflict as to when the tax attached, it being held on the one hand that it did not attach until the expiration of one year after the death of the testator,28 and on the other that the statute is self-operative and the tax is imposed and attached immediately upon the vesting of the estate in the beneficiary.29 Life tables are not available to determine the value of a life estate, the duration of which has been made certain by the death of the life tenant.30 To authorize the recovery of taxes illegally ex-

1mmaterial. To the same effect see Eidman , period, at the expiration of which the abso-v. Tilighman \[C. C. A.\] 136 F 141, afd by divided court, 203 U. S. 580, 51 Law, Ed. 236; , disnces, etc., created an absolute vested & Ins. Co. \[C. C. A.\] 142 F 120, afd by divided court, 205 U. S. 539, 51 Law, Ed. 231; , disnces only belng deferred, and hence , disnces that the interest of the beneficiaries in the v. McClain \[C. C. A.\] 157 F 234; Disnces v. McClain \[C. C. A.\] 147 F 114, involved a limitation in trust to pay the income to the beneficiary at stated intervals for life. It was held that the interest of the beneficiary was not a vested legacy or bequest susceptible of present valuation by means of life tables or otherwise, but was merely an inter-est which vested in instalments at stated intervals, the interest in each future instalment being contingent as to possession and enjoyment upon the event that the beneficiary should be alive when such instalment became due and payable. Lynch v. Union Trust Co. \[C. C. A.\] 164 F 161, Involved a limitation in trust to pay at stated intervals the income upon stated shares of the estate to certain beneficiaries for certain terms, the corpus of such shares to vest in such beneficiaries respectively at the expiration of such terms. It was held, following Disnces v. McClain, 147 F 114, that the right of one of the beneficiaries to receive future instalments of the income was not a legacy vested in present possession or enjoyment, and that it had no "actual value" or "clear value" capable of being definitely ascertained within the meaning of War Revenue Act. June 13, 1888, 6 29, 30, 30 Stat, 464, 465 (U. S. Comp. St. 1901, pp. 2309, 3308). On the other hand, in Westhus v. Union Trust Co. \[C. C. A.\] 164 F 795, 1t was held that the right to receive the income of a trust estate was taxable as an interest vested in present possession or enjoyment, even though there was a limitation over to other parties as to the corpus upon the expiration of the trust. This case distinguishes Clapp v. Mason, 94 U. S. 589, 24 Law, Ed. 212, Mason v. Sargent, 104 U. S. 689, 26 Law, Ed. 894, and Vanderbilt v. Eidman, 196 U. S. 480, 49 Law. Ed. 663, but recognizes a conflict among the various circuit courts of appeal, and cites and discusses many of these cases. In Title Guarantee & Trust Co. v. Ward, 164 F 459, it was held that a limitation in trust to pay the income to the beneficiaries for a certain period, at the expiration of which the abso-v. Tilighman \[C. C. A.\] 136 F 141, afd by divided court, 203 U. S. 580, 51 Law, Ed. 231; , disnces, etc., created an absolute vested & Ins. Co. \[C. C. A.\] 142 F 120, afd by divided court, 205 U. S. 539, 51 Law, Ed. 231; , disnces, etc., created an absolute vested & Ins. Co. \[C. C. A.\] 143 F 120, afd by divided court, 205 U. S. 539, 51 Law, Ed. 231; , disnces, etc., created an absolute vested & Ins. Co. \[C. C. A.\] 144 F 120, afd by divided court, 205 U. S. 539, 51 Law, Ed. 231; , disnces, etc., created an absolute vested & Ins. Co. \[C. C. A.\] 145 F 141, afd by divided court, 205 U. S. 539, 51 Law, Ed. 231; , disnces, etc., created an absolute vested & Ins. Co. \[C. C. A.\] 147 F 142, afd by divided court, 205 U. S. 539, 51 Law, Ed. 231; , disnces, etc., created an absolute vested & Ins. Co. \[C 12 Cur. Law. INTERNATIONAL LAW. . 829

acted, it must appear that the payment thereof was involuntary or under protest. \[81\] A suit against a collector to recover back such taxes is not a suit against the United States, so as to preclude the recovery of interest, \[32\] and interest in such case is recoverable from the date of the exaction of the tax. \[83, 84\]

SS 5. _Filled Cheese Act._ See 10 C. L. 414

SS 6. _Tax on playing cards._ See 10 C. L. 414

SS 7. _Civil War Revenue Laws._ See 10 C. L. 414

SS 8. _Foreign revenue acts._ See 10 C. L. 415

INTERNATIONAL LAW.

_The scope of this topic_ is noted below. \[35\]

Territory may be acquired by discovery \[36\] or conquest, \[37\] and the conquering nation may attach to itself a part of the territory of the nation vanquished and confiscate the land from the actual owners and occupants. \[38\] When sovereign changes, the rights to the conpluments incident to offices left by the extinguished sovereign do not survive, \[39\] and where an order of an officer of the new sovereignty abolishing such an office is fully ratified by such sovereignty, the courts cannot declare the act of such officer to be a tortious violation of a treaty or of the law of nations. \[40\] Where tortious acts of officials are subsequently ratified by a foreign government, a civil suit against the officials cannot be maintained, since there is but one tort and the foreign sovereignty as one tort feasor cannot be sued. \[41\] Courts of one sovereignty have no jurisdiction of a suit against the sovereign of another country. \[42\]

31. Payment, under protest, upon threat of high sheriff of Havana held not to surcollection by law and enforcement of pen-

vive extinction of Spanish sovereignty over ally, held involuntary. Herold v. Kahn \[C. Cuba. O'Reilly De Camara v. Brooke, 209

\<. A.\] 159 F 608. Payment under protest

U. S. 45, 52 Law. Ed. 676. Order of military

that taxes were illegally exacted, or with

governor of Cuba after cessation of Spanish

notice that payor contends that they are

sovereignty abolishing office of and all rights

illegal and intends to institute suit to compel

pertaining to and derived from office of

their repayment, is sufficient foundation for

any or high sheriff of Havana,

suit to recover taxes paid. Id.

s2. Fact that internal revenue collector is

enpluments. Id.

required by Rev. St. $ 320 (U. S. Comp. St. 1901, p. 2082) to pay taxes collected into

40. General Brook's order abolishing office'

1901, p. 2082) to pay taxes collected into

of high sheriff of Havana ratified by execu-

twenty, and provisions of $ 389 and $ 320 (U. S. Comp. St. 1901, p. 708, 2086) held

O'Reilly De Camara v. Brooke, 208 U. S. 45,

not to make suit one against the United

52 Law. Ed. 676.

States. Conant v. Kinney, 162 F 581.

41. Where plaintiff, a United States corpo-

33, 34. Conant v. Klimney, 162 F 581.

s55. See Aliens, 11 C. L. 90: Ambassadors

Costa Rico was exercising de facto authority.

and Consual, 11 C. L. 105: Extradition, 11 C.

by soldiers and officers of such government,

L. 1453: Treatise, 10 C. L. 1874: War, 5 C. L. 2557. As to collision between vessels of dif-

action not maintainable against defendant

ferent nations, see Shipping and Water

allerged to have inspired acts by government,

Trafic, 10 C. L. 1855. International arbitra-

American Banana Co. v. United Cruit Co., 160

tion, see Arbitration and Award, 11 C. L. 262.

F 184. The ratification of acts of certain

Private International law, see Conflict of

Laws, 11 C. L. 665.

38. Seneca Nation v. Appleby, 112 NYS 177.

01. Mason v. Intercolional R. Co., 197 Mass,

Discovery by Europeans of western heml-

s49, 83 NE 876. Neither foreign sovereignty

aphere held to embrace all of continent with

nor its officers can be brought into our

in limiting expressed, though boundary lines

courts. American Banana Co. v. United

were not realized or magnitude of appropri-

Fruit Co., 160 F 184. Suit against Interna-

acted territory comprehended by claimant. Id.

All territory within original thirteen states

eployed to Great Britain by right of dis-

covery, Id.

37. Seneca Nation v. Appleby, 112 NYS 177.

01. European settlers divesting American

Indians on continent of holdings. Seneca

Nation v. Appleby, 112 NYS 177.

89.

830 INTERPLEADER SS 1. 12 Cur. Law. INTERPLEADER. , each other," and in Pennsylvania the action has been extended for the relief and protection of sheliffs.\[59\] A statute providing for an action in the nature of interpleader\[84\] is remedial.\[58\]

SS 2. \_Procedure and relief.\[See 10 C. L. 417--Personal notice or the equivalent thereto is required to bring in a party.\[56\] When a bill is filed, the practice is first to determine whether such a bill will lie,\[87\] and issues cannot be made out against the plaintiff except as to whether the case is a proper one for interpleader.\[56\] An objection that the claimants are not properly made parties\[56\] must be taken before the plaintiff's discharge,\[60\] but a jurisdictional defect is not waived by answering to the merits.\[61\] In an action in the nature of interpleader, the plaintiff need not bring the fund in controversy into court,\[62\] but he may be commanded to retain the fnnd\[63\] until demanded by the court.\[64\] Where the plaintiff plays that the claimants be enjoined from prosecuting their suits, payment into court is prerequisite to such relief.\[60\] In New York a party can be interpleaded only on motion.\[65\]

_Discharge.\[See 6 C. L. 104--The plaintiff's discharge is effected by the determination that the bill will lie and the payment into court of the fund or property in controversy.\[67\]_

\_Further proceedings.\[See 10 C. L. 417--Upon deposit the fund passes into the cus-

52. Under Code Civ. Proc. $ 386, action may be maintained and plaintiff discharged from liability, though titles have not common origin and are adverse to one another. Sullivan, V. Lusk \[Cal. App.\] 94 P 91. Complaint hand to state cause of action. Id. 53. Purpose of Act May 26, 1897, P. L 95, to compact in one enactment statutes and 55. Maxwell v. Frazier \[Or.\] 96 P 548. principal decisions relating to interpleaders in execution with additional new provisional requirements of failure of proof. saving shelf from actions if the proceeded in accordance with statute. Necker v. Sedge- 66. Golden Cross v. Donagely, 74 N. H. 466, 68 Awick, 36 Fa. Super. Ct. 593. Liability of cheff for refusal to proceed under interpleader act is for damage sustained by party injured thereby. Id. Where in action against sheriff for refusal to sell goods subject upon sheliff has not applied for interpleader, he may show that goods belonged to stranger and that consequently plaintiff was not injured. Id. 54. Interpleader act (Gen. St. 102, $ 1019) recognizes remedy not only in favor of stakeholder within original meaning of bill but in favor of any party interested in property of any description in nature of fund held by one person which he cannot safely turn over to apparent owner because of conflicting claims. Brown v. Clark, 80 Conn. 419, $ 8 A 1001. Under Gen. St. 1002, $ 1015, action by administering of deceased husband's estate against bank, Intestate's widow and heirs to recover deposit in name of deceased and claimed by widow is authorized. Id. Money deposited in savings bank is "money or other property in hands or possession" of bank within Gen. St. 1002, $ 1019. Id. 55. Must be favorably construed. Brown v. Clark, 80 Conn. 419, $ 8 A 1001. 56. Code Civ. Proc. $ 820, Bullowa v. Provident Life & Trust Co., 109 NYS 1058. Under Code Civ. Proc. $ 820, defend can- not obtain order interpleading nonresident, adverse claimant not subject to personal service by paying fund in controversy into court. Id. Rev. St. $ 504, providing for service by publication, does not apply to * 832 **INTOXICATING LIQUORS SS 1.** 12 Cur. Law.

- 833 **Today of the law.** **83** The deposit being made primarily for the benefit of the plaintiff does not deprive the defendants of their substantial rights,\*\* **83** and their claims may be properly interposed without resorting to a new action.\*\* **83** **Tatutory interpleader.** **83** **C. L. 484** **Costs.** **83** **C. L. 417**--Where the plaintiff is discharged from further liability, his costs are to be paid out of the fund in controversy,\*\* **71** and attorney's fees are part of the costs.\*\* **83** Where the defendants do not question the right to a bill but join issue and secure two judgments for the debt, necessitating an appeal, the plaintiff will be entitled to costs.\*\* **83** **Interpretation; Interpreters; Interstate Commerce; Intervention, see latest topical index.** **83** **INTOXICATING LIQUORS.** **83** **T. Control of Liquor Traffic and Validity of** **83** **B. Indictment and Prosecution, SS11.** **Sutures in General, SS32.** **S. Summary Proceedings, SS44.** \*\*S. Labest of Traffic as a Nusinance; In- **83** **Licenses and License Taxes, 342.** **S. Labest of Traffic, SS53.** \*\*S. Labest of Traffic as a Nusinance; In- **84** **Rexelation of Traffic, SS53.** \*\*S. Labest of Traffic as a Nusinance; In- **85** \*\*S. Labest of Traffic as a Nusinance; In- **86** \*\*S. Labest of Traffic as a Nusinance; In- **87** \*\*S. Labest of Traffic as a Nusinance; In- **88** \*\*S. Labest of Traffic as a Nusinance; In- **89** \*\*S.

18 Cur. Law. INOXICATING LIQUORS $ 1. 3333

the subject, the regulation of the traffic is discretionary with the legislature,\[17\] subject only to the general rules relative to the validity of statutes.\[7\] Its power in this regard is exclusive and cannot be delegated by it to the courts nor lawfully usurped by the judicial branch of the government,\[8\] though it may be delegated to the minor political subdivisions of the state.\[9\] Power to regulate authorizes a municipality to confine the exercise of the business to certain localities.\[11\]

License in such counties after Jan. 1. State v. Skeggs \[Ala.\] 46 S 268; Richter v. State \[Ala.\] 47 S 163. Statute held valid exercise of police power. State v. Skeggs \[Ala.\] 46 S 268. Absolute prohibition of sale or manufacture of intoxicants within any pre-scribed territory in the state is lawful exercise of police power and does not deprive liquor dealer conducting business in such territories of lawful territory of his. Local option law' held not unconstitutional. Edgar v. Skeggs \[Ala.\] 46 S 268. Absolute prohibition of sale or manufacture of intoxicants within any pre-scribed territory in the state is lawful exercise of police power and does not deprive liquor dealer conducting business in such territories of lawful territory of his. Local option law held not unconstitutional. Edgar v. Skeggs \[Ala.\] 46 S 268. Absolute prohibition of sale or manufacture of intoxicants within any pre-scribed territory in the state is lawful exercise of police power and does not deprive liquor dealer conducting business in such territories of lawful territory of his.

The appointment and qualification of officers to whom the enforcement of the liquor laws is entrusted is regulated entirely by statute.\[82\] Duties which the constitution requires to be performed by elective officers cannot be delegated to appointive officers.\[83\]

SS 2. \_Local option laws.\_See 10 C. L. 419--Local option may be exercised in various ways, such as by remonstrance,\[84\] consent,\[85\] or petition,\[86\] or, as is most commonly

Mo. App. 427, 107 SVV 999. Village ordinance making it an offense to sell intoxicants within half mile of village limits without having village license, adopted pursuant to functions, and that therefore act is valid. Rev. St. 1899, $ 601, giving village trustees under police power, held untenable. Id. Power to license, regulate and prohibit dram- ehope to distance of half mile from corporate limits of village, held not void as to person conducting dramshop in another county from which he had obtained license, but within and in light of other constitutional provisions, not to authorize creation of new an extrateritorial revenue measure, but to offices in contravention of scheme of govern- be valid police regulation. Id. Rev. Laws 1906, $ 1519-1566, provide general system for regulation of business of selling intoxicants which is operative throughout the state and imposes standard of regulation below which no municipality may fall, but does not deprive municipalities of their charter the granting of license to any and all appli- powers to provide for such supplementary and additional regulations as are required by local conditions which are not inconsistent with general law. Evans v. Redwood Falls, 103 Minn. 314, 115 NW 200.

81. City held to have power to restrict location of saloons, though charter did not confer it in express terms. Churchill v. Common Council of Detroit \[Mich.\] 15 Det. Leg. N. 379, 116 NW 558.

01. Provision of F. L. 1901, p. 240, $ 4, that failure of one appointed to board of excise commissioners to qualify within 10 days after his appointment shall cause vacancy in such office, held to apply to all appointments, original or otherwise, so that failure of one appointed to succeed himself to take south within prescribed time was not cured by his subsequent qualification. Anderson v. Myers \[N. J. Law\] 71 A. 139. Taking of prescribed path within said time is prerequisite to qualification and as essential to enjoyment of office as appointment itself. Id. Where appointee fails to take prescribed out within each time, no judicial declaration of vacancy is necessary, but legal appointment may be made to fill such vacancy and apointee, having legally qualified, may assert in same suit right of public to cust intruder, and his own right to take and hold such office. Id.

01. Laws 1907, p. 303, c. 187, authorizing appointment of enforcement commissioner and deputy enforcement commissioners, etc., for purpose of enforcing prohibition law, held unconsutritional as an attempt to displace state's attorney and sheriff in discharge of important functions and duties connected with their respective offices. Ex parte Corlias, 16 N. D. 470, 114 NWV 962. Const. $ 173, providing that duties of county officers therein enumerated shall be prescribed by law, held not to authorize legislation to take away duties of such officers in whole or in part and confer them upon other officers not elected by the people. Id. Fact that law only provides for displacing such officers by appointive officers during portion of the work.

01. Laws 1905, c. 6 (Burns' Ann. St. 1805, $ 72831), but only in the form of the work, but only in the the case, by an election at which the question is voted on directly." The political

at last regular municipal election. In re ment for second offense, while dramshop act Petition to Prohibit Sale of Intoxicating does not, since offenses specified by the two Liquors in Residence Dist., 11 Ohio C. C. (N. S). 351. Proof of residence in state for one year and in district for four months makes phrma face case of qualification to sign such petition. In re Petition to Prohibit Sale of Intoxicating Liquors, 6 Ohio N. P. (N. S.) 251. Signature made in presence and at request of qualified elector, who fs incapacitated from signing by his own hand, is valid. Id.

Signer may withdraw his name after petition is filed upon proof that his signature was obtained through fraud or misrepresentation.

Id. Burden of proving fraud or misrepresentation, that no act shall "take effect" upon approval drawn of his name. In re Petition to Prohibit Sale of Intoxicating Liquors in Residence Dist., 11 Ohio C. C. (N. S.) 351; In re Petition, to Prohibit Sale of Intoxicating Liquors, 6 Ohio N. P. (N. S.) 261. Pravind and misrepresentation cannot be predicated upon claim that petition was not read to signer, or that he did not understand its contents, and signer has no right to rely upon state- operations of others as to purpose of petition or territory embraced, since both are required to be set out therein. In re Petition, to Prohibit Sale of Intoxicating Liquors, 6 Ohio N. P. (N. S.) 251. Questions to be determined by court upon hearing of such petition are:

That territory described is residence district; that petition is correct in form; that Lawo, 1.15, 4.5, 4.

subdivisions within which an election may be ordered are fixed by statute.88 Whether prohibition adopted by a county extends to municipalities embraced therein depends on the statutory provisions on the subject.89 The adoption of prohibition by a county generally precludes minor subdivisions thereof which participated in the election from again voting upon the matter during the time limited in the statute, even though they had a right to vote separately on the question at or prior to said election,90 though a contrary rule often prevails where the election is in favor of the sale of liquor.91 In some states adoption of prohibition by a minor political subdivision does not preclude a resubmission of the question in the whole of the major subdivision in which it is situated.92 The result of the election generally applies for penalties intended to enforce pro-hition in districts voting for no license being connected with each other and germane to primary objects of statute. Statue v. County ordinance prohibiting granting of Fountain \[Del.\] 69 A 286. Laws 1907, p. 297, held not in conflict with Const. art, 4, 13, providing that no act shall embrace more than one subject, which shall be expressed in question, held within power of board of its title. People v. McBride 234 Ill. 146, 84 NE 855. Act held not unconstitutional because of definitions of intoxication herein contained. Id. Title of act held not mis-leading in that it apparently provides for abolishing anti-saloen territory by same means by which it was created, while in some cities because of changes in precincts or districts voters can never again vote on question, since no such change could render resubmission to voters of same territory impossible. Id. Nor is title misleading in that it uses words "popular vote," while end pro-vides that majority of legal voters voting upon proposition shall govern, an election at which every elector is entitled to vote being an election by popular vote. Id. Laws 1907, p. 297, providing for local option, held not in conflict with Const. art, 4, 13, prohibiting amendment or revival of laws by reference to title only, since it does not and does not purport to amend or revise any law, not having attempted, in granting such though it adopts law as to other elections and prescribes special regulations for elections under act, and though it adds certain conditions to existing laws under which drugists are allowed to sell in anti-saloon territory. Id. 88. Const. art, 6, 18, art. 16, 8 20, as amended, Rev. St. 1895, arts, 1532, 1533, Sayles' Ann. City. St. 1897, art. 2384, constructed, and held that commissioners' prelent is political subdivision of county within meaning of constitution so that commis-siomers' court may order election therein. Confield v. Britton \[Tex. Civ. App.\] 109 SWV 423. Authority to order election held not affected or destroyed by fact that part of justice's precincts embraced in such commis-siomers' precinct were wet and part dry. Id. Where contestants claimed that election was invalid because commissioners' prelent for which it was ordered divided a town, held that burden was on them to prove that town so divided was subsisting municipal corporation. Id. Court having ordered election in precinct subdividing town which had net elected officers for over 30 years, held that it would be presumed in support of their action that population of said town was over 200 and less than 5,000, and hence that its charter had become inoperative and void under Laws 1897, p. 159, e. 114; Sayles' plies in the particular political subdivision as it existed when the election was ordered though its boundaries are changed before it is actually held.93 In case a new subdivision is carved out of an old one after the local option law has been adopted by the latter, the law ordinarily remains in force in both.94 In some states in case of a change in boundaries after the adoption of prohibition, the result can be nullified only by a vote of the people living within the boundaries as they originally existed.95

The election must be conducted in the manner prescribed by law.96 The order for the election97 is generally made upon petition98 signed by the required number of duly qualified petitions,99 and filed with a designated court or tribunal. Provision 18 sometimes made for an appeal from an order rejecting such petition.1

93. Order of commissioners changing boundaries of justice's precinct after election had been ordered in such precinct, but before it had been held, held not to have invalidated election and that result of election "whether" sale should be prohibited at d gate of order of election. Conat. art. 16, $2.0 Hill v. Growth \[Tex.\] 111 SWW 449; Id. \[Tex. Civ. App.\] 112 SWW 113; Id. \[Tex. Civ. App.\] 112 SWW 114; Id. \[Tex. Civ. App.\] 112 SWW 115; Id. \[Pages. App.\] 94. In absence of legislation inconsistent therewith, at least where no other territory differently affected is embraced in new district. Amerker v. Taylor \[S. C.\] 62 SE 7.

01. Commissioners' court has clear legal right after local option election has been held in a justice precinct to detach part of such precinct and add same to another precinct within the county, but in so doing it does not and cannot interfere with local option as adopted, and its action does not in-validate said election previously held, and it requires vote of people living within original bounds of precinct which put local option into either to nullify same. Oxley v. Allen \[Tex. Civ. App.\] 107 SW 945. Election held for precinct as it existed after change in its boundaries held without authority of law and void, and to have in no way changed status of local option territory as it originally stood. Id. Election held void ab initio so that its invalidity could be determined in a collateral proceeding and a contest was not necessary for that purpose. Id. Subsequent election under decribing old territory of said precinct by mates and bounds as it originally existed held valid. 96. Board of commissioners of elections for state and county officers may hold election under Act Feb. 16, 1907 (Acts 1907, p. 463), without participation of board of commissioners of election for congressmen, etc., two boards being entirely separate. State v. State Board of Canvassers, 79 S. C. 246, 60 SE 69. Laws enacted pursuant to Conat. art. 19; $2, for conducting elections, should conform to Id. $1, providing that election shall be conducted in manner prescribed by law for conducting general elections. Metcalf Co. v. Orange County \[Fla.\] 47 S 363.

01. Order held not open to objection that it was made by probate court instead of produce judge, as required by law. Richter v. State \[Ala.\] 47 S 168. Order providing for submission of question whether or not sale of intoxicating liquors should be prohibited in county in accordance with provisions of local option law held substantial compliance with Rev. St. 1899, $207, pro- 12 Curr. L.--92.

The giving of notice of the election,2 the time when the election is to be held,3 the

12 Cur. Law. **INTOXICATING LIQUORS SS 2.** 839

number of election judges,4 and their qualifications,5 the qualifications of voters,6 the form of the ballots,7 and the method of counting the same,8 and of declaring9 and publishing10 the result, are regulated entirely by statute and vary in the dif-

ferent states. The number of votes necessary, \[11\] and whether a majority vote in favor of license is essential to the granting of licenses, or whether licenses may be granted unless a majority vote against it, \[12\] depend on the terms of the statute. An election is proved by the records relating thereto. \[13\] Unless the result of an election is changed or rendered doubtful, it will not be set aside on account of mere irregularities or illegalities. \[14\]

four weeks on date of last publication neu \[474, 110 SWV 926.\] held not necessary to mention different dates of publication. Rhone wise regular. Id. Though four publications is sufficient compliance with law, one cannot be presented for sale within given territory \[12\], held, in absence of anything to contrary, sufficient proof that same was made in news-lication. Byrd V. State, $3 Tex. Cr. App. 507, 111 SWV 149; Green V. State, $3 Tex. Cr. App. 466, 110 SWV 919. Where result was properly published, held that subsequent republication did not add to or detract from regularity of proceedings putting law into operation. Beauty v. State, $3 Tex. Cr. App. 432, 110 SWV 449.

- \[15\] **Freed of publication:** Since statute makes no provision for any form of proof of pub-lication of notice of result being made to country court and entered of record, held not essential to validity of proceedings that fact of publication be entered of record. State v. Oliphant, 128 Mo. App. 252, 107 SWV 32. Where record of county court shows that notice was ordered to be published in prescribed manner, it will be presumed, on prosecution for violating law, that it was published as ordered in absence of contrary showing, burden of showing contrary being on defendant. Id. Certified copy of entry by county judge on minutes of commissioners' court of fact of publication is prima facte evidence of due publication. Rev. Civ. St. 1895, art. $391. Coleman v. State \[Tex. Cr. App. 112 SWV 1072. Is immaterial whether Judge writes entry of order himself or causes same to be transcribed by another. Id. Entry, which was made at proper time and in proper book, was entirely in handwriting of county clerk, including name of judge signed thereto. It appeared on page 181 of minutes. On page 182 appeared certificate of judge, signed by him, reciting that preceding six pages of minutes had been read over in open court and that same were approved. Heid that in view of lapse of time, and absence of showing by then judge or clerk that entry was not made by consent and under authority of judge, it would be considered that it was and that 'same was sufficient. Id. Where county judge signed minutes, held that entry was valid though in handwriting of county clerk. Coleman v. State, $3 Tex. Cr. App. 578, 111 SWV 1011. Failure of judge to make entry held not to invalidate election. Beauty v. State, $3 Tex. Cr. App. 432, 110 SWV 449.

- \[16\] **Freed of publication:** Since statute makes no provision for any form of proof of pub-lication of 13 Cur. Law. **INTOXICATING LIQUORS SS 2.**

Local option, when put into effect, suspends the operation of the general license law,\[15\] and ordinarily stands as the law until otherwise determined by a subsequent valid election.\[16\] Provision is generally made for resubmission of the question after the expiration of a certain period,\[17\] and sometimes in case of an improper submission.\[18\]

As a general rule, in the absence of a statutory provision to the contrary, the courts have no jurisdiction of an election contest based on the manner of conducting such election,\[19\] though they may inquire into the power to order the election and whether the same has been properly exercised.\[20\] Statutes usually provide for such contests, however,\[21\] and the method so provided is exclusive.\[22\] There is a conflict

15 License to sell in county held no de-no variance between complaint and informa-fense to prosecution for selling contrary to tion based on election of 1901 and orders for law after taking effect of general prohibi-publication of results of both elections. Hood v. State \[Ala.\] 47 S 163. Provision of Laws 1907, p. 848.

297. that during time any territory is anti-saloon territory operation of ordinances relating to sales of liquor and licenses therein shall be suspended so far as inconsistent with the act, held not in conflict with any constitutional provision. People v. McBride, 234 III. 146, 84 NEW 865.

Time of going into effect: Power of legislature to pass local option laws carries with it power to fix time when licenses shall cease in towns voting against granting of licenses and to change such dates. People v. Bashford, 128 App. Div. 351, 112 NYS 502. Change in such dates does not violate constitutional provision prohibiting passing of laws impairing contract obligations, since liquor tax laws are enacted under police power. Id. Where town voted against sale of liquor in Nov. 1907, held that prohibition became effective May 1, 1908, at beginning of excise year as fixed by Laws 1896, c. 112, notwithstanding adoption of Laws 1908, c. 144, which became effective April 21, 1908, making excise year begin Oct. 1 instead of May 1, that statute not being retroactive in effect. People v. Moore, 112 NYS 475.

Centa: Held that status as it exited in November, when vote was taken, did not change until Oct. 1, 1908, and that town continued to be license town until latter date, and one who was entitled to and had certification therefore had must be contested one from that date until Oct. 1, 1908. People v. Bashford, 128 App. Div. 351, 112 NYS 502.

16 Fact that there had been prohibition election held subsequent to one under which defendant was prosecuted, which also resulted in favor of prohibition, held not to have invalidated or set aside such former election or to prevent conviction under information charging violation of law put in force by first election. Wade v. State, 52 Tex. Cr. App. 608, 108 SVW 376; Tipitv. State, 63 Tex. Cr. App. 302, 109 SWW 161. Subsequent election does not nullify form-er one. Wade v. State, 63 Tex. Cr. App. 184, 109 SWW 191. May be prosecuted under first one. Wade v. State, 63 Tex. Cr. App. 299, 109 SWW 192; Johnson v. State, 63 Tex. Cr. App. 33, 109 SWW 926; Masie v. State, 63 Tex. Cr. App. 548, 107 SWW 846. Where two valid elections, one held in 1801 and other in 1904, both resulted in favor of prohibition, held that prosecution could be based on either, and hence that there was no warranting the possibility that the of authority as to whether injunction will lie at the instance of interested parties to prevent the enforcement of the law on the ground of the invalidity of the election or the act under which it is held.23 Private citizens who are members of an organization having for its object the enforcement of the law are not proper parties to such a suit.24

Footnote 23: The author is grateful to the anonymous referee for his constructive comments.

SS 3. _Licenses and license taxes._ \_Authority to license or tax, and application of license laws.\_See 10 C. L. 425--In the absence of a constitutional provision to the contrary, the legislature has authority, in the exercise of the police power, to license the business of selling intoxants and to tax those engaged in it.28 The authority in their investigation to matters therein when none were due by them, held insulin-specified. Cofield v. Britton \[Tex. Civ. App.\] cient to show illegal action in absence of 199 SVW 493. Under Rev. St. 1895, art 339, an attempt by stat-as amended by Gen. Laws 1997, p. 447, c. 8, but was produced to precinct inspectors, court has power to try and determine all matters connected with election. Including perceptions because they were over age. Id. allegations that county commissioners fect, etc. Id. Forem of proceedings. Proceedings to test resolity and regularity of elections are nn-der the statute by bill in equity filed for that purpose. Metcalf Co. v. Orange County \[Fla.\] 47 S 363. Parties: Responsibility of defending in produce court validity of election, held under (99 O. L. 35), these county local option law (99 O. L. 35) may be contest upon county in which the election was held, and it is the duty of county to appear by its attorney for single purpose of making defense, and without regard as to whether result of election was for or against local option, but an electror may appear personalism or by counsel at same time and take part in defense. Perry County v. Tracy, 7 Ohio N. P. (N. S.) 619. Pleading: Factors relied upon by contestant to impeach validity of election should be set forth specifically and definitely. Oxley v. Allen \[Tex. Civ. App.\] 167 SVW 545. Allegation that election was illegal because polis were closed at 6'clock instead of 7, as required by law, thereby depriving a large number of voters of the privilege of voting, which would have changed result and rendered same doubtful, held insufficient for failing to allegge number and names of per-sons claimed to have been deprived of right to vote, or any excuse for such failure, or that result would have been materially changed had they voted. Id. Striking out paragraph allegings that each administered to election officers was illegal and not valid held proper, since it devolved upon contestant to alleg specifically the bath in fact taken and to show that same was different from that required by law. Id. allegations in bill in equity that certain named persons were allowed to vote when they were not qualified voters and had not paid their poll taxes, though poll tax was due from them as condition precedent to right to vote, held, who taken in connection with other allegations to which they related, to be suffl-cient as against demurrer that facts were not set up to show that such persons were not entitled to vote. Metcalf Co. v. Orange County \[Fla.\] 47 S 626. Bill held, as against such demurrer, to sufficiently allege that tax was lawfully assessable against such persons. Id. allegations that certain named persons were duly registered voters, but were illegally not allowed to vote because they had not paid their poll taxes and their poll tax. allegations that are not not paid paid their poll taxes.

## 3.2. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.3. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.4. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.5. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.6. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.7. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.8. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.9. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.1. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.1. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.1. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.1. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.1. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.2. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.3. The author's main contribution

In this section we present a brief review of the author's main contribution to the work of this thesis.

### 3.4. The author's main contribution

In this of municipalities in this regard depends on the terms of their charters and the general laws under which they operate.26 A state license does not ordinarily authorize the holder to sell in violation of municipal ordinances or excuse him from obtaining a municipal license,27 nor can a municipality license the sale of intoxants in violation of a state prohibition statute.28 Whether a particular business comes within the terms of the statute or ordinances is a question of construction.29 Wholesale

that c. 95 was not unconstitutional because that such dealers in other liquors were extate could not prohibit and license sale at empt from its operation. Id. Under Const. same time. State v. Roberts, 74 N. H. 476, art. 229, general assembly may authorize 69 A 722. Said chapter held not in conflict with Const. art. 82, requiring legislature to inoculants license tax in excess of that im-inculerate principles of humanity, honesty, sobriety and sincerity among people, but to be valid exercise of police power. Id. Such provision of constitution does not require sale to be absolutely prohibited. Id. Defendants in action on bonds given to secure compliance with conditions on which licenses were issued held not entitled to contend that.

189, whereby state makes special provision provisions of said chapter and other statutes relating to licensing were unconstitutional

trol provisions of Act No. 136, p. 224, of 1898, as delegation of legislative power to commissioners, where it did not appear that liberal statutes applying to municipal corpora-censes issued to defendant belonged to any

1898, Act No. 17, p. 24, of 1902, or Act. No. 142, attached, or that suits were based on breach-

1904, of 1904, requiring that, as condition es of any conditions imposed by commission-

1913, whereby state makes special provision provisions of said chapter and other statutes

1929, of 1929, of 1939, of 1940, of 1959, of 1960, of 1971, of 1972, of 1989, of 1992, of 1993, of 1994, of 1995, of 1996, of 1997, of 1998 and retail businesses are generally required to be licensed separately.20 In some states the license fee is graded according to the gross annual receipts of the business.21

tion must be made to the proper tribunal\*\*${}^{ ttt{ss}}$\*\* and filed with the proper officer,\*\*${}^{ t{ss}}$ **and must conform to the statutory requirements as to notice,**${}^{ t{ss}}$ **consent of property owners,**${}^{ t{ss}}$ **and payment of fees.**${}^{ t{ss}}$ **The applicant is sometimes entitled to a hearing.**${}^{ t{ss}}$\*\*\*\*

**and that it was error to issue writ without . A 450. Mere fact that $ 2712 gives court first determining such issue in applicant's favor. Id.**

\*\*34. Character of applicant: Is duty of l1- censing board to see to it that applicant is man of respectable character and standing, and they cannot indulge in presumption that such is the case when it is denied by re- mencstrane, even where no evidence to contrary is introduced, but applicant must prove such fact. In re Klamm \[Neb.\] 117 117 891. When alleged respectable character of applicant is denied, it is duty of board to consider ignolable acts or crimes which evidence attributes to him, and to determine therefrom whether he is proper person to receive license. Bolton v. Hegner \[Neb.\] 118 187 1096. Where uncondirected evidence showed that during preceding year applicant had permitted petty gambling at place of business under his control, and on occasion had exhibited laxcivious pictures, held that license should have been refused. Id. Where sole objection urged against character of applicant was that no man of respectable character would apply for license to retail toxicants, and only evidence presented to council on that point was testimony of one witness who swore that applicant was man of good reputation and respectable character and standing, held that council properly determined that issue in favor of applicant. In re Phillips \[Neb.\] 116 NPV 950. One who was frequently under influence of toxicants and who during previous year had permitted gambling in his place of business held not man of respectable standing and character, within Cobbey's St. 1897, $ 7150, and hence not entitled to license. Woods v. Garvey \[Neb.\] 118 NPV 1134. Though sale in 1986 to habitual drunkard might not have diquali- fled vendor from receiving license in 1908, held that it was pertinent as tending to show that he was not of respectable character and standing. In re Powell \[Neb.\] 119 NPV 99.

**Previous violations of liquor laws: License**

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- \[346\] 12 Cur. Law. A bond is often required," which must be conditioned as required by law." \[42\]
- \[43\] of ordinance providing that in all cases \[44\] \[45\] \[46\] \[47\] \[48\] \[49\] \[50\] \[51\] \[52\] \[53\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[60\] \[61\] \[62\] \[63\] \[64\] \[65\] \[66\] \[67\] \[68\] \[69\] \[70\] \[61\] \[60\] \[63\] \[67\] \[68\] \[69\] \[71\] \[60\] \[61\] \[62\] \[64\] \[65\] \[67\] \[68\] \[69\] \[72\] \[60\] \[61\] \[63\] \[64\] \[65\] \[67\] \[68\] \[69\] \[73\] \[60\] \[61\] \[62\] \[63\] \[64\] \[65\] \[67\] \[68\] \[69\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[70\] \[71\] \[70\] \[72\] \[73\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[70\] \[73\] \[75\] \[79\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[70\] \[74\] \[79\] \[71\] \[72\] \[73\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[70\] \[74\] \[79\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[70\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[70\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[70\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[70\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[79\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[79\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[71\] \[72\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[71\] \[72\] \[7 tions on such bonds are treated in subsequent sections.\[48\] In some states no license may be granted over the remonstance of a certain number of property owners\[44\] or voters\[45\] in the vicinity of the place where the business is proposed to be carried

held not to apply to merchants. Id. Bond

42. Bond falling to provide that vendor so exacted held not voluntary bond and hence not good as common-law bond. Id.

St. 1907, c. 50, and defective in other participants, held Insuffleent. In Erc Style (Neb.) 115 1897, art. 5060j, held that there could be no recovery on bond of dealer in county in which sale of Intoxicants, except for medicinal purposes, was prohibited that not been signed by principal at the time the acts alleged as breaches were committed by him.

St. v. Teague \[Tex. Civ. App.\] 111 SW 234.

Suit being one to enforce penalty for breach

and attutory bond, held that there could be

a amended bond and thereby validate action of no recovery therein on theory that bond was

good common-law obligation. Id.

a
s
stroke held sufficient in view of fact that

Approval: Where application properly sworn

bond conditioned as required by statute is to was filed with country clerk, as was bond,

jurisidentiad and is for benefit of all persons and occupation tax receipt showed that same

sons who may sue thereon. In re Johnson had been paid and evidence showed that principal was conducting salon at place named

43. For actions by state or municipality, during year for which tax was paid, held

that failure of county judge to approve bond

did not affect its validity in action thereon.

Munos v. Brassel \[Tex. Civ. App.\] 108 SW

417.

Sureties: Act No. 183, approved May 8,

1907, authorizing board of trustees of village

of Perry to accept snrety company bonds in

lieu of bonds required of liquor dealers, held

not to require acceptance of such bonds in

10 licenses shall be granted where owners of

lieu of those prescribed by Comp. Laws,

$ 5383, but to be permissive only, so that

mandamus would not issue to compel acceptance of such bond. Likewise v. Perry Truesues,

tes, 161 Mich. 88, 14 Det. Leg. N. 812, 114

NWF 682. Corporation having power under its character to engage in business of buying and selling liquors at wholesale and retail,

etc., held to have implied power to become

surety on retail dealer's bond, even though

dealer was not one of its customers. Munoz v. Brassel \[Tex. Civ. App.\] 108 SW 417.

Reveroation or cancellation: There being no

provision in Code, $ 2448, as to term for

which bond is required to be given, held that

wident purpose was to permit continuing

bond which should not be subject to revo-

cation during any year with reference to

which has taken effect. Fidelity & Depeist

Co. v. Jenness \[lowal\] 116 NW 709. Surety,

by revoking bond prior to beginning of any

year, and notifying officers required to see

that proper bond is on file of such revo-

meaning of Rev. Laws, c. 100, $ 16, so as to

tion, terminates his liability, and no formal

cancellation by such officers is necessary for

that purpose. Id. Acts 29th Gen. Assem.

c. 54, p. 33, relating to bonds of public off-

cers, etc., and providing that sureties may

precure cancellation of their liability thereon

by giving 30 days' written notice, etc., held

not to apply to liquor dealer's bond given

under Code, $ 2448. Id. Fidelity further that

neither said act nor Code, $ 1183, referred to

therein, requires any affirmative action by

approving officers in canceling bond after

giving of required notice, but that notice and

return of unearned premium lpso facto operates as cancellation after expiration of 30

days. Id. Provision of Code, $ 1283-1286,

held not incorporated into act by reference to $ 1183. Id.

12 Cur. Law.

introoxicating Liquors $ 3.

342. Bond on. The granting of licenses to hotels46 and druggists47 is sometimes made to depend on whether in the opinion of the licensing authorities, there is any reasonable necessity therefor. In some states a license may be refused when, in the opinion of the licensing authorities the place where the business is sought to be carried on is unsuitable,48 and a denial of an application on that ground precludes the granting of a second application for a license for the same place within a specified time.49 In some states a new license may not be granted within a specified time after the cancellation of a former one for violation of the liquor laws.40 Matters relating to

tocruit court from decision of board of commissioners. Id. County ordinance held to give board of supervisors authority to re- fuse license where majority of electers in any election district, residing within one evidence, in exercise of sound discretion and mile of proposed saloon, sign and file written protest against granting of license, regard- unless record shows abuse of discretion. In ress of whether applicant is proper person to be licensed. Davis V. Board of Sup's \[Cal.\] permit witnesses to give their opinions as To App.\] 95 P 170. Ordinance held not uncon-stitutional as delegation of judicial powers conferred on board of supervisors. Id.

46 Whether there is any necessity for taxern at particular place depends upon whether or not there are persons who in going there naturally seek or desire accommodations at tavern in question, and not upon whether or not accommodations can be secured at another place. Schneider v. Comm. 33 Ky. L. R. 770, 111 SW 303. Court held unable to say, in view of evidence, that no such necessity existed. Id. Evidence as to dis-orderly character of applicant's tavern held not such as to show abuse of discretion by county court in granting license. Id. Fact that recelpts from bar were greater than those from tavern held not to show that applicant was not bona fide tavern leaper, or that keeping of tavern was mere device to enable him to sell intoxicants. Id. Provision of Act May 13, 1887, SS 7 (P. L. 108), that court shall refuse license in all cases when in its opinion, "having due regard" to number and character of petitioners for and against such application, such license is not necessary for accommodation of public and entertainment of strangers or travelers, held not to require question to be determined in favor of side presenting weightless petition in number and character of signers, quoted words meaning such regard as circumstances of case demand.

Remoor Hotel Co.'s License, 34 Pa. Super. Ct. 625. Proof that applicant's place is necessary as hotel for public accommodation does not necessarily compel conclusion that license to sell intoxicants at retail at such place is necessary, or entitle him to such license on compliance with other statutory requirements. Id. Refusal of license held not abuse of discretion. Id.

Refusal of application after full hearing and consideration as not necessary does not make question of necessity na judicate upon hearing of application of same person for same premises in subsequent year. Id. Though refusal is not conclusive, court may, in exercise of sound judicial direction, consider it in connection with other relevant facts established at hearing or known to court, particularly if conditions are unchanged. Id.

47. On application of registered pharmaceu for permit to keep and sell intoxicants, question whether reasonable convenience and the deliberations of the licensing authorities, \[51\] and the form and contents of the license, \[62\] and the term for which it runs, \[58\] are regulated by statute. The assessment of mulct taxes \[54\] and proceedings to procure the listing of property for taxa-tion \[65\] are purely statutory.

Provision is generally made for review by appeal or otherwise. \[56\]

$1. Statutory application under Burns' Ann. St. 1908, **SS316** et seq., to obtain license, is statutory clvtl proceeding, and in determination of questions therein involved board of commissioners, either with or without a re-monstance, act judicially and not as an agent of the state. State v. Gorman \[Ind.\] $8 NE 214, 115 NW 200. Doctrine of unreasonable-768. State as such has no such interest in proceedings to obtain license as will entitle it to become party defendant on its applica- tion or to be recognized as such by board of commissioners in first instance or by circuit court on appeal from its decision, and court has no power or authority to admit state or attorney general as party defendant. Id. Proceeding is neither suit by or against state within meaning of Burns' Ann. St. 1908, **SS** 9269, providing that attorney general shall prosecute and defend all suits by and against state unless same is otherwise provided for after notice by clerk of court in which same is pending, and on appeal from decision of board clerk of circuit court is not required to notify attorney general. Id. Interest of state in general welfare of its citizens does not, in absence of statutory authority, give it right to become party. Id. Either board or court on appeal may of its own motion call and examine witnesses in regard to fitness of applicant, and may, if deemed necessary, authorize appearance of an amicus curiae. Id. Under Rev. St. 1899, **SS** 5978, 5900, 5951, 5956, held that it is duty of board of alderment of cities of fourth class to pass on sufficiency of petition for license, and mayer has no right to participate in proceedings except by way of advice or protest, or to vote in case of tie, or to review decision of board. State v. Russell \[Mo. App.\] 110 SW 667. Board of aldermem act judicially and not legislative in passing on sufficiency of application and petition, so that their decision is conclusive and mayor has, in absence of fraud, no right to refuse to sign license granted by them because of insufflicency of petition. Id. Duty of mayor to sign license as required by $6978 being ministerial, performance thereof may be compelled by mandamus. Id. Mayor in cities of second class may cast deciding vote in contest over application for license in case of the vote of council. Statutes construed. In re Haatings Brew. Co. \[Neb.\] 119 NW 27.

$2. Though word license as used in Gen. St. 1902, **th**. 16, includes intangible right granted license as well as writing signed by commissioners, which is the instrument and evidence of that grant, there is nothing in statutory argument of such right by commissioners otherwise than by writing signed by them, and specifying license and town and building in which sales are licensed to be made. Id. $2669, 2673.

Connecticut Brew. Co. v. Murphy \[Conn.\] 70 A 450. One not having written license signed by county commissioners licensing him to sell does not have license, and sales by him are illegal. Id.

$3. Requirement of charter of city of Red-

wood Falls that all licenses shall commence

standutory clvtl proceeding, and in determination of questions therein involved board of

not repealed by Gen. Laws 1895, **SS**, 90, p. 211, commissengers, either with or without a re-monstance, act judicially and not as an agent of the state. State v. Gorman \[Ind.\] $8 NE 214, 115 NW 200. Doctrine of unreasonable-

1ress held to apply only to city ordinances. proceedings to obtain license as will entitle

enacted pursuant to general charter powers

It to become party defendant on its applica-

over the subject-matter and not to statutes.

connected by legislature. Id.

commissengers in first instance or by circuit court on appeal from its decision, and court has no power or authority to admit state or attorney general as party defendant. Id.

$5. Mulet tax provided for by Code,

has no power or authority to admit state or attorney general as party defendant. Id.

Hence in general welfare of its citizens does not, in absence of statutory authority, give it right to become party defendant. Id. Either board or court on appeal may of its own motion call and examine witnesses in regard to fitness of applicant, and may, if deemed necessary, authorize appearance of an amicus curiae. Id.

Under Rev. St. 1899, **SS** 5978, 5900, 5951, 5956, held that it is duty of board of alderment of cities of fourth class to pass on sufficiency of petition for license, and mayer has no right to participate in proceedings except by way of advice or protest, or to vote in case of tie, or to review decision of board. State v. Russell \[Mo. App.\] 110 SW 667. Board of aldermem act judicially and not legislative in passing on sufficiency of application and petition, so that their decision is conclusive and mayor has, in absence of fraud, no right to refuse to sign license granted by them because of insufflicency of petition. Id. Duty of mayor to sign license as required by $6978 being ministerial, performance thereof may be compelled by mandamus. Id. Mayor in cities of second class may cast deciding vote in contest over application for license in case of the vote of council. Statutes construed. In re Haatings Brew. Co. \[Neb.\] 119 NW 27.

### 350. Introducing Liquors $ 3.

12 Cur. Law.

_Nature, effect and scope of licenses._ See 10 C. L. 450.-A license is not a contract giving vested or property rights but a mere temporary permit57 which may be modified, annulled or revoked at any time.58 It cannot be assigned without the consent of the licensing authorities.59 The operation of a license is confined to the place party within meaning of Cobbey's St. 1907, SS 7153, and may appeal from judgment of district court reversing action of board In re-fusing licenses to applicants. In re Japanese (Neb.) 116 NV 966. Cites having excise boards, which are by statute given exclusive power to license and regulate sale of liquors, cannot appeal from order denying or granting license. In re Klamm \[Neb.\] 117 NV 991. City held entitled to be represented by city attorney on trial in circuit court of appeal from order revoking license, it being duty of commonswealth's attorney to aid in enforcing policy of city, etc. Commonswealth v. Campbell, 32 Ky. L. R. 1131, 107 SW 797. Even if commonswealth's attorney had authority to waive summons and advance appeal, held that he should have done neither without notice to city attorney and giving him opportunity to be present at trial. Id. License held proper party to territorial proceedings to review action of county court in granting license, both because of his interest and because adjocation would finally determine his right to a license. State v. Denton, 128 Mo. App. 304, 107 SW 446. Notice: City held entitled to notice of appeal by licensee from order revoking license so that judgment of circuit court restoring license after trial without summons or notice to city, license board, or city attorney, was invalid. St. 1903, 83 034, 986, 987, Civ. Code Prac. SS 742, 51. Commonwealth v. Campbell, 32 Ky. L. R. 1131, 107 SW 797. Transfer of case: On appeal by remonstrators from decision of licensing board granting license, jurisdiction is conferred on district court by giving notice of intended appeal and filing, within reasonable time in valid court, transcript of proceedings had upon hearing before board. In re Foltyn \[Neb.\] 118 NV 119. It is no ground for dismissing appeal that transcript of proceedings had before board upon the hearing is defective either in substance or in certification, but such defect may be reached and considered by motion to strike from the files or on hearing on merits. Id. That certified transcript of evidence taken before licensing board is not filed with transcript of proceedings of board upon such hearing is no ground for dismissing appeal, but district court may compel be board to furnish such transcript. Id.

Scope of review: Questions presented on appeal under Gen. St. 1902 from decision of county commissioners on application for re-faced in evidence. Id. Oral testimony of moral permit are, have commissioners acted legally, and have they exceeded or abused their powers. Appeal of Borman \[Conn.\] 71 A 502. On appeal from refusal of county commissioners to grant license, question whether commissions exceeded their authority in granting renewal license to former occupant after purchase of premises by second applicant, but before his deed was re-cored, held not open to consideration where no appeal was taken from granting of re-neval. Appeal of Stavole \[Conn.\] 71 A 549. Proceeding on application by registered pharmacist for permit to sell intoxicants is specified therein,\*\* though provision for obtaining a removal permit is often made.\*\*\[61\] _Revocation, cancellation and surrender._\[85, 10\] \*\*C. L. 431.**The right to revoke has already been considered.**\[82\] **Grounds of revocation may consist either of matters anddating the issuance of the license**\[43\] **or of a subsequent violation of the laws relating to the sale of intoxants.**\[64\] **Discretionary power to revoke without cause is sometimes conferred on the licensing authorities.**\[65\] **Quo warranto is held to be the proper remedy to challenge the validity of a license.**\[66\] **of unexpired license transferred by him to** **(revoking license and from debarring license defendant where he did not prove ordinance** **from thereafter engaging in saloon business authoritying such transfer without which there could be no valid sale. Hill v. Sherifan** **or laws governing sale of toxicants onlydan, 12% Mo. App. 415, 107 SWV 426. Nor was** **and that conviction in same year of viola-he in position to claim benefit of presumption of right acting on part of officeials** **no ground for revoking license or refusing where he offered no competent evidence to** **subjection for another license. Cox v. Jackson City Common Council, 152 Mich. 630, in attempted transfer. Id.** \*\*\[67\] **of application held agreement in terms no two barrooms in separate and distinct build-mings under one license. Huber v. Com., 33** **(c)ctorar proceeding to review section of** **(c)ctor** **(d)ctor** **(e)ctor** **(f)ctor** \*\*( It is generally held that the licensee cannot recover any part of the license fee on the revocation of his license before its expiration," unless the statute so provides," though there seems to be some conflict of authority in this regard." Provision is sometimes made for a rebate on the voluntary surrender of a license for cancellation."

Revocation proceedings are entirely statutory," and the various statutes must be looked to for the purpose of determining matters of practice and procedure,"

ef. Legal representatives of deceased licen-

cause of constitution. Allsman v. Oklahoma-

see cannot recover any part of amount paid

ma City \[Okl.\] 95 P 468. Held further that

for such license because of licensee's death,

such sum could be recovered in action in

though license is thereby revoked. Wood v.

Tature of assumption, since it was money of

School Dist. No. 82 \[Neb.\] 115 NW 308. Muntic-

plaintiff in hands of defendant which latter

l quality held not required to return unearned

in equity and good conscience had no right

portion of license fee on revocation, under

to retain. Id.

Bal. Ann. Codes & St. $ 2935, of license of one

70. Under Laws 1896, c. 112, $ 25, as

who pleaded guilty to selling to minor.

amended by Laws 1903, c. 486, when con-

Kruger v. Colville \[Vrsab.\] 95 P 81. Con-

stured in connection with Laws 1896, c. 112,

tention that as licensee had paid fine

> 34, as amended by Laws 1908, c. 350, held

posed on his plea of guilty be ought not to

that one under arrest for previous violation

be held liable on bond, and, in addition there-

of liquor tax law when certificate was issued,

to, forfeet, held untenable. Id. City is-

and who was convicted thereof prior to sur-

sued license and received prescribed fee.

render of certificate for cancellation, was not

Thereafter state law raised fee for that

entitled to rebate. People v. Clement, 128 App.

county and licensee, without any interfer-

Div. 539, 112 NYS 951, rv. 58 Misc. 631, 111

ence or direction from city authorities, ceased

NYS 1033. Held further that, in view of Laws

doing business, and before license expired

applied for return of unearned portion of

689, to 112, $ 23, as amended by Laws 1905,

fee. Application was not acted upon until

of violation of act shall traffic in liquors for

after expiration of license, when it was

there years from date of conviction, such

granted. Held that, city not having termi-

person was not one "authorized to sell liq-

nated license and no steps having been taken

tors" under the act within meaning of $ 23,

to refund money before license expired, fee

as amended, and hence neither he nor his

passed absolutely to city, and repayment of

assignes were entitled to rebate. Id. Find-

any portion thereof would be enjoined at

ing of guilty held conviction of violation of

stance of citizens. City of Fitzgerald v.

liquor tax law within Laws 1896, c. 112, $ 25,

Witchard, 130 Ga. 552, 61 SE 227. In action to

tneous sentence had been suspended and

recover money paid in monthly Instalments

never been imposed, and hence statement of

for saloom license, held that payments were

voluntary and hence could not be recovered

validaton of said law within three years was

Eslow v. Albion \[Mich.\] 15 Det. Leg. N. 608,

false, though time within which sentence

117 NW 328. Held proper to refuse to permit

plaintiff to introduce receipt, agreement and

and he was not

protest made year before on payment of licensee

theor provisions of the act" and was not

cense fee under another ordinance, which fee

was returned on ordinance being held in

valid. Id.

71. Board of license commissioners held to

01. Provision of Laws 1907, p. 297, requir-

have no jurisdiction to resend vote of pre-

ing return of unearned license fees on creation of anti-saloon territory, held not un

ceding board granting license, proper pro-

conducting as an attempt to compel mu-

nuclipality to incur a debt. People v.

Bride, 234 Ill. 146, 84 NE 865. Constitutional

I limitation of municipal indebtedness held not

to apply to case where municipality has

ceived money for licensee which it ought to

refund. Id. Provision held within general

subject of title of act. Id. Provision held

not void as changing charters of municipalities,

ties, etc., since powers and privileges of mu-

nuclipalities may be changed, modified or tak-

en away at any time by general law. Id.

In any event held that if such provision was

valid it would not affect validity of rest of

act. Id. Provision held not invalid as giving persons residing outside city right to

determine use of money in city, since general

law, and not voters, determines whether licensee

cense fee shall be refunded or not. Id.

69. Licensee held entitled to recover back

theor needed portion of license fee where, including questions relating to notice.78 Such proceedings are usually subject to review.74 A revocation absolutely cancels the license.75

Footnote 75: The author is grateful to the anonymous referee siderable conflict of authority as to how far such statutes apply to social clubs.18

Footnote 18: The National Science Foundation of China is a Fellow of the National Science Foundation of China, under the name of the National Science Foundation of China.

to order for whisky defendant produced liq- uid to fill order held evidence that such liquid was whisky. People v. Marx, 112 NYS 1011. Evidence held insufficient to warrant finding that beverage sold was intoxacing. Ref. \[A\] also called the "fudge" of the law.

Among the most common regulations are: prohibiting the keeping of a place where liquors are sold in violation of law;79 prohibiting the storing," keeping," or poseral doctrine of immunity of bona fide social (79. Acts 1907, e. 16, 8 1, held not in cenclubs from regulation as retailers of liquor (79. Acts 1907, e. 16, 8 1, held not in cenclubs from regulation as retailers of liquor (79. Acts 1907, e. 16, subject embraced has been repulated in some jurisdictions (79. Acts 1907, e. 16, subject embraced and such regulations held applicable both to the club itself (State v. Essex Club, 53 N. Jaw, 89, 20 A 769; Army 84 Navy Club v. Dist. of Col, 8 App. D. C. 644; Beauvoir Club v. State, 148 Ala. 643, 42 S 1040, 121 Am. St. Rep. 82; Mohrman v. State, 105 Ga. Amdavit, which was made and filed March 709, 82 SE 143, 70 Am. St. Rep. 74, 43 L. R. A. 395; Mammont v. State, 48 Ind. 21: State v. Boston Club, 45 La. Ann. 586, 12 S 895, 20 L. R. A. 185; University Club v. Raterman, 8 Abh. 550, 1907, 239, which took effect March 16, 41 NY 508, 2 L. R. A. 494. See, also, the overvited New York decisions following the supposed doctrine of People v. Andrews, infra) and to employees thereof (Martin v. State, 108 A. Stato v. Nets, 108 N. C. 781, 13 SE 225, 12 L. R. A. 412; State v. Locke, year, 96 N. C. 633, 59 Am. Rep. 287), and it has been held that dispensing liquors to club maintenance of place. State v. Black \[Ark.\] members constitutes a sale within the statutory meaning (State v. Mudie \[S. D.\] 115 NW 107; People v. Law & Order Club, 203 III. 127, 67 NE 856, 62 L. R. A. 884; South Shore Country Club v. People, 228 III. 75, 81 NE 805, 12 L. R. A. (N. S.\] 519, 119 Am. St. Rep. 417). The recent case of State v. Minnesota, 410 N. (Min.) 119 NW 494 holds that a bona fide social club is within the statutory requiring persons dispensing liquors in quantities of less than five gallons to take out a retail-er's license. This case expressly disapproves the doctrine of State v. Adelphi Club, and Commonwealth v. Pomphr, supra, two justices dissenting upon the ground (inter alia) that the statutory is a police rather than a revenue regulation, and is, hence, inapplicable in such cases. The still more recent case of Causner v. California Club \[Cal.\] 100 P. 88 holds that such regulations do not apply to clubs. The United States revenue tax imposed upon retail liquor dealers generally is held to apply to clubs (United States v. Wittig, 2 Low. Dec. 466, Fed. Cas. No. 16,748). That clubs organized solely for the purpose of selling liquor to members are subject to laws regulating the retail traffic is not disputed (State v. Mercer, 32 Iowa, 405; Sutton v. State \[Tex. Cr. App.\] 40 SW 501; Feige v. State, 49 Tex. Cr. App.\] 513, 16 Tex. Ct. Rep. 455, 95 SV 506; Adkins v. State \[Tex. Cr. App.\] 85 SW 509; Rickard v. People, 79 III. 85; Commonwealth v. Ewing, 145 Mass. 119, 18 NE 865: State v. Tinfall, 40 Mo. App. 271; Sothman v. State, 66 N. 302, 92 NY 803; Commonwealth v. Tierney, 148 Pa. 552, 24 A 84: Commonwealth v. Brown, 6 Pa. Super. Ct. 104; Commonwealth v. Alfa, 24 Ta. Super. Ct. 454). This was in effect the decision in People v. Andrews, 115 N. X. 47, 21 NE 358, 6 L. R. A. 128, vrg. 50 Hun, 891, 2 NY 868, but, through a missprehension of its scope, this case was taken as authority for applying such laws to bona fide social clubs in People v. Singh, 34 N. Y. St. Rep. 498, 12 NY 40; People v. Bradley, 83 N. Y. St. Rep. 562, 11 NY 594, and People v. Luhrs, 7 Miisc. 503, 82 NY 458, and 119 Haun. 415, 29 NY 789, a line of decisions expressly overvited in People v. Adelphi Club, 143 N. Y. T., 43 NE 141, 62 Am. St session" of liquors for the purpose of disposing of them in violation of law; prohibiting selling without a license," or in prohibition" or local option" territory;

SS2. Element of place held not to enter into --peller v. Milli \[Ind.\] 85 NE 8. Refusal of offense of being found in possession of in- --city officers to hear application for license toxicants for purpose of selling, bartering, or giving them away in violation of laws to prosecution for selling liquor without license violation of city ordinance. Id. 16 (Burns' Ann. St. 1908, & SS387). Barnhardt --V. State \[Ind.\] 86 NE 481.

SS3. Law regulating sale of toxicants held constitutional. People v. Kennis --\[Mich.\] 15 Det. Leg. N. 382, 116 NW 584. Ordinance prohibiting sale by unauthorized persons held not impliedly revealed by subsequent ordinance providing general scheme for regulation of licenses, two not being inconsistent and not covering same field. Town of Montelair v. Scola \[N. J. Law\] 89 A 451. Unrestricted common right to engage in business of retailing intoxicating liquors has been abrogated by statute, and privilege of conducting such business limited to particular class of persons who comply with certain prescribed conditions. City of Montelair v. Milli \[Ind.\] 85 NE 6. Before anyene can rightfully exercise such privilege, he must bring himself within law and show that he has fully met all its terms and conditions. Id. Purpose of legislature in prohibiting sale without license held to provide revenue, and to restrict and regulate business. Brown v. State \[Tenn.\] 114 SWV 188. Rev. Laws 1905, & 1519, held not void because prescribing no maximum penalty for its violation on theory that cruel or unusual punishment might be imposed, since, even if invalid when standing alone, & 4763 preferishes maximum penalty for misdemeanors when not otherwise expressly fixed, and controls when particular statute is silent on subject. State v. Kight \[Minn.\] 119 NW 56. Selling at retail without license, and without having receipt and notice for such license posted, held but one offense under Rev. Pol. Code, & 2834. State v. Mudie \[S. D.\] 115 NW 107. One not engaged in nor interested in liquor traffic, whose employee in- --advertently or without authority makes sale at his place of business, is not "interested" in such sale. Partridge v. State \[Ark.\] 114 SWV 215. Town ordinance is a "law of this state" within meaning of Pen. Code, & 435, making it misdemeanor to carry on without license any business for which license is required "by any law of this state." Ex parte Bagshaw, 152 Cal. 701, 93 P 864. One who selle eingle drink is retail dealer engaged in business of selling intoxicating liquors with in meaning of Comp. Laws 1897, & 5380, providing that retail dealers shall be held to include all persons who sell liquors by the drink, etc., and liable to prosecution as such for selling without paying tax prescribed by Id. & SS379, as amended by Pub. Acts 1903, No. 62, p. S3. People v. Wilcox, 152 Mich. 39, 15 Det. Leg. N. 172, 115 NW 973.

Intent: On prosecution for selling liquor eutted corporate limits of cities and villages in any lees quantity than five gallions, intent ie immaterial, and good faith on part of defendant is no defense. People v. Nylin, 236 Ill. 19, 56 NE 156, aff. 139 Ill. App. 500.

Effect of inability to obtain license: Where law requires license as condition precedent to engaging in sale of liquors, strict compliance therewith is necessary. City of Montelair v. Scola \[N. J. Law\] 89 A 451. Unrestricted common right to engage in business of utilizing in state, held that reason why defendant has helped to their agent to be delivered to had not procured license was immaterial, so that it was not necessary for indicment **s** **s** **t** **t** **t** \*\*s * entry under an agreement or whether trans-action constituted sale held for jury under evidence. State v. Smith \[Vt.\] 69 A 762. Proof that defendant took money and shortly thereafter returned with whiskey, which he delivered to purchaser, held to raise pre-sumption that defendant was seller, and to establish prima facie case of guilt. Williams

- \[G2. App.\] 62 SE 671. Sale of five-gallon kege of whiskey to combination of person-son subscribing director held sale to various individuals in quantities less than five gallons. Strong v. State \[Ark.\] 114 SW 239. Defendant being one of procuring causes of sale held accessory, and hence liable as prima-eipal in first degree under Kirby's Dig.
- \[H166, 1661. Id. In action for penalty, defendant held not entitled to attack ordinance under which action was brought on ground that it made master liable in all cases for giving away of liquor by his servant, etc., since no such questions were raised in record and ordinance might be valid in part and in-valid in part. City of Arcola v. Wilkinson,
- \[H170.\] 633 Ill. 250, 84 NE 264. Instruction that if defendant was propriator of place where liquor was sold, and liquor was in his posses-sion and control as propriator, and was sold with his knowledge and consent, he would be guilty of a sale, though the might not have himsell handed out liquor to customer, held sufficient under the evidence. State v. Pligg \[Tex. Cr. App.\] 14 SW 813. Evidence \[Kam.\] 97 P 859. Revival 1905, 8534, held that witness went to back of restaurant, to make it offense to procure liquor from illicit dealer by purchase and deliver it to another when both purchase and delivery are made in place where sale is prohibited by law, and to make such person agent of selfer and not of purchaser. State v. Burch-fold \[N. C.\] 63 SE 89. In such case person making purchase is to be considered as a principal and liable criminally as the seller, and whiskey was turned over to defendant in regarded as principals. Id. Person making purchase cannot escape liability by testifying that he was not selfer's agent. Id. State does not apply where sale is legal or where state statute cannot apply to and affect transaction, as in case of interstate commerce, but in such case general rule applies that one acting entirely as agent of buyer is not indicitable. State v. Whisnant \[N. C.\] 68 SE 91 Sale held consummated in another state, so that transaction was interstate commerce. Id.
- Place of sale: Where contract was made in prohibition territory and it was agreed that delivery was to be made there, and it was in fact made there, held that transaction was illegal. Shelby Vinegar Co. v. Hawn \[N. C.\] 63 SE 78. Sale held consummated in another state so that transaction was interstate commerce. State v. Whisnant \[N. C.\] 63 SE 91. Evidence: Held to show sale by defendant. Davis v. State \[G2. App.\] 61 SE 132. Held to authorize conviction. Wheeler v. State \[G2. App.\] 61 SE 409.
- \[G105, 8 3556, as amended by Laws 1907.\] 623, c. 6690, & 1, held not uncon-etitutional because of omission of word "in-toxicing" before word "in-" in-Ladeson v. State \[Fla.\] 47 S SIT. Whether law has been adopted in particular county is question of law for court. State v. Brown,
- \[H170.\] 633 Mo. App. 214, 109 SW 99. Convittion can-not be sustained where evidence fails to show that local option election was held in county. Davis v. State, 62 Tex. Cr. App. 546.
- \[H171, 829, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 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 made alleged sale, they would both be guilty, regardless of any subterfuse or evasion of law, and hence that law basing conviction on existence of subterfuse was rightly refused. Wilson v. State, 53 Tex Cr. App. 556, 110 SSV 904. Instruction to effect that in order to make a sale it was not necessary that defendant should have personally delivered liquor and received money, but that it was sufficient to show that liquor was delivered with his knowledge and consent and at his instance and direction, and that he or some- one for him and for his use received money therefor, etc., held proper. King v. State, 53 Tex Cr. App. 101, 109 SSV 182. Instruction that if defendant and any other person acting together sold intoxicians as alleged and both were present at time of sale, and both knew the unlawful act in making said sale, defendant would be guilty, regardless of whether he actually delivered liquor to purchaser and received pay therefor, held proper, all parties or representative or seller, or if himself owns there being evidence that defendant was present at time of sale, adding and equetting.

Footnote 11: The author is grateful to the anonymous referee for the support of this work.

Footnote 12: The author is grateful to the anonymous referee for the support of this work.

Footnote 13: The author is grateful to the anonymous referee for the support of this work.

Footnote 14: The author is grateful to the anonymous referee for the support of this work.

Footnote 15: The author is grateful to the anonymous referee for the support of this work.

Footnote 16: The author is grateful to the anonymous referee for the support of this work.

Footnote 17: The author is grateful to the anonymous referee for the support of this work.

Footnote 18: The author is grateful to the anonymous referee for the support of this work.
prohibiting the manufacturing of liquors in prohibition territory;\*\* prohibiting the taking or soliciting of orders for the sale of intoxicants in prohibition territory;\*\*17

brewing company received and accepted or-

der for beer in "wet" territory, held that

sale was made there, though it was ordered

through a saloonkeeper in wet territory by

person residing in dry territory and was de-

J. 518, 112 SWP 90. Evidence held insulf-

livered to latter in dry territory by express,

and though such order was received and accepted by salookeeper by telephone when

1156. To show that defendant made the sale

purchaser was in dry territory. Id. Laws

1907, p. 302, $ 18, providing that giving away

or delivery for purpose of evading provisions

of local option statutes, or taking of orders

or making of agreements at or within anti-

saloon territory for sale of liquor, or other

Shift or device for evading such provisions,

shall be deemed unlawful selling, held not

to change rule so as to make place of de-

livery place where liquor actually comes in-

to hands of purchaser. Id. Where intoxicants are ordered to be shipped C. O. D., sale

is completed where liquor is delivered to

carrier, and seller is not guilty of selling at

place of delivery. State v. Rosenberger, 212

M.o. 648, 111 SWP 609. Such being case, held

immateral whether its transportation into

local option territory was matter of inter-

state commerce or not. Id. When pur-

designate what shall be carried by and ex-

chaser, living in local option district, orders,

in writing by mail, from a person lawfully

licited orders for whiskey in prohibition

engaged in liquor business outside of such

metricity and then purchased from dealer

district, package of liquor to be sent to him

for his own use by express C. O. D. to station within prescribed district, and such pur-

vibrated statute. State v. Earles, 84 Ark. 479,

chaser received such package, pays price for

106 SWP 941. Pen. Code 185, $ 428, 19 police

same and charges for return of money to ex-

press company for seller, sale is complete

upon delivery of package to the express

extension of scope of its operations caused

company by seller. Multiple v. State, 10 Ohio

by passage of general prohibition act of

C. C. (N. S.) 417.

Evidence held to sustain conviction. Fisher

V. State \[Fla.\] 46 S 423; Jones v. State, 52

includes any act done by seller himself which

Tex. Cr. App. 519, 107 SWP 849; Curtis v. State,

may tend to affect sale, as contrasted with

52 Tex. Cr. App. 606, 108 SWP 880; Arnold v.

State, 52 Tex. Cr. App. 429, 108 SWP 866; Goal

ing to similar result. Id. Whether solicitation

v. State, 52 Tex. Cr. App. 444, 108 SWP 880;

in is personal or by an agent is not de-

Harryman v. State, 53 Tex. Cr. App. 474, 110

pendent on personal presence of solicitor,

SWP 926. On theory that defendant and his

but whether means of solicitation, whether

agent were acting together in common en-

eral or written, are used by agent or print-

terprise to sell for mutual profit in prohibited

cipal himself. Id. Solicitation by mail is

territory, and that direction to agent not to

personal solicitation, if seller himself in per-

sell in Texas was mere pretext. Oldham v.

son writes or mails letter received by buyer.

State, 52 Tex. Cr. App. 516, 108 SWP 687. Evl-

dence held to sustain finding that sale was

made after law went into effect. Phillips v. State, 53 Tex. Cr. App. 505, 111 SWP 144. Evl-

tended, in any county where sale is prohibited

ed. Id. Where sale is solicited by written or

purchaser in indicitement. Coleman v. State

\[Tex. Cr. App.\] 112 SWP 1049. Facts proven

state, courts of county where letter is received

held to justify finding of sale and verdict of

by addressee and contents ascertained have

gulity. Robinson v. State, 53 Tex. Cr. App.

563, 110 SWP 907. Evidence held to show

delay of letter in state where solicitation

sale by defendant, and that transaction was

is forbidden. Id. State may punish for

not gift. Human v. State, 52 Tex. Cr. App. 474, 107 SWP 817. Evidence held sufficient to

without infringing right of federal govern-

warrant finding of sale by defendant. Don-

aldson v. State, 53 Ga. App. 451, 60 SE 115;

not in conflict with commence clause of fed-

State v. Brown, 130 Mo. App. 214, 109 SWP 89;

Sawyer v. State, 52 Tex. Cr. App. 697, 108 SWP 894; Carnes v. State, 53 Tex. Cr. App. 509, prohibiting the keeping on hand of intoxicants,"88 prohibiting the keeping or furnishing of liquors at any public place,"99 or at one's place of business;"0 prohibiting the bringing or shipping of liquors into territory where the sale thereof is prohibited,"1 and the regulation of carriers in this regard;"2 the designation of certain

of intoxicants shall be deemed an unlawful telling held not to render it invalid as interfering with interstate commerce, act not in his regular place of business, is a part of purporting to in any manner control importing of liquor from other states. People v. MoBride, 234 I'll, 146, 84 NE 865. Quention held not involved in prosecution for selling etc, used in connection with restaurant, was in anti-saloon territory. Id. Field that in any event invalidity of such provision would not affect balance of act. Id.

88. Municipal ordinance held not void as punishing mere intention, without any overt act. Callaway v. Mims \[Ga. App.\] 62 SE 654.

01. Acts 1907, p. 81, construed, and held

1d. Definition of what is "place of business" that phrase "public place" is to be given relative meaning, and place may be public during some hours of the day and private during others. Tooke v. State \[Ga. App.\] 61 SE 917. Public place includes any place which from its public character members of the general public frequent, or where they may be expected to congregate at any time as matter of common right, also any place at not necessary to show that liquor was published through common usage, or by general or indiscriminate invitation, express or implied. Id. It excludes those places which, though publicly owned, are devoted to private use and are not open to access of pub-transaction, word business being used in life, and also these places privately owned or controlled from which indicriminate public as synonymous with occupation, vocation, or employment. Roberts v. State \[Ga. App.\] 60 I'ar time in question a number of persons have assigned-may have congregated there, if congregation is result of special invitation for that occasion.

1d. Though our grandhouse relative to prisoner confined in cell therein with a sole companion is not public place. Id.

classes of persons who may sell and the regulation of such sales;" prohibiting the property without any intent to violate any -- must reject it, no matter what shipper says prohibited right in relation to it, taking of -- to contrary. Id. Right to demand assur-prohibited quantity into such county having -- and inspection if same is reasonable no reasonable substantial relation to sale of -- to be denied as interference with commerce, -- liquars as prohibited by law. State v. Will-liams, 146 N. C. 618, 61 SE 61. Carrying -- liquor on the person is transporting it with--. Id. Provision of said act that individuals in meaning of Cr. Code 1902, 589, making it crime to transport liquars from place to place within state by wagon, etc., ''or by any other means or mode of carriage." State v. Pope, 79 S. C. 87, 60 SE 234. Where proof showed that defendant had liquor in his possession and was actually selling it, held that it was contraband and not within protection of commerce clause of federal constitution, though purchased out of state. Id. Where defendant was found at church selling liquor from bottles in his possession, held that it would not be contended that there was no evidence that he hand transported it from one place to another, there being presumption that he carried it there. Id. Defendant held not within Cr. Code 1903, $ 581, providing that liquars purchased outside of state, owned and conveyed by defendant as personal baggage, shall be exempt from seizure when quantity does not exceed one gallon. Id. Act Feb. 16, 1907, $ 27, prohibiting transportation of --ltoxicians for unlawful use '' to any place or county'' where manufacture and sale are prohibited, held to make it an offense to transport liquor for unlawful use from place to place within a county. State v. Arnold \[S. C.\] 61 SE 891. Evidence held to make question for jury whether there was transportation for unlawful use. Id. -- Act Feb. 16, 1907, $ 27, prohibiting transportation of --ltoxicians for unlawful use '' to any place or county'' where manufacture and sale are prohibited, held to make it an offense to transport liquor for unlawful use from place to place within a county. State v. Arnold \[S. C.\] 61 SE 891. Evidence held to make question for jury whether there was transportation for unlawful use. Id. -- Act Feb. 16, 1906, $ 22, or 63, making it an offense for carriers and others to deliver, etc., intoxants in local option territory, making delivery of each package separate offense, and providing that public carriers may deliver intoxants to licensed drugists in unbroken packages in quantity not to exceed -- 5 gallons at any one time, construed, and held that delivery by carrier to licensed drugists of unbroken box of whisky containing -- 5 gallons, and box of grain alcohol containing less than 5 gallons, at same time, was not violation of the act. Loulsville & N. R. C. O., v. Com., --, 23 Ky. L. R. $56, 111 SW 338. Carrier is not liable if its agents acting in good faith and with due caution are actually deceived as to contents of package delivered to them for shipment. Adams Exp. Co. v. Com., --, 38 Ky. L. R. $67, 112 SW 577. Evidence held to sustain finding that agents knew or had reason to know that box contained broadcasts and that they were not deceived as to its contents. Id. Agent in such case must exercise same kind of judgment as if he were acting for himself, and what would or ought to convince him that certain facts exist is notice to carrier. Id. In addition to acting in good faith, agents must also exercise ordinary care or due caution to avoid violation of statute. Id. Though, in absence of statutory provision to that effect, carrier has no right of inspection, where it has reasonable suspicion that shipper is attempting to use its vehicle to violate law, it should require enough evidence of legitim of shipment to satisfy reasonably prudent.

Express company cannot be convicted unlawful use -- to say, -- to say, -- to --, for unlawful use -- to say, -- to --, -- to --, -- 12 Cur. Law. **INTOXICATING LIQUORS SS 4.** 388

renting of rooms to be used for the unlawful sale of liquor;\* provisions against evasions of the liquor laws;\* regulations as to place of consumption;\* denunciation

Where ordinance prohibitting sale or possession of intoxicants authorized sales by **State v. Breaux \[La.\]** 47 $ 876. Statute ap-drugists under certain conditions and for **price** to physician who prescribes intoxicants certain purposes, held that drugist had of **for** purpose of evading, or to assist another necessity right to possess such liquor as he **in** evading, the Sunday law, it not being con- was authorized to sell, and complaint in action against him for having liquors in his **to** evade license law. Id. Intent is esseon-possession was demurrable where it failed **tal element of**ense\*\*. Id. **to** relieve that he sold or was engaged in business of selling such liquors contrary to provisions of said ordinance, or without permit **"Knowingly** variables and rents a room to therein provided for. Id. Drugist selling liquor must comply wilt Code, $ 2394, providing that request must be signed by appli- **such** is the intended use.\*\* Ind of places where liquors are sold as nuisances," or as disorderly houses;" regulations as to the manner in which licensees must conduct their places of business;"

his place of business, defined, and definition impliedly repealed by Acts 30th Leg. c. 138, in instruction held too restrictive as applied $ 4, 5, 6, 27, prohibiting sale without license. to facts. Cohen v. State, $8 Tex. Cr. App. 1d. Statute held applicable in local option 422, 110 SVW 6$.

97. For abatement of traffic as nuisance, see SS 8, post. Any person in any way concerned in keeping or owning intoxicating liqu- 19. Act 190, $ 20, requiring requiring requiring requiring to adopt local option law. Id. our with intent to violate provisions of Code, $ 204, providing for punishment of any person, gasoline and operating of saloon and the giving away or selling of in- "existing in keeping or maintaining, any club- "toxicants, held not to violate Const. SS 61, rooms in which intoxicants are kept for use, gift, sale, etc., is guilty also of violation of Id. SS 2382, prohibiting any person from dis- "toxic" with content to violate law; and if he uses any particular place for owning or keep- "being such intoxicants for any of the prohib- "toxic" with content to violate Const. $ 2384.

01. Act 1907, $ 1918, being an act to further $ 204, providing for punishment of any person, gasoline and operating of saloon and the giving away or selling of in- "toxicants, held not to violate Const. SS 61, rooms in which intoxicants are kept for use, gift, sale, etc., is guilty also of violation of Id. SS 2382, prohibiting any person from dis- "toxic" with content to violate law; and if he uses any particular place for owning or keep- "being such intoxicants for any of the prohib- "toxic" with content to violate Const. $ 2384.

01. Act 1907, $ 204, providing for punishment of any person, gasoline and operating of saloon and the giving away or selling of in- "toxicants, held not to violate Const. SS 61, rooms in which intoxicants are kept for use, gift, sale, etc., is guilty also of violation of Id. SS 2382, prohibiting any person from dis- "toxicants" with content to violate Const. $ 248, prohibiting sale of intoxicants with content to violate law; and if he uses any particular place for owning or keep- "being such intoxicants for any of the prohib- "toxic" with content to violate Const. $ 248, providing that each law shall contain but one subject, which shall be expressed in its title (Id.). Even if $ 2, prohibiting deliver- "toxic" with content to violate Const. $ 2384.

01. Act 1907, $ 204, providing for punishment of any person, gasoline and operating of saloon and the giving away or selling of in- "toxicants" with content to violate Const.

requiring the filing of lists of names of persons employed in saloons;' prohibiting the opening of places of sale and selling or furnishing liquors on certain daysa and 1906, p. 203), dividing liquor dealers into two classes, first consisting of hotel and restaurant leepers, etc., and second of saloons.

Grossman \[Mo.\] 113 SV 1074. One charged keepers, and providing certain regulations which are made applicable to second class and not to first, held not to contravene 14th $ 3013, prohibiting granting license to one amendment of federal constitution. Meehan convisted of violating statutes relating to v. Jersey City Exercise Com'rs \[N. J. Err. & App.\] 70 A 363, affg. \[N. J. Law\] 64 A 689, xor is such section in conflict with Const.

Not is such section in conflict with Const.

Art, $ 11, subn. 11, prohibiting private, lo-cal or special laws, regulating internal affairs of municipalities, or granting exclusivey

Offense of keeping saloon open on Sunday immunities, privileges or franchises. Id.

Sald section held to subject inns and tavrans, as well as hotels, to restrictions therein men-monde on that day, or whether or not any intend, unless they have at least 10 spare rooms and beds for accommodation of board-ers, transients and travelers. Id. Fact that

- $ of said act, relating to appointment of \[S. D.\] 117 NW 508. City held to have power excise commissioners, is unconstitutional, held not to affect validity of remainder of action.
- $ a. m., and on Sunday. Thomas v.
- $ a. m., and $ a. m., and on Sunday. Thomas v.
- $ a. m., and $ a. m., and $ a. m., and $ a. m., $ a. m., $ a. m., $ a. Law\] 64 A 689. In proceedings under

in conflict with provision of Laws 1907, p. 41, supplement of 1906 (P. L. 1906, p. 109), to c. 5597, $ 8, that no license issued under that act shall entity holder thereof to sell because of an Inn and tavern for noncomplit- \[tween hours of 12 'clock Saturday night and 12 'clock Sunday night. Id. Since unlaw- an Inn and tavern or hotel having at least 10 spare rooms and beds for accommodation of guests, etc., interior shall be exposed to on Sunday are merely different forms of com- \[tween street at all times when sale of \]iquor is prohibited by law, complaint must

in conflict with provision of Laws 1907, p. 41, show that inn and tavern whose license is \[chinese\]

to c. 5597, $ 8, that no license issued under that act shall entity holder thereof to sell because of an Inn and tavern for noncomplit- \[tween hours of 12 'clock Saturday night and 12 'clock Sunday night. Id. Since unlaw- \[tween hours of 12 'clock Saturday night and 12 'clock Sunday night. Id. Since unlaw- \[tween hours of 12 'clock Saturday night and 12 'clock Sunday night and 12 ' during certain hours;\* limiting the number of licenses to be issued;\* the designation of saloon limits;\* prohibiting the selling of liquor in certain vicinities,6 or in

question for jury, so that it was error to

cause legislative power to regulate saloons is direct verdict of guilty. Latch v. State, 84

lawmaking power vested in village board by Ark. 620, 106 SVB 944. Evidence held not to

St. 1898, $ 833, subd. 26, which cannot be dis-requilze reversal of finding that applicant for

gated. Id. Provision giving president license did not sell liquor on certain election age-

power to suspend operation of ordinance at tion day. In re Adamek \[Neb.\] 118 NVV 108.

will held a compensation for first part of

NOTE: "Keeping open" as applied to retail

ordinance, so that its invalidity rendered liquor stores or bar rooms implies a read-

whose ordinance void. Id.

ness to do business therein (Lynch v. People, 4. St. 1803, $ 3704, subd. 4, providing that

ple, 16 Mich. 472: Munzebrock v. State, 10

in towns of sixth class which have voted in

Ohio Dec. 277), and such a place is "open"

favor of sale trustees shall have no right,

when liquors are dispensed therein or there-

power, privilege, or discretion to refuse II-

from, notwithstanding the fact that the

enses, held not to deprive board of reason-

usual means of ingress or egress are closed

able discretion to limit number of licenses

(Blahut v. State, 34 Ark. 447; Harvey v.

that shall be granted. Schwireman v. Highland

State, 65 Ga. 688; Kroer v People, 78 Ill. 284),

Park (Ky.) 113 SW SW 507. Refusal to issue

or that the bar is concealed by a screen

license to one otherwise qualified held not marked "Bar closed" (Hussey V. State, 69 Ga. 49,

arbitrary or capriclous exercise of authority,

54), or that but a single person is entertained

or abuse of discretion, where there were

(People v. James, 100 Mich. 622, 59 NVV 236),

already 4 licensed saloons in town. Id. Ex

or that the bar tender alone helps himself to

close board has discretionary power to limit

liquor (People v. Crowley, 30 Mich. 366, 51

number of licenses. In re _Jugenchimer_

NVP 617), or that the bar tender is absent

(Neb.) 116 NV 966. This is especially true

and patrons are allowed to help themselves

in cities where board is charged with duty

(People v. Cummerford, 58 Mich. 328, 25 NVV

of policing city and maintaining peace and

203), or that only employees are allowed

good order therein, but is limited in num-

therein and patrons are served with liquor

ber of officers which it may appoint and

in another room (Cooper v. State, 88 Ga. 44,

maintain for that purpose. Id.

14 SE 592; Harmon v. State, 92 Ga. 455, 17 SE

5. Power to regulate held to give city power

666; People v. Whipple, 108 Mich. 587, 68 NWV

to restrict location of saloons, though charter

480; People v. Cox, 10 Mich. 247, 58 NWV 236;

did not confer it in express terms. Church

People v. Ringsted, 90 Mich. 871, 11 NW 519;

111 V. Common Council \[Mich.\] 15 Det. Leg.

People v. Koob, 109 Mich. 358, 67 NWV 320), or

N. 379, 116 NWV 558. Bal. Ann. Codes & St.

that the liquor is served in an adjacent room

$ 2934, conferring upon mayor and council

from a stock temporarily kept herein (Peeo-

power to regulate, restrain, license, or

ple v. Ringsted, 90 Mich. 571, 51 NWV 519).

hibit sale of intoxicants in town of Pasco,

On the other hand, such a place has been

held not "open" within the statutory mean-

sabd. 10, conferring on municipalities of

ing when persons are permitted to enter for

fourth class power to license sale of intoxicant

another purpose than that of securing liquor

cans for purpose of regulation and revenue.

(State v. Gregory, 47 Conn. 276; Patten v. State v. Franklin County Superior Ct.

Centralia, 47 Ill. 370; Weidman v. People, 7

\[VWash.\] 94 P 1086. Power conferred by

Ill. App. 38; Miller v. State, 68 Miss. 653, 9

$ 1011 held to include power to refuse II-

$ 283; Lincoln v. McCartre, 44 IN. C. 429).

sense, and to restrict locality in which bus-

In some jurisdictions, however, the rule is

mores strict, and the opening of such a room

offcers in restricting localities in which as denying equal protection of law. Id. Or-dinance adopted pursuant to charter held not invalid on theory that charter provision dele-
6\. Churches, etc.: Building built for dwell-invalid on theory that charter provision dele-

gates to city authorities in control of said

with Laws 1896, c. 112, $ 24, subd. 2, as park power to suspend said charter provision

amended by Laws 1800, c. 312, though owned

by church organization and though parlor

so far as said park is concerned. Id. Lim-

floor was used for regular church services. In

its as fixed by charter and ordinance adopted

re Finley, 58 Mine. 639, 110 NYS 71. Entrance

pursuant thereto held sufficiently definite,

to sayon hold to be within 200 feet of church,

notwithstanding slight discrepancies in calls

attempted closing of such entrance and es-

of boundaries and clerical errors. Id. Excluding

Inclusion of new one or another street be-

empttion of Oak Cliff held constitutional

whether such territory be regarded as local

is to be liberally construed that it may ac-

option district or additional exempt terryl

complain purpose of its enactment, but

tory. Id. Fact that ordinance did not exempt

its provisions must be given reasonable in-

cept from its provisions Oak Cliff and Fair

terpretation, and its prohibitions not ex-

Park held not to render it invalid. Id.

theed to cases and situations not covered

Charter provision and ordinance stated pur-

thereby. Id. Under P. L. 1896, p. 203, c.

saint thereto held not unconstitutional as

114, $ 4, no license can be granted to sell

attempt on part of legislature to delegate

liquor by less measure than one quart in

its power to suspend a general law. Andrews

any new place within 300 feet of curtilage of

v. Beaumont \[Tex. Civ. App.\] 113 SW 614.

church soffee, measured between nearest

Ordinance held not void as unjust and un-

point of same and nearest point of building

reasonable discrimination because it permit-

wherein such liquars are intended to be

ted those who had previously obtained

is, bond, though entrance to latter building

censes to conduct business outside limits

more than 200 feet distant from church cur-

thereby fixed to continue in business un-

tling. Lanning v. Burlington Excites Com's

til each licenses expired. Id. Such proviti-

\[N. J. Law\] 68 A 1083, Act 1896, (P. L 1896,

sion held not to be void as unequal and non-

p. 53), providing that no new license shall be

uniform taxation because after its passage

sented to sell Intoxicants within one mile

- occupation tax of those within limits was

from outside limits of any land controlled by

increased and increase did not apply to those

any incorporated camp meeting association

conducting business outside of limits under

used for religious worship, or for any pur-

unexyped licenses, since it either ordinance

pose for which such association is formed,

was void for that reason it was one increa-

held not unconstitutional as special legisla-

ing tax. Id. Sp. Laws 1807, p. 661, c. 73,

tion regulating internal affairs of cities.

amending charter of city of Galvston by add-

Sexton v. Asbury Park Excites Com's \[N.

ing provision authorizing board of commis-

J. Law\] 69 A 470. Said act held to limit

sioners to license, tax, regulate, and pre-

power to license conferred on board of ex-

scribe location of places where intoxicants

des commissioners of cities by P. L. 1902, p.

are sold, held in conflict with Const. art. 3,

628, and not to have been repealed by latter

4 act. Id.

or amended by reference to its title, etc.

Schools, colleges and academies: Gen. St.

Henderson v. Galveston \[Tex.\] 114 SW 108.

1802, $ 2647, as amended by Pub. Acts 1807, p.

Charter provision held not unconstitutional

750, c. 200, providing that no license, except

on ground that method prescribed by con-

emstuation whereby sale of intoxicants may be

commissioners as to suitability of person or

promilited is exclusive, fixing of saloum lim-

place, shall be granted within 200 feet from

its being mere regulation of liquor traffic

and in no sense a prohibition thereof. Ex

itable institution, whether supported by pub-

parts King, 52 Tex. Cr. App. 383, 107 SW 543.

llc or private funds, as may be detrimental

Charter provision and ordinance enacted pur-

usuant thereto held not to violates Const. art.

tionary power to renew license, though

1, $ 28, as delegation of legislative authority

school had been erected within 200 feet of

to Vacata, suspend, etc., laws of state. Hen-

adperson v. Galveston \[Tex.\] 114 SW 108.

of opinion that his saloon was suitable place

Such charter provision held not invalid as

for sale of liquors. Appeal of Schuster

delegation of legislative power. Id. Charter provisions held not in conflict with Acts

with propriety, be deemed suitable which

30th Leg. p.

buildings owned by municipal corporations,? prohibiting the selling or furnishing of liquors to certain persons,\* and prohibiting the purchase of liquors by certain persons.\*

cause of erection of parochial school within 4-mile limit was unauthorized. Town of Talowse ve. Toombs \[Ala.\] 47 S 308.

of discretion. Id. Acts 1877, p. 180, pro-hibiting sales within 3 miles of certain acad- (microants in any building belonging to or emy in Emanuel county, held not repealed by Acts 1882, p. 601, and Acts 1887, p. 849, amending license law relating to said county, or by Acts 1900, p. 425, giving council of city in said county certain powers relating to intoxants Pughlesy v. State \[Ga. App.\] 61 SB 886. Evidence held to show that sale of liquor was within 5 miles of state university. Borroum v. State \[Mluss.\] 47 S 480. Act May 10, 1907 (Laws 1907, p. 257), providing that no license shall be granted to keep dramshop within 5 miles of any state educa- (microants in a) position under students enrolled, held void under control of (microants in a) position under students enrolled, held void under control of (microants in a) position under students enrolled, held void under control of (microants in a) position under students enrolled, held void under control 12 Cur. Law. INTOXICATING LIQUORS SS 4. 369

\_Dispensary system.\_See 10 C. L. 441--\_Stattutes in some states make provision for the establishment of public dispensaries for the sale of intoxicants10 and prohibit sales except in such dispensaries.11 Such dispensaries have been held to be state agencies, and their officers, officers of the government, and hence not subject to suit in the absence of an express statutory provision to the contrary.12 The federal

licensee was criminally liable for sale during

for violation of provisions of Dramishop Act

his absence by his son who was employed

imposing penalty on saloenkeepers for sell-

by him in bar room and intrusted with con-

duct of same. O'Donnell v. Com. \[Va.\] 62 SE

10. Loc. Acts 1907, p. 324, authorizing towns

01. Intent is not essential element of

and cities in precinct No. 3 in Elmore coun-

fense, and proof of sale by principal or by

by to establish dispensaries, held not to

his clerk or agent is all that is necessary

repeal Acts 1851-52, p. 262, prohibitting sale

to make out offense, provided sale by clerk

of libator within four miles of any factory, so

or agent is made in conduct of business

with which he was charged by prin-

town within four-mille limit was unauthor-

cipal. Id. Rule holding that principal Is

SS 308. Petition to enjoin election commis-

authority or in violation of his instructions

signers from holding special election on ques-

is exception to general rule that doctrine of

tion of maintaining dispensaries in certain

responded superior does not apply in crim-

county, based on ground that county super-

inal cases, and is based on doctrine that

visor was in error in holding that petition

licensee engages in business at his peril and

asking for election was signed by requisite

is bound to see that requirements of law are

number of electors, denied, there being plain

complied with. Id. Evidence held to show

and adequate remedy at law, and no property

that person to whom sale was made was

rights justifying interference by injunction

located, and that such fact was apparent

being involved. Little v. Barksdale \[S. C.J

to anyone having occasion to observe his

63 SE 308. Creation of new county, Under

condition. Id.

Calhoun County out of portions of Lexington

Liquid draws: It is violation of

and Orangeburs counties, and Act Feb. 16.

censed dealer to sell liquor to habitual

1907 (25 Stat. 464), providing for continua-

drunkard, though no penalty is provided

of existing dispensaries until voted out,

therofer. Cobbey's St. 1907, SS 7159, 7161.

In re Adamek \[Neb.\] 118 NV 109.

Orangeburs county to maintain dispensaries

Persons in the habit of getting intoxicated:

A person "who is in the habit of getting in-

to form part of Calhoun county until creation

toclated" within meaning of Dramishop Act,

of dispensary board for Calhoun county, or

c. 43, SS 6, making it an offense to sell intox-

until dispensaries were voted out of latter

cating liquor to such a person, is one having

the involuntary tendency to become intox-

1907. Amerker v. Taylor \[S. C.J 62 SE 7.

acted which is acquired by frequent repetition, and proof of a fixed habit is not essen-

making it unlawful to sell liquor in town of

tal. Giroux v. People, 132 III. App. 582. Evid

Groux except by a dispensary to be estab-

dence held to authorize finding that person

to whom liquor was sold was in habit of get-

If otherwise valid. Ex parte Hall \[Ala.\] 47

ting intoxicated. Id. Evidence held to

s 199. Act held not unconstitutional

ain finding that defendant sold intoxicating

faning special privileges to dispensary

liquor to such person. Id. Is not necessary

commissioners. Id. Act held not invalid as

to allge or prove that defendant knew that

conferting legislative power on town, though

person to whom sale was made was in habit

it establishes prohibition unless town opens

of getting intoxicated. Gaul v. People, 136

dispensary, since fact that opening of dis-

Ill. App. 445.

penalty is not made mandatory does not give

town authority to legislate, nor does town

in to convict in violation of Cr. Code

1896, SS 4554, need not allege that convict was

Even if act authorized town to discontinue

confined in any particular place, it being auf

dispensary at will, which it does not, such

ficient if he was serving a sentence at time

option may be delegated to municipality, and

of alleged offense. Askew v. State \[Ala.\] 46

its exercise by latter would not be legista-

S 751.

9. Ordinance making it an offense for

visions act of 1907 (25 Stat. 480), repealing

minor to purchase liquor held not invalid as

disemancy law, does not preclude prosecution

discriminatory between persons of same class

because making distinction between minors

military written permission of parents, guaran

122. Action under civil damage act against

not such courts have, however, held that the commission appointed to close out the North Carolina state dispensary are not officers of the state discharging duties in its behalf,\[13\] that suits instituted against them by creditors of the dispensary are not suits against the state,\[14\] that said commission is not a court of the state,\[15\] and that such creditors may maintain suits in equity in the federal circuit court for the purpose of compelling the allowance and payment of their claims.\[16\]

SS 5. _Penalties and forfeitures_.\[See 10 C. L. 442\]--Summary proceedings at the instance of the state are treated in a subsequent section.\[17\] An action to recover a penalty is sometimes regarded as a civil action.\[18\] When held to be quasi criminae, defendant is entitled to a presumption of innocence\[19\] and his guilt must be proved by a clear preponderance of the evidence.\[20\]

Actions on liquor dealer's bonds for the benefit of individuals injured by their breach are treated in a subsequent section,\[21\] the treatment in this section being confined to actions for the benefit of the state or municipality. The necessity for and the form and sufficiency of such bonds have already been considered.\[22\] They are ordinarily confined in their operation to the premises covered by the dealer's license.\[23\] The licensing authorities, as a rule, have no authority to release surcities from liability for previous breaches.\[24\]

The usual rules of evidence apply in actions

state or its officers or agents. Id. Since dispensaries are prohibited from selling to minors, such a sale would be ultra vires for which dispensary could not be held liable, even if it could be sued. Id.

13. Members of South Carolina State Disensary Commission, appointed pursuant to Sess. Laws 1907, p. 835, No. 402, held not a court within meaning of U. S. Rev.

agents of state empowered to take possession of certain fund and directed to admilians.

Starting injunctions staying proceedings in ter it in particular manner. Murray v. Wilson Distilling Co. \[C. C. A.\] 164 F 1, aff. 161 F 152.

14. Suit against members of commission by creditors to compel adjustment and payment

of their claims held not one against state

within U. S. Const. Amend. I. Murray v. Wilson Distilling Co. C. C. A.\] 164 F 1, aff. 161 F

162. Held further that to uphold contention

that debts were those of state, that commisiones represent state which is real party

in interest, and that they alone have power

to determine validity of claims against fund

held civil, both in form and in their nature.

was rejected, deprive creditor of this property

V. Helm, 33 Ky. L. R. 871, 111 SVW 385.

their hands held, by virtue of statute, a fund

held in trust for payment of debts therein

tation of city ordinance prohibiting ante of in-mentioned, in whlch creditors of dispensary

toxicants, held proper to instruct that law

have property interest to extent that their

depths are shown to be just. Id. State's in-

such presumption is substantial part of the

terest in fund held confined to residue after

law of the land. City of Waverly v. Goss, 138

payment of debts of diapensary and to be

ill. App. 68.

subordinate to payment of said debts, so that

20. In action to recover penalty for viola-

judicial determination of true amount of such

debts could in no way affect rights or inter-

toxicants, instruction held not to impose on

eats of state. Id. Fund being trust fund in

plaintiff higher degree of proof than that re-

regard to which commissioner's duties are

quired by law. City of Waverly v. Goss, 138

clearly defined, held that state was not indiis-

ill. App. 68.

pensable party, though it might, at its election, intervene for purpose of having any

21. See SS 8, post.

rights it might claim determined. Id. Federal circuit court of appeals held not bound

and to be confined in its operation to prem-

to follow decision of anpreme court of South Carolina to the contrary which was rendered

after decision of federal circuit court that

it had jurisdiction, and after letter court had

issued injunction and appointed receiver as

12. Excise commissioner held to have no on bonds.\[25\] Whether there has been a breach of the bond is ordinarily a question of fact for the jury,\[26\] unless a breach is shown by. uncontradicted evidence.\[27\]

SS 6. _Criminal prosecutions. A. General rules of criminal responsibility.\[28\]_

10 C. L. 444--Liability for violation of particular regulations is treated in a prior section.\[28\] Reference should also be had to the topics dealing with criminal law and procedure generally.\[29\] A corporation may be held crimially liable for violation of the liquor laws.\[30\] The purchaser of intoxicants is not generally regarded as an accomplice of the one who sells them to him.\[31\] Several sales on the same day to the same person but at different times may constitute separate offenses.\[82\]

(SS 6) _B. Indictment and prosecution.\[38\] Jurisdiction.\[28\]_

See 10 C. L. 445--The jurisdiction of the various courts is regulated by statute.\[24\]

_Indictment, information or complaint.\[28\]_

See 10 C. L. 446--The indictment must not charge more than one offense in a single count.\[38\] Where a statute enumerates a series of acts, either of which separately or all of which together may constitute the offense, all may be charged in a single count,\[38\] but they must be charged conjuncted.

authority to make agreement with surety \[GA. App.\] & 62 SE 644. One purchasing liquor on liquor tax bond given pursuant to Laws 1896, c. 112, & 18, as amended by Laws 1897, c. 90. Fox v. State, 53 Tex. Cr. App. 150, 109 c. 312, & 11. Clement v. Empire State Surety & SW 370. In view of statutory provisions Ce., 110 NYS 418. While commissioner may that conviction may be had on uncorrobo-determins at given time whether sufficient (in local option territory, and fact that sup-bond, such determination is not absolute so personal to instruct that conviction could not not not to commence action upon such bond In the future. Id. Statute does not contemplate complete was proper. Ross v. State, 53 Tex.) reduction in amount of penalty based upon doubtful liability or chances of success in maintaining action. Id. Evidence held in-Alcander V. State, 53 Tex. Cr. App. 553, 110 sufficient to show agreement by commisioner with surety releasing latter from liakobinson v. State, 53 Tex. Cr. App. 567, 110bility on bond in suit. Id. Evidence held in-sufficient to show any consideration for such agreement even though it was established. Id.

25. In action te recover penalty of liquor tax bond for selling liquor at hotel on Sun-day without serving meals, held that, in view of delay in trial, certain general evidence that on occasion in question no liquor was sold without meals was admissible. Clement v. Beers, 110 NYS 99. Statute of water in presence of officer who arrested him that he had served them with sandwich with their beer held not evidence of fact that they ordered or were served with sandwich, and to have been incompetent and improperly admitted. Id.

01. Evidence held to make question of fact as to certain violations. Clement v. Beers, 110 NYS 99.

01. In action to recover penalty of liquor tax bond for selling liquor at hotel on Sun-day without serving meals, uncontradicted evidence as to particular violation held to require direction of verdict for plaintiff. Clement v. Beers, 110 NYS 99.

01. See 4, ante.

01. See Criminal Law, 11 C. L. 940; Indictment and prosecution, 12 C. L. 1.

01. May be indicated and punished for acts of its agents in conduct of its business and which it commands or ratifies, in violation of Pen. Code 1895, & 428, prohibiting sollecting of orders for intoxicants in counties where sale is prohibited. Rose v. State \[GA. App.\] & 62 SE 117.

01. Complaint charging that defendant did "then and there keep a elaolon," etc, where "lioe must be corroborated. Gamble v. State dispense," etc, malt be without having ob tively.\[37\] As a general rule any number of distinct misdemeanors of the same nature may be regarded in separate counts,\[38\] though there is some conflict of authority in this regard.\[39\] The same offense may be stated in different ways in different counts to meet the proof.\[40\] As in other cases the indictment must charge all the essential elements of the offense\[41\] directly and positively,\[42\] and with sufficient particularity and clearness to

tained license, in violation of city ordinance, it is sufficient to allege that it was Intoxicatheld to state but one offense. In re Johnson, SWS 898. Indictment for selling malt liquor with license in violation of White's Ann.

1899, & 8011, making it offense for licensed dramashop keeper to sell, give away, or otherwise.

\[Tex. Corp.\] 114 SWS 832. Description of count charge all facts embraced in said sec-

\[T liquor sold as "Termement and malt liquors" held sufficient, that being definition in Laws

junctive conjunction "and," but if they are

1896, & 112, & 2. People v. McDonnell, 108

connected by disjunctive "or,". Indictment is

\[NYS 749. Though Laws 1987, p. 297, provides

bad. State v. Grossman \[Mc.) 113 SWS 1074.

38. Is permissible to join counts charging

\[Acta name of person to whom it was sold, it does

1907, p. 81\] with counts charging violations

\[Acta name of person to whom it was sold, it does

enable the accused to understand the nature of the charge against him."4 An indictment for violation of the local option law must show that said law had been adopted and was in force in the county on the date when the offense is alleged to have been committed."4 Where the statute fully defines the offense, it is sufficient

mitted on that day. State v. Schell \[S. D.\] one not guest of defendant's hotel, In violation of Laws 1896, c. 112, $ 31, held sufflcontent. there' from complaint charging keeping of liquor missance held immaterial where times of doing forbidden acts were definitely stated and concurrence shown. City of Ft. Scott v. Dunkerton \[Kan.\] 96 P 50.

Pineet On prosecution under Dramshop Act, $ 7, information must show that place where sale was made was public resort, mere allegation that it was a "room" being insufflent. Grom v. People, 135 Ill. App. 453. On prosecution under Dramshop Act, $ 7, where it is sought to have place at which sales are alleged to have been made in violation of the act abated, information must describe location of such place with sufficient particularity so that officer undertaking to execute judgment shall be both guided and protected. Id.

**Quantity**: Indictment for selling without license in violation of Rev. Laws 1805, $ 1519, need not state particular amount sold, but it is sufficient to allege, In words of statute, they then and there unlawfully sold liquor to that it was in quantities less than five gallons. State v. Budworth, 104 Minn. 267, 116 NEW 486. Indictment charging sale, etc., in questionnaires. State v. Bean \[N. Erl J 71 A 216.

quantitties of less than five gallons at a time."

held sufflicient, in view of Laws 1896, c. 112, $ 2, declaring trafficking in liquors within cense. Huber v. Comm. 33 Ky. L. R. 1031, 112 meaning of act to be sale of less than five wine gallons of liquor. People v. McDonnell, 108 NY8 749.

Name of purehaser: Indictment for keeping saloon open and selling on Sunday need not give name of persons to whom sale was made. State v. Merget, 129 Mo. App. 46, 107 SW 1015. Indictment charging sales without license to "John Doe and divers other persons," without naming them or alleging that their names are unknown, is fatally defective. State v. Delancey \[N. J. Law\] 69 A.

**Interent**: Information against physician for unlawfully prescribing intoxents in violation of Act No. 85, p. 124 of 1886, must allego intent. State v. Breaux \[La.\] 7 876.

**Allegations as to defendant's business: Information charging offense of making sales as drugist contrary to Comp. Laws 1897, $ 6581, must show by some proper averment that defendant had given bond prescribed therein authoring him to sell liquor for medicinal purposes. Peters v. Eaton Circuit Judge \[Mich.\] 15 Det. Leg. N. 462, 117 NW 68.**: Allegation that defendant's business: "consists in part in the sale of drugs and medicine" held insufficient to show that he had given anch bond. Id. Afflavit held insufflent in that so far as appeared therefrom accused might have been licensed drugist and entitled to sell as such. Regadans v. State \[Ind.\] 86 NE 449. Information held not to charge defendant with offense of selling as retail liquor dealer where it was not alleged that he had not given the reality's bond prescribed by Comp. Laws 1897, $ 5386.

Peters v. Eaton Circuit Judge \[Mich.\] 15 Det. Leg. N. 462, 117 NW 68.

**42**: Indictment for selling on Sunday to to follow its language in charging a violation thereof," substantial accuracy in this regard being sufficient." It is not necessary to negative an exception or proviso in a statute unless it forms a part of the definition of the offense," or is contained in

ed in particular county on particular day, or | $ 3988, charging defendant with carrying that law had been adopted at particular time and was in force within county on date on which offense is charged. State v. Hall, 130

Hiquors were indicating. Ladason v. State Mo. App. 170, 108 SW 1077. Indictment alleging that on July $, 1904, law had been adopted and was in force In county, and charging violation thereof by default by 19

Selling on Oct. 6, 1906, held insufficient for future to show that it continued to be in force on latter date. Id. Information alleging that election was held in Sept. 1903, and that sale occurred May 18, 1906, held to sufficiently allege that law was in force when sale was made, law continuing in operation until set aside by vote to that effect. Killman v. State, $1 Tex. Cr. App. 570, 112 SW (Thad.) $ 8NE 44. On prosecution under Acta 92. Is sufficient to allege adoption of pro-hibition at local option election and due publication of result in general terms, and it is not necessary to specifically plead evidence or place not being an ingredient of offense.

In postseason of such liquors for such purpose, small be guilty of misdemeanor, may be charged in language of statute, except that matters mentioned disjunctively must be charged conjunctively. Regadana v. State man v. State, $1 Tex. Cr. App. 570, 112 SW (Thad.) $ 8NE 44. On prosecution under Acta 92. Is sufficient to allege adoption of pro-hibition at local option election and due publication of result in general terms, and it is not necessary to specifically plead evidence or place not being an ingredient of offense.

In postseason of such liquors for such purpose, small be guilty of misdemeanor, may be charged in language of statute mentioned disjunctively must be charged conjunctively. Regadana v. State man v. State, $1 Tex. Cr. App. 570, 112 SW (Thad.) $ 8NE 44. On prosecution under Acta 92. Is sufficient to allege adoption of pro-hibition at local option election and due publication of result in general terms, and it is not necessary to specifically plead evidence or place not being an ingredient of offense.

In postseason of such liquors for such purpose, small be guilty of misdemeanor, may be charged in language of statute mentioned disjunctively. Regadana v. State man v. State, $1 Tex. Cr. App. 571, 112 SW (Thad.) $ 8NE 44. On prosecution under Acta 92. Is sufficient to allege adoption of pro-hibition at local option election and due publication of result in general terms, and it is not necessary to specifically plead evidence or place not being an ingredient of offense.

In postseason of such liquors for such purpose, small be guilty of misdemeanor, may be charged in language of statute mentioned disjunctively. Regadana v. State man v. State, $1 Tex. Cr. App. 572, 112 SW (Thad.) $ 8NE 44. On prosecution under Acta 92. Is sufficient to allege adoption of pro-hibition at local option election and due publication of result in general terms, and it is not necessary to specifically plead evidence or place not being an ingredient of offense.

In postseason of such liquors for such purpose, small be guilty of misdemeanor, may be charged in language of statute mentioned disjunctively. Regadana v. State man v. State, $1 Tex. Cr. App. 573, 112 SW (Thad.) $ 8NE 44. On prosecution under Acta 92. Is sufficient to allege adoption of pro-hibition at local option election and due publication of result in general terms, and it is not necessary to specifically plead evidence or place not being an ingredient of offense.

In postseason of such liquors for such purpose, small be guilty of misdemeanor, may be charged in language of statute mentioned disjunctively. Regadana v. State man v. State man v. State, $1 Tex. Cr. App. 574, 112 SW (Thad.) $ 8NE 44. On prosecution under Acta 92. Is sufficient to allege adoption of pro-hibition at local option election and due publication of result in general terms, and it is not necessary to specifically plead evidence or place not being an ingredient of offense.

In postseason of such liquors for such purpose, small be guilty of misdemeanor, may be charged in language of statute mentioned disjunctively. Regadana v. State man v.

the enacting clause.48 It is not ordinarily necessary to name the particular law violated.49 Immaterial matters need not be alleged,50 nor is it necessary to negative matters of defense.51 Written instruments on which the prosecution is based may be pleaded either in haec verba or according to their legal effect.52 Words which if stricken out leave the offense well charged, and which do not tend to negative any essential averment, may be disregarded as surplusage.53

Every essential averment must be proved substantially as laid.54 The state

Yazel v. State \[Ind.\] $4 NE 972. Affdavit
744\. Indictment for engaging in business of charging violation of that part of Burns'

selling without license need not show Ann. St. 1908, $ $385, making it an offense to keep, run or operate place where liquours

place where selling is alleged to have been

are sold in violation of laws of state, or to

be found in possession of such liquours for

107.

such purpose, need not allege that defendant

was not licensed liquor dealer, or that he was

amended in 1893, providing that in prosecudent licensed pharmacist or wholesale liquor

tons against vendor of intoxicants it shall

dealer. Id. In charging violation of Blind

Tiger Law (Acts 1907, p. 27, c. 16, Burns'

had no license, but fact of license shall be

Ann. St. 1908, $ $385 at seq.), or Acts 1907, p. 683, p. 293 (Aurns Ann. St. 1908, $ $351

matter of defense under pleas of not guilty,

p. 683, p. 293 (Aurns Ann. St. 1908, $ $351

held that indicment alleging that accused

et seq.), it is not necessary to negative provises and limitations therein contained.

Polk \[De1\] $9 A 1006. Statute held constitu-

gadam v. State \[Ind.\] $8 NE 448. Indictment under Rev. St. $ 4364-25, charging keep-

S2. Indictment for issuing prescription for

ing, within limits of township and without

limits of municipal corporation, place where

clently describe Instrument. McAllister v.

liquours were sold, held not demurrable for

failure to contain averments excluding defendant from operation of exception or pro-

Physician to issue prescription for intoxul

viso authorizing manufacture and sale of ci-

cants to be used otherwise than for medic-

der, etc., and sales by drugists in certain

lnai purposes, held not to sufficiently set

cases, since it relates only to offense of sell-

out prescriptions alleged to have been issued.

ing and not to that of keeping place. Ham-

llton v. State, 78 Ohlo St. 76, $4 NE 601.

127. Setting out prescription according to its

Complaint charging violation of ordinance

tenor imports an exact copy. Id.

fixing saloon limits held not invalidated by

fact that it did not except from its provisions

sance at certain place on certain days, held

certain territory in which charter provided

that judgment would not be arrested because

that no saloon should be established or

complaint alleged that defendant kept place

maltained, or a certain park in which charter

where liquours "were and are" sold, and where

ter provided sale might be licensed by city

withurities having control thereof. Williams

for purpose of drinking such liquors, but

v. State, 52 Tex. Cr. App. 371, 107 SWV 111.

48. Thongn indicment must negative ex ex ex-

age. City of Ft. Scott v. Dunkerton \[Kan.\]

ceptions in enacting clause, it need not do so

in terms of statute, provided as whole it

leaves no doubt that accused does not belong

held not to render indicment invalid. Saw-

to excepted class. Adams Exp. Co. v. Com.,

33 Ky. L. R. 967, 112 SWV 671. Indictment

against express company for violation of Acts

1906, p. 320, c. $3, prohibiting carriers from

bringing, etc., Intoxicants into local option

terriitory, held sufficient, though it did not in

sale, and providing that conviction for vio-

terms negative exception in favor of persons

bringing in Intoxicants in quantities of less

than one gallon on their persons or as their

personal baggage and for their private use,

since such provision could not apply to com-

many. Id.

40. That being determined from facts

leged in affdavit or indicment. Donovan v.

State \[Ind.\] $3 NE 744. Indictment for un-

lawfully selling liquor held not bad for fall-

ing to allege under which of the two license-

the same thing at these values committed. State v.

Polk \[Del.\] $9 A 1006.

50. On prosecution under Acts 1907, c. 16,

$1, making it an offense to keep place where

liquours are sold in violation of law, affda-

vit need not allege that place was enclosed

made sale alleged in indicment within pro-

or blinded, secrecy not being an element of

the offense. Donovan v. State \[Ind.\] $3 NE

Dr. App. 246, 110 SWV 745; Id. \[Tex. Cr. App.\] is not, however, restricted to the date alleged in the indictment, but a conviction is authorized where the offense is shown to have been committed on any day prior to the indictment and within the statute of limitations.\[58\] An indictment may be broad enough to cover the violation of several statutes by a single act.\[56\] In misdemeanor cases one may be convicted on evidence showing a sale through an agent under an indictment charging a sale by him personally.\[87\]

\_Trial.\_See 10 C. L. 440.--In some states an attorney other than the prosecuting attorney may appear for the state on prosecution for violation of the liquor laws.\[58\]

\_Evidence.\_See 10 C. L. 440.--The usual rules of criminal evidence are applicable to prosecutions for violation of the liquor laws,\[59\] including those as to hearsay\[60\] and opinion\[61\] evidence, secondary evidence,\[62\] and admissions.\[63\] Evidence to be ad-offense was committed by engaging in the business on specified date and was continued until specified later date, state could prove any sales between those dates as tend-in to prove that defendant was engaged in the business. State v. Ely \[S. D.\] 118 NWV 687. Instruction limiting time in which state must prove its case to lesser time than two years prior to presentment of indictment is missible must, of course, be relevant and material to the issues involved." The court will take judicial notice of the boundaries of states and counties, and of the geographical location of cities and towns within their jurisdiction," of the intoxicating character of certain liquors," that the liquor traffic is prohibited in a certain county under the dispensary law," and of the length of time during which the local option law continues in force in a given territory after its adoption therein." Evidence of the contemporaneous possession of intoxicants by defendant is generally admissible in prosecutions for unauthorized sales," though it has been held improper

missible. Roberts v. State, 52 Tex. Cr. App. 865, 20 Tex. Ct. Rep. 861, 107 SVW 59.

**62.** Testimony that witness to whom defendant loaned whisky had ordered whisky in writing from propriator of chubroom in which loan was made held not objectionable as secondary evidence, it being merely incidental and preliminary to substantial charge of sale under pretense of loan, and prosecution not being based on such order. Wilson v. State \[Tex. Cr. App.\] 11 SVW 1018.

**63.** On prosecution for having engaged in business of selling intoxicants without having paid tax prescribed by Comp. St. 1897, $ 6385, held that evidence that accused, immediately after reading of warrant to him, stated to sheriff that he had paid federal tax, and exhibited to him a federal license for current year, was admissible. People v. Moore \[Mich.\] 15 Det. Leg. N. 920, 118 NW 742.

**64.** On prosecution for violation of local option law, testimony of accused's witnesses on cross-examination that they kept whisky in clubroom for their own purposes held irrelevant and immaterial. Ross v. State, 53 Tex. Cr. App. 295, 109 SVW 152; Ross v. State, 53 Tex. Cr. App. 162, 102, 109 SVW 153. Evidence that witness other than one to whom alleged sale was made had been in habit of storing whisky in defendants's waterroom and drinking same there with defendant's knowledge, and that defendant had orderFold cash of whisky for his brother, who took it home, held inadmissible. Howell v. State, 63 Tex. Cr. App. 536, 110 SVW 914. Evidence as to existence of clubroom in city where alleged sale was made other than that conducted by defendant held inadmissible. Coleman v. State, 53 Tex. Cr. App. 578, 111 SVW 1011. Hold error to permit state to prove that defendant had signed bonds of other persons accused of violating said law. Taylor v. State \[Tex. Cr. App.\] 111 SVW 938. On prosecution for violating local option law in certain precinct, held proper to permit state to prove that town in which sale was made was in said prebencent. Coleman v. State, 53 Tex. Cr. App. 578, 111 SVW 1011. Evidence of acquitat of defendant upon charge of keeping intoxicants for sale is irrelevant upon trial for selling intoxicants, since one may sell liquors which he does not keep for sale. Taylor v. State \[Ga. App.\] 62 SE 1048.

**65.** On prosecution for sale without license, venue held sufficiently proven. Reed v. Ter. \[Kan.\] 97 P 859. Court may take judicial tostimate that an ordinary beer, containing such percentage of alcohol as by common knowledge may produce intoxication when beer is drunk in such quantities as may ordl-narily be drunk, is an intoxicating liquor. O'Connell v. State \[Ga. App.\] 62 SE 1007. Court will take judicial notice of fact that lasser beer is an intoxicating malt liquor. Cripe v. State \[Ga. App.\] 62 SE 567.

**66.** What is juddially known to be intoxicating. Reality v. State, 53 Tex. Cr. App. 438, 110 SVW 449; Donaldson v. State, 53 Ga. App. 451, 60 SE 115. Court may take judicial cogninance that whisky is a spiritous, alcoholic and intoxicating liquor. O'Connell v. State \[Ga. App.\] 62 SE 1007. A Manhattan

**67.** That it is unlawful to manufacture or sell intoxicants in certain county. State v. Arnold \[S. C.\] 61 SE 891.

**68.** That it continues in force in county for 4 years, as provided by Rev. St. 1899. $ 3038.

**69.** On prosecution for violation of local option law, may show that defendant had such an amount of whisky as to forbid any reasonable presumption that it was intended for his own immediate use. Wagner v. State, 53 Tex. Cr. App. 306, 109 SVW 159. Is admable for purpose of corroborating state's witnesses and showing probability that he did sell whisky. Myers v. State, 52 Tex. Cr. App. 558, 108 SVW 392. Such evidence held not proving another offense, since it is not an offense to have whisky in a local option district. Id. Possession of intoxicants about $ weeks after alleged sale held not contemporaneous therewith within meaning of rule. Id. Held error to permit state to prove that defendant's place of business had been raided under search and seizure law more than a year after alleged offense which occurred long before law was passed. Alderson v. State \[Tex. Cr. App.\] 111 SVW 412. Evidence that defendant had worked in clubrooms where intoxicants were sold for past $ years, during which time local option law was in force in county, held inadmissible, it appearing that defendant had not been connected with cubroom for 2 months before alleged sale to show a seizure of liquor about the time of the alleged sale, or the result of litigation in respect to the liquors so seized.70 Evidence that defendant refused to violate the law at other times is inadmissible on his behalf.71 On prosecution for keeping a disorderly house, the general reputation of the place may be shown.72 It is generally held proper to permit the jury to inspect the bottle containing the liquor alleged to have been sold by defendant and its contents.73 Evidence of other transactions and offenses is generally inadmissible74 except to show system75 or intent,76 or to identify the defendant.77 In some instances the possession of a federal internal revenue license is a proper subject of inquiry.78 Cases dealing with the witness had found key with whisky in it at 73. On prosecution for selling without l1-defendant's place of business shortly after (cense, permitting bottle and its contents to alleged sale, and that at that time defendant ) be exhibited to jury in presence of court held stated that it belonged to him and had been not error, there being no proposal for jury there for some time. Starbeck v. State, 53 to take bottle with them on their retirement, Tex. Cr. App. 192, 109 SWV 162. That whisky was put off train for defendant's employer, v. State \[Ala.\] 47 S 245. Permitting jury to that same was carried by defendant to place (where he worked, etc. Biddy v. State \[Tex. Cr. App.\] 108 SWV 689. On prosecution for viea-hition of general prohibition law (Laws 1907, p. 81), evidence that defendant received frequent shipments of liquor, that he had large amount on hand in his home, that in his house there were generally a number of person sising, carousins, etc., Teoke v. State \[Ga. App.\] 61 SE 917. Evidence relative to consignment and delivery of whisky to defendant, on prosecution for selling without license. State v. Kiger, 63 V. Va. 45, 61 SE 362. On prosecution for maintaining maintenance in violation of prohibition law, records of local railway station containing record of articles received and delivered to defendant, also signature of defendant acknowledgeding receipt of articles specified, and testi-mony identifying record and defendant's signature and describing how record was kept and for what purpose, held competent to show admission by defendant of receipt of large quantities of beer. State v. Dahquist \[N. D.\] 115 NWV 81. Field immaterial whether railway company's agent himself kept record and made descriptive entries. Id. Receits for freight belonging to defendant signed by drayman, who had writ authority to act as defendant's agent in that regard, held competent evidence to show receipt by defendant of articles receipted for. Id. Record of local railway station showing receipt by agent of various beer receptacles from defendant and shipment of same held competent to show character of such shipments, where agent identified record and testified that he received information as to character of freight as described in record from defendant. Id.

76 On prosecution for sale in local option territory. Myers v. State, 52 Tex. Cr. App. 558, 108 SWV 392.

77 On prosecution for selling in violation of local option law, refusal to permit defendant's witness to testify that on date defendant was accused of selling whisky to state's witness he refused to sell to him held not error. Donaldson v. State, 3 Ga. App. 451, 60 SE 115.

78 On prosecution under Acts 30th Leg. c. 132, proof that other persons beside defendant, who worked in his place of business, sold liquors therein, held admissible. Jollf v. State, 53 Tex. Cr. App. 61, 109 SWV 176.

79 On prosecution for selling to named person contrary to law, evidence of sale to another person held properly admitted where it was limited to purpose of identifying defendant as person making sale in question. Abrams v. State \[Ala.\] 46 S 464.

78 On prosecution for selling in violation of motion of prohibitory law and maintaining nuisance, held that certified copies of records of * \[12\] Cur. Law. _INTOXICATING LIQUORS $ 6B_.

- \[13\] _e_dmissibility of particular evidence to prove the adoption of ordinances," to show that a sale was made,"_ to connect defendant with the transaction in question,"\_ to
- \[14\] _e_dmissibility of internal revenue were admissible._
- \[15\] _Witness may testify that he saw license in State v._ Rigg (Kan.) $7 F $59. On prosecution for sellTME and delivering in violation of Acts 1901-02, p. 601, -. &16, copy of records 176.\_
- \[16\] _of Office of collector showing that defendant had "emgsosed" and signed by town clerk as re-missible. Runde v. Com. \[Va.\] $1 SE 792._
- \[17\] _source of provisions of Shannon's Code, prima facle proof of existence and due pub- $ 5573-5591, held broad enough to render_
- \[18\] _rectificate of collateral revenue revenue_
- \[19\] _showing issuance of special tax stamp to defendant admissible to show that he has paid internal revenue tax as retail liquor_
- \[20\] _of Office of collector showing that defendant had "emgsosed" and signed by town clerk as re-missible. Runde v. Com. \[Va.\] $1 SE 792._
- \[21\] _source of provision of Shannon's Code, prima facle proof of existence and due pub- $ 5573-5591, held broad enough to render_
- \[22\] _rectificate of collateral revenue revenue_
- \[23\] _showing issuance of special tax stamp to defendant admissible to show that he has paid internal revenue tax as retail liquor_
- \[24\] \_of Office of collector showing that defendant, paving, identifify the liquor sold," to prove the date of the sale," to show the quantity" and the intoxicating quality" of liquor sold, to show that one was in the habit of getting intoxated," and to prove that defendant was a licensed physician," will be found in the notes.

As in other cases, the evidence must establish defendant's guilt beyond a reasonable doubt." The possession of a federal internal revenue license is given more

that he had conferred with federal deputy

smarshal as to whether he could use his federal license to carry on another business, or

labeled "Pudwieser." Coleman V. State \[Tex.

whether it had become worthless by reason

Cr. App. 112 SWY 69. Field proper to per-

of transfer of his business. Id. On prosecacution for being common seller, evidence that

that he thought it was intoxicating,

defendant gave orders and exercised control

in relation to liquors designed to certain

to its being nonintoxicating. Curths v.

botting company, and was only person with

State, 52 Tex. Cr. App. 606, 108 SWY 380.

whom witness had any talk in regard to said

vulle witness may testify as to his knowi-

company's liquors. State v. Martel, 103 Me. 63,

68 A 454. On prosecation for having engaged

in business of selling without having paid

whisky, which is judicially known to be

txx prescribed by Comp. St. 1897, $ 5385, held

that evidence that goods billed as mineral

of producing intoxication, and where witene

water were shipped to defendant, consigned

to him, and delivered at place of business

to refuse to permit cross-examination for

which it was claimed he carried on, on issue

purpose of testing his knowledge as to

as to whether defendant was person conducting

whisky and as to whether what he bought

ing whatever business was carried on at that

was whisky. Beaty v. State, 53 Tex. Cr. App.

particular place. People v. Moore \[Mich.\] 15

432, 110 SWY 449. Permitting witness to

Det. Leg. N. 920, 118 NWY 742.

testify that stuff he purchased from defendant

sm was whisky held not error, though it

option law, evidence to identify bottle of

did not appear that he tasted or smelled it,

whisky alleged to have been purchased held

that fact going only to weight of his test-

properly admitted. Dooley v. State, 62 Tex.

mony. Rice v. State \[Tex. Cr. App. 107 SWY

Cr. App. 491, 108 SWY 676.

83G. Testimony of witness that he called

S3. On prosecation for retailing contrary to

upon defendant for half a pint of whisky

law, question whether witness had gone

and that he received it, put it in his pocket,

fore grand jury before he bought the whisky

or afterwards held not improper, where evil

it was whisky, held not open to objection

dent purpose was to identify time of purchase and

that it was irrelevant, immaterial, and was

chase and show that indicltment was found

with one year after sale. Wynne v. State

Fact that witness could not tell component

\[Ala.\] 46 $ 459. Where, on prosecation for

parts of whisky, or whether liquor served

selling without license, witness to whom sale

to him was a distilled or rectified spirit, or

was alleged to have been made testified that

whether there are many medicines that smell

he did not remember date of sale, but that

like whisky, held not to render him

not was before defendant was tried in mayor's

petent to testify that liquor served to him

court, held not error to permit state to ask

whisky. People v. Marx, 112 NYS 1011.

him what defendant was there tried for, sole

Where shares on which state relied had been

purpose being to elicit data for definitely

shown and it had been proven that defend-

fixing date of sale. Sweat v. State \[Ala.\] 45

and sold older to public generally, held not

S 588. Admission of evidence of mayor and

prejudical error to admit evidence that de

his defect held not error, as limited by court

Endant sold same kind of elder to others,

Id. Remark of court limiting effect of evil

donced by proof of its effect on them,

dence held not statement that offense for

which defendant was tried in mayor's court

confined proof to effect only. Devino v.

was identical with one at bar. Id. VWhere

different sales on same day were alleged,

held proper to permit prosecuting witness to

state time and hour of day he secured

whisky from defendant. Robinson v. State,

$ 2 Tex. Cr. App. 565, 110 SWY 908.

S 4. On prosecation for selling in less quan-

tities than 5 gallons without license, held

that measures used by witnesses in measuring

he peer sold by defendant and which had

been sent to secretary of state by county

clerk and tested and stamped by him as corre

rect pursuant to Hurd's Rev. St. 1905, e. 147,

$ 9, were admissible, testing and stamping

being sufficient evidence that they were correct in absence of proof to contrary, regard

less of whether they belonged to county or

whether secretary was required to test them.

People v. Nylin, 236 Ill, 19, 86 NE 156,

afp. 5 or less probative force by the statutes of some states." The finding of liquor on defendant's premises is sometimes made prima facie evidence of selling contrary to law." The burden is ordinarily on defendant to show that he comes within an exception or proviso of the statute on which the prosecution is based" and, on prosecutions for selling without a license, to show that he had a license." The fact of the sale may be shown by direct or circumstantial evidence," and the state is not confined to direct evidence on prosecutions for maintaining a nuisance."

\_Instructions.\_See 10 C. L. 454.--Instructions must be predicated upon, and applicable to, the evidence introduced," and must not invade the province of the jury."

tll evidence establishes his guilt beyond a \[ng that liquor was used for private purposes, reasonable doubt, held reversible error.\] Tooman v. State \[Neb.\] 117 NWP 997, modi- \[ta. Gen. St. 1996, authorizing searches and seizure, and providing that if liquors shall be found in such quantities as to confirm belief of illegal sales, same shall be prima facie evidence of selling contrary to law, etc., held to apply generally, and not to be confined to selling in counties or prections voting against such sales. Putnal v. State \[Ark.\] 114 SWP 927. Kirby's Dig. $144, indicators for purpose of unlawfully selling or disposing of same, where such liquor is fade evidence of violation of laws against found in his possession, is not entitled to usual presumption of innocence, since statute makes such possession presumptive evidence of guilt to apply between. Instruction held prejudatically erroneous. Id. Provision of Laws 1907, p. 297, that issuance of special stamp or receipt shall be prima facie evidence of sale by per- \[ra.\]

sharift showing seizure of named articles which not to show facts necessary to operation of statute making finding of liquors in posiness where it is posted, held not unconsiti- \[session of one not authorized to sell same, intentional as changing burden of proof and except in private dwelling house, prima quantum of evidence in criminal cased. People v. McBride, 234 Ill, 146, 84 NE 865. Defendant held not in any event affected by price fitted up with bar, etc., and internal provision where he himself offered stamp in evidence. Id. Term "person" as used in person to whom stamp was issued was main- \[n05, p. 50, $, 18, making issuing of license or tax stamp to any person prima facie evidence that he is selling, exchanging, Foren \[Kan.\] 97 P 791.

or giving away intoxicating liquors, is broad enough to include corporation. Instruction comes, burden held on defendant to show approved. State v. Kline \[Or.\] 93 P 273.

Charge that possession of license by defendant was prima facie evidence that he was and hence such as he could sell without engaged in selling intoxents held proper license under exception of Acts 1904, c. 20, in view of express provision of Acts 28th $141, Devine v. Com., 107 Va. 860, 60 SE 37.

Lcg. (1905) p. 55, c. 40, art. 402. F00 v. On prosecution for violating local option State, 53 Tex. Cr. App. 150, 109 SWP 370. State- \[aw, held proper to permit defendant to que held not in conflict with constitutional testify that he was a druggist, without re-provision guaranteeing to accused right to be confronted with witnesses against him, qualified himself and been licensed as such, and to trial by jury. King v. State, 53 Tex. Cr. App. 101, 108 SWP 182. Under Acts-1901.

02, p. 601, c, 516, 5, and Acts 1906, p. 411, c. 236, proof that one accused of selling without license had federal license as retail liquor dealer raises disputable presumption of guilt, placing burden of proving that he has not violated law on him, and warrant- \[ra.\]

free conviction in absence of excipatory evidence. Runde v. Com. \[Va.\] 61 SE 792.

Such statutes held not in conflict with Const. at 1, $, guaranteeing right of accused in criminal prosecutions to be confronted with requirements, small or \[ra.\]

They should not be misleading97 and should be so framed as not to withdraw from the consideration of the jury or ignore any material issue98 or defense,99 nor should

On prosecution for violation of local option |struction that jury might judicially recognize that whiskkey is introducing held not fendant as agent for outside concern received money for whisky from purchaser and |current, that it is intoxicating being fact of forwarded same to principal, who shipped |universal knowledge which need not be whiskky to agent by open express shipment, |instruction basing guilt on proof of C. O. D. |skipment direct to purchaser held erroneous. Curts v. State, 52 Tex. Cr. App. 606, |108 $W 380. On prosecution for selling in violation of local option law, instruction that if whiskkey was given as an evasion of such law defendant would be guilty held not |instruction v. State, 53 Tex. Cr. App. 180, |108 $W 190. Evidence as to |inoxicating quality of beer sold held to justify instruction to find defendant guilty |instruction that evidence of if jury found that defendant sold witness |instruction as to what would |instruction or would not constitute sale held properly |invested as not called for by facts and misleading, and in view of other instructions. |inversion v. State, 53 Tex. Cr. App. 151, |112 $W 90. Taking into consideration both direct and circumstantial evidence and infer- |instruction v. People, |16 $W. App. 445. |instruction, held that every hypothesis set forth |in instruction, on prosecution for maintain- |inruston, as to distribution among club |in view of evidence. |invested as not called for by facts and misleading, and in view of other instructions. |inversion v. State, 53 Tex. Cr. App. 512, |112 $W 90. Taking into consideration both direct and circumstantial evidence and infer- |instruction v. People, |16 $W. App. 445. |instruction, held that every hypothesis set forth |in instruction, on prosecution for maintain- |inruston, as to distribution among club | they single out and give undue prominence to particular evidence.1 It is not error to refuse a requested instruction substantially covered by the charge given.2

Footnote 11: http://www.math.wisc.edu/~fax/

_Punishment.See 10 C. L. 455--The punishment which may be inflicted on one convicted of a violation of the liquor laws depends entirely on the statutes of the various states.8 Where the same offense is charged in different counts of the indictment, there should be but one sentence.8_

Footnote 12: http://www.math.wisc.edu/~fax/

_Appeal and review.--Special provision is sometimes made for the review of judgments of conviction for violation of the liquor laws.9 The general rules as to appeals and the procedure thereon are fully treated elsewhere.9_

Footnote 13: http://www.math.wisc.edu/~fax/

_that there could be no conviction if trans- in the alternative court may in its discretion action was gift. Id. Evidence held to raise issue that transaction in question was gift, p. 58, c. 4930, $ 1, providing that one selling intoxicians in dry territory shall be punished by fine or imprisonment. Tanner v. Wiggins ble error. Coleman v. State \[Tex. Cr. App.\] \[Fla.\] 45 849. Hurd's Rev. St. 1905, c. 24, 112 SV 1072._

_90. Invention on proseccution for selling without license that fact that defendant took money from another, went away and came back and gave him whiskkey would not constitute sale, held properly refused as not covering other inculpating facts and circumstances in evidence. State v. Kliger, 63 V. Va. 450, 61 SE 262. On proseccution for viola- tion of local option law, instruction held to have sufficiently presented defense that defendant took order on third person for price of whiskkey which he furnished witness merely for purpose of getting rid of him, and that he did not intend to present order but intended to give whiskkey to witness. Kill- score v. State, 62 Tex. Cr. App. 447, 108 SV 662. Where facts clearly showed that defendant sold whiskkey, instruction that if defendant did not intend to sell whiskkey, but only intended to enable witness to get quart to make eggs noog for himself, defendant, and the made no profit out of same, he would not be guilty of sale, held properly refused. Jolly v. State, 63 Tex. Cr. App. 484, 110 SW 749._

_1. Instruction that if jury found that defendant sold intoxants to proseccuting witness as alleged it was immaterial whether he was at time employed by certain person held erroneous. Green v. State \[Tex. Cr. App.\] 111 SV 933._

_2. Refusal of instruction to effect that if witness instructed proprieter of club room to keep whiskkey ahead for him, and that if money given latter was to pay express charges on whiskkey previously ordered, or proprieter so believed, he would not be guilty, held not error. Killman v. State, 63 Tex. Cr. App. 576, 112 SVW 92. Refusal of requested instruction based on theory that transaction was gift held not error. Coleman v. State \[Tex. Cr. App.\] 112 SVW 789._

_Requested instruction to effect that gift of whiskkey in prohibition territory is not violation of local option law, and that to constitute sale mind of parties must meet, etc., held covered by man charge. Byrd v. State \[Tex. Cr. App.\] 114 SVW 135._

\_3. Penalty clause of Rev. St. , 4364-25, relating to sales of liquor in townships outside limits of municipal corporations and keeping places for sale of liquor, held not superseded or repealed by $ 6342. Hamilton v. State, 78 Ohio St. 76, 84 NE 601, Rev. St. 1292, $ 2351, providing that whenever pre-sorbed punishment is fine or imprisonment

## 7 Summary proceedings

See 10 C. L. 468.- Statutes in many states make special provision for the search for and seizure and destruction of liquor and other property kept or used in violation of the liquor laws. The constitutional guaranty against unreasonable searches and seizures must be observed by the officer executing a search warrant as well as by the magistrate issuing it.\* Whether the conduct of the officer in a given case is reasonable or unreasonable is to be determined by all the circumstances of that case.\* An officer authorized to execute such a warrant who finds the liquors complained of and arrests the owner or keeper may also take and carry away such articles of property as may reasonably be used as evidence of guilt at the trial on the search and seizure process,\[10\] and may retain the same for the purpose of presenting them to the grand jury as evidence that the owner or keeper is guilty of a violation of the liquor laws.\[11\] The title to such property remains in the owner, but the lawful possession is temporarily in the officer for evidentiary purposes subject to the order of the court.\[12\]

The proceeding to secure the condemnation of liquors so seized is generally regarded as one in rem and is entirely separate and distinct from any criminal prosecution of the person in whose possession such liquors are found.\[18\] Provision is

- court has jurisdiction of proceedings in error to review judgment of mayor of incorporated village convicting defendant of violation of local option laws, and for purpose of such review may grant leave to convicted party to file petition in error therein. State v. Mattingly \[Ohio\] 86 NE 353.
- G. See Indictment and Prosecution, 12 C. L. 1.
- T. Te support search and seizure process under Rev. St. 29, 8 49, place to be searched must be a locality, definite, certain and fixed, and must be so described in complaint. State v. Fexette, 103 Me. 467, 69 A 1073. Word "place" as used in statute cannot be construed as broad enough to cover search for and seizure of liquors in vallee alleged merely to be in possession of person charged with unlawfully keeping or depositing liquors, but not alleged to be in any definite and fixed locality or place. Id. Compilant failing to designate any place in which liquors are kept and deposited otherwise than "in a valing in the possession of" defendant in certain town held not to sufficiently allege an offense under said section. Id.
- S. Buckley v. Beaulieu \[Me.\] 71 A 70.
- P. Though officers in searching dwelling house occupied by family for liquors may and should search thoroughly in every part of house where there is reason to believe liquor may be found, they should also be considerate of comfort and convenience of occupants and be careful not to injure house or furniture more than is reasonably necessary. Buckley v. Beaulieu \[Me.\] 71 A 70. Where they have no reason to believe that liquors are concealed within walls and partitions, sounding and probing of walls for purpose of ascertaining whether any pipes leading to some receptacle for liquors are concealed there should be done with as little damage as possible. Id. Officers cutling holes in walls with axes, pickaxes and crowbars, and leaving debris on floors and carpets, held to have acted unreasonably and to have done unnecessary damage, and to have thereby exceeded their authority and rendered themselves liable to owner. Id.
- I0. Officer authorized to execute warrant or
  VOL. XII. No. 3. CURRENT LAW, JUNE, 1909. 385

(Copyright, 1909, by The Koefe-Davidson Company.)

**INRoxicATING LIQUORS--Cont'd.**

usually made for a trial to determine the ownership of the property seized and whether the same shall be forfeited.14 In some states one claiming property so seized may repley the same upon giving bond to repay the value thereof to the state in case of condemnation in a suit instituted for that purpose.15

SS 8. _Abatement of traffic as a nuisance; injunction._ See 10 C. L. 450--Where traffic in liquors is declared to be a nuisance,16 it may be enjoined.17 In the absence of a statutory provision to the contrary, however,18 injunction for that purpose will not issue at the instance of a private citizen,19 unless he shows resulting special injury to his property rights.20 The petition for an injunction must describe the premises in question with sufficient accuracy to enable them to be identified.21 The fact that there has been no violation of law by defendant since the commencement of the suit does not necessarily preclude the issuance of an injunction.22

14. Fact that notice in proceedings for con-
    unauthorized and erroneous. Id. Code, demnation was addressed to defendants in-
    SS 2408, construed, and held to require closing stead of to defendants and all other persons of buildings for all purposes and that it be claiming interest held not to render notice

kept so closed for a year, unless sooner re-void, where it was properly served and it did

leased by giving bond, etc., pursunt to not appear that claimant did not have actual
SS 2410, Lewis v. Brennan \[Iowa\], 117 NWW notice of time and place of hearing. Green-

778. Decree substantially in language of tree v. Wallace, 71 Kan. 149, 93 P 508. On

statute held to have same meaning. Id. Un-prosecution for maintaining nuisance, trial

der Code, SS 2408, any one breaking into or to determine whether property seized by

using building directed to be kept closed is sheriff under warrant should be forfeited

guilty of contempt, regardless of their in-may be had at time fixed for answer in no-

tention, Id.

tice served on defendant, or at any other

18. Required enactment of Code, SS 2405: to

time to be fixed by court in exercise of jul-

authorize court of equity to entertain such

dicial discretion. Gen. St. 1901, SS 2405: State

v. Foren \[Kan.\] 97 P 791. Field no abuse of

statutory, may be taken away or modified discretion in ordering trial to proceed on

by legislature. Campbell v. Jackman Bros.

answer day or in refusing new trial. Id.

Wlison's Rev. & Ann. St. 1903, SS 4987-5001,

under Code SS 2406, though sauge as an in-

relating to procedure before magistrates and

dividual, acts in representative- capacity

justices of peace, applies to trials as to propon-

only, and decree rendered therein is prima-

erty rights under Enforcing Act, art. 3, SS 6

(Sessa, Laws 1907-08, p. 605, c. 69), so that

Hemmer v. Bonson \[Iowa\] 117 NW 257. He

claimant may have change of venue in propo-

as neither right nor power to consent to

er case. State v. Oldfield \[OKL\] 98 P 925.

entry of decree which shall operate as l1-

Owner cannot maintain repelavin against

sense or permit for maintenance of nuisance

fector to recover possession of property seized

under Gen. St. 1901, SS 2494, and held by him

edys was created. Id. If he permits una-

pending hearing under 1 2495. Greentree v.

w Wallace, 77 Kan. 149, 93 P 508.

15. Heid that suit by state on bond given

personant to Laws 1907, p. 156, c. 77, was in

showing of his qualifications, have same re-

effect suit to declare a forfeiture or recover

viewed under writ of certoriar. Id. Par-

penalties of which district court and not

tocularly true in case of citizen who suffers

county court had jurisdiction under Const.

setal injury by reason of such decree. Id.

art. 5, SS 8. Dupree v. State \[Tex. Civ. App.\] 117 SWP 326; Malone v.

20 Tex. Ct. Rep. 768, 107 SWP 326; Malone v.

State Tex. Civ. App.\] 107 SWP 327.

to obtain her consent to sale at such place

16. See SS 4, ante.

01. On Violation of Acts 1907, p. 473, SS 29.

under provisions of mulet law. Id. Motive

declaring all places where persons are permitted to resort for purpose of drinking in-

indicates to be nuisances, held that owner

of premises, as well as lessee who ran place,

would be enjoined, allegation of petition that

19,20, Campbell v. Jackman Bros. \[Iowa\]

owner knowingly permitted use of premises

by lessee for such purpose not being denied.

State v. Riddock \[S. C.\] 61 SE

## 9 Civil liabilities for injuries resulting from sale

See 10 C. L. 454.--By statute in many states, anyone furnishing or selling 23 intoxicants to another,24 or to persons to whom the sale of intoxicants is prohibited by law or to whom he has been notified not to sell,28 is made liable in damages26 to certain specified persons,27 or to any per-

thereafter continued to be a nuisance which might be enjoined as such though he had, to such treatment was Improperity admitted. after such day, ceased to violate the law. Id. Field error to allow testimony as to Hammond v. King, 137 Iowa, 548, 114 NWV 1062.

Vhere it appeared that drugsfist had frequently made sales in violation of law before suit was brought, and still continued in Alexander, 152 Mich. 513, 15 Det. Leg. N. 228, the business, hef that injunction should 118 NWV 190. Undistputed evidence held to not have been refused on ground that he had not even technically violated law after suit was commenced and probably would not do so in future. Long v. Joder \[Iowa\] 116 NWV 1063.

Footnote 30: The use of the * 12 Cur. Law. **INTOXICATING LIQUORS SS 9.** 887 son injured,**"** for any injuries resulting from such sale,**"** or from sales within a specified time before the commencement of the action.**"** In some states the liability is extended to the owners\*\*"\*\* and **lessors**"\*\* of buildings used for saloon purposes. Whether damages due to the death of the person to whom the sale is made may be recovered,**"** and whether damages sustained by an individual in consequence of the liquor traffic may be recovered though death follows the injury,**"** depends on the terms of the statute giving the right of action. That sales were made by his agent or servant does not relieve defendant from liability,**"** though they were made in vio-

- 16. Held proper to allege and prove con- ddividing statutory liability may prior or conduct of husband inflicting humanitation and ignoreaneous sales be considered. Id. Satisfied on wife in aggravation of damages. Id. **1897, SS 5398, for injuries resulting to plain- plaintiff could recover damages sustained by her children through suicide of their father** **even though she was not entitled to recover those sustained by herself. Palmer v. Schurs** 255, 116 NW7 416. Evidence held to justify finding that plaintiff's husband was intoxicated when he shot himself. Id. In action on bond for damages because of suicide of plaintiff's husband, allegation of complaint legally liable to support her under Hurd's\*\* **that sale was made to deceased on July 15, Rev. St. 1908, c. 107, held entitled to sue un- and that he continued to be intoxicated up der Hurd's Rev. St. 1908, c. 43, SS 9, for damages to her means of support caused by sale to bring case within time specified in Rev. to brother, regardless of whether she could Pol. Code, f 2849, as "on that day or about have enforced brother's duty to support her."** **that time when said acts were committed or Nagle v. Keller, 237 Ill. 74, 86 NX 694. Where smid Injuries received." Palmer v. Schurs mother was living separate and apart from \[S. D.\] 117 NW 150. husband and derived her means of support from her own labors and those of her minor \[S. D.\] 117 NW7 150.** **shows** and **show**, **shows**, \*\* lation of his instructions," nor is the fact that sales were made in good faith ordinarily a defense." Plaintiff's consent to or acquiescence in the sale precludes recovery," but the fact that he participated in the purchase does not, where he acted under coercion." His bad character is no defense." His motive in suing is ordinarily immaterial."

The place of trial depends on the statutes of the various states."

Where the parents' right of action for sales to a minor is community property, suit must be brought by the husband." Where the wife dies pending a suit by both parents, the husband may prosecute it alone." If the parents are divorced, both parents are necessary parties, unless the custody of the minor is awarded to one of them by the decree." All persons liable under the statute may generally be joined as defendants in one suit."

Plaintiff must allege all facts essential to the establishment of his cause of action." Where good faith is a defense, it must be pleaded if relied on." Matters laid under a videlicet need not be proved exactly as alleged."

by defendant, sales by his bartender, clerk, servant, or agent may be shown, they being deemed in law to have been made by him.

SE 416.

Pennington v. Gillaspie, 63 W. Va. 541, 61 SE 416.

38. Fact that defendant had previously directed servant not to furnish intoxicants to deceased held no defense. Young v. Beveridge \[Neb.\] 115 NWV 176.

01. Good faith of salonkeeper in believing that minor was of age held no defense to action by father on bond for permitting minor son to enter and remain in salon. Markus v. Thompson \[Tex. Civ. App.\] 111 SWV 1074.

01. Acquiescense of father in sales to his minor son held to preclude recovery on bond.

Instruction approved. Price v. Wakeham \[Tex. Civ. App.\] 107 SWV 132. Fact that father had expressly authorized other sa-loonkeepers to sell liquor to his minor son and for permitting minor to enter and remain in salon. Markus v. Thompson \[Tex. Civ. App.\] 111 SWV 1074.

39. Fact that sons procured liquor for father held not to preclude them from recovering where they were under his domination and control and were coerced by him.

Strattman v. Moore, 134 Ill. App. 275. Nor were their rights affected, under the circumstances, by fact that, at suggestion of their sister, they kept memorandum of the several occasions upon which they so procured liquor from defendant. Id.

40. Action by father on bond for sale to minor son. Price v. Wakeham \[Tex. Civ. App.\] 107 SWV 132.

01. Motlive of wife in instituting suit on bond for sales to husband held immaterial, so that allegation that it was fraudulently instituted for purposes of speculation should have been stricken. Farenthol v. Tell \[Tex. Civ. App.\] 113 SWV 638. In action for damages for sale of liquor to plaintiff's minor son after notice, in which she claimed damages for injury to her feelings only, held that she was entitled to statutory penalty of $50, regardless of her motive. Liebler v. Carrel \[Alich.\] 15 Det. Leg. N. 976, 118 NWV 975.

01. Cause of action arising under Code 1899, c. 32, 82 (Code 1906, $ 938), is transitory, and it need not appear that it arose 12 Cur. Law. **INTOXICATING LIQUORS SS 9.**

The burden is on plaintiff to establish the material allegations of his complaint by a preponderance of the evidence.${}^{\\spadesuit}$ The sale of intoxiants, as well as the injury or accident claimed as a result thereof, may be established by circumstantial evidence.${}^{\\spadesuit}$ The usual rules of evidence apply.${}^{\\spadesuit}$ Cases dealing with the admissibility of particular evidence${}^{\\spadesuit}$ on the issue as to whether the person to whom sales are alleged to have been made was an habitual drunkard, to show intoxication,${}^{\\spadesuit}$ to show the nature and quality of the liquor sold,${}^{\\spadesuit}$ or the issue as to plaintiff's good faith in instituting the suit,${}^{\\spadesuit}$ and on the issue of damages,${}^{\\spadesuit}$ will be found in the notes.

bond for sales to minor son held to suffi-

Leg. N. 228, 118 NWF 190. Held proper to perciently describe defendant's place of business. Price v. Wakeham \[Tex. Civ. App.\]

defendant and her husband in which defendant has been made was an habitual drunkard, to show intoxication,${}^{\\spadesuit}$ to show the nature and quality of the liquor sold,${}^{\\spadesuit}$ or the issue as to plaintiff's good faith in instituting the suit,${}^{\\spadesuit}$ and on the issue of damages,${}^{\\spadesuit}$ will be found in the notes.

bond for sales to minor son held to suffi-

Leg. N. 228, 118 NWF 190. Held proper to perciently describe defendant's place of business. Price v. Wakeham \[Tex. Civ. App.\]

defendant and her husband in which defendant has been made with defendant has been made Instructions should not be on the weight of the evidence!8 or assume the existence of fact in issue.89

In some states on action may be maintained on a liquor dealer's bond 80 by persons aggrived by a sale 61 or by violation of the conditions of the bond.82 The liability of sureties is limited to the penalty named in the bond 83 and in the absence of a provision therein to the contrary,84 to damages resulting from sales made during

properly admissible. Young v. Beveridge

\[Neb.\] 115 NWV 766.

56. Evidence as to husband's treatment of his family when drunk held admissible to

Civ. App.\] 107 SWV 132; Markus v. Thompson

\[Tex. Civ. App.\] 111 SWV 1074; Parent

\[Tex. Civ. App.\] 111 SWV 638;

\[Tex. Civ. App.\] 114 SWV 428.

\[Tex. Civ. App.\] 114

\[Tex. Civ.

the life of the bond."55 The fair and voluntary execution of the bond is conclusive on the sureties of everything admitted therein."56 Where the principal enjoys the benefit of a bond fairly entered into, the surety cannot question its validity after breach."57 Where the surety undertakes to be liable for the result of a suit against the principal under the civil damage act, he is conclusively bound by the judgment in such a suit though he was not a party thereto and had no notice thereof."58 The plea of nul tiel record is proper to test the existence of such judgment in an action on the bond."59 Where the bond is joint and several, the fact that the act of a corporation in becoming surety thereon was ultra vires does not necessarily discharge the other surety."60 One not a party to the bond cannot be joined as a defendant in an action thereon."71 The plaintiff in such an action must prove that defendant was a licensee."72 Admissions of the principal in proceedings to which the sureties were not parties are inadmissible as against them."73

**SS 10.**_Property rights in and contracts relating to intoxicants._See 10 C. L. 400_._ Contracts for the sale of intoxicants in violation of law 74 or for the purpose of enabling another to violate the law 75 are unenforcible. The fact that corporations signed bond, since there could be no liability \[bond, and prosecution of business at particulv-unless unlawful act was committed after \]lar place during year, was strong presumping bond, and in light of statute making \]rincipal and sureties liable for any contribu- that it was unnecessary to expressly prove \[that it was issued. Munoz v. Brassel \[Tex\] have undertaken obligation indicated. Id. 65. Instruction held not misleading as authoring jury to find for salest and in ex parte depositions held admissible preceding giving of bond. Birkman v. Fahnenthal \[Tex. Civ. Exp.\] 114 SVV 428. Proof that from date preceding bond to filing of suit there were 10 violations held not proof that 10 violations or any certain number of violations occurred during life of bond. Id. \[LBLAS\] Brewery v. Holmes Bros. \[Tex. Civ.\] Testimony admissible against sureties held not to warrant recovery as against them for the problem territory, and it was agreed more than 2 violations. Id. 66. Town of Point Pleasant v. Greenlee, 68 W. Va. 207, 60 SE 601. 67. Estopped to contend that it was found ed on illegal license. Town of Point Pleasant v. Greenlee, 68 W. Va. 207, 60 SE 601. 68. Where bond guaranteed payment of judgment for damages recovered under Code 1899, c. 32, held that surety was conclusively \]bound by judgment in action under that statute. Town of Point Pleasant v. Greenlee, 63 W. Va. 207, 60 SE 601. 69. The plea of nul tiel record is proper to test the existence of a judgment in a suit on a bond with collateral conditions, the breach of whleh assigned is the nonpayment of such judgment. Suit on bond conditioned to pay judgment recovered against principal under civil damage act. Town of Point Pleasant v. Greenlee, 63 W. Va. 207, 60 SE 601. 70. Where bond was in terms joint and several and act of corporation in becoming surety was not one which was necessarily ultra vires, held that other surety could not claim to be discharged even though plea of ultra vires was sustained. Munoz v. Brassel \[Tex. Civ. App.\] 108 SVV 417. 71. One who was liable under statute for sale of liquars resulting in injury to plaintiffs held not proper party. Sullivan v. Radsuweit \[Neb.\] 118 NW 57L. 72. In action by parent for permitting minor to enter and remain in saloon, held that fact of application, payment of tax filing of cannot be licensed to sell at retail has been held not to make it unlawful for a corporation to lease premises for the purpose of having beer manufactured by it sold therein." The person seeking to avoid a contract ordinarily has the burden of proving its illegality." It has been held that the court will not take judicial notice that beer is intoxicating," or, except in the case of county seats, that a certain town is in a certain county." The fact that the seller took out a federal internal revenue license may be shown on the issue as to whether the liquor sold was intoxicating."

Where intoxicating liquors are recognized as property, they are insurable." If at the time of effecting the insurance, however, the owner intends to use the liquors in the conduct of an unlawful business, the contract of insurance is void."

The lease of a building for saloon purposes is terminated by the subsequent passage of a law prohibiting the sale of intoxicants in the city where it is located."

SS 11. _Drunkenness as an offense_," 10 C. L. 446--Drunkenness " in a public place or on a public street or highway" is made an offense in some states.

The burden is on the state to prove all the essential elements of the offense " and that it was committed within the territorial jurisdiction of the court in which the prosecution is instituted." The mere fact that one has drunk a large quantity of given by lessee conditioned that he should engage in no unlawful business on premises, of beer and 70 gallons of whisky, and fact and to hold lesser harmless from any expenditure, etc. under prohibitory laws, to lawful sales, while tending to prove unlaw-recover muct tax assessed against property that intent, held not to be conclusive, but to because of lessee's sales of intoxicants theremely raise issue of fact for jury. Id. on, evidence held insufficient to show that lessor connited at unlawful sales so as to whether lessee discontinued occupancy. Heart preclude recovery on ground that lease and bond were made for purpose of permitting 364.

- 54 Drunkenness held to mean under insales on leased premises in violation of law.
- 55 Drunkenness held to mean under inslurism v. Shriley (Iowa) 117 NPV 963.
- 56 Drunkenness held to mean under inslurism to hold lessor learned or suspected that liquor might be so sold held not to prevent recovery. Id.
- 57 Revision in lease for surrender of term in event license for drashmould could not be procured held not contrary to public policy. Conservative Reality Co. v. St. Louis
- 58 Drunkenness held to mean under inslurism to hold in local option territory must prove that it was to be so sold in local option territory but to be an option to release the 18 Cur. Law. JOINT ADVENTURES. 393

beer does not render him competent to testify as to whether a named quantity would have made defendant drunk.\[88\] The court need not define drunkennness or intoxication in its instructions.\[89\]

**Inforcentiou; Inventions; Investments; Inrrigation; Islands; Issue; Issues to Jury; Jeofail; Jeopardy; Jettison; Joinder of Causes, see latest topical index.**

**JOINT ADVENTURES.**

_The scopes of this topic is noted below.\[90\]_

_What constitutes.\[See 10 C. L. 400--A joint adventure, as distinguished from agency,\[91\] partnership,\[93\] or tenancy in common,\[94\] is merely a combination of two or more persons in a single enterprise.\[94\] The implied understanding between joint purchasers is that each is engaging in an enterprise for mutual benefit and that_

**public highway was committed in designated**

**v. Williams, 139 Mich. 296, 102 NWV 153: Klrk-town or city held insuMicient to establish**

wood v. Smith, 47 Misc. 301, 95 NYS 926: venue and consequent jurisdiction in court\*\*

Price v. Grice, 10 Idaho. 443, 79 p 387: EPS whose jurisdiction was coextensive with a\*\*

**v. Williams, 139 Mich. 296, 102 NWV 789:**

**county. Springfield v. State \[Ga. App.\] 82**

**Paddock v. Bray, 40 Tex. Civil. App. 226, 13 SE 569.**

**SS8. There being no statement as to his**

**Co. V. D. K. Jeffris Lumber Co., 132 Wise. 1, particular knowledge of effect of such liquor**

**111 NWV 377: Jones V. McNally, 53 Mice. 59, on defendant. Clark v. State, 83 Tex. Cr. 103 NYS 1011: Vogeillin, W. Bowdoin, 54 Misc. 254, 104 NYS 894: Scott V. White \[Or.\] 11 P. 529, 111 SWV 659.**

**SS9. Leaving question of defendant's drunk-**

**v. Williams, 139 Mich. 296, 102 NWV 753: Cor-not error. Brooke v. Mortin \[Ark.\] 111**

**by W. Holmes 1C. 43. 154 F 593: Wraples SWV 471. Is not necessary to define "drunk."**

**v. Fahys, 87 App. Div. 518, 84 NYS 793 and enenses" and "in a state of intoxication."**

**must rest upon a joint interest (Friederson Clark v. State, 53 Tex. Cr. App. 529, 111 SWV 659.**

**659. Refusal of instruction that terms**

**The relation of joint adventures dogs not meant more than that defendant had drunk**

**constitute a partnership unless the parties so**

**inducents sufficient to exliterate him held**

**intend or unless they hold themselves out to**

**not error in view of other instructions. Id. the public as partners. Brotherton v. Gil-90. Includes rights and liabilities between**

**which, 144 Mich. 274, 13 Det. Leg. N. 150, 107 partries to joint enterprises for profit. Excluding partnerships (see Partnership, 10 C. L.), 15 111: Beacom V. Bush, 45 Mich. 188, 1100), joint estates (see Prants in Common 17 NWV 755, 49 Am. Rep. 45; Merrick v. Gror-and Joint Tenants, 10 C. L. 1850), joint contractions (see Contracts, 11 C. L. 173), and joint word (N. Y.) 175, 31 Am. Rep. 376; Everett tortessors (see Torts, 10 C. L. 1857), v. V. Coe, 5 Denin (N. Y.) 180; Heimnstreet v. 91. Contract between real estate agent**

**Howland, 5 6 Emelon (N. Y.) 68; Pattison v. and landowner for securing purchaser, com-**

**Bhanchard, 8 N. Y. 186; Putnam v. Wiseo, 1**

**pensation to be amount in excess of stated**

**Pifii \[N. Y.\] 82, 37 Am. Rep. 399: Day v. price, is agency contract, not joint venture.**

**Manker v. Toang \[Kan.\] 98 N 792.**

**Pay 792.**

**Pay 793.**

**Pay 794.**

**Pay 795.**

**Pay 796.**

**Pay 797.**

**Pay 798.**

\*\*Pay 799.

each has a share in the venture according to the amount of his subscription.95 The existence of the relation is determinable from the contract,96 either by the court " or the jury.98

\_Rights and liabilities of parties.\_See 10 C. L. 461--The relation being contractual, the right to the profits frequently involves a construction of the agreement 99 and the determination of what are profits.1 Losses should fall on the party who assumed the risk and would have reaped the benefit, rather than one whose interest in confined to reimbursement for advances and who held the legal title only for the purpose of security.2 Interest should be provided for if intended to be charged.8 An agreement not to sell the article produced without mutual consent does not authorize a party arbitrarily to withhold his consent.4 The relationship being fiduciary, the parties must act in the highest good faith,9 and a concealed profit accrues for the benefit of all the parties.6 Parties to a joint adventure, as distinguished from a partnership, are not bound by the acts and declarations of other parties thereto relative to matters outside the joint adventure.7

5. Lomita Land & Water Co. v. Robinson \[4\] extension of option to sell, $250 attorney's \[4\]. $7 P 10. \[6\]. Whether managers of syndicate were partners properly determinable from agreement. Jones v. Gould, 123 App. Div. 236, 108 NYS 31. Agreement being unambiguous was only evidence. Id. \[7\]. Where there is no ambiguity in contract. Jones v. Gould, 123 App. Div. 236, 108 NYS 31. \[8\]. Right of partner to recover sum advanced, dependent upon existence of joint venture, held properly submitted to jury, in view of evidence. Bowman v. Saigling \[Tex. 11\]. Net profits are the clear gain of a venture after deducting from net value of assets on hand capital invested and all outstanding liabilities. Thurston v. Hamblin, 193 Mass. capital consisting of buildings, machinery and materials, and agreed to reception of one-half of net profits, "taxes on the capital employed and other charges as usual" to be made in ascertaining net profits, it was proper to deduct depreciation of machinery, power furnished, repairs, insurance, and deterioration of finished product stored in warehouse. Stone v. Wright Wire Co., 193 Mass. 306, 85 NE 471. Fact that parties to contract were not technically partners would be immaterial as affecting deductions from gross earnings in determining net profits. Id. In determining net profits of joint adventure, insurance held a "usual charge" within meaning of contract. Id. Where one party agreed to furnish buildings and power provision as to "power" was merely part of description of buildings to be furnished, and in ascertaining net profits it was proper to earnnings. Id.

**Profits in joint adventure for sale of stocks:**

Fact that person entitled to share in commission on sale of stock became purchaser immaterial as to rights of parties to commission. Bogua v. Marshall \[Ark.\] 114 SVV 714. Where several parties were entitled to commission in sale of stock, party not active in sale was not entitled to this share free from expenditures, but must bear proportionate share. Id. Where active partners in inducing sale of stock paid bonus to person to finance deal, such bonus was legitimate item of expense to be deducted from profits before division. Id. Payment of $2,500 for 12 Cur. Law. Joint Stock Companies.395

_Actions._${}^{
m Sec}$ 10 C. L. 462.--In order to recover a share of the profits of a venture, the plaintiff must prove the contract\* and the extent of his interest in the venture.\*

**Joint Executors and Trustees; Joint Liabilities or Agreements, see latest topical index.**

**Joint Stock Companies.39**

_The scope of this topic is noted below.${}^{
m 11}$_

A joint stock company is a partnership,${}^{
m 12}$ and the rights and duties of its members are determined from the articles of association.${}^{
m 18}$ Ordinarily a member may

agents, statement of one could not bind other managers personally on separate and independent agreement. Jones v. Gould, 123

the application of the name "Joint stock compan". Dlv. 236, 108 NYS 31.

8. Interest in fund used by defendants without authority is insufficient. Whitman v. Bartlett \[Ala.\] 48 892.

1. Where parties had different interests. V Whitman v. Bartlett \[Ala.\] 46 S 972.

1. See 10 C. L. 462.

1. Includes matters peculiar to unincorporated companies having transferable shares of stock. As to matters common to all voluntary associations, see Associations and Societies, 11 C. L. 308. As to partneringships generally, see Partnership, 10 C. L. 1100.

1. Not corporation. Rountree v. Adams Exp. Co. C. A. 165 F 152.

1. See 10 C. L. 462.

1. Includes matters peculiar to unincorporated companies having transferable shares of stock. As to matters common to all voluntary associations, see Associations and Societies, 11 C. L. 308. As to partneringships generally, see Partnership, 10 C. L. 1100.

1. Not corporation. Rountree v. Adams Exp. Co. C. A. 165 F 152.

1. See 10 C. L. 462.

1. Includes matters peculiar to unincorporated companies having transferable shares of stock. As to matters common to all voluntary associations, see Associations and Societies, 11 C. L. 308. As to partnerings generally, see Partnership, 10 C. L. 1100.

1. Not corporation. Rountree v. Adams Exp. Co. C. A. 165 F 152.

1. See 10 C. L. 462.

1. Includes matters peculiar to unincorporated companies having transferable shares of stock. As to matters common to all voluntary associations, see Associations and Societies, 11 C. L. 308. As to partnerings, 10 C. L. 1100.

1. See 10 C. L. 462.

1. See 10 C. L. 463.

1. See 10 C. L. 464.

1. See 10 C. L. 465.

1. See 10 C. L. 466.

1. Includes matters peculiar to unincorporated companies having transferable shares of stock. As to matters common to all voluntary associations, see Associations and Societies, 11 C. L. 308. As to partnerings, 10 C. L. 466.

1. Not corporation. Rountree v. Adams Exp. Co. C. A. 165 F 152.

1. See 10 C. L. 466.

1. Includes matters peculiar to unincorporated companies having transferable shares of stock. As to matters common to all voluntary associations, see Associations and Societies, 11 C. L. 308. As to partnerings, 10 C. L. 466.

1. Not corporation. Rountree v. Adams Exp. Co. C. A. 165 F 152.

1. See 10 C. L. 462.

1. Includes matters peculiar to unincorporated companies having transferable shares of stock. As to matters common to all voluntary associations, see Associations and Societies, 11 C. L. 308. As to partnerings, 10 C. L. 466.

1. See 10 C. L. 463.

1. See 10 C. L. 464.

1. See 10 C. L. 465.

1. See 10 C. L. 466.

1. Includes matters peculiar to unincorporated companies having transferable shares of stock. As to matters common to all voluntary associations, see Associations and Societies, 11 C. L. 308. As to partnerings, 10 C. L. 466.

1. Not corporation. Rountree v. Adams Exp. Co. C. A. 165 F 152.

1. See 10 C. L. 466.

1. Includes matters peculiar to unincorporated companies having transferable shares of stock. As to matters common to all voluntary associations, see Associations and Societies, 11 C. L. 308. As to partnerings, 10 C. L. 466.

1. Not corporation. Rountree v. Adams Exp. Co. C. A. 165 F 152.

1. See 10 C.

withdraw from a joint stock company at will,14 unless prohibited from so doing by the articles of association.18 The validity of the organization of a stock company is not necessarily affected by the failure to acquire a valid title to all the proper specified in its articles or by an overestimation of capital.19 An officer has no authority to bargain away the capital stock of the company.17 The right to inspect the books and records of a joint stock company by a stockholder may be enforced by mandamus,18 provided such right is invoked for a proper purpose19 and the conditions precedent to the right to this particular remedy have been complied with.20 Persons dealing with a joint stock company are bound by statutory limitations.21 The association may be dissolved by mutual consent 22 or by a court of equity for good cause shown.28 In an action in the federal courts, an allegation that plaintiff, a joint stock company, is a citizen of a state different from that of which the defendant is a citizen, will not give jurisdiction on the ground of citizenship.24 An averment that complainant is a joint stock company is not equivalent to a statement that it is a corporation.28 Where a judgment is rendered against a joint stock company, such judgment cannot be avoided by a claim that the suit was against the shareholders individually.28

JUDGES.

The Offee; Appointment or Election; Qualifications and Tenure, 396. The Disability to Hold Office, Practice Law of Kmage in Business, 404. riles, 399.

# 2. Special, Substitute and Assistant Judges, 399.

Powers, Duties and Liabilities, 402. Powers During Vacation or at Chambers, 407. Procedure and Trial 403. Powers After Terms of Office, 407.

_The scope of this topic is noted below.27_

$ 1. \_The office; appointment or election; qualifications and tenure,\_Sen 10 C. L. 461

The legislature has power under most constitutions to provide for additional judges,28

pany was manifest. Strang v. Osborne, 42 stock is unnerforbble. Id. Evidence insufflect to show estoppel. Id.

14. Strang v. Osborne, 42 Colo. 187, 94 P

01. Contract construed, and vote of two-thirds of shares required to dissolve assoclation familiar to joint stock company. Strang drawal from ditch company prohibited while member owned property which association was organized to manage, such withdrawal should operate as dissolution. Strang v. Osborne, 42 Colo. 187, 94 P 320.

01. Subscriber not entitled to rescind for fraud. Andrews v. Brace \[Mich.\] 15 Det. Les. N. 693, 117 NPV 586.

01. Contract by chairman to give stock for patent. Dickinson v. Matheson Motor Car Co., 161 F 874.

18, 18, but such power must of course, be exercised in conformity with constitutional limitations.28 The time for holding elections to fill vacancies is generally prescribed by positive law.30 A judge elected to fill a vacancy must resign his former office before he can qualify for the new.81 Appellate courts take judicial notice of who is judge.

Footnote 29: Clause in SS 1 of Act of May 29, 1908 \[to hold inconsistent and incompatible of-fices. Positions were held to be incompart-Viding that court shall recommend to gov-error the appointment of an additional judge "for such period as the court may consider necessary to meet the conditions, hailty, or when they were of such a nature as to interfere with each other. Bacon, of court, void, as being the exercise of legislative power. Const. SS 1, art. 4. In re Coun-Ity Comms \[OkL\]. 98 P 557. Title to Act of May 29, 1908 \[Sess. Laws 1907-08, p. 453, 45, c. 46\], held to contain but one separate and distinct subject, the appointment of ad-quaternized states for a typical cause for a township. Eddy v. Peoria Coun-Ity Comms are found necessary. 1d. Laws 1908, c. 62, p. 50 (Sp. Sess.), creating circuit court of Wyandotte County, etc., held a special law, at the same time was not re-repignant to constitution of Kansas, and to afford defendant no warrant for holding of Judge of such court. State v. Hutchings \[Kan.\] 98 P 797. Act of May 29, 1908 \[Sess. Laws 1907-08, p. 454, c. 46\], being void in \[or, hevious being so connected and dependent upon each other that legislature would not have enacted one without the other; hence petition for recommentation for appointment of additional judge dismissed. In re County Comms \[OkL\]. 98 P 557. \[30. Rev. St. 1899, SS 195, 201 (Sess. Laws 1890-91, p. 392, c. 100; Sess. Laws 1890-91, p. 237, c. 65), held to authorize holding of election for district judge at any general election when office will become vacant by expira- tion of term subsequent to each election and prior to next general election. State v. Schmitger \[Wyyo.\] 96 P 238. Where law providing for election of police judge then- mainly was modified so that council might provide by ordinance that city clerk should be ex-office judge, and an ordinance to that effect was passed prior to next regular election, election of police Judge at next following election became unnecessary, city clerk having already been elected for both offices. Vineyard v. Grangeville City Council \[Idah.\] 98 P 422. Nothing in Laws 103, p. 187, prohibited enactment of ordinance. I. Legislature held empowered to enact Laws 1903, p. 187, by Const. SS 1, art. 12. Id. Act of March 10, 1903 \[Laws 1903, p. 187\], held not unconstitutional as having insufficient title. 31. Election probably accountable for resignation, so as not to show intentional failure to render election in former office within reasonable time. Wyatt v. Arnot \[Cal. App.\] 94 P 86. NOTE. Right to hold two judicial offices simultaneously: It is held in State v. Jones, 180 Wis. 572, 110 NWV 431, 8 L R. A. (N. S.) 1107, that the offices of county judge and Justice of the peace are incompatible where preliminary examinations in criminal cases might be held before either, so that the occupancy of both offices by one person would reduce the number of judicial officers having such jurisdiction which the law has provided. The common law did not permit a person of a particular court,"21 elected at a particular election to fill an unexpired term."33 The appellate court will also judicially notice that the term of office of the trial judge expired pending the time for settlement of the bill of exceptions."44 A term of office fixed by constitution 35 cannot be changed by the legislature 36 or by the recitals of a certificate of election."37 The tenure 38 of judges in Hawaii is for four years and until the appointment and qualification of their successors."39 Upon a sufficient showing, a judge may be impeached and removed from office."40 Grounds for removal are frequently prescribed by statue."41 The accused judge is usually entitled to notice of the charges against him."42 Oral testimony is admissible in relation to the transactions upon which the charges are based."43

And powers conferred upon the justices of \[08, p. 454, c. 46\], providing that no appoint-the supreme court with reference to the appointment of commissioners, in which they indep, "shall extend beyond Jan. 1, 1911," act judicially with delegated powers and not under the ordinary jurisdiction of the court, \[Ed. $ 178\], fixing term at four years and pre-not incompatible with the constitutional prohibition against a justice holding "any other office or public trust." Striker v. Kelly, 2 Denio \[N. Y.\] 323, aff. 7 Hill, 9.

In Commonwealth V. Northunberland County, supra, it is said that no provision of the constitution or any act of assembly prevents the offices of justice of the peace and associate judge of common pleas from being held by one person.

Where a city is entitled to a certain number of judicial officers, one person cannot hold two of such positions, State v. Hadley, 7 Wis. 700.

The election or appointment of a judicial officer to an incompatible judicial position is not void, but he may elect which office he will hold. If he chooses to accept the latter, he thereby vacates the former. But if the appointee subsequently accepts the appointment and qualifies, the first office is ipso facto vacated. People v. Carrique, 2 Hill \[N. Y.\] 33: Eddy v. Peoria County, supra-Adapted from 8 L. R. A. (N. S.) 1107.

32. Supreme court takes judicial notice of who is judge of circuit court of particular county. Viertel V. Viertel, 213 Mo. 562, 111 SWP 579. Courts take judicial notice of who presides as regular judge of a court making an order. City of Shawne v. Farrell \[OKL\] 98 P 942. Judge pressured to be one authorized to make order. Id.

01. Court of appeal takes judicial notice of fact that one was elected judge of superior court for county at general election under predicamation of governor to fill unexpired term. Wyatt v. Arnot \[Cal. App.\] 94 P 86.

01. Northwestern Port Huron Co. v. Zickrcl \[S. D.\] 115 NWF 525.

01. Const. art. 5, $ 19, 4, 20, 21, and art 21, $ 20, held to apply to judge elected to fill vacancy and to one elected immediately preceding expiration of term of elected incumbent, so that judge elected at any general election holds office for $ years from first Monday in January succeeding his election. State v. Schnittger \[Wyo.\] 96 P 238. Words "until otherwise provided by law," in Const. art. 5, $ 19, held not to qualify remainder of section, but to refer only to number of districts. Id.

01. Const. art. 5, $ 19, should be so construed as not purporting to empower legislature to change terms of district judges. State v. Schnittger \[Wyo.\] 96 P 238. Clause in Act of May 29, 1908, $ 2 (Sess. Laws, 1907-1911).

01. Certificate that election Is for unexpired term of predecessor does not shorten term fixed by constitution. State v. Schnittger \[Wyo.\] 96 P 238.

01. "Tenure" in 31 Stat. p. 156, $ 80, held to mean right to hold an office for an indefeficient time, as distinguished from "term," denoting period of time with fixed limits. Robinson V. U. S., 42 C. Cl. 52.

01. Last section of 31 Stat. p. 156, $ 80, to effect that "all such officers shall hold office for $ years and until their successors are appointed and qualified," held to include judges appointed by the president. Robinson v. V., $ 42 Ct. Cl. 52. Rev. St. title

01. "Tenture" in 31 Stat. p. 156, $ 80, held to mean right to hold an office for an indeficient time, as distinguished from "term," denoting period of time with fixed limits. Robinson V. U. S., 42 Ct. Cl. 52.

01. Last section of 31 Stat. p. 156, $ 80, to effect that "all such officers shall hold office for $ years and until their successors are appointed and qualified," held to include judges appointed by the president. Robinson v. V., $ 42 Ct. Cl. 52. Rev. St. title

01. XXIII, c. 1, $ 1864, providing that judges "of every territory" shall hold their offices for $ years and until their successors are appointed and qualified," held to extend to judges in Hawaii. Id.

01. Judge who because of maltce or cor-prion renders an erroneous decision, or fails to render decision within reasonable time, is 12 Cur. Law. JUDGES $ 2. 399

_The acts of a de facto judge See 10 C. L. 483_.--Solaries and fees are generally held valid.44

\_Salaries.\_See 10 C. L. 483.--Solaries and fees are generally fixed by statute,45 and the statutes allowing fees should be strictly construed.46 The construction placed upon the statute by the officers acting thereunder may be considered.47 When a judge collects fees to which he is not entitled,46 they may be recovered back by the party entitled thereto.49 A suit by a county against a judge and his sureties on his official bond is not one in behalf of the state to recover a penalty.50 Liability for fees earned, but not collected is predicated upon willful or negligent failure to collect " or to take sufficient security therefor.52 Penalties for the collection of excessive fees are often imposed by statute.53 The legislature may, even contrary to what may be deemed the best policy, make the collectibility of a judge's fees more or less dependent upon the judgment rendered.54 A judge's right to compensation ceases on the expiration of his term.55

$ 2. \_Special, substitute and assistant judges.\_See 10 C. L. 483.--Usually the legislature can provide that a court may be held by a person other than the judge of that court under given circumstances,56 and the legislatures of many states have so pro-

main facts alleged in petition, he may pre- but a single defendant until demand for segment oral testimony as to transactions upon which charges are based. In re Dreege, 111 NYS $.

44 Judgment rendered by judge acting under invalid provision of charter of city and county of Denver held not voll. Rude v. Sl-sack \[CoLo.\] 96 P 976.

45 Compensation of county judges in counties with population not exceeding 20., 000 is $1,600 out of fees, as provided by Sess. Laws. Okl. 1903, $ 1, ch. 14 State v. Fraser \[Okl.\] 96 P 628. Mandamus lies to recover excess. Id. Sole compensation of county judge, in absence of other specific provision, is that fixed by county board under authority of St. 1899, $ 694. Hoffman v. Lincoln County \[WPs.\] 118 NWV 850. Laws 1891, p. 126, $ 109, held not prevent coun-ty judge from recovering from county the per diem compensation allowed by St. 1898, $ 2454, as amended by Laws 1903, p. 81, c. 45, for time devoted to matters other than probate business. Id. Laws 1895, p. 493, c. 494, held to emulate county judge of Lanco-colm county to compensation allowed by St. 1898, $ 2454, for time actually engaged in passing on applications for permits under Laws of 1891, p. 126, $ 109. Id. Words "for each day he shall be actually engaged," in St. 1898, $ 2454, as amended by Laws 1903, p. 81, c. 45, held to indicate intention to allow compensation only for time actually consumed, necessitating a splitting up of days and a charge by the hour, and to establish arbitrary number of hours as a day's work. Id. "Day" in St. 1898, $ 2454, as amended by Laws 1903, p. 81, c. 45, held to mean calendar day, so as to authorize judge working over hours to charge more than the per diem allowance for one calendar day. Id. Provisions of Comp. St. $ $484 held limited to cases in which county judge derived power to perform services solely from grant of ordinary powers and jurisdiction of a justice of the peace; hence not to confer upon county judge right to charge fee for marriage ceremonies. Dues-las County v. Vinsonholer \[Neb.\] 118 NWV 1058.

40. Where complaint is filed against several persons, same fees recoverable as if the state is not a legal state, but not a legal state, but not a legal state, but not a legal state, but not a legal state, but not a legal state, but not a legal state, but not a legal state, but a legal state, but not a legal state, but a legal state, but not a legal state, but a legal vided." Under some of the statutes, where a judge is disqualified, he may call in the judge of another district," while under other statutes a judge pro hae vice cannot be appointed by the regular judge," the power of appointment being in the parties " or the clerk." As a rule in Louisiana, where a judge who is recusable for interest makes an order appointing the judge of an adjoining district to try the recused case, the order operates as an effective appointment," but this rule does not apply where for any valid reason the appointee is authorized to refuse to accept or act under the order of appointment." When no objection is raised during trial, the objection that a special judge selected by the parties failed to take the oath of office is waived." The fact that the Washington constitution entitles each county to a local judge does not disqualify a judge from another county to sit as a judge in a particular case in a county other than his own." One cannot be a judge pro hae vice de facto."

While discharging the specific duties of the office, a person designated to preside over a court other than his own sustains to that court the relation of judge," but the powers and responsibilities of a judge requested to act for another are limited to the period he shall so act," and resumption of jurisdiction by the regular judge operates to vacate the office of the special judge, without any order to that effect, as to all business except that already commenced by the special judge," the jurisdiction of the special judge over business so commenced being in no wise affected by the re-providing that judge of one city court may prescribe in another city in absence of judge of court of latter city, held constitutional. Act No. 185, pp. 430 of 1888, recused judge, Georgia, etc., R. Co. v. Sasser \[Ga. App.\] having appointed judge ad hoc, who was granted a leave of absence, and was neither willing nor obliged to, and who declined to accept order of appointment, held not dis- may preside in another city court when Judge vested of jurisdiction for purposes of ap- of latter court is disqualified. Georgia, etc., bointment, the attempted appointment not having taken effect. Id. Immaterial that der Civ. Code 1895, SS 4177, judge of one county court may preside for the judge of another county court. Bedingfield v. First Nat., Bank \[Ga. App.\], 61 SE 30. Where no application for a change of venue is made where the trial judge is disqualified, a special judge elected by the attorneys present in court and qualified to act may try the cause. Todd v. Hutchinson, 129 Mo. App. 623, 108 SWP 593. Rev. St. 1899, art. 11, c. 8, SS 818-S34 (Ann. St. 1906, pp. 789-798), and Rev. St. 1899, art. 3, c. 14, SS 1678-1685 (Ann. St. 1906, pp. 1219-1222), are separate and distinct, and, where no application for change of venue is asked, first cited statute is not applicable to case and latter statute controls. Id.

61. Selection of an attorney to preside as judge pro hae vice must be made either by parties themselves, if they can agree, or if not, by clerk of county court, or by clerk of superior court. Civ. Code of 1895, SS 4178, 4179. Bedingfield v. First Nat. Bank \[Ga. App.\] 61 SE 30. Judge acting as own clerk cannot make appointment. Id.

01. State v. Twenty-first Judclal Dist. Democratic Committee \[La.\] 47 S 405.

01. State v. Twenty-first Judclal Dist. Democratic Committee \[La.\] 47 S 405. Under court of latter city, held constitutional. Act No. 185, pp. 430 of 1888, recused judge, Georgia, etc., R. Co. v. Sasser \[Ga. App.\] 61 SE 30.

01. Johnson v. Jackson \[Ky.\] 114 SWP 260.

01. Fact that judge who tried case in Cow-a county divided into departments, upon be- lits county was resident of Clarke county held not to deprive court of jurisdiction under constitutional provision. American Bonding Co. v. Dufur \[Wash.\] 96 P 160.

01. The reason being that the reputation upon which the authority of a de facto of-ficer depends must arise from acts other than those in question, and therefore the status of a judge pro hae vice, being necessarily temporary, cannot thus prove itself, and also that there cannot be a de facto officer where there is no office, and there is no office of judge pro hae vice. Bedingfield v. First Nat. Bank \[Ga. App.\] 61 SE 30.

01. Georgia, etc., R. Co. v. Sasser, 130 Ga.

394, 60 SE 897.

68. Regular judge thereafter has jurisdiction of causes heard, but not finally disposed of by substitute judge. Rev. St. 1899, 1678 (Ann. St. 1906, p. 1219), Viertel v. Viertel, 2123 Mo. 562, 111 SWP 597. Although local judge has called in judge from another district to try case, he may resume jurisdiction and order a new trial after settlement of statement, when other judge returns to his own circuit or when his term of office express. Northwestern Port Huron Co. v. Zickick \[S. D.\] 115 TWP 525.

01. State v. Stevenson \[W. Va.\] 62 SE 688.

turn of the special judge; 70 and the fact that the regular judge of a district holds court in the same district and at the same time that a special judge is trying a case in no manner affects the jurisdiction of the special judge to try such case.71 Jurisdiction of a special judge, not to try any particular case but to preside only in the absence of the regular judge, ends for all purposes with the adjournment of the term at which he was elected, except as to the matter of signing bills of exceptions in cases tried and finally determined by him.72 When an incumbent dies, leaving official acts unfinished, they may be completed by his successor,73 and an acting judge is sometimes authorized to sign the bill of exceptions to a cause heard by a judge who shall go out of office before doing so.74 A judge pro tempore is without power to enter an order extending the time to make and serve a case made after he has ceased to sit as a court.75 Temporary jurisdiction sometimes extends to the granting or refusing of injunctions,76 but such jurisdiction usually may be exercised only in cases of emergency and urgent necessity.77 Where a motion has been heard and determined by one circuit judge and no leave given to renew the motion, the same motion cannot be heard by another circuit judge upon the same state of facts,78 but where an action has been tried before a substitute judge, and a motion for a new trial, not previously made before the substitute judge, is made before the regular judge upon the ground of erroneous rulings, the hearing of such a motion is not within the rule which prohibits one judge from reviewing the decisions of a co-ordinate judge.79 Where power to act as a substitute judge is given in case of illness, absence or disqualification of

70. Reversible error for regular judge to

not disqualified. Ewell v. Jackson, 33 Ky.

assume jurisdiction of cause begun and con-

L. R. 673, 110 SV 860.

linued before special judge dujver elect to

74. Under Rev. St. 1899, $ 731 (Ann. St.

preside in regular judges' absence. State v.

Stevenson \[Vw. Va.\] 62 SE 688.

1906, p. 726\], providing that where judge

71. Johnson v. State \[Okl. Cr. App.\] 97 P

before he signs bill of exceptions, bill, if

1959.

0001. State v. Stevenson \[Vw. Va.\] 62 SE 688.

acting judge of court where case was heard,

NOTE. Effect of adjournment of term

in State v. Stevenson \[Vw. Va.\] 62 SE 688.

it term, as required by Rev. St. 1899, $ 1679,

was intiminated in view of a new trial, though

held proper person to sign bill of exceptions

the decision of the point was not necessary

at term over which he presided in a case

to the disposition of the case on the appeal,

tried before regular judge at prior term, "go

that adjournment terminates jurisdiction of

out of office" not being confined to death or

special judge elected to preside in the absence

resignation but covering a case of being

of the regular judge. In connection with this

disabled by sickness. Rannney v. Hammond

point the court said: "Authorities do hold

Packing Co. \[Mo. App.\] 110 SW 613.

Chr-
however, that such special judge may adjourn

cumstance that former judge so far recovers

the hearing of a case beyond the regular term

without losing jurisdiction thereof. 23 Cyc.

charge of the case does not alter the rule.

#12, and cases cited in note 54. The fact

that the term of a regular or special judge

75. City of Shawnee v. Farrell \[Okl.\] 68 P

has ended or expired before a trial begun

942. Under Wilson's Rev. & Ann. St. 1908,

is completed will not preclude his successor,

3474, such an extension can only be granted

the regular or newly-elected judge, from

trying the case, but he would have to try

session of office. Id.

it de novo. 23 Cyc. 565. It is said at the

76. In absence of circuit judge from

page just cited, on authority of Clantum v.

Ryan, 14 Colo. 419, 24 P 258, and In re Sulivan, 143 Cal. 462, 77 P 153, that 'a judge

who did not hear the evidence cannot render

a judgment in a cause, notwithstanding the

testimony may have been written down and

preserved.74 A judge pro tempore is without power to enter an

73. Judge having died without signing

record of judgment, successor was authorized to sign same and complete record.

Montgomery v. Viers \[Ky.\] 114 SW 261.

Ky. St. 1903, $ 977, held to apply to special

as well as to regular judges, that where on

account of death or for reasons enumerated

therein a special judge shall fail to sign orders, they may be signed by special judge

who succeeds him or by regular judge, if

19 Curr. L. - 26

#### 402 JUDGES $ 3.

12 Cur Law the regular judge, the facts giving authority to act must be proved the same as other facts by competent evidence,\[80\] and on a motion to dismiss for disqualification of the substitute, the burden of proof is on plaintiff to affirmatively show the existence of facts upon which authority is dependent.\[81\] In some states where a case has been tried by a special judge, the record on appeal must show the disqualification of the regular judge, by what authority the special judge was elected or agreed upon, or in what manner he was legally designated to try the cause.\[82\]

SS 3. \_Powers, duties and liabilities.\_See 10 C. L. 444--Where a judge has been duly elected and commissioned, the law imposes in him the duty of hearing and disposing of the litigated questions that may arise in his jurisdiction, unless some cause to the contrary recognized by law as sufficient exists,\[83\] and where under the law it is clearly the duty of a judge to proceed to the consideration of a motion upon its merits, he cannot relieve himself of that duty or divest himself of jurisdiction by an arbitrary dismissal of the proceeding.\[84\] Failure to perform duties unconditionally imposed by law may render a judge liable upon his bond for the loss sustained through such failure,\[85\] but it is held that he cannot be held liable in damages for delay in rendering a decision,\[86\] though such delay, if willful and corrupt in its purpose, may constitute ground for impeachment.\[87\] In a proper case mandamus will lie to compel a judge to perform his duty.\[88\] When, therefore, for an unreasonable length of time he delays a decision, he may in a proper proceeding be compelled to decide,\[89\] but not in any particular way.\[90\] The presumption that public officers have performed their duties applies to the duty of a county judge to pay into the county treasury the surplus fees of his office,\[91\] but in a suit to recover the surplus uncollected fees of his office, slight evidence is sufficient to shift the burden of proof and require the officer to establish the exercise of reasonable diligence in endeavoring to collect the same.\[92\]

\*\*86.\*\*Gasson v. Atkins, 112 XYS 224.

\*\*87.\*\*Wyatt v. Arnot \[CaI. App.\] 94 P 86.

\*\*88.\*\*G.\*\*On motion to dismiss for disqualification of record to act as city judge under city charter, burden on plaintiff. Gasson v. Atkins. 112 XYS 224.

\*\*82.\*\*Under Code Civ. Proc. 1855, art. 609, conviction where record showed that acuseless was tried by special judge, but not facts warranting him in trying same, reversed. Head v. State \[Tex. Cr. App.\] 114 SWS 834.

\*\*88.\*\*Keller v.\*\*Wyetton Consol.\*\*Wyatt Co., 34 Pa. Super. Ct. 301.

\*\*84.\*\*Dismissal of motion for an order directing witness to answer question, etc., held arbitrary so as not to preclude compelling judge by mandamus to require witnesses to answer questions and complete deposition sought to be taken. In re Scott \[Cal. App.\] 96 P 385.

**96 P 385.**

\*\*88.\*\*Cormelison v.\*\*Million, 33 Ky. L. R. 1086, 112 SWV 654. Ky. St. 1903, \*\*SS 1065, 1068, providing that county judge shall at stated times require dictionaries to settle their accounts, and that he shall each year inquire into solvency of each fiducary, etc., held mandatory, rendering judge liable for failure to do so where loss is sustained thereby.

\*\*10 C. L. 444--Where a judge has been duly elected and commissioned, the law imposes in him the duty of hearing and disposing of the litigated questions that may arise in his jurisdiction, unless some cause to the contrary recognized by law as sufficient exists,\[83\] and where under the law it is clearly the duty of a judge to proceed to the consideration of a motion upon its merits, he cannot relieve himself of that duty or divest himself of jurisdiction by an arbitrary dismissal of the proceeding.\[84\] Failure to perform duties unconditionally imposed by law may render a judge liable upon his bond for the loss sustained through such failure,\[85\] but it is held that he cannot be held liable in damages for delay in rendering a decision,\[86\] though such delay, if willful and corrupt in its purpose, may constitute ground for impeachment.\[87\] In a proper case mandamus will lie to compel a judge to perform his duty.\[88\] When, therefore, for an unreasonable length of time he delays a decision, he may in a proper proceeding be compelled to decide,\[89\] but not in any particular way.\[90\] The presumption that public officers have performed their duties applies to the duty of a county judge to pay into the county treasury the surplus fees of his office,\[91\] but in a suit to recover the surplus uncollected fees of his office,\[91\] but in a suit to recover the surplus uncollected fees of his office,\[92\] but in a suit to recover the surplus uncollected fees of his office,\[93\],\[94\] but in a suit to recover the surplus uncollected fees of his office,\[95\],\[96\],\[97\],\[98\],\[99\],12 Cur. Law. JUDGES SS 3. The appointment of a clerk by a county judge to have charge of the collection and disbursements does not relieve the judge, who fails to see to it that the clerk properly qualify, from liability to account for surplus fees earned in the proceedings of his court." The complaint in an action against a judge to recover surplus fees not turned in must allege the proportion of the amount actually collected and unpaid and the amount uncollected." Liability for uncollected fees is sometimes predicated upon negligence or willfulness in failure to collect." Sureties on the official bond of a judge are not liable for money which does not come to the possession of their principal by virtue of his office." Where an action is tried by one judge, a statement of the case cannot be settled by another, although the term of office of the trial judge may have expired, in the absence of statute authorizing same," and a judge who did not hear the evidence cannot render a judgment in a cause, notwithstanding the testimony may have been written down and preserved." A judge cannot purchase at a sale, the validity of which he must pass on in his official capacity." A magistrate wrongfully assuming jurisdiction of a cause may thereby render himself liable for false imprisonment." Where there are two judges with the same powers and the same territorial jurisdiction," serious complications sometimes arise as to their relative powers and duties." \_Powers during vacation or at chambers.\_See 10 C. L. 444-- Powers conferred upon the court as distinguished from the judge thereof cannot be exercised at chambers," and the validity of any act in vacation or at chambers is usually determined with reference to whether the power to do such act lies with the judge or with the court as such." In South Carolina a motion for discontinuance may be heard and granted at chambers," and a circuit judge may at such time grant an order striking irrele vant matter from a pleading." In North Carolina an application for mandamus may be filed and heard at chambers."

\_Powers after terms of office.\_See 10 C. L. 465--Power to settle bills of exceptions incases tried during a judge's term of office is sometimes expressly saved to him after the expiration of such term," and where a case is tried before the judge of another district holding court for the regular judge, it is his duty to settle the bill of exceptions when presented to him at any time within the time fixed or extended by the regular judge, although his term of office may have expired,10 but if he refuses the bill may be settled by the supreme court in such manner as that court may deem proper.11

\_Immunities and exemptions.\_See 10 C. L. 465--A suit cannot be maintained against the judge of a superior court for willful and intentional omission to decide a case after its trial and submission for decision,12 nor can a judge who, because of malice or corruption, renders an erroneous decision, or fails to render a decision within a reasonable time, be required to answer to a private individual in an action for damages.18

\_Disability to hold office, practice law or engage in business.\_See 10 C. L. 465--In New York a judge of the court of special sessions cannot hold any other public office or "carry on any other business."14

Footnote 14: The author is grateful to the anonymous referee for the support of the author.

SS 4. \_Disqualification in particular cases.\_See 10 C. L. 465--Disqualification statutes should be liberally construed with a view to effect their object and promote justice.15 That a municipal court has previously tried a case which upon petition for certiorari is returned for another trial does not disqualify members of that court from again trying the case,10 but in New Jersey, on writ of error, no justice who has given a judicial opinion in favor of or against any error complained of can sit as a member or have a voice on the hearing, or for its affirmance or reversal.17 If the regular judge is disqualified to preside in the trial of a cause, he is likewise disqualified to sign the judgment or orders made therein by the special judge,10 and where he is disqualified to try a criminal case, he is also disqualified to forfeit a bond in such case or to grant a rule nisi on the forfeiture,18 but in California he may request another judge to try

considered. Shelton v. Southern R. Carolina

Division \[S. C.\] 61 SE 220.

7. Authority conferred by circuit court rule 20, authority to hear motion necessarily implying power to decide. Guignard v. Evans

\[S. C.\] 61 SE 1003.

8. Mandamus to compel county treasurer

and road commissioners to deliver fund re-ceived from taxes levied for road purposes. Coleman V. Coleman \[N. C.\] 62 SE 415.

9. Rev. Code of Clv. Proc. subd. 3, # 803, 299. Northwestern Porturon Co. v. Zickick

1. J. 115 NW 525. Id. 117 NW 685.

1. Rev. Code Civ. Proc. 3 299. Northwestern Porturon Co. v. Zickickick

\[S. D.\] 117 NW 685.

11. Rev. Code Civ. Proc. 3 299. Northwestern Porturon Co. v. Zickickick

\[S. D.\] 117 NW 685.

12. Rev. Code Civ. Proc. 3 298. Northwestern Porturon Co. v. Zickickick

\[S. D.\] 117 NW 685.

13.2, 13. Wyatt v. Arnot \[Cal. App.\] 94 P 86.

14. Under Greater New York charter, p. 695, c. 466, $ 1416, to "carry on a business" implies such relation to business as identities a person with t and imposes upon him some duty or responsibility in connection with its management, and acting as Vice-president of a corporation, where the Justice has no specific duties and is not actively engaged in conduct of business, in not responsible to corporations or stockholders for conduct and management of business, etc., is not a violation of such provision. In re Deuel, 111 NYS 96.

01. Rev. Codes, # 6315, construed so as to effect its object and promote justice, as required by Rev. Codes, # 4, 6214, 8061. Geh-

01. Proceeding one de novo, and hence not within Civ. Code of 1895, $ 4045. Sutton v. Washington \[Ga. App.\] 60 SE 817.

01. Justice of supreme court who acted for that court in granting an order for consolidation of local actions, result of which was to work a change of venue, and who allowed a bill of exceptions upon the making of consolidated order, held to have given a judicial opinion in cause in favor of alleged error, under Const. art. 6, $ 2, par. 6, so as to disqualify slitting as member of court of errors and appeals upon review of resulting judgment, where consolidation order is assigned for error. Defiance Frult Co. v. Fox

\[N. J. Err. & App.\] 70 A 460.

18. Ewell v. Jackson, $ 83 Ky. L. R. 673, 110.

SW 860.

19. Judgment absolute based on such pro-ecellins held illegal and should have been set aside upon direct attack. Marks v. Smith

\[Ga. App.\] 60 SE 1016.

## 12 Cur. Law. Judges $ 4.

the case.\[20\] The acts of a judge who is subject to any constitutional disqualification are void,\[21\] and so also where a disqualification of a judge affirmatively appears upon the record, and there is no waiver of such disqualification as required by statute.\[22\] Where a judge inadvertently sits in a case where he is disqualified, the order or decree made is void,\[23\] and a nunc pro tune order by a qualified judge entered after proceeding attacking the void order has been begun, reaffirming such order does not validate it.\[24\] It has been held that where no objection is raised, acts done by a disqualified judge before a special judge is appointed are valid.\[25\]_Interest and kinship.\[See 10 C. L. 406--A judge cannot sit in any case where he is interested,\[26\] and sound public policy requires that the collection of his costs should_

_20. Notwithstanding the disqualification of_

_is judge on a criminal trial, he may, under_

_interest in the fees and costs incidental to the California constitution, request another_

\_judge to preside, since a request to so pre-

\_judge is not limited to a request by the sev-

_judge_ to \_judgenot be made to depend upon the judgment rendered," but pecuniary interest in the costs, the amount of which is fixed by law, is not synonymous with pecuniary interest in a case." Assistant judges are not disqualified from sitting at the trial of an information for an escape by the fact that they are members of the prison board, where membership gives them no interest," nor are they disqualified by the fact that, as members of the prison board, they formed and expressed opinions as to the merits, where they took no part in the punishment inflicted by the board." Relationship to a party is a disqualification in most states," and the word "party" should not be construed in a technical and restricted sense but should be held to mean any one who is pecuniary interested directly in the result of the suit, though not a party to the record and not necessarily bound by the judgment." Relationship to the attorney for either party may work a disqualification." The fact that a judge had been formally joined as a defendant in a former action does not disqualify him from hearing an application for a temporary injunction in a subsequent action involving the same issues."

\_Disqualification by reason of professional connection as counsel._Soe 10 C. L. 460_

A judge is not disqualified by professional connection as a lawyer with interests which may possibly become involved in the case," or by the fact that at some former time he has been counsel for one of the parties," but former connection as counsel in the same case disqualifies," unless the disqualification is waived by the parties."

Hanscomb v. Russell, 77 Mass. 373), but he is disqualified to determine the validity of a tax which he must pay if valid (Nalic V., Clity of Austin \[Tex. Cliv. App.\] 21 SW7 375; disqualified to appoint receiver for a corpora-Wetzel v. State, 5 Tex. Cliv. App.\] 17, 33 SW $25),--\[Ed.\]

a34 as administatrix of her husband's 60 SE 464.

a35 Under Cole Civ. Proc. $ 170, subabs. 2, 4, Barnesville not disqualified from sitting as judge upon a scirc facias to forfeit a criminal recognizable, although as ex offico clerk he is pecuniarily interested in costs in case and 1n collection of other costs due him, even though collectibility of latter costs may to some extent be dependent upon a judgment forfeiting the recognizance. Weilmaker v. Terrell, $ Ga. App. 791, 60 SE 464.

a36 No interest within meaning of Pub. St. 1906, 1 124. State v. Wright \[Vt.\] 69 A 761.

a37 No. State v. Wright \[Vt.\] 69 A. 761.

a38 No. 10 judge can sit as such in any case in which he would be excluded from being a juror by reason of consanguilty or affinity to either of the parties. Davis Colivery Co. \[Mich.\] 15 Det. Leg. 187.

a3974, 118 NY 929. Under Code Civ. Proc. $ 14, providing that a judge "shall not sit in a case in which he is related by affinity to any party to the controversy within the sixth degree, a judge is not disqualified because he and the plaintiff's attorney are brothers-in-law, having married sisters. Zambetti v. Garton, 113 NYS 804.

a398 Under Const. 1874, art. 7, $ 20, and statute fixing fourth degree as line of prohibition, judge related within fourth degree to one not a party of record and not necessarily bound by judgment, but who is an attorney whose fees depend upon determination of cause, held disqualified. Johnson v. State \[Ark.\] 112 SW7 143. Relationship to a stockholder of corporate party is equally disqualifying as relationship to a natural party.

12 Cur. Law. JUDGES $ 4. 407 The fact that a judicial officer takes the affidavit of a party making a complaint does not constitute him a counsel so as to work a disqualification.30 A judge is not necessarily disqualified by professional relationship with counsel in the case.40 \_Bias and prejudice.\_See 10 C. L. 466--A judge should be absolutely free from bias of any kind,41 and no judge should preside over a trial where the evidence requires him to make an elaborate explanation of his relations to the subject-matter of the litiga.42 At common law, bias or favor, not the result of relationship or interest,43 will not be presumed.44 Only judicial favoritism disqualifies; favoritism of a mere personal or social character to a party or his attorney is insufficient.44 Hostility to a party on the part of one of two attorneys for a railway company does not disqualify the other to sit as judge.44 Objection for disqualification on account of bias is waived if not properly presented.47 \_Procedure and trial of fact of disqualification.\_See 10 C. L. 466--The party who seeks to disqualify a judge has the burden of presenting facts showing disqualification by the best evidence obtainable.44 In some states, save where purely frivolous reasons are assigned, a judge is incompetent to sit in judgment upon a motion for his own re-cusation,44 while in others the judge himself trys the question of his disqualification;45 and where uncontroverted affidavits of disqualification are filed, he must accept them as true,51 and grant a motion to call in another judge where bias or other disqualification is shown.52 Where disqualification is shown, judge has no discretion but must transfer proceedings commenced or pending to the nearest and most accessible court where a like objection does not exist,53 and deny it where in his judg-quiescence to sitting held equivalent to aff- \[parts and in favor of another no ground firmative consent. Id. Under Mills' Ann. Code, $ 429, providing that judge shall not \] election to such appointment. Id. The fact sit in case is which he has been attorney \[that in a former case, where property now unless by consent of all parties, judge who had acted as attorney for one party held \] citing that a partnership existed expresses not disqualified where all parties participants mentioned attorney on other side for presentation. Id. _30_, Judge not disqualified for trying case existence of partnership so as to work a disqualification. Id. _45_. Boreing v. Wilson, $ 3Ky. L. R. 14, 108 158, 109 SW 1092. _46_. Not disqualified because attorney in case is his superior in common employment \[Elec. Co. v. Rooney, 188 Ill. App. 275. _48_. Motions signed by counsel not sup-Boreing v. Wilson, $ 3Ky. L. R. 14, 108 SW 914. _41_. Wellmaker v. Terrell, $ 6a. App. 791, 60 SE 464. Biaa and prejudice works a disqualification. State v. Banta \[La.\] 47 S 538. _42_. Political blas, amounting to personal hospitality as shown by evidence, requiring elaborate explanation, etc., held to disqualify judge under Ky. St. 1905, 7 688. Kentucky Journal Pub. Co. v. Gaines, $ 3Ky. L. R. 402, 110 SWY 268. _43_. Interest need not necessarily be pecu-n injury but may be a personal one to judge. Fulton v. Lonshore \[La.\] 46 S 898. _44_. Fulton v. Lonshore \[La.\] 46 S 898. _45_. Evidence insunfucent to show pecuancy or personal interest sufficient to disqualify judge to try election contest. Id. _46_. Boreing v. Wilson, $ 3Ky. L. R. 14, 108 SW 914. Neither acceptance nor refusal of an invitation to dime will be considered as an evidence of such bias or friendship as to indicate lack of judicial Integrity. Id. Fact \[Co. \[CaL. App.\] 93 P 685. _53_. Parrish v. River-sioner, to hear proof and settle partnership\] accounts, a person prejudiced against one of 70, where defendants died affidavits that ment the disqualifying cause is not shown.\[54\] The objections must be made promptly.\[55\] Affidavits of disqualification may be filed by any party to an action.\[56\] In some states the mere filing of an affidavit of disqualification terminates a judge's jurisdiction.\[57\] An affidavit of disqualification must set forth the facts upon which the general allegation is made,\[58\] but an affidavit alleging facts which, if true, show that the trial judge will not or cannot afford the litigant an impartial trial is sufficient.\[59\] In Oklahoma only one change of judge can be had.\[60\] If a change of venue be granted by a judge, or if he disqualifies himself on some statutory ground, an entry in the record proper should show such fact.\[61\]

Judgment Notes, see latest topical index.

JUDGMENTS.

1. Definition, Nature, and Classification of the Statutory Extension Thereof, Judgments, 408, Judgments on Offer, Consent, Stipulation or Confes- and Other Particular Grounds, 409. The results, 409. The results, 409. The results, 410. The results, 410.

judge as a result of a proceeding instituted in or before such court or judge, affirming that, upon the matters submitted, a legal duty or liability does or does not exist.64 It is the pronouncement of the judge on the issue submitted to him.64 It is more than a mere order,65 or award.66 There can be but one judgment in an action.67 A judgment entered on an exemplification of the record does not become a judgment in the common interpretation of the word in the county to which it is transferred.66

_Judgments on offer, consent, stipulation or confession.69--A_ decree entered by agreement is not a judicial decree in its strict legal sense but a solemn contract entered by the court.66

_Defaults and office judgments.61_

_Final and interlocutory judgments.68e 10 C. L. 467--There can be but one final judgment in a case.67 The word "final" is used of a judgment in several senses, and_

ment, 11 C. L. 315; Alimony, 11 C. L. 96; Emil-\_

$B$ _B_ $a$ _H_ $a$ _Judgment, and the draft made_

_Judgments, without reference to the char-_

$C$ _C_ _CIV. Proc. $ 1003, defining_

_Judgment, 11 C. L. 663; Defaults, 11 C. L. 1063; Discontinuance, Dismissal and Non-_

_Judgment, and $ 577, defining a judgment_

_Judgments is treated generally, but see, also,_

$J$ \_H when used in any qualified sense that fact must be kept clearly in mind." A judgment which terminates and completely disposes of the action is final," but one which does not so dispose of the action is not final." A default judgment in an action for damages is interlocutory."

SS 2. _Requisites. A. In general._ See 10 C. L. 448--A judgment entered without jurisdiction is void," and hence the court must have jurisdiction of both the cause of action and the subject-matter thereof," and except where there is an appearance," legal service of process is also necessary."

Onless jurisdiction is conferred by ap-

Gann v. Dearborn Mfg. Co., 129 Mo. App. 425,

which sent accounts to a master, held not a 107 SWV 15.

final order ousting court of jurisdiction to entertain cross bill by receiver against cred-

pose of appeal and res judicata is treated re-

lot. Ledbetter v. Mendell, 124 App. Div. 854,

spectively in Appeal and Review, 11 C. L. 118,

108 NYES 602,

where creditors filed a bill

118, and Former Adjudication, 11 C. L. 1537.

against debtor and assignee for their bene-

74. Order setting aside judgment and dis-

fit, setting up that sale of property would

missing complaint held final. Newcomb v.

sarifice same and prayed for receiver to

Burbank, 159 F 568. Where action is based

on gift of money made by certain person and

and appointing receiver was not final Judge-

used by him in paying firm debts, decore of

ment. Id.

dismissal is none the less final as to plain-

76. One of two defendants in an action for

tiff, because containing unnecessary reser-

damages, who defaults, still remains a party

vation of question as between partners

for the purpose of assessing damages, the

whether one paid out money on behalf of

default judgment being interlocutory and

arm. Goldsmith v. Goldsmith \[Iowa\] 117

not final. Wilkins v. Brock \[Vt.\] 70 A 572.

NVV 1077. Order setting apart premises as

momestened for widow and children is final

78. Judgment rendered by a court which

order and can be set aside only by motion

for new trial within time limited or by motion

First Nat. Bank \[Ga. App.\] 61 SE 20; State

tion under Ball. Ann. Codes & St. # 495,

u. State Dispensary Commission, 79 S. C. 316,

thorizing court to vacate judgment for misp

60 SE 928. This principal applies to an order

take, inadvertence or excausable neglect, or

of injunction. State v. State Dispensary

$ 1618. In the McKeever's Ekate, 48 Wash.

Commission, 79 S. C. 316, 60 SB 928. Judg-

429, 83 F 916. Where on appeal taken on

ment is void where want of jurisdiction is

exception to commissioners' report decree of

apparent on Its face. Churchill v. More

lower court was reversed by the supreme

\[Cal. App.\] 96 F 108. Judgment held void for

court, proper decree entered and case re-

manded, decision of supreme court is final.

turn in attachment showed that it was

Mathews & Co. v. Progress Distilling Co.

not served in accordance with statute, where

\[Va.\] 62 SE 924. Decree held final and judge-

ment properly entered thereon for amount

resulting from corrections ordered by de-

cre to be made in referee's report upon

which judgment was given. Brown v. Rogers

\[S. C.\] 61 SE 440. When demurrer to

fendant and failed to comply with provisions

petition is sustained upon general ground

of institute facts pleaded, and pleader

rematurely. Cayston v. St. Stanislaus Par

stands thereon and judgment is rendered

ish, 131 III, App. 161. Judgment of adoption

against him, such judgment is final upon

facto lead not void for want of jurisdiction

facts pleaded, and such facts cannot thereafter

where court had jurisdiction of both parties

and subject-matter necessary to render judg-

any court. Holoferman v. Hood \[Kan.\] 96

ment. Jones v. Leeds, 41. Ind. App. 164, 83

P 71. Where condition in decree available

only to appellants, their waiver by appealing of right to avail themselves of such

condition had effect of making decree final

and absolute and hence appealsable, without

waiting until time for availing themselves of

condition had expired and judgment because final by its terms. Moore Printing

Typewriter Co. v. Nat. Sav. & Trust Co., 31

App. D. C. 452. Where motion for new trial

is entered on day judgment is rendered,

judgment is met final until motion is determined.

mined. Vogelsang v. Fredkyn, 133 III. App.

856.

001. Judgment of partition and order of

sale is interlocutory, order of distribution

being final. Collier V. Catherine Lead Co.,

208 Mo. 246, 106 SWV 971. Order directing

receiver to disburse among creditors all

funds in his hands but not purporting to

be a final order winding up the estate, 12 Cur. Law. JUDGMENTS SS 2A. 411

pearance, personal service within the court's jurisdiction is essential to a judgment in personam, \[41\] but a judgment in rem may be entered on constructive service. \[52\] One who submits himself to the jurisdiction of the court cannot raise objection as to the manner in which the court has acquired its jurisdiction. \[58\] A judgment is not rendered void by mere irregularities \[44\] or errors \[85\] therein. A judgment must be sup-

ment rendered without proper service of Gossert v. Strong \[Mont.\] 98 P 497. Under process is void. Stubbs v. McGillis \[Colo.\] 56 P 1005; Lindberg v. Thomas, 137 Iowa, 48, cannot be rendered against one constructive-114 NV 562; Minnesota Threater Mfg. Co. v. ly served. Pendleton V. Pendleton \[Ky.\] 112 L/Heureux \[Neb.\] 118 NV 565; Nicoll v. Mid-land Sau v. Loan Co. \[Okl.\] 96 P 174; St. Petersburg \[Tac.\] 97 P 174; St. Louis, etc., R. Co. v. English \[Tac.\] 118 S 182, 575. Moss v. Flitch, 212 Mo. 109 SW 424. Judgment in personam ren-dered against a defendant without notice to

personal judgment on service outside the him or appearance by him is without juris-diction and is entirely void. Weaver v. Webb, 3 Ga. App. 726, 60 SE 267. No juris-diction is acquired until return of process or proof of publication. Deputy v. Dollaride \[Ind.\] 86 NE 344. Where record or judgment does not show service of summons or that parties were before the court, the judgment is void. Cox. V Fowler, 33

\[La.\] 47 S 171. Attachment proceedings are the judgment is void. Cox v. Fowler, 33

\[Lb.\] 98 P 497. Under process, appearance or constructive notice,

\[La.\] 45 S 866. Court of equity

\[Lb.\] 98 P 497. Under process, appearance or constructive notice,

\[Lb.\] 98 P 497. Under process, appearance, appearance, and

\[Lb.\] 98 P 497. Under process, appearance, and

\[Lb.\] 98 P 497.

ported by pleadings," proof," valid findings " and verdict." It is sometimes provided by statute that a judgment in favor of the plaintiff in a joint action against several defendants must be against all the defendants, though some have not been

judgment held not sufficient to defeat judg- authorizing judgment by default on an accent. Stevens v. Doohen \[VWash.\] # P 1032. consent, a default in an action on account, rem- of which the court has jurisdiction does not need defined without stating that the statute had render the judgment void. In re Clark, 135 been compiled with, is erroneous, though VIs, 437, 115 NPV 387. In quo warrantup complaint states that account is verified. where the subject-matter was within the Greer & Walker v. Lipfert-Scales Co. \[Ala.\] power of the court, but it was prohibited 47 S 307. Answer cannot be regarded as a from exercising jurisdiction for the pur- nullity and judgment entered as on default pose of restraining proceedings of a court of because answer was verified before defend- co-ordinate jurisdiction, the judgment was ant's attorney. Zickermann v. Wohlstadter, not wholly void, but was binding until set 113 NYS 408. Service of amended petition is aside. Id. See, also, Harrigan v. Oli Christli essential to sustain judgment thereon by default. Palmer v. Spandenberg \[Tex. Civ. 121 NVs. 127, 98 NPV 909. \] #5. Binding force of decreers is not affected by fact that court erred. McFall v. Kirkpat- Piciadings held sufficient to sustain judg- rick, 236 Ill. 281, 86 NPs 139. Error in decreing slimony to wife in divorce (Kirby- West Texas Bank & Trust Co. \[Tex. Civ. \[Dlg. & 2681\]) does not render the degree void. Dryv r. Pryor \[Ark.\] 11 SWV 700. In suit to foreclose mortgage against nonrefentions clusion, was also an allegation of fact su- consistently served, the fact that personal judgment was improperly rendered did not Affect court's power to order safe or render judgment as to such relief void. Highland Land & Bldg. Co. v. Audas, 38 Ky. L. R. 214, 110 SWV 255. Though in action of electment, where answer does not set up affirmative defense or counterclaim and defendant does not prove title and plaintiff does not appear, the proper judgment is one of nonsuit, yet broader one is merely erroneous and not void, the court having jurisdiction. Com- stock v. Boyle, 134 Wis. 613, 114 NPV 110. 86. Must be based on pleadings stating case to support it. Hart v. Hunter \[Tex. Civ. App.\] 114 SWV 882. A judgment cannot be rendered against person as to whom the pleadings fail to state a cause of action. Eckels v. Henning, 139 Ill. App. 660. Sufficiency of pleadings is not test of jurisdiction, and though defective they will sustain judgment if court has authority to grant relief demanded and facts are set forth intelligibly. In re Nelson's Estate \[Neb.\] 115 NPV 1087. Whether judgment is supported by the pleadings depend on a reasonable construction of the pleadings as a whole. Chesney v. Chesney, 33 Utah, 503, 91 P 89. A judgment in an action for the value of specific personal property cannot be sustained on pleadings which raise no issue concerning its value or . Pawel v. Welch \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[C. \[. \[C. \[. \[C. \[. \[\[C. \[. \[\[. \[\[. \[\[. \[\[. \[\[.\[\[.\[\[.\[\[.\[\[.\[\[.\[\[.\[\[. \[\[.\[\[.\[\[.\[\[\[.\[\[.\[\[\[.\[\[\[.\[\[\[. \[\[\[\[.\[\[\[\[.\[\[\[\[\[.\[\[\[\[\[\[.\[\[\[\[\[ * 12 Cur. Law. JUDGMENTS SS 8B.

- 13 served; " or if the court has jurisdiction of all the defendants, judgment may be rendered against those found liable; " or when there is a misjoinder of parties plaintiff, judgment may be rendered in favor of the parties entitled thereto."2 Error in entering judgment against a defendant not served does not necessarily affect the validity of the judgment as to a defendant served."3 A judgment against one defendant is not necessarily precluded by a directed verdict in favor of a codefendant " or by a discontinuance as to a codefendant."3 Notice for judgment is sometimes essential."4 The court may in its discretion grant a second rule for judgment, where a party abuses his rights under an order discharging a first rule."7 Where a judgment is rendered in vaoation, statutory requirements must be observed."8 Physical appearance of parties is unnecessary to the validity of a judgment rendered by agreement."9 (SS 2) \_B. Conformity to process, pleading, proof and verdict or findings.\_See 10 C. L. 489.-A judgment must conform to the pleadings,1 and the issues thereby made,2
- 14. Under Code Civ. Proc. SS 1932 where action 1s against several jointly, but only one or more are served, judgment must be judgment could not be had against the hustaken against all. Abromovitiv v. Markowitz, band. Monahan v. Schwartz, SS 2EY. L. R: SS 231, 10S NYS 1044. Under St. 1898, 1285, 10S SW 285.
- 15 2884, providing for judgment in form against all defendants jointly liable, though some have not been served, where only one partner was served in an action on a firm 1s not defective because facts are redited under a "whereas" instead of by posti-the one served and against the firm. Ges-ner v. Roeming, 135 VWs. 585, 116 NWV 171.
- 16. Under Code 1904, SS 3E395, providing that men for want of a sufficient affavit of defendant against two or more plaintiff and thereafter the defendant for purpose of whom he would have been entitled to recover if used alone, one cannot complain that as to his codefendant verdict is set aside as contriary to evidence. McInfrey v. Smith, 108 434, 70 A 882.
- 17. Under Code Civ. Proc. 1895, 8E 1002, provides that in an action against several defendants the court may in its discretion render judgment against one or more of them leaving the action to proceed against the others, where the defendants are never-selfiable. State v. Ninth Judicial Dist. Ct., 37 Mont. 29, 86 P 287. Where two or more are used as partners and plaintiff fails to establish a joint liability, judgment may be had against any found liable. Laplinsky v. Col-ish, 113 NYS 733.
- 18. Under Code Civ. Proc. SS 578, where there is a misjoinder of parties plaintiff, judgment should not be for defendant, but the action should be dismissed as to the party improperly joined, and retained as to the others, and such judgment rendered as they are entitled to Gillespie v. Gonley, 152 Cal. 643, 98 P 556.
- 19. Where, in action against individual and town to compel removal of obstruction in street placed there by individual, the town was not served with process and judgment was erroneously entered against it, such fact did not require disturbing the judgment because exception thereof against the individual would abate the nuisance without affecting any property right of town. State v. Franklin \[Mo. App.\] 113 SWV 652.
- 20. In action against city and contract for injuries sustained because of defect in a temporary sidewalk, the city being primary liability, a directed verdict for the contract- or did not preclude judgment against the city. Jones v. Seattle \[Vash.\] 98 P 743.

sum cannot be recovered. Morris v. Smith

every cannot be had on facts not pleaded. \[Tex. Civ. App.1 118 SWV 130. Judgment im

Zennedy V. Pearson \[Tex. Civ. App.\] 109 SWV

partitions held unauthorized by the pleadings

280; Eerman V. Kling \[Conn.\] 71 A 567. That

and void. Davis v. Davis \[Tex. Civ. App.\] 112

Jemurver was not acted upon so as to be

SWV 948. Where pleadings consisted of an

demand waived, and evidence of such unreal-

ordinary petition in element, a general de-

sonable delay was not objected to, did not

nial, a plea of statute of limitations, and a

authorize the court to base judgment on facts

general reply, a judgment for defendant for

costs is consistent with the pleadings. Coleman v. Roberts \[Mo.\] 114 SWV 948. Dansages on grounds not

Legel cannot be allowed. Rich v. Western

to try title, plaintiff held not entitled to com-

Union Tel. Co. \[Tex.\] 108 SWV 1162. Judg-

plan that the judgment did not adjudicate

ment based on allegations appearing only in

boundaries of a certain three acres, as he

replication cannot be sustained. Manuel v.

was not entitled to such relief under the

Turner, 36 Mont. 512, 93 P 808. Judgment

pledings. De Roach v. Clarsky \[Tex. Civ. App.\]

113 SWV 22. Where allegations of complaint

sued on, as where endorser, bound by en-

are admitted and matter of defense set up,

judgment should be for plaintiff on pleadings

guarant. Clymer v. Terry \[Tex. Civ. App.\]

if allegations of exons compliant are insuff-

cient to sustain judgment for defendant

Pugh v. Stigler \[Cokl.\] 97 P 586. If a com-

of property described in both as a "home-

plant against several fails to state a cause

stead," but only one of which was signed

of action against all, a judgment against all

as a unit may be arrested on motion of any

forded no support to a decree extinguishing

defendant against whom a cause of action is

her rights under the mortrage signed only

not stated. Henning v. Sampel, 236 IL 375,

86 NE 274.

Levine of abolition of forms of action:

to correctly describe property sought to be

Since code abolishes forms of action, where

plaintiff proceeds on theory that his remedy

cree and compliant as to description of pro-

is by suit in equity, but complaint fails to

erf which was not correctly described by

state facts entilting him to equitable relief,

bout does state facts entilting him to quitable relief,

complaint. Senicker v. Berry \[Or.\] 98 P

but does state facts entilting him to money

judgment, he will be given relief to which

see of mining property. Chenoweth v.

be appears to be entitled. Donovan v. Mc-

Devitt, 36 Mont. 61, 92 P 49.

claim set up in pleadings was for land, it was

judgments held not in conformity with

pellangz: Judgment in action on quantum

money advanced to improve it. Allen V. Al-

merult which is contrary to adminsoms in

len \[Tex.\] 20 Tex. Ct. Rep. 479, 107 SWV 528.

defendant's answer that work was worth

adament at law in suit in equity is una-

certain amount Horn v. Martinko \[Cal. App.\] 94 P : P. Plaintiffs having failed to

equitable cause of action alleged in their com-

partitions. Craig v. Craigo \[S. D.\] 118 NWV

plain, and proper objections having been

172. Judgment on guaranty where suit was

made, and no amendment asked for, judgment

for services performed. Stone v. Stotis, 11

ment in their favor on cause of action not

NYS 1045. Queting defendant's title is not

alleged could not be sustained on appeal.

Epstein v. Cohen, 56 Misc. 579, 10: NYS 148.

Rocovery may not be had on a wholly differ-

ent cause of action than the one pleaded.

Hayes v. American Bridge Co., 111 XYS 833.

Amendment of petition on which judgment

was rendered by abandonment of cause of

action upon which such judgment was predicated, and then substitution for anch Judg-

ment of entirely different judgment upon pe

tion as amended, held improper. City of St. Louis v. G. H. Wright Contracting Co., 210

Mo. 491, 109 SWV 6. Judgment on mutual

benefit certificate on theory not alleged, as

when judgment was based on theory of total

disability but liability for such disability

was not alleged. Brochrorooked of R. Train-

men v. Dee \[Tex.\] 111 SWV 396. Where suit

to recover illegal tax was on theory that it

was paid under protest, which was success-

fully controverted, judgment could not be

rendered on any other theory. Naszville,

etc., R. Co. v. Marion County \[Tenn.\] 108 SWV * 12 Cur. Law. JUDGMENTS $ 2B. **the proof,* and the verdict or findings.* In some instances a finding manifestly er-

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  roneous may be disregarded as surplusage and judgment entered in accordance with the verdict as thus corrected.5 Generally surplusage in no manner affects the validity of the judgment proper.6 The judgment should also conform to the p:ayer,7 but this rule is modified and in some cases entirely abrogated by the codes of practice,8 and in equitable actions the prayer for general relief authorizes any relief consistent with the facts proved.9 A decree must pass on the entire prayer.10 Where the judgment grants all the relief to which the plaintiff is presently entitled, he cannot complain in that it does not anticipate relief to which he may in the future be entitled.12

Footnote 10: The author is grateful to the anonymous referee for his constructive comments.

was served and action was dismissed as to

Ackermann, 130 Mo. App. 387, 109 SVW 857,

others after verdict, judgment was properly

In action on notes given for purchase price-entered against one served. SIItz v. Spring-

of land, where one of makers was merely er. 236 III. 276, 85 NE 748. Finding as to suf-

joined but no personal judgment was asked

fleiency of issue of bonds held sufficient to

against him, plaintiff was not entitled to

sustain judgment based thereon. Zimmer-

personal judgement. Brackett's Adm'r v.

mann v. Timmermann \[N. Y.\] 86 NE 540. In

Boreing's Adm'r, 33 Ky. L. R. 292, 110 SVW 276.

snft to recover certain sum and Interest for

Where pleadings in emmett domain did not failure to deliver property sold, the verdict

ask adjolcation of rights under former con- of the jury is to be regarded as principal

demanation decree, held decree adjolcating

and interest and it was error for the court

such rights was unauthorized. Mundy v. to add Interest thereto. Houston v. Booth

Hart \[Tex. Civ. App.\] 111 SVW 236.

\[Tex. Civ. App.\] 20 Tex. Ct. Rep. 795, 107 SVW

Effect of stipulations: Alleged error in

857. Finding in judgment order that damnement for amount in excess of

ages awarded plaintiff were for so much

money due and earned as employe of defend-

stribution that under common counts and

ant held sufficient finding that recovery was

general issue each party to cause might

for wages, under Employment Act of 1889,

s 18. Goodridge v. Alton, 140 Ill. App. 373.

claims, causes of action and defenses ap-

in action by creditors of deceded on bonds

given by administrator on procuring orders

soil real estate, findings that administra-

said causes of action and defenses were

to sell real estate, findings that administra-

or failed to apply proceeds of such sales to

way, 138 II. App. 320.

payment of debts, or to pay the money into

s. Under the code system, relief may be

court in compliance with orders and that he

wararded according to facts pleaded, and one

withheld such proceeds, authorize judgment

on bonds. Eegoff v. Board of Children's

Guardians of Madison County \[Ind.\] 84 NE

151. Judgment in action against telegraph

where answer is filed any relief consistent

company for failure to deliver message held

with the complaint and issues may be

not to conform to findings. Hollier v. Western

grant, the extent of relief depends on the

ern Union Tel. Co. \[N. C.\] 63 SE 92.

Issues and not on the prayer. Murphy v.

Amendment to conform to verdict may be

silowed in matters of form, as where judgg-

sakes for relief which his allegations do not

ment provides for recovery of property

excluded by verdict. Central Brew. Co. v. Amendment

co. V. Amendment prev. Co. 135 III. App. 648.

g. Where the jury in an action to contest

a will return a verdict establishing its

Code Prac. 8 00. Heckling v. Gehring's Exr,

validity, but by manifest error insert date of

execution of will as date of its probate, and

record shows that but one paper writing

sympting to be last will of decedent was

exhibited to the jury, and that, were date of

probate as given by jury correct, right to

contest the will would have been barred, it

is not error for court to treat date given by

jury as mere surplusage and to enter judgg-

ment upon verdict correcting error and

establishing validity of will. Seal v. Goebel,

11 Ohio C. C. (N. S.) 433.

G. Bank of North Wilkesboro v. Wilkesboro Hotel Co., 147 N. C. 594, 61 SE 570.

7. Relief cannot exceed that demanded in

complaint. Code Civ. Proc. 8 1008. Manuel

v. Turner, 86 Mont. 512, 93 P 808. City having prayed that telephone company be

joined from doing business in city "or" from

charging higher rates than authorized, latter

relief was properly granted on default of

company. Cumberland Tel. & T. Co. v. Hick-

man. 38 Ky. L. R. 730, 111 SVW 311. Amount

of judgment is limited to the sun graved

for. Ray v. Southern R. Co., 77 S. C. 103, 87 * 12Cur. Law. JUDGMENTS SS 2B.

\_Judgment non obstante See 10 C. L. 472 may be entered when the proceedings warrant it.13 At common law the only occasion for such a judgment was where a verdict was given for the defendant upon an insufficient plea of confession and avoidance,14 and even under the modern relaxations of this rule a motion for such a judgment is essentially a motion for a judgment on the record,15 as where the pleadings do not sustain the verdict rendered.16 Accordingly, under this practice, the evidence cannot be reviewed on such a motion,17 but under a still more liberal practice obtaining in some states a judgment non obstante may be granted where it conclusively appears that the verdict is contrary to the evidence,18 and that it would have been proper for the court to have directed verdict at the close of the evidence,19 but even under the most liberal practice a motion for such a judgment will not be granted where the evidence is inconclusive 17 or where there is a substantial conflict in the evidence,18 nor will it be granted where the judgment would be contrary to the theory presented by the pleadings and on which the case was tried,20 or where any issues remain undegr termined,22 or on account of errors at the trial.23 The motion for the judgment must be timely,24 and all statutory conditions precedent thereto must have been performed.26

SS 3. _Arrest of judgment,See 10 C. L. 472._--The grounds for, the procedure on, and the effect of, a motion in arrest of judgment are treated elsewhere.26

SS 4. _Rendition, entry and docketing.See 10 C. L. 478._--Judgment should be rendered at a time prescribed by a valid law for the holding of court,27 and should be rendered within the time prescribed by statute.28 Where the statute fixing the time for rendition of judgment is mandatory, a judgment not entered within the time prescribed is invalid,20 unless the time is extended as authorized by law or rule of court,26 but, where the statute is directory only, failure to comply therewith is not fatal.31 The grant of a stay of execution is not a grant of a stay of judgment.32 In Alabama an award constitutes a judgment when the clerical act of filing it has been performed.33 In the absence of statutory requirement, a judgment or decree need not usually be signed,34 but in some states signature is required by statute.35

prisonment on evidence of malletious proseccu- \[In the absence of valid stipulation of the parties extending the time. Carpenter v. In action against a bankrupt to recover a prisoner, 107 NYS 875. Where court at conjunction that payment was made from money ed," the case is "submitted" within municipal belonging to a partnership and not to defend, where pleaflings and trial were on theory that it was made from bankrupt's money. Smedley v. Speckman \[C. C. A.\] 157 F 815.

22. Where question of damages 1s still open to jury. Hartje v. Keeler, 133 Ill. App. 461.

01. Errors in instructions and errors of law at trial. Pease v. Magill \[N. D.\] 115 NVP 260.

01. Must be made before judgment is entered. Wheeler v. Preston, 33 Ky. L. R. 791, 107 SVV 274. After verdict rendered has been affirmed by court, judgment non obstante cannot be entered, remedy being by motion to set aside verdict and for new trial. Smith v. Lincoln, 198 Mass. 388, 84 NK 458. Motion by plaintiff for judgment on record, including testimony adduced, made after jury had been discharged after finding for defend, and after plaintiff had been granted new trial, was properly overruled. Hamil v. Schultz Brew. Co. \[Iwas\] 115 NVP 943.

**Clerical misprision in including judgment in entry of verdict will not prevent court from granting motion for judgment non obstante failed prior to pronouncement of judgment. Tait v. Locke, 130 Mo. App. 273, 103 SWV 105.**

25. Not proper where no motion for direct- ed verdict was made at close of plaintiff's case. Laws 1901, 74, 63. Landing Mach. Co. v. Konnants Saddlery Co. \[N. D.\] 118 NVP 233. Act Apr. 23, 1905. P. L. 286. Philadelphia v. Billyeu, 36 Pa. Super. Ct. 562.

01. See New Trial and Arrest of Judgment, 10 C. L. 899.

01. If not, it is vold for want of jurisdiction. Louisville & N. R. Co. v. Grant \[Ala.\] 45 S 226. Judgment of circuit court, rendered at adjourned term pursuant to void order entered at time fixed by void law for holding court, is void. Rigsby v. State \[Ala.\] 45 S 227.

01. Under Laws 1902, p. 1557, e. 580, $ 230, the municipal court must render judgment within 14 days from submission of the cause, 12 Cur. Law. JUDGMENTS SS 4. 419

Form and contentsSee 10 C. L. 473--A judgment should be definite and certain "8 and should recite the proceeding upon which it is based,"7 and, where it relates to land, should so describe it that its boundaries may be ascertained,"8 but a description is not insufficient if the land can be ascertained from the judgment roll."8 Where the rights of several plaintiffs are several, the judgment should be several,"9 and if the liability of several defendants is joint, the judgment against them is properly made joint,"1 but it is error to enter a joint judgment against several defendants who cannot be held jointly liable."2 Clerical errors may be disregarded "8 as may, also, many irregularities of form,"4 and amendments may be allowed in certain matters of form."4 The reasons for judgment may be recited therein,"4 but a mere opinion is not a judgment."4 A judgment may be molded to meet existing conditions."4

Entry, docketing and recordingSee 10 C. L. 474--A judgment or decree is in-choate until approved by the court and filed for record or recorded." The entry of

80. Judgment ordering an owner, through \[of California v. Mercantile Refining Co. whose land a drainage ditch ran for the ben- \[Cal. App.\] 97 P 919.

eft of others, to remove obstructions he had \[42. Entry of joint judgment against rall-placed or caused to be placed in the ditch at road company and receivers thereof for dam-any time subsequent to a designated date, etc., \[of injury caused by operation of road held sufficiently definite. Brown v. Honeyfield\] by receivers. Eckels v. Henning, 139 III. App. \[Iowa\] 116 NVV 131. Judgment on world that 600.

gilantir recover $10,000 and costs from A.

420 JUDGMENTS SS 4. **12** Cur. Law. judgment is a merely ministerial act,\[50\] which is usually performed by the clerk of court\[81\] after the judgment or decree has been approved by the judge in the manner required by law,\[82\] but must be performed prior to adjournment of the term.\[53\] It must be performed under proper authority,\[54\] in the manner prescribed by statue,\[55\] and must not be prematurely made,\[56\] but under some statutes certain judgments may be entered before they are enforcible.\[57\] In some states it is required that the judgment be submitted to the adverse party before entry.\[58\] A party favored by a stay of judgment must see that proper entry is made.\[59\] An unauthorized entry is not a judgment.\[60\] Clerical mistakes in making entry may be corrected on motion,\[61\] but of that term and not of the January term.\[is void, Jackson v. Becktold Printing & Horn v. Metsyer, 234 Ill. 40, 84 NE 893. Un-bi\] then it is not final and is subject to 54. A county clerk has no authority to enchange or modification. Horn v. Horn, 234 \[ter a judgment of dismissal on an order of Ill. 268, 84 NE 904. Under Rev. Laws Hawaii\] dismissal made by the appellate division. Van Norstrand v. Van Norstrand, 110 NTS-condamation does not vent until judgment 65. **55** Under Civil Code Prae. $ 390, providing with the registrar of conveyances. United States v. Merriam \[C. C. A.\] 161 F 305. Registration of both deed and judgment is es-rential. Id. Formal order denying motion must be entered in the order book and for postponement should be entered so de-fendant may appeal. Rubenstein v. Schumkov, 110 (BSV 860. Municipal court act contemem-113 NYS 534. No judgement of court or ap-pales can be received in evidence until it) has been entered on records of court, nor making provisions for costs in such cases. Ent to be executed until it has been so entered and has also been recorded in records of inferior court, as provided by Code Prae. **617**: 620-620, 623, 910, 915, Rev. St. # 575; Const. art. 104. Thomas v. Goodwin, 120 La. 504, 45 S 408. **66** Where court has made findings and pronounced judgment, clerk may enter it or Id. that date, though form of order is not prepared until long afterwards, and judge may have done judgment back to such date. Austin v. Judgment may be entered for owners for Austin, 42 Colo. 120, 94 P 309. It is clerk's d d d duty to enter only such judgment as court rendered. City and County of San Francis-estabilization of the way, though latter part co v. Brown, 183 Calo, 64 P 281. **51** Judgment not rendered void by fall-ment was made. Fitzmaurice v. Turney type of clerk to enter same. Comstock v. \[MO.\] 114 SW 504. **98** Rule requiring counsel for party in Day. **134**: 918-913, 832. Bank of North Wilkes-born v. Wilkesborg Hotel Co., 147 N. C. 594, 61 SE 870. Competent for legislature to con-try does not apply in case of default. In-fer such jurisdiction on clerk. Id. Minutes of court of record, whether of original or applicable jurisdiction, should be approved by the judge, but entering of proceedings in minute book is duty of clerk who should attest his work with his signature, but if the court's directions. Gersclerk fails to so attest he is not thereby disqualified from certifying to correctness of copies therefrom. Thomas v. Goodwin, 120 La. 504, 45 S 406. **52** Approval of decree by chancellor is aub-thority to clerk to enter it of record. Horn v. Horn, 234 Ill. 268, 84 NE 904. **53** Signature by judge as a condition precedent to entry. See ante, this section, first subdivision. **54**: 83\*\* Clerk has no power to make a judge. **55** A county clerk has no authority to enchange or modification. Horn v. Horn, 234 (BSV 860. **7**4\*\*: 120 La. 504, 45 S 406. **87**: 120 La. 504, 45 S 406. **52** Approval of decree by chancellor is aub-thority to clerk to enter it of record. Horn v. Horn, 234 Ill. 268, 84 NE 904. **55** A party favored by a stay of signature by judge as a condition precedent to entry. See ante, this section, first subdivision. **56**: 88\*\* Clerk has no power to make a judge. **57** A county clerk has no authority to enchange or modification. Horn v. Horn, 234 (BSV 860. **7**4\*\*: 120 La. 504, 45 S 406. **87**: 120 La. 504, 45 S 406. **88**: 120 La. 504, 45 S 406.

- 12 Cur. Law. JUDGMENTS SS 5A. until corrected the judgment stands as entered." Every presumption is indulged in favor of the regularity of the recordation of a judgment." Judgment cannot be entered against a party who dies pending trial," but where an appellant dies after submission of the cause, an affirmance may be entered as of the date of submission." Entry or docketing as affecting the lion of the judgment is treated in a subsequent section."
- \_Nunc pro tunc entries._See 10 C. L. 478_--Judgment nunc pro tunc may be entered in two classes of cases : Where the suitors had done all in their power to place the cause in condition to be decided, but owing to delay of the court judgment had not been rendered until death of a party or some other such occurrence;" or where judgment, though pronounced by the court, has through accident or mistake of officers of the court never been entered." Such entry, however, will not be allowed to the prejudice of a third party who has become owner of property affected by the order." Judgments may also be amended nunc pro tunc," but the authority thus to amend a judgment is solely to make it speak the truth, and can never be used to make the record speak what it should have spoken but what it did not in fact speak." An amendment nunc pro tunc must be based on matter of record," and notice of such amendment must be given the adverse party unless it is obvious that he cannot be prejudiced by the amendment." Where the rendering of judgment is a ministerial act, it may be made nunc pro tune at a subsequent term."
- \_5. Occasion and propriety of amending, opening, vacating or restraining enforcement. A. Before finality._See 10 C. L. 478_--During the term or until judgment has become a finality," the court has inherent and plenary power," in the exercise of its
- 62. If decree entered is different from that pronounced, those making such contention should make entry speak truth, and until correct it is binding and prevails over d-cree actually rendered. Bates v. Hall \[Colo.\] 98 P 3. Under Code Civ. Proc. **1286**, 1246, relative to Hilmg and recording of Judgments, where a judgment is recorded, it is presumed that the judgment roll was actually fixed in the clerk's office and that it contained the judgment. Burke v. Kaltenbach, 109 NYS 226.
- 64. Where plaintiff in action to quiet title \<died pending the suit, the judgment was a nullity both for and against all who claim under him. Bivens v. Henderson \[Ind. App.\] 86 NE 426.
- 65. Judgment on appeal will be entered as of date of submission. United States Health & Acc. Ins. Co. v. Clark, 41 Ind. App. 345, 83 NE 760.
- 66. Absatement of appeal by death of party. See Appeal and Review. 11 C. L. 118.
- 67. See post, SS 8, Lien. er. Clark & Leonard Inv. Co. v. Rich \<Neb.) 115 NWV 1084. Judgment may be entered nunc pro tunc as of date of submission. slion of the cause on suggestion that the party against whom it was rendered has died in the meantime. Clark v. Van Cleef \[N. J. Eq. \] 71 A 260.
- 68. Clark & Leonard Inv. Co. v. Rich \[TWeb.\] 115 NWV 1084. When a judgment has been rendered and the clerk has neglected to enter it. Quartz Gold Nim. Co. v. Patternson \[Or.\] 96 P 561. Where judgment was in fact rendered and proof thereof is made, but where by omission of the clerk or other casuality no entry was made. Montgomery v. Viers \[Ky.\] 114 SWV 251.
- 69. If decree entered is different from that pronounced, those making such contention should make entry speak truth, and until correct it is binding and prevails over d-cree actually rendered. Bates v. Hall \[Colo.\] 98 P 3.
- 63. Under Code Civ. Proc. **1386**, 1246, relative to Hilmg and recording of Judgments, where a judgment is recorded, it is presumed that the judgment roll was actually fixed in the clerk's office and that it contained the judgment. Burke v. Kaltenbach, 109 NYS 226.
- 64. Where plaintiff in action to quiet title \<died pending the suit, the judgment was a nullity both for and against all who claim under him. Bivens v. Henderson \[Ind. App.\] 86 NE 426.
- 65. Judgment on appeal will be entered as of date of submission. United States Health & Acc. Ins. Co. v. Clark, 41 Ind. App. 345, 83 NE 760.
- 66. Absatement of appeal by death of party. See Appeal and Review. 11 C. L. 118.
- 68. See post, SS 8, Lien. er. Clark & Leonard Inv. Co. v. Rich \<Neb.) 115 NWV 1084. Judgment may be entered nunc pro tunc as of date of submission. slion of the cause on suggestion that the party against whom it was rendered has died in the meantime. Clark v. Van Cleef \[N. J. Eq. \] 71 A 260.
- 68. Clark & Leonard Inv. Co. v. Rich \[TWeb.\] 115 NWV 1084. When a judgment has been rendered and the clerk has neglected to enter it. Quartz Gold Nim. Co. v. Patternson \[Or.\] 96 P 561. Where judgment was in fact rendered and proof thereof is made, but where by omission of the clerk or other casuality no entry was made. Montgomery v. Viers \[Ky.\] 1 judicial direction,\[77\] to vacate, alter, revise or amend the judgment \[78\] for clerical, judicial or other errors.\[79\] Where a judgment is set aside at the same term, the court may not at a subsequent term render judgment without a new trial.\[80\] Delay in passing upon a timely motion to set aside a judgment will not preclude relief.\[81\] (SS 5) \_B. Right to relief after the judgment has become final, as by the expiration of the term of rendition or of the statutory extension thereof.

## 12 Cur. Law. Judgments $ 5B.

423

dice to third persons,\* a judgment cannot be altered, vacated or amended after it has become a finality,\* unless the parties consent thereto,\* or unless statutory authority is given therefor,\* or unless it is void * or was procured by fraud * of

Ga. $28, 60 SE 155. Such motion was timely

when made within one year. Id. Trial

v. Taylor, 157 F 718. Where judgment on court at all times possesses inherent power

mechanics's lien was entered in accordance to amend its judgments by nune prto nunc en-

with claim, complaint and proof, and was try so as to conform to proceedings, provided rights of third persons have not inter-

after term, modify it to exclude a part of

vened. Senkler V. Berry (Or.) 96 P 1070.

83. Clerical misprison may be corrected at

any time. Pelton V. Goldberg \[Conn.\] 70 A 808. Erroneous judgment on merits can only

1020: West Chicago Park Comm's P. Boal, 23

be corrected on appeal, and cannot be set

ll. 248, 83 NE 844: Hurv. Chess & Wy-

sade at subsequent term. Stewart v. Wood

mond C., 33 Key. L. R. 767, 111 SW 285.

\[Arx.\] 111 SW 988. A court has no power to

Court may correct record so as to speak\*

vscate or modify a consent degree except

truth as to date of entry of judgment. Pow-

for trand or mistake of both parties. Rog-

er v. Turner \[Mont.\] 97 P 850.

ers v. Shuder D. N. C.\] 61 SE 627. Setting aside

Held certificate: Where in electment court

judgment of dismissal entered under agree-

granted defendants' motion for nonsuit, act

ment held void. Rivers v. Campbell \[Tex.

of cierk in entering judgment that defend-

Civ. App.\] 111 SW 190.

ant owned premises is a clerical and not judid-

sider term: After final adjournment of the

Brown, 153 Calf: 644, 96 P 281. Error in

term at which a judgment was rendered, the

ting to give judgment for costs. Hilton v. Hill-

defendant died, and upon application of his

ton's Adm'r, 33 Key. L. R. 1082, 107 SW 736.

executrix the trial court entered an order

Question of damages on affirmance is to be

declaring the judgment to have abated and

determined from record, and where record

does not warrant judgment it is clerical

cr. Bank of Kentucky v. Com., 32 Ky. L

ment after the term at which it was render

R. 1087, 107 SW 812. Every court of record

ed, and hence had no authority to make the

has inherent power to make its record speak

truth, and where a bond was ordered and

given prior to sale of ward\* land, and

and

prop.

(C. C. A.) 164 P 324.

er finding of necessity for sale was made

The general rule undoubtedly is that af-

prior to the order for sale, that these

ter the expiration of the term at which a

ceedings did not appear on original record

judgment is rendered the trial court has no

but were subsequently added by amendment,

longer any control over such judgment

did not render the degree vold, since the de-

Black, Judgments (2ed Ed.) $ 306; Freeman,

fect was cured by the amendment. Appeel

of Dunn \[Conn.\] 70 A 703. Amendment to

in Bronsen V. Schulten, 104 U. S. 410, 2 Zew.

order vacating judgment by adding "new

Erd. 797, to be in force in the federal courts,

trial granted" may be made after term. Frost

v. Meyer \[VWs.\] 118 NW 811. Error in de-

Klever V. Seawall, 12 Ci. C. A. 658, 65 F 373;

creing a person an entire tract where evi-

dence showed him entitled to portion of it

oil may be corrected after reversal on ap-

principal case follows the general rule.--

peal by declining his part. Larson v.

Rogers \[Arx.\] 114 SW 915. Where decree

sides. Courts may, after term, redocket and

enjoining diversion of water from river so

retry a cause once tried and reduced to

that it would flow on certain land failed to

describe land, court after term and after ap-

subject-matter is within the province of the

peal, could correct error and having done so

could not vacate the corrected order. New

draw his consent after the new trial has

Liverpool Salt Co. v. Wellborn \[C. C. A.\] 160

been entered upon. First Nat. Bank of Mont-

F 923. To show time of trial. Carney v.

peller v. Mullen, 7 Ohio N. P. (N. S) 313.

Twitchell \[B.\] 115 NW 1030. After notice

to parties in interest, court may by order

to be filed at term at which judgment was

entered nune prto nunc, amend or correct its * 424 JUDGMENTS $ 5B. 13 Cur. Law.

an adverse prevailing party," or by accident, surprise or mistake." Neither error"22 nor irregularities will warrant relief."33 The granting of relief is within the sound discretion of the court,"4 especially in the case of default judgments."6

Gould \[Mo. App.\] 110 SWV 672. In absence of , and only so far as necessary to protect de-evidence of irregularly, an unauthorized , Id.

agreement of counsel to have judgment va-cated is insufficient under Rev. St. $ 5354,

Co. \[C. C. A.\] 163 F 212. Review of judgment authorizing vacation for irregularity. Inter-state Life Assur. Co. v. Rager, 18 Ohio St.

appeal instead of on petition to revise held 118, 84 NE 754. Rev. St. 1899, $ 777 providing for setting aside judgment where de-fondant has not been unmanned, does not

Ind. Granting affirmative relief to defendant,

indypy where he has been summmed or ap-paper. Curties v. Bell \[Mo. App.\] 111 SWV 131. Under Kirby's Dig. $ 2683, a court may modify intimony degree based on agreement

same as other decreers. Pryor V. Pryor \[Ark.\]

114 SWV 700. Rev. St. $ 5354, permitting opening of judgment by confession on note

taken by warrant of attorney for more than

v was due, means more than is due plaintiff

Co., 140 Ill. App. 471.

on instrument on which judgment was taken after considering defenses which

might be made in bar to claim used on,

and not that defendant had right to counter-claim because it was connected with the subject of action, the subject-matter of the claim not being a matter which may be

pleaded in defense of cause of action. Schubert v. State Banking & Trust Co., 6 Ohio N. P. (N. S.) 544. Under such statute, fact

that judgment includes interest from date of

note, whereas testimony showed payment of

pinding on court is not ground for as-certain amount of interest at time not was

given, is not cause for vacation, but merely

for its modification. Id.

88. Void judgment may be vacated and set

aside at any time. Nicoll v. Midland Sav. & Loan Co. \[Okl.\] 96 F 744. Where attorney

was not authorized to appear for defendant's

wife, but did so, and judgment was rendered

affecting her property, she could have it set

aside so far as she could show defense

against it as affecting her homestead and

separate property. Owens v. Cage \[Tex.\] 20

Text. Ct. Rep. 213, 106 SWV 880. Judgment on

indemainy board will be opened where plain-

iff rajied to prove that breach had been commited. Dawson v. Strouss, 129 Pa. 38, 68 A.

825. Judgment against several may be set

aside after term for want of jurisdiction of

one defendant. Thompson v. Patek, 235 Ill.

341, 85 NE 603. Order appointing guardian,

void for failure to notify mother, held prop-

crily available by petition after expiration

of term. Wortham v. John \[Okl.\] 98 P 347. Orders requiring guardian appointed with-

out jurisdiction to make final report, etc.

void for lack of jurisdiction, set aside. Id. It is not error to set aside at a subsequent

term judgment without jurisdiction because

in excess of amount claimed. American

Audit Co. v. Miller, 11 Ohlo C. C. (N. S.) 368.

89. See post, $ 5C. Girard Fire & Marine

Ins. Co. v. Bankard, 107 Md. 58, 69 A 415.

0. Of judgment plaintiff's attorney. Lithuanian Brotherhelp Soc. v. Tunila, 80 Conn.

642, 70 A 25.

1. See post, $ 5C. Girard Fire & Marine

Ins. Co. v. Bankard, 107 Md. 538, 65 A 415. Where a party by mistake or other excus-

able cause fails to appear in the surrogate's court, that court has power to open a decree

centered against him. In re Doig, 110 NYS

93. Such decree may be opened in part only

10 Cur. Law.

94. Exercise of such discretion will not be

inferred with on appeal. Poff v. Lockridge

(Okl.) 98 P 427.

95. Murphy v. Schoch, 135 Ill. App. 550;

Finkelstein v. Schilling, 135 Ill. App. 643; Zich-

ernan v. Wohlstaider, 113 NTS 403. Yio-

lation of arrangement between counsel not

binding on court is not ground for as-

serting judge is guilty of abuse of discretion,

when he opens default upon such terms

as statute authorities him to impose. Ep-

poleto v. Zhur, 111 NYS 565. Dates held so

mixed that it could not be said that court

absed its discretion. Helibur v. Jennings

(Ind. App.) 11 SWV 867. Though there was no

absolute right to vacation of a default, the * 12 Cur. Law. JUDGMENTS SS 5B. In some states, however, the opening of default judgments is a matter of right.\* A default judgment will not be set aside except upon a showing of due diligence on the part of the defaulting party *7 and a meritorious defense.*\* but no defense need be shown to warrant the vacation of a void judgment.\*\* When the plaintiff seeks to have a judgment against him set aside, he must comply with statutory requirements as to showing a good cause of action.**1**: Statutes authorizing the 96. Party who applies within one year after entry of default judgment on service of error v. Miekle, 138 Ill. App. 44. summons by publication is entitled to defend the action as matter of right, provided his function is accompanied by an answer setting. Ziegler v. Funkhouser \[Ind. App.\] SS 5NE 984; upon good defense on merits and he has not been guilty of laches in making motion. Fink v. Woods, 102 Minn. 371, 113 NYS 892. \*\*97. It is essential to setting aside of default judgment that defendant has not been negligent. Finkelstein v. Schilling, 135 Ill. App. 543. Nonjurisdictional matters which might have been unreged on the trial will not be considered on motion to open judgment. VMeters v. New York Life Ins. Co., 127 Mo. App. 683, 106 SWV 1120. Judgment against insurance company in favor of administrator will not be opened to contest question of residence of deceased. Id. Where jurisdiction was acquired of insurance company by service as provided by Rev. St. 1889, 891 (Ann. St. 1906, p. 3799), default judgment would not be opened for failure of declaration to allege matters relative to defendants doing business in state, compliance with state laws and appointment of attorney for service, such matters being nonjurisdictional matters which might have been unreged as defense. Id. It must be shown that diligence was exercised to present the defense by plea, and unless such diligence be shown the court does not abuse its discretion in refusing to set the default aside. Reliance on casualty company not diligence. Farber v. Boltoni-koff, 131 Ill. App. 345. Petition to open defcendeined where petitioner deliberately omitted to employ solicitor, enter appearance, or make defense. Weaver v. Chicago Title & Trust Co., 131 Ill. App. 66. Proper to refuse to vacate a default where defendant answered "ready" day after day when he should have known of absence of a material witness. Korenman v. Blauner, 113 NYS 736. Where parties agreed upon settlement, but defendant had not paid the sum agreed and was notified 5 days before default that default would be taken for full amount, but ignored the matter, he could not have it vacated. Lazaroff v. Shapiro, 113 NYS 572. Where failure of a party to appear is due to his own neglect or that of his attorney, he is not entitled to relief against the judgment. Andres & Co. v. Schuleter \[Iowa\] 118 NW 429. Default will not be set aside merely because defendant has a meritorious defense. It must appear that he was not negicettful and was not misled. Colter v. Luke, 129 Mo. App. 702, 108 SWV 608. Proper to refuse to vacate where defendant depended on his associate in business to attend to and defend the suit. Id. Held no reasonable excuse for failure to make defense within statutory time when there was ample proof that judgment debtor had ample time to interpose defense with due deliberation and without haste, with exercise of reasonable diligence, and where opportunities afforded were ig- or not.

- 1207. Law. JUDGMENTS SS 5B. In some states, however, the opening of default judgments is a matter of right.**2**: A default judgment will not be set aside except upon a showing of due diligence on the part of the defaulting party \*7 and a meritorious defense.**3**: When the plaintiff seeks to have a judgment against him set aside, he must comply with statutory requirements as to showing a good cause of action.**1**: Statutes authorizing the 96. Party who applies within one year after entry of default judgment on service of error v. Miekle, 138 Ill. App. 44. \*\*96. Party who applies within one year after entry of default judgment on service of error v. Miekle, 138 Ill. App. 44.\*\*98. Party v. Boltoni-koff, 131 Ill. App. 345; Finkelstein v. Schilling, 135 Ill. App. 543; Finkelstein v. Schilling, 135 Ill. App. 543; Ziegler v. Funkhouser \[Ind. App.\] SS 5NE 984; Dana v. Thaw, 109 NYS 826. Commitant to set aside default judgment on ground of fraud and mistake held to state a sufficient defense to the action. Lithuanian Brothern-help Soc. v. Tunilla, 80 Conn. 642, 70 A 25. Va. Action of default should only be on showing of reasonable excuse for defendants' neglect and a meritorious defense. Dana v. Thaw, 56 Mixs. 612, 107 NYS 870. Where no meritorious defense is shown and the history of the case shows merely an effort to stave off judgment, a default will not be opened. Amrican Plan Co. v. Tepfer, 111 NYS 1027. Showing of a meritorious defense based on information and belief is not sufficient to open a default. Phillips v. Portage Transit Co. \[VVis.\] 118 NW 539. A default will not be opened to allow a demurrer to be interposed. Schaeffer v. Gold Cord Min. Co., 36 Mont. 419, 92 Y 426 JUDGMENTS SS 5B. 12 Cur. Law.

opening of judgments apply only to cases therein specified.2 Authority to open judgments does not apply to a judgment which has been extinguished 3 or which has never existed,4 though the contrary of the latter proposition is held in some states.' Federal courts are not controlled by state practice in the matter of vacating and modifying their own prior judgments.6

_Courts of equity_ See 10 C. L. 482 have inherent jurisdiction to set aside or enjoin the enforcement of a judgment procured by fraud,7 accident or mistake,8 where its enforcement would be inequitable,9 provided that there is no adequate remedy at law,10 and that the party seeking relief is free from fault,11 has a meritorious debermited.

Footnote 10: https://www.courts.com/en/ * 12 Cur. Law. JUDGMENTS SS 5B.

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  ceeding to enjoin a judgment procured by fraud, accident or mistake is a direct and not a collateral attack.\[20\]

(SS 5) \_C. Fraud, accident, mistake, surprise, and other particular grounds.\_See \[10\]

C. L. \[455\]--Fraud must lie in the procurement of the decree,\[21\] and must be extrinsic or collateral to the questions examined and determined in the action.\[22\] Cases in which the facts have been deemed to show or not to show such surprise,\[23\] accident,\[24\] mistake,\[25\] excusable neglect,\[26\] fraud,\[27\] or any or all of such grounds\[28\] as would warranting.

ment in issue at the trial. Harden v. Card

ment of divorce where attorney for defend-\[Wyo.\] 97 P 1075.

**20. Engler v. Knoblaugh \[Mo. App.\] 110**

probable time of trial. Jones v. Jones, 37 SW 16.

**21.** Fraud which justifies vacation of judg-\[Hotze opening of judgment takon by decrement must be practiced in preparing it and fault where pending the action in which it not that which merely affects the case generally. Cross v. Gould \[Mo. App.\] 110 SW

**22.** When faced is alleged but it does not were relied upon. Pitlock v. Buck \[Idaho\] vented from presenting his claim to court, complaint is insufficient. La Fitte v. Salis-\[Ide\]

**36 P 212.** Default set aside for failure to explain is insufficient. La Fitte v. Salis-\[Ide\]

**37 SW 16.**

**38 P 234.** He did not analyze the question of judgment takon by decrement.

**39.** The question of judgment takon is not whether the action to payment of costs out of proceeds of property divided, wife could have judgment based on such stipulation vacated. Sebree V. Sab-ree, 33 K.y. L. R. 114, 109 SWV 311. Where judgment on report of commissioners to establish road was by mistake entered without anexced condition, defendant was entitled to equitable relief against its enforcement. Engler v. Knobolajn \[Mc. App.\] 116 SWV 16. Consent eetere in creditor's suit properly vacated for mistake where creditor who did not consent had an interest which was disposed of by the dereere. Prince's Adm'r v. McLemore, 108 Va. 269, 61 SE 802. Where failure to appear in court was due to error of court, judgment of nonsuit was properly vacated for mistake and surprise, under Revial 1805, $ 613, or Code 1883, $ 274, relative to vacation in the discretion of the court. Smith v. Holmes Bros. (N. C.) 61 SE 631. Mistake of fact may be ground for interposition of court of equity to vacated judgment. Filt v. Nehmerberger, 235 Ill. 235, 85 NE 304. Where defendant did not understand summons, evidence held to show that he was not served. Id. Under St. 1898, $ 2832, authorizing the court, in its discretion to set aside a default, judgment by default was properly set aside where defendant was misled by plaintiffs attorney. Wegwart v. Beneditz, 135 Wis. 422, 115 NWV 1101. Mistake or oversight of party in failing to notify his attorneys of settlement before their withdrawal from case held such as not to require court to disturb judgment, there being nothing to show that the mistake was excusable. Cors on vac. Smith \[S. D.\] 118 NWV 705. Where court enters consent decree in partition, it cannot correct same on motion of one of parties because of alleged mistake as to law governing partition. Beer v. Orthaus, 109 NYS 997.

26. On motion to set aside default for excusable neglect and inadvertence, defaulting party must show that he or his attorney attached to matter of appearance with at least ordinary diligence. Mutual Reserve Life Ins. Co., V. Ross \[Ind. App.\] 86 NE 506. Facts held to show no abuse of discretion in refusing to vacate a default. Id. Where pollution to vacate default judgment for excusable neglect makes proper case under Burns' Ann. St. 1908, $ 405, statute is mandatory and court has no discretion. Ziegler v. Funkhouser \[Ind. App.\] 85 NE 984. Application to set aside default, stating that defendant was inexperienced woman, confined and sick when action was commenced, and showing that promptly on recovering within month after rendition of judgment she applied to have it vacated, authorizes relief under Burns' Ann. St. 1908, $ 405, authorizing vacation for excusable neglect. Id. Futt were to obtain counsel after having been served with process held not sufficient to authorize vacating of a default judgment. Hannan v. St. Chair \[Colo.\] 96 PS 82. Will not be vacated because defendant defended his own cause and did not appreciate necessity of employing counsel. Langham v. O'Meara \[Ky.\] 112 SWV 928.

01. Not essential to one's right to relief against default judgment that defendants attorney should, have intentionally and frauduently misled him, but is sufficient if he did.so innecently. Lithuanian Brotherther holyGenes $ 50.

01. The defendant is made to say that the defendant rant or require the vacation or modification of the judgment, are collated in the notes. The casualty or misfortune must be such as reasonable skill and diligence could not have avoided.29 A judgment founded upon a usurious contract will usually be opened.80

(SS 5) \_D. Procedure to amend, open, vacate, or enjoin.\_See 10 C. L. 488-A motion to vacate a judgment for irregularity is a common-law remedy,81 but in the absence of statute, a court of purely statutory creation cannot ordinarily vacate its final judgments unless so authorized by statute.82 A motion to open a judgment is an appeal to the equitable powers of the court and cannot be sustained because of a mere technical irregularity not affecting the merits or justice of the judgment.83 Proceedings to vacate judgments are sometimes specifically provided by statute,84 and in such proceedings the requirements of the statute must be substantially complied with.85 Statutory proceedings are not necessarily exclusive.88

\_Time for application.\_See 10 C. L. 488-The application must be seasonally made,87

etc, R. v. Brown, 3 Ga. App. 561, 60 SE 319. \[witness, nor ask that plaintiff be put upon WIII not grant relief where, as is apparent from record, sole cause of complainant's acts was belief that it was immune from final have the judgement vacated. Badham v. process. Central Stock & Grain Exch. v. Pine \[Lunsford \[Ala\] 46 S 762.\] Tree Lumber Co., 140 Ill. App. 471. Held error for clerk to set aside, on ground of excusable imstatake or neglect, judgment in favor of what form it may be disguised, the court surely who had paid judgment against prin- oipal. Bank of North Wilkesboro v. Wilkesboro v. Wilkesboro Hotel Co., 147 N. C. 594, 61 SE 670. Fault-ure of defendant, a foreigner, to appear and defend, held due to misunderstanding, in ground of usurro. Id. that he thought summons was only a notice to pay. Lithuanian Brothethely Soc. v. Tun-ilia, 80 Conn. 642, 70 A 25. Decree opening a highway properly vacated where owner was mislead as to location of road. Thomas v. Boyd, 108 Va. 584, 62 SE 846.

29. On application for relief on ground of inadvertence and mistake of counsel, all attendant circumstances as shown by papers are to be considered. Lunnun v. Morris \[Cal. App.\] 95 P 807. Where defendant's counsel was mislead by plaintiff's counsel, whether he was negligent was a question for the trial court. Cross v. Gould \[Mo. App.\] 110 SW SWP 672. Where defendant was negligent in falling to have her husband appear as witness, judgment will not be set aside. Badham v. Lunsford \[Ala\] 46 S 762. Where the husband was sick but might have attended, held defendant did not prove that his failure to appear was not due to her fault. Id. Under Code, $ 4091, providing for vacation for unavoidable casualty or misfortune, judgment properly vacated where defendant acted in reliance on letter from clerk of court stating that complaint had not been filed. Logan v. Southhall, 137 Iowa, 372, 115 NW 19. Where only excuse for failure to appear in justice court was mistake of attorney as to date of trial, plaintiff held not entitled to relief in equity. Kramer v. Schulte \[Mich.\] 15 Det. Leg. N. 883, 118 NW 481. More failure of attorney to attend to his duty or his lack of judgment as to steps to be taken to protect his client is not casualty or misfortune under Code, $ 4091. Hedrick v. Smith, 137 Iowa, 625, 115 NW 226. Party who is guilty of failure to inform attorney of service of notice of action In order that defense may be interposed is guilty of negligence barring relief under Code, $ 4091, on ground of unavoidable casualty or misfortune. Id. Where defendant did not ask continuance because of absent and within the statutory period 28 after the right to relief is ascertained." A mo-

fraud must act diligently and in good faith:

was void, delayed for five years and innocent Crons v. Gould \[Mc. App.\] 110 SWV 672. Mov-

persona had acquired righta to be affected.

ant held not barred by laches. Smith v.

Jackson V. Becktold Print & Book Mfg. Co.

First Nat. Bank \[Ga. App.\] 62 SE 826. Not

\[Ark.\] 112 SWV 161. Where court of common abuse of discretion to refuse to vacate for

pleas quashed petition for appointment of fraud, after delay of one year, Dunn v.

viewers in proceeding to condemn a street Lawrence \[Minn.\] 118 NWV 118. One who

and petitioners did not appeal, held the order moves to vacate judgment for fraud at term

would not be eed aside after eleven years after discovering fraud acts with diligence

because the apreme court had decided in

and is not negligent as matter of law. Cross

another case that the law was different from v. Gould \[Mc. App.\] 110 SWV 672. Where motion is made to vacate _decree_ preconfso,

but upon which dismissal was based. In re

four months after rule day, without suff-

53. California: Under Code Civ. Proc.

cient excuse for the delay, it is proper to re-

74.7, authoring vacation of judgement as

fuse to open it. Kling v. Bell \[Fla.\] 45 848,

to party not served, judgment may be va-

Held seasonable: Respondents held not

cated if he shows meritous defense and

guilty of lnexusable laches where service

was by publication and respondents had no

Co. v. McGinn \[Cal. App.\] 94 P 314. Rule

knowledge of judgment until 9 months after

that motion to vacate judgment cannot be

rendition. Fink v. Woods, 102 Minn. 374, 113

made after six months from its entry ap-

1NV 909. It is only unexcused laches in

piles only where judgment which it is sought

making application after notice of pendency

to vacate is one which was actually rendered.

of suit or entry of default judgment which

Vill justify court in denying application for

153 Cal. 644, 96 P 281.

leave to answer on the ground of laches, and

Iowa!. One is not entitled to seek to va-

laches with reference to subject-matter and

vwhich might defeat right on trial on merite

avoidable casualty or miafortune, after ex ex-

held insufficient. Id. Where owner convey

piration of statutory period, unless he above

before commencement of suit in which judg-

good ground for not having acted within

ment is entered, the grantee is not in laches

for failing to attack judgment until after

118 NWV 226. Code, $ 376, providing for new

filing of a bill by the judgment creditor to

test aside deck as fraudulent. In re Mullin-

eaux \[N. J. Law\] 63 858.

Again a defendant who did not appear, does

not apply to divorte euits. Tollefson v.

under belief of corporation without visible

Tollefson, 137 Iowa, 151, 114 NWV 631.

assette that it was Immune from final process,

until discovery by creditors of fraudulent

153, where action to set aside judgment is

conveyance held laches. Central Stock &

drain Exch., Pine Tree Lumber Co., 140 Ill.

App. 471. Held insufficient diligence where

one against whom judgment was rendered

waited nearly four years before seeking to

have judgment alleged to have been procured

by fraud set aside, even though he alleged

himself to be of such limited education that

he could not himself ascertain the condition

of his account used upon and reduced to

judgment. Johnson v. Building & Loan

Ass'n, 183 Ill. App. 213. Motion in 1907 to

open default taken in 1901 comes too late

where in 1901, landind, in whose favor

fault judgment was entered, was 77 years

oid and in reasonably good health and clear

mind, while in 1907 his physical and mental

powers were too impaired that the could not

give testimony. Schultz v. Von Der Born, 57

Misc. 625, 108 NYS 756. Petition to open final

judgment denied, where petitioner received

knowledge of decree against him in sufficient

time to have presented petition to open same

before finality and could not excuse delay or

failure to do so. Weaver v. Chicago Title &

Trust Co., 181 Ill. App. #6. Fourteen years

delay in seeking to vacate a judgment held

not excused by fact that plainfikew been

facirales of the judgment creditor and ex-

pected the judgment would become her propo-

cited at her decease. Delaney v. O'Conner,

234 Ill. 546, 85 NE 226. Sixteen years' delay

in seeking to vacate decree of removal of

truste held such laches as to preclude

re-

loef. Id. Equity will not vacate a decree entered in vacation where complaints, with

knowledge of their rights and that decree

12 Cur. Law.

JUDGM tion to strike a judgment cannot be entertained by the trial court after the case has been taken to an appellate court,\[40\] but a bill to enjoin the enforcement of a decree on the ground of fraud may be heard though an appeal is pending.\[41\] Lapse of time does not bar the vacation of a void decree.\[42\]

\_Parties.\_See 10 C. L. 489.--One neither a party to a judgment nor bound thereby cannot maintain proceedings to vacate it,\[43\] unless his interests are affected thereby.\[44\] The mere fact that the judgment debtor is insolvent and his sureties have to pay the judgment \[45\] does not render him an unnecessary party in a proceeding to enjoin the enforcement of the judgment.

\_Modes and manner of procedure.\_See 10 C. L. 489.--The usual remedies for opening and vacating judgments are by motion or petition in the cause \[46\] or by independent suit,\[47\] the former proceeding sometimes being held exclusive of the latter,\[48\] and at other times the latter being held exclusive.\[49\] A direct attack upon a judgment is an attempt to avoid or correct it in a manner provided by law, and the proper method

40. Trial court has no power to strike out judgment on motion made after it was enrolled, after appeal taken, execution stald, bond given, and transcript taken to appellate court. Code Pub. Loc. Laws, art. 4, 8 171, motion being founded on surprise and fraud. United R. & Elec. Co. v. Corbin \[Md.\] & 1 A 131.

01. Bill to impeach and appeal seek different remedies. Downagic Mfg. Co. v. McGherey Mfg. Co. \[C. A.\] 155 F 524.

01. Hayes County V. Willeman \[Neb.\] 118 NWF 478. Vold judgment may be assalled at any time the party holding it seeks to derive advantage from it. Stubbs v. McGillis \[Colo.\] 96 P 1005. Defendants' delay to vacate void judgment will not preclude relief if plaintiff is not prejudiced. Id.

01. One not bound. Churchhill v. More \[Calo.\] 96 P 108. Where a decree is regularly and properly entered between the parties and no fraud is alleged, it cannot be set aside at the instance of one not a party but who claims some right in the property. Englehard-Hitchcock Co. v. Southern Banking & Trust Co., 16 Z 690. Judgment rendered and enrolled, by mistake, against wrong party cannot be corrected except as between real parties and before rights of third parties have intervened. Allen West Commission Co. v. Millistead \[Miss.\] 46 S 256. One who has apparently, but not really, been made a party cannot directly assail judgment for fraud, since he has not been injured, and besides he has adequate remedy at law by motion in action to correct record. Hargrove v. Wilson \[N. C.\] 62 SE 520.

01. Grantee of judgment debtor has standing in court in which judgment is entered to move to set it aside as irregular and thereby remove apparent cloud it casts on the title. In re Mullineaux \[N. J. Law\] 69 A 968.

01. Steele v. Culver, 29 S. Ct. 9. Mere fact that judgment debtor is insolvent and sureties will have to pay judgment does not render him unnecessary party in proceeding to enjoin enforcement of judgment Id.

01. See, also, ante, 9 5B. Vold judgment vacated only by an independent proceeding. Shimmons v. Defance Box Co. \[N. C.\] 62 SE 435. Motion to open judgment as a default cannot be sustained where there has been no default, as where, upon denial of request for adjournment, defendant remalned in court and took part in trial. Scheekter v. Reiter, 113 NX 729.

12 Cur. Law. JUDGMENTS SS 5D. 433

is to bring forward the action and vacate the judgment.\*0 An equitable proceeding to vacate is the proper remedy where time prescribed for prosecuting the proceeding has expired.\*51 A bill of review to vacate a judgment for want of service where the judgment is not void cannot operate as an appeal.\*52 On a bill to enjoin enforcement of a decree filed pending appeal, the court cannot set aside the decree for error.\*53 Proceedings for relief from judgment should generally be instituted before the judge who rendered the judgment.54 A judgment entered on an exemplification of the record does not become a judgment of the court upon the records at which such entry is made so as to give such court jurisdiction to inquire into the validity, merits or effect, of the judgment so entered.\*55 Want of proper service may be cured by general appearance on motion to vacate,\*56 and the right to relief may be waived.\*57 A movant cannot, in a single proceeding, have three separate and distinct judgments vacated.\*58 A judgment cannot be opened as a default where there has been no default.\*59 A consent decree cannot be set aside by rehearing, appeal or bill of review unless through clerical error something not consented to was inserted.\*60 One who seeks to vacate a judgment void as to himself is not required to first move for new trial or appeal.\*61 One who seeks to open a judgment may not rely on its invalidity as to a codefendant for whose benefit it is not sought to be set aside.\*62

50. Bickford v. Bickford, 74 N. H. 448, 69

fault, as such course would be appealing A. 579. A motion to correct record to speak truth and show no service of process or appearance of a-priviated process or an appliance. Billed Stitcher and Overseeamer Co., 199 NYS pearance is direct proceeding and an appliance. Billed. Where a probate decree allowing a propriate remedy. Simmons v. Defance Box Co. \[N. C.\] 62 SE 438. In action on judgment court on a jury trial and the will disallowed defense that judgment debtor was not in \[on ground of undue influence and it was fact before the court is a direct attack. Ballet found that a juror was bribed, a writ low v. Skidmore \[KSy.\] 113 SWV 441.

$1. Where default judgment was rendered by the municipal court after it had lost juris.

prome court. Crocker V. Crocker, 198 Mass.diction, and defendant had no knowledge thereof until time to move to vacate had expired, an equitable action to vacate is \[on vacate is proper. New York & N.-J. Tel Co. V. Rosenthal, 112 NYS 612.

$2. Bill in nature of bill of review to vacate a judgment for want of service of process, where judgment was not void because of such defect, cannot operate as appeal, and where no facts are pleaded showing the judgment to be void, or that petitioner have a defense, it will not be set aside. Mueller v. Heldemeyer \[Tex. Civ. App.\] 109 SWV 447.

$3. On a bill by defendant to enjoin enforcement of a decree on the ground of fraud, filed pending appeal from the decree, fire Ins. Co. \[Kam.\] 97 P 962.

the court has no jurisdiction to set aside the decree for error. McSherry Mfg. Co. v. Dowstagie Mfg. Co. \[C. C. A.\] 160 F 948.

$4. Superior court cannot review decresres of circuit court, and vice versa. May v. May, 134 Ill. App. 638. Judement of county court cannot set aside the decree for error.\*53

hold not subject to attack by injunction is-used by district court. Wheeler v. Powell \[Tex. Civ. App.\] 114 SWV 689. An application to vacate an order setting aside a judgment and dismissing a complaint should be made it.

It is.

the judge who made it. Newcomb v. Burbank, 159 F 569. Rev. St. 1859, art. 2986, providing that writs of injunction to stay excheation on judgment shall be tried in court where judgment was rendered, applies to county contr. Wheeler v. Powell \[Tex. Civ. App.\] 114 SWV 689. Where calendar rules re-quired motions to postpine trials to be heard by trial judges on affdavits, one who intennically suffers a default after a judge had denied postponent on affdavits cannot apply to another judge to open the de-

12 Curr. L. - 28.

The availability of the remedies by appellate review is elsewhere treated.\[48\]

_Pleadings and practice._\[85\] 10 C. L. 490\_-A petition in equity to vacate a judgment should show the grounds upon which such relief is asked \[44\] definitely and with certainty,\[48\] and a petition to enjoin a judgment on the ground of its invalidity should affirmatively show it to be void.\[60\] The facts constituting the complainant's defense to the judgment must be stated.\[61\] A motion for relief against a confessed judgment should be only to open the judgment and for leave to plead.\[62\] Motions to open or vacate judgments must usually be accompanied by affidavits \[63\] showing the grounds relied on \[70\] and a meritorious defense,\[71\] but in some jurisdictions an affidavit of merits may be dispensed with in the discretion of the trial court on motion to open a default,\[72\] and the merits of the defense are not pertinent in the face of want of diligence.\[73\] Affidavits must definitely designate the judgment or part in course of transactions with drummers or traveling salesmen excepted by the statute. Doe Witt v. Flint & Walling Mrg. Co., 132 Ill. App. 356. Affidavit held insufficient to authorize interference with judgment by concession on notes given foreign corporation 12: Cur. Law. JUDGMENTS SS 5D. 435 thereof complained of,74 and must state facts and not conclusions.75 An affidavit / chiefly upon information and belief is insufficient.76 Where a motion is denied because of insufficiency of affidavit, leave to renew the motion should be granted.77 Where rights of third parties are concerned, one moving to vacate a decree for fraud must make unconditional tender of benefits received under such decree.78 The necessity of notice depends upon the circumstances,79 but merely formal corrections may usually be made without notice.80 On motion to vacate, the court should find the facts.81

_Burden of proof and evidence._ See 10 C. L. 402.--On direct attack, mere findings of jurisdictional facts are not conclusive of jurisdiction to render a default judgment 82 but a judgment of a court of general jurisdiction imputes verity,83 and all reasonable indentments will be indulged in favor of the regularity of the proceedings of such courts,84 and such proceedings cannot be attacked by evidence outside the rec ord 88 except in a court of equity; 89 but such presumption does not apply to courts of limited jurisdiction. 87 One who seeks relief on the ground of fraud must prove it by clear and convincing proof, 88 and one who seeks relief on statutory grounds must establish such grounds. 89 One who asserts a judgment to be void must prove it, 90 and so also as to irregularities. 91 One who seeks relief from false entry of a judgment must show himself free from negligence in respect to the entry. 92 On a motion to open a judgment, the facts alleged to show the existence of a defense are taken as true, 93 and the evidence goes solely to the excuse for not appearing or to show due diligence. 94 The motion, therefore, will be heard solely on the movant's affidavits or pleadings, 95 and counter affidavits will not be considered 96 except as bearing upon

Where notice of appeal was given, but it does not appear that the appeal was per-fected, such fact cannot be presumed so as to deprive the judgment of finality. Slaught-ter v. Cooper \[Tex. Civ. App.\] 107 SW 897.

Service of writ is presumed regular as to a justice's judgment recorded in the circuit court. Alfred v. Batson \[Miss.\] 45 S 465.

Where a decree in chanery is entered at a "safe" on the ground that summons term subsequent to the return term and re-cites due service of process, but the return on the summons is insufficient, it will be presumed that a second summons was issued but the recials of the decree cannot pre-vail if it was entered at the return term of the summons. Manternach v. Studt, 230 Ill.

Vacation of judgment for want of jurisdic-356, 82 NE 829. Where the record does not show service of process, proper service is presumed. Clark v. Neves, 76 S. C. 484, 57 SE 614.

85. A judgment by a court having juris-ddefendant did not appear, defendant had the idiction of the parties and subject-matter im-morts absolute verity and cannot be attached by evidence outside the record. Stro-App.\] 20 Tex. Ct. Rep. 877, 107 SW 141.

Del v. Clark, 128 Mo. App. 48, 106 SW 858.

Held incompetent to resort to evidence outside the record to prove that a probate court had exceeded its jurisdiction. Id. Clerical misprision must be shown from the rec-cited, and can be corrected only by the rec-cited. Brashears v. Brashears, 38 Ky. L. R.

86. While the record of a court of general jurisdiction imputes absolute verity and can be impacheed only by matter of record so far as amendment at law is concerned, cogent and convincing parol evidence is admissible in equity in cases of fraud and mistake. Engler v. Knoblaugh \[Mo. App.\] 110 SW 16. That a decree was erroneously entered in vacation may be established by proof alumde. Jackson v. Becktold Print. & Book Mfg. Co. \[Ark.\] 112 SW 161.

01. One who claims under a judgment of a justice of the peace must show affirmative-ly that the justice had jurisdiction. Ferguson v. Basin Consol. Mines, 162 Cal. T12, 93 P 867. Most show that summons was issued and served in manner prescribed by law. Id.

01. In suit to vacate a judgment for fraud, affidavit and facts held not insufficient as a matter of law, but to present a question for the court. Cross v. Gould \[Mo. App.\] 110 SV 672.

01. One who seeks to vacate a default under Code Civ. Proc. $ 151 must satisfy the court that failure to appear was the result of mistake, surprise or excusable neglect.

Burton v. Cooley \[R. D.\] 118 NW 1928. Under Burns' Ann. St. 1908, $ 410, providing * 12 Cur. Law. JUDGMENTS SS 5D.

the question of excuse or diligence; 97 nor can grounds for a new trial be considered.\*\* As bearing upon the question of diligence, the court may consider the fact that the judgment has been acted upon in good faith by third parties.99 The facts alleged in a petition for leave to file a bill of review on account of newly discovered evidence are taken as true,1 but counter affidavits are admissible as bearing upon the nature, relevancy and materiality of such evidence.2 Upon petition to open judgment, the court is not limited to a consideration of what appears in the petition only, but may consider any proceedings or evidence in the case bearing upon the propriety of granting the relief sought.3 In a statutory action for the vacation of a judgment, the plaintiff will not be allowed to show as ground for vacating the judgment that his homestead may be sold at forced sale.4 The proper manner of addressing the discretion of the court on motion to open a default is to accompany the motion with a transcript of the court whose action is relied upon as a ground for setting motion aside and as evidence of acts alleged.5 In proceedings to correct a clerical misprision in a final judgment after term, it is competent for the court to admit in evidence the original citation and the abbreviations indored thereon, and to permit the clerk who made them to testify as to which they stood for.6

_Questions of law and fact._ See * C. L. \*\*\* --No court or judge has jurisdiction to open a regular judgment without some evidence of a valid defense.7 On conflicting evidence the question may be one for the jury.8

ments of the affidavits construed most warrants, and to be sufficient affidavit of strongly against the applicant. Murphy v. * 138 Judgments $ 5D. 12 Cur. Law.

Judgment or order of vacation and extent and effect thereofSee 10 C. L. 493.--The judgment or order of vacation should protect the interests of both parties." Reasonable terms 10 and conditions prescribed by statute may be imposed.11 but conditions not authorized cannot be imposed.12 Compliance with conditions imposed may be required.13 The usual condition of an injunction bond is to pay the judgment and costs.14 Some statutes do not permit the setting aside of the judgment but only authorize it to be opened and the cause set down for hearing.15 Where a judgment by confession is opened in order to admit a defense, and the finding is against the defendant, a new judgment should not be entered.18 Vacation for want of service will

9. Schneider v. Lobingier \[Neb.\] 117 NWV 565. Under Code Civ. Proc. $$ 783, 784, prot-473. Where a judgment is vacated for want of service of process, but defendant by ap-pattern for mistake or excusable neglect, pearing submitted himself to the jurisdiction, he should be permitted to answer or commit. Stubbs v. McGMillis \[Colo.\] 96 F will work justice. Quifhot v. Hamer, 158 1005. Where plaintiff paid money on ren-claim for opening default granted on condition of deposit provided for by Municipal control Act (Lawes 1902, p. 1563, c. 580), $ 256, dependant appealed and obtained a more favorable judgment, plaintiff's suit to set aside the judgment should not be dismissed on withdraw him judgment for money mistaken. Dotson v. Carter \[Key.\] 112 SWV 332, a justice held to have illegally taxed 1116. Code Civ. Proc. $ 1292, providing that voters judgment is set aside on motion the court may enforce restitution, does not ap-ply to a motion to set aside a default and re-fendants, with the consent of plaintiff, are vacate a judgment which has been satisfied. Fluegelman v. Armstrong, 110 NYS 967.

1. Where interlocutory judgment in parferent answer, though had they filed thetition was obtained by false representations of plaintiff's attorney, order granting motion without costs and permitting defendant other privileges held not unduly lenient to defendant. Beer v. Orthaus, 113 NYS 583. Where a complaint was dismissed for fall- or plaintiff to appear, and opening of default was conditioned on payment of $ 10 Cats which he failed to pay, but by error of the clerk the cause was placed on the calendar and default entered against defendant, he was entitled to have such default vacated, and original judgment against plaintiff reinstated. Herman v. Hyman, 112 NYS 1077. Where defendant in divorce action defainted, but after application was made to punish him for content for failure to obey default judgment, he moved to vacate and set aside judgment, proper practice is to refuse to entertain application nth-tl defendant has complied with judgment and relieved himself from content, but, having entertained the application without requiring such condition, applicant should not be permitted to try issues after grant of application until such condition is completed with. Krauer v. Krauer, 121 App. Div. 150, 108 NYS 490.

1. Under Kirby's Dig. $ 6259, defendants constructively summoned, but who have not appeared, may vacate a decree and defend on giving bond for costs, Pearson v. Vance, 85 Ark. 272, 107 SVW 986. Under Municipal Court Act, $ 356 (Laws 1902, p. 1651, c. 580), court may require deposit of amount of judgement or undertaking for such amount as condition for opening default, but may not require deposit of greater sum, and order requiring such greater sum will be modified on appeal. Eppeleto v. Zuhr, 111 NYS 112, 112 NYS 112, 113 NYS 114, 115 NYS 115, 116 NYS 117, 118 NYS 118, 119 NYS 119, 120 NYS 121, 121 NYS 122, 122 NYS 123, 124 NYS 124, 125 NYS 125, 126 NYS 127, 128 NYS 128, 129 NYS 129, 130 NYS 131, 131 NYS 132, 132 NYS 133, 134 NYS 135, 136 NYS 137, 138 NYS 139, 140 NYS 141, 141 NYS 142, 143 NYS 144, 144 NYS 145, 146 NYS 147, 148 NYS 149, 150 NYS 151, 152 NYS 152, 153 NYS 154, 154 NYS 155, 156 NYS 157, 158 NYS 159, 160 NYS 161, 161 NYS 162, 162 NYS 163, 164 NYS 164, 165 NYS 165, 166 NYS 166, 167 NYS 168, 169 NYS 170, 171 NYS 171, 172 NYS 173, 174 NYS 175, 176 NYS 177, 178 NYS 17 not abate the action where defendant has appeared generally \[17\]. If an award of attorney's fees is unauthorized by the pleadings, proceedings to amend or vacate such award might lie \[18\], but where the judgment was otherwise correct and it is attacked as a whole, the motion is properly overruled \[10\]. An order denying a motion to vacate a judgment is a bar to any subsequent proceeding seeking the same relief \[20\]. The order should show that it is made at the same time if such fact is essential \[21\]. Vacation as to some of the parties vacates as to all, if their interests are inseparable \[22\]. On vacation of a judgment it ceases to exist \[28\]. Where a judgment decreeing the sale of land is vacated, the sale should also be vacated \[24\]. Where a judgment by confession is opened to allow the interposition of a defense, the only real effect of the words "to stand as security" is to stay execution until there is a trial upon the pleas that might be filed \[25\]. On direct attack upon a nunc pro tune order amending a judgment, the sufficiency of the evidence to show that the original entry was erroneous may be looked to \[26\], but on collateral attack a nunc pro tune order amending a judgment will be sustained unless it is apparent that the court was without power to make it \[17\].

_Appeal and review \[10\]._ See \[10\].\_ C. L. #94--The appealability of orders on motions to open or vacate judgments depends largely upon the peculiar practice in the various states \[28\]. When appealable it is very generally held that the order will not be disturbed in the absence of an abuse of discretion \[29\]. Questions sought to be reviewed must, as in other cases, be properly saved \[30\]. Where a motion to modify is denied solely on the instruction to find against the judgment \[1\].

_A_: _ ground that it is too late, and it appears on appeal that the judgment sought to be modified is manifestly wrong, such judgment will be reversed.\[51\]

SS 6. \_Construction, operation and effect of judgment.\_See 14 C. L. 405--A judgment should be construed in connection with the complaint,\[32\] the record,\[83\] and opinion,\[34\] and a judgment on rehearing should be construed in connection with the original judgment.\[35\] A fair and reasonable construction is to be placed upon the language used,\[36\] and it should be so construed as to give effect to every part and to harmonize different parts.\[37\] Surplusage may be disregarded.\[88\] A recital in the judgment of due service prevails over defects in the record,\[39\] but a return showing want of service cannot be aided by the judgment.\[40\] The recovery of a joint judgment against several wrongdoers does not merge the several liability of each.\[41\] The identity of the issue property described therein merely restricts them and does not prevent its collection from other property. Lindberg v. Thomas, Bank v. Mullen, 7 Ohio N. P. (N. S.) 313. See, also, Saving Questions for Review, 10 C. L. 1572. **31.** Berger v. Euse, 110 NYS 975. **32.** Hint v., Chess & Wymond Co., 83 Ky. L. R. 767, 111 NW 285. **33.** Pleadings and issues joined may be looked to to limit and explain language of judgment. Pomona Land & Water Co. v. San Antonio Water Co., 152 Cal. 618, 93 F 881. If entry of judgment is so obscure or ambiguous as not to express final determination of court with sufficient accuracy, the pleadings and record may be referred to. Traves v. Turner \[OKL\] 94 F 543. Where judgment is ambiguous and its affect is questioned, pleadings or other proceedings may be looked to ascertain its true meaning. Hanley v. Mason \[Ind. App.\] 85 NE 381.\*\* Recital in minutes of court that decree was by consent but minutes of clerk and judgment showed otherwise, held to warrant finding that decree was made after trial and not by consent. Charles v. White \[Mo.\] 112 SW 545. In order to find infant litigants bound by consent of their guardian ad litem to decree, the record should be entirely free from doubt as to the giving of consent. Id. **34.** Where decree is in general terms, opinion of court may be looked to in order to determine the questions presented and decided. D'Arcy v. Staples & Hanford Co., 161 F 733. Opinion of court may be looked to in order to determine point decided on plea of former adjudication. Moore v. Chattanooga Elec. R. Co. \[Tenn.\] 109 SW 497. **35.** Original decree finding generally for plaintiff upon all issues involved in case, which was vacated on rehearing solely on ground of defect of parties plaintiff, construed together with second decree, held equivalent to finding for plaintiff on facts. Griffith v. Stewart, 31 App. D. C. 28. **36.** Recital that rail fence is a boundary line construed to mean center of the worm of the fence, Woodford v. Clay, 32 Ky. L. R. 922, 107 SW 269. Oral statements of court at time of rendition and construction placed upon it by the parties are not to be considered. Hemmer v. Bonson \[Iowa\] 117 XW 257. **37.** Judgment construed and held to exclude from land adjudged to be held in common a certain lot. Featherston v. Merrimon IN. C.\] 61 SE 675. A provision in a judgment limiting its effect and operation to property described therein merely restricts them and does not prevent its collection from other property. Lindberg v. Thomas, 137 Iowa, 48, 114 NW 562. Decree confined to "money or other property owned and left by deceased" held not to include lite insurance policy, which was property, but which had by his lawful act become property of others before his death. Dickinson v. Lane \[N. Y.\] 85 NE 818. **Decree in a will contest** case construed, and held to decide that pro-ponents had proved execution of the will and that contestants had failed to prove fraud. Thames v. Rouse \[S. C.\] 62 SE 254. **36.** Statory decree establishing priorities to use of water for irrigation confers no new rights but is merely evidence of pre-exist- being ones. Almasso Creek Canal Co. v. Nelson, 42 Colo. 140, 93 F 1112. **Decree partialening land and superloning water rights** did not change character of water rights of the respective owners. The right apportion-ed each was a riparian right. Verdugo Canon Water Co. v. Verdugo, 152 Cal. 655, 93 F 1021. Under a decree which partitions rpiar land and apportions water rights, but does not specifically dispose of underground water essential to the preservation of the stream, such underground waters cannot be diverted but the surplus belongs to riparian owners, except that the decree cuts off from this right all land except those tracts which extend to some portion of the underground flow. Id. **37.** Lamb v. Major & Loomis Co., 146 N. C. 531, 60 SE 425. **38.** See ante, $ 2A. Unwarranted recitals in a judgment may be treated as surplusage. Hentig v. Johnson \[Cal. App.\] 96 P 380. **39.** When judgment recites that due servo-ice was had, the presumption of jurisdiction is not overcome by any defects in the record. Stevens v. Doehen \[Wash.\] 96 12 Cur. Law. JUDGMENTS SS 7. 441

between several parties has no necessary bearing on the question whether a judgment is joint or several.\[42\] A judgment in rem adjudicates the status of particular subject-matter\[43\] and does not personally bind the judgment debtor.\[44\] A judgment at law is unit and must stand or fall as such.\[45\] So also one who relies upon an indivisible decree must accept it as a whole.\[46\] The conclusiveness of judgments between parties and privies is treated in another topic,\[47\] as is also their admissibility and effect as evidence.\[48\] Conclusiveness on collateral attack,\[49\] and effect as lien or notice,\[50\] are treated in other sections of this topic.

SS 7. _Collateral attack. What is collateral._ See 10 C. L. 495--A collateral attack is an attempt to impeach a judgment in a proceeding not instituted for the express purpose of annuling, correcting, or modifying the judgment.\[83\]

_Grounds._ See 10 C. L. 496--The judgment of a court of general jurisdiction which has jurisdiction of the parties and the subject-matter is not subject to collateral attack;\[82\] and upon such an attack such a judgment is conclusive upon all questions covered thereby.\[83\] It cannot thus be attacked for failure to show jurisdictional facts, where such facts appear from the entire record,\[84\] nor can a record of a court of general jurisdiction be attacked collaterally because it does not show correctly the 443 JUDGMENTS SS 7. 12 Cur. Law. action of the court. \[58\] A judgment, void for want of jurisdiction, \[58\] or for other reasons, \[57\] may be collaterally attacked at any time, \[58\] but its invalidity must appear from the face of the record, \[59\] since every presumption will be indulged in favor of its regularity, \[60\] if rendered by a court of general jurisdiction. \[61\] Where the record is silent as to service, the defendant may testify in rebuttal of the presumption

55. Horn v. Metzger, 234 IIL. 240, 84 NE \[thereon is not void and subject to collateral attack. Randall v. Snyder \[Mo.\] 112 SW 529, 56, Bauer v. Widholm \[Vwash.\] 95 P 271. May be collaterally attacked by debtor in \[tion is presumed correct on collateral attack. Supplementary proceedings on judgment. Gillespie v. Armstrong, 58 Misc. 310, 109\] jurisdictional fact which record of a court XYS 672. Where judgment was entered, by stipuation and the affdavitt omitted a jur-absorant must be presumed in favor of the judicial fact. did not describe the land in suit, one of the parties was not suit juries \[107\]. T. W. Metzger, and the court was without power to render such judgment. Goodrum v. Buffalo \[C. C. A.\] 162 F 871. 57, Judgment vold upon its face. Minne-sota Threshresh Mfg. Co. v. L'Heureux \[Neb.\] 118 NWF 656. Void decree. Andrews v. Sheehy \[La.\] 47 S 771. Theobald v. Desonde \[Miss.\] 46 S 712. Where land is conveyed to secure a debt and bound to recovery given and land is sold on execution for a debt of the grantor, a petition by heirs of the obligge of the bond to set aside the jurslifs dead is not a proceeding to set aside the judgment being on the ground that it is void. Buchan v. Williamson \[Ga.\] 62 SE 815. One who is used on a foreign judgment may show that attorneys who undertook to appear for him in the case in which the judgment was ren-dered had no authority to do so, unless such question has been determined by a court having jurisdiction of parties and subject-matter. Thomas v. Varden \[C. C. A.\] 160 F 418. Objection to jurisdiction of court may show the contract of jurisdiction on account be raised at any time in any kind of proceeding. Jenkins v. Morrow \[Mo.\] 109 SBW 1051. Void judgment may be assailed before tribunal which rendered it by any person whose interests are affected by at-empt to enforce it. Andrews v. Sheehy \[La.\] 47 S 771. 59. Not unless affected by some jurisdicde. Horn v. Horn, 234 III \[In ref. Nelson's Estate \[Neb.\] 268, 84 NE 804. Recital In complaint on a 115 NWF 1087. One assailing judgment must judgment attempting to state facts showing their order did not exist. Moore v. Hansec \[Tex.\] 20 Tex. Ct. Rep. 438, 106 SW 876. It must be void on its face. Emery v. Kipp \[50\]. 54 Service of process and hearing at the \[Ca.\] 97 P 17; Aldrich v. Barton, 153 Cal. \[If term at which the court had jurisdicde-488, 95 P 900. Conditional and uncertain agreements between counsel for the parties \[234 IIL, 240, 84 NE 839. Service of process on respecting dismissal of a suit begun will not be enforced so as to avoid a judgment sub-is presumed. Curts v. Charlevoux County security recovered and involved in a colllet. Sup's \[Mich.\] 15 Det. Leg. N 941, 118 NWF 618. Where the record of a court, whether every Co. v. Gillespie, 63 V. Va. 578, 60 SE 597. Where record of county court does not preserve existence of facts authorizing court to make an order, the law presumes that such facts were established and in collateral attack evidence outside the record to the contrary will not be heard. Moore v. Hansec \[Tex.\] 20 Tex. Ct. Rep. 438, 106 SW 876. Under annt. St. 1906, p. 601, publication of summons in action against a nonexistent and to have a judgment adjdapend a lien on land need not describe the land and judgment judgment.

12 Cur. Law. JUDGMENTS SS 7. 443

of service. \[42\] Recitals of jurisdictional facts are generally held conclusive, \[43\] unless contradicted by the record, \[44\] and where it is permissible to contradict such recitals, the evidence must be clear and convincing. \[65\] A judgment cannot be collaterally attacked for nonjurisdictional errors, \[66\] or irregularities of procedure. \[67\] The same general principles apply to probate, \[66\] and bankruptcy \[69\] decrees, and to judgments

62. Weaver v. Webb, 3 Ga. App. 726, 60 SE

lateral attack, are cured by the judgment. Palmer v. Essex County Chosen Freeholders

63. Where a court passes on facts deter-

\[N. J. Law\] 71 A 288: Judgment not open mining its own jurisdiction, its judgment is

to collateral attack merely because there not subject to collateral attack. Ledbetter

v. Mandelli, 124 App. Div. 854, 109 NYS 602.

else of lawful power to allow amendments

Finding as to residence of minor In zwarad-

to complaint, mere error not vittating the

**length proceedings** is conclusive, and on ap-

judgment. Goodman v. Ft. Collins \[C. C. A.\]

peal, where the evidence is not in the record. It cannot be reviewed. In re Baker, 153 Cal.

held not to render default therein subject to

537, 96 P 12. Where the court had jurisdiction

colateral attack. Randall v. Snyder \[Mo.\]

tion of parties and subject-matter, judgment

112 SWV 529. If service of process is defec-

reeting that **name pre true entries** were

try or irregular but not void, a judgment

made upon proof from minutes and records

may they irregular and subject to direct attack

of the court may not be collaterally attacked

but not to collateral attack. Town of Point on ground that there was no evidence to sup-

Pieasant v. Greenlee, 63 W., Va. 207, 60 SE

port it. Collier v. Catherine Lead Co., 208

64. Where in statutory suit for taxes one

Mo. 246, 106 SWV 911. In action to enjoin sale

of defendants makes valaver of service by

under execution, it is not permissible to im-

penah recitals in judgment upon which execution was based that recovery was had be-

tack. Walker v. Milla, 210 M. 684, 109 SWV

cause of fraud by judgment creditor. Nichols

44. Failure to enter orders and papers in

v. Doak, 48 Wash. 487, 93 P 919. Judgment

reciting due service of process cannot be

not subject to collateral attack. Curtin v.

colaterally attacked for want of service

Town of Point Pleasant v. Greenlee, 63 W., Va. 207, 60 SE

Va. 207, 60 SE 601. It is not ground for col-

65. Judgment of probate court as to mat-

lateral attack for want of service where after

fdavi of service was not verified but subse-

quent affmostris were filed and judgment

recited proof of personal service. McAaliff v. Hughes, 128 App. Div. 855, 112 NYS 486.

66. Where record shows lack of jurisdicdic

f jurisdiction but, it made in exercise of proper

ton, the judgment is void and subject to col-

lateral attack, Indiana & Arkansas Lum-

hat attack though based on erroneous conclu-

ber & Mfg. Co. v. Brinkley \[C. C. A.\] 164 F

963. Judgment is not subject to collateral

struck because amdavit of service recited

86 NE 478. Proceedings of county court in

that service was made on a day prior to is-

maters of administration are not subject to

suc of summons, such error would be treated

collateral attack except for want of juris-

as a clerical one. McAaliff v. Hughes, 128

diction, Holland v. Ferris \[Tex. Civ. App.\]

App. Div. 855, 112 NYS 486.

65. Evidence held insufficient to overthrow

to allow expenses of administration and a

recitals of decree. Ladd v. Craig \[Miss.\] 47 S

judgment allowing specified sum for legal

777.

services cannot be collaterally attacked.

**66. If court has jurisdiction of parties**

United States Fidelity & Quar. Co. V. People

and proceeding, its judgment, however er-

conconous is valid, and not subject to collat-

county court is a court of record and of exclu-

eral attack. Blackford v. Blackford, 74 N. H.

448, 69 A 579. Fact that complaint states a

cause of action barred on its face by limit-

tations does not render the judgment sub-

ject to collateral attack. Palmer v. Essex

County Chosen Freeholders \[N. J. Law\] 71 A

285. Judgment in tax suit cannot be vacated

on collateral attack on proof that taxes for

year specified had been paid prior to suit

beginning, Cooper v. Gunter \[Mo.\] 114 SWV 494.

Of pleadings present issue within provoc

of court to determine, judgment is not subject to collateral attack because complaint

cotinality of determination on direct attack

does not control in a collateral attack on

jud in special proceedings." Presumptions of verity and regularity are indulged in favor of judgments of inferior courts where jurisdiction is shown," or where such presumptions are required by statute," but not otherwise." A judgment in a special, statutory proceeding is open to collateral attack where it does not conform to statutory requirements." A judgment entered by a court of competent jurisdiction is conclusive that it was rendered as therein stated." Fraud is not ground for collateral attack."

\*\*SS 8. _Lien. When and to what it attaches._\*\*See 10 C. L. 449--The judgment lien attaches to all the real property of the judgment debtor," title to which stands in his name " and which is situated in the county where the judgment is rendered " or

Huttig Mfg. Co. v. Edwards \[C. C. A.\] 160 F years for which taxes were due cannot be 619. A bankruptory decree discharging a debtor based on proper findings. Hoskins v. reclaims in Sheriff's deed, by statute made Velasco Nat. Bank \[Tex. Civ. App.\] 20 Tex. prima facie evidence of title. Cooper v. Ct. Rep. 462, 107 SUV 598. Adjudication in Gunter \[Mo.\] 114 SUV 943. Where default for bankruptory that because of insolveny a re-eciver was appointed for the property of the alleged bankrupt Is conclusive. Bankr. Act status, and petition was lost, it could not be 164 F F 823.

Huttig Mfg. Co. v. Edwards \[C. C. A.\] 160 F years for which taxes were due cannot be 619. A bankruptory decree discharging a debtor based on proper findings. Hoskins v. reclaims in Sheriff's deed, by statute made Velasco Nat. Bank \[Tex. Civ. App.\] 20 Tex. prima facie evidence of title. Cooper v. Ct. Rep. 462, 107 SUV 598. Adjudication in Gunter \[Mo.\] 114 SUV 943. Where default for bankruptory that because of insolveny a re-eciver was appointed for the property of the alleged bankrupt Is conclusive. Bankr. Act status, and petition was lost, it could not be 164 F 823.

Huttig Mfg. Co. v. Edwards \[C. C. A.\] 160 F years for which taxes were due cannot be 619. A bankruptory decree discharging a debtor based on proper findings. Hoskins v. reclaims in Sheriff's deed, by statute made Velasco Nat. Bank \[Tex. Civ. App.\] 20 Tex. prima facie evidence of title.

- 12 Cur. Law. JUDGMENTS SS 8. 445

recorded. In some states issuance of execution is a condition to the attaching of the lien," and in others proper docketing only is required." Destruction of the record does not $\\omega$-stroy the lien." Where a judgment debtor makes the judgment a special lien on certain land, such land is primarily liable." A revived judgment is a lien only from date of revival."

_Duration of lien_ See 10 C. L. 800 is generally prescribed by statute 88 and is not affected by subsequent conveyances," but ceases to exist when the judgment becomes dormant." Reversal on appeal destroys the lien."

_Rank and priority of lien._ See 10 C. L. 800--The judgment lien is inferior to rights and liens existing at the time that it attaches," except in so far as the rights

ing judgments in another county, the state-

one of which the grantor had placed a specuery requirements must be substantially

cial lien for the amount of the judgments, the complied with, and judgment as recorded

latter piece is primarily liable as between must be sufficiently complete in itself. Wickley,

the purchaser for the amount. Pleasant

er v. Jenkins (Tex. City. App.) 108 SW 188.

Hill L. P., & W. Co. v. Quinlan, 150 M. App.

Certificate of clerk attesting correctness of

487, 109 SW 1061.

abstract of judgment recorded in another

s4. A judgment revived for the first time

county need not be recorded, Id. Abstract

of judgment recorded in another county,

showing amount, rate of interest and costs,

is not alien on such land. Allen West Commisson

is sufficient though blanking for credits are

not filled. Id. Under Gen. Laws 1838-99.

85. Code Civ. Proc. $ 376, expressly pro-

p. 34, judgment certificate held sufficient to

vides that until after expiration of twenty

create a lien on land in county where filed,

theugh it omitted the surname of one

clusively presumed, and though the lien has

the judgment creditors. Gunter v. Belser

(Ala.) 48 S 582. Abstract recorded in an

claim against the debtor until expiration of

other county, showing amount and rate of

interval, held sufficient though erroneous as

30.

to amount of costs. Wickley v. Jenkins (Tex.

56. Under Code Civ. Proc. $ 1251, providing

Civ. App.) 108 SW 188. Abstract recorded

in another county stating name of plant

from time it is doclected, judgment doclected

as W. B. F. W. instead of W. F. B. W. is

before alleged fraudulent conveyance by

sufficient. Id.

80. To establish a lien, the lienor must

prove that execution was issued on judgment

ment within 12 months after rendition as re-

quired by Sayle's Rev. Civ. St. 187, art.

cution issued on dormant judgment, will be

$398, to preserve the lien. Bourv v. Robin-

som \[Tex. Civ. App.) 107 SW $78, Evidence

of mere entries on execution deckest of the

Upholstering Co. v. Baker \[Neb.\] 118 NW

clerk, consisting of dates entered under an

orderly arranged system, held not sufficient

to prove issuance of execution. Id.

81. Under Code Civ. Proc. $ 1251, judgment

here incident to judgment and ceases to ex-

becomes lien from time of docketing. Hol-

laid v. Grote \[N. Y.\] 86 NE 30. In New

S8. Under Code Civ. Proc. $ 1321, where

York judgment becomes a lien on real estate

from date it is doclected irrespective of l

to be a lien. Clinton V. South Shore Nat. Gas-

sance of execution, levy, or sale. In re

Tupper, 168 F 766. When properly docketed,

derece in equity becomes lien on real estate

of judgment debtor. Raymond v. Blangeras,

s8. Mout 449, 93 P 648. In order to create

lien, judgment must be properly dockeded,

and formalities of docketing required by

saturate must be complied with. Hurt v.

Sweetser \[Cal. App.\] 97 P 705. Judgment

must be docked against debtor in his cor-

rect name. Id.

82. Under Gen. St. 1906, 1001, 1003,

destruction by fire of record of judgment in

county where rendered held not to destroy lien

affected by recording of transcript of the

judgment in another county before the fire,

nor to prevent making the judgment a lien

by recording in another county after the

fire. Curry v. Lehman \[Fla.\] 47 S 18.

s3. Where two persons buy separate pieces

of land of a common grantor, against each

of which there is a judgment lien, but upon

be entitled to reimbursement if he paid un of the prior claimant or encumbrancer may be affected by the recording acts." It is inferior to the rights of a bona fide purchaser acquired before it becomes effective "1 or before it is docked in such manner as to give constructive notice to subsequent purchasers." Where the entry of judgment gives a lien upon the judgment debtor's real property," it also operates as constructive notice to subsequent purchasers." A judgment creditor may be estopped to assert his lien as against subsequent claimants or lienors." A judgment lien prior in time to a mortgage is prima facie superior in rank as to property covered by the mortgage," other than that for the price of which the mortgage was given." Where land is conveyed to one who simultaneously transfers it as security for a loan to pay the purchase price, the title passes through the borrower without being affected by a judgment against the borrower." Here laches in enforcing a judgment is not ground for annulling it at the instance of a subsequent judgment creditor in the absence of proof of a valid defense."

SS 9. \_Suspension, dormancy, and revival.\_See 10 C. L. 565.--The objection that judgment is dormant may be raised after issue of execution,1 and the execution may be enjoined.2 In some states entries of execution on a judgment,3 if made in the manner prescribed,4 will arrest the running of the dormancy statutes. A proceeding

der constraint of foreficture of payments

of decree of foreclosure held charged with made. Durling v. Stillwell \[N. J. Eq.\] $9 A

note of such decree and sale thereunder.

978. Judgment lien is inferior to unrecorded

Young v. Davis \[Wash.\] $7 P 506.

deed executed before judgment was rendered.

98. Where judgment creditors were made

McCalla v. Knight Inv. Co., 77 Kan. 770, 94

parties to a cult to foreclose a mortgage,

P 126. Lien under judgment for allmowy held

gave notice that they had no defense and

inferior to trust ded and judgment of foreficture was a prior lien, they were

closure. Prather v. Haffgrrove \[Mo.\] 112 SW

stopped to thereafter claim that their judgments were a prior lien. Smith v. Munger

prior to the lien of the judgment procurved

\[Miss.\] $7 A $67, An assignee pending the

therein in absence of intent to defraud. No

lien until judgment, Curie v. Wright \[Iowa\]

98, 97. Howard v. Runber \[Ga. App.\] $11 113 NW 74.

99. Under recording laws, one who acquires a judgment lien without notice of

01. Protestant Episcopal Church v. Lowe

01. Prior unrecorded decree by

Co. \[Ga.\] $5 SE 136.

99. Delay of five years not ground for an-

Fenbery v. Stearns \[Fla.\] $3 P 87. One

who has failed to record his ded ded has bur-

den of showing that creditor of grantor, who

subsequently acquired judgment, had notice

thereof. Id.

91. Rule is same whether judgment was

rendered by state or federal court. Allen

West Commission Co. v. Millstead \[Miss.\] 46

8 256.

92. Order for deficiency judgment on mortgage foreclosure and docket thereof as judgment is no notice as to property standing in

name Meilvina Haring where action was

sgninst Amanda Haring. Haring v. Murphy,

113 NYS 452. Where judgment was entered

and enrolled against R. H. Rutledge, whereas

defendant's name was R. D. Rutledge, Judgment held not notice. Allen West Commission Co. v. Millstead \[Miss.\] 46 S 256. Rights

of subsequent purchasers cannot be effected by amendment as to name after such rights

have attached. Id. Judgment against mar-

rfel woman docketed against her in her

malden name is not lien against property

conveyed by her to innocent purchaser by her

married name. Hutt v. Swreetser \[Cal. App.\] $7 P 706. Under Civ. Code, $117, married

woman is authorized to convey land in her

name and purchaser is not put on inquiry as

to her business transactions while unmar-

ried. Id.

93. Sess. Laws 1893, p. 65, v. 42. Young v.

Davis \[Wash.\] $7 P 506.

94. Purchaser from mortgagor after entry

01.

12 Cur. Law. JUDGMENTS SS 9. 447

to revive a dormant judgment * is a new and separate proceeding but not a new act:o 1.\* Such proceedings must be instituted within the period prescribed 7 and by parties entitled to maintain them.\* Jurisdiction may be acquired by published service.\* Objections seeking to go behind the judgment cannot be interposed against the revival of a valid judgment,10 but all defenses and objections to the revival and enforcement of the judgment may be interposed 11 and the validity of the judgment may be attacked,12 unless such objection has been waived; 13 and all proper objections may be made without constituting such an appearance as will render valid a judgment void for want of jurisdiction,14 but the presumption is in favor of the validity of the judgment,14 and the record cannot be contradicted by evidence alunde.14 Payment

1895, SS 4189, 4190, is not officer authorized to Stat. at L. 1381, c. 854), affdavit of nonpay-execute and return execution issued from 1ement is unnecessary until after lapse of 12 justice court, or to make entry thereon that years fixed by statute as life of judgment.

will arrest running of dormancy statute. Id. Simpson v. Ninnix, 30 App. D. C. 852. Execution merely filed by clerk and memor- 8 Ann. St. 1906, p. 2058, authorizing as- "amdum of execution made on docket is not "signments and providing that "issured as required by statute and does not "asignments properly recorded" vest title prevent judgment from becoming dormant. In the assignee, and authorizing action in the "McKeithen v. Blue \[N. C.\] 62 SE 769. "name of the assafree, authorizes action by "$. Common law and statute of 2" Westmin- "the assafree on the judgment but not scire ster, applying to scire facias are in force in "facias to revive it in his own name." Bick Colorado from 1861, save as otherwise pro- "v. Robbins \[Mo. App.\] 111 SW 612. An exc- "vled by statute." Collin County Nat. Bank v. Hughes \[C. C. A.\] 155 F 839. After a "judment cannot maintain notice or scire "lapse of five years the appropriate remedy "facias to revive it." The proceeding must be of the judgment creditor to apply for leave "In the soe name of the survivor. Crim v. to sue on the judgment. Partridge v. Moyn- \[Rhinehart \[V. Va.\] 63 SE 8212, 113 NYS 539; Id. 111 NYS 31. The "status of California contain two remedies "vlsi" of dormant judgment upon service by "for enforcement of dormant judgment: first, publication, is not unconstitutional." White an action on judgment to be brought with." "Ses \[Neb.\] 113 NYS 301. Code Civ. Proc. in period of five years, and second, a statutory proceeding for leave to issue execution." Judment and authorizes revival of such "C. Code Civ. Proc. 6 &85. In "Rebman", C. 300 Argument against nonrefestions upon service C. A.\] 150 F 758. In Alabama residents of a "by publication. Id." Weaver v. Webb, "Gat & Kellogg, 3 Ga. petition in the nature of a bill of revive for the effectuation of a decree abating a null- "v. Fahauber \[Neb.\] 117 NW 702. Defense sanc and perpetually enjoining the same "that judgment is shown by evidence in bill "Deev v. State \[Ala.\] 46 S 848. A bill against "of exceptions to be erroneous cannot be "the assignee of the person against whom the "defense" as a defense "in a scire facias" proceed- "defence was rendered need not allege that he "hag to revive the judgment. Reed v. Waterbury National Bank, 118 NII. App. 165. "G. Reed v. Waterbury Nat. Bank, 128 NII. App. 165. "St Paul Harvester Co. v. Faulhaber \[Neb.\] 117 NWV 702. On a sciro "\[Neb.\] 117 NWV 702." Collin County Nat. Bank v. Hughes \[C. C. A.\] 155 F 389. "Jadment, 21, 1848 (P. L. 376), to revive "judment, affdavit of defense of party "under Ky." St. 1803, 8 2548, after "years as to "sought to be brought in as terte tenant, aver- "a surety, where no execution is issued or "neg that such party has never held and does "prosecuted in good faith during such period." not now hold any property which he derived "Beev v. Thishman's dmt" \[Fey.\] 113 NW 857. Proceeding to revive a judgment held barred "C. \[Prab.\] 11 A ."where not brought within "Ix", For want of jurisdiction. St. Paul "such period before entry thereon." Hibma \[Fra is presumed if pleaded and the judgment creditor has the burden to rebut it.17 The only issues raised by a plea of nul tiel record are whether there is such a record and whether the judgment is void for want of jurisdiction,18 and the defendant is not entitled to a jury trial thereon; 19 nor is one entitled to a trial by jury where the only plea, except that of nul tiel record, is one upon which no evidence was offered and would in any case have to be tried by the record alone.20 The record of the judgment is admissible without proof of its genuineness.21 In form and effect it is merely a judgment of revival and not of recovery.22 The effect of the judgment is to adjudicate all questions necessarily involved,23 but it does not impart any validity to a void judgment.24 It is generally held that when a defendant answering to the writ of scire facias pleads matter which goes to his personal discharge, or any matter which does not go to the writ or to the nature of the writ or pleads such matter as constitutes a bar to the action against himself only, and of which his codefendants could not take advantage, such defendant may be discharged and the judgment revived against the other defendant or defendants.25

Footnote 23: https://www.cid.com/cid/

### 12 Cur. Law. Judgments SS 11.

ment was rendered.29 An assignment carries with it the claim upon which the judgment is based30 and all the rights of the assignor,31 and the assignee may maintain action on the judgment in his own name.32 Objections to the assignment cannot be raised after judgment in favor of the assignee.33 The assignee stands in no better position than his assignor,34 and, a judgment being a non-negotiable chose in action, the assignee takes it subject to all the equities of the debtor against the assignor at the date of the assignment.35 Where a judgment debtor has notice of an assignment of the judgment, an attempted release by the assignee does not affect the assignee nor vest any rights in the debtor.36 A fraudulent assignment will not avail the assignee.37 Assignment is essential to the acquisition of an interest in a future judgment.38 $ 11. \_Payment, discharge and satisfaction.\_See 10 C. L. 803-- Payment may be made either to the party primarily entitled thereto or to his duly authorized representative.39 In some states it is provided by statute that payment is presumed after the lapse of a prescribed period.40 The filing of a satisfaction piece is prima facie evidence of payment.41 A discharge in bankruptcy to a firm will not discharge a judgment against an individual member.42 Payment of a judgment out of proceeds of sale of exempt property on execution satisfies it.48 The holder of a judgment

### 20. King v. Miller \[Or.\] 97 P 542. Assign-

ment carries with it the cause of action upon to set-off against partner's interest. McWatch the judgment is based. Feinberg v. Manus V. Cash \[Tex.\] 108 SW 800.

Where judgment creditor had no notice of unrecorded deed, his assignee who had such notice will be protected. Feinberg v. Stearns \[Fla.\] 47 S 197.

Judgment is chose in action and can be assigned in writing by administrator of deceased judgment creditor so that assignee may use thereon in his own name. Manson v. Peaks, 103 Me. 430, # 690. Assignment of judgment properly admitted in action by assignee to enforce it, without proof of execution thereof. McCorrick v. National Bank of Commerce \[Tex., Civ. App.\] 106 SW 147.

After an otherwise valid judgment in favor of such assignee in action upon original judgment, validity and efficacy of assignment cannot be questioned. Manson v. Peaks, 103 Me. 430, # 690.

### 34. Judgment may be reversed after assignment.

**must**, King v. Miller \[Or.\] 97 P 542. But where it is reversed after assignment, he may recover what he paid for it on the ground of failure of consideration or continue suit on the cause of action. B. & C. Comp. $ 38. Id.

**35**, McManus v. Cash & Luckel \[Tex.\] 108 SW 800. This rule applies to judgment on negotiable note. Selden v. Williams, 108 VA. 642, # 25 SE 380. Code 104, # 3293, #300, relative to effect of failure to plead a defense, held not to preclude judgment debtor from setting up equities against assignee of judgment, though they did not defend proceeding in which judgment was obtained, nor proceedings to revive it. Id. Where payee of note deposited it as collateral and holder recovered judgment against maker who paid amount it was given to secure, they were not estoped to set up equities against assignee as to balance because they failed to defend certain changery proceedings to subject their property to lieu of judgment. Id. Where firm recovered judgment and orally assigned one-half interest therein and thereafter debtor recovered judgment against one

### 13 Cur. L.-29.

### 14 Cur. L.-29.

is entitled to but one satisfaction.44 The pendency of an appeal from a judgment does not prevent the judgment debtor from paying a judgment or the judgment creditor from satisfying the same of record.45 The filing of a remittitur nullifies the judgment and requires entry of a new one, the payment of which operates as a discharge.46 Entry of satisfaction of judgment induced either by fraud or by mistake may be stricken by the court on notice to the parties and proof of the facts.47 Such an application is addressed to the discretion of the court.48 The holder of the legal title to a judgment is a necessary party where the satisfaction of a judgment is sought to be set aside for fraud.49 The mere fact that the owner of a judgment receives assets of the judgment debtor is not alone sufficient to render such assets applicable to the payment of the judgment.50

Footnote 44: Where owner of mortgage which was first lien foreclosed and land was sold and surplus remained in his hands, and thereafter was prevented the former judgment by owner of judgment which was lien inferior to assignment for the express purpose of set-mortgage issued execution and purchased property at execution sale for amount of his judgment, and execution was returned satisfactory.47 In many states it is provided by statutes that judgments in a sum certain shall bear interest.58 A debtor is

## 12 Cur. Law. Judgments & 14.

not liable for interest on a judgment while its payment is restrained by injunction\[59\] unless he has derived some advantage from the use of the money.\[60\] Generally the judgment creditor will not be allowed by his own acts to prolong the period for the running of interest by neglecting to take the steps provided by law to secure payment.\[41\] The rate of interest is regulated by the statute.\[62\] Interest may be compounded under some statutes in case of successive appeals.\[43\] When interest is allowed by way of a penalty, the allowance of an excessive rate amounts to the imposition of an excessive penalty.\[64\]

SS 14. \_Enforcement of judgment.\[58\]\_C. L. \[50\]_C. L. \[50\]_--Proceedings to enforce judgments by creditor's suits,\[58\] exception and other final process\[66\] are treated elsewhere, as is also the enforcement of dormant judgments\[67\] and relief against the enforcement of judgments.\[68\] A judgment may be enforced by an original bill in equity,\[69\] notwithstanding relief might be obtained at law by garnishment proceedings,\[70\] but such a bill will not lie where there is no equitable necessity therefor.\[71\] In Montana a money decree in equity may be enforced in the same manner as a judgment at law,\[72\] And so also in Minnesota as to certain decrees.\[70\] A restraining order may be enforced only against the bodies of the offenders.\[14\] Nonprejudicial irregularities are unavailable on a collateral attack upon the enforcement proceedings.\[71\]

a certain sum of money shall be ascertained to be due, amount fixed by a decree in account all judgements shall bear interest from counting held to bear interest. Brown v. Rogers \[S. C.\] 61 SE 440. Under Rev. St. \[Rey St. 1895, art. 3106, providing that all judgments, are expert certain ones, shall bear interest at 6 per cent, judgment on Insurance policy for face thereof and statutory damages held to the superne court. Arkansas Southern R. Paul Reserve Life Ins. Co. v. Jay \[Tex, Civ. App.\] 109 SW 116. Under Rev. St. \[Rey St. 1895, art. 3106, judgment against city for amount due on warrants bears Interest, City of San Antonio v. Alamo Nat. Bank \[Tex. Civ. App.\] 114 SWV 809. \[Sph. Phoenix Ins. Co. v. Carey, 80 Conn. 426, 68 A 893. \[Sph. Phoenix Ins. Co. v. Carey, 80 Conn. 426, 68 A 893. \[Sph. Phoenix Ins. Co. v. Carey, 80 Conn. 426, 68 A 93. \[Sph. Phoenix Ins. Co. v. Carey, 80 Conn. 426, 68 A 93. \[Sph. Phoenix Ins. Co. v. Carey, 80 Conn. 426, 68 A 93. \[Sph. Phoenix Ins. Co. v. Carey, 80 Conn. 426, 68 A 93. \[Sph. Cambridge\]. Emiling of amount of judgment with other funds does not affect liability for interest. Phoenix Ins. Co. v. Carey, 80 Conn. 426, 68 A 93. \[Sph. Cambridge\]. Emiling of amount of judgment with other funds raises presumption of use. Id. \[Sph. Under Code Civ. Proc. 8 269, providing that interest shall be allowed on judgment of court of claims from date thereof until twentieth day after comptroller is authorized to issue warrant for payment thereof, or un-til payment if payment be made sooner, but that no such judgment shall be paid until copy thereof shall be filed with comptroller, where claimment appealed instead of films copy of judgment with comptroller, and such appeal failed, interest was allowable only until twentieth day after date of judgment, the comptroller having at all times been ready and able to pay judgment as rendered. Evers v. Glynn, 110 NYS 405. \[Sph. U. S. Nat. Bank v. Waddingman \[Cal. App.\] 98 P 1046. Under Cobbery's Ann. St. 1803, 6727, judgment draws 7 per cent interest from date of rendition, though founded upon contract for less amount. Fortsmouth Sav. Bank v. Yeiser \[Neb.\] 116 NWV 38, Judgment bears interest at rate not to exceed 6 per cent. Barber Asphalit Pay. Co. v. Field \[Mo. App.\] 11 SWV 907. Rate on foreign judgment is controlled by law of state where judgment was rendered. Britton v. Chamberlain, 234 III. 246, 84 NE 895. \[Sph. Under Kirby's Dig. 1 5 5887, providing to be due, amount fixed by a decree in account all judgements shall bear interest from counting held to bear interest. Brown v. Rogers \[S. C.\] 61 SE 440. Under Rev. St. \[Rey St. 1895, art. 3106, providing that all judgments, are expert certain ones, shall bear interest at 6 per cent, judgment on Insurance policy for face thereof and statutory damages held to the superne court. Arkansas Southern R. Paul Reserve Life Ins. Co. v. Jay \[Tex, Civ. App.\] 109 SW 116. Under Rev. St. \[Rey St. 1895, art. 3106, judgment against city for amount due on warrants bears Interest, City of San Antonio v. Alamo Nat. Bank \[Tex. Civ. App.\] 114 SWV 809. \[Sph. Phoenix Ins. Co. v. Carey, 80 Conn. 426, 68 A 93. \[Sph. Phoenix Ins. Co. v. Carey, 80 Conn\* 15. _Audita querella_.See 10 C. L. 506

- 16. _Actions on judgment_.See 10 C. L. 506--Actions on judgments must be brought within the period prescribed.\* A limitation on final judgments is not a limitation on interlocutory decrees,17 and a limitation on the issuance of execution is not a limitation on an action on the judgment.78 All proper and necessary parties should be joined.79 The complaint should conform to statutory requirements.\* It is not always necessary to allege the date of the judgment.81 Where a judgment is assailed for want of jurisdiction, but it appears just and no defense is shown, judgment for plaintiff is proper.82
- 190. _Judicial Notice, see latest topical index._
- 1. _Occasion for and Nature of Judicial_.
- 2. _The Petition, Order, Writ, or Decree,_.
- 3. _Levy, Selvare, Appraisal, and the Like,_.
- 453. _Levy, Selvare, Appraisal, and the Like,_.
- 453. _Lovy, Selvare, Appraisal, and the Like,_.

13 Cur. Law. JUDICIAL SALES SS 6. 453

SS 1. \_Occasion for and nature of judicial sales.\_See 10 C. L. 507.--A judicial sale is a sale made by order or decree under the direction of a court having competent authority ${}^{st}$ and requiring confirmation to become effective.8 The term is applicable to a chancery foreclosure,' the foreclosure of a tax lien,9 a partition sale,9 or a receiver's sale.' A court having jurisdiction of a corporation by consent has authority to order a sale of patents owned by the corporation to satisfy a decree against it.9

SS 2. \_The petition, order, writ, or decree.\_See 10 C. L. 507.--In Pennsylvania a judicial sale of real estate is now effected by petition and citation, answer and replication in the court of common pleas.9

SS 3. \_Levy, seizure, appraisal, and the like.\_See 5 C. L. 578

SS 4. \_Notice and advertisement of sale.\_See 10 C. L. 507.--The method of advertisement is governed by. statute.10

SS 5. \_Sale and conduct of it and return.\_See 10 C. L. 507.--Although the place of sale is usually prescribed by statute,11 a decree authorizing an administrator to name the place of sale is valid.12 A sale of the land covered by a deed of trust may be made by the trustee.13 A sale of the property en masse is proper where a division is impracticable14 or is not requested.15 An agreement to chill a judicial sale and stifle competition is illegal,16 but an agreement to raise the means of payment by contribution or to divide the property for the accommodation of the purchasers is valid.17

SS 6. \_Confirmation and setting aside sales.\_See 10 C. L. 508.--The confirmation is the judicial sanction of the court.18 The order, being a judicial act,19 operates to cure

Mechanics' Liens, 10 C. L. 814; Partition, 10

10. Sheriff may select any paper he pleases, subject only to the statutory re- 12 Laured Oil & Gas Co. v., Galbreath Oil & Gas Co. (C. C. A.) 165 F 162. Order empow- 12 Parting guardian who desired to lease wards & county. Augustus v. Lynd, 7 Ohio N. P. (N.)

property to file petition referable to master & does not empower guardian to sell or lease, and sale by such guardian without authority & do not, or, or, or, or, or, or, or, or, or, or, or,, or, or,, or,, or,, or,, or,, or,, or,, or,, or,, or,,, or,, or,,, or,,, or,,, or,,, or,,, or,,, or,,, or,,, or,,, or,,, or,,, or,,, or,,, or,,,, or,,, or,,,, or,,, or,,,, or,,,, or,,,, or,,,, or,,,, or,,,, or,,,, or,,,, or,,,, or,,,, or,,,,, or,,,, or,,,,, or,,,,, or,,,,, or,,,,, or,,,,, or,,,,, or,,,,, or,,,,,, or,,,,,, or,,,,,, or,,,,,, or,,,,,, or,,,,,,, or,,,,,,, or,,,,,,, or,,,,,,, or,,,,,,,, or,,,,,,,, or,,,,,,,,, or,,,,,,,,, or,,,,,,,,,, or,,,,,,,,,,, or,,,,,,,,,,,,, or, 454 JUDICIAL SALES SS 6. 13 Cur. Law. irregularities20 and authorizes a deed.21 The statute of limitations does not run against the sale until confirmation.22 An order of confirmation made by a district judge who is disqualified is void.23 An owner of property who moves the court to deny confirmation because of inadequacy of price and offers to increase the bid on re-sale admits the jurisdiction of the court and the justice of the decree of sale.24

\_Refusal of confirmation or setting aside of sale.\_See 10 C. L. . .

- 12 Cur. Law. JUDICIAL SALES SS 6. A court of chancery has inherent power to set aside sales made by its order.20 Inadequacy of price is not sufficient to set aside a sale-unless so great as to establish fraud.30 Thus the fact that the property brought considerably less than the appraised value,31 or that it brought less than the guaranty made to the court as to the price that would be paid if the lands were resold,32 is insufficient. The owner can object if the sale is unfairly made33 or is for a grossly inadequate price,34 but such objections should be made before confirmation.35 An objection that the petition in the action did not state a cause of action cannot be relied upon by the purchasers to defeat confirmation,36 and purchasers who were not prejudiced cannot complain because the property was sold en masse.37 An objection may be based on the invalidity of the decree,38 but the purchasers cannot object because of the existence of certain liens when such sums are payable out of the proceeds of the sale after satisfying the judgment.39 A sale cannot be set aside in part.40 Aequiescence by accepting the proceeds precludes a setting aside.41 Fraud vitiates the sale,42 but mere irregularities are insufficient.43 A judgment debtor cannot have a sale set aside because the purchaser has not completed his payment.44 The manner of seeking to vacate a confirming order and to obtain a resale is not important unless new rights have intervened.45 The interest of the complainant should be alleged,46 and 40. Judgment an entirety. District of Cliffson v. Pflrman, 33 Ky. L. R. 529, 110 SWV 406, of far dealing (Stamp v. Martin, 72 K.Y. 19 Bush.) 285; Alma s Doepke Co. v. Gates App. 114 SWV 878. Motion to set aside will \[Ky.\] 32 SWV 1088).-Adapted from 113 Am. not be granted after sale and acceptance of st. Rep. 147. 28. Court is vendor, and power unaffected by Cobber's Ann. St. 1903, **SS 10,644-10,691**. Prudenthal Real Estate Co. v. Hall, 79 Neb. 805, 116 NWF 40.
- 20 Whether property bld in by party to suit or stranger. Butters v. Butters \[Mich.\] 15 Det. Leg. N. 447, 117 NVV 203. Court has power to vacate order of confirmation at same term at which it was rendered. Indiana & Arkansas Lumber & Mfg. Co. v. Milburn \[C. C. A.\] 161 F 531.
- 30 La Fitte v. Salisbury, 43 Colo. 248, 95 P
- 1055 Abbott v. Beebe, 226 IL 41, 417, 80 NE 991; Bowden v. Haidley \[Towa.\] 118 CNV 688; Dilley v. Jasper Lumber Co. \[Tex. Clv. App.\] 114 SWV 878. Consideration sufficient in view of unsetted times and fact that land was in-cumbered by life estate. Ladd v. Craig \[Miss.\] 47 S 777. Sale of land for 83,600 after panic of 1838 will be upheld, though cost was $4,300. Leavell v. Carter \[Ky.\] 112 SWV 1118.
- 31 Abbott v. Beebe, 226 IL 417, 80 NE 991.
- 32 Where costs would probably wipe out increase. Abbott v. Beebe, 226 IL 417, 80 NE 991.
- 33, 34 Robertson v. McClintock \[Ark.\] 110 SVV 1052.
- 35 Inadequate price as fraudulent in re-civer's sale. Dilley v. Jasper Lumber Co. \[Tex. Clv. App.\] 114 SWV 878. Exceptions to the report of sale cannot be allowed after an order of confirmation becomes final. Circuit court continuous, and order final after 60 days. Sinder v. Conrad, 33 Ky. L. R. 728, 111 SVV 287.
- 36, 37 West v. McDonald \[Ky.\] 113 SWV 872.
- 38 Objection that defendant in action was of unsound mind and that therefore confirmation should be denied held not sustained by evidence. West v. McDonald \[Ky.\] 113 SWV 872.
- 39 West v. McDonald \[Ky.\] 113 SWV 872.
- 40 Judgment an entirety. District of Cliffson v. Pflrman, 33 Ky. L. R. 529, 110 SWV 406, of far dealing (Stamp v. Martin, 72 K.Y. 19 Bush.) 285; Alma s Doepke Co. v. Gates App. 114 SWV 878. Motion to set aside will \[Ky.\] 32 SWV 1088).-Adapted from 113 Am. not be granted after sale and acceptance of an overplus, though motion pending at sale and fact known to purchase. Lupo v. Pruzier, 130 Ga. 409, 60 SE 1003. Acquies-cense for several years in sale of corpora- 805, 116 NWF 40.
- 20 Whether property bld in by party to suit or stranger. Butters v. Butters \[Mich.\] 15 Det. Leg.

a wife whose inchoate right of dower is terminated by the sale cannot bring the action.\[47\] An action to set aside may be barred by limitations\[48\] or laches.\[49\] Where the anonnt guaranteed by the first purchasers is deposited with the court before the sale has been set aside, it comes in apt time,\[50\] but not so when it comes after the sale has been set aside and an appeal allowed.\[51\]

\_Costs.\_See 10 C. L. 509

\_Proceedings on resale,\_See 8 C. L. 516

SS 7. Completion of sale; deeds, payments and credits.See 10 C. L. 509...In some states the recials on the deed are prima facie evidence of the validity of the sale.\[82\] A deed to the supposed heirs of a purchaser by a register in chancery after a lapse of fifty years is invalid.\[53\]

SS 8. \_Title and rights under sales and deed. A. Defects and collateral attack.\_See 10 C. L. 510--A void sale is subject to collateral attack.\[54\] The proof necessary to overthrow the decree must be overwhelming.\[65\]

(SS 8) \_B. Outstanding titles and interests.\_See 10 C. L. 510

\_The rule of caveat emptor_See 10 C. L. 510 applies to judicial sales;\[88\] but does not prevent a purchaser from enforcing the legal or equitable rights preserved to him.\[57\]

(SS 8) \_C. Rights of parties under sale and in proceeds.\_See 10 C. L. 511--As a general rule the title to the property sold passes upon confirmation and the payment of the purchase money,\[88\] and relates back to the day of sale.\[69\] If the judgment is set

having life estate and complainant no inter-

est. Id. Complaint insufficient to show

absolute title of wife in homesetead under

Code 1896, $ 2071, when homesetead constitutes all real property in state owned by

\[Neb.\] 118 NW 773. Evidence sufficient to husband at death. Id. Complaint insufficient

to show absolute title to land in wife under

Code 1896, $ 2091, 2100, providing for setting

**55.** Parcal proof of lack of service of proces-

maining at death is less than exemptions. Id.

47. Bowden v. Hadley \[Iowa\] 116 NW 689.

01. Statute limiting time to recover land

cold at judicial sale inapplicable where court

never acquired jurisdiction to make sale. Indiana & Arkansas Lumber & Mfg. Co. v. Brinkley \[C. C. A.\] 164 F 962. Attack on

sale of land under decree in overdue tax suit

is barred by 5-year limitation statute

scribed by Kirby's Dig. Ark. $ 5060. Indiana & Arkansas Lumber & Mfg. Co. v. Milburn \[C. C. A.\] 161 F 963.

49. Doctrine of laches inapplicable to bar

suit to quiet title where neither party in possession, and purchasers at sale for taxes

merely continued paying taxes. Indiana & Arkansas Lumber & Mfg. Co. v. Milburn \[C. C. A.\] 161 F 581. Laches inapplicable. Indiana & Arkansas Lumber & Mfg. Co. v. Brinkley \[C. C. A.\] 164 F 963.

50, 51. Abbott v. Beebe, 226 Ill. 417, 80-NE

52. Recials of deed held to show prima facie title, that court had jurisdiction, and

that elerk acted under due authority in making meded, under Acts 1907, p. 1131, c. 334, $ 1,

3, making conveyances by public officers

prime face evidence of facie therein recited,

etc. Hill v. Moore \[Tenn.\] 113 SW 788.

53. Sims v. Mobile, etc., R. Co. \[Ala.\] 46 S

01. Deed cannot be executed until judicial

determination of question as to who were

helrs of purchaser. Id. Deed executed on

decree which simply barred equity of re-

demption and let purchaser into possession. Id.

54. Order of confirmation by disqualified

district judge. Harrington v. Hayes County

\[Neb.\] 118 NW 773. Evidence sufficient to

show payment of consideration to administ

tators in collateral attack on judicial sale

55.\*\* Parcal proof of lack of service of proces-

ess insufficient. Ladd v. Craig \[Miss.\] 47 S 777.

56.\*\* Parcal proof of lack of service of proces-

ess insufficient. Ladd v. Craig \[Miss.\] 47 S 777.

57.\*\* Parcal proof of lack of service of proces-

ess insufficient. Ladd v. Craig \[Miss.\] 47 S 777.

58.\*\* Parcal proof of lack of service of proces-

ess insufficient. Ladd v. Craig \[Miss.\] 47 S 777.

59.\*\* Tarnow v. Carmichael \[Neb.\] 116 NWV 789.

501; City of Middlesborough v. Coal & Iron

Bank, 32 Ky. L. R. 469, 110 SW 355. Pur

chaser at sheliffs or commission aide, the rights of innocent purchasers will not be disturbed" unless the sale is v0:d for want of jurisdiction,61 or where a judgment against an infant is reversed.62 A purehaser of the assets of an insolvent corporation at a judicial sale does not assume the latter's obligations.63 Where an inheritance is partitioned and the proceeds divided among the heirs before the birth of a posthumous child, the latter may recover his interest from a remote vendee of the purchaser at such sale.64 A judicial sale of property for the satisfaction of the debts of the husband who is the owner of the fee-simple title terminates the wife's inchoate right of dower.65 If the property is impressed with a trust, it is enforcible against the purchaser.66 A resulting trust does not arise where one purchased land at a sale under a parol agreement to convey to another, unless the promisee furnished the purchase money or had an actual interest in the estate or a bona fide claim thereto.67 The redemption must take place within the statutory period,68 and the court cannot extend the right by neglecting to confirm the sale.69 Redemption may be barred by laches 79 or be refused when the owners were wrong doers.71

\_Rights in proceeds and on bid.See 10 C. L. 511_The highest bidder at a judicial sale acquires incipient rights 72 which become absolute on confirmation.73 Such a bidder is entitled to a judicial decision of his interest,74 and may be compelled to complete his purchase 75 though there is no remedy except in the action under which the sale was had.75 A purchaser is not excused from completing a sale because a building encroaches on another's land, when the owner of the adjoining property does not complain.77 If the sale is set aside, the purchaser may recover the sums which he advanced.78

Footnote 78: http://www.stsci.edu/~ JURISDICTION.

$ 1. Definitions and Distinctions, 458.

$ 2. Elements and Extent in General, 459.

$ 3. Legislative Power Respecting Jurisdiction, 400.

$ 4. Territorial Limitations, 400.

$ 5. Limitations Resting in Stuus of Subject-Mater or Status of Litigants, 461.

$ 6. Limitations Resting In Amount or Value In Controversy, 462.

$ 7. Limitations Resting in Character of Sub-Mater or Object of Action, 463.

$ 8. Limitations Resting in Character or Capacity of Parties Litigant, 465.

$ 9. Original Jurisdiction, 465.

$ 12. Accclusive, Concurrent and Conflict-

$ 13. Acquisition and Divestitute, 477.

$ 14. Objections to Jurisdiction, Inquiry

$ 12. Theory, and Presunptions Respect-

$ 14. Questions to Jurisdiction, Inquiry

$ 15. Definitions and distinctions.

$ 16. Definitions and Distitions, 468.

$ 17. Questions to Jurisdiction, 469.

$ 18. Definitions and Distitions, 468.

$ 19. Questions to Jurisdiction, 477.

$ 10. Questions to Jurisdiction, Inquiry

$ 11. Questions to Jurisdiction, Inquiry

$ 12. Theory, and Presunptions Respect-

$ 13. Questions to Jurisdiction, Inquiry

$ 14. Questions to Jurisdiction, Inquiry

$ 15. Questions to Jurisdiction, and Presunptions Respect-

$ 16. Definitions and Distitions, 468.

$ 17. Questions to Jurisdiction, Inquiry

$ 18. Questions to Jurisdiction, Inquiry

$ 19. Questions to Jurisdiction, Inquiry

$ 10. Questions to Jurisdiction, Inquiry

$ 11. Questions to Jurisdiction, Inquiry

$ 12. Theory, and Presunptions Respect-

$ 13. Questions to Jurisdiction, Inquiry

$ 14. Questions to Jurisdiction, Inquiry

$ 15. Questions to Jurisdiction, Inquiry

$ 16. Definitions and Distitions, 468.

$ 17. Questions to Jurisdiction, Inquiry

$ 18. Questions to Jurisdiction, Inquiry

$ 19. Questions to Jurisdiction, Inquiry

$ 10. Questions to Jurisdiction, Inquiry

$ 11. Questions to Jurisdiction, Inquiry

$ 12. Theory, and Presunptions Respect-

$ 13. Questions to Jurisdiction, Inquiry

$ 14. Questions to Jurisdiction, Inquiry

$ 15. Questions to Jurisdiction, Inquiry

$ 16. Definitions and Distitions, 468.

$ 17. Questions to Jurisdiction, Inquiry

$ 18. Questions to Jurisdiction, Inquiry
is the abstract power to try cases of the kind pending." The judgment of a court as to a matter outside its constitutional power is void," while if the case is within such power, but the court is merely prohibited from exercising jurisdiction on principles of remedial procedure, the judgment, though erroneous, will be binding until vacated." A final jurisdiction excludes any further jurisdiction in other courts."

SS 2. \_Elements and extent in general.\_See 10 C. L. 613--Essential to jurisdiction is a subject-matter upon which adjudication is regularly invoked " in a competent forum," either against adversary parties or in respect to the subject-matter itself," which must be at least constructively in court." Jurisdiction to afford a given kind of relief carries with it by implication power to do and decide all things necessary to effectuate the purpose for which the jurisdiction was conferred," but a court is without jurisdiction of matters not in substance or effect embraced within the issues in the case." The power of courts of law are limited to those recognized or defined by the common law or by constitutional or statutory provisions, either expressly or by inference from the nature and constitution of the tribunal." Courts of equity having

Kruegel v. Daniels \[Tex. Civ. App.\] 109 SWW

of replevin is so far a proceeding in rem

that until officer takes actual possession of

84. Regardless of question whether particlare these is nothing before court and title

cannot be determined. In re Aiton Mfg. Co., able before court, arising because of inher-

158 F 367. A court may establish and en-

force a trust in personality when either the

Richardson v. Ruddy \[Idaho\] 98 F 842. Cir-

subject-matter or the trustee is within its

cut court has jurisdiction of actions on con-

reach. Corporate stock. Gassert v. Strong

tract, and hence will be presumed to have

\[Mont.\] 98 F 497.

Jurisdiction of person and subject-mat-

United States Health & Ace. Ins. Co. Y. Clark,

ter vaus court with full authority to deter-

41 Ind. App. 345, 83 NE 760. District court

himle all questions arising in case and es-

held to have jurisdiction of subject-matter

settl to proper determination of the issues.

of trespass, though action was brought in

Taylor v. Hulett \[Idaho\] 97 P 37. Idaho

parish other than that in which tort was

committed. Bernstein v. Clark Stave Co.

within state, could, for that purpose, deter-

\[La.\] 47 S 158.

85,86. In re Clark, 185 Wis. 437, 115 NWW

837. Where in quo warranto court could not

legaily act because it would nullify proceded-

\[Mon.\] 98 F 497.

ings in court of co-ordinate jurisdiction.

Id.

87. Under Act May 16, 1907 (Laws 1907, p.

804, 8 19), conferring on county court final

jurisdiction in local option election

con-
tests, no appeal lies from such court. Say-

1or v. Duel, 236 Ill. 429, & 85 NE 119. See

peal and Review, 11 C. L. 118. See, also,

post, $ 9A.

88. See Process, 10 C. L. 1262; Appearance,

11 C. L. 256; Pleading, 10 C. L. 1173. See,

also, post, $ 13. Court must have cogniz-

ance of the class of cases to which the one

involved belongs. Sloan v. Byers \[Mont.\] 97

P 855. Municipal court held powersless to va-

cate default after full satisfaction of judg-

ment. Puegelman v. Armstrong, 110 NTS

967. A petition is sufficient to give jurisdic-

tion where it states the material facts necessary to enable court to hear and determine

the cause. McDanel v. Staples \[Tex. Civ. App.\] 128 SWP 596. Jurisdiction or castody

of specific property cannot be acquired by a court in proceeding containing no notice,

either in pleadings or elsewhere, of any pur-

pose to affect such property thereby. Lang

v. Choctaw, Oklahoma & Guif R. Co. \[C. C. A.\] 160 F 355.

$9. See Courts, 11 C. L. 925.

$9. Proper parties must be present. Sloan

v. Byers \[Mont.\] 97 P 855.

$1. See, also, post $ 12, Acquisition and D1-

vestiture. Under Rhode Island law, action

1
the once acquired jurisdiction of a cause for a particular purpose will retain it for complete relief, regardless of the existence of questions properly cognizable at law."55 Courts have inherent power to undo their own extra-jurisdictional proceedings and place the parties in statu quo."65

SS 3. \_Legislative power respecting jurisdiction.\_See 10 C. L. 518--Constitutional jurisdictions cannot be limited or enlarged by statute or rule unless the constitution so authorizes,"7 and all legislative enactments respecting jurisdiction must have proper regard for constitutional provisions in general,"8 for other superior laws,"9 and for adjoining jurisdictions.1 State statutes cannot extend or restrict the jurisdiction of federal courts,2 though they may enlarge equitable rights which will be enforced by the federal courts.3

SS 4. \_Territorial limitations.\_See 10 C. L. 514--All jurisdictions are bounded terrorially by either the limits of the state or nation 4 or those of the district or circuit for which they were established."

95. See Equity, 11 C. L 1235,

preme court of Porto Rico original jurisdiction of questions between Roman Catholic church and people or any municipality having previously required defendants to de-
affecting property rights, was within au-

thirty conferred on legislative assessments. v. Sanders \[Tex.\] 111 SW 648; Id. \[Tex.\] 12, 190, to legislate regarding juris-

Civ. App.\] 113 SW 558.

97. Acts seeking to confer original jurisdiction on circuit court in matters outside

Ponce v. Roman Catholic Apostolic Church,

limitations fixed by Const. 1901, SS 8, 142,

210 U. S. 296, 52 Law. Ed. 1068. Not violative

are void. Larkin v. Simmons \[Ala.\] 46 S or act July 80, 1886, prohibiting territorial

461. Under Const. $ 21, art. $, conferring on

legislatures from passing special laws regu-

probate courts jurisdiction in all matters of

prolate "and appointment of guardians,"

16.

legislature could confer on probate courts

power to investigate charge concerning de-

linguent children and make all necessary or

ders in relation thereto, as per act March 2,

1906. Ex parte Sharp \[Idaho\] 96 P 583. Section 97 of acts relating to elections (Hurd's

diction over lands of sister state. Robert v.

Rev. St. 1905, \< 46), giving circuit courts

and superior court of Cook county jurisdiction to determine contacts of election of may-

lands within boundaries of sister state. Id.

ors of cities, is not unconstitutional, constitution not limiting power of legislature to

of equity cannot be affected by state legislation. Louisville & N. R. Co. v. Railroad Com-

confer on such courts jurisdiction in addition

linsion, 157 F 94.

v. Flewelling, 235 Ill. 326, 85 NE 624. Legis-

lature can confer on circuit court jurisdiction of cases involving any amount. Detroit

Lumber Co. v. Petri \[Mich.\] 15 Det. Leg. N.

506, 117 NWP 80. Under Const. art. $, 18,

giving justices of the peace jurisdiction with

such exceptions and restrictions as may be

prescribed by law, legislature can withdraw

any cause from justices' jurisdiction. Id.

See, also, Junctions of the Peace, 10 C. L. 553.

If functions conferred upon mayor and judge

by Jones liquor law (98 O. L. 68) are minis-

terial, then $ 12 is unconstitutional, being an

attempt to confer original jurisdiction upon

the circuit court in excess of that limited

by Const. $ 6, art. 12. In re Pettition in Favor of Prohibiting Sale of Intoxicating Li-

quors v. Johnson, 9 Ohio C. C. (N. S.) 147.

98. Gen. St. 1906, 1200 et seq., and Laws

1907, c. 5706, amendatory of $ 1203, confer-

ring on county Judge's courts jurisdiction to

inquire into sanity of persons, commit

linsions, and appoint guardians, held not viola-

tive of state or federal constitution, as de-

priving of jury trial or due process of law.

EX parte Scudamore \[Fla.\] 46 S 279.

99. Act March 14, 1904, conferring on su

preme court of Porto Rico original jurisdiction of questions between Roman Catholic church and

lie church and people or any municipality

affecting property rights, was within au-

liver same to plaintiff. Texas Land & Irr.

thority conferred on legislative assessments. v. Sanders \[Tex.\] 111 SW 648; Id. \[Tex.\] 12, 190, to legislate regarding juris-

Altion and procedure of Porto Rico courts,

diction on circuit court in matters outside

Ponce v. Roman Catholic Apostolic Church,

limitations from fixed by Const. 1901, SS 8, 142,

210 U. S. 296, 52 Law. Ed. 1068. Not violative

are void. Larkin v. Simmons \[Ala.\] 46 S or act July 80, 1886, prohibiting territorial

461. Under Const. $ 21, art. $, conferring on

legislatures from passing special laws regu-

lating procedure in courts 12 Cur. Law. JURISDICTION SS 5. 461 SS 5. Limitations resting in situs of subject-matter or status of litigants.See 10 C. L. 614. While power to adjudicate upon a subject-matter which can have no existence save at a fixed place pertains to the courts erected for that place,8 other courts may have jurisdiction for the purpose of adjudicating personal rights of parties present in court which are in respect to, but do not directly affect, such subject-matter,' and if a court has jurisdiction of the parties and the general subject-matter of the suit, the fact that the res or subject-matter involved in a defensive issue is beyond its territorial jurisdiction does not deprive it of power to grant relief.8 Jurisdiction may be affected by the nonresidence or alienage of the parties " or by their absence,10 or by the place where the cause of action arose;11 but as a rule these considerations are not controlling as to transitory actions12 or proceedings in rem,18 though alienage or diversity of citizenship often become important in federal practice.14 Domestic-

6. Action to quiet title to reality must be $ 341, providing that for purpose of Jurisdiction of county court a domestic corporation Hulett \[Idaho\] $7 P 37. Suit to settle water rights held in nature of action to quiet title. Ilshed by statute or is actually located in: Id. Court of sister state cannot by decree directly affect title to land in Illinois. Macdonald V. Dexter, 234 Ill. 517, 85 NE 209. Though parties are in court, jurisdiction is inadequate to try title to land in another state, parties contending at arm's length and there being no question of specific perform-ance, enforcement of trust, or doing of any act binding on conscience of a party because of previous dealings. Sutton v., Archer \[Miss. 146 S 705. Mississippi court held with-out jurisdiction over land made part of state of Arkansas by change of river channel. Id.

1. Equity acting in personam has plenary power to affect title to reality in foreign jurisolens by sale and conveyance thereof by its master in suits to execute trusts, undo frenga attachment. Vance v. Pullman Co., frauds, or enforce contracts regarding such reality, having acquired jurisdiction of persons interested. Byrne v. Jones \[C. C. A.\] 159 F 321. Court of sister state could enforce agreement to divide profits from sale of land situated in Illinois. MacDonald v. L. 521, n. 31. Dexter, 234 Ill. 517, 85 NE 209. Suit by stockholders of a foreign corporation for recovery of assets and profits held in effect a proceeding in rem to establish a trust against certain other corporations as to certain malings property, giving equity jurisdiction, though title to foreign really was incidentally involved, parties against whom relief was sought having appeared. Grant v. Greeen, 111 NYS 1089. While court cannot reach and modify deed recorded in a sister state, where grante appears in court to enforce rights thereunder against grantor, court may, at instance of defendant, complerration so as to express actual agreement. Lyndon Lumber Co. v. Sawyer, 155 WIs. 525, 116 NWP 256. If court has jurisdiction of parties, it may decree foreclo-sure of chattel merstage, though property be beyond its territorial jurisdiction. McDan-iel v. Staples \[Tex. Civ. App.\] 113 SV 596. 8. In suit to settle water rights, fact that defendant set up right to divert water up stream in adjoining state did not deprive court of power to determine priorities and adjudicate plaintiff's rights. Taylor v. Hul-et \[Idaho\] $7 P 37.

1. Action for commissions for sale of land located without state is maintainable, though parties are nonresidents. McFadden v. J. Hynes, 112 NYS 912. Under Code Civ. Proc. 113, 85 NYS 912. 113. 114. 115. 116. 117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 160. 159. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 199. 199. 200. 210. 221. 231. 241. 241. 241. 241. 241. 241. 241. 24 462 JURISDICTION SS 6. 12 Cur. Law. courts can have no jurisdiction over foreign sovereigns or property owned and operated by them for public purposes.18 Where a wrong works injury in a state other than that in which it was committed, the courts of either state may grant relief provided jurisdiction in personam can be acquired.18

SS 6. _Limitations resting in amount or value in controversy._ See 10 C. L. 616. Division of jurisdiction between courts is often accomplished by fixing a maximum 17 or minimum amount 18 "involved," "claimed," "demanded," 19 or in "dispute" or "controversy," 20 and these amounts include or exclude interest and costs in accord-

15. Action for injuries from operation of land for nonpayment of taxes amounting to railway operated by King of England for only only $7.92. Smith v. Wells, 106 Md. 526, 68 public purposes in Canada. Mason v. In- 134.icrobial H. Co., 197 Mass. 349, 83 NE 876. Michigan: Under Comp. Laws, $10,789, 16. Diversion of water in Wyoming result- 10,789, circuit courts specified therein have ing injury in Idaho could be inquired into jurisdiction to enforce lien on certain water by Idaho court where defendants were served grant for material furnished, regardless of in Idaho. Taylor v. Hulett \[Mahab\] 97 P 57. Amount thereof. Detroit Lambert Co. v. The 17. Jurisdiction of justices of the peace 10 C. L. 553. 17.17 NWV as depending on amount in controversy, see 80. Could enforce lien for less than $100. Justices of the Peace, 10 C. L. 553. 16. 18.

ance with the terms of the various statutes.\[21\] The amount involved is usually determined by the amount demanded by pleadings \[22\] unless it is clear as a matter of law that such amount cannot be in dispute or that it is merely colorable or fictitious.\[23\] Unless a pleading of itself shows fraud, the opposite party must allege and prove it.\[24\] Ordinarily distinct claims cannot be added so as to confer jurisdiction,\[25\] nor can a single cause be split and jurisdiction acquired of its parts.\[26\] In ancillary proceedings, the amount in controversy often becomes unimportant.\[27\]

### Limitations resting in character of subject-matter or object of action

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\[22\]

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\[25\]

\[26\]

\[27\]

\[28\]

\[29\]

\[21\]

\[22\]

\[23\]

\[24\]

\[25\]

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\[27\]

\[28\]

\[29\]

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\[22\]

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\[28\]

\[29\]

\[21\]
464 JURISDICTION SS 7. 13 Cur. Law.

and passed upon below,\[33\] saved for review,\[34\] and assigned for error in the appellate court,\[35\] questions of law decided erroneously or contrary to other decisions,\[36\] the construction of statutes,\[37\] taxes or revenue,\[38\] penalties or forfeitures,\[39\] certain contractual \[40\] or tort liabilities,\[41\] and where any kind of equitable relief or cognizance is sought.\[42\] More often the statute merely prescribes what jurisdiction inferior courts

v. Cunningham, 111 NYS 199. Action to re-cover award for land owned by plaintiff but

immin involved. Chudnovski v. Eckels, 332 by mistake paid to defendant held to involve

ill. 512, 83 NE 846. Act held not invalid as title where answer denied plaintiff's title.

denying equal rights. Id. Evidence in case-Taylor v. Gilleran, 111 NYS 173. Action

tion for conversion of a piano held to bring

should have been dismissed though defendant

case within Laws 1902, 580, 139, prohibit- and did not file bond under Laws 1902, 581 179, ing actions in municipal court of city of New

180, providing for such thing where title is

York on written centrates of conditional sale

set up for first time in answer, since in order of personality, except to forcele lien. Jacob-

to maintain action plaintiff would be com-

v Columbia Storage Warehouses, 109 NYS-

pelled to show title in himself. Id. Plain-

1015.

iff could not contend defendant did not

41. Passenger's action against carrier held: dispute where evidence offered by defend

for battery and not for breach of contract,

ant showing his title was excluded on plain-

and so not within jurisdiction of municipal

tiff's objection. Id. Action for loan broken-

court. Miller v. Brooklyn Kleights R. Co.,

er's services held not to involve title to

111 NYS 47. Error to admit evidence in sup-

reality so as to divest jurisdiction. Heyva v.

port of action for malletions prosecention.

Lopardo, 111 NYS 663.

joined with another action cognizable by

reality. In return?a Estate \[Mo.\] 111 SW

113 NYS 18.

534. Under Code 1896, $ 3176 (CIV Code 1907,

Statory, exclusive jurisdiction of domes-

$ 5220), denying to produce court jurisdic

tic courts, see post, $ 9A.

tion of partition proceedings when adverse

42. Terms "civil actions" as used in praca-

claim or title is asserted, produce court is

tice act includes actions for equitable or

without jurisdiction if adverse claim or title

legal relief, or both (Luddington v. Merrill

is asserted in good faith, unless it is clear

\[Conn.\] 71 A 504), hence all courts to which.

claimant had neither actual possession claim-

civil actions as defined by the act may

myfversely nor superior title. Layton v.

crily be made returnable, except justice

Campbell \[Ala.\] 46 S 775. If clear he has

conturs, may in absence of express law to. neither, court has jurisdiction despite good

contrary apply both legal and equitable rem

faint of adverse claim. Id. Question of

title to land as between widow and heirs of

Circraft court has general equity jurisdicdc-

deced cannot be determined by proceed-

tions to entertain action to partition persons

ings for settlement of the estate where sale

alty, appoint receiver, order property deliv-

is not required for payment of debts or leg-

ered to him, enter interlocutory decrees, and

acles, since generally question can be settled

only by direct action in law or equity in

the case or contumary of parties. Laing v.

which issues may be properly litigated.

Matteson v. Matheson \[Iowa\] 117 NWV 755.

**City court** of Miller county is without

\*\*31. As bearing on appellate jurisdiction,

eauty jurisdiction, Geer v. Cowart \[Ga.

see Appeal and Review, 11 C. L. 118. See,

App.\] 62 SE 1054. Set-off involving equitable

lag, 10 C. L. 118.

lag, 10 C. L. 119.

lag, 10 C. L. 120.

lag, 10 C. L. 121.

lag, 10 C. L. 122.

lag, 10 C. L. 123. See, 10 C. L. 124.

12 Cur. Law. JURISDICTION SS 9A. 465 shall have, impliedly excluding all else.43 By statute the jurisdictions of courts of bankruptcy,44 courts of probate and the like,45 often become exclusive or at least primary.46 Special statutory or constitutional jurisdictions are limited to occasions and objects contemplated by the law creating them.47 That evidence in support of an action ordinarily cognizable by the court would be equally necessary in an action without the court's jurisdiction is not fatal.48 The division of jurisdiction between state and federal courts and the conflict of their jurisdictions are treated in subsequent sections.49

Courts have no power to control or supervise legislative or official administrative discretion,50 nor do they interfere with the management or proceedings of political parties except as authorized by statute.51

SS 8. \_Limitations resting in character or capacity of parties litigant.\_See 10 C. L. 523 SS 9. \_Original jurisdiction. A. Exclusive, concurrent and conflicting.\_See 16 C. L. 522 When by reason of any of the statutes or rules just considered 52 only one tri-bunal can act authoratively, its jurisdiction is exclusive.58 If two or more courts have jurisdiction, this is concurrent.54 When proceedings in one court interfere with

808. Though in summary dispossession proceedings, right to renewal of lease and waiv-out jurisdiction ratience matriate in matter of conditions were not available as basis for affirmative relief, they were equitable defenses which court could determine. Flanagan v. MacNutt, 113 NYS 42. 43. See post. # 9C. 44. See Bankruptcy, 11 C. L. 383. 45. Superior court has probate jurisdiction but can exercise it only on appeal from court of debate which has original jurisdiction, and on appeal superior court acts as a probe-bate court. Appeal of Woodward \[Conn.\] 70 A 452. Though supreme court will not entertain jurisdiction of suit to require an executor to account if that alone is involved (In re Parrell, 110 NYS 41), it will take jurisdiction if matters are involved of which supra-gate's court is without jurisdiction (Id.). Would retain jurisdiction of proceeding for accounting by, and settlement with, estate of deceased executrix, and her executor as such and in his individual capacity, though proceeding for accounting by executor was pending in surrogate's court. Id. 46. See, also, post. # 9A. 47. See post. # 9C. 48. Municipal court had jurisdiction of action on implied contract against husband for legal services rendered wife in separation action, though it was necessary to show that there was just cause. Beyer v. Hadden, 113 NYS 529. 49. See post # 9A, 11A. 50. See Constitutional Law, 11 C. L. 689. Compare Elections, 11 C. L. 1169; Elphawy and Streets, 11 C. L. 11702; Eminent Domain, 11 C. L. 1188; Municipal Corporations, 10 C. L. 881; Public Works and Improvements, 10 C. L. 1307, and kindred topics. Ruling of post three department that mall addressed to certain corporation shall be delivered to it and not to a corporation of similar name will not be interfered with merely because majority of letters are in fact intended for latter company. National Life Ins. Co. of U. S. A. v. National Life Ins. Co., 209 U. S. 871, 52 Law. Ed. 808. 51. Kump v. McDonald \[W. Va.\] 61 SE 909. Could not issue writ of prohibition against executive committee to prohibit recount of primary election ballots. Id In absence

13 Curr. L. 30. 465 shall have, impliedly excluding all else.43 By statute the jurisdictions of courts of bankruptcy,44 courts of probate and the like,45 often become exclusive or at least primary.46 Special statutory or constitutional jurisdictions are limited to occasions and objects contemplated by the law creating them.47 That evidence in support of an action ordinarily cognizable by the court would be equally necessary in an action without the court's jurisdiction is not fatal.48 The division of jurisdiction between state and federal courts and the conflict of their jurisdictions are treated in subsequent sections.49

Footnote 48: See Bankruptcy, 11 C. L. 383. 45. See Bankruptcy, 11 C. L. 383. 45. Superior court has probate jurisdiction but can exercise it only on appeal from court of debate which has original jurisdiction, and on appeal superior court acts as a probe-bate court. Appeal of Woodward \[Conn.\] 70 A 452. Though supreme court will not entertain jurisdiction of suit to require an executor to account if that alone is involved (In re Parrell, 110 NYS 41), it will take jurisdiction if matters are involved of which supra-gate's court is without jurisdiction (Id.). 584. Geer v. Covant \[Ga. App.\] 62 SE 1054. Amended charater of city of Kaimana-acoon construed and held to confer a municipal court justice exclusive jurisdiction of certain actions between residents of city, his jurisdiction in such cases not being merely concurrent with that of the other justices until expiration of latter's terms. Striding v. Daden \[Michel.\] 15 Det. Leg. N. 948. 118 NWP 740. State courts have sole jurisdiction of actions by trustes in bankruptcy to recover property except actions to avoid preferences or recover property fraudulently conveyed. Drew v. Myers \[Kob.\] 118 Nw 781. Constitutional jurisdiction of county court over matters pertaining to minors, idiots, estates of deceased persons, etc., is exclusive and can be exercised by no other court in state. Kennedy v. Pearson \[Tex. Civ. App.\] 466 JURISDICTION $ 9A. & 12 Cur. Law.

proceedings in another, there is a conflict of jurisdictions,58 and the court which first acquired jurisdiction retains it to the exclusion of the other.56 When similar proceed-

ly pursued. Dunbar v. Bourland \[Ark.\] 114 disturbing testimentary fund, jurisdiction SW 467.

Hinololol: Superior court of Cook county and circuit court of that country have concurrent greeneral jurisdiction. Cobe v. Guyer, 139 III.

With clerk of state district court as per App. 580; Kerr v. Flewelling, 235 III. 326.

85 NE 624. County court and circuit court have equal and concurrent jurisdiction in proceedings to ascertain compensation for private property taken for public use. Bell v. Mattoon Waterworks & Reservoir Co., 235 III. 218, 85 NE 214.

Kentucky: Though county court has jurisdiction to determine inheritance tax questions (Acts 1906, c. 22, **SS 13**, 14, 15), equity court may also require payment of such tax before distributing on estate. Barrett v.

Continental Reality \[Ky.\] 114 SW 750.

Nheligan: Courts of Chateviov county have concurrent jurisdiction of prosecution under Pub. Acts 1899, p. 128, Act No. 88, **SS 2**, for unlawfully having fish in one's possession on lake within jurisdiction of village of Manistuque. People v. Coffey \[Mich.\] 15 Det. Leg. N. 947, 118 NW 732.

Oklahoma: Criminal court of appeals, supreme, district and county courts, have concurrent original jurisdiction in habaeus cor-

pus. EX parte Johnson \[Ock. Corp.\] 98 P 461.

Wisconsin: Under Laws 1895, p. 66, c. 24, creating municipal court for city of Oshkosh and giving it concurrent jurisdiction with

circuit court in all cases of "crimes and misdemeanors" arising in the city, with certain exceptions, and vesting it with jurisdiction in all criminal or bastardy cases, a disadvantaged proceeding is not a "criminal action."

Goyke v. State \[Wis.\] 117 NW 1027. Under Laws 1905, p. 44, c. 25, conferring on superior court of Lincoln county jurisdiction

equal to and concurrent with circuit court in "all civil actions and proceedings at law

and in equity," etc., superior court or judge

thereby withdraws same from jurisdiction of

thereby analogous arguments to the court,

somers in condemn proceedings as is possessed by circuit courts or judges. Wis-

consin River Imp. Co. v. Pier \[Wis.\] 118 NW

Gulf R. Co. \[C. C.\] 160 F 355. State court

85. No court will entertain an application to require doing of things enjoined against

federal court, then being sought only as part

by other competent judicial authority. State

v. Dispensary Commission, 79 S. C. 316, 60 SE

92. Ex parte proceeding in state court to

Golesge, 208 U. S. 609, 52 Law. Ed. 642. Take-

forcolese mortgage under local statute, grant-

teee from mortgagor not being party, held not

authority excludes jurisdiction of all c:her

to affect jurisdiction of federal court of suit courts over case and all its incidents, except

by grante against mortgage for account-

counts with appellate or supervisory control.

ing of proceeds of insurance policies and

Gates v. Reynolds, 209 Mo. 161, 107 SW 487.

damages for settlement of loss for less than

amount due. Jacob Teme \[Institute v. Whit-

comb \[C. C. A.\] 160 F 835.

Interference with _probate proceedings_:

Decree in superior court compelling specific

performance of compromise between hair and

devise and directing executor to pay plain-

distante or attorney's len on distributive shares of

iff her share as per agreement when time for

distribution shall have come held not undue

(P. L. 4), creating a banking department.

inference with settlement of estate in pro-

Jones v. Lincoln Sav. & Trust Co. \[P.a\] 71 A.

bate court. Blount v. Wheeler, 199 Mass. 330,

85 NE 477. Where in action in supreme court

receiver will lie in counties other than that

under Code Civ. Proc. $ 2653a, and Laws 1892,

wherein the was appointed, court in such ac-

p. 1136, c. 591. For determination of validity

of produced wII, court enjoins executor from

property in custody of court appointing him 12 Cur. Law. JURISDICTION SS 9A.

ings are pending in courts of concurrent jurisdiction, the later proceeding should be stayed. \[87\] A state court has no power to enjoin proceedings in federal courts, \[88\] and the power of federal courts over suits in state courts is restricted by statute. \[89\] A final judgment of a court of competent jurisdiction renders a similar suit res adju-diacta in a court of concurrent jurisdiction. \[90\] A court cannot review the orders or judgments of another court of concurrent jurisdiction. \[61\]

(Paine v. Carpenter \[TEx. Ct. App.\] 111 SNW \[Hoboken v. Hoboken & M. R. Co. \[N. J. Eq.\] 420), but proceedings necessary to execution of foreign court's judgment should be taken by appointing court (Id.). Federal court \[arat court property was sold under foreclocap-cannot entertain and proceed with suit to forcebase a mortgage on the property of a railway company while it in actual custody \[h\] a state court through its receiver apapointed in a prior suit to foreclocap a junior mortgage, nor can federal court remove state \[h\] a state court is not external as to receiver or interfere with his management of the property. Cochran v. Pittsburg, etc., R. \[purchaser to enjoin mortgages whose inter-coe, 185 F 549. Where relief in aid of which receiver is sought to be reached by the condemnied sequence of the property, as where a line is enforced, actual seizure is not necessary to exclude interference by other courts, but order appointing receiver is suffin.\]

Footnote 11: The author is grateful to the author.

Jurisdiction acquired by state court by appointment of receiver held not lost by supervisor. \[L. 1989, p. 716\], chancery will not interfere \[secleans on appeal so as to authorize federal court to interfere by appointment of receiver pending appeal. Id.\]. Such by mortgage creditor of a corporation in a state court in which receivers were appointed, though ap-pointment was afterward vacated pending hearing, is in rem, giving court exclusive jurisdiction of property, and federal court will not interfere in subsequent suit by appointing receivers at instance of a different complaint, though bill in state court did not state it was filed for all parties interested. Interstate R. Co. v. Philadelphia, etc., R. Co., 164 F 770. Jurisdiction of federal court in administration of property of insol-vent corporation held not divested by subse-quent state court dissolution judgment. Robinson V. Mutual Reserve Life Ins. Co., 162 F 744. Federal court held without power to appoint receiver for insolvent corporation, custody of whose property was already in state courts. Sullivan v. Aligrem \[C. C. A.\] 160 F 366. After institution of action at law for partition of property, defendant could not use in equity for same purpose. Dunbar v. Bourland \[Ark:\] 114 SWW 467. Municipal court held without jurisdiction to determine of collaterally a disputed question of herishp where such question was already directly in issue on appeal in circuit court. Thomas v. Olienick, 140 Ill. App. 385. Jurisdiction of federal court of bankruptcy over estate of bankruptcy over estate of bankruptcy until trustee actually pays over to distributes dividends-warted them (Rockland Sav. Bank v. Alden, 103 Me. \[30, 68 A & 858\], and hence funds against which checks for dividends had been regularly drawn but not yet delivered to distribute were yet in custodia legis and not subject to trustee process from state court (Id.). Case different where distributes' creditor merely intervenes as assignee of dividend and not by trustee proceeding. Id. Supreme court having taken jurisdiction of certain subject-matter in electraney, chancery court cannot divest it or interfere in any way with ordinary process of common-law courts. City of Though equity court may not proceed directly against foreign courts, they have power in proper cases to restrain persons within their own jurisdictions from prosecuting actions in other states or countries,\[82\] but to justify such relief it must appear that equitable rights will otherwise be denied the person seeking it,\[98\] and a court of one sovereignty may not even by injunction operating only on the parties litigant interfere with a court of another sovereignty in the regular execution of its judgments.\[64\]

(SS 9) _B. Ancillary or assistant jurisdiction_ See 10 C. L. 524 is that which is exercised in proceedings which are incident to or in aid of a main proceeding.\[65\] Juristictional criteria essential to the main proceeding need not ordinarily coexist in the ancillary one.\[66\]

(SS 9) _C. General or inferior, limited and special jurisdiction._ See 10 C. L. 524--A general jurisdiction is one which is undefined, and which will embrace all judicable cases not withheld from it, either expressly or by implication.\[67\]

county held not void because violattive of In-

any theory that it can better weigh evidence

junction order from circuit court of another

or more justly apply general principles, or on

county. In re Clark, 135 WIs. 437, 115 NW

ground that it recognizes different rules of

law or equity. Id. Mere showing that ac-

62. Goodyear Tire & Rubber Co. v. Rubber

tion in foreign state is unconsicable or that

Tire Wheel Co., 164 F 869. Could by decree

in personam enjoin interference with comma-

suing there held insufficient. Id. Right to

plainants business by bringing with a

restrain proceeding in foreign state held

foreign country based on a patent which

sort by laches, acquessence and waiver, Id. court had decreed complinant was not

64. Smith v. Reed \[N. J. Eq.\] T0 A 96I.

fringing. Id. Courts of equity may restrain

Stale court held powerless to restrain plain-

persons within their jurisdictions from prosecuting actions in foreign states which

with realist in fraud or gross wrong or

owned result in fraud or gross wrong or

compression. Royal League v. Kavanagh, 233

65. Juristich of incidental questions In

case and on proper terms restrain prosecution

of action wherein a'litigant oppresses his ad-

always jurisdiction of person and subject-matter,

versary by using in a foreign jurisdiction for

purpose of evading some established local

policy of jurisdiction where parties are do-

milled. Biggelev v. Old Dominion Copper

Min. & Smeting Co. \[N. J. Eq.\] T1 A 153.

Court of one state having jurisdiction in

personam of receiver appointed by it in

proceeding to dissolve a domestic operation may

in proper case restrain Mim from further

prosecuting an action begun by him In an

other state. Guaranty Trust Co. v. Edison

United Phonograph Co., 128 App. Div. 591,

112 NYS 929. Could do so where question of

ownership and right to dispose of stock

could be more conveniently and decisively

setlled in action in heme state. Id.

63. Royal League v. Kavanagh, 233 III. 175,

84 NE 178. Not enough that there is reason

to anticipate difference of opinion between

domestic and foreign court. Id. Allegation

that courts of another state had declared law

to be different from that laid down by do-

mestic courts held insufficient, it not'appear-

ing such foreign courts were courts of final

appellate jurisdiction. Id. That federal

courts have different views of law from that

held by courts of Massachusetts where controversy Is pending does not justify equity

court of New Jersey from restraining corp

ration of latter state from prosecuting actions in Massachusetts

againast resident of that state. Biggelev v. Old Dominion Copper

Min. & Smeting Co. \[N. J. Eq.\] T1 A 163.

Power of courts of equity to restrain persons within control of their process from

prosecuting suits in other states is clear,

but on grounds of comity should be sparingly

exercised. Id. Court will not enjoin prosecuting

cution of equitable suit already pending in court of full jurisdiction in sister state on

was assigned, criminal eases occupying its * 13 Cur. Law. JURISDICTION SS 9C.

As will be, observed by reference to the heretofore enumerated indicia determinative of jurisdiction," the powers of probate," county," mayors," justice," city," municipal," and other inferior courts is limited," and varies with the statutes of the

whole time, held not to affect its jurisdic-

perior court and court of ordinary in certain tion as that of a court proceeding according

cases notwithstanding. Young v. Germania

to course of common law. Ex parte Clark,

Sav. Bank \[Ga. App.\] 62 SE #98. Has juris-

208 Mo. 121, 106 SW #90.

**New York:** Supreme court special term

has power during trial of an action at trial

on land are prayed. Id. Amount in contro-

term to allow service of supplemental answers

pleading recovery in another action. Jones

Kansas:\*\* City court held to have jurisdic-

v. Ramsey, 11 NYS #93.

**Wisconsin:** Under Const. art. 7, 8 8, giving

pany for damages from fire, action not being

circuit courts jurisdiction in all cases "not

hereafter prohibited by law," jurisdiction

dausum fregit, though bill of participants

is prohibited by law when it has been in

stated plaintiff was "possessed" of reality in

terms or by necessary implication conferred

question. Chicago, etc., R. Co. v. Matson, 71

on some other court. Goyke v. State \[Wis.\]

Kan. 858, 94 F 1134.

117 NW 1027. Laws 1896, p. 65, c. 24, creating municipal court for city of Oshkosh and

without jurisdiction of actions against city.

Vinnebago county, "prohibited" circuit court

of Winnebago county from exercising juris

diction in bastardy proceedings. Id.

48. Amount in controversy, title to land,

against city of New York and omitting

pensities, equitable matters, etc., see ante,

court exclusive jurisdiction in such cases,

**W. Idea:** Act March 2, 1905, conferring

on probate court power to investigate char-

ges concerning delinquent children, held

191 N. Y. 233, 83 NE #97. Statutory proviv-

constitutional. Ex parte Sharp \[Idaho\] 96

sions reviewed and held city court of New

**P** 568.

**Naryland:** Orphan's court is restricted to

precedingness or judgments recovered in nu-

exercise of powers expressed delegated and

these cannot be extended by construction or

filed in office of county clerk. Hottenroth v. implication. Fater v. Weaver \[Md.\] 71 A

Fainherty, 112 NYS 111. City court of New

809.

**Pennsylvan:** Orphan's court is without

jurisdiction in escheat proceedings except as

Wocardly Lawnter Co. v. General Supply &

given by Act May 2, 1889 (P. L. 66). In

Chat's Estate, 220 Pa. 258, 89 A 902.

money deposited to secure performance of

70. Plefrola' Gen. St. 1906, # 1200 ext.

services as jantor is not for accounting

and Laws 1907, c. 5706, amendment # 1203,

powering county judge's courts to inquire

into sanity of persons, commit lunatets, and

indepoint guardians, held not violative of state

or federal constitution as depriving of due

process or of jury trial. Ex parte Scudamore

\[Fla.\] 46 S 278.

**New York:** Constitutional and statutory

provisions considered, and held county court

of Kings county is without jurisdiction

action against city of New York. Maisch v.

every step taken by it must be based on au-

New York, 111 NYS #45.

**Oregon:** As to probate matters, county

court is a superior court of general juris

diction. Nolan v. Hughes \[G.\] 83 PS #62.

**Texas:** Jurisdiction of county court to

transact all business pertaining to deceased

that in action by attorney against husband

person, minors, idiots, etc., is exclusive.

Kennedy v. Pearson \[Tex. Civ. App.\] 109 SW

**West Virginia:** County court has exclusive

jurisdiction, each evidence being merely

and final jurisdiction over matter of grant-

clendal to action on implied contract. Beyer

ing license to sell Idiowa. Myers v. Circuit

V. Hadden, 118 NYS #29. Hed without juris

Court \[TW. Yu.\] 63 SE #201.

**71. Oklahoma:** Mayors of incorporated

also satisfaction of judgment duty entered

towns and cities in Indian Territory had

jurisdiction in all civil cases arising within

Finegeman v. Armstrong, 110 NYS #67. Has

corporate llmits, coextensive with jurisdic

tion of United States commissioners. Baker

only to open default and get case for plead-

v. Marcum \[Okl.\] 97 P 572.

72. See Justtices of the Peace, 10 C. L. 553,

01. Geergim:\*\* City court of Atlanta has

general common- different states. The jurisdiction of courts cannot be affected by agreement of the parties," except as to the manner of its acquisition or divestiture."

(SS 9) \_D. Original jurisdiction of courts of last resort.\_See 10 C. L. 526.\_This includes the prerogative, common-law jurisdiction necessary to the proper control and supervision of the courts below," and in its more common sense, such as the constitution and statutes prescribe."

NYS 540. Action of Justice in ordering payment of plaintiff's diffusements and in him-self taxing costs, as condition to opening default, held extra jurisdictional. Thompson v. (See 10 C. L. 526.\_This includes the prerogative, common-law jurisdiction necessary to the proper control and supervision of the courts below," and in its more common sense, such as the constitution and statutes prescribe."

NYS 541. Action of Justice in ordering payment of plaintiff's diffusements and in him-self taxing costs, as condition to opening default, held extra jurisdictional. Thompson v. (See 10 C. L. 526.\_This includes the prerogative, common-law jurisdiction necessary to the proper control and supervision of the courts below," and in its more common sense, such as the constitution and statutes prescribe."

NYS 542. Action of Justice in ordering payment of plaintiff's diffusements and in him-self taxing costs, as condition to opening default, held extra jurisdictional. Thompson v. (See 10 C. L. 526.\_This includes the prerogative, common-law jurisdiction necessary to the proper control and supervision of the courts below," and in its more common sense, such as the constitution and statutes prescribe."

NYS 543. Action of Justice in ordering payment of plaintiff's diffusements and in him-self taxing costs, as condition to opening default, held extra jurisdictional. Thompson v. (See 10 C. L. 526.\_This includes the prerogative, common-law jurisdiction necessary to the proper control and supervision of the courts below," and in its more common sense, such as the constitution and statutes prescribe."

NYS 544. Action of Justice in ordering payment of plaintiff's diffusements and in him-self taxing costs, as condition to opening default, held extra jurisdictional. Thompson v. (See 10 C. L. 526.\_This includes the prerogative, common-law jurisdiction necessary to the proper control and supervision of the courts below," and in its more common sense, such as the constitution and statutes prescribe."

NYS 545. Action of Justice in ordering payment of plaintiff's diffusements and in him-self taxing costs, as condition to opening default, held extra jurisdictional. Thompson v. (See 10 C. L. 526.\_This includes the prerogative, common-law jurisdiction necessary to the proper control and supervision of the courts below," and in its more common sense, such as the constitution and statutes prescribe."

NYS 546. Action of Justice in ordering payment of plaintiff's diffusements and in him-self taxing costs, as condition to opening default, held extra jurisdictional. Thompson v. (See 10 C. L. 526.\_This includes the prerogative, common-law jurisdiction necessary to the proper control and supervision of the courts below," and in its more common sense, such as the constitution and statutes prescribe."

NYS 547. Action of Justice in ordering payment of plaintiff's diffusements and in him-self taxing costs, as condition to opening default, held extra jurisdictional. Thompson v. (See 10 C. L. 526.\_This includes the prerogative, common-law jurisdiction necessary to the proper control and supervision of the courts below," and in its more common sense, such as the constitution and statutes prescribe."

NYS 548. Action of Justice in ordering payment of plaintiff's diffusements and in him-self taxing costs, as condition to opening default, held extra jurisdictional. Thompson v. (See 10 C. L. 526.\_This includes the prerogative, common-law jurisdiction necessary to the proper control and supervision of the courts below," and in its more common sense, such as the constitution and statutes prescribe."

NYS 549. Action of Justice in ordering payment of plaintiff's diffusements and in him-self taxing costs, as condition to opening default, held extra jurisdictional. Thompson v. (See 10 C. L. 526.\_This includes the prerogative, common-law jurisdiction necessary to the proper control and supervision of the courts below," and in its more common sense, such as the constitution and statutes prescribe."

NYS 549. Action of Justice in ordering payment of plaintiff's diffusements and in him-self taxing costs, as condition to opening default, held extra jurisdictional. Thompson v. (See 10 C. L. 526.\_This includes the prerogative, common-law jurisdiction necessary to the proper control and supervision of the courts below," and in its more common sense, such as the constitution and statutes prescribe.

12 Cur. Law. JURISDICTION SS 11A. 471

SS 10. \_Appellate jurisdiction.\_See 10 C. L. 637.--All questions of appellate jurisdiction in both state and federal practice are fully treated elsewhere. 80

SS 11. \_Federal jurisdiction. A. Generally.\_See 11 C. L. 638.--The jurisdiction of federal courts is dependent largely on the amount in controversy 81 and diversity of citizenship,82 or a federal question.83 These need not exist, however, in mere ancillary proceedings,84 and a suit in equity dependent upon a former action of which a federal court has jurisdiction may therefore be maintained in that court regardless of diversity of citizenship or the existence of a federal question to aid, enjoin or regulate the original suit83 to restrain, avoid, explain or enforce the judgment or decree therein,88 or to adjudicate, restrain or enforce liens upon or claims to property in the custody of the court in the original action.87 So, also, congress has in many cases specially conferred jurisdiction on the national courts, as in bankrupty88 or admiralty proceedings,89 and where the action arises under the patent 90 or copyright laws,91 or has for its object the removal of a cloud from title to lands lying within the district where suit is brought.82 Federal jurisdiction attaching either at law or in equity carries with it for certain purposes both legal and equitable jurisdiction.83 Rights and remedies created by state statutes may be enforced and administered

trict court. State v. Fabrick \[N. D.\] 117 NWV 860. Sovereignty or franchises of state held not directly involved in proceedings for dilusion of a county. Id. Not in proceedings \[Ledkovitz v. Foster Hose Supporter Co., 161\] for change of location of county seat. State v. Gottbrecht \[N. D.\] 117 NWV 864. More facet that delays might occur if legal proceedings were instituted in district court and that appeal might be taken held not to present exceptional circumstances constituting reasoning.

in the national courts,94 and rights under federal laws may be enforced by state courts unless congress has given the federal courts exclusive jurisdiction.95 Both federal and state courts have power to determine the validity under the national constitution of either state or federal statutes.96 A creditor's bill is maintainable in the federal circuit court to enforce a judgment of a court of the state.97 A federal court cannot refuse to entertain jurisdiction of a cause properly cognizable therein merely because the controversy might be more expeditiously or economically determined in a state court.98

Footnote 97: The author is grateful to the Editor of the National Security Agency for * 12 Cur. Law. JURISDICTION SS 11A.

state court 1 except where it acts in aid of its own jurisdiction already rightfully acquired.2 Where it so acts it may protect a litigant from seizure by state authorities while attending trial.s

The circuit court has power to issue writs of mandamus only as ancillary to a jurisdiction already acquired.4 The district court of the United States for Porto Rico is without authority to exercise purely probate jurisdiction in disregard of the local courts.5

\_Court of claim.\_See 10 C. L. 531

F 961. Though question was not definitely \[to wind up affairs of state dfspensary to pay decided, court was strongly of opinion in \] a creditor from trust funds held by commis-Grand Trunk Western R. Co. v. Curry, 162 F \[so held not against the state. Fleischman 978, that suit to restrain secretary of state \] Co. v. Murray, 161 F 152; Murray v. Wilson of California from enforcing licensee tax \[Clothing Co. C. A.\] 164 F 1.

Statute against corporation alleged to be \[Centre Commission to wind up state dfspensary held representative of state exercis-

struction of statutes, was against state. \]

**Helic not suit against state**: Suit against claimg precludes against it in federal

attorney general or other state officers to equ. court. State v. State Dispensary Commission,

Join enforcement of unconsutriational statutes to irreparable injury of complainants in \] Wilson Distilling Co. v. Murray and

not against state. Consolidated Gas Co. v. Murray (158 F), held extra

New York, 157 F 843; Lindsley v. Natural Car-

jurisdictional and void as having been made

bonic Gas Co., 162 F 954. But to restrain

Missouri secretary of state from enforcing

I. Though within inhibition against nullistate statute requiring him to cancel licensee

of any foreign railroad company for remov-

leg actions against it to federal court, and

tered in a state court. Schultz v. Highland

providing penalties in addition on ground

that statute was unconsutriational, held not

holder of judgment from enforcing it. Id.

a suit against the state, action being against

Suit to enjoin enforcement by attorney gen-

state only when property rights are not in \] or \] or \] in addition to penalties, fees and

scots. Chicago, etc., R. Co. v. Swanger, 157

cer to stay proceedings in state court. Lindsley v. Natural Carbotas G Co., 162 F 954.

v. Railroad Commission, 157 F 944; Central

Grant of order protecting litigant from seizures

of Georgia. R. Co. v. Railroad Commission,

ure by state authorities is without court

161 F 925. Immaterial that officers are

ceeding, and commitment to insane asylum

specially charged with enforcement of statute. Id. Where state statute deprives of

property without due process or denies equal

protection, federal courts may enjoin officers

production, federal courts may enjoin officers

of state courts from issuing or serving procc-

cess in proceeding to enforce it. Id. Federal

court of equity, having acquired jurisdiction

and not only granted a preliminary injunc-

tion but under authority of statute itself

suspended its operation pending final hear-

ing, has power, on amended bill, to also enjoin County officers from taking either civil

or criminal proceedings under suspended

statute against employes of railroad, effect

of which would be to interfere with operation of road, obstruct commerce and work

irreparable injury to complainant. Louis-

ville & N. R. Co. v. Railroad Commission,

157 F 944. Where state railroad commission

is given continuing power of supervision

over matter of compliance with its orders

and regulations, with power to change or re-

peal same and is made usable by statute,

suit lies against it and its several members

and officers in federal court to enjoin

forcement of an order on ground of confiscation. Central of Georgia R. Co. v. McLemon,

157 F 961. Suit against duty and food

missonner of a state to retrain conduct un-

der color of his office but alleged to violate

state laws and to injuriously affect reputation and sale of complainants' products held

not against state. Scully v. Bird, 290 U. S.

481, 52 Law. Ed. 899. Suit to compel South

Carolinian dispersary commission appointed

that state court 1 except where it acts in aid of its own jurisdiction already rightfully acquired.2 Where it so acts it may protect a litigant from seizure by state authorities

while attending trial.s

The circuit court has power to issue writs of mandamus only as ancillary to a

jurisdiction already acquired.4 The district court of the United States for Porto Rico is without authority to exercise purely probate jurisdiction in disregard of the local courts.5

\_Court of claim.\_See 10 C. L. 531

F 961. Though question was not definitely \[to wind up affairs of state dfspensary to pay

deided, court was strongly of opinion in \] a creditor from trust funds held by commis-Grand Trunk Western R. Co. v. Curry, 162 F 978, that suit to restrain secretary of state

Co. v. Murray, 161 F 152; Murray v. Wilson

of California from enforcing licensee tax

Statute against corporation alleged to be \[Centre Commission to wind up state dfspensary to

not subject thereo, and for judicial con-

persary held representative of state exercis-

struction of statutes, was against state.

Iida! discretion as to validity of

**Helic not suit against state**:
474JURISDICTION SS 11B. 12Cur. Law. (SS 11) B. As affected by diversity of citizenshipSee 10C. L. 532--The circuit court has jurisdiction of controversies between citizens of different states,6 the requisites amount being involved.7 In determining the question of jurisdiction, only indispensable parties should be considered.8 These will be alligned in accordance with their real interest in the controversy;9 and colorable or collusive transactions or arrangements of parties will not be tolerated.10 If the real controversy is between citizens of different states or between a citizen and an alien, the fact that by some rule of law complainant is compelled to use the name of another person as defendant who is a citizen of a territory or of the same state as complainant will not deprive the court of jurisdiction.11 An action will not lie in a federal court by an assignee to recover the contents of a chose in action payable to bearer and not made by a corporation unless it might have been prosecuted had no transfer been made.12 Diversity of citizenship is not essential in mere ancillary proceedings.13

- 18 Cur. Law. JURISDICTION SS 11C.
- 475

or unless the federal court has exclusive jurisdiction.17 A suit by a citizen against an alien can be maintained only in the district in which valid service can be made on defendant.18

(SS 11) \_C. As affected by existence of federal question.\_See 10 C. L. 858-A federal question exists whenever a federal statue,19 a treaty or the federal constitution,20 is to be construed or its effect or operation is involved,21 and also when the action is against a corporation organized under act of congress.22 It does not arise merely because defendant is a railroad company engaged in interstate commerce.23 Except complainants. Id. Federal court of district \[R. Co. v. Portland & S. R. Co. \[C. C. A.\] 162 of which complainants are inhabitants has \[F 603. Action against railroad for Inju- jurisdiction of suit to enjoin several railroad companies who are members of an as-ociation from putting into effect an alleged \[Dig. Ark. c. 20, SS 566, was there in force pur-sublawful rate on all food commodities \[St. S1, held to arise under statutes of Arkana-shipped in territory embraced in district, though none of defendants are citizens of the state, where they operate roads in state \[F 642. No. C. A.\] 107 and district and are found and served therein. Mscon Grocery Co. v. Atlantic C. L. R. Co., 163 F 736.

- 18 V. Where jurisdiction depends solely on diversity of citizenship, suit may be brought in district of residence of either plain-lift or defendant. Schultz v. Highland Gold Mines Co., 158 F 337. Suit to restrain carrier from enforcing a certain recognishment \[F 642. North American Cold Storage Co. v. at common law, was suit within interstate \[F 642. No. C. A.\] 101.
- 19 Not involved: Provisions of U. S. Const. alone dependent on diverse citizenship and suit could therefore be brought only in district \[F 642. No. C. A.\] 14, securing personal rights, are directed against the states and their agent-tric \[F 642. No. C. A.\] 158 F 37. Action in state whereor neither plain-lift nor defendant was citizen held not re-invable to federal court on ground of citizenship, Gillespie v. Pocoauntas Coal & Coke Co., 162 F 742.
- 20 Trivusion of $ 1, of acts of 1887 and \[F 642. No. C. A.\] 1888 (Act March 3, 1887, c. 373, 24 St. 552 IU. S. Comp. St. 1901, p. 5083), and Act Aug. 13, 1888, c. 886, 24 St. 433 (U, S. Comp. St. 1901, p. 5083), relating to circuit and district \[F 642. No. C. A.\] 1901, but also \[F 642. No. C. A.\] 1911, but also \[F 642. No. C. A.\] 1928, but also \[F 642. No. C. A.\] 1930, but \[F 642. No. C. A.\] 1942, but \[F 642. No. C. A.\] 1950, but \[F 642. No. C. A.\] 1951, but \[F 642. No. C. A.\] 1961, but \[F 642. No. C. A.\] 1971, but \[F 642. No. C. A.\] 1972, but \[F 642. No. C. A.\] 1973, but \[F 642. No. C. A.\] 1988, but \[F 642. No. C. A.\] 1990, but \[F 642. No. C. A.\] 1991, but \[F 642. No. C. A.\] 1992, but \[F 642. No. C. A.\] 1993, but \[F 642. No. C. A.\] 1994, but \[F 642. No. C. A.\] 1995, but \[F 642. No. C. A.\] 1996, but \[F 642. No. C. A.\] 1997, but \[F 642. No. C. A.\] 1998, but \[F 642.

where the 12 Cur. Law. JURISDICTION SS 13. 477

The federal statute directs the court to dismiss the action whenever it shall appear to its satisfaction that it does not really and substantially involve a dispute or controversy properly within its jurisdiction, \[87\] or that the parties have been improperly or collusively made or joined for the purpose of conferring jurisdiction. \[88\]

SS 12. _Federal appellate jurisdiction_. See 10 C. L. CAS--All questions under this designation are fully treated elsewhere. \[39\]

SS 13. _Acquisition and divostitums_. \[40\]--Jurisdiction in a particular case is usually acquired by either process or appearance. \[41\] While jurisdiction of the person may be conferred by acts or consent of parties, \[42\] jurisdiction of the subject-matter cannot be so conferred. \[43\] Only the res can be affected in an action based entirely on substituted process. \[44\]

Coal Co. \[C. C. A.\] 162 F 85. Right of \[ tion of party plaintiff in another state for a party to suit in district of residence of sole purpose of sung in federal court, re- either plaintiff or defendant is personal and quiring dismissal under act March 3, 1875, may be waived by trial, demurrer, answer or \[85\] S. Miller v. East Side Canal & Ir. Co., appearance without objection. McPhee & Mc- 29 S. Ct. 111. Evidence held not sufficient \[Ginnity Co. v. Union Pac. R. Co. \[C. C. A.\] 158 F 5. Demurring and answering. Infor sole purpose of invoking federal juris- \[Gersonil v. Coram, 29 S. Ct. 92. Objection that neither party was resident of district held \[C. A.\] 163 F 1.

waived by demurring on grounds going to \[39\] S. See Appeal and Review, 11 C. L. 118. merits is addition to jurisdictional grounds, \[See, also, 10 C. L. 585, 536.

where under local practice defendant could \[40\] 40. See 10 C. L. 583. Manner of acquiring have appeared specially. Western Loam & S. Purlification over foreign corporations, see \[G. V. White & B. Consol. Min. Co., 210 U. S.\] also Foreign Corporations, 11 C. L. 1508.

368, 52 Law. Ed. 1101. Such objection held \[41\] 41. See, also, Appearance, 11 C. L. 255: waived by appearance, pleading and going to \[G. V. Chassele, 10 C. L. 1262. Process or appearance trial. Shanberry v. Fidelity & Casualty Co., 10 C. L. 1263.

\[C. C. A.\] 158 F 1. Under New York prac- \[NYS 914\] Under Municipal Court Act, SS 26, tice, followed by federal courts in that state in actions at law, defendant does not waive \[39\] have their differences adjusted. Friedberger right to object to jurisdiction by including v. Stulpnagel, 112 NYS 89. Question of juris- \[G. V. Chassele, 10 C. L.\] a disnwer every defense on which he relies. Leonard v. Merehants' Coal Co. \[C. C. A.\] held waived by participation in trial after \[G. V. White & B. Consol. Min. Co., 210 U. S.\] reinstatement. The Brunswick-Balke-Cold- \[G. V. White & B. Consol. Min. Co., 210 U. S.\] later. Opeg 625: Plaintiff's ap- \[G. V. Chassele, 10 C. L. 1263. Plantiff's ap- \[G. V. White & B. Consol. Min. Co., 210 U. S.\] later. Opeg 625: Plaintiff's ap- \[G. V. White & B. Consol. Min. Co., 210 U.

Jurisdiction may be divested by failure of court or parties to take steps necessary to preserve it,\[48\] by transfer of the cause,\[49\] or by legislation.\[47\] Provision is generally made for the preservation or transfer of existing jurisdictions upon the establishment of new courts\[48\] or districts.\[49\]

SS 14. _Objections to jurisdiction, inquiry thereof, and presumptions respecting it.\[See 10 C. L. 539\]_--In the absence of estoppel,\[50\] courts will at all stages entertain objections and inquiries as to jurisdiction,\[51\] especially in federal practice.\[52\] Jurisdientional questions are usually raised by motion,\[53\] plea in abatement or other proper and specific pleading.\[54\] Objection or exception to jurisdiction of the subject-matter is in:

Macurda v. Globe Newspaper Co., 165 F der statute adjudication should have covered all priorities in the district and not merely prioritise for water from the single stream not in personam. Gassert v. Strong \[Mont\] invited, defendant having voluntarily submitted himself to jurisdiction, participated in trial, appealed and received water as per award. Kerr v. Burns \[Colo.\] 93 P 1120, municipal court of further jurisdiction. Lebowitz v. Herman, 108 NYS 566. Judgment rendered in municipal court July 17, 1907, in case tried May 10, 1907, is void, statute requiring rendition within 14 days from time case is submitted, unless parties consent otherwise. Carpenter v. Pirner, 107 NYS 875. Statement by attorney "you may have a week and all summer if you want it," held at most to extend time one week. Id. Rule 17 of municipal court contemplates making of a record of filling of written stipulation for extension of time within which court may render judgment, in order to enable court to retain jurisdiction after expiration of statutory time. Id. Rule binding on court as well as on parties and attorneys. Id.

48. See Removal of Causes, 10 C. L. 1508; Venue and Place of Trial, 10 C. L. 1965.

01. Pending state action against government contractors and surety on bond under Act Cong. Aug. 13, 1894, c. 280, 24 St. 278, held not affected by enactment of Act Feb. 14, 1905, c. 778, 85 St. 811, limiting jurisdiction to federal courts, Rev. St. U. S. 1878, 5 13 (C. S. Comp. St. 1901, p. 6), providing against release of liability under repealed statutes, Burton v. Seifert Plastic Relief Co. \[Va.\] 61 SE 933.

01. Act Aug. 1, 1907, attempting to repeal Acts 1900-01, p. 861, and 1903, p. 398, establishing county court of Coffee county and defining its jurisdiction and providing for certification of pending causes to circuit court, held invalid as being at variance with statutory notice of intention to pass the same. Larkin v. Simmons \[Ala.\] 48 S 451.

01. Where new county was carved from county of domicle of guardian and ward, guardian had option under 8 7 of Act Aug. 11, 1905, creating the new county, to have jurisdiction over him changed to ordinary of new county, but if option is not exercised jurisdiction remains as before. Maloy v. Maloy \[Ga.\] 62 SE 991.

01. Surieties on replenive bond held es-topped to assert want of jurisdiction due to value of property exceeding jurisdictional amount, papers in case stating value within jurisdiction of court. Janssen v. Duncan, 43 Colo, 286, 95 P 922. District court having jurisdiction of subject-matter of suit to determine water rights, defendant therein is estopped to question jurisdiction of court in such suit for first time in another suit brought nine years later, on ground that un effectual to raise the question of jurisdiction in personam.\[55\] Jurisdictional averments may be supplied by amendment in proper cases.\[50\] When a court is without jurisdiction, it cannot render judgment generally for defendant.\[57\]

\_Evidence and presumptions.\_See 10 C. L. 460--Courts of general jurisdiction are presumed to have had jurisdiction in given case.\[58\] Though there is no presumption in favor of the existence of a limited or special jurisdiction,\[59\] a jurisdiction, whether limited or general, will be presumed to have been rightfully exercised where it is shown to have existed.\[60\]

JURY,

B. Chalenge for Cause, 491. Right to List of Jurros, 492.

A. As "Preserved" by the Constitutions, 480. Denial of the Right; Condition, 492. The Character of the Jury Guaranteed, 492. Time for Challenge, 492.

B. As Confered Where the Common Law Did Not Give It, 483.

C. Demand, Loss, or Waiver of Right, 484.

B. Eligibility to end Exemption from Jury Service, 486.

S. Disqualifications Pertaining to the Particular Cause, 486.

S. Discussion Pertaining to the Particular Cause, 486.

S. Discussion Pertaining to the Particular Cause, 488.

The scope of this topic is noted below.61

SS 1. _Necessity or occasion for a jury trial. A. As "preserved" by the constitutions._ See 10 C. L. 641.--The right to a jury trial of the issues of fact 62 cannot be curtailed by the courts 63 or abridged by legislative enactments,64 but a general provision that the right "shall remain inviolate" only preserves the right as it existed prior to the adoption of the constitution.65 The right does not exist in equitable actions,66

difference between courts of general and | right of appeal. State v. Sexton \[Tenn.\] 114 courts of limited jurisdiction being that as | SW 494. Pub. St. c. 248, $ 3, authorizing justices of peace to determine punishment when to latter presumption is against jurisdiction. | imprisonment does not exceed six months. | Id. | 61. It includes generally all matters relat- | misship under constitution of 1784. Wilston and service of petit jurors in both civil and criminal cases. It excludes grand juries (see Grand jury, 11 C. L. 1658), feigned | in equity. Mills v. Britt \[Fla.\] 47 S 799. Issues out of chancery (see Equity, 11 C. L. 1235), the custody and conduct of juries during the trial (see Trial, 10 C. L. 1896, as to | civil trials; Indictment and Prosecution, 12 C. L. 1, as to criminal trials), misconduct as and the primary relief sought, if warranted by the pleadings," characterizes the action." Where an equitable action involves distinct legal issues, the latter are triple by jury." The retention of equitable jurisdiction for the determination of all the issues involved," and the allowance of a bill to restrain a multiplicity of suits," does not infringe the right, but where an equity suit is changed to a law action, the right cannot be denied." A law action may become equitable by interpleader." The 1047. Opinion of jury on question of fact (a) appears less issue for jury. Brunst v. Ca. v. Bintrod, 41 Ind. App. 440, 83 NE 507. Unfare burns' Ann. St. 1901, $ 412, providing that where there is jolander of legal and equitable actions former be tried by jury unless waived- and latter by court, it was not error to deny request for jury trial on issues raised in two paragraphs of complaint where either paragraph invoked equity jurisdiction. Vatt v. Barnes, 41 Ind. App. 468. 84 NE 158. In proceedings under Code Civ. Proc. c. 17, lit. 2, $ 2256, 2257, to redeem Jeased property, neither party is entitled to jury trial, proceedings being equitable in nature. Statutes construed. Ebling Brew. Co. v. Nimophilus, 88 Mice. 546, 109 NYS 808. Plaintiff has no absolute right to jury trial where issues in suit based on fraudulent obtaining of money are such as prior to Jan. 1, 1830, would have been properly cognizable in equity. Gen. St. 1902, $ 720. Bristol v. Pitchard \[Conn.\] 71 A 558. Acts 1897. p. 82, providing for determination of whether law had been complied with respect to certain bonds before their issuance, is not unconsutritional for making no reference to jury trial, since action is nearer equitable than legal. Lipitt v. Aibany \[Ga.\] 85 BE 38. 67. Demand for equitable relief will not convert law case into equitable one to derive plaintiff of jury trial. Thompson v. National Bank of Commerce \[MAp.\] 110 SWV 681. Right to jury trial not forfeited by fact that petition for damages for overflowing of land also plays for injunction. Brunst v. Catawba Power Co. \[S. C.\] 60 SE 673.

68. Equitable Right properly denied defendant who presented defense of purchaseer for value without notice (Atlantic & C. Air Line R. Co. v. Victor Mfg. C., 79 S. C., 266. 60 SE 675), except (Id.), or a defense, so interwoven with plaintiff's cause as to partake of equitable nature (Id.). Issues arising where judgment is sought to be vacated or modified and validity of defense are triable by court without jury. Mansl. Dig. Ark. $ 3913 (Ind. T. Ann. St. 1898, $ 2532). Poff v. Lockridge \[Ok1\]. 98 P 427. Bill in equity to enforce mechanics' lien not action to recover on contract, though labor and material furnished in accordance with contract. Mills v. Britt \[Fla.\] 47 S 79. In action to re-strain tregrass on land, defense that deed under which plaintiff claims is void for fraud does not entitle defendant to jury trial, since equity has concurrent jurisdiction. Atlantic & C. Air Line R. Co. v. Victor Mfg. C., 79 S. C., 266, 60 SE 675. Equitable defenses intervened in agreement may be disposed of without jury. Cassin v. Nicholson \[Cal.\] 98 P 190.

Legani: Party entitled to jury trial as matter of right in law action. Const. art. 1, $ 6, Yelser v. Broadwell \[Neb.\] 115 NVV 293. Where issues involved can be properly disposed of by jury, action should not be tried 13 Curr. L-- $1.

right to a jury does not exist in summary proceedings,"4 contempt, "73 habeas corpus,"76 eminent domain proceedings,"77 or a motion from office,"18 unless conferred by the statute.70 Neither is the right guaranteed in trials for violation of municipal ordinances "80 as distinguished from criminal prosecutions."81

\_Denial of the right; conditions.\_See 10 C. L. 542--It is error to deny a jury trial because its grant would necessitate a continuance,"82 because the action involves a long examination of documents,83 or because of a refusal to advance the venire fees.84 The entry of judgment where there is no issuable defense is not a violation of the right,"85 but a denial may take place by arresting the introduction of evidence and directing a verdict.86 The denial of a jury trial in a case where a jury may be waived is error only 87 which may be harmless.88 Where a jury trial is not of right, an abuse of discretion is necessary to occasion a denial.89 Mandamus will not lie to compel a judge to call a jury where the right is not endangered.90

\_The character of the jury guaranteed_See 10 C. L. 543 is the common-law jury com-

attorney's lien where defendant filed bond (necessitate continuance. Cleveland v. Smith under Code, SS 222, which bond operated to release lien, plaintiff's demand became one at law for recovery of compensation and he was entitled to jury trial. Jamison v. Ranck \[Iowa\] 119 NWV 76.

73. Action of law in city court which by interpleader, under Code Civ. Proc. SS 820, becomes equitable, is triable without jury, Schreiber v. Dry Dock Saav, Inst., 112 NYS 1010.

01.

01. Where a purchaser at partition sale refuses property causing a resale at a loss, the loss may be recovered by summary proceed-jays without a trial by jury. Rev. Set 1835, pp. 258, 259, SS 40, 41 (Rev. Set. 1889, p. 199, 81), and 81 8202, 3203; Ann. St. 1906, p. 1819, and Wag. St. 970, to 1,44, art. 8, SS 1 (Rev. St. 1899, 4407; Ann. St. 1906, p. 2412). McNamee v. Cole \[Mo. App.\] 114 SWV 46. Proceedings by state board of health to revoke physician's license for cause are summary in their nature and triable by board without intervention of jury. Munk v. Frink \[Neb.\] 116 NWV 525.

01. Defendant on trial for an indirect contempt is not of right entitled to jury trial Laws 1901, ch. 123, p. 231, valid. State v. Johnston \[Kan.\] 97 P 790.

01. Const. art. I, 15, art. S, 10. Pitman v. Byars \[Tex. Cyt. App.\] 112 SWV 102.

01. Amount of attorney's fee in proceed-jags to condemn land for public use may be determined by court without query. Richardson v. Centerville, 137 Towa, 253, 114 NWV 1071.

01. Burke v. Jenkins \[N. C.\] 61 SE 608.

01. See SS 1B, As Conferred Where the Common Law Did Not Give It.

01. Const. art. I, 8 9, providing that accused in criminal prosecutions have jury trial, etc., does not apply to action for penalty for violation of city ordinace. Not criminal prosecution. City of Chicago v. Knobel, 232 Ill. 112, SS 2NE 459.

01. Commitment of person by criminal court of record according to Laws 1905, p. 66, c. 5388, SS 9, is void and unconsutriational, unless trial by jury. Pugh v. Bowden \[Fla.\] 45 S 49.

01. Error to refuse trial by jury when properly demanded in accordance with Const.

01. Entry of judgment in action on uncon-art. 5, 10, and Sayles' Ann. St. 187, the postoned till jury could be had. State

01. Where initial comment of the jury trial.

01. Entry of judgment in action on uncon-art. 5, 10, and Sayles' Ann. St. 187, the postoned till jury could be had. State

01. Are testing introduction of evidence before defendant rested, and instructing jury to convict, error, as defendant entitled to have question passed on by jury. Common-wealth v. Gamble, 86 P. Super. Ct. 146.

01. Not excess of jurisdiction. Writ of re-tive applicable. Goodman v. Santa Clara County Super. Ct. \[Cal. App.\] 96 P 395.

01. Denial of right to jury pursuant to stipulation under which prior trial had been had not harmful where court made full findings of fact and added determination to verdict in accordance therewith. Twentieth

01. Where trial of issues by jury is discretionary (Code Civ. Proc. SS 971), refusal of jury trial is not erroneous though based to some extent on condition of jury calendar.

Bopovsky v. Gallin, 110 NYS 818. Where plaintiff selected equity court and waited three months before exercising right, though counterclaim presented issue of law, denial duty for violation of city ordinace. Not criminal prosecution. City of Chicago v. Knobel posed of twelve men,91 and the right to a jury of this number cannot be abridged by statute,92 though in some states the right only exists where a felony is to be punished,93 or in civil cases where the amount exceeds one hundred dollars.94 A verdict rendered by an insufficient number of jurors should be set aside.95

Footnote 94: The number of jurors is 100 484

JURY $ 1C. 12 Cur. Law.

(SS 1) \_C. Demand, loss, or waiver of right.\_See 10 C. L. 843--Generally trial by jury is subject to waiver in civil cases * and criminal cases not amounting to felony,\* but a person accused of an infamous crime, though not a felony, cannot waive the constitutional number of jurors.\* An incompetent may waive trial by jury on the issue of insanity.\* In many states the right to trial by jury is conditional upon timely demand * made in the prescribed manner,\* and in a justice's court such demand operation.

4. Goodman v. Santa Clara County Super. (218 III. 500, 75 NE 1034; State v. Shafer, 82 MO. Ct. \[Cail. App.\] 98 P 295. App. 60; St. Charles v. Hackmann, 138 MO. 844, $4 SW SW 87: Key v. State, 4 Bast. Treat.) 289; Clara County Super. Ct. \[Cail. App.\] 96 P 295. State v. Aiderton, 50 W. Va. 101, 40 SE 350; & Dickinson v. U. S. \[C. C. A.\] 169 P 801. State v. Packenham, 40 Wash. 403, 82 P 597; Trial opened with jury of twelve, but sick-ness intervening two were excused, defend-ants agreeing that trial proceed before re-changed with crime to waive irregularities in right by such agreement. fd. Upon plead-inations or number of jurors or like ob-ing not guilty to information charging colony or misdemeanor, accused cannot waive jury of which see Schlick v. U. S. 195 U. S. 66, 49 of less than 12. Jennings v. State, 134 Wils. 136. 807, 114 NW 492.

NOTE, Validity of waiver of jury trial in criminat actions. It is held in In r e Ouown \[Ok.\] 91 P 689. 11 L. R. A. (N. S.) 1386, that one charged with a crime trible by jury at common law cannot waive such right. Al-though the contrary has been often asserted, it may be safely said that the courts are un-anfamous in holding that the right to trial by jury cannot be waived by one charged with crime to waive the second. In the absence of statute to that effect. Harris v. People, 128 III. 56, 21 NE 683, 15 Am. St. Rep. 153; Morgan v. People, 188 III. 161, 162 NE 681; Paulsen v. People, 195 III. 518, 63 NE 144; State v. Maine, 27 Conn. 281; State v. Carman, 63 Iowa, 130, 50 Am. Rep. 141, 18 NW 691; State v. Larrigan, 66 Mar term of court after arrest. Hammond Iowa, 276, 65 NW 152; State v. Douglass, 96 V. State \[Ala.\] 85 G 864. Under Loc. Laws, Iowa, 308, 65 NW 151; State v. Lightfoot, 107 Iowa, 344, 178 NW 41; State v. Rea, 126 Iowa, 65, 101 NW 607; Neales v. State, 10 Mo. 488; Arnold v. State, 38 NW 752, 67 NW 378; Grant v. People, 4 Park. Crim Rep. 827; State v. Thompson, 104 L. 162, 167, 28 S 882; State v. Jackson, 106 L. 189, 30 S 89; State v. Lockwood, 43 Wils. 403; State v. Simons, 61 Kan. 95, 1062, 11, 90 and Acts 1896-91, p. 327, 85, 107, 162, 90 NW 1062; State v. Hoit, 90 N. C. 149, 11, where defendant took appeal from con- 17 Am. Rep. 544; State v. Stewart, 89 N. C. 563; Maya v. Com., 82 Va. 550; Ford v. Com., 82 Va. 553; Wilson v. State, 16 Ark. 601; Bond v. State, 17 Ark. 209; People v. Smith, 3th Mic.

193; Williams v. State, 12 Ohio St. 622. In Indiana where there is a statutory provision authorizing waiver of jury trial in all cases except capital crimes, it is held that jury cannot be waived in the latter class of cases.

Warner v. State, 102 Ind. 52, 1 NE 65; Lower v. Howard, 103 Ind. 440, 38 NE 124; Fraser v. State, 106 Ind. 562, 17 NE 378. In the case of misdemeanors the same rule is asserted by a few authorities (State v. Tucker, 96 Iowa, 276, 65 NW 155; State v. Istan, 138 MO. 84, Douglass, 96 Iowa, 308, 65 NW 151; State v. Lockwood 12 Cur. Law. JURY SS 1C. 485

ates to deprive the justice of jurisdiction to try a cause without a jury.\[10\] Where the waiver is conditioned upon the failure of both parties to make a demand,\[11\] a request by the plaintiff assures the right to the defendant.\[11\] The waiver of the right operates as a waiver of the re-examination on appeal of any question of law or fact decided upon or in connection with the trial.\[18\] The right to a jury will not be determined on appeal where there was no demand.\[14\]

\_What constitutes waiver.\_See 10 C. L. 644.\_The waiver of a jury trial may be by consent \[18\] or the failure to make a demand.\[16\] The election of an equity forum constitutes waiver,\[17\] but the right to a jury trial on the issue of adultery is not waived by noticing for trial and filing a note of issue in the equity court.\[18\] A request for a directed verdict by both parties operates as a waiver,\[10\] unless the rule is changed by statute.\[20\] Where written consent is required before the court can order a reference, the right to trial by jury is not waived by silence,\[21\] and an agreement that a cause be referred to a referee is not a consent that the court may determine the issues.\[22\] Where an equity court loses jurisdiction by the change of the cause of action, the consent of the parties is required to cause a waiver of the jury trial,\[23\] and such con-

ception because Judge is disqualified. McIn\< 486 JURY SS 3. 12 Cur. Law. sent cannot be implied from the filing of the answer \[24\]. The fact that a creditor of an insolvent corporation filed a claim against an estate with a receiver appointed in equity does not operate to cause a waiver of a jury trial in an action by the receiver on a money demand against such claimant \[25\].

SS 2. _Eligibility to and exemption from jury service_,See 10 C. L. 544.-Exemption is a personal privilege \[26\], and exemption but not disqualification results from age \[27\], prior jury service within a specified time \[28\], or certain positions in the public service \[29\]. $\\Lambda$ juror who has been convicted of a crime \[30\], or one who cannot understand English \[31\], is disqualified.

SS 3. _Disqualifications pertaining to the particular cause. Right to an unbiased and unrejudiced jury_,See 10 C. L. 545.-Jurors should be free from prejudice \[32\]. A primary cause of disqualification is the existence of a fixed opinion \[32\], but a juror is not disqualified because he has an opinion \[34\] based on rumors \[35\] or newspaper re-

24. Objections before and after filing. Jamison v. Ranck \[Iowa\] 119 NWP 76. Where action to enforce attorneys' filen became acclimated at law for compensation by filing of Tex. Cr. App. 56, 111 SWP 297.

bond to release lien under Code, SS 322. Id. 25. Whelan v. Enterprise Transp. Co., 164 1059. 164 1659. 1667. 168. 169. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 170. 171. 172. 174. 175. 176. 177. 178. 179. 171. 170. 173. 171. 172. 173. 174. 175. 176. 177. 178. 179. 170. 171. 171. 172. 173. 174. 175. 176. 177. 178. 179. 170. 171. 179. 171. 170. 171. 172. 174. 176. 177. 178. 179. 170. 171. 171. 173. 174. 175. 176. 177. 178. 179. 171. 170. 171. 171. 172. 173. 175. 176. 177. 178. 179. 171. 170. 171. 171. 172. 174. 177. 178. 179. 170. 171. 171. 172. 173. 175. 177. 178. 179. 170. 171. 171. 174. 179. 171. 175. 176. 177. 178. 179. 171. 170. 171. 172. 173. 176. 178. 179. 170. 171. 171. 172. 174. 177. 178. 179. 170. 171. 170. 172. 175. 177. 179. 171. 171. 173. 176. 178. 179. 170. 171. 171. 172. 174. 179. 171. 175. 177. 176. 177. 178. 179. 171. 179. 170. 171. 170. 171. 171. 172. 173. 174. 176. 178. 179. 170. 171. 170. 172. 175. 177. 179. 171. 171. 172. 176. 177. 178. 179. 170. 171. 170. 172. 179. 171. 173. 174. 178. 179. 171. 170. 171. 172. 175. 177. 178. 179. 171. 170. 172. 179. 171. 170. 173. 171. 174. 178. 179. 170. 1

## 18 Cur. Law. Juryr SS 3.

ports \[36\] which he is able to lay aside. Neither is a juror necessarily incompetent because he has fomed an opinion regarding the guilt of a person jointly indicted with the defendant.\[87\] Ordinarily, prior service does not disqualify a juror \[38\] unless the cases are identical,\[89\] or the credibility of the same witness is involved.\[40\] More knowledge of a prior conviction does not disqualify.\[41\] A juror who stated that he would give more weight to the testimony of a white man than a negro is not disqualified,\[42\] and the answer given under a misconception of the counsel's questions is not a sufficient reason to excuse the juror.\[43\] In criminal trials place of residence is material,\[44\] such fact is unimportant in an action to sever territory from a municipality where the determination of the case would not affect the juror's taxes.\[45\] Relationship to the accused,\[46\] or that the jurors is an employ of a party to the action,\[47\] are grounds for challenge, but the rules cannot be extended to disqualify a person engaged in a similar vacation,\[48\] a member of a similar \[49\] or rival corporation,\[50\]

## 19 Juror not disqualified by opinion based on newspapers.

\[\] Anrwine v. State \[Tex. Cr. App.\] 114 on newspapers, rumor, etc., when he stated \[SW 796. Jurors in court room whereby they ablilty to try case one evidence and instructs. State v. Howard, 120 La. 311, 45 & 240; or accused on another charge of robbery. Cooke v. People, 141 Ill. App. 41: State v. Wren, 121 La. 55, 46 S 99. Presence Rohn \[Iowa\] 118 NV 88. Opinion from news-paper reports of former trials. Noonan v. Luther, 112 NYS 898. Where court satisfied \[pist\] where they state ability to act Impartieth qminol will not resist force of evidence. Johnson v. State \[QkI. Cr. App.\] 97 P 1058.

\[\] No bias within Pen. Code, & 1013, subd. 2, & 118,488' JURY SS 4. 12 Cur. Law.

an employe of a stockholder of a corporation which is a party,\[51\] or a citizen and tax-payer of a municipality which is a party.\[52\] Statutes fixing disqualification in civil cases do not ordinarily apply in criminal cases.\[53\]

SS 4. \_Discretion of court to excuse juror.\_See 10 C. L. 546

SS 5. \_The jury list and drawing for the term.\_See 10 C. L. 546

SStatutes providing for the selection of the jury list by jury commissioners\[54\] prescribe the manner of appointment of these officers.\[55\] In some states provision is made for a substitute when a member is absent or for action by the majority of the board.\[56\] The authority of a judge to draw a jury under the local laws is not an interference with the acts of the commissioners under the general law.\[57\] The Texas "jury wheel law" is constitutional.\[58\] Utter disregard of a statute requiring the names of the jurors to be elected in proportion to the number of qualified persons in the supervisor's districts renders the drawing invalid.\[59\] Under an act providing for the recording of the list of jurors upon the journals of the court and certifying to the correctness thereof, the purely ministerial duties could be performed by a deputy.\[60\] A provision for additional jurors to be drawn from the neighborhood is valid.\[61\] The right to jurors from the neighborhood is satisfied by drawing from the body of the county.\[62\] While a large

sheep and prosecuting offenders are not dis- quantified by that fact alone in prosecution

sheir to fill absent places. State v. Nelson

for stealing sheep by another similar association. Starke v. State \[Vyyo.\] 98 P 148.

50. Fact that juror is stockholder in rival

corporation not ground for challenge for

Id. Presence of sheriff at drawing under

cause where juror states that the does not

mistaken construction of statute harmless.

know defendant and could act impartially.

Roggers Grain Co. v. Tanton, 136 ILL App.

53.

01. Employee of stockholder of corporation

not disqualified in case where corporation is

party. Sansowerv, Gienlyn Dye Works, 28

R. I. 538, 68 A 645.

52. Action for Injurles caused by defective

street. Anderson v. Wilmington \[Del.\] 70 A

204.

001. Benton v. State, 62 Tex. Cr. App. 380,

107 SV 838.

54. Laws 1902, p. 136, c. 90, providing for

selection of grand jurors, not violative of

constitution, state or federal. Vought v. State, 126 Vis. 6, 114 NV 518.

55. Jury commissioners are statute officers,

and under Const. art. 71, are appointty by

general assembly. State v. Pierro, 121 La.

465, 46 S 574. Under Act No. 88, p. 114 of

1880, as am'd by Act No. 170, p. 211 of 1894.

duty of appointing jury commissioners in

18. Hudelson v. State \[Tex. Cr. App.\] 112 SWV

vested in governor. Id. Acta 1988, p. 218,

No. 135, $ 3, providing that appointment of

18. See, also, dissenting opinion. A general

jury commission be written and entered on

minutes of district court, aufficiently complied with by verbal order in open court

entered on minutes. State v. Marionneauux,

120 La. 455, 45 S 839. Under Acts 1888, p. 218,

No. 138, $ 3, order appointing jury commission should be written only when made at

chambers, purpose of statute being to pro-

vide for entry in minutes. Id. Acts 1889, p. 218,

219, No. 135, sufficiently complid with by

"It is ordered that jury commission is hereby

ordered to be composed of following citizens. Id.

56. City. Code 1902, $ 2998, providing that

county auditor, county treasurement and clerk

of common pleas constitute jury commissioners, and that majority of board may act,

is not inconsistent with or repealed by Act

Feb. 7, 1902 (23 St. at L. p. 1064), providing

106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 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, 12 Cur. Law. JURY SS 6. 489

discretion is allowed the officers in selecting a jury," discrimination against citizens on account of race or color is illegal," but the constitutional guaranty does not cntitle a person to a jury of the same race " and discrimination is not presumed." The statutes provide for the striking of the names of persons who are deemed incompetent." Statutes regulating the drawing of jurors are generally regarded as directory," and an irregularity vitiates the drawing only where fraudulent;" thus the fact that the drawing took place before the commissioners were sworn," that a sheriff did not actually draw the general panel," or that the prosecuting attorney consulted with the judge as to the qualifications of the jurors," has been held immaterial. On an issue as to the validity of a drawing of certain jurors, evidence that it was the object in drawing to scatter the jury over the county is admissible."

SS 6. _The veniere and like process._ See 10 C. L. 440.\_The writ with the list attached constitutes the writ of venire " for summoning the residents of a corporation," A

City of Chicago v. Knobel, 232 Ill. 112, SS 3NE

against person of African descent from mere 489. Courts under City Court Act (Hurud's fact that jury selected was white. Groce v. Rev. St. 1905, p. 631, c. 37), and municipal

Ter. \[Arriz\] 94 P 1108,

court act of Chicago (Hurd's Rev. St. 1905, p. 635, c. 37), have same powers as to select

SS 2, 4, 7, 11, officers charged with duty of tion of pettit and grand jurors. Id. Constrauring jury may strike names of persons

art. 2, 8 y, provides for trial of criminal by (demand by them not to possess attutory jury of county or district where offense was )

committed. Word "district" means "county." Id. At common law jury, in both civil and (demand by Act Feb. 10, 1904 (Acts 1904, pp. 18-17), criminal cases, were taken from neighbor-

clearly has no right to leave of name of per-

hood. Id. Laws 1897, p. 61, establishing

corn drawn who is incompetent unless en-

terms of Lewis county circuit court at Can-

branched in section of statuts. Ashlock v.

tion in such county, does not restrict juries.

Golen \[Va\] 61 SIE 752

diction over entire county, and summoning

of jurors from county at large to cryocased

error v. State \[Ga. App.\] 63 SE 241; McNeal

for offense committed outside Canton dis-

v. State \[Ga. App.\] 63 SE 224; Coleman v.

trict not prevented. State v. Vickers, 200

Mo. 1, 156 879 89.

63. Montgomery v. State \[Fla.\] 45 S 879.

Discretion of officers selecting jury should (by)

v. State v. Banner \[N. C.\] 63 SE 84.

be carefully exercised by securing the best

juries but without discrimination. Id. See

lection in exercise of discretion not review-

able by court. Code 1906, & 2688. Lewis v.

State \[Miss.\] 45 S 860.

64. Selection, summoning or empaning

rendered void if discrimination practiced. Montgomery v. State \[Fla.\] 45 S 879; Groce

v. Ter. \[Arriz.\] 94 P 1108. Selection of jurors from registration books of voters by

board of supervisors by selecting persons of

Banner \[N. C.\] 63 SE 84. Motion to quans

good moral character from the various di

tricts does not admit of discrimination

against negres, Lewis v. State \[Miss.\] 45

S 860. Statutory provisions for selecting

Jury do not authorize discrimination. Mont-

70. Whether the jury commissioners drew

gomery v. State \[Fla.\] 45 S 879. Where

county supervisors in selecting jury list fin-

funnaterial, Offense de facto ir not de jurre.

tentially struck off names of negres, such

Fosenblatt v. State, 2 Ga. App. 649, 58 SE

action was in violation of constitution as a

to 1107. Outm internal. Pol. Code 1895, & 242.

due process of law. Farrow v. State \[Miss.\]

d.

45 S 619. Violation of constitution grant.

img accused trial by impartial jury. Id.

Deniles equal protection of laws. Id. Mo-

tion to quash venire for race discrimination

shuff. State v. Kelly \[N. J. Err. & App.\]

properly denied where negre sat on jury,

70 A 242.

where judge hartored jury commissioners

not to discriminate, and they testified that

court in compliance with Rev. St. 1899,

they had obeyed such instruction. Macklin

# 3769, 8770 (Ann. St. 1906, pp. 2096, 2097).

v. State, 53 Tex. Cr. App. 197, 109 879 146.

merely irregular venire may be quashed where the required diligence in summoning the jurors was not exercised,76 but objections to a venire may be waived.77 A venire should not be quashed because the state's counsel assisted in checking the venire list.78 The canvassing of the list of proposed jurors for eminent domain proceedings is legal.79 The municipal court act of Chicago providing for the service of the venire by the sheriff is constitutional.80 In Louisiana the proper evidence of the manner in which the venire has been drawn is the process verbal of the drawing,81 and sworn allegations of fraud are necessary to attack the drawing.82

SS 7. _Empaneling the trial jury.See_ 10 C. L. 549\_--The trial jury must be empaneled substantially83 as provided by statute,84 and in criminal cases the rule is more strictly applied.85 A mandatory requirement that the clerk draw the names of the jurors from the box cannot be evaded.86 Technical errors, such as the absence of an officer while the panel was drawn,87 or the overruling of a motion for a continuance,88 will not work a reversal unless prejudice results. A defect in the panel may be waived.89 Under the Illinois practice, where a panel is broken by challenge, the

invalid for that reason, since by Code 1887, $ 4018 (Va. Code 1904, p. 2114), judge might

frand, accused may not have venire box

make writ returnable on day other than first

opened to ascertain if recitals of process

day of term. Id.

verbal of drawing are true. State V. Marion-

75. Omission of words "of his corporation"

not fatal in writ, since by statute, Code 1887, $ 8142, $ 1344 (Va. Code 1904, p. 1661), rest

fect that names of jurors be drawn from em

denits of corporation are only permitted to

serve. Thurman v. Comm., 107 Va. 912, $ 60 SE

99.

01. Where only 11 jurors of 50 were preset, case should be postponed until sheriff

had summoned venire, or venire should be

uashed and new one issued. Logan V. State

\[Tex. Cr. App.\] 111 SWV 1028, Proper to re-

fuse to quash venire as falling to show dill

fence in summmoning jurors where sheriff

and deputties searched for same, some being

out of state and none omitted purposely.

Hice v. State \[Tex. Cr. App.\] 111 SWV 299.

77. Where exceptions were taken to

v. Nylim, 131 mL. App. 500.

nire but no motion to quash and parties pro-

ceeded to empanel jury, objection was

wavled. Merced County v. Wolff, 237 Ill. 74, $ 8 NE 708. Right to trial by jury regularly

provided by $ 251 et seq., court cannot over

chosen waived where counsel consented to

set trial at a time when the knew a picked up

jury would have to be used. Texas & P. R.

Co. v. Coggin, 44 Tex. Civ. App., 423, 18 Tex.

Ct. Rep. 76, 99 SV 1052.

78. On theory of prior knowledge of list,

since such list was subject to inspection.

Fice v. State \[Tex. Cr. App.\] 111 SWV 299.

687. Canvassing by marshal and deputy

after which selection was made, Columbia

Helights Realty Co. v. MacFarland, 31 App.

D. C. 112.

80. Municipal Court Act of Chicago, $ 25

(Hurd's Rev. St. 1095, p. 644, 57), provid

ing that jurors be provided by jurors combiners

sioners of Cook county, that ventures be served by sheriff at expense of county, and that

jury fees be paid by city, apportion expenses

between city and county and is not violative

of Const. art, $ 2, $ 2, as to deprivation of

property without due process of law. Reviews subject to legislative control. City

of Chicago v. Knobel, 233 Ill. 112, 83 NE 459.

Not violative of Const. art. $ 9, 10, providing for levy and collection of uniform taxes

by municipality. Id.

SL. State v. Marlonneaux, 120 La. 455, 45 S 389.

SL. In absence of sworn allegations of

frand, accused may not have venire box

pened to ascertain if recitals of process

day of term. Id.

verbal of drawing are true. State v. Marionneaux, 120 La. 455, 45 S 889.

83. Acts 189, p. 216, No. 135, does not di-

rect that names of jurors be drawn from em

velope containing names for term rather

than box. State v. Montgomery, 121 La. 1005,

46 S 997. Where 8 jurors were drawn from

box rather than envelope in accordance with

custom of court, and remaining four accord

ing to counsel's suggestion in pursuance

with statute, accused cannot object. Id.

\[Tex. Cr. App.\] 111 SWV 1028, Proper challenger must tender back a full panel, and, therefore, ne must first examine the talesmen called to supply the place of the one challenged." In a will contest in Alabama where the contestant challenges a juror the court need not supply twelve men before requiring contestant to pass on those remaining."

SS 8. \_Arraysing and challenging. A. Challenge to the array or panel.\_See 10 C. L. 549 A challenge to the array must be one which affects the entire panel \[92\] and must be timely made." An objection that the jurors were not drawn according to law is too general to cover an objection that the sheriff failed to select the general panel." The challenge to the array has been abolished in some states." The refusal of a continuance for the procurement of evidence to support a challenge to the panel is discretionary."

(SS 8) B. Challenge for cause.See 10 C. L. 550--A challenge for cause may be based upon disqualification in general \[97\] or on the particular cause." The enumerated causes by challenge in a statute are not exclusive of other causes." It is also a ground for challenge that the juror has been subpoenaed as a witness,\[1\] but this defect may be waived.\[2\] The challenge must specify the ground of disqualification.\[3\] It is a general rule that challenges should be made before the juror is sworn,\[4\] but it has been held permissible to excuse a previously accepted juror "for cause" before the jury was completed.\[5\] In Georgia it is not ground for a challenge to the poll that jurors who had been rejected at a previous trial were placed upon the list,\[5\] but the fact

\[Ind.\] 83 NE 618. Under Rev. St. $ $12 (U. * \[Th.\] 83. Comp. St. 1801, p. 627), as am'd by Act June 30, 1879, c. 52, $ 2, 21 Stat. 43 (U. * \[Th.\] 84. * \[Th.\] 85. * \[Th.\] 86. * \[Th.\] 86. * \[Th.\] 87. * \[Th.\] 88. * \[Th.\] 89. * \[Th.\] 88. * \[Th.\] 88.

that a traverse juror who has served at one term of the superior court may be summoned at the next succeeding term is ground for a challenge proper defectum.\[7\]

_Right to list of jurors.\[8\]_

(SS 8) \_C. Peremptory challenges and standing jurors aside. Peremptory challenges.\_See 10 C. L. 550--A premptory challenge is an objection for which no reason need be given.\[9\] A person accused of a crime is entitled to a complete panel before exercising his preemptory challenges.\[10\] While Peremptory challenges exist by virtue of statute,\[11\] the right is valuable and must be held to exist unless the code expressly excludes.\[12\]

\_Number allowed.\_See 10 C. L. 550--The number of preemptory challenges is regulated by statute and is usually dependent upon the punishment to be inflicted,\[18\] and an accused cannot multiply his challenges by the number of counts in the complaint.\[14\] Additional challenges may be allowed where additional jurors are summoned.\[16\] Usually joint parties are only entitled in the aggregate to the number allowed to a single party\[16\] unless their interests are antagonistic.\[17\] It was not error to refuse an additional preemptory challenge where a challenge for cause was overruled, the juror being competent, and nothing was said about a particular juror being distasteful.\[18\]

\_Time for challenge.\_See 10 C. L. 651--The right of Peremptory challenge must be exercised before the juror is sworn.\[19\]

(SS 8) \_D. Examination of jurors and trial and decision of challenges.\_See 10 C. L. 651--The determination of the competency of a juror rests with the court\[20\] from a consideration of the evidence presented\[21\] and other circumstances.\[22\] The question

16. Several parties on side must join in conflicting under Ballinger's Ann. Codes & St. # 4979 (Pierce's Code, & 593). Coltax Protection, 42 C. L. 28.

01. B. & C. Comp. $ 118. State v. Ju Nun \[Or.\] 97 P 96. Essence of permptory challenge is right to reject rather than to select a juror. State v., Deliso \[N. J. Err. & App.\] 17. Each defendant not entitled to six challenges where no fact at issue between them, though one different issue between one defendant and plaintiff. Willow v. Spreen \[Tex. Civ. App.\] 112 SWV 1098.

01. People v. Schmitz \[Cal. App.\] 94 P 407; Butler v. Hands, 43 Ccolo, 641, 95 P 920, No right of Peremptory challenges in civil actions at common law. Colfax Nat. Bank v. Davis Implement Co. \[Vnas.\] 98 P 823. Joint defendants in misdemeanor must join in challenge. Wilcox v. U. S. \[C. C. A.\] 161 P 109.

01. Amplitude in selection of special jury. Construting statutes. Butler v. Hands, 43 Ccolo, 641, 95 P 920.

01. Under Mansf. Dig. $ 2240, 2247 (Ind. T. Ann. St. 1899, & 1585, 1590), Joint defendants in prosecution for misdemeanor are entitled to three challenges. Wilcox v. U. S. \[C. C. A.\] 161 F 109. State entitled to six permptory challenges where punishment is hard labor. State v. West, 120 La. 747, 45 S 594.

01. Where statutes provide that accused aarigned before common pleas may have two preemptory challenges, and same number in superior court except in certain classes of cases where more are allowed according to punishment, an accused cannot multiply the challenges by the number of counts in the complaint. State v. McGee, 80 Comm. 614, 69 A 169.

01. Under Cr. Code 1896, $ 8008, providing for preemptory challenges to substituted jurors summmoned in case of mistaken names, and $ 8015, allowing accused 21 challenges in capital cases, the former challenges are in addition to the latter ones allowed. Smith v. State \[Ala.\] 46 S 236.

01. Several parties on side must join in challenge under Ballinger's Ann. Codes & St. # 4979 (Pierce's Code, & 593). Coltax Protection, 42 C. L. 28.

01. Bank v. Davis Implement Co. \[Vnas.\] 96 P 823. Joint defendants in misdemeanor must join in challenge. Wilcox v. U. S. \[C. C. A.\] 161 P 109.

01. Each defendant not entitled to six challenges where no fact at issue between them, though one different issue between one defendant and plaintiff. Willow v. Spreen \[Tex. Civ. App.\] 112 SWV 1098.

01. State v., Deliso \[N. J. Err. & App.\] 69 A 218. Where Jurcs placed hand on book and celerk commenced to recite cath, it was not error to permit preemptory challenge. Julocaliction d'aldi direction to administer oath absent. Id. A contestant in a will contest has no right to preemptorily challenge a juror previously accepted. Hodge v. Rambow \[Ala.\] 45 S 673.

01. Johnson v. State \[Okl. Cr. App.\] 9 12 Cur. Law. JURY $ 8D. 493 presented by a challenge is one of mixed law and fact to be tried as any other issue upon evidence.\[23\] Doubts as to competency should be resolved in favor of the accused,\[24\] but a party has no vested interest in the selection of any particular juror.\[25\] The separate examination of veniremen is a matter of discretion.\[28\] The challengor has the burden of establishing incompetency,\[27\] and the failure to examine is a waiver of disqualification.\[28\] Some states provide for the determination of impartiality by statutory questions, interrogated by the judge upon proper challenge.\[29\]

_Scope of examination.\[See 10 C. L. 651\]-It is proper to permit questions for the intelligent exercise of the peremptory challenge \[30\] or to ascertain if the juror is disqualified.\[31\] Pertinent questions in good faith are proper though directed to matters not in issue,\[32\] but totally irrelevant questions,\[33\] questions tending to encourage-a disagreement \[34\] by alluding to former trials,\[35\] should be avoided, and the court may require questions to be asked in a clear and intelligible manner.\[36\] The allowance of additional examination after a juror is sworn is discretionary.\[37\] A defendant has a right to rely on the answers given.\[38\] A question as to whether a juror can act on the evidence and instructions may be excluded in eminent domain proceedings,\[39\] and._

petency. Johnson v. State \[OKL. Cr. App.J\] \[mack Const. Co., 123 App. Div. 30, 107 NYS: 97 P 1059. 750. Question whether juror was stockholder 28,24. Johnson v. State \[OKL. Cr. App.J\] 97 In specific insurance company not authorised. 167. 168. 169. 169. 169. 169. 169. 169. 170. 169. 169.

the refusal of an examination of jurors in such proceedings is not erroneous when the complainant had neglected one opportunity.\[40\]

\_Review of trial of challenges\[41\]--\_The decision that a juror is qualified will be reversed only in case of above.\[42\] The exercise of peremptory challenges is not reviewable,\[43\] nor is a rule adopted by the trial court for the exercise of peremptory challenges.\[44\]

\_Improper overruling or sustaining of a challenge as a ground for reversal.\[45\]--\_Error in excluding a juror is not ground for reversal where the jury was fair and impartial,\[46\] nor will a reversal be granted for the erroneous overruling of a challenge where the objecting party fails to exhaust his peremptory challenges,\[47\] although if a party is compelled to use a peremptory challenge and an objectionable juror is thereafter forced upon him, relief will be granted.\[48\] A presumption of prejudice arises from the erroneous overruling of a challenge for cause,\[49\] where the record shows the exhaustion of the peremptory challenges.\[50\] Objections are not available after the verdict,\[51\] though the disqualification was not discovered until then.\[52\] It is reversible error to excuse a juror for a defect which may be waived.\[53\]

SS 9. \_Talesmen, special venties and additional jurors.\[55\]\_See 10 C. L. 552_Where the regular vernier is, exhausted, an open \[54\] or special ventire may be drawn,\[55\] and a person

**40.** Where respondent had notice of time of empanelment and swearing with opportunity to examine and object. Columbia Helights Reality Co. v. MacFarland, 31 App. D. C. 112.

**41.** See 10 C. L. 551. See, also, Appeal and Review, 11 C. L. 118; Saving Questions for Review, 10 C. L. 1572.

**42.** Decker v. State, 85 Ark. 64, 107 SWP 182; People v. Mausphs \[Cal. App.\] 96 P 407; Bennis v. Omaha \[Neb.\] 116 NWP 31; State v. Banner \[N. C.\] 63 SE 84; Sansour v. Glensjvon Dye Works, 28 R. R. C., 539, 8 A 545; Essary v. State, 53 Tex. Cr. App. 598, 111 SWP 927. Court only allowed to review decision where erroneous in view of evidence as matter of law. People v. Duncan \[Cal. App.\] 96 P 414. Where bill of exceptions fails to give all evidence as to juror's qualification, decision of trial court will be sustained. Sansouri ver v. Glensjvon Dye Works, 28 R. R. 539, 68 A 545. Finding as to qualification will be approved on review if supported by evidence, though conflicting. Id.

**43.** Shane v. Bute Elec. R. Co., 37 Mont. 59, 97 P 958.

**44.** Unless abuse appears. State v. McCorkle, 74 **Kan.** 280, 86 P 134.

**45.** See 10 C. L. 552. See, also, Harmless and Prejudicial Error, 11 C. L. 1680.

**46.** State v. McGee, 80 Conn. 614, 69 A 1059; Johnson v. Waterloo \[Iowa\] 119 NWP 70; Sansour v. Glensjvon Dye Works, 28 R. I. S39, 8 A 545; McBrugh v. Rhode Island Co. \[R. I.\] 69 A 853; West v. State \[Tex. Cr. App.\] 114 SWP 142. St. 1895, 8 281, provides that no irregularity in empaneming shall set safety vertical unpleasant was injured. Okrehauser v. State, 116 Wis. 111, 116 NWP 76. No evidence to support verdict for applicant. Siaughter v. McManignal 116 NWP 726; People v. Mausphs \[Cal. App.\] 96 P 407; Rogers Grain Co. v. Tanton, 133 Ill. App. 53; Olmstead v. Noll \[Neb.\] 117 NWP 102.

**47.** State v. Banner \[N. C.\] 63 SE 84. Pre-sumption of competent and impartial juror, unless record on appeal affirmatively shows exhaustion of peremptory challenge, Johnson v. Waterloo \[Iowa\] 119 NWP 70.

**48.** No evidence that obnoxious juror was used. Missouri, etc., R. Co. v. Steele \[Tex. Civ. App.\] 110 SWP 171; Rice v. State \[Tex. Cr. App.\] 112 SWP 299.

**49.** People v. Schmitz \[Cal. App.\] 94 P 407. Error in overruling challenge for cause not cured by fact that accused might have exercised peremptory challenge where all peremptory challenges were used. Shane v. Bunte Elec. R. Co., 37 Mont. 599, 97 P 958.

**50.** Exhaustion of peremptory challenges not presumed. People v. Maughs \[Cal. App.\] 9 * 12 (ur. Law. 'JURY SS 12. 495)

cannot complain because he was convicted by such a jury." The names required for a special venire must' be drawn by the proper officer." The issuance of a new venire returnable instanter is proper in condemamation proceedings." In Alabama each capital case must have its own separate venire." Mistake in the names of the veniremen is not ground for quashal," or the fact that the list furnished the accused did not state the residences of the jurors." In a felony case in Virginia, the court may provide for the drawing of jurors in his absence by appointing a commissioner of chancery."

\*\*SS 10. \_Special and struck juries and juries of less than twelve.\_See s C. L. 635--A special or struck jury is authorized in New York " in an intricate or important case."

\*\*SS 11. \_Swearing.\_See s C. L. 635--The fact that the jury is not sworn may be waived."

\*\*SS 12. _Custody and discharge of jurors and jury._"The power to discharge a jury in a civil cause during trial is not discretionary."

\*\*56. Under Sayles' Ann. Cliv. St. 1897, art. 1150, and Code Cr. Proc. art 695, person con- victed of offense in fourth week of term can- not complain because jury was selected by as am'd by L. 1944, p. 1465, c602, SS 5, sheriff at court's order. instead of by jury commission, and such jurors were impartial where jury commission selected jurors for three weeks but disposition of business re- quired another week. Green v. State, 53 Tex. Cr. App. 490, 110 SWP 920. 57. Under Acte 30th Leg. (L. 1907) p. 269, c. 139, providing that keys for wheel con- tainning names of jurors shall be kept by sheriff and district clerk, who shall draw names, etc., and that when special venire is ordered "clerk" shall draw names require- or where special jury is required by impor- ed. a special venire in criminal district court of county is properly drawn by district clerk to indicate importance and intricacy of case of county. Lee v. State \[Tex. Cr. App.\] 113

sharp 501: Under Ambient Domain Act, SS 7; Hurd's

**58.** Under Ambient Domain Act, SS 7; Hurd's

**59.** Error to draw and summon one venire

\*\*for two or more cases. Walker v. State \[Ala.\] 45 S 640. Under Cr. Code 1896, SS 5004, 5006 (Cr. Code 1897, SS 7263, 7265), providing for drawing of special jury in capital cases. 501, 124 App. Div. 872, 108 NYS 801. Case in- whlch with panel of petriu jurors for week

**50.** Under Ambient Domain Act, SS 7; Hurd's

**51.** Under Ambient Domain Act, SS 7; Hurd's

**52.** Under Ambient Domain Act, SS 7; Hurd's

**53.** Under Ambient Domain Act, SS 7; Hurd's

**54.** Under Ambient Domain Act, SS 7; Hurd's

**55.** Under Ambient Domain Act, SS 7; Hurd's

**56.** Failure to object during trial that jury had not been sworn a waiver of defect. Tex- jurors willmond. Code 1896, SS 5007. Walk-

**57.** State \[Ala.\] 45 S 640. Mistake of sec- and initial QT's change not ground for quashal. Patterson v. State \[Ala.\] 47 S 52. 119. Where n. other person by that name in bet. McEyre v. State \[Ala.\] 47 S 802. 11986, as to custody and conduct; New Trial and Trust of Judgment, 10 C. L. 635. of list of jurors had corrected mistake of misconduct as ground for new trial.

**58.** Under Ambient Domain Act, SS 7; Hurd's

**59.** Under Ambient Domain Act, SS 7; Hurd's

**50.** Names should be discarded and other jurors summmed. Code 1896, SS 5007. Walk-

**51.** Where n. trial by jury may be waived, or. State \[Ala.\] 45 S 640. Mistake of sec- and initial QT's change not ground for quashal. Patterson v. State \[Ala.\] 47 S 52. 119. Where n. other person by that name in bet. McEyre v. State \[Ala.\] 47 S 802. 11996, as to custody and conduct; New Trial and Trust of Judgment, 10 C. L. 635. of list of jurors had corrected mistake of misconduct as ground for new trial.

**52.** Under Ambient Domain Act, SS 7; Hurd's

**53.** Under Ambient Domain Act, SS 7; Hurd's

**54.** Under Ambient Domain Act, SS 7; Hurd's

**55.** Under Ambient Domain Act, SS 7; Hurd's

**56.** Under Ambient Domain Act, SS 7; Hurd's

\*\*

## 13. Compensation, sustenance and comfort of jurors

A provision for compensation for the attendance of jurors entitles them to a fee though they did not serve.\[68\] In a lunacy proceeding in New York, the jurors are entitled to but one fee, regardless of the length of the hearing.\[69\] The allowance to the trustee of the jury fund of three per cent of the fines and forfeitures collected in Kentucky gives him no interest in damages awarded on the affirmance of a judgment for the commonwealth.\[70\] The refusal of a county treasurer to pay a warrant for the services is not enforcible by mandamus.\[71\]

## 1. The Office

Ings, Issues and Proof, 508. Verdict and Judgment, 510. Execution, 512.

## 2. Civil Jurisdiction

A 512. Bonds, 516. Process or terminating Jurisdiction, 501. The Amount in Controversy, 501. Title to The Record, 519. Dismissal, 519.

Pleadings on Appeal, 520. Where the Glection, 503.

A 512. Procedure In Jussices' Courts, 508. The Docket and Other Records, 505. Change

Error, 512.

C 512. Proces and Appearance, 506. Plead-

F 512. Bonds, 516. Process or terminating Jurisdiction, 501. The Amount in Controversy, 501. Title to

The Record, 519. Dismissal, 519.

Pleadings on Appeal, 520. Where the Glection, 503.

A 512. Procedure In Jussices' Courts, 508. The Docket and Other Records, 505. Change

Error, 512.

C 512. Proces and Appearance, 506. Plead-

F 512. Bonds, 516. Process or

F 512. Bonds, 517. The Transcript, 518.

The Record, 519. Dismissal, 519.

Pleadings on Appeal, 520. Where the Glection, 503.

A 512. Procedure In Jussices' Courts, 508. The Docket and Other Records, 505. Change

Error, 512. Procedure In Jussices' Courts, 508.

12 Cur. Law. JUSTICES OF THE PEACE SS 3. 497 .

are elected.\* The legislature may confer on one of the justices of the peace in a city exclusive, civil and criminal jurisdiction over cases between residents of a city which was before possessed by four justices and make the one justice the successor of the other justices upon the separation of their terms.\* Appointees in case of vacancies usually hold office until the "next general election," \*9 and elections must be held at the time prescribed by statute. \[81\]

SS 2. \_Compensation, duties, and liabilities.\_See 10 C. L. 534--A justice collecting an unlawful fee is guilty of extortion. \[82\] Where the fee is to be collected for the benefit of another, the justice is liable if he fails to collect it. \[83\] In some states an annual salary is given in full compensation for all services performed. \[84\] Failure on the part of the county attorney to notify the sureties on the justices' official bond of the fact that the justice had collected and neglected to pay over costs due to the county attorney does not release the sureties, \[85\] but any act on the attorney's part extending the time for payment without the sureties' consent operates as a discharge. \[86\]

SS 3. \_Civil jurisdiction.\_See 10 C. L. 554--Justice courts are courts of limited and special jurisdiction, \[81\] possessing only such powers as are conferred by statute, \[88\] and appellate courts take judicial notice of the population of a county for the purpose of determining what laws govern. \[89\] There is no intendment in their favor \*0 and \[89\]

78. Adoption of Gen. Charter Law (St. 1898, 1990) 925-61, held not to deprive Justices of elty of powers exercised under special career until police justice was elected. Olson v. Hawkins, 115 Wis. 894, 116 NVP 18.

Aypointment by mayor of city having adopted 81.

of general charter (St. 1898, 1990) as anothorized by $ 525-81, even though premature, held to tender appliance a de facte police justice. Id.

79. Kalamazoo Amended Charter Loc. Acts being fixed at $1,500 in full for all services 1907, p. 883, Acts No. 648, and especially $ 18, c. 29, creating municipal court for city of Kalamazoo, held not unconsutritional as de-priving constitutional officers of their office, constitution not requiring more than one Justice in a city. Const. art, f. $ 11, 17.

Strifing v. Baden \[Mich.\] 15 Det. Leg. N. 948, 118 NVP 740. Under act held exclusive jurisdiction of justice was not suspended until the expiration of the other justice's terms, so as to make his jurisdiction before that time concurrent with that of the other justices. Id.

80. Next general election in Wilson's Rev. & Ann. St. 1903, $ 8750, means next general election at which the particular class of officers is to be chosen. Wainwright v. Fore \[Okl.\] 97 P 831. Apointee to fill vacancy of officer elected at election for adoption of constitution held to hold until election of 1910, that being first general election at which a Justice could be elected to fill vacancy under constitution and statutes. Id.

01. Election of justices of the peace, held in Nov. 1907 to take effect January 1, 1908, to succeed incumbents elected in November, 1904, for terms of three years and took office in April, 1905, premature and void, and petitions in quo warrantorted against such incumbents will be dismissed. State v. \[Brown, 11 Ohio C. C. (N. S.) 107.

01. State v. Cooper \[Tenm.\] 113 Syv 1048. A justice has no right to collect a fee for taking a ball bond until it has been adjudged upon some disposition of the case by final judgment that the defendant was liable for the same. Id.

01. Under Laws 1899, p. 495, c. 286, where 15 Curr. L. - 33.

498 JUSTICES OF THE PEACE $ 3. 13 Cur. Law. it is essential that the jurisdictional facts appear of record,"1 and in an action on a justice's judgment, claimant therein has the burden of showing that the justice had jurisdiction,"2 and to establish the same, the issuance and service of summons as required by law must be shown."2 Technical defect in the summons is not, however, jurisdictional."4 Where a justice has obtained jurisdiction,"6 it continues until divested,"6 and there is a presumption that the subsequent proceedings are regular, unless the alleged irregularity appears upon the face of the record or there is an omission to make of record that which the law expressly requires shall be so entered,"7 and where the record in an ordinary action shows an appearance by the parties, the want of jurisdiction of the person is waived where no objection is raised thereto."8 A justice loses jurisdiction of a cause by his unauthorized denial of a timely request for a jury,"9 by an unauthorized continuance1 or adjournment," by failure to make a sufficient entry as to adjourned date," by writing up and signing the judgment rendered,"4 and by giving a party to understand that proceedings are
91\. Jurisdiction must appear on face of proceedings. Smith v. Lyke Rock Co. \[Mo.\] fees. New Jersey Soc. for Prevention of Corp.\] 11 July 831: Fablen v. Grabow \[Mo.\] 11 July 89 114 SWV 80; Little Rock Brick Works v. Hoyt \[Arkcl 112 SWV 830, Under Fact. St. 1899, 1. \[Were Justice was absent for more than $ 8385 \[Ann. St. 1906, P. 2124\], record rectif.\] 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 July 89 11 11 July 89 1 12 Cur. Law. JUSTICES OF THE PEACE SS 3. 499 ended, and his failure to either announce his decision or an adjournment of the hearing,\* and the making of an order afterwards is a constructive fraud which avoids the judgment.\* Upon the due and regular taking of an appeal the justice loses jurisdiction of the action,\* but the fact that proofs are not made or judgment entered on the return day named in the summons does not ipso facto oust the court of jurisdiction.\* In Arkansas the jurisdiction of the justice over the subject-matter in controversy is derived from the constitution, but the mode of proceeding is prescribed by statute.\* Jurisdiction is sometimes confined to actions on contract \[10\] and sometimes extended to a limited class of actions ex delicto.\[11\] Under the various statutes a justice of the peace has been held to have jurisdiction of actions for penalties,\[12\] or of actions by a county against a county judge and his sureties on the former's bond for the recovery of fees unlawfully collected,\[18\] and to award consequential damages for injuries to personal property occasioned by mere negligence;\[14\] but he cannot entertain suits against a common carrier for failure to theity to open and amend it. Pettit v. \[to recover SS100 paid to insurance company, * Burke, 139 Ill. App. 419. * Garishment proceedings summmons unfort and sues for money had and received, * der Clv. Code, SS 249 (Cobbeys's Ann. St. 1903, * 1228). Johnson v. Samuleson \[Neb.\] 117 NW 470. * Entry of judgment against garnisheber after discharge, no notice being given, held * constructively fraudulent. Johnson v. Samuleson \[Neb.\] 117 NW 470. * Garishment proceedings in justice * counter after perfecting appeal held void, court having lost jurisdiction. Hopkins v. McCauser, * her, 103 Minn. 79, 114 NW 468. After appeal has been perfected, fact that an appeal bond has been given and is in full force and effect does not prevent commencement of garnishment proceedings in district court; appeal bond not bond provided for by Rev. Laws 1905, 4256. Hopkins v. McCauser, 103 Minn. 79, 114 NW 468. Want jurisdiction waved by a defendant who having pleaded the general issue causes case to be certified to appellate court which has jurisdiction. LaBarre v. Bent \[Mich.\] 15 Det. Leg. N. 822, 118 NW 6. * Where court entered default after expl-ration of one hour after time fixed for hearing, failed to make order postponing case and three days thereafter heard proofs and entered judgment, proceeding though irregular and render judgd. * Upon the due and regular taking of an appeal the justice loses jurisdiction of the action,\* but the fact that proofs are not made or judgment entered on the return day named in the summons does not ipso facto oust the court of jurisdiction.\* In Arkansas the jurisdiction of the justice over the subject-matter in controversy is derived from the constitution, but the mode of proceeding is prescribed by statute.\* Jurisdiction is sometimes confined to actions on contract \[10\] and sometimes extended to a limited class of actions ex delicto.\[11\] Under the various statutes a justice of the peace has been held to have jurisdiction of actions for penalties,\[12\] or of actions by a county against a county judge and his sureties on the former's bond for the recovery of fees unlawfully collected,\[18\] and to award consequential damages for injuries to personal property occasioned by mere negligence;\[14\] but he cannot entertain suits against a common carrier for failure to the identity to open and amend it. Pettit v. \[to recover SS100 paid to insurance company, * Burke, 139 Ill. App. 419. * Garishment proceedings summmons unfort and sues for money had and received, * Hornough justice has no jurisdiction of actions for penalties,\[12\] or of actions by a county against a county judge and his sureties on the former's bond for the recovery of fees unlawfully collected,\[18\] and to award consequential damages for injuries to personal property occasioned by mere negligence;\[14\] but he cannot entertain suits against a common carrier for failure to the identity to open and amend it. Pettit v. \[to recover SS100 paid to insurance company, * Burke, 139 Ill. App. 419. * Garishment proceedings summmons unfort and sues for money had and received, * Hornough justice has no jurisdiction of actions for penalties,\[12\] or of actions by a county against a county judge and his sureties on the former's bond for injuries to personal property occasioned by mere negligence;\[14\] but he cannot entertain suits against a common carrier for failure to the identity to open and amend it.

500 JUSTICES OF THE PEACE SS 3. 12 Cur. Law.

perform a public duty,\[15\] nor an action for the killing of live stock in the absence of evidence showing that the casualty occurred either in the township where the action was brought or in an adjoining township,\[16\] and jurisdiction over trespass exists only where the trespass is vi et armis, and the injury is immediate.\[17\] Ho has jurisdiction of forcible entry and detainer proceedings,\[18\] unless the title to reality is involved,\[19\] but the right to proceed in a summary proceeding to obtain possession is lost and confided with the appellate court upon the filing of affidavit and recognizance as provided by statute.\[20\] While a justice has no equitable jurisdiction,\[21\] he may enforce by legal remedies the collection of money which equitably belongs to a party,\[22\] and especially where by assignment the plaintiff has acquired both the legal and equitable title.\[23\] The jurisdiction of a proceeding to lay out a road attaches upon the filing of a certificate of the highway commissioners,\[24\] and a certificate in substantial compliance with the requirements of statute is sufficient to confer jurisdiction.\[25\] Under statute providing for the filing of affidavits and confinement of hogs in cars, loss from de-preiation in market prices, extra feed, bills, etc. Cleveland, etc., R. Co. v. McNutt, 138 Ill.

Allegation in petition showing suit to recover damages for breach of duty on part of railway company, justice without jurisdiction.

The jurisdiction of a proceeding to lay out a city. Code 1895, $ 4068. Smith & Simpson Lumber Co. v. Louisville & N. R. Co. (Ga. App.) 61 SE 472: Zuber V. Central of Georgia

## 20. Under Act 1836, $ 14, 117, proceedings

before justice and 6 jurors confided in court etc. Cleveland, etc., R. Co. v. McNutt, 138 Ill.

Allegation in petition showing suit to recover damages for breach of duty on part of railway company, justice without jurisdiction.

The jurisdiction of a proceeding to lay out a city is involved,\[19\] but the right to proceed in a summary proceeding to obtain possession is lost and confided with the appellate court upon the filing of affidavit and recognizance as provided by statute.\[20\] While a justice has no equitable jurisdiction,\[21\] he may enforce by legal remedies the collection of money which equitably belongs to a party,\[22\] and especially where by assignment the plaintiff has acquired both the legal and equitable title.\[23\] The jurisdiction of a proceeding to lay out a road attaches upon the filing of a certificate of the highway commissioners,\[24\] and a certificate in substantial compliance with the requirements of statute is sufficient to confer jurisdiction.\[25\] Under statute providing for the filing of affidavits and confinement of hogs in cars, loss from de-preiation in market prices, extra feed, bills, etc. Cleveland, etc., R. Co. v. McNutt, 138 Ill.

Allegation in petition showing suit to recover damages for breach of duty on part of railway company, justice without jurisdiction.

The jurisdiction of a proceeding to lay out a city is involved,\[19\] but the right to proceed in a summary proceeding to obtain possession is lost and confided with the appellate court upon the filing of affidavit and recognizance as provided by statute.\[20\] While a justice has no equitable jurisdiction,\[21\] he may enforce by legal remedies the collection of money which equitably belongs to a party,\[22\] and especially where by assignment the plaintiff has acquired both the legal and equitable title.\[23\] The jurisdiction of a proceeding to lay out a road attaches upon the filing of a certificate of the highway commissioners,\[24\] and a certificate in substantial compliance with the requirements of statute is sufficient to confer jurisdiction.\[25\] Under statute providing for the filing of affidavits and confinement of hogs in cars, loss from de-preiation in market prices, extra feed, bills, etc., R. Co. v. McNutt, 138 Ill.

Allegation in petition showing suit to recover damages for breach of duty on part of railway company, justice without jurisdiction.

The jurisdiction of a proceeding to lay out a city is not allowed to recover damages for breach of duty on part of railway company, justice without jurisdiction.\[26\] Under statute providing for the filing of affidavits and confinement of hogs in cars, loss from de-preiation in market prices, extra feed, bills, etc., R. Co. v. McNutt, 138 Ill.

The jurisdiction of a proceeding to lay out a city is not allowed to recover damages for breach of duty on part of railway company, justice without jurisdiction.\[27\] Under statute providing for the filing of affidavits and confinement of hogs in cars, loss from de-preiation in market prices, extra feed, bills, etc., R. Co. v. McNutt, 138 Ill.

The jurisdiction of a proceeding to lay out a city is not allowed to recover damages for breach of duty on part of railway company, justice without jurisdiction.\[28\] Under statute providing for the filing of affidavits and confinement of hogs in cars, loss from de-preiation in market prices, extra feed, bills, etc.

12 Cur. Law. JUSTICES OF THE PEACE SS 3.

for their amendment in attachment proceedings, the jurisdiction of the justice is not dependent upon a preliminary showing of facts but upon the actual existence of the facts on which jurisdiction is made to. rest,26 and such facts may be shown at any time before trial providing they existed at the time of presentation of the original insufficient affidavit; hence, where defendant appears generally and goes to trial without objecting to the original affidavit, the jurisdictional facts are thereby admitted and objections to the attachment waived.27 A justice of another township has no jurisdiction to sit in place of another justice in the absence of a written request from the latter,28 but so long as a necessary absence continues, a substitute justice requested to attend in another's behalf retains jurisdiction to do and perform any act required in the proceeding.29 Prohibition lies to prevent a justice from exceeding his jurisdiction.30

\_Residence determining jurisdiction.\_See 10 C. L. 556--A justice's jurisdiction is usually coextensive with the boundaries of the county,31 but all actions at law commenced before a justice of the peace must be brought in the township, village of city where the plaintiff or the defendant or one of several plaintiffs or defendants reside,32 and before one may be sued elsewhere than in his own county and precinct, the case must come clearly within one of the exceptions in the statute.33 In New York a justice of any town has jurisdiction of a defendant who is a nonresident of the county in which the town is situated, though plaintiff be also a nonresident, provided the defendant is within the town when the action is commenced,34 and one may be sued in any county within the state where he resides; 35 but he has no jurisdiction of an action between two nonresidents of the state.36 A justice of the city and county where a note is payable has jurisdiction of an aciton on such note,37 and by the service of a summons on the defendant jurisdiction of his person is also obtained.38_The amount in controversy_See 10 C. L. 556 is determined by the sum demanded,39 but a cause for a sum greater than the jurisdictional amount cannot be split up

well as damages be determined, under "Rules and Regulations prescribed in act in relation to public roads," SS 41, 54. Commissioners of Highway v. Hucker, 138 Ill. App. 252, 26, St. 1898, 51 3701, 3702. Givans v. Searle, 138 Wis. 608, 118 NWV 202.

27 Appearance held to give justice jurisdiction not only to render personal judgment but to proceed with attachment. St. 1898, 3701, 3702. Givans v. Searle, 138 Wis. 608, 118 NWV 202.

28 Under Code Civ. Proc. SS 105, where no request made, held justice was without jurisdiction. Harlow v. Gladding, McBean & Co. \[Cal. App.\] 93 P 400.

20 Under Coby's St. 1907, & 2037, substitute authorized to file and approve bond and make transcript, nothing showing return of regular justice before performance of acts. Carmichael v. McKay \[Neb.\] 116 NWV #76.

30 Martin v. Richmond \[Ya.\] 62 SE 800.

31 Rev. St. 1887, & 3850, & 885. State v. Noyes \[Idah\] 96 P 435.

32, Gen. Laws 1885, & 33, p. 151, amending Gen. St. 1878, c. 65, &, held a jurisdictional requirement. Stevenson v. Murphy \[Minn.\] 119 NWV 47. Gen. St. 1894, supd. 3, & 4960, as amended by c. 221, p. 409, Laws 1899. Union Stonevare Co v. Lang, 103 Minn. 466, 115 NWV 271. Requirements held not unreasonable. Id. Afflawit presented in support of motion for dismissal held sufficient to make out prima facie case, Id.

33. Johnson v. Lanford \[Tex. Civ. App.\] 114 and Regulations prescribed in act in relation to public roads," SS 41, 54. Commissioners of Highway v. Hucker, 138 Ill. App. 252, 26, St. 1898, 51 3701, 3702. Givans v. Searle, 138 Wis. 608, 118 NWV 202.

27 Appearance held to give justice jurisdiction not only to render personal judgment but to proceed with attachment. St. 1898, 3701, 3702. Givans v. Searle, 138 Wis. 608, 118 NWV 202.

28 Under Code Civ. Proc. SS 105, where no request made, held justice was without jurisdiction. Harlow v. Gladding, McBean & Co. \[Cal. App.\] 93 P 400.

20 Under Coby's St. 1907, & 2037, substitute authorized to file and approve bond and make transcript, nothing showing return of regular justice before performance of acts. Carmichael v. McKay \[Neb.\] 116 NWV #76.

30 Martin v. Richmond \[Ya.\] 62 SE 800.

31 Rev. St. 1887, & 3850, & 885. State v. Noyes \[Idah\] 96 P 435.

32, Gen. Laws 1885, c. 33, and the defendant be vexed with several suits.40 Where the amount claimed is with-in the jurisdiction, the court may adjudicate the controversy though the accumulation of interest, while the action is pending, increases the amount due to more than the jurisdictional amount;41 but the judgment must in no case exceed the statutory amount.42 The rule against splitting demands does not apply to actions to enforce mechanics' lens claims.43 Sometimes the amount is determinable by the amount adjudged,44 and the justice has no authority to determine that the total amount of the accounts of partners to an action exceeds the statutory amount over which he has jurisdiction,45 hence he has no power to dismiss except upon proof of that fact, and an inspection of the pleadings is insufficient.46 The value of the rights involved in forcible entry and detainer proceedings cannot serve to oust the jurisdiction of the justice court,47 and provisions limiting the jurisdiction in replevin actions, may apply only to the plaintiffs' actions in which case there is no limit to the amount that may be rendered when the finding is for the defendant.48 In Illinois a justice has no jurisdiction in a replevin action where the property involved is worth more than two hundred dollars,49 and it is proper to permit the jury to determine the value of the property involved in order to determine whether such value is in excess of the statutory amount.40 Consent to jurisdiction over an amount greater than that fixed by statute must be in writing,61 but a re-mittitur of all above the jurisdictional amount sustains the jurisdiction on appeal, in cases where the amount demanded is doubtful.42

\_Title to reality.See 10 C. L. 857.--\_A justice has no jurisdiction of summary proceedings except where there is the relation of landlord and tenant53 as he has no 12 Cur. Law. JUSTICES OF THE PEACE SS 4. 503

jurisdiction of actions in which the title to real estate is involved,\[54\] and as soon as a bona fide claim to a fee-simple ownership to land involved is made by the defendant, jurisdiction of the cause is ousted,\[55\] but jurisdiction over a proceeding to dispossess persons unlawfully in possession of the land of another is not affected by defendant's oath that the title to the land may be raised without any showing of title or justification.\[56\] In some states on account to the necessity of proof of land titles, jurisdiction of actions for injury to land \[57\] or objection of easements \[58\] is denied.

\_Objections to the jurisdiction.\_See 10 C. L. 585--In an action in a justice court judgment, the defendant may by way of answer attack the jurisdiction of the court,\[59\] but the facts upon which he relies must be properly pleaded,\[60\] and the jurisdiction of a justice in a proceeding to lay out a road cannot be questioned either before him or before the county court upon appeal, but only by certiorari.\[61\] Where upon the face of a complaint in a repelvin suit the justice has apparent jurisdiction and on appeal the value of the property is found to exceed the statutory amount and the case is dismissed, the sureties upon the bond are estopped from denying the justice's jurisdiction.\[62\] Where the record does not show jurisdiction, the judgment is a nullity and may be callaterally attacked.\[63\]

SS 4. \_Procedure in justices' courts.\[56\]\_See 10 C. L. 585--The commencement of an action before a justice of the peace dates from the delivery of the summons to the constable for service.\[54\] Justices are not supposed to be trained in technical rules of pleading and practice,\[68\] and mere informalities in the conduct of justices' courts, where no essential right or interest of either party suffers, prejudices, should be overlooked.\[69\] A litigant is not required to conduct the proceeding by counsel.\[69\] In some states a justice may grant a new trial,\[69\] but usually he has no power to

raised decisive question of the relation, which was, within justice's jurisdiction, held \[60\]. General denial of jurisdiction or of servocles of summons, not auflclient. Defendant action was not transferable as involving title must plead facts sufficient to constitute a to really, Richmond v. California Superior. Ct. cause of action to came extent as though he \[Cal. App.\] 98 P 57. Quansel teasinsum- \[had brought an original action attacking the client, proof must show either express letting judgment for want of jurisdiction. Steven- or letting by implication, and occupancy as an \[16\], but not inconsistent with statement of facts \[16\].

84 Martin v. Richmond \[Ya.\] 82 SE 800. Under Act of March 20, 1810 (5 Sm. L. 161), even though contractual obligation to pay \[61\]. That being only way provided by stat- \[62\]. It is not \[63\]. It is not \[64\]. It is not \[65\]. It is not \[66\]. It is not \[67\]. It is not \[68\]. It is not \[69\]. It is not \[69\].

- 504 JUSTICES OF THE PEACE SS 4. 12 Cur. Law. set aside a judgment rendered by him\*\* or to grant a new trial,\*\* and while he may amend a judgment in matters of form or otherwise not affecting its legal tenor or effect,\*\* yet he is without power to amend or otherwise enlarge or diminish its original scope and efficacy;\*\* and it has been held that after a judgment has once been written up and signed, he is without power to open and amend the same thereafter.\*\* He may take judicial notice of proceedings on his own docket and act thereon,\*\* must disregard any error in the pleadings or proceedings not affecting the substantial rights of the adverse party,\*\* and may in his discretion refuse a continuance.\*\* Where, by appearance in a proceeding on adjournment, jurisdiction is conferred over a cause, a party is bound to take notice of a continuance ordered at the instance of the adverse party on the day to which the first adjournment was taken.\*\* Where statutes do not require motions for continuance to be in writing, an oral application or motion may properly be entertained.\*\* When acting within the limits of his jurisdiction, the proceedings before a justice are presumed regular.\*\* The demand for a jury must be timely made,\*\* but when timely made, in a proper case,\*\* it cannot lawfully be denied for failure to advance the venire fees,\*\* though failure to make an advance deposit for jurors' and constables' fees as required by statute and as directed by the justice waives a jury trial.\*\* Objections propter defectum to jurors are of no avail after verdict,\*\* and it is not error to allow the jury to take an original summons with them during the deliberation of a case.\*\* A garnishment in a justice's court follows the attachment under which it issues, and the garnisee is required to appear and answer at the term to the rendering of a judgment, the magistrate \[estimony he would have given, or that has power to grant a new trial. Williams v. Rickerbanker, 79 S. C. 467, 60 SE 112. 112. 113. 114. 115. 116. 117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 191. 192. 193. 194. 195. 196. 197. 198. 199. 199. 200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. 211. 212. 213. 214. 215. 216. 217. 218. 221. 222. 223. 224. 225. 226. 227. 228. 229. 230. 231. 232. 233. 234. 235. 236. 237. 238. 239. 240. 241. 242. 243. 244. 245. 246. 247. 248. 249. 251. 252. 253. 254. 255. 256. 257. 258. 259. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270. 271. 272. 273. 274. 275. 276. 277. 278. 279. 271. 279. 272. 274. 276. 277. 278. 279. 270. 271. 272. 275. 276. 277. 278. 279. 270. 271. 278. 279. 271. 272. 273. 274. 275. 276. 277. 278. 279. 270. 271. 279. 271. 272. 274. 278. 279. 270. 272. 271. 2 12 Cur. Law. JUSTICES OF THE PEACE SS 4. 505

which the attachment is returnable.84 A motion to dismiss the garnishment does not reach the attachment.87 Under statute consolidation of actions under certain circumstances is permissible.88 A motion for nonsuit is waived by defendant introducing evidence and not reviewing the motion after the close of all the evidence.89

_The docket and other records_ See 10 C. L. 658 need not be technically exact,90 and the presumption is in favor of the verity and regularity of the record and judgment where there is a sufficient showing of jurisdiction of the subject-matter and parties.91 Where from the docket entries it is inferable that both defendants were present, it is immaterial that only one is mentioned as being present when the case was called.92 Only entries required to be made in a justice's docket are prima facie evidence of the facts stated therein,93 and among other things the record must show that the statutory notice of intent to sue was given before beginning the action,94 but it need not show where and before whom the summons was returnable,95 nor where the entries were made.96 Affirmative recitals cannot be impeached by patrol,97 nor has the circuit court authority to compel a justice to amend his docket or any right to permit him to do so.98 The recital in a judgment that defendant failed to answer the complaint as required by law is sufficient to support a default, without a docket entry to that effect.99

\_Change of venue._89e 10 C. L. 658_--A case may be changed to some justice in an adjoining township of the same county whenever under statute a party is entitled to a change of venue,1 and when defendant believes that the justice before whom the action is brought is prejudiced against him, he may have the venue changed to the next nearest justice,2 but the right may be waived and is waived by consent to transfer to a third justice who thereupon properly has jurisdiction.8 Strict compliance with all statutory requirements is necessary in order that the duty to grant a change shall become mandatory,4 and a motion for a change should not be made after entering upon the trial on grounds which the moving party knew previous thereto.8

86 National Bank of Brunswick v. Prit-chard \[Ga. App.\] 61 SE 841. Under City. Code 1895, $ 4518, attachment having issued on April 19th and next regular term of court coming on April 20th, attachment properly \[In docket that suit was instituted after filings returnable to May term. Id. 87. National Bank of Brunswick v. Prit-chard \[Ga. App.\] 61 SE 841. 88. Under Key, St. 1899, $ 3958 (Ann. St. 1906, p. 2174), actions which may be instituted at different times and before different justices cannot be consolidated. Almee Realty Co. v. Haller, 128 Mo. App. 66, 10 SSV 688. 89. 88. 88.

506 JUSTICES OF THE PEACE SS 4. 12 Cur. Law.

The justice to whom a cause is sent may serve the notice of time and place of trial upon the defendant's attorney.6

\_Transfer of cause,\_See 10 C. L. 858--Under statute providing for the removal of any case in which the title to land "shall in any wise come in question," removal may be had where equitable but not legal title is in controversy," but a summary proceeding in unlawful detainer where the question of relation of landlord and ten-ant is raised is not removable as involving title to reality.8

\_Process and appearance,\_See 10 C. L. 859--An action may, under most statutes be commenced by the service of a summons without a complaint,9 or warrant and in such case the writ is usually required to state not only the names of both parties10 but the nature of the demand.11 Where the summons is served accompanied by a complaint, the defendant must look to the complaint to determine the cause of action against him.12 The summons, in some states, supplies the place of the petition or declaration in other courts, and is indispensable to the trial.13 If the original is still in existence and for any reason cannot be produced at the time of trial, the case should be continued until the original summons can be brought into court,14 and if it is not forthcoming when the case is called for trial, and if it has been lost or destroyed, the justice should have a copy established before proceeding with the trial.16 It must be served and return made within time prescribed.10 The affidavit upon which a summons is issued,17 the service of the summons,18 the return thereof,19 must be in compliance with statute. A substantial compliance as

Footnote 25: http://www.

to the issuance of summons is all that is required\[20\] and technical defects are not fatal.\[21\] In a suit against a domestic corporation,\[22\] the return of the officer need not show that the place of service was the place of residence of the person served.\[23\] Service in a proper case may be had by publication,\[24\] statutory requirements being complied with,\[25\] but, in case of service by publication, judgment by default cannot be rendered before the expiration of the statutory time allowed within which to make appearance.\[20\] Notice of intention to sue must be given before suit is brought in actions'requiring same,\[27\] and it is incumbent upon the plaintiff to prove that such notice was timely given\[28\] a sufficient statement of claim or demand must be filed before a summons can be issued.\[29\] The process of garnishment is returnable to the next regular term of court to be held at the place where the original judgment was obtained.\[30\] A justice having no jurisdiction to issue process running out of his county is confined to the statutory method of acquiring jurisdiction of the person,\[31\] and since he has no jurisdiction to issue summons to another county, where all the defendants reside outside of his county, he acquires no jurisdiction of defendants by so doing.\[82\] Jurisdiction is conferred by a general appearance \[88\] served. Duval v. Boston & M. R. Co., 68 Misc. \[Held, under Civ. Prac. Act, $ 617 (Laws 1869, 504, 111 NYS 629, Return of service, certify-p. 274, c. 112), amended by St. 1907, p. 28, c. ing that a copy was served, sufficient proof 16, improper to take judgment on expiration that instrument served was a copy, under B. of four weeks publication where personal & C. Comp. $ 2203, requiring service of copy service could not be had, defendant being but requiring that it be certified as such. entitled to 20 days in which to make appear-stanley v. Rachofsky, 50 Or. 472, 93 P 354. \[20\], since, as in cases of personal service against 20. Stanley v. Rachofsky, 50 Or. 472, 93 P 9 one served in a county other than the one 354. \[21\]. Error in year in which summons was made returnable. Code Civ. Proc. $ 2877, 1906, p. 2152, action to enforce a mechanic's Epstein v. Prosen, 112 NYS 174. Summons, App. 114 SV 80. Notice, under Rev. Code $ 2203, being otherwise proper held not fatal-ly defective for failure to state rate of intention for damages by respassing horses and eat demanded and date from which it was to be computed, where such facts appeared from convy of complaint served with summons. 1035. \[22\]. Where only evidence of notice of intention was filling mark on notice but where by defendants' trespassing animals, though did not show hour of issuance and delivery, failure to notify defendant that unless he appliances plaintiff will apply to court for relief commenced after notice given. Fabien v. demanded held sufficient where it notified defendant of the cause of action and required an answer or judgment by default would be taken. Bradey v. Mueller \[S. D.\] 118 NY 1035. \[23\]. Railroad corporation doing business in state though chartered by another state or territory held a domestic corporation for purpose of receiving service. Stout v. Baltimore & O. R. Co. \[V. Va.\] 68 SL 817, 23. Acta 1903, chap. 9, p. T9. Stout v. Baltimore & O. R. Co. \[V. Va.\] 63 SE 317. \[24\]. A justice of the peace may obtain jurisdiction by publication over a foreign railway corporation, whose president does not reside in the township and whose road does not enter the township and which cannot be served with process under $ 6498. Squire v. Ralwway, 1 Ohio C. C. (N. S.) 354, not followed. Northern Pac. R. Co. v. Baum, 7 Ohio N. P. (N. S.) 265. \[25\]. Civ. Prac. Act, $ 517 (Laws 1907, p. 28, c. 16), held not to require that names of attorney, where plaintiffs appear by attorneys, be included in notice of publication under $ 517. Forsyth v. Chambers \[Nev.\] 96 P 930. \[26\]. Forsyth v. Chambers \[Nev.\] 96 P 930. \[27\]. Forsyth v. Chambers \[Nev.\] 96 P 930. \[28\]. Forsyth v. Chambers \[Nev.\] 96 P 930. \[29\]. Forsyth v. Chambers \[Nev.\] 96 P 930.

508 JUSTICES OF THE PEACE SS 4. 12 Cur. Law.

and by answering and participating in the trial on its merits.\[34\] If there is an irregularity in the process or in the manner of its service, the defendant must take advantage of such irregularity by motion or proceeding in the court where the action is pending.\[86\]

\_Pleadings, issues, and proof.\_See 10 C. L. 559--With but rare exceptions,\[86\] pleadings need not be in writing\[87\] but they cannot be dispensed with.\[88\] Under statute, requiring defendant to answer within seven days from the date of service, answer may be made on any one of those days.\[89\] The rules of pleading are greatly relaxed in justice court\[40\] and niceties and formalities in pleadings are not required,\[41\] but a statement of the facts upon which the action is as founded must be given,\[42\] and any statement of the cause of action, if it apprises the opposite party of the nature of the action and is sufficient to bar another action, is sufficient,\[43\] and, in an action on a contract, a complaint apprising the defendant of the claim against him is all that is required.\[44\] The petition may be signed by counsel\[45\] or by an

cessful attempt was made to raise question of title to land as defense, held to confer jurisdiction over person of defendant. Lynch

plaintiff delivered to them deed to certain v. Ball, 79 S. C. 243, 60 SE 691. Proceedings taken by a party showing that he appeared for any purpose consistent with jurisdiction

plaintiff less fee of $50, that demand has gives court jurisdiction, even though such

bem made but money not paid, held suff-party states that he appeared specially to object to jurisdiction. Where defendant apparted

108 SWV 595. Bill of participants held a suff-peared and objected to jurisdiction on ground that summons was defective, and also moved to amend return to summons to conform to facts, held motion to amend was inconsistent with want of jurisdiction, amounted to a general appearance, and gave court jurisdiction even though party stated that he appeared specially. Beater v. Intercontour

accord and satisfaction, though it should Fair, 185 Wis. 339, 115 NWV 809. By appearance, Justice having jurisdiction of subject-matter, jurisdiction over person is waived

108 SWV 595. Bill of participants held a suff-peared and objected to jurisdiction on ground that summons to conform to

111

of. Smith v. Lyle Rock Co. \[Mo. App.\] 111 SWV 831.

111 SWV 832. In summary proceedings for recovery of leased premises where notice under Civ.

1102, $242 swas not given. Mayes v. 63 SE 26.

11

2

agent,46 and, if the complaint is sufficiently specific to apprise a person of common understanding of the exact nature and extent of plaintiff's claim, it is sufficient.47 Even though a complaint fails to state a cause of action, a demurrer thereto may properly be overruled where it does not challenge the sufficiency of the complaint on that ground.48 A technical plea of nul tiel record cannot be effectively used to question the existence of a justice court record, except where justice courts are courts of record,49 but, even if such plea were proper to question a justice court judgment and process, it would not be for the jury but for the court to pass upon.50 Issues not pleaded cannot be raised 51 nor in actions on contract can evidence of misrepresentation or partial failure of consideration be introduced where no notice of such defenses have been given,62 but, under statute providing that in case of verdict for the defendant as to the right of property in a replevin action the jury shall also find damages for withholding the property, no counterclaim need be filed or any claim made for such damages to authorize their recovery.53 Plaintiff must prove his case although defendant does not appear,64 but, where the complaint is verified and the answer is an unverified general denial and counterclaim, plaintiff is entitled to a judgment without further proof.65 In some states failure to bring forward all demands existing at the time of commencing a suit, bars a suit for the demand not so consolidated.56 A plaintiff having pleaded a breach of contract and an offer to rescind may abandon the theory of rescission and submit the case upon a breach of the contract.67 Where the pleadings are oral, the defendant is not entitled to a judgment on his counterclaim because no reply has been filed.65 Sattutes usually provide for making amendments to pleadings.69 A summons may be * 510 JUSTICES OF THE PEACE SS 4. 12 Cur. Law. amended provided no changa in the nature of the cause is involved, \[80\] and even the absence of an allegation of jurisdiction may be cured by amendment. \[41\] If a petition is ambiguous, amendment to plainly show whether the action is one in tort or for breach of contract should be allowed, \[42\] but an action ex delicto can not be transferred by amendment into one ex contract. \[83\] There should be no variance between the pleadings and the proof, \[84\] but a slight variance between the process and proof is immaterial, \[85\] and a variance between the summons and the declaration may be waived by the pleadings. \[66\] The statue of limitations may be availed of by demurrer to a bill or declaration, \[67\] but whether a notice or scire facias to revive a judgment would come under the rule is perhaps doubtful. \[88\] _Verdict and Judgment._ See 10 C. L. \[89\] An informal entry of judgment is good, \[88\] since much less degree of technicality and formality is required in the judgments of justices of the peace than is exacted in respect to judgments of courts of record, \[89\] and the judgment and the motion of appeal therefrom must be tested by substance rather than by form, \[90\] but substance cannot be dispensed with and supplied by amendment. \[88\] A justice is not obliged to publicly announce the judgment upon the instant after the evidence is closed. \[88\] Only one judgment can be rendered in an action tried in a justice court, \[88\] and in such judgment the justice must specify, tax and include the costs allowed by law to the prevailing party. \[88\] Judgment must show for and against whom \[88\] and in what case it was rendered, \[88\] but if subject to no other objections, the fact that it contains no caption to show the parties may be regarded as not fatal. \[88\] A mere verbal announcement by a justice after the trial of a cause as to what conclusion he has reached does not constitute a judgment, \[88\] but the judgment must be determined from the docket entry, \[88\] and although it may be valid, it is unenforcible until it is entered on the docket. \[88\] Judgment by

- 60. No error in allovirus amendment where \[88\] (90, p. 219), docket showing in margin amended summons simply amplified allega- \[88\] (916, p. 219), docket showing in margin \[88\] (92, p. 229), docket showing in margin \[88\] (93, p. 239), docket showing in margin \[88\] (94, p. 239), docket showing in margin \[88\] (95, p. 240), docket showing in margin \[88\] (96, p. 259), docket showing in margin \[88\] (97, p. 260), docket showing in margin \[88\] (98, p. 261), docket showing in margin \[88\] (99, p. 262), docket showing in margin \[88\] (99, p.

12 Cur. Law. JUSTICES OF THE PEACE SS 4. 511

default may be taken on the adjourned day where defendant is not present to make a defense,\[82\] but where the action is in tort and not on contract or on an account, judgment cannot be rendered on a verified complaint without proof.\[83\] Amounts due plaintiff may rightly be offset against those due the defendant and judgment entered for the difference.\[84\] The judgment of a de facto justice is not void,\[85\] nor is a judgment rendered void by the fact that an infant appears by next friend appointed differently than as prescribed by statute,\[86\] or by failure to rightly name the defendant in the summons or judgment or to correct the misomer.\[87\] A judgment by default entered against a nonresident on a summons served less than the statutory time before the return day is not void but irregular or at most voidable,\[88\] and where the defendant does not appear to ask for time to plead or move to set the judgment aside, he will be held to have waived the irregularity.\[89\] A judgment is void where no summons issued,\[90\] when entered at an unauthorized continuance,\[91\] and when against a nonresident in garnishment proceedings, where it purports to be personal and not in rem.\[92\] Where it has been adjuded on review of a suit in attachment that the justice of the peace was without jurisdiction, any order which the justice may have as to payment of the money is void and it becomes his duty to return it to the garnishee, notwithstanding the dismissal of the petition by the reviewing court may have been erroneous.\[93\] A judgment of a justice of the peace dockted in the superior court continues a judgment of the justice for all purposes save those of alien on execution,\[94\] and as such is subject to the limitation prescribed for such judgments;\[95\] but in some states, when a judgment of the justice has been filed in the office of the prothonotary, it has all the force and effect of a judgment originally obtained in the court of common pleas.\[96\] A compelled judgment of nonsuit rendered against a

App. 561, 60 SE 319. Judgment unenforcible | 1451. Laney v. Hutton \[N. C.\] 63 SE 1083. until reduced to writing and entered on | 80. Laney v. Hutton \[N. C.\] 64 SE 1083. docket during term, or announced in term and transcribed on docket after adjourn- | 80. Southern R. Co. v. Grace \[Ga. App.\] 61 | 85 1048. A judgment against a resident ment. Id. To allow a judgment to sub- | 80. Laney v. Hutton \[N. C.\] 65 SE 1083. De. L. Rey \[N. C.\] 662. De. L. Rey \[N. C.\] 663. De. L. Rey \[N. C.\] 664. De. L. Rey \[N. C.\] 665. De. L. Rey \[N. C.\] 666. De. L. Rey \[N. C.\] 667. De. L. Rey \[N. C.\] 668. De. L. Rey \[N. C.\] 669. De. L. Rey \[N. C.\] 669. De. L. Rey \[N. C.\] 660. De. L. Rey \[N. C.\] 660. De. L. Rey \[N. C.\] 661. De. L. Rey \[N. C.\] 661. De. L. Rey \[N. C.\] 662. De. L. Rey \[N. C.\] 663. De. L. Rey \[N. C.\] 664. De. L. Rey \[N. C.\] 665. De. L. Rey \[N. C.\] 666. De. L. Rey \[N. C.\] 667. De. L. Rey \[N. C.\] 668. De. L. Rey \[N. C.\] 669. De. L. Rey \[N. C.\] 660. De. L. Rey \[N. C.\] 661. De. L. Rey \[N. C.\] 662. De. L. Rey \[N. C.\] 660. De. L. Rey \[N. C.\] 661. De. L. Rey \[N. C.\] 662. De. L. Rey \[N. C.\] 663. De. L. Rey \[N. C.\] 664. De. L. Rey \[N. C.\] 665. De. L. Rey \[N. C.\] 666. De. L. Rey \[N. C.\] 667. De. L. Rey \[N. C.\] 668. De. L. Rey \[N. C.\] 669. De. L. Rey \[N. C.\] 660. De. L. Rey \[N. C.\] 661. De. L. Rey \[N. C.\] 662. De. L. Rey \[N. C.\] 663. De. L. Rey \[N. C.\] 664. De. L. Rey \[N. C.\] 665. De. L. Rey \[N. C.\] 666. De. L. Rey \[N. C.\] 667. De. L. Rey \[N. C.\] 668. De. L. Rey \[N. C.\] 669. De. L. Rey \[N. C.\] 660. De. L. Rey \[N. C.\] 661. De. L. Rey \[N. C.\] 660. De. L. Rey \[N. C.\] 6 512 JUSTICES OF THE PEACE SS 5. 13 Cur. Law.

nonresident for failure to file security for costs and on a refusal of his motion to adjourn is a voluntary nonsuit." When the statute prescribes the judgment and one is rendered, it is presumed to be the one prescribed, but if one not prescribed is entered it will be attributed to the misprision of the clerk and may be corrected by a. nunc pro tune order." A judgment cannot be collaterally attacked for irregularities after jurisdiction has once been gained," nor will conditional and uncertain agreements between counsel respecting a dismissal of a suit be enforced so as to avoid a judgment subsequently rendered and involved in collateral proceeding,1 but relief, if at all, must be by direct proceedings instituted for that purpose." An executor of one of two plaintiffs in a justice's judgment cannot maintain a notice or scire facias to revive it."

\_Execution.\_See 10 C. L. 852. Execution cannot be issued by a justice after three years from the rendition of the judgment without revival,4 but though an execution may be issued from the office of the clerk of the circuit court on the transcript of the judgment, more than three years from the date of the judgment and without its revival, that can only be done when the transcript is filed within three years,5 and if an execution is issued which does not follow the judgment as docked, the court has power on motion to recall or quash it,6 but such motion does not reach any defects in the judgment not shown upon the face of the record.7 A substantial compliance with statute requiring a certificate that justice of the peace-issuing an execution is a duly qualified justice in the county and precinct from which it is issued is sufficient,8 and a slight error in the name of the defendant in an execution does not render the execution void,9 such process being amendable on motion before the justice so as to make it conform to the judgment.10 Where a justice's judgment is void for want of proper service, the execution and other proceedings thereunder are likewise void.11

Footnote 10: http://www.lbl.gov/

\_SS 5. Appeal and error and remedies extraordinary.\_See 10 C. L. 852. Unreasonable restrictions upon the right to appeal from a justice court cannot be imposed by the

34 Pa. Super. Ct. 16. Act of May 9, 1889. P. L. 176, held not to enlarge right to file transcript of judgements of justices of the peace. Id.

**97. Walmsley V. Bowman, 151 Mich. 553,**

15 Det. Lex. N. 38. 115 MV 886.

**98. Under Rev. St. 1859, 8 1547 (Ann. St. 1906, p. 1174), 81 3529, 447, where judgment for defendant in relpivnt suit heard on ap-peal from justice court as entered failed to show that costs had been dulyed against plaintiff, court could on motion by nunc pro tune order correct judgment, making it show that costs were adjudged against plaintiff and that defendant have execution. Saunders v. Scott \[Mo. App.\] 111 SW 874.**

**98. Pocahntes Wholesale Grocery Co. v. Gillespie, 63 MV. Va. 678, 68 SE 597. Not to be collaterally attacked because venite was wrong. Rutherford v. Ray, 147 N. C. 253, 61 SE 57.**

3. Pocahntes Wholesale Grocery Co. v. Gillespie, 63 MV. Va. 578, 60 SE 597.\*\*

1. Proceedings held direct requiring court to submit issue of fraud in obtaining judgment to jury. Houser V. Bousal & Co. IN. C. J. 62 SE 776.

**a.** Proceeding must be in sole name of survivor. Crim v. Rhinehart \[V. Va.\] 63 SE 212. Notice of executor not amendable, executor not having title. Id.

**4. Rev. St. 1899, 8 4022 (Ann. St. 1906, p. 2194). Bick v. Boyd, 124 Mo. App. 58, 100 SW 1128.** 12 Cur. Law. JUSTICES OF THE PEACE SS 5. 513

appellate court.\[12\] In some states two methods of appeal from a final judgment are provided,\[13\] but an appeal with a trial de novo can be taken only from a "final judgment."\[14\] The right of appeal is sometimes given to any "person aggrived" by the judgment though he is not a party to the record,\[15\] but ordinarily where the appeal is from a judgment, none but the parties tried in the justice court are parties on appeal.\[16\] The right to appeal from the judgment of a justice to a jury in the superior court is sometimes determined by the amount in controversy,\[17\] and in determining whether an appelal or certiorari is the proper remedy,\[18\] or whether an appeal lies,\[19\] the pleadings determine the amount in controversy. To what court an appeal may be taken may depend on the amount recovered or whether there was a jury trial.\[20\] A voluntary nonsuit\[21\] is not appealable.\[22\] The perfecting of an appeal gives the appellate court jurisdiction of the cause,\[28\] and the appellate court becomes possessed of the cause upon filing of transcript and papers by the justice,\[24\] regardless of the payment of fees,\[28\] or that there be no affidavit for the appcal nor any bond.\[29\] The jurisdiction on appeal is limited the same as that of the justice before whom the action originated.\[27\] Payment of fees and state tax are not juris 514 JUSTICES OF THE PEACE $ 5. 12 Cur. Law.

ditional to an appeal. \[28\] Under statute providing that when a bond and afflavit for an appeal have been filed an appeal shall be considered allowed, though no entry thereof appears in the record, an order granting an appeal is unnecessary, \[29\] but the docketing of a judgment in a higher court does not give such court jurisdiction of the action in which the judgment was entered, \[30\] though the statutes do not require the filing of the notice, \[31\] yet the fact that notice was given, being jurisdictional, it must affirmatively appear on the face of the record either by filing of the notice and the return therein with the circuit clerk or by a recital in the judgment or order disposing of the cause. \[32\] The notice is sufficient if it identifies the judgment appealed from and informs the nonappealing party that an appeal has been taken, \[33\] and a mere clerical error therein does not defeat jurisdiction to try a case de novo. \[34\] Where there is a failure to serve notice of appeal as required by statute, the superior court acquires no jurisdiction over the nonappealing party and it can only affirm the judgment or dismiss the appeal at the election of plaintiff. \[35\] Under statute providing that an appeal shall be taken by filing notice with the justice and serving a copy on the adverse party, the order in which the notice is filed and served is immaterial. \[36\] One desiring a new trial on the facts in the appellate court must appeal under statute relating to appeals generally, \[47\] and the appeal must be taken within the statutory time from the rendition of the judgment, \[28\] and can be allowed after the expiration of that time only upon a showing under oath of a good cause for not taking appeal within the time prescribed. \[39\] A justice has no power to make a contract to enter a prayer for an appeal if the verdict and judgment should be against the party so contemplating to contract, \[40\] the prayer must be made on the day the judgment is entered in a trial of the rights of property, \[41\] justice court under Act of 1810 or 1814; none been in default Drake . V. Gorrell, 127 Mo. in appellate court. Dirkkenk . V. Ward, 35 Pa. \[Rep. 456, 106 SW 1980. Want of notice under Super. Ct. 235. 28, Under St. 1898, # 3368, # 3754, no defense to action on undertaking on appeal that app-

Where an appeal is taken from judgment of peal was not perfected by payment of fees

Justice on a day after judgment was render-

and tax. Palin v. Probert \[Vls. 118 NW 173. 173. 28, Rev. St. 1899, # 4068 (Ann. St. 1996, p. 5 4076 (Ann. St. 1996, p. 2211). Ford v. Gray \[Mo. App.\] 110 SW 692. 36. Docketing for purpose of creating a

J. Prochink, 128 Mo. App. 575, 106 SW 117. 111. 111.

12 Cur. Law. JUSTICES OF THE PEACE SS 5. 515

and the appeal papers must be presented to the justice having possession of the docket containing the record.\[42\] The appeal must be docked at the ensuing term if it is more than ten days after judgment,\[43\] and if not so docked the appellee may have the case placed upon the docket and upon motion the judgment will be affirmed.\[44\] The execution of a nonappealable judgment may be enjoined upon a proper showing.\[45\] Upon a proper showing a default judgment may be set aside and enjoined from enforcement in equity,\[46\] and notwithstanding the existence of a remedy by certiorari, where the element of fraud is present, in the entry, a party may choose his forum for relief and may seek the relief by appeal, certiorari, or by bill in equity for an injunction;\[47\] but a judgment will not be set aside in equity except upon a showing of diligence in prosecuting remedies at law,\[48\] and as against a merely erroneous judgment the proper remedy is by appeal or certiorari,\[49\] and relief by injunction cannot be had where these remedies are available.\[50\] No relief can be had in equity from a judgment rendered by default by the fact that defendant, if he had appeared and answered, would have had a defense to the action.\[51\] The jurisdiction of a justice may be challenged on appeal\[32\] at any time,\[53\] and when an appeal shall be entered is not a prayer & a showing of injustice done, and a sufficient for an appeal under Hurd's St. ch. 79, art, & execute for the default. Where second deck 516 JUSTICES OF THE PEACE SS 5.12 Cur. Law. challenged it must be determined on the record, if possible, or if jurisdiction depends on a fact which can be shown only by evidence altitude, the evidence must be produced by the party bound to show jurisdiction.\[54\] Want of jurisdiction of the subject-matter cannot be waived,\[58\] but in irregularities in process not jurisdiction to be available must have been objected to before the justice.\[56\] A defect in a warrant is not waived by going to trial without making a motion to quash.\[57\] Where jurisdiction is not shown either by the record or evidence altitude, the defect goes to the merits of the appeal and cannot be treated as a technicality.\[58\] Findings of fact are conclusive on appeal,\[59\] and objections to introduction of certain testimony under the pleadings cannot be first raised before the appellate court.\[60\] The appellate court can grant a new trial only upon terms authorized by statute.\[61\] Upon reversal by the common pleas court of an order of a justice of the peace over- ruling a motion to discharge an attachment, the common pleas court should retain the matter for trial upon appeal.\[62\] \_Bonds.See_10 C. L. 504--An appeal is not effectual until a sufficient undertaking is filed\[63\] within the time fixed by statute.\[64\] Where a judgment is rendered against the plaintiff, it is not essential that he file an appeal bond in order to prosecute the appeal,\[65\] but where the plaintiff recovers a money judgment to perfect the appeal and confer jurisdiction upon the appellate court, it must appear from the record that an appeal bond was executed or an affldavir in lieu thereof given.\[66\] The amount of an undertaking must not be less than the statutory amount, but the fact that a greater amount than that required is deposited does not invalidate the ap-

54. Evidence Insufficient to show that statutory notice of suit was given before suit

Furanec Co., 11 Ohio C. C. (N. S) 191. was begun so as to give jurisdiction. Fa-

63. Where no appeal bond, no jurisdiction bien v. Grabow \[Mo. App.\] 114 SW 80.

01. Appearance no waived of objection for

diction of district court. St. Louis, S. W. R.

vant of jurisdiction of subject-matter. Maser

Co. v. Warren Bros. \[Tex. Civ. App.\] 109 SW

Mfg. Co. v. Cox \[Ok1.\] 97 P 649.

114. Under Rev. St. 1887, 8, 4842, undertake-

001. Irregularly in process, under Code

Civ. Proc. 1827, not available on appeal, no

sover costs of appeal, and in an additional

objection having been made below. Epstein

v. Professor, 113 NYS 174. The question of the

use of initials instead of the full Christian

name, in -designating plaintiffs, cannot be

raised for the first time on appeal. Heim v.

have been taken to a surety company, such

Appleton \[Ind. App.\] 85 NE 738.

57. Memphis St. R. Co. v. Flood \[Tenn.\] 113 $ 4842, by giving notice that it will justify

SW 384.

58. Giving of notice of intention to ebe-

being of justification prescribed in Act of

fore suit was actually begun not shown,

jurisdiction not obtained. Fabien v. Grabow

\[Mo. App.\] 114 SW 80.

59. Rude v. Sisack \[Colo.\] 96 P 976.

tioned on appellent prosecuting "this trial"

60. Yan Allen v. Shulenburgh, 58 MIsc. 136,

110 NYS 464.

61. Lithuanian Rotherhelp Soc. v. Tunilla,

80 Conn. 642, 70 A 25. Under Gen. St. 1902,

8 $16, providing that when a judgment has

been rendered by a justice against a defend-

114 SW 86. "All costs" used in undertaking

ant, absent from state until after trial, with-

out notice of suit, he may, within six months

Brown \[New.\] 88 P 871.

after return, bring a complaint to court in

county to which an appeal might have been

taken for a new trial, which court may grant

if it appears that judgment was wrongfully

against plaintiff. Johnson County Sav. Bank

obtained and the had a good defense, court

v. Midkir \[Tex. Civ. App.\] 105 SW 1131.

of common pleas has no jurisdiction to

grant new trial where judgment was obtain-

Tex. Ct. Rep. 684, 107 SW 905. Rehearing

ed while defendant was within state. Id.

granted, it appearing that bond had been

Complaint held an averment of a sufficient

and cause shown for not incorporating

defense to suit and of nature thereof, under

bond In record. Harris v. Robinson \[Tex. Civ.

Gen. St. 1902, $ 816. Id.

App.\] 109 SW 400.

12 Cur. Law. JUSTICES OF THE PEACE SS 5. 517

peal,\[57\] and where the bond is made to the proper party, imposes a substantial liability upon the sureties, and is filed in good faith, jurisdiction is given, although it is defective in some respects,\[68\] and in such case the action should not be dismissed if the appellant applies seasonally for leave to file a good and sufficient bond.\[69\] Where it clearly appears that an undertaking was for the purpose of staying proceedings, it will not be considered sufficient as an undertaking on appeal where it does not cover costs on appeal,\[70\] but although the undertaking may be insufficient to stay proceedings, it may be sufficient to effectuate the appeal.\[71\] An appeal bond which is insufficient to confer jurisdiction on the appellate court is not enforcible as a common-law obligation.\[72\] Jurisdiction on appeal from a judgment by a justice of the peace is conferred by approval of the undertaking by another justice of the same township.\[73\] Where a judgment is void, so also is the stay bond.\[74\] A recognizance taken on appeal must be returned to the court to which the appeal is taken,\[73\] since without return of the recognizance the appellate court has no jurisdiction to proceed,\[74\] but failure to return the recognizance at the outset is not fatal, even after a motion to dismiss.\[75\] The recognizance on appeal is an official record and to be effective must be signed by the magistrate.\[76\] A party on appeal stating that deposit was made to perfect the appeal will not thereafter be heard on subsequent assertion that it was for a different purpose.\[77\] Sureties on an appeal bond are released by the discharge in bankruptcy of the debtor during the pendency of the appeal.\[78\]

_Process or appearance.\[59\]_ See 10 C. L. 545...\_Where the successful party before a justice becomes a nonresident, jurisdiction to hear and determine the appeal is acquired when two summonses have been issued to the sheriff of the county in which the suit was brought and two returns "not found" made.\[77\] A general appearance gives the superior court jurisdiction,\[78\] and the filing of the affidavit and bond for

ef. Code Civ. Proc. **SS 978**, 926. Pacific

Judgment pending litigation to test summWindow Glass Co. v. Smith \[Cal. App.\] 97 P

ciency of bond does not alter case. S. A. Pace

898. Under Civ. Proc. **SS 926**, 978, where Judge-

ment had been rendered against defendants

SWS 866.

for $117, including attorneys fees and costs,

and they appealed, deposited amount of

11 Ohio C. C. (N. S.) 432.

judgment appealed from without stating purpose and proceedings and deposit were

74. Yerrell v. Simmons, 63 W. Va. 45, 59

transferted to superior court, deposit contrued as security for costs on appeal and

69. A 621.

not to stay proceedings, hence dismissal for

want of jurisdiction erroneous. Id. That

amount was larger than was necessary held

not to destroy bond. Libby v. Spokane Val Valley Land & Water Co. \[Idaho\] 98 P 715.

68. Undertaking defective because of omission of words "from date of undertaking" the delivery of property" held not to Gust district court of jurisdiction. Parker v. Gibson \[Kan.\] 96 P 35.

01. Where abstract shows that such application was made, held error to dismiss action and refuse to reinstate it on motion. Parker v. Gibson \[Kan.\] 96 P 35.

01. Libby v. Spokane Valley Land & Water Co. \[Idaho\] 98 P 715.

01. Under Civ. Prac. Act. **SS 584**, Comp.

Lawns, **SS 867s**, undertaking of $600 reeting desire to appeal and binding appellant to pay judgment and all costs, on withdrawal or dismissal of appeal, held good as to appeal though probably not as to stay of proceedings. State v. Oldfield \[Okl.\] 98 P 925.

72. Such bond is without consideration, and fact that no execution was issued on

nois Cent. R. Co. v. Swanson \[Miss.\] 46 S 83.

- 518 JUSTICES OF THE PEACE SS 5. 18 Cur. Law.

appeal constitutes an appearance to the proceedings so as to give appellate court jurisdiction of person filing the same. \[83\] An appearance and demurrer, on appeal from a justice's judgment by default entered upon an irregular summons, is a waiver of the irregularity in the judgment. \[84\]

_The transcript._\[See 10 C. L. 565\]--The appellate court is without jurisdiction to proceed with the trial of a cause in the absence of a transcript of the proceedings before the justice. \[85\] The transcript of judgment must be filed within the time prescribed by statute, \[86\] and the appellant must see that the justice files the transcript as required by statute, or on failure to do so the appellate court may in its discretion dismiss the appeal or affirm the judgment for failure to prosecute, \[87\] but, where a judgment is rendered upon a written instrument duly filed with the justice but which was not sent with the transcript on appeal, such instrument may be subsequently filed though not brought up on a rule upon the justice or by certiq-rai. \[88\] The affidavit, writ of replein, and bond in an attachment suit instituted before a justice, becomes part of the record in the appeal even though filed after the term at which judgment is rendered upon the appeal, \[89\] and the fact that such papers were not on file at the time of hearing of the appeal is a mere irregularity, not affecting the jurisdiction to hear and determine the appeal. \[89\] Technical accuracy in a transcript is not required, \[90\] but although it need not show the affidavit in full \[88\] nor be under seal \[88\] yet it must show that the justice had obtained jurisdiction of the defendant. \[88\] When the transcript is certified as true, its correctness cannot be attacked in a court of review, \[88\] and where it shows affirmatively that the justice has performed the duty required of him and made a brief note of all the pleadings made by the parties on his docket, evidence to contradict this will not be received in the absence of fraud, accident, or mistake properly pleaded. \[88\] In a forcible entry and detainer suit, it is appellant's duty to produce the transcript on the return day or show that he has done all in his power to produce it. \[88\]

- 519 JUSTICES OF THE PEACE SS 5. 18 Cur. Law.
- 520 Carden V. Bailey \[Ark.\] 112 SWV 143. \[transcript and moving for affirmance of 84. Appearance on appeal, judgment hay- judgment entitled to relief asked, defendant being been rendered against a nonresident having failed to file transcript. Id.upon a summons served less than 10 days before return day, contrary to Revusal 1905, 88. Curming V. Bisson, 141 III. App. 126. \[88\]. Laney v. Hutton \[N. C.\] 62 81E 1082. \[89\]. Where no objection was made. Cumming V. Bisson, 147 III. App. 126. \[90\]. \[91\]. \[92\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[99\]. \[98\]. \[99\]. \[99\].

## 12 Cur. Law. Justices of the Peace $ 5.

The justice cannot amend his transcript unless required to do so by an order of the appellate court,\* and, where an appeal has been taken from the justice and. a transcript of the judgment filed, a petition asking leave to amend by filing a transcript amended to the petition will not be granted in the absence of a showing of fraud practiced, or that the transcript attached to the petition was correct and the one filed incorrect.\*\* A motion to correct or amend should be made preliminary to the trial.1 If the motion is granted, an order to that effect in the minutes of the appellate court is sufficient.2

Footnote 1: The reader is referred to the book \[11\].

\_The record.\_See 10 C. L. ***-A justice's record need not be as precise, formal, and accurate as that of a court of record,* and the order in which entries have been made are not conclusive that the facts evidenced by them occurred in that order unless so stated in the record.* Interlineations in, and pastings to a bill of exceptions will be presumed to have been made in good faith and at the time stated,* and, where the record states that a reply was filed before trial and the reply is attached to the justice's transcript and returned as one of the original papers in the case, the record cannot be impeached by ex parte affidavits.\* Upon the suggestion of a diminution of the record, the appellate court may, and unless good cause is shown will, grant leave to supply the deficiency,\* and in a proper case a justice may be compelled to correct erroneous entries in his records.\*

\_Dismissal.\_See 10 C. L. ***-Except for defects in the appeal proceedings, an appeal cannot be dismissed.* If the appellant does not appear to prosecute his appeal, or fails to make out his case for any legal reason, the case can be dismissed, but not the appeal.** A motion to dismiss lies on appeal where a recognizance taken by a magistrate or municipal court is not required to the appellate court 11 or where the undertaking fails to cover costs,12 but it will not be dismissed on the ground that the affidavit and bond for appeal were defective where appellant later filed a proper bond,13 and, where before a motion to dismiss is acted upon docket fees are tendered, a motion to dismiss for failure to pay such fees may properly be denied.14 Under statute,

after rendition of judgment, and appellant | That justice failed to indorse on reply date offered no valid excuse for not doing so, held of its filing held of no consequence. Id. circuit had no jurisdiction. Ancheuser-Busch \*-Hew. Ass' W. Southern Bowling Ass'n \[Mo.\] * 140.114890.114890.

where the appellant is plaintiff and in default for a petition, the appellate court may on its own motion dismiss the action and adjudge the costs against such appellant.15 The fact that the summons issued out of a justice's court is not served and return made thereon within three years is not a ground for dismissal.16 To entitle one to an order setting aside a dismissal, it must not only appear that he possessed a meritorious defense to the action but also that the dismissal was not due to his own negligence.17 A defendant, after his motion to dismiss the appeal is overruled, waives jurisdiction by appearing to the merits of the cause where the court has jurisdiction of the subject-matter.18

\_Pleadings on appeal.\_See 10 C. L. 566--Pleadings sufficient in the justice court a e sufficient on appeal where the trial is de novo.19 They need not be in writing20 and they may be amended,21 if such as afford ground for amendment,22 at the discretion of the judge,22 where the issues are not changed and such amendment is the correction of a clerical error.24 A complaint cannot be amended so as to set up a new cause of action 25 nor can any set-off or counterclaim be entertained in the county court which was not pleaded in the court below,26 but supplemental pleadings may be made after the appeal if the amendment does not pertain to subject-matters wholly beyond the jurisdiction of the justice of the peace to determine,27 and a second supplemental petition, which is in fact a reply to defenses set up in the answer, may be filed on appeal to the county court though such pleading is erroneously denominated.28 New matter may be pleaded if the identity of the cause of action is 15. Rev. St. $ 6589. Frazier v. Walker, 10 the district court on appeal to permit or refuse further amendments on the eve of trial; no abuse of discretion shown in not allow-dismissals in justice's courts. Hubbard v. Santa Clara County Super. Ct. \[Calo. App.\] 98 Bradley \[Iowa\] 118 NYB 389. Dismissal under Code Civ. Proc. $ 581, is without prejudice to a new trial unless it operates as a retrakit; hence suggestion that subject-matter of $ 890 is different from that of $ 581 is without force. Id.

Footnote 28: The author is grateful to the author.

Footnote 29: The author is grateful to the author.

preserved and no set-offs and counterclaims not pleaded below are raised;29 hence, a trial amendment on appeal is not subject to a motion to strike because it pleads matter not pleaded in the justice court.30 A garnishec's properly filed answer cannot be striken on appeal.51 A reply to an answer 18 necessary only where a counterclaim is pleaded in the answer.32 Where the summons and return do not show a misjounder of causes of action, an objection on the ground of misjounder should be taken by answer.33 Objections to pleadings should be specific.34

_Where the case is tried de novo on appeal35_ on its merits,36 and judgment rendered upon the evidence adduced,37 proceedings in the justice court in nowise affect proceedings on appeal,38 for an appeal from a judgment vacates the judgment.39 The burden is on the appellant to make out his case,40 but, where the appeal is taken from a judgment by default on both law and fact, the appellant cannot for the first time file an answer and raise a question of fact.41 The appellee may offer any defense he may have at the time of hearing ;42 so also, when upon a writ of error a ruling is reversed by the appellate court and the cause ordered back for trial, it goes back for trial as if no former order or judgment had ever been made.43 It is not error for a court of common pleas to hear testimony de novo on appeal in an attachment proceeding from the overruling by a justice of the peace of a motion to dissolve.44

29. Rev. St. 1895, art. 358, held to apply to 114 SWV 80. Field error to dismiss subsequent cases taken to county court by appeal and apreal after overruling an unfounded plea of not to prohiblt defendant from presenting prior adjudication as to claim of exemption, or appeal a written plea containing a general denial of facts urged as an estoppi redy though somewhat obscurely. Dolan v. whre there were no written pleadings below. Davis v. Morris \[Tex. Civ. App.\] 114 SWV 8213, providing that upon trials of facts 684.

01. Motion to strike amendment properly overruled. Landa v. Mechler \[Tex. Civ. App.\] 111 SWV 752.

01. Where plaintiff had obtained a judgment in Justice court and M. as garnishec was commanded to answer on Dec. 20, 1902. On that date case was continued to Jan. 3, 1903, when M. failed to appear and judgment by default was entered. Within 5 days appeal taken to next term of circuit court and before term besun answer filed, admitting a certain in-debtedness and tendering amount. No further steps were taken until Dec. 1906, when upon motion answer was stricken from file and judgment entered against M. Striking held error. De Jean Mitchell Co. v. Mead \[Mis.\] 46 S 58.

01. Reply not necessary to answer setting up a discharge in bankruptcy. Erickson v. Elliott \[N. D.\] 117 NWV 381.

01. Objection should be by answer as required by Revisal 1905, SS 477, and not by denmurrer. Laney v. Hutton \[N. C.\] 62 SE 1082.

01. Grounds of motion to strike out amended statement that no statement had been filed before justice on which to base an amendment, and that statement as amended did not state a cause of action, held insufficient to raise question of signature of statement. Nichols v. Hicklin, 127 Mo. App. 672, 106 SWV 1109.

01. See 10 C. L. 567. House v. Schnadig, 235 III. 301, SS 35 NE 395; De Armit v. Whitmer, 63 W. Va. 300, 60 SE 136; Pickenpush v. Keena, an, 63 W. Va. 304, 60 SE 137. Action to foreclose mechanic's lien begun in justice's court on appeal trible de novo like any other appeal. Rev. St. 1899, SS 4071 (Ann. St. 1906, p. 2214). Fablen v. Grabow \[Mo. App.\] 1906, p. 2214).

Judgment.See 10 C. L. 857.--The appellate court cannot render a judgment in an amount which the justice for lack of jurisdiction could not have rendered,48 but, on affirming a judgment and dismissing the appeal, it may in its discretion order the record returned to the magistrate for such further proceedings as are necessary to effectuate the judgment.46 A judgment of the circuit court dismissing, without prejudice, a cause appealed from a justice's judgment is not a bar to a subsequent action.47 Proof of affirmative defenses must be made before the allegations of an answer can have effect, except as to settle issues.48

\_Further appeal, or errorSee 10 C. L. 688 is governed almost entirely by the rules applicable to appeals in cases originally begun in the intermediate court.49 The right of further appeal may be had where there has been an abuse of discretion,50 but, where the intermediate had acquired no jurisdiction, there can be no further appeal,51 and, where the intermediate court was without jurisdiction because of the insufficiency of the record, a further appeal will be heard only where the record is perfected by certiorari.52 The presumption is that rulings of the intermediate court upon the question of jurisdiction of the justice is correct.53 Points not raised in the intermediate court and not raised in the affidavit for a writ of certiorari cannot be tried.54

Footnote 55: See 10 C. L.

## 12 Cur. Law. Justices of the Peace $ 6.

Statutes generally provide who may execute the bond\* and the requirements thereof. \[61\] The bond'is not amendable, \[62\] and if it appears to be valid and properly executed, the court will not hear evidence to sustain it though evidence may be introduced to attack it as having been executed or signed by one without authority. \[63\] While the fact that the surety upon an appeal bond is also the surety on the certiorari bond of the same case is a good ground for dismissing the certiorari in the superior court, \[64\] yet, where a dismissal is not urged, it is not a ground upon which a writ of error, issued upon a bill of exceptions, may be dismissed. \[65\] Notice to the opposite party of the sanction of a writ of certiorari and of the time and place of hearing as required by law is indispensable, \[66\] since the same is in a sense the process which brings the defendant in certiorari into court. \[67\] Notice may be waived but the waiver must be in writing, and either service of the notice or the written waiver must appear in the record. \[68\] Certiorari is the proper remedy to a justice's judgment rendered after refusal of a timely demand for a jury, \[69\] to correct irregularities in the summoning a jury, \[70\] to inquire into the jurisdiction of the inferior tribunal, \[67\] and after a verdict has been rendered by a jury in a justice's court for the party dissatisfied in all cases, irrespective of the character of the questions involved or the amount in controversy. \[67\] Certiorari will lie to review a judgment in favor of one who has entirely failed to prove his cause of action, \[63\] but the exclusion of testimony not of a conclusive character does not give such right, the proper remedy being an appeal. \[68\] A court without referring to "district court," \[69\] ments of a bond not same as those with refocunty court having exercised jurisdiction and issued the writ. Webb v. Texas Chris- \[69\] Co, v. Rhodes \[68\] 60 SE 828. Bond tan University \[69\] Lze, Civ. App.\] 60 SE 828. Bond tanvel be presumptively properly executed. \[70\] Ld. \[71\] 62, 63. New York Life Ins. Co. v. Rhodes \[68\] 60 SE 828. \[72\] 64. Bush v. Roberts \[68\] 62 SE 82. \[73\] First, because until petition is sanctioned there is no necessity for execution of bond, second, failure to make motion to dismiss amount to waiver of objection. \[68\] Push v. Roberts \[68\] 62 SE 82. \[74\] 66. Ten days' notice under Civ. Code of 1895, $ 464, indispensable. McConnell v. Polson Bros. \[68\] 61 SE 1051. Where requirements of Civ, Code 1895, $ 4644, as to written notice, were not complied with and no good reason for noncompliance shown, ecortiorari properly dismissed. McLeod v. Faircloth Bros. \[68\] 62 SE 95. \[75\] 67. McConnell v. Polson Bros. \[68\] 61 SE 1051. \[76\] 68. Where not in record, court obliged to presume there had been no notice served and certiorari was a nullity. McConnell v. Polson Bros. \[68\] 61 SE 1061. \[77\] 69. New Jersey Soc. for Prevention of Cru- \[78\] 60. Animals v. Wilbur \[79\] 69 A 1010. \[80\] 70. Summoning of six Jurors instead of twelve, where Jurors were deprived of right to act, simply an Irregularity which could have been corrected by certiorari had case none on. Reams v. Yeager, 29 Pa. Super. Ct. \[81\] 520. \[82\] 521. In certiorari to review ejectment pro- \[70\] 60. Leading under Civ. Code 1892, $ 2972. Lynch v. Ball, 79 S. C. 243, 60 SE 691. \[83\] 72. Section nine of rules to determine whether errorior or appeal is proper remedy, and Civ. Code 1895, $ 4149. Brown v. Parain Palm Co. \[68\] 62 SE 95. \[84\] 73. Foster v. Watson \[21\] 15 Det. Leg. N. 522, 117 NW 197. \[85\] 74. Where at most justice erred in exclud

### Justices of the Peace $ 6.

12 Cur. Law.

verdict in the justice's court is sometimes required before a case can be carried by certiorari to a superior court." Only matters raised in the court below will be reviewed," and no ground or error can be insisted or passed upon than those stated in the petition and answer." Language of the court which appears to determine the right to a writ upon the merits, when the denial was in fact upon other grounds, cannot prejudice the parties not then before the court\* nor foreclose them from presenting the question anew," or preclude the superior court from determining it as if the former opinion had not been rendered." The violation of a leave of absence extra-judicially granted before court is not such an abuse of discretion as can be reviewed." A certiorari will not be dismissed on the ground that the petition does not negative the idea that a writ of garnishment might have been served by leaving a copy at the garnishee's principal office, where it otherwise appears therefrom that no such service was attempted," nor because the writ of garnishment was not directed to the justice but to the sheriff, where in fact, the justice before whom the judgment against the garnishee was rendered complied with the law in preparing a transcript of the record and filed the same before the court from which the writ issued," and the fact that the petition is not properly verified if it is sanctioned and the magistrate answers, verifying its recitals, is no ground for a dismissal." The fact of approval must appear upon the papers themselves." An afflavit upon information and belief is insufficient," but amendments are liberally awarded." The real merits of a certiorari are determinable upon the hearing by the contents of the answer, and allegations of the petition not verified by the answer are worthless," but upon the presentation of a petition for sanction, all allegations of the petition, properly verified, are to be taken as true until the coming in of the answer." The answer must show that there has been a final judgment or verdict rendered " and the record must show jurisdiction."

ing evidence proffered by defendant tending to prove failure of consideration, order not not reveurable by certiorari. Foster v. Watson $2. Under Rev. St. 1895, art. 1222, amended \[Mich.\] 15 Det. Leg. N. 522, 117 NWP 197.

7S. Where amount in controversy in a justices/court is $50 or less, and issue involved it appeared that person served was not presid-one purely of facts, there must be an appeal to jury in justice's court before the case can be carried by certiorari to superior court.

Certiorari properly dismissed, amount involved being less than $50, and questions of facts exclusively raised. Schultes v. $6. Only causes for which a party may move to dismiss for defects in certiorari proceed-tongs, under Rev. St. 1895, art. 353, are want of sufficient cause appearing in the afflavit, or for want of sufficient bond. Id.

for continuance was made below, and, where no other assignments, petition should be dismissed. Aliante Coast Line R. Co. v. Cohn & Co. \[Ga. App.\] 62 SE 572.

77. Lears v. Seaboard Air Line R. Co., 3 & Ga. App. 614, 60 SE 543. Statement in answer "It was urged by counsel for defendant in certiorari that said act was unconstitutional" held insufficient to raise constitution-ality of act. Id. A special request contains various grounds of attack on constitutionality of statute properly ignored, request not being part of petition or answer. Id.

01. Where application was denied because proceeding was directed to judge of superior court instead of to tribunal itself, and court industryentiy used language as if right was decided upon merits. Richmond v. California Super. Ct. \[Cal. App.\] 98 P 57.

79, 80. Richmond V. California Super. Ct. \[Cal. App.\] 98 P 57.

79, 80. \[Cal. App.\] 98 P 57.

78. Atlantic Coast Line R. Co. v. Cohn & Co. \[Ga. App.\] 62 SE 572.

01. Under Rev. St. 1895, art. 1222, amended \[Mich.\] 15 Det. Leg. N. 522, 117 NWP 197.

01. Where amount in controversy in a justices/court is $50 or less, and issue involved it appeared that person served was not presid-one purely of facts, there must be an appeal to jury in justice's court before the case can be carried by certiorari to superior court."

107 SW 86.

78. Webb v. Texas Christian University \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 646, 107 SVW

01. Only causes for which a party may move to dismiss for defects in certiorari proceed-tongs, under Rev. St. 1895, art. 353, are want of sufficient cause appearing in the afflavit, or for want of sufficient bond. Id.

01. Bass v. Mastera \[Ga. App.\] 63 SE 24.

01. State v. Wynne \[Ga. App.\] 62 SE 49.

01. Amlavits held sufficient where there were sufficient matters alleged in petition not stated on information and belief to authorize issause of writ. Webb v. Texas

01. Lewis v. Seaboard Air Line R. Co., 3 & Ga. App. 614, 60 SE 543. Statement in answer "It was urged by counsel for defendant in certiorari that said act was unconstitutional" held insufficient to raise constitution-ality of act. Id. A special request contains various grounds of attack on constitutionality of statute properly ignored, request not being part of petition or answer. Id.

12 Cur. Law. JUSTICES OF THE PEACE SS 7. 520 In the determination of alleged errors on certiorari, the answer of the justice furnishes to court the only authoritative information as to what occurred in the trial sought to be reviewed,92 and the return on a writ of review to review judicial proceedings is conclusive as to the facts.93 In case of conflict between the bill of exceptions and the record, as to matters which form a part of the record, the latter controls.94 When a case has been properly removed by certiorari, the superior court may hear and determine the case upon its merits,95 and in its discretion determine the reasonable amount of the garnishee's fee to be taxed against appellant against whom judgment is entered,96 but the court should not dispose of the main case on the merits while a traverse to the magistrate's return is pending.97 The court is confined to the examination of questions of law arising or appearing on the face of the record and proceedings.98 Judgments must be in conformity with statute,99 and although a court may be right in dismissing a certiorari by a claimant,1 yet it is error to include in the dismissal judgment a judgment against the principal in the certiorari bond and his security for the amount of the fi. fa. which has been levied upon the property adjuded not to be the claimant's.98

Footnote 97: The authoritative information is not available in the form of the authoritative information.

Footnote 98: The authoritative information is not available in the form of the authoritative information.

the limits of the precinct does not involve jurisdiction, but is a matter of procedure,\* and an irregularity that may be waived by consent and agreement of the parties.7 Where statute provides that a justice shall have jurisdiction in criminal cases throughout the county in which he is elected and resides, his authority to hear and dispose of criminal cases is not limited to the township for which he is elected and where he resides.\* In North Carolina criminal offenses punishable by a fine not exceeding $50, or imprisonment not exceeding 30 days, are within the final jurisdiction of justices of the peace,\* and in New Jersey the justice has jurisdiction to hear and determine violations of health ordinances in cities where no police justice has been appointed or provided for.\* It is not necessary that a conviction state that the cause was heard in a summary manner,\[11\] nor need notice before suit be given.\[12\] Under statute providing that when a change of the place of a preliminary examination is granted the cause shall be transferred to the next nearest justice unless the parties otherwise agree, the justice before ordering a change must first ascertain whether the parties have agreed upon a justice,\[13\] and in the absence of such agreement transfer the cause to the next nearest justice.\[14\] One desiring to appeal to the circuit court from a conviction by a justice must give the justice notice thereof in writing within the statutory time,\[15\] but if the notice is in substantial compliance with the statute, it is sufficient.\[16\] Under statutes in some states a city mayor may act as police justice to dispose of prosecutions for violations of the city ordinances, and as mayor ex off-fico justice of the peace he may hold the regular court of the justice of the peace to try prosecutions for violations of the state laws.\[17\] The two courts are wholly distinct and separate.\[18\] The record must show clearly what offense was charged and whether against the municipal or state power,\[18\] and the police justice must keep a separate docket as justice of the peace.\[19\] The jury must be selected in the way the law provides,\[11\] but the error in selecting, if otherwise the justice has full jurisdic-

6. Rev. St. 1887, $3850, 3885. State v. \[N. J. Law71 1A 58.\] Noyes \[Idaho\] 96P 435. \[N. Rev. Justetics' Code, $124. State v. \[N. Rev. Justetics' Code, $124.\]\]

1. Where by stipulation and agreement with county attorney consent to trial in Carlisle \[S. D.\] 118N 1033. another precinct was given, defendant not \[14. Rev. Justetics' Code, $124.\]\]

untiled to discharge on appeal for want of jurisdiction. State v. Noyes \[Idaho\] 96P 435. \[N. J. Law71 1A 58.\]

8. Under Rev. St. $10, justice may hold criminal court in any township within coun-

189, $4761, which by Laws 1889, p. 641, c. ty. Section 582 not applicable to criminal cases. Steele v. Karb, 78Oh St. 376, 85NE \[19.\]

9. Offense of abandoning crop without cause before paying advances, punishable

term of judgment so as not to be misleading. nander Revisal 1905, $386, by 350 or by 30 days, within justice's jurisdiction; superior court without original jurisdiction over office. State v. Wilkes \[N.\] 62SE 430. \[10. Bourgeois v. Ocean City Board of Health \[N. J. Law71 1A 58.\]. jurisdiction given mayor under $5 (P. L. 1897, p. 60). not exclusive, and where council of city have not exercised option under $78 of same act to establish police court, justice of coun-

by has jurisdiction in all cities of county to enforce health act of 1887 (P. L. p. 89). Id. \[11. Conviction under act of 1887 (P. L. p. 89) not invalidated by failing to state that cause was heard in summary manner. Bourgeois v. Ocean City Board of Health \[N. J. Law71 1A 58.\]

12. Section 18 of health act (P. L. 1887, p. 89) requires no notice; $14 only requires notice where city proposes to abate a nuisance and charge expenses to delinquent.

13 Cur. Law. KIDNAPPING. 527

tion, amounts only to a mistrial, and the cause after conviction must be remanded for a new trial.\[22\] A judgment in a criminal case in which the justice has jurisdiction of the parties and subject-matter cannot be collaterally attacked as void, though erroneous.\[28\]

Juvenile Courts, see latest topical index.

KIDNAPPING.\[24\]

_The scope of this topic_ is noted below.\[25\]

Kidnapping was a misdemeanor at common law,\[26\] and, unless denominated a violeny by statute, it is not necessary to allege that the offense was "feloniously" committed although the penalty therefor is fixed as for a felony.\[27\] The substantial equivalent of the statutory definition is sufficient to set forth the offense.\[28\] Where crimn-

cused for jury selected under B. & C. Comp. person of mature years. Schnicker v. Pee'

$ 257. Custer v. Silverton, 60 or. 419, 93 P

$ 315. People v. DeLeon, 108 N. Y. 226, 11 NE

$ 46, 4 Am. St. Rep. 44, and note: In re Kelly,

$ 47 P53. Sutton v. State, 122 G. 158, 50 BE

$ 23. Commonwealth v. Gill, 28 Ky. L. R. 879, 60; State v. White, 48 Or. 416, 87 P 137; State

$ 90 SW 605. v. Allemus, 718, 92 P 594.

$ 24. See 10 C. L. 570.

$ 25. Includes the crime of unlawfully taking away any person from his home or his removalent from one place to another by force, fraud or intimidation and without his consent. Excluded the abduction of females for purposes of profuction or concunibage, see Abduction, 11 C. L. 9. For civil liability, see False

$ 26. State v. Holand, 120 L. 429, 45 S 380.

$ 25. When constitutes kidnapping? KIDNAPPING. 116 Ind. 527,

$ 27. State v. Holand, 120 L. 429, 45 S 380.

$ 205, 25 NE 218; State v. Sutton, 116 Ind. 527,

$ 28 502; State v. Klimmerling, 124 Ind. 382,

$ 24 NE 722), but where defined as taking with

$ 29. State v. Klimmerling, 124 Ind. 382,

$ 24 NE 722), but where defined as taking with

$ 29. State v. Klimmerling, 124 Ind. 382,

$ 24 NE 722), but where defined as taking with

$ 29. State v. Klimmerling, 124 Ind. 382,

$ 24 NE 722), but where defined as taking with

$ 29. State v. Klimmerling, 124 Ind. 382,

$ 24 NE 722), but where defined as taking with

$ 29. State v. Klimmerling, 124 Ind. 382,

$ 24 NE 722), but where defined as taking with

$ 29. State v. Klimmerling, 125 Ind. 382,

$ 29. State v. Klimmerling, 126 Ind. 382,

$ 29. State v. Klimmerling, 127 Ind. 382,

$ 29. State v. Klimmerling, 128 Ind. 382,

$ 29. State v. Klimmerling, 129 Ind. 401,

$ 29. State v. Klimmerling, 129 Ind. 416, 87 P 137; State v. Klimmerling, 129 Ind. 420,

$ 29. State v. Klimmerling, 129 Ind. 438,

$ 29. State v. Klimmerling, 129 Ind. 441, 87 P 137; State v. Klimmerling, 129 Ind. 452,

$ 29. State v. Klimmerling, 129 Ind. 461, 87 P 137; State v. Klimmerling, 129 Ind. 472,

$ 29. State v. Klimmerling, 129 Ind. 482,

$ 29. State v. Klimmerling, 129 Ind. 496,

$ 29. State v. Klimmerling, 129 Ind. 401,

$ 29. State v. Klimmerling, 129 Ind. 416, 87 P 137; State v. Klimmerling, 129 Ind. 421,

$ 29. State v. Klimmerling, 129 Ind. 438,

$ 29. State v. Klimmerling, 129 Ind. 441,

$ 29. State v. Klimmerling, 129 Ind. 452,

$ 29. State v. Klimmerling, inal intent is not an essential element, evidence of previous offenses of the same nature is not admissible.\[29\]

Labels; Labor Unions; Lahees; Lahees and Ponds, see latest topical index.

LANDLORD AND TENANT.

1. Definitions and Distinetions, E28.

F. Improvements, Emblements and Fixtures, 545.

2. The Contract of Lease and Creation of Tenancy, 529. Construction of G. Options of Purchase or Sale, 547.

Leases and Proof of the Terms of Tennary, 530. The Statute of Frauds, 532. Covenants, 532.

3. The Direct Kinds of Tenancies and Their Indeeting, 553.

1. Rights and Interesta Remaining la the Landiod, 534.

5.1. Extension, and Right of Return, 534.

6. Heat and the Payment Thereof, and Frauds, 532. Covenants, 532.

1. Renal on Share, 550.

1. The Term, Termination of Tenancy, Renewatives, Holding over, 551.

1. Landiod's Remelecles for Recovery of Rent and Advancements, 580. Parties and Procedure Generally, 561.

1. Landiod's Remelecles for the Payment of Rent and Advancements, 563.

1. Definitions and Disjointness, 563.

1. Definitions and Disjointness, 564.

1. The scope of this topic is noted below.\[80\]

1. Definitions and distinctions.\[See 10 C. L. 571.--A lease is to be distinguished from a possession incidental to a contract of hire,\[31\] from a cropper's contract, so called,\[32\] from a license,\[33\] and from a mortgage.\[34\] While a lease is distinguishable from a sale in that it does not pass an interest in the fee, it is an "alienation of lands"

1. Under Rev. St. 1870, $ 805. State v. of crop. Rogers v. Frazier Bros. & Co. \[Tex. Holland, 120 La. 429, 45 S 380.

1. Laws of chattels (see Balments, 11 $ 3711, where one furnishes land and another C. L. 365), gas and mining leases (see Mines and Mimerals, 10 C. L. 339), and water right (see Waters and Water Supply, 10 C. L. 1986), are excluded, as are matters peculiar to leases by particular classes of persons (see Railroads, 10 C. L. 1365, and the like).

1. Jannot occupying rooms as incident to his employment is not a tenant. Tucker v. Burt, 152 Mich. 68, 15 Det. Leg. N. 83, 115 NUV 7E2. Where farm is rented for agricultural purposes to one employed in butcher shop and not as incidental to his employment, relation of landlord and tenant exists.

1. Wormach v. Jenkins, 128 Mo. App. 408, 107 SW 423. Where owner contracted with another to furnish, in addition to the land, the wheat to be down, the latter to do all the work and crop to be divided between them, held that relation of landlord and tenant did not exist but contract was mere proper's contract.

1. Definitions and Distinetions, E28.

1. The Contract of Lease and Creation of Tenancy, 545.

1. The Process of Purchase or Sale, 547.

within the act of congress relating to the right of Indians to dispose of their lands.\[25\] The word "lease" is frequently used to designate the written instrument, though such instrument is in fact only evidence of the leasing.\[36\]

SS 2. \_The contract of lease and creation of tenancy.\_See 16 C. L. 571.--The relation being purely contractual cannot arise by operation of law,\[37\] and, while the contract may be express or implied,\[38\] all the elements of a contract, such as the meeting of the minds,\[39\] must exist,\[40\] and if there is a written lease it must be delivered\[41\] without fraud,\[42\] unless the party claiming nondelivery is estopped to assert the same.\[43\] No particular form of expression is necessary but any language manifesting an intention to create the relation is sufficient.\[44\] A party is entitled to have included in his lease

35. Lease is an "allemation of lands" with- ison and plaintiffs demanded rent under new in Act April 21, 1994, c. 1402, 33 Stat. 204, lease. Held that receipt of acceptance was relating to alienation of lands by Indians.

Lidred v. Okmulgez L. & T. Co. \[Ock\] 98 P

epetence and defendants remaining in possession gave plaintiffs right to elect at any time to consider lease in effect. Robertson & Co. v. Russell \[Tex\]. City. App.\] 111 SW 205.

contract cannot be treated as lease. Stockwell V. Washburn, 111 NYS 413.

newal of a lease there mus be a meeting of minds and acceptance of the offer to renew 33. Though provision that leasee shall have before it is withdrawn. Landloyd's offer to option "at expiration of this lease" to renew, provided he gives six months prior no-contracting of his "intention," contemplated further (C. v. Simon, 132 11 App. 188.

if leasee notifies lessor that he will take for another term and leaseor accepts, a complete contract is formed. Nutting Park Driving Corp. v. Fiske \[Conn.\] 71 A 499. Where lessor seals land and vence knows of existing (Tufah) 96 P 1018.

for lease was signed by both parties and the sale continues, relation of landord and tenant is created between them. Starbuck lived to defendant but never delivered, v. Avery \[Mo. App.\] 112 SW 33. Where lease is notified that he is leasee of the premises and agrees to pay rent to such person, held (Tufah) and leasee, and a composite of lease and leasee.

Friedland v. Nicholsburg, 110 NYS 1055.

39. Evidence of conversations and negotiations held to make question for jury whether minds had met. Robertson & Co. V. Russell \[Tex\]. City. App.\] 111 SWY 205. Evidence of conversations, writings, etc., held to show that minds met on particular rental. Id. Where owner did not surrender lease but (Tufah) merely permitted it to be used to make duplicate copy to be signed by original leessors, and he was not aware that true copy was not made, his act did not operate to make new lease (Fleck v. Feldman, 110 NYS 412), and where false lease was assigned by lease, see to subtenants, owner retained all rights under original lease against assignor and assignee (Id.).

01. Express contract for room rent asserted against son-in-law after family delluc- ties arise will be carefully scrutinized. Heron v. Weber, 103 Me. 178, 68 A 74. Evaldance held insignificant to show express contract to pay room rent, defendant being a son-in-law and claim being asserted only (Tufah), but also (Tufah), but also (Tufah).

after family dellucities arose. I. Evidence held to sustain finding of written lease for one year at rental of 580 per month. Rees (Tufah), but also (Tufah).

41. Where lessor regulated lease by of-

defing to relatiush rights therender, he ed against son-in-law after family delluc- ties arise will be carefully scrutinized. Heron v. Weber, 103 Me. 178, 68 A 74. Evaldance held insignificant to show express contract to pay room rent, defendant being a son-in-law and claim being asserted only (Tufah), but also (Tufah).

after family dellucities arose. II. Evidence held to sustain finding of written lease for one year at rental of 580 per month. Rees (Tufah), but also (Tufah).

42. Where lessor regulated lease by of-

forcing to relatiush rights therender, he ed against son-in-law after family delluc- ties arise will be carefully scrutinized. Heron v. Weber, 103 Me. 178, 68 A 74. Evaldance held insignificant to show express contract to pay room rent, defendant being a son-in-law and claim being asserted only (Tufah), but also (Tufah).

and there is recorded a sealed lease with two years to run, leasey is estopped to assert such non-in-law and claim being asserted only (Tufah), but also (Tufah).

after family dellucities arose. II. Evidence held to sustain finding of written lease for one year at rental of 580 per month. Rees (Tufah), but also (Tufah).

43. Where leasee recognized lease by of-

ver. Storms \[Min 530

LANDLORD AND TENANT SS 2. 13 Cur. Law.

all the terms of the accepted option to lease.45 The contract must be free from fraud46 and material misrepresentation,47 and the lease must be for a lawful purpose.48 The mere demise by the lesser of the premises leased is not sufficient consideration to support an independent covenant of the lessee.49 To avoid a lease because of false representations, they must be material,50 and it must appear that the lessee relied upon them.61 A lessee who seeks to avoid the lease on account of fraudulent representations must act promptly on discovery of the fraud.52 The lease must be by one having an estate in the land,53 or by one duly authorized and empowered to make the same.54 A lease is binding upon the lessee though not signed by him if he takes possession thereunder.55 In some states lease of certain term durations must be recorded.56

\_Construction of leases and proof of the terms of tenancy.\_See 10 C. L. 572_The rules of construction applicable to contracts generally apply to leases,57 the cardinal principal being to give effect to the intention of the parties.58 Leases are governed as to legal effect by the laws of the state where executed,59 and it will be presumed that the parties contracted with reference to local established customs.60 While a

ing to lease for a definite period and em-

topoloring all details held to be lease. Seibert

v. Grace, 18 Ill. App. 361.

**43.** Option to lease held to contain all the

essentials of a lease. O'Connor v. Harrison,

132 Ill. App. 264.

**53.** Fact that leasev was not owner of the

46.\*\* Where lessee covenanted that he had

remasses does not authorise lessee to rescind

examined and knew the condition of the

permines and had received same in good or

lease owner. Jorgenson v. Hock, 234 Ill. 631,

der and repair, and that no representations

were made as to condition except as in

47.\*\* Agent must have authority. Bonnarza

dorsed thereon, be could not resend for al

legged false oral representations as to condition of boiler. Jorgenson v. Hock, 234 Ill.

tion of boiler, Jorgenson v. Hock, 234 Ill.

631, 85 NE 298.

47. Misrepresentation by sublesger that

there were no restrictions in his lease except against use as saloon or restaurant

held material on issue of frand. Hrumphreys v. Roberts, 113 NYS 792. Misrepresentation by sublesger as to rent paid by him held

not as to a material matter. Id. Though

lessee pleaded that written contract did not

set forth the agreement, evidence that lessee

did not read same and that he trusted

sor held irrelevant and immaratical. Duncan

v. Jouett \[Tex. Civ. App.\] 11 18 SVP 981.

48.\*\* Mere Knowledge or suspicion that lease is going to use premises for illegal purpose will not invalidate the contract. Harmphison v. Shirley \[Iowa\] 117 NWW 962. Though

computation cannot be licensed to keep saloon, it may lease premises so as to have

its beer sold thereon. Conservative Reality

Cov. v. St. Louis Brew. Ass'n (Mo. App.) 11

SWP 229.

49.\*\* Covenant for bidding other than plain-

tiff's beer to be sold on premises leased without agreement to sell to lessee is unilateral.

Fortune Broa. Brew. Co. v. Shields, 137 Ill. App. 77.

50.\*\* Representation that defendant was

owner, when in fact title was in his wife,

not such representation as will entitle ten-

ant to rescission, in absence of showing that

possession was disturbed. Hock v. Jorgenson,

187 Ill. App. 199.

51. Evidence held not to show reliance

upon representation that boiler and steam

pipes were in good repair. Hock v. Jorgenson,

187 Ill. App. 139.

52. A lease who claimed that he was Induced to accept lease because of fraudulent

187 Ill. App. 139.

53. A lease who claimed that he was Induced to accept lease because of fraudulent

representations regarding good repair of

boller and pipes of engine, but who retained

possession of premises for two years, held

precended from setting up fraud, Hoek v.

sessentials of a lease. O'Connor v. Harrison,

Jorgenson, 187 Ill. App. 199.

53.\*\* Fact that leasev was not owner of the

processed does not authorise lessee to rescind

promises does not authorise lessee to rescind

premaises and had received same in good or

reference owner. Jorgenson v. Hock, 234 Ill. 631,

were made as to condition except as in

S4. Agent must have authority. Bonnarza

Josend Schultz Brew. Co. \[Michel\] 15 Det.

legged false oral representations as to condition

187 Ill. App. 139.

188. N 846. Agent possessing

power to rent has power to renew tease.

Steward V. Jackson, 123 App. Div., 569, 108

189

190

191

192

193

20

21

228

23

24

25

26

27

28

29 12 Cur. Law. .

The statistic of fraudsSee 10 C. L. 573.--Leases are contracts for the conveyance of land and within the statute relating thereto.74 They must also conform to the statutes requiring contracts not to be performed within one year to be in writing.75 In many states an agent's authority must be in writing to authorize him to execute a lease,76 but the mere fact that he exceeds his written authority as to the terms of the lease does not bring the lease within the statute.77 Where a demise in writing extends over a fixed period, with a provision for its- continuance over another fixed period at a fixed rental, the renewal is a continuation of the old term and is within the statute of frauds.78 Where a tenant under a lease within the statute of frauds takes possession and is accepted,79 the statute does not apply to the contract arising therefrom.80 A bill seeking the enforcement of a lease or assignment thereof which is within the statute of frauds must shew that it is in writing.81

Footnote 78: Five-year term demised in writing with five-year renewal was not as to renewal ob-lesssee executed the lease and paid the rent doses not come within rule permitting parcel conditions precedent to contract taking effect. Goerlitz v. Schwartz, 112 NYS 1119, 78. Evidence examined and held sufficient to sustain finding that premises rented to two persons at a certain rental "each per month" constituted a several and separate liability on each for one-half total rent. Carpenter v. Lewis, 13 Ill. App. 449.

74 Miles v. Janvrin \[Mass.\] 88 NE 785. Oral agreement between corporation land-lord and tenant holding under lease from year to year, that tenant should continue in possession until certain litigation should be determined. in meantime to pay rents monthly or quarterly, held within statute. Williams V. Aptolecaries' Hall Co., 80 Cenn., 50 A 12. Delivery of unsigned lease to tenant by agent of lesser with oral stipulation that it must be signed by designated hour or lease would be given to another, which was not signed but taken up at such hours, held not such delivery as satisfies statute of frauds. Matemter v. Hudson Sav. Bank, 197 Mass. 325, 83 NE 1102. Where written lease is orally renewed and orally modified, instruction referring to lease as oral held not erroneous. Ashdown v. Ely \[Iowa\] 117 NW 976.

75. Lease not to be performed within year is within statute. Goldstein v. Webster \[Cal. App.\] 95 P 671; Moore v. Terrell, 33 Ky. La. R. 522, 111 SWY 297; Womach v. Jenkins, 138 Mo. App. 408, 107 SWY 423.

01. Where written authority of agent requiring him to take security for rent did not designate time of taking or character of security, lessor is bound by lease silent as to security where lease offers ample security long before commencement of term. Paris v. Johnston \[Ala.\] 46 S 642.

01. Did not require security for rent as required by written authority, Paris v. Johnston \[Ala.\] 46 S 642.

01. Five-year term demised in writing with five-year renewal was not as to renewal ob-lesssee executed the lease and paid the rent doses not come within rule permitting parcel conditions precedent to contract taking effect. Goerlitz v. Schwartz, 112 NYS 1119, 78. Evidence examined and held sufficient to sustain finding that premises rented to two persons at a certain rental "each per month" constituted a several and separate liability on each for one-half total rent. Carpenter v. Lewis, 13 Ill. App. 449.

01. Miles v. Janvrin \[Mass.\] 88 NE 785. Oral agreement between corporation land-lord and tenant holding under lease from year to year, that tenant should continue in possession until certain litigation should be determined. in meantime to pay rents monthly or quarterly, held within statute. Williams V. Aptolecaries' Hall Co., 80 Cenn., 50 A 12. Delivery of unsigned lease to tenant by agent of lesser with oral stipulation that it must be signed by designated hour or lease would be given to another, which was not signed but taken up at such hours, held not such delivery as satisfies statute of frauds. Matemter v. Hudson Sav. Bank, 197 Mass. 325, 83 NE 1102. Where written lease is orally renewed and orally modified, instruction referring to lease as oral held not erroneous. Ashdown v. Ely \[Iowa\] 117 NW 976.

01. Lease not to be performed within year is within statute. Goldstein v. Webster \[Cal. App.\] 95 P 671; Moore v. Terrell, 33 Ky. La. R. 522, 111 SWY 297; Womach v. Jenkins, 138 Mo. App. 408, 107 SWY 423.

01. Where written authority of agent requiring him to take security for rent did not designate time of taking or character of security, lessor is bound by lease silent as to security where lease offers ample security long before commencement of term. Paris v. Johnston \[Ala.\] 46 S 642.

01. Did not require security for rent as required by written authority, Paris v. Johnston \[Ala.\] 46 S 642.

01. Five-year term demised in writing with five-year renewal was not as to renewal ob-lesssee executed the lease or paid the rent doses not come within rule permitting parcel conditions precedent to contract taking effect. Goerlitz v. Schwartz, 112 NYS 1119, 78. Evidence examined and held sufficient to sustain finding that premises rented to two persons at a certain rental "each per month" constituted a several and separate liability on each for one-half total * 12 Cur. Law. Landlord and Tennant SS 3. 533

\_Breach of contract to make lease.\_See 10 C. L. 574--A lease is to be distinguished from a contract to make a lease,58 and the latter from a mere option.89 Lesser cannot recover of lessee for refusal to accept a lease where he did not put the premises into the condition required by the lease,89 unless the lessee has waived such nonperformance or is estopped to assert it.91 A deposit to secure performance must be returned, notwithstanding nonperformance, unless it is liquidated damages or actual damages are shown.92

SS 3. \_The different kinds of tranancies and their incidents. Periodical tenancies.\_See 10 C. L. 574--While a periodical tenancy may be created by express agreement,93 it generally results from a holding over after the expiration of a term,94 or from possession under a lease void under the statute of frauds95 or otherwise.94 The character of the tenancy is sometimes regulated by statute where the lease does not fix the time of its duration.97 Though the payment of rent is sometimes significant as to the character of the tenancy, it cannot prevail against the terms of the leasing,98

\_Tenancy at will.\_See 10 C. L. 675--A tenancy at will may be created by expre-s agreement,99 and in a few states arises from possession under a lease within the statute.

88. Evidence held to show a mere tenta-

- 4043, provides that no holding over shall be evidence of an agreement for a further a written lease later, and not a final lease.

- 80 Conn. 503, 69 A 12.

- 95, Where tenant enters under lease for to jainstress, who was without authority to

- 96, and may be created by expre-s agreement,99 and in a few states arises from possession under a lease within the statute.

- 88. Evidence held to show a mere tenta-

- 4043, provides that no holding over shall be evidence of an agreement for a further lease later, and not a final lease.

- 80 Conn. 503, 69 A 12.

- 97, Where tenant enters under lease for to jainstress, who was without authority to

- 98, and may be created by expre-s agreement,99 and in a few states arises from possession under a lease within the statute.

- 89. Instrument commencing "We agree to

- 98, where tenant entera a lease," etc., and not containing the word "option," held binding contract and not an option.

- 99. Enfield to have premises steam heated as called for by agreement. Corinthan

- 100. Field to have premises steam heated as called for by agreement. Corinthan

- 101. Lodge v. Smith, 147 N. C. 244, 61 SE 49.

- 91. Fact that lessee who had agreed to take lease of store from certain time if steam heat was put in remained silent when told that steam plant would not be ready held not to estop him from refusing to take lease because of lack of steam. Corinthan

- 102. Broadway Renting Co. v. Wolpin, 110

- 93. Testimony of lessee that he had lived in flat for 13 years, that he had hired it from A to whom he paid rent, that he paid

- 825 per month, although not always in advance, etc., held to show monthly tenancy. Drake v. Cunningham, 111 NYS 199. Evi-

- 103. Endence of conversations and negotiations held to show monthly tenancy. Schnieder & Co. v. Amendola, 113 NYS 517. Evidence held for jury whether tenancy was from month to month of for term of one year. Franck v. Shmolens, 113 NYS 464. Acceptance of rents

- 104. End not assent that tenant was holding as

- 105. End that he ute of frauds.1 A tenancy at will of agricultural lands is in effect a tenancy from year to year in Missouri.2

\_Tenancy at surface.\_See * C. L. 604

SS 4. \_Rights and interests remaining in the landlord. A. Reversion, seisin, and right of re-entry.\_See * 10 C. L. 615--The landlord is the owner of the estate not demised and may do with it as he sees fit, subject always to the lease.3 While an assignee of the landlord's interest is entitled to all of his rights,4 he is chargeable with notice of the rights of a tenant in possession,5 and has no more right than the lessor.6 Possession of the tenant inures to the landlord,7 and upon a sale of the reversion the lessee will be deemed to hold under the grantee unless he repudiates the tenancy upon learning of the sale,8 although such continued possession is not constructive notice of the vendee's unrecorded deed.9 Upon the death of the landlord his heirs, devisees or personal representatives usually succeed to all his rights and interests.10 A subtenant holds subject to the rights of re-entry reserved as against the tenant.11

(SS 4) \_B. Estoppel of tenant to deny title.\_See * 10 C. L. 615--While one sued as a tenant may show that the relation does not exist,12 one who has acquired 18 possession as a tenant is estopped to deny his landlord's title,14 or to assert a superior one.15 The estoppel applies only in actions arising out of the relationship,16 and relates only to the lessor's title at the time of contracting and the lesee may show that such title has been lost,17 or he may acquire and assert the same.18 While the estoppel does not apply to the lessee's wife,19 it extends to all succeeding to the lessee's possession.20

as tenant at will. Buford v. Wasson \[Tex. Civ. App.\] 108 SVW 275. One entering Into possession by express permission of the owner at will, such possession creates relation of landlord and tenant. Id.

1. Drice v. Thompson \[Ga. App.\] 60 SE 800.

1. True owner in actual possession does not estop himself from asserting his title by accepting lease from a cllamant. Strong will. Womach v. Jenkins, 128 Mo. App.\] 60, 107 SVW 428. See ante, subsec. Periodical Tenancies.

1. Womach v. Jenkins, 125 Mo. App.\] 608, 107 SWW 428.

1. Repilating and laying out alley through

1. Entitled to benefit of coevent to surrender premises "In the same condition as they now are." Chesapeake Brew. Co. v. Goldberg, 107 Md. 485, 69 A 37.

5, 6. American Exch. Nat. Bank v. Smith, 113 NFS 236.

7. Harris v. Iglehart \[Tex. Civ. App.\] 118 SVW 170.

1. Starbuck v. Avery \[Mo. App.\] 112 SVW 33. Formal attorment in affirmative words is not necessary. Id.

1. Feinberg v. Stearns \[Fla.\] 47 S 197.

1. Under Hurd's Rev. St. 1905, 50, 5, 14, giving heirs and personal representatives of lesser same rights and remedies as lessor would have had, lessee sued by heirs in fortielble detanner cannot litigate validity of will devising premises to another. Thomas v. Olenick, 237 Ill. 167, 88 NE 592.

1. Where lease provided that landlord might re-enter on expiration of term, landlord was held entitled to possession as against subtenant, although tenancy had terminated by tenant's surrender before expiration of term. Turn Verein Garfield v. Vocke, 131 Ill. App. 628.

1. May show that he leased from another but not by showing the plaintiff was not true onver. Johnson v. Tucker, 136 VPIs. 505, 117 NWW 1002. Evidence held sufficient to show that relation existed. Text v. Tefft \[Mich.\]

1. Dett. Leg. N. 715, 117 NWW 627.

1. True owner in actual possession does not estop himself from asserting his title by accepting lease from a cllamant. Strong v. Baldwin \[CaI.\] 97 P 178.

1. Walwicht v. Blush, 43 Colo. 329, 95 P 927; Hardwick v. Karn \[Ky.\] 83 Ky. L. R. 776, 111 SWW 293; Hulett v. Platt \[Tex. Civ. App.\]. 109 SWW 201. Doctime applies though land is public domain. Wailwecht v. Blush, 43 Colo. 329, 95 P 927. Doctime does not obtain where title is derivative. Drake v. Chuningham, 111 NYS 199. Where one enters into possession under another who also re-name in possession, the doctrine that he cannot dispute title of one under whom he enters without surrendering possession does not apply where there has been a disclaimer of tenancy and notice thereof to party from whom possession was obtained. Mitchell v. Allen \[S. C.\] 61 SE 1087.

1. Mulling v. Hall \[Ky.\] 112 SVW 920. Ten-ant cannot acquire and assert patent 12 Cur. Law. Landlord and tenant $ 5A. Likewise, one succeeding to the lessee's possession cannot assert any defense which the lessee could not assert.\[21\]

\_Adverse possession.--\_Where the relation is once established, limitations will not run against the landlord\[22\] until the lessee has publicly repudiated the relation and professed an adverse possession,\[23\] and the rule applies to all who succeed to the ten-ant's possession.\[24\] The repudiation must be open, continuous, notorious, and of such adverse character as to preclude all doubt as to lessor's knowledge thereof.\[25\]

SS 5. \_Mutual rights and liabilities in demised premises. A. Occupation and enjoyment.\_See 10 C. L. 577--\_The tenant is entitled to all easements running with the land and incident thereto,\[26\] and takes subject to all existing servitudes.\[27\] While the lesfor cannot impose additional burdens upon the demised premises,\[28\] a lessee of the "lower floor" is bound to recognize the existence of the upper floors and consents that his lease does not include privileges and appurtenances necessary to such floors.\[29\] The landlord is bound by an express covenant to supply heat,\[30\] and in such case a covenant by the tenant to keep the premises in repair does not require him to repair the heating apparatus,\[31\] and the duty to furnish heat may be implied from the surrounding facts,\[32\] but the lease of a "bedroom" does not carry as an incident a right

bed lay beyond boundaries fixed by Civ. Code * won from landlord or from landlord if he 1896, $ 3155, granting to owners of land right * did not win, in absence of notice to landlord to plant and gather posters for specified distance in front of land. Cleveland v. Alba * not to effect tenancy, and his possession in- \[Ala. 46 # 57\]. * 20. One acquiring possession through column with tenants. Williams v. Fox, 152 * did. 215, 15 Det. Leg. N. 91, 115 NV 710. * 21. Prior record release to railroad for landlord. Orthwien v. Davis, 140 Ill. App. 107. * 21. True owner cannot enjoin enforcement of writ of possession which had been obtained against lessee. Hardwick v. Karn, 33 Ky. L. R. 776, 111 SW 293. * 22. In ejecent against tenant, plantliff need not prove averse title within prescriptive period. Fenn v. Louisell (C. A.) 160 * F 458. * 23. Buford v. Wasson (Tex. Civ. App.) 109 * SW 275. One's possession under lease is presumed to continue until it is shown that such possession has been surrendered or the lease otherwise repudiated. Jones v. Collins & O. Land Co. \[Or.\] 97 P 625. Where lease attorms to another and pays rent to such person with lease's consent, possession may be adverse. Hanson v. Sommers \[Min.\] 117 NV 842. * 24. Buford v. Wasson \[Tex. Civ. App.\] 109 * SW 275. * 25. Coquille Milli & Mercantile Co. v. Johnson \[Or.\] 98 P 122; Buford v. Wasson \[Tex. Civ. App.\] 109 SW 275. Lessor's knowledge of adverse holding need not be proven by--Yond all doubt but stronger and clearer proof is required than in other cases. Buford v. Wasson \[Tex. Civ. App.\] 109 SW 275. Where tenancy at will was created solely to allow lessee's cattle to graze upon the land, and th'd person used same under right * of tenant grazing of his cattle thereon was no notice of adverse possession. Id. Eveltence of acts, etc., of one holding under orig- * of adverse holding. Id. Where lessee stated to third person claiming land that he was in possession for lease and wanted third person's authority to use land, and right to purchase * 536 Landlord and TENANT SS 5A. 12 Cur. Law. to a supply of water.38 A name given to the business of the lessee and not attached to the property may be changed by the lessee.34

In the absence of agreed liquidated damages,35 upon a breach of a covenant,39 the covenantee may recover the actual damages sustained.37 Where the breach of the covenant destroys the lessee's business, he may sue in tort.38 The duty of a lessee or a lessee to comply with municipal police regulations depends upon the ordinance.39 Unless restricted by the lease,40 the tenant may put the property to any lawful41 use not constituting a nuisance44 or amounting to waste.43

A lessee is entitled to possession according to the terms of the lease,44 and, where the lessor fails to give possession or to put the premises into a tenantable condition45

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## 12 Cur. Law. Landlord and tenant SS 5B.

as agreed, thereby depriving the lessee of possession,\[40\] the lessee may rescind\[47\] or re-cover damages.\[48\]

After possession has been given, the lessee is entitled to exclusive possession,\[49\] unless he voluntarily surrenders the same,\[50\] and one unlawfully\[51\] disturbing his possession is liable.\[52\] Injunction will issue to protect such possession where irreparable injury will result.\[53\] As incidental to the use of the demised premises, the tenant is entitled to the produce thereof,\[54\] and may remove the same unless otherwise provided.\[55\]

\_Right to enter.\_See 10 C. L. 578--While forcible entry and unlawful detainer will not lie to recover initial possession,\[56\] the lessee may maintain ejectment.\[57\]

\_Covenant for quiet enjoyment.\_See 10 C. L. 578--Where lesser does all that he can to abate a nuisance and the lessee thereafter pays rent without objecting, he cannot recover damages for disturbance.\[58\]

\_Nature of estate of tenant.\_See 10 C. L. 579--The rights of a tenant of a building in the ground upon which it stands depends upon the extent of his demise.\[59\]

(SS 5) \_B. Assignment and subletting.\_See 10 C. L. 579--While a lease or the rents may be assigned by an express agreement,\[50\] a warranty deed by the lessor operates

Failure of lessor to put premises in habitable condition as agreed does not dependative the presence of possession unless he intended to take possession. Davies v. Hotchkiss, 112 NYS 233. Evidence held insufficient to show that lessee intended to take possession at time fixed for commencement of term. Id.

47. Where lessor agreed to have premises been ejected by other landords is indamishable. Id. One attempting to justify disturb-free thereupon agreed to take it. If ready, by the 14th, held no rescission. Davies v. Hotchkiss, 112 NYS 233.

01. Where lessor fails to give possession at time specified, measure of damages 13 excess of rental value over rent reserved (Bailey v. Krupp, 110 NYS 994), any time between time of executing contract and time of commencement of term (Paris v. Johnston \[Ala.\] 46 S 642). Where lessee is deprived of possession for two weeks of house leased for summer because of unententable conclination caused by lessor's neglect, measure of damages is proportionate rental. Davies v. Hotchkiss, 112 NYS 233.

01. St. Vincent's Roman Catholic Congregation v. Kingston Coal Co., 221 Pa. 349, 70 A SS3. Hence adverse possession does not run against landlord until leasehold has been terminated. Id. Lessor cannot be removed from premises by summary proceedings on ground of forcible entry and detainer, where he has an interest in the business conducted upon the premises and no credible detection is shown. Davis v. Shapiro, 112 NYS 1105.

01. Evidence held to sustain finding that lessee consented to lessor renting negro house to another. Hurt v. Kirby \[Ga. App.\]

60 SE 802.

51. When renewal lease is of very debatable validity, leasor is not liable for damages for disturbance of possession by foreclibating against houtlord. Aull v. Bowling Green Opera House Co. \[Ky.\] 114 SVV 284. Lesser procuring wrongful issuing of warrant of restitution is liable for re-sulting damages. Roettger v. Riefkin \[Ky.\]

113 SVV 88. Where lesser is present when writ of possession is issued at direction of his attorney on judgment in his favor andas an assignment of the lease${}^{61}$ and entitles the purchaser to all the rights of a lessor,${}^{62}$ especially if recognized by the lessee.${}^{63}$

Unless restricted by prohibitions in the lease${}^{64}$ or by statute,${}^{65}$ a tenant may assign his lease,${}^{66}$ but he is not thereby released from his covenants${}^{67}$ unless the land-lord accepts the assignee as a substitute tenant.${}^{68}$ A covenant against subletting and assignment is not broken by a transfer of the leased premises by operation of law, but if the covenant expressly prohibit such a transfer the lease will be forfeited.${}^{69}$ Whether a partial transaction is an assignment or a sublease depends upon its legal effect rather than its form.${}^{70}$ Unless the lease is within the statute of frauds, it may be assigned by an act evincing such purpose${}^{71}$ by the lessee or one having authority to act for him.${}^{72}$ The assignee is entitled to all the rights of the lessee under the lease${}^{73}$ but not to concessions granted as a favor,${}^{74}$ and, on the other hand, so long

61. Purchaser may sue on original lease.${}^{286}$ Ill. 476, 86 NE 107. Assignment, though Starbuck v. Avery \[Mo. App.\] 112 SW 33.

01. Ventura Hotel Co. V. Pabst Brew. Co., 33 Ky. L. R. 149, 109 SW 354.

01. Lessee's occupancy with notice of sale

Manley v. Berman, 111 NYS 711. Where lease amounts to recognition of purchaser as les-

was actually transferred during last month sor, Starbuck v. Avery \[Mo. App.\] 112 SW

64. Assignment may be absolutely prohibited. E. H. Powers Shoe Co. v. Odd Fel-

111 NYS 530. Where one telegraph company flows Hall Co. \[Mo. App.\] 113 SW 253. Covenant providing for forfeiture, if lessee's interest be sold under execution or other legal

lessee, evidence held not to show release of process without written consent of leasor,

lessee's liability. Chicago & Milwaukee Tel.

held not broken by transfer of lessee's Inter-

65. V. Type Tel. Co., 137 Ill. App. 131.

est by operation of law from bankrupt lease

to trustee, this not being by sale. Gazlay v. Williams, 210 U. S. 41, 52 Law. Ed. 596. The

cugled and became tenant of original leasor.

lessee's right of assignment may be re-

89. Lease providing for forfeiture, "if lesse" is

shall be made without the landford's consent.

88. In action on contract to recover fixed sum in consideration of which land was to

consent to assignment, evidence held to show

that intent was that no right should accrere

unless lessee actually made assignment.

O'Brien v. Pabst Brew. Co., 31 App. D. C. 56.

70. A "subleasing" is where lessee demises

Covenant that assignment without consent of leasor shall be void is vald (Behrens v. Gervings V. Bowes \[Tex. Civ. App.\] Cloudy \[VWash.\] 97 P 450), and assignment

110 SWV 178. Instrument in form of sublease

is void as to whole lease (Id.). Assignee could not exercise option to purchase contained in lease. Id. Where lessor expressly declares that under no circumstances will she

104 Minn. 332, 116 NWV 838), and original

lessee cannot maintain forsible entry by un-

execute or consent to assignment of lease to

plaintiff, temporary injunction restraining

others from interfering with plaintiff's possession, pending trial, held improper. Miles

71. Lease for less than year. Grauer v. Samuels, 111 NYS 530.

01. At common law and under Hurv's Rev. St. 1905, 80, 32, providing that, when the

lease is assigned; landlordord shall have right to enforce his item against assignee, etc.,

leases are assignable. Gillesp v. Fulton Oil & Gas Co., 236 Ill. 188, 86 NE 219,

66. Bank to accomplish voluntary liquidation, "pledged" to another bank its assete, etc., as security for advancements, and

agreed to make transfers on request to satisfying recording statutes. Assignee took possession of leased property. Heid in effect an assignment of lease. People v. German Bank,

110 NYS 291.

67. Fact that lease was assigned to corporation under provision therein authorizing

such assignment does not release lessee, where there was no provision to that effect. MIdland Tel. Co. v. National Tel. News Co.,

12 Cur. Law.

68. Purchaser may sue on original lease.${}^{286}$ Ill. 476, 86 NE 107. Assignment, though Starbuck v. Avery \[Mo. App.\] 112 SW 33.

12 Cur. Law. LANDLORD AND TENANT SS 5B. 539 as he remains in possession!5 he is liable to the lessor for rent.'6 The rights of the assignor depends upon the terms of the assignment.77

Subject to the restrictions in the lease,78 a lessee may sublease,79 and any restrictions may be waived by the landlord.80 Landlord's consent to a subletting when required by the lease must be obtained without fraud,81 but need not be based upon a consideration, especially where the lessee has acted thereon.82 A subletting does not create any contractual relation between the lessor and the sublessee,83 nor does it relieve the original lessee from his obligations84 unless the landlord accepts a substitution.85 The lessee cannot bind beyond his term,86 and the sublessee, knowing of the original lease, is charged with knowledge of its terms97 and takes subject thereto.88 A tenant cannot voluntarily surrender a right to the prejudice of his subtenant.89

equity, if any, of volunteer purchaser at void 7B. Mattex v. Wescott \[Aia\_\] 47 S 170. execution sale against debtor though judg- 80. Although hease calls for lessor's written existed prior to advancements. That ten consent, lesor may waive same by giv- heimer v. Tischler \[Fla\_\] 46 S 514.

74. Where lease calls for specific rental, 47 S 170. Subletting with knowledge and fact that lesser granted lessee concession - of lesor held not a violation of. held not to entitle assignee to same. Kean - v. Rogers \[Iowa\] 118 NW 5B. Evidence held in writing. Chesapeake Brew. Co. v. Mt. to show that reduction of rent was a tempo- - Vernon Brew. Co., 107 Md. 528, 68 A 1046.

01. Fact that lessee when applying forl lease, Id.

01. consent did not disclose names of 75. Where assignee paid rent for some time, its officers asserted control of premises, that consent was obtained by unfair means, and refused to permit lease to sell except there being no request for such information. subject to lease, held to warrant finding that Mattav v. Wescott \[Aia\_\] 47 S 170.

01. Where lesser gave consent to subletting Marone v. Hinckel Brew. Co., 110 NTS 601.

01. Marone v. Hinckel Brew. Co., 110 NTS 601.

01. Suling of assignor, original lessee, is not consent as not supported by a consideration. an election so as to preclude suit against as- Mattav. Wescott \[Aia\_\] 47 S 170.

01. Audubon Hotel Co. v. Braunnig, 120 La. man Bank, 110 NTS 291. Lesser cannot, 1089, 46 S 33. Subtenant cannot enforce les- though entitled to rent for entire period - sort svcurs covenant to renew. Audubon Hotel Co. without regard to destruction of premises by v. Braunnig, 120 La. 1089, 46 S 33. Where fire, sue assignee after destruction without lease refuses to renew, subtenant's remedy, showing terms of assignment. Norton v. Hincker, 137 Iowa, 750, 115 NW 612. See, 130, 48 Amte, as to preclusion of assignee to any - to deny landlord's title.

01. Where lessee sold all his right, title and interest in and to lease containing op- 249, but where lease is assigned with con- tion without reservation of rebate allowed as by option, he is not entitled thereto. Pollard - v. Sayre \[Colo.\] 85 P 816.

01. Fact that lease authorized subtenant' to make certain repairs and to deduct cost leting, fact that, on being informed that thereof from rent held not to show accept- sublessee preferred to have his consent in - or subtenant as lease. Hoeks v. Bailey writings, he stated over the telephone that he would come down to the leased store - let, held not a revocation of consent. Mattav v. Wescott \[Aia\_\] 47 S 170. Letting of tuck of=10 * 540 Landlord and Tennant $ 5C. 12 Cur. Law.

(SS 5 ) \_C. Repairs and improvements.\_See 10 C. L. 850--There being no common-law implied covenant on the part of the landlord to repair, \[99\] he is under no obligation so to do \[91\] in the absence of statute \[92\] or an express covenant. \[93\] An agreement to repair made after the execution of the lease must be supported by a new consideration. \[94\] The lessor's covenant to repair will not be extended by judicial construction, \[95\] and the particular repair must come fairly within it. \[96\] A covenant to repair runs with the land \[97\] but may be waived. \[98\] Under an express provision, the lesor may enter upon the premises to make repairs. \[99\] The lessor must repair portions of the premises remaining under his control, \[1\] unless exempted by the lease. \[2\] A lesor failing to perform his covenant to repair is liable for the decreased iental value \[8\] and for any other proximate damages. \[4\] A lessee of a part of a building only \[5\] need not repair portions not demised. \[90\] Kirby v. Wylle \[Md.\] 70 A 213. Mere | Covenant that, if the "premises" should be lense does not impose a duty upon either lesor or lessee to repair (Williams v. Balmond, 79 S. C. 459, 61 SE 79). and, hence, a collateral agreement must be made in respect there (Id.). While consideration for lease is usually the rent to be paid, collateral contract may be shown as additional consideration. \[91\] In the case of a building only \[5\] need not repair portions not demised. \[92\] Under Rev. Civ. Code, art. 2683, lessor must deliver premises in good condition and free from any repairs. Bennett v. Southern Scrap Material Co., 121 La. 204, 46 S 211. Under Laws 1896, p. 589, e. 547, 8 197, and expressed provision of lease giving lesser the right to terminate lease if it should be so injured by fire as to be unatentable, lease cannot repair himself and counterclaim costs. Moore v. Coughlin, 11NYS 856. Where plendings merely raise the issue whether lesser made repairs as agreed, held error to submit issue whether premises were fit for occupancy by human beings as required by stature. Mitchell V. Henderson, 37 Mont. 515, 97 P 942. \[93\] Glenn v. Hill, 210 Mo. 291, 109 SW 27; Graff v. Lemp Brew. Co., 13 Mo. App. 618, 109 SW 1044. Where lesser agreed to repair if lessee would take a lease which he refused, held that he could not recover for lessor's failure to repair though he moved in. Byrnes v. McNevin, 112 NYS 1064. Expressed covenant to repair before term made at time of leasing is binding on leasor. Collins v. Fillingham, 129 Mo. App. 340, 108 SW 618. In action for injury, where plaintiff's evidence tends to show express covenant by lessor to repair, case is for jury. Id. The landlord may, by express agreement, fix the amount to be allowed tenant for making repairs. Lease provided that tenant might, with owner's written consent, make repairs and extraordinary improvements for which owner was to deduct not exceeding $1,000 a year from rent. Held that allowance of first month's rent on unauthorized repairs was a waiver of requirement of written consent. Langlev v. D'Audigne, 31 App. D. C. 409. \[94\] Glenn v. Hill, 210 Mo. 291, 109 SW 27. \[95\] Richmond v. Lee, 123 App. Div. 379, 107 NYS 107. \[96\] Lesser's covenant to make necessary "repairs" held not to render him liable for collapse of building due to decay or pillars, vices and defects of condition rendering premises unfit for leased purposes not being included in repairs. Bennett v. Southern Scrap Material Co., 121 La. 204, 46 S 211. \[97\] Overment by lessor to repair, if premises were injured "by the elements" so as to be uninable, held to include injuries arising from action of elements causing natural decay. Hanchett v. O'Reilly \[N. J. Law\] 68 A 1066. Covenant to repair or re-build, if premises are destroyed or rendered uninentable by "the elements or act of God," held not to cover dilapidation caused by gradual decay and frequent alterations by tenant. Kirby v. Wylle \[Md.\] 70 A 213. Where farm lease required lessor to furnish on notice such materials as the deemed necessary for repairs, and lessee claims credit for materials furnished by him, held a question for jury whether repairs were reasonably necessary. Ashdown v. Ely \[Iowa\] 117 NW 976. \[97\] Grantee and assignee of lessor bound. Silberberg v. Tracthenberg, 58 Misc. 536, 109 NYS 814. \[98\] Words "which is done," following agreement of lesser to repair fence, held to authorize inference that further repairs were waived. Hurt v. Kirby \[Gd. App.\] 60 SE 802. \[99\] MacNair v. Ames \[R. I.\] 68 A 950. \[10\] Goldberg v. Lloyd Where the lease defines the lessee's obligation to repair, his duty is measured thereby,' although a lease obligating him to make repairs does not cover defects created by the negligence of the landlord before the commencement of the term." "Reasonable use and wear" 9 are usually excepted from the lessee's obligation, but he has the burden of showing that an unusual damage comes within the exception.10 While a covenant to surrender in good condition imposes no liability during the term,11 it is immaterial that the term is terminated by forfeiture.12 A lessee failing to keep his covenant to repair is liable for the resulting damages,13 and, where the action is brought after the end of the term, the measure of damages is the cost of putting the premises in the condition required by the covenant 14 and is not affected by the fact that a new tenant makes the repair at his own expense.16

_Waste_,See 10 C. L. 581--Without the lessor's consent,18 the lessee cannot commit waste,17 and an injunction will issue to prevent threatened 18 waste.19 A tenant is liable for voluntary waste 20 and impliedly covenants to make such repairs as are necessary to prevent waste.21

(SS 5) _D. Insurance and taxes_,See 10 C. L. 581--A tenant of a perpetual leasehold must pay the taxes,22 and he is liable though the draughtsman drawing a new lease mistakenly omits the provision.23 In some states the lessee is charged by statute with the payment of taxes,24 but the obligation is usually controlled by the lease.25 Where

7. Under covenant of tenant to "make all necessary repairs and alterations necessary" 563.

to proper conducting of business" held to require him to repair sagging and leaking roof to alterations though sufficient to constitute, condemned by city as unsafe. Devine v. Radford, 110 NYS 982.

8. Negligent use of elevator and oral agreement of leasev to pay lessee expense of making such repairs may be shown. Bailey V. Krupp, 110 NYS 994.

1. Damages from ordinary reasonable use and wear has reference to depreciation, while tenant does nothing by affirmative act inconsistent with usual use and does not omit to do acts which it is usual for a tenant to perform. Taylor v. Campbell, 123 App. Div. 698, 698, 108 NYS 399. Damages due to falling of picture of its own weight, in furnished house leased for five months, held in the course of ordinary reasonable use and wear. Id.

1. Clock and glassware broken and furniture greatly damaged at end of five months' term. Taylor v. Campbell, 123 App. Div. 698, 108 NYS 399.

1. Covenant to yield up premises in good repair and to maintain the premises in the condition in which "the same are in at the commencement of the term, or may be put in by the lessor," does not require lessee to repair defect existing at commencement of term during his term. Hill v. Hayes, 199 Mass: 411, 85 NE 434.

1. Livingston v. Robb, 113 NYS 137.

1. Ation for breach of tenant's covenant to surrender premises in good condition, brought after removal in summary proceedings, plaintiff may recover as damages rental value and cost of removal of tenant's property, but not counsel fee, marshals' fee and charges for taking out the preced, its service and for docking summary proceedings. Livingston v. Robb, 113 NYS 137.

Where lease provided that one-half of deposit to secure performance should be applied to payment of last month's rent, it could not be applied to repairs. Schwartz v. Ribaudo, 110 NYS 352.

14. Update to prevent the release tax reimbursements are payable monthly, an eviction relieves the lessee as to future installments.\[26\]

The duty of the tenant to pay insurance premiums is usually covered by the lease.\[27\]

(SS 5) _E. Injuries from defects and dangerous condition.See 10 C. L. 582--Except_ as to original structural defects," nuisances 20 and known latent defects concealed from the tenant,\[30\] the latter takes the premises in the condition they are in at the time of leasing\[31\] and assumes all risks for obvious defects,\[82\] though it has been said that where the premises are rented in a bad state of repair, the landlord is: liable for injuries caused thereby.\[33\] The landlord, however, must use reasonable care,\[34\] unless relieved by the lease,\[35\] to keep in a safe condition,\[36\] portions of building not demised,\[37\] but used by the tenants, with his consent,\[38\] as incident to the premises leased\[39\] and not merely under a license,\[40\] and if negligent,\[41\] he is liable for all in-

Extent of lessee's liability on covenant to

if iron shutters by which plaintiff was ln-pay his pro rata share of water rent must

be computed by means at hand, unless he

time premises were demised. Everett v.

puta in meter. Goerlitz v. Schwartz, 112 NYS

Foley, 132 11, App. 438.

1119. Lessee under lease, binding him to

0001. Marcheck V. Klute \[Mo. App.\] 113 Svv

pay a proportionate part of water rents,

168. Claible for defects known or which not liable after vacating where water is

we would have been known by the exercise of

measured by meter, since there could be no

reasonable care. Monahan V. National Reality

charges against him. Corn v. Shapiro, 111

Co. \[Ga. App.\] 62 82 17. Statriway and landing affording access to rooms in tenement

126. Hall v. Middleby, 197 Mass. 48, 83 NE

house. Peters v. Kelly, 113 NYS 867. Lesser

1114.

must exercise reasonable care to keep halls,

27. Where persons not owners but liable

for insurance premiums gave lease in which

tensens in a safe condition. Farley v. Byers

lessee undertook to bear "any and all in-

(Min.) 118 NYS 1023.

crease of insurance on such premises," held

to render lessee liable for increased insur-

liable for injuries occasioned "by the eleva-

ance and plate glass insurance, though pay-

able to owners. Frank v. Auerbsch, 110 NYS

tensant thereto," held not to exempt from lia-

890. Evidence held to make question for

lurry whether any particular time was fixed

ham v. Mutual Reserve Life Ins. Co., 109 NYS

for payment of insurance premiums by lesse. Wright v. Northrup \[Iowa\] 118 NWV 437.

86. Jackson v. Paterno, 128 App. Div. 474,

01. Lessee is liable for defect of construction, latent or patent, where he knows

the-

of or ought to know. Monahan v. National

Jacent to wall so that one entering would

Reality Co. \[Ga. App.\] 62 82 17. Constructing which is not strong enough to stand

ting door to fall into it, held that chute did

strain of ordinary use is defective construc-

not render passageway dangerous. Martin. Id. Evidence of conditions at time of

check v. Klute \[Mo. App.\] 118 SWV 664.

accident held admissible as bearing on ques-

37. Lease of three rooms in tenement house

tion of original defective construction and

hold not a hiring of yard, stairway and land-

on question of lesser's knowledge thereof as

ing by which accross was had. Peters v.

given by physical conditions. Id.

Kelly, 113 NYS 851. Evidence in action by

29. Platform before store provided with

tenant of ground floor for damages caused

steps in front of door only, and not through-

out length, held not so unnarse as to be nuisance. Wheeler v. Pullman Palace Car Co.,

131 11. App. 262.

30. Compilant failing to aver that defects

were latent or were not made known held

demurrable. Morgan v. Sheppard \[Ala.\] 47 S

147.

001. Miles v. Janvrin \[Mass.\] 88 NE 785:

Morgan v. Sheppard \[Ala.\] 47 S 147.

32. "Goose neck" from gutter in caves

charged water onto steps. Hannaford v.

lott and then along left, lease carried right

Kinne, 199 Mass. 63, 85 NE 187. Fact that

lessor made repairs on steps used in common

held not to impose duty to attach conductor

to goose neck which discharged water from

leaves onto steps. Id. Lesser is not liable

to lessee, his servanta or guests for open defects existing at time of leasing, though con-

situating a nuisance. Morgan v. Sheppard

\[Ala.\] 47 S 157.

33. Evidence held not to show that falling

01.

juries proximately resulting therefrom "2" to one rightfully using the premises.43 In the absence of statute 44 or express agreement, a landlord need not keep common hallways 45 or stairs 46 lighted. The liability for lack of repairs is statutory in some states,47 but ordinarily rests upon the lessee.48 While a landlord may covenant to repair,49 in many states an action ex contractu 50 or in tort 51 for personal injuries cannot be based thereon as being too remote; 52 but in others recovery may be had where personal injury could reasonably be anticipated from a failure to repair.53 The contract must be made with the lessee.54 A contract to repair, however, must be distinguished from a covenant to maintain the premises in a safe condition,55 or to

lessor knew of or was in any way responsible was liable to subtenant for injuries caused for bicycle in hall. Aldrich v. Lane, 110 NYS 839. Placing of common door mat in common hallway before lessor's door held not negilligment to make repairs. Frank v. Sutton, p. McGowan v. Monahan, 199 Mass. 296, 159 NTE 174. Tenement House Act, Laws 1901, 85 NE 105. Where at time of purchasing of premises 10, premises vedge examined dumb waiter and it appeared all right and was notified that it condition, and does not impose duty to keep had just been "overhauled," failure to inspect and discover defect for 2% days held as matter of law not negligence. Trimlan v. Dillworth IN. J. Err. & App.J. Ti A 33. Where elevator boy brought elevator level with floor and stepped out to answer inquiries, ble. Id. Lessee of building containing an during which time watchman stepped into elevator and ran it up, leaving door open, and plaintiff walked into shaft, verdict for plaintiff upheld where jury was properly instructed. Jolliffe v. Miller, 111 NYS 406. 42. Evidence held insufficient to warrant of a corporate lessee cannot recover for findings that deceased tripped on loose zinc in o nation stairs-steps. Jones v. Ryan, 109 NYS 156. Evidence held insufficient to show that tin (cident to his office, he not being a mere emb-which struck plaintiff came from roof or ploye (Id.). 43. For duty to make repairs, see ante, that defendant, who had agreed to keep roof in repair, was responsible for it. Kooper-suspec. C. The occupant and not the owner bery v. Sussman, 110 NYS 319. Finding that defendant placed mat in hallway held authorized from fact that plaintiff spoke of mat (v. Schwewer wash room under tenant's exclusive as defendant's mat and he did not deny it (v. Schwewer) and that it was in front of his door. McGowan v. Monahan, 199 Mass. 296, 85 NE 105. 43. Evidence held to show that child was not using lott as passageway from leased 49. Miles v. Janvrin \[Mass.\] 86 NE 785. rooms when he fell through chute but was playing. Marcheck v. Klute \[Mo. App.J. 113\] serve is admissible to show leessor's duty to keep same in safe condition and lessee's emb- respectively right to use same. Sciolaro v. Asch, 113 NYS 446. 50. Cuiline v. Ackerman, 58 Misc. 538, 109 LNYS 714. 51. Nagle v. Davies, 113 NYS 834. Under Tenement House Act, Laws 1901, p. 52. Graff v. Lemp Brew. Co., 130 Mo, App. 618, 109 SW 1044; Marcheck v. Klute \[Mo. App.\] 131 SW 654. Unless apartment was under his control, failure of leasor to repair veders, water closets, etc.," building so divided as to constitute entirely separate residences, with no common hallways, etc., and yard used in common only by consent of leasor, held not a tenement house. Aldrich v. Lane, 110 NYS 897. 45. Duty to keep in condition it was in when leased. McGowan v. Monahan, 199 Mass. 296, 85 NE 105. 46. Injury caused by getting off steps before store on account of insuffclient light, not chargeable to landlord. Wheeler v. Pullman Palae Car Co., 113 Ill. App. 262. 47. Under Rev, Code La. art. 2322, providing that owner of building is answerable for damage occasioned by its ruin when caused by neglect to repair, held that leasor protect against a particular danger.\[54\] A lessor obligated to repair is not liable for resultant injury unless he had actual or constructive notice of the defect,\[57\] and the injury is one which could be reasonably anticipated.\[58\] By express provision written notice of the defect is sometimes required.\[59\] Where the lesser undertakes to furnish elevator service, he cannot delegate the duty of seeing that the elevator is kept in a safe condition.\[50\] Where the landlord undertakes to repair, he must do so in a careful manner,\[51\] and where the repairs are of a character to cause injuries if negligently done,\[42\] or unless certain precautionary measures are taken,\[58\] he is liable though he acts through an independent contractor. While a tenant cannot ordinarily recover for damages due to the lessor's failure to repair where he could have repaired at small cost,\[44\] he need not make such repairs while the lessor is making ineffectual attempts to do so.\[65\] As in all other cases, the party injured must be free from contributory negligence.\[66\] _To strangers.\[67\]_ See 10 C. L. 585.--Where lessor lets the premises in a known \[67\] defective condition amounting to a nuisance,\[68\] he is liable for resulting injury \[69\] to one

juries, but where he agrees to keep premises in safe condition the rule is otherwise. Miles v. Janvrin \[Mass.\] 86 NE 785.

56. Where lesser agreed to protect certain dangerous place against children, injury to child resulting from failure is not too remote, Marcheck v. Klute \[Mo.\] 113 SWP 654. Where covenant to protect dangerous place is relied on to render lesser blade, covenant and breach thereof must be pleaded.

01. Brooks v. Schlemitzauer, 113 NYS 484.

Evidence that there was a heavy fall of snow on Saturday, and on Monday roof leaked and it was found that roof was rusty and had holes in it, held insufficient to show constructive notice in absence of evidence as to length of time it had so existed. Id.

58. Where extraordinary rainfall on roof covered with snow and ice caused water to back up and rise above chimney flashings, held that it could not have been reasonably foreseen. Gutman v. Folson, 113 NYS 691.

01. Where lease makes leasor liable for injuries caused by lack of repairs only after written notice of need, such notice must be given. Gutman v. Folson, 113 NYS 691.

Lessor's general bookkeeper held to have no authority to valve written notice of lack of repairs. Id.

60. Scoldaro v. Asch, 113 NYS 446.

01. Carlon v. City Sav, Eank \[Web.\] 118 NYS 344.

NPV 334. Liable for negligence in leaving roof in leaky condition. Dalkowitz Bros. v. Schreiner \[Tex. Civ. App.\] 110 SWP 564.

Where lessor without consideration undertook to repair furnace and took out old one and failed to replace for unreasonable time, lesser injured by exposure cannot recover on theory of negligent repairs as wrong was mere omission to compute. Glenn v. Hill, 210 Mo. 291, 109 SWP 27.

62. Moving house and did not secure steps. Doyle v. Franek \[Neb.\] 118 NW 468. Where lesser undertakes to put on new roof through independent contractor, he is liable for negligence in leaving in leaky condition. Dalkowitz Bros. v. Schreiner \[Tex. Civ. App.\] 110 SWP 564.

01. Ehereson v. Continental Inv. Co., 130 Me. App. 296, 109 SWP 62.

01. Bennett v. Southern Scrap Material Co., 121 La. 204, 46 S 211.

01. Miller v. Sullivan, 77 Kan. 252, 94 P in safe condition the rule is otherwise. Miles v. Janvrin \[Mass.\] 86 NE 785.

01. Where lesser agreed to protect certain dangerous place against children, injury to child resulting from failure is not too remote, Marcheck v. Klute \[Mo.\] 113 SWP 654.

01. Where covenant to protect dangerous place is relied on to render lesser blade, covenant and breach thereof must be pleaded.

01. Where lesser is making ineffectual effortors to repair, leassee need not move out to prevent injury to goods. Miller v. Sullivan, 77 Kan. 252, 94 P 7 Km. 252, 94 P 266. Where lessor gave due notice of defective roeof and lessor made ineffectual attempt?s to repair, held that leassee could recover for damages to goods resulting from such defect.

01. Where lesser is making ineffectual efforts to repair, leassee need not move out to prevent injury to goods. Miller v. Sullivan, 77 Kan. 252, 94 P 266. Where lessor use of defective premisses knowing that lesser has not repaired is not contributory negligence as matter of law unless obviously dangerous. Grant v. Lemp Brew. Co., 130 Mo. App. 618, 109 SWP 1044. Negligence of leassee in putting goods into building while roof was being repaired held for jury where contractor told him that they would be protected. Eberson v. Continental Inv. Co., 130 Mo. App. 296, 109 SWP 62.

01. Evidence that plaintiff knew that porch was out of repair, unaccompanied by evidence that she knew extent of defects does not affuratively show negligence in using porch. Collins v. Fillingman, 129 Mo. App. 340, 108 SWP 616. Where rightfully upon the premises,"6 if such injury could be reasonably anticipated; "1" but in the absence of a covenant to repair,"2" he is not liable for defects arising during the term \[13\] where the duty of repairing rests upon the tenant,"4 though amounting to a nuisance,"5 unless he undertakes to make repairs 76 and does so negligently."7 A tenant is only ,required to exercise reasonable care to prevent injury by articles thrown from the window."8

(SS 5) \_F. Improvements, emblements and fixures.\_See 10 C. L. 583. The right to improvements is frequently controlled by express provision of the lease.76 The right

some law or ordinance. Donovan v. Gillies all improvements, additions and extensions

Coffee Co., 111 NYS 707.

#9. Hill v. Hayes, 193 Mass. 411, 85 NE 434.

title to improvement, etc., in lesser when

Evidence of condition of coal hole in sidewalk

made and leasee could remove before end of

held to show that it was in a dangerous concern. In re Montello Brick Works, 163 F

dition at time of letting. Id. Description of

624. Though lease provided that improve-

coal hole held admissible as bearing on its

ments should remain personality and subject

condition at time of execution of lease and

whether defect continued until time of accident. Id.

76. Where it appears that premises where

injury occurred were leased, allegation that

plaintiff was "lawfully" upon the premises

lease for improvement if term was termi-

held not objectionable as not showing that

nated before its expiration by leaseor to make

plaintiff was more than a mere license to

whom defendant owed no duty to keep in

in existing buildings as well as new struc-

safe condition. Stern v. Miller, 111 NYS 659.

71. Lessor of theater building with door

opening into space six or seven feet above

the ground held not liable to patron induced

forfeilt lessee's rights to certain buildings

to walk out of same by exit signs and flights,

sinc door in leased condition was clearly

proofs reserved. Ogden v. Garrison (Neb.)

not intended as an exit and injury was due

to leasee's negligence. McCain v. Majestic

bldg. Co., 120 La. 306, 45 S 258.

72. Promise to repair during term made

without consideration does not render ressor

liable. Morgan v. Sheppard \[Ala.\] 47 S 147.

73. Connors v. Newton \[N. J. Law 171 A 86.

01. Lesser held not liable for defects in

grating covering window admitting light to

cellar of store where duty of making re-

pairs was expressly imposed on lessee. Geld

v. Morgenroth, 58 Misc. 557. 109 NYS 880.

Fell into unguarded cellarway in sidewalk.

Donovan v. Gillies Coffee Co., 111 NYS 707.

75. Allowed leader pipe to freeze, causing

water to back up and freeze on roof, which

fell onto plaintiff. Coman v. Miles, 193 Mass.

99. SS NE 1097.

01. Evidence of conversation between witness and one to whom rent was paid in re-

gard to another falling into hole prior to accident in question and of his promise to

pair held admissible as bearing upon ques-

tion whether subsequent repairs were by de-

fendant leaseor or by third person. Hill v.

Hayes, 193 Mass. 411, 85 NE 434. Objectional does not allegate that repairs

were made during term held not raised by

demurrer that complaint does not allow any

duty owed by leaseor to plaintiff to repair,

etc., under Code 1896, $ 3303, requiring de-

murrer to distinctly state grounds of objection. Morgan v. Sheppard \[Ala.\] 47 S 147.

77. Morgan v. Sheppard \[Ala.\] 47 S 147.

01. Carl v. Young, 103 Me. 100, 68 A 593.

Complaint merely alleging injury from split-

toon thrown from leased building not aver-

ring that it was thrown by tenant or his

servants or showing any negligence is

sufficient. Id.

79. Provision that lessee should surrender

premises "In good order and condition, with

12 Curr. L. - 35.

545

rightfully upon the premises,"6 if such injury could be reasonably anticipated; "1" but in the absence of a covenant to repair,"2" he is not liable for defects arising during

the term \[13\] where the duty of repairing rests upon the tenant,"4 though amounting

to a nuisance,"5 unless he undertakes to make repairs 76 and does so negligently."7 A tenant is only ,required to exercise reasonable care to prevent injury by articles

thrown from the window."8

(SS 5) \_F. Improvements, emblements and fixures.\_See 10 C. L. 583. The right to improvements is frequently controlled by express provision of the lease.76 The right

some law or ordinance. Donovan v. Gillies all improvements, additions and extensions

offee Co., 111 NYS 707.

without any compensation," held not to vest

69. Hill v. Hayes, 193 Mass. 411, 85 NE 434.

to embplements does not exist where the term expires at a fixed time,\* but only where of indefinite and uncertain duration.\[81\] A tenant wrongfully holding over and putting in a crop is not entitled to remove the same.\[82\] A lessee may abandon his right to an unharvested crop.\[83\] In the absence of contract,\* a tenant is ordinarily entitled to trade fixtures,\* but permanent improvements made by tenant under a valid 12 Cur. Law. LANDLORD AND TENANT SS 5G. 547

lease, become part of the reality, \[96\] as do articles so annexed as not to be removable without injury to the reality. \[87\] A tenant may enter upon the premises within a reasonable time after the expiration of his term to remove personal property, \[98\] but forfeits his right of removal if he fails to exercise it within a reasonable time. \[99\]

(SS 5) _G. Options of purchase or sale._\[99\] C. L. \[99\] The option must be definite and certain, \[99\] but where a part of the leasing transaction \[9\] it need not be supported by an independent consideration. \[92\] The relation of landlord and tenant continues until the option is exercised, \[93\] but thereafter the relation is that of vendor and purchaser. \[94\] The right must be timely exercised \[95\] in the prescribed manner \[98\] and all conditions precedent \[97\] and subsequent \[98\] complied with.

mirrors, porcelain urinals, water closet seats and connections, etc., held trade fixtures removable. Excelisor Brew, Co. v. Smith, 110 \[81,280\] on Aug. 30, 1907, and gave notice of NYS 8. Permanent fixtures on surrender of a lease revert to the landlord. In re Water maturing on Oct. lst. Lee v. Cochran \[Ala.\] Frout on North River, 109 NYS 821. \[86\]. Not subject to mechanic's ilen under 95. Where lease of sawmill required leasee statute. Langlev v. D'Audigne, 41 App. D. C. 409. Alterations on building by which doors and frames were removed, openings or not, with right to hold for another year on same terms, option to purchase "at any marble platforms couturensunk into water table, not movable or trade fixtures which leasee or tenant could remove. Excelisor Brew, Co. v. Smith, 110 NYS 8. Steam heat: 69 A 149. Option purchase endorsed on ing plant not removable by tenant nor by his purchaser from truste in bankruptcy. \[99\], could not be exercised thereafter, especially Jacob v. Kellogg, 56 Misc. 611, 107 NYS 713. \[99\]. Caustic soda factory burned; lead pipes, iron, debris, etc. not removable as person-alty. Nlagara Falls Hydraulic Power & Mfg. \[100\], or, by,
(SS 5) \_H. Actions.\_See 10 C. L. 184

SS 6. \_Rent and the payment thereof, and actionable use and occupation.\_See 10 c. L. 585--The obligation to pay rent, is contractual,99 and where the lease is under seal, only a party thereto can recover thereon.1 Where the rent is payable in advance, the lessee may pay the same to his lessor though he sells the premises during the month.2 The lease controls as to time,3 amount,4 and manner * of payment and the application thereof.4 By a new agreement supported by a consideration,7 the rent may be modified.8 Where defendant agreed with the lessee to take his place and pay the rent, the landford may sue him therefor without regard to whether he is an assignee or a subtenant.9 Where a tenant abandons the premises, it is the duty of the landford to exercise reasonable diligence 10 to relet, but he is not required to make extensive repairs,11 or to join other parts of the building to the demised portion 12 to effect a reletting. In actions for rent, the usual rules as to variance,13 burden of proof,14 evidence,15 and conformity of recovery to the pleadings and proof 16 apply.

99. Plaintiff cannot recover where evl-dence does not show that he owned premises or any contractual relation. Drexler v. Co-hen, 108 NYS 679. Where deed to purchaser rent was $35 per month under prior lease. Borryman v. Gibson \[Csl. App.\] 95 F 671.

ceeding tenant was not a party conveyed subject to leases and tenant never attoned to purchaser, he cannot recover rent. Wacht v. Erskine, 113 NYS 130.

1. Where sealed lease is In name of L as lessor, though followed by word "agent," he alone can sue, it not being shown that lessee knew who true owner was at time of executing. Buge v. Newman, 113 NYS 198.

1. Leopold v. Baum, 110 NYS 1054.

1. Evidence held to show agreement for monthly rent but not in advance. Mitchell v. Henderson, 37 Mont. 515, 97 P 942. Aban-donment and offer to surrender does not enable lesson to sue for rent for rent where payable monthly. Curtis v. Hammond, 42 Colo. 277, 95 P 921.

1. Where lease reserves $4 per week rent, fact that lessor's agent authorized lessee to pay at the end of the month does not change rate from $4 per week to $16 per month.

1. Kent may be payable in labor. Price v. Thompson \[Ga. App.\] 60 SE 800.

1. Lease provided for application of rent to payment of mortgare on fee. Held that provision was for protection of lessee, and upon sale of lease held in bankruptry purchas- or cannot insist that back rents due be applied to mortgage as against lease? proven claim. In re Ketterer Mfg. Co., 162 F 583.

Lessee may show parol agreement modifying lease so as to make rents applicable to debt due from lessee to lease. American Exch. Nat. Bank v. Smith, 113 NYS 236.

7. Agreement by lessee after execution of lease and before commencement of term to put premises into such condition as to comply with tenement house requirements is consideration for reduction of rent. Hight v. Cohen, 123 App. Div. 707, 108 NYS 602.

Agreement of lesgor not to enforce lumme-diate payment of debt of lesser held sufficient

15. Rev. St. 1899, $ 4137 (Ann. St. 1906, p.

consideration for promise of lease not to 2246), requiring exhibition of deed under which title is claimed, on demand of rent by purchaser, applies to actions for possession and not to actions merely for rent. Starbuck v. Avery \[Mo. App.\] 112 SW 33. Where 12 Cur. Law. Landlord and Tennant SS 6. 549

Defenses, set-offs and reductions. See 10 C. L. 588--Payment,\[17\] rescission for fraud,\[18\] total failure of consideration,\[19\] and attornment to one entitled to immediate possession to avoid eviction,\[20\] are defenses to a suit for rent. The effect of assignment or subletting is treated in another section.\[21\] An actual eviction \[22\] or constructive eviction, followed by surrender of possession,\[23\] unless due to lessee's own default,\[24\] or a forfeiture,\[25\] relieves the tenant from future rents. The wrongful act of the land-lord does not bar him from recovering rent, unless the tenant by such act has been deprived in whole or in part of the possession, or the premises rendered useless.\[26\] The issuance of a precept in summary proceedings or a warrant of dispossession is a defense to unaccrued rents \[37\] unless waived.\[28\] Where rent is payable monthly in advance, a surrender \[23\] or forfeiture \[20\] during the month does not relieve tenant from such month's rent, but the courts are divided as to the effect of an eviction.\[31\] In the absence of statute \[22\] or express agreement,\[33\] a destruction of the building \[34\] or of the

lessee sued on rent notes counterclamined on theory that he -was entitled to recover wholly or partially evicted need not pay during designated years had he been permit.

ent for time evicted. Bergman v. Papla, ted to remain in possession, evidence that 58 Misc, 533, 109 NYS 856. Lessee has burden patch was flooded during one of the years of showing eviction. Ventura Hotel Co. v. and of actual yield during other is admisl-Pabst Brew, Co., 33 Ky. L. R. 149, 109 SWV 354. Must show eviction by preponderance of evidence. Hermitage Co. v. Roos, 110 NYS 109 SWV 852.

16. Where plaintiff, while claiming right 916.

to recover $76.17 for June rent and $47$ for July, in addition to right to retain deposit, 580. Constructive eviction is no defense to send for $500, and defendant admitted $76.17

rent suit unless property is surrendered. to be due for June and claimed deposit of Mahoney v. Broadway Brew. & Malting Co., $47$, judgment for plaintiff for $100 held not 57 Misc. 430, 108 NYS 237.

authorized by any theory. Woodard v. John-Son, 109 NYS 741. Where lesser claimed that disagree was tenant for another year by holding over a period agreeing over and lessee asserted a parol agreement permitting her to remain in possess-sion upon paying proata for time she was actually in possession, judgment for rent for one month held unsupported where she only remained in possession nine days. Goet-schius v. De Barbieri, 110 NYS 1076. In suit for reasonable rent for holding over, it is error to give judgment for amount offered by lessee for renewal where it is in excess of reasonable rental as shown by evidence and amount claimed in petition. Aull v. Bowling Green Opera House Co. (Ky.) 114 SWV 284.

17. Evidence of checks held to show payment. Leopold v. Baum, 110 NYS 1054. Evidence held sufficient to sustain finding that rent for month sued for was unpaid. Lewy v. Wolfman, 110 NYS 256.

01. Defense of fraud and recession cannot be based upon alleged false representations as to sanitary conditions where lessee remained in possession for eight months and bad odors may have been due to his neglect to repair plumbing. La Roche v. Mulhall, 112 NYS 111.

01. Breach of covenant to Improve not a condition precedent to payment of rent only.

01. Chevalent to payment of rent only.

550

LANDLORD AND TENANT SS 7.

12 Cur. Law.

beneficial enjoyment of the premises \[88\] does not relieve the tenant. Arbitrary refusal of lessor to renew the lease does not authorize lessee to abandon the premises and refuse to pay rent.\[86\]

The tenant may counterclaim damages arising from landlord's failure to give possession at the date specified,\[87\] from a breach of his covenants,\[38\] from his fraud \[89\] or deceit,\[40\] or suspension of rent where obligation to pay is absolute.\[41\]

\_General rents and perpetual leases.\_See * C. L. 884.--An action for the purchase price of ground rents held in effect a bill for specific performance of a contract for the sale of real estate.\[42\]

\_Use and occupation.\_See * 10 C. L. 887.--Use and occupation will lie only where the relation of landlord and tenant exists,\[43\] but, ordinarily, one occupying and using \[44\] the lands of another with his consent but without any express reserve rent\[45\] may be held on an implied contract.\[46\]

SS 7. \_Rental on shares.\_See * 10 C. L. 887.--A contract of rental on shares renders the landlord and lessee tenants in common \[47\] of the entire crop,\[48\] and the lessee impliedly and resched.

agus, since crop was not the thing hired. \[41\] There being no absolute obligation to Meek v. Cunha \[Cal. App.\] 96 P 107. Real pay rent on first of month, occurrence of fire Property Law, Laws 1856, p. 589, p. 547, p 197,

suspending rent does not create a partial authorizing tenant to enterder where build-defense but should be asserted as a countering is so injured as to become untenantable. Elimstein v. Tutelman, 110 NYS 1025. is inapplicable to interference with only- 42. Slotter v. Patterson, 221 Pa. 68, 70 A. ment by odra from pre-existing restaurant.\[Kent v. Ward, 111 NYS 748.

43. Starbuck v. Avery \[Mo. App.\] 112 SVV 33. Provision that if building should be 33. Complaint alleging wrongful occupation of plaintiff's land for 23 months, that defend- "the rent should cease until such time as building shall be put in complete repair,"

fendants became indebted to plaintiff, that defendable to relieve tenant for entire month's value of the use and occupation, held an accent during month when fire occurred but only for time that premises are actually untenantable. Einstein v. Tutelman, 110 NYS 1025.\[Mont.\] 98 P 641.\[M.\] 98 P 641.\[M.\] 94.\[S. Sedalia Pianing Milli & Lumber Co. v.\] 128 defendant had some fixtures in building Swift & Co., 129 Mo. App. 471, 107 SWV 1093. Though lesser has insured same for own benefit. Id.\[Ises, held not to show such use as to ren- "S. Destruction of beneficial enjoyment of premises by an inundation does not affect "Iachev. Cunha \[Cal. App.\] 96 P 107), nor entitle him to apportionment of rent (Id.).\[S.\] 98. Refusal of landlord to re-rent does not "were included in lease, evidence that lessee authorize lessee to vacate and refuse to pay "was placed in possession when lease was exact." Kerwin v. MacMaster, 108 NYS 1016.\[S.\] 97. Bailey v. Krupp, 110 NYS 994,

S8. Valentine v. Woods, 110 NYS 990. Les- "de damaged by lesen" failure to perform 46.\[K. Physiol 1905, 1986. Sessoms v. Tayloe covenant may reopen.\] 99.\[Th. v. Y. M. C. A. \[N. C.\] 62 SE 42. It no lieen exists therefore "S33 Ill. 526, 84 NE 658. Lessee may counter- "under Revival 1905, $ 1998, on crop, remedy of claim expenditures for repairs which leasev owner is against personal representative of deceased occupant. Id.\[M.\] 10.\[M.\] 117 NWV 684.\[M.\] 117. Where lesen- "M." Where leasev selfs entire crop with "S33" is one, lessee is entitled to an acc- "S33" is one, lessee "S33" is one, lessee is one, and the "S33 19 Cur. Law. LANDLORD AND TENANT SS 8. 551

covenants to operate and cultivate with due diligence.40 A reservation of title to the entire crop in the landlord does not prevent him from taking a chattel mortgage on the lessee's share,40 nor does the taking thereof waive the reservation.51 Where a mortgage of lessee's share fails to furnish money necessary to harvest the crop as agreed, the lessor may do so to protect his interest and has prior right of reimbursement,52 though the lessee actually harvests the crop.53 The contract controls as to the manner of division.54

Footnote 53: The author is grateful to the anonymous referee for the support of the work done,54

Footnote 54: The author is grateful to the anonymous referee for the support of the work done,55

Footnote 55: The author is grateful to the anonymous referee for the support of the work done,55

Footnote 56: The author is grateful to the anonymous referee for the support of the work done,55

Footnote 57: The author is grateful to the anonymous referee for the support of the work done,55

Footnote 58: The author is grateful to the anonymous referee for the support of the work done,55
terminate ipso facto on the happening of a contingency,68 if such contingency is a condition as distinguished from a limitation, a re-entry or other act of the lescor is necessary.64 By statute 68 and by agreement,68 the destruction of the buildings or impairment rendering them untenantable often gives the tenant a right to terminate the tenancy,67 unless due to his default.68 The term of a lessee under a tenant by the curtesy is terminated by the death of lessor.69 Where the lease contemplates that the premises shall be used for a particular purpose and such use becomes unlawful the lease becomes void.70 The tenant may terminate the lease where the landlord defaults in his agreement in a particular which substantially impairs the tenant's use.71 Issuing and execution of a warrant of dispossession in summary proceeding terminates the relation,72 and a reversal of the order does not reinstate the same unless the tenant so elects.78 An option of cancellation may be given,74 but all conditions precedent must be first complied with before it can be exercised.75 Where the

63. Where railroad company leased piece \[c. 547\], $ 197, authorizing lessee to surrender of land on right of way for coal bin, lease providing that lease should terminate if lescents or any other cause as to be unsee abandon same. Lessee sold business to another but nothing was said about lease, although purchaser used same. Held that not connected. Floyd-Jones v. Schaan, 113 ant at will, and provision In original lease \[c. 52, a. 109 NYS 362\].

01. Lease of store room provided that if old not apply. Fl. Worth, etc., R. Co. v. Woldridge \[Tex.\] 108 SWV 1159. Where lease for five years was for general saloon business and saloon license could be issued only for, six months, provision "should said saloon license be not secured on salo premises," etc., that it could not be repaired within 60 days, lessee might terminate lease constructed as not limited to initial license. Conservative Realty Co. v. St. Louis Brew. Ass'n \[Mo. App.\] 113 SWV 228. Lease providing that leaser should not be responsible on ocean for quiet enjoyment should possession be taken by public authority and providing that award should be paid to landlord and that tenant should receive only such an award as might be made for his interest. Held that in legal effect parties contemplated that taking untenant domain should read lease. In re Pier Olo No. 11, East River, 124 App. Div. 465, 109 NYS 2. Clause "subject only to sale of property" as used in lease providing that lessee could renew" from one to five terms \[Tenn.\] 113 SWV of two years each, subject only to a sale of said property, held to relate to word "option" and not words "from one to five terms of two years each," so that sale did not terminate lease until end of renewed term. People's Bank & Trust Co. v. Tissier Hardware Co. \[Ala.\] 48 $ 624.

01. Provision in lease that it was "to commence on the 1st day of May. 1907, and to end on the 1st day of May, 1908, at noon," is a limitation and lease terminates of itself (Low v. Thompson, 111 NYS 607, a.g. 58 Misc. 541, 109 NYS 150), and is not converted into a condition by covenant to surrender possession at end of term, and a provision that up-on default in any covenant, lease could at his option terminate lease (Low v. Thompson, 11 NYS 607). Provision that filing of any process against tenant "shall cause this lease immediately thereafter to cease and to come to an end," held not self-executing, but enforceible only at lease's election. Cohen v. Afro-American Realty Co., 68 Misc. 199, 108 NYS 988. Re-entry for tenant's breach of the lease terminates the same. Cohen v. Carpenter, 113 NYS 168.

01. Real Property Law (Laws 1896, p. 589, option to purchase under a lease has been exercised, the relation of landlord and tenant is terminated.76

\_Surrender, abandonment and eviction.\_See 10 C. L. 589.--A surrender may be effected by mutual agreement, express or implied,77 by substitution of a new lease,78 or the

minate lease upon making a bona fide sale and service of notice, but requiring him to and ocopoleal premises on their surrender pro rate reimburse tenant for improvements, held not to entitle him to possession until he v. Chamberlain \[S. D.\] 114 NWF 683.

remburned lessee. Dongliaston Reality Co. v. NOTE, Respective rights of parties when fires, 147 App. Div. 608, 108 NYS 1086.

76. Tenant is entitled to show tender of curchase price under option to purchase, as der his lease by an abandonment or surrendering on character of his possession and against landlord. Stanwood v. Kuhn, 132 22, 77 p 612, 14 L. R. A. 151; Lockwood v. Ill. App. 466.

01. Under answer in action for rent alleging that plaintiff's acts compelled defendant to abandon the premises, that they consented to the rescision and abandonment and occepted premises, and he called the 114 NWF 683.

cupied premises, held sufficient to admit evidence of notice by tenant to terminate lease and acceptance by Jessors. Stutt v. Chamberlain \[S. D.\] 114 NWF 683.

Surrender. Where trustee in bankruptcy removed lessee's property from premises and delivered key to lesser, who attempted to 1. Ed. 389; Teller v. Boyle, 132 Pa. 56, 18 A lease at higher rent and let contract for ex- tensive improvements, held acceptance of surrender, although lesser accepted keys stating that it was only for purposes of rent- ing for bankrupt. In re Schomacker Piano Forte Mg. Co., 163 Pa. 513 Pa. 513 Pa.

No surrender. Surrender of term by act and implication of law will not be implied from dissolution of partnership between tenants and rejected tender of key by unau- tuerized person. Creachen v. Achenberg \[N. V.\] 13 N. J. Lawy 70 A 160. Where lessee of space in hotel lobby took down railing separating space on vacating, fact that guests used such a space held not to authorize inference of ac- ceptance of surrender. Chittenden v. Wester- ern Union Tel. Co. \[Mich\] 15 Det. Leg. N., 688, 117 NW 548. Fact that leasef did not return key which lessee had left at his house, and inspected house when unoccupied to see if plumbing had been affected by weather, and permitted another to do so to determine its fitness for occupation, held not inconsistent.

ent with claim that he consider lease in force. Chandler v. Hinds, 186 Wise, 43, 115 NV 389.

Canod. Storelev Co. v. Bowland, 12 C. At lessee's request, leasef proacud subtenant \[F. S359, 69 L. R. A. 719. The only liability of and atore lessee's furniture in basement. Lessee's wife answered that she would release the lease if lessor would pack and store furniture in certain warehouse, which lease refused to do, and notified these that he would be held liable. Lessee had furniture moved out and left keys with janitor or in hallway. Heid not to show warrender. Oben- dorfer v. Mecham, 110 NYS 540. Acceptance by a landlord of the surrender of leasef.

remmisses is not shown by testimony that the agent of the landlord called upon the lessee for the keys, saying, "I want to take someone- body up there to show them the place," when the only testimony as to anything further in possession, temporarily, without rent must he refused to accept the premises or, 114 Ark. 251, 72 SWV 683;

and insisted on holding the lessee for the counter, 114 Ga. 602, 40 SE 702; Joshlin

feases. Becker v. Shoemaker, 7 Ohio N. P. (N. S.) 272.

Eddy's Admr, 33 Mo. 547; Buck v. Lewis, 46 1 Cairns, 107 Iowa, 727, 71 NYW 478; Brown v. Mo. App. 227; Whitman v. Lonten, 5 NYS 754; Breuckman v. Twibill, 89 Pa. 58; Texas Loan Agenev V. Fleming, 92 Tex. 488, 49 SV 1039, 44 L. R. A. 279; without necessarily thereby accepting the surrender. But if he makes extensive alterations, beyond any necessity for the preservation of the property, such acts will usually be construed as an acceptance of the surrender. Lafferty v. Hawes, 63 Minn, 15, 66 NW 87; Duffy v. Day, 42 Mo. App. 638; Meeker V. Spalsbury \[N. Y.\] 68 N. 68; M. J. Law, 69, 48 A 1026; McKellar v. Sigler, 47 How. Pr. 2. In case a landford receives the keys and retains them, this is a circumstance which 77 may tend to show an acceptance of the surrender, and with other acts may be conclusive, where the record. Ledinger V. Burke, 113 Ga. 74, 88 SE 313; Hesselline V. Seager, 16 Me, 212; Buckingham Apartment House Co. V. Daroe, 78 Minn. 268, 80 NW 974; Elliott v. Aiken, 45 N. H. 50. However, the fact that the landford or his agent retains the key when sent or delivered to him by the tenant does not alone show an acceptance of the surrender. Writhers v. Larrabee, 48 Me. 570; Biggers v. 294, 13 E. R. A. 589; Whitman v. Louren, 23 NYS Stuelet, 93 Md. 100, 43 E. 277; Scott V. Beeder, 754; Auer V. Penn, 99 Pa. 570, 44 Am. Rep. 91 M. Mich. 50, 50 N NV 98; Estestee v. Partol, 122 Mich. 50, 80 NW 989; Luev v. Wilkins, 33 350. Of course if the lesser accept the surrender, are has no claim for diminished rents 256, 28 V 1072, 48 Am. St. Rep. 671; Land v. Schneider, 31 Mont. 15, 77 P 307; Ryan v. Jones, 32 Miles, 65, 20 NYS Stulet; Laad W. Smith, 60 Or. 316; Bowen v. Clarke, 32, 56, 50 P 430, and relicts, or attempts to relict, on his own 29 Am. St. Rep. 625; Milling v. Becker, 86 Pa. 182; Newton v. Spear Landering Co., 19 R. I. 546, 37 A 11. Where a tenant moves away and sends the keys to the landford in a letter, his retention of them does not establish an acceptance of the tenant's abandonment (Thomas v. Nelson, 69 N. Y. 118), nor does the mere fact that a landrick picks up the key from his doorstep, where the tenant has thrown it, and keeps it (Diehl v. Lee \[Pa.\] 3 A 865). Where a lessee the undertakes to surrender the premises, but the lesser retuses the key, the fact that he afterwards takes the key from a place where the lessee left. If, 33 E. R. A. 279, 48 NE 622. And if a landford accepts the key, stating that he received it but not the premises, this will not be "clear", deemed an acceptance of the surrender. Townsend v. Libers, 3 E. D. Smith \[N. Y.\] 560. When a tenant abandons the demised premises, the landford is not bound to relict them to others in order to diminish his loss. Schuisler v. Ames, 16 Ala. 73, 50 Am. Dec. 168; Patterson v. Emerich, 21 Ind. App. 614, 55 N 25 NE 1012; Merrill V. Spill, 15 Nep. 162, 70 NW 914; Reich v. McCrea, 59 Hun, 625, 13 NYS St 650; Clendiming v. Lindner, 93 M. Giss, 623, 20 NYS St 643; Bowen v. Clarke, 22 Or 666, 30 P 403, 29 Am. St. Rep. 625; Racke v. Anheuser-Busch Brew. Assn., 17 Tex. Civ. App. 167, 42 SW 774;

Nevertheless, it generally conceded that a landford may attempt to relict abandoned premises (Gaines v. McAdam, 79 Ill. App. 201; Vincent v. Prielch, 50 La. Ann. 378, 25 S 873, 69 Am. St. Rep. 436; Scott v. Beeder, 91 Mich. 590, 52 NW 20; Joalin v. McLean, 99 Mich. 480, 68 NW 467; Bigles v. Voss, 16 July, 11, 9 NYS St 652; Dormace v. Boneste leasing to a third party." An unauthorized acceptance of a surrender may be ratified by the landlord." An unexecuted "1" parol agreement to surrender is within the statute of frauds." Where the premises have been sublet, the subtenant becomes the tenant of the landlord upon a surrender." One asserting a surrender has the burden of proof."

An actual eviction exists where the lessee is physically deprived of the demised premises " without right," and a constructive eviction where he is not physically expelled but his beneficial enjoyment is substantially interfered with." A total

Daly \[N. Y.\] 485; Scott v. Beecher, 91 Mlch.

$2, Parol agreement to surrender at future

590, 52 NWY 20; Rich v. Doyenn, 85 Hum, 510,

$3 NYS 341; Alsup v. Banks, 68 Miss. 664, 9 S

$8, Parol agreement to surrender at future

$5, 24 Am. St. Rep. 294, 13 L. R. A. 598."

$"The rule santtioned by the decided weight

replied that he was unable to come to terms of authority," to quote from the surrender

with the tenant they proposed and would court of Nebraska, "If indeed there can be

soid to be a diversity of opinion on the sub-

reader within Laws 1886, p. 592, c. 547, 8 207.

ject, is that the landlord may, at his election,

relet the premises upon the abandonment

$8, Marino v. Williams \[Nev.\] 98 P 1073.

thereof by the tenant, in which case the

measure of his damage will be the agreed

112 NYS 915.

rental, less the amount realized on account

$5, Jackson v. Paterno, 58 Misc. 201, 108

of such reletting; or he may permit the

NYYS 1073. Where leesor, while leeses is ab-

promises to remain vacant until the end of

sent, breaks into premises to show same to

the term, and recover his rent in accordance

prospective tenant, and thereafter places

with the terms of the tease." Merrill v. Wil-

new lock on door and keeps key, held an

11s, 51 Neb. 162, 70 NWY 914, approved in

reletion, though lease provided that leesor

Brown v. Cairns, 63 Kan. 584, 66 P 639.

Could enter to show premises. Lester v.

When a leesor tells the lessee to quit the

Griffin, 67 Misc. 628, 108 NYS 580,

promises, and the lessee does out, and the

$8. Chattel mortgage on goods on premises

lessor then takes possession himself, or acc-

to secure performance of overnants empow-

cepts rent from another, such a change of

ering lessor to take possession to foreclose

possession by mutual agreement operates as

and to sell at public auction, held not to au-

a surrender of the lease. Boyd v. George

horize leesor to take exclusive possession of

2 Neb. Unoff. 429, 89 NWY 217. If a lease author-

promises and sell at retail, and such acts

izes the leasor to re-enter and relet the pre-

consitute eviction. Hall v. Middleby, 197

iese in case they are vacated by the tenant, a

Mass. 485, 83 NE 1114. Entry to make re-

surrender by operation of law does not occur

large does not constitute eviction where au-

when the lessee vacates the premises and

the lessor re-enters and relets them. Grom-

$7, 84. Paul Trust Co., 147 Hill. 634, 85 NE

$20, 87 Am. St. Rep. 248; Jones v. Rushmore,

$7 N. J. Law, 157, 50 A 587.

The mere receipt of rent by a landlord

Held eviction: Where roof so leaked as to

from an under-lessee does not evidence his

despite lessee of beneficial enjoyment. Val-

ascent to the abandonment of the demised

entine v. Woods, 110 NYS 990. Letting of

promises by the original lessee, and is no

proof of his acceptance of such under-lessee

purposes, and failure to remove such dis-

as a tenant. Decker v. Harshorn, 60 N. J.

orderly persons. Cushman & Co. v. Thomp-

Law, 548, 83 A 678. But when a new ten-

son, 58 Misc. 538, 109 NYS 167. Where les-

and has, by agreement with the landlord,

so's superintendent listened at switchboard

been substituted and accepted in place of the

or at telephone in her room when lessee's old tenant, a surrender of the lease by opera-

wire was in use, and made insulting and

tion of law arises. Bowen v. Haskell, 53

slanderous remarks to elevator boys con-

Minn. 480, 55 NWY 629.-Adapted from 114

$1, 509. 711.

Am. St. Rep. 711.

- 556LANDLORD AND TENANT SS 8.12Cur. Law.
- 557Aeviction occurs where the tenant is deprived of the entire premises, and a partial where he is evicted from only a part thereof. 58A breach of the landlord's covenant to heat, 59 to furnish elevator service, 90 or to repair, 91 constitutes constructive eviction where the tenant's beneficial enjoyment of the premises is materially diminished. A failure to repair 92 or to furnish heat or water 93 is not an eviction where the duty so to do does not rest upon the lessor, but upon the tenant. 94An eviction may be waived, 95 and, where the tenant has been constructively evicted he must promptly abandon the premises. 96Where a tenant has been evicted, no duty rests upon him to demand restoration. 97
- with v. Hexter \[Or.\] 94 P 972. where lesser is no way responsible therefore

* and especially where no complaint has been and loosening in other rooms, held not conmadec to him. French v. Pettingham, 128 Mo.
* App. 156, 106 SWV 576. Where lessor has an authority to enter to make repairs and lessee and lessee has agreed to repair. Pollak v. Stollem
* -Altion as reasonable use and wear will permit held that entry by lesser to nail boards
* under broken windows after subtenant had
* to ensure eviction. Mahoney v. Broadway Brew, & Maltings Co., 57 Misc., 430, 108 NYS 237. Where lease requires lessor's consent to alterations, refusal to consent to unreasonable alterations does not constitute eviction, especially where not necessary for leased purposes. Whitcomb v. Brant \[N. J. Law\] 68 A 1102. Failure of leaseor to keep gas heater in bath room in repair held not as a matter of law constructive eviction of a tenant of rooms in house. Johnson v. Tucker, 136 Vins, 605, 117 N NVV 1002. Held proper to submit issue by submitting question "Was defendant evicted from leased premises" instead of substituting question whether gas heater was out of repair. Id. Where there is no Inter-ference with the possession, but merely a consent to an underfitting given pursuant to a request on the behalf of the tenant, it does not constitute eviction. Cafe Lakota v. Doyle, 140 Ill. App. 448. Unauthorized acts of other tenants and of adjoining owners, without evidence of intent of landlord, to deprive use of premises. John Anfled Co., v. Covey, 140 Ill. App. 364.
* S8. Jackson v. Paterno, 68 Misc., 201, 108 NYS 1078. Where lease of second floor of left building was deprived of entrance when business required held partial eviction. Lawrence v. Edwin A. Denham Co., 58 Misc., 543, 109 NYS 762. Where premises were partly rendered uninhabitable by stranger, refusal of leaseor to allow repairs to be made held partial eviction. Bergman v. Paterno, 58 Misc., 533, 109 NYS 856.
* S8. Furnished inadequate heat. Jackson v. Paterno, 68 Misc., 201, 108 NYS 1078. Where lease contained no express covenant to heat but contained covenant of quiet enjoyment and obligated leaseor to repair radiators and steam fittings, held for jury whether leaseor implicably agreed to heat. Graham v. Grape Capsule Co., 113 NYS 103.
* App. Held for jury whether leaseor agreed to operate elevator day and night and whether it had been stopped for repairs and unreasonable time. Boschardt v. Scott, 110 NYS 243.
* Viehman v. Boelter \[Minn.\] 116 N NVS 1023. Evidence of nonperformance of condi
* Leviction occurs where the tenant is deprived of the entire premises, and a partial where he is evicted from only a part thereof. 88A breach of the landlord's covenant to heat, 89 to furnish elevator service, 90 or to repair, 91 constitutes constructive eviction where the tenant's beneficial enjoyment of the premises is materially diminished. A failure to repair 92 or to furnish heat or water 93 is not an eviction where the duty so to do does not rest upon the lessor, but upon the tenant. 94 An eviction may be waived, 95 and, where the tenant has been constructively evicted he must promptly abandon the premises. 96Where a tenant has been evicted, no duty rests upon him to demand restoration. 97

- will v. Hexter \[Or.\] 94 P 972. where lessor is no way responsible therefore

* and loosening in other rooms, held not con
* Amedo, 156 SWV 576. Where lessor has an authority to ensure eviction where lessor did not consume eviction, 110 NYS 244.
* Altion as reasonable use and wear will permit held that entry by lesser to nail boards
* under broken windows after subtenant had
* to ensure eviction. Mahoney v. Broadway Brew, & Maltings Co., 57 Misc., 430,
  12 Cur. Law. LANDLORD AND TENANT SS 8. 557

\_Forfeitures.\_See 10 C. L. 590--While forfeitures are not favored, they will be enforced according to the terms of the lease " unless waived." Nonpayment of rent on the day due is frequently made a ground of forfeiture,1 but, where the lessor has customarily permitted the lessee to pay at a later date without objection, he cannot declare a forfeiture without giving the lessee notice that rent must be paid when due.2 A court of equity will not declare the forfeiture of a lease for default in payment of rent where the rent may be recovered by enforcing the lien,3 and where the covenant to pay goes only to part of the consideration, and a breach of the covenant can be compensated in damages, the defendant cannot rely on the covenant as a condition. precedent but must perform the covenant on his part and then rely on a suit for damages for breach by the other.4 Forfeiture will not be decreed for breach of an independent covenant of the lessee, severable from the leasing.5 A mere unlawful sale of liquors on the premises is no ground for forfeiture.6 A forfeiture cannot be asserted by a stranger to the lease.7 The lesser must act promptly upon learning of facts authorizing forfeiture 8 and must follow the procedure prescribed by the lease.9 Express provisions as to the rights of the parties upon a forfeiture will be given effect,10 but ordinarily no recovery can be had for rendering the premises uninhabitable after a forfeiture has been duly declared.11 Equity will relieve from a forfeiture brought about by mistake or fraud,12 where no adequate remedy exists at law.13

95. Where lease provides that breach of 6, Commonwealth v. Morris, 33 Ky. L. R. any condition should terminate same and 871, 113 SWV 850.

give right of re-entry, sheltering without 7. One in adverse possession. St. Vincent's lessor's consent contrary to lease, ipso facto, formants Catholic Congregation of Flymouth. terminates lease. Walther v. Anderson \[Tex\] v. Kingston Coal Co., 221 Pa. 348, 70 A $38. Civ. App.11 14 SWV 414. Lease held not to have forfeited his lease by violating cove Notice to vacate and demand of possession.See 10 C. L. 591.--While no notice is necessary to terminate a tenancy for a fixed term,\[14\] it is usually required where the term is of indefinite duration,\[16\] or a periodic tenancy,\[18\] though lessee may by terms of a lease waive all rights to notice ofessors election to declare a lease at an end.\[17\] It must be given by the lessor or by some one on his behalf,\[18\] must be of the statutory length,\[18\] must require surrender at the end of a rent paying period,\[20\] and must be served in the prescribed manner.\[21\] A notice is waived by the giving of another notice fixing a later date,\[22\] or by accepting rent for a period beyond the date of surrender.\[23\] Where the tenant claims under a lease which the landlord contends to be void, no notice is necessary.\[24\]

Renewal under express agreement.See 10 C. L. 592.--Option to renew is frequently given to the lessee,\[28\] and such privilege runs with the land.\[28\] A covenant for renewal not binding on the heirs of the parties is not void as creating a perpetuity.\[27\] A covenant authorizing a renewal under the same terms renews all the covenants when exercised\[28\] except the covenant of renewal,\[29\] which is not renewed unless such clearly appears to have been the intention of the parties.\[30\] Where the right is contingent, such contingency must have happened.\[31\] The option must be exercised in

lessee's remedy of pleading estopped in lessof's suit to recover possession is not adequate. Powers Shore Co. v. Odd Fellows Hall Co. \[Mo. App.\] 113 SW 253.

14. Agreement by tenant at will to surrender at future date does not create a new term lease. Longacre V. Longacre \[Mo. App.\] 111 SWV 855.

01. Where tenant occupied premises under agreement that he could remain for one month or until tenement house department

01. If the first author is not in the first author, it is not in the second * 12 Cur. Law. LANDLORD AND TENANT SS 8. 559

the prescribed manner,\[32\] unless waived,\[33\] which is usual by notice. Ordinarily, any notice which apprises the landlord of the tenant's intention to renew is sufficient.\[34\] Where the lease provides for an extension of the term as distinguished from a renewal, at the option of the lessee, a holding over is a sufficient election.\[35\] Where the lessee has the privilege of renewing at a rental to be fixed by appraisers, joining in the appointment of the appraisers is not an election.\[36\] Unless the lease so provides, the renewal must be as to the entire premises.\[37\] Where the lease wrongfully refuses to renew, the measure of damages is the difference in the rental value and rent reserved for the full term.\[38\]

\_Holding over without express agreement.\_See 10 C. L. 599

While the effect of holding over \[39\] is fixed by statute in some states,\[40\] at common law a tenant for a year or a shorter term on holding over could be treated as a trespasser or as a tenant for a similar term\[41\] at the election of the landlord,\[42\] unless he has been misled,\[43\] a new agreement has been made,\[44\] or unless negotiations are pending,\[45\] and the lease has

pose and not to entire property. Van Buren & New York Bill Post Co. v. Kenney & Sulman \[Nev.\] 96 P 1073.

llvan Advertising Co., 113 NYS 450. Where lessor usually gave notice of rent accururg renew, Marino v. Williams \[Nev.\] 96 P 1073.

and customarily accepted rent a few days after due without objection, he could not re-

sent domain where lessee would be entitled

fuse renewal on ground of nonpayment of

tent due at expiration of lease where no no-

v. Cusile, 110 NYS 287. But where lessee

tice was given and where lessee promptly

holds possession by holding over, such time

paid same on being notified that she had lost

should be deducted (Id.), but not time

cplied after condemation (Id.).

NYS 45.

32.

Learing of furniture in apartments

a new lease is unnecessary to blind parties,

holding over. McMahan v. Bloomer, 107 NYS 882. Evidence of bales of paper and other

lease gives lessee absolute right of renewal

bboxes and retention of keys for 14 days held

upon notice, notice of itself constitutes a re-

to show holding over. Fitzgerald v. St.

newal. Chittenden v. Western Union Tel. Co.

George, 110 NYS 911. Where lessee of roof

\[Mle.\] 15 Det. Leg. N. 688, 117 NVP 548.

Lesse providing for 60 days' notice of intent

at expiration of term, held a holding over,

tion to renew and that if lease or her hus-

notwithstanding notice of intention to

v. band "die during said 60 days before expira-

cate. United Merechants' Reality & Imp. Co. v.

tion of term" granted, etc., held to contempor

New York Ripodrome, 113 NYS 740. Holdl-

plate that 60 days' notice of intention to re-

ing over of subseman is holding over by

new should run during last 60 days of term.

Pfunm v. Spencer, 123 App. Div. 742, 108 NYS

344. Where lease provided for a further

lease at increase rental, on notice of tenant

that he desired to continue lease, and tenant

after giving notice continued in possession,

held to bind parties. Mattinge v. McGourie,

111 NYS 1083.

33.

Jolming by lesser in appoIntment of

appraisers to fix rent two days after expi-

1099: Legre 560

LANDLORD AND TENANT SS 9.18 Cur. Law.

consented to a retention of possession until the conclusion thereof.46 Holding over after the expiration of the tenancy does not vest in the tenant any new right or operate to extend his term.47 In New York a tenant whose term is to commence immediately upon the termination of an existing lease has the same rights as the landlord.48 Where a tenant is served with notice that if he holds over an increased rent will be charged and he does not dissent,49 a holding over renders him liable therefor.50 In some states a tenant holding over is liable for double damages unless he acts in good faith and under the belief that he is entitled to possession.51 Service of a demand for possession of the premises is not a condition precedent to recovery of double rent under the Illinois statute, making tenant unlawfully holding over liable for double rent,52 and an action may be maintained although the landlord has sublet the premises but is prevented from giving possession by reason of the hold-over.53 A subtenant who holds for a fixed term of one month only acquires, by holding over after the expiration of the term, no greater rights than the lessee had.54

SS 9. _Landlord's remedies for recovery of rent and advancements._ See 10 C. L. 584

Where the payment of rent is secured by a bond 55 or by a deposit,54 the rights of the parties thereunder are controlled by their agreement. Where the lessee is disposing of the crop with the intent of avoiding payment of rent,57 or to an extent that will impair the landlord's chances of recovery,58 attachment may issue in some states.

shows that he was still willing that lessee

cover value of nse of property under Civ. should accept, held error to submit to jury

Code, SS 334, and not merely treble amount of question whether negotiations were closed

rent. Buhman v. Nickels & Brown Bros. \[Cal. by failure to accept within reasonable time.

Appl. 15 P 171. An action under the landlord and tenant act (R. S. c. so, SS 2), making

Co. \[Mo. App.\] 114 SW 92. Where lease was

sent to lessee before expiration of term for

term liable for double rent, is not barred by

approval and he had not responded, held

a prior recovery upon an appeal bond in

that, if he had decided to reject same, then

negotiations were ended, but if at expiration

same premises, when the sum claimed as

of term he intended to consider it further,

then they were not. Id.

46. Leggett v. Louisiana Purchase Exposition

Co. \[Mo. App.\] 114 SW 92.

47. George J. Cooke Co. v. Fitzgerald, 131

01. App. 133.

01. Where by terms of lease landlord was

to make alterations before giving possession

\[9th. Ed.\] 3573), SS 198, providing that

grantee of leasel property, or of reversion

thereof, or of any rent, etc., has same reme-

dies as grantor, lessee whose term commen-

does immediately upon expiration of a current term may elect to hold such prior tenant

cat for new term upon his holding over.

United Merchantary's Reality & Imp. Co. v. Roth

\[N. Y.\] 86 NE 544.

49. Testimony of witness that lessee did

not say anything evincing dissent when noti-

fied that he would be charged additional rent

if he held over held to sustain finding of

assert though witness could not tell what he did say. Williams v. Foss-Armstrong

Hadware Co., 135 Wis. 280, 115 NW 803.

50. Williams v. Foss-Armstrong Hardware

Co., 135 Wis. 280, 115 NW 803.

51. Tennant is not liable for double damages

under St. 1903, SS 2293, for holding over where

he in good faith claimed possession under re-

newal lease of debatable validity. Aull v.

Bowling Green Opera House Co. \[Key.\] 114

SWV 284. Where term had been terminated

by sale of property and notice as provided

in lease, and lessee held possession on un-

tennatable ground that there was pending a

perfected appeal from order of sale, plain-

tiff in unlawful detanler is entitled to re-

- 12 Cur. Law. LANDLORD AND TENANT SS 9. 561

Parties and procedure generally.See 10 C. L. 504--The general rules of pleading apply.50 In suit for rent lessee may set off the damages or additional expenditures incurred by him through failure of lessor to fulfill covenants of lease.60 Rent is a necessary within a statute authorizing equitable process after judgment for neces-saries.61

\_Distress.See 10 C. L. 504--Distress proceedings are usually started by affilavit 42 and directed against the person of the lessee,93 though they are in fact against the movable property upon the premises without regard to ownership.54 One serving a distress warrant cannot break into the house to make a levy.65 The failure of the officers to give notice of the distress as required by the Mississippi statute is a ground for quashing the writ.66 A counter affidavit is equivalent to an admission of ownership.67 In the absence of notice an unrecorded lease of furniture is void as against a seizure under a distress warrant.68 Distress warrants are amendable under the same rules as pleadings,69 and, likewise, the general rules of pleading 76 and evidence 71 apply. Where goods are retaken by replevin, recovery can be had on the replavin bond only when the rent action has terminated in favor of the lessor,72 in which case judgment may be rendered for full amount where it is admitted that value of goods exceeds rent due.73 Injunction will issue to enjoin an unlawful distraint only when there is no other adequate remedy.74

_Liens and securities for the payment of rent and advancements.See 10 C. L. 505--_

By agreement,75 and by statute in some states, the landlord has a lien upon the crops and the property of the lessee on the premises.76 In some states the lien's are ex 563

LANDLORD AND TENANT SS 9.
12 Cur. Law. tended to farm implements.\[77\] In such cases the use to which articles are put determines the right to a lien \[78\] for the rent due.\[79\] The statutory lien, however, extends only to so much as is necessary to secure him for the rent due \[80\] and is lost by a sale with his consent,\[91\] as the lien cannot attach to the proceeds,\[82\] although by agreement an equitable lien may attach.\[83\] The lien may be waived.\[84\] Where the lease reserves a lien on the crop with a power of sale,\[85\] the lessor has the sole title to the crop until the lien is satisfied.\[86\] While the lien cannot be extended beyond the terms of the statute by stipulation, contingent amounts stipulated to be added as a part of the rent may, if so treated, where in fact a part of the consideration.\[87\] While a purchase-price mortgage given at the time of purchase is superior to the land Lord's lien,\[88\] the lien coupled with a power of sale is superior to a purchase without notice,\[89\] and in Pennsylvania is superior to an execution levy for one year's rent.\[90\] In Texas, one receiving crops upon which lessor has a lien and appropriating the same to his own use within thirty days after removal from the premises \[91\] is liable in conversion;\[92\] but in the absence of statute a landlord, having no right of possession in the tenant's crops in the absence of the levy of a distress warrant, has no right of action against a purchaser thereof in the absence of fraud or a promise of the purchaser to pay the rent out of the crops.\[93\] Where the landlord accepts a surrender of the premises, one holding a junior lien is entitled to have the value of the use off-set.\[94\] Where a payment of rent due is made by permission of a court of equity to release the landlord's lien, the tenant is entitled to possession as a matter of right.\[85\] While the landlord has no lien for supplies or advancements \[95\] to assist in pro-subject to lessor's privilege. Luderbach 85. Lease providing that lessor should re-Plumbing Co. v. Its Creditors, 121 La. 371, ceive one-half of all producers as soon as sold 46 S 359. Where leaseor wrongfully claims until rent was paid held to reserve to lessor and take possession of personality, he is power of sale. Larraway v. Tillotson \[Vt.\] guilty of conversion. Plazzek v. Harman 70 A 1063. \[Kan.\] 98 P 771. \[Kan.\] 98 P 771. \[Kan.\] 98 P 771. \[Kan.\] 98 P 771. \[Kan.\] 98 P 771. \[Kan.\] 98 P 771. \[Kan.\] 99 K 120 La. 791, 45 S 87. Von Berg v. Goodman, 85 Ark. 605, 109 107. \[Kan.\] 98 P 771. \[Kan.\] 98 P 771. \[Kan.\] 98 P 771. \[Kan.\] 98 P 772. \[Kan.\] 98 P 773. \[Kan.\] 98 P 774. \[Kan.

- 12Cur. Law. Landlord and TENANT SS 10. 563

ducing the crop 97 furnished by another, although he assumes liability therefor without the lessee's contract or is a surety: therefor," he has a lien where, with the lessee's consent, the goods are furnished primarily upon his credit." A landlord claiming a lien for advancements must show that they were in fact made.1

$ 10. \_Landlord's remedies for recovery of premises.\_See 10 C. L. 697.\_The lessor, upon the breach of the lease by the tenant giving him a right of re-entry,2 may make a peaceable re-entry without process of law.\* A provision giving the landlord summary powers of re-entry is valid.4 Equity will not enjoin a dispossession proceedings where an adequate remedy at law exists.5 Sickness is no defense to dispossession proceedings.\*

\_Summary proceedings.\_See 10 C. L. 897.\_To authorize summary proceedings,' a statutory ground must exist * and, where predicated upon a holding over, the conventional relation of landlord and tenant must exist.\* The statutory demand 10 or notice 11 must be given by the landlord or his authorized agent.12 The necessary par-

vancements on crop of 1905, agreed to per-

pmi lessee to use same to produce crop of

htm but a summary relief. Gifford v. Bing-1906, and the debt to be considered a part

ham (Ind. App.) 84 NE 1099.

of agreed advancements, held advancement

$. Under Code Civ. Proc. $ 2251, providing

within Code, 11754. Windsor Bargain House

various grounds on which summary pro-

v. Yostao (N. C.) $2 SE 805.

ceedings may be maintained, held that action

7. Where advancements are appropriate

does not lie for breach of covenant to re-

and necessary to production of crop, they

parr to comply with order of health de-

will be presumed to create lien, but where

$. Smoothill v. DI Ericco, 110 NYX

not in themselves so appropriate and necces-

1044. Term "rent" as used in Code Civ. Proc.

sary, it must affirmatively appear that they

$ 2281, does not include costs of reptra

were made in aid of crop. Windsor Bargain

which tenant agrees to make, though lease

House v. Watson (N. C.) $2 SE 805.

provides that cost thereof may be "added"

**98. Lesser who is merely surety for the**

to the rent. Id.

debit incurred for supplies has no lien as

against other creditors. Ranger Mercantile

so during that defendant entered into posses-

Co. v. Terrort \[Tex. Civ. App.\] 20 Tex. Ct.

so under contract of purchase which stipu-

Rep. 471, 106 SW 1145.

99. Henderson v. Hughes \[Ga. App.\] 60 SE

held insufficent to show relation of landlord

813. Evidence held to sustain finding that

and tenant (Lewis v. Cooley \[S. C.\] $2 SE 805), but where on default he surrendered

lessor and not upon mere suretyably. Id.

Whence landlord's credit was baas of loan,

ceased to pay rent, etc., held to show such

fact that lessee signed note as principal
relation (Id.). Where lessee dealt with les-

maker and that agent of lesser proclaiming

sor as a partnership and, after change in

same signed in own name as surretly instead

members, continued to pay rent to part-

of his principals is immaterial. Stubbs &

renship as reconstructed, they could not de-

Co. v. Waddell \[Ga. App.\] 61 SE 146. In such

fend on ground that partnership did not ex-

case note and testimony of lender and agent

ist. Wimbrecht v. Biush, 43 Colo. 32$, 95 P

are competent and relevant. Id.

$. Sessoms v. Tayole \[N. C.\] $2 SE 424.

$. Where tenant from month to month

in default in rent for 15 days, landford has

lindrade right of re-entry, under Gen.

$ 2231, subd. 2, no defense that precise sum

Laws 1896, e. 269, $ 7. Rinfret v. Morrisley

\[R. L\] $9 A. T63.

$. Cohen v. Carpenter, 113 NYX 168. Where

landlord accepted lessee's principals as tenants, held sufficent re-entry. Rinfret v. Morrisley \[R. L.\] $9 A T63. Where landlord

unpublished for breach of lease and subtenant

pay rent to him, held that possession of

subtenant was his possession. Cohen v. Carpenter, 113 NYX 168.

4. Sherman House Hotel Co. v. Cirkle, 136

$. Equity will not enjoin action to dispossession

ses for nonpayment of rent on ground that

condition precedent to payment had not been

performed, White v. Y. M. C. A., 233 IL 526,

$4 NE 688.

$. Sickness held no defense to summary

proceedings for possession. Gifford v. Bing-

ham \[ ties plaintiff 19 and defendant,14 and the right of intervention,15 are largely statutory. Under the New York statute, the petition must describe the petitioner's interest.16 An allegation as to the amount of the rent reserved cannot be denied on information and belief.17 The general power of a court to amend its pleadings applies to summary proceedings.18 While the question of title is not ordinarily involved,19 the statute usually prescribes the defenses that may be interposed 20 and the right to set up counterclaims.21 Unless controlled by statute the general rules of practice apply in matters of continuances,22 opening of default,23 granting of discontinuances.24 admission of evidence,28 and trial procedure.29 Under the New York statute, the

10ord's agent. Benton v. Stokes \[Md.\] 71 A show parol agreement with lessor, modify-532. Agent with authority to lease has authority to payment of debt ofessors. American cites that certain persons are lessor's agents and tenant occupies for term under same, he is estoped to deny agency. Id. Where, in petition for possession, lessor alleges than notice has been given, he thereby ratifies act of agent in giving same, Id.

13. Lessee witn term commencing at end of existing term cannot maintain action, under Code Civ. Proc. $ 223$. Cullman V. Goldstein, 113 NYS 21.

01. Failure to make subtemants parties is not an objection available to tenants, under Code Civ. Proc. $ 223$, requiring petition to name the person against whom proceeding is instituted. Attemury v. Edwa, 113 NYS 614.

01. Under Code Civ. Proc. $ 2244, landlof, who has re-entered, may answer in summary proceedings by tenant against subtemant. Cohen v. Carpenter, 113 NYS 168. Under Code Civ. Proc. $ 2244, any person "claiming possession" may intervene in summary proceedings. Levy v. Winkler, 110 NYS 997. Though assignee of lease subject for full term, held to have sufficient interest to intervene. Id.

01. Description of Interest, as that of "landlord," held insufficent under Code Civ. Proc. $ 223$, requiring petition to state petitioner's Interest. Cappel v. London, 113 NYS 22. Petition alleging relation of landlord and tenant held sufficient. Slater v. Waterson & Law Amusement Co., 58 Misc. 515, 109 NYS 50. Petition made by secretary of corpora- tion showing that plaintiff corporation had a lease on premises and had subleased to defendant is sufficient. Park Landundy Co. v. Sassone, 108 NYS 725.

01. Allegation that on March 1st, 1908, there was due, under written lease, sum of $2,000 for certain month's rent cannot be denied on information and belief, Browning v. Moses, 111 NYS 651.

01. Comp. Laws, $ 10,268, giving court power to amend in form or substance in furtherance of justice, applies to summary proceeding under $ 11,165 (Gensier v. Nichol-as, 151 Mich. 529, 15 Det. Leg. N. 13, 115 NWV 458), and complaint may be amended by correcting description so as to make it applicable (Id.).

01. Questions involved in summary proceeding is whether conventional relation of landlord and tenant exists and who is entitled to possession, and does not involve title. Drake v. Cunningham, 111 NYS 190.

01. Under Code Civ. Proc. $ 2244, authorizing equitable defenses, lessee may pleat right to renewal on proceeding for holding over. Montal v. Moore, 113 NYS 43. Lessee may be referred to for the terms of the lease, in 18 Cur. Law. Landlord and TENANT SS 10. 565

final order closes the proceedings \[27\] and should not be granted in favor of the lessee for mere insufficient notice of lessor to terminate the tenancy.\[28\] The rights of an assignee not in possession are terminated by summary proceedings against the assignor.\[29\] In New York, equity may enjoin summary proceedings where it would, under like circumstances, enjoin an action of ejectment.\[30\] On denial of motion to open default, appeal must be taken from the order denying the motion and not from the order of eviction.\[31\]

\_Forcible entry and unlawful detainer.\_See 10 C. L. 588.--All general matters of forcible entry and unlawful detainer are treated in a separate topic,\[32\] and only those peculiar to the relation of landlord and tenant are considered here. Unlawful detainer is the proper remedy in many states to recover possession of a tenant \[33\] holding over after the expiration of his term \[34\] or a forfeiture thereof,\[35\] and is available to one succeeding to the lessor's interest.\[26\] Forcible entry and detainer will not lie to recover possession of premises leased with option to purchase, where the opinion has been exercised.\[37\] It is available though the tenant's possession is partial \[38\] or constructive.\[39\] Unless the lease is of a definite duration, two notices are usually necas-sary, one to terminate the tenancy \[40\] and the other thereafter demanding possession.\[41\] Three days' notice to pay is necessary, under the California statute, before unlawful

cluding the time when lessor could termi-

mate. Eagle Tube Co. v. Holsten, 110 NYS 108.

142.

remedy to recover possession of tenant hold-

26. Summary proceedings held a "cause"

ring over. Showalter v. Rylets \[OkL\] 97 P 569.

within Municipal Court Act (Laws 1902, p. 35. Rev. St. 1895, art. 2519, making one, 1494, C. 580), providing that "causes set down

holding over "after the termination of the for trial must be tried when reached unless

time for which such lands were let to him," legal grounds exist for an adjournment."

gulty of forcible entry and detainer, applies

Mather v. Edwards, 110 NYS 1083.

holding over after forcited term under

27. Under Code Civ. Proc. $ 248, no judg-

ment is necessary. Stetwerwald v. Jackson,

114 SW 41.

132 APD. DIV. 569, 108 NYS 41.

28. Where it devoves that lessee is entitled

to 30 days' notice instead of 5 days', lessee

chase, fact that there was an agreement to

is entitled merely to a dismissal and not to

a. final order. Franck v. Smolens, 113 NYS 464.

29. Mahoney v. Hoffman, 58 Mlsc. 211, 109

NYS 13. Assignment in violation of terms

held not to confer any rights where possession wys not taken until after term was

terminated by warrant in summary proceedings

the defendant be in possession of only a part

was disturbed, though not a party to the proceedings, secured a favorable order in

forcible entry and detainer does not

strengthen right where he came into possession independently (Id.).

30. Code Civ. Proc. $ 2265. Montant v. 133.

Moore, 115 NYS 43. Proceeding to dispossess

will be enjoined pending suit by lessee to

specifically perform covenant to renew. Id.

31. On denial of motion of subtenant to

open default order of eviction in proceedings

against tenant and "John Doe, alleged as-

signee" of lease, appeal must be taken from

order denying motion and not from order of

ejection. Park Laundry Co. v. Sassone, 108 NYS 125.

32. See Forcible Entry and Unlawful Detainer; 11 C. L. 1484.

01. To sustain an action for unlawful detainer, proof of express tenancy, or fact

showing by implication occupation as tenant, must be made. Richmond v. California Super-

Ct. \[Cal, App.\] 98 P 57. Evidence held to make question for jury whether premises were leased to husband or to wife. Doyle v.

Franak \[Neb.\] 118 NW 468.

34. Under laws of Arkansas In force In

nadian Territory, unlawful detainer is proper

242.

remedy to recover possession of tenant hold-

ing over. Showalter v. Rylets \[OkL\] 97 P 569.

35. Rev. St. 1895, art. 2519, making one,

1494, C. 580), providing that "causes set down

holding over "after the termination of the

for trial must be tried when reached unless

time for which such lands were let to him," legal grounds exist for an adjournment."

gulty of forcible entry and detainer, applies

Mather v. Edwards, 110 NYS 1083.

holding over after forcited term under

27. Under Code Civ. Proc. $ 2248, no judg-

ment is necessary. Stetwerwald v. Jackson,

114 SW 41

LARCENY.

**SS 1. Common-Law Larceny, 507.**

**SS 2. Statutory Larceny, Theft, etc., 549.**

**SS 3. Indictment and Prosecution, 576.**

**A. Indictment, 670.**

**B. Admissibility of Evidence, 571.**

**LARCENY.**

**SS 1. Common-Law Larceny.**\[28e\] **10 C. L.**\[600\]**Larceny " is the taking and carrying away,**\[58\] **from the actual or constructive**\[59\] **possession of the owner,**\[60\] **of the personal property**\[61\] **of another**\[62\] **by trespass**\[63\] **or fraud,**\[64\] **without his consent,**\[65\] \*\*and with fe-

of lease partly performed was made in presence of one witness, such witness must witness establishment of relation, and, where\*\* **proaeu**d\*\* **traver** **of defendant and defendant oral contract made in his presence created relation only if certain things transpired in future, it is insufficient to support** **convention. Polk v. Thomason, 180 Ga. 642, 61**

**SS 122.**

**SS 123.**

**SS 124.**

**SS 125.**

**SS 126.**

**SS 127.**

**SS 128.**
lonious intent(r) entertained at the time of the taking,(r) to deprive the owner thereof and to convert the same to the use of the taker.(r) While the property taken must have some value, it need not necessarily have money value, and hence property may be the subject of larceny although not the subject of a lawful sale.(r) Special ownership is sufficient to support the charge,(r) even as against the general owner,(r) but a special owner having relinquished possession to the agent of a general owner retains no ownership which will support a charge of larceny against such agent.(r) While as a general rule the taking must be personal, where larceny is committed through an innocent agent the principal, although not actually present, is none the less guilty thereof.(r) The offense is complete with the taking and failure to act trusted with goods for a particular purpose, the person who by fraud obtains possession through could not be legally sold. People thereof is guilty of larceny, but otherwise if the servant has general authority to conduct business and part with the property. Queen v. Prince, L. R. I, C. C. 150. Thus, one obtaining goods fraudulently from a pawnbroker's clerk is not guilty of larceny (Rex v. Jackson, 1 Moody, C. C. 119), while one who fraudulently obtains property from a servant or bailee who who is merely charged with the custody or delivery of the property is guilty (Shipply v. People, 86 N. Y. 375, 40 Am. Rep. 551; Queen v. Stewart, 1 Cox, C. C. 174; Rex v. Small, 8 Car, & P. 46; Reg. v. Rob- v. Webb, 5 Cox, C. C. 164; Reg. v. Rob- ins, Dears, C. C. 418; Reg. v. Little, 10 Cox, C. C. 559; Aldrich v. People, 224 11. 622, 79 NE 964, 11 Am. St. Rep. 166, 7 L. R. A. \[N. S.\] 1149. Where there is no fraud, and the taker honestly believed that the owner's agent has authority to part with the property, the felonious intent essential to larceny is wanting (Fotkenhauer v. State, 112 VWs. 491, 88 NW 294; Heiskev v. State, 18 Tex. App. 275), but where the taker had reason to know that there was lack of authority, he cannot defend on the ground of agent's consent (State v. McCarthy, 17 Minn. 76 (Gill. 54); Oakley v. State, 40 Am. 372). --Adapted from 7 L. R. A. (N. S.) 1148. --60. Felonious intent essential. Crouch v. State, 52 Tex. Cr. App. 460, 107 SWV 859; Jones v. State, 85 Kr. 360, 108 SWV 233. Where one takes property under mistaken but honest belief in his own right, there is no larceny, although he knew of the adverse claims of another. State v. Bailey, 63 W. Va. 668, 60 SE 785. --67. If original taking is innocent, no subsequent intent can render the offense larceny. Warren v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 394, 106 SWV 383; Worthington v. State, 53 Tex. Cr. App. 178, 109 SWV 187. If finder really believed owner could not be found, no subsequent appropriation of the property, either before or after learning who was true owner, can constitute theft. Worthington v. State, 53 Tex. Cr. App. 178, 109 SWV 187. If accused believed at the time he took cattle at the request of another that such other had authority to take the same, there was no larceny although accused later learned that the cattle were being stolen. Warren v. State \[Tex. Cr. App.\] 20 Tex. Ct. Rep. 394, 106 SWV 382. --68. Intent to appropriate to taker's use is essential. Alford v. State, 52 Tex. Cr. App. 621, 108 SWV 364. --69. Whiskey 'In prohibition territory. Mance v. State \[Ga. App.\] 62 SE 1055. Trees 12 Cur. Law. LARCENY SS 2. 569

promptly for recovery is not material." After the stolen property has been found in possession of the defendant it is too late to create a defense by "voluntary" return to the owner." Larceny is distinguished from embezzlement by the presence of a wrong or trespass in the original taking." and from robbery by the absence of violence or putting in fear in the original trespass."

SS 2. \_Statutory larceny, theft, etc.\_See 10 C. L. 601.--This section includes only statutory variations of common-law larceny, and excludes statutory offenses which, although denominated larceny, are more logically embraced within the generally accepted definition of some other offense."

Statutes frequently make special provisions relative to larceny of particular property" or larceny from a particular place" or in a particular manner." Such statutes do not as a rule create a new offense but merely recognize a higher degree which necessarily includes the common-law offense." Many statutes specify as subjects of larceny property which was not so considered at common law," notably, written instruments." The fact that an act violates a specific statute renders it none the less larceny if it also violates the laws denouncing that offense generally." In some states the alteration of a brand or mark on an animal is an assertion of possession which may constitute larceny."

74. Commonwealth v. Levinson, 34 Pa. 79. Horses and cattle. Rev. Pen. Code, Super. Ct. 286. 865, 607, 608, amended Laws 1903, p. 175, c.

01. No error in failing to charge on voluntary return. Moxie v. State \[Tex. Cr. App.\] Under Laws 1903, c. 218, p. 372, f, denouncing.

114 SVW 375. Branding an animal is assertion of possession, and the fact that after branding animal was turned loose on range and recovered by owner does not constitute voluntary return. Thorne v. State, 52 Tex. Cr., App. 309, 107 SVW 831,

76. Conspiracy whereby one was elected secretary of labor union, secured its funds and submitted to mock robbery, held embezzlement rather than robbery or larceny. State v. Cothern \[Iowa\] 115 NYW 880. At common law an employer who misappropriated goods of his master which are in his custody for a specific purpose is guilty of larceny; there is trespass in the taking for other than the specific purpose. Possession remains in the master (Minnor v. State \[Fla.\] 46 S 297), though some embezzlement statutes are broad enough to include the above case (Id.). Possession as distinguished from custody discussed (Id.), but where empley who has access to but no possession or custody of goods of his master appropriateness same to his own use, there is larceny and not embezzlement (Id.). President of mercantile company was in actual and present possession and personal custody was in certain employee. Misappropriation by general manager held larceny. Id.

01. Robbery includes larceny and larceny from person. State v. Taylor \[Iowa\] 118 NW 747. If jury have reasonable doubt of the element of force and fear, there can be no verdict greater than larceny from the person. Id. Distinction between larceny from the person and robbery lies in the force or intimidation used, if the article is attached to the person so that there is persistence, however slight, or if there is any active resistance to the taking, the act is robbery and not larceny. People v. Campbell, 234 Ill. 391, 54 NE 1035. 78. See Embezzlement, 11 C. L. 1192; False Pretenses and Cheats, 11 C. L. 1460; Robbery, 10 C. L. 1531.

## 3. Indictment and prosecution

A. IndictmentSee 10 C. L. 802 --An indictment is none the less one for larceny alone because matter averred by way of inducement may constitute another offense.\[11\] The indictment must charge the essential elements of the offense,\[12\] including felonious intent,\[13\] value,\[14\] and ownership,\[15\] if known to the grand jury,\[16\] and must describe the property,\[17\] with reasonable certainty.\[18\] One who commits larceny through an innocent agent is propcrly charged as a principal,\[19\] as in an accessory before the fact under statutes abolishing the distinction.\[19\] Where articles belonging to different owners are stolen at the same time and place, the offense is single and should be so charged,\[11\] but the fact that they were so stolen must be charged.\[11\] Where the larceny of several lots is charged in a single count, it is proper to allege gross value without specifying items,\[19\] but such an allegation is not repugnant to further allegations of detailed values amounting to a different total, since the latter allegations control.\[1\] Though an allegation of gross value only, as to articles of unequal value, will fail in the absence of proof of larceny of all the property alleged, the rule is otherwise in the

## 4.3 87. Indictment held to charge larceny and

Fault \[S. D.\] 116 NWV 72. "One man's saddle" not cheating. State v. Dowden, 137 Iowa, 573, 115 NWV 211. "One gold coin then and there being on

Bliar, 63 W. Va. 635, 60 SE 765. "Moncy

Buss" sufficient without specifying size, the person of A. did steal." sufficiently al-

feen the person is felony. Bush v. State, 53

Fault \[S. D.\] 116 NWV 72. "Under Pen. Code,

art. 879, denouncing theft by "eprutely" stealling from the person, and art. 880, defin-

ing, property of B, held to sufficiently charge

ing the offense, an indictment charging taking without owner's consent, and so suddenly

\[fldab\] 95 P 94. Need not describe stolen

as not to allow time for resistence, sufficient

ly described the offense, it not being necessary

if not being necessary.

sary to allege "privately." Bush v. State, 53

Fault \[S. D.\] 116 NWV 72. "One man's saddle" not cheating. State v. Dowden, 137 Iowa, 573, 115 NWV 211. "One good coin then and there being on

bipar" sufficient without specifying size, weight, color, and value, where any theft

leges larceny from the person is felony. Bush v. State, 53

Fault \[S. D.\] 116 NWV 72. "Under Pen. Code,

art. 879, denouncing theft by "eprutely" stealling from the person, and art. 880, defin-

ing, property of A, and black glil-

ing, property of B, held to sufficiently charge

ing the offense, an indictment charging taking without owner's consent, and so suddenly

\[fldab\] 95 P 94. Need not describe stolen

as not to allow time for resistence, sufficient

ly described the offense, it not being necessary

if not being necessary.

sary to allege "privately." Bush v. State, 53

Fault \[S. D.\] 116 NWV 72. "One man's saddle" not cheating. State v. Dowden, 137 Iowa, 573, 115 NWV 211. "One good coin then and there being on

bipar" sufficient without specifying size, weight, color, and value, where any theft

feen the person is felony. Bush v. State, 53

- 12 Cur. Law. LARCENY SS 3B.
- 13 case of a commodity, there being nothing to show that it is not of uniform value.\* Sex is not generally a material allegation in indietments for lareeny of horses or cattle.\* Corporate existence of the owner need not be alleged except where necessary to show that defendant had not been stealing his own property.\* That the indictment incidentally charges another offense is immaterial.\* Where it is doubtful whether the offense is lareeny or embezzlement, the indictment may contain both counts and, in Nebraska, the state is not required to elect.\* Where any one of several elements will make an offense grand lareeny, and two of them are alleged, one may be rejected as surplusage.\* 14 (SS 3) \_B. Admissibility of evidence.\_See 10 C. L. 603.--The general rules as to circumstantial\* and corroborative evidence,\* res gestae,\* admissions,\* and declarations,\* are applicable. Evidence of independent crimes is not generally admissible but evidence of a series of events leading up to and making possible the commission of the act charged are admissible, though involving an independent crime,\* and relevant testimony is not inadmissible merely because it tends to show the commission of another crime.\* Where lareeny by means of a pretended arrest is charged, it is competent to show the nonexistence of the alleged cause of arrest.\* A check identified as given to the person selling stolen property is admissible as to the date of sale.\* The state may always trace the stolen property by direct\* or circumstantial.\* 15 2. Pieces of brass. Smith v. State, 63 Tex. 11 time and of other facts and circumstances. 16 not charged is admissible where limited to 16.4 S. Burch v. State \[Ga. App.\] 61 SE 603. 114 S.

tial evidence,18 unless such evidence would inflame or prejudice the jury.19 On indictment for larceny of a branded steer, the hide and diagram of the owner's brand are admissible,20 but evidence of third persons that they sometimes make mistakes in identifying their own cattle is irrelevant.21 The defendant should be permitted to introduce any proper evidence tending to establish a valid defense.22 The introduction of incompetent evidence, if immaterial, is harmless.23

(SS 3) \_C. Effect of possession of stolen property.\_See 10 C. L. 605--It is held that the personal and exclusive possession24 of recently25 stolen goods raises a presumption of guilt26 which, in the absence of a satisfactory explanation,27 may support a conviction for larceny,28 but the decisions are not in harmony upon this point, and some courts maintain that this presumption alone will not warrant a conviction, though it may do so in connection with other evidence29 or that it merely raises an inference of guilt,20 which may be considered by the jury on the same footing as the other evidence in the case,31 and in connection therewith.22 The presumption, such as it is, is of fact rather than of law33 and may be overthrown by other evidence.34 The identity of the goods found in possession of the accused with the stolen goods is a question of fact,35 but the evidence must justify the findings.24

18. Lynne v. State, 53 Tex. Cr. App. 875, 111 SVW 729. No error to admit evidence of corresponding money hidden in room of conderence. Hooton v. State, 53 Tex. Cr. App. 6, 108 SWF 651. 19. Hooton v. State, 53 Tex. Cr. App. 6, 108 SWF 651. 26. 21. People v. Hutchings \[Cal, App.\] 97 P 325. 22. Evidence tending to show innocent possession. Mason v. State \[Ind.\] 85 NE 776. Evidence that defendant was authorized agent of owner. Guthrie v. State \[Miss.\] 47 S 639. Evidence tending to rebut elongious intent in the taking and that subsequent suspicious conduct was by advice of parent. Wyorthington v. State, 53 Tex. Cr. App. 178, 109 SWF 187. 23. Though leases of oyster beds are authorized by Laws 1868, c. 734, p. 1652, the existence of such a lease is not material to larceny of oysters; hence parol evidence of the lease is harmless. People v. Morrison, 124 App. Div. 10, 108 NYS 262. 24. Must be complete and exclusive. State v. Johnson \[Kan.\] 98 P 216. Must be personal, involving a distinct and conscious assertion of possession. People v. Horton \[Cal, App.\] 93 P 832. Must be personal but not necessarily exclusive. The rule is satisfied if it is exclusive as to persons not parties criminis. As to the latter class possession of one is possession of each and all. Id. Possession held to be personal. Id. 25. Must be recent. Bryant v. State \[Ga. App.\] 62 SE 540. Instruction on possession must include element of recency. Manc v. State \[Ga, App.\] 62 SE 1053. Instruction that, if jury finds defendant had possession recently after Dec. 18, it may presume, etc., held erroneous as excluding from the condideration of the jury the interval between the date mentioned and Oct. 18th, the date of the alleged offense. State v. Plant, 20 Mc, 307, 107 SWF 1076. 26. Mills v. Erte R, Co., 113 NYS 641. 27. Explanation before trial held insufficient to render prosecuting witness liable for malicious prosecution in maintaining the charge. Mills v. Erte R. Co., 113 NYS 641. 28. Jones v. State, 85 Ark. 860, 108 SWF 223; McDonald v. State \[FIa.\] 47 S 485; Mason v. State \[Ind.\] 85 NE 776. 20. State v. Peck, 14 Idaho, 712, 95 P 515; Mason v. State \[Ind.\] 85 NE 776. 30. Mason v. State \[Ind.\] 85 NE 776. 31. McDonald v. State \[FIa.\] 47 S 485; Slater v. U. S. \[Okl. Cr. App.\] 98 P 110. Incorrect to instruct that possession raises a presumption of guilt. Slater v. U. S. \[Okl. Cr. App.\] 98 P 110. Correct to instruct that unexplained possession of recently stolen property is a circumstance to be considered by the jury. Territory v. Caldwell \[N. M.\] 98 P 167. Presumption from possession is not conclusive but is merely a circumstance from which guilt may be inferred. Not sufficient to authorize conviction when not shown to be recent and when property had passed from hand to hand, prior hoiders since larceny not given good excuse for their possession, Bryant v. State \[Ga. App.\] 62 SE 540. 32. Defendant's denial of knowledge of the stolen property, his presence near the scene of the theft at about the time of its commission, and the other surrounding circumstances, were properly considered by the court in determining the effect of his possession of the property. Mason v. State \[Ind.\] 85 NE 776. 33. Instruction on presumption arising from possession held to be on weight of evidence and erroneous. Slater v. U. S. \[Okl. Cr. App.\] 98 P 110. 34. Evidence held 12 Cur. Law. LARCENY SS 3D.

A reasonable explanation imposes the burden of rebuttal upon the state,37 but failure to rebut does not render the explanation conclusive of innocence.38

(SS 3) \_D. Sufficiency of evidence.\_See 10 C. L. 405--The state must prove beyond a reasonable doubt,39 by competent and satisfactory evidence,40 every essential ingredient of the offense, such as felonious intent,41 ownership in another than the accused,42 nonconsent by the owner,43 value of the property taken,44 and the guilt of the accused,44 and must support by proof every material allegation,46 though in.

37. McDonald v. State \[Fla.\] 47 S 485. De-

fendant need not prove truth of explanation. Id. If explanation, considered with the whole evidence, raises a reasonable doubt, jury should acquit. Mason v. State \[Ind.\] from the person though there was some eV-

85 NE 776. When accused made an adequate explanation which, if true, warranted acquit-

part with property, Washington v. State, 53. tal, neglect to charge on evidentiary value of

Pessession when weighed in connection with the explanation is error. Morris v. State \[Ga. App.\] 68 SE 26.

88. Explanation must be not only reasonable but credible and sufficient to raise a reasonable doubt. McDonald v. State \[Fla.\] 47 S 485. Sufficiency of explanation \[s for jury. Jones v. State \[Ga. App.\] 61 SE 133.

Jury or court sitting upon facts is sole judge

of sufficiency. Mason v. State \[Ind.\] 85 NE 776. May convict if explanation is not believed, though there was no direct rebuttal. McDonald v. State \[Fla.\] 47 S 485. Verdict

of guilty indicates that jury did not believe

explanation. Id.

29. McDonald v. State \[Fla.\] 47 S 485. Burden of proof is always on state and never

shifts. Cagle v. State, 52 Tex. Cr. App. 307,

20 Tex. Ct. Rep. 560, 106 SWV 356.

40. Proof must be substantial, not mere

suspicion. Jones v. State, 85 Ark. 360, 108

SWV 223. Evidence should warrant a reasonable conclusion of guilt. Mickle v. V. S. C. C. A.\] 157 F 229. Where reliance is on cir-

cumstantial evidence, the state must re-

sonally identify the property found in pos-

session of accused. Felts v. State, 53 Tex. Cr. App. 48, 105 SWV 654.

41. Evidence held sufficent to warrant

finding of criminal intent in taking. State

v. Noyes \[Idaho\] 96 P 435. Circumstances. held

108 SWV 651. Lynne v. State, 53 Tex. Cr. App. 6,

ball to rebut theory that defendant believed

gun belonged to a friend. Crouch v. State,

52 Tex. Cr. App. 460, 107 SWV 559. Evidence

sufficient to show inclusive of shell flash plant

tation and notice of ownership. People v.

M Morrison, 124 App. Div. 10, 108 NYS 262.

42. Ownership must be shown. State v.

James \[Mo. App.\] 113 SWV 232. Possession is

primas factic evidence of ownership but not

sufficient to overcome presumption of innocence and warrant conviction of accused.

One presumption cannot overthrow another

and conviction cannot be had on mere infer-

ence of an essential element. Id.

43. Must be shown. State v. Faulk \[S. D.\] 118 NW 72; State v. James \[Mo. App.\] 113 SWV 232. Evidence

SWV 233; George v. U. S. \[Okl. Cr. App.\] 97 P 1052. Direct proof not necessary; may be in-

1052. Direct proof not necessary; may be in-

ferred from the circumstances. State v.

Fault \[S. D.\] 118 NW 72. Fact that owner

made search for stolen property la a cogent

circumstance to show noncensent. Not nec-

essary to prove by testimony of owner.

George v. U. S. \[Okl. Cr. App.\] 97 P 1052. Proof of noncensent held sufficient. State v.

Fault \[S. D.\] 118 NW 72. Proof that pocket

book was snatched from owner's pocket

12 Cur. Law. LARCENY SS 3D.

A reasonable explanation imposes the burden of rebuttal upon the state,37 but fail-

ure to rebut does not render the explanation conclusive of innocence.38

(SS 3) \_D. Sufficiency of evidence.\_See 10 C. L. 405--The state must prove beyond a

reasonable doubt,39 by competent and satisfactory evidence,40 every essential ingredient of the offense, such as felonious intent,41 ownership in another than the accused,442 nonconsent by the owner,44 value of the property taken,44 and the guilt of the accused,448 and must support by proof every material allegation,46 though in.

37. McDonald v. State \[Fla.\] 47 S 485. De-

fendant need not prove truth of explanation. Id. If explanation, considered with the whole evidence, raises a reasonable doubt, Texas the state need not prove an allegation of ownership which is not denied.47

Testimony of an accomplice must be corroborated.48 Where there is legal evidence of guilt, its sufficiency is ordinarily a question of fact.49

Corpus delici,50 and guilt of the accused,51 may be shown by circumstantial evidence, but circumstantial evidence must be legal evidence,52 and of such cogency as to exclude every other hypothesis except that of guilt,53 and its effect is for the jury to determine.54

(SS 3) \_E. Instructions._See 10 C. L. 607_--The instructions should clearly 55 state the law of the case58 when read as a whole,57 and are not erroneous when in view of variance. Franklin v. State, 53 Texa. Cr. App., prosecutor while engaged with prostitute 547, 110 SW 909. Proof that cotton raised by renter was stolen from ginner does not support allegation of ownership in landord. Priictor of bawdy house who was imme-Pick v. State \[Tex, Cr. App.\] 111 SW 1019. Indictment for laremy of diamond ring and

Held sufficient To sustain conviction. People v. Maltals \[Cal, App.\] 83 P 890; Paople v.

absolute failure of proof. State v. Plant, 209

Cain \[Cal, App.\] 93 P 1037; McDonald V. State

Mc. 201, 101 SW 1076.

47. Proper to omit charge on proof of own-

emship. Moore v. State \[Tex, Cr. App.\] 114

State v. Glover \[S, D.\] 113 NW 625. To

SW 807.

48. Corroboration held sufficient. State v.

Whiltman, 193 Minn. 92, 114 NW 363; State v.

State \[Tex, Cr. App.\] 114 SW 375. To show

Shapiro \[Cr. L.\] 69 A 340; Vought v. State, 135

Wis, 6, 114 NW 518. Testimony of defendant

and corroborative evidence held sufficient to

support conviction for laremy from box car

"checked up short" when referred to a bill

independent of testimony of accomplice."

Celender v. State \[Ark.\] 109 SW 1024.

49. Credibility of witnesses is for jury.

McDonald v. State \[Fla.\] 47 S 485, Sufficiency

ficcent. Perry v. State \[Ala.\] 46 S 470. Must

of circumstantial evidence is for jury. Perry

reasonably identify property found in pos-

v. State \[Ala.\] 46 S 470. Whether the claim

session of accused. Felts v. State, 53 Tex.

of right was bona dde or pretended is for

Cr. App., 48, 108 SW 654.

the jury. State v. Bailey, 63 W. Va. 668, 60

SE 785. Whether hiring of horse was in good

107 SW 845. Where all parties were drunk,

falth or a fraudulent pretext held for jury.

Smith v. Com., 83 Ky. L. R. 998, 112 SW 615.

Testimony of prosecutor that he missed corn

from his right at time of alleged laremy, and

that he believed corn in defendant's posession was his, but would not wear it, to-

sember with testimony of defendants' wife

\[Tex, Cr. App.\] 20 Tex. Ct. Rep. 894, 106 SW

that defendant asked her to engage prosecutor in conversation while he got corn, held

swmflent to take cases to jury. State v. Ball-

ey \[Del.\] 69 A 1004.

50. Perry v. State \[Ala.\] 46 S 470; Ray v.

State \[Ga. App.\] 69 SE 816; Mason v. Status \[Ind.\] 85 NE 776; State v. Estes, 209 Mo. 288,

107 SWV 1059; George v. U. S. \[Okl. Cr. App.\] 97 T 1052.

51. Proper to instruct that circumstantial

evidence may be sufficient to warrant conviction. People v. Caln \[Cal. App.\] 93 P 1037.

Ifentity of stolen money may be shown by

circumstantial evidence. McDonald v. State

\[Fla.\] 47 S 485. Facts and circumstances

may disprove innocent taking under bona

die claim of right. Attempt to defeat ad-

verse claim by concealment or disposition of

property. State v. Bailey, 63 W. Va. 668, 60

SE 785. Conspiracy to commit laremy may

be proved by circumstantial evidence. Con-

spiracy held to be proved so as to render evict.

dence of acts and declarations of codefendant

admissible. State v. Lewis \[Or.\] 94 P 881.

That defendants were jointly in charge of

carriage and that property stolen therefrom

was immediately thereafter found in the posession of each held to prove folious intent. Moxile v. State \[Tex, Cr. App.\] 114 SWV

375. Evidente of laremy from person of 12 Cur. Law. LARCENY SS 3F. 575 the evidence they do not mislead the jury.\[58\] Questions of fact should be properly submitted\[59\] and all circumstances having evidentiary value.\[60\] Reasonable doubt should be sufficiently charged\[61\] and any proper defense raised by the evidence.\[62\] It is proper to charge on included lesser offenses when justified by the evidence,\[63\] and it is error to instruct that the accused cannot be convicted of an included lesser offense under indictment charging the greater.\[64\] Where the degree of the offense is not clear, it is proper to charge in the alternative.\[65\] It is not necessary to define larceny when all the essential elements thereof are set forth.\[66\] Issues not raised by the evidence are properly excluded,\[67\] as are requested charges as to matters already set forth\[68\] or mistating the law of the case.\[69\] A charge imposing upon the taker of lost property the burden of diligent search for the owner is error.\[70\] In Texas a charge authorizing the penalty for a different offense, though not prejudicial to the defendant, is held error.\[71\] (SS 3) \_F. Trial, sentence and review.\[66\]_10 C. L. 600_--Where the indictment incidentally charges a misdemeanor, the state cannot be compelled to try the defendant first for the misdemeanor.\[72\] Conviction of an included lesser offense may be proper under an indictment charging the greater.\[73\] Under an indictment for grand larceny, verdict of larceny without specifying degree but finding an amount as for petit will support a sentence proper for petit larceny.\[74\] In the absence of proof, verdict may be directed for the defendant.\[75\] Upon motion the trial court may his innocence. Cagie v. State, 52 Tex. Cr. \[including all essential elements of larceny, App. 307, 20 Tex. Ct. Rep. 550, 108 SV 356. \[it is unnecessary to define larceny. Starke v. 67. Two instructions, each inadequate, 1\] State (Vyyo.) 86 P 148. \[67\]. Uncontrovicted facts. Moore v. State ceny when read together. State v. De Lea, 17eC. Arp.) 114 SVW 807. Not error to re- 36 Mont. 531, 93 P 814. \[78\] fuse charge on an minus furandl where it is 58. Instruction as to effect of claim of own- (clearly proved. Movie v. State \[Tex. Cr. \[exp.\] App.) 114 SVW 375. Proper to omit charge on ceny, while too broad as a general proposal- (defense not suggested by the evidence. \[61\], held proper under the evidence. \[62\], V. State \[Tex. Cr. App.\]) 114 SVW 807. \[63\]. Value in a question of fact and should not be ignored in instructions. Schwartz v. State, 53 Tex. Cr. App. 449, 111 SVW 393. \[64\]. Element of recency as affecting posses- (noncy non 576 LlibEL AND SLANDER SS 1.1 18 Cur. Law. grant a new trial for insufficiency of evidence or where the verdict is against the manifest weight of evidence,\[16\] but where there is any legal evidence to support the verdict, it will not ordinarily be disturbed on appeal.\[17\] On appellate review the general rules apply as to saving questions for review.\[18\] The acquittal of two of joint conspirators to commit larceny is no bar to conviction of a third who actually obtained the fruits of the larceny.\[19\]

Lazestvousness; Lateral Rallocads; Lateral Support; Law of the Case; Law of the Road; Lenses; Legacies and Devises; Legal Conclusions; Legates; Letters; Letters of Credit; Levees; Levendness, see latest topical index.

Llibel and Slander.

L. Definition and Distinctions, Nature of 84. Damages and the Agravation and Milit-Tort, and Persons Llable or Dannmil-Rable, 576.

S. Actions and Procedure, 584.

A. Conditions Precedent, and Procedure in General, 584.

B. Publication, 579.

C. Wallace, 580.

D. Trial, 589.

S. Privlese and Justification, 580. Truth, 582.

S. Crimineni Label and Slander, 591.

S. Jaetitution or Slander of Title, 593.

S 1. Definition and distinctions, nature of tort, and persons liable or dammitable. See 10 C. L. 599.--The action of libel is one to recover damages for injury to a man's reputation and good name,\[80\] and a libel in its most general and comprehensive sense is any false publication injurious to the reputation of another.\[81\] Libel may arise from insinuation as well as by explicit statement.\[82\] The action is maintainable though the subject of the libel is unnamed.\[83\] Generally an action of slander may not be maintained jointly against two or more defendants.\[84\] A repetition of an identical libel is not a new cause of action but an aggravation of the pre-existing cause.\[85\] A corporation may sue or be sued for libel,\[86\] but is unaffected by libels by or concerning its agents.\[87\] A corporation is not liable for defamation by its agents unless committed in the course of employment\[88\] or ratified.\[88\] A part-

70. McDonald v. State \[Fla\_\] 47 S 485.

Co., 209 Mo. 35, 107 SWV 496. Llibel defined.

71. McDonald v. State \[Fla\_\] 47 S 485; Cox

S. Gate, 3 Ga. App. 609, 60 SE 283.

Ver. State, 3 Ga. App. 609, 60 SE 283.

T includes any case which was libelous at evidence. Mickle v. U. S. \[C. C. A.\] 157 F 400.

229. Llibel no legal evidence, Taylor v. State, 53 Tex. Corp. 415, 111 SWV 151; Johnson v.

S22. Merrill v. Post Pub. Co., 197 Mass. 185, State, 52 Tex. Corp. 510, 107 SWV 845.

73. See Indictment and Prosecution, 12 C.

S. When facts are so stated that any intelligent reader upon reading article and knowing facts would come to conclusion that it applied to such party. Adams v. Carting-Vought v. State, 135 VHs. 6, 114 NWV 618.

80. Brown v. Knapp & Co. \[Mo.\] 112 SWV 474.

01. Julian v. Kansas City Star Co., 209 Mo.

01. Murray v. Galbraith \[Ark.\] 109 SWV 25, 107 SWV 496.

Definitions: A written or printed publication which is false and defamatory and calculated to expose one to ridicule or contempt, or to render him oldous, or injure him in his business or calling, or in his social standing, is a libel. Register Newspaper Co.

Factifying reputation may do to a corporation is v. Worten, 38 Ky. L. R. 840, 111 SWV 693. Unprivileged publication by letter or otherwise, which causes person to be avoided, etc.

Briggs v. Brown \[Fla\_\] 46 S 255. Llibel 18 malicious defamation of person made public by any printing or writing tending to provoke him to wrath, or expose him to public hinted, contempt or ridicule, or to deprive him of benefits of public confidence and social intercourse. Julian v. Kansas City Star nership may be liable for libel by a partner in furtherance of the firm business." A publisher is liable for libels by his agents within the scope of their employment, but their express malice is not ordinarily imputable to him." Where a signed notice in a newspaper was entirely different from the one authorized, the fact that the defendants did not correct the published notice was not evidence of ratification."

SS 2. \_Elements of tort. A. Actionable words.\_See 10 C. L. #10--Words actionable per se without proof of special damage include words imputing crime," infectious

Boston Mut. Life Ins. Co., 200 Mass. 265, 86

USSC in Edsall v. Brooks, 2 Rob. \[N. Y.\] NE 302, Making of slanderous statements by agents of insurance company will not authorize inference that they were made in course of employment. Id.

S89. In action of superintendent and refusal 887, 45 Am. Dec. 216, it was held that where the publisher believed an article to be a fiction of slander by agents, Kane v. Boston Mut. Life Ins. Co., 200 Mass. 265, 86 NE 302. Letters insufficient to ratify slander of agent when expressing disapproval of acts.

Id. Proof of loss of business insufficient to show ratification where no evidence that defendants knew facts. Id.

90. Libelous letter in respect to business of partnership signed by partnership name per member. Burgess & Co. v. Patterson \[Ky.\] 106 SW 887.

01. NOTE. LIability of newspaper editor or publisher for libelous article published in his absence or without his knowledge: The liability of a newspaper priordict for libelous articles published in his absence or without his knowledge is generally admitted (Crane v. Bennett, 171 N. Y. 106, 68 NE 274, 101 Am. St. Rep. 729; Morgan V. Bennett, 44 App. Div. 523, 60 NYS 619; McMahon v. Bennett, 31 App. Div. 16, 52 NYS 390;'O'Brien v. Bennett, 59 Am. Div. 62, 69 NYS 298; Andres v. Wells, 7 Johns. \[N. Y.\] 261, 5 Am. Dec. 267; Holmes v. Jones, 147 N. Y. 59, 41 NE 409, 49 Am. St. Rep. 464; Youmans v. Paine, 86 Hun \[N. Y.\] 479, 35 NYS 50; Warner v. Press Pub. Co., 123 N. Y. 181, 30 NNE 393; Benett v. Salsbury, 78 F 76; Mallory v. Bennett, 15 F 374; Buckley v. Knapp, 48 Mo 152; Eviston v. Crammer, 57 Wils, 570, 15 NWP 760; Bruce v. Reed, 104 Pa. 415, 49 Am. Rep. 586; Dunn v. Hall, 1 Ind. 555; Rev. v. Gutch, Moody & M. 43; Rev. V. Walter, 5 Esp. 211, and this liability is held to include punitive damages in cases where such an award is proper, notwithstanding the fact that such publica- tion may have been made contrary to the rules laid down by the propriator for the regulation of his agents. The rule is strictly enforced in the case of unchuste or reck- less publications reflecting upon personal reputation, and it is held that the hurry of getting out a large metropolitan journal is no excuse for such articles. Bennett v. Salsbury, 78 F 769; Smith v. Matthew, 152 N. Y. 152, 46 NE 164; Warner v. Press Pub. Co., 133 N. Y. 181, 30 NE 393; Holmes v. Jones, 121 N. Y. 461, 24 NE 701; Holmes v. Jones, 147 N. Y. 59, 41 NE 409, 49 Am. St. Rep. 646; Serpys v. Reilly, 38 Mic. 27. The rule is, in effect, the same in the case of a corporate publish- tion to a corporate publication that it is difficult to impute malice to a corporation, the act having been done by the agent in the course of his employment and for the benefit of the employer, it is but just that the employer should be held responsible therefor. Lothrop v. Adams, 182 Mass. 480, 43 Am. Rep. 528. Ratification as a proof of malice in such cases is dis- 12 Curr. L = 37.

10 C. L. #10--Words actionable per se without proof of special damage include words imputing crime," infectious

Boston Mut. Life Ins. Co., 200 Mass. 265, 86

Cussed in Edsall v. Brooks, 2 Rob. \[N. Y.\] NE 302, Making of slanderous statements by agents of insurance company will not authorize inference that they were made in course of employment. Id.

But in Smith v. Ashley, 11 Mete. \[Mass.\] 887, 45 Am. Dec. 216, it was held that where the publisher believed an article to be a fictitious narrative, but it proved to be libelous, he was not liable. See, also, Detroit Post Co. v. McArthur, 16 Mich. 447: Scrpys v. Kelly, 38 Mic. 10 and Robertson v. Wyide, 2 Moody & R. 101, wherein it is held that pun disease,94 or want of chastity,95 or exposing one to scorn, ridicule or contempt,98

from writer's land, that if addressee pur-

fence. Your horse has knocked my post off,

chased from plaintiff he received stolen

yon damned old bitch," language was not

property, and that addressee must heed no-

slanderous per se as imputing want of chas-

tice or matter would be placed before property

ty Warren v. Ray \[Mich.\] 15 Det. Leg.

officials. Burgess & Co. V. Patterson \[Ky.\] : N. 835, 118 NPV 741.

106 SW 837. Charging plaintiff with smugging. San Antonio Light Pub. Co. v. Levy \[Tex., Civ. App.\] 118 SW 574. Words "He has another wife back east and a wife and child here," as charging blgamy. Bleitz v.

NYS 574.

Carton \[Vash.\] 95 P 1099. Publication charging plaintiff, though unnamed, with throwing

plaintiff, though unnamed, with throwing

bomb or hiring others to throw bomb which

wereked attorney's home, and with other

crimes. Dennison v. Daily News Pub. Co.

\[Neb.\] 118 NPV 568. Article stated that $70.-

000 had been used by enterprising individu-

that sister stoic to help him out properly

uals who had passed hat. Adams v. Carrington Pub. Co., 160 F 986. "Assault and bat-

story with intent to kill" actionable though

plaintiff. Van Heesen v. Argrereueau, 124 App.

not in statutory words. Gordon v. Journal

Pub. Co. \[Vt.\] 69 A 742. "Battery" may be

iff out as going into passion and threaten-

treated as surplusage. Id. Publication of

article charging persons with effecting pool

or combination libelous per se, as tending

Pub. Co., 111 NYS 674. Equvocal newspaper

to expose person to hattered or contempt or

article capable of meaning that person

to injure business, and fact that Code

$5 5060-5062, making pools a crime, might be

far with Chinese prize fighter and on terms

unconstitutional, would not lessen fact that

of intimacy with such person, and implying

acts were contrary to public policy of state.

Dorn v. Cooper \[Iowa\] 117 NW 1.

**Held not actionable per se:** To charge one

with having stolen land of another not actionable per se, there being no such crime as

larceny of land. Jones v. Bush \[GoL\] 62 SE

279. Article stating that plaintiff had

cured perjured statements concerning

didate and circulated slanderous attack, that

animus of attack originated in case where

candidate appeared against plaintiff, that

such action was to recover fees which plaintiff as county clerk had not accounted for,

confirmed as not directly or by imputation

charging plaintiff with enbezzlement, perjury or subordination of perjury. Sheibley v. Fales

\[Neb.\] 116 NW 1028.

94. Article referring to plaintiff as "Ill

with disease" does not charge infectious disease. Merrill v. Post Pub. Co., 197 Mass.

185, $3 NE 419.

95. Held actionable per se:\*\* Publicly calling young white woman "a Decatur street

whore," Sparks v. Bedford \[Ga. App.\] 60 SE

$80. Charge that person had committed

nication. Harms v. Preehi, 104 Minn. 303, 118 NWV 687. Article in newspaper which to

common understanding charged woman re-

ferred to as mistress of plaintiff. Dempster

v. Mann, 167 F 319. Words "B was undoub-

edly down the railroad track with some woman"; I believe it; he is guilty and I now

he is," actionable as charging adultery.

Bashford v. Wells \[Kan.\] 96 P 663. Publication that husband' of plaintiff had brought

suit against attorney for alienation of affections, and later divorce suit which had

not been decided, libelous per se, as imputing

divorce for adultery. De Festicts v. Sun

Print, & Pub. Assn, 57 Misc. 194, 108 NYS

30. Article regarding minister who was

fedant in divorce suit imputing improper

conduct. Russell v. Washing Post Co., 31

App. D. C. 277.

**Held not actionable per se:** In

alteration over hires where defendant said "You will

have to keep your horses away from my

since, 194.

**Held not actionable per se:** Charge that 12 Cur. Law. LIBEL AND SLANDER SS 2B. 579

or injuring one in his business or occupation." Words actionable per se may be spoken of a corporation." Words may be libelous though if not written they won'd not have been slanderous." The court or jury1 in determining whether a publication is libelous per se must consider the article as a whole2 in the light of the common acceptation of the terms employed,3 the question being what was understood by the hearers or readers.4 The headlines of a newspaper are frequently determinative of the question whether an article is libelous.5 Defamation of a class of persons is not actionable by the individual members unless the libelous article is shown to refer to a particular person or to every person of the class.6 More disparaging words are actionable only upon proof of special damage.7

(SS 2) \_B. Publication.\_See 10 C. L. 012.\_The libelous matter must be published by being communicated to some third person.8 Sending a sealed letter through the mail to the person defamed thereby is not sufficient publication9 unless the sender knows that the letter will be opened by a third person,10 and a publication is not ef-man was not fit to associate with decent peo- 3. De Festettes v. Sun Print. & Pub. Ass'n, ple and had been in jail, not actionable per 57 Misc. 194, 109 NYS 80; Johnston v. Turner se. Bleitz v. Carton \[Wash.\] 95 P1099. Arti- \[Ala.\] 47 S 570. "Missappropriation" susceplec to effect that plaintiff had secured marriage of incoming dispense, that due to mysterious Inter- \[bas 580 LIBEL AND SLANDER SS 2C. 12 Cur. Law.

fective when brought about by the contrivance of the plaintiff. \[11\] Only one publication takes place where a newspaper is issued and distributed in various counties of a state. \[12\]

(SS 2) \_C. Malice.\_See 10 C. L. 612--Express malice may always be shown \[18\] and may appear from the publication itself \[14\] or from the circumstances surrounding the publication, \[18\] and repetition of the slander is competent to show malice. \[19\] Defendant is entitled to rebut express malice as by showing a retraction, \[17\] and may testify directly as to his own intent. \[18\] Malice is often involved in the question of privilege. \[18\] Failure of defendant to investigate the truth of a charge alleged by him as provocation is not conclusive of malice. \[20\] Malice is presumed where the words are actionable per se, \[21\] though the contrary has been held where the statement was made as a repetition of what others said. \[22\]

SS 3. \_Privilege and justification.\_See 10 C. L. 613--Answers of a witness are absolutely privileged. \[23\] Qualified privilege extends to all bona fide communications upon any subject in which the communicant has an interest or duty to a person having a corresponding interest or duty. \[24\] The doctrine of qualified privilege extends not only to official proceedings, such as police investigation of alleged crimes, \[25\] informations to procure arrest, \[26\] communications in official reports, \[27\] and to the publication of proceedings in the public courts of justice, \[28\] executive and legislals.

**11. Laughlin v. Schnitzer \[Tex. Civ. App.\]**

Briggs v. Brown \[Fla.1 46 S 325; Trimble v.

20 Tex. Civ. App. 830, 106 SWV 908.

12. One cause of action. Julian v. Kansas

20 Tex. Civ. App. 830, 107 SWV 496.

49. The other cause of action.

12 Cur. Law. LIBEL AND SLANDER SS 3. 581

tive proceedings and investigations,\[29\] fair comments on public officials and candidates for public offices,\[30\] or other matters of public interest,\[31\] but to complaints

leged character if condensed but must re-main impartial. Brown v. Globe Printing Co. \[Mo.\] 112 SWV 462; Gould v. Grit Pub. Co., 36 Pa. Super. Ct. 258. Suppression of parts of of news. Id. Publication of portions of brief

testmony in condensed report destroys privl-lege. Brown v. Globe Printing Co. \[Mo.\] 112 SWV 462.

Wheat may be published: Report may include pleadings which were filed. Merwether

& Co. \[Mo.\] 112 SWV 474. Act of publication

ports of legal proceeding from day to day are

privileged. Whether full or abridged, but

must be impartial. Brown v. Globe Printing

& Co. \[Mo.\] 112 SWV 462. Comment on case must

be deferred until proceedings terminate. Id.

Where bill presented to court and special

order issued for defendants to show cause

why they should not be enjoined, act was

available that commissioners, asserting

judidal proceeding and subject of privilege

overcharge of $7,000 calling attention to

though cause not finished. Kimball v. Post

Wretched paying and averring that other

Pub. Co., 199 Mass. 248, 85 NE 103. News-

paper reporter copying court record for pub-

Murray v. Galbraith \[Ark.\] 109 SWV 1011.

ication need not verify entries in absence

of actual knowledge or error. Belo & Co. v.

suit and been filed, that same was conclusive

Lacy \[Tex. Civ. App.\] 111 SWV 215. Under

statute clerk's fl flocked to official record

bohtes on innocent parties, and repeating

boke and entries therein are official proceedings,

notes, not privileged. Id.

ings to be privileged. Id. Publication privl-

legend under statute thought clerk made mis-

stoke in recording object of suit and defend-

ad hoc knowledge of mistake, result

candidate for re-election. Coleman v. Mac

being that plaintiff was advertised as to be

trend for keeping disorderly bues. Id. Un-

be fair and impartial. San Antonio Light

der Acts 1801, p. 30, c. 26, $ 3, providing for

Pub. Co. v. Lewy \[Tex. Civ. App.\] 113 SWV

privilege of reports of judicial proceedings,

"proceedings" relates to the form and man-

privilege, relates solely to criticism of official

ner of the exercise of the power conferred by

acts and matters of public concern. Id. Un-

law. Id. Phrase "in the administration of

of the law is general and includes the perform-

lege is not extended unless comment is fair

ance of acts or duties required by law of

of

and reasonable. Id. Article charging sun

decers in the discharge of their duties. Id.

gling and possibly bribling of custom house

Proceeding before governor for exradation

Gmichas or privileged as comment on official

of quasi judicial character. Brown v. Globe

acts. Id. A false charge of facts amounting

Printing Co. \[Mo.\] 112 SWV 462; Brown v.

to moral turlitude is libelous. She Shelley v.

Knapp & Co. \[Mo.\] 112 SWV 474. Proceedings

Pairs \[No.\] 112 SWV 1055. False charges Im-

with respect to indictment and in connection

puting criminal offense or moral delinquency

therewith, extradation proceedings constitute

not privileged. Russell V. Washington Post

one privileged occasion. Brown v. Globe

Co. \[31 App.\] 112 SWV 462. Rule that

who was defendant in divorce suit imputing

publication of judicial or quasi judicial pro-

misconduct not privileged, being attack on

ceedings may be privileged on ground of

public interest applies to criminal cases. Id.

of false criminal charge concerning candidate

Telegrams passing between parties relative

for public office not privileged with City.

to'extradation not part of proceedings. Id.

Code, $ 47, subd. 3, declaring as privileged a

Application for change of venue judicial pro-

communication without malice between in-

ceeding and publishers may without malice

publish news report thereof. Merwether v.

\[757, 96 P 880.

Knapp & Co., 211 Mo. 199, 199 SWV 750.

Headlines only privileged if a fair index of

for state constituency is not deprived of

truthful report. Headlines charships perivary

privilege in discussion of subjects of state-

constructed as unauthorized comment and libel-

ous. Brown v. Knapp & Co. \[Mo.\] 112 SWV 462.

culation elsewhere. Coleman v. MacLennan

474: Brown v. Globe Printing Co. \[Mo.\] 112

(Kan.) 19 P 281. In the discussion of matters

SWV 462. Headlines not part of proceedings

but voluntary statements of publisher.

vective may be employed if based on fact.

Brown v. Globe Printing Co. \[Mo.\] 112 SWV made by church members in accordance with the discipline of the church,"22 and to statements fairly and reasonably necessary to the transaction of private business."33 The application of the principle is not precluded because the communication was voluntary,"4 but the statement must not needlessly injure the person spoken of."84 A communication absolutely privileged is not actionable though made maliciously," but qualified privilege is unavailable if the publication is malicious."74 Malice is not presumed."85 It may, however, be established from the publication,"99 or the evidence of malice which is apparent from the article may be used in establishing malice."60 If defendant did in fact act in good faith, it is not necessary that he should have had probable cause to believe the statements,"11 and the fact that the statement is false does not establish malice,"42 unless that fact is known to the publisher."85 Neither is malice to be presumed from the refusal of one making a qualifiedly privileged communiation to name his informant."44 The questions of privilege and malice are often submitted to the jury."45

\_Truth.\_See 10 C. L. 615--In some states the publication of a defamatory statement is not actionable if true,"46 but all the substantially defamatory statements must be that article be published concerning use of vanilla by local baker, there is no presumpment that anything but fair comment should be published. Id. Taking of census matter of public interest warranting criticism though Ibbel is prohibited. Flowers v. Smith \[M0.\] 112 SW 499. Newspaper may not pub- lish defamatory remarks of stockholder at private meeting. Kimball v. Post Pub. Co., 198 Mass. 248, 85 NE 103. Publication of de-Ramatory statements made at meeting of stockholders of private corporation not privivali- leged, since matters not public or for public purpose. Id. Where defamatory statements were published in reporting a meeting of a private corporation, it is no defense that a bill in equity has been filed making the same charges. Id. Newspaper not liable for imputed malice for publication of charges as to fraudulent racing and action taken by racing authorities, though proceedings are ex parte.

Rabb v. Treveylan \[La.\] 47 S 455. A newspaper may publish the report of a quasi public body if without malclocus intent. Id. Fraudulent racing concerns public. Id. Plea of justification sustained by proof. Id.

**32.** Complaint against another member. Butterworth v. Todd \[N. J. Law! 70 A 138.

**33.** Communication by druggit to physician regarding latter's employee, where druggit had interest in physician's business, qualifiedly privileged. Trimble v. Morrish, 152 Mich. 624, 15 Det. Leg. N. 208, 116 NWV 451.

Stockholder may utter defamatory remarks upon subject of common interest at private meeting. Kimball v. Post Pub. Co., 199 Mass. 248, 85 NE 103. Where landlord in response to question replied that tenant must vacate house, being a disorderly person and keeping disorderly house, occasion was one of privl- lege though words heard by third person whom tenant brought along. Laughlin v. Schnitzer \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 830, 106 SWV 908. Statement by police captain to landford that tenants kept disorderly house in former's precinct prima facie privileged, former being under duty to speak. Morton v. Knipe, 112 NYS 451.

**34.** Morton v. Knipe, 112 NYS 451.

**35.** Briggs v. Brown \[Fla.\] 46 S 325; Coleman v. MacLennnan \[Isan.\] 89 P 281. Privilege does not protect communication made 18 Cur. Law. LIBEL AND SLANDER SS 4. 583 true to afford a complete defense.\[47\] In Nebraska the truth when published with good motives and justifiable ends is a sufficient defense.\[48\] One cannot set up defense that the libel was a truthful recital of what others asserted.\[49\]

SS 4. _Damages and the aggravation and mitigation thereof.\[50\]_--The question of damages is peculiarly for the jury.\[51\] While nominal damages may be awarded,\[52\] general damages are presumed in the publication of matter actionable per se\[53\] and include damages for mental suffering.\[54\] Damages may be recovered upon proof of special injury where the publication is not privileged and not actionable per se,\[58\] though the damages recoverable are only compensatory.\[50\] Such damages include compensation for wounded feelings and loss of reputation,\[57\] and proof that plain-tiff has a family and of whom it consists is proper to show damage;\[58\] but no compensation can be allowed for the mental anguish of plaintiff's family nor for plain-tiff's grief at the distress of his family.\[59\] The constituents of compensatory damages are not the same when a corporation is libeled.\[60\] Attorney's fees are not recoverable.\[61\] Generally\[62\] a recovery of exemplary damages is authorized where the publication is prompted by malice.\[63\] Exemplary damages may be based upon any publication libelous per se,\[64\] but are not allowed merely because the libel is false.\[65\] The jury may determine if they should be awarded.\[68\] In mitigation the defend-

47 Defense afforded by Rev. L. 1902, c. 173, of recovery extends to damages alleged and $ 91, not available where no sufficient evidence of truth of basic fact upon which libel- and proximate result of false publication. Id. was article was predicated. Hubbard v. Allyn 56, 57. Ellis v, Brockton Pub. Co., 198 Mass. \[Mass.\] 86 NE 356. \[Mass.\] 86 NE 356. \[Mass.\] 86. Truth alone insufficient but defendant 58,59, Dennison v. Daily News Pub. Co. must further allege and prove good motives. \[Neb.\] 118 NW 568. \[Binl of Rights, $ 5, construed. Wertz v. Sprere ant may show that the slander was provoked by the plaintiff," that a retraction was published," or that he had good cause for believing the charge to be true." Where the general issue is pleaded, the defendant may show in mitigation of damages the general bad reputation of the plaintiff." The fact that another newspaper had previously published a substantially similar report," or that the defendant had denied such other report, cannot be shown in mitigation." A plea of justification reiterating the libel is an aggravation of the wrong and may be considered in assessing damages, when the defendant offers no evidence to prove the truth." Damage assessed by the jury will not be interfered with in the absence of abuse of discretion."

SS 5. \_Actions and procedure. A. Conditions precedent and procedure in general.\_See 10 C. L. 618--The right of action for a libel contained in a newspaper aocrues wherever the newspaper is publicly circulated." An action for libel cannot be commenced by trustee process," and a discovery of an instrument alleged to be a libel cannot be enforced against a defendant." Where an undertaking for costs is required," the refusal of a new undertaking in lieu of a defective one may be an abuse of discretion." In some states notice to the publishers by the aggrived party is requisite."

(SS 5) \_B. Pleading.\_See 10 C. L. 617--An allegation of extrinsic facts showing that the words were spoken of the plaintiff is necessary if the defamatory words are indefinite," except where the rule is changed by statute." The use of the word 67. Andrus v. Harris, 110 NYS 819. Instruction on provocation proper where evidence showed words as uttered in street fight. Childs v. Childs \[Wash.\] 94 P 660.

68. Retraction in conspicuous place properly admissible as reducing damages. Regardless of Rev. Laws, c. 173, s. 93. Ellis v. Brockton Pub Co., 198 Mass., 53, 84 NUE 1018.

01. Probable cause may mitigate damages. San Antonio Light Pub. Co. v. Lewy \[Tex. Civ. App.\] 113 SSV 574. Evidence that defendant heard charges at church trial and be-leved them true competent for mitigating damages. Harms v. Proehl, 104 Min. 303, 116 NVE 857. Instruction that defendant might show foundation of charges in disproving malice and in mitigation approved. Shelby v. Fales \[Neb.\] 118 NVE 1035.

70,71,72. Good v. Grit Pub. Co., 36 Pa. Super. Ct. 238.

73. Instruction erroneously refused. Dauphin v. Buhne, 153 Cal. 757, 94 P 80.

01. Verdict of $8,000 excessive where slander partially induced by plaintiff's attitude, and injury to plaintiff's business being of most general character. Butterworth v. Todd \[N. J. Law\] 70 A 139. Verdict of $871.36 not excessive for slanderous charges of unhealthy wantonly and malicusly made and repeated in verified answer. Raynolds v. Vinier, 109 NYS 293. Verdict of $750 for uttering slanderous words in presence of number of persons in public street not disturbed on appeal. Childs v. Childs \[Wash.\] 94 P 660.

81,500 not excessive for libel charging larger. Burgess & Co. v. Patterson, 32 Ky. L. R. 624, 106 SW 837. $6,000 actual and $8,000 punitive damages not excessive where news-pasper with large circulation charged attorney with perjury. Brown v. Knapp & Co. \[Mo.\] 112 SSV 474.

112 SSV 474. $2,000 actual damages and $10,000 punitive damages not excessive. Brown v. Globe Print Co. \[Mo.\] 112 SW 462.

75. Though published in another county "whereas" in the inducement is unnecessary." A special allegation of malice is proper," and an allegation of falsity and malice deprives the libelous matter of its character as a privileged communication." Allegations of reckless and willful publication are not objectionable as conclusions." The time of every traversable fact must be stated." An allegation that the libel was published concerning plaintiff in his professional or business capacity is necessary in order to recover for injury to business." Only the libelous passages of an article need be set out." In pleading a series of newspaper articles, the vice of duplicity must be avoided," and each count must stand on its own allegations." Improper joinder gives defendant the right to demand an election." The innuendo is merely a form or mode of introducing explanation," and it cannot operate to alter the effect of the previous words." Innuendo is necessary when it is sought to attach a covert meaning to words apparently harmless" or where the complaint would otherwise be uncertain." It is not necessary where the words are certain and actionable per se." The innuendo may tend to limit the effect of the language alleged." An improved innuendo is mere surplusage." The legal effect of the innuendo is a question of law which arises on the demurrer.1 Plaintiff need not allege that the publication tended to expose her to public hatred where the words are actionable per se," and, 586 LIBEL AND SLANDER SS 5B. 12 Cur. Law. where a publication is actionable per se, special damages need not be alleged,\* but otherwise such allegation is necessary.4

\_Plea or answer.\_See 10 C. L. 617--Truth must be pleaded to be available as a defense,\* and to be a complete defense the plea of justification must be broad enough to cover the entire charge.4 Where the defamatory matter charged in general in its nature, the plea of justification should be specific? but a general allegation is proper where the alleged libel is specific.8 To supplement the new matter set forth in a defense of justification, paragraphs of the answer proper may be repeated.9 An affirmative defense of justification need not contain a denial of the extent of the plaintiff's damages.10 The failure to plead the truth of the libel operates as an admission of its falsity.11 A plea of qualified privilege must negative falsity and malice.12 An affirmative partial defense may contain repetitions of the answer proper which are necessary,13 and where facts are not expressly pleaded as a partial defense, the plea must be tested on demurrer as if given in complete defense.14 A denial and a plea of privilege15 or a denial and a plea that the words are true14 may not be inconsistent. Allegations unsupported by evidence17 or allegations which merely repeat the denial18 may properly be stricken. An answer treated as adequate in the trial will not be disturbed after verdict.19

\*\*3. Burgess & Co. v. Patterson, 32 Ky. L. R.**unnecessary. Where defense alleged that 624, 106 SWV 837; San Antonio Light Pub. Co. 4 article was true, privlleged and published in v. Levy \[Tex. Civ. App.\]. 113 SWV 574. Demp-good faith. Td.**

ster v. Mann, 157 F 19.\*\*Libel on corporation 10.**Haffen v. Tribune Ass'n, 111 NYS 225. such as to affect credit and occasion pecuinary loss. Warner Instrument Co. v. Inger-soll, 157 F 19.**

12. Lapetina v. Santangelo, 124 App. Div. 519, 108 NYS 975. Defense that defendant ver. Smith \[Mo.\] 112 SWV 499; Fagan V New York Evening Journal Pub. Co., 118 NYS 62. Declaration alleging that false and malicious letter was partly offered in improvement company to indemitry company and alleging special damages not demurrabie. Briggs v. Brown \[F14.\] 46 S 285.**Complaint not denumrrabie though not alleging special damages, unless words used are incapable of any reasonable construction which will make them defamatory. Chamler v. Town Topics Pub. Co. \[C. C.\] 161 F 105.**

**5.** Act 1901, p. 30, c. 26, making truth a defense does not change necessity of pleading. San Antonio Light Pub. Co. v. Levy \[Tex. Civ. App.\] 113 SWV 574.\*\*

**6.** In libel suit for publishing letter charging plaintiff as dishonest in two transactions. plea of justification alleging that plaintiff was dishonest in one transaction is not broad enough to be a complete defense. Lapetina v. Santangelo, 124 App. Div. 519, 108 NYS 975. 7. Shelley v. \[Neb.\] 116 NYS 105. Must state specific facts showing in what instances and in what exact manner plaintiff has misconducted himself or has done things charged against him. Fodor v. Fuchs \[N. J. Law\] 71 A 108. Plea failing to set forth time. Place, facts, or circumstances of conviction relied upon in justification bad for uncertainty and should be stricken. Id. S. Shelley v. Fales \[Neb.\] 116 NYS 105.\*\*

**9.** Allegations of meaning of article and details of meaning alleged in complaint. Haften v. Tribune Ass'n, 11 NYS 225. Paragraph of the answer proper, consisting of admission that defendant published an article, set out at length, is properly repeated. To make defense complete and include article. Id. Repetition of denial, from answer proper, of false and malicious publication, is 12 Cur. Law. LIBEL AND SLANDER SS 5C.

Demurrer.See 10 C. L. 617.--An objection to the sufficiency of the declaration must be made by demurrer\[20\] or motion in arrest of judgment.\[21\] Upon demurrer it is the province of the court to determine if the words charged in the declaration amount to slander.\[22\] A demurrer will lie where it is apparent that the article was not published concerning the plaintiff,\[23\] where special damages are not sufficiently pleaded,\[24\] or where the complaint is otherwise fatally defective.\[25\] Where a libelous article did not identify the person labeled, and the plaintiff alleged that the article was published concerning her, such fact was admitted by demurrer for want of facts.\[26\]

Bills of particulars.See 8 C. L. 725.--A bill of particulars is unnecessary to explain an allegation if injury where no special damage is alleged.\[27\]

(SS 5) C. Evidence.See 10 C. L. 618.--The burden of proving express malice rests upon the plaintiff when the libel is qualifiedly privileged.\[28\] Where a conspiracy between two joint defendants to defame the plaintiff is alleged, plaintiff has the burden of proof.\[29\] Where the words are actionable per se, the burden of proving justification is on the defendant.\[30\] The libelous words must be proved as laid.\[31\]

20. Gates v. Little, 36 Pa. Super. Ct. 422. \[been specially pleaded. Barry v. McCollom.\]

01. Delay until after verdict results in curling of many defects. Gates v. Little, 36 Pa. \[N. C.\] 62 SE 774. \[N.

588 LIBEL AND SLANDER SS 5C. 19 Cur. Law. Evidence of justification32 or mitigation33 is only admissible if pleaded, and matter pleaded in justification is not admissible in mitigation.34 Evidence which only justifies a portion of the libel is admissible when that portion is severable.35 Evidence of intent is inadmissible where the publication is actionable per se and unambiguous.36 A record of a church trial is only admissible to refresh the memory of the witness.37 Evidence of facts wholly irrelevant to the charge in the libel36 or hearsay39 should be excluded. Where a prosecuting attorney was accused of being a party to a conspiracy to blackmail, evidence that he did not investigate the character of a prosecuting witness was irrelevant.40 Corroborative evidence should not be stricken.41 Upon proper foundation, a copy of the paper containing the libel is admissible.42 The admissibility of evidence may involve a construction of the libelous article,43 and where a libelous utterance refers to an article in another newspaper, the latter article is competent.44 Words written or spoken by defendant before or after those sued on, or after the commencement of the action, are admisible.45 In slander charging theft, evidence of plaintiff's indictment and acquittal is not admissible.48 It is admissible to prove that the plaintiff is the person referred to in a defamation47 to show malice48 or the absence of it.49 to explain the bigamy. Id. Where plaintiff alleged that defendant spoke as follows. "Blutz is a big-amist. I threw it in his teeth and he did not deny it. He has two wives," proof that defendant did not call plaintiff "a bigamist in so many words, that is, he didn't call Mr." Blutz a bigamist that I can decide," not only was a variance but in effect a positive denial. Id. Directed verdict proper where facts completely at variance with pleadings and plaintiff not entitled to damages. Id. p. 1772, declaring documents prima facie 32. Dorn v. Cooper \[Iowa\] 117 NW 1. 33. Where article charged existence of pool to buy hogs, evidence of actual prices at 870 48. Inadmissible to show justification.

Imtigation of damages, such defense not being placed and article only purporting to be based on defendant's own knowledge. Dorn bott, 29 S. Ct. 75.

v. Cooper \[Iowa\] 117 NW 1.

34. Dorn v. Cooper \[Iowa\] 117 NW 1.

01. Parbenfarbriken of Elberfeld Co. v. Berger \[C. C. A.\] 158 F 802.

01. Harmes v. Proehl, 104 Minn. 303, 116 NW 587.

01. Not public or quasi public record. Harms v. Proehl, 104 Minn. 303, 116 NW 587.

01. In action of libel charging plaintiff, a village attorney, of dishnesty, advising a suit to be brought, degradatory question as to suit brought several years before proper- by excluded as immaterial. Smith v. Hibbell, 151 Mich. 59, 14 Det. Leg. N. 874, 114 NW 865. Deposition of witness as to what was said in conversation outside of charge on which declaration was based erroneously ad-mitted. Yazoo & M. V. R. Co. v. Rivers \[Miss.\] 48 S 705. Evidence of authority of \[Miss.\] 48 S 705. Evidence of authority of \[Miss.\] 48 S 705. Evidence of authority of \[Miss.\] 48 S 705. A consequence should not be broken.

aus suspected smuggling irrelevant in action for libel where newspaper article charged smuggling. San Antonio Light Pub. Co. v. Lewy \[Tex. Civ. App.\] 113 SWV 574. Report of government officers, though official proceed- by invoking a construction of the libelous article,43 and where a libelous utterance refers to an article in another newspaper, the latter article is competent.44 Words written or spoken by defendant before or after those sued on, or after the commencement of the action, are admisible.45 In slander charging theft, evidence of plaintiff's indictment and acquittal is not admissible.48 It is admissible to prove that the plaintiff is the person referred to in a defamation47 to show malice48 or the absence of it.49 to explain the bigamy. Id. Where plaintiff alleged that defendant spoke as follows. "Blutz is a big-amist. I threw it in his teeth and he did not deny it." Id.

48. City, App.\] 113 SWV 574. Letter by third deny it. He has two wives," proof that defendant did not call plaintiff "a bigamist in so many words, that is, he didn't call Mr." Blutz a bigamist that I can decide," not 286.

Footnote meaning of ambiguous phrases,50 and to show loss of trade 51 or other evidence of damage.52 Evidence of defendant's refusal to publish a retraction is not admissible to enhance the plaintiff's recovery.53 Proof that plaintiff's reputation for chasticity is bad is proper in mitigation,54 and where a libelous article crititiised a mayor as to a census, it was proper to show that such census was actually erroneous.55 Improper evidence which is admitted on the promise of counsel to connect with later evidence may be stricken on his failure to introduce such evidence.56

(SS 5) \_D. Trial.\_See 10 C. L. 620.--The question of whether an article is actionable per se is determined by the court when the words are clear and unambiguous,57 but when doubtful in their meaning,58 or where an ulterior meaning is imputed to

46 S 705. Evidence that witness went to de- 209 Mo. 85, 107 SW 496. Where the words fendant and requested him to cease libels are susceptible of more than one meaning or and resulting conversation not competent in rabbittal. Flowers v. Smith \[Mo.\] 112 SWV what witnesses understood words to mean is

**Publications dealing with unworthiness of**

admissible. Evidence of name character as plaintiff to hold office though referring to en-

opinion evidence to be weighed with caution. Id. Question should not be submitted malice. Julian v. Kansas City Star Co., 209 Mo. 35, 107 SWV 496. Other publications than ed construction. Id.

one sued on admissible to show malice, es-

51. Smith v. Hubbell, 151 Mich. 59, 14 Det.

pecially when dealing with same subject. Id.,

Leg. N. 874, 114 NW 865; Hubbard v. Allyn

Merwether v. Knapp & Co., 211 Mo. 19, 109 (Mass) 88 NE 356. Evidence that after pub-

SWV 750. Remote evidence of malice admissli-

liation friends of plaintiff refused to call

ble, remoteness only going to weight of evl-

upon her, and employ her for sewing. Gates

dence. Julian v. Kansas City Star Co., 209 Mo. 35, 107 SWV 496. Publication devoted en-

v. Little, 86 Pa. Super. Ct. 422.

tirely to arranging another man admissli-

their circulation and size of congregation

ble to show malice when such man previous-

ly associated with plaintiff in other articles.

Russell v. Washington Post Co., 31 App. D. C.

Merwether v. Knapp & Co., 211 Mo. 19, 109 (SWV 750. Rule at common law that unproved

**53.** Puntive damages not allowed. Dennil-

plea of justification was evidence of malice

son v. Daily News Pub. Co. \[Neb.\] 118 NWV is abrogated by Code. Whittaker v. McQueen, 82 Ky. L. R. 1094, 108 SWV 236. Where

1187 wc. 236. Where

there was no evidence to sustain flagrant

54. On charge of unachatighty where defendant

charges of unachatighty against plaintiff made

ant pleads in mitigation that plaintiff's rep-

in the answer, such answer might be considat

ered as bearing on defendant's good faith.

Discreationary with judge. Reynolds v. Vin-

ver, 109 NYS 292.

**40.** Where article was published charging

that pool existed for purchase of hogs, de-

sues by mayor, the plaintiff, evidence that.

fendant to rebut inference of actual malice

might show prices at town and elsewhere.

Dorn v. Cooper \[Iowa\] 117 NWV. Evidence

that defendant's attention was called to

schoolhouse, and that he replied that condi-

tion was debridge and that he had report

which he was sorry to send in, admissible to

show a subscene of malice. Barry v. McCollon

\[Conn.\] 70 A 1035.

Facts In defendant's knowledge at time of

57. Julian & Kansas City Star Co., 209 Mo.

publication are competent to repel inference

of malice. Julian v. Kansas City Star Co., 209 Mo. 35, 107 SWV 496; Flowers v. Smith

\[Mo.\] 112 SWV 499. Evidence that defendant

did not act malieviously and that his feelings

both before and after publication were

friendly to plaintiff is proper since malice is

in issue. Dorn v. Cooper \[Iowa\] 118 NWV 35,

rvg. \[Iowa\] 117-Nvw 1 Evidence of the op-

posing party's feelings to the defendant 1s

inadmissible being mere inference or conclu-

born v. Cooper \[Iowa\] 118 NWV 35.

50. Evidence to prove peculiar or extra-

dinary meaning of words admissible upon

proper foundation. Brissfeld v. Howeth,

107 Md. 278, 68 A 568. Slander and damage

lie in the comprehension of the hearera. Id.

Evidence of circumstances under which Ilbel

published competent to show meaning when

ambiguous. Julian v. Kansas City Star Co., 209 Mo.

12 Cur. Law. LIBEL AND SLANDER SS 5D.

589 meaning of ambiguous phrases,50 and to show loss of trade 51 or other evidence of damage words inoffensive on their face,54 a question of fact is presented. The question of whether an article was published concerning the plaintiff is a question of fact,50 unless there is no ambiguity as to the meaning of the language used.51 The question of malice is for the jury52 and is properly submitted where in the publication of judicial proceedings53 a pleading is omitted,54 or an article given undue prominence,55 or an account of judicial proceedings has been unfairly abridged.56 If the facts are uncontroverted, an occasion of privilege is determined by the court,57 but where the evidence is uncertain and conflicting, the jury should determine if the statements were privileged.58 Some state constitutions make the jury judges of the law in libel cases,59 and in such states the jury is not bound by the instructions.70 The instructions should conform to the issues raised by the pleadings71 and evidence,72 should properly define the tort,73 should not give undue prominence to a

35, 107 SW 496; Gordon v. Journal Pub. Co. \[Vt.\] 69 A 742. Libel based on newspaper article as to arrest of plaintiffs sister for latency held for jury whether publication of defaming plaintiff. \[Ried v. Howeth, 107 Md. 278, 68 A 566; Brown Merrill v. Post Pub. Co., 197 Mass. 185, 83 NE 419. \[S0. Julian v. Kansas City Star Co., 209 Mo. 35, 107 SW 496. Newspaper article saying that plaintiff "did well in a legislative way" * * * chief of police," * it was said of him that he was not a proper man for the position, etc., sufficiently double in meaning to warrant submission to jury, in view of condition of suspicion in public mind. \[Id. \[Ried v. Howeth, 198 Mass. 158, 84 NE 1018; Flowers v. Smith \[Mo.\] 112 SW 499; Gates v. Little, 36 Pa. Super. Ct. 422. Evidence sufficient to require submission to jury, Hubbard v. Allyn \[Mass.\] 88 NE 356. Question of whether article was published concerning plaintiff for jury where it made one reference to him by name and \[Julian v. Kansas City Star Co., 209 Mo. 35, 107 SW 496. \[Ried v. Howeth Poh.

portion of the evidence14 or assume controverted matters as proved,78 and should not be misleading.79 Reference to the costs of suit is improper.71 In admitting other publications as evidence of malice, the jury should be instructed not to give damages because of such other words.78 The right to open and close is with the party having the burden of proof.79 A new trial may properly be granted where newly-discovered evidence will change the result.80

Footnote 79: The author is grateful to the anonymous referee for his comments.

SS 6. \_Criminal libel and slander. The offense.\_See 10 C. L. #21.\_Statutory definitions of criminal libel substantially re-enact the offense as it existed at the common law.81 In Alabama the publication of a libel which may tend to provoke a breach of the peace is puishable,82 and an imputation of adultery in circulars which are distributed is punishable.83 In some jurisdictions a husband may be convicted of slandering his wife.84 The seizure of a person after admission to bail and forcing him to submit to the photographs and measurements under the Bertillon system

ister Newspaper Co. v. Worten, 33 Ky. L. R. \[ teacher had not "even the externals of re- 840, 111 SWV 693. Instruction not erroneous as authoring recovery without regard to weight of evidence when other instructions submitted that jury must base findings and welice such observation best evidence. Barry verdict on evidence. Childs v. Childs \[Wash.\] v. McCollom \[Conn.\] 70 A 1985.

94 P 660. Instruction submitting whether defendant knew plaintiffs were in business of buying hogs erroneous since such fact was not based on evidence. Dorn v. Cooper \[Iowa\] 117 NW 1. Instruction erroneous as excluding all evidence of good faith, in mitigation of damages. Flowers v. Smith \[Mo.\] 112 SWV 499. Where evidence showed without conflict that defendant knew or believed that plaintiffs were in certain business, instruction submitting that issue was erroneous. Dorn v. Cooper \[Iowa\] 117 NW 1.

73. Error to refuse to charge article as libelous per se. Dauphin v. Buhne, 153 Cal.

757, 96 P 880. In defining libel, definition should be limited to character of libel shown by evidence and instruction in libel for Injury to reputation is erroneous as including financial injury not alleged or proved. San Antonio Light Pub. Co. v. Lewy \[Tex. Civ. App.\] 113 SWV 574. Use of words "good name" equivalent to reputation in charge. Id. Requested charge properly refused. Id. Charge as to privilege being in language of statuto, refusal of instruction that substantial proof of defense of privilege was sufficient was proper. Id.

74. No comment on facts when instruction considered as whole, in violation of Const. art. 4, $ 16. Childs v. Childs \[Wash.\] 94 P 660.

01. Assumption of publication in charge not erroneous when undisputed. San Antonio Light Pub. Co. v. Lewy \[Tex. Civ. App.\] 113 SWV 574.

01. Requested charge as to existence of probable cause in publication of libel refused as misleading. San Antonio Light Pub. Co. v. Lewy \[Tex. Civ. App.\] 113 SWV 574.

01. Requested charge as to existence of probable cause in publication of libel refused as misleading. San Antonio Light Pub. Co. v. Lewy \[Tex. Civ. App.\] 113 SWV 574. Instructions are unflag since libelous matter did not refer to plaintiff. Flowers v. Smith \[Mo.\] 112 SWV 499. Instruction as to costs misleading since an offer to confess judgment had been made and award of nominal damages would not carry costs. Dorn v. Cooper \[Iowa\] 117 NWV 1. General instruction as to malice erroneous as being too broad and applying correct rules at to proof of malice to articles which were and were not actionable per se. Flowers v. Smith \[Mo.\] 112 SWV 499. Where a libel stated that school \[Geacher had not "even the externals of re- 840, 111 SWV 693. Instruction not erroneous as was rather a subject for jury's own observa- "weight of evidence when other instructions believe such observation best evidence. Barry verdict on evidence. Childs v. Childs \[Wash.\] v. McCollom \[Conn.\] 70 A 1985.

01. Dorn v. Cooper \[Iowa\] 117 NW 1.

01. Separate cause of action. Register Newspaper Co. v. Worten, 33 Ky. L. R. 840, 111 SWV 693.

01. Where the publication of a libel actionable per se is admitted, and justification pleaded, defendant has right to produce evidence first and right to open and close argument. Shelbley v. Fales \[Neb.\] 116 NWV 1035.

01. Where new evidence would amply substantiate defendant's plea in mitigation that plaintiff actually was unchaste. Raymond v. Ring, 112 NYS 1.

01. Criminal libel has been defined to be the maliceus defamation expressed by printing. writing, signs, pictures or the like tending to blacken the memory of one who is dead, or the honesty, virtue, Integrity or reputation of one who is alive, and thereby expose him to public hated, contempt or ridicule. Pech. Code 185, $ 335. Michael v. Bacon \[Ga. App.\] 63 SE 228. Definition as recognized at common law. Id. Libel is a malicious defendant expressed either by writing, printing, signs or pictures, tending to impeach the honesty, integrity, virtue or reputation of a person and expose him to public hated, contempt constitutes criminal libel."88 In some states the publication need not be false in order to maintain a prosecution.86 False statements are presumed to be malicious and wrongful unless privileged.87 Words which expose a person to contempt and ridicule are libelous per se,88 and in construing a doubtful word the court should take 'its ordinary meaning as it would naturally be understood by persons reading the article.89 The libelous document must have been published.90 The publication of judicial proceedings is privileged,91 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 89: The publication of judicial proceedings is privileged,91 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 89: The publication of judicial proceedings is privileged,93 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 89: The publication of judicial proceedings is privileged,94 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 89: The publication of judicial proceedings is privileged,95 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 89: The publication of judicial proceedings is privileged,96 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 89: The publication of judicial proceedings is privileged,97 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 90: The publication of judicial proceedings is privileged,98 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 91: The publication of judicial proceedings is privileged,99 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 92: The publication of judicial proceedings is privileged,99 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 93: The publication of judicial proceedings is privileged,99 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 94: The publication of judicial proceedings is privileged,99 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 95: The publication of judicial proceedings is privileged,99 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 96: The publication of judicial proceedings is privileged,99 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 97: The publication of judicial proceedings is privileged,99 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 98: The publication of judicial proceedings is privileged,99 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote 99: The publication of judicial proceedings is privileged,99 but comments on the motives of parties to a judicial proceeding and deductions drawn therefrom as to whether proceedings are in good faith are beyond the scope of privilege.92 Publications which are privileged as being in the discharge of a duty89 are strictly limited to the persons to whom the duty is owing.94

Footnote that the words were spoken to another person than the one alleged is error.\* Where the language is not libelous per se, its meaning is for the jury,\* but it is error to submit the meaning of unambiguous language libelous as a matter of law.\* Where the jury are judges of the law, the instructions are advisory only.\* Where the libel as circulated by defendant is alleged with exactness, variance with the original manuscript submitted to the printer is immaterial.\* $ 7. _Jactification or slander of title_,See 10 C. L. 622--An action for slander of tit'e is an action on the case for special damage by reason of the speaking or publication of the slander of the plaintiff's title,\* and it follows that actual malice and special damage is of the gist of the action.\* $ .

## 12 Curr. Law. Licenses $ 1.

- $ 1. _Definition and Nature_, 503.
- $ 2. _Power to Require and Validity of Statutes_, 504.
- $ 3. _Issumee and Revocation_, 600.
- $ 4. _Interpretation of Statutes and Ordinances and Persons Subject_, 600.
- $ 5. _Assessment and Recovery of License Fees; Prosecution for Failure to Pay,_ 602.
- $ 6. \_Effect of Failure to Obtain, 004.
- $ 7. _Disposition of License Moneys_, 004.
- $ 12. _The scope of this topic is noted below._\* $ 1. \_Definition and nature.\_See 10 C. L. 622--While a license is a privilege to do something which without such privilege would be unlawful,\[11\] the thing to be done may sometimes be prohibited solely for the purpose of giving rise to the necessity of the license.\[12\] The privilege granted is personal to the licensee\[13\] and cannot be assigned without the consent of the licensing authority,\[14\] nor can the personal representative of a deceased licensee receive the benefits of the license.\[15\] A license is not an appointment to office.\[16\] The distinction between regulatory fees and revenue taxes is considered in a subsequent section.\[17\] $ $ 3. _Porter v. State \[Tex. Cr. App.\]_107 SW_ $ 17. _Proof utterly irrelevant when witness_ $ 922, and the specific application of the general principles herein dealt with to particular subject-matter (see such topics as Attorneys and Counessors, 11 C. L. 332: Intoxi-a crime or misdemeanor, its libelous character must be referred to the jury as a question of fact. Michael v. Bacon \[Ga. App.\]_ $ 63 SE 228. _Language may be reasonably construed by jury as libelous when accusing a man of falsehood in dealing with employees._ $ 1d.
- 38. \_The scope of this topic is noted below.\[10\] $ 1. \_Definition and nature.\_See 10 C. L. 622--While a license is a privilege to do something which without such privilege would be unlawful,\[11\] the thing to be done may sometimes be prohibited solely for the purpose of giving rise to the necessity of the license.\[12\] The privilege granted is personal to the licensee\[13\] and cannot be assigned without the consent of the licensing authority,\[14\] nor can the personal representative of a deceased licensee receive the benefits of the license.\[15\] A license is not an appointment to office.\[16\] The distinction between regulatory fees and revenue taxes is considered in a subsequent section.\[17\] $ $ 3. _Porter v. State \[Tex. Cr. App.\]_107 SW_ $ 17. _Proof utterly irrelevant when witness_ $ 922, and the specific application of the general principles herein dealt with to particular subject-matter (see such topics as Attorneys and Counessors, 11 C. L. 332: Intoxi-a crime or misdemeanor, its libelous character must be referred to the jury as a question of fact._ $ 10 C. L. 1195; Pawnborders and Secondhand Designs, 10 C. L. 1147; Medicine and Surgery, 10 C. L.

## 2 Power to require and validity of statutes

See * \[52\].-It is a well recognized attribute of sovereign power to tax any occupation for the purpose of raising revenue, and such tax may be laid and collected in the form of a license fee \[18\]. The power to regulate includes the power to license as a means of regulation \[19\]. Any business the pursuit of which may be prohibited by the state as an exercise of police power may be licensed if not nalum in se \[20\], and even a prohibited business may be taxed \[21\].

The freedom from judicial control enjoyed by the legislature in regard to property taxes in general, subject only to constitutional limitations, does not extend to license, privilege and business taxes \[22\]. On the other hand, while license, privilege and business taxes are subject to such general constitutional limitations as those relating to the title and subject-matter of legislative acts \[23\], abridement of the natural rights of citizens \[24\], liberties guaranteed by the fourteenth amendment to the federal constitution \[28\], equality before the laws or the equal protection thereof \[26\], due process of law \[27\], retroactive laws \[28\], rights and privileges of citizens of other states \[29\], freedom of contract \[30\], inviability of contract \[31\], interference with interstate composures or privileges of a public officer, its object being to control the business and prevent its being conducted in manner injurious to the public weifare. People v. Rosenberg, 112 NYS 316.

Laws, p. 304), in so far as it enacts that every person, firm, or corporation desfiring to engage in fishing in the waters of Lake Erlegrport Storage & Van Co. v. Chicago, 235

Lills, 58, 85 NE 245.

Lips. Under Kirby's Dig. $ 5454, empowering citizens to regulate hotels, etc., hotels may be licensed. City of Helena v. Miller \[Ark.\] 114

Lipsense or authority to do so, and for such SUV 237.

Lipsense or authority shall pay the fee therein, specify, is valid. State v. Hanlon, 77 Ohio

Held subject to regulation by license: Prl-

Sto 19, 82 NE 662.

Vata decfectives. Fox v. Smith, 123 App. Div.

Sto, 108 NYS 181.

Pushing. Felton v. Atkinson, 123 Ay.

Lipsen \[Ga. App.\] 61 SE 27; Milton Schnater & Co. v. Grigaby, 113 NYS 548. Employment

Lipsen, 108, p. 271, c. 140, relative to allegation and agencies. City of Spokane v. Macho \[Vash.\]

proof of payment of annual license tax by 98 P 755.

Shusting business. Territory

v. Keenney \[Ariz.\] 95 P 93.

Deggs. McGlione

v. Womack, 33 Ky. L. R. 811, 864, 111 SWV 958.

Held not Subject To License: Real estate dealers. Hager v. Walker, 32 Ky. L. R. 748,

107 SWP 254.

Herschoelens. Ex parte Diehl \[Cal. App.\] 96 P 98.

20, Canning salmon. State v. Hume \[Or.\]

95 P 88.

21. Sale of liquor within 4 miles of schoolhouse, prohibited by law, held taxable. Foster v. Speed \[Tenn.\] 111 SWV 925. See Intoxl-

cating Liquors, 12 C. L. 332.

22. Hager v. Walker, 32 Ky. L. R. 748, 107 SWP 254.

01. Must not infringe Inhibitions against acts embracing more than one subject-matr.

ter. Carroll v. Wright \[Ga.\] 63 SE 260.

Acat Mar. i, 1906, to promote sheep industry and tax dogs does not violata such limitation. McGlione v. Womack, 33 Ky. L. R. 811,

864, 111 SWV 688. P. L. 161, requiring license of 'merhandise and real estate brokers, held

not violative of Const. art. III, SS 3, 6. Commonsult v. Black Co., 34 Pa. Super. Ct. 431,

24. Vibly v. State \[Miss.\] 47 S 465.

01. Hoyen v. Hector Iron Co., 103 Minn.

331, 115 NWV 167; Vibly v. State \[Miss.\] 47 S

465: Owens v. State, 53 Tex. Cr. App. 105, 113 SWV 1075.

26. Hardee v. Brown \[Fla.\] 47 S 834; Carroil v. Wright \[Ga.\] 63 SE 260.

roll v. Wright \[Ga.\] 63 SE 260.

V. Wright \[Ga.\] 63 SE 261.

V. Wright \[Ga.\] 63 SE 262.

V. Wright \[Ga.\] 63 SE 263.

V. Wright \[Ga.\] 63 SE 264.

V. Wright \[Ga.\] 63 SE 265.

V. Wright mereo,"22 and restraint of trade,"35 the legislature has a large discretion in the matter of such taxes,"44 unrestricted by the usual constitutional limitations applicable to property taxes in general,"45 one of the limitations most commonly invoked in this connection and held inapplicable being the limitation as to uniformity of taxes,"38 such limitation being limited to direct property taxes which are assessed and collected in the usual way."57 Occupations may be classified for the purpose of license taxation and regulation,"88 and subclassification within a class is also permissible,"89 but not always essential."40 The classification in either case must be reasonable and

32. See Commerce, 11 C. L. 643. Ordinance \[Ark. 509, 109 SW 293. Const. $ 171, provid-imposing license fee upon agents represent-ing citizens of another state who offer goods property subject to taxation, etc., held not to in one state for sale by sample held void. City of Kinsley v. Dyerly \[Kan.\] 98 P 228. Ordinance not applied to agents of foreign cooperation making no sales but taking orders for delivery of stoves similar to sample. Lee v. La Fayette \[Ala.\] 45 S 294. Grocer who simply delivered goods on payment of St. 19, $ 28 KB 66. Act to promote sheep in-purchase price for foreign corporation held engaged in interstate commerce, and not subject to ordinance imposing a license. Crum v. Prattville \[Ala.\] 46 S 160. Sale of picture frames by corporation held intrastate commerce where frames delivered to and re-cpleted for by agents solleting order and exhIbloted by them to the purchasers with the price and accepted by the latter. Dozier v. State \[Ala.\] 46 S 9. Under a feature requiring "transient merchants" to pay a license, a manufacturer who shipped ranges to itself in care of its agents, stored them in a business room, and supplied wagons for hauling, exhibiting for sale and selling purposes, was held not liable there. Clay v. Wrought from Range Co. \[Ind. App.\] 85 NE 119. Express companies doing an intrastate and also an interstate business not relieved. Hardee v. Brown \[Fla.\] 47 S 834. A correspondence school may be taxed by a state. International Text-Book Co. v. Lynch \[Yt.\] 68 A 541. S3, Owens v. State, 53 Tex. Cr. App. 108, 112 SW 1075.

01. Classification, amount and manner of collection is largely, if not entirely, within legislative discretion. Blackrock Copper Min. & Mill. Co. v. Tingsey \[Utah\] 98 P 180. An act imposing an annual license tax on corporations is not objectionable as depriving the corporation of its privileges in case of default of payment of the tax. IA.

01. Meushaw v. State \[Md. App.\] 71 A 457. No restriction to Utah Const. to prevent imposition of occupation, franchise or license taxee. Salt Lake City v. Christensen Co. \[Utah\] 95 P 523. Amenunt of license tax not controlled by general revenue law of state. Hardee v. Brown \[Fla.\] 47 S 834. Dog tax designed to remuernate owners of sheep killed by dogs held not within Const. $ 171, prohibiting levy of taxes except for public purposes. McGione v. Womack, 33 Ky.-L. R. $11, $64, 111 SW 688. Tax of $100 on business of Sass companies held not a property tax, and hence not within Const. art. 13, $ 1, requiring all property to be taxed in preoper-l loan to value to be ascertained as provided by law. City/of Los Angeles v. Los Angeles Independent Gas Co., 152 Cal. 765, 93 P 1006.

01. Limitation as to uniformity held inapplicable. Salt Lake City v. Christensen Co. \[Utah\] 95 P 523. Hardee's Fireport Storage & Van Co. v. Chicago, 235 III. 85, 85 NE 245; Waters-Pierce Oil Co. v. Hot Springs, 85 not arbitrary,\[41\] must be based on some reason suggested by a difference in the situation and circumstances of the subjects treated,\[42\] and must operate equally upon all within a class.\[43\] The fact that a discriminating tax applies to all persons of a given class does not render it any the less obnoxious as an unjust discrimination against a class of citizens.\[44\] An ordinance cannot make a particular act penal when done by one person and impose no penalty for the same act done under like circumstances by another.\[45\] One who has not been refused a license cannot attack the license law as discriminatory.\[46\] The fact that property is subject to an ad valoremi tax does not prevent the imposition of a tax upon the occupation in which such property is used,\[47\] and in some instances still another tax may be imposed for the privilege of using such property in certain places.\[48\] A tax on each vehicle used by hackmen has been held not to be double taxation within a state constitution.\[49\] Occupation or vocation taxes are not taxes upon labor or upon the right to work.\[50\]

The power to license and regulate cannot be used as a means of raising revenue,\[61\] and to be valid as a license tax it must be imposed upon the privilege of engaging in the particular business and not on the property pertaining thereto,\[52\]

same business otherwise than by proportion-

persons purchasing assignments of wages, ing the tax upon any business to the amount of business done. City of Los Angeles v. Los Angeles Independent Gas Co., 152 Cal. 1075.

765, 93 F 1006.

41. Carroll v. Wright \[Ga.\] 63 SE 260.

Legislative may not impose different taxes on real estate dealers in cities of different classes. Hager v. Walker, 32 Ky. L. R. 748, 107 SWP 254. Const. art. 2, 5 18, providing that no privileges or immunities shall be granted to any citizen or class of citizens which upon the same terms shall not equally belong to all citizens, held to prevent arbitrary and unreasonable discrimination against persons. Waters-Pierce Oil Co. v. Hot Springs, 85 Ark. 509, 109 SWP 293. Lf.

42. V. Aniston \[Ala.\] 46 S 237. Pe-

189, so graduated as to make smaller business pay in proportion 100 per cent more than the larger business, held not an equitable graduation, as required by art. 229 of La. Const. of 188, for protection of citizens against arbitrary taxation. State v. Pinck-

43. Municipal ordinance classification of packing house agents on basis of those who sell fresh meat in city and those who do not is not so arbitrary on its face as to require court upon mere inspection to declare it void. City of Savannah v. Cooper \[Ga.\] 63 SE 188. Tax for revenue on commission merchants of $200 per year held reasonable. Meushaw v. State \[Md.\] 71 A 457.

01. City of Spokane v. Macho \[Wash.\] 98 F 755.

01. When exercising power to regulate business, a municipality may classify subjects of legislation, but law must treat alike all of a class to which it applies, and must bring within its classification all who are similarly situated or under the same condition. City of Spokane v. Macho \[Wash.\] 98 P 756. Under Kentucky constitution, cities of one class may require different amounts of license taxes on same calling from cities of another class, but license fees imposed upon any such calling must be uniform in sense that same fee must be charged upon every person engaged in such calling. Hager v. Walker, 32 Ky. L. R. 748, 107 SWP 254. Act 29th Leg. p. 217, e. 111, imposing tax on 12 Cur. Law. LICENSES SS 2. 597 but the power and authority to license and regulate necessarily implies the right to charge and fix the amount of a license fee.\[53\] Such fee must be reasonable \[54\] with reference to the expense of enforcing the regulation,\[55\] and fees in excess of those necessary for regulation are significant of an intent to raise revenue.\[56\] The rule as to reasonable proportion between the tax and the expense of regulation does not apply to revenue taxes.\[57\] Regulations imposed under the police power must be reasonable with reference to the health, safety and comfort of the public,\[56\] and legitimate callings cannot be prohibited under the guise of regulation;\[50\] but lines of business harmful to public morals or productive of disorder may be so highly taxed as to limit or discourage this business.\[60\] Reasonableness depends upon the circumstances of the case,\[61\] and the courts will not interfere on the ground of unreasonableness except in cases of manifest abuse of discretion on the part of the licensing authorities.\[62\] The rule as to certainty in the description of the acts to be performed

01. State v. Cedaraski, 80 Conn. 478, 69 A

Rixing amount of regulatory tax on street cars. Id. Fact that construction of tracks casts burden of travel upon street outside SEC 138: Hager v. Walker, 82 Ky. L. R. Tata, tracks cannot be considered. Id. 107 SW 524. Ordinance passed by city law. 56. See post, SS 4.

ing less than 3,000 inhabitants, imposing a license tax of $50 upon express companies, gas companies held valid. City of Los Angeles Independent Gas Co., 152 \[Fla.\] 46 S 630. An ordinance requiring

Stokes v. Los Angeles Independent Gas Co., 152

borkers engaged in making chated mort mortgages

58. License ordinance which is unreasonably long to secure a license as a condition precedent to doing business within the Bloomfom, 137 Ill. App. 488. Statute (Laws municipally is not invalid because the li-)

1905, p. 1287, c. 752), requiring persons en-cense fees is fixed at as high a figure as $250.

gaging in business of undertaker to have Chambers V. Cincinnati, 11 Ohio C. C. (N. S.) licenes as emblamers, and 3 years' employment as assistant, held invalid. People v. merchant, regardless of number of days in

Ringe, 125 App. Div. 592, 110 NYS 74. State which he engages in his business, held unrea-

constitution held to authorize tax on every sonable and invalid. Endelman V. Blooming-

business and person in any amount not so ton, 137 Ill. App. 488. Regulatory tax of $5 per

unreasonable or arbitrary as to amount to a day upon distributive advertising, without

confacation or property or denial of right to reference to amount of advertising, held un-

engage in particular trade or profession. reasonable, prohibitory and void. Common-

Hager v. Walker, 32 Ky. L. R. Tata, 107 SW

wealth v. Jackson, 34 Pa. Super. Ct. 178.

55. License fee of $2.50 per one-horse and

in making chated mortgages or salary loans

$5.00 per two-horse vehicle held reasonable.

to secure a license as a condition precedent

Kissinger v. Hay (Tex. City. App. 113 SW

1005. License tax on "business, trade, profession or calling" not imposed for regu

to keep records of the name of each pligger, tion, but revenue. Salt Lake City. Christ-

ensen Co. (Utah) 95 P 623, $25 license fee

on hotels not shown to be excessive, though

and a description of the articles pligeded, evidence tended to show that no additional

which record shall be filed in the office of the policemen or sanitary officers had been emb

city auditor and be open to inspection by the plogged for purpose of inspection and enforce-

mayer and chief of police; but a provision

ment of sanitary measures. City of Helena

v. Miller (Ark.) 114 SW 237. $50 license

man his wife must sign the application for

fee on oil vagons held excessive. Waters-

Pierce Oil Co. v. Hot Springs, 85 Ark., 609.

nati, 11 Ohio C. C. (N. S.) 273.

109 SW 293. In action to recover tax on tele-

50. Hager v. Walker, 38 Ky. L. R. Tata, 107

graph and telephone poles, afflavid of defense

sense alleging that tax is over twenty times

monwealth V. Jackson, 34 Pa. Super. Ct. 118.

as much as is necessary for costs of inspection held sufficient. Collingdale Borough v.

standing in certain street hold not prohibl-

Keystone State Tel. d. E. T. Co., 38 Pa. Super.

Ct. 351. Annual license tax on street cars

compatplates not only inspection but also

regulation and supervision. Gettysburg

Borough v. Gettysburg Transit Co., 36 Pa.

Super. Ct. 588. Reasonableness of regulatory

tax on street cars must be considered in con-

nection with other fees charged for inspection and supervision of poles and wires, since

costs of general regulation are cut down pro

tanto by fees exacted for such specific matters. Id. Probable cost of maintaining street

outside car tracks cannot be considered in

Tranist Co., 36 Pa. Super. Ct. 598.

thereunder applies to licensing statutes and ordinances,88 but the fact that a law imposing an annual license tax is somewhat crude and imperfect and not the best that could be devised for the purposes of raising revenue cannot affect its validity.84

Where uniformity is required of occupation taxes, such a tax is invalidated by arbitrary exemptions,95 but in most of the states liberal exemptions are allowed,96 the rule being, as in the case of the imposition of a tax, that an exemption accorded to persons or with reference to things as a class and not of a class will be upheld if it operates equally upon all subjects within such class.97 A license tax may be imposed in lieu of and to the exclusion of all other taxes.98

The power to impose license and privilege taxes may be delegated to municipal corporations,99 with full discretion as to the issuance of the license and the amount of the tax or fee,70 to be exercised by municipal officers.71 This, however, does not mean that arbitrary power may be so granted,72 or that it may be exercised in an arbitrary manner by such officers,78 but the courts are slow to review their action.74

Footnote 108: The author is grateful 19 Cur. Law. LICENSESS SS 2 599

In all cases the authority of the municipality is dependent upon charter or statute," and must be exercised in the manner prescribed," and while in some cases a municipality may impose an occupation or business tax, notwithstanding a license previously granted by the state," it can neither require a license of one holding an exempting permit from the state " or where such a license is expressly prohibited by statute," nor license illegal occupations " or acts." A municipality may impose a regulatory license tax under a general welfare clause," but cannot impose revenue tax under such clause " nor can it tax for revenue under the power to regulate." A municipality cannot be authorized to levy a tax for revenue outside of its territorial jurisdiction." The extent of the licensing powers of a municipality under a particular charter or statute is purely a matter of construction."

prescribing a license fee cannot be reviewed as it is not a judicial question. State v. Cedersak, 80 Conn. 478, 69 A 19.

75. Right of certain cities to license businesses, trades, occupations and profession, not narrowed but extended by later repelling and reenacting statute. City of Louisville v. Roberts & Krieger, 32 Ky. J. A. R. 823, 106 SWV 1197. The "Act respecting licenses in cities, townships, incorporated towns, incorporated towns, incorporated by townships" (P. L. 1805, p. 360), supersedes section 22 of the township act (P. L. 1899, p. 380), so far as relates to the licensing of hacks, omnibuses and other vehicles and the imposition of penalties for failure to take out licenses therefor. Lakewood Tp. v. Haven \[N. J. Law\] 88 A 113. Authority of municipality is derived solely from legislature and coextensive only with the legislative grant. Town of Houma V. Houma Lighting & Ice Mfg. Co., 1911 La., 21, 46 842. Act No. 1185, p. 214, 71 1858. Act No. 117, p. 24.7 of 1902, and Act No. 142, p. 313, or 1904, are general statuses applying to municipal corporations; but Act No. 117, p. 387, of 1988, is a statute making special provision for levy and collection of license, taxes by and for both the state and municipal and parochial corporations, and its provisions control those of the other statutes with respect to the subjects included. Id. Provisions of Act No. 171, p. 387, of 1988, requiring granting of licenses as applies as well to municipal licenses as static licenses. Id.

01. Act No. 171, p. 387, of 1989, requires municipalities to license "wholesale and retail businesses separately, and a wholesale and retail license" is invalid and cannot be enforced. Town of Houma V. Houma Lighting & Ice Mfg. Co., 1911 La. 21, 46 842.

01. Tax on agents of packing houses held not invalid for this reason. City of Savannah v. Cooper \[Ga.\] 63 SE 138.

01. Confedarets selling "near beer." Burch v. Ollia \[Ga. App.\] 62 SE 666.

01. Ordinance imposing "tax" for privilege of operating automobiles repealed by statute & 620.

forbidding requirement of license from motor vehicles (Laws 1994, c. 538, p. 2111). City of Buffalo v. Lewis, 121 App. Div. 163, 108 NYS 450.

80. Licensing sale of intoxicating liquor in prohibition territory held invalid. Burch v. Ocellia \[Ga. App.\] 62 SE 666.

01. General licensing powers conferred up- on municipalities by section 2669 (1536-327) do not render valid an ordinance whereby municipality permits a pedider, under the duty grant of power. City of Holton v. Tatus of a license, to occupy a portion of the 600

LICENESS SS 3.12 Cur. Law.

SS 3. \_Issuance and revocation.\_See 10 C. L. 887\_\_The wrongful refusal of a license does not justify the applicant in proceeding to act without a license,87 his remedy being by writ of mandamus to compel the issuance of the license,88 or it has been declared, by action for the damages sustained from such refusal,89 but with reference to such liability it has been held that an applicant cannot neglect to avail himself of his remedy by mandamus and thus lay up damages for himself by reason of the failure of ministerial officers to perform their duty.90 Express authority to revoke for cause is sometimes conferred upon municipalities.91 A bare license may at any time be revoked or terminated,92 but not so where the authority to revoke is expressly qualified.93 Notice is sometimes required.94 The payment of an occupation tax does not relieve the taxpayer from subsequent regulation.95 The right to enjoy a privilege under a municipal license is not property of such a character that a court of equity will protect it after an implied revocation of the license.96 A license is not necessarily revoked ipso facto by violations of the law and regulatory provisions by the licensee.97 Proceedings to review revocation of a license and to compel reissue abate upon the death of the licensee.98

SS 4. \_Interpretation of statutes and ordinances and persons subject.\_See 10 C. L. 628

--Judicial construction of particular statutes and ordinances is determinative of questions relative to the time within which a licensing statute becomes operative,99 the scope of the classification,1 acts authorized by the license,2 the manner of com 12 Cur. Law. Licensees $ 4. 601

puting the license tax,\* and persons exempt.\* Statutes or ordinances regulating the inherent right to follow an honest employment approach an abridgement of constitutional rights, and are strictly construed.\* So, also, a statute or ordinance providing for the punishment of persons engagirg in work without a license is penal, and will be strictly construed against the government,\* and hence an act which is not within the spirit of the statute, though within its letter, will not be construed as included in the enactment,\* but such statutes or ordinances will be construed, nevertheless, according to the manifest extent of the legislative body.\* The grant of a privilege in consideration of compensation will not of itself operate as a release of the right subsequently to enact license fees.\*

The distinction between license taxes as such and taxes for revenue is that in the former the revenue is a mere incident to regulation, while in the latter the rev- and thus the same is true.

- and tank of apparatus sold to customer held tomers by filling tanks weekly under a pre-, two arrangement, held not to require a "work of plumbing" within peddier's license. If. One maintaining ball growth and pollution on his own private of Columbia, 30 App. D. C. 515. Selling coca \*cola in bottles held not selling at retail occupation and not a keeper, propriter, or within Clarksdale charter and ordinances.
- Sharcer v. Davis, 10 Ohio C. C. N. S. 60. having store in which he kept sewing machines and who employed agents on commission to travel about and sell such machines \*machedached \*m 602 LICENSES SS 5. 12 Cur. Law.

enue is the primary object;\[10\] and the real purpose of the tax is determinative of its nature, regardless of the disposition of the proceeds thereof,\[11\] and regardless, likewise, of the name by which the tax is called,\[12\] though such name may, in a proper case, be considered, in arriving at the legislative intent,\[13\] and in some cases the expressed purpose of the tax is held to be determinative.\[14\] Where any imposition is laid upon persons or property under a general taxing ordinance, the only conclusion that can be drawn is that such tax is laid for revenue purposes alone unless the contrary is made to appear,\[18\] but specific reference to regulation is not essential to constitute a tax a regulatory one,\[18\] and where the tax will be valid if regulatory and invalid if for revenue, the presumption is that it is for regulation where there is nothing to indicate a contrary intent.\[17\]

SS 5. _Assessment and recovery of license fees; prosecutions for failure to pay,\[26\]_

10 C. L. 430--A municipal ordinance is a state law within the meaning of an act. making the violation of a state licensing law a crime.\[18\] Payment of license taxes may be enforced by fine and imprisonment\[19\] or by legal process issued for its collection,\[20\]

10. City of Buffalo v. Lewis, 192 N. Y. 193, cases of violations of California license 84 NE 809; Ex parte Woods, 62 Tex. Cr. App. 675, 108 SW 111. See, also, State v. Cedar. 19, Salt Lake City v. Christensen Co. ask, 80 Conn. 478, 68 A 19. Act (Lewis 1907, U\[tah\] 95 y 623. Ordinance is not invalid p. 212, c. 112) Imposing license tax on sellers of Uno, Ino, Frosty & Timpo may not be prisonment for failure to pay a license, treated under police power as it was passed which penalty is not imposed for a failure solely as tax and not as regulation. Ex parte to pay taxes generally. 1d. Subjecting VWoods, 52 Tex. Cr. App. 675, 108 SW 1171.

01. Direction of ordinance imposing tax

fusaid to pay license does not constitute "im-on motor vehicles, that proceeds shall be

prisonment for debt." Ex parte Diehl \[Cal. placed in fund for repair of streets, held\]

mod. 56 P 98.

not significant of purpose to impose revenue

tax as distinguished from license tax. City

of Buffalo v. Lewis, 192 N. Y. 193, 84 NE 809.

12. Designation of burden imposed as

"tax" does not render such burden a tax for revenue, where plain purpose of the impo-sition is to regulate or probloch. City of Buffalo v. Lewis, 192 N. Y. 193, 84 NE 809.

13. Failure to use word tax in one author, limiting statute and use of such word in a sub-sequent statute is significant to intent of second statute to authorize tax for revenue. Meanwhile v. State \[Md.\] 71 A 457.

01. Tax expressly stated to be for revenue held a revenue tax. Titushville v. Gahan, 84 Pa. Super. Ct. 613.

01. License tax on circuses. Robinson v. Norfolk, 108 N. Y. 14, 60 SE 762. To construe a general taxing ordinance as a police ordinance it must be shown that the tax collected thereunder is donated to the expense incident to carrying out its provisions, other-wise there would be nothing to distinguish a revenue ordinance from a police ordinance. City of Los Angeles Inde-pendent Gas Co., 152 Cal. 765, 93 P 1006; Robinson v. Norfolk, 108 N. Y. 14, 60 SE 762. An ordinance Imposing a license on vehicles making no provision for inspection and expressy providing that fund be applied to street held an attempt to tax rather than to regulate,\[18\], but specific reference to regulation is not essential to constitute a tax a regulatory one,\[18\] and where the tax will be valid if regulatory and invalid if for revenue, the presumption is that it is for regulation where there is nothing to indicate a contrary intent.\[17\]

SS 5. _Assessment and recovery of license fees; prosecutions for failure to pay,\[26\]_

10 C. L. 430--A municipal ordinance is a state law within the meaning of an act. making the violation of a state licensing law a crime.\[18\] Payment of license taxes may be enforced by fine and imprisonment\[19\] or by legal process issued for its collection,\[20\]

10. City of Buffalo v. Lewis, 192 N. Y. 193, cases of violations of California license 84 NE 809; Ex parte Woods, 62 Tex. Cr. App. 675, 108 SW 111. See, also, State v. Cedar. 19, Salt Lake City v. Christensen Co. ask, 80 Conn. 478, 68 A 19. Act (Lewis 1907, U\[tah\] 95 y 623. Ordinance is not invalid p. 212, c. 112) Imposing license tax on sellers of Uno, Ino, Frosty & Timpo may not be prisonment for failure to pay a license, treated under police power as it was passed which penalty is not imposed for a failure solely as tax and not as regulation. Ex parte to pay taxes generally. 1d. Subjecting VWoods, 52 Tex. Cr. App. 675, 108 SW 1171.

01. Direction of ordinance imposing tax 12 Cur. Law. LICENESES $ 5. 603

and both the tax and the penalty for its nonpayment may be made a lien upon property.21 On a prosecution for engaging in a business without a license, the defendant's failure to secure a license must be alleged.22 On a prosecution for violation of a license law, the burden is upon the prosecution to make out its case,23 but when an ordinance prescribes separate offenses, proof of a single offense is sufficient.24 The burden is upon the defendant to show the unreasonableness of the tax.25 Partial failure to perform duties of regulation is not alone a defense to an action to recover a license fee.26 On the question of whether a given occupation comes within a particular class of which a municipal occupation tax is required, evidence which tends to show the character of the business is admissible,27 but the licensee's belief as to the scope of his license will not excuse a plain violation of the law.28 In some instances the enforcement of an invalid license ordinance will be enjoined,29 but it is held that enforcement by criminal prosecution will not be enjoined,30 and that criminal or other prosecution will not be enjoined after an implied revocation of a license.31 In a suit for an injunction against the sale of the complainant's property, the defendant has the burden of establishing any other charge against the property than that for which the assessment was made.22 The form of prosecution is sometimes v. Chastain, 19 Or. 176, 23 P 963; City of Empora v. Becker, 76 Kan. 181, 90 P 798, 12 clal and ministerial functions to authorize L. R. A. \[N. S. 346\]. The last cited case ordinance to issue tax execution. Carroll v. holds that honest belief that the employer is a licensed dealer ls no defense, but a contrary view is indicated in Tardiff v. State, 23 Tex. 169, 62 Am. Dec. 550. These cases have most frequently arisen in connection with the unlicensed sale of liquors (Abel v. State, 90 Ala. $31, 8 S 760; State v. Keith, 87 180, Ark. 96; Johnson v. State, 37 Ark. 98; Baird v. State, 52 Ark. 326, 12 SVW 566; Com. v. Hadley, 11 Mete. \[Mass.\]; F. People v. Mete., 95 Mcln. 121, 54 NWW 639; People v. De Groot, 111 Mich. 245, 69 NWW 248; Isbell v. State, 13 Mo. 86; Hays v. State, 13 Mo. 246; State v. Bryant, 14 Mo. 340; Board of Excls cse v. Dougherty, 55 Barb. \[N. Y. J. 832; French v. People, 3 Park. Crim. Rep., 114; State v. Chastain, 19 Or. 176, 23 P 968; Tarr. diff v. State, 23 Tex. 169, 62 Am. Dec. 560; La Norris v. State, 13 Tex. App. 83, 44 Am. Rep. 698; Davidson v. State, 27 Tex. App. 262, 8 C 2694, Imposing license fee on Hinterant ven-11 SVW 371; State v. Bugbee, 27 Tex. 82; R.-ors of drugs, etc. State v. Steward \[Iowa\] v. Howard, 45 U. C. Q. B. 346), but the same rule has been applied to merchants (Clity of Empora v. Becker, 76 Kan. 181, 90 P 78, 12 L. R. A. \[N. S. 3\] 946; Campbell v. Anthony, 40 Kan. 652, 20 P 492), commission merchants (Elisberry v. State, 52 Ala. 8), street railway employees (Springfield v. Smith, 138 Mo. 645, 440 SWY 757, 60 Am. St. Rep. 559, 37 L. R. A. \[46\]; WYandotte v. Corrigan, 35 Kan. 21, 10 P 99), dealer la playing cards (Dentler v. State, 112 Ala. 70, 20 S 592), sewins machine (Mitchell v. Meridian, 67 Miss. 644, 7 S 493), insurance (Farmington v. Rutherford, 94 Mo. App. 328, 68 SWY 83), express (Montgomery v. Shoemaker, 51 Ala. 114), and railway agents, etc. \[Nashville, etc., R. Co. v. Atulls, 118 Alba. 852, 24 S 460). The contrary view is, however, more or less clearly indicated in some cases. State v. Woods, 40 La. Ann. 175, 8 S 548; Cincinnati v. Withers, 5 Ohio S. & C. P. Dec. 570; O'Rourke v. State, 6 Ohio C. C. 612; Troy v. Harris, 102 Mo. App. 51, 16 SWY 662; United States v. Paston, 1 Cranch C. C. 44, Fed. Cas. No. 16013; United States v. Shuck, 1 Cranch, C. C. 56, Fed. Cas. No. 16 604licenses to enter on land $ 1. 12 Cur. Law. made to depend upon the rights and questions involved.\[33\] A municipal corporation is not liable for threats made by officers against person pedding without a license,\[34\] or for seizure of property upon a tax execution issued under an invalid ordinance.\[35\]

$ 6. \_Effect of failure to obtain.\_See 10 C. L. 620.--Contracts executed by unlicensed persons are generally held valid in the absence of a manifest legislative intent to the contrary,\[36\] but the statutes of some states are held to invalidate such contracts,\[37\] and where such a contract is executed while an invalidating statute is in operation, it will not be validated by a subsequent general repeal of such statute.\[38\] Questions of fact involved in a defense of noncompliance with the statute are for the jury.\[39\] Where a license is not obtained there can be no obligation to pay for a license merely by reason of unlawfully engaging in business, and hence no civil action will lie for a license fee,\[40\] but in such case there may be criminal liability.\[41\] Licensees are sometimes given a right of action against persons usurping license privileges.\[42\]

$ 7. \_Disposition of license money.\_See 10 C. L. 620.--The disposition of license money depends upon the legislative intent with regard thereto.\[43\] For most intents and purposes,\[44\] a license, statute or ordinance need not specify the purpose to which the fee or tax is to be applied.\[45\] Dj\<nosition as affecting the character of the tax is treated in a previous section.\[46\]

LICENSES TO ENTER ON LAND.

$ 1. Nature, Creation, and Indicia of a Li- $ 1. 140 Other Estotes, 604. 1. 140.

and other states.\*\*\[81\]\*\*A license is a personal, revocable and nonassignable privilege conferred either by writing or parol, to do one or more acts on land without possessing any interest therein.\[48\] Whether a contract gives a mere license or more is a matter of interpretation.\[49\] A license is distinguishable from an easement \[50\] or a lease.\[50\] The nature of a license is not changed by the use of terms in the contract, which are ordinarily used in leases.\[51\] A ticket of admission to an entertainment is a mere revocable license,\[52\] and where a landlord demises a bedroom and permits the tenant to obtain water from other rooms in the house, such permission is a license.\[53\] A license is ordinarily revocable at the will of the licensor,\[54\] unless the license is coupled with an interest \[55\] or is based on a consideration.\[56\] There is an irreconcilable conflict of authority as to whether the incurring of expense by the licensee affects the power of revocation.\[57\] A conveyance by the licensor operates as a revocation.\[56\]

duty of the licensor to exercise care to protect the licensee from personal injury (see Negligence, 10 C. L. 922).

48. Yeager v. Tuning \[Ohlo\] 86 NE 657. License may be oral or written. Belzoni Oil Co. v. Yazoo, etc., R. Co. \[Miss.\] 47 S 468.

01. Construction of sewer by municipality with acquiescence of owner held more than mere license where owner orally gave right to construct in consideration of right to connect with sewer and to be exempt from assessments, such agreement written being enforceible. Alderman v. New Haven \[Conn.\] 70 A 626. Contract for sewer travel more than license being upon valuable consideration and binding both parties to respective obligations. Illinois Cent. R. Co. v. Sanders \[Miss.\] 46 S 241. Agreement for spur track construed as mere license. Belzoni Oil Co. v. Yazoo, etc., R. Co. \[Miss.\] 47 S 468. Not license coupled with interest or easement, there being no words of grant. Id.

01. Parol agreement by adjoining owners to erect and maintain telephone poles, to contribute to expense of strengthening wires and operating line, does not create easement but is mere revocable license. Yeager v. Tuning \[Ohlo\] 86 NE 657.

01. Agreement for bulletin board on roof of building for two years with right of access to erect and maintain signs, owner reserving right to make improvements or place lights thereon is a lease. United Merchants' Teaalty & Imp. Co. v. New York Hippocamp, 113 NYS 740.

01. R. H. White Co. v. Remick & Co., 198 Mass. 41, 84 NE 113. Where clause provided that defendant should not assign or transfer "this lease or contract, or sublet such premises, or any part of the same," that in case of breach plaintiff should have right to "reenter sald premises and remove" defendant and like terms. Id.

01. Buenalle v. Newport Amusement Ass'n \[R. I.\] 68 A 721.

01. Steph, 113. The name of a license is not changed by the use of terms in the contract, which are ordinarily used in leases.\[51\] A ticket of admission to an entertainment is a mere revocable license,\[52\] and where a landlord demises a bedroom and permits the tenant to obtain water from other rooms in the house, such permission is a license.\[53\] A license is ordinarily revocable at the will of the licensor,\[54\] unless the license is coupled with an interest \[55\] or is based on a consideration.\[56\] There is an irreconcilable conflict of authority as to whether the incurring of expense by the licensee affects the power of revocation.\[57\] A conveyance by the licensor operates as a revocation.\[56\]

duty of the licensor to exercise care to protect the licensee from personal injury (see Negligence, 10 C. L. 922).

48. Yeager v. Tuning \[Ohlo\] 86 NE 657. License may be oral or written. Belzoni Oil Co. v. Yazoo, etc., R. Co. \[Miss.\] 47 S 468.

01. Construction of sewer by municipality with acquiescence of owner held more than mere license where owner orally gave right to construct in consideration of right to connect with sewer and to be exempt from assessments, such agreement written being enforceible. Alderman v. New Haven \[Conn.\] 70 A 626. Contract for sewer travel more than than license being upon valuable consideration and binding both parties to respective obligations. Illinois Cent. R. Co. v. Sanders \[Miss.\] 46 S 241. Agreement for spur track construed as mere license. Belzoni Oil Co. v. Yazoo, etc., R. Co. \[Miss.\] 47 S 468. Not license coupled with interest or easement, there being no words of grant. Id.

01. Parol agreement by adjoining owners to erect and maintain telephone poles, to contribute to expense of strengthening wires and operating line, does not create easement but is mere revocable license. Yeager v. Tuning \[Ohlo\] 86 NE 657.

01. Agreement for bulletin board on roof of building for two years with right of access to erect and maintain signs, owner reserving right to make improvements or place lights thereon is a lease. United Merchants' Teaalty & Imp. Co. v. New York Hippocamp, 113 NYS 740.

01. R. H. White Co. v. Remick & Co., 198 Mass. 41, 84 NE 113. Where clause provided that defend 606 LIONS SS 1. 12 Cur. Law.

SS 2. \_Rights and liabilities of licensees.\_See 10 C. L. 631.--A licensee acquires only such rights as are conferred by the terms of the license.59 The licensee is entitled to notice of revocation and a reasonable time to remove structures placed on the land,60 but a conveyance is notice of revocation.61 A licensee having constructed a boom in a navigable stream under a license from the riparian owner is estopped from denying the rights of such owner or those of any one claiming under him.62

LIONS.

- 1. Definition and Nature, 606.
- 3. Rank and Priorities of Lions, 607.
- 2. Common-Law, Equitable, and Statutory
- 4. Walver, Existingishment, Discharge, and Licas, 606.
- 4. Common-Law Licens, 606.
- 5. Enforcement and Protection of Licas, 605.
- 5. Statutory Licens, 607.
     12 Cur. Law. LIENS SS 3. Generally a lien on real property cannot be created by parol," but a lien on personality may be." A lien upon land as a general rule includes the growing timber thereupon when the lien is created," but there may be circumstances to rebut this presumption," or the right may be expressly or impliedly waived." A guardian of infants as lessor of premises has no power in the absence of express authority of the court to agree to a lien on improvements made by the lessee."

(SS 2) \_B. Equitable liens.\_See 10 C. L. 633--Equity will not ordinarily affix a specific lien for a general indebtedness in the absence of an intent by the parties that a lien arise," or unless the property charged was specifically benefited." A constitutional provision, rendering a contract for the payment of a tax or other lien void, does not apply to an equitable lien." A vendor's equitable lien to secure the price does not arise until the purchaser defaults."

(SS 2) \_C. Statutory liens.\_See 10 C. L. 633--Among the specific liens created by statute are those of livery stable keepers " and mechanics of every sort." A special lien provided by statute does not extend to property in custodia legis." To perfect a statutory lien every requirement must be complied with." The right to perfect a lien given by statute is ordinarily a privilege limited to the claimant, and any assignment thereof before record carries only the chose in action constituting the basis of the intended lien." A statutory provision for the filing of the evidence of debt or charge secured by the lien is not retroactive."

\_Construction.\_See 10 C. L. 633--Lien laws being in derogation of the common law must be strictly construed," and the enumeration of the property upon which a lien may be held is exclusive."

SS 3. \_Rank and priorities of liens.\_See 10 C. L. 633--A parol promise of a debtor that another who advances money shall be substituted and have the superior lien on the premises is not effective." A lien of an execution creditor is superior to that of a

70. Lane v. Lloyd, 33 Ky. L. R. 570, 110 SW

01.

01. Owner of county bonds adjudged trustee for payment of debt. Walker v. Harris Ex'rs \[Ky.\] 114 SW 775.

01. American Nat. Bank v. First Nat. Bank (Tex. Civ. App.) 114 SW 77.

01. Mortgagor may have express or implied right to sell timber. American Nat. Bank v. First Nat. Bank (Tex. Civ. App.) 114 SW 176.

01. Mortgagor may be estoped from asserting lien on timber. American Nat. Bank v. First Nat. Bank (Tex. Civ. App.) 114 SW 176.

01. Course of dealing which would estop landlor from asserting lien against purchaser for value from tenant would be equally effective in estopping lienholder from asserting lien upon timber disposed of by mortgagor and purchased in good faith. Id.

01. Hughes v. Kershow, 42 Colo. 210, 93 P 1116.

01. Where decedent agreed to will to plain-tiff his property in consideration of her care but destroyed will devising certain lot and personally, plaintiff on recovering reasonable value of her services was not entitled to lien against lot, no intent to create lien upon specific property appearing. Johnston v. Myers \[Iowa\] 116 NW 600.

01. Where a mother advances money to a son for the acquisition of real property antiplating a mortgage and the son purchases the property but refuses to execute the mortgage, she is entitled to an equitable mortgagee who loans money to pay debts superior to the lien of the execution creditor.89 Statutes sometimes make provision for priorities in liens created thereby,90 and laborer's liens are ordinarily given superiority.91 Where a stable keeper parts with possession of a horse upon which he has a lien for keep, the title of a purchaser of the horse for value and without notice is superior to the lien of the stable keeper.92

SS 4. \_Waiver, extinguishment, discharge, and revival.See 10 C. L. 654--When the provisions of a contract relied upon as constituting a waiver of the statutory lien are ambiguous, the doubt should be resolved against the waiver.93 An agreement by the original contractor not to enforce a lien is binding upon a subcontractor, whose only connection with the owner is through such contract.94 A lien may be extinguished by a sufficient tender.95 The voluntary surrender of the possession of the property,96 or the wrongful conversion of property.97 A demand for more than the amount due does not vitiate the lien.98 A lien upon the building of a lessee as personality terminates by the failure of the lessee to remove the improvements at the expiration of his lien.99 A statutory lien may be lost by the failure to record the lien within a prescribed period.1

SS 5. _Enforcement and protection of liens.See 10 C. L. 654--The foreclosure of a lien is wholly inoperative upon the rights of a person not a party to the suit.2 Where property is seised under execution, the lien claimant may come into court and assert his rights._

Footnote 95: http://www.lien.com/enforcement/

_Statutory proceedings to enforce or foreclose.See 10 C. L. 654--The method of enforcement of statutory liens is often provided by statute.4 In Alabama a black-smith's lien is enforcible by attachment proceedings.5 In some states an execution is authorized to satisfy a deficiency on the foreclosure.6_

Footnote 96: http://www.lien.com/enforcement/

_89. Where mortgagee simply loaned money to pay debts and did not purchase or take assignment thereof, and mortgagee had no_

_89. May affect tender. Livery stable keepclaim as against execution creditors to be substituted to rights of original creditors. Lane v. Lloyd, 33 Ky. L. R. 570, 110 SW 401._

_90. Steam traction engine, a farming utensil withen meaning of Civ. Code, art. 3259, or art. 327, and privilege of vendor primes that of lesser of land on sale of such machinery. Lahn & Co. v. Carr, 129 La. 797, 45 S 707._

_91. A laborer's lien has priority of a mortgage given to secure the payment of the purchase money. Though foreclosed and levy fl. fa. before laborer's lien foreclosed and levy levied. Balsden & Co. v. Holmes-Hartsfield Co. \[Ga. App.\] 60 SE 1031. Materialman's lien superior to lien of purchase money mortgage where the material is furnished without notice of the mortgage. Civ. Code 1855, $ 2804, par. 4. Balsden & Co. v. Holmes-Hartsfield Co. \[Ga. App.\] 60 SE 1031._

_92. Moore v. Whitehead, & Ohio N. P. (N. S.) 60._

_93. Central Illinois Const. Co. v. Brown Const. Co., 137 Ill. App. 532._

_94. Completed work when offered to company for acceptance shall be delivered free from any and all items, claims, or encumbrances of any description, not sufficient to constitute express or implied waiver. Id._

_94. Central Illinois Const. Co. v. Brown Const. Co., 137 Ill. App. 532._

_95. Insufficient deposit to be accepted in full payment, a defective tender. Campbell v. Abbott, 111 NYS 782._

_96. Mulkey v. Thompson, 3 Ga. App. 522, 60 SE 223._

_97. Under express provisions of the Rev. Civil._

_98. Where mortgagee simply loaned money to pay debts and did not purchase or take assignment thereof, and mortgagee had no_

_99. A laborer's lien has priority of a mortgage given to secure the payment of the purchase money. Though foreclosed and levy fl. fa. before laborer's lien foreclosed and levied. Balsden & Co. v. Holmes-Hartsfield Co. \[Ga. App.\] 60 SE 1031._

_99. A laborer's lien has priority of a mortgage given to secure the payment of the purchase money. Though foreclosed and levy fl. fa. before laborer's lien foreclosed and levy. Balsden & Co. v. Holmes-Hartsfield Co. \[Ga. App.\] 60 SE 1031._

_91. Where a laborer's lien is foreclosed but unenforcible by levy. property being in possession of sheriff, the lien is not lost but may be placed in hands of spheriff with notice to hold proceeds until order of court. Id._

_94. Civ. Code 1855, $ 2805, giving special lien, may be enforced by retention of property or as provided by $ 2816. Mulkey v. Thompson, 3 Ga. App. 522, 60 SE 223._

\_95. In attachment to enforce blacksmith's lien, under Code 1896, $ 2753 12 Cur. Law. LIMITATION OF ACTIONS SS 1.609

\_Equitable remedies and procedure.\_See 10 C. L. 635--The enforcement of a lien may be defeated by laches,7 and such defense is available without being pleaded.8 A money judgment is proper in an equity foreclosure suit where the complainant loses the possession of the property.9 In a decree of sale of property it is the correct practice to determine the priority and order of payment of the different liens 10

Footnote 13: Curr. L. -- 39.

\_The scope of this topic is noted below.\_11

Footnote 13: Curr. L. -- 39.

\_The statutes; validity and application generally.\_See 10 C, L. 635--Status of limitation are usually held to be statutes of repose,12 applying to the remedy and not to the right,13 and, hence, are personal to the debtor.14 The statute limiting the time to attack land patents of the United States, however, operates in rem to validate the patent if not assailed in time.15 Limitation acts may be given retroactive effect.16

Footnote 13: Curr. L. -- 39.

1896, SS 2753, 2754. Mann Lumber Co. v. Bailey Iron Works Co. \[Ala.\] 47 S 325. When property level on is not liable to attachment because plaintiff has no lien, motion to dissolve attachment is proper remedy. Code 1896, 17 2753, 2754. Mann Lumber Co. v. Bailey Iron Works Co. \[Ala.\] 47 S 325. Plea to merits walder of defense that property is not subject to lien. Id. Finding that plaintiff is entitled to lien as claim- ed against property is surplusage, no such thing being required in blacksmith's liens. Id.

\*\*6. Under Rev. St. 1885, art. 1340, though judgment contains no provision thereof. Ryan v. Ralger \[Tex. City. App.\] 20 Tex. Ct. Rep. 716, 106 SW 750. Rev. St. 1885, art.

610 Limitation of actions $ 2. 19 Cur. Law.

Statutes prescribing shorter periods than the existing period prescribed may be made to apply to existing causes, providing a reasonable period for bringing action is given.11 A statute is never given retroactive operation unless there is an express provision or necessary implication that such was the legislative intent.18 Unless a contrary intention be expressed, new, re-enacted, or amended statutes are to be given prospective effect so as to extend the period as to existing causes to the full time prescribed by such statutes from the time they take effect.19 They are favored in law 20 and are said to be a property right,21 though not so in the sense of being within constitutional protection against impairment.22 They apply to actions, not to defenses,23 but a barred cause cannot be pleaded as set-off 24 unless otherwise provided by statute.25 The statutes are to be liberally construed and provisions excepting certain persons or classes from their operation are to be strictly construed.26 Short statutes are construed strictly.27 A statute limiting the period within which

effect as against the United States as though !uted after two years from date, held that it were valid when issued. Under Act of $ 4277 covered only mortgages securing !debts barred when the statute took effect, !ed States', !Chandler-Dunbar Water Power Co., !20 U. S. 447, 52 Law. Ed. 881. !mottage secured by a note not barred when !16 Mulvey v. Boston, !197 Mass. 178, 83 NE !402. !17 The legislature may shorten the period !and make the statute applicable to existing causes, provided a reasonable period in fixed !278, !2935-2974, relative to limitations made for commencing action on existing causes. !dams & Freese Co. V. Kenoger (N.D.) !16 ing before the amendment went into effect in view of pars. 2974 and 2423. Crowwell V. !20 U. S. !21 November 20, 2000. San Diego Reality Co. v. McGinn \[Cal. Comp.\] !21 November 20, 2000. San Diego Reality Co. v. McGinn \[Cal. Comp.\] !22 July 20, 2000. San Diego Reality Co. v. McGinn \[Cal. Comp.\] !23 July 20, 2000. San Diego Reality Co. v. McGinn \[Cal. Comp.\] !24 July 20, 2000. San Diego Reality Co. v. McGinn \[Cal. Comp.\] !25 July 20, 2000. San Diego Reality Co. v. McGinn \[Cal. Comp.\] !26 July 20, 2000. San Diego Reality Co. v. McGinn \[Cal. Comp.\] !27 July 20, 2000. San Diego Reality Co. v. McGinn \[Cal. Comp.\] !28 July 20, 2000. San Diego Reality Co. v. McGinn \[Cal. Comp.\] !29 July 20, 2000. San Diego Reality Co. v. McGinn \[Cal.

## 12 Cur. Law. Limitation of actions SS 2.

to attack judicial sales does not apply to a sale which the court had no jurisdiction to make.\[28\] The United States courts recognize the statutes of the several states and give them the same construction and effects as local courts.\[29\]

Statutes of limitation are not enforced in equity except by way of analogy to laches,\[30\] or in cases where jurisdiction of equity and law is concurrent,\[31\] or where the statute is by its terms applicable in equity.\[32\] One who resorts to equity to escape the defense of the statute cannot himself invoke it.\[39\]

\_The statutes do not run against the state.\_See 10 C. L. 037--This rule also applies to subordinate political bodies, including municipal corporations, with respect to litigation to enforce governmental rights.\[34\] The rule that limitations do not run against the state does not apply where the state holds the bare legal title,\[35\] nor where by statute they are made specifically to apply;\[36\] but a statute making limitations applicable as against the state will not be given such effect if it is repugnant to constitutional provision.\[37\]

## 13 Indiana & Arkansas Lumber & Mfg.

Actions. State v. Standard O11 Co. \[Tenn.\] 110 Co. v. Brinkley \[C. C. A.\] 164 F 963.

SWF 565. Property held in trust by district agricultural association being property of the state held by a public institution for public use, the statute does not run against the action to recover it whether the record little be held by the state at large or by a country or other official body. Sixth Dist. Code, SS 1691, requiring rescission for fraud to be promptly sought after discovery therewith Ann. St. 1906, p. 2344, providing that the statute shall not run against land given to public, pions, or charitable use. Tracy v. Bittle \[Mo.\] 112 SW 45.

may as a condition precedent to granting equitable relief to the owner's compel pay-ment of the mortgage, though by its terms the lion is barred. Hobson v. Huxitable, 79 Neb. 324, 116 W 378.

Federal courts sitting in equity are not bound by, but apply the statutes in analogy to, the doctrine of laches. It must appear that compliant was not guilty of laches. Redd v. Brun \[C. C. A.\] 157 F 190.

I claimant fall to discover fraud within the statutory period, he must plead and prove time when he discovered it and impediments which prevented earlier discovery. Id. If by the exercise of ordinary diligence he should have discovered it within the statutory period, he is guilty of laches. Held to show laches. Id.

31. Action to recover back money paid by mistake. Sternberg v. Sternberg & Co. \[N. J. Eq. \] 69 A 492. In action against directors of a corporation for misfeasance and mal-feasance, the remedy at law and in equity is concurrent and the statute is applicable in equity. People v. Equitable Life Assit. Soc., 124 Apr. Div. 171, 149 Nyst 45.

01. Under Civ. Code 1896, SS 674, the statute is made applicable to suits in chancey and the defense may be raised by defururter, when it appears on the face of the bill. Lady Enshey Coal, Iron & R. Co. v. Gordon \[Ala.\] 46 S 983.

01. United States & Mexican Trust Co. v. Delaware Western Coast. Co. \[Tex. Civ. App.\] 112 SW 447. Where failure of a contractor to perform his contract is urged against his prayer for equitable relief, he may not rely on limitations, though an action at law for damages would be barred. Id. Under Shannon's Code, SS 445, there is no limitation applicable to the state in civil
    Limitation vs, subject to same exceptions, governed by the law of the forum."...

A cause of action can accreu in but one place.30 Status in many states make a bar in the state where the cause of action arose effective in the forum,40 exception being sometimes made in favor of claims held from the time of their accrual by a citizen of the state where suit is brought.41 Part payment in the state where the cause of action arose tolls the statute and the claim is enforcible in another state.42

Footnote 42: Where a resident of Idaho goes to Washington and makes a partial payment on a Washington contract, upon his return to Idaho the contract as made follows him, and the statutes of Idaho hegin to run upon his re-entry into the state. Sterrett v. Sweeney \[Idaho\] 98 P 418.

The defense of the statute may be waived43 but such waiver must be definite.44 Defendant may become estopped to assert the bar of the statute.45

Footnote 43: See 10 C. L. 637. The various statutes prescribe periods of limitation for the different kinds of actions such as actions for the recovery of land,45 to determine adverse claims,47 for use and occupation

38. See Conflict of Laws, 11 C. L. 671.

01. In case of a note made payable in the state where the player lives, it arises in that state. McKee v. Dodd, 152 Cal. 637, 93 P 854.

01. "Ens arisen in another state" in Rev. St. 1887, $ 4079, providing that, when a cause accrued in another state is barred there, it cannot be maintained here, means the state in which the contract is to be discharged, and does not apply to an intermediate state through which the debtor may subsequently travel or reside for a sumlicent length of time to raise the bar before coming to this state. West v. Theis \[Idaho\] 96 P 932. Under Rev. St. 1887, $ 4079, "a cause of action arises" at the time and place in the state when and where the debt is to be paid, and the cause thus arising follows the debtor until it is barred in the state where it arose, or until the debtor has lived in this state until it is barred by its statutes. West v. Theis \[Idaho\] 96 P 932.

01. Where one acquired a cause of action by assignment after its accrual, even though he has always been a citizen of the state, he is not within the exception of Rev. St. 1898, $ 289, providing that, when a cause of action has arisen in another state and is there barred, no action shall be maintained there-on in this state, except in favor of one who was a citizen thereof and acquired the cause before its accrual. Lawson v. Tripp \[Utah\] 95 P 520. Code Civ. Proc. $ 361 provides that when a cause has arisen in another state and is barred there an action cannot be maintained in California except in favor of one who has been a citizen and has held the cause since it accrued, where a cause accrued in New York while defendant was in Europe and he afterwards lived in Hawaii until the notes were barred there.

Held the Hawaiian statutes did not bar an action in California. McKee v. Dodd, 152 Cal. 637, 93 P 854.

42. Where a resident of Idaho goes to Washington and makes a partial payment on a Washington contract, upon his return to Idaho the contract as made follows him, and the statutes of Idaho hegin to run upon his re-entry into the state. Sterrett v. Sweeney \[Idaho\] 98 P 418.

01. See 10 C. L. 637. Where several years after final report of a referee he filed a petition for compensation and plaintiff moved to have its allowance set aside, but on hearing it was reduced and subsequently moved for further reduction but did not alude to limitations, held, by the last motion,

# 12 Cur. Law. LIMITATION OF ACTIONS $ 2. 613

thereof "4" or damages for injuries thereto,"49 actions to set aside deeds,"50 to recover -escheated estates,"51 actions on contracts,"52 express or implied,"53 written 54 and oral,"54

chaser under deed at foreclosure sale in suit

Pa. 546, 69 A 72. Action for work done by mortgagor to redeem. Clapp v. Leavens

and material furnished on paving contract

\[C. C. A.\] 164 F 318. Possession of purchaser

acorves on 10th day of month after estimates

at foreclosure sale held adverse. Id.

were allowed and was barred in two years,

See, also, Adverse Possession, 11 C. L. 41.

under Laws 1895, p. 128, c. 8. Thornton v.

47. Action at law under Rev. Code Civ.

East Grand Forks \[Minn.\] 118 NW 834.

Proc. $ 675, to determine adverse claims, is

53. Where insurance company became in-foreverned by statutory sections providing for

volvent and unable to carry out endowment

limitations of actions. Burleigh v. Hecht

policy which it had agreed to set off at ma-

\[S. D.\] 117 NW 367.

turity against mortgage made by insured

48. Code, $ 4198, limiting right of action

to recover for use and occupation of property

from his obligation to pay instalments and

to five years, does not apply to suit to to quiet

the obligation of the company was for money

title. German v. Heath \[Howai\] 116 NW 1051.

had and received, barred in six years. Un-

Action for rents and profits against one who

lon Trust Co. v. Scott, 170 Ind. 666, 85 NE 481.

took possession of land as a bona flide pur-

Implied obligation of principal to reimbuse

chaser is barred in three years. Brown v.

surety who pays the debt is barred in two

Nelms \[Ark.\] 112 SW 378. Right to recover

years after return to state of principal.

rent for mill site and water privileges is

Bray v. Cohn \[Cal. App.\] 93 F 893.

barred in two years. Briggs v. Avary \[Tex.

54. Ky. St. 1938, 5 2515, barring actions on

Civ. App.\] 20 Tex. Ct. Rep. 728, 106 SW 904.

contracts in writing in five years, applies

49. Action for recurrent flowage of land

to action by administrator to recover value

caused by construction of core reducing works

of decedents support, to which decedent was

is not in trespass but to recover incidental

untiled under contract. Bryson's Adm'r v.

and consequential damage and is not gov-

Briggs, 32 Ky. L. R. 159, 104 SWV 982. Ac-

erned by Rev. St. Idaho 1837, 4 4054, limiting

tion against common carrier for injuries to

action in trespass to three years. Hill v.

hogs in transit under written contract held

Empire State Idaho Min. & Developing Co.,

governed by Ky. St. 1903, $ 2514, 15 year

158 F 881. For damages to land caused by

stature. Richardson v. Louisville & N. R.

construction of dam, five years. King v.

Co., 33 Ky. L. R. 916, 111 SW 848. Debt

Danville, 32 Ky. L. R. 1188, 107 SW 1189.

evidenced by warrants issued by a de facto

Where dyikes built along the bank of a river

munipled corporation is one evidenced by

were permanent structures and their effect

as instrument in writing and is not barred

was to deflect the current of the river against

by the two year statute. City of Carthage v.

the plaintiffs bank and undermine it, held

Burton \[Tex, City App.\] 111 SWV 440. Action

damages were recoverable in a single action

on town warrants commenced more than six

and action for trespass was barred in three

years after repudiation of the warrants by

years under Mansf. Dig. Ark. $ 4478. Gulf,

the town is barred. Howe v. Gunnison, 42

etc., R. C. O. v. Massey \[C. C. A.\] 161 F 72.

Colo. 540, 95 P 283. In view of banking laws

Under $ 2369 Gen. St. 1894 providing that an

in force in 1839 (Rev. St. 1839, p. 145, 146;

action for damages occasioned by a mill dam

Rev. St. 1849, c. 38) and Rev. St. 1858, c. 71,

must be brought within two years, held no

St. 1898, $ 4230, part of the chapter of limitation

action for overflowing lands by construction

tions providing that its provisions should not

of a milldam which is aon prommissory notes,56 for recovery back of usurious interest,57 for services rendered,58 for breach of warranty,59 for delay in delivering a telegram,60 actions on accounts,61 for accounting,62 actions on sealed instruments,63 actions on judgments,64

mon-law obligation to transport, bill of led-lng having been issued soon after receipt of property sought to transported. Coats cash payments and credits for returned v. Chicago, etc., R. Co., 134 Ill. App. 217.

55. Action for claim on oral contract against estate of a decedent which has been Lowenthal v. Resnick, 110 NYS 1045. In or-duly presented to administrator and allowed der for such mutuality of account to exist and subsequently disallowed at the instance of an heir or creditor may under Rev. St. party must extend credit to the other on 1806, $ 6098, be brought within 6 months after deduct. It is not enough to show that there ing time intervening between allowance and rejection more than 6 years have elapsed of a course of dealings in which credit was illea, 78 Ohio St. 194, 85 NE 53. Benefit certificate used on heid clearly a contract in v. Hembre, $ 60, $ 126. Accounting and not within proposition that where an agreement in writing is so indef-harted in 1896, two year statute. Code Civ. mite that parol testimony is required to make it complete it will be treated as an oral contract subject to statute of limitation.

Jones v. Supreme Lodge Knights of Honor, 140 Ill. App. 227.

56. As against a demand note which is payable when the promise is made, the statute starts to run concurrently with the making of the promise. Time of demand on note running for indefinite time held immer material. Statute runs from time of prommiss. Eksenich v. Boshold, 138 Ill. App. 480.

Ation not commenced on note within 10 years barred. Rev. St. 15, 85. Id. Action on note and mortgage given to secure it is governed by Gen. St. 1901, $ 4446, and $ 444 does not apply. Kirk v. Andrew \[Kam.\] 97 P 797. In such action the same limitation applies to each branch of the case if the action is maintainable on the mortgage. Id.

Let removal of disability, applies. Id. Action by accommodation indorser against maker of note for payments thereon for fees illeally collected in criminal cases is flavored by the four year and not the two year statute. Lane v. Delta County (Tex.

57. An action to recover usurious interest by a creditor must be brought with:

1905, $ 4076, an action against sureties on mlngial bond may be brought within 6 years

D. C. $1181| (Brown v. Stocom, 30 App. D. C. S. F.), but the statute does not in such case begin to run until the cause of action accrues upon making the last instalment, even though the usurious interest was deducted in advance (Id.). Where amount retained was called a commission but usury was admitted, action within a year from last instalment held not barred, although more than a year had elapsed since deduction was made. Code D. C. $ 1181. Id.

58. Action for services rendered is barred in four years. Consaul v. Rawkins, 130 Ga.

726, 61 SE 704.

59. For breach of warranty in sale of bull that the animal was a breeder and proved to be barren, the two year statute applies. WiLlamson v. Heath \[Tex. Civ. App.\] 108 SWP 983.

01. For delay in delivering telegram Ky. St. 1903, $ 515, five year statute applies.

Western Union Tel. Co. v. Witt, 38 Ky. L. R, 685, 110 SWP 889. Damages for failure to deliver telegram are not "injurles to the person" within Ky. St. 1902, $ 515, prescribing one year limitation. Id.

61. Account between liquor seller and cus-tomer consisting of debits on one side and cash payments and credits for returned c. Chicago, etc., R. Co., 134 Ill. App. 217.

01. A suit by a customer against a stock-brokeer for accounting of gambling transactions or to recover money lost under Gen. St. 1905, $ 1, 106, is barred where nearly one year has elapsed since margins were paid.

Blessing v. Smith \[N. J. Eq.\] 70 A 938. Action between partners for an accounting is barred after 6 years. Dowse v. Gaynor

(Mich.) 15 Det. Leg. N. 897, 118 NW 615.

63. Death of a guardian constitutes "discharg" within Rev. Laws, 149, $ 35, re-quiring action on guardian's bond to be brought within four years after his discharge. Hill v. Arnold, 199 Mass. 109, $ 35 NE

01. Section 35 and not c. 202, $ 7, giving minors and Insane persons such period after removal of disability, applies. Id. Action by accommodation indorser against maker of note for payments thereon for fees illeally collected in criminal cases is flavored by the four year and not the two year statute. Lane v. Delta County (Tex.

01. An action to recover usurious interest by a creditor must be brought with:

1905, $ 4076, an action against sureties on mlngial bond may be brought within 6 years

64. After expiration of the term of 12 Cur. Law. LIMITATION OF ACTIONS SS 2. 615

for the revival of judgments,\[68\] and to set aside judicial sales,\[69\] actions to recover taxes,\[97\] to cure defective acknowledgments,\[68\] and to enforce trusts,\[69\] actions to force-close mortgages,\[70\] suing out letters of administration\[71\] or probating wills,\[72\] actions against decedents' estates,\[73\] actions to abate nuisances\[74\] for conversion,\[75\] fraud,\[76\]

A surety who obtains an assignment of a judgment against himself and principal is substituted to all rights of the judgment creditor and his rights are governed by the County Circuit Court, and governed by genuinement 616 LIMITATION OF ACTIONS SS 3. 12 Cur. Law. injuries to property \[77\] or persons," death by wrongful act." An omnibus clause usually covers all actions not expressly provided for."

SS 3. _Accxual of cause of action and beginning of period._ See 10 C. L. 859\_--A cause of action does not accrue until there is a demand capable of present enforcement,"

ground of fraud after 10 years, an action to 'six year statute and not by Shannon's Code surcharge an executor's final account for $ 4470, barring actions for injury to land in misapproruption of funds is barred in 10 $ years. Whitaker v. Poston \[Tenn.\] I10 years. $Wren's Exr' v. Wren's Exr', 31 KyV 1019. $W 1019. $W 1019. $W 1020. $W 103. $W 104. $W 105. $W 106. $W 107. $W 108. Action for fraud is barred in $ years. Rev. Laws 1992, 02. $W 109. $W 100. $W 109. $W 100. $W 100. $W 100. $W 101. $W 1020. $W 103. $W 104. $W 105. $W 106. $W 107. $W 108. $W 109. $W 109. $W 101. $W 107. $W 108. $W 109. $W 109. $W 100. $W 101. $W 101. $W 102. $W 103. $W 104. $W 105. $W 106. $W 107. $W 108. $W 109. $W 109. $W 100. $W 101. $W 102. $W 103. $W 104. $W 105. $W 106. $W 107. $W 108. $W 109. $W 109. $W 100. $W 100. $W 101. $W 101. $W 102. $W 103. $W 104. $W 105. $W 106. $W 107. $W 108. $W 109. $W 109. $W 100. $W 100. $W 101. $W 102. $W 103. $W 104. $W 105. $W 106. $W 107. $W 108. $W 109. $W 109. $W 100. $W 100. $W 101. $W 101. $W 102. $W 103. $W 104. $W 105. $W 106. $W 107. $W 108. $W 109. $W 100. $W 109. $W 100. $W 101. $W 101. $W 102. $W 103. $W 104. $W 105. $W 106. $W 107. $W 108. $W 109. $W 100. $W 109. $W 100. $W 101. $W 101. $W 102. $W 103. $W 104. $W 105. $W 106. $W 107.

## 12 Cur. Law.

LIMITATION OF ACTIONS $ 3.

617 a party against whom it may be enforced,82 a party competent to sue,83 and a tri-bunal before which the claim can be asserted.84 The cause of action for breach of warranty accrues when the breach becomes apparent,85 for breach of covenant at the time the covenantee is compelled to yield to the outstanding title,86 for breach of covenant against the incumbrance at the time it is paid by the covenantee,87 to recover a bank deposit, after demand and refusal of the bank to pay.88 An action to recover money accrues when such money becomes due,89 but if to recover money wrongfully

usites to entitle him to a patent in favor of one who holds adversely. Eastern Bank-

for delinquent taxes and two days before ing C. v. Loveley \[Neb.\] 115 NW 857. Where

period of redemption expired the elerk sold land is levied on under execution but is sold

It to defendant, the three year limitation and possession given by debtor before aber-

act Tenn. 1899, p. 1143, did not begin to

'ff's sale, the statute runs against purchaser

run until such conveyance. Collier v.

at sheriff's sale from time debtor executes

Hls dead, and not from time sheiff's deced is

83. See, also, pess, SS 6. Cannot be started

dellivered. Watt v. Killibrew \[Ala.\] 47 S

when there is no one who can sue or be

83. Where one member of a firm dies and

the other assigns for the benefit of creditors,

where money of an intestine's estate had

the holder of a firm note may proceed

been converted more than six years before

against the estate without first suing the

authorized with the administrator

survivor; and the running of the statute in

favor of the estate is not toiled. In re

for commencement of action, limitations

Neher's Ekstate, 57 Misc. 627, 109 NYS 1098.

did not commence to run until appointment

The right of majority stockholders of a

of the administrator. Root v. Lathrop

corporation to compel defendant who con-

(Conn.) 70 A 614. Upon death of a part-

trolled it to pay a judgment against it

ner in 1891, the surviving partner appointed

based on fraudulent division by defendant of

an agent to care for the property and claim-

the surplus earnings, accrues when corpora-

ed it all. An administrator was appointed

tion is compelled to pay the judgment, and

not from wrongful division of the earnings.

to a third person. Held that prior to ap-

Dodd v. Pittsburgh, etc., R. Co., 82 Ky. L. R.

pointment of the administrator there was no

605, 108 SWV 787. Under Burns' Ann. St. 1991,

one who could demand settlement, and right

$ 299, and $ 2380, limitations begin to run

in favor of the estate of a decedent against

a claim for funeral expenses 20 days after

his death. Hilderbrand v. Kenney \[Ind. App.\]

83 NE 879. Does not commence to run

against city warrants payable out of a specul

ball that such bull was a breeder, not until

call fund to be created until such fund is

reated. Rogers v. Omaha \[Neb.\] 117 NW

119. Laws 1889-90, p. 149, authorizing collece-

108 SWV 983.

tion of taxes by suit within five years, and

86. Limitations commence to run against

Laws 1889-90, p. 149, c. 103, placing a fran-

chise tax on railroads but not conferring on

the covenante is compelled to yield to an

the Franklin circuit court jurisdiction, held

an action in the Franklin circuit court more

Brooks v. Mohl, 104 Minn. 404, 116 NWV

than five years after taxes might have been

931. For breach of covenants of seisen and

assessed but within five years from when it

was assessed was not barred. Illinois Cent.

R. Co. v. Com., 32 Ky. L. R. 1112, 108 SWV 245.

The cause of action for compensation for

no cause of action accrues until eviction.

services in designing a building and super-

intending its construction accrues when he

approves the final bill of the contractor,

deced, the covenants are broken at once and

when it is presumed that the work was com-

cancel of action immediately accrues. Id.

pleted. Date of presenting for payment does

87. Cause of action for breach of cove-

not establish date when bill became due or

when, indebtedness accrued. Hornblower v.

subsequently deceased held not to arise so

George Washington University, 31 App. D.

C. 64. Action against a railroad for breach

covenant have suffered actual damages.

place in consideration of the grant of a right

of way is not barred by the three year

stuate, where the line of road was not com-

pleted until two years after right of way

was acquired. St. Louis, etc., R. Co. v. Berry

14Nk.\] 110 SW paid out it accrues at the date of payment.90 A cause of action by a surety against a cosurety for contribution 91 or against his principal for reimbursement 92 accrues when the surety pays the debt and a like rule applies in case of other persons secondarily liable.93 A cause of action for money due in installments accrues on maturity of each installment,94 and the statute runs upon the whole debt from the date of the first default only when such default has the effect of maturing the entire debt.95 A cause of action on a mutual current account accrues on the date of the last item thereof,96 but to bring a case within this rule the account must be a mutual one,97 and if it is not such an account, the statute runs on each item from its date.98 A agreed to pay him $400 from first profits of a certain mine or the $200 with inter-est within 6 months. Held, the statute commenced to run January 14, 1899. Davis v. Crawford, 197 Mass. 309, $3 NE 866. 900 Where county treasurer illegally paid out money belonging to school district, the statute ran against right to recover it back from date of payment, and it was barred n three years. Clarke v. School Dist., $4 Ark. 516, 106 SWF 677. 91. A surety's right of action for contribution against a cosurety accrues at the time he pays the debt of the principal, and not until then. Mentzer v. Burlingame \[Kan.\] 97 P 371. Action by surety against cosurety for contribution does not accrue until payment of the obligation by the surety. Kelley v. Sproul \[Mich.\] 15 Det. Leg. N. 559, 117 NW 327. In suits for contribution, the right of action is on an implied promise, and the statute runs from the date of each advancement. Jarvis v. Matson \[Tex. Civ.-App.\] 113 SWF 326. 92. Against an action by a surety against a principal for reimbursement from time the surety paid, and not from maturity of note. Blanchard v. Blanchard, 113 NYS 882. 93. Where one agreed to pay notes of another but did not, and the latter was required to pay, limitations run from the date they were required to make payment. Enos v. Anderson, 40 Colo. 395, 93 P 475. Cause of action against a banking firm which had assumed the bank's debts to recover money which the bank was compelled to pay by reason of failure of the firm to do so did not accrue until the firm defaulted in performance of its contract and the bank paid the demand. Hoskins v. Velasco Nat. Bank \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 442, 107 SWF 598. 94. For interest due on a mortgage accrues when each installment of interest becomes due. Quackenbush v. Mapes, 123 App. Dlv. 242, 107 NYS 1047. Where divorce was granted in 1890 awarding weekly allowance of allmony and no payment was made, where application for execution of the decree was made in 1903, the statute did not bear weekly payments accruing within the limitation period. Dewey v. Dewey, 151 Mich. 586, 14 Det. Leg. N. 971, 115 NW 735. Where a written contract of sale provides that the purchase price is to be paid at any time within two years "in amounts and at such times as many suit the convenience" of the purchaser, an action on the contract is not barred until three years after the expiration of the two years within which defendant had right to make payment. Plaintiff held not in default, such time not having expired when action was brought. Patterson v. Barrie, 30 App. D. C. 531. 95. Otherwise it runs only as to the installment due. Claues v. Columbia Sav. & Loan Asr., 16 Vyo. 450, 95 P 54. 96. Vogel v. Kennedy, 127 Mo. App. 238, 104 SVF 1151. Not governed by rule of partial payments. Rogers v. Davis, 103 Me. 405, 69 A 618. Where mutual account was open-ed January 1894, and from 1898 to 1902 there was but one item of twenty cents, which charge was specifically paid shortly after made and credit given therefor on the account, held an action in 1905's was not barred. Id. When parties by mutual dealings have extended, by some item of debt or credit, the time of the bar of the statute, the debtor may not then shorten the time by making specific payment of debit items. Id. Where contract was a continuous one to furnish material for several houses, materials furnished from time to time and prices entered into running account on which payments were made from time to time. Smith v. Ross, 31 App. D. C. 348. 97. For definition, see Accounts Stated and Open Accounts, 11 C. L. 32. One item of an account entered within the statutory period will not bring other barred items without the statute unless there: were mutual and reciprocal accounts and demands between the parties. Elwood v. Hughes, 109 NYS 25. An account of loans between leader and borrower kept on borrowing firm's books or slips of paper is not a mutual open and current account within Colec Civ. Proc. NYS 386. In re Gtrivin, 160 F 197. A current account kept by a husband of transactions with his wife's money is not a mutual account, nor is it a mutual account where it contains simply items of money. Cash items form no part of mutual account. Id. Where several items (10) seven of which were barred, were set up and it was alleged

## 12 Cur. Law. Limitation of actions SS 3.

cause of action for a continuing wrong accrues at the date of the last injury." Where a condition precedent to a right of action exists, the cause does not accrue until the condition is performed.1 Hence an action on a guardian's bond does not accrue until final account has been filed and he is discharged.2 Where an attorney collects money for his client, the statute commences to run within a reasonable time, depending on the circumstances.3 When the right to sue for settlement of partnership affairs accrues depends upon the circumstances.4 If an injury to land is permanent, the cause accrues at once for the entire damage,5 but if the injury is continuous or intermittent, it accrues at the date of each injury.6 Where a statute of

tinuous account. Hendelman v. Kahan \[Vash.\] $7 P 109. Where a decedent was entitled to recover for support, each year's account should be deemed a separate cause by happens does not set the statute in of action. Bryson's Adm? v. Briss, 32 Ky. \[L. R. 159, 104 SWV 882. \[W9. One whose logs are injured by being caught in a dam, which constitutes a nuisance, may sue for damages through the dam has existed for more than five years. Ireland v. Bowman \[KY.\] 114 SWV 338. \[L.\] 1. Where debt payable in instalmers was secured by deed of trust, stipulating that at option of holder the entire debt should become due upon default of payment of any insilament, held, in absence of exercise of option by the holder, the statute did not run until maturity of the debt. Clause v. Co. \[L.\] 503. \[L.\] 54. Under Code Civ. Proc. $38, $31. \[L.\] 55. \[L.\] 56. Where a de-limiting actions on sealed instrument to 20 years, and $41, providing the cause accrues when action may be brought, where a mortgase was payable there years after 40, 30 days before death of decedent held date, interest payable semi-annually, and in a question for the court. Id. case of default entire sum was due at option of the holder, where holder did not exercise his option, the cause did not accrue until maturity of the mortgase. Quacken-bush v. Mapers \[L.\] 114 SWV 76. \[L.\] 57. \[L.\] 58. \[L.\] 59. \[L.\] 504. \[L.\] 51. \[L.\] 505. \[L.\] 51. \[L.\] 52. \[L.\] 53. \[L.\] 54. \[L.\] 55. \[L.\] 56. \[L.\] 57. \[L.\] 58. \[L.\] 59. \[L.\] 59. \[L.\] 50. \[L.\] 51. \[L.\] 50. \[L.\] 51. \[L.\] 52. \[L.\] 53. \[L.\] 54. \[L.\] 55. \[L.\] 56. \[L.\] 57. \[L.\] 58. \[L.\] 59. \[L.\] 59. \[L.\] 50. \[L.\] 51. \[L.\] 50. \[L.\] 51. \[L.\] 52. \[L.\] 53. \[L.\] 54. \[L.\] 55. \[L.\] 56. \[L.\] 57. \[L.\] 58. \[L.\] 59. \[L.\] 59. \[L.\] 50. \[L.\] 51. \[L.\] 50. \[L.\] 51. \[L.\] 52. \[L.\] 53. \[L.\] 54. \[L.\] 55. \[L.\] 56. \[L.\] 57. \[L.\] 58. \[L.\] 59. \[L.

limitation provides that it shall not run against one until notice, actual notice is usually requisite." An action for possession runs from the time the right to such possession is complete." Thus, the statutes do not run against a remainderman during the existence of the life estate," unless the remainderman has a present right to sue.10 When a tenant denies his landlord's right of possession and refuses to attorn or pay rent for the premises, the cause of action in forcible detainer accrues to the landlord, and the statute begins to run.11

_As between stockholder, corporation and creditor,12_ the time when a cause accrues to enforce a stockholder's liability accrues when the extent of such liability is known.13

\_Mistake and fraud.\_See 10 C. L. 442.--A cause of action for relief on the ground of mistake or fraud does not ordinarily accrue until such mistake or fraud is or should in the exercise of ordinary diligence, have been discovered.14 And what facts should

at the time of particular injury sustained. action at once and limitations at once commENTU. Empire State-Idaho Min. & Developing Co., 158 F 881. Where one obstructs the channel of a stream so that at widely different dates food waters are cast upon amenance to run when tenant refused to attorn other's land, the cause of action accrues at the date of the injury, and not at date of obstruction. McCure v. Broken Bow \[Ne.\] 115 NWV 1081.

7. Under Kirby's Dig. SS 6587, 6588, providing that liabilities of a railroad assumed by a purchasing railroad shall be barred in one year "after notice" of sale the notice required is actual and not constructive notices. St. Louis, etc., R. Co., P. Bataesville & Winerva Tel. Co. \[Ark.\] 110 SWV 1047.

1. Mitchell v. Baldwin \[Ala.\] 45 S 715.

Adult leirs have no right to possession of the homesteed until termination of homestead interest of the minor heir, and the two year limitation to set aside a void taxed of the homesteed does not run against them until the minor attains majority. Harris v. Brady \[Ark.\] 113 SWV 914. Where restator devised land to his widow, her estate to terminate on her remarriage, and she sold the land, the statute did not run against the right of the heirs to recover the land until remarriage of the widow. Harring v. Shelton \[Tex. Civ. App.\] 114 SWV 388. Where property is given in trust for the benefit of one person for life, remainder over, the right of action of the remainderman to recover part of the property converted by the life beneficiary accrues on death of the life beneficiary. Putnam v. Lincoln Safe Deposit Co., 191 N. Y. 166, 83 NE 789.

9. Wilhite v. Berry, 232 Ill. 381, 83 NE 852; Hobson v. Hutable, 79 Neb. 834, 116 NVV 278. A married woman, owner of land, died in 1872, leaving husband and several children, and husband took estate by curtesy. In 1882 a railroad without contract or right appropriated a part of the land; the husband died in 1892 and heirs used in 1904.

Held statute did not commence to run as against them until the death of the life tenant. Webster v. Pittsburg, etc., R. Co., 78 Ohio St., 84 NE 852. Where decedent was sedised of land during her life, her husband's estate by the curtesy for life suspended the statute as against the wife's heirs. Hill v. Lane \[N. C.\] 62 SE 1074.

10. Hobson v. Hutable, 79 Neb. 834, 116 NVV 278. Where a bank assisted a life tenant in some of its stock to sell the stock output, vested remanderman had a right of charge a person of ordinary diligence with notice of fraud depends on the circumstances of each case.\[15\] Some cases confine this rule to fraud and exclude mistake. Limitation as against a tort, committed through mere mistake not involving fraud begins to run from the time the wrong was done, and not from time of discovery,\[14\] and some require concealment by the wrong door of the facts.\[17\]

SS 4. \_Time tolled and computation of the period.\[See 10 C. L. 644.--The time that is necessarily required to prosecute an appeal from a judgment on a verdict erroneously directed against the plaintiff in a scire facias upon a mechanic's lien is not to be excluding in computing and applying limitations.\[18\] In a statutory action to subject a wife to the payment of a family expense, the running of the statute of limitations is not tolled as against the wife by the rendition of a judgment against her husband.\[19\]

SS 5. \_What is the commencement of an action. A. In general,\[See 10 C. L. 644.--It is generally held that an action is commenced when summons is served\[20\] or delivered for service,\[21\] or on the filing of a complaint.\[22\] Service must be had on one entitled

166, SS 8NE 789. Where a wife on death of his cause of action will not prevent running the husband fraudulently purchased for a fersy! inadequature price at partition sale\[\] Clapp v. Leavens, 164 F 318. The statute land, and a child 16 years old at the time old begins to run from the time plaintiff dis-covered that defendant had collected the quiesed in it, without fully understanding\[23\], they are a fraudulent concealment of the cause of did not run. Markley v. Camden Safe De- section which tolled the statute. He led, under posit & Trust Co. (N. J. Ed. 89 A 1100.) evidence, no fraudulent concealment such. In action to set aside a deed for fraud, evir- as would toll five year statute. Hurd's Stat-dence insufficient to show that fraud should utes of 1905, p. 1334, SS 22. Heckard v. Luaherty, 133 III. App. 420. The statute be- Hendrick v. Miller, 32 KS. L. R. 1030, 107 SW9. Where a husband had converted money sounding in tort of which fraud is a basis as belonging to his wife, his statement after soon as the fraud and subsequent injury: her death that he and his wife had spent must of the money was not sufficient to show covered unless there has been a fraudulent concealment, sufficient to use concealment of the cause of action. No aver-pened tht statute. Smith v. Settle, 128 Mo. 131 III. App. 443.

15. Held on was not negligent as a mat- ter of law, In falling to discover mistake in description of land granted more than four years before bringing the action. Isasaka v. Wright \[Tex. Civ. App.\] 110 SW97. Sub-begin 110 processor proceedings of land which defendant had contracted to plaintiff by clear title held to be considered with other facts in determining whether plaintiff, not to tell statute as against wife. Staver Care-ceedings and their effect as would put her triage Co. v. Beaudry, 138 III. App. 147.

01. Where service of process is quashed be- faith and start limitations against her right to recover for his fraud. Robin-tiff could cause service of another summons. \[Mic.\] 15 Det. Leg. N. 951, 118 NW 943.

That grantor in deed containing a misdecapir- tion had opportunity to investigate and dis-cover the mistake held insufficient to show that he should have discovered it more than four years before bringing the action. Isasaka v. Wright \[Tex. Civ. App.\] 110 SW97.

37. Commonwealth v. Donnelly, 3& Pa.

01. $T$. $T$.

to accept it.21 In a federal court of equity there must be filing of complaint, issuance of subpena and bona fide attempt to serve it.22 The commencement of an action tolls the statute only as to persons bringing and not as to others having a right to maintain an independent action.23 A writ of error is not a new suit in the sense that the limitations applicable to the original cause of action run against it.24 The statute does not cease to run against offsets until the time defendant files his plea of offset.27 (SS 5) \_B. Amendment of pleading.28--An amendment founded on the same cause of action29 but in different terms,20 or which cures a defective complaint31 or corrects a recital therein,22 or which set forth the cause with greater amplification,23

1901 and petition for correction thereof was -- breach of contract. El Paso, etc., R. Co. v. Hied July 24, 1905, and amended petition given -- Harris --. City. App. J110 SWV 145. Where to defendant's attorney a few days before July 24th and thereafter taken from his office -- and filed, held he was changed with notice -- -- The old -- is stealing and I want him of the filing of the petition so as to prevent -- than the older forearm on the road was -- Shillman --\[Tex. City. App. J108 SWV 101L. -- 23. Where city clerk was proper officer -- on whom to serve complaint in action against --.\] -- Yaxoo, etc., R. Co. v. Hiv- the city for injuries, service on a clerk in the office of the corporation counsel was not -- version of the crop. Sexton Rice & Irr. Co. the commencement of an action. Boyle v. --. Sexton --. City. App. J20 Tex. Ct. Rep. --. NWV 1056. -- 157, 106 SWV 728. Amended petition filed un- --. NWV 1056. -- 24. To constitute "commencement of a suit" -- in federal court of equity, there must be filing --ceedings. Columbia Heghts Reality Co. v. of bill, due issuance of subpena, which must --. MacFarland, 31 App. D. C. 112. New cause come into the hands of the serving officer -- of action not set up by alleging in amend- -- with intent to be served, and there must be --.\] -- ment that contract upon which action was --a bona fide attempt to serve it. United States -- v. Miller, 164 F 44. Bona fide attempt shown -- being silent on point, amendment in avoid- --, where marshal made several attempts to -- serve, and after life of original an alla subpena was served. Id. --.

25. The mere commencement of an action by a judgment creditor under $ 9, c. 76, Gen. Laws 1878, for sequestration of property of the debtor and appointment of receiver did not toll the statute as to claims of other creditors since each might have brought a separate action and the court could have consolidated them. Downer v. Union Land Co., 103 Minn. 392, 115 NWV 207. -- 26. Provision in Insurance policy requiring action there to be brought within one year -- relates to original suit and not with errors -- therein. Helbig v. Citizens' Ins. Co., 234 Ill. -- 251, 84 NE 897. -- 27. Boyd v. Beebe --. V. Va.J 61 SE 304. -- 28. See 10 C. L. 644. See, also, Pleading, -- 10 C. L. 1173. -- 29. Amendment to complaint by assignee of a school warrant held not to set up a different cause of action since an adjudication under the original complaint would bar an action on the amended complaint, and vice versa. Micheltree School Top. Co. v. Carnahan -- \[Ind. App.\] 84 NE 520. In an action for death resulting from negligence, where original complaint was not barred, a proper amendment made after the statute had run --. Calabama Consol. Coal --. Iron Co. v. Heald -- \[Aa.\] 45 S 686; Townes v. Dallas --. Mgg. Co. -- \[Ala.\] 45 S 686. If an amendment is not a departure from the original complaint, the fact that the former is based on statute and the latter under common-law --. liability does not prevent the amendment from relating back. Alabama Consol. Coal -- & Iron Co. v. Heald -- \[Ala.\] 45 S 686. -- 24.

1901 and petition for correction thereof was -- breach of contract. El Paso, etc., R. Co. v. Hied July 24, 1905, and amended petition given -- Harris --. City. App. J110 SWV 145. Where to defendant's attorney a few days before July 24th and thereafter taken from his office -- and filed, held he was changed with notice --. The old -- is stealing and I want him of the filing of the petition so as to prevent --. Man amendment alleging -- and --. Thililmam --. Clay. App. J108 SWV 101L. -- 23. Where city clerk was proper officer -- on whom to serve complaint in action against --. Thilmam --. Clay. App. J110 SWV 145. Where to defendant's attorney a few days before July 24th and thereafter taken from his office -- and filed, held he was changed with notice --. The old -- is stealing and I want him of the filing of the petition so as to 12 Cur. Law. LIMITATION OF ACTIONS $ 5C. 623

or which substitutes \[54\] or brings in new parties,\[85\] relates back to the filing of the original complaint, but where it sets forth a new and different cause of action,\[36\] or a cause-dependent on different grounds,\[87\] or where the original complaint did not state a cause of action,\[88\] the statute continues to run until the amendment is filed. An amendment in an action for wrongful death which changes the beneficiary of the action is, in effect, the bringing of a new action.\[39\] It is immaterial whether an amendment sets up a different cause of action where it sets up a cause not barred.\[40\]

(SS 5) \_C. Nonsuit and dismissal.\_See 10 C. L. 045.In many states it is prescribed by statute that if an action fail otherwise than on the merits, a new action may be

commission, an amendment embodying the same of action to allege abuse of proc-same allegations, but with greater amplifica- ess by excessive seizure. Id. Where com- tion and additional allegations, did not set plain for death was based'on Miners' Act up a new cause of action. Mayes v. Magnill \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 558. 107 SW amended to ask recovery under common-law s68. Where original complaint and amend- 'lability, held the amendment set up a new 'ments filed within the period all alleged fall- 'cause of action. Bradley v. Chicago-Virden v to provide safe place to alight, averment Coal Co., 231 Till. 622, 83 NE 424. Where of causes contributing to unstafeness of the 'mines' Act was amended by substitution of relating back. Atlanta & B. Air Line R. v. Wheeler \[Ala.\] 48 S 262.

34. The substitution of a third party for the original plaintiff in an action is not the was likewise bared. Chicago-Virden Coal commencement of a new action. State Bank v. Carroll \[Neb.\] 116 NW 276. Where action to enforce pledged securities was brought within the period and pending suit they were assigned, an amendment substituting parties plaintiff did not constitute a new action.

01. A cause of action set up in an amend- 'militiffs' sue in amended complaint in their individual capacity does not change the cause of action set forth in the original complaint in the firm name. Mayes v. Magnill \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 558. 107 SW 385. Where original complaint was in name of plaintiff as a widow and the amendment set up that she had been deserved by her husband. Gulf, etc., R. Co. Vervation \[Tex. App.\] 20 Tex. Ct. Rep. 691, 107 SW 71.

01. Entrance into action of other parties whether they came in voluntarily or through the agency of plaintiffs, does not constitute 'new cause of action. El Paso, etc., R. Co. v. Harris \[Tex. Civ. App.\] 110 SW 146. Where action was commenced within the period, an amendment adding another party plaintiff relates back. Cousar v. Heath (S. C.\] 61 SE SE 673. Where one brought suit against a 'R. Co. Lla.\] 45 S 88.

01. Where a complaint fails to sstate a show that during a part of the time the cor- 'mension' state, and after the statute has run 'mension' state do not set up a different cause of action. Dittgen v. Racine Paper Goods Co., 184

01. Union Pac. R. Co. v. Sweet \[Kam.\] 96

P 657. Where a new of different cause of action barred by the statute of limitation is 'mendent' by an amendment, the statute may be pleaded as a bar. Chicago-Virden Coai Co., 231 Till. App. 234. In action for damages done by fire, an amend- 'mension' atlizing that damage was done by an- 'mension' state, and after the statute has run 'mension' state.

39. Union Pac. R. Co. v. Sweet \[Kam.\] 96

01. Where a new of different cause of action barred by the statute of limitation is 'mendent' by an amendment, the statute may be pleaded as a bar. Chicago-Virden Coai Co., 231 Till. App. 234. In action for damages done by fire, an amend- 'mension' state may be 'mension' state, and after the statute has run 'mension' state.

01. Union Pac. R. Co. v. Sweet \[Kam.\] 96

01. Original declaration for death on P 657. Where a new of different cause of action barred by the statute of limitation is 'mendent' by an amendment, the statute may be pleaded as a bar. Chicago-Virden Coai Co., 231 Till. App. 237.

01. Gen. St. Fla. 1906, $ 3146, gives right of action for damages done by fire, an amend- 'mension' state, and after the statute has run 'mension' state.

01. Union Pac. R. Co. v. Sweet \[Kam.\] 96

01. Where a new of different cause of action barred by the statute of limitation is 'mendent' by an amendment, the statute may be pleaded as a bar. Chicago-Virden Coai Co., 231 Till. App. 237.

01. Union Pac. R. Co. v. Sweet \[Kam.\] 96

01. Where a commened within a prescribed period.\[41\] Such statutes apply only to the proceedings designated,\[42\] and falling within their terms\[43\] and in Georgia the privilege can be exercised but once.\[44\] One who seeks the benefit of the statute must prove that he comes within itn terms.\[45\]

SS 6. \_Postponement, interruption, and revival. A. General rules.\_See 10 C. L. 648 -- Subject to the rule that limitations do not run against sovereignty,\[46\] the statutes are applied generally and to all cases.\[47\] Where exception to their operation is not specifically made,\[48\] and after they have once commenced, they run over all subsequent disabilities and intermediate acts,\[49\] unless otherwise expressly provided,\[50\] but being statutes of repose, they are suspended during pendency of legal proceedings looking to settlement,\[51\] providing they are such as to prevent the enforcement of the remedy

41. Henderson v. Eller, 147 N. C. 582, 61 SE 448. Where holder of note brought action upon it in a county where one of makers resided and also sent a summons to another county where another maker resided and pending proceedings action was dismissed, held to have failed otherwise than on the merits within. Gen. St. 1901, SS 4451. Parker v. Dobson \[Kan.\] 96 P. 472. Quashing of service of summons because made by unauthorized person held to result in failure of plaintiff otherwise than on merits within Rev. St. $ 3465, authorizing new action with-in one year. Clause v. Columbia Sav. K. Loah Ass., 16 Vvo. 450, 95 P. 54. Under Star & C. Ann. St. 1896, c. 83, where judgment for plaintiff is reversed and time for bringing action has expired pending suit, a new action may be commenced within one year. Held where plaintiff sued for injuries and after limitations expired amendments were filed setting np a new cause and a judgment for him could not be sustained, he was entitled to bring a new action within one year. McAndrews v. Chicago, etc., R. Co. \[C. C. A.\] 162 F. 806. 42 Ann. St. 1906, p. 3257, providing that if one suffer nonsuit or his judgment be reversed on appeal or error or arrested, he may bring a new action within one year, means appeal or error prosecuted in the original manner and not appeal from quashing or refusing to quash executions on the judgment. Moore v. Gibson, 180 Mo. App. 590, 109 SWV 1056. 43. A 'suit brought in a state court and properly removed to a federal court having conductrent jurisdiction and there dismissed on plaintiff's motion cannot under Civ. Code 1895, SS 3786, he renewed in a state court within six months, so as to avoid the bar. V Webb v. Southern Cotton Oil Co. \[Ga.\] 63 SE 135. Where a case was removed from state to federal court after the time prescribed has elapsed and a nonsuit is granted in the latter, the case could not be rebrought in the state court within six months. Id. 44. Under SS 3786, Civ. Code 1895, providing that if plaintiff be nonsulted or small discontinue or dismiss his case and shall recommence action within six months, such re-newed action shall stand upon the same footing as the original, such privilege may be exercised but once. Webb v. Southern Cotton Oil Co. \[Ga.\] 63 SE 135. Such statute applies only to cases pending in state courts. Id. 45. Under Code Civ. Proc. $ 405, providing for new action within one year after termination in any other manner than by voluntary by action.\[52\] The commencement of an action to enforce the right tolls the statute,\[53\] but the mere reservation of a claim by an executor does not.\[54\] Disabilities cannot be tacked.\[55\] Financial distress of one entitled to sue,\[56\] or mere ignorance of the existence of a cause of action, does not suspend the statute,\[57\] nor does a mcre request by the debtor not to sue.\[58\] The continued possession by the creditor of a note pledged as collateral suspends the statute as to the principal obligation after the collateral is prescribed on its face.\[59\] Mere ignorance of the whereabouts of a debtor who is not absent from the state does not toll the statute of limitation as applied to an action on an account, but the burden is on the creditor to show affirmative acts on the part of the debtor which prevented a discovery of his whereabouts.\[50\] A barred obligation cannot be revived by a transaction having no relation to it.\[51\]

(SS 6) _B. Trusts._ See 10 C. L. 447. The statutes do not run in favor of a trustee of an active, or continuing trust, until his repudiation thereof and notice brought home to the beneficiary,\[52\] but do run against constructive or implied trusts from

in 1878 by creditors of an estate against the \[because he is ignorant that defendant has administrator and his suretles to set aside\] removed to this state. Downes v. Gaynor his settlement and restate the account suspended limitations as to suveties until termination of the suit in 1893, and an action acting on the target.\[53\]

See, however, ante SS 3, as to rule that a against distributes of deceased suveties on notice thereof.\[54\]

after is not barred. Cole v. Hall, 85 Ark. 144, 107 SWV 175.\[55\]

So. Harrison v. Scott, 77 Kan. 637, 95 P

1045. The statute will run against a cause in favor of a stockholder of an insolvent corporation for contribution from his costock-holders based on a claim in his favor against the corporation, though there is pending against him an action on his double liability in which he seeks to offset the same cause of action. Id. The fact that the subject of an action is held in custodia legis in an-other action In which the defendant is not a party nor in privtity with a party and over which he has no control, will not suspend the statute in his favor. Hawkins v. Brown \[Kan.\] PT P 479.\[55\]

S3. Where a corporation has purchased the business and stock in trade of an individual and assumed the liabilities and is Impleaded in an action against the seller to recover a debt, and while such action is pending, sells to another corporation which in turn assumes the debts, held the statute did not begin to run in favor of the latter, so long as the creditor is prosecuting with reasonable diligence actions to establish liability of the successive corporations. Walterscheid v. Bowdish, 77 Kan. 665, 96 P 56.\[57\]

54. Though executor has received a claim against the estate which he has never accepted nor rejected. In Fo Neher's Estate, 57 Misc. 527, 109 NYS 1090.\[58\]

01. Rev. St. 1895, art. 8376, expressly provides that disability of minority cannot be tacked to disability of covereture of the ancestor. Laird v. Murray \[Tex. Civ. App.\] 111 SWV 780.\[59\]

01. The fact that a mortgagor was not financially able to redeem from foreclosure sale will not toll the statute as to this right to redeem. Clapp v. Leavens \[C. C. A.\] 164

F 318.\[57\] Mere ignorance of existence of cause of action does not suspend the statute unless there has been fraudulent concealment. Hib-ben v. Malone, 85 Ark. 884, 109 SWV 1008. The statute is not tolled as to a foreign plaintiff

12 Curr. L-40.\[58\]

13 Curr. L-40.\[59\]

14

15
the creation thereof." A sale by a trustee for his own interest is a repudiation of the trusts."

(SS 6) _C. Insanity and death._ See 10 C. L. 647--As a general rule the statutes do not run against insane persons during the continuance of the disability." Death does not toll the statute unless such exception is provided for." Statutes generally provide that an action may be prosecuted on behalf of a deceased person," or against his estate within a prescribed period after his death " or appointment of administrator," but the action must be prosecuted within such period."

(SS 6) \_D. Infancy and coverture.\_See 10 C. L. 648--Infants are generally excepted from the operation of the statutes " or are given a prescribed period after attaining majority within which to bring action," but exemption of infants from the opera-

63. Lady Ensley Coal, Iron & R. Co. v. Gordon \[Ala.\] 46 S 983; Norton v. Bassett \[Cai.\] 97 P 834. Constructive trust. Markley v. Camden Safe Deposit & Trust Co. \[IN.\] 98 C. L. 648--Infants are generally excepted from the operation of the statutes " or are given a prescribed period after attaining majority within which to bring action," but exemption of infants from the opera-

01. Under Coe 1902, $ 2858, and Code Civ. Gordon \[Ala.\] 46 S 983; Norton v. Bassett \[Cai.\] 97 P 834. Constructive trust. Markley v. Camden Safe Deposit & Trust Co. \[IN.\] 98 C. L. 648--Infants are generally excepted from the operation of the statutes " or are given a prescribed period after attaining majority within which to bring action," but exemption of infants from the opera-

01. Under Coe 1902, $ 2858, and Code Civ. Gordon \[Ala.\] 46 S 983; Norton v. Bassett \[Cai.\] 97 P 834. Constructive trust. Markley v. Camden Safe Deposit & Trust Co. \[IN.\] 98 C. L. 648--Infants are generally excepted from the operation of the statutes " or are given a prescribed period after attaining majority within which to bring action," but exemption of infants from the opera-

01. Under Coe 1902, $ 2858, and Code Civ. Gordon \[Ala.\] 46 S 983; Norton v. Bassett \[Cai.\] 97 P 834. Constructive trust. Markley v. Camden Safe Deposit & Trust Co. \[IN.\] 98 C. L. 648--Infants are generally excepted from the operation of the statutes " or are given a prescribed period after attaining majority within which to bring action," but exemption of infants from the opera-

01. Under Coe 1902, $ 2858, and Code Civ. Gordon \[Ala.\] 46 S 983; Norton v. Bassett \[Cai.\] 97 P 834. Constructive trust. Markley v. Camden Safe Deposit & Trust Co. \[IN.\] 98 C. L. 648--Infants are generally excepted from the operation of the statutes " or are given a prescribed period after attaining majority within which to bring action," but exemption of infants from the opera-

01. Under Coe 1902, $ 2858, and Code Civ. Gordon \[Ala.\] 46 S 983; Norton v. Bassett \[Cai.

tion of the statute depends upon express provision therein," and infancy of an heir cannot avail where the statute has run against the ancestor." As a general rule the statute is suspended as to claims between husband and wife during the existence of the marital relation," but this rule is not universal." In some states coverture is not a bar to an action and the statute is not suspended."

(SS 6) \_E. Absence and nonresidence._See 10 C. L. 645_--It is generally provided that absence or nonresidence shall suspend the operation of the statute," but such an exception will not be implied where the statute does not declare it." Nonresidence does not suspend the statute if personal service may be had in the state." A statute.

became of age in 1879 and 1880, the action by her husband in hostility to her home-was barred in 1898, but not as to a child who attained majority in 1890. Taggart v. App.J 110 SWV 205. Manhattan R. Co., 57 Misc. 184, 109 NYS 38. 78. Under Rev. St. 1885, art. 3867, providing that, if a person against whom a cause was his right of action accret, his right to save was not barred until 27 years thereafter. Goggin v. Manhattan R. Co., 124 App. Div. 644, 109 NYS 83. Where a mother acquired land in the name of herself and minor children and thereafter surrended her never decoded to her grantor and took a new deed in her own name, held limitations did not run against remainder interest of minors until their mother's death and they then still being minors, not until three years after disability was removed did the statute and will continue to run so long as he ute run. Ky. St. 1903, 5 256. Sayler v. Johnson, 32 Ky. L. R. 709, 107 SWV 210. Under Klrsby's Dig. 5 5075, providing that a minor entitled to sue may bring action within three years after attaining majority, one.who attained majority in April 1904 may use in 1905 to set aside a tax deed executed in 1902. Harris v. Brady \[Ark.\] 112 SWV 974. 78. Where not prohibited by constitution, Where granted In tax deed was at time a negligature may make such statutes applicable to infants. Schlar v. Castating \[Vwash.\] 97 P 289. Laws 1893, p. 20, limiting actions to recover land to seven years and exempting minors as to two classes of possession, applies to minors as to the other lesion. Id. The betterment act, Kirby's DIG. $\\lx@sectionsign$ 2754, 2757, limiting actions to recover rents and profits from one in possession as a bona fide purchaser, applies to infants. Brown v. Neims \[Ark.\] 112 SWV 373. Not a limitation statute. Id. Rev. St. 1895, $\\lx@sectionsign$ 3276, expressly provides that, where right of action on "purchase money note ac-crued during lifetime of holder, a married woman, the statute runs from her death as against her children, though they are mil-nors. Laird v. Murray \[Tex. Civ. App.\] 111 SWV 780. 74. Sanders v. Word \[Tex. Civ. App.\] 110 SVF 205. 75. Hamby v. Brooks \[Ark.\] 111 SWV 277. 76. Where husband received money belonging to hie wife, the statute ran against her from date he received it, but the wife having died under coverture her representatives could sue within one year from her death. Ann. St. 1908, pp. 2534, 2355. Smith v. Settle, 128 Mo. App. 379, 107 SWV 430. Action by wife against husband to recover land may accre during coverture, but if she flee under coverture, whether the statute has run or not, and action is saved to her her in within three years, by Ann. St. 1906, p. 234. Id. 77. Runs against married woman's right to recover community homesetad conveyed by her husband in hostility to her home-stead rights. Sanders v. Wood \[Tex. Civ. App.\] 110 WV 205. 78. Under Rev. St. 1895, art. 3867, providing that, if a person against whom a cause accreus shall be without the state when it accreus or at any time during which action after. Goggin v. Manhattan R. Co., 124 App. Div. 644, 109 NYS 83. Where a mother acquired land in the name of herself and minor children and thereafter surrended her never decoded to her grantor and took a new deed in her own name, held limitations did not run against remainder interest of minors until their mother's death and they were removed did the state and will continue to run so long as he remains in the state and is suspended if he again leaves. Gibson v. Simmons, 77 Kan. 461, 94 P 1013. Before a debtor, who is abstined from the state when a cause accreus and who makes occasional visits to the state during the period, can set up the statute, the time of his temporary presence in the state must aggregate the statute. Id. 78. Where granted In tax deed was at time a nonsficient and remained so until the property was conveyed, the period of his absence was not to be counted in determining whether the statute had run against a suit by the original owner to quiet title. Burlesign v. Hecht \[S. D.\] 117 NWV 367. In action on a note

## 62 Limitations of actions & 6f.

12 Cur. Law.

- 12 Cur. Law. LIMITATION OF ACTIONS SS 6G. 629

A check is sufficient though the money paid on it is subsequently returned,"\* and a warrant issued by a city in consideration of a valid debt is sufficient,"\* but mere indorsements of interest payments on a note are not where it is required that the acknowledgment be signed." Where an acknowledgment, or new promise is required, either is sufficient." The acknowledgment extends the time for bringing action only for the statutory period thereafter."\* (SS 6) _G. A partial payment._ See 10 C. L. 650--A partial payment tolls the statute * and starts it running anew from the date it is made.1 A partial payment must be voluntary and free from any uncertainty as to the identification of the debt * and must be made and accepted as a partial payment on a larger debt.\* Payment must be made by one with authority to bind the person sought to be charged.4

Footnote 12: The author is grateful to the anonymous referee for the support of the author.

or acknowledgment must be in writing, in-dettedness need not appear on the face of the instrument, and acknowledgment by letters is held sufficient. Id.

94 Under Code 1897, SS 3456, providing that a cause may be revived by a signed admission in writing, where after computation of a debt the debtor gave a check but on dis-error of an error, the money was paid back and the debt left as before, held the check was a sufficient admission. Sendinger v. Rovley \[Iowa\] 11eV 695. Held it could not be asserted that the transaction amounted to an agreement for a new loan and not a revivor of the original debt. Id. Where purchaser of mortgared premises paid interest on the mortgage from year to year, secured reduction of rate, pays part of principal, and gives check for computed balance, though it is returned and his conduct is for 15 years consistent with the theory that he owed the money, his acknowledgement revived the debt. Sendinger v. Rovley \[Iowa\] 11eV 695.

95 A warrant issued by the proper authorities of a city in consideration of a valid debt is a written acknowledgment and prom-ise to pay and arrest the running of the edute. Rogers v. Omaha \[Neb.\] 114NW 833.

86. Indorsements of interest payments made on a firm note by one of the partners after the note had been filed in dissolution proceedings, transferring to the note entries made on the firm ledger, held insufficient. Bulcken v. Rhode \[S. C.\] 62 SE 786. Bookkeeper's entries of credits for interest paid on firm debt not signed by any of the partners and without intent to deliver the writ-ing to the creditor are insufficient, under Code Civ. Proc. 1902, SS 131, requiring acknowledgment to be signed by the party to be charged. Id.

97 Under Code, SS 3456, providing that a cause may be renewed or revived by signed admission in writing or a new promise to pay, it is not necessary that both an admission and a new promise to pay be made and signed; either is sufficient. Sendinger v. Rovley \[Iowa\] 11eV 695.

98 Under Code, SS 360, written acknowledgment within statutory period extends time for bringing action only for the period of limitations thereafter. National Cycle Mfg. Co. v. San Diego Cvejc Co. \[Cal.\] 98 PS 64.

99 Looked on as acknowledgment of debt from which promise to pay balance may be inferred. State v. Allen \[To. App.\] 111

687 WFC 622. Where life tenant from time to time made payments of principal and inter- and 630 LIMITATION OF ACTIONS $ 7A. 18 Cur. Law.

A partial payment by a principal tolls the statute as to a surety,\* but if payment is made on a renewal note which the surety deems void, it will not as to him toll the statute as to the original note.\* Partial payments by a principal debtor do not toll the statute as to a guarantor of a promissory note unless the contract of guaranty expressly so provides.\*

SS 7. \_Operation and effect of bar. A. Bar of debt as affecting security.\_See'io c. L. 651.--As a general rule the bar of the debt does not bar an action on the security,\* and an action to enforce the security is not barred so long as the debt remains alive.\* But a vendor's lien not reserved cannot be enforced after a purchase-money note is barred.\* Where security is void, no action can be maintained after the debt is barred.\* The reivor of a debt revives the mortgage given to secure it.\*

(SS 7) \_B. Against whom available.\_See 10 C. L. 651.--The statutes run against the holder of an equitable title as well as against the holder of a legal one.\* All persons in privity to the parties are bound by the bar,\* and an assignee of a barred cause has no greater rights than his assignor.\* They do not bar one whose rights are saved by a timely proceeding in which he intervenes.\*

(SS 7) \_C. To whom available.\_See 10 C. L. 651.--The time during which the right to sue may be exercised is governed by statute, whether natural or artificial persons, residents or nonresidents are parties litigant.\* The defense is a personal privilege of the debtor and can be made only by him or by persons standing in his shoes,\* and one who is not in privity with the maker of a mortgage cannot set up

109 NYB 1090. Payment made by one partner after dissolution of partnership does not lien not barred until the debt secured is barred, statute as to the reurled partner. Robertson

Lumber Co. v. Anderson, 100 Minn. 137, 110

822. Where a new partnership assumed 10. Where a note given for the purchase note, evidence held insufficient to show that

where holder of note accepted interest there, and is barred, the holder has on from new firm he had no notice that a partner had retired, the absence of which

Civ. App.) 111 SWV 780.

notice would have prevented the running of the statute as to the reirled partner, Akin

secure a barred note and the deed was void v. Van Wirst, 124 App. Dlv. 83, 108 NYB 327.

Where every on note told privatel to keep

interest paid or be, the surety, would have

to pay it, held principally payment of interest.

set was not made as agent of surety so as to take the case as to the surety out of the

state. Id. Where a husband converged

655.

to a wife land upon which there was a mortgage which provided that any payment

preventor or made by the wife, she or the person making such payment should be subtraced to rights of mortgage, held payment

by wife did not toll the statute as to the

husband's liability to her to pay. the mortgage. Clinton v. Clinton\* Seattle, 148 Michen

486.
001.
001.

12 Cur. Law. LIMITATION OF ACTIONS SS 8. 631 limitations to an action to foreclose.\[18\] Any creditor of an insolvent estate may urge the statute to prevent diminution of the assets.\[20\] It is doubtful whether the statute can be urged as a defense by a receiver in an action against him for fraud and conspiracy.\[21\] One may waive the bar of the statute or be estopped to assert it,\[22\] and where a voluntary benefit is conferred subject to the charge of a debt, limitations cannot be urged against the debt.\[23\]

SS 8. \_Pleading and evidence.\_See 10 C. L. 652.--The statute of limitations is an affirmative defense and to be available must be pleaded\[24\] by answer\[25\] and cannot be raised by demurrer\[26\] unless the complaint shows on its face that the cause stated is barred.\[27\] But if the statute is in the nature of a condition to plaintiff's cause property and the character thereof does not appear, he must allege facts showing his 115 NWV 1102. Is waived when benefits are right to set up the statute. NcII V. Burke not asserted by plea or answer or denurrer. \[Neb.\] 115 NWV 321. Where deded by mort- Reaves V. Turner (Qkl.) 94 P 548. In action gagor to mortgaged premises was recorded to set aside a fraudulent conveyance where before maturity of mortgage, the grantue complaint alleged issuance of execution and return unsatisfied within the statutory predecessor. San Diego Reality Co. v. McGinn (Cal. App.) 94 P 374. After a decontont on:

125 Veyed land to her husband, they mortgaged.

126 A. D. D.

of action, he must allege and prove that the action was brought within the time required,28 and if it appear from the record that the action was not commenced within such period, the defense may be raised by demurrer.29 Where an action is based on a barred cause, facts bringing the case within an exception must be specifically alleged.30 Where an answer sufficiently sets up the statute, a reply is necessary.31 In Georgia, however, the practice of replication has been abolished.32 Averment of a new promise may by amendment be added to the petition.33 One who pleads the statute as a defense has the burden to prove it.34 One who sues on a barred claim has the burden to prove facts taking the case out of the statute.35 Parol evidence is inadmissible to take the debt of a deceased person out of prescription.36 The admissibility of evidence is governed by general rules.37 The effect of evidence is sometimes limited by statute.38 Where a party pleads an exception to toll the statute.38

Footnote 38: The effect of evidence is not completely understood.

Footnote 39: The effect of evidence is not completely understood.

Footnote 40: The effect of evidence is not completely understood.

Footnote 41: The effect of evidence is not completely understood.

Footnote 42: The effect of evidence is not completely understood.

Footnote 43: The effect of evidence is not completely understood.

Footnote 44: The effect of evidence is not completely understood.

Footnote 45: Evidence in modification to show a partial statement made on services rendered six years prior to action brought. Holden v. Cooney, jury occurred at a subsequent date. Bulkley v. Norwich & W. R. Co. \[Conn.\] 70 A 1021.

Footnote 46: The effect of evidence is not completely understood.

Footnote 47: The effect of evidence is not completely understood.

Footnote 48: The effect of evidence is not completely understood.

12 Cur. Law. LIS PENDENS. 633

ute, a general denial puts him upon proof thereof. \[39\] A plea of the statute may be determined upon an agreed statement of facts without making a special finding. \[40\] Amendments, the purpose of which are to avoid the effect of the statute, but which leaves the essential grounds of recovery unchanged, are favored by the courts. \[41\]

**Limited Partnership; Liquidated Damages, see latest topical index.**

**LIS PENDENS.**

**General Rule, 633.**

**Stationary Lts Pendens, 634.**

**Property Within the Rule, 635.**

**Continuity of Lts Pendens, 635.**

_The scope of this topic is noted below. \[42\]_

_General rule. \[86, 10, C. L. 654\]_

A purchaser of property, pending litigation in which it is involved, takes subject to the event of the action \[43\] and is as fully bound thereby as the parties thereto, \[44\] the law inferring that all persons have notice of the proceedings of the courts of record, and that he who intermeddles with property in litigation does so at his peril. \[45\] The doctrine cannot be invoked where the court acquired no jurisdiction of specific property sought to be subjected to claims, \[46\] and pending suits, which disclose no purpose of any one to change or affect in any way the title to specific property of the parties to them, may not subject the purchasers pendente lite to subsequent judgments or decrees therein which attempt to affect them. \[47\] If the lis pendens is prosecuted in good faith, it's notice to any and all "purchasers," \[48\] so as to affect and bind by the decree any interest in the property which they may acquire by reason of the purchase. \[49\]

**39.** Theis v. Beaver County Com'rs \[Ok1.\]

**44.** A common-law purchaser of property 9T P 9T. While facts in avoidance of the buying pending litigation concerning it, who lies must as a general rule be pleaded, facts in parity with vendor, is bound by judges-which go to disprove the facts alleged may be shown under a general denial. Hyman v. Ordiman V. Carpenter B. D.115 NW 658. Grant (Tex. Civ. App.) 114 SW 853. 45. Gliman V. Carpenter \[S. D.115 NW 658.\*\*

**40.** Where on argument of plea of lima-tension is of lima-tension is of lima-tension is of lima-tension is of lima-tension. Parchaser of judgment against grantor tores-of facts which was taken under adjustment close dead prior to lia pendens act held to until the whole case should be heard. Cheat-have had constructive notice of suit; hence, ham V. Evans I. C. C. A.160 F 802. 41. Wise v. Outrimin \[Iowa11 117 NW 264.\*\*

**Where vendor snea on note and for fore-Smith v. Munger \[Miss.\] 47 S 676. Notice by closure of vendor's item and limitations are the litig pendens that party to action was real invoked, he may recalend the contract, and by proper amendment sne to recover the thereto. Aetna Life Ins. Co. v. Stryker \[Ind.\]. Alteberry v. Burnett \[Tex. Civ. App.) 201. 38 NW 647.**

**42.** It excludes the llen of judgments (see Co. \[C. C. A.\] 160 F 555. Court does not judgments, 12 C. L. 408), the general doc-trines of notice of prior rights (see Notice \[dobtor by an action against him for a per-and Record of Title, 10 C. L. 105), and lie pendens in the sense of another action pend-debtor pendine lite takes it free from sub-ing, involving the same subject-matter (see Abatement and Revival, 11 C. L. 1). \[43\]

**43.** Record held sufficient to show that as-signor was brought into court and made on your no jurisdiction over property of party before making assignment, so as to subject assignee to lia pendens. Baker v.

**Baker \[M.O.\] 70 A 418.** Grantnes in voluntary \[quent degree therein which attempts to affect dead made pendente lite takes grantor's name. Id. title subject to judgment subsequently rendered against grantor in pending case. Frey v. Meyers \[Tex. Civ. App.) 113 SW 592.\*\*

**Where after action is brought to subject judgment to establish a llen on real estate property to lien for claims, jurisdiction of property and custody thereof is acquired,**

\*\*morefagor's grantees and subsequent pur-sued out a writ of error without giving changed take same subject to execution of band or obtaining a supersedeas, notice be-final adjolotation of claim by court. Lang v.

**Cobotav, Oklahoma & Gulf R. Co. \[C. C. A.\] 160 F 355.**

**160 F 355.**

ing purchased without notice prior to the filing of the instrument.\* It is only necessary as to subsequent purchasers for value and without notice.\*1 An unauthorized his pendens is a nullity. \[62\] Where the notice is otherwise correct, the fact that the date of attachment is not contained in the body thereof does not render it ineffectual to give notice, where the date of filing is certified to by the clerk in connection with his record of the notice. \[68\] In New York summons must be served within sixty days after filing of the notice of his pendens. \[64\]

\_Property within the rule.\_See S C. L. \[78\]

\_Continuity of his pendens.\_See S 10 C. L. \[68\]

_There is no fixed rule as to when his pendens ceases._\*5 It does not necessarily terminate upon the rendition of judgment but may continue for a reasonable time thereafter to allow the perfection of an appeal or the prosecution of a remedy to set the judgment aside._\*6 Where the order or judgment rendered is appealable, the lis pendens cannot be canceled until the time to appeal has expired,_\*7 but after the expiration of such time it will be canceled as a matter of right,_\*8 although, where the judgment and notice are insufficient to limit the time for appeal, the notice of lis pendens cannot be canceled until after a final judgment has been rendered and the time to appeal therefrom has expired._\*6 An unreasonable neglect to prosecute an action is a ground for cancellation.\_\*6 Upon a motion to cancel a lis pendens upon the ground that the complaint fails to

- \[noitemsep,nolistsep\]
  state a cause of action, the court cannot determine whether or not the action is well brought, or critically examine the complaint to see whether a demurrer would be sustained,71 nor can it, where the action is to recover a judgment affecting reality, cancel the lis pendens because it is of the opinion from the allegation of the complaint that the action cannot be maintained for that purpose.72 Provision is sometimes made for the cancellation of a notice of lis pendens by making a deposit of money or giving an undertaking.73

Footnote 72: The author is grateful to the anonymous 18 Cur. Law. MALICIOUS Mischief. 637

Civil rights and remedies.See 10 C. L. 456.--The sale of lottery tickets was not prohibited at common law,78 and it is held that statutes forbidding such sales are for the protection of the vendee, who is not pari delicto and hence not subject to the rule denying recovery of consideration for an executed illegal contract.79 Contracts made in contemplation of a lottery scheme are void in most states.80

Criminal offenses and prosecutions.See 10 C. L. 788.--Any person transmitting through the mails a letter, circular or post card concerning lotteries is guilty of a criminal offense under the federal statute.81 Statutes in most states denounce lotteries and the sale of lottery tickets as criminal.83

MAIMING; MAYHEM."

Malice; Malicious Abuse of Process, see latest topical index.

HALICIOUS Mischief."

The scope of this topic is noted below,848.

Malicious intent is a necessary element of the offense at common law and under statutes declaratory thereof.85 The word malice, as used in this connection, has a restricted meaning and signifies specific intent to injure, vex or annoy the owner of the property,86 arising out of a spirit of revenge for real or fancied wrongs.87 Malice is often a question of fact,88 but may be inferred from the nature of the act and the circumstances of the case.89 Some statutes enlarge the offense to include acts done maliciously or wantonly,90 or substitute for malice the element of mere wantonness,91 the latter word signifying a general malice and willful disregard of the rights of others 92 rather than a mere purpose to do an unlawful act.93 The

there is an additional sum to be distributed by chance. Grant v. State \[Tex. Cr. App.\] held sufficient to sustain verdict. Carson v. 112 SVV 1068. Contract for purchase of stamps by a merchant to deliver to his customers, which stamps shall entitle holder to chance to recelve an automobile to be awarded by tot one of such stamp holders by vendor of stamps, is lottery. American Copying Co. v. Thompson \[Tex. Civ. App.\] 110 SVV 777.

77 Any inequality of value resulting from chance, whether the inequality consists in one individual receiving greater, less, or the same amount paid, as against a different relative amount received by others. Fitzsimmons v. U. S. \[C. C. A.\] 156 F 477.

78,79 Decker v. Willson \[Neb.\] 116 NWV 160.

80 American Copying Co. v. Thompson \[Tex. Civ. App.\] 110 SWV 777.

81. Rev. St. $ 3894. Fitzsimmons v. U. S. \[C. C. A.\] 166 F 477.

01. Pen. Code, art. 373. Grant v. State \[Tex. Cr. App.\] 112 SWV 1068.

01. No cases have been found for this subject since the last article. See 10 C. L. 656.

01. See 10 C. L. 657.

84a. Includes the common-law crime and statutory offenses closely analogous thereto. Exeludes statutory offenses of a similar nature with reference to certain specific property, such as malicious destruction of or injury to fences (see Fences, 11 C. L. 1468), highways (see Highways and Streets, 11 C. L. 1720), or landmarks (see Boundaries, 11 C. L. 427).

85. Malice essential. Lynch v. People, 137 III. App. 441 In absence of evidence of malice, conviction not sustained. State v. 1131.

fact that a particular act is denounced in a statutory chapter on malicious mischief does not necessarily involve reading the common-law essentials into the statute.94 And under statutes forbidding such acts in the interest of public health or safety,95 or in the interest of humanity,96 specific malice is not essential to the offense. Variance as to time of the offense is immaterial except as affecting a limitation of prosecution, providing the offense proved is identical with the one charged.97 Where ownership of property is alleged, it is sufficient to prove possession.98 Where value of the property is material, it is a question for the jury upon conflicting evidence, and the defendant cannot complain of variance by reason of a finding for less than the amount charged.99 The defendant may testify as to his intent.1 Circumstantial evidence may be sufficient to sustain a conviction.2 Within the statutory maximum, the penalty to be imposed is usually within the discretion of the trial court.3

## 1. Nature and Elements of the Wrong, 93s.

### 5. Want of Reasonable and Probable Cause, A. Malicious Proscution, 63s.

B. Abuse of Process, 639.

### 6. Responstibility of Determant for the Proscution or Sult and His Partic-

**1**: \*\*Strong

## 12 Cur. Law. MALICIOUS PROSECTION, ETC. SS 5.

jurisdictions it is said that the accusation must be false in fact.\* Malicious prosecution is distinguished from false imprisonment.\[10\]

(SS 1) \_B. Abuse of process.\_See 10 C. L. 658_To constitute malicious abuse of process lawfully issued, it must be used for a purpose not intended by law.\[11\] Malicious abuse of process is distinguished from malicious use.\[12\]

SS 2. \_Responsibility of defendant for the prosecution or suit and his participation therein._See 10 C. L. 658_--All concerned in originating and carrying on a malicious prosecution are jointly and severally liable.\[13\] One is liable for the authorized \[14\] or ratified \[15\] acts of his agent.\[16\]

SS 3. \_The prosecution of the plaintiff._See 10 C. L. 658_--The present plaintiff must have been prosecuted.\[17\] Defects in the accusation in trial court or waiver of defects by defendant cannot affect his right to recover in suit for malicious prosecution.\[18\]

SS 4. \_Termination of prosecution in plaintiff's favor._See 10 C. L. 658_--The prosecution must have terminated in favor of accused,\[19\] a conviction being conclusive as to probable cause.\[20\] The termination must be such as to preclude consideration of that proceeding,\[21\] but the reason for the termination is immaterial,\[22\] unless it be by fraud of accused, compromise and settlement, or by any act or procurement on part of the present plaintiff,\[23, 24\] or such as to amount to a virtual conviction.\[25\] Discharge on habeas corpus after binding over is a sufficient termination of the prosecution.\[26\]

SS 5. \_Want of reasonable and probable cause._See 10 C. L. 659_--Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a reasonably prudent man in his belief that the person accused is guilty of the offense with which he is charged,\[27\] the test being applied as

\*\*9. Missouri, etc., R. Co. v. Groseclose \[Tex. der made, and commitment for trial had, held sufficient. Baker v. Langley, 3 Ga. App. 10. Pen. Code, SS 236. Donati v. Righetti \[Cal. App.\] 97 P 1128.

**18.** Baker v. Langley, 3 Ga. App. 751, 60 SE 371.

**11.** Ingallis v. Christopherson \[S. D.\] 114

**20.** See post, SS 5.

**21.** Sufficient if there can be no further proceeding and no further prosecution for alleged offense without beginning new proceeding. Halberstadt v. New York Life Ins. Co., 125 App. Div. 830, 110 NYS 188.

**22.** Justice's reason for dismissing mis-demaneor or charge immaterial. Donati v. Righetti \[Cal. App.\] 97 P 1128.

**23,24.** Halberstadt v. New York Life Ins. Co., 125 App. Div. 830, 110 NYS 188.

**23.** Physical as to merits on payment of costs, according to decree, to keep from going to tail, does not operate as compromise and settlement. Cascarella v. National Grocer Co., 151 Mich. 15, 114 Det. Leg. N. 838, 114 NW 857.

**14.** Insurance company not liable for suit for alleged enbezzlement, instituted by cash-arlictions prosecution. Smith v. Markensohn \[R. T.\] 69 A 211. Otherwise where payment is made under protest and only to procure freedom. Id. No favorable termination where plaintiff was fugitive from justice for such period that the could not be brought to trial. Halberstadt v. New York Life Ins. Co., 125 App. Div. 830, 110 NYS 188.

**25.** Person violating injunction and In contempt, discharged on payment of costs; held a sentence to pay costs was an adjudication in contempt. Hoskins v. Somerset Coal Co., 219 Pa. 373, 68 A 843.

**26.** Millar v. Solitt, 131 Ill. App. 196.

**27.** Deering v. Gebhard, 108 NYS 715; Equitable Life Assur. Soc. v. Lester \[Tex.

of the time of the beginning of the prosecution.28 It depends upon the honest and reasonable belief of the prosecutor, and not upon the actual facts of the cause.29 Good faith is an element of probable cause.30 A legitimate effort to test a third person's legal rights, when sufficiently in doubt, cannot be termed malicious prosecution.31 A conviction in a criminal case before a court having competent jurisdiction is conclusive upon the question of probable cause,32 and this is true though the trial was not by a jury,33 and was subsequently reversed,34 unless fraud, per-jury or subornalation of perjury in obtaining the conviction be shown.35 An acquittal, on the other hand, is not even prima facie evidence of want of probable cause.36

from malice and want of probable cause,42 but by the weight of authority advice of private counsel is not a complete defense although it is to be considered by the jury on questions of malice and probable cause,43 in connection with other circumstances.44 Whether counsel was paid for his advice may be material.45 To be protected by advice of counsel, defendant should have made a full and honest statement of all facts known to him and such as he might have known by exercising reasonable diligence.46 Where counsel or magistrate advises that it is doubtful if accused is guilty, prosecutor proceeds at his own risk.47 The advice of a prosecuting attorney is a complete defense when prosecution, before acting, made a full and fair disclosure of all facts within his knowledge,48 although by exercising reasonable diligence he might have ascertained other facts.49 Where the prosecuting attorney investigated the case and instituted proceeding on behalf of the public, the party making complaint is not liable.40 Advice of a justice of the peace that reasonable and probable cause existed is no sufficient defense.61 In an action for malicious abuse of process where want of probable cause is not an element,62 advice of counsel is no defense though it may be considered in mitigation.58

SS 8. _Damages.54_

SS 9. _General matters of pleading and practice.55e 10 C. L. 500_ The complaint must set forth all the elements of the cause of action 54a including malice 58 and favorable termination of the prosecution.56\_

_Presumptions and burden of proof.55e 10 C. L. 651--_ The burden of proving want of probable cause and existence of malice is upon the plaintiff.57 Want of probable

of malice. Miller v. Lal \[N. J. Law\] 71 A 50. Defendant entitled to assume the prosecution was instituted on behalf of public.

42. Advice of reputable counsel alone, Christy v. Rice, 152 Mich. 658, 15 Det. Leg. honestly sought and acted upon, is held to be a complete defense. Cragin v. De Pape \[C. C. A.\] 159 F 691.

01. Missouri, etc., R. Co. v. Groseclocse \[Tex. Civ. App.\] 110 SWV 477; Fitzsimmons v. Mason, 135 Ill. App. 565.

01. Conduct of servant, careful inquiry as to what had happened and how it happened, and seeking advice of counsel before taking action, show probable cause. Cragin v. De Pape \[C. C. A.\] 159 F 691.

01. Proper on cross-examination to ask prosecution if he paid counsel and time and amount of payment. Bartlett v. Jenkins, 150 Mich. 682, 14 Det. Leg. N. 876, 114 NWV 679.

01. Failure to make reasonable investigating.46. will charge defendant with knowledge of such facts as he might ascertain thereby.

Vystat v. Butdette, 43 Colo. 208, 95 P 336.

Concealment of material facts destroys defense. Id. Defendants' testimony should disclose facts communicated to counsel, so jury may determine whether or not he made full and honest statement. Id. Held for jury whether statement was full. Thomas v. Kerr, 187 Ill. App. 479.

47. Cascarella v. National Grocer Co., 151 Mich. 15, 14 Det. Leg. N. 838, 114 NWV 857.

01. Missouri, etc., R. Co. v. Groseclocse \[Tex. Civ. App.\] 110 SWV 477. No defense unless full, fair and complete statement of facts is made. Baker v. Langley, 5 Ga. App. 751, 60 SE 871. Advice of district attorney held probable cause for making mdavi. Kirk v. Wylener-Loeb Laundry Co., 120 La. 820, 45 S 738.

01. Missouri, etc., R. Co. v. Groseclocse \[Tex. Civ. App.\] 110 SWV 477.

13 Curr. L--41 cause is sometimes said to raise a presumption of malice \[89\] and advice of counsel to raise a presumption of good faith.\[90\]

_Admissibility of evidence._\[89\] 10 C. L. 691--Any evidence tending to existence of or want of probable cause is admissible.\[60\] Evidence that no indictment was found is admissible to show a favorable termination,\[91\] but not to show malice or want of probable cause.\[92\] Defendant may testify directly as to his own motives.\[63\] Where the issue is whether the prosecutor was agent of the defendant, evidence of other transactions is admissible.\[64\]

_Question of law and fact._\[89\] 10 C. L. 691--The question of probable cause is a mixed question of law and fact.\[65\] Where the material facts are undisputed, the question is one of law.\[96\] It is the duty of the court to say what is probable cause and to determine as a matter of law whether the facts established do or do not amount to probable cause.\[97\] The presumption of larceny arising from the recent and unexplained possession of stolen goods continues after acquittal on the larceny charge,\[68\],\[69\] and if unrebutted makes the existence of probable cause a question of law.\[70\] It is exclusively the province of the jury to pass upon the testimony and ascertain the facts.\[71\] Where the facts are in dispute or capable of opposing inferences as to malice or probable cause, the question is one for the jury.\[72\] Existence of malice is to be determined by the jury.\[73\]

_Instructions._\[89\] 10 C. L. 692--An instruction that actions for malicious prosecution have never been favored in law is properly refused.\[74\] Instructions as to probable cause may state what information would constitute probable cause.\[75\] They should clearly negative liability for malice if probable cause is found.\[76\]

## 11 **Nature and omce of Remedy in General**

**8** **2. Duttes and Rights Enforcible by Mandamus, 643. Other Adequate Remedy, 644.**

**8** **4. Judicial Procedure and Process, 645.**

**8** **5. See ante, $ 6.**

**8** **5. See ante, $ 7.**

**8** **6. Florlorla. East Coast R. Co. v. Groves**

\*\*case, sdmissible. Jacobson v. Doll \[Neb.\] \[Fla.\] 46 S 294: Orefec v. Savarese, 117 NY8 117 NW 124. Admissions of guilt or language from which it might be inferred, admissible. Bartlett v. Jenkins, 150 Mich. 682, 14 Det. Leg. N. 876, 114 NW7 679. Testimony of justice issues warrant that present plaintiff complained about being arrested and made statement about settling up, which might be consistent with innocence, inadmissible. Id. Testimony of third person, present when plaintiff was accused of the crime, admissible for certain purposes. Id. Evidence that plaintiff had had had other dealings with prosecutor, had owed him money and had previously spoken to him about buying the article he was accused of stealing, admissible. Id. Question on croas-examination as to whether prosecutor told prosecuting attorney that plaintiff had spoken to him about purchasing the article he was tried for stealing held proper. Id.

**8** **6.2. Equitable Life Assur. Soc. v. Lester**

**8** \*\*7.

**19** Cur. Law. MANDAMUS **SS 1.**

B. Administrative and Legislative Func- **SS 6. Petition or Amdavit, 655.**

tions of Public Offices, 647. Dutes **SS 7. Alternative Writ, 655.**

Relating to Allowance and Payment of Claims, 649. Dutes of **SS 8. Demurrer to Petition or Writ; Answer**

**or Return; Subsequent Pleadings, Election Offcers, 650.**

**of Right to Public Office, 650.**

**of** **SS 9. Trial, Hearing and Judgment, 657.**

**C. Quael Public and Private Outles, 651.**

**SS 2. Jurisdiction and Venue, 652.**

**SS 4. Parties, 653.**

**SS 10. Peremotory Writ, 658.**

A. Parties Plaintiff, 653.\*\*

**SS 11. Peremounce, 658.**

**SS 2. Parties Defendant, 654.**

**SS 3. Pleading and Procedure in Benerai, 654.**

\_The scope of this topic is noted below._17_

SS 1. \_Nature and office of remedy in general._See 14 C. L. 852_In many states manmus is termed as a civil action but even in such it retains some of its prerogative nature in that it is not used to redress private rights but only in matters relating to the public._18_ It is issued by appellate courts both in the exercise of their original jurisdiction and in aid of their appellate jurisdiction._19_ It is termed a writ of right \*\***19** but the right to the writ is not absolute and it should be issued or denied in the exercise of a sound discretion in accordance with established rules of law._2011_ It will not be granted when it would work injustice or produce confusion,_212_ nor to perpetuate a fraud,_212_ nor where the relator is not suffering any loss,_212_ nor where it would prove unavailing or purposeless,_212_ or where it is unnecessary,_212_ nor to compel the performance of impossible_212_ or illegal acts,_212_ or an act which has been enjoined._212_

Footnote 18: The author is grateful to the author.

Eslow, 151 Mich. **48**, 14 Det. Leg. N. 845, 114\_

**NWP 859.**

**71.**

**NWP 860.**

**72.**

**73.**

**74.**

**75.**

**76.**

**77.**

**78.**

**79.**

**74.**

**78.**

**79.**

**70.**

**71.**

**72.**

**73.**

**74.**

**75.**

**76.**

**77.**

**78.**

**79.**

**74.**

**77.**

**78.**

**79.**
Thus being a legal remedy the relator must have a clear legal right to have an act done," and it must be the imperative duty of the respondent to do it." Failure of another remedy without an adjudication of the merits does not conclude the relator's right." In case of doubt as to the relator's right, it must be resolved against him." Mandamus will not lie to set aside and so undo what has already been done, even though it ought not to have been done," and cannot be made the instrument for giving a court jurisdiction of litigation on collateral matters in an irregular way."

\_Other adequate remedy.\_See 10 C. L. 665.--Mandamus does not lie where the petitioner has any other plain, speedy, adequate remedy at law," as by appeal," writ of error," certiorari," or a specific remedy provided by statute,1 unless such remedy.

irrigation company to deliver water during | Lenhart v. Newton Tp. Board of Education. 1903 will be set aside on appeal. Agricultural | Ohio N. P. (N. S.) 129. Mandamus unnectural Ditch Co. v. Rollins, 42 Colo. 267, 93 P | essay to compel city to pay contractor-1125. Not to compel trial judge to grant sus-amount 12 Cur. Law. Mandamus $ 2A. 645

is concurrent and not exclusive.4 A premature review cannot be obtained by a writ of mandamus.' The legal remedy barring interference by mandamus must not only be adequate but it must be specific and appropriate to the particular circumstances of the case and must afford relief on the subject-matter of the controversy.4 A remedy at equity is not a remedy at law but is to be considered in the exercise of the court's discretion.5

\_Loss of remedy by limitations, laches, delay, estoppel, etc.55e 10 C. L. 666--\_The writ may be denied because of laches.6

, SS 2. \_Duties and rights enforcible by mandamus. A. Judicial procedures and process.55e 10 C. L. 667--\_The writ of mandamus does not lie from a superior court to an inferior court to control its judicial acts,7 or the exercise of judicial discretion,4 unless for an abuse thereof.8 Where a court refuses 10 or unwarrantably delays to act within its jurisdiction,11 or acts beyond its jurisdiction,11 action may be com-

record by a bill of exceptions. State v. \[Ind.\] 86 NE 49. After lapse of over thirty State Board of Equalization & Assessment \[New.\] 115 NW 789.

90. Not for the purpose of having judg- 762, 46 S 78.

ment of dismissal, contered an oral order of 7. Lindsey v. \[Cool.\] 96 P. 997. Man- dismissal. Kingsbury v. People's Furniture damann cannot be used to perform the office of Co., 130 GA. 386, 50 SE 865. Not to compel an appeared writ of error. Ex parte Nebraska, 209 U.S. 436, 52 Law. Ed. 876. Cannot and release money garnished. Tillman v. \[Cool.\] 865.

, State v. Martin \[FIa.\] 46 S 424. Eleco- \[Cool.\] 11 SW 64. Cannot ton contest provided for by statute. Crosby compel settlement of any particular bill of 7. Haverly \[Nob.\] 118 NW 122.

2. The right given by statute to recover 98 P 46. Correction of statement of facts 42 damages upon the official bond of an official 400 completed. Perry v. Turner \[Tex. Civ.\] 46.

, who refuses to act exists independently of 7.

, the right to compel performance by man.

, of bill of exceptions after expiration of time 885. The remedy of mandamus granted by 1029. As an intervention will not be allowed to retard the principal suit, mandamus will is cumulative and does not exclude other rem- 46.

, and 16 to compel the refants of a suspen- 46. Mercants' Coal Co. v. Farmont Coal \[Cool.\] 107 P 789.

, whose intervention had been dismissed on 88. Where there was no abuse of discretion and and judge had jurisdiction over question of 88.

, and 1029. The only exception of judgment 88. There was no abuse of discretion 88. There was no abuse of discretion 88.

### 646 Mandamus $ 2A.

12 Cur. Law.

pelled; and particular action may be compelled where the right of relator thereto is beyond all question \[18\] and there is no other adequate and sufficient remedy \[14\]. Where a duty devolving on a court is ministerial and imperative, its performance may be compelled \[15\]. The duties of an officer of court are ordinarily ministerial and subject to control by mandamus \[16\], but are occasionally judicial \[17\]. Mandamus lies to compel proper disposition of criminal proceedings as well as civil \[18\].

_Supervisory control \[Sec 10 C. L. 970--A considerable supervisory power is often exercised over lower courts by the use of mandamus \[16\]. Courts will not exercise supervisory control upon light occasions \[20\], nor will the writ be used to serve the purpose of a writ of error to review judicial action of the trial court \[21\]._ The power will

ground of abuse of discretion. Wyatt v. \[Online of the work before judgment. Gas & Ellec. Co. v.\] Arnot \[Cal. App.\] 94 P 86.

12 State. V. Williams, 136 Wvis. 1, 116 NWW San Francisco Super. Ct. \[Cal.\] 99 P 359.

285:- tate v. Helims, 136 VWs. 432, 118 NW 158.

13 Where the trial court strikes out a defective statement of fact without an opportunity of amendment, mandamus lies to compel him to vacate the order to strike out. State v. Steiner \[Wash.\] 98 P 690. Since an appeal does not lie from an appointment of an administrator by the probate court, the court may be compelled to follow the prior.

136 VWs. 432, 118 NW 158.

137 Where the trial court strikes out a defective statement of fact without an opportunity of amendment, mandamus lies to compel him to vacate the order to strike out. State v. Steiner \[Wash.\] 98 P 690. Since an appeal does not lie from an appointment of an administrator by the probate court, the court may be compelled to follow the prior.

138 VWs. 432, 118 NW 158.

139 Where the trial court strikes out a defective statement of fact without an opportunity of amendment, mandamus lies to compel him to vacate the order to strike out. State v. Steiner \[Wash.\] 98 P 690. Since an appeal does not lie from an appointment of an administrator by the probate court, the court may be compelled to follow the prior.

140 Where the trial court strikes out a defective statement of fact without an opportunity of amendment, mandamus lies to compel him to vacate the order to strike out. State v. Steiner \[Wash.\] 98 P 691. Since an appeal does not lie from an appointment of an administrator by the probate court, the court may be compelled to follow the prior.

18 be exercised to reverse an erroneous determination of a preliminary question which precludes consideration of the merits.\[21\]

(SS 2) \_B. Administrative and legislative functions of public officers,\_See 10 C. L. 671 Mandamus lies to compel the performance of ministerial duties of public officers,\[21\] to compel drainage commissioners to remove injurious conditions of drainage,\[24\] unless they are vested with discretion in relation thereto,\[28\] in which case there can

22. Ruling that action of grand jury in re-

with money assessed. Latham v. Holland, turning indictment is void, and that no In-

183 Ill. App. 144. To compel a board of ditment exists against accused, is preliml-

general appraisers te examine and decide a many question. State v. Williams, 136 WIs.

matter over which they had acquired juris

1, 116 Nwy 225. Any question arising by

diction. Prosser v. U. S. (C. C. A.) 158 F

objection before the jury is impaneled and

871. To compel public officers to remove

worth is a preliminary question. State v.

Helma, 136 WIs. 432, 118 Nwy 158.

124 App. Div. 840, 109 NYS 249. To com-

23. The power of the Utah supreme court

to issue mandamus is not limited to appel-

titled. City of Montpelier v. Milli (Ind.) late proceedings but extends to the enforce-

85 NE 6; Griffin v. U. S., 80 App. D. C. 291;

ment of official action by the state board of

Cox v. Jackson Common Council, 152 Melb.

examine. State v. Cutler \[Utah\] 95 P 1071.

840, 15 Det. Leg. N. 837, 116 Nwy 446. Willi

Dutles held ministerial and enforceille:

compel Insurance commissioner to issue 11-

Recording judgment in condemnent pro-

cestage by the registrar of conveyances in

political Life Ins. Co. v. Love \[Tex.\]. 108 SVP

Hawail. United States v. Merrlam \[C. C. A.\]

821. Duty of mayor to sign license duly

161 F 303. Issue of summons by clerk of

correct. In re North American Mereantile

Appl. 110 SVP 667. No right to refuse 11-

Agency Co., 124 App. Div. 657, 109 NYS 166.

cense to graduate of school of pharmacy,

To compel district commissioners to enroll a

because in opinion of the board the school

police officer in such class as he is entitled.

Is not strict enough in its requirements.

MacFarland v. U. S., 31 App. D. C. 291. A

stav to, Matthews \[S. C.\] 62 SE 695.

tax collector may be mandamused to collect

assessments on property that has escaped

office acting within the scope of their aux-

taxation, though many of the assessments

may be barred. Adams v. Clarksdale \[Miss.\]

mus. Griffin v. U. S., 30 App. D. C. 291;

48 S 242. Duty of board to cancel illegal

werwer Iien against property, Hoboken Mitrs.,

ment not to be controlled unless fraud or

R. Co. v. Hoboken \[N. J. Law\] 68 A 1098.

Duty imposed by statute 1907, 26, 214,

ill. 124, 86 NE 195.

to furnish list of voters who had registered,

since the great register of 1906. Cerini v.

country commissioners as to amount of tax

De Long, 7 Cal. App. 388, 94 P 582. To com-

pel the performance of the ministerial duty

of revying poll tax. Southern R. Co. v. Meck-

leung County Como's \[N. C.\] 61 SE 690. To

compel officer to make entry on minutes of a

state board of education will not be com-

contract judgment or other proceeding where

it is his duty as officer to make such record

act of the superintendent of public instruc

and he fails to do so. Jones v. Bank of

Cumming \[Ga.\] 63 SE 26. To compel offer

Tex.\] 110 SVP 173. Writ denied where

to approove contract if he has no discretion

school board had power to discharge teach

in regard thereto. Id. To compel a treas-

urer to transfer fund into the possession of

States v. Hoover, 31 App. D. C. 311. The

township road commissioners who are en-

cercise of discretion by a civil service com-

titled thereto, Coleman v. Coleman \[N. C.\]

mission in determining physical and other

62 SE 415. To compel president of board of

tests to be applied at an examination will

trustees of city of fifth class to xisn ordinarily

nance. City of San Buenaveratura v. McGuire

trolled by the courts in a mandamus pro-

\[Cal. App.\] 97 P 526. To compel the secretary of state to purchase copies of unacotated

566. Power of school board to call be no review except for an abuse thereof,"8 or a refusal to exercise the discretion."7 It will lie also in some cases to compel the undoing of an unauthorized official act."8 The exercise of the executive police power will not ordinarily be controlled by mandamus."9 The duty sought to be compelled must be a clear and absolute one imposed by law,"8 and the officer must have the power to perform,"1 as for example where performance of an alleged duty requires payment of money it must appear that there is money which the officer has a right to apply."2 The fact, however, that a fund has been wrongfully disbarred by the officer is no excuse."8 The fact that the time he has completed required investigations of \[made. Jones v. Bank of Cumming \[Ga.\] the affairs of the company. Metropolitan \[63 SE 36. Will not compel county supervisor\] Life Ins. Co. v. Love \[Tex.\] 108 SW 821. Not lies to compel county attorney to Insit- \[or power. State v. Goodwin \[S.\] 63 SE 1100. A city having contracted a debt be- \[Tex. Cr. App.\] 112 SW 1070. Courts will not interfere with action of city counluired to levy a tax to pay the debt. City \[of Bardwell v. Southern Engine & Boller to office where they were required to give \[Ky.\] 113 SW 97. Assessment by preference to veterans, other qualifications \[conuncil of cost of street. City of Auburn v. being equal unless the good faith of the \[State, 170 Ind. 511, SS 3 NE 997, afd. 170 Ind. council is impeached. Robertson v. Alber- \[Sou.\] 84, SS 4 NE 990. Must show the existence of \[Iowa\] 114 NWV 855. Not to compel all facts essential to his right and that \[there is no impediment to granting relief\] \[that performance of work where statute \[makes it discretionary. State v. Icke, 136 \[Civ. App.\] 113 SW 776. \[S1.\] 118 NW 196. \[S2.\] 83. State v. Anderson, 170 Ind. 540, SS 85. Robertson v. Alberson \[Iowa\] 114 NWV 855. If board of health arbitrarily or un- \[or control of the clerk into the hands reasonably refuse permit to keep, sell and \[the transfer of a town, all authority on \[kill poultry in certain locality in such city, \[the part of the clerk to change it has been remedy is by mandamus. Cohen v. Depart- \[855, IUS NV 798. Secretary of the interior \[27. Where discretion to determine wheth- \[canto be mandamused to deliver a patent \[or bids were regular and whether bank \[to public lands to entryman where entry \[whose bid was highest on face of papers \[and through mistake cerk issued patent, \[exercised. State v. Louisiana State Board \[Asretature & Immigration \[La.\] 48 S 14.\] 118. mistake before patent had passed out of his \[Duty under Code 1904, SS 1294b, to either \[possession. Garfield v. U. 8, 31 App. D. C. consent to the alteration of a highway by a \[38. Where a justice was appointed to hold railroad upon being petitioned, or to refuse \[court in a district during January and would such request, may be enforced by mandamus \[not be assigned again to that district until against board of supervisors, no element of \[July, and the hearing on the return of an \[disvention being involved. Carolina C. & O.\] 83C. R. Co. v. Scott County Suprs \[Va.\] 63 SE 1100 ist using to cemel him to retain jurisdic- \[412. \[In that district and there try an action \[makes it compel secretary to erase \[was not had until February, mandamus was \[makes it compel and restore petitioner's \[makes it compel and restore petitioner's \[makes it compel and to hear an action in a district to \[makes within which an official act should have been done has passed is no ground for refusing mandamus where there is still sufficient time to accomplish the pupose of the act.34 Mandamus will not compel an officer to perform an anticipated duty which he may never be obligated under the law to perform.35 Mandamus is limited by statute in some states to executive or ministerial officers who have failed to perform or omitted to do some act, the performance or omission of which is enjoined by law.38 When mandamus is sought to compel an officer to perform a duty enjoined by statute, the court will not permit the officer to assert that it is unconstitutional,37 unless the nature of the office is such as to require him to raise the question or his personal interest is such as to entitle him to do so.38 Mandamus will not compel performance of a contractual duty even by municipal or other corporations or their officers.39 A board performing statutory duties of private and public interest and not political duties merely may be restrained from exceeding its powers.40 Where statute provides that mandamus shall not issue against the governor, it does not lie against a board of which he is a member.41

_Duties relating to allowance and payment of claims.38_See 10 C. L. 678_.--Where a claim is duly established, mandamus will lie to compel payment of the same from funds on hand 42 or compel the levy of a tax to pay it.43 but in some jurisdictions it is held that, when it is sought to enforce payment of an audited claim, mandamus will be refused if it appears that there are no funds available to pay the same.44 In Louisiana statute prohibits mandamus against city officers to enforce payment out of the

**34.** Treasurer to file at a certain time a **pectially enjoins as a duty resulting from list of all persons paying a poll tax. Taxes:** office, trust or station furnishes a remedy well v. Herman, 108 Va. 416, 60 SE 767.

**35.** The certificate of the secretary of **formed for a state board, but such remedy state** as to the geographical center of any \*\*is not exclusive, merely concurrent. Stern county is intended as a guidance to those **v. State Dental Examiners \[Vwash.\] 96 P** whose duty it is to declare. the result of \*\*693. Before mandamus to compel a city of **auditor** to pay a city officer's salary into not required to prepare same until needed for that purpose. City of Blackwell v. because the auditor has already drawn the **Croses \[Okl.\] 98 P** 905.

**36.** Wallace v. Grand Lodge U. B. of F.:\*\* 82 K.y. L. R. 1013, 107 SV 724.

**37.** 38.\*\* State v. Burley \[S. C.\] 61 SE 255.

**39.** State v. Icke, 136 VWs. 583, 118 NWV 196.

**40.** Board of state canvassers when canvassing the votes at a primary election:\*\* \*\*Bracjev v. State Canvasers \[Mich.\] 15 Det. Leg. N. 728, 117 NWV 649.

**41.** McFaill v. State Board of Education \[Tex.\] 110 SWV 789.

**42.** To compel treasurer to pay warrant.

**43.** To compel treasurer to pay warrant.

**44.** To compel treasurer to pay warrant.

**45.** To compel treasurer to pay warrant.

**46.** To compel treasurer to pay warrant.

**47.** To compel treasurer to pay. Herelin v. Earley, 86 City & County of Denver v. Bottom \[Colo.\] 98 P\*\* 13.\*\* Payment of award in road proceedings completed. Barber v. Delaware \[N. J. Law\] 69 A 641. Mandamus lies to compel the application of so much of a special fund as has been collected to the payment of certificates of indebtedness issued in payment of the work for which betterments were assessed for such special fund. People v. Monroe County Treasurer, 191 N. Y. 15, 83 NE 661. A judgment creditor of a city may compel payment by mandamus from funds on hand. Blocker v. Owensboro, 88 Ky. L. R. 478, 110 SWV 86. The allowance and payment of the compensation of public officers fixed by law may be enforced by mandamus proceedings against auditions and disbursing officers. State v. Edwards, 83 Utah, 242, 93 P 720; Granger v. French, 152 Mich. 856, 15 Det. Leg. N. 210, 116 NWV 181.

**48.** To comp 650

MANDAMUS $ 2B. 12 Cur. Law.

treasury.48 While officers and boards charged with the auditing and examination of claims act sometimes in a quasi judicial capacity, their ministerial acts may be controlled.48

\_Duties of election officers.\_See 10 C. L. 674--Mandamus lies to compel election officials to act 47 provided the duty be clear and specific,48 but it will not review their judicial action.48

\_Enforcement of right to public office.\_See 10 C. L. 674--Mandamus lies where one has been refused admittance 50 or wrongfully turned out of any office.51 Title to office, however, cannot be determined by mandamus as between adverse claimants,52 or

45. State v. New Orleans, 121 La. 762, 46 a rejected vote. Ice v. Marion County CanS 798; State v. Kennedy, 121 La. 787, 46 S 796.

01. Mandamus will not be awarded

01. The board of examiners created by the

against committee of political party to commuh Const. art. 7, $ 13, with power to ex-

pel it to declare a person nominated who

amine all claims against the state except

appears to be nominated by face of returns,

salaries and compensation fixed by law, may

when the committee has allowed an oppos-

in a proper case be subject to mandamus.

ing candidate recount and has not yet made

State v. Edwards, 83 Utah, 243, 93 P 720.

recount nor declared result of election.

While the state board of examiners in the

Kump v. McDonald \[Vv. Va.\] 61 SE 908.

consideration of claims acts in a quasi judicial capacity, and may exercise discretion

possers to count ballots cast at a primary

in the discharge of its official duties, it may

election for nominating which have been

not arbitrarily refuse to allow a claim in-

rejected by the election board under proviv-

volving questions of law only, and if it does

claimant may compel allowance by man-

the election judges and not informed with

damus. Court stenographer. State v. Cut-

ler \[Utah\] 95 P 1071. Lides to compel supervisor of county to publish statement of

dlamans to require the holding of an election

audited by county commissioners as

required by I Code Laws 1902, $ 769. State v. Burley \[S. C.\] 61 SE 255.

47. Canvassing of the election and de-

claring the result by the county court

m ministerial duties. State v. Smith, 129

Mo. App. 49, 107 SWV 1061. May com-

pel canvassing officers to canvass re-

turns. Cerill v. De Long, 7 Cal. App. 398,

94 P 852. May compel secretary of state to

Hole nomination papers. State v. Swanger,

213 Mo. 472, 111 SWV 7. To prevent secretary

of state from certifying the names of cer-

talm persons as candidates for office denied.

State v. Blaisdell \[N. D.\] 118 NW 141. Un

der the charter of the City of Denver

appointment of an election judge by any

member of the election commission is final

and must be ratified, and for failure man-

damus will lie to compel the commission to

certify appointments duty made. People v. Youngs, 43 Colo. 334, 95 P 1067. To re-

quire trustees of school district to hold election

to determine location of a school site.

State v. Lyone, 87 Mont. 354, 96 P 92.

The supreme court has no jurisdiction under

election laws to determine In mandamus the

validity of certain ballots mentioned in

the writ contained in boxes deposited with

the city clerk and to order a recount and

reconavass of such ballots. People v. Albany

County Suprs \[N. T.\] 84 NE 1118. The

rights of a candidate arising under the prl-

many election laws of Florida are such that

when violated mandamus may be used to

compel the performance of the duties

ployed upon members of the congressional or

standing committee of a political party in a

confressional district. D'Alemberre V. State

\[FFla.\] 47 S 489. Mandamus will lie to com-

pel board of aldermen to hear contested

election case. Sheehan V. Manchester, 74 N.

H. 445, 68 A 872. Mandamus will not com-

pel a board of canvassers for the mere per-

sonal satisfaction of a candidate to count

52. Burke v. Bessemer City Com'rs \[N.

against one having color of right,\[84\] and so one wrongfully removed from office cannot compel his reinstatement by mandamus without showing that such office is vacant.\[84\] Mandamus is the proper remedy to compel the delivery by a former incumbent of public office of books, records and paraphernalia belonging thereto to the person having a clear prima facie title to the office and its belongings,\[84\] but such duty does not rest upon a mere private individual who happens to be in possession of such books, records, etc., and mandamus will not lie to compel delivery to the office entitled thereto,\[84\] nor will the writ issue to compel the district judge to enter an order recognizing one as the lawful incumbent of an office.\[87\] Where title to office is undisputed or has been settled by quo warranto, mandamus lies to compel consideration of the bond offered but not its acceptance.\[84\] Where a police commissioner retires a member of the police department upon a surgeon's certificate of incapacity as provided by statute, such member cannot attack the commissioner's action and jurisdiction by going back of the same and attacking the certificate and compelling reinstatement \[84\] by mandamus.

(SS 2) _C. Quasi public and private duties.\[85\]_**10 C. L. 676**\_--While mandamus will not issue to enforce a private contractual right,\[84\] it may be invoked to compel performance of a public duty originating in contract.\[84\] It is the proper remedy to compel performance of duties arising from franchise,\[82\] but even conceding that an interchange of connections and business between different telephone companies may be required, mandamus to compel same will not lie in a proceeding to which one of the companies is not a party.\[85\] Mandamus will lie to compel restoration to an office with such characteristics as make it analogous to public office,\[84\] and to a considerable extent to control the affairs of private corporations, as a compelling re-

C.J 61 SE 609; State v. Miles, 210 Mo. 127, 109 SWV 595.

53. Title to public office based upon mistakes of fact or misconceptions of law may impart a color of right which will bar man-

almost. Matavy v. Kling \[Ok1.\] 93 P 737.

Palabile disregard of law renders the action whereby an office is seized merely col-

claim to an office by one whose claim is not

based at least on a reasonable color of right or where one is merely an intruder does

terms accorded public generally; hence man-

not sufficiently raise question of title to of

face so as to bar mandamus. State v. Miles, 810 Mo. 127, 109 SWV 595.

54. Quo warranto is proper remedy to try

title to office where another has been ap-

pointed. People v. Sheehan, 113 NTS 230, & Tennessee Tel. Co. \[v.\] 41 SE 426.

55, Se. Eberle v. King \[Ok1.\] 93 P 748.

57. Eberle v. King \[Ok1.\] 93 P 748.

01. Burke v. Bessemer City Com'r \[N.\] 5.1 SE 608.

01. People v. Bingham, 125 App. Div. 722, 110 SWV 136.

01. Mandamus will not compel performance of contractual duties even by munie-

ipal or other corporations or their officers.

State v. Kle, 185 WIs. 533, 118 NWV 196.

61. For example see $ 2B, Allowance of Claims against Municipalities.

01. International Water Co. v. El Paso \[Tex. Civ. App.\] 112 SWV 816. To compel

public service water company to supply its customers on compliance with its reasonable regulations. People v. Parks Mountain Water Co. \[S. C.\] 62 SE 874. May compel the delivery of gas by gas company.

Cox v. Malden & Milerose Gaslight Co., 199 Mass. 324, 85 NE 180. To compel street rail-

road to pave street as required by its franchise. Denison & S. R. Co. v. Denison \[Tex. Civ. App.\] 112 SWV 780. Mandamus lies to

class of fact or misconceptions of law may

compel a common carrier to perform the

impart a color of right which will bar man-

common-law duty of treating all shippers

damus. Matavy v. Kling \[Ok1.\] 93 P 737.

Allee. Missouri Pa. R. Co. v. Larabee

Palabile disregard of law renders the action whereby an office is seized merely col-

claim to an office by one whose claim is not

quroths of same class and can only require

based at least on a reasonable color of right

of another company use of its system on or where one is merely an intruder does

terms accorded public generally; hence man-

not sufficiently raise question of title to of

face so as to bar mandamus. State v. Miles, 810 Mo. 127, 109 SWV 595.

63. Quo warranto is proper remedy to try

title to office where another has been ap-

pointed. People v. Sheehan, 113 NTS 230, & Tennessee Tel. Co. \[v.\] 41 SE 426.

55, Se. Eberle v. King \[Ok1.\] 93 P 748.

58. Burke v. Bessemer City Com'r \[N.\] 5.1 SE 608.

01. People v. Bingham, 125 App. Div. 72
    MANDAMUS SS 3.

tiring secretary to deliver books and papers to his successor,\[48\] to enforce a stockholder's right to inspection of the corporate books,\[49\] or to compel the issue of stock.\[57\] It will sometimes lie to compel reinstatement in a fraternal benefit association,\[58\] though it is generally held that mandamus, will not, in the absence of statute, lie against an unincorporated association " or its officers in their official capacity,\[70\] or as individuals based on a matter growing out of their offices.\[71\] As in the case of public officers, the courts cannot control the discretion of quasi public officers,\[72\] and the duty must be plain and positive.\[73\] In Michigan mandamus lies to compel a sheriff to make a proper delivery of goods in a replenvin action.\[74\]

SS 3. _Jurisdiction and venue.\[58\]_ **10** C. L. 67a.--Mandamus is not an action to enforce a "money demand" and so is properly brought before the judge at chambers.\[76\] The Texas court of criminal appeals has no jurisdiction of an appeal from an order denying an application for a writ of mandamus to compel a county attorney to prosecute.\[70\] In New York, with but few exceptions, a writ of mandamus can be granted only at a special term of the supreme court held within the judicial district embracing the county wherein an issue of fact, joined upon an alternative writ of mandamus, is triple.\[71\]

_Federal courts.\[58\]_ **10** C. L. 67a.--State courts have power to compel a common carrier engaged in interstate commerce to discharge its common-law duty to treat all shippers alike, at least in the absence of congressional action.\[73\]\*\* **Mandamus may**

### 65. State v. Guertin \[Minn.\] 119 NPV 43.

### 66. State v. Donnell Mfg. Co., 129 Mo. App.

### 206. 107 SV 111. No sufficient answer

**10** C. L. 67a.--Mandamus has offered to buy his stock

### 650.

**10** C. L. 67b.--State courts have power to compel a common carrier engaged in interstate commerce to discharge its common-law duty to treat all shippers alike, at least in the absence of congressional action.\[74\]\*\* **Mandamus may**

### 65. State v. Guertin \[Minn.\] 119 NPV 43.

### 66. State v. Donnell Mfg. Co., 129 Mo. App.

### 206. 107 SV 111. No sufficient answer

**10** C. L. 67a.--Mandamus will not lie to compel issue

**10** C. L. 67b.--State courts have power to compel a common carrier engaged in interstate commerce to discharge its common-law duty to treat all shippers alike, at least in the absence of congressional action.\[75\]\*\* **Mandamus may**

### 65. State v. Guertin \[Minn.\] 119 NPV 43.

### 66. State v. Donnell Mfg. Co., 129 Mo. App.

### 206. 107 SV 111. No sufficient answer

**10** C. L. 67a.--Mandamus is not an action to emelinate and disfiver to compel.\[76\]\*\* **Mandamus is not**

**10** C. L. 67b.--State courts have power to compel a common carrier engaged in interstate commerce to discharge its common-law duty to treat all shippers alike, at least in the absence of congressional action.\[77\]\*\* **Mandamus may**

### 65. State v. Guertin \[Minn.\] 119 NPV 43.

**10** C. L. 67b.--State courts have power to compel a common carrier engaged in interstate commerce to discharge its common-law duty to treat all shippers alike, at least in the absence of congressional action.\[78\]\*\* **Mandamus may**

### 65. State v. Guertin \[Minn.\] 119 NPV 43.

**10** C. L. 67a.--State courts have power to compel a common carrier engaged in interstate commerce to discharge its common-law duty to treat all shippers alike, at least in the absence of congressional action.\[78\]\*\* **Mandamus may**

### 65. State v. Guertin \[Minn.\] 119 NPV 43.

**10** C. L. 67b.--State courts have power to compel a common carrier engaged in interstate commerce to discharge its common-law duty to treat all shippers alike, at least in the absence of congressional action.\[78\]\*\* **Mandamus may**

### 66. State v. Guertin \[Minn.\] 119 NPV 43.

**10** C. L. 67a.--State courts have power to compel a common carrier engaged in interstate commerce to discharge its common-law duty to treat all shippers alike, at least in the absence of congressional action.\[78\]\*\* **Mandamus may**

### 66. State v. Guertin \[Minn.\] 119 NPV 43.

**11** C. L. 67b.--State courts have power to compel a common carrier engaged in interstate commerce to discharge its common-law duty to treat all shippers alike, at least in the absence of congressional action.\[78\]\*\* **Mandamus may**
issue as ancillary relief where necessary to carry out the objects of the main case and give complete relief,79 but the circuit court of appeals has no jurisdiction to issue mandamus as ancillary to a mandate of the supreme court.80

Footnote 80: The author is grateful to the anonymous referee for his comments on the manuscript.

SS 4. _Parties. A. Parties plaintiff._ See 10 C. L. 679--Any private person may move without the intervention of the attorney general for a writ of mandamus to enforce the performance of a public duty not due to the government as such,81 but some courts hold that private individuals cannot seek to remedy a purely public grievance by mandamus, but must seek redress, through action by the appropriate officers.82 The direct and special interest of a private individual which entitles him to maintain mandamus to enforce his private right in the performance of a public duty must be independent of that which obtains to him in common with the general public, though such interest may not be different in kind from that of the general public or peculiar to the individual.83 To enforce a private right the real party in interest

from plaintiff's mill, although carrier was engaged in interstate commerce and more than half of mill's output was to be shipped but of state, congress or Interstate Commerce should be named as plaintiff and such proceeding should not be entitled in the name of the state on the relation of such party,\[84\] but the practice of prosecuting such actions in the name of the state on relation of the party beneficially interested is sanctioned.\[88\] Mandamus under the Colorado code being a civil action may be brought in the names of the real parties in interest where it is sought to protect a purely private right.\[89\] Where a corporation acquires rights from a municipality to perform public service acts, the municipality is the proper party to compel their performance.\[97\] Where parties having substantial rights were petitioners in mandamus, the defendants by pleading to the merits waived the objection that the people were not made the nominal plaintiff,\[88\] Failure to proceed in the name of the state may be obviated by amendment.\[99\] The right of intervention exists in mandamus proceedings.\[99\]

(SS 4) \_B. Parties defendant.\[88\]_See 10 C. L. #19_--Where suit lies against a board or an officer in his official capacity, it is immaterial that there is any change in the board or office pending suit.\[91\] In mandamus to compel inspection of corporate books, it is sufficient to make the officer on whom the statutory duty is devolved the party respondent and the corporation need not be joined.\[92\] All persons claiming rights adverse to those sought to be enforced must be joined,\[88\] unless such rights cannot be tried in the proceeding.\[89\]

SS 5. \_Pleading and procedure in general.\[88\]_See 10 C. L. #20_--Before making an application for the writ of mandamus, demand must be made on the defendant to perform the act sought to be enforced.\[99\] Under the provisions of the Washington practice act, mandamus is properly commenced by summons and complaint rather than by motion and affidavit.\[99\] Two or more distinct rights which the petitioner may have growing out of two or more entirely distinct wrongs committed against him cannot be joined in the same mandamus."

SS 6. \_Petition or affidavist.\_See 10 C. L. 882--Though in some states ordinary rules of pleading at law are made applicable," the proceeding is ordinarily instituted by petition, the object of which is to secure the issue of an alternative writ or rule to show cause." It must set forth the material facts relied upon so that they may be traversed or admitted,1 negative any facts which might defeat the right to the writ,2 and show every fact necessary to entitle the relator to the relief sought * and that such right exists at the time of bringing the proceeding.4 Superfluous allegations may be expunged,\* and motion to expunge is the proper remedy to raise the irrelevancy or evidentiary character of averments * but cannot take the place of a demurrer or raise questions of substantial right.' If additional relief is desired, it should be sought by amendment and not by a second independent petition.\*

SS 7. \_Alternative writ.\_See 10 C. L. 881--The alternative writ corresponds in many particulars to a declaration at common law,\* and the facts therein, aided if necessary by the facts alleged in the application therefor, must show a cause of action, that is, a duty to perform and the power to perform on part of the defendant.10

Footnote 10: The author is grateful to the anonymous referee for the support of the President of the The mandatory clause of a writ should expressly and clearly state the precise thing which is required of the defendant \[11\], and should not grant \[12\] greater relief than the allegations of the petition and writ call for.

SS 8. _Demurrer to petition or writ; answer or return; subsequent pleadings._ See 10 C. L. 682.--The alternative writ may be demurred to \[13\], demurrer admitting all \[14\] material allegations \[15\], but not conclusions \[14\], and a like result follows from motion to quash for insufficiency of facts \[17\]. It is a ground of demurrer if the command of the alternative writ exceeds the legal duty of defendant as disclosed by petition and writ \[18\], and if the command of a mandatory writ grant greater relief than the allegations of the petition and writ call for it may be quashed on motion \[18\], but a general demurrer will not lie to a petition which shows a right to a part of the relief asked \[20\]. Separate demurrers are properly filed by a corporation and its individual directors \[21\]. A demurrer will as in other cases be carried back to the first defective pleading \[22\]. By appearing and filing demurrer to a petition, for want of facts, defendant waives issance of the alternative writ \[28\]. By answer to the merits the objections made by demurrer are waived \[24\]. The answer must take issue on all that is sought to be denied \[25\], or tender an issuale averment of affirmative defenses \[26\]. An affidavit of defendant on application for mandamus may be accepted as a return, but an affidavit replying thereto should not be received \[27\]. A return to an alterna-

of mandamus to correct docket entries held not sufficiently clear and certain to show the falsity of the entries and loss of jurisdiction \[\[Nev.\] 94 P 74.

the liability of mistaken in observing the time.

Za. Where petition was insunfletent in not placing or disclaiming amount of bonds that were valid to be issued, and that amount to be issued would not make indebtedness of district

action in a county paper should be made.

A literature writ alleged an entry of an order regarding the election reting that this notice be published, etc. Held bad for not alleging that notice was given. State v. Smith, 129 Mo. App. 49, 107 SW 1051.

**11.** An alternative writ which commands an officer to de several things in the alternative will be quashed on motion. State v. Johns, 170 Ind. 233, 84 NNE 1.

**12.** State v. Johns, 170 Ind. 233, 84 NBE 1; State v. Adams Exp. Co. \[Ind.\] 85 NBE 337.

**13.** Schultler v. New York Transp. Co. \[N. J. Law\] 68 A 905.

**14.** People v. Butler, 125 App. Div. 384, 109 NYS 900. Allegation of fraud on information and belief contained in the answer to a petition are admitted by a demurrer where the fraud is alleged with sufficient particularity. \[Agrfield v. U. S, 31 App. D. C. 382.

**15.** Where a petition for mandamus to compel petitioner's reinstatement to office under the civil service laws averred that petitioner was not furnished a statement of the reasons for dismissal and given an opportunity to reply as provided by statute, and the answer without referring to the averment alleged certain cause for removal, petitioner by demurring to answer did not admit the truth of the charges therein.

Truitt v. Philadelphia, 221 N. 381, 70 A 757.

**16.** People v. Butler, 125 App. Div. 384, 109 NYS 900.

**17.** Braun v. Campbell \[W!s.\] 119 NYW 112.

**18.** Action to compel deliveries by express companies. State v. Adams Exp. Co. \[Ind.\] 85 NBE 337.

**19.** State v. John, 170 Ind. 238, 84 NE 1.

**20.** State v. Parmenter \[W!s.\] 96 P 1047.

**21.** State v. Jumbo Extension Min. Co. \[Nev.\] 94 P 74.

**22.** Where petition was insunfletent in not placing or disclaiming amount of bonds that were valid to be issued, and that amount to be issued would not make indebtedness of district

**23.** State v. Anderson, 170 Ind. 540, 85 NE 17.

**24.** Demurrer on ground of improper parties. Town of Scott v. Artman, 237 Ill. 384, 86 NE 595.

**25.** Answer held to traverse averment of demand for performance of duty sought to be enforced. Ferguson v. Sonoma County Board of Education, 7 Cal. App. 568, 9P 165.

**26.** The petition and answer, too, while statutory substitutes for the alternative writ and return, are still so far common-law pleadings.

that a rule exactly reverse of that governing in equity prevails, and everything not explicitly denied is held admitted. Hohena-

**27.** State, 141 Ill. App. 218. In mandamus to compel payment of a reward offered by the governor, a ple alleging that the offer was signed in blank by the governor and filled in later by his secretary in his absence

**28.** available as tive writ can only be stricken if it is found to be manifestly false, frivolous, or calculated to embarrass or delay the remedy sought.\[28\]

SS 9. \_Trial, hearing and judgment. A. Trial and hearing.\_See 10 C. L. **44**--\*\*At the hearing on the petition and answer to the order to show cause, averments of the answer must be decmed to be true.\[20\] The relator has the burden of proving the allegations of his complaint.\[20\]

\_Jury.\_See 10 C. L. **45**--\*\*By statute in some states where an issue of fact is raised by the pleadings, the court shall on motion refer the same to a jury.\[31\] The practice has been adopted in Illinois of certifying issues of fact in mandamus cases to a trial court with a direction to return a verdict to the supreme court.\[32\] The advisory verdict of a jury will not be affirmed on the ground that in six prior trials there were four similar verdicts and two disagreements, where such verdicts were wholly unsupported by any evidence.\[83\]

\_Damages.\_See 10 C. L. **46**--\*\*Damages for a false return to a writ of mandamus should not include the relator's counsel fees or other disbursements of the trial.\[34\] Where the court declined to issue mandamus, petitioner was not injured by the sustaining of a motion to strike evidence as to damages.\[35\]

\_Abatement and dismissal.\_See 10 C. L. **47**

(SS 9) B. Judgment.\_See 10 C. L. **48**

\_Scope of relief.\_See 10 C. L. **49**--\*\*A writ may issue for a part of the relief asked for **40** but cannot go beyond the prayer.\[37\] Relief granted to parties does not inure to the benefit of others or bar proceedings by them,\[38\] though the court may to avoid multiplicity of suits grant an order which will enure to others entitled.\[39\] Mandamus will compel only such acts as the complaining party is entitled to at the institution of his proceeding.\[40\] The relief granted should be specific.\[41\] The operation of a writ may be temporarily suspended to allow defendants to act voluntarily.\[42\]

28. Borough of Pleasantville v. Pleasant-

ville Water Co. \[N. J. Law\] 69 A 1096.

29. Allport v. Murphy \[Mich.\] 15 Det. Leg. N. 496, 116 NVE 1076. Where no Issue is

inve to the benefit of any other operator

framed the answer must for the purpose of a

motion for a temporary mandamus be taken

Meremaths" Coal Co. v. Fairmont Coal Co. as true. Atteyner General v. State Board

of Agriculture, 153 Mech. 689, 15 Det. Leg. N. 39, Where a water company granted a

355, 116 NVE 552.

30. In mandamus to compel the issuance of

a license to do business, the burden is on the

relator to show compliance with all requirements of the law. American Health & Acc.

Ins. Co. v. Insurance Com'r \[Mich.\] 15 Det. Leg. N. 673, 117 NVE 644. Where statute pro-

vides that liquor licenses shall not be issued

in local option districts, it is incumbent on

one seeking to compel the issue of a license

that is not in a local option district.

Harrison v. Dickinson \[Tex. Civ. App.\] 113 SW 776.

31. Southern Audit Co. v. McKensle, 147 N. 461, 61 SE 283.

01. 33. People v. Alton, 283 II. 542, 84 NE

01.

01. People v. Deutscher Krieger Bund New

York, 113 NYS 367.

35. 265zenheim v. Baltimore Wholesale

Grocey Co. \[M.J.\] 69 A 1071.

36. People v. Clark County Suprs, 234 II.

62, 84 NE 695.

37. People v. Clark County Suprs, 234 II.

62, 84 NE 695; State v. John, 170 Ind. 233, 84 NE 1: State v. Adams Exp. Co. \[Ind.\] 85 NE

38. A judgment of a federal court in a

to allow the owners to do so voluntarily. 12 Curr. L-- 42.

Costs.See 10 C. L. 685.There is no rule or statute in federal courts giving costs to the prevailing party on a mere order to show cause, and such a case is governed by the principles of equity.\[48\] In mandamus proceedings against a judge, costs will not be taxed against him.\[44\] If on summons to show cause adverse parties appear and resist mandamus on the merits, costs may go against them.\[45\] In New York costs may be awarded as in an action where an alternaitve writ of mandamus has been issued.\[46\]

SS 10. \_Peremptory writ.See 10 C. L. 885.Where both parties have been heard on a rule to show cause, and there are no disputable facts, a peremptory writ may issue in the first instance.\[47\] Matters arising after an alternative writ of mandamus is issued which makes it improper for the respondent to do the act relator seeks to compel afford a ground for refusing a peremptory writ.\[48\]

SS 11. \_Performance.See 10 C. L. 666.\_Where a writ commands that relator be restored to a position, it contemplates a restoration to duties similar to those performed by him at the time of his discharge.\[49\]

SS 12. \_Review.See 10 C. L. 686.\_The city of New Orleans has a right to appeal from a judgment in a mandamus suit against its treasurer ordering the payment of money out of municipal funds.\[50\] In New Jersey the grant or refusal of an alternative writ is reviewable by writ of error,\[51\] while the award of a peremptory writ or the refusal of the court to act is not so reviewable \[62\] in the absence of statute,\[53\] unless a final judgment enters on an issue of fact.\[64\] In New York an order for an alternative writ is not appealable, not affecting a substantial right.\[53\] The granting or refusal of the writ being addressed to the sound discretion of court, only in a clear case of abuse of discretion will the granting of mandamus be reversed.\[64\] It will be presumed on appeal where the findings support the judgment that the evidence supported the findings and that the question was heard and determined by the court as though made an issue by the pleadings.\[57\] Where a general direction is given to a lower court, the same is to be carried out in a form to be settled by such lower court.\[68\]

Mandate; Marine Insurance; Maritune Liens; Market Reports; Markets; Markets; Markets, see latest topical index.

People v. Ahearn, 124 App. Div. 840, 109 NYS 249. Where in mandamus proceedings to compel the issue of a license the court found the reasons therefor insunMicent, it did not grant a peremptory writ on the ground that it was not likely that the Law! 840. A 840. Error will not lie to an account of the Supreme Court directing man- to a court. Common Council of Jackson, 152 Mich. 680, 15 Det. Leg. N. 837, 116 NW 456. 43, 44, 45. In re Hight & Freese Co. \[C. C. A.\] 164 F 688. 46, People v. Deutscher Kreiger Bund New York, 113 NYS 867. 47, Palmer v. Essex County Chosen Freeholders \[N. J. Law! 71 A 285. Where all the facts essential to reller sought are admitted and the defendant has filed an answer assigning every possible reason why a peremptory writ should not issue, which reasons are insufficient, the issue of an alternaitve writ is unnecessary, but plaintiff is entitled to a peremptory writ. Southern Audit Co. v. McKensie, 147 N. C. 461, 61 SE 283. 48. Writ to compel issue of license before return day, no license voted. State v. Miller, 129 Mo. App. 830, 108 SW 603. 49, People v. Stevenson, 57 Misc. 64, 108 NYS 860. 50. State v. Kennedy, 121 La. 757, 46 S 796. 51. Schnitzler v. New York Transp. Co. \[N. J. Law! 68 A 905; Crane v. Nonenthal \[N. J. Law! 69 A 972. 52. Schnitzler v. New York Transp. Co. \[N. J. Law! 68 A 905. Error will not lie to an order of the Supreme court directing man- to a court. Morris & Cummings Dredging Co. v. Dayonne \[N. J. Err. & App.! 70 A 184. 54. Morris & Cummings Dredging Co. v. Bayonne \[N. J. Err. & App.! 70 A 184. 55. People v. Millard, 111 NYS 23. 56. State v. Lincoln Medical College \[Neb.\] 118 NW 294. 57. Ferguson v. Sonndma County Board of Education, 7 Cal. App. 568, 95 P 165. 58. Decree of federal district court for transfer to adverse calimants of part of proceeds of sale of property not in possession of trustee in bank * 1. Nature of Marriage; Capacity of Par- \[$ 3. Validity and Effect, 602. \] **1.**: \*\*Fraud and Duress, 650. \] **1.**: \*\*Fraud and Duress, 650. \] **1.**: \*\*Essentials of a Contract of Marriage, 650. \] **1.**: **Fraud** and Duress, 650.

ther do mere irregularities 72 nor failure to comply with conditions as to filing 73 the marriage contract.

_A common-law marriage_ See 10 C. L. 687 has the same effect as marriage by ceremony 74 and may be contracted in one state although parties are and continued to be residents of another state.75 To establish a common-law marriage de praesenti, there must be a present agreement 76 to be husband and wife, entered into in good faith,77 followed by a present assumption of the marriage status.78 The evidence of a common-law marriage should be clear, consistent, and convincing,79 and in absence of direct evidence of a marriage per verba de praesenti, there must be proof of conduct or declarations 80 from which the contract may be presumed.81 While a cohabitation meritricious in inception will be presumed to continue so,82 slight evidence is sufficient to overcome the presumption.88

_Evidence of marriage_, See 10 C. L. 687

_Marriage may be proved by record evidence._

72. Application by wife alone, if identified, is sufficient under Act of May 1, 1893, P. L. 282. Cohabitation pr intercourse not neces-27, amending Act of June 23, 1885, P. L. 146. Miller's Estate, 34 Pa. Super. Ct. 885. Nothing in Act of May 1, 1893, P. L. 27, amending Act of June 23, 1885, P. L. 146, requiring married to be performed within any given time after issuance of license. Marriage six months after. Id.

_T3._ Sec. 19 of the Domestic Relations Law, added by c. 839, Laws of 1901, absolutely avoiding marriage by failure to comply with requirement of filing marriage contract within six months from date of marriage, was repeated before the expiration of the time for filing. Held on motion for almony pendente life that omission to file made the marriage possibly voidable, but not void. Kahn v. Kahn, 113 NYS 816.

_T4._ Davis v. Stouffer \[Mo. App.\] 112 SVW 282.

_T5._ In contested wl! it appeared that decedent's wife had been divorced in New York and decree prohibited remarriage on showing that decedent and his alleged wife had gone to New Jersey and there entered into a common-law marriage, and thereupon returned to New York and cohabited as husband and wife. Held, this constituted a marriage valid in New York. In re Garner's Estate, 59 Misc. 116, 112 NYS 212.

_T6._ Contract per verba de praesenti by which parties intend that marriage status shall arise immediately constitutes a valid marriage in itself, and is distinct from a case where something else is intended to be done before status arises. Davis v. Stouffer \[Mo. App.\] 112 SVW 282.

_T7._ Parties illicity cohabiting, on request of alleged wife's mother answered questions in Episocal marriage service when read by her. Held not sufficient to establish contract, when considered in connection with subsequent refusal of man to have ceremony performed. Wolehotht v. Primm, 16 Wyo. 840, 94 P 453. A mere written agreement does not create relation where it appeared that cohabitation was meretricleus in inception, that parties did not consider themselves unless they had gone to be removed without any other way of the same argument.

_T8._ Need be no more than recognition that by contract parties, in good faith, have come and are married for purpose of assuming and carrying out the marriage rela 12 Cur. Law. MARRIAGE $ 2. 661

dence,${}^{ ttt 4}$ by declarations,${}^{ t ss}$ letters,${}^{ t ss}$ or by testimony of the parties thereto,${}^{ t 97}$ or of any person having knowledge of the facts,${}^{ t ss}$ or by facts and circumstances.${}^{ t ss}$ Proof of marriage after a great length of time need not be as exact as of a recent one.${}^{ t 90}$ Proof of cohabitation and repute when coexisting ${}^{ t 91}$ raises a presumption of marriage,${}^{ t ss}$ whether common-law marriages are recognized or not.${}^{ t ss}$ The evidence as to

84. Evidence held admissible: Introduction of license, certificate and testimony of priest held sufficient to sustain finding of actual marriage. Miller's Estate, $4 Pa. Super. Ct. validity shall not be affected on account of want of jurisdiction of authority of off-decree granting divorce held competent evidence to prove marriage in prosecection for fully believe they have been lawfully marriegancy. Pontier v. State, 107 Md. 384, 68 A

01. Certified copy of license and certificate of marriage competent to corroborate witness/returnary as to his marriage. Witty v. Barham, 147 N. C. 479, 61 SEE 372.

Evidence held landmarkistic: An instrument purporting to be a marriage certificate but of which there is no proof as to execution or recordation is immissible to prove marriage. Lamers v. Woodson, 120 La. 1031,

46 S 13. Purported marriage certificate is-sued by, justice of the peace landmissible queen whether bonds of former marriage fact that he executed it in his official capacity. But I've not being proven. Belman v. Holtman, 170 A. 679. Evidence examined and \[Ky.\] 114 SWV 1198. Certificate of Reaper of record of vital statistics, not an authenticon for alternation of affection. Bair v. Peterson \[Mc. App.\] 110 SWV 615. Eviv-its substance. Pontier v. State, 107 Md. 884,

68 A 1059. Where statute makes issuance of license hummerial if marriage otherwise valid, a certificate of clerk of court stating that no entry of license appeared, inadmi-sible. Id.

85. Declarations of persons who knew the parties as to marriage E0 years before. Dunn v. Garnett \[Ky.\] 112 SWV 841. Declarations of wife after husband's death as to fact of marriage landmarkistic.

Forefa marriage held not proved by evil. Drwady v. Hesteras, 130 Ga. 261, 60 SEE 461. In a suit wherein plaintiff claimed her relevance as decedents' widow, evidence that

decedent declared himself a single man admissible as a member of plaintiff's family. In re Imbed's Estate, 128 Mo. App. 555, 107

86. Letters to decedent from one who claimed to be his widow not admissible as part of res geeta, where letters from decedent to plaintiff not also offered. In re Imbed's Estate, 128 Mo. App. 555, 107 SWV 400.

01. In action for criminal conversation, testimony of the husband and wife that they were married by a minister of the Gospel twenty-five years before, that they had since constantly lived together as husband and wife, that they had a son 22 years old, showed an actual marriage. Stark v. John-son, 43 Colo. 243, 55 P 930.

01. On issue of whether beneficiary under certificate issued by fraternal benefit association was wife of assured, evidence of one witness present at marriage ceremony and another who knew her as wife of assured held sufficient. Potievska v. Independentent v. Western Star Order \[Mc. App.\] 114 SWV 872. Parcl testimony to show religious ceremony in Italy not in violation of rule requiring best evidence. Massuece v. Tomassi, 80 Vt. 186, 67 A 851.

01. Evidence of ceremony by priest and infrequent combination as husband and wife, that they had a son 22 years old, showed an actual marriage. Stark v. John-son, 43 Colo. 243, 55 P 930.

01. Evidence of 663 MARRIAGE $ 3. 12 Cur. Law. repute must be general and uniform,94 and the cohabitation must not have been illicit in its inception.95 Less proof is required to show a marriage in fact between persons competent to marry at the beginning of the cohabitation than when it appear that one was at that time knowingly incompetent, even though the impediment was subsequently removed.96 There is no presumption that a contract was entered into after the removal of such impediment.97

$ 3. _Validity and effect._ See 10 C. L. 688 Every marriage is presumed valid 98 and when once established is presumed to continue,99 but these presumptions while strong, may be overcome by testimony sufficient to satisfy the jury that there was no valid marriage or that it did not continue.1 A marriage valid according to the law in force when made is valid although that law was later repealed.2 Validity is to be determined according to the law of the place where the marriage was entered into,3 but if valid according to that law, it is valid anywhere,4 even when the parties have left their own state to marry elsewhere for the purpose of avoiding the laws of the state of their domicle.8 A marriage void in inception may become valid

either will be entertained. In re Rossignot's 96 P 684. 98. Where plaintiff in a suit involving community property was shown to have lived with decedent as husband and wife, wife or assured. Hilliard V. Wisconsin Life to have held her out as his wife, made conveneyances in which she joined as wife, buried her as such and that she was considered by friends as such, held sufficient to show marriage in Washington where common-law marriages are not valid. Nelson v. Carlson, 48 Wash. 61, 94 P 477. 94. Evidence examined and held not uniform. Wedenholt v. Primm, 16 Wyy. 340, 94 P 453. Conflict in testimony as to general reputation. Penney v. St. Joseph Stockbards Co., 212 Mo. 809, 111 SWY 79. 95. Where plaintiff on a issue of heknight admitted that her relations with decedent were merticulous in the beginning, they will be presumed to continue so, despite an alleged later contract of marriage. Wedenholt v. Primm, 16 Wy. 340, 94 P 453. Evidence as to nature of cohabitation considered and held insufficient to show relation of husband and wife. Id. Declarations of husband denying marriage made during period of cohabitation are admissible as part of resgate. Drawdy v. Hesters, 130 Ga. 161, 60 SE 451. 96. In action to quit title, it appeared that defendant married, having an undivored wife who subsequently obtained a divorce from him with personal service, in absence of proof of a new contract after divorce, and on showing that he continued to cohabit with his last wife, who was ignorant of disability, held sufficient to warrant presumption that no valid marriage was ever consummuted. Compton v. Benham \[Ind. App.\] 85 NB 865. 97. Where man, having a wife living, entered into illicit relations with another, cohabitation was continued unchanged after divorce of first wife not of itself sufficient to show a contract of marriage after impediment removed. O'Neill v. Davis \[Ark.\] 113 SWY 1027. 98. Marriage and cohabitation for eighteen years in neighborhood where wife by alleged prior marriage resided. Sparks v. Ross \[N. J. Eq. 70 A 679. Banns, licensees, etc., presumed. In re Sloan's Estate \[Vdash.\] 96 P 684. 99. In action on Insurance policy presumption is that beneficiary continued to remain wife or assured. Hilliard V. Wisconsin Life 122 No. C. \[Vfs.\] 117 NW 899. 1. Where defense in euit on insurance policy was that beneficiary was not the wife of assured, an instruction that the jury was bound to presume a divorce of beneficiary marriage as not valid. Nelson v. Carlson, 48 Wash. 61, 94 P 477. 94. Evidence examined and held not uniform. Wedenholt v. Primm, 16 Wy. 340, 94 P 453. Conflict in testimony as to general reputation. Penney v. St. Joseph Stockbards Co., 212 Mo. 809, 111 SWY 79. 95. Where plaintiff on a issue of heknight admitted that her relations with decedent were merticulous in the beginning, they will be presumed to continue so, despite an alleged later contract of marriage. Wedenholt v. Primm, 16 Wy. 340, 94 P 453. Evidence as to nature of cohabitation considered and held insufficient to show relation of husband and wife. Id. Declarations of husband denying marriage made during period of cohabitation are admissible as part of resgate. Drawdy v. Hesters, 130 Ga. 161, 60 SE 451. 96. In action to quit title, it appeared that defendant married, having an undivored wife who subsequently obtained a divorce from him with personal service, in absence of proof of a new contract after divorce, and on showing that he continued to cohabit with his last wife, who was ignorant of disability, held sufficient to warrant presumption that no valid marriage was ever consummuted. Compton v. Benham \[Ind. App.\] 85 NB 865. 97. Where man, having a wife living, entered into illicit relations with another, cohabitation was continued unchanged after divorce of first wife not of itself sufficient to show a contract of marriage after impediment removed. O'Neill v. Davis \[Ark.\] 113 SWY 1027. 98. Marriage and cohabitation for eighteen years in neighborhood where wife by alleged prior marriage resided. Sparks v. Ross \[N. J. Eq. 70 A 679. Banns, licensees, etc

## 12 Cur. Law. MARRIGAGE SS 4.

when impediment is removed.\* A subsequent marriage raises no presumption of invalidity of the first,' even between the same parties,\* but will create a presumption of a preceding valid divorce.\* Presumptions in favor of second marriage merely overcome a presumption as to first marriage arising from reputation and cohabitation, and do not overcome actual proof of first marriage.\[10\] A decision of the courts of a sister state is decisive evidence as to validity.\[11\] Doctrine of estoppel does not apply as between husband and wife and parent or child.\[12\]

SS 4. _Proceedings for annulment._\[86\] to C. L. 688--A decree of annulment is not necessary to elothe the parties with all the rights of unmarried persons.\[13\] If the court has jurisdiction of the parties and proceedings,\[14\] its judgment, although erroneous, is valid until set aside or reversed.\[13\] Annulment is not equivalent to divorce,\[16\] The court, unless controlled by positive enactment, proceeds as a court of

marriage valid. Sturgis v. Sturgis \[Or.\] SS 8

Sloan's Estate \[Vwash\] 96 P 684.

6. In a suit to establish plaintiff's dower, it appeared that prior to her alleged marriage to decedent she was already married to one S., of whom nothing had been heard for three years prior to the marriage to decedent. Held that, the reputed marital relations and cohabitation of plaintiff and decedent continuing on the expiration of seven years from the disappearance of S, the marriage become presumptively valid. Smith v. Fuller \[Iowa\] 115 NW 912.

1. Evidence of subsequent marriage will not raise a presumption that first marriage was terminated by divorce or death, where it appears that the parties were alive and in the absence of evidence showing divorce. Smith v. Fuller \[Iowa\] 115 NW 912. Where parties were married in Canada and subsequently in New Jersey, if first marriage was valid the second would amount to nothing. Knapp v. State \[Tex. Cr. App.\] 114 SWV 836.

1. Remarriage subsequent to marriage contracted after first marriage does not invalidate presumption of continuance of first marriage. Smith v. Fuller \[Iowa\] 115 NW 912. Where parties were married in Canada and subsequently in New Jersey, if first marriage was valid the second would amount to nothing. Knapp v. State \[Tex. Cr. App.\] 114 SWV 836.

1. Remarriage subsequent to marriage contracted after first marriage does not invalidate presumption of continuance of first marriage. Smith v. Fuller \[Iowa\] 115 NW 912.

1. Sufficient to make wife competent witness for his child on issue in electment as to whether child was daughter of decensed by alleged wife. Lyon v. Lash \[Kan.\] 99 P 598.

1. In suit to determine title to decedent's property wherein decedent's husband claimed a valid and subsisting marriage prior to his marriage to decedent, evidence held sufficient to establish first marriage and to overcome presumption of validity of the second. In re Sloan's Estate \[Vwash\] 96 P 684. Defendant married plaintiff in annulment suit in good faith believing that her former husband was dead, not having heard from him for five years, held voidable but not void. Stokes v. Stokes, 113 NFS 142.

1. In a suit brought in Idaho to determine widow's right to half-interest in property of deceased, judgment and decree of Supreme court of Utah in suit between same parties on same question adjuding her marriage to deceased valid is res adjudication and controlling in Idaho court. Hilton v. Stewart \[Idaho\] 96 P 579.

1. In suit involving community property where decedent's husband alleged a prior marriage, he was not estopped to deny the equity in the exercise of its jurisdiction of matrimonial causes, despite fact that that jurisdiction is conferred and regulated by statute,17 and may, where a marriage is not void but voidable, deny complainant relief where he does not come into court with clean bonds.18 Annulment will not be granted for physical incapacity where, by reason of the advanced years of the parties, the desire for support and companionship, rather than the usual motives of marriage, must have actuated them.19

SS 5. \_Criminal offenses and penalties.\_See 10 C. L. 880

**Marriage Settlements, see latest topical index.**

**MARSHALING ASSETS AND SCURITIES."**

_The scope of this topic is noted below.21_

Broadly stated, the doctrine of marshaling assets is that a creditor who has the right to make his debt out of either of two funds must resort to that one of them which will not interfere with or defeat the rights of another creditor who has recourse to only one of the funds.22 It is confined to cases where two or more persons are creditors of the same debtor and have successive liens upon the same property, while the creditor prior in right has also other securities belonging to the same debtor not available to the junior lien.22 It is not a vested right or lien founded on contract, but rests upon equitable principles22 to the end that the claims of both creditors shall be satisfied;23 hence it is not invoked in favor of one having an adequate remedy at law,28 nor will it be enforced to the detriment of the prior creditor.27 Injunction will issue to prevent prosecution of a suit until another fund has been exhausted,28 but the right to compel one to resort to a particular fund cannot be de-

**nonresident, does not extend to an action**

**But court may inquire into circumstances to annul. Bisby v. Mould \[Iowa\] 115 NW**

**Stokes, 113 NYS 142.**

**17. Where plaintiff in annulment suit**

**founded on having a former wife living was**

**shown to have knowledge and to have acted in bad faith, the court will refuse relief. Berry v. Berry, 114 NYS 497.**

\*\*18. Where husband in the second marriage entered into in good faith by both parties, after knowledge that his wife had another husband still living elected to continue to treat her as his wife. Stokes v. Stokes, 113 NYS 142. Code City. Proc. 8 1746, providing that an action to annul a marriage upon ground that former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the lifetime of the other, or by former husband or wife, construed not to afford relief to one who has acted in bad faith and knowingly connected a bigamous marriage, its object being to protect the innocent and aid those who have acted in good faith. Berry v. Berry, 114 NYS 497. Evidence, in annulment suit on ground that plaintiff had a former wife, examined and held to support finding that he acted with knowledge and in bad faith in contracting his second marriage. Id. Section 3 of the Domestic Relations Law, providing that "a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless either--(3) Such former husband or wife has absented himself or herself for five successive years then last past without being known to such person to be living during that time" in which event such "a marriage is void from the time its nullity is declared by a court of competent jurisdiction" held not mandatory so as to confer relief as matter of strict legal right.

12 Cur. Law. **MASTER AND SERVANT SS 1.** 665

clared in an action not brought for that purpose, where all the parties necessary for the determination of the question are not before the court.${}^{ ext{ ext{ extcite}}}$

If a mortgagee or other lienholder releases part of the land or premises upon which his lien exists, to the prejudice of a subsequent incumbrancer or purchaser with notice of the subsequently acquired rights, his release will operate as a discharge of his lien to the extent of the value of the land released,${}^{ ext{ extcite}}$ but such release will not impair the lien unless the lienholder knows that the release must result in injury to subsequently acquired rights, or has such notice of the probable existence of such rights as to make it his duty to investigate and inquire before acting,${}^{ ext{ extcite}}$ and as a general rule, such lienholder will not be chargeable with constructive notice;${}^{ ext{ extcite}}$ hence the mere registration of a subsequent mortgage or deed of conveyance or possession does not operate as such notice.${}^{ ext{ extcite}}$ It will be presumed that the holder of a lien who executes a release of a part of the law is acquainted with the contents of the release.${}^{ ext{ extcite}}$

As applied to the settlement of estates, the doctrine may be defined as such an arrangement of the different funds under administration as will enable all parties having equities therein to receive their due proportions, notwithstanding any intervening interests, liens, or other claims of particular persons to prior satisfaction out of a portion of the funds.${}^{ ext{ extcite}}$

**MarshaIng Estate, see latest topical index.**

**MASTER AND SERVANT.**

**SS 1. The Relation; Statutory Regulations,**

C. Methods of Work, Rules and Regulations, T11.

665. Discharge of Employe, 667.

D. Warning and Instructing Servant,

Remedy for Wrongful Discharge,

715.

001. Labor Laws, 670.

E. Fellow-Servants and Vice-Principals,

720.

**SS 2. The Right of the Master In Services of**

720.

the Employe, and Right of Employe

721.

to Compensation Trade Seerets;

G. Contributory Negligence, 761.

Medical Treatment; Assignments of

722.

**Vrages; Statutory Regulations;**

1. In General, 776.

1. Parties, 777.

**SS 3. Masters' Lability for Injuries to Servants, 677.**

4. Evidence, Burden of Proof; Pre-

A. Nature and Extent in General, 677.

5. Instructing, 776.

S. Instructing, 776.

ment of, and Injuries to Children,

6. Verdicts and Findings, 789.

Including Statutory Libability, 680.

8. Labability for Injuries to Third Persons,

1.

The Relation of Master and Servant Must Exist, 682. The Master's

A. In General, 789.

Negligence Must Have Beem the

B. Procedure, 805.

Proximate Cause of the Servant's

8.5 Civil liability for Interference with Re-

Injuries, 886. Contractual Exemption from Labability, 690.

B. Tools, Machinery, Appliances, and

Places for Work, 690.

_The scope of this topic is noted below.${}^{ ext{ extcite}}$_

SS 1. \_The relation; statutory regulations.\_See 10 C. L. 691.-The relation of master

and servant rests upon contract,${}^{ ext{ extcite}}$ express or implied, and its existence is to be de

**20. Where defendant's indebtedness was**

34. One executing release chargeable secured by mortgages on property of debtor and his wife and a prior indebtedness was

with knowledge of claim under sale recited

and his wife and a prior indebtedness was

in release. Watson v. Vansickie \[Tex. Civ.

seovered by signature of a surety, question

App. 114 SW 1160.

whether defendant should be required to re-

35. Doctrine not applicable to decedent's sort to the other security could not be de-

debits same being payable out of her own es-

termined in action to set aside mortgage,

tate before resort could be had for that

where wife and surety were not made par

purpose to another estate over which the

tides. Foley's Trustee v. Foley, 82 Ky. L. B.

1228, 108 SW 270.

30. Watson V. Vansickie \[Tex. Civ. App.\]

114 SWV 1160.

31, 32, 33. Lienholder held to have had actual notice. Watson v. Vansickie \[Tex. Civ. App.\]

114 SWV 1160.

40.

termined, in general, by reference to the principles applicable to other contracts," and to the facts of each particular case. A contract of employment is not lacking in mutuality because the party employed does not bind himself to continue in the employment for a definite period." Whether the relation created is that of master and servant or employer and independent contractor depends upon the terms of the contract," the test being, in general, the degree of control exercised by the one over the other in the performance of the particular service or work contracted for."

\_Termination of the relation._See 10 C. L. 691--The term for which a servant is employed must be determined by reference to the contract " and, where its terms are not clear and certain, by reference to all the attendant facts and circumstances," and the construction which they themselves have placed upon it." Where the parties mutually acquiesce in a continuance of the service without change, after expiration of a term, there is an implied hiring for another term of the same length " at the same compensation," but a holding over in an employment to a fixed date creates an employment at will." Where no definite term is fixed, th${}_{3}$ contract is terminable at will by either party " without notice or cause." There is a conflict as to whether the use of a certain unit of time in naming compensation is sufficient evidence to sustain a finding of a hiring for that term." Some courts hold that

for common benefit of both. Brown v. Warden v. Hinds \[C. C. A.\] 163 F 201. Con-Rome Mach. & Foundry Co. \[Ga. App.\] 62 vereston with nurse, employed for two weeks, at 815 per week, at close of engagement held merely hiring at will for future, and not hiring for definite term. Sproule Minn. 44, 117 NVE 228.

39. See Independent Contractors, 11 C. L. 1896; also, post, $ 4.

01. Where contract between parties did not show that one was to control the manner of doing things called for by contract, as well as what was to be done, and other did not give all his time, relation established was not master and servant. McKenna v. Stayman Mfg. Co., 112 NYS 1099.

01. Evidence held to warrant finding that civil engineer was employed for certain term. Cooke v. Independent Tel. & T. Const. Co. \[N. J. Law\] 68 A 790. Evidence held to show that contract for month was afterwards made for term of one year. Paryear v. Oult \[S. C.\] 62 SE 843. Whether sales manager for corporation had been hired by the year held for jury. Arkadelphia Lumber Co. v. Asman, 85 Ark. 658, 107 SW 1171. Plaintiff was hired at "82,500 for the first year" and $3,000 "for the second year and thereafter." Held, hiring from year to year, action for damages would like for discharge during third year. Mason v. New York Produce Exch., 111 NYS 168. Evidence sufficient to warrant finding of contract for one month's service, after expiration of yearly term. Maynard v. Royal Worcester Correct Co., 200 Mass. 1, 85 NE 871. Salesman's contract held not hiring for one year, but at most a hiring for by the week. Tubbs v. Cummings Co., 200 Mass. 55, 85 NE 821; Velsman v. Robertson, 113 NYS 981; Egan v. Chabot, 124 App. Div. 593, 109 NYS 110. Evidence held to show hiring for indefinite term. Miller v. Ritter Lumber Co., 33 Ky. L. R. 698, 110 SW 869. Employment at "$70 a month," without agreement as to term, is hiring at will and not for month. Frankel v. Central R. Co., 114 NYS 137. Contract to pay $25 a week, no period being fixed, is hiring at will, terminate by either party without notice.

12 Cur. Law. **MASTER AND SERVANT SS 1.** 667

a hiring at so much per year, no time being specified, is indefinite and may be terminated at will," but it is said that the weight of authority is that this circumstance alone, in the absence of any other consideration impairing its weight, will sustain a finding of. a hiring for that period.\[51\]

\_Discharge of employe.\_See 10 C. L. 692...No particular form of words is required to constitute a discharge; any words, written or verbal, or acts, conveying the idea that services are no longer desired and will not be accepted, may constitute a discharge.\[52\] The question is one of fact, dependent upon the circumstances of each case.\[53\] A request to resign is not a discharge when not treated as such by the parties.\[54\] While an employe is justified in refusing to continue services. when his employer refuses payment according to contract,\[55\] such breach by defendant is not a discharge.\[56\]

A servant is bound to obey all lawful and reasonable orders of his employer,\[57\] and if an order is reasonable and lawful the employer's motive in giving it is immaterial.\[58\]

Disobedience of orders and failure to perform the work for which he was employed is ground for dismissal,\[59\] but disobedience of an unreasonable or unlawful order is not.\[60\] Whether an order is reasonable is a question of fact,\[61\] in determining which it may be presumed that an employe is hired with some regard, to his known capabilities, when the contract contains no limitations as to the nature of services to be required.\[62\] A discharge is justified where the servant does not give his entire time and attention, as agreed, to the master's business,\[58\] or is negligent in the performance of his duties.\[59\] Where a contract requires services satisfactory to the employer, and the employment involves taste, fancy, interest, and personal satisfaction or judgment of the employer, he may discharge when he considers services unsatisfactory\[63\] and no question of good faith is involved.\[64\] If services do not in-set Co., 200 Mass. 1, 85 NDE 877: also cases **Wolf Cigar Stores Co. v. Kramer \[Tex. Civ. cited supra, as to hiring by week or month. App.\] 180 SVP 890.** 50. See cases cited in Maynard V. Royal 54. Reiter v. Standard Scale & Supply Co., WVorester Corset Co., 200 Mass. 1, 85 NE 141 Ill. App.\] 427.\*\* 55. Barnett v. Cohen, 110 NYS 885.\*\* 56. Plaintiff allowed to recover wages due to having for year. Maynard v. Royal Worcester Corset Co., 200 Mass. 1, 85 NE 877.\*\* 57. Reiter v. Standard Scale & Supply Co., 287 Ill. 874, 86 NE 745.\*\* 58. Reiter v. Standard Scale & Supply Co., 287 Ill. 874, 86 NE 745. Correspondence held **58. As desire to get rid of servant by as-too **1** indefinite to constitute termination of **1** or **1** or **1**. Bolles v.** 59. Plaintiff rightfully dismissed where **1** or **1** is the refused to perform services unless an-a \*\*discharge but mere unaccepted offer of \*\* 468 MASTER AND SERVANT SS 1.12 Cur. Law.

volve questions of taste and personal satisfaction, the question of good faith in discharging the employe is one of fact. \[67\] A servant's default in abandoning the service may be waived by the employer. \[68\] A wrongful breach of contract by the master relieves the servant from further performance of any of its conditions. \[69\]

_Remedy for wrongful discharge._\[80\] 0 C. L. \[94\]-For a wrongful discharge, the servant has a right of action for damages \[70\] which may be maintained before expiration of the term for which he was employed. \[71\] The measure of damages is the amount which the employee would have earned under the contract \[72\] less what he earned or could have earned by the exercise of reasonable diligence in other employment, \[73\] it being the duty of the discharged employe to lessen his damages by the use of such diligence, \[74\] to obtain other employment of the same grade and kind, \[75\] and if such employment cannot within a reasonable time be secured, then to seek other work for which he is fitted, \[76\] but he is not bound to mitigate damages by accepting employment to which he was not accustomed and for which he was not fitted. \[77\] Where the action is brought before expiration of the contract term, the measure of damages is the amount of wages due and unpaid at time of trial less earnings up

66, 67. Saxe v. Shubert Theatrical Co., 57

\[inficiency. Millert v. Augustnian College, Misc. 620, 108 NTS 683.

68. Plaintiff, after having abandoned work

\[69\] show contract for year at $1,000 as rink

\[69\] to allow defendant to get some one else to

\[69\], that plaintiff refused other employe-

\[69\], and to warrant recovery for accrued

\[69\], and did not object until after plaintiff

\[69\],

13 Cur. Law. MASTER AND SERVANT SS 1.

to that time," and what he would have earned under the contract " less probable future earnings." But the rule that earnings of the employee are to be deducted does not apply where the contract calls for only a portion of the employee's time " and where the amount actually earned could have been earned in his own time after performing the services called for by the contract." In an action for damages, the burden is upon plaintiff to show the contract of employment " and wrongful discharge." It is generally held that the burden is upon defendant to show that plaintiff found or could have found other suitable employment " and that, in the absence of such proof, plaintiff is entitled to recover the salary fixed by the contract," but it is not prejudicial error to allow plaintiff to prove, while making his case, that he in fact did not secure other employment," and where such showing is made, plaintiff is entitled prima facie to wages or salary for the balance of the term." The burden is upon defendant to plead " and prove justification for the discharge." Even though plaintiff pleads that he was discharged without cause, he does not assume the burden of proving it." Usually the complaint in such action should set out the contract, the wrongful discharge, ability and willingness of the employee to perform the work required, and a claim of damages for the breach." But a complaint which does not allege or claim damages as such, but demands judgment

78. Davis v. Dodge, 110 NYS 787.

01. In an action for breach of contract

brought before expiration of the stipulated

term, plaintiff is entitled to recover as dam-

adapted in Massachusetts. Maynard v.

ares what he would probably have earned

Royal Worcester Corset Co., 200 Mass. 1, 85

under contract. Webb v. Depew, 152 Mieh.

89. 15 Det. Leg. N. 85, 116 NWV 560.

01. Future damages may be allowed so far

as they are reasonably certain, though

amount is different to ascertain. Davis v. Dodge, 110 NYS 787.

makes prima facie case for wages for bal-

81. As where dentist was employed as

demonstrator from 1 to 5'clock each day.

Nracks v. College of Physicians & Surgeons, 7 Cal. App. 238, 94 P 81.

82. Amount earned by dentist, could have

earned in spare time, and he could have

performed contract services also during

term. Nuckolls v. College of Physicians & Surgeons, 7 Cal. App. 233, 94 P 81.

83. Finding of employment of plaintiff

as designer for one year held contrary to

great weight of evidence and judgment

thereon reversed. Stein v. Mendetz, 125

App. Div. 561, 109 NYS 1025. Where memorandum of agreement left open question of

mode of accounting by which to determine

profits in which plaintiff was to share, and

parties could not agree thereon, contract

was incomplete and plaintiff could not recover damages for discharge, regardless of

question of defendants' good faith in failing to agree. Petze v. Morse Dry Dock & Repair Co., 125 App. Div. 267, 109 NYS 828.

84. Burden is on plaintiff to establish

making of contract and his wrongful discharge. Chate v. Goldberg, 110 NYS 817.

85. Quick v. Swing \[Or.\] 99 P 418.

den on defendant to show earnings or what

employee ought to have or could have earned.

Really Co. v. Ellis \[Ga. App.\] 61 SB 832.

92. Quick v. Swing \[Or.\] 99 P 418. In ac-

Where a breach of contract by the employer

is established, the burden is upon defendant

to show that similar employment could

that defendant disregarded its obligation

have been obtained by reasonable effort and

and neglected to pay plaintiff, and that

that it was refused or reasonable efforts

plaintiff was at all times prepared and neglected. Altes v. Blumenthal, 113 NYS

ready to discharge his duties, held proper.

574. This burden is met by defendant where

001. This burden is met by defendant where

001. Duffing admits on cross-examination that

001.

670 MASTER AND SERVANT $ 1. 12 Cur. Law. for a specified sum, may be held equivalent to a claim for damages," where it is not attacked by demurrer." In an action for liquidated damages as fixed by the contract, its terms must control," though it is not error to receive unnecessary evidence as to the reason for the clause providing for damages." Whether the claim for damages was waived by voluntary resignation is a question of fact." All relevant facts transpiring between the discharge and the trial may be shown and considered in estimating damages." Where the employe went into business for himself after his discharge, the details of his business after the expiration of the contract term could not be proved to show the value of his services to himself before expiration of the term." Receipts signed by plaintiff, reciting employment by the week only, are binding upon him unless explained." In Louisiana it is provided by statute that an employe discharged without serious cause may recover as a penalty the salary for the unexpired term." But this statute is held inapplicable to purely executory contracts;" in such cases only actual damages are recoverable." _Remedies of master for breach by servant._" See $ C. L. 845--Workmen have the right to quit the service at any time, singly or in concert, even in violation of their contracts," subject, of course, to the right of the employer to recover damages for the breach." A court of equity will not enjoin breach of a contract for ordinary personal services, the remedy at law being adequate," nor will breach of an agreement not to engage in business in the state be enjoined, in the absence of some special equity involving good will, peculiar, intellectual or other skill or capacity, secret process or other recognized ground." The mere fact that the employe has secretly acquired information concerning patrons of the employer does not warrant such relief." A contract between employer and employee that the latter will not quit without giving a week's notice, and that if he does so the employer shall retain a week's wages as liquidated damages, is reasonable and enforcible."

_Labor laws._"--That portion of the federal act of 1898, regulating relations between interstate carriers and their employes, which makes it a crime for an agent or officer of such a carrier to discharge an employee on the ground of membership in a 18 Cur. Law. MASTER AND SERVANT SS 2. 671

labor organization, is held invalid.11 The Nevada statute forbidding employers to enter into agreement with employes whereby the latter agree to join, or to remain out of, a labor organization, is held invalid.13 The New York eight-hour law of 1906, passed pursuant to the constitutional amendment of 1906,14 the Oregon act limiting hours of labor of women in laundries,15 and the Montana act regulating hours of labor of railroad employees,16 are held valid. The Missouri 17 and Wisconsin 18 acts regulating hours of work of railroad employees are held invalid because of the act of congress on the same subject. A construction of the Ohio statute regulating hours of trainmen is given below.19

\*\*SS 2. _The right of the master in services of the employe and right of employe to compensation; trade secrets; medical treatment; assignments of wages; statutory regulations; liens.See 10 C. L. 608_--The right to compensation must rest upon contract, express or implied,20 and ceases when the employment ceases.21 A servant cannot

12 Employer held to have legal right !ployes not invalid as regulation of inter- to discharge employee for sole reason that state commerce, in absence of federal legis- he was member of labor organization, lattion on subject. State v. Northern Pac. R. where contract of employment did not fix Co., $6 Mont. $82, 93 P 945. The act was term of employment or grounds upon which employee might be discharged. Section 10 of Congress of Mar. 4, 1907, 34 Stat. 1415, Act of June 1, 1988, invalid, violating $th since the latter was not to become opera- amendment. Adair v. U. S. 208 U. S. 161, $2 Lw. Ed. 436, ryg. 152 F 737. 17. Laws 1907, p. 332, regulating hours of service of train dispatchers and telegraph operators, ie invalid in so far as it applies sol. Mines Co. v. Goldfield MIners' Union No. 220, 159 F 500. 14. Act is valid. People v. Metz \[N. Y.\] 85 NE 1070. Laws 1906, c. 506, $ 8, makes $ hours a legal days work for all employees except those engaged in farm and domestic service, but does not prohibit agreements for overwork at increased compensation, except with employees of the state or municipal corporations. Contracts with state or municipal corporations must contain provision prohibiting more than 8 hours of work per 1188, c. 576, conflicts with Act Cong. March day except in emergencies. Wages paid must equal prevailing rate in like trade or occupation. Contractor violating provisions of act not entitled to compensation for state 138 VPIs. 407, 117 NUV 686. Act of congress or city. Act not applicable to persons regularly employed in state institutions, or to engineers, electricians, and elevator men in the subject so far as employees engaged public buildings during sessions of legis- laure, nor to construction, maintenance or repair of highway outside limits of cities and villages. The act is held within the constitutional amendment of 1906; classification is legal and does not violate federal constitution; provision as to nonpayment of contract who violates act enforced. Id. The law is not affected by Laws 1907, p. 1076, c. 506, amending Penal Code, $ 384. providing that contract requiring more than 8 hours' work on municipal contracts may, on conviction, be fled, and his contract forfield, at option of municipality. The two acts are independent and provide cumulative remedies. People v. Metz \[N. Y.\] 86 NE 986. 15. Oregon Sess. Laws 1903, p. 148, limit-in the hours of labor of women in laundries to 10 hours daily, is not unconstitutional as being an infringent of the 14th amendment of the constitution of the United States. Muller v. Oregon, 208 U. S. 412, 52 Law. Ed. 551. 16. Montana statute (Laws 1907, p. 6, c. 6) regulating hours of work of railroad em * 672 MASTER AND SERVANT SS 2.12 Cur. Law.

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  12 Cur. Law. Master and Servant $ 2. 673

An employee who leaves the employment for cause during the term for which he was employed may recover for his services until the day he quits.\[38\] A breach of an independent provision of the contract does not preclude recovery for services performed.\[36\] Where salary is payable in instalments, a servant rightfully discharged may recover instalments due and payable at the time of his discharge \[37\] and may also recover the proportionate part of a deferred payment if the employer has waived his right to withhold it.\[38\] If an employe's breach of a contract for services is inexcusable, he may recover the reasonable value of services rendered, less the damage, if any, to the employer, caused by the breach.\[39\] Where a discharged employee has fully performed the services contemplated by his contract, he may recover the loss sustained by breach of the contract.\[40\] A provision for the payment of liquid-dated damages to the employe for cancellation of the contract without notice is enforible.\[41\] Whether a servant has released his claim against the master for compensation is a question of fact.\[42\]

Defendant may offset damages caused by the plaintiff's negligence in the performance of services, unless the claim therefor has been waived.\[43\] He is not entitled to credit for sums earned by plaintiff for services performed for others, defendant having suffered no damage.\[44\] The burden is upon defendant to show unfaithfulness of the employe such as to bar recovery.\[45\] A temporary illness of the employe will not necessarily entitle the employer to a deduction from wages.\[46\] After termination of a salesman's contract, an action by the employer will lie to recover advances.\[47\]

An action for compensation may be maintained when the compensation is due and payable.\[48\] The right to commissions does not usually arise until work has been

35: Employe who quit because salary was not paid him when due. F. B. Tait Mfg. Co., 113 11. App. 76.

Unlike manner to best of his ability and v. Timsman, 138 11. App. 76.

to take care of it at defendants factory un-

36. Contract of plaintiff with corporation

tfl disposed of by defendant. Held sales constructed as employing him as treasurer, of cheese by defendant, and advances to

and as containing further independent agree-

plaintiff for living expenses, without objeument for disposal of stock; hence he could

recover contract price of services as treas-

damages because of plaintiff's negligence,

urer though he failed to dispose of stock;

Hinchman v. Matheson Motor Car Co., 151

Mich. 214, 14 Del. Leg. N. 902, 115 NWV 48,

40. Where plaintiff was employed to run

01. Lindner V. Cape Brew. & Ice Co., 131

tflied, in action for compensation, to credit

Mo. App. 680, 111 SWV 600.

38. As where check for all instalments due

and part of deferred payment had been

tendered to discharged employee. Lindner v. Cape Brew. & Ice Co., 131 Mo. App. 680, 111

39. Stolle v. Stewart \[S. D.\] 114 NWV 1007.

01. Architect and manager who secured

tannants for building could recover agreed

commissions on unexpired leases and rentals which he was to be paid for securing

loases. Equitable Loan & Security Co. v. Knox \[Ga.\] 62 SE 1030.

41. Evidence led to show employment for

year at annual salary payable monthly; and

also agreement whereby defendant was to

pay plaintiff $2,500 in monthly instalments

in consideration of canceling the annual

contract without notice; latter agreement

enforced. Arnold V. Railway Steel Spring

Co., 131 Mo. App. 612, 110 SWV 617.

42. Meaning of words "in full" to which

servant subsequently added "to date" as endorsed on check. Miller v. Augustinian

College, 36 Pa. Super. Ct. 511.

43. Defendant employed plaintiff to make

chees furnishing all tools and materials,

13 Curr Law. -43.

35: Employe who quit because salary was

and plaintiff agreed to make cheese in work-

not paid him when due. F. B. Tait Mfg. Co., 131. App. 76.

Unlike manner to best of his ability and

v. Timsman, 138 11. App. 76.

to take care of it at defendants factory un-

36. Contract of plaintiff with corporation

tfl disposed of by defendant. Held sales

constructed as employing him as treasurer,

of cheese by defendant, and advances to

and as containing further independent agree-

plaintiff for living expenses, without objeument for disposal of stock; hence he could

recover contract price of services as treas-

damages because of plaintiff's negligence,

urer though he failed to dispose of stock;

Hinchman v. Matheson Motor Car Co., 151

40. The plaintiff was employed to run

01. Lindner V. Cape Brew. & Ice Co., 131

tflied, in action for compensation, to credit

Mo. App. 680, 111 SWV 600.

45. Where services of farm servant had

been accepted, burden was on defendant, in

SVR 600.

39. Stolle v. Stewart \[S. D.\] 1 674 MASTER AND SERVANT SS 2. 12 Cur. Law.

fully doc. \[49\] Where the hiring is for a term, salary is not recoverable until the end of such term. \[50\] Where the contract is continuous, interest may be recovered only from the time of bringing the action. \[61\] By statute in Illinois, attorney's fees may be recovered by plaintiff in an action for wages. \[52\] An action for compensation for services, measured by a certain proportion of profits of the employer's business, is an action at law, though an accounting may be necessary. \[53\] Holdings as to pleadings, \[54\] evidence, \[55\] and instructions, \[56\] in actions for compensation, are given in the notes.

\_Trade secrets and inventis.\_See 10 C. L. 698--Equity will enjoin the disclosure by an employe of confidential business secrets communicated to him in the course of his employment, \[57\] such as the names and addresses of customers of his former employer, \[58\] and where an employe has expressly agreed not to disclose such information to others or to use it against the employer's interests, an additional ground for equitable intervention exists. \[59\] Such provisions of a contract are enforcible, though another provision, by which the employee agrees not to engage in similar business for a stipulated time after termination of his contract, is invalid. \[60\] It is not necessary that there should be an express agreement not to divulge trade secrets where such agreement may fairly be implied from the circumstances of the case and the relation of the parties. \[61\] Equity will not enjoin breach of a contract

49. Salesman not entitled to commissions \[tons to plaintiff whether she paid her board on contracts not actually secured until he had been placed on salary basis. Freeman v. Tiffany Studios, 118 NYS 64.

01. Contract of employment at an annual salary held to be construed by parties as meaning that salary was payable monthly.

F. B. Tait Mfg. Co. v. Tinsman, 138 Ill. App. 76.

51. Contract construed as one continuous contract, though plaintiff's wages were increased from time to time. Cully v. Isham, 135 App. Dlv. 97, 109 NYS 92.

01. Transit man and topographer employed at $100 a month is an "employe" and his salary is "wages" within the meaning of Employment Act of 1889, allowing recovery of attorney's fees on suit for wages. Good-ridge v. Alton, 140 Ill. App. 373. Under Employment Act of 1889, the word "employe" held to comprehend all persons employed to render to another regular, continuous and exclusive services of same general nature that are due from a "mechanics, artisan, miner, laborer or servant." Id.

01. Lindner v. Starin, 113 NYS 201, aff. as to this point, 113 NYS 652.

01. Pleading, oral, held to raise issue of payment in action for wages, and evidence held to show payment. Wilson v. Du Vivever, 112 NYS 1108.

01. Contract of employment irrelevant in action for wages, only issue being time of discharge, and fact of employment being conceded. Gelssondeer v. Western Horse Shoe Co., 131 Mo. App. 534, 110 SWF 640. On issue of agreed salary, application for bond for plaintiff, signed by defendant's author-fixed agent, and recfiling salary, was competent as admission against interest. Acker-man v. Berrlman, 113 NYS 1015. "Issue being existence of contract to pay for services of plaintiff as governess, proof of criminal assault on plaintiff by defendant five months before her discharge was inadmissible. Meyer v. Gans, 114 NYS 584. Action for wages, payment of which was in issue. Ques-fully dcc. \[49\] Where the hiring is for a term, salary is not recoverable until the end of such term. \[50\] Where the contract is continuous, interest may be recovered only from the time of bringing the action. \[61\] By statute in Illinois, attorney's fees may be recovered by plaintiff in an action for wages. \[52\] An action for compensation for services, measured by a certain proportion of profits of the employer's business, is an action at law, though an accounting may be necessary. \[53\] Holdings as to pleadings, \[54\] evidence, \[55\] and instructions, \[56\] in actions for compensation, are given in the notes.

\_Trade secrets and inventis.\_See 10 C. L. 698--Equity will enjoin the disclosure by an employe of confidential business secrets communicated to him in the course of his employment, \[57\] such as the names and addresses of customers of his former employer, \[58\] and where an employe has expressly agreed not to disclose such information to others or to use it against the employer's interests, an additional ground for equitable intervention exists. \[59\] Such provisions of a contract are enforcible, though another provision, by which the employee agrees not to engage in similar business for a stipulated time after termination of his contract, is invalid. \[60\] It is not necessary that there should be an express agreement not to divulge trade secrets where such agreement may fairly be implied from the circumstances of the case and the relation of the parties. \[61\] Equity will not enjoin breach of a contract 12 Cur. Law. IASTER AND SERVANT SS 2. 675

not to engage in business in the state, even though the employee has secretly acquired information as to the persons with whom his employer does business,62 in the absence of some special equitable ground involving good will, peculiar, intellectual or other skill or capacity, or secret process, or other recognized ground,63 since a court of equity will not enjoyion breach of a contract for ordinary personal services, the remedy at law being adequate.64

Footnote 64: The author is grateful to the anonymous referee for his comments.

An invention and patent thereon belong to the inventor to whom the patent has been issued, unless he has made an assignment of his right, or a valid agreement to make such assignment, even though it was his duty to use his skill and inventive ability to further the interests of his employer by devising improvements generally in the appliances and machinery, used in the employer's business.68 Though a license or shop right may be found to exist in the employer, under some circumstances,68 the employer is not entitled to a perpetual and exclusive license, since this would deprive the inventor of all beneficial interest in the patent.67 Where a director and superintendent of a corporation acquires a patent in violation of the duty and confidence which he owes as director and servant, he holds it in trust for the corporation,68 which may require an assignment of such patent upon making proper payment and reimbursing the servant,69 in the absence of circumstances amounting to an estoppel to assert such claim.70 A contract whereby an employee agrees to give all his time and labor to his employer in the improvement and perfection of machinery and devices manufactured and sold by the employer, and to obtain patents upon such devices as the employer desired to have protected, and to assign such patents to the employer, includes devices invented and perfected by the employe secretly during his term of employment,71 and such contract is enforceible as to all devices and patents so perfected, both against the employe and his assignee of such patents.72 One employed to perfect an invention occupies a confidential relation toward his employer, and is not at liberty to make disclosures with reference to the work in hand, nor will he be permitted, after successfully accomplishing the work for which he was employed and perfecting the machine, to claim title thereto as against his employer, or to engage in work for a rival concern on the same machine or other machines involving the same mechanical features, or involving devices or ideas peculiar to said machine.73 One who conceives the principle of an invention is entitled to the entire result, though an assistant perfects details, and though both are fellow-servants of a common employer.74

records containing this and other informa- tion, though employee copied names only of fixed by decree requiring assignment. Ammothehes he himself had treated. Stevens & Co. 182, $4 NE 113, $4 NE 113, $4.2 Bookkeeper for liquor dealer secretly took names and addresses of patrons and selling firms with whom employer dealt. Simms v. Burnette \[Fla.\] 46 S 90; Simms v. Burnette \[Fla.\] 46 S 91; $4.4 Simms v. Burnette \[Fla.\] 46 S 90; Simms v. Patterson \[Fla.\] 46 S 91. 65. American Circular Loom Co. v. Wilson, 198 Mass. 182, $4 NE 123. 68. In this case, employer paid expense of patent, and was using improvements in shops; court left parties as it found them. American Circular Loom Co. v. Wilson, 198 Mass. 182, $4 NE 133. 67. American Circular Loom Co. v. Wilson, 198 Mass. 182, $4 NE 138. 68. As where he bought patent which he knew corporation wanted to protect its business. American Circular Loom Co. v. Wilson, 198 Mass. 182, $4 NE 133. 69. A comment on the above mentioned author is that the author is grateful to the anonymous referee for his comments.

Medical treatmentSee 10 C. L. 609.--Ordinarily, an employer is not bound to furnish medical assistance to an employee,\[16\] in the absence of an express agreement to do so,\[16\] and is not liable to a physician for services rendered the employe, in the absence of an agreement to pay therefor,\[17\] but an exception exists in cases of railroad employees injured away from home, relatives and friends, under circumstances such as to require immediate aid.\[18\] In such cases, the duty to furnish medical aid rests upon the employer rather than upon a stranger.\[19\] But in such cases the duty arises and ends with the emergency.\[19\] It is held that a railroad hospital association maintained in part by dues paid by employees entitled to treatment therein is not a charitable institution\[18\] but is liable for negligence of its agents,\[20\] and a railroad company which makes such association and its officers agents of the company becomes liable for their acts.\[21\] Elsewhere, it is held that it is the duty of a railroad company, maintaining a relief department, but deriving no pecuniary profit or benefit therefrom, to use reasonable care in selecting surgeons, attendants, and persons in charge of the hospital, and that it will be liable for want of such care,\[22\] but having used due care in selecting such agents, it will not be liable for their negligence.\[21\]

Assignments of wages.\[22\]--A mere direction or order to the employer to pay a certain amount weekly to a third person is revocable at will.\[23\] An assignment for wages earned during a particular period is effective to pass title without regard to whether the rate of payment remains the same or not.\[21\] A provision in the contract of employment that assignment of wages is prohibited and ground for discharge does not render the assignment void.\[23\] Where an assignment of wages is filed while such wages are in excess of the assignment, payment thereafter made to the assignee is at employer's peril so far as assignor's rights are concerned.\[24\]

starch, and assistant was given him to per-
78\. Cushman v. Cloverland Coal & Min. Co., feet details, who reduced principal's conception to practice, the result belonged to prin-
170 Ind. 402, 84 NE 789; Sonrving v. McGoy

Clay Works \[Ind. App.\] IS NE 782. This clipal. Braunstein v. Holmes, 80 App. D. C.

exception to rule does not obtain in New York. Vorheres v. New York Cent. & H. R.

75. Defendant not bound to render add to

Co., 114 NYS 242.

employer so as to become liable to physician

79, 80. Cushman v. Cloverland Coal & Min.

for services rendered, Cushman v. Cloverland Coal & Min. Co., 170 Ind. 402, 84 NE 759;

land Coal & Min. Co., 170 Ind. 403, 84 NE 759;

81. Phillips v. St. Louis, etc., R. Co., 211: Sonrving v. McGoy Clay Works \[Ind. App.\]

85 NE 782.

76. Exception in emergency cases, prevailing in some states, does not obtain in New York. Vorheres v. New York Cent. & H. R.

111 SV 709.

77. Physician could not recover for services to employe in hospital in absence of any

experts or implied contract with defendant

77.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.

13 Cur. Law. MASTER AND SERVANT SS 3A. 677

_Statutory regulations._ See 10 C. L. 699.--Regulation of hours of labor, 91 and regulations relating to liability for injuries, and duties with respect to tools and appliances and places of work, are treated in other sections. 92 The Arkansas statute relating to wages of miners is upheld. 93 Holdings under the act providing that wages of railroad employees shall continue unless paid within seven days after their discharge are given in the note. 94 In that state an employee who abandons his employment before expiration of his term forfeits all wages and cannot recover compensation either on the contract or an a quantum merruit. 95 The Indiana statute requiring certain classes of employers to pay certain employees monthly is held invalid. 96 The Massachusetts statute providing that no assignment of future wages, to secure a loan of less than two hundred dollars, shall be valid against the employer unless the employer has consented thereto in writing, and unless the assignment and acceptance have been duly filed, and, if the assignor is a married man, unless his wife consents in writing, is upheld as a valid exercise of the police power. 97

SS 3. _Master's liability for injuries to servants. A. Nature and extent in general._ See 10 C. L. 700.--The right to recover for injuries is controlled by the law of the place where the injury occurred. 98 Common-law rules govern when the action is not based on statute. 99

Footnote 99: See ante, SS 1. 92 See post, SS 3A, 3B, 3E, 3F. 93. Ark. Acts 1905, c. 219, SS 1, regulating the contracting for wages of miners employed at rates of wages determined by the quantity, and prohibtting a contract paid on basis of screened coal, is valid and does not infringe on right to contract given by federal constitution. McLean v. Arkansas, 29 S. Ct. 206. 94. Statute must be strictly complied with or penalty will not be enforced. St. Louis, etc., R. Co. v. MoClerkin (Ark.) 114 SW 840. 13 Tonder railroad company liable for penalty under Acts 1905, p. 538, it must appear that servant requested money or check sent to some regular station where there was an agent, and that money or check does not reach there within 7 days. St. Louis, etc., R. Co. v. Bailey (Ark.) 112 SW 180. Company not liable for penalty under Acts 1905, p. 538, where paramastr did not absolutely refuse to pay but said they were not reasonable in not going to cars, the usual place to be paid off, and where he did not know how much men had coming and whether they had quit or had been discharged. Wisconsin & Arkansas Lumber Co. v. Thompson (Ark.) 113 SW 340. Station agent, discharged, applied to his successor for his pay, but did not indicate station where it was to be sent. Held, he should have applied to division agent who appointed him, such agent being his "foreman" or "timekeeper," and not having complied with statute, he was not entitled to the statutory penalty. St. Louis, etc., R. Co. v. McClarkin \[Ark.\] 114 SW 240. By their safety,4 that is, that degree of care which reasonably prudent and cautious persons exercise under like circumstances.4 There are cases, however, in which the act or omission at issue is itself so clearly negligent that the fact that other persons in the same or like circumstances have been guilty of it is insufficient to modify its character or effect.5 But in cases not of that character, the true test of actionable negligence is that just given.6 A master is not liable for injuries which could not reasonably have been foreseen and guarded against,7 or which are purely accidental; 4

Footnote 4: The degree of care which persons of ordinary intelligence and prudence common-by exercise under the same circumstances.

Alake v. Shenango Furnace Co. \[C. C. A.\] 160 paired to guard against every possible contingency. Martin v. Walker & Williams Mgr. Co., 113 NYS 78. Not bound to take extraordinary precautions for servant's safety. Brett v. Frank & Co., 165 Cal. & 267, 94 P1051. Not required to use best, newest or safest places, appliances and methods. H. D. Williams Cooper and pulley, and, on looking up, was struck erage Co. v. Headrick \[C. C. A.\] 159 F 680. Need only use ordinary care to supply reasonably safe places, appliances and methods.

Footnote 4: The degree of care which persons of ordinary intelligence and prudence common-by exercise under the same circumstances.

Alake v. Shenango Furnace Co. \[C. C. A.\] 160 paired to guard against every possible contingency. Martin v. Walker & Williams Mgr. Co., 113 NYS 78. Not bound to take extraordinary precautions for servant's safety. Brett v. Frank & Co., 165 Cal. & 267, 94 P1051. Not required to use best, newest or safest places, appliances and methods. H. D. Williams Cooper and pulley, and, on looking up, was struck erage Co. v. Headrick \[C. C. A.\] 159 F 680. Need only use ordinary care to supply reasonably safe places, appliances and methods.

Al. Owes only duty of reasonable care to provide and maintain proper and safe appliances. Stewart & Co. v. Harman \[M.J.\] 70 A 338. Must provide reasonably safe premises. Georgetown Water, Gas, Elec. & P. Co. v.

Forwood \[Ky.\] 113 SW 112. Charge not erroneous for making it "absolute duty" of master to provide reasonably safe place, etc.

Firment v. Berwind-White Coal Min. Co., 162

F 158. Charge, "there is a duty resting on the employer to furnish a reasonably safe place to work," to which no exception was taken until jury had retired, held on re-versible error, though inaccurate. Walligrova v. St. Paul Foundry Co. \[Minn.\] 119 NNV 395.

4. Test of negligence is degree of care which persons of ordinary intelligence and prudence exercise under the same circum-by 12 Cur. Law. MASTER AND SERVANT SS 3A.

but to expose a servant to unusual * or unnecessary 10 danger is negligence. The degree of care required of the master in a particular instance depends upon the nature and character of the business, the character of the agencies employed by the master with and about which the employees are required to work,\[11\] the known capacity and experience of the employee,\[12\] the methods of carrying on the work,\[13\] the dangers which are known,\[14\] or which are reasonably to be apprehended,\[15\] and upon all the exigencies and circumstances of the particular case.\[16\] It follows that the question whether due care has been excised by the master, or by those who stand in his place, in a given instance, is usually a question of fact for the jury.\[17\]

hand to come in contact with cogs. Harper | and could not reasonably have been avoided v. Illinois Cent. R. Co. \[Ky.\] 115 SW 198. & Employores are not insurers against insurers. Stephen v. Duffy, 136 Ill. App. 573. & Employores are not insurers against insurers from pure accident arising in their regular line of employment. Accidental boil- |L2. As to children, see post, Injuries to regular line of employment. Accidental boil- |L3.5 & explosion. Illinois Steel Co. v. Loughran, 136 Ill. App. 432. Death through falling of reject from iron! in mine examined the same day and supposed to be safe, held accidental. |L3.5 & explosion. V. New Orleans R. & L. Co., 120 La. 1056, 46 Ill. App. 135. & explosion. V. New Orleans R. & L. Co., 120 La. 1056, 46 Ill. App. 136. & explosion. V. New Orleans R. & L. Co., 1210, 106 Ill. App. 137. & explosion. V. New Orleans R. & L. Co., 120 La. 1056, 46 Ill. App. 138. & explosion. V. New Orleans R. & L. Co., 1210, 106 Ill. App. 139. & explosion. V. New Orleans R. & L. Co., 1211, 106 Ill. App. 139. & explosion. V. New Orleans R. & L.

The common-law duties of the master to provide a reasonably safe place of work, reasonably safe tools and appliances,\[18\] and a sufficient number of reasonably competent servants to do the required work,\[19\] to provide suitable methods of work, and to make, promulgate and enforce reasonable rules and regulations,\[20\] and to warn and instruct servants,\[21\] are more fully discussed and illustrated in the succeeding paragraphs. The duties are personal to the master and cannot be delegated so as to relieve him from liability for their nonperformance.\[22\]

_Stationary liability._ See 10 C. L. 198.--Statutes prohibiting or regulating the employment of children are treated in the following paragraph, and statutes relating particularly to subjects discussed in succeeding sections are there referred to.\[23\] Violation of an ordinance or statute infposing a mandatory duty is negligence per se,\[24\] provided the thing done or omitted is one of the things contemplated by the statute and prohibited or guarded against by it,\[25\] and there was a violation of a duty owed to the plaintiff personally or as a member of a class.\[26\] Statutes imposing certain duties on railroad companies for the protection of the general public and travelers are also for the benefit of employes.\[27\] A statute not retrospective in its terms can have no application to a cause of action which arose previous to its passage.\[28\] Statutory liability for death differs from that for injuries in some states.\[29\]

_Employment of, and injuries to, children, including statutory liability.\[30\]_

Statutes prohibiting employment in dangerous work of children of tender years are constitutional.\[31\] Violation of such a statute is commonly held to constitute negligence per se,\[32\] warranting recovery against the employer for injuries to the child as\[33\]

\[34\]

\[35\]

\[36\]

\[37\]

\[38\]
resulting proximately therefrom.\[34\] Proof of violation of the statute and injury to the child is at least evidence of negligence sufficient to make a prima facie case for the jury.\[35\] Whether a particular statute is applicable or has been violated in a particular case depends upon the terms of the statute and the facts,\[36\] and may be for the jury.\[47\] To an action based on violation of such a statute, misrepresentations by the minor as to his age,\[88\] or by others, in his presence,\[39\] or the fact that the minor was instructed,\[40\] is no defense, nor is the defense of contributory negligence or assumption of risk available\[41\] in some jurisdictions. If a child employed is above the age limit of the statute, failure to take and file the affdavit as to his age, required by statute, though criminal, is not negligence per se as to such child.\[42\] That a statute prohibiting employment of children provides a penalty for its violation does not bar a civil proceeding for damages.\[43\] Statutes like those under discussion do not change the common-law rules as to negligence in putting a minor at work near dangerous

83. Under statute, injury to child under 14 \[for boy under 16 within meaning of statute, while employed in furniture factory would warrant recovery. Finley v. Acme Kittchen Det. Leg. N. 748, 118 NW 366. Statute recognizes that children under 16 are immature.

Iiable for death of boy of 14 where he was

14.

put to work on platform near engine and

37. Fact of violation of child labor law

shart and pulleys, a place dangerous even

evidence for jury in injury case. Stehle v. for an experienced man; liability existed even

Jaeger Automatic Mach. Co., 220 Pa. 617,

independently of agreement with parent that

69 A. 1116. Whether or not certain work

boy was not to be placed in dangerous work.

done by one excluded from such work by

Bourse v. Brownwell-Drews Lumber Co., 120

statute is extra hazardous or not is a ques-

La. 1009, 45 S 972. Michigan statutes prohibiting employment of children under 14 in

14 years old putting rags through wringer.

factories, and of children under 16 in work

Swift & Co. V. Miller, 183 Ill. App. 192. Where

-dangerous to life or immb, impose duties for

boy under 16 is injured while obliging or

benefit of classes embraced in the acts, a

cleaning machinery in motion, master is

breach of which resulting in injury gives rise

lable, whether machine was being operated

to cause of action, though statutes do not

for ordinary purpose or for purposes of clean-

expressly provide therefor. Synsesezewski v.

ing, Act May 2, 1905 (P. L. 352), being viol-

Schmidt \[Mich.\] 15 Det. Leg. N. 609, 116 NWV

lated. Whether it was being operated at

1107.

0001. Child under 12 employed in cotton

factory in violation of Rev. 1905, 8 3826, to

88. Violation of statute prohibitting em-

aweep spinning room and make bands, was

injured while on another floor to visit his

in dangerous work renders employer Iiable

father, and while attempting to pick piece

for injuries resulting therefrom, though

of cotton from carding machine, which was

no part of his duties. Employment of child

not obtain and file statement of parent or

held proximate cause of injury. Starns v.

gavardian as to child's age, as required by

Aiblon Mfg. Co., 147 N. C. 556, 181 SE 525.

83. If an infant under 16 years of age is

employed about dangerous machinery, owner

not having certificate permitting her

employed did not estop him from relying on

by

c. 408, and is injured while so employed by

Fasso of failure to guard machinery, such

V. Michelian Stove Co. \[Mich.\] 15 Det. Leg.

acts make prima facie case of negligence.

Fitzgerald v. International Flax Tweine Co.,

104 Minn. 188, 116 NWV 475.

83. Rev. St. 1899, 8 6434, does not prohibit

enployment of women and children in man-

ufacturing establishments, but prohibits

-quirling them to work near or between mov-

ing parts of machines. Peters v. Gille \[Mo. App.\] 113 SWV 706. Machine is in motion

v. Hansen Vorke Co. \[Pa.\] 70 A 899. An

within meaning of 8 6434, though it stops

occasionally in course of its operation. Id.

No recovery warranted under Rev. St. Mo.

1899, 8 6434, prohibitring employment of

minor between fixed or traversing parts of

any machine while in motion, where plain-

file v. Jaeger Automatic Mach. Co., 220 Pa. 617,

file was working at side of and over mov-

ing belt which carried candy into kinives

which cut it. National Candy Co. v. Miller

\[C. C. A.\] 160 F 51. Operation of electric

freight elevator is "dangerous" occupation

for boy under 16 within meaning of statute.

Braasch v. Michigan Stove Co. \[Mich.\] 15 Det. Leg.

withment of the status of the artute 682 MASTER AND SERVANT SS 3A. 12 Cur. Law. machinery.44 Whether such an act constitutes negligence is usually a question of fact 48 for the jury.46

For injury to a minor employed in violation of a child labor law, the parent may maintain an action for loss of services.47 Consent by the parent to the employment of the child, with knowledge of the dangerous character of the work,48 bars recovery.49 Consent will be presumed if not negatively in the complaint,50 and may be inferred where the service is allowed to continue without objection.51

\_The relation of master and servant must exist.\_See 10 C. L. 704--To warrant recovery for injuries caused by an alleged breach of a master's duties, it must appear that the person injured was at the time defendant's servant,52 and was engaged in

44. Platt v. Southern Photo. Material Co. \[S. C.\] 61 SE 1068.

chargeable with knowledge of risk which
45\. Petition for injuries to child employed

as press feeder held to state causes of ac-

sec Coal, Iron & R. Co. v. Crotwell \[Ala.\] 47

tion at common law, though not under child

$ 64. Mother of minor employed in mine

labor law of 1906. Platt v. Southern Photo.

four months without objection on her part

Material Co. \[Ga. App.\] 60 SE 1068.

could not recover damages for injuries sus-

46. Child of 13 caught by moving belt near

tained by him. Id. Boy told father of his

which he was required to sweep. Goodwin

employment two days before injury, and

v. Columbia Mills Co. \[S. C.\] 61 SE 390.

father told him of danger and cautioned him

Where boy of 14 was allowed to remain in

room with belts and machinery during non

Implied. Warrior Mfg. Co. v. Jones \[Ala.\]

hour, and either in playing with belts or

46 S46.

machines, or in endeavoring to adjust a belt

52. Defendant Table as master: Evidence

which was loose, was caught and injured, he

sufficient to show plaintiff servant of defend

was entitled to recover if jury found master

and, having been employed by contractor for

had failed to instructor or warn him of danger.

Defendant. Driscoll v. Humes, Cruise &

ger, and he had not been guilty of contribu-

Smiley Co. IR. J. 69 A 768. Evidence sufficiency

tory negligence though he was not engaged

in duties for which he was hired at time.

owner of plant and employer, and not mere

Force v. Standard Silk Co. \[160 F 992.

47. See, also, Parent and Child, 10 C. L.

Mass. 182, 85 NE 1063. Evidence warranted

1072. Employing child under 14 in factory

finding that plaintiff was secured as sub-

in violation of labor law is sufficient v

future for defendant's engineer with knowledge of negligence of master to sustain

edge of defendant and his superintendent,

judgment for parent for loss of child's serv-

and that plaintiff became defendants em

ices. Danaher v. American Mfg. Co., 110

play. Aga v. Harbach \[Iowa\] 117 NW 669.

NYS 617.

Plaintiff, acting as brackman on logging

48. Minor was employed as "doffer" in

collroad, was employe of railroad company

cotton mill with mother's consent, but his

as well as of lumber company which owned

work was changed without her knowledge

railroad company. Barrow v. B. R. Lewis

to work near carding machine, which was

Lumber Co., 14 Idaho, 695, 95 P 683. Em-

more dangerous. For injury diminishing his

playe hired by one who was under contract

earning power, mother could recover. Hills

with railroad company to load and unload

boro Cotton Mills v. King \[Tex. Civ. App.\]

lumber from and to cars, at so much per

112 SW 132. Evidence that agreement of

1,000 feet, actual work being done under di-

boy's father with defendants' representative

rection of company, was held voluntary servant

was that boy was not to be put at danger-

ant of company, though he was paid by

ous work, and that he was put at dangerous

contractor. Knicked v. West Virginia M. R.

work by employe delegated to look after

C. \[W. Va.\] 61 SE 311. Evidence sufficient

htm, who failed to instructor him as to dan-

to support finding that defendants agent

ger, made case for jury. Leopard v. Laur-

was in general charge of exhibition of en-

ens Cotton Mills \[S. C.\] 61 SE 1029.

gine and thresher and had power to employ

49. Evidence showed acquiescence in em-

plaintiff to assist him, and that plaintiff was

ployment in mine: no recovery. Tennessee

defendants servant at time of injury. Max-

Coal, Iron & R. Co. v. Crotwell \[Ala.\] 47

son v. J. L. Case Threshing Mach. Co. \[Neb.\]

64. In suit by parent for injuries to son

115 NW 281.

while engaged in hazardous employment,

Defendant not Table. Cudzik v. Morris

held that instructions properly submitted to

& Co., 141 Ill. App. 356. No recovery where performing, in a reasonable and proper manner,53 duties within the scope of his employment.54 In other words, it must appear that defendant owed the duties of a

egin{tabular}{l|l} three divide the freight according to mile- & Chesapeake & O. R. Co. \[Ky.\] 111 SW 101. \\ age, held not a partnership or agency. & Servant could not recover for injury by being caught in cogs suddenly started, when, \\ & not employees of other two companies, and \\ & have no right of action against them for in- \\ & jury resulting from negligence of the operating company in operation of trains. Will- \\ & & \\ & himus v. Kansas City, S. & G. R. Co., 120 La.

master to the person injured at the time of the injury, \[58\] and that the latter was not a mere volunteer. \[64\] The relation of master and servant is usually held to exist during transportation of the servant to and from the place of work by the master, \[67\] such transportation being beneficial to both. \[58\] An employee is not a passenger while being so carried, \[69\] and some courts hold that the only duty then owed by the employer is that of reasonable care to avoid injuring him. \[60\] One riding on the car of a railroad company, engaged in performing duties under a contract made with an authorized representative of the company, is entitled to the same degree of care as an employee riding on the train with the company's consent. \[61\] Where employees were expected to remain on the premises during the period allowed for lunch, the relation of master master and servant was held to continue during that time. \[62\] A servant cannot be

have board and tool cars moved. Missouri K. & T. R. Co. v. Ballet \[Tex. Civ. App.1 107\]

S 824. Whether plaintiff was assisting in adjusting belt under orders of night boss SW 906.

S5. If plaintiff voluntarily submitted him-self to orders of agent of seller of engine in work of putting it in place, seller owed him duty of careful "superintendence" under statute. Bowie v. Cofin Valley Co., 200 Mass.

S71, 86 NE 914. Where plaintiff went to building with tools in response to postal card and, when there, was called by fore-man to come to him, defendant owed him same duty, as to lighting basement where he was, as though he had actually commenced work. Bausert v. Thompson Startcut Co., 110 NYS 521.

S8. Relation continued during time railways employes, working on track, were com-at certain work, but voluntarily left it to assist another in adjusting belt. He was & App.1 69 A 166.

of orders, and in assisting with belt was killed. No recovery; he was at time

to place of work was not passenger but in mere volunteer. Lindquist v. King's Crown Plater Co. \[Iowa\] 117 NWV 46. Where freight conductor had no power to employ assistant to sfd in unloading freight, such assistant could not recover for injuries re-ceived as npon theory of breach of duty owed to him as employee, especially where he expected no pay. Taylor v. Baltimore & O. R. Co., 108 Va. 817, 62 SE 798. He was mere volunteer. Id. Where freight train had full crew and did not need assistance, conductor had no authority to hire help, and one who assisted without pay was voluntarily "seven only ordinary care to avoid injuring him. Clarke v. Louisville & N. R. Co., 38 Ky. L. R. 797, 11 SWV 344. Two linemem sent to attach guy wire to particular pole had no right to turn such work over to apprentice linem, who was injured while doing it. Mattrejean v. New Orleans R. & L. Co., 120 La. 1056, 46 S 21.

Where evidence showed custom of defendant\* teamsters to assist men on street grader when it was out of order, decedent was not volunteer in giving such assistance at time of death. Jones v. Herrick \[Iowa\] 118 NWV 444. Boy of 14 was directed to work with operator of trip hammer and keep dies clean and was directed by operator to assist in removing dies, and while so engaged trip hammer fell on him. Held, he was not mere volunteer. Avery v. Cottrill's Guardian \[KY.\] 107 SWV 322. Brakemson, who offered to make coupling, was not volunteer where engineer in charge told him to do it, though his ordinary duties did not include that work. Driver v. Southern R. Co. \[Iowa\] 46 12 Cur. Law. Master and Servant $ 3A. 685-transferred from one master to another without his consent, either expressly given or implied from the nature and character of the work, when compared with his ordinary employment.\[68\] Whether the injured person was at the time a servant of defendant or another may be a question of fact.\[64\] Only ordinary care to avoid injuring him is owed to a mere volunteer.\[65\] A servant who enters upon his master's premises not to perform his duties but to violate the law is entitled to no higher degree of protection than any outsider under such circumstances.\[66\] It will not be presumed or implied, against a master engaged in lawful business, that he invited his servants to come upon his premises or to use his instrumentalities for the purpose of violating the law,\[67\] or that he should have anticipated their doing so.\[68\] An employer is not responsible for injuries caused wholly by the servants of another, over whom he has no control.\[69\]

One who is employed to do certain work, and who is responsible to his employer only for the result, is an independent contractor; \[70\] one who has no discretion as to the manner or details of the work, but is controlled therein by the employer is a servant.\[71\] Which relation exists in a particular case may be a question of fact for the jury.\[72\] The general employer does not owe the duties of a master to an independent contractor nor to the servants of an independent contractor,\[73\] nor will he be

63. Employive of vendee of engine could not be found to have become servant of vendor, \[R. Co., Calhoun (LArk.) 109 SV 1017.

under whose agents' orders he worked in \[T0\]. Person employed to construct tresties, putting engine in place, unless he consented to and voluntarily became the vendee's servant. Bowule v. Cofin Valve Co., 200 Mass. 671, 86 NE 914.

64. Whether miner was employe of owners of mine or one who was independent contractor. Smith v. Garrison (Ky.) 108 SV 293. Engineer was in charge of dead engine being hauled on defendant's road, himself being employee of another company. Two roads were under same general management and engineer was subject to orders of defendant's conductor and engineer. Whether he was at time employe of defendant for jury. Crow v. Hauck's M. & A. R. Co., 212 Mo. 589, 111 SV 883.

01. That one not an employee voluntarily undertook to operate brake on train with knowledge of engineer, and was injured whlle so doing, did not make company liable if ordinary care to prevent injury to him was exercised after discovery of his perl. Derrickson's Adm'r v. Swann-Day Lumber Co., \[Ky.) 115 SV 191.

01. Seaboard Air Line R. Co. v. Chapman \[Ga. App.\] 62 SE 488. In North Carolina it is a misedembar for intoxated person to take charge of a locomotive as engineer. Hence, in that state, an intoxated servant who comes to take charge of locomotive as engineer, is there to commit a crime, and other employees owe him only such duties as they owe to other intruders. Id. Where such person sues to recover injuries for alleged negligence of engineer, defendant may plead and prove this North Carolina statute to show it did not owe duties as master, even though plaintiff had not entered engine, and could not be prosecuted under the statute. Id.

67,68. Seaboard Air Line R. v. Chapman \[Ga. App.\] 62 SE 488.

69. Independent contractor, building bridge for railway company, not responsible to one of his servants for injuries caused by negligence of employees of the railway company Iiable for negligence of the independent contractor.74 But the owner of premises, who employs a person to do work thereon, owes to him and his servants the duties owed to a licensee.75 While in performance of duties in a place where they have a right to be; 76 and a general employer may assume the duty of furnishing reasonably safe appliances for such persons 77 but does not thereby become bound to maintain the appliances in such condition having furnished those which are reasonably safe.78

\_The master's negligence must have been the proximate cause 79 of the servant's injuries.80--\_The proximate cause of an injury need not be the immediate cause; it is that.which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, and without which it would not have occurred.81

vice-principal, there was no question for of injury. Ayres v. Louisville & N. R. Co. \[Ga. jury. Id. Plaintiff was employed by contractor to sink shaft, and was to have one-third contractor's compensation after deducing certain expenses. General employer, defendant, had no control over plaintiff or over contractor's work but furnished der-Ick, hoist, and cable. Helg, plaintiff was servant of contractor, not of defendant. Kiser v. Suppe \[Mo. App.\] 112 SW 1005.

74. Employer not liable to servants of in-debec and which did not contribute to cause dependent contractor for latter's negligence.

J. Holland Laundry, 220 Pa. 281, 69 A 756.

115 SW 732.

75. Defendant, operator of mine, owned to clauseed by defendants' want of due care to plaintiff, employe of contractor working mine, duty to inspect and keep it reasonably evidence was that medical attendance would safe, plaintiff being license and for breach was no evidence that it would have pre-juries sustained. Tennessee Coal, Iron & R. Co. v. Burgess \[Ala.\] 147 S 1029.

01. Held that employe of contractor doing work on defendants' premises was not required in performance of his duties to be in vicinity of unguarded hatchway into which he fell. Defendant not liable. Hutchinson v. Cleveland-Cliffs Iron Co., 152 Mich.

01. 15 Det. Leg., N. 235, 116 NW 1182.

01. A person undertaking to furnish machinery and appliances for the use of others assumes a duty to furnish a safe appliance, but this obligation does not depend upon a contractual relation between the person injured and the person whose negligence causes the injury but upon failure to perform an assumed duty. Where subcontractor's workman was injured by defective rung in ladder belonging to general contractor, evidence held not to show negligence.

Doughers v. Weeks, 111 NYS 218.

78. General employer who agreed to furnish contractor with derrick, hoist, and cable, knowing latter would employ miners, owed to such employees of contractor ordinary.care to furnish reasonably safe cable but did not owe them duty of inspection thereafter, that being duty of contractor. Kiser v. Suppe \[Mo. App.\] 112 SW 1005.

Cable used with hoist was furnished by general employer and used by contractor 9 or 10 days and then gave way where it was attached to hook of hoist. Negligence of contractor in railling to inspect was cause of accident; general employer performed duty by supplying cable reasonably safe at first. Id.

79. For discussion of general doctrine of proximate cause, see Negligence, 10 C. L.

01.

01. See 10 C. L. 707. No recovery unless negligence of master was proximate cause of liability.

12 Cur. Law.

Iiable for negligence of the independent contractor.74 But the owner of premises, who employs a person to do work thereon, owes to him and his servants the duties owed to a licensee.75 While in performance of duties in a place where they have a right to be; 76 and a general employer may assume the duty of furnishing reasonably safe appliances for such persons 77 but does not thereby become bound to maintain the appliances in such condition having furnished those which are reasonably safe.78

\_The master's negligence must have been the proximate cause 79 of the servant's injuries.80--\_The proximate cause of an injury need not be the immediate cause; it is that.which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, and without which it would not have occurred.81

Footnote 79: For discussion of general doctrine of proximate cause, see Negligence, 10 C. L.

Footnote 80: See 10 C. L. 707. No recovery unless negligence of master was proximate cause of liability.

13 Cur. Law. Master and Servant $ 3A.

Negligence of the master will be held the proximate cause of an injury if the master, in the exercise of ordinary care, ought reasonably to have foreseen that injury might result therefrom; \[82\] it is not necessary that the particular injury which occurred ought to have been foreseen, \[83\] provided it was the natural and probable consequence of the master's negligence. \[84\] If an injury would not have occurred but for negligence of the master, he is not relieved from responsibility by the fact that an independent cause for which he is not responsible, \[85\] such as negligence of a fellow-servant, \[80\] or of a third person or other agency concurred in producing the injury. \[87\]

Smuggler Min. Co. \[C. C. A.\] 158 F 260. sequence of negligence. Mobile, etc., R. Co. v. Where injuries were caused by head-on collo-li flicks, 91 Miss. 273, 46 S 260. Master who lision of street cars, the collision was the failed to guard machine as required by state-proximant cause, and negligence, if any, in sending out one ear without notice was jury might have resulted; immaterial that he commaterial. Latsu v. Shnacmik & E. Elec.

could not reasonably have foreseen precise R. Co. \[Pa.\] 70 A 1002. Failure to maintain or use certain appliance ought not be sub-mitted as cause of injury when it could not have occurred in producing it or have been the independent cause of it. Hinston v.

the proximate cause of an injury which in Qunicy, etc., R. Co., 129 Mo. App. 576, 107

SV 1045. If negligent act of freeman in dit- (quight to have been foreseen as a natural recting sand hoist to be raised intervened) and probable consequence of the negligent between resulting injury and plaintiff's act. International & G, N. R. Co. v. Hidden signal, former was proximate cause. Boy's v. McNulty, 113 NYS 240. Employe was overcome by gas, and while unconscious, and being removed, his leg was broken by reason of its being allowed to project beyond edge of cage. Master's negligence in allowing gas in mine not proximate cause of injury to leg. Teis v. Shnaggier Min. Co.

\[C. C. A.\] 158 F 260. Box of freight was placed in gangway, and fell. It was again pasted in position, leaning against gangway, and fell second time injuring plaintiff. Held, drst fall, and negligence in first placing box where it was was not proximate cause of injury; verdict possibly based thereon set aside. Williams v. Citizens Steamboa Co.,

H. Co., 121 Mo. 419, 111 SV 109. Negligence

neglence whether the injury is directly caused thereby or whether it is caused by the attempt of the servant to avoid it.

When conductor on car with which another car collided was injured because of collimation, held immaterial whether injury was caused by being thrown from car or by jumping the avoid injury where perfl was immencent. South Chicago St. R. Co. v. Atton,

137 Ill. App. 844. Failure to warn plaintiff of danger of being caught between car and door, if warning was necessary, held proximate cause of his being crashed: not fact that his clothing was caught on car; latter was mere condition. Charrier v. Boston & M. R. Co. \[N. H.\] 70 A 1078.

82. Injury must have resulted from doing or omission of an act which a person of ordinary prudence could foresee might naturally or probably produce injury. Wilson v. Southern R. Co., 108 Va. 822, 62 SE 972.

SN. It must appear that same injury was likely to occur as the natural and probable result of the alleged negligent act, but it need not appear that alleged negligent person should have been able to foresee the exact injury which occurred. Texas & N. O.

R. Co. v. Barwick \[Tex. Civ. App.\] 110 SW

953. Particular accident which occurred need not have been reasonably anticipated: it is enough that injury of some kind ought reasonably to have been anticipated'as con- (Iff v. Oregon R. & N. Co. \[Or.\] 99 P 76. If
     These principles are further illustrated by holdings grouped in the note.88 What was

negligence of master was efficient cause without which injury would not have occurred, negligence of others would not bar recovery. Agga Y. Harbach \[Iowa\] 117 N NV 669.

8S. Master's negligence not shown to be proximate cause of injury: No recovery if 139 Ill. App. 204. No recovery for injury to negligence of servant, and not of master, is proximate cause of injury. Washington

Mills v. Cox \[C. C. A.\] 157 F 834. Where plaintiff stumbled while carrying heavy bolt, held injury was due to accident, not between defect in nozzle and such injury. Forquer v. Slater Brick Co., 37 Mont. 426, 97

neer Coopergae Co. \[Mo. App.\] 114 SW 94. Evidence insufficient to show negligence of dependant in not lighting basement, cause of injury to plaintiff who slipped and sprained aukie in getting out of elevator. Benson v. Peters \[Neb.\] 117 NV 347. Negligence of operator, and not defect in metal press, proximate cause of injury where assistant

get hand caught, upper die being lowered to soon by operator. Ladiev v. Sherwood

Metal Working Co., 125 App. Div. 65, 109

NVS 477. Mulle driver in mine stopped to remove sprays used to keep car from run-unse. Fairbanks, Morse & Co. v. Walker \[C. A.\] 160 F 896.

and caught driver between car and mine wall. Failure to comply with Hurd's Rev.

St. 1005, e. 93, $ 21, requiring places of refuge to be provided along roads, was not proximate cause of injury, since compliance

Co., 136 Vis. 39, 116 N NV 854. That reviv-by making such place within 25 feet of place of accident would not have prevented it.

Schlapp v. McLean County Coal Co., 235 Ill.

Bowfield & Co. \[Mich.\] 15 Det. Leg. N. 76S, 680, 85 NE 816. Servant slipped on tie, and

fall into low place on track, and before he could get out was struck by car. Heid, slipping on tie was proximate cause of injury,

National Starch Co. \[N. Y.\] 86 NE 815. That not alleged negligence in maintaining track

with low place on it. Chicago & E. R. Co.

injury to employ who slipped and came in v. Dinus, 170 Ind. 22, 84 NE 9. No recovery

for alleged negligence in allowing timbers

of mine roof to become rotten, where in-jury by fall of rock was caused by motor- than "back poling" motor, pole knocking

timhers away. Williams' Adm'r v. Norton

Coll. Co., 108 Va. 608, 62 SE 342. Evidence

held not to show master's negligence in providing reasonably safe place to work,

where plaintiff was injured by shot break-in through wall of mine. Consolidated

Coal Co. v. Francis, 133 Ill. App. 227; Condensed

S03. That brakeman's death was caused by solidated Coal Co. v. Trautiven, 133 Ill. App. 231. Evidence

Duffee's Adm'x v. Boston & M. R. R. Co. \[Vt.\]

of mine manager to furnish props in room

where shot-fiver was injured was proximate cause of injury. Southern Coal & Min. Co. v. Hopp, 133 Ill. App. 239. Engineer's negligence in running ahead of schedule and not failure to send flagman out from preceding

train held cause of collision. International & G. N. R. Co. v. Bruce \[Tex. Civ. App.\] 111

SWP 104. Defective condition of machine

held not cause of injury to employ who

got his hand caught by revolving cylinder. Hutchinson v. Cohankus Mfg. Co. \[Ky.\] 112

SWP 899. Cause of collision of plaintiff's

train with double header which preceded

him held not leaky engine on double header

and inferences thereof might be caused if injury to be replaced by a collision of

employes in failing to flag his train or negligence of plaintiff-engineer-in running at

publicly see how to prevent the collision of a given failure. Parker v. Union

prohibited speed. Louisville & N. R. Co. v.

Keffter \[Ky.\] 118 SW 433. No negligence the proximate cause of an injury is ordinarily a question of act to be determined by the jury,85 except in those few cases where the facts are undisputed and such that only one reasonable conclusion can be drawn therefrom.

to have been caused by defective port, gate on roof of defendant's building slipped and of which fell out with him when he opened it. Puget Sound Nav, Co. v. Lavender (C. C. - a.). 160 F 851. Negligent construction of maintaining wire in that condition at that staging loose plank from which fell on plain- place was proximate cause of injury. Colusa lift, proximate cause of injury, though another serum drove loaded truck against Dr. A.J 162 F 276. Where order as to run-horse supporting staging. Vaisbord v. - nashua Mfg. Co., 74 N. H. 470, 69 A 520. Evi-ston with spectal) was given only to cond-dence sufficient to go to jury on issue whether method used to elevateateons or, and it was not posted as was custom-from saw caused injury. Godsoev. Dodge - ary, and conductor forgot it, the failure to Clothespin Co. \[N. H.\] 70 A 1073. Switch-take customary precautions to prevent form-man knocked down by engine and dragged getting of such order was proximate cause and foot caught in unblocked frog. Failure to collision of cars. Fitzgerald v. Worces-to block frog proximate cause of injury. \[etc, R. Co., 200 Mass., 105, 85 N 911, Cooper v. Baltimore & O. R. Co. \[C. C. A.\] 159 Egnieter's negligence in suddenly starting F 82. Proximate cause of brakeman's death - hichl rockinate cause of plaintiffs in-held lack of automatic couplers which caused him to go between cars, and not defect in track which caused him to get caught in unblocked frog. York v. K. Louis, etc., R. Co. \[Ark.\] 110 SW 803. Proximate cause of in-juries to plaintiff by breaking of swarb held his defective condition, and not "jam" caused plaintiff. Missouri K. & T. R. Co. v. Bailey by fellow-servant. Rice v. Reese \[Tex. Civ. App.\] 115 SW 601. Negligence of App.\] 110 SW 502. Where plaintiff, a minor, was injured by defective construction of hopper in clay crusher, his employment in violation of Child Labor Law held prima fcale probleme cause of injury. F. Raker, hand in machine, repairing thread, while mashashol mashol

# Master and Servant $3b.

12 Cur. Law.

Contractual exemption from liabilitySee 10 C. L. 710.--Contracts exempting the master from liability for negligence are usually held invalid on the ground of public policy \*0 and are expressly prohibited by some statutes,91 but an express agreement to assume ordinary risks is valid.92 A contract providing that voluntary acceptance by an employee of the benefits of a relief department shall operate as a release of all claims against the employer for the injury is not void as against public policy,99 unless opposed to a positive statute prohibiting such releases.94 The South Carolina act providing that acceptance of benefits from a relief department to which employees are required to pay dues shall not bar an action for damages, and that a contract or release to the contrary shall be void, is held valid.95 The act is held not to invalidate a release of a claim for damages arising out of negligence.96

Footnote 95: The author is grateful to the anonymous referees for their comments.

Footnote 96: The author is grateful to the anonymous referees for their comments.

Footnote 97: The author is grateful to the anonymous referees for their comments.

Footnote 98: The author is grateful to the anonymous referees for their comments.

ances which are reasonably safe " and suitable for the purposes for which they are intended to be used," or for a use to which they are customarily put by employes with the knowledge or acquiescence of the master.1 Instrumentalities of the kind ordinarily used by those engaged in the same business are reasonably safe within the meaning of this rule,2 which does not require the latest, safest or best obtainable,3 or those of any particular type,4 to be provided, but the fact that an appliance is of the kind in general use will not excuse negligence in providing it, if it is not, in fact,

Footnote 11: The use of the term "self-reference" is not meant to be used, but it is not meant to be used.

Duty of railway company to furnish reason-

baby safe hose for use of car cleaner and

tank filler, and where hose broke, causing

slipped, bottle being customarily used for plaintiff's injury, company would be respon-

sub filling. Avery v. West Lumber Co., 146

sible for want of ordinary care. Houston,

sc. C. 592, 60 SE 646.

etc., R. Co. v. Patrick \[Tex. Civ. App.\]. 109

2. Negligence cannot be inferred from use

SVV 1097.

98. Pettus v. Kerr \[Ark.\] 112 SW 886: German-American Lumber Co. v. Brock \[Fla.\]

man Bros. Shoe Co., 130 Mo. App. 712, 109 SWV 46 S 740: Kotera v. American Smelling & Re-

794: Branda v. St. Louis Car Co., 213 Mo. 698,

Hning Co. \[Neb.\] 114 NW 945: Long Star

brew. Co. v. Wille \[Tex. Civ. App.\]. 114 SW

186: Truckers' Mfg. & Supply Co. v. White,

as was customarily used in factories of the

108 Va. 147, 60 SE 630: Norfolk & Portus-

month Trac. Co. v. Ellington's Adm'r. 108

was no evidence that such guard was practic-

Va. 245, 61 SE 779. Master Irable for injuries

cable, though, if practicble, it would have

cashed by failure to provide reasonably safe

made machine safer. Forquer v. Slater Brick

appliances. Faulkner v. Texas, etc., R. Co. \[Tex.\]

Co., 37 Mont. 426, 97 P 843. Where emery

\[Tex. Civ. App.\]. 113 SWV 765. Master neg-

wheel was like those ordinarily used, and

ligent if he furnishes defective tools liable

use of such wheel was not negligence, though

land Steel Ship Bldg. Co. \[Or.\] 96 P 545.

ssert identified that convex wheel would be

Master is not guarantant of appliances but is

sher. Branda v. St. Louis Car Co., 213 Mo.

bound only to use ordinary care to provide

698, 112 SW 511. **Doctrine not applicable**

and maintain appliances which are reason-

ably safe. Southern R. Co. v. Moore, 108 Va.

other companies but only that same appli-

388. 61 SE 747.

sher 70. De Witt v. Floriston Pulp & Paper Co.,

Kennedy v. L Laclede Gaslight Co. \[Mo.\] 115

7 Cal. App. 774, 96 P 397. Whether reason-

ably safe appliances have been furnished

3. Louisville Vener Mills Co. v. Clemont,

may depend on uses to which they are to be

98 Ev. L. R. 106, 109 SWV 308. Only reason-

put. Currie v. Missouri, etc., R. Co. \[Tex.\]

ably safe and suitable appliances, not best

108 SWV 1167. Degree of care depends upon

or perfect working ones, required. Burke v.

circumstances and use to which appliances

International Paper Co., 112 NYS 893. Not

are to be put. Houston, etc., R. Co. v. Pat-

required to furnish beet known appliances,

rick \[Tex. Civ. App.\] 109 SWV 1097. Alleged

neglience in furnishing defective standards

are in general use. Cotton v. North Caro-

on flat cars was not sustained where it did

not appear that they were defective for in-

select appliances, and need not select new-

tended purpose, to hold materiale on car

est and best, but must use ordinary car to

and master was not shown to have knowl-

edge of their use by brakemen as handholds.

Portsmouth Trac. Co. v. Ellington's, 108 Va.

Chicago, etc., R. Co. v. Murray, 85 Ark. 600,

245, 61 SE 779. Only duty is to provide

109 SWV 549. **Track** and trains on **logaring**

sonably safe tools: not tools which make

read need be only reasonably safe for pur-

clients impossible. Smith v. Long Island R.

poses intended; not negligence to use small

Co., 114 NTS 228. Master not obliged to

or slightly worn rails, or cars unlike those

furnish absolutely safe appliances but only reasonably safe.\* Failure to provide appliances which are necessary in order that work may be done with reasonable safety,\* or to provide a sufficient number or quantity of appliances,7 may constitute negligence. The duty of the master with respect to appliances extends to those permanent appliances * which are used in the master's business, though owned by others.\* The duty is owed only to those employes who are required to work with 10 or near them, and who are likely to be exposed to injury by reason of their defective or unsafe condition.11 It is not owed to one whose duty it is to keep machinery in repair.12 Whether due care in this respect has been exercised in a given case is ordinarily a question of fact.13 The master is liable only for

5. The fact that an appliance is of the kind in general use throughout the country in the same or similar kind of work is not conclusive upon the question of negligence, if in fact the master has not used proper center in its selection and it is not reasonably safe. Villa v. Interstate Iron Co., 103 Minn. 803, 115 NEV 169. Where no buffer, brakes, or appliances were used to keep ears used in tunnel from running into pit at end of track, master could be found negligent in failing to provide reasonably safe appliances, though one he used was in general use. Evans v. Pearson, 125 App. Div. 66, 110 NYS 69. Fact that implement was purchased from reputable dealer, and was such as was ordinarily in use in same business, does not conclusively show exercise of due care in furnishing it to employe, though such facts may be considered by jury. Longpre v. Big BlackFoot Mill. Co. \[Mont.\] 9 P 131.

1. Defendant negligent for failure to pro-vIde means for making cement flow through conduits into bins, plaintiff having been injured by sudden flow produced by him by use of stick. Vaughn v. Glens Falls Portland Cement Co., 59 Misc. 230, 112 NYS 240.

1. Insuffent supply of suitable and safe rope was furnished painters with which to make or rlg swinging scanfold. Bart v. Quadt \[Cal. App.\] 96 P 815. Defendant liable where fellow-servant selected best rope he could find from the supply provided and it broke injuring plaintiff. Reeder v. Crystal Carbonate Lime Co., 129 Mo. App. 107, 107 SW 1016.

1. Bolt used to fasten clamps on carrying crane held part of appliance; master not relieved by reason of having supply of other bolts. Porter v. American Bridge Co., 111 NYS 119. "Dead block" designed to stop cars which ran onto track, and to offset defects in the track, was part of appliances or place of work and employe had right to assume that it was reasonably safe. Lay v. Elk Ridge Coal & Coke Co. \[V. Va.\] 61 SE 156. Rope alling, used on shipboard to lower staging over ship's side, held not mere temporary appliance but permanent and regular instrumentallty as to which master was untermed.

The master is liable only for der duty of ordinary care to provide and maintain in reasonably safe condition. Doherty v. Booth, 200 Mass. 522, 86 NE 945. Employer liable if he furnished one which was defective or failed to maintain them in reasonably safe condition, injury resulting therefrom. Id. Marks or tags on cable of temporary elevator for convenience of engla-neer in telling where elevator was held mere temporary device, not part of ways, works or machinery; failure to have such tags on part of cable not negligence. Del Signore v.

to place guard over shaft gearing, or whether it had been removed at time of accident. Hoffman Y. Rib Lake Lumber Co., 136 WNa. $88, 117 NW78. Employee injured on shaft while attempting to adjust belt; whether defendants were negligent in failing to guard shaft or supply belt shifter. Seely v. Ten-ant, 104 Minn. 354, 116 NW7 648. Revolving set servers caught sleeve of servant while adjusting pulley belt. Little V. Bousfield & Co. \[Mich.\] 15 Det. Leg. N. 763, 117 NW90. Whether unguarded rfa saw was reasonably safe. Louisville Veneer Mullins Co. V. Clennots, 33 Ky. L. R. 106, 109 SW7 308. Whether saw was properly guarded. Gustafson v. West Lumber Co. \[Vdash.\] 97 P 1094. Plaintiff injured by hand coming in contact with knives of buzz planer from which shield had been removed. Bennett v. Carolina Mfg. Co., 147 N. C. 620, 61 SE 468. Providing defective push-pole ou switch engine. Pennsylvania R. Co. v. Fortsall (C. C. A.) 159 F 833. Chain on elevator or carrier attached to street grading machine, allowing carrier to fall on plaintiff's intestence. Jones v. Herrick \[Iowa\] 118 NWV 44. Whether small chain, used to hitch team to cable, was furthest by defendant, chain having parted, causing cable to strike dceded. Martin v. Gould, 103 Minn. 467, 115 NW 276. Plaintiff was working on mast of derrick supported by rope and pulley, and rope parked, allowing him to fall. Westin v. Anderson \[Minn.\] 119 NW7 488. Whether it was defendant's duty to supply lineman, stringing wires, with insulated wires, and whether it did so. De Kalanda v. Washington Hume Tel. \[Humei.\] 15 NW7 564. Co. \[Mich.\] 15 Det. Leg. N. 337, 116 NW 564. Employee injured where heok finstened to enable which was being moved sideways (at-tached to ditching machine) gave way, causing chain to fly back and strike him. Patterson v. Melchior \[Minn.\] 119 NW7 402. \[Iron & Steel Co.\] 140 Ill. App. 258. Gas stove VWhether defendant was negligent in furnish-ing plaintiff eont hook with defective handle. Longrve v. Biz Blackfoot Mill. Co. \[Mont.\] 552, explosion of which injured plaintiff, 99 P 131. Whether negligence to provide heok heu at right angles instead of a acute angle with which to draw up heavy slide, not defective. Carr v. American Oncle. \[R.\] 70 A 136. Employee fingers Smelting & Refining Co. \[Neb.\] 114 NW945. \[Bar, shown to be defective, slipped, hairing plaintiff. Faulner v. Texas, etc. R. Co. \[Tex.\] 118 SW7 765. Evidence sufficent to go to jury which showed that chieset, frayed on top and with defective to shoved clay into clay grinding machine, handle, was furnished, and that plaintiff while striking it was struck in eye by piece of steel. Manning v. Portland Steel Ship on the head, causing him to fall upon magl. Co. \[Or.\] 96 P 545. Hose used by car tank filler broke, causing plaintiff to lose balance and fall off car. Houston, etc. R. Co. v. Patrick \[Tex., Civ. App.\] 109 SW7 109. \[Bushits v. Catskill Cement Co.\] 113 NYB Defective, slow-burning fuse was furnished, and delayed explosion injured miner. Nust. \[Humei.\] 140, 117 NW7 480. Whether kind of fuse used in mine was reasonably safe for jury, in action for injuries caused by premature explosion, 104 Minn. 309. \[Humei.\] 115 NW7 169. \[Humei.\] 118 NW7 169. \[Humei.\] 119. \[Humei.\] 119. \[Humei.\] 119. \[Humei.\] 119. \[Humei.\] 120. \[Humei.\] 121. \[Humei.\] 122.

### MASTER and SENTANT SS 3B.

12 Cur. L.w.

phone and trefly vires. trefict based on \[ Cross-cut and rip savs maintained above a sentence of guard between wires could not suffice of work test without compression signal without evidence of feasibility of differences to trade their use sift. Harney v.

such guard. Corcilium v. Central New York Chicago, etc., R. Co. \[Iowa\] 115 NY ist. Saw Telephone & T. Co., 11:1 NY ist. Sikids in the place by c.d. worn, s.-2: Retrovitrop pso saw sawmill being defective. n. employ? was fast \[- paintment operator. Ogitre v. Com-stricted at the place to see that number and \[ way Number Co. \[S. C.\] 61 SE 11: Recov-timbers were properly conveyed away. tans\] (versioned where girl of 16 was turned remedying defect. and for injury caused by \[-\]).

12 Cur. Law. Master and SERVANT SS 3B. 695

injuries which, in the exercise of ordinary care, ought to have been foreseen and guarded against.\[14\] The duty to provide reasonably safe and suitable appliances cannot be delegated so as to relieve the master from responsibility for its proper performance.\[15\]

The master, having provided reasonably safe and suitable machinery and appliances, is not liable for injuries resulting from their negligent use by an employee,\[16\] or from their unauthorized \[17\] use for a purpose for which they were not intended,\[18\] or from failure to use appliances which have been provided,\[19\] or from the negligent to defect in coupling apparatus and fireman was killed. Missouri, etc., R. Co. v. Snow master for injury to plaintiff. Missouri, etc., (Tex. Civ. App.). 115 SWV 631. Employe R. Co. v. Quinlan, 77 Kan. 126, 93 F 632. killed between tender and loaded ear owing to defect in coupling. Gauthier v. Wood by flying chip from chisel, though fellow-TVWash.\] 94 F 654. Negligence to allow step on engine tender to become worn and bent. Arkansas Cent. R. Co. v. Workman \[Ark.\] 41 Ind. App. 588, 84 NE 730. 112 SWV 1082. Negligence for railroad company to have defective apron between engine and tender and to have it to effectively conjecnecting two. Missouri, etc., R. Co. v. Adams, 42 Tex. Civ. App. 274, 114 SWV 453. Injries App. 275, 114 SWV 453. Where an appliance has to fireman caused by falling between engine and tender due to absence of apron which worked out of place by reason of defective bolt. Central of Georgia R. Co. v. Motte \[Ga.\] 62 SE 164. 14. Only obligation to guard machinery is against such changers as ought reasonably to be foreseen; no such duty owed servant who leaves place of work. Schomanske v. Asphalt Ready Roofing Co., 114 NFS 87. Master Is not liable where servant is injured through carelessness or thoughtlessness by machine with which he is not required to work, even though it is defective. Harper v. Illinois Cent. R. Co. \[Ky.\] 115 SWV 198. Large roller of machine was not covered, \[Pa.\] 71 A 16. Master not required to pro- and gearing at ends could not be. Employe slipped and had fingers caught in this roller, an accident which was unusual and unlikely. V. Master not liable, since only practical guard might not have prevented such accident. Martin v. Walker & Williams Mfg. Co., 113 NFS 78. Dump car, which worked perfectly, held not defective in construction because cross arm came down too close to plank or which workmen were, where in operating car workmen would naturally be at safe distance from where cross-arm descended. Hanson v. Superior Mfg. Co., 187 WIs. 617, 118 NWV 180. There could be no recovery for injuries to boy's hand in knknives of pug mill on ground that nozzle on hose the was holding was defective, causing sudden apurt of water which carried his hand into knives, since such an accident could not reasonably have been foreseen. Forguer v. Slater Bruck Co., 57 Mont. 428, 97 P 848. 15. Bort v. Quadt \[Cal. App.\] 96 P 815. Heck v. International Smokeless Powder Co. \[N. J. Law\] 71 A 160; Carr v. Americanly Co. \[R.\] 117 A 186. Duty to furnish reasonably safe jonter continuing and not discharged by simply employing man to keep it in condition. Bigum v. St. Paul Sash, Door & Lumber Co. \[Minn.\] 119 NWV 481. Compilation alleging that defective rope was an "appliance" furnished by master not demurable on ground that selection of it was by servant. Bart v. Quadt \[Cal. App.\] 96 P 815. Where sledges were placed at helper's disposal by foreman, select * 696 Master and Servant $ 3B. **12** Cur. Law.

selection by an employee of such as are defective, others, reasonably safe, having been provided.\[26\]

_Temporary appliances; scaffolds, staging and the like,See 10 C. L. T16_In respect to temporary appliances, such as scaffolds and the like, built and used by the employees in the ordinary course of their duties, the master fully performs his duty by supplying a sufficient quantity of suitable material,\[21\] and he is not liable for injuries caused by negligent construction or failure to use the suitable materials provided; \[27\] but if the master undertakes to furnish a completed structure or directs the servant to use such structure, he owes him the same degree of care with respect to its safety as he does with respect to other appliances.\[28\]_

of fellow-servants to use two guy ropes provided by Jamureymen plasterers, according to rules of their union, before plaintiff came to Co. \[N. J. Law\] 68 A 1073.

20. Where master has furnished a suffinetic setup supply of suitable material or appliances, he is not liable for injuries resulting from the selection of an unsafe one by a fellow-servant. Reader v. Crystal Carbonate

Dory aplplinance which it was employed?

Lime Co., 129 Mo. App. 107, 107 SWV 1016.

Where servants were ordered to do simple work, and left to select tools, master was not liable for negligence in furnishing tools.

86 NE 892. No duty of master to furnish Smith v. Long Island R. Co., 114 NYES 228.

platform being shown, and, master having Employes selected defective blow-off pipe

furnished suitable material, no recovery for with which to change water in locomotive

injury to employ caused by negligent select-bolizer when good ones were available. No

recovery for his death caused by such obvious defect. Atchison, etc., R. Co. v. Stone,

1024. Master furnished good materials to 71 Kan. 642, 95 P 1049. If master furnished support frame for drop hammer, and intend-several emery wheels for use on particular

sourced at first. One guy was removed, man who selected defective one would be negligence of fellow-servant only; but if only one actually used was available, master would be liable. Huber v. Vhala Creek

limb Vorks, 125 App. Div. 184, 109 NYES 177.

21. Where men constructed stagning to be used by them, master would have performed

duty by furnishing sufficient quantity of suitable and reasonably safe materials.

then: Cheatham v. Hogan \[Twash\]. 97 P Donahue v. Buck & Co., 197 Mass. 550, 83 NE 1090. Master owes duty of due care to

SE. Care required in building scaffolds select materials for scaffold reasonably safe and suitable. Barkley v. South Atlantic

dent men would use under like circumstan-Waste Co., 147 N. C., 585, 61 SE 565. Where

workmen put up staging, master liable

114 SWV 697. Where staging was furnished

where fall was due to defective material

supplied by him, sufficient good material not

caused by its collapse, though it was built

being at hand. Donahue v. Buck & Co., 197

Mass. 550, 83 NE 1090. Evidence sufficient

to warrant finding that board supplied for

pick which had been used several months in

use in making staging was defective and

unsafe and that an inspection would have

one put up as used by employees. Watson v.

disclosed its condition. Dunlauev v. Sullivan,

New York Cont. Co., 111 NYES 277. Principle

200 Mass. 29, 85 NE 866. Where defendant

that master is not liable where he provides

agreed to and accepted plan of construction

suitable materials, and servants select un-of staging suggested by employees, it was his

safe ones, not applicable where selection of

duty to furnish suitable materials for-it, and

was liable for injury resulting from unsafe

of works. Heck v. International Smokeless materials supplied by him. Id.

22. If master furnishes suitable materials

directs an employ to use a scaffold built

for construction of appliances to be put to

by other employees, he adopts scaffold as his

gether and used by employees, he is not liable for negligent construction. Bort v.

employe for defects in its construction. Quadt \[Cal. App.\] 96 P 815. When employees

themselves were required to build staging,

dance held to warrant recovery where scaf-master was not liable for its fall unless he

still was built by employees in course of con-supplied unsafe materials. Stevens v. Strout,

function of building and used by them, and

200 Mass. 432, 86 NE 907. Employer not liable where

bla where the supplied sufficient proper materials for scaffold and it was constructed

pose, he having had no part in its construc * 12 Cur. Law MASTER AND SERVANT SS 3B. 697 Holdings under the New York statute, requiring persons who procure work to be done in which scaffolds or similar appliances are necessary to provide safe appliances for such work are given in the note.\[24\]

- 10 C. L. 716--It is the duty of the master to use ordinary care te provide a place of work which is reasonably safe,\[25\] considering the nature of the business and the character of the work,\[26\] and the intended uses and purposes of the place provided.\[27\] This duty extends only to the place provided by the master for the doing of the work \[28\] and in which the employes are required to be while in per-
- 10. Id. Proof that boards used in seaf-fold were partly burned and knotty made case for jury. Barkley v. South Atlantic Waste Co., 147 N. C. 585, 61 SE 555.
- 12. Laws 1897, p. 467, c. 415, 18, providing that safe scamfolds, etc., must be prohibited for use of employees engaged in building, repairing, etc., any house, building or structure, held to apply where plaintiff was repairing passenger car and fell by reason of defective platform on staging used in work. Caddy v. Interborough Rapid Transit Co., 125 App. Div. 631, 110 NYS 162. Section 18 in effect makes a scaffold "place" of work, so far as master's duty with reference to it is concerned. Pettersen v. Rantien's American Composition Co., 111 NYS 329. Where action was based on this section, and court had not charged on duty of inspection, error to refuse requested charge that master would not be liable for defect not discoverable by inspection. Id. Seevrees required and dangers to be appre-
- 13. Gooder stant, employer is bound to furnish safe scamfold. O'Donnell v. John HL. Parker Co., 125 App. Div. 475, 109 NYS 675. Statute requires furnishing of "safe" 13. Gooder stant, not merely one which is "reasonably safe." Bower v. Holybrook, 125 App. Div. 684, 110 NYS 164. Outy under statute is continuous; scaffold must be kept safe; and master is liable for negligence of one entrusted with duty of furnishing or maintain it in safe condition. Id. Held that fornash safe region, knowing of condition of defective plank which broke. Id. Recovery sustained for death of painter of Iron work of subway who fell by reason of defective plank in scaffold provided for his use. Id. Steel frame building was in course of construction, and men were erected.
- 14. Master owed duty to properly insusing derrick with which to raise steel beams, employees were required to work. Colusa make scaffold with two horses and plank. This was 30 feet from ground. Statute held applicable. Warren v. Post, 128 App. Div. 672, 112 NYS 960. Duty Imposed by 18 is absolute and nondelegable; master liable though defective scaffold put by plaintiff and another plank being defective. Id. Scaffold prepared for plaintiff, with horses and planks, to be used by him in putting up fixtures to hang steam coils on, was within statute, and recovery for injury due to its defective condition was warranted. Trace v. Williams, 111 NYS 114. Where patent ladder scaffold fell or tipped over with plaintiff, painter, whether defendant was negligent in furnishing contrurance not "14. Refining Co., 105 Minn. 148, 117 NYS 418. Though reasonably safe was for jury. Schmitt v. John HL. 10 NYS 1086.
- 15. Burnside v. Peterson, 43 Colo. 382, 96 P 256; Bernheimer Bros, v. Bagger \[M.\] 70 A 91; Kcorener v. St. Louis Car Co., 209 Mo. 111 NYS 161. \*\*Brick wall in course of con-
- 16. J. M. C. 112 NYS 960. Duty Imposed by 18 is absolute and nondelegable; master liable though defective scaffold put by plaintiff and another plank being defective. Id. Scaffold prepared for plaintiff, with horses and planks, to be used by him in putting up fixtures to hang steam coils on, was within statute, and recovery for injury due to its defective condition was warranted. Trace v. Williams, 111 NYS 114. Where patent ladder scaffold fell or tipped over with plaintiff, painter, whether defendant was negligent in furnishing contrurance not "14. Refining Co., 105 Minn. 148, 117 NYS 418. Though reasonably safe was for jury. Schmitt v. John HL. 10 NYS 1086.
- 17. Burnside v. Peterson, 43 Colo. 382, 96 P 256; Bernheimer Bros, v. Bagger \[M.\] 70 A 91; Kcorener v. St. Louis Car Co., 209 Mo. 111 NYS 161. \*\*Brick wall in course of con-
- 18. J. M. C. 112 NYS 960. Duty Imposed by 18 is absolute and nondelegable; master liable though defective scaffold put by plaintiff and another plank being defective. Id. Scaffold prepared for plaintiff, with horses and planks, to be used by him in putting up fixtures to hang steam coils on, was within statute, and recovery for injury due to its defective condition was warranted. Trace v. Williams, 111 NYS 114. Where patent ladder scaffold fell or tipped over with plaintiff, painter, whether defendant was negligent in furnishing contrurance not "14. Refining formance of their duties,29 or which they customarily use with his knowledge or acquiescence,30 and he is not liable for injuries received by a servant while in a place where he was not required or had no right to be,51 the servant being then a mere licensee or trespasser.32 The duty to provide a reasonably safe place is continuous33 and cannot be delegated so as to relieve the master from responsibility for its non-performance.34 Whether due care has been exercised by the master in this respect is usually a question of fact.35

layer: scaffold on which he stood was place. \[W. Va.\] 63 SB: Ripp v. Fuchs, 113 NYS 361. 29. Duty extends only to premises where employee is required to work. Harper v. Illinois Cent R. Co. \[Ky.\] 116 SW 198. 30. Harris v. Det Farenede Dampskibselskab kab \[N. J. Err. & App.\] 70 A 155. 31. Flight mover left his place to get shovel which foreman had told him he was getting and fell into coal hole. No recovery. Harris v. Det Farenede Dampskibselskab kab \[N. J. Err. & App.\] 70 A 155. 32. When a servant leaves the place of work provided without cause of authority, he becomes a mere licensee or trespasser. Harris v. Det Farenede Dampskibselskab \[N. J. Err. & App.\] 70 A 156. 33. Duty as to place continuous; warning should be given as to unusual dangers. Stephen v. Duffy, 136 Ill. App. 572. Duty is violated where the place is allowed to become unsafe or is rendered dangerous without notice to employees. Koerner v. St. Louis Car Co., 209 Mo. 141, 107 SW 481. Duty to provide safe place is continuous and must be performed when conditions change, owing to nature of work. Pennsylvania Steel Co. v. Jacobsen \[C. C. A.\] 157 F 656. Where place may become dangerous, and this fact ought reasonably to be foreseen, reasonable care to prevent accident must be used. Palmijiana v. Hyde-McFarlin Co., 110 NYS 368. 17 Place becomes unsafe by reason of danger which master knows or ought to know, he is under duty to use care to prevent it, regardless of its source. Leazotte v. Jackson Mfg Co., 17 N. H. 480, 89 A 640. 34. Lorts & Frey Planing Mill Co. v. Well (Ky.) 113 SW 474: Vientent v. Merchenst' & Shippenst' Warachouse Co., 112 NYS 123: Palmijiana v. Hyde-McFarlin Co., 110 NYS 368. 17. Duty to see that revolving shaft in dressing room was kept covered nondelegable. Flynn v. Prince, Collins & Marston Co., 198 Mass. 224, 84 NE 321. Railway company responsible for neglect of employee charged with duty of keeping track in repair and safe condition. St. Louis S. W. R. Co. v. Cleland (Tex. Civ. App.) 110 SW 122. Master not relieved where prop was caused to fall on plaintiff by acts of independent renteors. Bernheimer Bros. v. Boger \[Md.\] 70 A 91. Nonassignable duty of railroads to provide reasonably safe place of work extends to all tracks used by employees and cannot be assigned to an independent contractor as to any part of it so as to relieve the company from liability for its nonperformance. Vielkers v. Kanawha & W. V. R. Co. \[W. Va.\] 63 SE 87. Independent contractor in doing his work suspended ropes from derrick over track and they were allowed to sag so that stack of engine caught one and pulled down another, which knocked plaintiff off a car. Held company was liable for contractor's negligence. Vickers 12 Cur. Law. MASTER AND SERVANT SS 3B. 699

he was assisting in moving from burned \[N. H.\] 71 A 629. Revolving shaft in dressbuilding. 'Binyon v. Smith \[Tex. Civ. App.\] 112 SVW 188. Employee ordered to work within-in reach of building being dismantled, which fell upon him. American Window Glass Co., v. Noe \[C. C. A.\] 168 F 777. "Manhehele" made of concrete, was being lowered into hole and fell apart and injured plaintiff, digging to allow it to sink; negligence in failing to properly brace concrete structure. Ward v. 176, 70 A 719. Maintaining box containing Rldison Elec. Illum. Co., 124 App. Div. 22, 108 NYS 608. Pile of lumber fell on plaintiff. Rigby v. Oil Well Supply Co., 130 Ginnat, etc., R. Co. v. Fortner \[Ky.\] 113 Mo. App. 128, 108 SVW 1128; Bryant Lumber Co. v. Statney \[Ark.\] 112 SVW 740. Hay ehute left uncovered in dimly lighted barn lort. Moellman v. Giese-Henselmeier Lumber Co. \[Mo. App.\] 114 SVW 1023. Whether coal bin where employe fell over rope was unsafe due to insufficient light. Chicago, etc., R. Co. v. Jackson \[Tex. Civ. App.\] 108 SSV 483. Whether owner of vessel should have taken further precautions to grand hole made by servants of independent contractor in making repairs. Melia v. Northern S. S. Co., 162 F 499. Plaintiff directed to open Hume surge to let water through, and fore-man suddenly opened gate from inside, letting water down on plaintiff. Harris v. Washington Portland Cement Co. \[Wash.\] 95 P 84. Inexperienced man, put to work shoveling where ground vms uneven, step-ped into concealed hole. Missouri, etc. R. Co. v. Romans \[Tex. Civ. App.\] 114 SVW 157. Whether contractor was negligently in mode used to explode dynamic in hinging, as to an employee engaged in loading steam shock and killed by explosion of charge which did not explode with others. Stephen V. Duffy, 237 Ill. 549, 86 NE 1082. Whether master was negligent in putting deceased to work in severe french, and not withdrawing him while lended blast was being removed, which exploded. Pole V. Pilsado Const. Co. \[N. J. Err. & App.\] 70 A 161. Evidence for jury where prop which held adjoining wall fell on employee working in excavation for new building. Bernheimer Proy. Wager \[Md.\] 70 A 91. Whether place of work, excavation, was properly safe garded by time-, and was reasonably safe, bank having caveed in. Sonenberg v. Southern Pac. Co. \[C. C. A.\] 169 F 884. Earth fell on employee at work in excavation. Hilgar v. Walla \[Vash.\] 97 P 498. Case for jury where it was shown that deceased was killed by explosion of gns in manhele in defendants plant, and use of defective gas pipes could be found. Seager v. Solvay Process Co., 114 NYS 591.

Evidence held sm Holdings applying these principles to the duty of railroad companies with respect to their tracks, right of way, and premises," and to the duties owed by owners or operators of mines " to their employees, are collected in the notes.

eus condition being given. Weinert v. Mer-chants' & Shippers' Warehouse Co., 112 NYS 123. Workman killed by explosion of calium carbide caused by plumber allowing water to run from pipe which he was re-ear, master not liable. Falkeneau Const. pairing on to the explode. Held master's & Co. v. Gilley, 131 Ill. App. 399. Plaintiff duty to see that pipes were drained before was injured by falling timber dislodged by repairs were undertaken, and this duty could not be delegated. Charron v. Union Car-bido Co., 151 Mich. 687, 15 Det. Leg. N. 154, negligence of defendant in construction or 118 NVP 718. Trench into which platiff arrangement of timbering. City of Chicago was ordered to gro was not properly braced, v. Enright, 138 Ill. App. 179. Where wires and that its condition was discoverable by naked only been up short time and were in master by exercise of ordinary care. McG-Coy v. Northern Heating & Elec. Co., 104 Mann. 234, 118 NVP 488. In blasting, one of plasoft of povder. Western Coal & Min. three charges did not explode. Contrary to Co. v. Garner \[Ark.\] 112 SW 392. Quarry-custom, no investigation was made, and man injured by falling stone. Gince v. Ben-when hole was drilled next day charge exploded, throwing rock on platiff below.
36, Railroad's A railroad company may construct its road and other structures according allowed box of dynamite to remain uncovered near tents occupied by men in which stoves were used, box having caught hot, without liability, violate rules of law governing care which, 104 Min., 415 NVP 748. Same hold-safety of passengers and employees. Clay v. Ing: plaintintri injured by same explosion. Chicago, etc., R. Co., 104 Min. 1, 118 NVP 949. No cause of action can be based on ter libable, having failed to locate and re-atflance to block frogs. York St. Louis, move unexploded charges of dyamite ex-, etc., R. Co. \[Ark.\] 110 SW 908. Use of unploding and causing death of cranesman. Baltimore & N. Y. R. Co. \[C. C. A.\] 165 F and was engaged in excavating cut across street and steam shovel came in contract if they are not reasonably safe. Matthews with and cut gas mains, from which gas as-, eged to fire box of engine, causing explosion and death of common labor. Palmli-, were caused by failure of company to have landa v. Hyde-McFarlin Co., 110 NYS 868. Evil-dence ample to show negligence of foreman inside to perform duty to locate and take out unexploded charges, where plaintri in quarter was sent out to pick and shovel and shovel angle among hidden, unexploded charges of dysfunction. Hall v. Chicago, etc., R. Co. \[Iowa\] 116 NVP 113. Track defective where engine tender left in, causing brakeman to throw which ran cable was used to heal logs & NVP 114. Lausby v. Bird & was so changed that cable got caught on rock and then swung against platiff when Routford company could not be held negli-root gave way. Howland v. Standard Mill. & Logging Co. \[Vwash.\] 95 P 868. Evidence held to warrant find-ing of trails, and such use by Hagman, zen, 140 Ill. App. 555. Plaintri, engaged in washing floor of reservoir, was struck by chlabel which dropped from roof where car-, 140 Ill. App. 558. Plaintri, engaged in and such injury, was not reasonably to have washing floor of reservoir, was struck by chlabel which dropped from roof where car-, 17 SW 61. Brackeman, trying to catch contrary way. Taylor v. Washington Mill. & co. \[Vwash.\] 97 P 243. Servant was hit by hreck alleged to have fallen upon him while at work in constructing building. William & Grace Co. v. Gallagher, 140 Ill. App. 603. Where servant was killed by falling into & washed out by return, laid down in instructe-, 140 Ill. App. 604. & N. Y. R. Co., 162 F 392. Brakeman killed while plaintiff to become dangerous by reason of & tremen dus alone track for purpose of putting in target signals. Held company charge-, such as would render probable an accident & the digging of the trench. Southern R. Co. v. Newton's Adm'r, 108 Va. \[Utah\] 97 P 28. Vats, in which gas burners & 114, 60 SE 625. Where brakeman was invented owing to defect in embankment where he alighted to turn switch, proof of custom-ary use of the place was admissible, since, whether it was private ground or part of the right of way company owed employees duty to keep it safe if used by them customarily. Toledo, etc., R. Co. v. Reardon \[C. C. A.1\] 169 F 366. Switch tender on electric tram read in mine slipped through opening on foothoard of motor as car struck projecting rails of side (track and had leg injured. Sundvall v. Interstate Iron Co., 104 Minn. 499, 116 NW 1118. Duty of railroad company to brakeman to maintain "spur track as well as main track in reasonably safe condition; and if ballasting was required in exercise of ordinary care, failure to ballast was negligence. Roenfranx v. Chicago, etc., R. Co. \[Iowa\] 116 NW 714. Company negligent when it allowed rails of spur track to become four inches out of alignment, causing derailment of car. Dortch v. Atlantic Coast Line R. Co. \[N. C.\] 62 SE 616. Railroad company is under duty of ordinary care to maintain yards, tracks, appliances, etc., in switching yards reasonably safe for purpose of switching and couping and uncoupling cars. International, etc., R. Co. v. Rieden \[Tex. City. App.\] 20 Tex. Ct. Rep. 930, 107 SWF 661. Negligence for company to allow depression to exist in road bed in switething yards. St. Louis, etc., R. Co. v. Mangan \[Ark\] 112 SWF 168. Where fireman in locomotive was injured by reason of locomotive dropping through defective bridge, evidence that bridge had given way before, and had been rebuilt in former shape without being strengthened, and that it showed sinking at time of accident similar to first, height sufficient to sustain charge of negligence. McCabe & Steen Const. Co. v. Wilson, 209 U. S. 275, 52 Law. Ed. 788. Negligence for rall-road company to maintain bridge so low as to endanger brakemen on cars using due care. Chesapeake & O. R. Co. v. Rowsey's & Adm'r, 108 Va. 632, 62 SE 368. Rilitroads have no common-law duty to fence their right of wavy, and failure to fence violates eye. Atchison, etc., R. Co. v. White, 77 Kan. no duty owed employees. Gill V. Louisville & S53, 94 F 266. Railway company owes to emmy-N. R. Co., 160 F 260. Neither common law nor Act Tenn. 1891, p. 220, c. 101, SS 2, 3. making railroad companies liable for killing agnices. Chicago, etc., R. Co. v. Donovan it duty of company as to employees to fence in tracks; and there is no liability for death or employee in collision with stock because of want of fence. Gill v. Louisville & N. R. Co. \[C. C. A.1\] 165 F 438. Not negligence for defenant to maintain freight platform to con-form to curved track, so that ends of passing car were 20 inches and center 5% inches from platform, it not being expected that men would attempt to work between car and platform. Haring v. Great Northern R. Co. \[IVs.\] 113 NW 326. Whether defendant was negligent in maintaining freight platform too close to track, so as to be unsafe for employees riding on cars, for jury. Claye, v. Chicago, etc., R. Co., 104 Minn. 1, 115 NW 549. Failure to light platform where brakemen might, or to allow 14-inch space between platform and cars, held not negligence. Arkansas Cent. R. Co. v. Workman \[Ark.\] 112 SWF 1082. Railway company which acquessed in custom of conductors to get off trains at station platform while trains were moving, to perform their duties, owed them duty of ordinary care to keep platforms reasonably safe and free from ob-structions. Missouri, etc., R. Co. v. Kennedy \[Tex. City. App.\] 112 SWF 339. Freight hanfla-H - The rule requiring the master to use ordinary care to provide a reasonably safe place of work does not apply where the very nature of the work itself renders it dangerous," as where a dangerous place is being made safe," nor where the danger is transitory or temporary and arises during the progress of the work," nor where the injured servant was at the time engaged in making the place of work," nor where the conditions are constantly changing and the safety of the servant must depend upon the exercise of due care by himself." In these cases the dangers are incidental to the work and are assumed risks.41 There can be no recovery for failure of the master to maintain the place of work in a reasonably safe condition when that duty devolved upon the injured servant,44 or where the place was made unsafe by the act or negligence of a fellow- servant.45

Footnote 4 ordinarily a question of fact \*\* to be determined by reference to the nature of the work, the character of the place and appliances, and the use to which they are put.56 The duty of maintenance and inspection is personal and nondelegable.51

pliances were proper when installed, it was \[ fell on miner. Mammroth Vein Coal Co. v. master's duty to keep them In reasonably safe condition by repairs. Aga v. Harbach \[Iowa\] to ditching machine fell on plaintiff owing to defect in brake which held them in place, no Inspection of machine having been made. Engler v. La Crosec Dredging Co., 105 Minn. York Cont. Co., 113 NYS 449. Whether defect which caused cylinder of buzz phaner to jump should have been discovered by employer. Rowell v. Offord, 200 Mass. 546, 86 NE 901. Whether defendant was negligent in failing to discover and remedy defect in \[ruck, wheel of which came off. Cotton v. North Carolina R. Co. N. C.\] 62 SE 1058. \[Vhether defendant knew of defects in boiler which exploded, killing engineer. Houston in finding that master was chargeable with & T. C. K. Co. V. Davenport \[Tex. Civ. App.\] 110 SW 150. Whether Inspection of elevator was sufficient, where one cable had broken and operator was ordered to run it with only one defective cable, which also broke causing injury. Wilson V. Escanaba Wooden-ware Co., 152 Mlich. 540, 15 Det. Leg. N. 216, 116 NW 198. Rock fell from roof of mine entry on drlver. McCarthy v. Spring Valley Coal Co., 282 Ill. 473, 83 NE 957. Case for jury where defect in roof, which fell, was discoverable only by rather close inspection. Campbell Coal Min. Co. v. Smith's Adm? \[Ky.\] 115 SW 256. \[C. The degree of care required in examining for defects is such as a person of ordinary prudence would use under similar circumstances, and it must have a relation to the character of the machine, and the gravity of results of accident. Wilson v. Escanaba Woodenware Co., 152 Mlich. 540, 15 Det. Leg. N. 216, 116 NW 198. Duty to inspect instrumentatilities at reasonable intervals depending on facts and circumstances. Cotton v. North Carolina R. Co. \[N. C.\] 62 SE 1098. Master must use ordinary care to dison cover and repair defects and obviate danserg, and this care must be tested by business in which he is engaged and conditions surrounding it and must be commensurate with its requirements. Bryant Lumber Co. v. Stastney \[Ark.\] 112 SW 740. Only reasonable care required in Inspection of hook to discover defects; Improper to receive evidence that defect might have been discovered by tests with heat, acids, or microscope, these tests being unusual. Brossman v. Drake Standard Mach. Works, 232 Ill. 412, 83 NE 986. Duty of inspection of place does not include duty to discover and prevent negligent acts of fellow-servants, after safe place has been provided. Connolly v. North Jersey St. R. Co. \[N. J. Law\] 69 A 487. If broken clevis on car brake would have been discovered by an inspection such as an-dinarily prudent person would have made under the circumstances, company would be iniable. Missouri K. & T. R. Co. v. Blachley \[Tex. Civ. App.\] 109 SW 995. \[Evidence held to warrant finding of negligence: Hammer of pile driver suddenly fell on plaintiff; finding of negligence in failing to keep apparatus In repair warranted. Husten v. Quincy, etc., R. Co., 129 Mo. App. 576, 107 SW 1045. Where "water-silp" rock

**VOL. XII. NO. 4. CURRENT LAW, July, 1909. 705**

**(Copyright, 1909, by the Keefe-Davidson Company.)**

**MASTER AND SERVANT--Cont'd.**

A master is not liable for injuries resulting from defects of which he had no notice, \[52\] and which ordinary care and a reasonable inspection would not have disclosed; \[53\] he is chargeable with notice of defects which ordinary care on his part would have disclosed, \[54\] and in such cases, lack of actual notice will not relieve him

86 NE 15. Where pin attaching lever to

**pliance without proof that master knew or**

**coupling pin was missing, and brakeman**

**ought to have known of it. Forquer v. was injured in attempting to make coupling**

**Siaret Brick Co., 37 Mont. 428, 97 P 843.**

\*\*by hand, where it appeared that three In-

**Where defect in ways, works, etc., is relied**

**spections had been made in 24 hours, that**

**on, plaintiff must show not only existence**

**absence of pin was discovered just before**

**of defect but that "it arose from or had**

**sc accident, and that inspector was after pin**

**when brakeman was hurt. Southern R. Co., the negligence of the master or employer, v. Moore, 108 Va. 388, 61 NS 747. Where**

**of some person in the service of the masliosion was caused by breaking of link in**

**ter." Louisville & N. R. Co. v. Lowe \[Ala.\]**

**equalizing brake**
**elom, and it appeared**

\*\*at 8 S 99. Evidence held to show negli-

**then chain was not worn or defective, that**

**or loose spike used to hold rail to cross tie.**

**cal equipment every 24 hours, failure to**

\*\*l. Latent defect in tube of boller. Illi-

**make inspection suggested after accident,**

**such as was made nowhere else on similar**

**Defendant not liable for**

**injuries caused by cars, was not negligence. Donaldson v. defective guard of elevator shaft, unless it**

**Brooklyn Heights R. Co., 114 NYS 11.**

\*\*51. Petterson v. Rathjen's American Com-

**ordinary care of defect Roth v. Bucteti**

**position Co., 111 NYS 829. Only its proper**

**programs relieve master. Reed v. Norfolk & W. R. Co., 162 F 750. Doty of inspecting cars ia absolute and nondelegable.**

\*\*had existed long enough to charge defend-

**Southern R. Co. v. West \[Ga. App.\] 62 SE**

**141. Duty of inspecting ments, worked on**

\*\*by employes, to discover diseased animals and protect against infection, cannot be del-

**years. Plaintiff was sent up to cut wires**

**gated.: mere fact of government inspection**

**or appointment of inspectors not enough.**

**Must appear that reasonable inspection was**

**Held, no negligence of company shown in**

**in fact made. O'Connor v. Armuch Packing**

**C. \[C. C. A.\] 158 F 241. Question for jury**

**where it appeared that plaintiff was infected.**

**ed with anthrax from calf carcass and that**

**reasonable inspection would have disclosed**

\*\*disease. Id. Defendant company gave line-

**men printed notice of duties, requiring**

\*\*among other things that linemen should in-

\*\*spect poles, cross-arms, etc. before climb-

**lag them. Plaintiff acknowledged receipt**

\*\*of notice in writing. Held, company was not relieved from liability for injury to line-

**has are known but also to such as would be**

**man due to breaking of defective pole, set by**

**gang of "ground men" week before. Ault**

**v. Nebraska Tel. Co. (Nebts.) 118 NW 73.**

**52. Proof of knowledge by employer that**

**seek which fell on quarryman was loose**

\*\*held essential to recovery. Mitchell Lime Co. v. Nikeless \[Ind. App.\] 85 NE 728. Masl-

**ter not liable for defects in appliances caused by servants use, and not brought to**

\*\*w. Laughran, 136 Ill. App. 432. Master is Illi-

**his attention. Vaughn v. Longmead Iron**

**Works, 220 Pa. 347, 69 A 810. Defect must**

**be shown; also that master knew or ought**

**to have known of it. Finn v. Oregon W., P. \[R.\] 70 A 196. Instruction that, if**

\*\*& R. Co. \[Or.\] 93 P 690. Evidence insuffin-

**clent to show knowledge by defendant of**

**velous character of horse which kicked**

**plaintiff. Haneman v. Western Meat Co.**

\*\*(Cal. App.) 97 P 695. Evidence held not to

**show knowledge by master that energy wheel**

**was liable to explode. Brand's v. St. Louis**

**Car Co., 213 Mo. 638, 112 SW 611. Master**

**not chargeable with negligence in failing to**

**have premises properly inflated, where it appeared that lamps were provided but some**

**were not burning, knowledge of which by**

\*\*master was not shown. Cook v.

from liability.\[55\] Knowledge of dangers or defects possessed by a vice-principal is knowledge of the master.\[56\]

Ordinarily, the servant is under no duty to make an inspection c: the place or appliances \[57\] but may rely on the assumption that the master has performed his

ter, knowledge of improper operation being shown. Smythe v. Parish & Co., 140 Ill. App. 405. If reasonable inspection would have disclosed that rope sings used to lower staging over ship's side had become unsafe by chafing of ship on whart, master would be liable for injury caused by its breaking. Doherty v. Booth, 200 Mass. 522, 86 NE 945. Test of boiler failed to show defective weld in pipe. Illinois Steel Co. v. Loughran, 136 III. App. 432. Evidence held to show that Ehseel was known to be defective when furnished for use. Baltimore, etc., R. Co. v. Wasker, 41 Ind. App. 688, 84 NE 730. Where 01, making floor slipper, had been there 40 hours, evidence warranted finding of neglegence in not discovering and removing it. Leaguett v. Jackson Mfg. Co. 74 N. H. 480, $9 A 640. Defendant liable where shafing was "nicked," causing plaintiff'sothing to be caught and luring him. Defendant was chargeable with notice of the defect making shaft more dangerous. Whitworth v. South Bank Arkinans Lumber Co., 121 La. 894, 46 S 912. Deceased ordered to assist in using derrick which collapsed and fell upon him owing to vottness of timbers. It has been used 5 years and had been in same position $ years and had never been Inspected. Held, defendant chargeable with negligence. Conversely Bridge Co. v. Grizzle \[Tenn.\] 109 SWP 290. That placing piece of sheet metal where it was likely to fail was act of servant did not relieve master, where it was allowed to remain there and knowledge of it was imputed to master. Kalodranski v. American Locomotive Co. \[R. I.\] 69 A 605. Inspection, negligent or done by incompetent servant, which did not disclose obvious defects in swythe line supporting derrick, or defects discoverable by reasonable inspection. Cavanaugh v. Windsor Cut Stone Corp., 80 Conn. 585, 69 A 345. Proper to refuse directed vera-dict where there was evidence from which jury could find alleged defect in hook, which broke, was obvious and should have been discovered. Brossman v. Drake Standard Mach. Works, 232 Ill. 412, 83 NE 938. Prima facle case of negligence made where plaintiff complained of machine, was told it had been fixed, and was thereafter injured by reason of hammer of it falling automatic-ally. Staskowski v. Standard Oil Co., 111 NYS 68. Master is Ilabic for injuries caused by such defects as it is his duty to know about. Converse Bridge Co. v. Grizzle \[Tenn.\] 109 SWP 290. It is not essential that defendant have actual knowledge of dangerous condition of place of work: It is sufficient that, in the exercise of ordinary care, he ought to have known. Kneale v. Loughran \[Miss.\] 46 S 716. Actual knowledge of existence of hole 1s ground where plaintiff worked not necessary to charge master if ordinary care would have disclosed it. Missouri, K. & T. R. Co. v. Romans \[Tex. Civ. App.\] 114 SWP 157. Master cannot plead ignorance of defects in construction of suspended sliding door which make it liable to fail outwards upon slight \[Tex. Civ. App.\] 110 SWP 123. Duty 4. \[ENDFIGURE\]

### 18 Cur. Law. Master and Servant $ 3B.

duty with respect thereto,84 but this is not the rule with respect to simple and common tools used by the servant in the ordinary discharge of his duties,85 nor does the rule apply where the servant injured was one on whom the duty of inspection rested.86 No recovery can usually be had for an injury resulting from a defect or condition discoverable by the injured employee by the use of ordinary care in the course of his usual duties,87 or which was actually known to him and of which he failed to complain or give notice.87

S. F. R. Co. v. Delk \[C. C. A.\] 158 F 981.

Use of car not equipped with automatic coupler as required by federal safety appliance act is negligence per se. Austin v. Central of Georgia R. Co., 8 Ga. App. 775, 81 SE 988.

The automatic coupler act requires carriers to equip cars with automatic couplers and to keep them so equipped, but requires only ordinary or reasonable care to keep such equipment in repair. St. Louis & S. F. R. Co. v. Delk \[C. C. A.\] 158 F 931. The federal safety appliance law 727 Stat. at L

settline inspectors and managers who have form height on freight cars, does not require that the drawbacks in all loaded cars should be exactly at the minimum height from the rails, but its meaning is that such draw-of-negligence is erroneous. Moore v. Cenpoint within the maximum and minimum distance from the rails. St. Louis, etc., R. Co. v. Taylor, 210 U. S. 1061, 52 Law. Ed. 281.

A railroad company doing business as a common carrier engaged in interstate commerce has compiled with the requirements of the safety appliance act when it equips its cars with automatic couplers as prescribed by said act, and it will not be thereafter subject to the conditions imposed for a violation thereof on account of subsequent defects occurring to the couplers which ordinary care and diligence could not have avoided. Under act March 2, 1893, 27 Stat. 631, 16 (U. S. Comp. 1, 1901, 21 3174), amended by act March 2, 1908, 82 Stat. 945 (U. S. Comp. St. 1907, p. 885), where coupler not shown to have been out of repair or defective so as to have been possible to repair any same by exercise of ordinary care and diligence, company not liable for injury caused thereby. Missouri Pac. R. Co. v. Brinkmeler, 77 Kan. 14, 93 P 621.

Alabman: Evidence hold to show wall of quarry from which rock fell part of "ways, works," etc., under Code 1907, $ 3910, subd. l. Alabama Consol. Coal & Iron Co. v. Hammond \[Ala.\] 47 S 248. Violation of statutory duty imposed on mine operators, resulting proximately in injury, is actionable. Sloss-Sheffield Steel & Iron Co. v. Sharp \[Ala.\] 47 S 279. Code 1896, $ 2914, Imposes duty on mine operators to install ventilation system sufficient to dilute, carry off, or render harmless noxious gases in mines, but does not require such system as will carry off explosive gases not otherwise noxious. Heid failure to install ventilation system that will carry out explosives is not negligence per se. Id.

Arkansas: Under Kirby's Dig. SS 5352, 5360, failure to deliver props to mimeer when demanded by him, as required by statute, is negligence per se and gives right of action for injury or death caused thereby, in absence of contributory negligence. Johnson v. Mammoth Vein Coal Co. \[Ark.\] 114 SWY 722. Under construction placed by aqu-preme court of Alabama on Code 1907, $ 3910, making employer liable for injuries to employee caused by any defect in "ways, works, machinery or plant," held that wire attached across railway track so low as to catch an employee standing on passing car is not defect in way or track, there being nothing to show that wire was only there temporarily. Hubbard v. Central of Georgia R. Co. \[Ga.\] 63 SE 19.

Illinois. Mines Act: Laws 1899, c. 93, is valid. The selection of mine owners as class

upon which certain responsibilities is cast

Use of car not equipped with automatic coupler as required by federal safety appliance act is negligence per se. Austin v. Central of Georgia R. Co. v. Hall \[C. A.\] 158 F 931.

upon which certain responsibilities to cast

Use of car not equipped with automatic coupler as required by federal safety appliance act is not repugmented according to statute is not repugmented car,'is entitled to have his case submitted to any. Id. Proof that mine operator employed certified examiner, and that examiner had inspected mine entry and found it in satisfactory condition, not sufficient to exempt operator for failure to spray, sprinkle, or "clean entry where dust in air required it, under the statute. Davis v. Illinois Colleries Co, 232 Ill. 284, 83 NE 836. Willful failure of manager or mine examiner to comply with requirements of mine statute (as to prevent-ing accumulation of dust) is chargeable to "door" even though latter has no actual knowledge of such delinquency. Id. Where shot-fiver was injured on account of defend-ants willful violation of provisions requiring roadways to be sprayed, evidence held suffindent to show violation to be a cause prox-mately contributing in injury. Illinois Colleries Co. v. Davis, 137 Ill. App. 15. Requigment that lower landing at surface of mine shaft shall be "seurely fenced with "automatic or other gates" is satisfied by using nonautomatic swinging gate fastened with a hook. Donk Bros, Coal & Coke Co. v. Sapp, 138 Ill. App. 92. The purpose of the requirement in the act, imposing on master the duty of furnishing props and caps, is to aid the miners who use them, in protecting themselves, and is not a measure for the general safety of other employees, and only those who have a right to demand and use "built motif" to hold in story below does williful violation thereof. Does not apply to shot-fiver. Southern Coal & Mfin. Co. v. Hopp, 183 Ill. App. 239. An ordinance, the purpose of which is to protect workmen in places where machinery is employed from which "ecover under statute. Id. Acts 1905, c. each machinery, where it is so located as to endanger them while in the discharge of ther duties, is intended only to apply to situations where workmen are necessarily in close proximity to such machinery, and does not apply to guarding an opening over a coal crusner in a room where there was no machinery with which workmen could come from contact, except through the necessary opening over the crusner. Chicago City R. Co. v. Martin, 138 Ill. App. 575. Where plaintiff's intestate was killed while coupling a bad order car not equipped with automatic couplers, according to requirements of $5 2 and 9 of the net providing for safety appliances for railroads, and barring defense of contributory negligence where its provisions are not compiled with, a verdict for defendant should have been directed on fall-ure to show that car was used in moving state traffic. Kelley v. Illinois Cent. R. Co., 140 Ill. App. 125.

Indmana Master Hable under Burns' Ann. St. 1901, $ 7083, where sliver flew off chisel and struck employe engared in duites near by. Baltimore, etc., R. Co. v. Walker, 41 Ind. App. 588, 84 NE 730. Burns Ann. St. 1901, $ 7087I, only requires guarding of such pieces of machinery as are dangerous to employee whose duties require their presence near such machines. Robbins v. Fort Wayne Iron & Steel Co., 41 Ind. App. 557, 84 NE 514. To warrant recovery under said statute, it must appear (1) that injured person was employe; (2) that machinery in question was un- and injured employee could recover for such violation. Power Package Co. v. Enzen-d duties of employee required him to work in immediate vicinity thereof; (5) that machine 1901, $ 4129, It is duty of making boss to see could have been guarded without rendering it useless. Id. Assumpst of risk is not the overhead rock le protected from falling on traveling ways below. Barrett v. Dessy \[Kan.\] 97 P 786. Laws 1907, p. 400, e. 256, prohibiting angle to miners of black powder except in original packages of 12% pounds, securely sealed, to be delivered at powder house not more than 300 feet from plt head, is held constitutional. Ex parte Williams \[Kan.\] 98 P 777.

Kentucky Ky. St. 1903, $ 2731, requiring certain ventilation of mines, should be strictly enforced and mining companies held strictly accountable for failure to observe it. Stern Coal Co. v. Ewan' Adm'r, $3 Ky. L. R. 755, 111 SWY 808. Violation by mine owner of Ky. St. 1903, $ 2731, requiring shaffts to be guarded with fences and gates, makes him liable for injuries resulting therefrom; and statute was violated when gate could not be closed owing to accumulations of coal, etc. Moseley's Adm'r v. Black Diamond Coal & Min. Co., $3 Ky. L. R. 110, 109 SV 206.

Massachusetts: Employive may recover for failure to install danger signals on elevater trap doors, as required by Rev. Laws, e. 104.

# 27, unless he assumed risk or was negil- present. Doalvin V. Pocasset Mfg. Co., 200 Mass.

206, 85 NE 1055.

Miehigni LIability for injuries caused by failure to guard machinery depends upon giving of order by inspector requiring guards under Pub. Acts 1901, p. 159, No. 112, $ 8. Kerr v. National Fulton Brass Mfg. Co. \[Alich.\] 15 Det. Leg. N. 985, 118 NWV 925. Notice by Inspector to guard energy wheels included wheels installed after order was given. Id. Failure to obey statutory requirement as to bieaking switch, resulting in injury, would be actionable negligence. Parker v. Union Station Asa'n \[Mich.\] 15 Det. Leg. N. 909, 118 NWV 723.

Minnesota: Failure to comply with provisions of Rev. Laws 1905, $ 1813 (guarding machinery, is negligence when machinery of a dangerous character is so located as to be dangerous, and when it is practicable to guard it. Caliboy v. Atwood, 105 Minn. 80, 117 NWV 238. Master is not excused by fact that machine is manufactured without guard, and that it is customary to operate such machines without guards. Id. Statute is for protection of operators as well as careless and ignorant persons who may come in contact with it. Id. Evidence sufficient to sustain finding of negligence in failing to guard lhd better machine which injured operator. Id. Duty to guard machinery as required by statute is absolute, and violation of it negligence per se, but contributory negligence and assumption of risk may be interposed as defences in proper cases. Davidson v. Flour City Oranmental Iron Works \[Minn.\] 119 NWV 483. Jointer machine within statute; fall- are to guard t negligence. Bligum v. St. Paul Asa, Door & Lumber Co. \[Minn.\] 119

NNV 481. Evidence showed stationary or anatomic guard on jolter machine was feasible. Id. Emery wheels are included within machinery required to be guarded by Rev. Laws 1905, $ 1813. Davidson v. Flour City Oranmental Iron Works \[Minn.\] 119 NWV 482. Failure to have guard on emery wheel, being violation of statute, is negligence per se. Id. Duty to guard emery wheel, under statute, absolute and continuing; not discharged by putting on guard originally, and assign-lag to servant duty of seeing that it was kept there; master liable for injuries due to absence of guard. Id. Proof that boy under 15 was employed in sawmill where dangerous machinery was used, in violation of Rev. Laws 1905, $ 1804, and was injured by machine not guarded, as required by 1813, made prima facte case of negligence. Jacobson v. Merrill & Ring Milli Co. \[Minn.\] 119 NWV 510.

Missouri Rev. St. 1899, $ 6433, requires- betting, shaftting, etc., to be guarded when so-stuated as to be dangerous, if it can be guarded, and if it cannot be guarded requires notice of danger to be posted. Fall-ure to guard machinery, if dangerous, and guarding is possible, constitutes negligence: also failure to post notice of danger when guards are not possible. Huss v. Heydt Bakery Co., 210 Mo. 44, 108 SWV 63. Statute requires belting, shaffts, etc., to be guarded only when so situated as to be dangerous to employees engaged in their ordinary duties. Lang v. Kansas City Boid & Nut Co., 131 Mo. App. 146, 110 SWV 614. Where plaintiff left his own place of work and went to an-other and was there injured by unguarded machinery, he had no cause of action under statute, not being in performance of his ordinary duties; negligence of foreman in sending him there would be common-law negligence. Id. Statute held not applicable where offer-barer was injured by sand-paper smoothing machine. Ozernicke v. Ehrlich, 212 Mo. 386, 111 SWV 14. Held inappli-cable to knives of pinning machine set in rotating cylinder or axile. Cole v. North American Lead Co., 130 Mo. App. 253, 112 SWV 753. There was no
(SS 3) _C. Methods of work, rules and regulations_. See 14 C. L. 178--It is the duty of the master to use ordinary care to see that the work is done in a reasonably safe manner,68 and if he or his representative orders work to be done in a dangerous way,69 or if he has actual or constructive knowledge that a dangerous method was not liable by reason of failure to guard flywheel under statute. King v. Reid, 124 App. Div. 121, 108 NYS 615.

Brick wall in course of construction held not part of "wwys, werks, or means" within statute. Ripp v. Fuchs, 113 NYS 861.

Olio: Duty to protect against projecting set screws, etc., under 97 Ohio Laws, p. 547, is nondelegrable. National Fire Proofing Co. v. Andrews \[C. A.1\] 158 F 294. Where there was no evidence of plaintiffs knowledge of projecting set screw in shaft, proper to refuse charge limiting recovery to $3,000, under 97 Ohio Laws, p. 547, as that statute limits recovery only in case of knowledge. Id. Ohio statute requiring railroad frogs at crossing and in yarfe and stations to be blocked held applicable in favor of switch-man who was knocked down and dragged by engine and got foot caught in unblocked frog. Cogover v. Baltimore & O. R. Co. \[C. A.1\] 159 F 82. Status law, requiring that all locomotures and cars used in moving intrastate traffic shall be equipped with automatic compilers, is not in conflict with federal act making same requirement as to locomotives and cars engaged in moving interstate traffic, but rather state law is supplementary to federal law and in harmony with it. Detroit, T. & L. R. Co. v. State, 11 Ohio C. C. \[N. S.\] 482.

Oregen: Where action is based on Laws 1907, p. 302, c. 158, failure to guard saw, fact that labor commissioner had failed to specify in notice manner in which saw was to be guarded was no defense; it is master's duty, under statute, to guard dangerous saws whether notified to do so or not. Hill v. Sauggated \[Or.\] 98 F 524. In action based on violation of Laws 1907, p. 302, c. 158, failure to guard saw, allegation that labor commissioner had served notice requiring saw to be guarded was sufficient allegation of pracc-tability of guarding it after answer. Id. \[G.\] 16 C. L. 178--It is the duty of the master to use ordinary care to see that the work is done in a reasonably safe manner,68 and if he or his representative orders work to be done in a dangerous way,69 or if he has actual or constructive knowledge that a dangerous method was not liable by reason of failure to guard flywheel under statute. King v. Reid, 124 App. Div. 121, 108 NYS 615.

Brick wall in course of construction held not part of "wys, werks, or means" within statute. Ripp v. Fuchs, 113 NYS 861.

Olio: Duty to protect against projecting set screws, etc., under 97 Ohio Laws, p. 547, is nondelegrable. National Fire Proofing Co. v. Andrews \[C. A.1\] 158 F 294. Where there was no evidence of plaintiffs knowledge of projecting set screw in shaft, proper to refuse charge limiting recovery to $3,000, under 97 Ohio Laws, p. 547, as that statute limits recovery only in case of knowledge. Id. Ohio statute requiring railroad frogs at crossing and in yarfe and stations to be blocked held applicable in favor of switch-man who was knocked down and dragged by engine and got foot caught in unblocked frog. Cogover v. Baltimore & O. R. Co. \[C. A.1\] 159 F 82. Status law, requiring that all locomotures and cars used in moving intrastate traffic shall be equipped with automatic compilers, is not in conflict with federal act making same requirement as to locomotives and cars engaged in moving interstate traffic, but rather state law is supplementary to federal law and in harmony with it. Detroit, T. & L. R. Co. v. State, 11 Ohio C. C. \[N. S.\] 482.

Oregen: Where action is based on Laws 1907, p. 302, c. 158, failure to guard saw, for that labor commissioner had failed to specify in notice manner in which saw was to be guarded was no defense; it is master's duty, under statute, to guard dangerous saws whether notified to do so or not. Hill v. Sauggated \[Or.\] 98 F 524. In action based on violation of Laws 1907, p. 302, c. 158, failure to guard saw, allegation that labor commissioner had served notice requiring saw to be guarded was sufficient allegation of pracc-tability of guarding it after answer. Id. \[G.\] 16 C. L. 178--It is the duty of the master to use ordinary care to see that the work is done in negli-safety of employees and leesses being used,"1 he will be liable for injuries resulting thereform, but he will not be liable where employees themselves depart from the customary manner of doing work."68 Whether a method adopted or provided is reasonably safe depends upon the nature of the work and the danger to be apprehended,"69 and the question is usually one for the

egin{tabular}{l|l}
\*\* erected block and tackle without using appli-\*\* & collision of cars was caused by fellow-servances at hand ordinarly employed for that \\ & purpose. Kennedy v. Swift & Co., 140 Ill. \\ App. 141. Master would be liable if super-\*\* & national Paper Co. **N. H.** **J1** **A **A** **S1** \\ & intendent directing moving of beam caused \\ & an unsafe method to be used, resulting in \\ & & \*\* engineer** **.** **Failing to provide for escape or gases \\ & injury. Connolly v. Booth, 198 Mass. 577, 84 \\ & NE 799. Defendant's foreman was negligent \\ & v. Sargent Co., 235 Ill. 509, 85 NE 621. Method \\ & in allowing 15-year old operator of mnchine \\ & or number of men used to host heavy cast- \\ & to run it in dangerous way and in inciting \\ & hfm to run it at high and dangerous speed. \\ & & **if**. Bowtie v. Coffin Valve Co., 200 Mass. 571, \\ & Saller v. Friedman Bros. Shoe Co., 130 Mo. 86 NE 914. Negligence of superintendent \\ & App. 712, 109 SWV 74. General foreman who \\ & countermanded order of another foreman \\ & for other appliances with which to load reel \\ & plaintiff. Brosnan v. New York, etc., R. Co., \\ & of wire enbe, and directed men to proceed \\ & 200 Mass. 221, 85 NE 1050. Foreman \\ & with appliances on hand, represented master \\ & charge of blasting held negligent as to blast \\ & in so doing, though men usually selected \\ & which killed employ. Knight v. Donnelly, \\ & their own methods. Kennedy v. Lancele Gas-** & 131 Mo. App. 152, 110 SWV 687. Finding that \\ & method used to lower machine was not reeligence warranted where foreman assured \\ & operator of wood-shaping machine there was \\ & operation precautions could have been and were \\ & no danger from reviewing knives with which \\ & commonly taken to make it more safe, \\ & he came In contact. Schmitt v. Hamilton \\ & though plaintiff did not prove general custom \\ & Mfg. Co., 135 Wis. 117, 115 NWV 358. To \\ & struct inexperienced man \\ & vaxlee Bridge Co., 136 WIs. 39, 116 NWV 854. \\ & stamping press in dangerous way, there \\ & Defendant table where 10 cars loaded with \\ & ing a safe way, would be negligence per se \\ & unless danger ought to have been known to \\ & way with no locomotive and only four brake- \\ & operator. Clemens v. Gem Fibre Package \\ & men, derarlment resulting. Barrow v. Lewis \\ & Co. \[Mich.\] 15 Det. Leg. N. 574, 117 NWV 187. \\ & Lumber Co., 14 Idaho, 698, 95 P 682. Where \\ & 67. Defendant responsible for manner of \\ & & \*\* flying switch\*\* was being made contrary to \\ & construction of staging in its factory when \\ & it was built in customary way and had reel \\ & and cars struck car repair crossing \\ & & tracks, no warning or signals being given \\ & mailed for such time that defendant had \\ & notice of it. Valsbord v. Nashua Mfg. Co., 74 \\ & cars. Galveston, etc., R. Co. v. Conteusson \\ & N. H. 470, 69 A 520. Where practice of "stak- \\ & \[Tex. Civ. App.\] 111 SWV 187. If Injury to \\ & ing" cars across a crossing without warning \\ & or watchmen had continued for long time, \\ & & **ing** and from use of unusual and unnecessary \\ & so that company had acquelseed or was \\ & dered with notice of it and thus sanctioned \\ & & **force** in moving cars, company would be liable or not employees knew or ought \\ & the practice, it could not defend against \\ & tion for injuries thus caused by setting up \\ & acts of fellow-servants. Chicago, etc., R. \\ & & \*\*(Tex. Civ. App.\] 107 SWV 906. Where excu- \\ & & **then** of verbal orders as given is a matter \\ & dence held to warrant finding that defendant's \\ & ant's superintendent was present, observed \\ & taken against the orders being forgotten or \\ & improper method used in hosting coal, and \\ & failed to change it or warn men of danger. \\ & St. R. Co., 200 Mass. 105, 85 NE 911. Thus, \\ & Barley v. Boston & N. St.

19 Cur. Law. MASTER AND SERVANT SS 3C. 713

Jury." The master may be guilty of negligence in adopting a mode of work not reasonably safe, although it is in accordance with custom." The mere fact that a less dangerous method might have been used does not alone show negligence." Failure to provide a sufficient number of men to do the required work with reasonable safety is negligence."

It is the duty of the master to provide and enforce suitable rules and regulations governing the conduct of employees and the carrying on of the work where the nature of the business is such as to require such precautions." A reasonably safe method

in basement and must have known about since such means may have been negligent shaft. McKenna V. Gould Wirre Cord Co., 197

means. Volkman v. McMullen, 138 Ill. App. Mass. 406, 85 NE 111S. Master not liable for injuries to plaintiff while unloading ralla

7a. Method employed by wrecking boss to where no negligence of master was shown

replace car on track held proper and reason- but it appeared that an error of judgment

able, though a safer method might possibly of the forearm or his men caused the accl-

have been used. Wyman v. Lehigh Valley R.

den, which could not reasonably have been

Co. C. C. A.J. 158 F 957. Master will not be

foreseen. Wilson v. Southern R. Co., 108 Va.

held negligent in using particular mode of

$22, 62 SE 972. Duty to provide for warning

work merely because some belleved another

to factory employees of movement of erasure

method less dangerous. Wilson v. South-

performed, though no specific rules were pro-

mugated, where it was generally under-

business could have been carried on in less

tood, and especially by operator of crane,

that sharp lookout was to be kept and warn-

has been properly instructed. Mitchell v. ing riven. Perry v. American Station Gas

Commence Cotton Oil Co. \[Tex. Civ. App.\] 113

Producer Co. \[Mich.\] 15 Detroit. Leg. X45, 116

SWV 118.

NWV 1073. Evidence held to show ear of logs

73. Master may be liable for failure to sup-

was properly loaded by defendant and that

ply sufficient number of men to do work with

it was not liable for death of employee caused

safety, DI Earl v. J. W. Bishop Co., 199 Mass.

by log rolling off car. Stephens v. Louisiana

254, 85 NE 89. Master must provide compe-

Long Leaf Lumber Co. \[La.\] 47 S 887. Forecent servants in sunflent number to do the

man of section crew not negligent in order-

work. Pennsylvania R. Co. v. Harfield \[C. C. C.

ing bolt to be broken in course of taking up

dld track, this being customary. St. Louis,etc.

sufficient number of men to perform work

R. Co. V. Jamston \[Ark.\] 113 SW 41.

70. Whether foreman was negligent in

and employed by him to lead heavy reel

endlegrade duties of master is to furnish

ef cable on wagon. Kennedy Y. Liede Gas-

light Co. \[Mo.\] 115 SW 407. Whether igno-

to do the work. Brown v. Rome Mach. &

rant employe was allowed to chaw out dyna-

runte in dangerous way, by reason of defend-

ordered by foreman to carry heavy jack

ant's negligence. Trotto v. Bellew & Merritt

which caused him to fall and injured him,

Co., 111 NYS 583. Whether due care in

could recover, where superintendent had giv-

method of loading ralla on car required man

on orders that jacks should not be carried by

on car to see that they did not fall back after

ter being placed on car. Vincenzo v. Dele-

relied on foreman's orders. Louisville & N.

ware & Hudson Co., 110 NYS 589. Cars of

R. Co. v. Mahan \[Ky.\] 118 SW 586. Master

construction ralla became uncoupled, owing

liable for injuries caused by inadequate force

to speed, and plaintiff was thrown off car by

of men to do work with reasonable safety,

sudden shock. Gibler v. Qulincy, etc., R. Co.,

if he knew or ought to have known force

129 Mo. App. 98, 107 SWV 1021. Whether belt,

as insuffent, and plaintiff did not know

in adjusting which plaintiff was injured, was

it and was in exercise of due care. Stand-

too short, and whether it was negligence to

attempt to adjust it while machines were in

972, 112 SW 872.

motion. Maxu v. Case Threshing Mach. Co.

74. Master's duty to protect servant from

\[Neb.\] 116 NWV 281. Whether rolling bar-

nunsual dangers by suitable rules and regu-

rels of caustic soda up incline was proper

lations for work. Cristaniello V. Bainz Min.

method of raising them so as to prevent spill-

Co. \[Mich.\] 15 Det. Leg. X. 784, 117 NW 910.

ling of contents, plaintiff being struck by

If nature of master's work is complex and

same and injured. Bascher v. Southwark Mills

involves the presence and co-operation of

Co.

adopted and customarily followed by the employees is equivalent to the establishment of reasonable rules by the employer." Where a servant is employed to perform a known duty, or one of which he is informed, the master need not by rule or otherwise inform him that he is expected to do it," nor is it necessary to promulgate rules that employes are not to injure others unnecessarily." Negligence in failing to provide rules in a given instance is not shown unless some reasonable and practical rule is pointed out," which if in force, would have prevented injury." The construction of rules is sometimes for the court " and sometimes for the jury." When a rule is relied on by an employer to exempt him from liability, it is to be strictly construed." Abrogation of a rule may be shown by proof of its habitual violation with knowledge of the employer," and knowledge will be presumed if the violation is shown to have continued for such length of time that he might reasonably have known of it." Rules of the master defining the duties of employees and providing for the

NYS 684. It is master's duty, especially for protection of minors employed about danger- --gine running backwards in yards, error to --ous and complicated machinery, to make, submit case to jury on theory that some publish and enforce rules sufficiently clear --rule might or should have been provided for and specific to be capable of being intelligibility--notce or warning, no such rule being pointed gently understood and obeyed. Fitzgerald v. International Flax Twine Co., 104 Minn.

V. New York Cent. & H. R. Co., 113 NYS 185.

Count alleging negligence in falling to pro- --rundigate rules for government of employees of --rundigate" Where several hundred men were employed in railroad yards in switching, the jury was warranted in finding that rules --for doing work were required. Nelson v.

Nelson v. Southern R. Co. \[C. C. A.\] 168 F 92.

Mlarer preparing entry to cross drift in --mine, injured by fall of one caused by blast-- --adm?", 108 Va. 246, 61 SE 779.

ing by others without warnings, no rules or regulations having been provided for such --warning. Jacobson v. Hobart Iron Co., 103

V. Hobart Iron Co., 103

Minn. 819, 114 NW 951. Where electric lines--man was killed by current turned on without --notice while he was at work on wire, jury were warranted in finding that --defandant --should have made and enforced a rule that --power should not be turned on until after --notice that repair man had completed work.

Van Alstine v. Standard L., H. & P. Co., 112

NYS 416. Work of trucking and loading bridge iron by several gans held sufficiently complex to warrant finding that rules of work ought to be provided. McDuffle v.

Ocean S. S. Co. \[Ga. App.\]. 62 SE 1008.

Rules sufficient. Necessity for further rules or to giving notice to employes of --movement of --crane not shown --where platform's foot was run over by --crane, defendant --having signalman to give signals of its movement. Palmieri v. Pearson, 112 NYS 684.

75. Farmalai v. International Paper Co.

\[N. H.\] 71 A 81. No duty to provide specific rules for doing work not inherently dangerous--when employees adopt and use a reasonably safe method. Id. Custom used to move cars down --afterack held reasonably safe--: no duty of employer to promulgate other specific rules for work. Id.

76. Where employee was poisoned by fumes, absence of servant whose duty it was to regulate discharge of fumes, and want of rules requiring him to be at his post, did not make master --lable. Gorman v. Odell Mfg.

C. \[N. H.\] 71 A 215.

77. Rules amounting in substance only to direction to employees not to injure others unnecessarily need not be made. Van Alstine v. Standard L., H. & P. Co., 112 NYS 416.

01. Where track walker was killed by en- --protection of minors employed about danger--gine running backwards in yards, error to --push and enforce rules sufficiently clear --rule might or should have been provided for --not to be capable of being intelligibility--not to or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or whether or or whether or whether or whether or or whether or whether or or whether or whether or or whether or whether or or whether or or whether or or whether or or whether or or whether or or whether or or whether or or whether or or whether or or whether or or whether or or whether or or whether or or whether or or whether or or whether or or whether or or whether or or whether or or or whether or or whether or or or whether or or whether or or or whether or or or whether or or or whether or or or whether or or or whether or or or whether or or or whether or or or whether or or or whether or or or whether or or or whether or or or whether or or or whether or or or whether or or or or whether or or or whether or or or or whether or or or or whether or or or or whether or or or or whether or or or or whether or or or or whether or or or or whether or or or or whether or or or or whether or or or or whether or or or or whether or or or or or whether or or or or whether or or or or or whether or or or or or whether or or or or or whether or or or or or whether or or or or or whether or or or or or whether or or or or or whether or or or or or whether or or or or or whether or or or or or or whether or or or or or or whether or or or or or or whether or or or or or or whether or or or or or or whether or or proper and orderly conduct of the business do not fix his duties to other employees or to strangers.\[88\]

(SS 3) \_D. Warning and instructing servant.\_See 10 C. L. 181.-It is the duty of the master to properly warn and instruct young and inexperienced employees 86 in regard to dangers of their employment of which they have no knowledge or appreciation,\[87\]

85. Rules requiring agents and conductors to see that switches are blocked imposes no duty on company as to switchmen. Dixon v. Grand Trunk v. R. Co. \[Xich.\] 15 Det. Leg. N. 963, 118 NV 946.

01. Failure to properly instruct inexperienced, immature child as to dangers inclined, to dangers inclined, to her work and in going to and from it, proximately resulting in injuries to her, would give cause of action to her and her parent, regardless of whether latter con-ented to her employment. Leaves v. Annis-ton Knitting Millis \[Alia.\] 45 S702. Petition alleging injuries caused by employment of inexperienced youth on dangers machine without instruction stated cause of action. Falls City Voolen Millis v. Pikea, 83 Ky. L. R. 67, 109 SV 285. Evidence sufficient to show negligence where plaintiff, inexperienced youth, employed to work on log carriage, was ordered by superior to adjust belt with, out instructions, as result of which he was injured. Chesson v. Walker, 146 N. C. 511, 60 SE 422. Boy of 16 without experience set to work on boiler tubes with burrard prosser pins, without warning or instructions, and chip from pin fire into his eye. Pelow v. Oil Well Supply Co. \[N. Y.\] 86 NE 812. Petition not demurable which alleged that boy of 16 was put to work at dangerous machine without warning or instruction, and that he was injured immediately on beginning to operate it, before he could have become aware of danger. Hobbs v. Small \[Ga. App.\] 62 SE 91. Where evidence showed that boy of 17, without experience, was put to work, without warning or instruction, operating dangerous band saw in mill, finding of neg-ligence was warranted, and verdict justified (no claim of contributory negligence being made) though evidence did not show just how plaintiff came in contact with saw. Von Postel v. Lake Sammamshi Single Co. \[Wash.\] 98 P 665. Girl 14 or 15 years old entitled to instructions as to danger of working too close to revolving shart. Civett v. Am-erican Hatters & Furriers' Corp., 124 App. Div. 345, 108 NYES 68. Danger from shifting belt, which was part of duty of boy of 15, was not an incidental risk, but it was defend-ant's duty to properly warn and instruct him as to how it should be done, if he was inexperienced and defendant knew or ought to have known it. Lehto v. Atlantic Min. Co., 152 Mich. 412, 15 Det. Leg. N. 242, 116 NVV 405. Recovery allowed for injury to boy of 12, put to work without warning or instruction, and injured while attempting to clean moving replier. Driscoll v. Rolfe \[N. H.\] 71 A 379. Inexperienced boy injured in kinves of planner when attempting to oil it as directed, no warning or instructions having been given, could recover without showing gross negli-gence of his superior. Owensboro Stave & Barrel Co. V. Daugherty, S3 Ky. L. R. 328, 110 SWV 319. Failure to warn and instruct boy of 14, directed to work opposite operator of trip hammer, negligence, boy being injured by fall of hammer. Avery v. Cottrill's the master having actual or implied knowledge of the employee's youth or inexperience and lack of knowledge.\[88\] It is also the duty of the master to warn and instruct the servant as to hidden or latent dangers known, or which ought to be known, to the master and unknown to the servant,\[89\] and as to sudden,\[90\] special, or unusual risks arising during the course of the work,\[91\] or caused by changes brought about by

125, 115 NUV 999. Where workmen in factory -- dence as to negligence in this respect for bounded on Iron and steel wheels, and splitters or spaws of steel frequently fleew from hammers or steel with sufficient force to injure person struck by them, it was master's duty to warn and instruct immature and in-experienced employee in factory of danger. Kerker v. Bettendorf Metal Wheel Co. \[Iowa\] 118 NUV 806. When hazard attending usual exercise of any work required of an inexperienced employee is not apparent, it is incumbent on master to inform him of dangers incident thereto, and if failure so to do results in injury to employ, master is liable. EIIIf v. Oregon R. & Nav. Co. \[Or.\] 99 P 76. If servant was expected to use wood shaping machine, he was entitled to instructions, if required by nature of machine and his inexperience, though he was not specifically directed to use it. Marklewitz v. Olds Motor VWorks, 152 Mich. 113, 15 Det. Neg. N. 125, 115 NUV 989. As. No. 125, 115 serveru is duty to warn unless master knows servant is inexperienced, either actually or by inference. Stolars v. Algonquin Co. \[N. J. Law\] 71 A 57. Duty to warn exists only where master is chargeable with knowledge of servant's ignorance of danger. Harney v. Chicago, etc., R. Co. \[Iowa\] 115 NUV 886. Interactional Fixe Cvo., 104 Minn. 138, Master must have known or have been charged with knowledge of lack of knowl-edge or inexperience of employee and danger-out by nature. Randles v. J. Thompson & Sons Mfg. Co. \[Twi.\] 118 NUV 350. Duty to warn and instruct extends only to work servant is employed to do, and only to such dangers as master knows or has reason to believe servant ignorant of. Stodden v. Anderson & Winter Mfg. Co. \[Iowa\] 116 NUV 889. Where defendant had for a long time permitted dangerous custom of throwing instruct employees arises when the existence of danger is or should be in the exercise of who was injured by being struck with bale. Chicago, etc., R. Co. \[Twi.\] 115 NUV 8. Duty of master to warn servant of extraneous.

There repair train was sent out, during latent or unusual danger unknown to servant. German-American Lumber Co. v. Brock \[Fla.\] 46 S 740. Master bound to warn of hidden dangers known to him but not observable by servant. Crown Cork & Seal Co. v. O'Leary \[Mdl.\] 69 A 1068. Duty of forensim, 115 NUV 993. Eviman to warn employee of defective condition of chisel not known to employee but which forman ought to have known. Baltimore, etc., R. Co. v. Wakter, 41 Ind. App. 588, 84 NE 730. Master's duty to notify servant of riske or defects of which he does not know. German-American Lumber Co. v. Brock \[Fla.\] 46 S 740. Evidence warranted finding of negligence in failing to warn operator of jointer of defective condition and liability to "Kick." Bigum v. St. Paul Sash, Door & Lambert Co. \[Minn.\] 119 NUV 481. Where servant was set to work removing copper bars from table on which they were dropped by conveyor, that they dropped at irregular intervals constituted latent danger, as to which he should have been warned. Evi- the master,"2 or incidental to work which the employe is ordered or sent to perform,"\* especially where the services required are outside the scope of the usual duties of the employee "4 where knowledge of the danger is chargeable to the master but not to the employe."4 Instructions are required if work can be done with reasonable safety in a certain way but servant uninstructed is likely to do it in an unsafe way."4

superintendent directed plaintiff to saw

was master bound to employ watchman to through certain timbers in bridge, as part

look out for euch danger and warn. Ritzema of work of moving portion of it, superintendent knowing of defect and manifest

v. Valley City Brick Co., 152 Mich. 75, 15

danger and failure to warn plaintiff. Connolly

superintendent to warn miners sent into new

v. HAll & Grant Constu Co., 192 N. Y. 182, 84 NE

807. Negligence could be found where tell

hasured them "air" was all right without

tales were allowed to become out of repair so

having tested it or provided for ventilation,

that brakemen on cars would not be warned

by them of nearness of low bridge. Harrison

Mo. App. 412, 110 SWV 85. Duty of mlnne bees

charged with inspection to warn employees

Where masses of salt were occasionally dislodged in course of defendant's business, and

theo work at dangerous place. Norton

pieces were thrown over the floor so as to

Coal Co. v. Hanks' Adm'r, 108 Va. 521, 62 SE

endanger safety of employees there engaged,

master owed them duty to warn when such

dislodegement was to take place. Brice-Nash

never who sent him to work in dangerous

v. Barton Salt Co. \[Kan.\] 89 PS 768.

92. Master who makes place of work more

dangerous without notice to employ is neg-

ligent. Plaintiff, engaged in repairing pipe,

was injured by reason of hot water being

turned on without notice. Ferringer by

chinery in attempting which without In-

Crowley Oil & Mineral Co. \[La.\] 47 S 763.

Struction plaintiff was injured. Wankowski

Whenever a material change in the intrinsic

condition or relative arrangement of instru-

metalities is made by the master, of such

a nature that a servant, ignorant of the

charge and relying on a continuation of the

Grublo v. Western Tube Co., 139 Ill. App. 470.

existing condition, is likely to be exposed to

danger, it is duty of master to inform serv-

ant of such change, unless the latter ought

to discover it in the exercise of ordinary

care. Sebaopard Air Line R. Co. v. Witt \[Ga.

App.J 60 SE 1012. Recovery for death of

section hand warranted where brakes of

hand car had been changed, so that, when he

applied brakes, car suddenly stopped and

thew him off, previous condition of car

b brakes being such that it would have stop-

ped gradually. Id.

93. Error to direct verdict on opening

statement where that and declaration tended

to show servant was ordered into place of

danger without warning, and was killed by

reason thereof. Bart v. Detroit from & Steel

Co. \[Micb.\] 15 Det. Leg. N. 912, 118 NW78.

Finding of negligence warranted where

workman was ordered into unsafe trend

without warning of danger. McCoy v. Northern Heating & Elec. Co., 104 Minn. 234,

116 NWV 488. Where defendant had notice

that wiring was uninsulated and that employees had been receiving electric shocks,

co., 19 S. C. 502, 60 SE 110. It is master'e

if was his duty to warn engineer as to dan-

dury not to send servant into place of danger

ger before putting him to work in engine

room where danger existed. Aga v. Harbach

\[Iowa\] 117 NWV 669. Employee smothered in

coal bin where he was put to work without

warning or instructions. Balder v. Zenith

Furnace Co., 108 Minn. 345, 114 NWV 948.

Plaintiff, while passing from one point to an

Train car driver in mlnne sent to aid in pre-

other within rolling mlf of which he was

paring opening set of timbers to start side

drift: work dangerous, and no instructions

opening caused by removal during preceding

given; roof and timbers fell. Kostrekva v.

day of planke over belt-pit, and of which

Hobart Iron Co., 103 Minn. 337, 114 NWV 949.

No duty to warn and instruct employees

gling in clay bank against obvious danger of

American Rolling Mill Corp. v. Knox, 140

chunks of clay rolling down from above, nor

In No instruction is required as to incidental risks assumed by the contract of employment,97 nor as to obvious dangers,\*\* fully known to the employ,99 or as well known to him as to his employer,1 or which ought to have been known to him by reason of his experience and capacity,\*\* or by the exercise of ordinary care,8 that is,

96. Disalets v. International Paper Co., 74 \[form to track. Haring v. Great Northern R. N. H. 440, 69 A 263. \[form to track. Haring v. Great Northern R. N. H. 440, 69 A 263. \[form to track. Haring v. Great Northern R. N. H. 440, 69 A 263. \[form to track. Haring v. Great Northern R. N. H. 440, 69 A 263. \[97. No duty to warn as to patent dangers, these being assumed risks. Cleveland, etc., R. Co., Verkins \[Ind.\] 85 NE 405. \[98. Hardy v. Chicago, etc., R. Co. \[Iowa\] 115 NW 8; Mitchell v. Comanche Cotton Oil Co. \[Tex. Cliv App.\] 113 SW 158. No instruction or warning required as to danger from revolving cylinders with teeth perfectly ob-vious, even if inexperienced employee. Stolars v. Algonquin Co. N. J. Lawl 71 A 57. No duty to warn operator of planer not to place hand \[not opening of planer plate, where knives were. Vigo Cooperage Co. V., Ken-nedy \[Ind. App.\] 85 NE 886. No warning re-quired that hands or clothing of employee \[or such as are discoverable by the exercise of that reasonable care which persons of ordinary intelligence may be expected to take for their own safety.4 Usually the master may assume that an adult employe is competent and capable of appreciating the dangers ordinarily incident to his work,5 but if he knows or has reason to believe that such an employee is ignorant, the duty to warn and instruct 5 exists. It is not negligence to fail to give warning of a danger not reasonably to be apprehended.7 Where servant is injured while working outside the scope of his employment, voluntarily and without orders, master is not chargeable with negligence in failing to warn him of danger.8 Whether warnings or instructions were or should have been given in a particular instance,9 and whether warnings or instructions given were sufficient,10 are

own duty to look out for them. Brady v. \[terprise Mfg. Co., 130 Ga. 148, 60 SE 449. New York Cent. etc., R. Co., 111 NYS 507. 4. No duty to instruct employe 22 years old, with year's experience, of danger of putting powder into hole within few minutes of exploding several sticks of dynamite was not liable for failure of dose, liability of explosion of powder by sparks in the hole being obvious. Hardy v. \[terprise Mfg. Co., 130 Ga. 148, 60 SE 449. New York Cent. etc., R. Co., 111 NYS 507. 4. No duty to instruct employe 22 years old, with year's experience, of danger of putting powder into hole within few minutes of exploding several sticks of dynamite was not liable for failure of dose, liability of explosion of powder by sparks in the hole being obvious. Hardy v. \[terprise Mfg. Co., 130 Ga. 148, 60 SE 449. New York Cent. etc., R. Co., 111 NYS 507. 4. No duty to warn as to dangers un-known to servant or such that he would not be reasonably expected to know. Stolars v. \[th\]. \[th\].

usually questions of fact to be solved by reference to the character of the risk or danger in issue, and the age, capacity, and experience of the employ concerned.11 The master may assume that instructions given will be followed.12 The duty to properly warn and instruct cannot be delegated.13

Footnote 12: The number of instructions per request is 1 proximately from the incompetency of a fellow-servant,\[16\] if he had actual or implied knowledge of such competency \[17\] and it was unknown to the servant injured.\[18\] Notice to a vice-principal is, of course, notice to the master.\[19\] The time of a servant's employment means the time when he is assigned to the particular employment in question.\[20\] The employer is bound to institute affirmative inquiries as to the qualifications of a servant whom he transfers to a more responsible position for which special qualifications are required, unless the employe has given proof of his capacity in a similar position.\[21\] What constitutes incompetency in an employe varies with and depends upon the nature of the duties he is called upon to perform and the relations he must sustain to the other employes.\[22\] Proof of mere negligence is not usually

$$egin{array}{ll}\\mbox{ t enede Dampskibelskab \[N, J. Err. & App.\]}&\\mbox{ t mon laborers were put to work running en-? 0 A 155. Under direct provisions of Code, $ t gine and hobisting apparatus to unload coal $ t$ proof of incompetency,\[28\] though the conduct of an employe on one occasion may show that he was incompetent.\[24\] Habitual negligence, however, is held to constitute incompetency.\[25\] The retention of an incompetent servant does not render the master lable for an act which is not negligent.\[24\] The master is not liable for the act of an incompetent careless fellow-servant if the act is not within the scope of his employment or performed in the course of his duties.\[27\] Whether a particular servant was in fact incompetent,\[28\] whether the master was chargeable with knowledge of his incompetency,\[29\] whether due care was used in selecting or retaining him,\[30\] and whether the injury was proximately caused by such servant's incompetency,\[31\] are usually

23. Proof of negligence of the servant is |orant of his incompetency, held for jury. not proof of his incompetency. Tucker v. Missouri & K. Tel. Co., 132 Mo. App., 418, 112 SSV 6. Jury warranted in finding negligence in employing incompetent servant where he sent man who could not understand or speak English to assist in operating machine, where two men would have to co-operate and communicate with each other. Id. Braskeman who failed to start back to signal following train soon enough to stop It held merely negligent, not incompetent. Louisville & N. R. Co. v. Keiffer \[Xy.\] 113 SSV 433.

01. Conduct of an employee on one occasion may sufficiently show his incompetency, but employer would be responsible only for consequences following thereafter. Smith v. Chicago, etc., R. Co., 234 Ill. 869, 86 NE 150.

01. Habitual negligence constitutes ln-competency. Tucker v. Missouri & K. Tel. Co., 132 Mo. App., 418, 112 SSV 6.

01. Keeping and retaining an incompetent engineer to run mine cage held not to warrant recovery for injury due to sudden stopping of cage, where jury found that his act in so doing was not negligent. Zeller, McClelland & Co. v. Wright, 41 Ind. App. 403, 83 NE 1030.

01. Master not liable where minor employee turned air hose on fellow-servant as a penalty, causing his death, though master knew that he had been playing such pranks. Ballard's Adm'v. Louisville & N. R. Co., 33 Ky. L. R. 301, 423, 110 SW 296.

01. Evidence insufficient to show incompetency of boy of 15 employed to look after "chock blocks" at "knuckle". used to let cars down into mine. Wilkinson v. Kananwaha & flocking Coal & Coke Co. \[Vw.\] 61 SE 875. Evidence insufficient to show that operator of crane, who ran it over plaintiff, forgetting he was in the way, was incompetent. Ferry v. American suction Gas Producer Co. \[Mich.\] 15 Det. Leg. N. 458, 116 NWF 1073.

Evidence held to sustain finding of incompetency of helper furnished plaintiff, operator of power drill, and that such incompetency was known to master. Kansas City Consol. Smelling & Refining Co. v. Taylor \[Tex. Clv. App.\] 107 SSV 889. Where conductor of freight train disregarded special order for movement of trains, and observed general rules, and collision resulted, held, evidence sufficient to show his incompetency in that he did not have adequate knowledge of meaning of rules and orders. Still v. San Francisco, etc., R. Co. \[Ca1\] 98 P 672. Whether telegraph operator was incompetent, and whether engineer was leg * 12 Cur. Law. MASTER AND SERVANT SS 3E. 733

questions of fact. Statutes in some states fix the duty of the employer with respect to the employment of servants for the performance of certain acts.\[32\]

_Negligence of fellow-servants._ See 10 C. L. 187.--A master who has used due care in the selection and retention of employees is not, at common law,\[33\]

liable to servants for injuries resulting from the mere negligence of fellow-servants,\[34\]

such negligence being on assumed risk.\[35\]

But if negligence of the master, or of a vice-principal, concurs with negligence of a fellow-servant in producing the injury and if the injury would not have resulted had the master or vice-principal exercised due care, the

proximate cause of injury. Beers v. Isaac required by rules. Kelly v. Delaware, etc., Prouty & Co., 200 Mass. 19, 85 NE 864. Evi-

R. C., 192 N. Y. 203, 84 NE 801. Plaintiff

dence held not to sustain claim that col-

fell into vat because of slippery condition

lision was caused by engineer having epil-

of floor, or because of jolt by fellow-servant

leptin fit, negligence charged being that en-

or both causes combined. Master not liable,

gineer was employed with knowledge that

both being due to acts of fellow-servants.

hc had such fits. Schoonmaker v. Erier R McTlernan v. American Woolen Co., 197

C., 118 NYS 1048.

Mass. 228, 83 NE 6's. In action by street

32. See, also, SS 3B, Statutes, and cases in

climatology under Mines and Minera Act. Pub.

struction in street striking him, held (in

Acts 1905, p. 143, No. 100, SS 3, provides that

only competent and trustworthy engineers

eler) that motorman, being a fellow-servant,

shall be permitted to run cages and halting

owed conductor less degree of care than he

devices in conl mines, and SS 36 makes will-

owed other travelers. No discussion

ful violation of statute, after notice by state

whether conductor was servant or passen-

inspector, misdemeanor. Held statute im-

gere, under statute. Hinckley v. Danbury

poses duty of employing competent and

from authority engineer, regardless of action

ing struck by plank removed from con-

of mine inspector. Layzell v. Sommers Coal

Cote form held due to negligence of rel-

Co. \[Mich.\] 15 Det. Leg. N. 404, 117 NW 179.

low-servants and not to negligence of mas-

Statute applicable where plaintiff was en-

ter in construction of forms. Wilson v.

gaged on Sunday in removing coal at bot-

Brown \[Pa.\] 71 A 540. Servant who fell

tom of shaft so that cage could be properly

into coal hole, uncovered by fellow-servants,

operated, and was injured by the cage

could not recover. Harris v. Det Farenede

while so doing. Cageling v. Saglilaw Coal

Dampskibeskab \[N. J. Err. & App.\] 70 A

Co. \[Mich.\] 16 Det. Leg. N. 407, 117 NW 182.

15. Stevedes not liable for injury to em

In action for such injuries, plaintiff was en-

pipe engaged in loading vessel when they

titled to instruction that statute required

had furnished candles to be used by the

employment of engineer, and that one

men and place was lighted by fellow-serv-

not an engineer was not authorized to

on an engineer was not authorized to

operate the cage. Id. Evidence suffic-

man could not recover for negligence of

client to take case to jury where it

engineer without proving he was incompempe-

appeared operator had been told of plaintiff's position but forgot and ran cage upon

tant and was negligently employed or re-

him. Id. Defendant liable if superinten-

demt knew or ought to have known or en-

gineer's incompetency. Id. Court should

have instructed that plaintiff could not re-

cover unless free from contributory neglig-

gence. Id. Also that defendant would be

liable only if engineer's act was negligent,

85 NE 1044: Rhoubsky v. New Jersey

and in case he was operating car by per-

mission of defendant. Id.

70 A. I70; Gadsden v. Catawba Power Co.

\*\*33. For statutory modification of common-

law rule, see post, this section.

sevarants in Diling coffee sacks assumed

**34. McDonald v. California Timber Co.,**

risk. Bradley v. Forbes Tea & Coffee Co.,

7 Cal. App. 375, 94 F 276: Singleton v. Mer-

chants' & Minera's Transp. Co. \[Ga. App.\] 61

by (linder falling on him from car through

SE 881; Indianapolis Trac. & T. Co. v. Kinney

negligence of workman held to have as-

ney \[Ind.\] 38 NE 8954; Strottman v. St.

sumed risk of fellow-servant's negligence.

Louis, etc. R. Co \*
\*
724 Margaret AND SERVANT SS 3B. 12 Cur. Law.

master is liable.\[40\] The rule exempting the master from liability for injuries caused by the act of a fellow-servant does not apply when the injured servant was not at the time of injury engaged in the performance or discharge of his duty under his employment.\[87\]

Negligence of vice-principals (common-law and statutory).--For the negligence or wrongful act of a vice-principal or representative \[88\] or other employee for whose act or negligence the master is made responsible by statute \[39\] resulting in injuries to another employe, the master is liable, regardless of whether there was negligence in the employment of such representative,\[40\] provided he was at the time engaged in the

- **36.**\_Concurring negligence of master and !\_ued.\_Murphy v. Hudson River Tel, Co, fellow-servant makes master liable. South- 112 NYS 149. Violation of custom of in- !\_s_G. Co, v. West \[Ga, App.\] 62 SE 141; !\_s performance of duties for which he was employed.41 The master is not relieved by the fact that the servant at fault violated his instructions if he was at the time performing a service for the master in furtherance of his business.42 It is usually held that a failure to use ordinary care for the safety of other employees is negligence, rendering the master liable.44 Whether this degree of care has been used in a par ticular instance is usually a question of fact for the jury. \[44\] If the master has employed a competent man, he will not be held liable for injuries resulting from a mere error of judgment. \[45\] In Kentucky, in an action by an injured servant to recover on

Failure of engineer to use means at hand \[Egan \[C. C. A.\] 159 F 40. Whether engit-to prevent engine from moving after he had sent fireman under it would be negligence. Aichison, etc., R. Co. v. Mills \[Tex. Civ. App.\] 108 SV 480. Where employee was injured in railroad yards by cars suddenly and violently sent down track upon him as he was crossing track. Missouri K. & T. R. Co. v. Balliet \[Tex. Civ. App.\] 107 SV 906. Where fireman was killed by de-ralment while engine was running backward at dangerous speed around curve. Allton's Adm?x v. Norfolk W. R. Co., 108 Va. 752, 62 SE 906. Employees engaged in moving heavy object ought to have foreseen liability of injury to plaintiff working near, as they knew, by such object falling and knockles over pile of doors on plaintiff. Texas & N. O. R. Co. v. Barwick \[Tex. Civ. App.\] 110 SV 953.

Evidence insufficient to show negligence of dispatcher in sending out car with defective brake. Welch v. Jackson & B. C. Trac. Co. \[Mich.\] 15 Del. Leg. N. 767, 117 NW 898. Action for injuries to conductor caused by alleged negligence of crew of another train. Held, evidence did not show violation by other crew of rules of company. Check v. Sebaboard Air Line R. Co. \[S. C.\] 62 SE 402. Engineered not shown negligent in moving train, causing brakeman to fall, where he testified that he did not see de-ceased's signal to back, but saw and followed signal of another brakeman to go forward. Matthew's Adm? v. Louisville & N. R. Co. \[Ky.\] 118 SW 459. Engineered, on receiving signal to detach engine, was not negligent in backing it, since this was usual and necessary, and he was not bound to anticipate that conductor would go between cars and place himself in danger unnecessarily in coupling air hose. Dermid v. Southern R. Co. \[N. C.\] 61 SE 67. Evi-dence insufficient to show any negligence of defendant where servant was killed by train, ears being prematurely moved, crush-ing him. Halbert v. Texas Tie & Lumber Preserving Co. \[Tex. Civ. App.\] 107 SW 592.

44. Brackeman thrown from car and killed on account of sudden jar due to alleged negligence of engineer, Cincinnati, etc., R. Co. v. Evans, 33 Ky. L. R. 596, 110 SW 844. Fireman thrown from running board of en-gine by jar in coupling. Whether engineer was negligent in starting engine and making coupling without warning. Galveston, etc., R. Co. v. Blomfelt \[Tex. Civ. App.\] 107 SW 827. Whether secretion forcman was negligent in ordering men to alight from moving train, and whether plaintiff was negligent in following order. Chicago

01. & L. R. Co. v. Sanders \[Ind. App.\] 86 SV 906. Where fireman was killed by de-ralment and plaintiff were negligent in starting construction train, causing him to fall as he tried to get on. Illing Cent. R. Co. v. Tandy, 32 Ky. L. R. 962, 107 SWP

01. Bhrekeman injured by sudden stopping of train. Galveston, etc., R. Co. v. Harper

01. & L. R. Co. v. Sanders \[Tex. Civ. App.\] 118 SW 118. Whether

01. & 1.

account of negligence of a superior servant engaged in work with him, gross negligence must be shown,\[46\] but in an action for the death of a servant, the statute authorizes recovery for negligence though it be not gross.\[47\]

\_Determining of relation. Common-law rules.\_See 10 C. L. T. 78--What facts are essential to the existence of the fellow-servant relation between two or more employees is a question of law. The existence of such facts in a particular case is a question for the jury.\[48\] The law of the place where the injury occurred controls.\[49\]

It is essential to the existence of the fellow-servant relation that the employees have a common master,\[50\] or at least be under one control.\[51\] Where an employee is furnished by his general employer to work as the servant of another, subject to the orders and directions of the latter,\[62\] he consents to, and does, become the fellow-servant of the latter's employees.\[63\]

It is commonly held that employees of a common master, working together in a common enterprise,\[54\] or performing duties tending to the accomplishment of the

not make master liable, splice having

charge of men was fellow-servant of mem-

parted and allowed plaintiff to fall. Tweed

ber of gang engaged in piling ties. Sambos

v. Hudson River Tel. Co., 114 NYS 607.

v. Cleveland, etc., R. Co. \[Mo, App.\] 114 SWV

46. Cincinnati, etc., R. Co. v. Evans, 33

01. Where engine repairer moved engine

Ky. L. R. 596, 110 SWV 844. Gross negillings

and caused steam to escape from cylinder

gecets, thereby confusing plaintiff who was

orders or for dispatcher to allow two trains

wheeling ashes up a nearby incline, causing

to run on same track in opposite directions,

him to fall, held that the question as to

Illinois Cent. R. Co. v. Vaughan, 33 Ky. L. R. 596,

whether the relation of fellow-servants ex-

806, 111 SWV 707. Gross negligence for em-

gloyce to throw stove out of window into

cago, etc., R. Co. v. Cukravony, 138 Ill. App.

passway below where he knew other em-

867. Where common-law fellow-servant

ployes might be passing. Swann-Day Lumber Co. v. Thomas \[Ky.\] 112 SWV 907.

rule obtained in Tennessee, where Injury

47. In action for death of brakeman, error

occurred, that rule governed case in Ken-

to require proof of gross negligence on

tucky court, though in Kentucky statute

part of engineer. Ky. St., 1903, $ 6. Cincinnati, etc., R. Co. v. Evans, 38 Ky. L. R. 596,

numbers R. Co. v. Keiffer \[Ky.\] 113 SWV 438.

110 SWV 844.

48. Question whether employees are fell-

low-servants is one of fact and never be-

some one of law unless the facts proven

show such relation so clearly to exist that

all reasonable rinds will readily agree that

50. App.\] 107 SWV 642. Engineer running

such is their relation. Gathman v. Chicago,

236 Ill. 9, 86 NE 152. Where the undisputed facts show that the relation of

fors employees at work on building. Henry

low-servants exicts, the question is one of

law, but if there is evidence fairly tending

Crew of street car owned and operated by

to prove that the persons involved are not

follow-servants, the issue should be sub-

mitted to the jury. Whether a boiler

in-
spector is fellow-servant of one operating

traveling erane used for purpose not con-

187 Ill. App. 364.

nected with the inspection of boilers was

properly submitted to jury. McAleena

Boiler Co. v. Lines, 132 Ill. App. 593. Evi.

dence being conflicting, whether certain

man who ordered defective rope used was

foreman was for jury, Shirk V. Chicago,

etc., R. Co., 235 Ill. 35, 85 NE 262. Whether

foreman had authority to act as such

order plaintiff to do work in which he was

injured. Louisville & N. R. Co. v. Mahan

\[Ky.\] 113 SWV 886. Whether servant

injured was fellow-servant of one who failed

to give warning of movement of cars by

which injury was caused. Webster v. At-

lantic Coast Line R. Co. \[S, C.\] 61 SE 1080.

Whether night boss was vice-principal, and

whether he ordered plaintiff to assist him,

and whether he was responsible for injury,

Jasper v. Bunker Hill & Sullivan Mining &

Concentrating Co. \[Vasn.\] 97 P 743. Court

not justified in ruling that foreman in

several would probably expose them to dan same general end or purpose,"45 are fellow-servants, though not at the time in question engaged in the same operation or on the same piece of work."56

Footnote 45: The code is available at http://www.cs.cornell.edu/~c/

The rule most frequently applied is that it is not the rank of an employee, nor the authority he exercises over other employees,"87 but the nature of the duty or service he is performing at the time which determines whether he was, at such time, a vice-principal or fellow-servant." The duty of the master to use ordinary care for

ger, are fellow-servants. Harris v. Det
808, I10 NYS 91. Fireman of one freight Farenede Dampskibelskab \[N. J. Err. & Arab.\]

train held fellow-servant of conductor of App.\] 70 A 165. Servants engaged in same another. Still V. San Francisco & N. W. R.

general employment are fellow-servants.

Co. \[Cai.\] 98 P 672. Act of another member Indianapolis Trac. & T. Co. v. Kinney \[Ind.\]

85 NE 954. Employs of same master, en-

ment of cars while plaintiff was between

gaged in common enterprise, having com-

them was act of fellow-servant. Union Pac.

mon purpose, are fellow-servants. Missouri

K. Co. v. Bradley \[C. C. A.\] 161 F 719. Mem.

K. & T. R. Co. v. Hendricks \[Tex. Civ. App.\]

bers of a train crews engaged in switching,

108 SW7 45. Serventu throwing old lumwhere

follow-servants. Nelson v. Southern R. Co.

out of factory window, and plaintiff en-

\[C. C. A.\] 108 F 92. Wood cutter or saw-

gaged in clearing it away below in yard,

will employe being carried to place of work

were fellow-servants. Schmelzer v. Central

on defendent's logging train held fellow-

Furniture Co. \[Mo, App.\] 114 SWV 1043,

variant of employees operating train, who

Plaintiff engaged in washing floor of res-

caused collision by running into fallen tree,

avoid fellow-servant of carpenter on roof,

Roland v, Tifft \[Go.\] 63 SE 133. Locomotive

whose chisel fell from roof on plaintiff.

engineer and switchman, members of same.

Taylor v. Washington Mill Co. \[Wash.\] 97

switching crew, engineer working under

P 243. Defendant employed experienced

signals from switchman, fellow-servants.

man to build bridge, who hired such assists-

Day v. Louisiana W. R. Co. \[La.\] 46 S 203.

tance as he needed, decedent being one.

Engineer on engine and engaged in inspect-

Man employed by defendant had supervision

ing it was killed by hontier's negligence in

of work but was engaged with others.

moving it, hsolver having charge at time.

Held, he was fellow-servant of deceased,

Held by fall of derrick which they were

bash R. Co., 212 Mo, 437, 110 SWV 1084.

moving. Corey v. Jollet Bridge & Iron Co.,

Brakemann fellow-servant of other members

151 Mich. 558, 15 Det. Leg. N. 8, 115 NW 787.

Plaintiff held fellow-servant of millwright

of cabbage, where he fell over it. Chicago,

with whom he was engaged in making re-

etc., R. Co. v. Hamilton \[Ind. App.\] 85 NE

pairs on elevator. Christy v. Schwartzchild

1044.

& Sulzberger Co. \[C. C. A.\] 160 F 857.

55. Engineer in charge of engine which

Candy mixer and man operating early

controlled bucket used to convey sand from

entning machine, working side by side,

fellow-servants. National Candy Co. v. Mill

lev \[C. C. A.\] 160 F 51. Operator and ass-

sistant operator of metal press, fellow-servants.

Ladiev v. Sherwood Metal Working

Co., 125 App. Div. 85, 109 NYS 477. Super-

attendant and painter than hel hel

low-servants at common law. Kennedy v.

New York Tel., 125 App. Div. 846, 110

TXS 887. Mine boss and me does, required

to be employed in mines by Code 1906,

**88** 409, 410, are fellow-servants of manners,

and owner or operator is not liable for their

negligence in falling to keep mine sate,

ample means of ventilation having been

provided. Squilache v. Tidewater Coal &

Coke Co. \[W. Va.\] 62 SE 446. Boss of gang

of 4 or 5 section men or track repiers is,

when not charged with duties of master,

their fellow-servant, even though given

power to direct the work and give orders

relative thereto not involving master's du

tles. Indianapolis Trac. & T. Co. v. Kinney

\[Ind.\] 85 NE 954. Both at common law and

under fellow-servant state, station tele- the safety of his employees being personal and nondelegable," any person charged with and engaged in the performance of any part of that duty is a vice-principal, for whose negligence in the performance of such duty the master is responsible." Thus persons charged with and engaged in the performance of the duty of the master to provide and maintain a reasonably safe place of work," or reasonably safe appliances," or to direct the mode of work," or to employ competent workmen," or to

vice-principal or as a fellow-servant in a; digging trench was representative of mass-particular instance is whether at the time of seeing that it was kept in of injury he was entrusted with the performance of some absolute and personal arm Heating & Elec. Co., 104 Minn. 234, 116 duty of the master. Pasco v. Minnesota: NVW 488. Defeandant liable where its general & Mach. Co., 105 Minn. 132, 117 NVW 479. Neither the doctrine of separate departments, covered, into which servant fell. Gilbert v. nor superior servant, nor the rank or author- & Elk Training Co., 221 Pa. 176, 70 A 719. Ps * \[N. C.\] 62 SE 1073. Operator of em- switching to take place on repair track, was ery wheel took off guard to make change and neglected to put it back on, and wheel flew apart and piece struck plaintiff, at work 40 feet away. Held, duty to guard was continuing and nondelegable, under statute, and operator was not fellow-serv- pliances and place of work, have been held vice-principals, for whose failure to perform the duties entrusted to them, or for whose negligence in the performance of those duties, the master has been held responsible. On the other hand, when a master has fully performed his duties, he may properly entrust to the employees themselves the details of the work, \[69\] and if the act or omissions complained of does not

- files sustained through the violation of their

dates as required by the act. Illinois Col-

Liferies Co. v. Davis, 137 Ill. App. 15. Man-

sager or lungeoter of mine whose duty it is

to keep mine entries and galleries free from

M. A. 703; Jones v. Shaw, 16 Tex. Civ. App.

dust. Davis v. Illinois Coliferies Co., 232 Ill. 284, SS NEE 836. Mine examiner. Mertens

V. Southern Coal & Min. Co., 235 Ill. 546, SS

NE 743; Olson v. Kelly Coal Co., 236 Ill. 502,

86 NE 88.

68. Duty to keep press in repair held not

There detail of work, but part of master's

Duty. Staskowski v. Standard Oil Co., 111

NYS 68. Foreman is awmilli whose duty it

was to keep hooks used in moving logs in

repair was vice-principal as to one injured

because of their defective condition. Al-

len v. Standard Box & Lumber Co. \[Or.\] 96

P 1109. Section foreman charged with duty

of keeping tracks in repair, and roundhouse

employe charged with duty of keeping en

gines in repair, were not, under common law

of Indian Territory, fellow-servants of

brakeman. Missouri K. & T. R. Co. v. V'ise

(Tex.) 109 SV 112. Servents charged with

duty of inspection and repair of elevator not

follow-servants of employe injured by sad-

den rising of elevator. Byers V. Carnegie

Steel Co. \[C. C. A.\] 159 F 347. Employe

whose duty it was to keep jointer machine

in repair was not fellow-servant of operator

injured by reason of its defective condition.

Bigum v. St. Paul Sash, Door & Lumber Co.

\[Jim.\] 119 NV 481. Servant whose duty it

St. Rep. 426. The case of Anderson v. Eric

was to see that machinery was kept in good

order and who directed plaintiff to repair

smachine was acting as vice-principal in giv-

ing such direction. James v. Fountain Inn

Mffg. Co. \[S. C.\] 61 SE 391. Master mechanic

of steel works having entire charge of re-

pairs and of repair men, and with discretion

as to what repairs are necessary. Clegg

v. Seaboard Steel Casting Co., 34 Pa. Superl

Ct. 63. Superlendental told engineer to

pair footboard and handhold of engine which

had been sent in for repairs, and he repaired

handhold negligently so that it came off

when plaintiff used it. Held, master liable,

as engineer represented him in making re-

pairs, though ordinarily plaintiff's fellow-

servant. Beach v. Bird & Wells Lumber Co.,

135 Wis. 550, 116 NW 245.

**NOTE**. Inspectors for foreign cars as vice-

principals: By the great weight of modern

authority, the inspectors of a railway

pany in inspecting cars from a foreign road

are vice-principals rather than fellow-servants

ants of the trainmen who make use of such

cars. Gottlieb v. New York, etc. R. Co., 100

N. Y. 462, 3 NE 844: Goodrich v. New York

Cent, etc., R. Co., 116 N. Y. 388, 212 NW 391,

An. St. Rep. 410, 5 L. R. A. 750; Barton v.

New York Cent., etc., R. Co., 163 N. Y. 391, 57

NE 609, 79 Am. St. Rep. 600: Jones v. New

York, etc., R. Co., 20 R. I. 210, 37 A 1032;

Guttridge v. Missouri Pac. Co., 94 Mo. 468,

7 SWY 476, 4 Am. St. Rep. 392: Louisville, etc.,

land Gold Min. Co. v. Duke \[C. C. A.\] 164 F

Am. St. Rep. 214; Louisville, etc.,

180. Where work required taking up of

Mackey, 157 U. S. 72, 38 Law. Edd. 624; Kelley

V. Ruhland R. Co., 80 V. St. 68 A 713. The

case of Mackin v. Railroad Co., 135 Mass.

201, 46 Am. Rep. 456, sustains the contrary

contention and has never been overruled,

though in consequence of later legislation

the Massachusetts court now applies the law

as generally understood. Bowers v. Con-

meetet R. R. Co., 162 Mass. 312, 35 NE 508, pertain to any duty of the master, but is a mere detail of the work which it is the duty of the employes to perform, it is the act or omission of a fellow-servant," regardless of the rank or authority of the employee charged therewith. \[71\]

iron floor plates, temporary disposition of them was detail properly left to servants. Master not disable where they were piled up Pasco v. Minneapolis Steel & Mach. Co., 105 and pile fell upon plaintir. Morgan Const. & Co. v. Frank \[C. C. A.\] 158 F 964. Failure to warn plaintiff in ditch of a crack in the wall and of danger of cave in was negligence of fellow-servant, maater having pro- vided suitable materials for shorting up walls. Brown v. Feople's Gangltion C. \[V.\] 71 A 204. Where master had provided suit- able materials for shorting up trench walls, failure of forearm to use them or to warn man in ditch of danger from cave in, a crack having appeared in bank above, was negligence of fellow-servant. Id. Cars and appliances not beling defective, negligent and improper placing of car of explosives in train was act of fellow-servant. Lewis v. Pennsylvania R. Co., 220 Pa. 817, 69 A 821. If it was duty of employees using hocka to sharpen them when necessary and accident it was. Connolly v. North Jersey St. R. Co. happened because of their failure to do so, there could be no recovery from master. Allem v. Standard Box & Lumber Co. \[Or\] 96 P 1109. Where defendant furnished sulfate- ble materials and proper design for construction of "bridge" used on stage, in presenting opera, negligence of stage hands would be negligence as to detail of work, and member of chorus could not recover from defendant. Hahn v. Conried Metropolitan Opera Co., 111 NYS 161. Where defendant employed signal- man to give signals, etc., movement of carntage, his negligence in falling to warn em- plevess would be, at common law, negligence of fellow-servant. Palmieri v. Pearson, 112 XYS 684. Defendant having employed com- patient forman in quary not liable for his negligence in removing tree in course of work, this being mere detail. Fedia v. Or- anse County Road Const. Co., 114 NYS 70. 70. 70. Elevator door being provided, that operator left it open was not chargeable to master. Gobell v. Poneman Millis \[R. I.\] 69 A 884. Regulation of packing under roller of ironing machine being part of operator's duty, negligence of superintendent in putting packing under it was that of fellow-servant. Calhoun v. Holland Landry, 220 Pa. 281, 69 A 756. Negligence of intrinmaster in operating cars in that of fellow-servant as to expressman and freight checker on care. Indiana Union Trac. Co. v. Pring, 41 Ind. App. 247, 85 NE 738. Where setting up of appliances for unloading vessel was en- trusted to servants as a part of their work, one employed to assist in unloading was no less their fellow-servant because he was hired after the appliance had been set up. Loud v. Lane, 103 Me. 809, 68 A 270. Master provided suitable appliances and apparatus for unloading coal from vessels and left duty of setting them up to servants who did the unloading. Field, not liable for injuries caused by negligence in setting them up. Id. "Strawboses" in charge of work of raising casting ordered plaintiff to move a block which had been placed under it, and when plaintiff said he was afraid it might fail, as it had done before, boss said it strikes plaintiff. Foreman was in charge of 12 Cur. Law. MASTER AND SERVANT SS 3E.

But the authority conferred upon and exercised by employees is often applied as a test by which to determine whether they are vice-principals.12 Thus employees who are placed in absolute control or management of an entire business or of a distinct department of a business,73 or who have charge of a particular piece of work with authority to control or direct the men engaged thereon,74 are held to represent the master. One who is thus made a representative of the master does not lose his representative character by engaging occasionally in work as an ordinary employe.75

Footnote 12: Cur. Law. MASTER AND SERVANT SS 3E.

In some jurisdictions the test applied to determine whether employees are fellow-servants is the extent to which they associate in the performance of their usual.

foundry, with power to hire and discharge men, but was himself subject to yard forevenar, and to superintendent who exercised atp, for whose negligence in giving orders active general control. Held, they were fellow-servants. Portae v. Griffin Wheel Co., L. R. 1069, 112 SW 622. Foreman of construction gang with entre control of repair car, men and material. East St. Louis & S. Vice-principal. Brown v. Lennano \[Mich.\] 15 Det. Leg. N. 852, 118 NY 581. Foreman held not fellow-servant of injured employee when giving order directing work of moving boiler. Jacobsen v. Heyworde & Morrill Ratan Co., 236 Ill. 570, 86 NE 110. Master of charge with authority to employ help and direct all work was representative of master. Pennuryian R. Co. v. Hartell \[C. C. A.\] 157 F 667. Master of vessel is not fellow-servant of members of crew. Fallon v. Cornell Steamboat Co., 162 F 329. Wire chief of telephone company under whose order plaintiff worked was vice-principal. Texarkana Tel. Co. v. Pemberton \[Ark.\] 111 SW 257. One who had authority over men and work and entire supervision and direction was vice-principal of men under him. Hagan v. Gibson Min. Co., 131 Mo. App. 386, 111 SW 608. Boy was directed to assist operator of trip hammer and keep dies clean, and was told by operator soon after beginning work to assist in removing dies, and in so doing was hurt by hammer, which fell owing to operator's negligence. Held, that boy had right to assume that he was to obey orders of operator, and that latter was not fellow-servant. Avery v. Cottrill's Guardian \[Ky.\] 107 SWV 332.

73 "Inside foreman" in charge of factory and men, with power to direct them, was representative of master in directing servant to assist in certain work. National Fire Proofing Co. v. Andrews \[C. C. A.\] 158 F 294. One placed in entire charge of foundry, with power to hire and discharge men and direct work, was vice-principal, for whose negligence in directing unsafe mold to be used master was hiding. Hickey v. Caldwell, 221 Pa. 545, 70 A 855. One in charge of floor of factory, directing workmen, held not fellow-servant of plaintiff engaged in moving timber in yard below. Schmelzer v. Central Furniture Co. \[Mo. App.\] 114 SWV 1043.

74 Employers liable for acts and conduct of persons placed in charge of work. Balard & Ballard Co. v. Lee's Adm? \[Ky.\] 115 SWV 732. Temporary absence of foreman who left plaintiff, common laborer, in charge, did not make latter vice-principal. Cleveland, etc., R. Co. v. Beale \[Ind. App.\] 86 NE 431. Employe who took foreman's place during latter's absence held representative of master, Johnson v. Motor Shing Co. \[Vwash.\] 96 P 962. Person left in charge of work by regular foreman, bed, for whose negligence in giving orders active general control. Held, they were fellow-servants. Portae v. Griffin Wheel Co., L. R. 1069, 112 SWV 622. Foreman of construction gang with entre control of repair car, men and material. East St. Louis & S. Vice-principal. R. Co. v. Hill, 133 Ill. App. 14. One having charge of a particular piece of work by virtue of authority conferred upon him by the master is a vice-principal. Foreman of switching. crew. Chicago Terminal Transfer R. Co. v. Redick, 131 Ill. App. 515. Where-plaint, engaged as one of crew to replace boiler, under foreman's direction as to how work was to be done, was injured by ex-plosion of gasket, it could not be held as a matter of law that injury was caused by negligence of fellow-servant. Ragsdale v. Illinois Cont. R. Co., 140 Ill. App. 71. Sputernident present, affecting men and manner of work, represented master, and directing work to be done in dangerous way without warning made master liable. Conolly v. Hall & Grant Const. Co., 192 N. Y. 182, 84 NE 807. Powdersman and shift boss, in charge of blasting and drilling operations, not fellow-servant of common laborer engaged in shoveiling earth into cars. Ong-arg v. Ywoh \[Vwash.\] 94 P 916. If employe entrusted with dynarnte work and duty of removing unexploded blasts was vested with discretion as to time of removing such blasts, he acted, in so doing, as representative of master. Polo v. Palisade Const. Co. \[N.

d duties.78 Thus it is held that employes engaged in different departments of a business are not fellow-servants.77

Footnote 78: https://www.sds.org/

A child whose employment violates a statue will not be held a fellow-servant of other employes.79

76. Illinois: The test is whether the servants in question were co-operating with each other at the time, or whether their line offered, where switchman wheres finished as ordered, where switchman negligently brought them into habitual association, so that they might exercise upon each other a mutual influence promotive of caution. City's servant sent to make measurements on drawbridge not fellow-servant of those whose duty it was to operate the machinery of the bridge, by whose negligence he was injured. Gathman v. Chicago, 238 Ill. 9, 86 NE 162. Common laborer employed in clearing award debris while mechanics were making repairs and raising floor under direction of vice-principal was not fellow-servant of such mechanics, having nothing to do with them. Williams v. Morris, 237 Ill. 254, 86 NE 729. Docting of fellow-servants does not apply as between chief engineer in charge of unloading boiler and workman injured while working under his supervision. Heywood & Morrill Ratan Co. v. Jacobson, 140 Ill. App. 819. Death of servant caused by act of another servant working under a different foreman. Not fellow-servants. Illinois Steel Co. v. Jenco, 136 Ill. App. 555. Waitress riding on elevator and elevator operator are not fellow-servants. Cluin v. Higgins, 138 Ill. App. 168. Relation of fellow-servants did not exist between plain-iff who was injured by explosion of molten iron in mould, caused by defective vent, and other employees whose duty it was to make months and cores and to provide proper events. The Sargent Co. v. Shukair, 138 Ill. App. 880. Street car conductors on different lines who may not meet at a crossing but at long intervals held not to be fellow-servants. Bennett v. Chicago City R. Co., 141 Ill. App. 560. Cranemann negligently picking up lalde without instruction from deceased, under whose direction he usually did it, held to be fellow-servant. Illinois Steel Co. v. Luninski, 138 Ill. App. 332. Rule of fellow-servants applied to foreman who himself helped to unload timmes from car, one of which fell on plaintiff who straightened out timmers as foreman threw them down. Duffy v. Chicago, 137 Ill. App. 188. An engine cleaner standing upon tender of dealing engine, injured by starting of engine through signal of another engine cleaner engaged in same work of cooling, held as a matter of law to be fellow-servant to the other, and also to hostler in charge of engine. Heimberger v. M. Louis Iron Mountain & S. R. Co., 140 Ill. App. 241. Helper to elevator man is fellow-servant, and cannot recover for negligent act of elevator man while in act of greasing elevator shaft. Latter not representative of company. Peterson v. Sears, Roebuck & Co., 141 Ill. App. 592. Missouri: Only those employees are fellow-servants who are so associated and related in their work that they can observe and have an Influence over each other's conduct and can report delquencies to a common corrective power or head. Koerner v. St. Louis Car Co., 209 Mo. 141, 107 SWV 481. Painter employed in painting cars, working * \[13\] Cur. Law. MASTER AND SERVANT SS 3E.

- \[14\]_Railroad employes_, See 10 C. L. 145--Holdings as to the relation existing between railroad employees are collected in the note.7\*
- \[15\]_Statutory modification of common-law fellow-servant doctrine_. See 10 C. L. 146--The operation of the common-law rule that there can be no recovery for negligence of a fellow-servant has been limited by statute in many states. In other states, statutes supply the tests by which it may be determined whether an employee charged with negligence was a fellow-servant or vice-principal of the injured employe. In the notes are grouped, by states, holdings as to the validity and application of such statutes.80 Fellow-servant statutes are not invalid because applicable only to rail-servant.
- \[16\] Tabor v. St. Louis, etc., R. Co., 210 Mo. 385, 15 Det. Leg. N. 509, 116 N NV 1107.
- \[17\] **79. Note: This collection of cases is merely for the convenience of those desiring to examine railroad cases. They are also 946. Employees long service train fellow-servants of engineer. Lane v. New York connection with principles under which they were decided. IE4.\]**
- \[18\] **Breakman and car Inspector not fellow-serv-servants** under statutes in force at time brake-man was injured. St. Louis, etc., R. Co. v. MITH \[Ga.\] 63 SE 133. Members of two charge of express and freight, and treminaster who negligently operated cars, fellow-servants. Indiana Union Trace. Co. v. Streeton gang engaged in loading and unloading cars. Illinois Cent. R. Co. v. Tandy, 33 KV. L. R. 962, 107 SW 715. Brakeman
- \[19\] fellow-servant of other members of train crew, who was thrown from car by forearm's negligent act in suddenly stopping he fell over it. Chicago, etc., R. Co. v. MITH \[Ind. App.\] 85 NE 1044. Locomotive engineer and switchman, members of switching crew, are fellow-servants, where engineer moves according to signals given by switchman. Day v. Louisiana Western R. Co., 121 La. 180, 46 S 203. Two brakeman engaged in switching, fellow-servants. Matthews' Adm'r v. Louisville & N. R. Co. \[Ky.\] 113 SWV 459. Members of switching crew, fellow-servants. Union Pac. R. Co. v. Harvard \[C. C. A.\] 161 F 719. By common law of Indiana, conductor of freight train, and engineer and fireman of an engine operated on same track but separate from train, are fellow-servants. Wabash R. Co. v. Hassett, 170 Ind. 370, 83 NE 705. Engineer and host-leg fellow-servants where both were on engine, former to inspect and latter in charge, and engineer was killed by hostjer's negligence in moving engine. Broadwater v. Wabash R. Co., 213 Mo. 437, 110 SWV 1084.
- \[20\] **Fireman on one freight train field fellow-servants. Twisting of the common-law rule that there can be no recovery for negligence of a fellow-servant has been limited by statute in many states. In other states, statutes supply the tests by which it may be determined whether an employee charged with negligence was a fellow-servant or vice-principal of the injured employe. In the notes are grouped, by states, holdings as to the validity and application of such statutes.80 Fellow-servants are not invalid because applicable only to rail-servant.**
- \[21\] **Tabor v. St. Louis, etc., R. Co., 210 Mo. 385, 15 Det. Leg. N. 509, 116 N NV 1107.**
- \[22\] **Follow-servants. Dixon v. Grand Trunk W.**
- \[23\] **R. Co. \[Mich.\] 15 Det. Leg. N. 936, 118 N NV 946. Employees long service train fellow-servants of engineer. Lane v. New York Cont. Co., 125 App. Dtv. 808, 110 NYS 91.**
- \[24\] **Breakman and car Inspector not fellow-serv-servants** under statutes in force at time brake-man was injured. St. Louis, etc., R. Co. v. MITH \[Ga.\] 63 SE 133. Members of two charge of express and freight, and treminaster who negligently operated cars, fellow-servants. Indiana Union Trace. Co. v. Wiring, 41 Ind. App. 247, 83 NE 733. Seetton
- \[25\] **R. Co. \[Mich.\] 15 Det. Leg. N. 936, 118 NPV 946. Employees long service train fellow-servants of engineer. Lane v. New York Cont. Co., 125 App. Dtv. 808, 110 NYS 91.**
- \[26\] **Breakman and car Inspector not fellow-servants** under statutes in force at time brake-man was injured. St. Louis, etc., R. Co. v. MITH \[Ga.\] 63 SE 133. Members of two charge of express and freight, and treminaster who negligently operated cars, fellow-servants. Indiana Union Trace.

Southern R. Co., 31 App. D. C. 466. But see 10 C. L. 749, n. 85, 87; p. 704, n. 9, 10.

# 12 Cur. Law. Master and Servant $ 3E.

& Foundmy Co. v. Applegate \[Ind. App.\] 85 is not within statute. McGillvery v. Boston NE 724.

Kansas: Gen. St. Kansas 1889, $ 1251, mhasking railroad companies' liable, for injuries caused by negligence of agents, etc., company, operating ore railroad, liable for injuries where trackman is killed while being carried home from work on defendants's work train. Missouri Pac. R. Co. v. Larussi IC. C. A. 163 $ 827. In 1889, $ 1251, F which exempts railway employees from assumptions of risk of negligence of fellow employees, the death of an employee, while being carried home from work, on a work train, in a collision between two trains, raises presumption of negligence of defendant, just as though he were a passenger. Id.

Missachusetts Under Rev. Laws, c. 106, $ 71, superintendent, present, directing methanol or officer, or person in another department, or fellow-seventant on another train of asset employees in work being done. Connelly v. Booth, 198 Mass. 677, $ 8 NE 799. Under the statute making master liable for holes of "supperintendent," the common-law rule that a master is not liable if he furnishes suitable appliances, of which the servant and falling over upon him, owing to ants select those which are unsafe, does not obtain. Doherty v. Booth, 200 Mass. 525, 86 $ 945. One in full charge of work of hight-ing heavy casting could be found to be saturated, employee is engaged in his duties and be printed. Bowie v. Coffin Vaive Co., 200 $ 71, $ 8 NE 914. Foreman who was in charge of pile driving and of moving apparatus, who directed the work, employed men, etc., was superintendent within Rev. Laws, c. 106, $ 71, though he also worked with the men. Robertson y. Hersey, 198 $ 605. A cost of engineer in show deceased was executing orders of engineer at time. Yaxoo k M. V. R. Co. v. tendence, though regular superintendent was absent. Moore v. Curran, 198 Mass. 60, $ 48 NE 113. If superintendent selected or dippersons engaged in service of railroad correct use of unsafe material for staging, moment who are entrusted with authority, misert would be liable for resulting injury. Donohue v. Buck & Co., 197 Mass. 650, $ 83 NE 1080. Selecting compound dry (one timber not anarchy for use in moving plle driver could be found to be an act of superintendent- and\] persons engaged in the common service of a railroad company, who, while so ennegared, are working together at the same time or place, neither being entrusted with superintendence over other servants, are fellow-servants with each other. Foreman in charge of switching was not fellow-servers- and of brakeman whom he ordered to go between cars to adjust coupler, and then neg-\] ligently allowed cars to "drift" against cars he was working between. McGuire v. Quney, etc., R. Co., 128 Mo. App. 677, 107 SWV 411. Petition showing that vice-principal was assisting in loading trucks and negliently removed blocks from wheels, causing them to roll on plaintiff, shows that he was fellow-servast at time, with Ann. St. 1908, $ 2875. Robinson v. St. Louis & S. F. R. Co. \[Mo. App.\] 112 SW 730. Under Rev. St. 1889, $ 2874, $ 2864, conductor and engineer of train were not fellow-servants of master mechanic, who was injured through their negligence while riding on engine. Tabor v. St. Louis, etc., R. Co., 210 Mo. 385, 109 SWV 764. Plaintiff, engaged in transferring bag-gage between defendants' trains, using elevator for purpose, was engaged in "operation of railroad" within Ann. St. 1906, $ 2873. Turner v. Terminal R. Ass'n, 132 Mo. App. 28, 111 SWV 541. Heid, also, that follow-serv

### 738 Master and Servant $ 3E.

12 Cur. Law.

ant's negligence in loading baggage on truck repairs in vessel, and were told to provide was cause of plaintiff's injury. Id. Negli-themselves with lights, foreman in charge gence of fellow-servant not assumed risk was not chargeable with negligence in fail-under Rev. St. 1899, $ 2873. Briscoe v. Chiling to close hathway in lower part of hold, eago, R. & Q. Co., 120 M. App. 513, 109 5W or in not seeing that plaintiff had light or 93. Work of reconstructing railway bridge with pile driver held "operation of railroad" and within Rev. St. 1899, $ 2873. masking railroad corporations liable for servant's negligence. Barys under directions of such ship owner's Huston v. Quinney, etc., R. Co., 129 Mo. App. servant, was not "superintendent" for whose 576, 107 SVV 1045. Manufacturing corpora-negligence defend would be liable. Id., operating several miles of tracks, with Lorenz had power only to signal for move-cars, terminals, etc., and employing men to operate them, held "railroad" corporation it; its operation was entrusted to plaintiff, within meaning of Rev. St. 1899, $ 2873. subject to orders of superintendent of an-Pennney v. St. Joseph Bockyards Co., 212 Mo. other department. Heid foreman's act in 809, 111 SWV 79. Missouri fellow-servant law toens not extend to employees in candy factory not an act of superintendence, under Laws engaged in mixing and cutting candy. Na-1902, e.g. Quinlan v. Lakkawana Steeltional Candy Co. v. Miller \[C. C. A 1\] 160 F 51. No. 191 N. Y. 329, 84 NE 73. Failure of Negligent servant must have been engaged superintendent to have red flag placed air within scope of duties under Rev. St. 1899, warning that workmen were obstructing $ 2873. Briscoe v. Chicago, B. & Q. R. Co., 130 Mo. App. 513, 109 8W 39. Defendant inteence. Campbell's Long Island R. Co., liable for injury to car loader caused by negligence of truckman working with him.

Based in an act of superintendence or in Id. Rev. St. 1899, $ 2873.2875, held not to give cause of action to widow for death of husband caused by negligence of fellow-servant, hoselter; statute gives right of action only to injured person, not to his reprere-entatives in case of his death. Broadwater v. Wabash R. Co., 212 Mo. 437, 110 SWV 1084. L. Laws 1887, p. 96, $ 1, gives right of action to railroad employee for injuries caused by negligence of fellow-servant. Strottman v.

Stein Louis, etc., R. Co., 211 Mo. 227, 109 SWV 769. But it does not give right of action to representatives of deceased employee for wrongful death, if death results from fellow-servant's negligence. Id.

New York: Laws 1996, p. 1882, e.g57, making railroad employees having certain duties vice-principals, does not violate federal constitution. Schradin v. New York Cent., etc., R. Co., 124 App. Div. 705, 109 NYS 48.

148. Proof that train intended to run on main track ran onto side track, collided with engine, and killed engineer, was sufficient (Cor.) 199 P 76.

to show negligence for which company would be liable, in absence of explanation by L. 58), pulman car conductor is fellow-serv-it. Van Swegen v. Erte R. Co., 110 NYS 859. Statute need not be specially pleaded; if facts show cause of action thereunder, recovery may be had on proof thereof.

Sewth Carolin: Const. art, 9, $ 15, gives Schrafin v. New York Cent., etc., R. Co., 124 App. Div. 705, 109 NYS 428. Watchman employed to modify track employees of approach of trains is vice-principal under Laws 1906, e.g57, being in charge of "signals," and for his negligence recovery may be had for death of employee struck by train. Id. Defendant

Ilabe under Laws 1906, e.g57, where brake-man was injured between cars, because of conductor's negligence in signaling engineer

14 to move cars without receiving signal for brakeman first, in accordance with rules.

Brown v. New York Cent., etc., R. Co., 110 NYS 614. Under 1906 act, foreman of crew of railroad track employees was, as to duty to warn of trains, vice-principal. La Placa v.

15 to 111 NYS 797. Un-deer Laws 1902, p. 1748, e.g60, in must appear and not only that negligence relied on was that of one exercising superintendence, but that the was engaged in an act of superintendence at the time. Droge v. John M. Robins Co., 128 App. Div. 587, 108 NYS 457. Where operating a railroad or street railroad shall be liable for damages sustained while engaged ln operating cars, locomotives or trains by reason of the negligence of any other servant or employee, notwithstanding standard for that they are fellow-servants. Standard gauge railroad tracks operated by private corporation in connection with its factory, cars being run thereon with rented locomotives, held a "railroad" within the statute. Cunningham v. Neal \[Tex.\] 20 Tex. Ct. Rep. 460, 107 - SWP 539; Cunningham v. Neal \[Tex. Civ. App.\]: 109 SWP 456. Nsight hoalter in railroad yard, engaged under superior's orders, in inspecting switch engine to see whether it was properly old, wiped, etc., was not engaged in "operation of locomotive." Galveston, H. & N. R. Co. v. Cochran \[Tex. Civ. App.\]: 109 SWP 261. Loading and transporting rails on push car and unloading them where required for repair work held "operation of car" within statute though mere unloading of standing car, or using it as convenience in section work, would not be. Texarkana & Pt. S. R. Co. v. Anderson \[Tex. Civ. App.\]: 111 SWP 173. Decodent was employed by independent contractor in treastic construction for railroad company, and was unloading timbers from cars when killed. Field he was not engaged in "operating" cars or railroad (Rev. St. 1995, art. 460f), and defendant not liable though negligence of fellow-servants as defined in arts. 4560g, 4560h, caused injury. Walker v. Texas & N. O. R. Co. \[Tex. Civ. App.\]: 112 SWP 430. Plaintiff was injured by ear negligently released by foreman while he was propping up turntable to allow car to pass over it. Held they were engaged in "operating car" within Sayles' Ann. St. 1897, art. 4560f. Missouri, K. & T. R. Co. V. Bailey \[Tex. Civ. App.\]: 115 SWP 601. Brakenam did not assume risk of Injury by sudden act of negligence of fellow brakeman in throwing sack of ice from caboose. Galveston, etc., R. Co. v. Henefy \[Tex. Civ. App.\]: 116 SWP 57. Negligence of brakeman in throwing sack of ice against another brakeman who was about to board caboose in course of his duties was chargeable to company under Sayles' Ann. St. 1897, # 4560f. Id. Corporation running tram cars loaded with ties in course of its work of creosating same held not within Rev. St. 1879, art. 2898, making common carriers liable for injuries to servants caused by act or omission of another servant or agent. Halbert v. Texas Tie & N.G. V. Berrying Co. \[Tex. Civ. App.\]: 107 SWP 592. To constitute servant fellow-servants under Sayles' Ann. St. 1897, # 4560f, they must be in same grade of employment; they must be doing the same character of work or service; must be working together at same time and place and at same piece of work; and must be working to common purpose. Missouri, K. & T. R. Co. v. Bailey \[Tex. Civ. App.\]: 115 SWP 601. Rev. St. 1885, art. 4560g, make fellow-servants all persons (employes of railroad or street railway company) engaged in common service in same grade of support, who are doing same character of work, and are working together at same time and place, at the same piece of work, and for common purpose. Nsight hostir in railway yard, engaged, under orders of superior, in inspecting switch engine to see that it was properly oiled, wiped, etc., was not fellow-servant of another hostler putting steam \[into another switch engine. Galveston, etc., be liable for damages sustained while engaged ln operating cars, locomotives or trains by reason of the negligence of any other servant or employee, notwithstanding standard for that they are fellow-servants. Standard gauge railroad tracks operated by private corporation in connection with its factory, cars being run thereon with the locomotive, held a "railroad" within the statute. Cunningham v. Neal \[Tex.\] 20 Tex. Ct. Rep. 460, 107 - SWP 539; Cunningham v. Neal \[Tex. Civ. App.\]: 109 SWP 456. Nsight hoalter in railroad yard, engaged under superior's orders, in inspecting switch engine to see whether it was properly oiled, wiped, etc., was not engaged in "operation of locomotive." Galveston, H. & N. R. Co. v. Cochran \[Tex. Civ. App.\]: 115 SWP 601. To generate any of the most likely options for the use of the most likely options roads.\[41\] The classification refers to the character of the employment and not to the employer, and is proper in view of the peculiar hazards incident to the operation of railroads.\[82\] Acts which include only railroad employees apply only when the injury is a result of some danger or hazard peculiar to the use or operation of railroads.\[83\] The Missouri act does not confer a right of action on the representative or heirs of a deceased employee.\[84\]

(SS 3) _F. Risks assumed by servant. Nature of defense._See 10 C. L. 149__.--There can be no recovery for injuries resulting from a defect or danger, the risk of injury from which was assumed by the servant.\[85\] The assumption of a particular risk will not, however, defeat recovery for injuries resulting from a defect or danger which was not an assumed risk.\[86\] Assumption of risk is said to be a matter of contract express or implied;\[87\] contributory negligence is a matter of conduct.\[88\] They are distinct

254, employes being railroad employees and not office or shop employees. Id.

81. Burns Ann. St. 1901, $ 7083, is valid.

Indianapolis Trac. & T. Co. v. Kinney \[Ind.\]

85 NE 954. Ann. Code 1882, $ 3559, abolishing to some extent fellow- servant defense as to railroad employees, is constitutional. Moeblie, etc., R. Co. v. Hicks, 91 Miss. 273, 46 S 36. Const. 1902, $ 162, abolishing fellowship and defenses as to employees of railroad companies, is valid. Chesapeake & O. R. Co. v. Hoffman \[Va.\] 63 SE 432. Sayies Ann. St. 1897, $ 4560, 4560, fixing relationship of railroad employee, and modifying common-law fellow- servant doctrine as to railroad employees, is valid. Missouri, & K. & T. R. Co. v. Bailey \[Tex. Civ. App.\] 115 SW 601. Laws 1906, p. 1682, c. 657, making certain classes of railroad employees vice-principals, does not violate federal constitution. Sohra-din v. New York Cent., etc., R. Co., 124 App. Div. 706, 109 NYS 428, Laws 1907, p. 495, c. 254, is valid though applicable only to railroad employees engaged in operation; not applicable to office or shop employee. Kiley v. Chicago, etc., R. Co. \[Wis.\] 119 NW 309. Sz. Indianapolis Trac. & T. Co. v. Kinney \[Ind.\] 85 NE 954.

83. Indianapolis Trac. & T. Co. v. Kinney \[Ind.\] 85 NE 954, citing Iowa and Minnesota cases under similar statutes. The Indiana act is for exclusive benefit of those who are, in the course of their employment, exposed to the particular dangers incident to the use and operation of railroad engines and trains, and whose injuries are caused thereby. The injured employee need not, however, be connected with the movement of trains: It is sufficient if he is, in performing his duties, brought into a situation where he is, without fault, exposed to dangers and perils flowing from such operation and movement and is by reason thereof injured by negligence of fellow- servant. Id. Employe not entitled to benefit of act who was injured by reason of former's negligence in placing skills on flat car by which rills were being unloaded, skid falling, causing rail to strike plaintiff. Id.

01. Rev. St. 1899, $ 2873-2875, gives right of action for injuries to servant but not right of action for his death, caused by negligence of one who is vice-principal under statute. Strottman v. St. Louis, etc., R. Co., 211 Mo. 227, 109 SW 769; Broadwater v. Wabash R. Co., 212 Mo. 437, 110 SW 1084.

01. Plaintiff may be nonsulted on ground of hayring assumed risk, notwithstanding dangers.\[41\] The classification refers to the character of the employment and not to the employer, and is proper in view of the peculiar hazards incident to the operation of railroads.\[82\] Acts which include only railroad employees apply only when the injury is a result of some danger or hazard peculiar to the use or operation of railroads.\[83\] The Missouri act does not confer a right of action on the representative or heirs of a deceased employee.\[84\]

(SS 3) _F. Risks assumed by servant. Nature of defense._See 10 C. L. 149__.--There can be no recovery for injuries resulting from a defect or danger, the risk of injury from which was assumed by the servant.\[85\] The assumption of a particular risk will not, however, defeat recovery for injuries resulting from a defect or danger which was not an assumed risk.\[86\] Assumption of risk is said to be a matter of contract express or implied;\[87\] contributory negligence is a matter of conduct.\[88\] They are distinct

254, employes being railroad employees and not office or shop employees. Id.

81. Burns Ann. St. 1901, $ 7083, is valid.

On, 113 NYS 294. One casually employed on hdlianapolis Trac. & T. Co. v. Kinney \[Ind.\] 85 NE 954. Ann. Code 1882, $ 3559, abolishing to some extent fellow- servant defense as to railroad employees, is constitutional. Moeblie, etc., R. Co. v. Hicks, 91 Miss. 273, 46 S 36. Const. 1902, $ 162, abolishing fellowship and defenses and separate defenses, though they may arise out of the same facts,90 the distinction being pointed out in a number of cases.90 There is a direct conflict of authority as to whether a servant assumes a risk arising from the master's violation of a positive statutory requirement designed to promote safety of employment.91 In New York,

it from contributory negligence, which is

be assumed by the servant is held in the wholly a question of conduct. Some courte

followings states:

hold squarely that the doctrine is contractual, and, reasoning upon that basis, apply to

104 Ala. 508, 16 S 547; Louisville & N. R. Co.

a greater or less extent the rules applicable

v. Stutta, 105 Ala. 368, 17 S 29, 53 Am. St.

top. 127; Birmingham R. & Elice. Co. v.

the view of the courts which hold that a master's violation of a statutory duty bare

(overwriting Mobile & B. R. Co. v. Holborn,

the defense of assumption of risk with reference to such disregard of duty (see note,

of living states:

infra). It is pointed out, however, that the relation of assumed risk lacks all of the

elements of an implied contract and that the

actions arising there are ex dellecto.

Dreaer, Employer's Liability, # 82-88, 116; Jagers,

and, Torts, p. 23. The contractual theory is

rejected in the best considered modern opinions in which the tendency is to base the

determine upon the maxim "volent non in

lurla." The conflict of authorities is discus-

sed at length by Jaggard, J., in Rase v.

Minneapolis, St. P. & S. S. M. R. Co. \[Minn.\]

120 NW 360.

88. Brown v. Rome Mach. & Foundry Co.

\[Ga. App.\] # 35 EE 720; Miller v. White Bronze

Monument Co. \[Iowa\] 118 NW 518.

89. Knox v. American Rolling Mill Corp.

236 Ill. 437, 85 NE 90; Miller v. White Bronze

Monument Co. \[Iowa\] 118 NW 518. Contrributors negligence and assumption of risk are

separate and distinct defenses resting upon

different grounds. Bowen v. Pennsylvania

R. Co., 219 Pa. 405, 68 A 563. In Wisconsin,

assumption of risk has been to certain extent

tent Identified with contributory negligence,

but it is said that some degree of discrimination

nation has been made. See cases collected in

Campshire v. Standard Mfg. Co. \[Via.\] 118

NW 633.

90. For discussion of contract theory of

assumption of risk, and distinction between

assumption of risk and contributory neglig

-

assumption of risk and contributory neglig

-

gence, and their relation to facts as proved,

see Brown v. Rome Mach. & Foundry Co.

\[Ga. App.\] # 62 SE 720. Assumption of risk

and contributory negligence distinguished.

Holland v. Durham Coal & Coke Co. \[Ga.\] # 35

SE 290. Distinctions between two defenses

discussed. Johnson v. Marmouth Yeon Coal

Co. \[Ark.\] 114 SW 722. Contributory negligence and assumption of risk are separate

defenses and rest upon different basis,

though both may arise from same facts; and,

where danger is obvious, the two defenses

are tested by same standard, and differences

are theoretical rather than practical. Id.

But distinction is vital where question of

contributory negligence would be one of

fact, and assumption of risk one of law, as

where statutory duty \[s violated. Id.

See, also, & C. L. 565, and note.

91. NOTE. Assumption of risk as modified

by master's disregard of a statutory duty:

Whether a statute imposing duties upon a

master abrogates by implication the defense

of assumption of risk with regard to injuries

consquent upon disregard of such statutory

duty is a point upon which the courts are in

direct conflict. That there is no such impilation and that consequently the risk may

be assumed by the servant is held in the

following states:

Alabama: Louisville & N. R. Co. v. Banks,

104 Ala. 508, 16 S 547; Louisville & N. R. Co.

v. Stutta, 105 Ala. 368, 17 S 29, 53 Am. St.

Rep. 127; Birmingham R. & Elice. Co. v.

Allen, 99 Ala. 369, 13 S 8, 20 L. R. A. 457,

(overwriting Mobile & B. R. Co. v. Holborn,

84 Ala. 132, 4 S 146 and Highland Ave, & B.

R. Co. v. Walters, 91 Ala. 485, 8 S 357).

Towa: Martin V. Chicago R. L & P. R. Co.

118 Iowa, 148, 91 N 1034, 59 L. R. A. 698, 96

Am. St. Rep. 371; Sutton v. Des Moines Bakers

ery Co., 135 Iowa, 390, 112 NW 826.

Masasasasasasas 731. With the limitation, however, that a statute prohibiting child labor is held to imply lack of discretion on the part of such child, and hence to negative the defense of assumption of risk. Marino v. Lehmaier, 173 N. Y. 530, 68 NNE 572, 61 L. R. A. 811, and see Field v. New York, etc., R. Co., 86 Appl. Div. 148, 83 NYS 535.

Ohioi: Krause v. Morgan, 53 Ohio St. 26, 40 NNE 885; Johns v. Cleveland, etc., R. Co., 23 Ohio C. C. 442, afd. in 69 Ohio St. 522, 70 NE 1124; Cleveland & E. R. Co. v. Somers, 24 Ohio C. C. 67.

Rhode Island: Langlois v. Dunn Worsted Millis, 26 R. I. 645, 67 A 910.

Wisconsin: Kreider v. Wisconsin River Paper & Pulp Co., 110 WIs. 645, 86 NW 662; Abbott v. McCadden, 81 Wis. 663, 81 NW 1079, 29 Am. St. Rep. 910; Powell v. Ashishad Iron & Steel Co., 98 Wis. 35, 73 NW 573; Helmke v. Thilmany, 1907 Wis. 216, 83 NW 360; Thompson v. Edward P. Alti Co., 89 WIs.

533, 62 NW 527; Curry v. Chicago & N. W. R. Co., 43 WIs.

Co., 43 WIs. 665; Hoium v. Chicago, etc., R. Co., 80 WIs.

Co., 80 WIs. 299, 50 NW 89; Dugan v. Chil-

cago, etc., R. Co., 85 WIs. 609, 55 NW 894; Schnieder v. Chicago, etc., R. Co., 99 Wis. 378, 75 NW 109; Williams v. J. G. Wagner Co., 110 WIs. 446, 86 NW 157.

Such is undoubtedly the English rule. Thomas v. Quartermaine, L. R. 18 Q. B. Div. 685, 66 L. J. Q. B. N. S. 440, 57 L. T. N. 5

537, 35 Week. Rep., 555, 51 J. P. 516; Clark v. Holmes, 7 Hurlst & N. 397, 31 L. J.

Rzsch. N. S. 356, 84 Jur. N. S. 192, 10 Week.

Rep. 405; Indemaur v. Dames, L. R. 1 C. P. 274, 35 L. J. C. P. N. S. 184, 12 Jur. N. S. 432, 14 L. T. N. S. 484, 14 Week. Rep.

586, 1 Harr. & R. 243; Smith v. Baker (1891)

A. C. 325, 60 L. J. Q. B. N. S. 683, 65 L. T. N. S. 467, 55 J. P. 669; Osborne v. London

& N. W. R. Co., L. R. 21 Q. B. Div. 220; Walsh v. Whitely, L. R. 31 Q. B. Div. 371; Britton v. Great Western Cotton Co., L. R.

7 ZExch. 180, 41 L. J. Exch. N. S. 93; Tar-

month v. France, L. R. 19 Q. B. Div. 647, 57 L. J. Q. B. N. S. 7, 36 Week. Rep. 283; Caswell v. Worth, 5 El. Ak. B1 849, 25 L.

Q. B. N. S. 121, 3 Jur. N. S. 116. But see, contra. Bradley V. Granville, L. R. 19 Q. B. Div. 483, 56 L. J. Q. B. N. S. 501, 67 L.

N. S. 268, 36 Week. Rep. 63, 51 J. P. 822; Webb v. Ballard, L. R. 17 Q. B. Div. 122, 55 L. J. Q. B. N. S. 395, 54 L. T. N. S. 532, 34 Week. Rep. 455, 60 J. P. 597, and opinion of Lord Esher in Thomas v. Quartermaine, supra.

On the other hand, many states hold that violation of a statutory duty bars the defense of assumption of risk, as follows:

Arkmannst: Johnson v. Mammouth Vein Coal Co. \[Ark.\] 114 SW 722 (overruling Patterson Coal Co. v. Poe, 81 Ark. 349, 98 SW 838);

Choctaw, O. & R. Co. v. Jones, 77 Ark. 567, 12 Cur. Law. Master and Servant $ 3F.

743

necessary risks are assumed as a matter of law; whether other risks are assumed is a question for the jury." Negligence of an employee for whose conduct the master is made responsible by statute is not an assumed risk."

building Co., 41 Wash. 164, 82 P 1090: Daftron v. Majestic Laundry Co., 41 Wash. 65, 82 P 1089: Gustafson v. West Lumber Co., 42 S8 483. Mississippi. Buckener v. Richmond \[Vash.\] 97 P 1094: Whelan v. Washington & D. T. Co., 72 Miss. 873, 18 S 49. VirLamber Co., 41 Wash. 153, 88 P 98; Erickson v. McNeeley & Co., 41 Wash. 509, 84 P 3 P, 111 Am. St. Rep. 1006; Thomson v. Tissaulton v. 138, 867 588; Rector V. Bryant Lumber & Shingleu., 45 Wash. 253, 84 P 588; Rector V. Bryant Lumber & Shingleu., 45 Wash. Co., 41 Wash. 565, 84 P 7; Johnson v. Far West Lumber Co., 47 Wash. 492, 92 P 247; Pachlo V. Wilkeson Coal & Coke Co., 46 Wash. 422, 90 P 436; Miller v. Union Mill Co., 45 Wash. 199, 88 P 130; Nottage v. Sawmmill Phoenix, 183 Y 979.

Certain Statutes are held to more or less expressly bar the defense of assumption of risk, are decided in harmony risk as to certain employees. Bryce v. Burlington C. R. & N. R. Co., 119 Iowa, 274, 93 S2Nv 275; Kanasas City M. & B. R. Co., 126 P 496, 83 L 26, and Federal Lead Fillippo, 138 Ala. 487, 35 S 457; Mobile, etc., R. Co. v. Blomberg, 141 Ala. 258, 37 S 855: Ing Ing the same contention, are in direct con-Taylor v. Boston & M. R. Co., 148 Mass. 390, 74 NE 591; Winkler v. Philadelphia & R. R. Co., v. Nor-Co., 4 Penn. (Dell.) 80, 53 A 90; Missouri K. Gate, 72 C. C. A. 865, 141 P 247, 6 L 8, R. A. (N. & T. R. Co. v. Bailey \[Tex. Civ.\]. 115 S). 881, to the same effect, is decided upon SVV 601; Texas Mexican R. Co., 77. Trierina general principals of law. The federal cases \[Tex. Civ. App.\] 111 SVV 239; El Paso, etc., & Co., 130 P 957, and Narramore v. Cleve-Rep. 610, 100 SVV 171; Perrotta v. Richmond & C., 84 T. L. R. Co., 87 C. C. A. 459, 86 Brick C., 123 App. Div. & 262, 108 NTS 10; 7 P 298, 48 L 2 R. A., 85, which are in direct endorson v. Milliken Broe., 123 App. Div. & conflict with the above cases and support 614, 108 NTS 61; Bolen-Darnall Co. v. the contention that the statute implied by Villiliano, 7 Ind. 648, 104 SWV 87; Klotz v., 887, 107, 116 Dwwer & Min. Mach. Co., 136 Wis. 107, 116 NWV 710; Chicago, G. W. R. Vrotty (C. C. A.) 141 P 319; 11aend Steel Co. v. Kachwin. & 131 P 319; 11bend Steel Co. v. Kachwin. & 131 P 219. Of such effect is the federal statute requiring the use of automatic couples upon cars used in inter-state commerce (Act March 2, 1893; Johnson v. Southern P. Co., 196 U. S. I, 49 Law. Ed. 363, rvg. 54 C. C. A. 598, 117 F 462; Chelmemer v. Buffalo R. & P. R. Co., 205 U. S. I, 51 Law. Z61, 587, 207 Pa 198, 56 A 417; Denver & R. G. R. Co., 57 Arfill, 68, 0 C. A. 464, 129 P 347; Donner v. Baltimore & N. T. R. Co. \[C. C. A.\] 165 F 869; Cleveland, etc., R. Co. v. Curtis, 1
**Master and Servant $ 3F.** **12** Cur. Law.

\_Dangers incidental to business.\_See 10 C. L. 751.--The servant assumes the risks ordinarily incident to the employment in which he engages,94 and this is the rule though the employment is necessarily dangerous.95 Ordinary risks are such as arise from the permanent, open, visible conditions of the master's business 96 as it is being

**atatute where plaintiff, wheeling hand truck,**

\*\*allpped on defective floor and fell. Kneze-

**vich v. Bush Terminal Co., 111 NYS 255.**

**93. Assumption of risk not available in action by brakeman for injuries caused by negligence of engineer under Code, & 2071.**

**Rhodes' O. Des Motions, etc., R. Co. (Towan) 115 NYS 503.**

**85 NNE 849.**

\*\*Mue-driver in mine was of-

\*\*as defense in action by brakeman for injuries caused by negligence of engineer, un-

\*\*him to be dangerous, and was injured by

**94.**

**Haneman v. Western Meat Co. \[Cal.\]**

**Appl. 10.**

**95.**

**Wernside V. Peterson, 43**

**Colo. 838.**

**96 E26; Stewart de Co. v. Harmon \[LMd.\]**

**10 A333; Cernicke v. Ehrlich, 212 Mo.**

**386.**

**111 SWV 14; Sittel v. Wilhelm Co., 220**

**220 Fa. 844.**

**69 A 996; Wilson V. New York, etc.,**

**R. Co. \[R. I\]**

**69 A 364; Western Union Tel.**

**Co. v. Burton \[Tex. Civ. App.\]**

**115 SWV 364.**

**M Ordinary and necessary risks, Leggert v.**

**Cenrat Bldg Co., 123 App. Div. 840, 108 NYS 104.**

**604.**

**Inherent risks. Mansell v. Conrad, 125**

**App. Div. 634, 109 NYS 1079.**

**Indental risks are assumed, whether known or not. Davis**

**SWV 592.**

\*\*Rinfroad employee assumes or-

**Adm'x v. Rutland R. Co. \[Vt.\]**

**71 A 724.**

**Servant assumes all ordinary risks and those**

**which are open and obvious. Truckers' Mfg.**

**& Supply Co. v. White, 108 Va. 147, 60 SE 630.**

**Servant engaged in his regular work assumes ordinary risks and is under same duty of observation with a view of informing himself of dangers to which he may be subjected. Johnson v. Desmond Chemical Co., 152 Mich. 84, 15 Det. Leg. N. 138, 115 NWV 1043.**

**95.**

**Ordinary risks attendant upon dangerous work of tearing down building assumed. Ballard & Ballard Co. v. Lee's Adm'r \[Ky.\]**

**115 SWV 732.**

**The risks assumed by an employe comprise those hazards or dangers which observation brings to his knowledge; and, if the employment is more than usually hazardous, the care exercised by the employee must be in proportion to the danger involved. Wallace v. Spellacy, 8 Ohio N. P. (N. S.) 41.**

**96.**
**Risks held incidental and assumed:**

**Servant whose duties required him to select sacks of coffee from pliles laid in rows assumed risk of pile falling when he knew tendency of sacks to settle and bulge. Bradley v. Forbes Tea & Coffee Co., 213 Mo.**

**820, 111 SWV 919.**

\*\*Risk of overhead bank of earth falling, where it was successively undermined and top pred off, assumed by eem-

**mom laborer. Logstro v. Central Bldg. Co., 123 App. Div. 840, 108 NYS 604.**

**Common laborer injured while inserting paper into**

**rollers on foreman's order held to have assumed risk, rollers being open and danger obvious. Barrett Mfg. Co. v. Marsh, 137 Ill. App. 110.**

\*\*Laborre employed to carry materials in building in course of construction assumed risk of stepping on loose and un-

**supported plank temporarily laid on terra**

**cotta floor for use of workman. Elsner v. Horton, 200 Mass. 507, 86 NE 892.**

\*\*Where fineman continued in defendant's employment with knowledge of fact that it made no inspection of trollers poles other than that

\*\*the same thing is that the

**12** Cur. Law. **MASTER AND SERVANT SS 3F. 745**

conducted at the time the servant enters the employment," which are presumed to be known to and undertaken by the servant when he enters the employment." The occasional negligence of fellow-servants is an assumed risk within the meaning of this rule," but not the risk arising from a servant's incompetency.**1** Negligence of the master," or of one who is, by virtue of statute or common law, a vice-principal," is not an assumed risk. Unusual or extraordinary risks, unknown to the servant,4

mental capacity known to master. Lauth v., 1. Klooski v. Railroad Supply Co., 258 Ill. Harrison-Switzer Mill. Co., 140 Ill. App. 199. 146, 85 NE 274. Incompetency of another servant. known to master but not to another coined by breaking of "breakers" in rolling employe, is not assumed risk. Christy v., **all**, where such breaking was well known Schwartzchild & Sulzberger Co. \[C. C. A.\] to him to be a normal consequence of its functions and ordinarily attended with no danger. Thomas v. Republic Iron & Steel Co., 140 Ill. App. 158. The servant assumes the risk of unusual accidents which cannot be guarded against in the erection of new buildings. Where wheel borrow used by another workman slipped in snow-covered gangway and precipitated lump of coal on thatoff, he was held to have assumed risk. William Grace Co. v. Gallagher, 137 Ill. App. 217. 97. Servant assumes risks involved in master's methods when he enters employment which are known to him, Lynch v. Saginaw Valley Trac. Co. \[Mich.\] 15 Det. Leg. N. 444, 116 NWP 923. Liability of dynamite to explode at wrong time and place le risk assumed by one entering employment where it is used. McEinju v. Jones & Laughlin Steel Co., 219 Pa. 644, 69 A 90. Where servant had worked for defendant 30 years and was familiar with method of coupling cars in elevator and with signals, he assumed risk of going between cars when signal was set that cars were ready for switch engine. Manoney v. Illinois Cent. R. Co., 131 Ill. App. 568. The negligence of the employees of a lessee railroad company is one of the risks assumed by an employee of the lessor company. Defendant owning and maintaining a num-ber of tracks which were leased to different railroads is not liable for death of its servant through act of lessee railroad. Chicago & Western Indiana R. Co. v. Mills, 131 Ill. App. 625. 98. Servant assumes incidental danners existing when he enters employment. Wilson v. Escanaba Woodenware Co., 152 Mich. 540, 15 Det. Leg. N. 216, 116 NWP 198. Employey by entering employment assumes all obvious and apparent dangerages incidental to business. Young v. Randall \[Mc.\] 71 A 647; Bowen v. Pennsylvania R. Co., 218 Pa. 405. 68 A 963. An implied term of contract of employment is that work will be done with permanent conditions then existing; master is not bound to change such confidence, though they could be improved. McKenna v. Gould Wire Cord Co., 197 Mass., 406, 83 NE 1118. Servant entering or continuing in em-ployment assumes existing known risks and cannot recover because there are safer methods than that used in master's business. Lynch v. Saginaw Valley Tract, Co. \[Mich.\] 15 Det. Leg. N. 444, 118 NWP 982. Experienced switchman assumed obvious risk of going to work in yardse which were not liable. Texas v. Kansas City Southern R. Co., 121 La. 885, 46 S 909. 90. See ante, & 3E, Negligence of Fellow-Gervants. 137 Ill. App. 158. 1745

**13** Cur. Law. **MASTER AND SERVANT SS 3F. 745**

conducted at the time the servant enters the employment," which are presumed to be known to and undertaken by the servant when he enters the employment." The occasional negligence of fellow-servants is an assumed risk within the meaning of this rule," but not the risk arising from a servant's incompetency.**1** Negligence of the master," or of one who is, by virtue of statute or common law, a vice-principal," is not an assumed risk. Unusual or extraordinary risks, unknown to the servant,4

mental capacity known to master. Lauth v., 1. Klooski v. Railroad Supply Co., 258 Ill. Harrison-Switzer Mill. Co., 140 Ill. App. 199. 146, 85 NE 274. Incompetency of another servant. known to master but not to another employe, is not assumed risk. Christy v., **all**, where such breaking was well known Schwartzchild & Sulzberger Co. \[C. C. A.\] to him to be a normal consequence of its functions and ordinarily attended with no danger. Thomas v. Republic Iron & Steel Co., 140 Ill. App. 158. The servant assumes the risk of unusual accidents which cannot be guarded against in the erection of new buildings. Where wheel borrow used by another workman slipped in snow-covered gangway and precipitated lump of coal on thatoff, not his fellow-servant. Swann-William Grace Co. v. Gallagher, 137 Ill. App. 217. 97. Servant assumes risks involved in master's methods when he enters employment which are known to him, Lynch v. Saginaw Valley Trac. Co. \[M

**746**: **Master and Servant $ SF.** **12** Cur. Law. or which are encountered, under direction of the master, outside the service which the servant was hired to perform,5 or which ordinary care in the performance of his duties would not disclose,6 are not assumed.

Footnote 12: The author is grateful to the anonymous referee for his comments.

\_Known or obvious dangers._Boe 10 C. L. 788_-Risks which are actually known to the servant,7 or which are so obvious * that a person of the same age, capacity and ex-

perience, exercising due care, would have known of them," are also assumed by a

knowing danger of explosion, assumed risk

Pipe Co. \[N. J. Law\] 88 A.1073. Danger of get-of-golng Into trench to put out fire. United States Cement Co. v. Koch \[Ind. App.\] 85

NE 490.

S. Obvious risks assumed, Wilson v. Escanaba Wooden-Ware Co., 152 Mich. 540, 15

Det. Leg. N. 216, 116 N NVV 198. Open and obvious risks which servant has opportunity to observe, assumed. Bowen v. Pennsylvania R. Co., 219 Pa. 405, 68 A 963. The rule that servant assumes obvious risks applies as well to dangers arising in course of the employment as to those existing at the time of commencement of the relation. De Kaliands v. Washtenaw Home Tel. Co. \[Mich.\] 871. No recovery for death of employee en-15 Det. Leg. N. 337, 116 N NVV 564. All risks and hazards that are open and apparent are assumed, whether they are necessarily incident to the service or otherwise. United States Cement Co. v. Koch \[Ind. App.\] 85 NE

Risks Heid Obvious and Assumed: Manner of leading vessel. Singleton v. Merchants & Minesr Transp. Co. \[Ga. App.\] 61 SE SE 881.

Employe pushing car assumed risk of falling into hee in platform on tresite which v. Chattanooga Elec. R. Co. \[Tenn.\] 108 SW was obvious and of which employs had been warned. Priddy v. Black Betsey Coal & Minesr Op. \[Va.\] 61 SE 163. Danger of get-of-ting fingers mangled in maehne. Wilson v. Logan, 138 Ill. App. 204. Danger of being struck by tree which had to be removed in course of excursion in marray was assumed by quarryman. Feola v. Orange County Road Const. Co., 114 NYS 70. Employe assumed risk of injury due to slippery condition of numbers and tresite and tools caused by snow and ice, the conditions being obvious. Northern Trac Co. \[Tox. Cv.\] 18 NE 432. Farm hand assumed risk of falling into silo opening in barn. Smith v. Lincoln, 198 Mass. 886, 84 NE 498.

Role in m plaster on wnil of freight elevator shafft. Injury caused by employe allowing foot to project over floor of elevator, getting it caught in hole. McDonald v. Dutton, 198

Mass. 398, 84 NE 434. Operating windlines

with only one helper. Lake v. Shangang

Sem v. Iowa Cent. R. Co. \[Iowa\] 117 NNV

Furnace Co. \[C. C. A.\] 160 F 887. Mangle

operator got hand enght between drum and road. Wallace v. Haines \[N. J. Law\] 71 A

44. Risk of operating exercises by placing hand on one of them. Henschehl v. Union Pac. R. Co. \[Kan.\] 96 P 857. Servant assures risk of using ordinary simple tools and simple methods of work readily understood. Golden v. Ellms \[Mc.\] 71 A 649. Two brick-carrying platforms were operated side by side in building under construction. Plaintiff, loading platform at bottom, was struck by brick which fell from barro at top. Kelly v. Cowan \[Wash.\] 96 P 152. Operator of wood-working machine assumed risk of working with defective pattern which caused his fingers to come in contact with revolving knives, danger being obvious. Yunkes v. Racine-Satiety Co., 135

VWs. 81, 115 N NVV 348. Stevedore assumed obvious risk of trying to handle and manke fast hawser without assistance, being pulled off wnard and drowned. Merchants & Minesr' Transp. Co. v. State \[Mc.\] 70 A 413. Plaintiff and others pulled over frame supperfine drop hammer, one guy rope being down; foil on plaintiff, Laraey v. East Jersey

Pipe Co. \[N. J. Law\] 88 A.1073. Danger of get-ting hand enough between cylinders of calen-dar machine obvious and assumed by servant where he was told be coul operate that machine or go home, Mika v. Passale Print Works \[N. J. Err. & App.\] 70 A 327. Brake-Det. Leg. N. 216, 116 N NVV 198. Open and obvious risks which servant has opportunity to observe, assumed. Bowen v. Pennsylvania R. Co., 219 Pa. 405, 68 A 963. The rule that servant assumes obvious risks applies as well to dangers arising in course of the employment as to those existing at the time of commencement of the relation. De Kaliands v. Washtenaw Home Tel. Co. \[Mich.\] 871. No recovery for death of employee en-gaaged in blowing off water and steam from locomotive boiler caused by defect in blow-up.

off pipe used by him which was obvious, where he could have selected or obtained one which was not defective. Achiison, etc., R. Co. v. Stone, 77 Kan. 642, 95 P 1049. Street

car conductor assumed risk of striking head of leading vessel. Singleton v. Merchants & Minesr' Transp. Co. \[Ga. App.\] 61 SE SE 881.

where he must have observed the pole during his work and known of its location. Moore

ing into * \[12\] "Servant who continues in the employment with such actual or implied knowledge of the danger." Dangers which are as well known to the servant as to the master, or which the servant has equal opportunity with the master to observe, are assumed."

- \[13\] "Servant's experience in swelling barrels by 647. Servant assumes such friska as he must "turning stream into them when filled with necessary have known "In the ordinary dis-water, charged with knowledge of danger of his duties," not such as he ought to "explosion from turning on too much to have known "In the exercise of ordinary stream. Stutzel v. A. Wilhelm Co., 220 Pa. care and caution," Texas & N. O. R. Co., 554, 69 A. 896. 896. 897. 898. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 900. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 900. 899.

Risks which are unknown to the servant and which ordinary care in the discharge of his duties would not have disclosed and which are not incidental, are not assumed.12

Bottom \[Vt.\] 70 A 560. Defective condition 11. The servant may rely on superior of mast of derrick assumed when servant knew to that, had helped fix it, and continued to his senses and observe natural laws, and: work until it fell on him. Wollington v. \[Missouri K. & T. R. Co. (C. C. A.) 161 F to the master, or are obvious, he assumes 713. Brekeman assumed risk of working the risk. Meliente v. Indianapolis Northern on yard engine without feetoboard or srab-Trac. Co. \[Ind. App.\] 8% NE 422. If servant's: from when he had worked on it several weeks. Vllison v. New York Cent. & H. R. \[Tra.\] 71 A 183. Fireman who had worked v. Illinois Steel Co., 233 Ill. 301, 84 NE 273. for years in engine cabs with knowledge that plans water gauges were not enclosed in wire screens assumed risk of injury from wheel trials. Brownwood Oil IIII v. Stub-explosion of gauge, though he had been told by foreman that gauges were made by new process and would not explode. Chicago is & Q. R. Co. v. Griffin \[C. C. A.\] 167 P 912. Mason's helper who knew boards had been removed from seafeld, and knew floor ought & of obstructions, cinder to be wilder, assumm risk of falling when he continued working without complaint. Schneider v. Philadelphia Quart Co., 220 Pa. \[R. Co. v. Click \[Kan.\] 98 F 796. Employing from location of semaphore at place where he could not see it where he had of peculiar accident being better known to passed it every other day for 2 months. \[R. Co., 128 Vernment Co., 113 NYS 24. Risk of injury by App. Div. 397, 112 NYS 872. Experienced operator of gim stand assumed risk of con-mining to operate it with knowledge of its defective condition. Continental Oil & Cot-ton Co. v. Scott \[Tex., Civ. App.\] 112 SW in a yard was blown by a hurricane and 107. Employive who knew location of boiler, which exploded, and had worked in shop 2 Bennb, 139 Ill. App. 628. yers, assumed risk of dangerous arising from its position and construction of shop. Ware by v. Ithaca St. R. Co., 125 App. Div. 328, 109 NYX 426. Miner who, on failure of timber-men to do so, undertook to proof known by him to be dangerous, held to have assumed risk. Lumbanghl Coal Co. v. Grenard, 133 Ill. App. 27. Employive in running plant whose duties required him to stand 50 or 60 times a day with one foot on trousth and one on tub, 4 feet apart, and who continued in service without objection, assumed risk of slipping and failure into tnb. Buena Vista Extract Co. v. Hickman, 108 Va. 665, 62 SE 804. Section hand assumed risk of using car with defective brakes when he continued in service with knowledge of defects. St. Louis & S. F. R. Co. v. Mealman \[Kan.\] 97 P 381. Switchmann would assume risk of defect in track by continuing in service to year with knowledge and without any prom-ise to repair. St. Louis, etc., R. Co. v. Man-gan \[Art.\] 112 SWV 168. Bruckeman assumed risk of getting his hand caught in making coughing with link and pin where he knew condition of ink and pin, method of use, and had never objected to them, though he knew danger. Louisville & N. R. Co. v. Stan-Hill, 32 Key, L. R. 104, 107 SWY 721. Servant killed by falling into shaft-pit on account of alleged slippery floor held to have assumed risk where he had full opportunity to know conditions and continued in service without complaint. Steffen v. Illinois Steel Co., 140 III. App. 551. Experienced stone mason assumed risk of use of defective hammer which he had seen and knew was dangerous, piece being chipped off which struck him in eye. Golden v. Ellis \[Mc.\] 71 A 649. \[M.\] 71 A 649.

# Master and Servant $ SF. 13 Cur. Law.

Whether a particular risk was known or ought to have been known to the servant,

29th Leg. p. 386, c. 163, that employee does

usually covered it had been removed. Knox not assume risk of defect or danger known

v. American Rolling Mill Corp., 236 Ill. 487, to him "where a person of ordinary care

36 NE 90. In the absence of notice or warn-would have continued in the service with

ing, employees riding on cars in performance

the knowledge of the defect and danger."

of duties do not assume risk of injury from Currie v. Missouri & T. R. Co. \[Tex.\] 108

48 structures maintained so close to the track

SW 1167.

**Risk hefd not to have been assumed:**

cargo, etc., R. Co., 104 Minn. 1, 115 NW 949.

Experienced workman did not assume risk

Common miner shoveing on floor of stope

of injury from defect in machine about

himired by rock rolling down upon him.

which he knew nothing. Rowell v. Gifford,

Straton Cripple Creek Min. & Developing

200 Mass. 546, 86 NE 901. Employive did not

Co. v. Ellison, 42 Colo. 498, 94 P 303. Em-

assume risk of breaking of defective steam

ploye installing electric equipment did not

pipe when it did not appear that he knew

assume risk of injury from nearby live wire

of the defect. De Witt V. Fiorlston Pulp &

when he did not know wire was charged and

Paper Co., 7 Cal. App. 774, 96 P 297. Hid-

was relying on assurance that current would

den danger from noiseless revolving shaft

be turned off. Latimer v. General Elec. Co.

in dressing room, usually boxed, not as-

\[S. C.\] 62 SE 438. Plaintiff did not assume

earned risk. Flynn v. Prince, Collins &

risk of pile of ties falling when he had no

Marston Co., 198 Mass. 24, 84 NE 331. Em-

reason to suppose another would be thrown

ploye killed by fish of mine roof did not as-

upon pile by orders of teoreman. Sambos v.

ume risk, having no knowledge of condition.

Cleveland, etc., R. Co. \[Mo. App.\] 114 SW 567.

tions or danger. Lanne v. U, S. Gypsum Co.,

Complaint held not to show that plaintiff

110 NYS 496. Brackeman did not as matter

knew and appreciated danger arising from

of law assume risk of being struck by eye

change in machine made by foraman. Flow-

shed near track, though he knew its location

ers v. Louisville & N. R. Co. \[F12.\] 46 S 718.

in a general way, never having made close

Employe not chargeable with notice of de-

examination. Collins v. Mineral Point & N.

feet in shaft not visible when shaft was re-

R. Co., 136 WIs. 421, 117 NW 1014. Plaintiff

,within the meaning of these rules, is ordinarily a question of fact \[18\] to be deter-

. 13. Whether Risk Assumed Held Question ashea up an Incline continued his work aid for Jarry, Miscellaneous illustrations: Brick -- though an engine was standing in close wall in course of construction fell on em-

proximity, and was caused to fall by confuploye at work near it. Nealon Vitrified

son resulting from the escape of steam from Brick Co. v. Mussuman \[Kan.\] 99 P 236.

the engine. Chicago, etc., R. Co. v. Cukra-

Whether plaintiff domestic, assumed risk of

vony, 132 Ill. App. 867. Plaintiff, "trouble going through hole in pcrch fleer covered

shooter" for telephone company, had been with thin boards. Fearon v. Mullins \[Mont.\]

sent might before to tie down wire to pre-

98 P 650. Whether plaintiff assumed risk

vent contact with wire of another company.

of being struck by cable used to hual logg.

Next morning he went past place to do work

Howland v. Standard Millins & Logging Co.

nearby and was injured by shock caused by

\[Wash.\] 96 P 686. Whether driver assumed

contact with another wire. Texarkana Tel.

risk of breaking of chain used to hitch team

Co. v. Pemberton \[Ark.\] 111 SW 257. Whethet

to cable. Martin v. Gould, 103 Minb. 467.

er employe knew or ought to have known

115 NW 276. Whether common laborer

that telephone pele which he had to climb

wheeling supplies for masons at work in

was rotten and unsafe. Jackson Fibre Co.

building assumed risk of defective construc-

v. Meadows \[C. C. A.\] 159 F 110. Whether

tion of passageway used by him. Johnson

telephone lmenman assumed risk of injury

v. Lindahl \[Minn.\] 118 NWV 1009. Mill em-

from wire of lighting company maintained

ploye sent to repair pump in engine room

heard telephone wires. Drown v. New Eng-

held not to have assumed risk of falling into

land Tel. & T. Co. \[Vt.\] 70 A 599. Whether

exexexation in floor as matter of law. Spar-

telegraph lineman ought to have known

119 V. U. S. Sugar Co., 136 Wis. 509, 117 NWV

that light wires on pole where he was test-

1056. Common laborer injured by sudden

flow of cement through conduit into bin,

v. Postal Tel. Cable Co. \[Ind. App.\] 86 NE

produced by use of stick by him, no other

871. Whether man shoveling coal into

means being provided. Vaughn v. Glens

hoist knew and assumed risk of "ineompe-

Falls Portland Cement Co., 59 Misc. 230, 112

tency of men who controlled hostat. Bartley

NYS 240. Where minor employee knew or

v. Boston & N. R. Co., 198 Mass. 163, 83 NE

ought to have known and appreciated dan-

1093. Whether miner assumed risk of in-

ger of falling into pit where engine was,

supplementary and drunkenness of watchman,

which was improperly guarded, the being

and whether fire was proximately caused by

only narrow passage between pit and other

machinery. Lunde v. Cudahy Packing Co.

C. A.\] 159 F 593. Whether logger knew and

\[Iowa\] 117 NWV 1068. Whether plumber9

asumed risk of Incompetency of engineer in

helper was bound to know that inch of mun-

charre of donkey engine. Sevwald v. Hard-

riatile eaid and piece of mine in beer bot-

the would cause explosion. Buckley v. Gar-

Injuries 10 mane, excavations, etc.: Min-

den City Co., 111 NYS 23. Whether plaintiff,

injured by reason of defects in windmill

Coal Co. v. Murphy, 108 Va. 528, 62 SE 268.

platform on which he was required to stand

In oiling machinery, knew its condition.

line, where earth fell on him. Holgar v.

Miller v. Chicago, etc., R. Co., 103 Minb.

143, I15 NWV 269. Whether boy of 13 as-

man sent to do dangerous work in mine,

sund risk of falling over defective plat-

stiff. Kastreka v. Hobart Iron Co., 103 Minb.

blom v. Winslow Bros. & Smith Co., 198

337, 114 NWV 949. Whether miner assumed

Mass. 114, 84 NE 301. Plaintiff dug under

risk of using defective, slow burning fuse in

concrete "manhole" to lower it into hole ac-

loading. Nustrom v. Shenango Furnace Co.,

cording to instructions. Part of concrete

105 Minn. 140, 117 NWV 480. Miner engaged

structure fell upon him. Ward v. Edison

in dangerous work of timeframe entry to

Ellee. Illuminating Co., 124 App. Div. 22, 108

NYS 608. Whether boy of 1 mined by reference to the age, capacity, intelligence and experience of the employe \[14\]

egin{tabular}{l l l} assumed. Meshishnek v. Seattle Sand & & \\ Gravel Co. \[Wash.\] 99 P 9. Whether operator of crossment saw assumed risk of being struck by block thrown by saw which was & \\ msaured. O'Connell v. Smith \[Iowa\] 118 & \\ NWP 266. Whether boy of 18 assumed risk & \\ of getting fingers out off by righwer when & \\ cleaning out sawdust under saw with hands & \\ under direction of defendant. Master v. Villa & \\ laume Box & Lumber Co., 104 Minn. 186, 116 & \\ NVW 207. Whether boy of 15 assumed risk & \\ of trying to shift belt in dangerous manner & \\ in which he had seen others do it, he having & \\ had no warning or instruction and shifting & \\ of belt being a part of his work. Lehto v. & \\ \\end{tabular}

egin{tabular}{l l l} Atlantic Min. Co., 152 Mich. 412, 15 Det. Leg. & \\ N. 242, 116 NW 405. Evidence did not show & \\ as matter of law that several knew before & \\ unsafe. Hollis v. U. S. Glass Co., 220 Pa. 49, & 69 A 58. Whether elevator operator knew & \\ or ought to have known danger of operating & \\ aimed risk of injury owing to & \\ after one of two cables had broken without & \\ safety device. Wilson v. Escanaba Wooden- & \\ \\end{tabular}

egin{tabular}{l l l} war Co., 152 Mich. 404, 15 Det. Leg. N. 216, 116 NW 188. Ordinary workman held not as & \\ matter of law to have assumed risk of in- & \\ jury from fall of Gerrek of faulty construction and defective equipment. Smith v. & \\ Keenyon & Co. \[R. I.\] 68 A 725. Plaintiff & \\ held not to have assumed as matter of law & \\ risk of patent ladder & \\ \\end{tabular}

egin{tabular}{l l l} war Co., 152 Mich. 404, 15 Det. Leg. N. 216, 116 NW 188. Ordinary workman held not as & \\ enterc, R. Co., 152 Mich. 276, 15 Det. Leg. N. 231, 116 NW 429. Freight conductor caught be & \\ & \\ \\end{tabular}

egin{tabular}{l l l} war Co., 152 Mich. 404, 15 Det. Leg. N. 216, 116 NW 429. Freight conductor caught be \\ & \\ \\end{tabular}

egin{tabular}{l l l} war Co., 152 Mich. 404, 15 Det. Leg. N. 216, 116 NW 439. Freight conductor caught be \\ & \\ \\end{tabular}

egin{tabular}{l l l} war Co., 152 Mich. 404, 15 Det. Leg. N. 216, 116 NW 449. Freight conductor caught be \\ & \\ \\end{tabular}

egin{tabular}{l l l} war Co., 152 Mich. 404, 15 Det. Leg. N. 216, 116 NW 429. Freight conductor caught be \\ & \\ \\end{tabular}

egin{tabular}{l l l} war Co., 152 Mich. 404, 15 Det. Leg. N. 216, 116 NW 439. Freight conductor caught be \\ & \\ \\end{tabular}

egin{tabular}{l l l} war Co., 152 Mich. 404, 15 Det. Leg. N. 216, 116 NW 449. Freight conductor caught be \\ & \\ \\end{tabular}

egin{tabular}{l l l} war Co., 152 Mich. 404, 15 Det. Leg. N. 216, 116 NW 429. Freight conductor caught be \\ & \\ \\end{tabular}

egin{tabular}{l l l} war Co., 152 Mich. 404, 15 Det. Leg. N. 216, 116 NW 429. Freight conductor caught be \\ & \\ \\end{tabular}

egin{tabular}{l l l} war Co., 152 Mich. 404, 15 Det. Leg. N. 216, 116 NW 439. Freight conductor caught be \\ & \\ \\end{tabular}

egin{tabular}{l l l} war Co., 152 Mich. 404, 15 Det. Leg. N. 216, 116 NW 449. Freight conductor caught be \\ & \\ \\end{tabular}

egin{tabular}{l l l} war Co., 152 Mich. 404, and the facts and circumstances of the case. But mere knowledge of a defective condition will not alone charge the servant with the assumption of a risk. It must also appear that he knew and appreciated the danger arising from the defect.11 Where the danger is obvious, knowledge and appreciation of it will be presumed.11

Footnote 11: The _Hersers_ and _Hers_ are the only ones that are the ones that are not in the same way.

on stand, held for jury. Doolan v. Pocasset

tency or bad habits of "boss repaired" would Mfg. Co., 200 Mass. 200, 85 NE 1055. Whether

not defeat recovery for injury caused by him plaintiff assumed risk of buckets of ditching

unless he knew or ought to have known that machine falling upon him held to depend

danger was to be apprehend therefrom.

on whether he was employed as expert to keep machine in repair or merely as assist-

App. J08 SV9 88. Plaintiff, at work at 40 feet

ant in operation of it whose duty it was to

make repairs when needed. Engler v. La

Crosse Dredeling Co., 105 Minn. 14, 117 NW

by statute, wheel having broken and a piece

242. Children over 14 presumed to have

capacity to comprehend obvious dangers. As

Flour City Oranmental Iron Works \[Minn.\]

to children between 14 and 7 there is disputable presumption of incaparity, and burden

operating saws did not assume risk of injury

is on him asserting capacity to prove it.

Goodwin v. Columbia Mills Co. of Columbia

bench unless he knew and appreciated the

\[S. C. I 61 SE 390.

15. Pennsylvania R. Co. v. Forstall \[C. C. A.\] 155 F 833; Flowers v. Louisville & N. R.

Go. \[Fla.\] 46 S 718; Baltimore, etc., R. Co. v.

etc., R. Co. \[Walker, 41 Ind. App. 588, 84 NE 736; Herlihy

of statutory warning device on elevator trap

v. Little, 200 Mass. 284, 86 NE 294; Elms v.

door not assumed risk by employe, apparent-

Southern Power Co., 79 S. C. 502, 60 SE 1110;

ly mentally deficient, who had worked only

Missouri, K. & T. R. Co. v. Adams, 42 Tex.

two days, defect not being at once observa-

Civ. App. 274, 114 SW 453. Servant assumed

ble. Doolan v. Pocasset Mfg. Co., 200 Mass.

risk of working in trench while loaded blast

200, 85 NE 1055.

was being taken out only if he knew and

Whether inexperienced operator of metal

appreciated the danger or ought to have

danger or operating it as directed, for jury.

done so. Polo v. Pallisade Const. Co. \[N. J.\]

danger of operating it as directed, for jury.

Err. & App.\] 10 A 161. Only such dangers

Clemens v. Gem Fibre Package Co. \[Mich.\]

are assumed as are appreciated or ought

15 Det. Leg. N. 574, 117 NW 187. Mere fact

reasonably to be appreciated by employe

that experienced operator of metal stamp-

under circumstances. Kroeger v. Marsh

Bridge Co. \[Iowa\] 116 NW 125. Mere knowl-

if he put it under die when he put his foot

edge that elevator did not work properly

or treade did not show that he assumed

did not charge operator with assumption of

risk of operating it as directed. Id. In-

risk of its falling. Byrne v. Marshall Field

experienced man who did not understand

& Co., 237 Ill. 384, 86 NE 748. Servant does

English did not assume, as matter of law,

not assume risk where he knows premises

risk of pole which was being erected falling

are defective but does not know of danger

on him. DI Earl v. J. W. Bishop Co., 199

and danger is not apparent. Marshall v. St. Louis S. W. R. Co. \[Tex. Civ. App.\] 107 SW

caught in belt of thresher engine not obvi-

888. Employe does not assume risk of work-

ing with defective appliances unless he

experience. Maxson v. J. I. Case Threshing

precrates danger or it is obvious. Bush v.

Wood \[Cal. App.\] 97 P 709. Mere knowledge

Children do not assume risks incidental

of condition will not charge servant with

to operating machines unless they under-

assumption of risk unless he appreciates

danger or by reason of his capacity and ex-

ted. Saller v. Friedman Bros. Shoe Co.,

perience ought to appreciate it. Kerker v. 150 Mo. App. 712, 109 SW 794. Though minor

Bettendorf Metal Wheel Co. \[Iowa\] 118 NW

know of defect in floor, he did not assume

306. Common laborer excavating tunnel for

risk of "buggy" being overturned on ac-

sever did not assume risk of cave-in- unless

count of it, unless he appreciated that this

be appreciated the danger, even though phy-

danger might result. American Sheet &

sical conditions were apparent. Millen v.

**754** **Master and Servant $ 3F.** **12** Cur. Law.

_Reliance on care of master._See 10 C. L. 759__--In the absence of knowledge to the contrary, the servant has a right to rely upon the assumption that the master has properly performed the various duties imposed upon him by law,17 and need not make an independent inspection or examination of his appliances or place of work.18 In other words, negligence of the master or of his representatives is not one of the

ive sledge and burred prosser pins. He did it was reasonably safe, and did not assume risk of chip from pin flying into his eye. Pelow v. Oil Well Supply Co. \[N.Y.\] ing was obvious. Hilgar v. Walla Walla 68 NE 812. Girl 143 years of age did not as matter of law assume risk of working in factory without free escapes as required by that support the people had been provided and studied of lack of such escapes. Arnold v. National Starch Co. \[N.Y.\] 86 NE 815. Glri r16 did not as matter of law assume risk of operating mange with defective guard. Mansell v. Conrad, 125 App. Div. 634, 109 NYS 1079.

16. Knox v. American Rolling Mill Corp., 236 IL 437, 86 NE 90. Employee assumes risk of incidental obvious dangers and will not be heard to say he did not appreciate the danger which must have been apparent to one of his intelligence. Schmitt v. Hamiton Mfg. Co., 135 V1s. 117, 115 NW 353. Servant cannot be heard to say that he did not appreciate or realize a danger when defect is obvious or readily observable and danger apparent. Lake v. Shenango Furnace Co. \[C. C. A.\] 160 F 887. Boy of 16 held to have capacity and experience sufficient to appreciate danger of slipping or stumbling on pieces of rock or slag and falling off platform. Cook v. U. S. Smeling Co. \[Utah\] 97 P 28. Workman tripped on uneven floor and fell through unguarded opening through which hoist was operated. If he knew the condition of the door and opening he assumed the risk; hence an instruction requiring jury to find also that he must have appreciated the danger was error. Rooney v. Brogan Const. Co. \[N.Y.\] 86 NE 814.

01. Houston, etc., R. Co. v. Patrick \[Tex. Civ. App.\] 109 SVV 1097. Servant may assume exercise of due care by master. Cristarelli v. Singmaw Min. Co. \[Mich.\] 15 Det. Leg. N. 784, 117 NW 910; Kotera v. American Smelting & Refining Co. \[Neb.\] 114 NWP 945. Employee may assume that master has supplied reasonably safe appliances. Rush v. Oregon Power Co. \[Cr.\] 95 P 193. Servant may rely on assumption that masquer has performed his duty in furnishing safe place and appliances. Southern Pac. Co. v. Godrefy \[Tex. Civ. App.\] 107 SVV 1185. Employees may rely on assumption that master will employ reasonably competent employees. Beers v. Prouty & Co., 200 Mass. 19, 85 NE 864. Brakeman has right to assume place of work, on cars, reasonably safe. McDuffee's Adm'x v. Boston, etc., R. Co. \[Vt.\] 89 A 124. Inexperienced employee told to hold chain, by which logs were hauled into mill, while plate beneath was readjusted had right to assume that chinn would be moved without notice to him. Johnson v. Motor Shingle Co. \[Wash.\] 96 P 962. Miner had right to assume that overseer had performed statutory duty of protecting overhead rock from falling. Barrett v. Dessy \[Kan.\] 97 P 786. Where servant was sent to work in excavation, he could rely on implied assurance that he could rely on implied assurance that he could rely on implied assurance that he would have to be able to use the data12 Cur. Law. MASTER AND SERVANT SS 3F. 755

ordinary risks which a servant assumes; 1" ordinary or incidental risks being only those which due care on the part of the master would not obviate.20 But this rule is usually limited in its application to breaches of the master's duty unknown to the servant.21 If a neglect of duty by the master and the danger arising therefrom is

19. Pettus v. Kerr \[Ark.\] 112 SW 856; Quence of the master backing a train violo-Loutsville & N. R. Co. v. Carter \[Ky.\] 1ently against car. Held not at assumed 112 SWV 804. Negligence of master or of risk. Crane Co. v. Hogan, 131 Ill. App. 314. Vice-principal not assumed. Samboos, v. Motorman injured in head-on collision did Cleveland, etc., R. Co. \[Mo. App.\] 114 SW 857. Risk arising from violation of mas- ters duties with reference to appliances is ivo condition of its brakes. Garner v. Mot-not assumed. San Francisco & P. S. S. Co., v. Carlson \[C. C. A.\] 161 F 851. Extra haz-s are arising from negligent failure of mas- another car because of inability to stop, did ter to provide proper rules and regulations are not assumed. Cristanelli v. Saginaw 751. Scrunar assumes ordinary risks not being the usual meeting place of cars. Manu v. Illinois Cent. Trac. Co., 236 Ill. 30, hazards caused by negligence of his superior. American Window Glass Co. v. Noe \[C. C. A.\] 158 F 777. Servant does not assume risks arising from master's negligence; preceding regular car that plaintiff's car thus, dangers in blasting due to want of precautions to make the work reasonably safe, with Graham v. Mattoon City R. Co., 234 in view of its nature, were not assumed. Ill. 483, 84 NE 1070. Knight v. Dembelys Bros., 131 Mo. App. 152, 20. Servant only assumes such risks as re-110 SWV 687. Quarryman did not assume risk of foreman's failure to remove unexploted with respect to appliances and place. Charges of dynamite. Kansas Burf Brick & Mfg. Co. v. Bentley, 77 Kan. 780, 95 F 1134. 112 SWV 858. Incidental risks are assumed Negligence of mine owner in failing to provide for warnings to be given of blasting gene. Huston v. Quinney, etc., R. Co., 129 not assumed by miner engaged in timbering. Jacobson v. Hobart Iron Co., 103 Minn. 319, 114 NWV 951. Negligence of company in r-spect to track held not ordinary risk as- sumed by freight brakeman. Atlanta, etc., R. Co. v. Tilson \[Gal.\] 62 SE 281. Switchman assumed ordinary risks but not those arising from negligence of company or englas- neer. Texas & P. R. Co. v. Jowers \[Tex. Civ.\] 108 Va. 528, 62 SE 268. Not asphy.\] 110 SWV 946. Evidence held to show that lineman injured by live wire, current master has used reasonable care to make the place reasonably safe in which he desires work, did not assume the risk. Common-wealth Elec. Co. v. Rooney, 138 Ill. App. 275. Danger to brakeman of being struck by post too near track, not incidental to work, not assumed. Wilson v. New York, etc., R. Co. \[M.\] 62 SE 281. Switchman assumed ordinary risks but not those arising from negligence of company or englas- neer. Texas & P. R. Co. v. Jowers \[Tex. Civ.\] 108 Va. 528, 62 SE 268. Not asphy.\] 110 SWV 946. Evidence held to show that lineman injured by live wire, current master has used reasonable care to make the place reasonably safe in which he desires work, did not assume the risk. Common-wealth Elec. Co. v. Rooney, 138 Ill. App. 275. Danger to brakeman of being struck by post too near track, not incidental to work, not assumed. Wilson v. New York, etc., R. Co. \[M.\] 62 SE 281. Switchman assumed ordinary risks but not those arising from negligence of company or englas- neer. Texas & P. R. Co. v. Jowers \[Tex. Civ.\] 108 Va. 528, 62 SE 268. Not asphy.\] 110 SWV 946. Evidence held to show that lineman injured by live wire, current master has used reasonable care to make the place reasonably safe in which he desires the servant to work, of which the servant would Elec. Co. v. Rooney, 138 Ill. App. 275. Danger to brakeman of being struck by post too near track, not incidental to work, not assumed. Wilson v. New York, etc., R. Co. \[M.\] 62 SE 281. Employee did not as matter of law assume risk of injury by pulling out of hook and rope from locomotive, it having been fastened by his superintendent. Bros., nam v. New York, etc., R. Co., 200 Mass. 231, 85 NE 166. Operator of machine did not assume risk of danger from defective belt, having been assured there was no danger. Schow v. McCloskey \[Tex. Civ. App.\] 109 SWV 886. If railroad company knew of and acquiesed in neglig actually known " or obvious," and he continues in the employment without complaint, he assumes the risk of so doing, notwithstanding the want of due care by the master," unless he was justified in believing that he could continue with safety by the exercise of due care by himself," the danger not being so obvious and imminent that an ordinarily prudent person would not have encountered it."

\_Reliance on observance of rules and customs.\_See 10 C. L. 762--The servant may also assume that work will be done in the customary manner," that rules will be ob-

after he enters service if he has no knowl-

to any reasonably intelligent man that the edge of them. St. Louis, etc., R. Co. v. Man-

pasn \[Ark.\] 112 SWV 168. Risks arising from

C. v. Hanks' Adm'r, 108 Va. 521, 62 SE 335.

master's negligence are not ordinary risks

and are not assumed unless known and

and its condition is known to the servant

dangers appreciated. American Sheet & Tin

Plate Co. v. Urbanski \[C. C. A.\] 162 F 91.

he cannot continue to use it without objec-

Freight conductor did not assume risk of

Injury from standpipe placed too close to

track, when he was not familiar with lo-

Cility but knew in a general way the locen-

permitting absolute reliance on master's

tion of the standpipe. Norfolk & V. R. Co.

v. Beckett \[C. C. A.\] 163 F 479. Where

struction that servant assumed risk if he

workman was called by foreman to stand

"could have discovered" defect, erroneous;

on plank and hold block and fall which was

being fastened, he did not assume risk of

readily observable. Id. Evidence as to

injury, being unfamiliar with

whether conductor on motor car assumed

which proved to be defective. Kennedy v.

risk of being struck by inclining trolley

Switt & Co., 234 Ill. 606, 85 NE 287. Risk

of injury arising from negligent practice

care for his own safety, examined and held

of "staking" cars over crossing without

sufficient to sustain verdict for plaintiff.

warnings not assumed by brakeman who

East St. Louis & S. R. Co. v. Kath. 133 Ill.

did not know of it and was not chargeable

App. 107. Whether hole in freight eleva-

with knowledge, not having been in var

for was discoverable by use of ordinary care.

before, Chicago, etc., R. Co. v. Donovan \[C. C. A.\] 160 F 826. Plaintiff struck in eye

Sentucky Wagon Mfg. Co. v. Duganics

by steel silver from hammer or chissel while

holding rail which was being cut. Texas

Mexican R. Co. v. Trijerina \[Tex. Civ. App.\]

111 SWV 239.

22. Where brakeman knew coupling device was out of order, he assumed risk of

going between cars to manipulate it. Shaw

v. Delaware, etc., R. Co., 110 NYS 562.

23. The true test, in respect of risks arising out of master's negligence, is not

whether servant exercised care to discover

dangers but whether they were known to

him, or so patent as to be readily observable.

Chicago O. W. R. Co. v. McDough \[C. C.\]

A.J 161 F 657: Lake v. Shenango Furrance Co.

\[C. C. A.\] 160 F 887. Servant assumes risk

arising from master's negligence if he

knows them or ought to have known in

exercise of ordinary care. Kansas City S. R.

Co. v. Williams \[Tex. Civ. App.\] 111 SWV 168.

Rule that known or obvious" risks are assumed applies, at common law, even to risks

arising from negligence of master.

Pearall v. New York Cent., etc., R. Co., 128 App. Div.

397, 112 NYS 872. Risk of using unsafe

chinery not assumed unless danger so ob-

vious that reasonably prudent person would

not use it. Brands v. St. Louis Car Co., 213

Mo. 698, 112 SWV 511. Risks of dangers

sulting from master's negligence, existence

of which servant knows or would have

known by the exercise of that degree of

returnspection or attention which a prudent

man would have used in the perticular

employment are assumed. Western Union Tel.

Co. v. Burton \[Tex. Civ. App.\] 115 SWV 364.

Employe not entitled to rely on assumption

that place of work, in coal mine, had been

made reasonably safe, if he had notice of

facts or circumstances which would indicate

that place of work, in coal mine, had been

facts or circumstances which would indicate

12 Cur. Law.

actually known " or obvious," and he continues in the employment without complaint, he assumes the risk of so doing, notwithstanding the want of due care by

the master," unless he was justified in believing that he could continue with safety

by the exercise of due care by himself," the danger not being so obvious and imminent that an ordinarily prudent person would not have encountered it."

\_Reliance on observance of rules and customs.\_See 10 C. L. 762--The servant may also assume that work will be done in the customary manner served,28 and that customary or promised signals or warnings will be given and observed.28

\_Reliance on orders or assurances of safety.\_See 10 C. L. 762--A servant may rely to a reasonable extent upon the superior knowledge of the master or a superior, and may assume that he will not be exposed to unusual or unnecessary danger.39 Hence, he does not assume the risk of executing an order of a superior,81 or of continuing his work after an assurance of safety by a superior,82 unless the danger is known and

28. Car repairer did not assume risk of being struck by cars, flying switch being made contrary to rules. Galveston, etc., R. Co. v. Contseason \[Tex. Civ. App.\] 111 SWT injured by cavity formed beneath, jury could properly find that servant was planed of hostier's violation of rules by running engines into pit without signals or cavity. Glucose Sugar Refining Co. and complaint was duly reported, he did not as matter of law assume risk of injury by violation of rule next day, St. Louis, etc., R. Co. v. Hawkins \[Ark.\] 115 SWT 175.

01. City employe sent to make measurements on bridge told employees in charge of moving it that they were not to raise it. In App. 61, Workman injured while raising boiler with crow bar in accordance with not to do. He did not assume risk of injury from their raising it prematurely and with: v. Jacobson, 140 Ill. App. 319. Where servant was ordered to work at a Joiner and fell by reason of slipper floor covered with R. Co. v. Hawkins \[Ark.\] 115 SWT 175.

01. City employe sent to make measurements on bridge told employees in charge of moving it that they were not to raise it. In App. 61, Workman injured while raising boiler with crow bar in accordance with not to do. He did not assume risk of injury from their raising it prematurely and with: v. Jacobson, 140 Ill. App. 319. Where servant was ordered to use rope to help load pll. of bridge had gotten promise from tender and was injured by breaking of main cable, and was injured by checking of main cable, City of Chicago v. Gathman, 139 Ill. App. 253.

01. A servant ordered by the formation of a master to perform a particular work has ordered to clean flues with steam house and the right to assume that he will not be exposed to unnecessary perils and to rest upon loose, evidence that he exercised ordinary the implied assurance that there is no dan-ger. Marshall v. St. Louis & W. R. Co. \[Tex. Civ. App.\] 107 SWT 88. Descriptioned work.

Churry, 140 Ill. App. 1. Injury to servant man did not assume risk of rock ledge in gravel pit falling on him where he did not know of danger and had been directed to rig block and tackle without using smaller work there by foreman, who was chargeable with notice of danger. Id. If employe re- able to master. Kennedy v. Swift & Co., 140 Illes upon assurances of safety, and danger of handling beam which was being moved prior giving assurance has superior know!

In manner directed by superintendent; had edge of situation, employee does not assume risk as matter of law. Holloway v. Johnson-Manville Co, 135 Wis. 629, 116 NUV 685.

Servant directed to 0 certain work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in ceramic work in work in ceramic work in ceramic work in work in ceramic work in ceramic work in work in ceramic work in work in ceramic work in work in ceramic work in work in ceramic work in work in ceramic work in work in ceramic work in work in ceramic work in work in ceramic work in work in ceramic work in work in ceramic work in work in work in ceramic work in work in work in ceramic work in appreciated by the servant,"33 or is obvious and imminent and such that an ordinarily prudent person would not have encountered it under the circumstances.34

Footnote 34: The author is grateful to the anonymous referee for his comments on the manuscript.

_Reliance on promise to repair, after complaint._ See 10 C. L. 762.--Where the servant has complained of a defective condition, and the master or his representative has promised to make repairs, the servant may continue in the employment without assuming the risk "8" for such length of time as is reasonably necessary for the making

him, when he asked foreman about it and |Ind. App.\] 86 NE 432. Mliner sent up to latter said it was all right. Bernbe v. Horton, 199 Mass. 421, 85 NE 474. Employes may rely to reasonable extent upon exerciline. Swearing v. Consolidated Trouptions and assurances of safety and do not assume risk unless danger is known or owns or of which was merely supported by errors. Blacks, to place support. Held under evi-Anderson v. Pitt Iron Min. Co., 108 Min. 252, 114 NW 953. Employee did not as matter of law assume risk of bringing hand in contact with knives of wood shaping machine when foreman misled him by saying there was no danger, that knives were below surface of board on which he worked. Jury's verdict for plaintiff not disturbed. Schmitt v. Hamilton Mfg. Co., 135 Vis. 117, 115 NW 355. Employee was ordered by superior to go to work cleaning out boiler, and was assured it was safe, i. e., cold. Its condition was discoverable only by testing it. Employee turned on water and was scaled by steam formed by heated part of boiler. Held he did not assume risk. Holl-Oway v. Johns-Manville Co., 135 Vis. 629, 116 NW 655. 33. Where employee voluntarily enters up-on performance of duties obviously danger-Ous, he assumes the risk, regardless of assurances of safety. Holloway v. Johns-Manville Co., 135 Vis. 629, 116 NW 655. Operator of machine, who knew it was out or order, assumed risk of continuing to use it, though foreman assured him it was safe. Evans v. Eastman Kodak Co., 113 NYS 886. An experienced employee who undertakes work with full knowledge of defect and danger, with time for deliberation; assumes risk, notwithstanding master's orders or assurances of safety or his own protests. Glimartu v. Kilmore \[Tex. Civ. App.\] 114 SW 398. Experienced scaffold builder objected to scaffold as not strong enough for intended use, but, nevertheless, on master's saying it was sufficient, remained, saying "If it falls, it falls," and it fell. Held, he assumed risk. Glimartu v. Kilmore \[Tex. Civ. App.\] 114 SW 398. 34. Servant does not assume risk of obedience to order which exposes him to unusual or unnecessary danger unless the danger is so imminent that a man of ordinary prudence would not have incurred it. Yarber v. Chicago & A. R. Co., 255 Ill. 589, 85 NE 928. One at work under orders of superior does not assume risk unless danger is so imminent that person of ordinary prudence would not undertake it. Illinois Cent. R. Co. v. Edmonds, 83 Ky. L. R. 933, 111 SW 381. The rule that a servant does not assume risk of obedience to specific order or direction unless danger is glaring and imminent does not apply where the servant receives only general orders to proceed with certain work, the manner of doing it, and the order of taking up parts of it, not being specified. Mellette v. Indianapolis North Trac. Co. v. Edmonds, 83 Ky. L. R. 933, 111 SW 381. The rule that a servant does not assume risk of obedience to specific order or direction unless danger is glaring and imminent does not apply where the servant receives only general orders to proceed with certain work, the manner of doing it, and the order of taking up parts of it, not being specified. Mellette v. Indianapolis North Trac. Co. v. Edmonds, 83 Ky. L. R. 933, 111 SW 381. The rule that a servant does not assume risk of obedience to specific order or direction unless danger is glaring and imminent does not apply where the servant receives only general orders to proceed with certain work, the manner of doing it, and the order of taking up parts of it, not being specified.

of the required repairs,"" unless the appreciated danger is so imminent that a man of ordinary prudence would refuse to encounter it." To bring a case within the operation of this rule, it must appear that the complaint was based on apprehension of injury," that a definite promise to repair was made " by one who had authority to

fective belt which master, through foreman, had promised to repair, where servant was whether servant was guilty of contributory acting under superior's orders at time. Inclentning to use defective Tuckers' Mfg. & Supply Co. v. White, 108 Va. 147, 60 SE 630. Botting wrapper, injured by bursting of bottle, did not as matter of law assurance risk of working without mask where complaint by him, his foreman promised to told him to go to work, that it would be fixed, and accident occurred few minutes later. LaBasco v. Moxie Nerve Food Co., 111 NYS 1007. Defendant promised to repair track of logging road when foreman returned, and engilve governor not so great as to throw risk need continued to work and was injured by drainlment before foreman returned and before repairs were made. Held, engineer could R. Co., 158 F 144.

Fischer, master having assumed risk during period fixed by him. Morgan v. Rainier Blaintiff injured in operating defective Beene Lumber Co. \[Vwash.\] 98 F 1120. Servant may rely on master's promise to shorten reach extending from wisdom which servant was loading from adjacent sand bank, and which prevented his escape when bank carved in. Village of Montgomery v. Robertson, 132 Ill. App. 362. Where evidence clearly shows that machine at which plaintiff was employed was not working properly, and that an effort was made to fix it, and plaintiff was then told it was all right, judgement in his favor for injuries thereafter received and due to defect in machine will not be set aside if supported by sufficient evidence. Dayton Folding Box Co. v. Daniel Ruhelman, 11 Ohio C. C. (N. S.) 498.

S6. St. Louis, etc., R. Co., Mangan \[Ark.\] 518. Engineer complained of water gauge 112 SWV 168; Cook v. Pitlocke & L. Lumber

After several had exploded, and superintend-Co. \[Wash.\] 98 F 1130. Promise to repair many relieve servant who continues to work in reliance upon it for a reasonable time from assumption of risk. Freeman v. \[Alfinn.\] 119 NWV 503. Where miner entered Bavannah Elec. Co., 130 Ga. 449, 60 SE 1042.

After promise to repair, servant does not used to supply fresh air was defective, and assume risk until after expiration of time

objected and was promised that defect in which person of ordinary care and prudence would be remedied, his continuance in end-demce would expect promise to be kept. Miljer v. White Bronze Monument Co. \[Iowa\]

pairs would be made in reasonable time did 118 NWV 518. Servant induced by promise not charge him with negligence as matter of master to repair to begin or continue work with defective appliances may use 99 F 153. Whether man engaged in unload-them for such time as he may reasonably

ing logs, by knocking out hooks with short snamled ak, was negligent in continuing to sumsing risk, unless danger is obvious, imminent, and immediate. Sapp v. Christie

Bros., 79 Web. 701, 115 NWV 319. Where a servant makes complaint, and the master makes an unconditional promise to repair defect, risk is cast upon the master until such time as would preclude all reasonable expectation that promise might be kept. Morgan v. Rainier Beach Lumber Co. \[Wash.\] 98 F 1120.

37. Harris v. Bottom \[Vt.\] 70 A 560; Morgan v. Rainier Beach Lumber Co. \[Wash.\]

the film is reliance on this promise but as-$8 P 1120. Promise to repair does not relieve servant if danger is imminent and such that person of ordinary prudence would not encounter it. Miller v. White Bronze Monument Co. \[Iowa\]

ment Co. \[Iowa\] 118 NWV 518. Whether servant has right to rely on promise in particular case depends upon whether danger is so imminent that one of ordinary prudence would not encounter it; that is, upon whether servant was guilty of contributory acting under superior's orders at time. Inclentning to use defective samples, the master would not encounter it. However, the master would not encounter it; that is, upon failure, the master would not encounter it. However, the master would encounter it.

make it,"40 that the servant relied upon the promise and was induced by it to remain,"41 and that he was injured within a reasonable time thereafter."42 While he himself was exercising due care for his own safety."43 A promise to supply a new instrumentation, after complaint has the same effect as a promise to repair."44 A promise to repair is held not to relieve the servant from the assumption of risk where it relates to simple tools."45

\_Risks created by servant.\_See 10 C. L. T64--A servant who unnecessarily adopts a dangerous method of doing work,"46 or who voluntarily undertakes work outside the time fixed for making of repairs is definite time had elapsed since promise was made to or indefinite; as where promise is to repair when forearm returns. Morgan v. Rainier (see, at time plaintiff was injured, held for Beach Lumber Co. \[Wash.\] 98 P 1120.

40. Servant must show that promise to repair was made by master or one duly authorized to make it. Clesales v. Lehigh Valley R. Co. \[N. J. Err. & App.\] 69 A 168.

Forcman of gane engaged in laying and repairing tracks, working with them, is follow-servant; no power to promise to repair hand car. Id. Immaterial that promise is required to exercise due care, and, if danger conveyed to servant through third person. St. Louis, etc., R. Co. v. Mangan \[Ark.\] 112 SWV 168.

41. Where declaration did not allege that servant was induced to continue in operation of machine with unguarded rollers by promise to guard, it did not show shifting of assumption of risk from her to master. Harris v. Bothum \[Vt.\] 70 A 660. Evidence sufficient to support finding that operator of shingle machine complained of defective construction, that defendant promised to remedy it by "filling in." that plaintiff continued to work in reliance on such promise, and was injured by such defect soon after. Duskey v. Green Lake Shingle Co. \[Wash.\] 98 P 99.

01. Operator of buffing machine complained of loose driving belt at 10 o'clock and superintendment promised to repair it at noon but did not; operator complained again at 2 o'clock and was ordered back to work with promise that it would be fixed in a little while; he was injured by it at 3 o'clock. Cleeland & S. W. Trac. Co. \[Oho\] 86 NHE He did not assume risk as matter of law. Krohn v. Smith & Co., 151 Mich. 247, 14 Det.

01. Operator of buffing machine complained of loose driving belt at 10 o'clock and superintendment promised to repair it at noon but did not; operator complained again at 2 o'clock and was ordered back to work with promise that it would be fixed in a little-like while; he was injured by it at 3 o'clock. Cleeland & S. W. Trac. Co. \[Oho\] 86 NHE He did not assume risk as matter of law.

01. Promise to repair or remedy defect (does not suspend servant's assumption of leg. N. SS8, 114 NWV 1017. Servant, operating planning machine defective in that it has mature fully known. Klanner v. Amert. might start up automatically, obtained promise to repair by Sunday, and was in-jured on Tuesday. He did not to have assumed the risk by relying on promise an unreasonable time. Chicago, etc., R. Co. v. Clark, 134 Ill. App. 161. Where it would only take 2 days to repair a defective machine, and plaintiff operated it for two months after promise to repair, he assumed the risk. Balkwell v. Becker, 131 Ill. App. 221. Elevator operator continued to work for 3 weeks after promise following complaint to superintendent that his work was rendered dangerous by others using elevator. Heid precluded from recovery. Samuel Cupples Woodenwave Co. v. Walms, 140 Ill. App. 624. Where on servant's complaint that passage in mine was too low the master immediately set to work to remedy it but had not reached the particular place where injury occurred, question of whether servant assumed risk was for jury. Marquette Third Vein Coal Co. v. Allison, 132 Ill. App. 221. Whether an unreasonable length of scope of his own duties," or who disregards rules \[48\] or orders," assumes the risk involved.

(SS 3) \_G. Contributory negligence. Nature of defense.\_See 10 C. L. 788. The distinctions between this defense and that of assumption of risk have already been referred to." Contributory negligence is a want of ordinary care on the part of the servant injured which, concurring and combining with negligence of the master, produced the injury as a proximate cause without which the injury would not have occurred." When found to exist it bars recovery in most jurisdictions," even though

to perform duties in manner more hazardous than that required or expected, he assumes the risk. Brakeman assumed risk of trying to uncapule moving cars. Day v. Loulsiana App.) 111 SVW 1094.

Western R. Co., 121 La. 180, 46 S 203. Brakeman who undertakes to uncapule cars in dangerous way assumes risk, safer way being available. Taylor v. Rock Island, etc. R. Co., 121 La. 543, 46 S 621. Where brake-man could have stopped train, when he found coupler would not work, but chose instead to go in between cars, he assumed risk of getting foot caught by guard rail while trying to adjust coupler. St. Louis S. W. R. Co. v. Brice \[Tex. Civ. V. Hynston \[Tex.\] 109 SW 929, rvf. (Tex. Civ. App.) 20 Tex. Ct. Rep. 755, 107 SW 625. Engineer assumed risk of crossing railroad yards to reach train by dangerous route, wherein he fell into ash pit, when there was a safe way which he could have taken. St. Louis S. F. R. Co. v. Rontine \[Tex.\] 20 Tex. Ct. Rep. 481, 107 SVW 530. Employee assumed risk of putting his hand under guard to remove obstruction from revolving cylinder with teeth when machine was to be stopped by his orders and he could have waited. Hutchison V. Cohankus Mfg. Co. \[Ky.\] 112 SVW 899. Plaintiff, engaged in placing "riffles" in chute during loading of vessel, assumed risk, where instead of standing on another chute to place "riffles" used a ladder, so that a sack of wheat coming down chute struck the ladder and caused it to fall. Stewart v. Balfour \[Twash.\] 98 P 103.

47. One injured outside the scope of duties for which he was employed, being there without authority, cannot recover. National Fire Profing Co. v. Andrews \[C. C. A.\] 158 F 294. Where a servant undertakes labor outside the scope of his employment, he assumes the incidental risks when they are "equally apparent to himself and the master."

Where painter undertook to remove scaffold-ing erected for carpenter, he assumed the risk. Weinand v. Marshall Field G. Co., 131 Ill. App. 165. Employee engaged in operating riffsaw assumed risk of voluntarily attempt- of lumber upon him from car. "Western ing to operate jonr, in doing which board he was working on kicked up, causing his hand to come in contact with knives. Stodden v. Anderson & W. Mfg. Co. \[Towan\] 112 NW 116. Appropriate Imaman should work under orders and directions of superiors and experienced men. If he attempts to do work without orders, and selects his own way or materials or tools, he assumes risk. Matt-rejean v. New Orleans R. & L. Co., 120 La.

49. Where master orders servant away from place where he is at work, and gives as reason there that he is afraid wall will fall on him, and servant diaresards or, and continues his work without changing his position, and wall falls and he is killed, an action for damages against the master because of his death should be taken from jury on ground that risk was assumed.

Liff v. Cavey, 11 Ohio C. C. (N. S.) 334.

50. See ante, 9 3F.

01. Webster v. Atlantic Coast Line R. Co. \[S. C.\] 61 SE 10850: James V. Fountain Inn Mfg. Co. \[S. C.\] 61 SE 391: Hoseth v. Preston Mill Co. \[Twash.\] 96 P 423; Cincinnati, etc.

R. Co. v. Fortner \[Ky.\] 113 SW 847. Contributors negligence must be at least con-

Ct. Rep. 481, 107 SWV 530. Employee assumed risk of collision risk of putting his hand under guard to re-

V. Anston Kinting Millis \[Ala.\] 45 S 702.

74. Taking risks voluntarily bars recovery only when contributing to cause injury. Kiley v.

Rutland R. Co., 80 Vt. 536, 68 A 713. Negli-

87. Repe of employee will bar recovery only if it contributed to cause injury. Buchman v.

Jeffery, 135 Vbis, 448, 115 NWV 372. Negli-

87. Repe of conductor in trying to couple car

on down grade without putting on brakes, and then getting on car and trying to stop

it after it had started, was not proximate

eames of his death where car was derailed by defective track, causing him to jump.

Dorten v. Atlantic Coast Line R. Co. \[N. C.\] 62 SE 616. Conductor stood at middle of car

87. Repe of employee to travel, instead of on rear platform as

required by rules, when struck by other car.

Sennett v. Chicago City R. Co., 141 Ill. App.

sumes the action is based on a violation of a statutory duty; \[58\] but the defense is not available under some statutes. \[54\] Under some statutes only a reckless exposure to danger will bar recovery. \[58\]

\_Degree of cdre required of servant.\_See 10 C. L. 786. Only ordinary care is required, \[58\] that is, such care as ordinarily prudent persons would exercise under like circumstances. \[77\] Whether that degree of care was exercised in a particular instance

v. Central New England R. Co., 111 NYS 91. to an action for injury to a minor employed Plaintiff's negligence in operating corn \[n violation of the Child Labor Act.\] Forrer grinder held cause of his hand getting \[v. Baker, 137 Ill. App. 588. Contributory caught in rollers. Jackson V. Gulf Elevector negligence on part of miner will not defeat \[c., 209 Mo. 506, 108 SW 44.\]

right of recovery for injury caused by will- \[52\], Whippen v. Stone, 197 Mass. 519, 83 NE 889; Bowen v. Pennsylvania R. Co., 219 PA. (405, 88 A 963; Hillaborton Cottin Mills v.)

part of the owner, operator or manager of \[Tex. Civ. App.\]. 109 SVW 484; Hall v. Northwestern R. Co. (IS. C.) 62 SE 848; Chesa-, Co., 235 Ill. 540, 85 NE 743. Contributory peake & O. R. Co. v. Hoffman (VA. App.) 63 SE 432. Vhere minor servant has been instructed as to dangers, defenses of contributory negligence and assumption of risk are available as they would be against adults. Mitchell V. Commanche Cotton Oil Co. (Tex.

Civ. App.\]. 113 SVW 158. No recovery for death of employee by caving in of curbing of \[t\] to perform statutory duty to keep mine free for city. Winkelman v. Adrian, 151 Mich.

tributed to cause explosion. Davis v. Illinois

53. Contributory negligence is almost unl- \[52\], and the act required roadways in mine to be based on violation of statutory duty. Johnson v. Mammoth Vein Coal'Co. (Ark.) 114 SVW 722. It is defense where Kirby's Dig. $ 555, regurating by accumulated dust the explosion which injured him, is no defense where the \[t\]. Id. Contributory negligence is defense though action is based on violation of \[t\], thus \[134 Ill. App. 277.\]

v. Heydt Bakery Co., 210 Mo. 44, 108 SW 68. Contributory negligence is defense in action based on violation of factory act, but must be affirmatively established by defendant.

Kansas Burt Brick & Mfg. Co. v. Stark, 77 Kan. 648, 55 P 1047. Section 8 of the Federal Statute, providing that any employe of a common carrier who may be injured by any \[t\].

v. Scott \[Miss.\]. 48 S 239. locomotive, car or train in use contrary to the provisions of the act, shall not be deemed \[t\].

contract as to bar recovery where the went thereby to have assumed the risk occasioned between loaded car and engine to couple thereby, does not abrogate the well settled rule that an act or omission on the part of the servant amounting to a want of ordinary care which, concerning with the negligent act of the master, is the proximate cause of the injury to the servant, will bar a re- \[t\].

v. Centis, 184 Ill. App. 565. Sanborn's St. Sup. 1806, $ 16364; giving right of action for injuries caused by failure to guard machinery, abolishes defense of assumption of risk but not of contributory negligence.

Kloitz v. Power & Min. Machinery Co., 136 Wis. 107, 116 NW 770. Contributory negligence is defense to action based on Burns' \[t\].

v. Scott \[Miss.\]. 48 S 239. Injures caused by failure to guard machinery, abolishes defense of assumption of risk but not of contributory negligence.

Kloitz v. Power & Min. Machinery Co., 136 Wis. 107, 116 NW 770. Contributory negligence is defense to action based on Burns' \[t\].

v. Scott \[Miss.\]. 48 S 239. Injures caused by failure to guard machinery, abolishes defense of assumption of risk but not of contributory negligence.

Kloitz v. Power & Min. Machinery Co., 136 Wis. 107, 116 NW 770. Contributory negligence is defense to action based on Burns' \[t\].

v. Scott \[Miss.\]. 48 S 239. Injures caused by failure to guard machinery, abolishes defense of assumption of risk but not of contributory negligence.

is ordinarily a question of fact for the jury, \[58\] to be determined with reference to all instructions. Jennett v. Louisville & N. \[269, 116 NWV 191. Mill employe caught R. Co., 182 F 392. Servant can be de-clared negligent as matter of law only when he incurs danger whlch no prudent person pavedation. Tennant, 104 Minn. 354, 116 NWV 648. Em-woulle encounter. Hill V. Sauggstad \[Cr.\] 98 F 524. Continuing to work in place obvious.

173. Brackman was not negligent in mode adopted by him to adjust coupler unless he ought to have realized danger of remaining between cars as long as he did. McGwire v. Quilncy, etc., R. Co., 128 Mo. App. 677, 107 SWV 411. An employee, acting in line of duty, may be justified in doing what would be negligent if done by a stranger. Atlantic Coast Line R. Co., 138 F 361. Where plaintiff was injured by reason of another employee disobeying or not having heard an order given him, instruction that plaintiff was negligent if he went ahead without knowing whether his order had been heard was erroneous, since plaintiff was only bound to use ordinary care under the circumstances. Balderon v. Cudany Packing Co. \[Iowa\] 117 NWV 986. Charge on contributory negligence construed and held to require, correctly, the degree of care which might be reasonably expected of an ordinarily prudent person under the circumstances. Baltimore & O. R. Co. v. Kangas \[Cr.\] 162 F 143. Instruction requiring of plaintiff only care of "ordinarily prudent man" erroneous; this suggests too low degree of care. Drown v. New England Tel. & T. Co. \[Vt.\] 70 A 599. Instruction erroneous because omitting reference to duty of employee to take care proportionate to circumstances. Wilson v. New York, etc., R. Co. \[R. L.\] 69 A 864. SS5. Evidence held to warrant or require submission of question of contributory negligence to jury. Employee injured by fall of profight elevator on ship. San Francisco & Palm P. S. S. Co. v. Carlson \[C. C.\] 161 F 851. Member of grading crew struck by elevator on sending machine under which he was standing when chain broke allowing it to fall; some evidence of warning. Jones v. Ederrick \[Iowa\] 118 NWV 444. Air hosst went up instead of down, causing load to fall, plaintiff having pulled wrong rope, owing to change of which he had no notice. Waligora v. St. Paul Foundry Co. \[Minn.\] 119 NWV 395. Elevator operator fell into un-garded shaft. Roth v. Bucetel Bros. Co. \[Iowa\] 119 NWV 166. Servant killed by fall of derrike hooms, while standing under it. Mirolasweld v. Ferguson & Lange Foundry Co., 232 Ill. 630, SS3 NE 1086. Operator of press injured by automatic fall of hammer. Staskowski v. Standard Oil Co., 111 NTYS 58. Where employee got arm caught between jcist and ear, while trying to get car under hourper to be filled with dirt. Booth v. McClean Contracting Co. \[Md.\] 70 A 104. Employee engaged in shifting heu got caught in loose, unused, rope pulny. Trontley Y. McCafee, 152 Mich. 494, 15 Det. Leg. N. \[Minn.\] 119 NWV 191. The first author is to thank the organizers of the University of Chicago, 152 N. \[Minn.\] 119 NWV 1921. The second author is to thank the organizers of the University of Chicago, 152 N. \[Minn.\] 119 NWV 1922. The second author is to thank the organizers of the University of Chicago, 152 N. \[Minn.\] 119 NWV 1923. The second author is to thank the organizers of the University of Chicago, 152 N. \[Minn.\] 119 NWV 1924. The second author is to thank the organizers of the University of Chicago, 152 N. \[Minn.\] 119 NWV 1925. The second author is to thank the organizers of the University of Chicago, 152 N. \[Minn.\] 119 NWV 1926. The second author is to thank the organizers of the University of Chicago, 152 N. \[Minn.\] 119 NWV 1927. The second author is to thank the organizers of the University of Chicago, 152 N. \[Minn.\] 119 NWV 1928.

764

\[Tex. Civ. App.\] 110 SWV 171. Whether Servant used reasonable care in getting out of telephone booth where he was Impris-

ing work of connecting residence with gas

oned. Georgetown Water, Gas, Elec. &

Power Co. v. Forwood \[Ky.\] 118 SW 113.

negligent in falling to put in stop box to

Signo flow of gas while making connection.

in cellusion with bucket car in yards of

Wiley v. St. Joseph Gas Co., 132 Mo. App.

Manufacturing plant. Mattson v. American

380, 111 SWV 1185. Servant injured by fall

Steel & Wire Co., 200 Mass. 860, 868 NE 896.

of smakescheck which he was assisting in

Hammer of pile driver fell on plaintiffs

moving. Ninyon v. Smith \[Tex. Civ. App.\]

hand on top of splip. Houston v. Quiney,

112 SWV 138. Whether employee engaged

etc. R. Co., 129 Mo. App. 576, 107 SWV 1045.

Plaintiff Injured in operating defective

\*joquer and risshaw" of which he had com-

negligent in working as he did. Cochrell

Dained. Ong Chair Co. v. Cook, 85 Ark.

390, 108 SWV 203. Yeroman in milli fell

Evidence as to whether plaintiff was guilty

into pit from which planks had been re-

moved. Whether he was negligent in not

return of electric repair car instead of in cab,

using torch. Knox v. American Rolling MIII

Led properly submitted to jury. East,

Corp., 286 Ill. 437, 86 NE 90. Whether

etc. R. Co. v. Hill, 138 Ill. App. 14. Trax-

driver was negligent in using chain which

proke, causing cable to strike him. Mar-

tin v. Gould, 103 Minn. 467, 115 NWV 276.

Roller cleaner, working on pulp machine,

Mills \[S. C.\] 61 SE 1018. Though employee

slipped and fell on machine; whether he was

negligent in continuing to work with

knowledge of conditions. Zajdak v. Lisbon

Falls Fiber Co., 117 NYS 56. Switch

en-
Switch ten-

der on electric tramad in mine slipped

through opening in foothard on motor as

can struck projecting rails of side track and

Lo g. V. Fortner \[Ky.\] 118 SWV 847. Employe

had leg injured. He mounted car in custom-

ary way. Sundvall v. Interstate Iron Co.,

104 Minn. 493, 116 NWV 118. Whether oper-

ator of material stamping machine, Inexpe-

rienced, was negligent in operating in way

he did under instructions. Clemens v. Gem

Fibre Package Co. \[Mich.\] 15 Det. Leg. N.

574, 117 NWV 187. Operator of unguarded

lath bobiting machine injured by board

throw by saw against him. Caliopy v. Atwood, 105 Minn. 80, 117 NWV 238. Whether

employe was negligent in turning water

into bobler, to clean it, being assured that it

had been tested and was cool, and in-

lined by steam generated by hot part of boiler. Hollow v. H. W. Johns-Man-

ville Co., 135 Wils. 629, 116 NWV 635.

Employe engaged in section of gas holder

Rilled by failure side plate. Devine v. Hayward, 113 NYS 898. Cable attached

to ditching machine was being moved side-

ways and chain and hook were attached and

horses hitched thereto. Hook straightened

out, and chain flew back and struck plaintiff, who was driving. Whether he was

negligent in using chain or occupying

offlon the did. Patterson v. Melchior \[Minn.\]

119 NWV 402. Plaintiff, logger. Inured by

breaking of handle of ento hook being used

by him. Longpre v. Big Blackfoot Milling

Co. \[Monti\] 89 P 131. **Brick** wall in course

of construction fell on employee at work

near it. Nelson Vitirified Brick Co. v. Mususuman \[Kan.\] 89 P 256. **Vhchest**

er plaintiff, loading wheels on ear with

skid, negligently let go and ceased

pushing before men on car had secured

them. Meily v. St. Louis, etc., R. Co. \[Mio.\]

114 SWV 1013. Where failure to look and

teen as he crossed tracks and was struck

by cars was want of ordinary care. Missouri,

etc. R. Co. v. Balllet \[Tex. Civ. App.\] 107

SWV 906. Gury rope broke allowing glin pole

to fall, injuring plaintiff. Heeder v. Crystal

Carbonate Lime Co., 129 Mo. App. 107, 107

SWV 1018. Whether failure to take light was

contributory negligence where he fell over

rope in dark coal bbn. Chicago, etc., R.

the facts and circumstances of the case, \[89\] including the age, experience and capacity

held for jury. Johnson v. Mammroth Vein \[ ran train round curve at dangerous speed. \[Cai\] Co. \[Ark.\] 114 SWW 722. \[Par\] Co. \[Ark.\] 114 SWW 722. \[Par\] Co. \[Ark.\] 114 SWW 765. \[Ark.\] 114 SWW 766. \[Ark.\] 114 SWW 783. \[Ark.\] 114 SWW 724. \[Ark.\] 114 SWW 724.

load with lines wrapped around hands, causing-ing him to pitch forward to road. Meyers (App. Div. 703, 108 NYS 278. Brakenman rode vs. O'Bear-Nesot Glass Co., 129 Mo. App. 556, 107 SWV 1041. "Lugs" of junner and rip-sawv out of repair and bed-plates out of place, and plaintiff was directed to use it in that condition. Ong Chair Co. v. Cook, 85 Ark. 390, 108 SWV 208. Decedent negligent in removing seeks of coffee from leaning pile of sacks which fell upon him. Bradley v. James H. Forbes Tea & Coffee Co., 213 Mo. 320, 111 SWV 918. Driver's injury being caused by his own negligence in releasing the wagem brake, he could not re-cover on ground that brake was defective. Sanda v. Pabst Brewing Co., 131 Mo. App. 413, 111 SWV 593. Plaintiff was member of crew engaged in unloading tiles, and his duties were to straighten those on ground which did not fall right. He signaled to men to stop throwing off ties, and went near car to straighten tie without waiting to see if signal was seen and was struck by tie. Giaito v. St. Louis & S. F. R. Co., 132 Mo. App. 368, 111 SWV 118. Evidence held to warrant finding that plaintiff injured by falling down elevator shaft failed to exercise due care for his own safety. Swift & Co. v. Stolze, 1011 NYS 107. No recovery injuries caused by falling of cellar doors when plaintiff stood under them knowing that plaintiff is aimed with a single-legitimed of the servant.40 Failure to use the senses and the means at hand to discover "1 and .

it was safe, was not negligent in operat- .

ing it, being injured because of defective .

, etc., R. Co. \[Iowa\] 115 NW 503. Brackeman \[Tex. Civ. App.\] 109 SW 386. Plaintiff not negligent as matter of law in going negligent in going outside of mill in course of his duty of looking after machinery, some of which was outside, not being in place where there was any reason to suppose .

,

# Master and Servant $ 36.

12 Cur. Law.

prevent injury "" is usually held to constitute negligence, and there can be no recovery for injuries caused by failure of the employe to perform a duty entrusted to him or expected of him by the master." \[11\] Temporary or momentary forgetfulness of

App. 36. Girl whose hand was injured by death, since company provided safety appli-sudden starting of manehine by foreman, without warning, not negligent in having under orders at time. Maitirejean v. New hand where it was, as matter of law. Fitz-G Orleans R. & Light Co., 120 La. 1056, 48 g 2I.

gerald v. International Flax Tweine Co., 104

Section man negligent who failed to get Minn. 138, 116 NW 475. Boy of 16 not negligent of way of train which he saw cemng, gent as matter of law in brushings shavings from uncovered gear of machline. Goodale v. York, 74 N. H. 454, 69 A 525. Boy of 18

with car ahead, negligent when he failed to cleaning sawdust from under saw had fingers out off. Masety v. Villaume Box &

fmg properly, and failed to apply for another Lumber Co., 104 Minn. 186, 116 NW 207.

Gx, and ran too close to car ahead. Foley

Boy sat down on part of machine and when he got up was injured by manguned saw.

NE 846. Car repaired, injured by engine

Jacobson v. Merrill & Ring Mill Co. \[Minn.\]

moving car he was working on, negligent

119 NW 510. Boy of 15 operating sole molding -

where he failed to use werning flow or to ing machine got fingers caught. Sailer v.

Friedman Bros. Shoe Co., 130 Mo. App. 712, 109 SW 794. Whether boy of 18 appreciated

injury was caused by overexerfiction, plainff

danger of operating wood working machine

and was negligent. Markevits v. Olds Motor Works, 152 Mich. 113, 15 Det. Leg. N.

\[Mo. App. 114 SW 94. Where employe could

125, 115 NW 999. Boy of 11 fell over defective platform, in dark place, and got hand

drawn into block by steel wire rope had he caught in machine. Hagglom v. Winslow

been attentive to his dutles, he could not

Bros. & Smith Co., 1988 MNS. 14, 64 NE 301.

Boy of 17 killed :by My wheel or other machinery in place where narrow passage, not

properly guarded, separated engine plt and

other machines. Lunde v. Cudany Packing

Co. \[Iowa\] 117 NW 1063.

6I. Failure of trackman to look out for extra street eers. Wallace's Adm'r v. Fox

\[Vt.\] 69 A 665. Failure of mail carrier for defendant to watch for trains held to bar

recovery for his death caused by train striking him as he crossed tracks. Skinner v.

Boston & M. R. Co., 200 Mass. 422, 85 NE 772.

Where plainff's intestine knew the custom

of running trtans through the yards, but

failed to watch in direction from which

switch engine might come, held guilty of

negligence directly contributing to his

death. Chicago & W. I. R. Co. v. Mills, 131

III. App. 625. Member of track crew crew

by train as he was walking alongside track,

train coming from behind him. He could

have seen it or could have walked farther

from track. Dangleo v. Lake Shore & M. S.

R. Co., 111 NYS 800. Inexperience or ignorance cannot be relied on where employe puts

his hand on revolving cylinder with sharp

teeth. Hutchison v. Cohankus Mfg. Co.

\[Ky.\] 112 SW 899. Plainff knew that

elevator shaft was often kept open, and was

so the last time he had seen it, yet did not

use care to see if shaft was open at time of

hiry. Singer v. Boycev Z Philips Co., 141

III. App. 316. Cook in defendant's family,

employed 2 days, fell into elevator shaft by

opening door in dark which she supposed

was storeroom door. No recovery. She

should have investigated more carefully. Koche v. Stern, 114 NYS 14.

Cz. No recovery by foundry employee for injury by fall of easting, where he knew

conditions and could have prevented accl-

dent. Van Pelt v. Straight Line Engine Co.,

112 NYS 116. Apprentice lineman voluntarily undertook to carry a guy witre up a

pole in his bare hand and received shock

from which he died. No recovery for his

Koche v. Stern, 114 NYS 14.

Cz. No recovery by foundry employee for injury by fall of easting, where he knew

conditions and could have prevented accl-

dent. Van Pelt v. Straight Line Engine Co.,

112 NYS 116. Apprentice lineman voluntarily undertook to carry a guy witre up a

the line in his bare hand and received shock

from which he died. No recovery for his

koche v. Stern, 114 NYS 14.

Cz\* 12 Cur. Law. MASTER AND SERVANT SS 3G.

a known danger may in some cases be excusable,64 but is usually held to constitute negligence.65 An act is not excusable because customary, though the fact that it is customary is to be considered.66

Footnote 65: The term "true" is not meant to be confused with the term "true".

_Choice of methods.See 10 C. L. 711.-Needless exposure to a known danger is negligence; 67 hence, a voluntary choice 66 of a known or obviously dangerous way of doing work,68 when a reasonably safe way is available,76 is negligence._

and crane which ran on rall ran over his

danger of so doing being obvious, and where hand. He testified that he had not noticed

he could as well have done his work on crane, though it was in motion great deal of

other side of track. Harling v. Great North-time. Court should have instructed that he

ern R. Co. \[Vis.\] 119 NW 325. Act of brake-could not recover if he knew about the

man in regime between cars to uncouple air

crane. Browne v. Pratt & Letchworth Co.,

hose from inside of curve of track rather

111 NYS 863. Where experienced engineer

than outside was not negligence per se,

knew of defect in engine, he could not re-

where manner of his death was not shown.

cover for injuries resulting from dermilment

Whether he was negligent was for injury.

while going round curve at high speed,

Brady v. Florence, etc., R. Co. \[Colo.\] 88 P

dcarliment being caused by such defect.

321. Employe negligent in attempting to

dcarms v. New York, etc., R. Co., 199 Mass.

cross track between two chained cars, when

476, 85 NE 585. Fireman, whose duty it

was to clean out locomotive engine, could

to 90 feet. Beck v. Southern R. Co. \[N. C.\]

do it in his own way and when he saw fit.

62 SE 883. Fright conductor, after giving

He got under engine just after switching

engineer signal to detach engine, went

was done at station and train had been made

tween cars, knowing engine would be

np. Same member of crew connected air

backed to give slack for uncoupling, and

and piston rod came down on fireman's leg

adopted dangerous way to couple air hose,

which was unnecessary exposed to danger.

which was not his duty. He knew usual safe

No recovery. Wilkinson v. Minneapolis &

way. No recovery for his death, crushed

St. L. R. Co., 105 Minn. 300, 117 NW 611.

by cars. Dermid v. Southern R. Co. \[N. C.\]

Street car conductor injured by strlking tel-

61 SE 657. No recovery where brakeman

ebhene pole with his head while on passing

takes dangerous way to uncouple cars, In-

car, pole being where he must have observed

stead of safe way. Taylor v. Rock Island,

it and known danger. Moore v. Chattanooga

A. & L. R. Co., 121 La. 543, 46 S 621. No re-

Elec. Co. \[Tenn.\] 109 SWV 497. No recovery

overy by switchman who, contrary to rule

by employer injured by putting hand in

rollers of grist mill. Whitmore v. H. K. Web-

nuled engineer to move while he was

ster Co., 200 Mass. 281, 86 NE 305.

Quaryry-

tween car, and got his foot caught between

man negligent where he voluntarily went to

ward and other rail, space not being

work in dangerous place after warning and

v. R. Co., 121 La. 180, 46 S 203. Switchman,

Tron Co. v. Hammond \[Ala.\] 47 S 248. Plan-

its/m unnecessarily moved stone suspended

crosed to other side of cars to use lever,

over en on which it was being loaded, causing it to slip from tougs and fall upon him;

hand. Union Pac. R. Co. v. Brady \[C. C. A.\]

he had assisted in fastening tougs, and had

161 F 719. No recovery for death of switch-

seen it slip before. Salt v. Canney \[C. C. A.\]

man who unnecessarily went between cars

162 F 660. When an employee willfully en-

counters danger known to him, or patent

caught in frog. Powell v. Wisconsin Cent.

and open to be seen and known, he cannot

R. Co. \[C. C. A.\] 159 F 864. No recovery for

recover for injuries received therefrom.

death of brakeman who, instead of using

Servant pushing car stepped into helc in

automatic coupler apparatus, went between

platform of which he had been notified.

Cars and rode on brake beam while making

Priddy v. Black Beetsey Coal & Min. Co. \[W.\]

Wjing switch. Archison, etc., R. Co. v.

Val. 61 SE 165. Greater degree of care

dolph \[Kan.\] 99 P 224. Employe warned

required in operation of unwararded machine

when operator knew the danger. Harris v.

neath heavy timber being raised by derrick

Bottum \[Vt.\] 70 A 560. No recovery by en-

ploye who removed sunned from cylinder and

timber was being raised, or who knew of

but his hand in to remove obstruction when

his own knowledge that it was dangerous

he could have waited until machine stopped.

totheish v. Cohankus Mfg. Co. \[Ky.\] 112

by timber falling upon him, guilty of con-

SWV 899. Ordinarily jumping off or on

thirty negligence. Wallace v. Spellacy,

has car is held contributory negligence.

Dortch v. Atlantic Coast Line R. Co. \[N. C.\]

was supposed to work in pit beside * 12 Cur. Law. MASTER AND SERVANT SS 3G.

- 134
- 135 \_Beliance on master's care.\_See 10 C. L. 177.--A servant is not negligent in relying to u reasonable extent on the assumption that the master has or will perform his duties with respect to the safety of his employees,71 unless he has actual or implied knowledge to the contrary.72 He may also reasonably rely on an assurance of safety by a superior,73 and may assume that the execution of an order given by a superior will place of work, while machines were at rest, Plaintiff struck in eye by flying steel allver and in returning took dangerous route and from hammer or chissel while holding rail was caught in cogs. Schomonske v. Asphalit v. Trijerina (Texa. Civ. App.) 111 SWV 239.
- 136 \_for death of skilled steel construction work-\_Plaintiff, struck by chip from defective sidege yielded by helper was not negligent aired place. Monderson v. Roebling Const. Co. \[N. Y.\] 86 NE 807. Where plaintiff, while engaged in operating a planning machine, choose to insert his fingers between the feed-rollers to remove a knot, instead of a walling himself of one of several safe steps, his injury was held to be brought about by his own negligence. McNeilly v. N. O. Nelson Mfg. Co., 140 Ill. App. 34. Where servant undertook to oil planer without stopping knives, which he could easily have done, he was held guilty of contributory negligence. Boehne v. Illinois Cent. R. Co., 140 Ill. App. 66. Pharkeman selected his own appliance with which to push ear on an idea track, and stood on engine pilot to do work. Appliance proved too short, and he was crushed as engine moved against car. He could have stood on ground. No recovery. St. Louis. etc., R. Co. v. Fuller \[Ark.\] 109 SV 1160. No recovery for death of employe drawing off water from locomotive, enused by defect in blow-off pipe, defect being obvious, and proper and safe pipes being available, which it was his duty to use. Atshion, etc., R. Co. v. Stone, 77 Kan. 642, 95 P 1049. No recovery where operator of power press attempted to remove card board without stopping machine, as he might have done. Whippen v. Stone, 197 Mass. 51, 83 NE 898.
- 137 \_Employe cannot be held negligent in selecting a method of work unless he knew of a safer way. Ramm v. Hewitt-Lema Lum. spr 625. Car register not conclusively negg-ber Co. \[Wash.\] 84 P 1081; Harris v. Wash-ington Portland Cement Co. \[Wash.\] 95 P 84. Braekeman, finding he could not remove angle eeck by reaching under draw bar, not negligent for reaching over it. McGuire v. Chicago, etc., R. Co. \[Iow.\] 116 NW 801.
- 138 \_Employe held not negligent: Braekeman attempting to use drop br brinke on flat car without examining it, though he had for not making more than casual inspection. Barkley v. South Atlantic Waste Co., Norfolk & W. R. Co., 162 F 750. Brakeman killed by stepping into trench beside track while in performance of duties. Southern R. Co. v. Newton's Adm?r, 108 Va. 114, 60 SE
- 139 \_Conductor injured because of mis-placed rail of which he was not chargea-ble with notice. Chicago, etc., R. Co. v. Plaintiff struck by chip from defective sidege yielded by helper was not negligent as matter of law in falling to discover its Lanne v. U. S. Gypsum Co., 110 SY 496. Not negligence for driver in mine to rely on insepection of roof by exammer and to look only for notices of danger, roof having soildated Troup. Min. Co., 212 Mo. 524, 111 Calon Co., 232 Ill. 473, 83 NE 957. Miner not negligence is made of a different kind of work in the first place.
- 140 _Employe held not negligent:_ \[Ark.\] 87 P 760.
- 141 _Employe held not negligent:_ \[Ark.\] 87 P 761.
- 142 _Employe held not negligent:_ \[Ark.\] 87 P 762.
- 143 _Employe held not negligent:_ \[Ark.\] 87 P 763.
- 144 _Employe held not negligent:_ \[Ark.\] 87 P 764.
- 144 _Employe held not negligent:_ \[Ark.\] 87 P 765.
- 145 _Employe held not negligent:_ \[Ark.\] 87 P 766.
- 146 _Employe held not negligent:_ \[Ark.\] 87 P 766.
- 147 _Employe held not negligent:_ \[Ark.\] 87 P 767.
- 148 _Employe held not negligent:_ \[Ark.\] 87 P 768.
- 149 _Employe held not negligent:_ \[Ark.\] 87 P 769.
- 150 _Employe held not negligent:_ \[Ark.\] 87 P 760.
- 151 _Employe held not negligent:_ \[Ark.\]

### Master and Servant $ 3G.

12 Cur. Law.

not expose him to any unusual danger,7 unless he has knowledge of the danger involved,7 and such known danger is one which an ordinarily prudent person would not have encountered under the circumstances.7 Similarly, the servant may rely to a reasonable extent on the assumption that work will be done in the customary man.

1017. Miner went into new shaft, after assurance that "a1r" was all right, and commenced to remove material and water, under special odra, with another car whose whereby powder gams imprisoned there was "crew had not been notified of plaintiff" apliberated and overcame him. Held not negligent. Sales v. Whitney, 130 Mo. App. 412, 110 SV 55.

0001. Employive who receives specific order may rely upon assumption that he will not be ordered into danger. Chicago, etc., R. Co., V. Sanders \[Ind. App.\] $ 8 NE 430. Evidence warranted finding for plaintiff where he obeyed order of his immediate superior in olling machine, and was inexperienced and was injured while dolng work with only auliable appliance and in customary way. Avery v. West Lumber Co., 146 N. C. 592, 60 SE 646. Whether servant is negligent in obeying supervisor's orders, even though in so doing he undertakes an extra hazard, is in every case a question for the jury. South-ern R. Co. v. Rutledge (Ga. App.) $ 60 SE 1011. Whether "train dispatcher was just filled in believing that order of assistant train master was authorized or whether he caused by defect in track or negligence of configure train to proceed before preceding one was clear of block, for jury. Simmons v. Norfolk & V. R. Co., 162 F 72. That work is done pursuant to direct command of master may be considered on issue of servant's conduct. Hobbs v. Small \[Ga. App.\] $ 82 SE 91. Employive not negligent where he relied on superior knowledge of superintendent, under whose directions he worked. Brosnan v. New York, etc., R. Co., 200 Mass.

221, 85 NE 1050. It is servant's duty to obey orders of his superior unless in doing so he exposes himself to manifest hazard or places himself in obviously danger-ouse position. Southern R. Co. v. Rutledge (Ga. App.) $ 101. Jury could consider that foreman had directed car repair to find hot journal of car in determining whether he was negligent in putting arm overc rail to feel of one, where car ran over it. Jelinek v. St. Paul City R. Co., 104 Minn.

249, 116 N NV 480. That conductor ordered brakeman to go between car and engine to do certain work was to be considered on question of his contributory negligence, though order was inconsistent with general rules. Hudquist v. Empire Lumber Co., 104 Minn. 505, 116 N NV 1019. Deck hand ordered for first time to go upon platform on barge, at night, could rely on assumption that it was reasonably safe and, having no actual prior knowledge of its condition, was ohergeable only with notice of obvious conditions. Monoghaleva River Consol. Coal & Ooke Co. V. Coleman, 82 Xy. L. R. 1347, 108 SVW 850. Plaintiff not negligent where injured while digging in manhole according to instructions, part of unhraced concrete wall of manhole having fallen on him. Ward v. Edison Electric Illumination Co., 124 App. DIV. 22, 108 NYS 608. Where foreman devised method used to load enable on wagon, and ordered plaintiff to assist, latter was not negligent in working in face of obvious danger. Kennedy v. Laelede Gaglight Co., 13 Cur. Law. MASTER AND SERVANT SS 3G.

ner 17 that customary signals will be given and observed,78 that usual or promised warnings will be given,78 and the rules observed.80

_Disobedience of orders and violations of rules.80e 10 C. L. 715_--Violation of a reasonable rule of the master, known to the servant,81 or which ought to have been known to him,82 and applicable to the situation in question,88 while not negligence 77. Plaintiff, injured while transferring 5 SWV 455. Car repairer, struck by cars, not truck of baggage with elevator was not negligent in failing to look and listen, where negligent in not seeing that truck was prop- he saw engine coming, and was getting out cry laded, it being customary to rely on other baggage man for loading. Turner v. 155 peer cars, since rules of company prohibit-Terminal R. Asz'n, 132 Mo. App. 38, 111 Saflyston, etc., K. Co. v. Conteosen \[Tex. SV 841.

78. Switchman not negligent where ears (Civ. App.) 111 SVV 187. Section hand just-were moved without signal by engineer.

fed when he saw freight train ahead, In Penny v. SL. Joseph Stockyards Co., 312 Nejplens on observance of rule requiring No. 309, 111 SVV 79. Brakenman in perform-name to be out with torpedo, and not see-ance of duties may rely on assumption (ing flagman, was not obliged to look for that signal to stop will be obeyed. Room-trende on track. Galveston H. & M. R. tranz v. Chicago, etc., R. Co. \[Iowa\] 116 NWV 714. Brakenman engaged in switching operations, got foot caught between ties, and on-simeer backed car over it. He was not negligent as matter of law since he had (Lark.) 114 SWV 224. Brake-right to assume that engineer would obey his signal to stop, and would be on lookout for it. Id.

79. Servant, especially minor, engrossed in work, has fight to rely upon giving of customary signals or warning before being placed in place of danger. Fitzgerald v. Ingramational Flax Turbing Co., 104 Minn. 138, 116 NWV 475. When plaintiff's intestate was struck by switch engine engine which came upon him without usual warnings by bell, he was not negligent as matter of law in relying being between moving cars had been common-solely on customary warning, and not taking further precautions for his own safety.

Hines v. Stanley-G. I. Elec. Mfg. Co., 199 Natas. 522, 85 NE 851. Track employ, en-szeer in duties, not negligent as matter of 657.

law in failing to discover approach of train in time, where watchman was employed to (like) and enforce them. International & give warning, and failed to do promptly.

G. N. R. Co. v. Brice \[Tex. Civ. App.\] 111 App. 705, 109 NTS 428. Plaintiff not negligent in going between cars to effect (car coupang, negligence on part of motor-coupling, as directed, being unfamiliar with (man, where he had had two weeks in which work, and injured by reason of another car to read them and only excuse was lack of being pushed against those he was coup-ling, without warning. Pecard v. Menominee Foley v. Boston, etc., R. Co., 198 Mass. 532, River Sugar Co. \[Mich.\] 15 Det. Leg. N. 84 NE 846.

846, 116 NWV 832. Whether plasterer work- using In elevator shaft, after foreman had (ting employees from riding on side of cars promised to tell him when elevator would next to obstructions such as sheds, etc., start running, was negligent in not observ-), which plaintiff violated. Collins v. Mineral 119, on going to work, that elevator had as-cended, being injured by it, when it came (Folding on cars on side of track where there jury. Larson v. Haglin, 103 Minn. 267, 114 NWV 958. Employo, in part of building where (b). It Rules of railway company held warning, if given, of starting of machinery, (c). It may be been violated by brakeman, in-could not have been heard, had no right to (f).

Fely upon such warming. McKenna v. Gould

Wire Cord Co., 197 Mass. 406, 83 NE 1113.

80. Brakenman, going between ears to un-quiring fingman to go certain distance to couple air hose, had right to rely on as-car of trains stopped at unusual places (c).

sete, applies only to trains on man tracks; and await customary signals before backing (b).

held not applicable where engine left train into train. Brady v. Florence, etc., R. Co.

on aiding to go distant water station. Men-\[Colo.\] 88 P 821. Not negligence for switch (c).

cham v. Southern R. Co. \[N. C.\] 62 SE 879.

foreman to pass between car and post where (b).

he had right to assume, under rules, that (tween cars to which engine was attached, cars would not be moved without signals.

Cunningham v. Neal \[Tex, Civ. App.\] 109 included permission to go between them to

### Master and Servant $ 3G.

12 Cur. Law.

per se,\* is prima facie evidence of negligence,\* unless the rule has been abrogated by its customary violation,\* with the knowledge and acquiescence of the master.\*

uncouple air hose. Southern R. Co. v. Shun mate, $ 3$ Ky. L. R. 1027, 107 SWV 737. Ralli-road rule, construed as whole, held not to prohibit brakeman from going between siz-Fieden \[Tex. Civ. App.\] 20 Tex. Ct. Rep. #30, tionary cars to couple them when engine was not attached to train. Driver v. South-ern R. Co. \[Miss.\] 46 S 824. Whether rule violated by switchman who went between cars to uncouple them had been abrogated by habitual violation by employers, and whether it was applicable to deceased, for jury. Austin v. Centurl of Georgia, R. Co., $ 3 Ga. App. 175, 61 SE 928. Switch engineer not negligent in going forward onto main track on signal from switchman who had gone ahead, though switchman had not yet turned switch, collision resulting, though rule provided trains should not proceed to terminals, junctions, crossings, etc., unless tracks were seen to be clear and lights right. Dwyer v. Northern Pac. R. Co. \[Min.\] 118 NWV 1020. That general off-fecars of defendant company forbade plain-tiff's running motor would not defeat recovery if he was meting pursuant to his fore-nus's orders. Mitchell v. Boston & M., etc., Min. Co., $ 37 Mont. 575, 97 F 1083. Employee not bound to observe general rules of suprelented in preference to orders of fore-mann who is present. Wiley v. St. Joseph Gas Co., 132 Mo. App. 380, 111 SWV 1185.

If rules or instructions are ambiguous or equivocal, and capable of more than one reasonable and practical interpretation, they should be construed most strongly against the master and in favor of the employee. Railroad rules for flagging trains and conductor's orders. Georgia, etc., R. Co. v. Saszer \[Ga. App.\] 61 SE 505.

84. Violation of train rules is element of contributory negligence, and question may be for jury in view of all the facts and master's duties. Yongue v. St. Louis & S. F. R. Co. \[Mo. App.\] 112 SWV 885. Violation of rule prohibiting employees going between cars is not negligence in all cases. Texas & L. O. R. Co. v. Jackson \[Tex. Civ. App.\] 112 SWV 628. Whether brakeman, crushed between cars, was negligent in going between them, though he violated rule (if it had not been abrogated) in so doing, for jury. St. Louis S. W. R. Co. v. Shipp \[Tex. Civ. App.\] 109 SWV 286. Engineer killed while running engine backward at excessive speed in violation of rule. Whether rule had been abrogated by habitual violation of it, whether deceased knew thus, whether track was defective and whether running engine at such speed or condition of track caused accident, held for jury. Hampton v. Chicago & A. R. Co., $ 26 Ill. 249, 88 NE 243.

01. Violation of reasonable rules bars re-eovery. Yongue v. St. Louis & S. F. R. Co. \[Mo. App.\] 112 SWV 985. If employee v violates rules or instructions which are clear and unambiguous, and his action in so doing contributes to his injury, he cannot recover. Georgia F. & A. R. Co. v. Sasser \[Ga. App.\] 61 SE 605. Violation of rules or orders which are being enforced by master constitutes contributory negligence. Smith v. Atlantic & C. Air Line R. Co., $ 147 N. C. 603, 61 SE 575. No recovery warranted for injuries a signal man caused by his\* 18 Cur. Law. MASTER AND SERVANT SS 3G.

- 193

Violation of orders or disregard of instructions or warnings is usually held to constitute negligence.\[88\]

\_Emergencies.\_See 10 C. L. 177.--A servant suddenly confronted with an emergency or with an unexpected danger is not required to act with the same deliberation and foresight that might be expected of him under ordinary circumstances.\[89\]

consin Cent. R. Co., 104 Minn. 58, 116 NWV ry to instructions, and without giving customary signal to stop. Bowers v. Norwich Sharmacal Co., 124 App. Dlv. 31, 108 NYS with knowledge and tacit consent of mass.

- 1958 Disobedience of orders to stand in center or representatives Is abrogated or waived. Austin v. Central of Georgia R. Co., 3 Ga. App. 776, 61 SE 998. Notice of veta- tion of safety, but on convenience of work.
- 1968 Unrolling of order of hardware of hab- Usulation by yard employees of rule pro- hibbling employees from going between cars and requiring coupling and unequpling to be done with stick would be notice to compare. Id. Evidence held not to show vailored or collaps?. Collins v. Mineral Point & N. R. Co., 126 VWs. 421, 117 NWV 1014. Violation of a company's rules by employees of another company will not work an implied abrogation of the rules. Id. VWhether rule forbidding employs from go- ordinary and reasonable care in the light of items between moving cars had been abandoned by habitual violation sequestered in, time. That he did not take the safest or for jury. Matthews v. New Orleans & N. E. Best course will not defeat recovery. Mur. R. Co. \[Miss.\] 47 S 657.
- 1970 New YV Discovery of servant's peril; intervening negligence.Sew 10 C. L. 177--There may be a recovery notwithstanding contributory negligence if subsequent thereto defendant negligently failed to prevent injury after discovery of the servant's danger," provided the servant was himself free from negligence after becoming conscious of danger." There can be no recovery if the employee was guilty of negligence concurrent with the subsequent negligence of defendant."

(SS 3) $H$. Actions. 1. In general.Sew 10 C. L. 178--Only questions peculiar to actions to recover for personal injuries to servants are here treated."

Conditions precedent; notice.Sew 10 C. L. 178--Under some statutes the giving of a notice stating the time, place and cause of injury is a condition precedent to the maintenance of an action based on the statute." Decisions as to the sufficiency of

backwards, to scare children who were hanging on side of car, and was struck by post. Children not being in commitment dan-engineer was negligent in falling to stop ger, and brakeman not aiming to rescue them but to frrighten them away, his conduct has not excusable. Id. Act done in an emergency to save employer's property is not negligent as matter of law. Kansas City Consol. Smelling & Refining Co. v. Taylor \[Tex. Civ. App.\] 107 SWW 889. Not confidentiality negligence for man in charge of engine to try to stop it when it was "run- using away," governor being defective. Crosby V. Cuba R. Co., 158 F 144. PlainDiff not negligent as matter of law where he was scaded by steam from valve which he thought it necessary to close to protect master's property, believing that promised repairs on valve had been made so that he could safely use his hands, place being dark using car from track, company would not with steam at time. Kearsev v. Narragan-sett Brev. Co. \[IR. L.\] 69 A 506. Where con-ductor got on heavily loaded moving car to try to stop and save it, and brakes failed to hold, and car was derailed by defect in track, he was not guilty of negligence in jumping from the car to escape danger with which he was suddenly confronted, though he would have escaped injury had since action hands would get off he remained on car. Dorch v. Atlantic Coast Line R. Co. \[IN. C.\] 62 SE 616. The employee owes his employer the duty of or-dinary care to preserve the latter's property, and in putting forth efforts to that and he is not a mere volunteer. United States Cement Co. v. Koch \[Ind. App.\] 85 NE 640. But he is bound by the same rules as govern him in the performance of his ordinary duties. Thus he assumes incident risks. Id.

90. Contributory negligence does not affect right of recovery for negligence injury after discovery of plaintiff's peril. Inter-national & G. N. R. Co. v. Aleman \[Tex. Civ. App.\] 115 SW 73. Evidence warranted charge on discovered peril where section foreman was struck by train while removing hand car from track. Houston & T. C. R. Co. v. Burnett \[Tex. Civ. App.\] 108 SWW 404. Fact that flagman was boarding car instead of at his station when he was injured by negligent coupling would not defeat recovery when it was admitted that coupling was made with knowledge of his position. Meacham v. Southern R. Co. IN. C.\] 62 SE 679. Negligence of employee resulting in his falling from car held not to bar recovery for his death caused by superintendent's negligence, who caused ear to run over employee, knowing his dan 12 Cur. Law. MASTER AND SERVANT SS 3H3. 777 such notice, under the statutes of Massachusetts " and New York," are given in the notes. A provision of the contract of employment requiring notice of an injury may be waived." Such a waiver need not rest upon a consideration, nor does it depend upon technical estoppel."

(SS 3H) 2. _Parties."_--Plaintiff need not join as defendants all the members of the partnership which employed him,1 but judgment in a separate suit will bar a subsequent action.1

(SS 3H) 8. \_Pleading and issues. The complaint or petition See 16 C. L. 178 must show the existence of the rela.'on of master and servant," that the servant was acting within the scope of his employment when injured,4 and the existence and breach of

111 SSV 159. The amendment to the Kan- jury "was your negligence and that of your sas railroad employee's liability act (Laws 1903, c. 383), requiring notice of injuries sent and defective erection and malte-within 90 days, does not require notice to be given by the administrator of an em- used," etc., was held insufficient. Glynn v. player of an injury causing death. Missouri Pac. R. Co. v. Larussi \[C. C. A.\] 161 F 66. 50. Where there is evidence that injured cause that injury was "due to your negligencevant died without having been for 10 days at any time after injury of sufficient proper place to work in, and your negligence capacity to give notice required by Rev. In omitting to furnish safe and proper ap-Laws, c. 108, s 75, it is sufficient if it appears that such notice was given at any time before action was brought. Finneran 846, 110 NYS 887. Under statute, mere tan-v. Graham, 198 Mass. 858, 84 NE 478. It may be given on same day that writ is sued that there was no intention to mislead. out, but plaintiff must then show that it was

Notice curable by proof where it contained in fact given before the writ was sued out.

Seeral statements but also one more or No recovery where this showing was not

less specific charge of negligence. Young v. made. Id. The purpose of the notice

Bradley, 118 NYS 264. But a mere general is to give the employer information as to

statement is not an inaccuracy within this the time, place and cause of the injury,

provision. Id. Informality in notice as to

and not to advise him specifically of its de-designation of place held Immaterial in

tails or defects. Unnecessary amplification

view of defendant's actual notice. Doen v. which turns out to be incorrect will not

McClintock-Marshall Const. Co., 114 NYS

invalidate a notice containing required facts.

28. The employer has the right to rely on

Herliny v. Little, 200 Mass. 284, 86 NE 294. Absolute compliance with the statutory re-

Description of injury is not required. No-

qurement as to notice, and a defective

tee not to be construed with technical re-

notice cannot be cured or aided by showing

Mement. Id. Notice under Rev. Laws.

knowledge of the employer gained from

c. 106, 171, charging defendant with neg-

other sources. Palmeri! v. Pearson, 112 NYS

ligence, is broad enough to cover and ad-

84.

mit proof of negligence of a superintendent.

Berube v. Horton, 199 Mass. 421, 85 NE 474.

96. Whether notice was served within 10

company which within 30 days began ne-

days after plaintiff recovered from disulph-

gotiations with employe for settlement of

ity held question for jury. Trotto v. Bellew & Merritt Co., 111 NYS 583. If notice

what was right. Missouri, K. & T. R. Co. under statute is insuffent, common-law

rules prevail. Kennedy v. New York Tel.

98, Missouri, K. & T. R. Co., v. Walker

Co., 125 App. Div. 846, 110 NYS 887. The

statutory notice of injury need not state

99. See 10 C. L. 779. See, also, in general, facts with the same degree of accuracy

article on Parties, 10 C. L. 1081.

and definiteness required in a pleading.

1. May sue one if he elects. Gawne v. O'Donnell v. John H. Parker Co., 125 App.

Bicknell, 162 F 587.

Dlv. 476, 109 NYS 875. Notice of injury suf-

2. Gawne v. Bicknell, 162 F 587.

Hecent. Eddington v. Union R. Co., 109 NYS

3. Plaintiff must allege existence of relation of master and servant, but need not al-

injury, sufficient. Lobasco v. Moxle Nerve

Food Co., 111 NYS 1007. Notice of injury by

reason of failure to furnish safe scaffold

held sufficient. O'Donnell v. John H. Parker

Co., 125 App. Div. 475, 109 NYS 875. State-

ment of time, place and cause, sunffent

(two justices converting in result, but

holding notice Insuffent). Mutresile v.

Millien Brox., 11 some duty owed by the master to the servant at the time of the injury.8 A mere allegation of duty is insufficient; facts showing a duty to exist must be alleged.8

Footnote 8: The _Linux_ package is available at http://www.linux.com

## 12 Cur. Law. Master and Servant SS 3H3.

Allegations of negligence must be sufficiently certain and specific to inform defendant of the nature of plaintiff's claim," but a general allegation of negligence is usually held sufficient as against a demurrer * if the facts alleged show a legal duty and a violation thereof. Evidentiary facts need not be pleaded," nor is it necessary to plead nonissualbe facts constituting mere conditions." Knowledge by the master, actual or constructive, of the alleged defective or dangerous condition must be made to appear," but where it appears from the complaint that the defect is one of construction,

motive power of which was electricity, held sufficient, as in law it raised duty upon master to so control electricity that it would not injure plaintiff while in due care, although the particular respect in which defendant had failed in this duty is not set out. Miller v. Chicago & Oak Park El. R. Co., 132 Ill. App. 41. Duties of defendant to plaintiff, alleged to have been violated, must be distinctly alleged, but If the duties sufficiently appear from the allegations of the breach thereof the declaration will be held good on demurrer, allegations of duty being in such case superfluous. Squilache v. Tide. Water Coal & Coke Co. \[V. Va.\] 62 SE 446.

7. Pettion held sufficient to state negligence in loading of car with lumber which slipped and pushed plaintiff, brakeenan, off. Southern Pac. Co. v. Godfrey \[Tex. Civ. App.\] 107 SVW 1135. Count held to allege unastery of machine provided to unload steel blites with sufficient certainty. Louisville & N. R. Co. v. Lile \[Ala.\] 45 S 699. Petition alleging that platform through which plaintiff fell was unsafe and negligently constructed, that it did not completely cover excavation, held to point out defect sufficiently. Louisville & N. R. Co. v. Carter \[Ky.\] 112 SVW 904. Count based on employment of incompetent employee held sufficient to show his infelligence. Louisville & N. R. Co. v. Lile \[Ala.\] 45 S 699.

Complaint alleging that "said belt broke and a piece thereof few off and struck plaintiff in the right eye" held to describe accident sufficiently. Dittman v. Edison Elvec. Illu-minating Co., 125 App. Div. 611, 110 NYS 87, 81.

Allegation of defects and negligence sunfl-ently specific where nation was for death of servant due to fall of skip in mine. Cristanell v. Sagnaw Min. Co. \[Mich.\] 15 Det. Leg. N. 784, 117 NVW 910. Negligence relied on must be charged in terms, or facts that be alleged which will compel the inference of such negligence as will constitute the proximate cause of the injuries sustained. Cleveland, etc. R. Co. v. Perkins \[Ind.\] 86 NED 405. Complaint in action for death of brakeman struck by low bridge, held to point out sufficiently negligence relied on. Maintenance of bridge too close to tops of ears. Chesapeake & O. R. Co. v. Rowsey's Adm'r, 108 Va. 623, 62 SE 363. Alleration that "defendant knew of defective condition of condenser, on account of the fact that for several days precludes to the explosion the engine had not been properly working, and had by its actions given full warning that it was in a dangerous and defective condition," held subject to special demurrer because not setting out in what respect it was not working properly and what its actions was due to defects in mechanism rendering were. Green v. Babcock Bros. Lumber Co., 180 Ga. 469, 60 SE 1062. Defendant entitled to bill of particulars where complaint simply alleged, in substance, that defendants, their servants, agents or employees so negligentlyan allegation of the employer's knowledge of it is not essential.18 It must also appear that the negligence or wrongful act alleged was the proximate cause of the injury.18 The servant's want of knowledge should be made to appear,14 and a mere allegation is insufficient without the averment of facts showing lack of knowledge,18

12 Cur. Law. MASTER AND SERVANT SS 3H3.781

and is unavailing where facts alleged show that danger was obvious.16 A complaint is demurrable if it shows on its face, conclusively and as a matter of law, that the servant assumed the risk,17 or was guilty of contributory negligence.18,19 There is a conflict of authority as to whether the complaint must show affirmatively that the injury was not due to the act or negligence of a fellow-servant,20 and that the servant was in the exercise of due care,21 and did not assume the risk.22 Where negligence of a superior servant is relied upon, facts should be alleged showing that he was a vice-principal.23 All facts material and necessary to the cause of action must be directly alleged, and not merely by way of recital 24 or conclusions of the pleader.23

16. Allegation that servant did not know negligence. Johnson v. Desmond Chemical place was unsafe mere conclusion and un- Co., 162 Mich. 84, 15 Det. Leg. N. 138, 115 NW availing as against demurrer when facts show that danger was obvious. Berry v. 20. The complaint must show affirmatively that the injury was not due to the negli- Knowledge of danger by employe should fence of a fellow-servant. Allegation that not be inferred, so as to impeach an allega- plaintiff was servant of defendants, and that tion of freedom from fault, unless such names, defective. Duffy v. Jacobson, 135 IL Green v. Babcock Bros. Lumber Co., 180 Ga. App. 472. A complaint must state that the negligent servant and the plaintiff were not 17. Section for death of employee properly dismissed where its allegations show that conclusion must follow, or averments which employe knew or ought to have known the false that question when a plea of not guilty damerer incident to the use of the defective appliances, as well as the defects. Boloton v. 156 Od. 456, 60 SE 1047. Where complaint allegating injuries from fail of skip in mine set up failure of master to provide suitable rules, so that en- since would be required to remain at his post, and did not show knowledge by plain- curred by verdict. Id. Complaint bad which tiff of want of such rules, it was not demurrable for failure to negative assumption of risk. Cristanelli V. Saginav Min. Co. \[Mich.\] 15 Det. Leg. N. 784, 117 NW 910. Complaint held not to show that plaintiff knew of trap 21. Contributory negligence is matter of door in warehouse through which he fell. Taylor v. Palmer & Co., 191 La. 710, 46 S 703. 18, 10. If complaint above contributory negligence on its face it is bad on demurrer, German-American Lumber Co. v. Brock though contributory negligence is matter of defense. Pein v. Misnerr, 170 Ind. 659, 84 NE 981. Where complaint for injuries caused in manige with unguarded rollers alleged that plaintiff's hand was "nadvertently" caught in relieve, it was demurrable because dis- claimg controversy negligence on its face. Ruber Co. \[Conn.\] 71 A 546. 16. Declaration alleging that flagman or risk. Pennsylvania R. Co. v. Forstall \[C. signals to engineer, being ordered so to do by conductor, and that he was injured by defendants' negligence while so engaged, does not show contributory negligence as matter of law. Atlantic Coast Line R. Co. v. Beazley \[Fla.\] 45 S 761. Declaration alleging injury by being struck by saw log owing to providing unsafe saw and falling to warn held not to show contributory negligence. German-American Lumber Co. v. Brock \[Fla.\] 46 S 740. Complaint for death of miner caused by failure to prop roof held not defective for failure to allege whether he was killed in his room or in an entry, on theory that it was his own duty to prop 1043. 16. 17. 18. 19. Declaration alleging that employee was sent to do work outside scope of regular duties, without warning or in- struoting as to danger, and that he was in the exercise of due care when injured, and in the work of contributors 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 31. 34. 39. 32. 35. 37. 39. 38. 39. 39. 31. 39. 32. 34. 39. 33. 35. 39. 36. 37. 38. 39. 39. 39. 31. 39. 32. 39. 33. 34. 39. 35. 37. 39. 38. 39.

### 782 Master and Servant $3h3.

12 Cur. Law.

_Pleading statutory causes of action._ See 10 C. L. 178.--Where violation of a statutory duty is relied upon, facts must be alleged which bring the case within the terms of the statute.28 If the facts pleaded show breach of a statutory duty, specific reference to the statute is unnecessary,27 since the court will take judicial notice of the statute.28 Decisions as to pleadings in actions based on various statutes are given in the note.29

\[Tex. Civ. App.\] 109 SVW 373. Counts based on negligence of fireman in falling to keep proper lookout for brakeman, engaged in building operation of mines held defective on ground that they showed fireman to be brakeman's fellow-servant, and on other grounds. Bryant v. Alabama G. S. R. Co. \[Ala.\] 46 S 484.

24 Cleveland, etc., R. Co. v. Perkins \[Ind.\] 86 NE 405. Where the common-law fellow-servant doctrine of another state is relied upon as showing that deceased servant and negligent employees were not fellow-servants, this law must be directly alleged as fact; more recalc or conclusion of pleader held demurable. Wabash R. Co. v. Hassett, 170 Ind. 370, SS NE 705.

25. Mere allegation that it was duty of plaintiff to do such work as was required did not show that duty required certain act when hand was caught in knives of planer. Vigo Cooperage Co. v. Kennedy \[Ind. App.\] 85 NE 986.

26 Where the cause of action is penal in nature, plaintiff, relying thereon, must allegec specifically every fact necessary to bring it within the terms of the act. Lagier v. Bye \[Ind. App.\] 85 NE 36. Count alleged negligence in furnishing of unsafe machine for work, combined with negligence in employment of incompetent servant to assist in its operation. Held to state common-law cause of action and not one based on Code 1896, 1749. Louisville & N. R. Co. v. Lile \[Ala.\] 45 S 699.

27. If facts pleaded show cause of action under Laws 1905, e. 385 (guarding of elevators), specific reference to statute is unnecessary. Fowler Packing Co. v. Enzenberger, 77 Kan. 406, 94 P 985. Recovery may be had under Laws 1906, p. 1682, e. 657, making certain railroad employees vice-principals, though statute is not specifically pleaded, it facts alleged show cause of action thereon der. Schradin v. New York, etc., R. Co., 124 App. Dlv. 705, 109 NYS 428. Demand for bill of particulars is remedy if greater certainty desired. Id.

28 Squilache v. Tidewater Coal & Coke Co. \[Vv. Va.\] 62 SE 446.

29, Alabama: Complaint based on Code 1896, $ 1749, allegging that injuries were caused by one in defendants employment who had superintendence entrusted to him, whilst in the exercise of such superintendence, held suffucient. Western Steel Car & Foundry Co. v. Cunningham \[Ala.\] 48 S 109. Count alleging furnishing of unsafe machine to do work, based on Code 1896, $ 1749, subd. 1, making master liable for injuries caused by defects in ways, works, machinery and plant, held not defective because not starting name of servant charged with furnishing machine. Louisville & N. R. Co. v. Lile \[Ala.\] 45 S 699.

Connecticut: Direction by superintendent sufficiently alleged though his exact words, * 12 Cur. Law. Master and Servant $ 3H3. 783

Defenses; the answer. See 10 C. L. 174.-It is usually held that the defenses of contributory negligence,\[30\] assumption of risk,\[91\] and negligence of fellow-servant,\[82\] are affirmative in character and not available to defendant unless specially pleaded, or unless they are affirmatively shown by plaintiff's pleadings or evidence.\[83\] To raise either of these defenses, facts must be alleged; mere conclusions are insufficient.\[34\]

Issues, proof, and variance. See 10 C. L. 174.-Negligence must be proved substantially as alleged,\[85\] and there can be no recovery on grounds not alleged,\[86\] though proof

- 20 Recovery can be defeated only by contributory negligence. Sissel v. St. Louis & S. F. R. Co. \[Mo.\] 113 SWW 1104. Plea to count alleging bama G. S. R. Co. v. We'shorter \[Ala.\] 47 S & negligence in use of switch engine with pilot 84. Defense that plaintiff violated rules and thus caused his injury must be pleaded. Texas & N. O. R. Co. v. Powell \[Tex. Civ. App.\] 112 SWW 697. 81. Assumption of risk must be specially pleaded. Atlantic Coast Line R. Co. v. Beazley \[Fla.\] 45 S 761. The defense of assumption of risk is affirmative in character and must be specially pleaded. Longpre v. Big Blackfoot Mill. Co. \[Mont.\] 99 P 131. Assumption of special risks not among ordinary incidental risks cannot be relied upon unless specially pleaded. Maxson v. Case Threshing Mach. Co. \[Neb.\] 116 NWW 251. Plea setting up contributory negligence held not to require charge on assumption of risk, which defense was not pleaded. Ogilvie v. Conway Lumber Co. \[S. C.\] 61 SE 200. 32. Defense that injury resulted from negligence of fellow-servant must be specially pleaded. Longpre v. Big Blackfoot Mill. Co. \[Mont.\] 99 P 131. Defense that injury was result of negligence of fellow-servant is affirmative; not available unless pleaded. Millen v. Pacific Bridge Co. \[Mo.\] 95 P 196. 33. If contributory negligence, negligence of fellow-servant, or assumption of risk, apparent in plaintiff's pleading or evidence, the defense is available to defendant though not specially pleaded. Longpre v. Big Blackfoot Mill. Co. \[Mont.\] 99 P 131. If plaintiff's own evidence conclusively shows that employee was guilty of contributory negligence, court should grant nonsuit even though contributory negligence be not pleaded in answer. Sissel v. St. Louis & S. F. R. Co. \[Mo.\] 113 SWW 1104.
- 34 Plea of contributory negligence bad & 93, 107 SWW 121. Where petition alleged for failure to show breach of duty resting on miner killed by fall of roof. Maxson Caloi & stop suddenly, and that ends where tracks Co. v. Garrett \[Ala.\] 47 S 149. Plea bad because not alleging miner's knowledge of danger of roof falling. Id. Plea alleging that plaintiff place of safety and went near pulley and negligently allowed himself or his clothing to come in contact therewith when the used idler to shift it, a promise to attribute contributory negligence. Alabama Chemical Co. v. Niles \[Ala.\] 47 S 283. Where count alleged negligence in failing to prevent injury after discovery of brakeman's dangerous position, a plea of contributory negligence was insufficient which failed to show negligence of employee injured subsequent to alleged negligence of those causing injury. Bryant v. Alabama G. S. R. Co. \[Ala.\] 46 S 484. Plea stating that servant voluntarily and knowingly placed himself on the track in front of a train and remained there until struck by it, when by the exercise of ordinary care he could have stepped pile of judgment, and evidence showed only negligence of defendant in failing to floor, on which negligence was based, plaintiff had removed spring on latha, and proof showed that plaintiff had disappeared this order and used spring. Balkwfill v. Becker, 131 Till. App. 221. Variance fatal where negligence alleged was that defendant's euperin-tendent directed plaintiff to go to work on pile of lumber, and evidence showed only negligence of defendant in failing to floor, as did not change to work on pile of lumber, and evidence showed only negligence of defendant in failing to floor, as did not change to work on pile of bumber, and evidence showed only negligence of defendant in failing to floor, as did not change to work on of any one of several grounds alleged is sufficient." If a cause of action alleged is proved, it is immaterial that other causes, not alleged, are also proved." Where negligence is specifically alleged, proof of subsequent negligence, after discovery of plaintiff's peril, is not admissible unless alleged," though general allegations of negligence, without specifying particular acts, would include subsequent negligence."

(SS 8H) 4. _Evidence, burden of proof, presumptions._" 10 C. L. "The burden is upon the plaintiff to prove negligence of the master as alleged " and that such

Lumber Co. v. Clifton, 85 Ark. 322, 108 SW SW

216. Where complaint alleged that flagman was engaged in duty of flagging train when struck and killed by it, there could be no

001. _Evidence, burden of proof, presumptions._" 10 C. L. "The burden is upon the plaintiff to prove negligence of the master as alleged " and that such

Lumber Co. v. Clifton, 85 Ark. 322, 108 SW SW

216. Where complaint alleged that flagman was engaged in duty of flagging train when struck and killed by it, there could be no

001. _Evidence, burden of proof, presumptions._" 10 C. L. "The burden is upon the plaintiff to prove negligence of the master as alleged " and that such

Lumber Co. v. Clifton, 85 Ark. 322, 108 SW SW

216. Where complaint alleged that flagman was engaged in duty of flagging train when struck and killed by it, there could be no

001. _Evidence, burden of proof, presumptions._" 10 C. L. "The burden is upon the plaintiff to prove negligence of the master as alleged " and that such

Lumber Co. v. Clifton, 85 Ark. 322, 108 SW SW

216. Where complaint alleged that flagman was engaged in duty of flagging train when struck and killed by it, there could be no

001. _Evidence, burden of proof, presumptions._" 10 C. L. "The burden is upon the plaintiff to prove negligence of the master as alleged " and that such

Lumber Co. v. Clifton, 85 Ark. 322, 108 SW SW

217. Where complaint alleged that flagman was engaged in duty of flagging train when struck and killed by it, there could be no

001. _Evidence, burden of proof, presumptions._" 10 C. L. "The burden is upon the plaintiff to prove negligence of the master as alleged " and that such

Lumber Co. v. Clifton, 85 Ark. 322, 108 SW SW

218. Where complaint alleged that flagman was engaged in duty of flagging train when struck and killed by it, there could be no

001. _Evidence, burden of proof, presumptions._" 10 C. L. "The burden is upon the plaintiff to prove negligence of the master as alleged " and that such

Lumber Co. v. Clifton, 85 Ark. 322, 108 SW SW

216. Where complaint alleged that flagman was engaged in duty of flagging train when struck and killed by it, there could be no

001. _Evidence, burden of proof, presumptions._" 10 C. L. "The burden is upon the plaintiff to prove negligence of the master as alleged " and that such

Lumber Co. v. Clifton, 85 Ark. 322, 108 SW SW

217. Where complaint alleged that flagman was engaged in duty of flagging train when struck and killed by it, there could be no

001. _Evidence, burden of proof, presumptions._" 10 C. L. "The burden is upon the plaintiff to prove negligence of the master as alleged " and that such

Lumber Co. v. Clifton, 85 Ark. 322, 108 SW SW

218. Where complaint alleged that flagman was engaged in duty of flagging train when struck and killed by it, there could be no

001. _Evidence, burden of proof, presumptions._" 10 C. L. "The burden is upon the plaintiff to prove negligence of the master as alleged " and that such

Lumber Co. v. Clifton, 85 Ark. 322, 108 SW SW

216. Where complaint alleged that flagman was engaged in duty of flagging train when struck and killed by it, there could be no

001. _Evidence, burden of proof, presumptions._" 10 C. L. "The burden is upon the plaintiff to prove negligence of the master as alleged " and that such

Lumber Co. v. Clifton, 85 Ark. 322, 108 SW SW

217. Where complaint alleged that flagman was engaged in duty of flagging train when struck and killed by it, there could be no

001. _Evidence, burden of proof, presumptions._" 10 C. L. "The burden is upon the plaintiff to prove negligence of the master as alleged " and that such

Lumber Co. v. Clifton, 85 Ark. 322, 108 SW SW

218. Where complaint alleged that flagman was engaged in duty of flagging train when struck and killed by it, there could be no

001. _Evidence, burden of proof, presumptions._" 10 C. L. "The burden is upon the plaintiff to prove negligence of the master as alleged " and that such

Lumber Co. v. Clifton, 85 Ark. 322, 108 SW SW

219. Where complaint alleged that flagman was engaged in duty of flagging train when
     negligence was the proximate cause of the injury.\[42\] A preponderance of the evidence only is required \[44\] and circumstantial evidence may suffice.\[44\] The burden of proof on the issue of negligence does not shift.\[45\] It is presumed that the employer has employed competent workmen,\[40\] and the burden is upon plaintiff to prove alleged incompetency of a servant \[47\] unless the employee in question is a minor under fourteen years of age.\[48\] As a general rule the fact of knowledge of a servant's incompetency, or that it would have been discovered by reasonable inquiry, must be shown by evidence independent of that showing the servant's incompetency.\[49\] But the incompetency of a servant at the time of his employment may be such that proof of it will be Co., 136 VWs. 380, 117 NW 852. Instruction \[slippery gang plank: William Grace Co. v. confencous because placing on defendant burdenslinger, 137 Ill. App. 217.

den of showing method used to move derrick reasonably safe. Ryan v. Farley & Loet-

due to violation of statute need prove case

cher Mtg. Co. \[Iowa\] 118 NW 88. Burden

is upon plaintiff to show negligence in tur-

"clear" preponderance would be necessary to

nishing defective tools, and knowledge by

"more penalty under same statute. Davis

master of defects. Manning v. Portland

Steel Shihp Bldg. Co. \[Or.\] 96 P5. Plaintiff,

swing defendant for injuries, had burden of

proving that man who employed and controlled him was vice-principal of defendant,

and not independent contractor. Kipp v.

Oyster \[Mo. App.\] 114 SWP 538. Evidence

held Insufficient to authorize submission of

case to jury. Plaintiff injured during epileptic ft. Lauth v. Harrison-Switzer Milling Co., 140 Ill. App. 199. Servant seeking to

cover for injuries alleged to have been

caused by an unsafe place must prove that

master knew, or ought, in exercise of ordi-

nary care, to have known, that place was

unsafe, and that he did not know it and had

not equal means of knowing, in exercise by

him of ordinary axre. Holland v. Durham

Coal & Coke Co. \[Ga.\] 63 SE 290. More

proof that defendant assured wife of plaintiff that he, plaintiff, was not at fault, and

that defendant gave her assistance and made

some payments after the accident, insuff-

clent to warrant finding of liability, no specific negligence being shown. Common

labor injured by fall in building under construction. Binewein v. Haglin, 103 Minn.

297, 115 NPV 271. To recover for injuries

caused by defective turntable, plaintiff has

burden to prove defective construction of

turntable, and that it was proximate cause

of injury, that employer knew or ought to

have known of defect and danger, and that

plaintiff did not know of it and did not have

equal opportunity to learn of It. Galloway

v. Chicago, etc., R. Co., 284 Ill. 474, 84 NE

1067.

0001. Pleas of contributory negligence on

part of deceased servant did not relieve

plaintiff from burden of showing negligence

of defendant as proximate cause of death.

Steel's Adm? v. Hillman Land & Iron Co.

\[Xy.\] 114 SWP 811. To recover for injuries

caused by appliances, plaintiff must show

(1) that appliance was defective; (2) that

master ought to have known It; (3) that

defect was proximate cause of injury. Cotton v. North Carolina R. Co. \[N.\] 62 SE

1092. Evidence sufficient to show death of

girl caused by weight falling down shaft

of dummy elevator and striking her on head.

Villinkle v. George B. Peck Dry Goods Co.,

132 Mo. App. 656, 112 SWP 1026. Evidence

held insufficient to show negligence of mass-

ter responsible for injury resulting from

13 Curr. L - 50.

14.

Ic.gally sufficient to rebut the presumption of the exercise of due care by the master and make the question one for the jury."

It is generally held that mere proof of the occurrence of an accident does not alone raise a presumption of negligence on the part of the master \[51\] and that the doctrine _res ipsa loquitur_ does not apply as between master and servant." But neglection.

E6. On theory that incompetency was of \[men at work on platform, supported on one such nature that reasonable investigation would have disclosed it. Still v. San Francisco, etc., R. Co. \[Cal.\] 85 P 672.

platform felt. Accident may have been 51. Bryant Lumber Co. V. Stastney \[Ark.\]

caused by acts of men. Negligence of mas.

112 SWV 740; Jeffreys v. Nebraska Bridge Supply & Lumber Co., 157 F 932. Plaintiff must show not only happening of accident by "buckling" of train and explaine of master as cause thereof.

ston of explosives in one car held not to Stewart & Co. v. Harman \[Md.\] 70 A 338.

False presumption of negligence. Lew's v. While circumstantial evidence may be sunflent, there must be facts from which defendants conduct can be ascertained and judgeed. Here proof of accident is not enough. Finn v. Oregon Water Power & R.

G. \[Or.\] 93 P 690. Servant must show that injury was due to risk not assumed by his contract of employment. Byers v. Carnegie Steel Co. \[C. C. A.\] 159 F 347. If the proof shows that the accident might have happened from some cause other than negillent.

F. Co. V. Holmes \[Ark.\] 114 SWV 211.

F. Proof explosion of locomotive boiler, In-Robinson v. Consolidated Gas Co. \[N. Y.\] 86

Juring Herman, held not to raise presumption of negligence. No recovery where no down, injuring plaintiff. Res ipsa loquitur \[Metrine.\] 1999 SV 426. Proof of \[V. Oundl, 139 III. App. 101. More fact that explosion of powder stored in mine, near electric wires, not shown defective, was not and injured plaintiff did not show negligence proof of negligence, especially where !: of master. Lone Star Breve Co. V. Willie

also appeared that men were in habit of \[Tex. Civ. App.\] 114 SWV 186. Evidence held

gathering around powder can smoking. Insufficient to show actionable negligence in \[V. Cost & Min. Co. v. Garner \[Ark.\]\]

erecting scaffolds through alleged defective \[118 SWV 392. More fact that step seek blew condition of which plaintiff was injured.

out of whitewashing machine, not shown to Schnelder v. American Bridge Co., 31 App. D.

befective, raised no presumption of neglection. C. 420. Alleged negligence in \[Diagneto.\] 1999.

ligence may, as in other case, be inferred from the fact of injury or accident, taken in connection with all the facts and circumstances." Thus a prima facie case of negligence may be made without proof of the particular defect or act which caused the injury," where the facts proved warrant the inference that the injury would not have resulted had the master exercised due care." Where such facts appear, the bur-

118 NYB 1018. Proof of circumstances of accident alone insufficient unless they show negligence of defendant. Morlarity v. Schwarzschild & Sulberger Co., 132 Mo. Corp. 480, 112 SW 1034. Doctrine rees pisa

of negligence of fellow-servants. Missouri incident alone insufficient unless they show negligence of defendant. Morlarity v. Schwarzschild & Sulberger Co., 132 Mo. Corp. 480, 112 SW 1034. Doctrine rees pisa

under orders of foreman made prima facie

loquittur is not applicable unless instrument-

tallty is under exclusive control of master

roads liable for injuries caused by running and is of such character that an accident

of trala. St. Louis, etc., Co. v. Puckett

would not have occurred unless it was defective. If accident might have been caused

vides that in actions against railroad com-

by some causes other than negligence of

panies proof of injury inflected by running of

master, doctrine has no application. Leh-

lcomcomotive or cars shall be prima facie evel-

man v. Dwyer Plumbling & Heating Co., 104

dence of negligence of employes, and that

Minn. 190, 116 NW 852. There are really no

this shall apply to passengers and employes.

acceptions to rule that mere happening of

acident is not proof of negligence in an ac-

and killed by derailed car from passing

tion by a servant against a master, though

train was entitled to presumption. Mobile,

in some cases circumstances in proof show

that accident would not have happened had

64. If plaintiff proves that machine started

due care been used. Galveston, etc., R. Co.

V. Garven \[Tex. Civ. App.\] 109 SW 425;

the nature of the defect need not be proved

Lone Star Brew. Co. v. Willie \[Tex. Civ. App.\] 114 SW 186.

I. 69 A 604. The mere starting of machine,

85. Though the rest ipsa loquitt doctrine

without the intervention of any human

does not apply, a servant may prove negligence by circumstantial evidence. Reed v.

rest, is of itself evidence of some defective

Norfolk & W. R. Co., 162 F 750. Res ipsa

loguittur means that plaintiff has on the

proof, without direct evidence of negligence,

made out a prima facie case. Western Steel

and evidence showed that superintendent

Car & Foundry Co. v. Cunningham \[Ala.\]

was in charge, and showed circumstances

48 S 109. The application of the "res ipsa

loguittur" doctrine does not ordinarily de-

prema facie case for the jury on issue of

pend upon the relation between the parties,

experimentendent's negligence. Western Steel

except indirectly, eo far as that relation de-

Gar & Foundry Co. v. Cunningham \[Ala.\]

fines the measure of duty imposed on de-

48 S 109. Where character and accompany-

fendant. Under certain circumstances it

may apply in an action brought by a servant

by to abnormal and dangerous condition, and

against the master. Jenkina v. St. Paul

such long continuance of it as to charge

City R. Co., 105 Minn. 504. III NW 828. The

doctrine res ipsa loquittur is applicable in

that employee had no knowledge of it, and

proper cases as between master and servant,

was not negligent, and such condition was

as where it is shown that an instrumental

my being properly used by the servant gives

wavy and causes injury and freedom from

contributory negligence and want of negligence of

being of fellow-servants appears. La Bee

v. Sultan Logging Co. \[Vash.\] 97 F 1104.

In such cases it is not unjust to require master

for to show that instrumentality was not defective

, or that the did not know of the de-

fecte and could not have discovered it by ordinary code. Id. Cause of failing of heavy

steel plate could be shown by circum-

stances. Direct evidence not essential

Riley v. Cuday Paoking Co. \[Neb.\] 117 NW

765. Where servant engaged in usual em

ployment as multie driver in mine was injured

by explosion of compressed air tank by al-

leged reason of accumulation of oil and wa-

ter, it was held that doctrine of res ipsa

loguittur applied. Elvis v. Lumashil Coal

Co., 140 Ill. App. 112.

Effect of statutes: Collusion of trains re-

sulting in death of employe being carried

home from work held to raise presumption

of negligence where action was based on

Gen. St. Kan. 1839, 1251, which exempts

ralifread employees from assumption of risk

of negligence of fellow-servants. Missouri

Pac. R. Co. v. Larussi \[C. C. A.\] 161 F 66.

neglience of defendant. Morlarity v. Schwarzschild & Sulberger Co., 132 Mo.

den is upon defendant to show that the injury resulted from a cause for which he is not responsible.66 Where an injury may have resulted from any one of several causes, the burden is upon plaintiff to show that it resulted from a cause for which the master would be responsible.67 If the cause of the injury is left a matter of conjec-

gence, sufficient to make prima facle case

soin of soft steel mould not sufficiently of negligence against defendant. Konigs-

cooled. Illinois Steel Co. v. Swiercz, 135 Ill.

berg v. Davis, 87 Miss. 630, 108 NYS 595.

App. 141. **Pieee of belt fleew off** and struck

Fact that enigree in charge of heavier moved

plaintiff in eye while engaged in duties of

without apparent cause some evidence of

elling and cleaning machinery. Circumstann-

negligence on part of hosler. Douda V. Chil-

ces warranted finding of negligence, though

cag, etc., R. Co. \[Iowa\] 119 NW7 277. Wheth-

mere fact of accident would not. Dittmann v.

er negligence of defendant, in failure to

give proper instructions or to provide safe

691, 110 NYS 87. Where complaint stated

place, caused death of boy of 17, for jury,

have no one saw his death, but circumvent-

tances showed he was killed by getting

rely on circumstantial evidence, defendant

**emught in machinery** at place where

properly guarded narrow passage separated

engine pit and other machines. Lunde v.

Cudany Packing Co. \[Iowa\] 117 NW7 1683.

In action for injuries to employ engaged in

repairing carding machine, caused by its

suddenly starting, evidence sufficient to go

to jury to show cause was some defect in

gine and killed engineer, proof of these

belts and pulleys alleged in petition. Coch-

rel V. Langley Mfg. Co. \[Ga. App.\] 83 GE 244.

Gefendant, and burden was on it to show

Engineer in charge of engine and holding

machinery was killed by falling Into shaft,

gate to which was open. Heid, though there

was no direct evidence as to how he fell, the

inference was warranted that he walked

through gate which in violation of statute

could not be closed. Moseley's Adm'r v.

Black Diamond Coal & Min. Co., 33 Ky. L. R.

110, 109 SWV 306. \[Where engineer was

injured by steam, hot oil and water being

shown into his face by valve when he re-

moved cap to oil it, there was evidence to

show valve defective in that it must have

been leaky. Hubbard v. Macon R. & L. Co.

\[Ga. App.\] 82 SE 1018. Where train, freight

and passenger, was being run over new un

ballasted road at excessive speed, and some

enrs were derailed and one fell upon and

killed section boss, heid, occurrence suhl-

content to show incompotency of engineer as

cause of accident. Mobile, etc., R. Co. v.

Ricela, 91 Mlase. 273, 45 B 360. Unexjuded

dynamite, left in mass of stone to be moved

by deceased, exploded. Negligence pre-

sumed. Stephen v. Duffy, 18 Ill. App. 572.

Where heavy brace of thumbers of goal deck

feil upon plaintiff, its fall alone, under the

d circumstances, was sufficient to raise inference of negligence. Lipsky v. C. Heiss Coal

Co., 138 VPIs. 307, 117 NWV 803. Where loom

started of itself and there was proof of its

having been out of repair and fixed and that

shatt had been repaired in certain way,

evidence was sufficient to sustain finding of

negligence. Ryan v. Fall River from Works

C., 200 Mass. 188, 86 NE 310. Where loom

started automatically, it was not necessary

to show that master had previous notice of

a particular defect. It is enough if such cir-

cumstances appear as to render it likely

that the harmful event would not have happened

be had no eye witnesses but would have to

amounting to want of ordinary care. Ryan

v. Fall River Iron Works Co., 200 Mass. 188,

86 NE 810. Where an accident happens

which without negligence on the part of

some one could not happen, the burden is

rapid Transit Co., 125 App. Div. 336, 110 NYS

upon the party bound to exercise due care

to diaprove negligence on his part. Explo-

**Explo-**

defendant as to manner of his death equally * 19 Cur. Law. MASTER AND SERVANT SS 3H4.

- 19 future, there can be no recovery \[58\] unless the master would be responsible for all the possible causes shown.\[58\]
- 10 Contributory negligence \[60\] and assumption of risk \[61\] are usually held to be reasonable and probable, and was equally but was left to conjecture. Rhobovsky v. consistent with existence and nonexistence of negligence of master. Watson's Adm? v. & App.\] 70 A 170. No recovery where cause Louisville & N. R. Co. \[KY.\] 114 SW SW 292.
- 114 SW 293.
- 115 SW, Jury cannot be left to conjecture or terlain in car did not appear, but was left draw inferences not sustained by evidence. Evidence must be such as to render inference of negligence of master more reasonable than any other conclusion which would be consistent with absence of negligence by accident, but left it open to conjecture -defandant. Lehman v. Dwyer Plumbing & Whether it was due to loose gravel or de-freating Co., 104 Minn. 190, 116 NW 352.
- 116 Case should not be submitted to jury If caused of injury is left to conjecture. Man- ming v. Portland Steel Ship Building Co. \[Or.\] 96 P 545. Plaintiff must show injury result of any one of several causes, for all due to cause for which master is responsible, and if this matter is left in doubt or is con-fumental that it does not appear clearly identical there is no case for jury. Winkler v. George B. Peck Dry Goods Co., 132 Mo. of molten iron in mould due to defective App. 556, 112 SW 1026. More happening of accident is not proof of negligence. If in various ways, but for which defendant other circumstances leave cause open to conjecture, plaintiff cannot recover. Ryan Nair, 138 Ill. App. 380.
- 117 Fail River Iron Works Co., 200 Mass. 188,
- 118 NE 310. Jury is not left to speculate as to cause of injury where there is evidence to support two theories. Floria Sarmaill Co. \[Col.\] 98 P 63; Britty C. Carolina Northern v. Smith \[Fla.\] 46 832. No recovery where cause of brakeman's death was not shown American F. & F. Co., 48 Wash, 581, 94 P to have occurred as claimed. Cincinnati, 109; Gauthier v. Wood \[Wash.\] 94 P 654; etc., R. Co. v. Johnica's Adm? \[Fy.\] 118 SW 844. Fireman found under trestle unconconious and burned about face with steam. Evidence did not show whether he had been made unconscious by burning steam in engine or had gone out and fallen. No recovery was granted. Black's Adm? v. Southern R. Co., 30 Ky. L. R. 1345, 108 SW 56. Train of work cars after standing two hours suddenly broke away and collided with another train, killing engineer. No recovery, cause of accident not being shown. Lane v. New York Contracting Co., 138 App. Div. 805, 110 NYS 91. Evidence insuffent to warrant recovery where it appeared that plaintiff was ordered to go out in akiff, in connection with rafting work, at dangerous place owing to current, but manner of his -death was not shown. Steel'e Adm? v. Hillman Land & Iron Co. \[KY.\] 114 SW 511. Where there was no eyewitness of event? -death, and evidence left cause conjectural, there could be no recovery on account of alleged defect in appliance. Olmstead v. Klastings Shinging Mfg. Co., 48 Wash. 657, 94 P 474. Evidence insuffent to show operator of ripsaw was killed, there being no eyewitness. Petersen v. Union Iron Works, 48 Wash. 605, 93 P 1077. Where plumber's furnace was taken from room where only those in good condition were supposed to be kept and given employees in morning, and air cock leaked slightly in afternoon when used and explosion resulted, but cause of leakage was not shown, there could be no recovery. Lehman V. Dwyer Plumbing & Heating Co., 104 Minn. 190, 116 NW 352, Plaintiff fell from truncar and his arm was run over. Cause not shown, no defect in brake being proved. No recovery. Mical v. Monroe Stone Co. \[Mich.\] 15 Det. Leg. N. 171, 117 NW 93. No recovery where cause of of mechines sudden starting was not shown, 117 P 564; Blanka

# Master and Servant $ 3H4.

13 Cur. Law.

affirmative defenses which must be sustained by defendant by a preponderance " of all the evidence." In some jurisdictions, however, plaintiff must show freedom from contributory negligence as a part of his case." The presumption of due care for one's own safety, arising from the instinct of self-preservation, prevails where the conduct of the servant at the time of his injury or death is not susceptible of direct proof." If plaintiff's own evidence discloses, prima facie, contributory negligence, the burden is upon him to show that he used due care." Ordinary risks are presumed to have been assumed," and, as to such, want of knowledge by the servant must be proved by plaintiff."

_Admissibility in general._ See 10 C. L. 791.--Only holdings peculiar to the subject un

vag v. Badger Box & Lumber Co., 116 WIs. must be that a person does not voluntarily

380, 117 NW 852. Burden 1s on master to

incur danger or the risk of death, but is in

show assumption by servant of unusual risk

the exercise of due care. Chicago Terminal

arising from former's negligence. Cristana-

Transfer R. Co. v. Reddick, 131 Ill. App. 516.

all v. Sagthaw Min. Co. \[Mich.\] 15 Det. Leg.

Plaintiff, in action for death of minor serv-

N. 784, 117 NW 510. Burden is on defendant

ant, entitled to presumption that he did not

to show assumption of risk by employ

reckelessly and needlessly expose himself to

where it arises from machinery left un-

danger. Lunde v. Cudahy Packing Co.

guarded as required by statute. Graves v.

\[Iowa\] 117 NW 1063. Where there are no

Guaruse Stikley Co., 125 App. Div. 132, 109

verwitnesses to servant's death, natural in-

NYS 256. Knowledge and assumption of

stinct of self-preservation is held sufficient

extraordinary risks arising from negligence

ground for presumption that deceased did

of master must be pleaded and proved by

defendant. Manning v. Portland Steel Ship

the absence of proof of facts negatving

Building Co. \[Or.\] 36 P 546. The assumption

such inference. It. But the indulgence of

of a risk by continuing to work in an unsafe

this presumption does not relieve plaintiff

place with knowledge and appreciation of

from operation of rule requiring proof of

the dangers incident there arising out of

freedom from contributory negligence. Id.

the master's negligence is matter of defense.

In action for death of employe, administra-

Master must show that servant ought to

have appreciated danger. Kroeger v. Marsh

know, and could not have discovered by use

Bridge Co. \[Iowa\] 118 NW 125.

eg. Error to instruct that defendant must

grows. Moseley's Adm'r v. Black Diamond

show contributory negligence to "satisfac-

Coal & Min. Co., 83 Ky. L. R. 110, 109 SW 306.

tion" of jury by preponderance of evidence.

Pasemption being that car repaired killed

Baltimore & O. R. Co. v. Linn, 77 Ohio St.

under car by cars switched against it was

615, 84 NB 1126.

in exercise of due care included Inference

that he would not have gone under car

rectly that contributory negligence must be

with 5 minutes after having been warned

proved by preponderance of all the evidence,

and not to exclude consideration of plaintiff

if% evidence. Missouri, K. & T. R. Co. v.

Viliblot \[C. C. A.\] 160 F 440.

64. Plaintiff has burden of proving freedom

from contributory negligence. Lunde

v. Cudahy Packing Co. \[Iowa\] 117 NW 1063.

No recovery where plaintiff failed to prove

freedom from contributory negligence.

Lyoon v. Coleman, 128 App. Div. 103, 108 NYS

378. Plaintiff failed to show freedom from

contributory negligence where he knew how

work was being done under foreman claimed

to be incompetent. Carroda v. Foundation

& Cont. Co., 112 NYS 1082. Evidence insuff-

element to show that painter, injured by fall

from ladder, was exercising due care. Keep-

nedy v. New York Tel. Co., 125 App. Div. 846,

110 NYS 887. More proof that employe was

Lilled during her work by being caught in

moving cogwheels held not to warrant

recovery without any showing as to freedom

from contributory negligence. Lester v.

Crabtree, 125 App. Div. 617, 110 NYS 55.

65. Presumption arising from instinct of

self-preservation and known disposition of

men to avoid injury to themselves constitute

prime factic inference that servant exercised

ordinary care, and places on defendant

bere of proving contributory negligence.

(Zarnarn-Amrefican Lumber Co., 7, Brock

\[FIa\] 46 S 740. Where fact is not suspect-

ble of direct proof, the presumption of law

\[FIa\] 46 S 740. Where fder discussion are here given.49 Evidence must be relevant to the issues raised by the pleadings.10 Holdings as to the relevancy of evidence on the issues of negligence of the master,11 contributory negligence of employee,12 and assumption of risk,78 are given

60. See article Evidence, for general prin- Elec. Co., 181 111. App. 118. No negligence clips, such as expert and opinion evidence, as to instructions on use of machine being resg gestate rule, etc.

01. Held admissible Where petition al- inspection was necessary was properly ex- legged that employe was incompetent and cytosoly negligent, proof of incompetency was not limited to proof of drunkenness, though that was also alleged. El Paso & S.

01. R. Co. v. Smith \[Tex. Civ. App.\] 108 SVW

01. R. Co. v. Smith \[Acer. App.\] 108. SVW

01. Proof of plaintiff's mental deficiency is admissible though such deficiency is not admissible. Chicago & E. I. R. Co. v. Walker, specially alleged. Dolan v. Processat Mfg.

137 Ill. App. 428. Where evidence did not co., 200 Mass. 200, 85 NE 1055. Where dec-

show how operator of irpsaw was killed, or whether he was operating saw at time, plaintiff was engaged when injured, details

proof of defect in saw table was inadmissible of method employed could be proved though not pleaded. Chesapeake & O. R. Co. v.

48 Wash. 505, 93 P 1077. in action for death of miner by fall of rock from rod, compliance prohibiting employment of unaniment of work, admission of testimony of latton admissible, though ordinance and more dangerous than that used by him was license were not pleaded, negligence relied on being negligent selection of incompet-

\[N. Y.\] 88 NE 809.

tent elevator operator, Cragg v. Los Angeles \[Trial. Redmissble: Proper working or-les Trust Co. \[Cal.\] 98 P 1063. Where defend introduced proof of assumption of American Locomotive. \[R. L.\] 190 A 196. risk, plaintiff could prove promise to repair, though he had not pleaded it. Pennsylvania

condition of mine prior to injury by explo-R. Co. v. Forstali \[C. C. A.\] 159 F 835. Conditions under which two companies operated, Price \[Ky.\] 108 SWW 345. Evidence that au-power and control of defendants agents, over plaintiff, etc., admissible to show which broke before using it. Doherty v. whether plaintiff was at time servant of defendant. Crow v. Houck's M. & A. R. Co., 212 Mo. 589, 111 SWW 583. Where brakeman

evidence that it could have been placed was caught between engine and car, he was farther away. Collins v. Mineral Point & properly allowed to show condition of buffer of car though he had not pleaded it special-

tion to manager of mine as to what he had ly, since he could show conditions at time

of Injury. McGuire v. Chicago, B. & Q. R. Co. \[Howsh\] 118 NWW 801. Where bill of par-

of driver held proper. Lamb v. Kerrens-

ticulars is asked and given and no objection

made to generality of complaint, evidence of facts within bill of particulars is admissible. Devine v. Alphons Custodis Chimney

When needed. Carr v. American Locomotive Const. Co., 110 NYS 119. Where loose condition of dirt around top of shart was alleged

was suffering from stricter which would as cause of cave in which resulted in death

of employee crossing over shaft on boards

under general issue and plea of contributory placed there, proof that steam from exhaust

neglence, as it might show cause of injury

pipe passed into shart was admissible, as

defect might have been so caused. Hollings-

davetson, etc., R. Co. \[Tex. Civ. App.\] 110 SWW

worth vs. Davis-Daly Estates Copper Co.

84. Plaintiff, injured while oiling machine,

\[Mont.\] 99 P 142. Plaintiff was ordered up

may show platform on which he had to stand on timbers which had been twisted by ex-

was not such as was ordinarily used and plosion in mine and they fell with him.

Held that evidence that foreman had stop-

unaste. Hollis v. Widener, 221 Pa. 72, 70 A

ped work on timbers before they had been

properly wedged was within issues made by complaint. Swearing v. Consolidated

Troup Min. Co., 212 Mo. 524, 111 SWW 545. Pleadings setting up contributory negligence

withees where rope could be used held not

of engineer in running train at excessive

speed held to warrant receiving evidence

tending to show running of train round

curve at dangerous speed knwingly. Gal-

veston, etc., R. Co. v. Worth \[Tex. Civ. App.\]

20 Tex. Ct. Rep. 717, 107 SWW 558.

Held Landsmissible: Plaintiff not entitled

to make proof that a reasonably safe method of working had been changed to a danger

ous one without warning, in absence of al-legation to that effect. Allen v. Western

legation to that effect. Allen v. Western in the notes. On the issue of negligence, proof of ordinary usage or general custom is admissible,74 except as to matters controlled by statute75 or rules,76 but proof of

to show absence of shield as cause of injury. \[ fall, Rushing v. Seaboard Air Line R. Co. Bennett v. Carolina Mfg. Co., 147 N. C. 620, \[N. C.\] 62 SE S90. Proof of careful habits 61 SB 463. Proper to prove that it was admissible, where manner of death could duty of mine boss to warn employee of danger.

\[\]

forous places in mine of which he had acquired or implied knowledge. Norton Coal Co. v. Hankk' Adm?, 108 Va. 521, 62 SE 335

\[\]

forous to save endangered property admis-

Conversation between section foreman and roadmaster as to condition of hand car admisable to show notice of defects by company. Landers v. Quiney, etc., R. Co. \[Mo. App.\] 114 SWV 543. Rules of railway eam-

\[\]

for a living to duits of brakeman and dinsible,

\[\]

in action for death of brakeman while trying to frighten children off and away from

\[\]

for whether he had ever been instructed

\[\]

as to necessity for having sand in pall or

\[\]

I.\] 69 A 364. Other rules, inapplicable to

\[\]

facto shown, inadmissible. Id. Rule of

\[\]

Rule of railroad company declaring effect of sudden application or release of air brakes admisable to prove allegation that train was

\[\]

as to duits of brakeman and dinsible,

\[\]

though rule was not pleaded. Galveston,

\[\]

etc., R. Co. v. Harper \[Tex. Civ. App.\] 114

\[\]

charge of contributory negligence against a

\[\]

SWV 1168.

\[\]

**Held inadmissible:** Proof of talk by men

\[\]

about condition of appliance. Carr v. American Locomotive Co. \[R. L.\] 17 0 196. Responsibility for accident question of law:

\[\]

inmaterial who was present who "might

\[\]

have reason to feel any responsibility,"

\[\]

Id. Proof that covers had been prepared

\[\]

ployes other than plaintiff. Buchman v.

\[\]

for vats, into one of which plaintiff fell,

\[\]

inmaterial, where it did not appear that

\[\]

action for wrongful death it is error to

\[\]

vat would have been covered at time any.

\[\]

permit evidence to go to the jury which em-

way. McTiernan v. American Woolen Co.,

\[\]

197 Mass. 238, 83 N8 73. That two men

\[\]

were "generally" to be chief en-

\[\]

v. Collins 10 Ohio C. C. (N. S.) 486.

\[\]

gineer and superintendent respectively of

\[\]

f3. Proper to ask plaintiff as to his pre-

\[\]

dependant's plant, incompetent; such facts

\[\]

were susceptible of direct proof. Knicker-

\[\]

alleged to be defective. Carr v. American

\[\]

Docker Ice Co. v. Gray \[Ind.\] 84 NE 341.

\[\]

Locomotive Co. \[R. L.\] 70 A 196. Proof that car inspector employed by de-

\[\]

other machines had been unloaded with

\[\]

fendant was negligent and In the habit of

\[\]

using intoxants in excess inadmissible in

\[\]

killed by overturning of one he was assist-

\[\]

absence of proof that he had inspected

\[\]

cars in question or that they had been

\[\]

by parts where he worked. Rio Grande So. R. Co. v. Campbell \[Co.\] 96 F 986.

\[\]

74. Evidence of ordinary usage or custom

\[\]

Whether other appliances were used im-

\[\]

material, conditions not being shown similar. Wyman v. Lehigh Valley R. Co. \[C. A.\] 158 F 957. Where switchman was

\[\]

killed when between' cars to uncouple them

\[\]

by hand, contrary to rules, proof that an

\[\]

employe of little experience had seen
\[\]

dos the same was inadmissible without proof

\[\]

that company knew of and acquiesed in

\[\]

such acts. Powell v. Wisconsin Cent. R. Switt & Co., 234, 11, 606, 85 NE 287. Proof

\[\]

of ordinary practice and uniform custom, if

\[\]

of ordinary intelligence

\[\]

and prudence under the same circumstance,

\[\]

holds were defective \[\]

\[\]

la competent on the issue of negligence,

\[\]

ner v. Schencady R. Co., 112 NYS 368.

\[\]

110 SWV 122. In action for injuries to mo-

\[\]

program caused by sliding of car on track.

\[\]

changed negligence being failure to supply

\[\]

sand, plaintiff was properly allowed to tes-

\[\]

to frighten children off and away from

\[\]

to whether he had ever been instructed

\[\]

as to necessity for having sand in pall or

\[\]

\[ practice by others, not shown to be general, is inadmissible.77 All the circumstances of the injury may usually be shown,78 and conditions existing before or after the time of accident may be shown if they throw light on the conditions at the time in question.79 Proof of repairs or precautions taken, after an injury, to prevent other

Practice of another railroad company with

conductor to assist in unloading freight, respect to testing and inspection of bollers

Taylor v. Baltimore & O. R. Co., 108 Va. 817, admissible on issue of reasonable care in

62 SE 788.

what was done by defendant. Chicago G.

77. Proof of how some other company W. R. Co. v. McDonough \[C. C. A.\] 161 FE 67.

Though custom of other companies in con-

misible on issue of negligent operation by

**structing tracks** would not excuse neglig-

defendant; proof should be of general customer of defendant, proof of customary consumption was admissible on issue of neglig-

108 Va. 448, 62 SE 69. Proof of general

gence in the particular case. Hall v. Chiscago, etc., R. Co. \[Iowa\] 116 NW 113. Evl-

bie; how a certain company handled them

dence of customary usage of well managed

malforsible. Texas Cent. R. Co. v. Wrable

railroad companies relative to maintenance

\[Tex. Civ. App.\] 18 Tex. Ct. Rep. 60, 101 SWP

of right or way admissible (brokenman on

517.

side of car struck by post), but not conclusive

\*8. Plaintiff injured while cleaning out

ave on question of due care. Wilson v. New

Tork, etc., R. Co. \[R. L\] 69 & A 344. Test-

conditions. Cook v. Pitlock & Leedbetter

mony by car inspector of 25 years as to

proper and customary way of making such

tances surrounding brakeman when injur-

Inspection admissible. Missouri K. & T. R.

Co. v. Blachley \[Tex. Civ. App.\] 109 SWP

cars could be shown. St. Louis S. W. R.

985. Evidence admissible to show general

custom to make no inspection of triclley poles

Fireman killed by train running into open

other than that made by linear and repair

even. Lynch v. Sagina# Valley Trac. Co.

\[Mich.\] 15 Del. Leg. N. 444, 116 NWP 383.

of relative brightness of electric and oil

Evidence of number of men customarily

employed to unload timber from cars, such as

T. R. Co. v. McDuffey \[Tex. Civ. App.\] 109

was being unloaded when plaintiff was

inward, admissible. Alabama Great So. R. Co.

by explosion that killed plaintiff's integrate

v. Vall \[Ala.\] 46 S 587. Evidence that it was

admissible. Sternas Coal Co. v. Evans' Adm'r,

customary to turn on electric current only

33 Ky. L. R. 766, 111 SWP 308. Proof that

after all generation work was completed

is admissible. Commonwealth Elec. Co. v.

tate, for whose death by suffocation in mine

Rooney, 138 III. App. 275. Proof of custom

action was brought, was admissible. Ala-

to guard stafurvey openings in buildings in

bama Consol. Coal & Iron Co. v. Heald

course of construction admissible. Leine v.

\[Ala.\] 45 S 686. Where servant was killed

Kellerman Cont. Co. \[Mdo. App.\] 114 SWP 1147.

by rock thrown by blast, proof that mis-

Proof that it was customary to use short

handled axes in unloading logs was admisible on issue of neglig-

sible but not conclusive on issue whether it

was negligence to require such ax to be

used on occasion in question. Brown v.

110 SWP 687.

Musser-Santury Land, Logging & Mfg. Co.

104 Minn. 156, 118 NWP 218. Method comm

moniy used in community to sustain dirt and

rock around month of abandoned shar ad-

114 SWP 787. Condition of appliance before

misible. Hollingsworth v. Davis-Daily Estimates

dates Copper Co. \[Mont.\] 9 P 142. Evidence

of other methods used to lead trucks on

According Co. \[R. L\] 70 A 196. Evidence

cars, and that they were safer than that

ued by defendant, admissible. Robinson v.

\[M. Louis & S. F. R. Co. \[Mdo. App.\] 112 SWP

730. Proof of proper way to fumber

sparse in mine to make it reasonably safe

ad-

8, 116 NWP 104. Evidence as to condition of

misible, where evidence showed that mas-

machine which injured plaintiff, two months

ter had knowledge of unsafe condition, rock

after accident, admissible, it appearing that

having previously fallen and places having

been retimbered. Hotchikas Mt. Min. & Re-

duction Co. v. Bruner, 42 Colo. 306, 94 PS 331.

75. Where injury caused by girl's hair

beverable error in action by employe who

ing caught on shaft occurred in Connecticut,

evidence as to custom of guarding such

to

**794**: **Master and SERVANT SS 3H4.** 12 Cur. Law.\*\*

accidents, is incompetent to show negligence,\* but evidence of this kind is sometimes admitted on other issues.\*1 Proof of the occurrence of previous similar accidents is admissible to charge the master with notice,\*2 conditions being substantially the same.\*3 Proof of subsequent accidents is usually inadmissible.\*4 There is a conflict as to the admissibility of evidence that no similar accident had previously occurred.\*5 Evidence to show that an appliance could have been guarded is admissible.\*5

having inspected stake, other miners were plips were placed in mine after death of properly allowed to state that they had seen **miner inadmissible. Alabama Consol. Coal about the same time, a crack behind the **&** Iron Co. v. Heald \[Ala.\] 45 S 686. rock which fell on plaintiff. Stratton Crip- **SI. That shaft was smoothed off after in-ple Creek Min. & Development Co. v. Ellison,** jury caused by cloth getting caught on its 42 Colo. 498, 94 P 303. Proof of actual condition of boiler tubes or flues after explo- tion at time of injury (by divided court). **Ignk**t**v. Clearwater Bleachary & Mfg. Co. showed the removal of the tubes, the court **\[S. C.\] 61 SE 411. After photographe, taken after shaft had been changed, had been the condition of the flues. Chicago G. W. **introduced, evidence to show ehart in different condition from what it was at time of injury was admissible. Id. Directions **s**ven by superintendent as to mode of work, after an accident, admissible in so far as **s**dmissible. I Hoseth V. Preston Milli Co.,** **198 Mass. 163, \[Wash.\] 96 P 428. Where defendant denied that place where plaintiff was that was was pass- sageway, proof that after accident it was made wider and better was admissible, not to show negligence but to prove that it was **a**passageway. Gustafson V. A. J. West SW 1026. Proof of previous bursting of Lumber Co. IVash. 197 P 1094. Where much driver was injured by fall of rock from roof, proof of condition of roof for 3 or 4 days before was proper, though rock had fallen on day previous: such proof tended to show dangerous condition at time. McCarra. **A.**161 F 657. Proof that electric fan out-thy v. Spring Valley Coal Co., 232 III. 473, 83 NE 957. Proper to show condition of spikes on railway track where plaintiff was hurt coal that in mine admissible to show morning after accident by tripping on spike, **knowledge by company of defect and dan-Louisville & N. R. Co. v. Lowe \[Ala.\] 48**: **S** 99. Photographs of appliance after **v. Newsam Adm:** 83 Ky. L. R. 755, 111 SWP change was made **lasmissible. Carr v. 308. Proof of similar accident shortly be-American Locomotive Co. \[R. I.\] 70 A 196.**: **Proc** on the question admissible to show **proc** on conditions and method of work **knowledge of conditions in mine by defend-in mine under prior superintendent inadmis-**s**ible without showing that conditions were **v. Bruner, 42 Colo. 305, 94 P 331. same at time of accident. Ianne v. U. S. 83. Proof of previous accidents is admissible to show the actual condition of the instrumentally when conditions are sub-gathered machinery, changed method, or used **similarity** in those in **s**u**c**z**s**t**v. It can still be **s**t**12 Cur. Law. MASTER AND SERVANT SS 3H4.

To show incompetency of a servant, and knowledge of it by the master, the servant's physical condition," prior incompetency," his general reputation as careless and incompetent," and prior specific acts tending to show incompetency," may be shown. Proof of the reputation of a servant as careful and prudent is inadmissible where the action is based on a particular negligent act." The fact that defendant carries casualty insurance is of course immaterial, and attempts to get the fact before the jury are usually held reversible error."

\_Questions of law and fact."--\_Negligence, contributory negligence, assumption of risk, and proximate cause, are usually questions of fact to be submitted to the jury "

cause of injury by being thrown off when it

proof of reputation of engineer as careful

jumped the track, the fact that it had not

and prudent inadmissible. Ft. Worth & R.

Jumped the track, and that no accident had

G. R. Co. v. Finley \[Tex. Civ. App.\] 110 SWV

occurred in several months' previous use,

531.

was to be considered by jury, but was not

emplete defense to action, Missouri, K. &

T. R. Co. v. Wilhoit \[C. C. A.\] 160 F 440.

86. Where injuries were alleged to have

been caused by unguarded saw, proof that

70 A 844. Reversible error for counsel to

another similar saw in mill was guarded

was admissible. Poozerwinski W. C. A.

John Luther Co., 105 Minn. 305, 117 NWV

486. Proper to allow witness, familiar with

work, to testify how flap door could be

error for counsel in argument to refer to

placed over steam vat, though he had

worked only 8 days. Dix v. Union Ice Co.

\[N. J. Law\] 68 A 1101. Evidence to show

reference to casualty insurance company

pracitability of guarding steam vats into

which plaintiff fell admissible, factory

being within statue. Id. Proof that other

emery wheels in defendant's plant were

guarded competent to show that wheel in

for certain insurance company in question

question could have been guarded. Kerr v.

Notional Pullon Brass Mfg. Co. \[Mich.\] 15

Oct. Leg. N. 985, 118 NWV 925.

\[N. J. Law\] 68 A 1101. Evidence to show

\[N. J. Law\] 68 A 1102. Evidence to show

are defending case calculated to be prelu-

which plaintiff fell admissible, factory

being within statue. Id. Proof that other

error to attorney for defendant as attorney

guarded competent to show that wheel in

question could have been guarded. Kerr v.

Notional Pullon Brass Mfg. Co. \[Mich.\] 15

Oct. Leg. N. 985, 118 NWV 925.

\[N. J. Law\] 68 A 1110.

**Missing 17- SEELIST 18**.

19 Can. Law.

From fixing is constant: * times the values is much * or the fact multifine of such is in germs in one resubants motion to the heart function: * Some terms represent more than continuity but some and uncommon of * will be the members of low: * Some * is exact less too strong to the rule that the * sign of elements is for the center: *sues not so raised.* Instructions should be consistent," clear," and concept." They should be applicable to the evidence," should not invade the province of the jury," or story negligence or assumption of risk prop-

competeency of engineer but question wheith-

ery refused. Wade v. Glavestun, etc., R.

er he was exercising du vera at Univ. Texas-

co. (Tex. (iv. App.) 110 NW 84. Instructuration

as de P. R. Co. v. Jowowers (Tex. City. App.)

wurmating recovery without proof that

110 SW 944. Evidence held not to raise

plaintiff was defendants' employee, as al-

question of insufficient number of men to

legend erroneous. Crow v. Hinoucks Museum

die work but of negligence of foreman in

& A. it. Co., 212 MO. 688, 111 NW 883; doubt

etiven unlincely order, Wade v. Glavestun,

v. Aurora, lignin & (Chicago I. Co., 141 Ill.

etc., R. Co., 1768, Cl., App.) 110 SWV 484.

App. 344. Instructation figuring assumption

in an action for damages for personal

of relek erroneous. Laoke St., 101, 10, 110, assume as true facts which are controverted,\* or omit reference to certain essential facts,\* or unduly emphasize certain phases of the evidence.\* Decisions as to particular instructions as to the duties of the master,\* and as to the defenses of assumption of risk,\* contributory negligence,\* and the fellow-servant defense,\* and the burden of proof,\* are given in the note.

& M. Consol. Copper & Silver Min. Co., 87

Number fell with plaintiff, who followed foreignnt. 575, 97 F 103S.

man upon 1t, instruction that fforeman

8. Instruction assuming certain facts as

"exercise care of reasonably prudent man

to plaintiffs orders erroneous, evidence being conflicting. Southern R. Co. v. Limback

plied and acted as promptly as was demand-

\[Ind.\] 85 NE 3E4.

9. A charge which authorizes the jury to

plaintiff of danger," he was not negligent,

return a verdict for the plaintiff, in the

should have been given. Bryant'Lumber Co.

event they find that certain facts are true,

is erroneous when the essential fact constituting the negligence is omitted. The Her-

acourt Brewing Co. v. Frank, 11 Ohio C. C.

(N. S.) 505.

30. Instructions, each singling out one

branch of the case and stating that "if de-

fendant was otherwise without fault," are

objectionable as calculated to mislead.

Vil-

age of Montgomery v. Robertson, 132 Ill.

App. 362.

11. Instructions as to master's duty with

reference to place and appliances and num-

ber of men approved. Trumbo's Adm'x v.

Gaines & Co., 33 Ky., L. R. 415, 109 SW 118S.

Instruction on authority to inspect cars not erroneous. St. Louis, etc. R. Co. v. Holmes

quest property refused as placing on him too

great burden of care in inspection. South-

with reference to duty of defendant to fur

nash lu hooks to carry lumber with. Rushing v. Seaboard Air Line R. Co. IN. C.1 62 SE

850. Instructions on master's duty with

respect to place of work, platform, not

renoeux. Louisville & N. R. Co. v. Carter

\[Ky.\] 112 SWV 804. Instruction held not objectionable as making it defendants

absorable as possible.

100

114 SWV 854. Instruction on cara required of

supperimentent in selecting materials for

eomfold erroneous because disregarding

evidence that dececourt supervised construction,

\[Ala.\] 45 89. Instruction on assumption

Murch Bros. Const. Co. v. Hays \[Ark.\] 114

of risk of danger from known condition held

SWV 697. Error to charge on law as to place

of work and "ways, works and means,"

under statute, where accident was due to fall-

114

115

116

117

118

119

120

121

122

123

124

125

126

127

128

129

130

131

132

133

134

135

136

137

138

139

140

141

15

16

17

18

19

17

18

19

20

21

222

231

24

25

261

27

281

29

20
21

22

231

24

25

261

27
28

29
30

31
32

333

34

35
36
37
38
39
40
41
42
43
44
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
97
99
100
99
111

101
112

122
13
14
15
16
17
18
19
192
103
104
105
106
107
108
109
112
109
113
114
115
116
117
118
119
120
121
122
132
141
123
142
143
144
154
155
166
177
188
199
190
119
121
122
132
144
155

**12** Cur. Law. Master and Servant SS 4A. 799

(SS 3H) 6. _Verdicts and findings._ See 10 C. L. 805.--A verdict against the master may be sustained though the jury finds in favor of a servant also charged with negligence.\[18\] A general verdict cannot be sustained unless special questions are also answered.\[17\] Special findings must be consistent.\[18\] In Wisconsin, where assumption of risk is held a species of contributory negligence, these questions need be separately submitted only when such submission is requested,\[19\] unless the jury could find different answers which would be consistent.\[20\] Otherwise they may be grouped by the charge under a question in the special verdict relative to contributory negligence.\[21\]

SS 4. _Liability for injuries to third persons. A. In general._ See 10 C. L. 805.--The master is liable for acts of his servant within the scope of his employment, while engaged in the business of the master,\[22\] though the servant exceeds his actual authority \[23\]

Instruction on contributory negligence ap-

warranted where defendant brought out on cross-examination fact that fellow-servant

hand was injured in unloading gravel from

came in contact with plaintiff at time of his

air in dangerous way under direction of

Injury. Ft. Worth & D. C. R. Co. v. Monell

foreman. Gulf, etc., R. Co. v. Jackson \[Tex.

(Tex. Civ. App.) 110 SWV 604. Instruction on

disumption of risk of negligence of fellowship negligence approved in case where

servants held not misleading. Cheek v. Sea-

switchman was crushed between car

board Air Line R. Co. \[S. C.\] 62 SE 102.

post. Cunningham v. Neal \[Tex. Civ. App.\]

109 SWV 455. Instructions on contributory

roneous. Holland v. Durham Coal & Coke

neglence approved in action by switchman

for injuries. Texas & N. O. R. Co. v. David-

on \[Tex. Civ. App.\] 20 TeX. Ct. Rep. 463, 107

smv 949. Instruction "ordinary care"

required of employe held not erroneous.

Atlanta, K. & N. R. Co. v. Tilson \[Ga.\] 62 SE 3H.

3H. Instruction on contributory negligence

day of master to furnish and provide re-

as applied to facts approved. Avery v. West

snobably safe machinery, tools and appliances

Lumber Co., 146 N. C. 592, 60 SE 646. An

in and about the work to be performed by

struction that if the jury believed from the

servant," held incorrect. Ragsdale v. Illinois

evidence that the plaintiff exercised ordinary

Cent. R. Co., 140 Ill. App. 71. Plaintiff

care, as correctly defined in the instruction,

they should so find, is not phoxious. Commonwealth Elec. Co. v. Rooney, 138 Ill. App.

you find that three guy lines were sufficient

275. Instruction on contributory negligence

not erroneous as omitting reference to

easily safe, and you find that five men were

essity of its contributing to injury, in view

sufficient," etc., erroneous as placing on

of entire charge and question as submitted

fendant burden of showing method used re-

to jury. Buchman v. Jeffery, 135 Wis. 448,

sonably safe. Ryan v. Farley & Loetscher

115 NWV 872. Instructions on contributory

neglence criticised in case where brake-

man was thrown from engine pilot where he

was riding. El Dorado & B. R. Co. v. What

ter \[Ark.\] 114 SWV 234. Error to refuse

charge on contributory negligence grouping

genee maintaining such platform, failure

facts relating to plaintiff's conduct. Galves-

ton, etc., R. Co. v. Worth \[Tex. Civ. App.\] 20

title company to directed verdict. Clay v.

Tex. Ct. Rep. 712, 107 SWV 958. Instruction on

contributory negligence erroneous because

unduly emphasizing certain facts and ignor-

ing others, Globler v. Quinney, etc., R. Co., 129

where jury failed to answer special questions,

do. App. 93, 107 SWV 1021. Instruction on

contributory negligence erroneous because

essary to recovery by plaintiff. Larsen v.

requirling defendant to prove such negligence

Leonardt \[Cal. App.\] 96 P 985.

as proximate cause of injury, since recovery

would be defeated if plaintiff's negligence

that plaintiff appreciated danger, and

proximately contributed to injury. Hillsboro

Ootton Mills v. King \[Tex. Civ. App.\] 109 SWV

held not inconsistent, where evidence made

484. Instruction on "last clear chance"

terming erroneous, being inapplicable to facts.

Mdssouul Pac. R. Co. v. Bentley \[Kan.\] 96 P

$00. Instruction on contributory negligence

not erroneous in case where conductor was

injured in stepping from moving train. Mis-

sourt K. & T. R. Co. v. Kennedy \[Tex. Civ. App.\]. 112 SWV 339.

14. Charge erroneous which authorized re-

overy for negligence of one concedceded on

trialmaster's business and not for a purpose per- business and within the scope of his emsonal to himself. Kwieenen v. Holmes & Hollowell Co. (Minn.) 118 NW 668: Barrett 1057. Master liable for negligence as well v. Minneapolis, etc., R. Co. \[Minn.\] 117 NW 1047. Servants act must be in performance of master's orders or work, and in pursuance of his duties as servant. Doran v. Thomsen \[Sr.\]

Footnote 10: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

Footnote 11: http://www.nist.gov/

Footnote 12: http://www.nist.gov/

Footnote 13: http://www.nist.gov/

Footnote 14: http://www.nist.gov/

Footnote 15: http://www.nist.gov/

Footnote 16: http://www.nist.

## 12 Cur. Law. Master and Servant $ 4A.

or violates express orders or instructions,24 or is guilty of a willful tort.25 The master is not liable for unauthorized acts outside the scope of the servant's employment.26 Thus, for acts or negligence of the servant while engaged in the prosecution of some private purpose of his own, unconnected with the business of the master,27 the latter is not responsible,28 though the servant may have been using an \[Minn.\] 117 NWV 1047; Kwiechen v. Holmes & Halllowell Co. \[Minn.\] 118 NWV 668. That assist third person in unuding truck, servant violates instructions or commits needless injury is immaterial if he was acting within scope of employment. Raborts & master's work, but not done as a means or \[Minn.\] 118 SWV 429. Whether servant was acting within scope of employment at time is test; if he was, it is immaterial that he was not doing & man, including foreman, invited by ride work in manner expected of him. Danforth & Halllowell Co. \[Minn.\] 11 A 535.

The master liable whether act be negligent or willful, if within scope of agency. Barrett v. Minneapolis, etc., R. Co. \[Minn.\] 117 NWV 1047; Kwiechen v. Holmes & Halllowell Co. \[Minn.\] 118 NWV 668. A master is responsible for the acts of his servant within the general scope of his employment while engaged in his master's business and done & he was not using a view of the furtherance of that business and in the master's interest, even if such acts are done wanturol and willfully, V. Chicago, etc., R. Co., 137 Iowa, 267, 114 NwV 140. Defendant liable where member of his drivers willfully and maliciously refuct v. Minneapolis, etc., R. Co. \[Minn.\] 117 NWV 1047; Kwiechen v. Holmes & Halllowell Co. \[Minn.\] 118 NWV 668. A master is responsible for the acts of his servant within & plantiff. Miller v. Wannmaker, 117 NYS 186. If electing car porter stole passenger's engaged in his master's business and done & hewory, this not being baggage, he was not using a view of the furtherance of that bus-acting in scope of employment, and company & such acts are done wanturol and willfully, V.

instrumentality furnished by the master.28 The master may become liable by ratification of a previously unauthorized act.30 Doubt as to whether a servant was acting within the scope of his employment will be resolved against the master.31 Where an employer has notice of a dangerous practice of his employees and fails to use reasonable care to suppress it, he is liable to a third person for injuries resulting therefrom,32 though the act in question is malicious and beyond the scope of the employment.33 Where the servant acts in obedience to an express order given by the master, the master is liable for the consequences of the servant's acts.34

Footnote 31: The master may be a member of the 12 Cur. Law. MASTER AND SERVANT SS 4A. 803

whether this relation existed is whether such person was subject to the control and direction of defendant.\[84\] A master is not liable for negligence of his general servant if at the time he is the servant of another, and is engaged in that other's business and under his direction and control.\[81\] If a servant who is employed to do certain work employs another person to assist him, the master is liable for negligence of the assistant only when the servant has authority, express or implied, to employ him,\[84\] or when the employment is ratified by the master.\[85\] The retention of a servant with knowledge that he has done a negligent act for which the master was not liable will not render the latter liable.\[40\] Charitable corporations are liable for negligence of servants,\[41\] though not for ports of persons acting for such corporations in other capacities.\[42\]

guarding the company's property, the sheeriff

mauser by, and begins and ends with, his

having no further control over them. Held,

jury could find them to be company's serv-

no control over detective, hired by agency.

ants. Texas & N. O. R. Co. V. Parsons \[Tex.

Kechoe V. Marshall Field & Co., 141 Ill. App.

Civ. App.\] 109 SWY 240. Mere fact that they

140. Defendant liable for injuries caused

were deputies, and that they sometimes

by automobile driven by person to whose

served papers gratitonally for aseriff, would

care he had returned it, and who was run-

not change their relation to company. Id.

ming it for defendant, though such person

Defendant reated hod elevator to contract

was in employ and pay of another. Irwin

and furnished engineer to run it, engineer

v. Judge \[Conn.\] 1 A 572. Defendant sold

being subject to its control. Held, engineer

automobile to one who agreed to run it for

was defendant's servant, though he operated

hire and pay for it out of his earnings. He

elevator in accordance with directions for

was not defendant's employ, nor under de-

contractor and his employes, and one of lat-

fendant's control or direction. Held,

defendant could recover for negligence of engineer

ant not liable for his negligence while driving

from defendant. Henry V. Stanley Hod Els-

vator Co., 114 NYS 38. City park foreman

107. Defendant's servants, assieting in load-

selected driver of rnbnbish wagon, had power

ing vessel, who put sacks on chute, held not

to remove him and directed his work, but

as matter of law "loaned to" and under con-

driver, wagon, and team were all furnished

and paid by third person, who was in turn

servants, for time being, of plaintiff, em-

paid by city. Held, driver was servant of

ployed by stevedore on vessel. Stewart v.

city while engaged in work, and city was ll-

able for injuries caused by his negligence,

another's servant if he is subject to the lat-

Silverman v. New York, 114 NYS 59. Defendant's son was running automobile with his

discharged by him for disobedience of or-

internector in the car with him, and struck

ders or misconduct. Man hired by city

plaintiff. Son had instructions from father

bridge tender held to be servant of city. City

to learn to run car. Evidence warranted

of Chicago v. Galtman, 138 Ill. App. 253.

finding that son was fathers servant and

37. Cunningham v. Castle, 111 NYS 1057.

was acting within scope of his authority,

Defendant's employes, assisting truck driver

and that he was employe of vendor, the

inhold truck at his request and subject

structor. Hironux v. Baum \[TWs.\] 118 NW

to his orders, become for time being his

533.

servants, and defendant was not liable for

their negligence while so engaged. Bassi v.

tomobile, alleged to have caused injury by

prekless driving was defendant's chauffeur,

38. Cooper v. Lowery \[Ga. App.\] 60 SE held for jury, evidence being conflicting,

01. Where defendant's servant asked by

Gutometer v. Hornburg \[Wash.\] 97 P 235.

sander to help fix cart, and bystander's act,

W whether driver of these engine which

sather fire was an employe of seller of en-

jury to plaintiff, defendant was liable. Hol-

gine or of other defendants held for jury.

Hogers v. Fowler, 151 Mich. 485, 16 Dot. Leg.

Where city employed bridge tender, who

N. G2, 115 NW 469. Fact that person wore

with city's consent employed others to do his

cap and uniform of train employe or conteluc-

work, city was liable for negligence of lat-

sive that he was an employe, but evidence

ter, in line of their duty. Gathman v. Chil-

on the same for the jury. De Vane v. At-

cago, 33 Ill. 9, 86 NE 152. Where master's

lanta, & B. & A. R. Co. \[Ga. App.\] 60 SE 1079.

tennessee induced a An employer is not liable for the acts or negligence of an independent contractor,43 that is, one who represents the employer only as to the result and not as to the means or manner of doing the work,44 unless he reserves control over the doing of the work.45

\_Damages,\_56e 10 C. L. 807--The master is liable for compensatory damages where the act of the servant is within the scope of his employment,46 but is not liable for punitive damages unless the act is malicious 47 or wanton and reckless,48 and unless the master shared or participated therein,49 or unless the wrongful act is a part or in pursuance of a recognized business system adopted and authorized by the principal,50 or is the act of an agent or manager who has charge of the general management of particular business in the course of which the act was committed.51 Measure of damages is treated in another topic.52

\_Liability of servant.\_See 10 C. L. 807--Where a servant violates a duty owed to a third person, he is personally liable therefor, \[83\] whether his wrong doing be regarded as nonfeasance or misfeasance, as between him and his master. \[64\] The liability of such servant is controlled by ordinary rules of negligence. \[88\]

(SS 4) _B. Procedures_, \[86\] C. L. \[88\] The complaint must show that the person charged with wrongdoing was defendant's servant \[86\] and that he was acting at the time within the scope of his employment, \[87\] and the burden is upon plaintiff to prove these facts \[88\] and that the wrongful act alleged was the cause of the alleged injury. \[88\] Recovery must be upon the ground alleged, if at all. \[89\] Where the action is based solely on negligence of a servant on a particular occasion, proof that this or other servants have been negligent on former occasions is inadmissible. \[91\] Defendant may, under a general denial, prove that alleged damage was done by others for whose acts he was not responsible. \[62\]

SS 5. _Civil liability for interference with relation by third person. \[68\]_--An employer has a right to a free labor market, that is, the right to engage all persons willing to work for him at such prices as may be mutually agreed upon. \[64\] Picketing, argument or peaceful persuasion to induce men not to enter the employment of certain employers is legal \[68\] and will not be enjoined by a court of equity; \[64\] but ac-

SS3. Mire superintendent liable where he would not be liable, under Clv, Code, SS 3031. sent workman down into shaft known to be \[Code Furniture Co. v. Ellis \[Ga. App.\] 63 SE unsafe and injury resulting from cage stick- 55.

ing and then suddenly dropping. Hagerty v. Montana Ore Purchasing Co. \[Month.\] 87 p tion of master and servant between defendant and person alleged to have been guilty \[68\]. Where the servant is guilty or mlfeas-

, nle, as well as the master, is liable for of negligence or wrongdoing. Burns v. Injuries resulting therefrom to third persons \[Log. N. 201, 116 NW 182. The burden is upon with more than mere nonfeasance; hence they were personally liable. Ward v. Pullman Car Corp, \[Key.\] 114 SW 764.

54. Distinctions discussed. Hagerty v. Month. \[Month.\] 87 p 648.

01. Burden is upon plaintiff to show rela-

, and person alleged to have been guilty

, and cases there cited.

55. Thus concurring negligence of another

, and cases where the person is not fairy unless evidence or permits such

tion amounting to intimidation is unlawful,"7 and such conduct will be enjoined "8 though it constitutes a crime." The imposition by a labor union of a coercive fine upon members for entering or remaining in the employment of a certain employer, or the threat to impose such fine, is held a violation of the employer's rights,7 and the fact that the fine is imposed or threatened in accordance with rules of the union is no defense.71 Third persons are answerable for keeping a man out of employment when the means employed are unlawful," such as threats of violence,73 threats of strikes of such character as to influence a person of reasonable firmness and prudence, and the exaction of fines from the employer.74 The damages are generally what the employee would have earned had he been allowed to work,75 and for willful and malicious acts damages may be recovered for mental suffering.76 One who pro-cures the discharge of an employee is liable in damages,77 and exemplary damages are recoverable if the act is malicious.78 There is a right of action for purposely and maliciously preventing performance of a contract,79 but a complaint based on such cause must allege defendant's knowledge of the contract in question.80 An allegation that the interference was malicious is not equivalent to an allegation of knowledge.81 In some states, statutes provide for the recovery of penalties and damages for interference with employes of another.82

68. Equity will not enjoin employees who have quit the service of their employer from attempting to persuade, by proper argument, others from taking their places so long as they do not resort to intimidation or obstruct the public thoroughfares. Jones v. Wallcutt & Sons Co. v. Bricklayers' Benevo-Van Winkle Gin & Mach. Works \[Ga.\] 62 SE NE 897.

01. Threats, violence, massing of large number of pickets where nonunion men must pass, held intimidation. Goldfield Consol.

85 NE 897.

Mines Co. Goldfield Miners' Union No. 220, 159 F 600. It is unlawful for any person or association to interfere with the business of another by means of force, menaces, or intimidation so as to prevent others from entering or remaining in the employment of another. Jones v. Van Winkle Gin & Mach. Works \[Ga.\] 62 SE 286. An interference with employer's rights by intimidation or coercion produced by injury to person or property, or by threats of such injury, is ninvful. Villeutt & Sons Co. v. Bricklayers' BenevoI & Protective Union No. 3 \[Mass.\]

85 NE 897.

68. Maintenance of pickets enjoined when they resorted to threats and intimidation. Jones v. Van Winkle Gin & Mach. Works \[Ga.\] 62 SE 286. Complaint alleging co-spiracy by members of labor union and interference with plaintiff\* business held toe wage and general to warrant issuance of temporary injunction against picketing, threatening workmen, etc. Badger Brass Mfg. Co. v. Daly \[Vis.\] 119 NW 328.

01. Pen. Code, SS 123 at seq., make it a crime to attempt by threats, etc. to prevent any person from entering service or employ-, Jones v. Van Winkle Gin & Mach. Works \[Ga.\] 62 SE 286.

01. Strike was called for lawful purpose, higher wages and shorter day, and persons entering or remaining in plaintiff\* employment were threatened with $100 fine. Injunction was granted restraining and enjoining defendants, their agents or servants from intimidating, by the imposition of a fine or by threat of such fine, any person or persons from entering into the employ of another.82

01. Equity will not enjoin employees who have quit the service of their employer from attempting to persuade, by proper argument, others from taking their places so long as they do not resort to intimidation or obstruct the public thoroughfares. Jones v. Wallcutt & Sons Co. v. Bricklayers' BenevoI & Protective Union No. 3 \[Mass.\] 85 NE 897.

01. Difficut & Sons Co. v. Bricklayers' BenevoI & Protective Union No. 3 \[Mass.\]

88 NE 897.

87. Difficut & Sons Co. v. Bricklayers' BenevoI & Protective Union No. 3 \[Mass.\]

88 NE 897.

72. Carter v. Oster \[Mo. App.\] 112 SVV 995.

01. Threats of personal violence unlawful under Rev. St. 189, SS 2165. Carter v. Oster \[Mo. App.\] 112 SWV 995.

01. Maintenance of pickets enjoined when they resorted to threats and intimidation. Jones v. Van Winkle Gin & Mach. Works \[Ga.\] 62 SE 286. Complaint alleging co-spiracy by members of labor union and interference with plaintiff\* business held toe wage and general to warrant issuance of temporary injunction against picketing, threatening workmen, etc. Badger Brass Mfg. Co. v. Daly \[Vis.\] 119 NW 328.

01. Pen. Code, SS 123 at seq., make it a crime to attempt by threats, etc. to prevent any person from entering service or employ-, Jones v. Van Winkle Gin & Mach. Works \[Ga.\] 62 SE 286.

01. Strike was called for lawful purpose, higher wages and shorter day, and persons entering or remaining in plaintiff\* employment were threatened with $100 fine. Injunction was granted restraining and enjoining defendants, their agents or servants from intimidating, by the imposition of a fine or by threat of such fine, any person or persons from entering into the employ of another.82

01. Equity will 12 Cur. Law. MASTER AND SERVANT SS 6. 807

S 6. Crimes and penalties.See 10 C. L. 810.--It is unlawful for a third person to interfere with employees and induce them to leave their employer's service and not to return, or to induce them not to re-enter service which they have voluntarily left, for the sole purpose of exacting or extorting a sum of money from the employer,88 and where several persons confederate for the accomplishment of such purpose they are guilty of conspiracy at common law.84 It is not a common-law offense to threaten a person with intent, by intimidating him, to prevent him from working for another.88 A charge of such conduct under a statute making it an offense must bring it within the statutory terms.89 Under the Connecticut statute, actual intimidation need not be shown.87 Decisions under the Alabama,88 Florida 89 and Georgia 904 statute

induces a laborer or tenant to leave his em-ployment or premises before expiration of therapy in the contract without consent of employer or landlord. Held, where plaintiff contracted with one who was defendant's tenant in 1905 to work plaintiff's land in 1906, but such person refused to carry out contract or go on plaintiff's land, defendant was not liable for allowing such person to have a different piece of his land from what he had in 1905. Alford V. Pegues \[Miss.\] 46 S 76.

83. State v. Dalton \[Mo. App.\] 114 SW 1132.

01. Indictment held to charge an offense, overt acts being alleged, as required by Rev. St. 1899, $ 2153. State v. Dalton \[Mo. App.\] 114 SW 1132.

85, 86. State v. McGee, 80 Conn. 614, $9 A 1055.

87. Under Gen. St. 1902, $ 1296, it is sufficient if intimidation was intended and person threatened so understood. State v. McGee, 80 Conn. 614, $9 A 1059.

01. In prosecection under Cr. Code 1896, $ 4730, as amended by Acts 1903, p. 345, for obtaining property under written contract for services, and refusal to perform services threatened, contract was admissible as an entirety, though prosecection was for only portion of amount stated therein. Campbell v. State \[Ala.\] 45 S 530. Under this statute there can be no conviction without proof of fraudulent intent at time of making contract, regardless of such intent which might be thereafter formed. Id. To come within statute, sole consideration moving from employee to employer must be performance of personal services by him and none other, and when employ undertakes other things in addition to his own services to secure advances, such as having his wife move on employer's place and cultivate crop on share, statute does not apply. Harris v. State \[Ala.\] 47 S 340.

01. Under Laws 1907, p. 182, c. 5678, $ 1, making it crime to procure money or other thing of value by contracting to perform services with intent not to perform them, there must be an intent not to perform at time contract is made to sustain conviction. Thompson v. State \[Fla.\] 47 S 816.

01. Under Pen. Code 1895, $ 122, one may be charged and convicted of an attempt to entice away the servant, cropper or farm laborer of another, though the attempt is not successful and the servant, cropper or laborer does not actually leave the service of his employer. Bright v. State \[Ga. App.\] 61 SE 189. One accused of enticing, per-eading or decoying may also, where evidence warrants, be convicted of the attempt, under Pen. Code 1895, $ 1035. Id. Evidence sufficient to sustain conviction. Id. Acts utes making it an offense to procure advances under a contract for services with intent to defraud, under the Arkansas act prohibiting interference with employees of another," under the Indiana mine's act," under the New York child labor law," under the New Jersey factory inspection law," under the Wyoming act prohibiting certain conduct of miners," and in actions to recover penalties for violations of the federal safety appliance act," are given in the note.

employment is to begin or end, is too vague and indefinite to form basis of prosecution, since term of employment may not have com- cient, being in language of statute. Id. memeed and employ may still have right to repay advances. Starling v. State \[Ga. App.\] 62 SE 93. Allgation that defendant con- fagged in interstate business. Id. acts of at 50 cents per day wages and his food is too vague and indefinite, no time of begin- ning or ending of service being shown. James v. State \[Ga. App.\] 63 SE 143. Contract made on Sunday is void and will not support prosecution unless there has been novation on secular day. Bendross v. State \[Ga. App.\] 62 SE 728.

91. Kirby's Dig. 5030, as amended (Acts 1905, p. 726), making criminal act of enticing away servant employed by another, does not make punishable mere employment of one who has left prior service, and is valid. Tucker v. State \[Ark.\] 111 SVW 275. Statute applies to interference with contract of minor under 15, though contract is not approved by guardian or parent as required by $ 5023, since contract is vidable only by minor and stands so long as he remains in service. Id.

01. Acts 1907, p. 193, c. 121, $ 1, requiring "owner, operator, lesssee, superintendent or other person in charge" of coal mine or coilers, or place where conditions are similar, to provide wash houses when requested in writing by certain number of employees, imposes this duty upon the person in charge of the mine, whatever his title or office or relation to or interest in the mine. Hewitt v. State \[Ind.\] 86 NE 63. Affacuit charging violation of act held insmment because not directly alleging that defendant was superintendent or person in charge. Essential facts must be directly alleged. Id.

01. In prosecution under Laws 1903, p. 437, c. 184, $ 70, against factory superintendent for allowing child between 14 and 16 to be employed without employment certificate. fact that child was employed without defendants' knowledge or consent is no defense, statute imposing absolute duty. People v. Taylor, 124 App. Div. 434, 108 NYS 796.

01. Action for penalty for hindering and obstructing inspectors of labor' department under Act 1904, $ 26, P. L. 160. Evidence showed inspectors found office door locked, were told to go to gateman, went to him, showed authority, and were refused admittance. HeId, gateman's act was prima facie that of his employer. Error to direct ver- dlet for defendant. Bryant v. Graves Co. \[N. J. Law\] 71 A 60.

01. Under statute making it unlawful for coal miner to enter any place in mine against caution, or to disobey orders, or to do any act by which lives or health of persons or security of mine is endangered, intent to Indure person or property is not essential to constitute the crime. Koppala v. State \[Vy.o.\] 92 SE 662. "Caulton" as used in state means to warn or give notice of danger.

## 19 Cur. Law. Masters and Commissioners $ 1.

## 12 Masters and Commissioners.

1. Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00.

### 1.

**1.** \_Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00.

### 1.

**1.** _Office, Eligibility, Appointment, and $ 5. Powers of Court and Proceedings on Jets of Reference, $19._

### 1.

**1.** _Proceedings on Reference and Hearing_

### 1.

**1.** _Office, Eligibility, Appointment, and $ 6. Powers of Court and Proceedings on Jets of Reference, $19._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** _Office, Eligibility, Appointment, and $ 4. Report of Master, Exceptions and Ob-Compensation, $00._

### 1.

**1.** \_Office, Eligibility, Appointment, and $ 4.

examination of questions of law and fact, and in preparing report of findings and conclusions.10 An order of dismissal "without costs" does not affect the master's right to his fees, even though the order be consented to by the defendants,11 and no agreement of the parties to which the master did not assent, can affect the latter's right to enforce his claim for fees against such parties as are legally liable therefor.11

SS 2. Powers and duties in general and subjects of reference.13See 10 C. L. 812

Under statute in Maine, a disclosure commissioner for a particular county has jurisdiction when holding his court in any other than the shire town of his county over persons of such debtors only as reside in said town, or of debtors whose creditors or attorney's reside therein,18a and where such commissioner acts without his jurisdiction, he renders himself liable for all acts done without those limits and wholly outside of his powers and duties.14

Voluminous and complicated accounts may properly be referred to a master for statement,15 and should be so referred,14 unless for particular reasons a reference be-comes unnecessary,17 but where the matter of stating an account is not complicated, it is within the discretion of the chancellor to refuse the same.18 Usually the legislature has power to confer upon court commissioners powers in addition to those specifically enumerated in the constitution,18a and a court by a proper order may authorize a master commissioner to institute proceedings to enforce a liability for refusal of a purchaser, of land sold to enforce a vendor's lien, to execute a bond for the amount bid,19 but in the absence of such authority the commissioner has no such power.20 Whether a particular issue is one for the master depends largely upon the facts in the case at hand.21 Where there is conflict in the evidence as to the location

costs controlled by statute and not within discretion of court, hence order assessing naft of master's fees on party whose inter-

nership accounts where case was submitted for master's fees on party whose inter-

nearing and trt1 in chief, court without est was owner of right of dower and who

any argument between counsel could take up had no beneficial interest in premises held

and pass upon controversy relating to cerreoneous. Strook v. Jamleson, 139 Ill. App.

439.

001. Claim for "hearing arguments and examining questions in issue and reporting

11.8 Account not being complicated, not conclusions thereon" held Improperly allowed, not showing time necessarily employed. Wirklcy v. Danicki, 235 Ill. App. 54.

85 NE 396. Assurances in briefs that can-

callor regarded charge as very reasonable held without significance. Id.

11,12. Strook v. Jamleson, 139 Ill. App.

339.

001. Search Note: See Court Commissioners, Cent. Dig. # 2-10; Dec. Dig. # 3-6; 11

Cyc. 623-625; Equity, Cent. Dig. # 854-856,

564-879; Dec. Dig. # 395, 599-402; 16 Cyc. 430,

434-437;

13a. Statutes considered and commissioners held to be without jurisdiction over debtors' person, neither debtor, creditor, nor his attorney residing in Fairfield where court was held. Stuart v. Chapman \[Me.\]

70 A 1069.

14. Stuart v. Chapman \[Me.\] 70 A 1069.

Commissioner, refusing debtor benefit of

soth provided by Rev. St. 1903, E. 114, S. 55,

indorsing upon execution certificate required by $ 38, and who annexes to execution cap-

14

has required by $ 28, whereupon debtor is

arrested and committed to jail, held liable

for false imprisonment. Id.

15. Where correctness of some items was

impusted. Speakman v. Vest \[Ala.\] 45 S 667.

16. Laughlin v. Braner, 138 Ill. App. 524.

01. In proceeding for settlement of part-

nership accounts where case was submitted

on exceptions to certain depositions and for

hair of master's fees on party whose inter-

hearing and trt1 in chief, court without

any argument between counsel could take up

had no beneficial interest in premises held

and pass upon controversy relating to cerreoneous. Strook v. Jamleson, 139 Ill. App.

439.

001. Search Note: See Court Commissioners, Cent. Dig. # 2-10; Dec. Dig. # 3-6; 11

Cyc. 623-625; Equity, Cent. Dig. # 854-856,

564-879; Dec. Dig. # 395, 599-402; 16 Cyc. 430,

434-437.

13a. Statutes considered and commissioners held to be without jurisdiction over debtors' person, neither debtor, creditor, nor

his attorney residing in Fairfield where court was held. Stuart v. Chapman \[Me.\]

70 A 1069.

14. Stuart v. Chapman \[Me.\] 70 A 1069.

Commissioner, refusing debtor benefit of

soth provided by Rev. St. 1903, E. 114, S. 55,

indorsing upon execution certificate required by $ 28, and who annexes to execution cap-

14

has required by $ 28, whereupon debtor is

arrested and committed to jail, held liable

for false imprisonment. Id.

15. Where correctness of some items was

impusted and identity of monuments called for in a patent, the location of a disputed boundary line as a question of_fact may properly be referred,22 but issues should not be referred where the allegation of the complaint show that plaintiff has an adequate remedy at law,23 nor can a suit in chancery properly be referred to a master for the purpose of taking testimony therein before all the issues are properly made up.24 It is the master's duty to find the facts and not to determine whether any and what relief shall be given.25 A master commissioner in the exercise of his sound discretion may resell land without reporting to the court the bid of an insolvent purchaser at a prior sale, who failed to execute a bond to secure his bid.26 The issuance of a master's deed, pursuant to a certificate issued as a result of proceedings to foreclose a mortgage where appellants did not appear and answer, will not be restrained in the absence of a showing of a meritorious defense to the action in which the decree was rendered.27

SS 3. _Proceedings on reference and hearing by master.28 See 10 C. L. 813_--A master should arrive at his conclusions from his own investigation,28a but parties having invited another method which is adopted are not in a position to complain.29 The time for the reception of evidence is largely within the discretion of the master,30 as is also the question whether a case shall be reopened and additional evidence be introduced the next day after both parties have announced their conclusion of testimony.31 He is at liberty to disbelieve testimony given before him,32 but he cannot willfully or from mere caprice disregard the testimony of an unimpeached witness.33 Where a master in an accounting complies with the decree, it is immaterial that he does not annex to his report and finding any account with items,34 or that he makes a mistake in the net worth where such error is not prejudicial.35 In proceeding on accounting between partners, the partnership ledgers kept by bookkeepers are competent original evidence.36 A master upon petitioning that defendants be decreed to pay him his fees in the case where a suit is dismissed upon complainant's motion ceases to be merely an agency of the court and becomes an independent and interested party in the matter.37 Since a writ of prohibition only lies to a court, and probably

tee's share, based on a right to recover an- 28a. Leslie E. Keeley Co. v. Hargreaves, other fund arising from the share assigned. 236 Ill. 116, 86 NE 132.

and for a consideration covered by both claims, where validity of assignment is un- 39 parties have invited findings from questioned and there is no dispute as to whether it was absolute. In re' Ball's Estimate, 220 Pa. 339, 69 A 817.

22. State v. King \[V. Va.\] 63 SE 468.

01. Error to refer all issues in action for recovery of land, compliant showing no obstacle to recovery but that he had adequate remedy at law. Central Nat. Bank v. Duncan, 77 S. C. 1, 57 SE 531.

01. Irregular and improper practice to refer causes to master where all interested persons had not been made parties to action. Sarasota Ice, Fish & Power Co. v. Lyie & Co., 53 Fla. 1069, 43 S 602.

01. Question of relief one for court. Adams v. Young, 203 Mass. 588, 86 NE 942.

01. Sale of land to enforce vendor's lines, Brand v. Pryor \[Ky.\] 115 SW 180. Fact that at second sale property was knocked down to an irresponsible bidder held not to effect commissioner's right to again sell property without reporting second sale to court. Id

01. Gross v. Parker, 137 Ill. App. 313.

01. Search Note: See Equity, Cent. Dig. 11 880-892; Dec. Dig. 11 44, 405; 16 Cyc. 438-443.

in some exceptional cases to a judge at chambers, it will not run against a receiver, commissioners and master appointed by the court. \[88\]

SS 4. _Report of master, exceptions and objections._\[89\]See 10 C. L. 813--The law does not contemplate the preparation by the master of an opinion in the case, \[89\] and reasons for findings are not properly a part of the report. \[40\] It is not material that the report does not appear to have been formally confirmed though that is the regular procedure. \[41\] An error in a master's report may be cured by acts before the decree approving the report is passed, \[42\] and if erroneous in the amount of costs paid, the party aggrived should ask the court below for a retaxation. \[43\] Defect, if any, in the report, in that it does not contain all the documentary proofs, is cured by the introduction of such evidence in open court. \[44\] A master while a matter is still pending before him and before his report is signed may properly include in his report a statement to the effect that since the taking of the testimony and the drafting of his report a certain admission has been made by one of the parties to the litigation, \[45\] and the admission need not be reported in the exact words. \[46\] In passing upon objections after hearing argument and reaching a decision, a master need only make a brief, written statement that the objections are overruled. \[47\] Findings must not be inconsistent with recommendations, \[48\] but must correctly apply the law \[48\] and must be supported by the evidence. \[50\] Findings of conclusions of law may be harmless. \[41\] Under titled with master named as appellee, he shaving become party. Id. \[42\]

3S. Dunbar v. Bourland \[Ark.\] 114 SW App. 115. If admission was incompetent, 467. Should officers proceed to discharge duties imposed upon them in void proceeding in which they were appointed, remedies sustain decree. Id. \[49\] If nothing "that plaintiff concedes that, dress would be ample. Id. \[50\]

3S. Search Note: See Equity, Cent. Dig. \[51\]

51S 893-819; Dec. Dig. \[52\]

406-410; 16 Cyc. \[53\]

41C. \[54\]

42C. \[55\]

43Da. Manowsky v. Stephan, 233 Ill. 409, 84 NE 865. Report in length and manner of preparation subject to criticisms of report in Manowsky v. Stephan, 233 Ill. 409, 84 NE 865. \[56\]

44S. In sum by equitable owner to charge 865; Virshicky v. Dranicki, 233 Ill. 106, 85 NNE 396. Report need only state (1) ultimate facts by reference to pleadings or otherwise: \[57\]

44S. In sum by equitable owner to charge (2) questions upon questions of law in is- \[58\]

45

46

47

48

49

40Manowsky v. Stephan, 233 Ill. 409, 84 NE 865. \[59\]

41American Circular Loan Co. v. Wilson, 198 Mass. 182, 84 NE 183. That it was accepted and acted upon by court with certain additions and corrections, materials for which were found in report itself, held a practical confirmation of report, especially when followed by final refusal to recommit report. Id. View confirmed by final decree redirected that it was made "upon master's report and exceptions of parties thereto and the master's supplementary report" Id. \[50\]

49Philings of court that master proceeded in due form of law and in accordance with terms of decree sufficient to meet objections as to sufficiency and regularity of a certificate of publication in master's sale. Steele v. Wynn, 139 Ill. App. 428. \[51\]

42Where at time of making report mortm-gage was not discharged but discharged before decreree approving decree was passed, held exception to report was unavailing on appeal. O'Brien v. McNeill, 199 Mass. 164, 85 NE 402. \[52\]

43,44Steele v. Wynn, 139 Ill. App. 428. \[53\]

45Admission that chattel mortgage in chanic's line that, except claims for latent statute in some states, exceptions may be allowed to a master's report where the master improperly admitted or excluded testimony, or for any other cause which may be adjuded by the court or where it is apparent from the report that injustice has been done,\[52\] and an exception to a master's ruling that the plaintiff was entitled to no relief is well taken being a conclusion of law,\[53\] but where all the facts are reported by the master, the exception to such ruling is immaterial.\[54\] Exceptions based upon the alleged state of the evidence are properly overruled where the evidence is not reported and the facts upon which they are respectively based are not set out in the report,\[55\] or where the evidence is irreconcilably conflicting and the party excepting had the burden of proof.\[56\] An exception to the report because of the reception of oral testimony to show the appointment of an administrator is without force where the report does not show that any objection was made to the testimony,\[57\] and where the master finds solely from the report of commissioners for the allowance of claims against an estate that there is due from the estate a certain amount on a note, an exception to the report because of the reception in evidence of the note itself and the indorsements thereon is without force,\[58\] and the fact that the findings do not show who made the endorsement is also without force since the allowance of the note by the commissioners was equivalent to a judgment and merged the original claim.\[59\] Where a special order was made in a case on notice in regard to the signing of testimony on reference to a master, and that order has not been appealed from exceptions to the testimony on the ground that it had not been read over or signed by the witnesses, will not be considered well founded on exceptions to the report.\[60\] Where the evidence excepted to refers only to immaterial issues, the failure to require the master to report the evidence is not error,\[61\] and where the exceptant was not aggrived by the failure of the master to report on a matter as directed, his exceptions on that account will be overruled.\[62\] One having informed the master that he did not desire a finding upon a particular question is not in a position to complain because the master left the question undecided.\[63\] By failure to take exceptions, a party is deemed to have accepted a master's report,\[64\] and the master's finding is conclusive upon the parties as to all questions wherein the finding is not excepted to,\[65\] and although a party duly excepts to a report where the evidence is not reported, he is concluded by the master's findings of fact.\[66\]

\*\*SS 5. _Powers of court and proceedings on review.\[67\]_--\_ See 10 C. L. 813--_Aside from defects, respondents were estopped to set up claims after suit not mentioned in notice --_

http://www.stat.uc.edu/ statutory provisions to the same effect,"7a a master's findings of fact are only prima facie correct "8 and only advisory to the lower or appellate court where the evidence accompanies the report." Although it has been held to the contrary," they are not of the same dignity or binding force as are verdicts; "1 but although entitled to great weight,"2 the court, if dissatisfied, may set them aside on exception and adopt his conclusion as to what the evidence proves,"8 but they should be sustained unless the court is satisfied from the evidence that they are clearly erroneous,"4 since the legal presumption is in their favor "8 when made by the "consent" "8 of the parties and concurred in by the court,"7 and that the master in making them and reporting the testimony discharged his duty."8 The court may make additional findings of fact from the master's reports of findings without hearing further evidence,"9 and where exceptions to the report raise inferences of fact to be drawn from the facts found by the master, the court which has to deal with those exceptions may draw inferences of fact from the facts found."0 The rejection of a master's affirmative finding in a particular case may not affect the maker's report."1 Findings of fact by a master will be affirmed as against general exceptions which do not point out any evidence to impeach the same,"8 and they will not be impeached in the absence from the record of his certificate or other competent proof either that the evidence presented is the entire evidence taken by him, or that it contains all the evidence which was before him relative to the specific findings challenged."8

67n. Under Mans. Dig. $ 5272 (Ind. T. Ann. St. 1893, $ 3477), master's findings only advisors to court which may reverse same where justice requires same. Guarantee , Edwards (C. C. A.) 164 F 809; Cimottol Gold Bond Loan & Sav. Co. Ind. T. 297, 104 SW 624.

68. Guarantee Gold Bond Loan & Sav. Co. v. Edwards, 7 Ind. T. 297, 104 SW 624. Report not entitled to same effect as verdict of a jury in a case where parties have a right to have issues of fact determined by a jury. Larson V. Glos, 285 Ill. 84, 88 NE 826.

01. Guarantee Gold Bond Loan & Sav. Co. v. Edwards, 7 Ind. T. 297, 104 SW 624.

01. Master's findings of fact is not merely advisory but has force and effect of a special verdict of a jury. Town of Saplupa v. Babulpa Oil & Gas. Co. \[OK.\] 97 F 1007.

01. State v. King \[W. Va.\] 63 SE 168.

Where not made by consent of parties, they have not force of a special verdict. Happood v. Berry \[C. C. A.\] 157 F 807.

72. State v. King \[W. Va.\] 63 SE 468.

01. State v. King \[W. Va.\] 63 SE 468; Happood v. Berry \[C. C. A.\] 157 F 807. Evidence held to support master's findings that there was no fraud in sale of mill property. Felton v. Chellis \[V.\] 89 A 149.

01. State v. King \[W. Va.\] 63 SE 468. Under evidence held error to sustain exceptions to report. Town of Saplupa v. Saplupa Oil & Gas. Co. \[OK.\] 97 F 1007. Nothing found to Impugn correctness of master's findings. VWhitman v. McIntyre, 199 Mass. 48, 85 NE 426. Evidence held to show that master made mistake in finding a fact, and that deed was procured by fraud and was intended to be a mortgage. Guarantee Gold Bond Loan & Sav. Co. v. Edwards \[C. C. A.\] 164 F 809. Master's findings in making allowances sustained. Cimott Unharing Co. v. American Fur Refining Co., 158 F 171. Even where appellate court is in doubt as to correctness of findings, it is not justified in disturbing de- 164 F 809.

12 Cur. Law. MECHANICS' LIENS SS 1.

SS 6. _Re-reference._\[54\], See 10 C. L. 514. The recommittal of a master's report is within the discretion of the chancellor. \[54\]. Ordinarily, where on appeal it appears that certain corrections would be made in the account as reported, and there are not sufficient data for determining the errors, the case will be recommitted to the master to state the proper account, \[88\] but that will not be done where the plaintiff has failed to avail himself of the permission given him by the lower court and the defendant does not desire the same. \[86\]

## 7.3. **Masters of Vessels, see latest topical index.**

## 8. **Masters of Vessels, see latest topical index.**

## 8. **Mesters of Vessels, see latest topical index.**

## 9. **Mechanics' LIENS.**

it is likewise said that such statutes are remedial, to be liberally contrued in enforcement."2 Mechanics' lien laws do not contemplate anything in the nature of a personal action."3 and statutes extending the system by providing remedies in personam are invalid."4

SS 2. \_Services, materials, and claims for which liens may be had.\_95_See 10 C. L. 815 Ordinarily the materialman must show that the labor performed and the materials furnished were used in the construction of the structure."4 A claim for damages "4

108 NYS 992; Weiss v. Kenney, 59 Misc. 279, 112 NYS 287; Broxton Artificial Stone Works 85 23-59, 112-124; Dec. Dig. 85 22-54, 7-93; 27 v. Jowers \[Ga. App.\]. 60 SE 1012. Not dis-regrant of statutes, Hogan v. Bigler \[Cal. App.\] 96 P 97; Davis v. Treacy \[Cal. App.\] 97 T8; Windfall Natural Gas, Min. & Oil Co. v. Roe, At. Ind. Ed. 607, 84 NE 996; Id. \[Ind. App.\] 85 NE 722.

\[Ind. App.\] 85 NE 722.

92. Tronpaol Lumber Co. Nevada Amususement Co. (Ney.) 97 P 636; Baker v. Lake Land Canal & Irrigation Co., 7 Cal. App. 482, 94 P 778; Steplma v. Conklin Lumber Co., 134

01. App.\] 173. Where claimmar brings him-self within Burns' An. St. 1908, 82 829, authorizing such items, statute will be liberally construed. Potter Mfg. Co. v. Meyer & Co. \[Ind.\] 86 NE 837. Lien Law, 8 22 (Laws 1897, 6. 418, p. 525), requires liberal construction. Hurley v. Tucker, 128 App. Div. 580, 112 NYS 980, Lien Law, 8 22 (Laws 1897, 9. 625, 418). Griffin v. Ernst, 124 App. Div. 289, 108 NYS 816; Waters v. Goldberg, 124 App. Div. 511, 108 NYS 992.

01. Vulcanite Portland Cement Co. v. Allison Co., 220 Pa. 382, 69 A 856. Property subject to mechanical's lien thought no personal indebtedness. Beach v. Huntsman \[Ind. App.\] 83 NE 1033; Id., 85 NE 523. An action to enforce a lien given for material is not a proceeding quasi in rem, debt being personal liability founded on contract. Ruth- 4, 1894, 2, 208, 28 Stat. 226, 6 Fed. St. Ann. pp. erford v. Ray, 147 N. C. 253, 61 SE 57. Personal judgments may be rendered. See post 84. Act. June 4, 1894, 5. 31, 88 Stat. 422 \[U. S. Comp. St.\] 10D, Judgments.

01. Act June 4, 1901, 8 46 (P. L. 453), providing that in enforcement of mechanic's lien thus where property is essential to business of public service operation, claimant shall have execution thereon as, in cases of judgment against other corporations, provides for a remedy in personam (under special 1870, P. L. 58), and is special legislation and inoperative. Vulcanite Pav. Co. v. Philadel-phia Rapid Transit Co., 220 Pa. 608, 69 A 1117. Ordinary process of enforcement of mechanic's lien by levari facials, in rem. Id. Method of enforcing being inoperative, lien must fail. Id. A statute giving right to pursue persona method in attachment is in- 8295, giving mechanic's lien for labor performed on structure, authorizes lien for 1870, P. L. 582, 69 A 855; Trexler v. Kuntz, 36 P. Super. Ct. 552. Provisions of Mechanic's Lien Law (Act June 4, 1901) 82 (P. L. 445), giving subcontractor right to issue attachment execution against owner or other party indebted to contractor is special legislation, violative of Const. Art. 8, %, forbidding General Assembly from passing law changing methods of collection of debts or enforcing of judgments, Vulcanite Portland Cement Co. v. Allison Co., 220 Pa. 882, 69 A 855.

01. Search Note: See notes in 4 C. L. 617; 16 L. R. A. 600; 18 Id. 305; 2 L. R. A. (N. S.) 285; 6 Id. 550; 15 Id. 509; 16 Id. 585; 4. Ann. Cas. 1015; 9 Id. 97, 309.

See, also, Mechanics' Llens, Cent. Dig. 85 23-59, 112-124; Dec. Dig. 8 or for money loaned "7" is excluded. The furnishing of materials necessarily involves the question of delivery "8" which some statutes require to be to the owner or his agent."90

SS 3. \_Properties and estates therein which may be subjected to the lion.\_1-See 10

C. L. 618.--Property the subject of improvement should be charged with payment therefor,18a and a lien may not be had upon one structure for labor and materials entering into another structure,2 although a joint lien may be had upon a number of structures.3 Statutory provisions designate the area to which the lien attaches as a "lot,"94 and generally the lien attaches to the extent of the statutory limit,5 though

Xifg. Co. v. Meyer & Co. \[Ind.\] 86 NE 837.

Va.\] 63 SE 808. Where plaintiff purchased Under Burns' Ann. St. 1908, $ 8295, mechani- luncher from employer for wages and cash ic's lien on waterworks system for briok buckets, blacksmithing work and charges howe, he was entitled to lien, evidence being for railroad switching privileges are not authorized. Potter Mfg. Co. v. Meyer & Co. \[Ind.\] 87 P 972.

\[Ind.\] 85 NE 725. Railroad switch not "machine" for construction of waterworks within statute giving lien to persons furnishing machinery. Potter Mfg. Co. v. Meyer & Co. (Ind.\], ApJ. 85 NE 1048. Under V. Aztec Gold Min. & Milli. Co. \[N.\] 83

Mechanic's Lien Law, $ 1, as amended in 1903 (Hurf'88 Rev. St. 1905, $ 8, 15), giving lien to person who shall "urnish matter".

\[Ark.\] 111 SWP 255. Evidence suff- and $ 7 ($ 21) providing that no lien be defeated for lack of proof that material was used in improvement, "#xtures, apparatus and machinery" must be shown to be used in 90. Under Mechanic's Lien Law 1903, p. 233, such manner to be attached to or form part of real estate. R. Haas Elec. & Mfg. Co. v.

\[Ark.\] 7, unloading luncher at or near premises is 1903 (Hurf'88 Rev. St. 1905, $ 8, 15), with: 1903 (Hurf'88 Rev. St. 1905, $ 8, 15), giving lien to person who shall "urnish matter".

\[Ark.\] 111 SWP 255. Evidence suff- and $ 7 ($ 21) providing that no lien be defeated for lack of proof that material was used in improvement, "#xtures, apparatus and machinery" must be shown to be used in 90. Under Mechanic's Lien Law 1903, p. 233, such manner to be attached to or form part of real estate. R. Haas Elec. & Mfg. Co. v.

\[Ark.\] 7, unloading luncher at or near premises is 1903 (Hurf'88 Rev. St. 1905, $ 8, 15), with: 1903 (Hurf'88 Rev.

whether the lien shall attach to all or part of the land within the maximum quantity is a question of fact." Elsewhere, the area of land subject to lien may depend upon the character of the improvement." The entire title or interest of an employer in the construction of reclamation works of arid lands may be subject to the lien," as well as the property of a married woman " or a railroad," but a mechanics' lien cannot be asserted against a church building," or the property of an infant." In some states the fund due a public contractor is subject to a lien for labor and materials furnished him," but generally a lien for materials for a municipality," state," school district," or a fund for the construction of school buildings," is not author-

G. Claimant need aver and prove only \[ Inapplicable where furnished pursuant to quantity of land within llll. Adams v. Contract with lessee of married woman. Id. Central City Grantie Brick & Block Co. \[Mich.\] 15 Det. Leg. N. 795, 117 NW9 932. amended to specifically include railroads, but Glen statutory and must be secured in man-Block Co. \[Mich.\] 15 Det. Leg. N. 795, 117 NW 932. Where owner seeks to have smaller quantity of land held subject to lien, he must prevent facts and reasons supporting it (Id.), and if seeking an apparent enlargement of statutory quantity of land, he should by averments and proof advance reasons and facts in support of his demand (Id.). Under Comp. Laws $ 10, 710, as amended by Pub. Atsts 1908, p. 21, No. 17, gllving lien on tract or lot where structure erected, liens for material and labor used in constructing factory on city lots do not extend to lots not covered or partly covered by building, though covered by mineral deposit suitable for manufacturing purposes, it not appearing that lots as distinguished from deposit were created as part of plant. Id. Evidence that agent told materialment that corporation owned $1 or $2 104 does not show attempt to fix quantity of land to which lien for material should extend. Id. '. Under Comp. Laws 1887, $ 2219, trial court may determine amount of improvement. Returns-Roger Mfg. Co. v. Aztec Gold Mfn. & Mill Co. \[N. M.\] 93 P 706. Lien properly held to extend to mine and mill site when title in same parties, use dependent upon each other and both bound together for common purpose. Id. $, Under act March 2, 1899 (Sess. Laws 1893, p. 283) accepting provisions of federal "Carey Act" and acts supplemental thereto, lien given in construction of reclamation works of arid lands extends to all lands which may be irrigated, to full extent of price per acre for which employer agrees to sell water rights and fienders under such employer are entitled to benefit of lien laws to secure payment to full extent of title or interest of employer having contract from state. Nelson Bennett Co. v. Twin Falls Land & Vater Co., 14 Idaho, 5, 93 P 783. Property rights in reclamation are real estate. Id. Claim must be commensurate with but cannot exceed rights of employer. Id. Atsma 1897, p. 283. Most conform to statute. Luigar v. Lavi 1897, p. 283.113 NW9 932. Deviation Tuf Club \[KY.\] 113 NW9 934. Deviation Tuf Club \[KY.\] 113 NW9 935. Petition held insufficient to charge real estate with lien when lesser married women and no allegation that debt con- 1896, 189, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 199, 199, 198, 1
12 Cur. Law. Mechanics' Liens SS 4A.

ized. A lien upon homestead property in excess of the exemption is permitted.18 Lien for labor may attach and be enforced against a leasehold estate,19 but the availability of a lessor's or vendor's interest usually involves the question of consent.20 SS 4. \_The contract supporting the lien and the privity of the landowner therein. A. In general.21 See 10 C. L. 817--A mechanics' lien is a creation of law, rather than contract,21a and while a contract is usually essential,22 it does not generally need to be written.23 In California, contracts in excess of a specified amount must be written and recorded and disregard of the provisions renders the contract void, all labor done and materials furnished being considered as done at the personal instance of the owner, thus giving the materialmen a lien.24 In Illinois the time of the performance 26 and payment 26 must be specified. The property is generally subjected to a lien by the owner,27 but the rule does not require the contract to be with the owner of the legal title.28 In some states the owner must post a notice to avoid a mechanics' lien.29 Under the statutes, a partnership has been construed as an original contract.

18. Under Pub. Acts 1891, p. 228, Act No. Proc. 1183 determines substantial rights and remains measure of contractor's right movements are made on land, title to which parties to legal rights. Id. Under Code Civ. did not join and property was occupied as homestead, value in excess of $1500 (home-contract rights or amount of recovery, but steady exemption) is subject to lien. Scott v. Lost, 152 Mich. 547, 15 Det. Leg. N. 206, 116 NVW 183.

01. Owen v. Casey, 48 Wash. 673, 94 P 473.

limited by contract price and penalty is ex- 20. See post, # 4B, Contracts By Vendors, etc.

10. New York, 1183, materialmen are deemed to 11 L. R. A. (N. S.) 764; 4 Ann. Cas. 836.

See, also, Mechanics' Liens, Cent. Dig. quest of owners and entitled to lien. Burnett SS 6-01-11: Dec. Dig. SS 65-17; 27 Cyc. 560-80; V. Glas \[Cal.\] 97 P 423; Los Angeles Preased 20 A. & E. Enc. (L. 2ed.) 349.

Brick Co. v. Higgins \[Cal. App.\] 97 P 414.

21a. Beach v. Huntsman \[Ind. App.\] 83 NE Plans, drawings, and specifications essen.

1033; Id. \[Ind. App.\] 85 NE 522. Law de- 1033.

tal part of written building contract and termhes character, extent and number of 11ens capable of enforcement. Crawford v. 423. Code Civ. Proc. 6 1183, requiring written \[Ala.\] 46 SS 849.

22. Express or implied contract with owner $1000, inapplicable where carpenter under- 11 or property or agent thereof requisite to 1000 employment at $3.50 per day for indel- 11en. Beach v. Huntsman \[Ind. App.\] 83 NE NE 523. Lien for 1033; Id. \[Ind. App.\] 85 NE 523. Lien for 1000, Farnham v. California Safe Deposit & work and labor must be actual labor and 11 trust Co. \[Cal. App.\] 96 P 788. Finding that work and under contract. Care taker of 1000 property pursuant to resolution of corpora- 11 when filed sustained on appeal, evidence be- 10 conflicting. Hoffman-Marks Co. v. Splres entry given in consideration of payment of 10 taxes. Bruce v. Carolina Queen Consol. Min. 25. Contract susceptible of interpretation Co., 147 N. C. 642, 61 SE 578.

01. In absence of statute, contract may be 10 be 10 tor and hence entitled to a lien,30 and the right to a lien has been held not to depend upon the material being ordered by the contractor.31

_Payments and offsets.32-In California statutory provisions govern the payment and reservation of a portion of the contract price,34 and in Arkansas no payments to a contractor are permitted until the labor and material is paid.34 A partnership is not deprived of a mechanics' lien from the fact that a member of the firm is surety on the building contractor's bond.35_

(SS 4) _B. Contracts by vendors, purchasers,essors, and lessees.30-Sec 10 C. L. 818_

Many jurisdictions provide for a mechanics' lien where property is improved with the consent of the lessor36a or his agent,37 but in some states such consent must be

mortgage have no such interest in real estate -- authorize the lessee to construct improveupon which mechanics' lien claimed as to compel them to post notice required by -- names' lien unless lessor consents or Comp. Laws $ 2226, where instrument given -- and duty recorded as provided by law prior -- 233 Ill. 79, $4 NE 181. Under Mechanics' to time of work or furnishment of materials. -- Clean Law, $ 1, as amended in 1903 (Hurd's Stearns-Roger Mfg. Co. V. Aztec Gold Min. & Mill. Co., IN., M.J 93 P 706. & 82, $ 16), where owner in -- 30e. Partnership original contract within --ments without limitation, interest of owner -- Gen. St. 1902, $ 4135, 417, giving lien for materials furnished under contract with -- was subject to lien for improvement by sub-owner, though but one contractor present -- and when contract made. -- Soule v. Borell, 80 -- and -- Under Rev. St. 93, material must be further -- finished pursuant to contract or with consent -- of owner, and lien may be prevented by writing --Angeles Pacific Boulevard & Development -- to work or furnish to respensible -- Co., 7 Cal. App. 460, 94 P 7175. Right to lien under Code Civ. Proc. $ 1283, depends upon -- material being used in construction of buildings whether furnished at instance of owner, -- agent, etc., or other person having charge of building. -- La. -- Soule v. Borell, 80 -- and -- The matter of payments largely involves the amount of the lien -- (see post, $ 6), and offsets refer to -- water or loss of the lien -- (see post, $ 8). -- and -- The role of the lien -- (see post, $ 8). -- and -- The role of the lien -- (see post, $ 184, where substantial departure from provisions of payment and reservation of at least 25 per cent of contract price for 35 days, material-men are entitled to lien as if labor furnished at personal request of owner and no contract. Burell v. Glas \[Ca1.\] $ P 423. -- Upon notice given -- as provided by Code Civ. Proc. $ 1184, it is duty of owner to withhold sufficient money due that may become due to such contractor -- * * to answer such claim, etc. Los Angeles Preased Brick Co. v. Los Angeles Pacific Boulevard & Development -- to work or furnish to permanent Co., 7 Cal. App. 460, 94 P 7176. & 94. Under Kirby's Dig. 4975, providing that no payment be made to contractor until labor and material paid, owner in action to enforce lien may show payments to contractor or were used to pay for labor and materials. -- Cost v. Newport Builders' Supply & Hardware Co., 85 Ark. 401, 108 SW 509. Status not to be construed literally but manifestly to prohibit payments directly to contractor for his own use. -- Id. -- Sce. Unless bond signed on behalf of, with consent or ratification by partnership. Burnett v. Glas \[Ca1.\] $ P 423. -- Scearch Note See -- Mechanics' Llens, Cent. Dig. $ 60-111; Dec. Dig. $ 65-78; 27 Cyc. 50-80; 20 A. & E. Enc. (2ed.) $49. -- Sce. Consent is to performance of work, not amount to be charged. Rev. Laws, c. 197, $ 1. Brown v. Haddock, 195 Mass. 480, 85 NE 573. Finding as to consent warranted under report of auditor, testimony of owner and other evidence, I'd. Where a lease does not written,\[28\] or it may be expressed in the lease.\[99\] Substantial performance of the contract is necessary where the owner is to be held by virtue of consent.\[40\] Generally a vendee cannot subject the land to a lien as against his vendor \[41\] in the absence of authority \[42\] or the existence of agency,\[43\] though the latter is imformed of the improvement.\[44\] In some states the lien which has attached to property will follow the land upon the rescission of the executory contract.\[45\] Where an owner of land is neither vendor nor lessor and not a party to the building contract, the title is not subject to a lien,\[46\] but in such case the interest of the builder may be subjected to a lien.\[47\]

(SS 4) \_O. Subcontractors and materialmen.\[48\] See 10 C. L. 612_Mechanics' liens are generally extended by statute to subcontractors \[48\] with the limitation that the

standing that if they exceeded amount contractor was liable for owner would be responsible for balance. Electric Supply Co. v. Purishov \[Iowa\] 117 NW 28.

S7. Evidence held to show agency and, therefore, lien attaches to property for materials furnished. Beach v. Huntsman \[Ind. Appl.\] 83 NE 1033, rys. \[Ind. App.\] 88 NE 633.

Provision of lease giving denant right to make improvements and providing for deduc- tion of repairs from rent does not convert liable from rent does not convert liable from rent does not convert liable from rent and constitute tenant agent of leasor, though property improved. Conserving Act. Cong. July 2, 1884, SS 1, 4 (23 Stat. at L. 64 ch. 143). Langle v. D'Audigne, 81 App. D. C. 409. Board of directors may by mutual understanding establishments.

Listing v. Condon \[Utah\] 97 P 111.

reports may be mutual understanding establishments.

lish that one of their number be active agent whose implied consent will establish liability of corroboration over to lien by inference. York v. Mathis, 103 Me. 67, 68 A 746.

SS. Under Gen. St. 1888, c. 70, art. I, SS 1, giving lien where material furnished under contract or with "written" consent of owner, materialman has no lien for work done under contract with lessee with knowledge or verbal consent of owner. Lugart v. Lexing- ton Turf Club \[Ky.\] 113 SW 814.

S9. Statute requires that particular repairs be specifically provided for on lease, or that owrner expressly consent to or request repairs, or that, with knowledge of employer- ment and purpose, he acquiesec therein.

Aetna Elevator Co. v. Deveves, 57 Misc. 632, 108 NYS 718. General covenant by tenant to repair does not constitute consent on part of landlored required by lien law. Id.

40. Mitchell v. Dunmore Reality Co., 11 NYS 322. Rule of substantial performance inapplicable where failure to perform willful. Id. Upon willful refusal to proceed with work, difference between substantial and literal performance is bounded by de minimams. Id. De minimams inapplicable where work undone exceeds $1,00, Id.

01. Where material delivered to vendee for improvement ofland, vendor's interest would not become chargeable with lien from fact that plaintiff changed account to include both parties. Belnap v. Condon \[Utah\] 97 P 111.

01. Where vendor stipulates with vendee for improvement at latter's cost, and contract leases improvement optional, vendor is not bound. Westport Lumber Co. v. Harris, 131 Mo. App. 94, 110 SW 609.

01. Interest of vendor of land in possession of vendee not subject to mechanics' lien unless vendee had express or implied authority to bind vendor or improvement was ratified. Under Comp. Laws 1907, 13 137, giving liens. Belnap v. Condon \[Utah\] 97 P 111.

01. Where contract requires vendee to improve, he becomes agent of vendor, capable of subjecting whole title to mechanics' liens.

Vestport Lumber Co. v. Harris, 131 Mo. App. 94, 110 SW 609.

44. Under Gen. St. 1880, c. 70, art. I, SS 2, providing for lien which has attached to property to follow land on reassign of ex-, securely contract, where petition alleged ownership of land by lessee under contract or ownership of purchase, but elsewhere alleged ownership by lease and her children living at death, and 1 did not appear that children were part-, to lien, to lien was acquired. Lugart v. Lexington Turf Club \[Ky.\] 113 SW 814.

01. Where owner of land gave children permission to erect building at their own ex-, repairs and then sell entire property, repairs and then sell entire property, repairs and then sell entire property, relying her for lot, children were neither vendees nor lesses, and since owner was not party to building contract, or did not authorize children's contract on her credit, her to lien to lien was not subject to lien. Westport Lumber Co. v. Harris, 131 Mo. App. 94, 110 SW 609.

01. Where defendant erected building on mother's land, agreeing to sell among on com-, and pigned and pay mother portion of proceeds, though he was neither vendee, lessee, nor strictly an equitable vendee, he nevertheless lash such equitable interest in the property as to be subject to lien. Westport Lumber Co. v. Harris, amount of such liens in the aggregate do not exceed the contract price," though under other statutes the subcontractor's lien is not dependent upon whether a sum is due the principal contractor."60 The owner has been held to bear a quasi contractual relation to the subcontractor,61 A stipulation against liens by the principal contractor is not binding on a subcontractor having no actual notice thereof,62 and the rights of a subcontractor are not affected by the reception of dividends from the bankrupt original contractor's estate.63

SS 5. \_Acts and proceedings necessary to acquire lien. A. Notice and demand, statement to acquire lien.64_Sec 10 C. L. 619.--In the acquirement of a mechanic's lien, substantial compliance with the statutory provisions is required.54a Generally a preliminary notice of the intention of the subcontractor to file a lien is required 68 for the protection of the owner.54 In some states a mechanic's lien is considered as arising out of the circumstances under which the work is done and the materials are furnished,67 and, the office of the statement being merely to preserve the lien,68 it is sufficient if the owner is not misled by the facts stated.69 It follows that the state- and must be so used. Rev. St. 1899, $ 4208 (Ann. St. 1906, p. 2277). Riverside Lumber Co. v. Schmidt, 130 Mo. App. 227, 109 SW71.

49. See, also, post, $ 6, Amount. Under Klyn's Dig. SS 4970, 4975, statute gives independent lien to classes named under sole limitation that aggregate shall not exceed contract amount agreed upon between owner and contractor, and no person named can be precluded from lien without consent. Cost v. Newport Builders' Supply & Hardware Co., $ 5 Ark. 407, 108 SW7509.

01. Subcontractor's lien not dependent upon principal contractor obtaining an architect's certificate. Rieser v. Commeau, 114 NYS 154.

01. Under Lien Law (Laws 1903, p. 241), $ 28 (Hurd's Rev. St. 1908, c. 82, $ 42), owner is under quasi contractual obligation to subcontractor for pro rata share of amount due contractor. Harty Bros. & Harty Co. v. Pol-

allow, 237 Ill. 559, 86 NE 1085, rpg. 141 Ill. App. 570. Enforcible in assumist. Id.

52. Cost v. Newport Builders' Supply & Hardware Co., $ 5 Ark. 407, 108 SW7509.

01. Rights of subcontractor under Mechanic's lien Act of 1895, 82, not affected by fact that he filled claim against bankrupt original contractor and received dividends, subcontractor not being "secured creditor" within National Bankruptcy Act, $ 1, and dividends operating to reduce claim. County of Coles v. Haynes, 134 Ill. App. 320.

01. Search Note: See note in 17 L, R. A.

01. See, also, Mechanics' Liens, Cent. Dig. SS 161-178, 208-278; Dec. Dig. SS 117-126, 183-154, 157, 158, 160: 27 Cyc. 111-120, 123, 152-120; 20 A. & E. Enc. L. (ed.) 372.

54a. See, also, ante, $ 1. Notice sufficient where owner may ascertain nature of claim, amount and date. Day v. Pennsylvania R.

Co., 35 Pa, Super. Ct. 586. Lien can only be obtained by filling notice in statutory way.

Vindral Natural Gas, Min. & Oil Co. v. Roe

\[Ind. App.\] 85 NE 722; Id., 41 Ind. App. 887, 84 NE 986. Immaternal to whose fault insufficiency is attributable, unless affected by party sought to be charged. Windral Natural Gas. & Min. Co., 41 Ind. App. 687, 84 NE 986. Innocement mistake in notice does not invalidate. Felgenhauer v. Haas, 123 App. Div. 75, 108 NYS 476. Question of validity of ment may be amended, \[40\] and in some states amendments are permitted by statute. \[61\] The notice or statement is usually prescribed by statute \[62\] and generally includes a statement of the amount of the claim, \[63\] including the nature of the items \[64\] and

**60. Claim for labor and materials when in** **ference but must be expressly stated. Chandard only labor performed. Devine v. Clark, 1983 Mass. 56, 84 NE 309.**

**61. Under Act of June 4, 1991, P. L. 431, an amendment is permissible, though after verament to employment to amount and value of thought material. Day v. Pennsylvania R. Co., 35 Pa. Super. Ct. 586.**

**62. Claim for labor and materials when in** **ference but must be expressly stated. Chandard only labor performed. Devine v. Clark, 1983 Mass. 56, 84 NE 309.**

**63. Under Act of June 4, 1991, P. L. 431, an amendment is permissible, though after verament to employment to amount and value of thought material. Day v. Pennsylvania R. Co., 35 Pa. Super. Ct. 586.**

**64. Claim for labor and materials when in** **ference but must be expressly stated. Chandard only labor performed. Devine v. Clark, 1983 Mass. 56, 84 NE 309.**

**65. Under Act of June 4, 1991, P. L. 431, an amendment is permissible, though after verament to employment to amount and value of thought material. Day v. Pennsylvania R. Co., 35 Pa. Super. Ct. 586.**

**66. Claim for labor and materials when in** **ference but must be expressly stated. Chandard only labor performed. Devine v. Clark, 1983 Mass. 56, 84 NE 309.**

**67. Detailed information is available at https://github.com/hugging/citation/.**

\*\*68. Under Act of June 4, 1991, P. L. 431, an amendment is permissible, though after verament is where furnished," the terms of the contract,"4e a description of the property," the name of the owner,"4e debtor "6" and claimant,"70 and verification.71 A reference to

Id. Notice need not separately state value |notice (Civ. Code 1896, & 2731) and state-

of materials furnished and labor performed.ment filed in probate office (Civ. Code 1896, & 1896, Flegenhauer V. Haas, 123 App. Div. 75, 108 & 2727) attempted to embrace 1len on two

NYS 476. Where article was patented device

separate contracts, it is unenforcible. Crav-

composed of iron, wood, etc., subcontractor

ford v. Sterling \[Ala.\] 46 S 849.

need not set out in notice an itemized state-

ment of different materials of device as

reference to facts sufficient. Patten & Davies

whole. Day v. Pennsylvania R. C., 35 Pa.

Lumber Co. v. Gibson \[Cal. Appl. 98 P 37.

Super. Ct. 586. Under Code 1904, & 2476, ac-

Description so that party familiar with

count filed which omitted to show prices for

premises could identify is sufficient. Hurley

items was entire failure to comply with stat-

v. Tucker, 128 App. Div. 586, 112 NYS 950.

ute. Brown v. Cornwell, 108 Va. 129, 60 SE

Notice not invalidated because of obvious

623. Account stating "am" of est. $450,"

lexical error in superfluous clause of de-

insufficient, as word "estimate" indicates

scription. Id. Distinction between descrip-

value of goods in seller's mind rather

tions incurably defective and those which

than contract price. Id. No evidence that

may be made certain by references. Wind-

materials contracted for at gross sum. Id.

fall Natural Gas, Min. & Oil Co. v. Roe, 41

Where building contract provides for month-

Ind. App. 687, 84 NE 96. Error of dimension

ly payments to contractor on vouchers ap-

of hot in notice does not invalidate lien. Lien

proved by architect, gross sums paid for

Law, $ 9, subd. 7, $ 22 (Laws 1897, p. 518, c,

labor at stated periods under general design-

418). Hall v. Thomas, 117 NYS 979. Where

nation of "pay roll" will not be treated as

property sought to be charged with lien is

"lumping sums" not protected by statute.

described merely as certain tract of ground

Lunsford v. Wren \[V. Va.\] 68 SE 308. State-

without limitation, claim is applicable to

ment must be itemized in reasonable manner

whole lene. Sofre v. Crandall, 233 Ill. 79, 84

and to reasonable extent to enable those in-

NVE 181. Description as stable located on 108

terested to know if claim is enfordible.

in New York City,borough of Manhattan,

Sorg v. Crandall, 233 Ill. 79, 84 NE 181. Work

known as Nos. 166-172 Perry St., sufficient.

done by person for several days preceding

Harley v. Tucker, 128 App. Div. 580, 112 NYS

may be charged on day of payment. Id.

Omission of ditto marks where several items

Iien claimed sufficiently described as follows:

in claim follow item having date in margin

is in accordance with custom of many book-

avenine in the city of Broxton now occupied

keepears and will not invalidate claim. Id.

Indication of dates in claim for mechanic's

Getal Stone Works v. Jowers \[Ga. App.\] 60

lien by figures in date column at left of

SE 1012. Evidence of exact dimensions ad-

page, thus, 2-4, 2-6, under heading "Chicago,

missible to enable proper accte to be

Feb. 15, 1893," is sufficient, meaning of figures used being well understood. Id. Where

terestent showed work as done between two

dates and afflawt verified statement, it was

sufficient, since entire contract was single

item. (Act 174, & 4, as amended by Laws

1887, p. 219, Hurd's Rev. St. 1893, c. 82, & 4),

Id. Where contract entire, statement may

property include all work and material as

one item. Id.

nature of owner in fee. Sorre v. Crandall, 233

63. Notice that first time item furnished on

117, 94 NE 181. "The owner," as used in Act

or about May 9, 1895, sufficient compliance

with Lien Law, Laws 1897, p. 618, c. 418, $ 9,

subd. 6, since only certainty required as

would invalidate transaction, Hurley v.

Tucker, 128 App. Div. 580, 112 NYS 980, Un

der Hurd's Rev. St. 1905, c. 82, & 88, notice

need not state when the statute under which the lien is claimed is unnecessary.\[72\] A suit for a subcontractor's lien begun within four months prior to the filing of a petition in bankruptcy against the contractor does not give a lien in favor of the plaintiff.\[73\]

(SS 5) _B. Filing and recording claim, and statement thereof.\[74\] See 10 C. L. 821_

Invariably the time limit within which the notice or statement must be filed is prescribed by the statute.\[74\] Claim prematurely filed cannot be enforced,\[78\] and the time usually commences when the materials are furnished \[74\] or the building com pleted." The time cannot be extended, either by furnishing additional material,"" delay," subsequent agreement," or other method." The matter of completion involves the question of whether the items were furnished as part of one continuing transaction." A lien claimant's rights are unaffected by a mistake of the clerk in docketing the statement."

SS 6. _Amount of lien and priority thereof._"See 10 C. L. 822--It may be stated generally that the amount of a lien is limited by the value of the materials rendered," and in many states by the contract price which the owner has agreed to pay." Thus,

77. Under Rev. St. 1889, $ 4207 (Ann. St. 1906, p. 2290), indebtedness for material accrues when completed by furnishing of last material for building. Darlington Lumber agreement. Snitsler v. Filter, 135 Ill. App. Co. v. James T. Smith Bldg. Co. (Mc. App.) 61.

114 SW7 77. Contract must be completed or deemed completed before right to file claim of lien accrues. Baker v. Lake Land Canal & (Inc. of Hiling from completion of building. Irr. Co., 7 Cal. App. 482, 94 P 773. Under Code Civ. Proc. 8 1187, providing that occupation and use of building, etc., and cessation with and no excuse for failure to comply from labor for 30 days on any contract to be deemed equivalent to completion, both occupation and cessation for 30 days must exist before structure or contract is complete for purposes of lien. Baker v. Lake Land Canal & (Inc. of Lin.) Bldg. Co. (Mc. App.) 482, 94 P 773: Farnham v. California Safe Depetial & Trust Co. (Cal.) 49 P 788. Where Owner fails to file notice of completion of improvements, Hiling 90 days from actual completion may be made. Code Civ. Proc. 8 1187. Farnham v. California Safe Depetial & Trust Co. (Cal. App.) 89 P 788. Occupation of building while work in active progress and half finished does not start running of time for Hiling of items under Code Civ. Proc. 8 1187. Id. Liberal con-struction but not disregard of statute. Baker v. Lake Land Canal & Irr. Co., 7 Cal. App. 482, 94 P 773.

78. Lien cannot be revised or kept alive by furnishing small quantity of material for that purpose. Coffey v. Smith (Dr.) 97 P 1079. Donating or substituting material for defective lumber furnished. Ashford v. Iowa & Minnesota Lumber Co. (Neb.) 116 NWP 272.

01. Sending new material to replace defective, which new material was rejected as unsuitable. Snitzler v. Filter, 135 Ill. App. 61. Materialma who furnishes material for accretion of building under two contracts with knowledge of such contracts cannot tacke one contract to other one to render filing of lien in time. Valley Lumber & Mfg. Co. v. Driesel, 13 Idaho, 662, 93 P 765. Some evidence of notice by materialma of two contracts but not preponderance and lien held filed in time. Id. Small amount of labor or material furnished after acceptance of structure under circumstances indicating bad faith on part of materialma will not support mechanie's lien. Ashford v. Iowa & Minnesota Lumber Co. (Neb.) 116 NWP 272. Where partnership engaged in constructing building dissolved, and materialma refused further delivery except small quantity for immediate use, notice of lien filed within 90 days after delivery of small quantity was in time. Slicesk v. Robinson, 60 Misc. 481, 118 NYS 832. VWaver of personal claim against partner would not affect plaintiff's right to treat last item as portion of lumber furnished pursuant to contract. Id.

01. No evidence that delay in completion of building was by connuisance for purpose of lien. Baker v. Lake Land Canal & (Inc. of Lin.) Bldg. Co. (Mc. App.) 482, 94 P 773. Parham v. California Safe Depetial & Trust Co. (Cal.) 49 P 788.

01. Time not to be extended by subsequent experiment. Snitsler v. Filter, 135 Ill. App. 61.

01. Act of plumbing inspector in delaying designed

## 13 Cur. Law. Mechanics' Liens SS 6.

when a contractor abandons a structure, the owner is entitled to credit for the sum expended in completing it,"s and in some states the owner's liability, upon abandonment, is expressly limited to the work done." Generally the lien cannot extend to a greater amount than the balance due at the time of notice, provided the payments previously made are in good faith,"s but the owner is liable when disregarding a notice to stop payments,"s though a claimant cannot attack a payment after the expiration of the time for filing his notice." In many states an owner is liable to the materialman to the full extent of his claim, regardless of payments made to the contractor,"s or when he disregards statutory provisions for his protection such as security.

The general constitutional principle underlying linelent states is that the liability of an owner who has completed with his contract be limited to the agreed price. Hoffman-Marks Cal. 97 P C0. V. Spires \[Cal.\] 97 P 152. Provision that archict might supply materials or work-men on failure of contractor to supply enough expense thereof to be deducted from contractor toducc V. Jackman, 7 Cal. App. 703, 95 P 673.

did not authorize architect to blind owner or create lien beyond original contract price. Sternberg v. Ft. Smith Refrigerator Works \[Ark.\] 112 SW 174.

80. Where contract abandoned and owner in completing incurs expenses in excess of contract price, he should be allowed credit in settlement with lien holders claiming under contract for sums paid independently of contractor's debts, and after deduction of aggregate of these sums from contractor, reside should be prorated to lienors.

Tenth being given to subcontractors furPine Blur Lodge of Elks No. 149 v. Sanders

\[Ark.\] 111 SW 255; Sternberg v. Ft. Smith Refrigerator Works \[Ark.\] 112 SW 174.

81. Hoffman-Marks Co. V. Spires \[Cal.\] 97 P 152. Claimants not entitled to lien where under Code Civ. Proc. $ 1200, payments at time of abandonment exceed value of work and materials furnished. Hoffman-Marks Co. v. Spires \[Cal.\] 97 P 152; Schearer & Co. v. Spires \[Cal.\] 97 P 155; McCue v. Jackman, 7 Cal. App. 703, 95 P 673. Where contractor abandons contract, portion of contract price payment of first subcontractors' graphleable to lien is fixed by dedating from the value of work and materials furnished the payments due and paid under the contract, and the remainder shall be applicable to licens. Hoffman-Marks Co. v. Spires \[Cal.\] 97 P 152. Where $46 excess materialman entitled to lien for that sum only, not 25 per cent of value of materials. Duffy Lumber Co. v. Stanton \[Cal.\]. 98 P 28.

\[Cal.\] 97 P 155; McCue v. Jackman, 7 Cal. App. 703, 95 P 673. Where contractor abandons contract, portion of contract price payment of first subcontractor's claim so applicable to lien is fixed by dedating from the value of work and materials furnished the payments due and paid under the contract, and the remainder shall be applicable to licens. Hoffman-Marks Co. v. Spires \[Cal.\] 97 P 152. In defense, evidence of reasonable cost of completion proper. Hoffman-Marks Co. v. Spires \[Cal.\] 97 P 152; Schearer & Co. v. Deming \[Cal.\] 97 P 155. Findings as to value of work at time of abandonment sustained by evidence. Hoffman-Marks Co. v. Spires \[Cal.\] 97 P 152. Rights fixed by statute at time of abandonment and amount subsetyently expanded does not impair rights. Schearer & Co. v. Deming \[Cal.\] 97 P 155.

\[Cal.\] 97 P 152. Rights fixed by statute at time of abandonment and amount subsetyently expanded does not impair rights. Schearer & Co. v. Deming \[Cal.\] 97 P 155.

Code Civ. Proc. $ 1184, requiring at least 25 per cent of contract price to paid 35 days after completion of contract, sets apart a sum for lien claimants, but such section is not applicable where the contractor abandons the work; $ 1200 being applicable. Hoffman-Marks Co. v. Spires \[Cal.\] 97 P 152.

Code Civ. Proc. $ 1200, not volatile of stateing a statement of the materialmen."2 A statute limiting a laborer's lien to work performed at the request or consent of the owner logically limits the lien to a sum not greater than that earned and unpaid at the time of filing the notice of lien."3

A mechanic's lien is usually superior to any other lien attaching subsequently to the commencement of work on the improvement,"4 but is inferior to a prior mortgage,"5 though in some states a distinction as to precedence is made when a building is repaired,"6 and in others the question of notice is involved." Thus purchasers for valuable consideration without notice secure priority."8 A mortgage securing a building loan is ordinarily superior to a mechanic's lien," but the doctrine of equi-

Edgerton Lumber Co. v. Bigelow \[Iowa\] 117 $ 1187, lien of deed of trust given year after commencement of work and furnishing of materials is inferior to mechanic's statement where payments made to original lien. Farnham v. California Safe Deposit & contractor, where contractor failed to complete buildings, subcontractor was entitled to proportion of claim as contract price bore and materials for city improvement as to entire cost of building and in computing cost court might consider payments made party who had interest in contract, and cer-contrary to $ 10713, they being evidence of claim materialmen furnished materials to plantoffs with knowledge and approval of third party, materialmen's lien were su-comp. Laws, $ 10713, requiring contractor, 109 NYS 1032.

when payments are due, etc., to furnish statement of materialmen so as to affect of rights of mortgage under mortgage after improvement and before contractor files notice of lien. Adams v. Central City Granting is furnished in completion of building, me-Brick & Block Co. \[McInt\]. 15 Det. Leg. N.

795, 117 NWP 952. Payments by owner to contractor not prejudicial to subcontractors's lien materials furnished in repair of building, where no statement containing names of materialmen was furnished owner. Lien Act of 1903, $ 5, 22, 33. Hutchinson v. Francis Beldler & Co. 125 11. App. 328.

93. Under lien law (Laws 1897, p. 518, c. 418, $ 3), giving laborer lien, the claim is limited to sum not greater than amount unpaid at time of filling notice, and sum subsequently earned thereon ($ 4). Polestin v. Lax, 111 NYS 721. Filing of lien by employees of contractor before contractor abandoned work, and before contractor price exhausted, did not give workmen lien for sum in excess of balance due on contract after payment by owner of cost of completing contract, since in absence of agreement work not to be paid for before finished, and hence nothing earned by contractor at time of filing notice. Id. Nothing earned subsequnity on excess of difference between contractor price and cost of completion added to sum paid contractor. Id.

01. Lien takes precedence of incumbrance originating after contractor begins to furnish materials. Gen. St. 1902, $ 415. Soule v. Borelli, 80 Cnn. $ 92, 68 A $ 973. Mechanic's lien not postponed to lien of mortgage from fact that material and labor were furnished after mortgage was given, value of which exceeded amount due on completion of work; or that payments to contractor exceeded amount on books at or subsequent to date of mortgage may have been paid to contractor which when credited on books exceeded in amount aggregate charged therein; or that contractor knew money paid to him was proceeds of mortgage. Id. Under Code Civ. Proc. 1186, where no valid contractor priority of liens determined by time work completed. Lienor prior to subsequent mortgage. Burnett v. Glas \[CaI\]. 97 P 423. Under Code Civ. Proc. 1187, 1188, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 222, 223, 224, 225, 226, 227, 228, 230, 231, 232, 12 Cur. Law. **MECHANICS' LIENS SS 8.** 829-table estoppel may be applied to secure the sum due a materialman, when his lien, because of advances made under a deed of trust, is worthless.1 Upon the release of land from a prior mortgage, the lien attaches,2 unless the seisin is instantaneous.\* A mortgage is entitled to priority, though judgment has been rendered where the mechanic's claim is invalid.4 Colaborers and materialmen in equal degree have priority according to the time of filing their liens.\* Subcontractor's liens are superior to those of equitable assignees of a portion of the contract price due the contract.\* The priority of a materialman's lien is lost where he becomes an independent contractor.' A materialman having no lien has no equitable interest entitling him to priority within a statute as to priorities where a railroad is insolvent.\* An instrument, at most a trust deed, in the nature of a mortgage for the benefit of creditors is inferior to a subsequent mechanic's lien.\*

SS 7. \_Assignment and transfer of lien.10--See 10 C. L. 823--Laborres' liens are assignable,10a and a perfected mechanic's lien passes as an incident with the assignment of the demand for which it stands as security.11

SS 8. _Waiver, loss, or forfeiture of lien, or right to acquire it.12 See 10 C. L. 828--A_

covenant against liens procured by fraud will not be enforced.126 The question of waiver is to be inferred from the intention of the parties.13 The misappropriation of special security may abrogate a waiver,14 or the waiver may be canceled,18 but the material modification 'of written contract which would subject mortgage to mechanic's intent contractors and not entitled to preferlem. Pennsylvania StateI Co. v. Title Guarantee & Trust Co. \[N. Y.\] 85 NE 820.

1. Where deed of trust for building loan and loans made as work progresses, mate-rialman relying on such loans inasmuch as lien are practically worthless, being subordinate to trust deed, doctrine of equitable estoppel is applicable to charge sum due building owner by lender with constructive trust in favor of materialmen. France v. Coleman, 29 App. D. C. 286. Equitable estoppel applicable, though lender under no direct promise to pay contractors or see they were paid. Id. Lender entitled to credit for interest due on loan in determining amount due. Id.

1. Release of part of land. Davidson v. Stewart, 200 Mass. 393, 86 NE 779.

1. Where owner of land toeded to another and took second mortgage in return, but before mortgage took effect, mortgage contracted with holder of first mortgage exchanging rights in property, deed and second mortgage were not part of single transaction that would render seism instantaneous and prevent mechanic's lien from attaching-inz prior to mortgage. Brown v. Haddock, 189 Mass. 480, 85 NE 758.

1. Prudential Trust Co. v. Hidebrand, 34 Pa. Super. Ct. 240. Where lien of mortgage is prior in date to judgment entered upon secire facias sur mechanic's lien, but is sub-accept to date at which work upon bulling was commenced, mortgage may attack judgment. Id.

1. Lien Law, Laws 1897, p. 520, c. 418, 83 3, 13. Hall v. Thomas, 111 NYS 879.

1. Where county refused to pay orders assigned to third parties, which orders were subsequently adjagued vold, and county was indebted for contract price, subcontractor's license were entitled to priority. Haynes v. Coles County, 234 Ill. 137, 84 NE 747, affs. 134 Ill. App. 320.

1. Under Lien Law, Laws 1887, p. 515, c. 418, 8 2, defining materialmen, persons who contract with owner directly, though solely alteration of a contract is ineffective to accomplish this result.\[16\] A materialman supplying articles for several improvements may waive his lien by applying a credit of money as on a general account.\[17\] A subcontractor is bound by the provisions of an original agreement where the contract waives all liens.\[18\] The right of a lien has been held unaffected because the contract had associates;\[19\] and the right is not presumed to be abandoned from the acceptance of notes in payment.\[20\] A materialman's lien is unaffected by the fact that the contractor failed to protect himself from misappropriation of funds by his agent, the subcontractor.\[21\] A lien may be lost by willful, gross exaggeration in the notice;\[22\] by the unjustifiable abandonment of the work;\[23\] by the failure to complete the structure within the contract time;\[24\] by defective construction;\[25\] or where the amount claimed is less than the amount to be charged for defects;\[26\] and by counterclaim for an existing indebtedness\[27\] or proof of payment;\[28\] but it is ordinarily no defense that the owner has paid the contract price before notice of the lien;\[29\] that different material was used than called for by the specifications,\[30\] or that the building is defective when it has been ended by importstage held effective and not abrogated by misappropriation. Sprague v. Provident Savings & Trust Co. \[C. C. A.\] 163 F 449.

**15.** Where building contract providing for waiver of contractor's right to file lien, contract with tenant, relying on consent of after change in ownership of building, was canceled and oral contract was substituted whereby contractor agreed to finish building without waiving lien, such contract was enforceible though third person, not party to proceedings, had insured completion of value, Pagnacco v. Pagnacco v.

- 12 Cur. Law. MECHANICS' LIENS SS 10A.

accepted. \[31\] An owner cannot assert damages against a subcontractor to prevent a lion unless the same have been established in an action. \[82\] A materialman who is treasurer of the owner's building committee is not estopped from asserting a lion, \[33\] but the doctrine of estoppel may be applicable to prevent the defeat of a lion by a wife, who was the true owner of the land. \[44\] A city cannot set off against the claim of subcontractors, the amount of a loss suffered by reason of the abandonment of the work by the contractor, where it has compromised the liability upon the bond given by the contractor, \[35\] and a city cannot charge against the subcontractors an amount expended.in completing an improvement where it failed to comply with the law as to reletting the work. \[30\] The provisions of a building contract requiring proof that the building was free from liens would not affect the contractor's right to his lion, \[37\] and a lion is not terminated by the owner's death. \[38\] A surety upon a contractor's bond is ordinarily estopped from claiming a lion, \[38\] but where there is no privity of contract between the owner and materialmen, the fact that they are sureties on the contractor's bond to a guaranty company does not estop them to assert a lion for the materials furnished. \[40\]

SS 9. \_Discharge and satisfaction. \[41\]\_See 10 C. L. \[82\]_A_ lien may be discharged by the filing of an undertaking, \[41\] and such undertaking cannot be canceled though the time to bring action expires. \[42\]

SS 10. \_Remedies and procedure to enforce lion. A. Remedies. \[48\]\_See 10 C. L. \[82\]\_Usually the lion is considered as distinct from the debt created by furnishing the materials, \[42\] though in some states the enforcement of the lion is provided for the pay-

- 31 Contractor not liable for quality of | lien for labor furnished for 90 days after brick inspected by owner's president. Beck work is completed, owner's death does not Coal & Lumber Co. v. Peterson Mfg. Co., \[47\] L. \[48\] L. \[49\] L. \[50\] L. \[51\] L. \[52\] L. \[53\] L. \[54\] L. \[55\] L. \[56\] L. \[57\] L. \[58\] L. \[59\] L. \[60\] L. \[61\] L. \[62\] L. \[63\] L. \[64\] L. \[65\] L. \[66\] L. \[67\] L. \[68\] L. \[69\] L. \[70\] L. \[71\] L. \[72\] L. \[73\] L. \[74\] L. \[75\] L. \[76\] L. \[77\] L. \[78\] L. \[79\] L. \[80\] L. \[81\] L. \[82\] L. \[83\] L. \[84\] L. \[85\] L. \[86\] L. \[87\] L. \[88\] L. \[89\] L. \[90\] L. \[91\] L. \[92\] L. \[93\] L. \[94\] L. \[95\] L. \[96\] L. \[97\] L. \[98\] L. \[99\] L. \[90\] L. \[91\] L. \[92\] L. \[94\] L. \[95\] L. \[96\] L. \[97\] L. \[98\] L. \[99\] L. \[99\] L. \[90\] L. \[90\] L. \[91\] L. \[92\] L. \[93\] L. \[94\] L. \[95\] L. \[96\] L. \[97\] L. \[98\] L.

ment of the judgment obtained on the debt.44 The remedy under the statutes is merely cumulative45 and does not deprive the claimant of his personal remedy against the debtor,46 which is maintainable where the lien has lapsed.47 The owner's quasi contractual obligation to the subcontractor is enforceible in assumpist.48 Additional special remedies, such as the giving of a bond, are merely cumulative.49 The general procedure of foreclosure is usually applicable.50 Such procedure is not violative of a constitutional right to a jury trial51 and does not render the action one to recover on contract,52 though it is also held that the gist of the action is breach of contract.53

_Jurisdiction and venue.55_ 10 C. L. 824--A mechanic's lien is of equitable cognizance,54 but to enable a court of equity to enforce a mechanic's lien, the lien must have legal validity.56 The proceeding to enforce being considered essentially in rem, the subject-matter is local.56 Municipal courts are given limited jurisdiction to foreclose,57 and the provisions of a municipal court act as to service of process are applicable rather than the code rules.58

_The time of bringing action_ See 10 C. L. 824 is a matter of statutory regulation.59

44. Rutherford v. Ray, 147 N. C. 253, 61 SE 53, Burke v. Dittus \[Cal. App.\] 96 P 330, 57. Materialman cannot maintain separate action against landowner until he secures judgment against contractor, suit against contractor in personam and against owner in rem. Buck v. Tifton Mfg. Co. \[Ga. App.\] 82 SE 107. 45. Remedy merely cumulative and not affected by submission to arbitractors except as to amount to be collected where arbitration is legal. Sorg v. Crandall, 233 Ill. 79, 84 NE 181. 46. Under Mechanic's Lien Act of 1903, 57 28, prescribing remedies, lien may be enforced by action against land or action at law against contractor and owner. Harry Bros. & Harty Co. v. Pelakow, 141 Ill. App. 570. Rev. Laws, 1902, c. 197, 83, provide for maintenance of action of contract and that plaintiff may have benefit of enforcement of lien, and therefore plaintiff may pursue both remedies until he secures one satisfaction, provided that proceedings do not conflict. Morrison Co. v. Williams, 200 Mass. 406, 88 NE 888. 47. Where lien lapses due to failure to enforce in statutory period, claimant may sue owner personally under Rev. 1905, 8 2021, providing for retention of money sue contractor to be paid materialman when item-ified statement furnished, etc. Hilden v. Vanderbilt, 147 N. C. 639, 61 SE 620. 48. Under Lien Law (Laws 1903, p. 241), 5 28 (Hurd's Rev. St. 1908, 5, 82, 42). Harty Bros. & Harty Co. v. Polakow, 237 Ill. 659, 86 NE 1085, rrg. 141 Ill. App. 570. 48. Bond Act 1897 (Laws 1987, p. 201, c. 140) does not exclude constitutional mechanic's lien but provides cumulative remedy for securing payment of lien. Goidree v. San Diego \[Cal. App.\] 97 P 216. 50. Under Code Cliv. Proc. 1 1198, general procedure for enforcement of lien by foreign closure is applicable. Los Angeles Presed Brick Co. v. Higgins \[Cal. App.\] 97 P 414. A foreclosure of mechanics lien similar to suit for foreclosure of mortgage procedure conformable thereto. Valett v. Baker, 114 NYS 214. 51. Mills v. Britt \[Fla.\] 47 S 799. 52. Though labor and material furnished in accordance with contract. Mills v. Britt \[Fla.\] 47 S 799. 53. Burke v. Dittus \[Cal. App.\] 96 P 330. 54. Goldtree v. San Diego \[Cal. App.\] 97 P 216. Power to adjudicate labornes' lienns may be conferred upon courts of equity. Tampa & J. R. Co. v. Harrison \[Fla.\] 46 S 592. While suit to foreclose has been termed suit in equity, and may be statutory proceeding of equitable nature, equity it-self gives no mechanics lien. Los Angeles Pressed Brick Co. v. Higgins \[Cal. App.\] 97 P 414. 55. Logan Planning Mill Co. v. Alderdeg, 63 V. Va. 660, 60 SE 783. 56. Comp. Laws, 8 434. Prather Engineer-fmg Co. v. Detroit, F. & S. R. Co. 152 Mich. 582, 15 Det. Leg., N. 280, 116 NW 576. Under Comp. Laws, 8 10714, 10719, proper to bring suit in county where preliminary statement filed. Id. In action to foreclose mortgage where lien claimant made defendant, subsequent suit by lien claimant in another county, in which receiver appointed by first court was not party defendant because of court's refusal to grant leave should be dismissed, first court having jurisdiction and not assumption that lien claimant would be deprived of remedy. Id. 57. Schumer v. Kohn, 111 NYS 728. Un 12 Cur. Law. MECHANICS' LIENS SS 10B. 833 (SS 10) _B. Parties._\[60\] See 10 C. L. 825 --After the dissolution of a partnership the individuals may sue to enforce the lien.\[60\] The necessary parties are largely determined by the nature of the action, as where a joinder is allowed,\[61\] but usually the necessary parties include the contractor,\[62\] and a trustee in prior deed of trust as well as trust creditor.\[63\] Other claimants are necessary;\[64\] although some states hold that where a third person does not become a claimant and intervene, his rights are unenforcible.\[65\] In a suit against the owner of property to establish a lien for work done at the instance of the lessees, such lessees are not necessary parties;\[66\] and in a suit against the trustees of a church, the corporate church was held unnecessary.\[67\] Where the original contractors are partners, only one of them is a necessary party defendant.\[68\] Where the owner is dead, the heirs are the proper parties,\[69\] and where the land is needed to pay debts, the administrator is properly cited to defend,\[70\] but the rights of the owner's widow are unaffected.\[71\] The substitution of representatives when a party dies pending action is provided for by statute.\[72\] within 6 months. Rev. 1905, SS 2027, 2033. Angeles Pressed Brick Co. v. Higgins \[Cal. Hildebrand v. Vanderbilt, 147 N. C. 639, 61 Sep.\] 97 P 414.

SE 620. Under law of 1895, SS 9 (Laws 1895, G.) Lunstord v. Wren \[TW. Va.\] 63 SE 308. p. 230, being Hurd's Rev. St. 1895, e. 82, bar.

64. In action against owner to recover on 23, suit must be commenced within two years after completion of contract. Kelley pursuant to Rev. 1905, SS 2021, other claimants were necessary parties and finding as toceeding to enforce brought on June 5 in amount due contractor not binding until proper time as within 4 months of expiration rights and pro rata recovery of others deforms of credit, when material delivered terminated. Hildebrand v. Vanderbilt, 147 N. Jan. 8 on 30 days time, which expired Feb. C. 639, 61 SE 620.

01. Beck Coal & Lunmer Co. v. Peterson

01. Where contractor varied lien and Mfg. Co., 237 Ill 250, 86 NE 715. Action to foreclose after 8 calendar months from filing claim too late. Rees v. Wilson \[Vash.\] 97 withdrawn, such lien was enforceible. Pag. P 245. Where action to foreclose brought against partners and after 8 months corpora-

01. Work on mining claim. Cascaden v. tion made party defendant, lienor cannot

01. Umblish \[C. C. A.\] 161 F 241. Discretionary have structure deemed partnership property, it appearing that corporation was legal,

with court to refuse to permit filing of 19 possession of property at time of improvement, and described in contract as corpora-

and, therefore, entire lien unenforcible. Id.

67. In sult by contractor against trustees ble. Id. Lien expires at end of five years

of church, church corporation is not necessary from filing unless revived by scire facas as

sary party through building contract signed provided in case of judgments. Act June 16, 1836, P. L. 695, SS 34. Kountv, Consolidated lice Co., 36 Pa. Super. Ct. 659. Under l.

(SS 10) \_C. Pleading, practice and evidence. Pleading. 17s See 10 C. L. 82s_Generally the bill should allege all the facts necessary to show the existence of a valid lien7a showing substantial compliance with the statute. 74 It follows that essential matters, such as filing,7s the furnishment of labor and materials,76 nonpayment,77 the performance of the contract,78 or that the owner consented to the improvements,79 or that an abandonment was justifiable,80 should be alleged; but allegations which are properly matters of defense, such as the time of bringing the action,81 or certain terms of the building contract as to payments,82 are unnecessary. Conclusions should not be pleaded.83 Errors in stating the terms of a contract may be treated as surplusage where a copy of the contract is exhibited with the bill.84 Where an entire contract is set forth, the plaintiff's right of recovery depends upon full performance.85 The granting of bills of particulars is discretionary,86 and a complaint that a mechanic's lien is bad because a bill of particulars is not attached should be made by motion to strike.87 In case of contract with an owner, no bill of particulars need be attached to the mechanic's lien.88 The action being in equity, amendments

substituted. Sorg v. Crandall, 233 Ill. 79, 84 NE 181.

73. Search Note: See note in 9 Ann. Cas. 228.

109 SW 71. Averment of sale on "Credit of building" unnecessary. Id.

85 432-468, 484-594; Dec. Dig. SS 247-260, 269-290; 27 CY. 317-319, 323-465, 367-428; 13 A. & E. Eme. P. & E. P. 1023, 1024.

73a. Lunsford v. Wren \[W. Va.\] 65 SE 308. Should allege contract and terms; that work done pursuant to contract; filing of account within proper time, with proper officer, together with description of property; name of owner where work performed or finished, that suit brought within proper time; existence of debt at time of suit; and when suit by subcontractor, that articles furnished to contractor to be used in construction of house in pursuance with contract with such contractor. Id.

74. Davis v. Tracey \[Cal. App.\] 97 P 78;

Confey v. Smith \[Or.\] 97 P 1079.

75. Complaint averring filing of claim for lien 60 days "after completion of building" insufficient to show filing 60 days after "completion of contract," under B. & C. Comp. $ 5644. Coffey v. Smith \[Or.\] 97 P 1079.

01. Where bill fails to allege filing of account within 60 days, defect is not supplied by certified copy from record of mechanic's lien exhibited therewith. Bill fatally defective on demurrer. Lunsford v. Wren \[W. Va.\] 65 SE 308. Code Civ. Proc. $ 1187, requiring filing of claim with county recorder and what claim shall contain, is not completed with where compliant shows filing but nothing whatever of what claim contained save description. Davis v. Tracey \[Cal. App.\] 97 P 78.

01. No cause of action where no allegation that work and material necessary to first payment had been done and furnished. Paturzo v. Shuldiner, 125 App. Div. 636, 110 NYB 137.

01. Gist of action breach of contract, and in absence of allegation of nonpayment complaint demurrable. Burke v. Dittus \[Cal. App.\] 96 P 330. Emtire failure to aver nonpayment renders complaint insufflect to state cause of action. Id. Special demurrer necessary to attack defective averment of nonpayment. Id.

01. Contractor cannot establish right to lien ln absence of proof of substantial performance of contract. Harris v. Graham are discretionary "\* and may be permitted after the expiration of the time of bringing action." A contractor's right of recovery for additional payments is not barred where no plea of abatement is entered." A petition may be attacked for uncertainty " or because of defect as to parties." In an action to foreclose a lien against an owner and a trustee in a deed of trust, either defendant might resist the lien and the demurrer of one inures to benefit of both." In Pennsylvania the issues are defined through affidavit and counter-affidavit," and may arise in proceedings for the discharge of a lien by entering security." Upon the failure to file the contract required by the California lien law, the contractor must allege and prove the reasonable value of his work," but the fact of recording may be admitted by the pleadings."

Evidence and burden of proof.See 10 C. L. SS26. The burden of proving defenses, such as payment " or a special contract," failure to file in time," rests on the defendant, but the plaintiff must establish the contract pleaded when disputed," or that

ing bill of particulars, not applicable where contract made before passage of act. Id.

- 80. Uvalde Asphalt Paving Co. v. New York, 191 N. Y. 244, 84 NNE 83. Amendment
- 83. Objection that receiver is party with- to conform to proof showing that contractors agreed to assign contract to plaintiff if latter would make advances in addition to R. Co., 152 Mich. 582, 15 Del. Neg. N. 280, 116 supplying materials proper. Id. Amendment could not cure infirmity of lien notice in so far as claim for menyes loaned was sought. Id. Amendment of prayer for personal judgment proper, where facts alleged supported action ex contract, since such amendment incidental to action and authorized by statute. Code Civ. Proc. $ 3412. Zide v. Schelberg, 114 NYS 41. Amendment within power of justice under Municipal Court Act (Laws 1902, p. 1542, c. 580), $ 166. Id. Where petition alleged that contractor erected by building under contract, that material sold by plaintiffs and used in building, it was not error to permit amendment so as to charge that materials were furnished "for" defendant, after evidence was in of even after judgment. Meyer, V. Schmidt, 131 Mo. App. 63, 108 SV 83. Amendment proper where petition not attacked and evidence introduced. Id., 130 Mo. App. 338, 109 SV 832.
- 84. Objection that bill is not verified may be met by amendment after expiration of year. Prather Engineering Co. v. Detroit, F. & B. R. Co., 152 Mich. 582, 15 Del. Neg. N. 280, 116 NNV 376. Under Comp. Laws, # 10718, 10718, providing for enforcement of lien within one year and requiring all persons having rights in property to be made parties, if bill is filed in season, amendment bringing in proper party may be made after year has expired. Id.
- 91. Recovery of judgment by contractor for amount due before last payment due under contract does not estop him in proceedings to perfect lien from claiming whole account was not due at date of bringing first suit, there being no plea of abatement and consequently no estoppel. Sorg v. Crandall, 283 Ill. 78, 84 NNE 181.
- 92. Compliant stating nature of cause of action, number of cubic yards of dirt removed in reclamation of arid lands for which plaintiff claims compensation, classification to which same belongs, and specific contract which is basis of work, not demurrable for uncertainty. Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho, 5, 93 P 789. Bill alleging furnishing of labor and material used in house upon designated land the completion of a building was not unnecessarily delayed.4 The evidence introduced must conform to the pleadings 6 and be competent to establish the issues made.6 The statements in a lien are not evidence.7 Where both lineable and non-linable articles are included in a claim, the plaintiff may by proof separate them and the court will declare a lien on the former.8

12 Cur. Law. MECHANICS' LIENS SS 10D. 837

(SS 10) \_D. Judgment, costs, and attorneys' fees.\[18\] See 10 C. L. 837--A judgment against a fund in the possession of a municipality may be rendered,\[18\] and an award of a lien to a subcontractor and a denial to the contractor is not inconsistent.\[19\] The decree may properly direct a sale of the property in fee and the application of the proceeds according to priority of the various liens,\[20\] and while it is irregular to direct the owner to pay the sum into court,\[21\] such sum, if received, is properly applied first to the payment of valid liens'and costs and second to the payment of a personal judgment.\[22\] A judgment foreclosing a lien on a tract of land is erroneous when differing from the tract described in the lien notice and that in the petition.\[23\] After the application of the proceeds upon foreclosure to discharge the lien, a judgment may be rendered for the deficiency due.\[24\] In many states the rendition of personal judgments is permitted,\[28\] and while priority with the owner giving a personal liability is usually essential,\[26\] a personal judgment may also be rendered under the general equitable power to carry a suit to complete adjudication,\[27\] or where an action of contract is joined.\[28\] The right to a personal judgment may be lost by disclaimer during the trial,\[29\] and a personal judgment is improperly rendered for a breach of contract not in issue.\[30\] An allowance of an execution to collect the money decree is proper.\[31\] A judgment is not binding as to necessary parties not joined," and a purchaser on an execution sale is junior to a mortgage when the parties to the latter incumbrance were not parties to the action, unless the title related back to the filing of such liens prior to the mortgage.\[32\] Claims secured by mechanic's liens are entitled to draw interest as other debts.\[34\] The procedure on appeal from a justice court is governed by statute.\[35\]\_Costs and attorneys' fees,\_See 10 C. L. 827--Under the various statutes, if constitutional,\[36\] reasonable costs and attorney's fees are usually allowable.\[37\]\_Iss_11. \_Indemification against liens,_See 10 C. L. 828--Indemnity bond are frequently required by public corporations \[38\] and are often construed to be for the benefit of the materialmen,\[39\] and such bonds are not affected by the fact that the parties._

\_30. Paturzo v. Shuldiner, 123 App. Div. 636, & P 414; Farnham v. California Safe Deposit & Trust Ce. \[Cal. App.\] 96 P 788; Hill v. 31. Scott v. Keeth, 152 Mich. 547, 15 Det. \[Calr.\] 74. Cal. App. 699, 95 P 382; Los Angeles Leg. N. 206, 116 NWV 183. \[32\]. Judgment on foreclosure of mechanic's lien on mortgaged premises, where one 460, 94 P 775. \[37\]. Where expenses of foreclosure were binding as to such parties though reciting & trust to instance of contractor, court & lien prior to mortgage. Curie v. Wright \[Iowa\] 119 NWV 74. \[38\]. Curie v. Wright \[Iowa\] 119 NWV 74. \[39\]. Where person foreclosed separate liens on two parcels of land in one action and took & judgment in lump sum, it was necessary to & sell each parcel under special execution for separate lien in order to preserve liens so & they would relate back to time of filing. Id. & Where licenor elected to treat judgment as general for entire sum and bought both & parcels at sale, judgment became lien on both parcels together when rendered and did not relate back to filing. Id. & 34. The right to interest, computation and like matters are treated in an appropriate topic (see Interest, 12 C. L. 317). & 35. Where justice's judgment in action of foreclosure appealed from, cases is tritable de novo in circuit court. Rev. 1893, 6 4071. \[Ann. St. 1906, p. 2214\]. Fablen v. Grabue \[Mo. App.\] 114 SWV 80. Judgment appenable though for a sum less than $50. Strebin v. Myers \[Ind. App.\] 85 NE 784. Act Mch. 9, 1903 (Acts 1903, p. 280, c. 156), has reference to civil actions within jurisdiction of justice of the peace except as provided in & 8 (Acts 1901, p. 566, c. 247), and does not include action to enforce mechanic's lien, and, therefore, such act does not control right of appeal. Id. A decree by a single justice pursuant to an advisory verdict that plaintiffs are entitled to a lien will be aftermod on appeal unless shown to be clearly erroneous. York v. Mathies, 103 Me. 67, 68 A 746. \[38\]. Civ. Code Alaska, & 270, authorizing reasonable attorneys' fee on foreclosure of lien. Is constitutional. Casaden v. Wimblsh \[C. C. A.\] 161 F 241. \[Lien Laws 1899, p. 150, $ 12, constitutional.\] Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho, 5, 93 P 78. Mechanic's Lien Law, & 17 (Hurd's Rev. St. 1905, c. 82, $ 31), authorizing recovery of attorneys' fees by lionholder, is unconstitutional as special legislation violating Const. art. 4, & 22. Does not apply to other lienholders. Manovsky v. Stephan, 233 Ill. 409, 84 NE 856. Attorneys' fee improper, statute being unconstitutional. Burnett v. Glas \[Cal.\] 97 P 423; Los Angeles Pressed Brick Co. v. Higgins \[Cal. App.\] 97 P 414; Farnham v. California Safe Deposit & Trust Ce. \[Cal. App.\] 96 P 788; Hill v. Clark, 7 Carl. App. 699, 95 P 382; Los Angeles Peg. N. 206, 116 NWV 183. \[32\]. Judgment on foreclosure of mechanic's lien on mortgaged premises, where one & 460, 94 P 775. \[33\]. Where expenses of foreclosure were due mainly to resistance of contractor, court of equity had right to impose costs upon livon 12 Cur. Law. MEDICINE AND SURGERY. 839 ties were induced to enter into the agreement through mistake of law.40 A provision of a contract with a state authorizing the retention of money to indemnify against liens has been held not to authorize the state to pay such sum to materialmen unless responsible by contract.41 An indemnity bond to a private person may also be for the benefit of a materialman,42 but no benefit accrues to a laborer where the bond is purely to indemnify against breach of contract.43 A surety is not released by the failure of the owner to withhold payments due.44 In an action on the bond the allegations should be specific and certain 45 alleging the breach of the bond;46 evidence of the amount of claims for materials is proper;47 and attorneys fees and costs which were the result of the breach of covenant in failing to release the building free from liens are recoverable.48 Want of consideration for the indemnity bond must be specially pleaded to be available as a defense.49 The question of assignment of contract without the surety's knowledge so as to release the latter is for the jury when the evidence is conflicting.50

## 11 MEDICINE AND SURGERY.

- 1. Public Regulation of the Business of $ 4. Negligent Homelide by Physician, S46.
- Treating Disease, S46.
- Regulation of the Keeping and Sale of $ 2. Malpractice, S43.
- Drugs and Medicines, S46.
- 3. Recovery of Compensation, S44.
- 4. Tort Liability of Druggista, S47.

tion that bond be surety in case of default must be determined from agreement. Concontract, it was error on foreclosure of nor Co. v. Aetna Indemnity Co., 136 Wis., 13. 115 NW 811. Bond construed as for protection on settlement with contractor's surety, in of materialmen when express agreement determining amount of distribution to Ilen Normanizing with intent of parties. Connot Claimments. Id. * C. v. Aetna Indemnity Co., 136 Wis. 13. 115 NW 811; United States Gysymun Co. v. not released by the act of the owner in falli-Gieson, 135 Wis. 538, 1315 NW 328. Bond unambiguous as to liability of werties and the work performed and materials furnished parol evidence indemnities. United States Gysymun Co. v. Gleason, 135 Wis. 539, 116 NW 238. Materialman may enforce when indemnity co., 136 Wis. 13, 115 NW 811. United States Gysymun Co. v. Gleason, 135 Wis. 539, 116 NW 238. Bond construed for benefit of materialmen. National Surety Co. v. Foster Lumber Co. (Ind. App.) 85 NE 489. In suit on contractor's bond under allegations having breach of covenant, Comp. Laws 1897, \*\* 18743, 10745, evidence hechd to show relators as materialmen, not chife allegation of failure to reimbursement for damages and outlay on account of mechanism benefits of bond. People v. Title Guaranty & Trust Co. (Mich.) 15 Det. Leg. N. 904, 118 NW 586. * 40. Connor Co. v. Aetna Indemnity Co., 47. Evidence admissible though claimant, 136 Wis. 13, 115 NW 811. * 41. Rathun V. State (Mich.) 97 P 355. * State cannot without on theory that it (Mich.) 97 P 355. * work were for private individual same would be lienable. Id. State justified in $ 231.15 NW 841. * withholding sum for which I might become legally liable, where materialman could obb- 45. Klocke v. Raphael (Cal.) 96 P tail recommendation judgment. Id. * 42. Bond for dwelling house construed to foreclose liens instituted, which by Code Demurrer overruled. Gwinn v. Wright \[Ind.\] 119. * 43. Proche l. 1193, must be defended by con-Appl. 88 NE 458. Bond construed as indemnity for church, not for benefit of materialmen, and lstrict's recovery, or church's recovery for benefit of latter, not maintain-able. Enreka Stone Co. v. First Christian 96 P 392. * 44. Pin BlueH Lodge of Elka No. 149 v. * 453. * 46. * 47. * 48. * 49. * 48. * 49. * 50. * 51. * 52. * 53. * 54. * 55. * 56. * 57. * 58. * 59. * 51. * 53. * 54. * 57. * 58. * 59. * 50. * 51. * 54. * 59. * 51. * 52. * 53. * 54. * 55. * 56. * 57. * 58. * 59. * 59. * 51. * 50. * 51. * 52. * 53. * 54. * 55. * 56. * 57.

## 1 Public regulation of the business of treating disease

See 10 C. L. 898.--The state may, in the exercise of its police power, require a license for the practice of medicine 51a or dentistry,52 subject, of course, to such rules as the requirement of singleness of titles of statutes.53 Municipalities may impose police regulations not inconsistent with the statutes.54 Specific qualification by graduation or previous practice is usually required as a condition to the right to be examined for admission to practice.55 Statutes initiating a license system usually exempt those practicing at the time of their passage but such exception is held to apply only to residents 56 who have practiced continuously 57 and legally 58 for the required time next preceding the passage of the act.59 Physicians registering before a certain date are often permitted to practice without examination.50

Natural persons alone are permitted to practice medicine, except in the case of hospitals, dispensaries and infirmaries, created under special statute, which are permitted to practice through their licensed physicians.41 Statutory provisions for registration are mandatory,52 but regulatory statutes are not and should not be construed so strictly as to defeat the obvious intentions of the legislature.63 Thougha graduation from certain institutions may by statute give a right to license without examination,64 a graduate from such an institution cannot practice without license though a license is unwarrantably denied him by the licensing board.65 Though under the Texas statute evidence of authority to practice must be filed with a public official at the place of the physician's residence,68 such filing gives authority to practice in every county in the state.67 The state may prescribe what constitutes the practice of medicine.68 To be a physician 69 and practice medicine, it is not ordinar.

Search Note: See notes in 4 C. L. 636: 59. Practice in years past but not at passage held to give no rights under statute. 511: 3 14. 162: 4 Id. 1023: 8 Id. 585: 11 Id. 557: 13 Id. 1094: 23 A. S. R. 25; 98 Id. 742, 752: 1 Am. Cas. 18, 51; 2 Id. 150, 904: 51 Id. 1005: 1 Id. 151, 577, 751: 9 Id. 127, 203: 10 Id. 399: 25 See, also, Physicians and Surgeons, Cent. Dig. 81 -15: Dec. Dig. 81 -11: 10; 4 A. E. Enc. L. (2ed.) 26: 22 Id. 778, 780, 16 A. & E. Enc. P. & P. 524, 535.

Slim. Commonwealth v. Jewelle, 199 Mass. 558, 85 NE 858, following Commonwealth v. Parn. 194 Mass. 326, 82 NE 31.

52. State v. Thompson, 48 Wash. 683, 94 P 667.

01. An act to Insure the better education of practitioners of dental surgery, to regulate the practice of dentistry, providing penalties for violation thereof, and to repeal a former dentistry act, not bad. Cal. St. 1901, p. 564, c. 175. Ex parte Hornef \[Cal.\] 87 P 891.

01. Ordinance prohibiting employment of solicitors sustained. Burrow v. Hot Springs, 85 Ark. 396, 108 SWP 82.

01. Webster v. State Board of Health \[Ky.\] 113 SWP 415.

01. State v. Miller \[Iowa\] 115 NWP 492.

01. Application does not state continued practice; certificate dendel. Webster v. State Board of Health \[Ky.\] 113 SWP 415.

01. Tilesgal practice at time of passage held to give no rights. Ex parte Hornef \[Cal.\] 87 P 891; State v. Miller \[Iowa\] 115 NWP 493. Under Iowa Code 8 2579, allowing practice of medicine to hograduates who have practiced continuously for years in this state, does not entitle physician or surgeon to certificate if 3 of the 5 years have been wrongful practice. State v. Taylor \[Iowa\] 118 NWP 801.

- 12 Cur. Law. MEDICINE AND SURGERY SS 1.
- 13ly necessary to prescribe and administer medicinal substances, \[10\] and osteopaths \[11\] are within the statutes \[12\] though under the Georgia statute the contrary is held. \[13\] Actual treatment or prescription for the sick, without previous opening of an office or announcement of practice, provided it be for pay, is practicing medicine, \[14\] but receipt of a fee or gift is not the criterion by which to decide whether or not a certain treatment constitutes the practice of medicine. \[15\] The use of designations indicative of the medical profession by unlicensed persons is prohibited by most statutes \[16\] and using qualifying or limiting words is no defense. \[17\] Dentistry is included in the term "practice of medicine and surgery," \[18\] but now usually governed by separate statutes \[19\] requiring license distinct from the practice of medicine. \[20\] Veterarians are also governed by special statutes. \[21\]
- 14_Revocation of license or professional status. \[22\]\_15 C. L. \[23\]_00_--Unprofessional conduct \[24\] or "gross immorality" justifies the medical board in revoking the license. \[25\] Procuring or aiding or abetting in criminal abortion is such unprofessional and grossly immoral conduct, \[26\] and destruction of gestation is sufficient to constitute the offense. \[27\] An assistant in such cases is equally guilty with the principal. \[28\] Authority to practice medicine is a property right which cannot be taken away without due process of law. \[29\] Hearing before board of medical examiners, after sufficient notice \[24\] and service of a complaint informing of the nature and instance of the offense \[25\] is due process of law. \[26\] Conviction by a competent court on the charge
- 15_Inose the aliments of such; or to suggest, less" added on signs, etc. State v. Polliman recommend, practice or direct for the use of any specified person any drug, medicine, appliance or other agency for the cure of mind or body, after having received, or article who shall perform operations or compensation. New Mexico Laws 1908, p. 61, e. 40. Territory v. Lotspetch \[N. M.\] 94 P 1025. \[27\] 69. The word physician shall include every person who practices about the cure of the sick or injured, or who has the charge of, or professionally prescribes for, any person \[19\], or diseased. Sanitary Code City of New York Section S. Bandel v. Department of Health \[N. Y.\] 85 NE 1067. \[28\] 70. The science of medicine which relates to the prevention, cure or alleviation of disease, is not limited to that which relates to the administration of medicinal substances. Commonwealth v. Jewelle, 198 Mass. 558, 85 NSE 858. \[29\] 71. Osteopaths may be registered as physicians and as such issue certificates of death. Bandel v. Department of Health \[N. Y.\] 85 NE 1067. \[30\] 72. One who treats his patients personally by hypnotism and massage, without prescribing remedies, is within the statute for practicing medicine without license. State v. Lawson \[Del.\] 69 A 1068. \[31\] 73. The practice of medicine confined to prescription and use of drugs, medicines, appliances, apparatus or other agency. Bent-net v. Ware \[Ga.\] 61 SE 546. \[32\] 74.ergic healing" not practicing medicine. Id. \[33\] 74. Territory v. Lotspetch \[N. M.\] 94 P 1025. \[34\] 75. Bennet v. Ware \[Ga.\] 61 SE 546. No defense that no charge was made. State v. Thompson, 48 V88. 683, 94 P 67. \[35\] 76. Use of "Dr.", "M. D.", "Physician and Surgeon," in connection with one's name or on office signs, is unlawful. State v. Pollman \[VWash.\] 98 P 88. \[36\] 77. "Osteopathic and magnetic" and "drug. \[37\] 88. \[38\] 89. \[39\] 89. \[40\] 89. \[41\] 89. \[42\] 89. \[43\] 90. \[44\] 89. \[45\] 91. \[46\] 92. \[47\] 93. \[48\] 94. \[49\] 95. \[40\] 96. \[41\] 97. \[42\] 98. \[43\] 99. \[44\] 99. \[45\] 99. \[46\] 90. \[47\] 91. \[48\] 92. \[49\] 93. \[49\] 94. \[40\] 95. \[41\] 96. \[42\] 97. \[43\] 98. \[44\] 99. \[45\] 99. \[46\] 99. \[47\] 99. \[48\] 99. \[49\] 90. \[49\] 91. \[49\] 92. \[49\] 93. \[49\] 94. \[40\] 95. \[41\] 96. \[43\] 97. \[44\] 98. \[45\] 99. \[46\] 99. \[47\] 99. \[ preferred by the board is not a requirement for revocation of a license,91 nor is a trial and acquittal by such court a bar to proceedings for revoking the license.92 Technical procedure 93 and rules of evidence obtaining in courts need not be followed in proceedings before the board 94 nor is a trial by jury required.95 The proceedings of the board are subject to review by the courts,96 but the judgment of the board should be affirmed in the court, if not beyond its jurisdiction,97 and unless clearly unsupported by evidence.98 Alleged interest in the prosecution or misconduct of the secretaries of the board is no ground for reversal, the complainant having power to establish his right by application to the board.99 Judgments reviewing the proceedings of medical boards are subject to the general rules.1

\_Expulsion from society.\_See $e$ C. L. 975

\_Prosecution for violation of regulative acts._See $e$ C. L. 880_.\_Status imposing a penalty must so clearly define the acts to be done that no ordinary person can fail to understand his duty,2 and to make a failure to comply with the exact terms of the statute criminal when an attempt to comply has been made, evil intent or legal malice must be shown.3 Failure to procure license is the gist of the offense and this should be charged in indictment.4 A complaint describing the acts of the accused without stating the gist of the offense is insufficient.5 An exception or proviso in a statute which neither prescribes nor defines the offense need not be negatived in a complaint for a violation of the act.6 Failure to state in the information any one of the essential elements necessary to constitute an offense renders it defective.7 The indictment or information is usually sufficient if couched in the language of the statutes,8 and where there are several distinct provisions in the statute constituting the offense, only one need be alleged.9 Where one of the elements of the offense is the acceptance of compensation, evidence may be admitted of direct or indirect payment.10 The proof of the offense may be established by facts and circumstances which imply his guilt beyond a reasonable doubt.11 The court may instruct the jury that persons who stand by, aid or assist, advise or encourage, the perpetration of a crime are equally guilty with the perpetrator of the act, as an aid in determining the credibility of the witnesses.12

amendment to United States Constitution.

Mathews v. Hedlund \[Neb.\] 119 Nv 17.

91. Mathews v. Hedlund \[Neb.\] 118 Nv 17.

01. Had been acquitted in court. Munk v.

01. Mumk v. Frink \[Neb.\] 118 Nv 525.

01. Admission of afflawt of patient as evidence not error. Mathews v. Hedlund \[Neb.\] 119 Nv 17.

01. Not inconsistent with constitutional right of trial by jury. Munk v. Frink \[Neb.\] 116 Nv 625.

01. Where revocation of license for cause first found and ascertained by board for that purpose, right of review preserved. Munk v.

Frink \[Neb.\] 118 Nv 525. Nebraska Code provides for review by courts. Nebraska Code of Civil Procedure, 650. Mathews v.

Hedlund \[Neb.\] 119 Nv 17.

97. Mathews v. Hedlund \[Neb.\] 119 Nv 17.

01. Munk v. Frink \[Neb.\] 118 Nv 525.

01. Refusal by secretary to issue subpoena. Mathews v. Hedlund \[Neb.\] 119 Nv 17.

01. Arguments in action revoking physician's license made on election day not fatal. Stewart v. State Board of Medical Examiners, 48 Vash. 655, 94 P 472.

01. Failure to register before Oct 1st, 1907, under Wis. Laws, chap. 469, p 654, was no offense where there was nothing to show where might register before that date. Brown v. State \[VWs.\] 119 Nv 388.

01. Reporting birth on old blank and to old register. Brown v. State \[VWs.\] 119 Nv 338.

01. Mathews v. Hedlund \[Neb.\] 119 Nv 17.

01. State v. Carlile \[S. D.\] 118 Nv 1038.

01. Had been acquitted in court. Munk v.

01. "Unlawtually treating the sick by practicing the system or mode known as "Chiproreate" without having a certificate" held insufficient under Cal. St. 1907, p 252, c.

01. Ex parte Greenland, 153 Cal. 767, 96 P 804.

01. Excepting from dentistry statute those entitled to practice at its enactment. Cal. St. 1903, p. 326, c. 244. Ex parte Horner \[Cal.\] 97 P 891.

01. Under statute requiring certificate to be filled in the county of residence, information failed to show county of residence and that it had not been filed in the county of residence. Person v. State, 65 Tex. Cr. App. 334, 109 Sv 935.

109 Sv 935.

8. Under Arkansas statute against employing solicitors, coffers, or drummers, it was held not necessary to state name of party alleged to have been hired. Burrow v. Hot Springs, 85 Ark. 396, 108 Sv 823.

1. Territory v. Lotsfelch \[N. M.\] 94 P 1025.

1. Payment made by third party for sev- lices rendered to patient 12 Cur. Law. MEDICINE AND SURGERY $ 2. 843

SS 2. _Malpractice._\[13\]--See 10 C. L. 831--A physician in accepting a patient does not contract to cure\[18\] but by implication represents that he possesses and will exercise reasonable skill and diligence.\[14\] Treatment is not malpractice merely because it resulted injuriously to the patient;\[15\] it must be shown to be improper.\[16\] The test of proper treatment is that of ordinary skill, such as physicians and surgeons in the same general neighborhood, in the same general line of practice, ordinarily have and exercise in like cases.\[17\] Medical treatment includes reasonable care after operation,\[18\] and proper manner of discharge from hospital.\[19\] It is negligence on the part of the principal to fail to select skilled and competent agents and assistants,\[20\] and he is responsible for their negligence.\[21\] Physician cannot substitute any other person to take his place in treating patient without his consent.\[22\] In action for malpractice, the burden of proof is upon the plaintiff to show the want of ordinary skill and diligence, and that the injury alleged resulted from a failure to exercise these requisites.\[23\] Whenever there can be reasonable doubt as to whether or not there was malpractice, it is a question for the jury.\[24\] The principal is liable for the negligence of his authorized agents,\[25\] and the partnership for the malpractice of any one of the partners.\[26\] The negligence of a third party contributing to the injury is no defense to the negligence of the defendant.\[27\]

_Negligence by nurses._\[See 8 C. L. 97\] The physician is liable for the negligence of a nurse whom he employs.\[28\]

_Damages._\[See 10 C. L. 831\] Except under statute\[20\] no recovery can be had for the death of a person, wrongfully caused by another, whether in contract or in tort,\[20\] but the law gives damages for the breach of the contract.\[31\] The fact that the payments is not the case of a person, but the law gives damages for the breach of the contract.\[31\] The fact that the payments is not the case of a person, but the law gives damages for the breach of the contract.\[31\]

witnesses guilty of aiding the accused physician in getting patients. Burrow v. Hot Springs, 85 Ark. 396, 108 SW 228.

20 Action against railroad company for malpractice in railroad hospital. Illinois 429; 37 Id. 830; 45 Id. 541; 51 Id. 298; 1 L R. A. (N. S.) 439; 7 Id. 609, 619; 12: 12 Id. 752; 16 Id. 161; 416; 89 A. S. R. 657; 11 Ann. Cas. 21, 106; 21 Id. 605; 5 Id. 306; 8 Id. 196, 199.

See, also, Physicians and Surgeons, Cent. Dig. 82 1-49; Dec. Dig. 85 1-49; 22 A. & E. & E.

tient failed to take further treatment thereby augmenting an injury caused by the negligence of the physician does not relieve the physician from responsibility for the negligence,\[32\] nor does subsequent negligence by the patient aggravating the injury relieve against liability, but may be shown in mitigation of damages.\[83\]

\_Malpractice by nonmedical practitioners.\_See 8 C. L. 971_In an action against an osteopath for malpractice, the correctness of treatment given must be tested by the principles and practices of the osteopathic school.\[84\]

\_Remedies and procedure.\_See 10 C. L. 881_In_Nonsuit should not be granted unless a sufficient cause of injury aside from negligence charged is conceded or conclusively proved.\[85\] To establish malpractice, absolute proof of negligence is not necessary,\[86\] but the condition of the patient may be shown to be the natural and probable, though not the necessary, result of the treatment.\[87\] Physicians and surgeons of practice and experience are experts.\[88\] Evidence of conversations of the parties and of their general conduct toward each other is admissible to establish the relation of physician and patient, and the negligence of the former.\[89\] In damages suits it is competent to admit evidence bearing upon character and extent of injury.\[40\] Statements of past pain and suffering when such information is necessary to a correct diagnosis may be testified to as forming part of the basis of the physician's opinion;\[41\] but is not evidence of fact of such pain.\[42\] The court should receive statement of hospital surgeon as admissions against defendant railroad.\[43\] Controverting opinion of others by expert for plaintiff on exhibit of the defendant is not bringing in new issues but is purely rebuttal.\[44\] Immaterial and irrelevant testimony from which prejudicial inferences may be drawn are inadmissible.\[45\] The weight to be given the testimony of experts,\[46\] and what inferences are to be drawn from the failure to obtain available proof, are for the jury.\[47\] It is error to assume in instructions that there would have been no permanent injury had the treatment been proper.\[48\]

**SS 3. Recovery of compensation.\[49\] See 10 C. L. 832A physician is entitled to compensation for actual and purely medical services only and not for any incidents**

''' runsing, care and treatment of deceased |acer and extent of injury, even where her patient. Sherlag v. Kelley, 200 Mass. 232, 86 NE 293. X-ray burns on foot. Sauers v. Smits, 49 Wash. 557, 95 P 1097. 83. Failure to follow physician's directions. Sauers v. Smits, 49 Wash. 557, 95 P 1097. 83. Failure to follow physician's directions. Sauers v. Smits, 49 Wash. 557, 95 P 1097. 84. Willis v. Brock \[Vt.\] 70 A 572. 85. Possibility of death from other cause than chloroform shown. Boucher v. Larochelle, 74 N. H. 438, 68 A 870. 86. Death of child under influence of chloroform. Boucher v. Larochelle, 74 N. H. 433, 68 A 870. 87. Allowing patient to fall into elevator shaft. Haase v. Morton \[Iowa\] 115 NW 921. 83. Opinions of physicians and surgeons are admissible in evidence upon questions that are strictly and legitimately embraced in their profession and practice. Whether the defendant's treatment was good surgery or proper treatment, whatever the nature of the injury, was a question upon which the witness was competent to testify. Willard v. Norcross \[Vt.\] 69 A 942. 89. Frolovous answers to inquiries of patient as well as arrangements made for her treatment received in evidence. Willard v. Norcross \[Vt.\] 69 A 942. 40. Evidence of condition of hand first night after injury admissible to show characterization of the defendant's treatment.\[47\] The court should receive statement of hospital surgeon as admissions against defendant railroad.\[48\] Controverting opinion of others by expert for plaintiff on exhibit of the defendant is not bringing in new issues but is purely rebuttal.\[49\] Immaterial and irrelevant testimony from which prejudicial inferences may be drawn are inadmissible.\[45\] The weight to be given the testimony of experts,\[46\] and what inferences are to be drawn from the failure to obtain available proof, are for the jury.\[47\] It is error to assume in instructions that there would have been no permanent injury had the treatment been proper.\[48\]

**SS 3. Recovery of compensation.\[49\] See 10 C. L. 832A physician is entitled to compensation for actual and purely medical services only and not for any incidents**

''' runsing, care and treatment of deceased |acer and extent of injury, even where her patient. Sherlag v. Kelley, 200 Mass. 232, 86 NE 293. X-ray burns on foot. Sauers v. Smits, 49 Wash. 557, 95 P 1097. 83. Failure to follow physician's directions. Sauers v. Smits, 49 Wash. 557, 95 P 1097. 83. Failure to follow physician's directions. Sauers v. Smits, 49 Wash. 557, 95 P 1097. 84. Willis v. Brock \[Vt.\] 70 A 572. 85. Possibility of death from other cause than chloroform shown. Boucher v. Larochelle, 74 N. H. 438, 68 A 870. 86. Death of child under influence of chloroform. Boucher v. Larochelle, 74 N. H. 433, 68 A 870. 87. Allowing patient to fall into elevator shaft. Haase v. Morton which might follow such services."" Compensation for both value of the services and the loss to his business cannot be recovered unless the contract will allow of no other construction." Claim for such compensation must be based on direct or express promise to pay," or on circumstances under which the law would imply such promise to pay what the services are reasonably worth." The right to recover for medical services rendered to a third person must rest on express contract, or on facts from which an intention to pay may be inferred." The employer is not required to provide medical attendance for his employees unless he has agreed so to do," although in some cases he is held liable for the emergency call." The liability of the defendant to patient for injuries in no way affects his liability to the physician." A complaint alleging that medical services were rendered to patient at the special instance and request of the defendants is not demurrable as not based on express contract." Where the question of a license or qualification of a physician arises collaterally in a civil action, the license of due qualifications under the statute will be presumed." In actions on contract for medical services, the fees to be the usual ones, it is competent for either side to give evidence of value." In case of continuous attendance, plaintiff's former income may be given in evidence to be considered in estimating compensation for the time when absent from his office, but the falling off, which may be due to other causes, cannot be admitted." Experts in testifying as to the value of the services rendered should base their opinions on the assumption that the treatment was proper," and such experts may be cross-examined as to bias against the defendant." It is proper to show that part of time charged for may not have been spent in a professional capacity." Evidence of proper treatment should go to the jury awarding compensation for such medical services." The introduction of evidence that the defendant did not know where his daughter was being cared for, intending to show lack of affection and carelessness, is not re-

See, also, Physicians and Surgeons, Cent. such services by the person making the request. Defendant, in presence of son-in-law and husband of patient, asked plaintiff to attend her daughter. Held not liable. Mac-

Sever, United physician, United physician, United Nations versible error, where he has made sufficient provision for proper care.\[65\] To allow witness to state what impression he wishes to leave is not error.\[64\]

SS 4. \_Negligent homicide by physician.\[67\]\_See 4 C. L. 629

SS 5. \_Regulation of the keeping and sale of drugs and medicines.\[68\]\_See 10 C. L. 633

The legislature has power to regulate the sale of drugs and require a license thereof.\[68\] A for.\[68\] Regulatory statutes must conform to the rule of singleness of title.\[69\] A nonregistered pharmacist unlawfully selling drugs cannot object to the constitutionality of a law, giving all power of prosecution to the board of pharmacy, for his rights are not affected thereby.\[70\] Where the law explicitly specifies who are entitled to a license, mandamus will lie to compel the board to issue license to one within such requirements.\[71\] Commission of a statutory misdemeanor does not warrant revocation of license.\[72\] Strict observance of regulatory act is imperative and, where a penalty is exacted for a violation, the statute must be strictly construed.\[73\] Proprietors of drug stores are liable for the authorized unlawful sales by their clerks.\[74\] The indictment or information must usually state the exact offense and show that the act does not come within one of the exceptions to the statute.\[75\] Particulars which do not constitute the gist of the offense need not be alleged in such information,\[76\] and exceptions must be negatived only where it is so closely interwoven with the section defining the criminal act as to be a material part thereof.\[77\] Complaints of sales of drugs not of standard strength and purity according to the United States pharmacopoeia must also allege that it was not compounded according to the formula therein given.\[78\] Actual sale of drugs is not essential to the offense of operating a pharmacy without a license.\[79\] Evidence of previous sales is admissible to show clerk's authority,\[80\] and to increase the penalty,\[81\] but inadmissible where not shown to be unlawful, or to show intent.\[82\] Where the contents of 74. People v. Zito, 237 Ill. 434, 86 NE 1041, affs. 140 Ill. App. 611.

60. \_Fitness testified that at nquest room was in better condition than at previous visit, but did not want to leave impression it was for effect. Nims v. Cunningham \[Cal. App.\] 96 P 785.

01. _Search Note: See notes in 4 C. L. 640; 61 L. R. A. 287._

See, also, Homicide, Cent. Dig.; Dec. Dig.; 21 Cyc. 646-1100; Physicians and Surgeons, Cent. Dig. \*\* 18-48; Dec. Dig. \*\* 14-18.

62. _Search Note: See notes in 4 Ann. Cas. 519; 10 Id. 399._

See, also, Drugists, Cent. Dig. \*\* 1-6; Dec. Dig. \*\* 1-6; Dec. Dig. \*\* 1-6; 14 Cyc. 1079-1084; 10 A. E. Enc. L. (2ed.) 267; 7 A. & E. Enc. P. & P. 226.

63. _State v. Hamlett, 212 Mo. 80, 110 SW_

1082: Bertram v. Com., 108 Va. 902, 62 SE 869.

64. _Mo. Rev. Stat._ 1859, 8 3045, punishing false registration of pharmacists and sale of drugs by nonpharmacist, held not to violate that rule. State v. Hamlett, 213 Mo. 810, 110 SW 1082.

01. _Regulation of the keeping and sale of drugs and medicines.\[68\] See 10 C. L. 633_

01. \_Regulation of the keeping and sale of drugs and require a license thereof.\[68\] Regulatory statutes must conform to the rule of singleness of title.\[69\] A nonregistered pharmacist unlawfully selling drugs cannot object to the constitutionality of a law, giving all power of prosecution to the board of pharmacy, for his rights are not affected thereby.\[70\] Where the law explicitly specifies who are entitled to a license, mandamus will lie to compel the board to issue license to one within such requirements.\[71\] Commission of a statutory misdemeanor does not warrant revocation of license.\[72\] Strict observance of regulatory act is imperative and, where a penalty is exacted for a violation, the statute must be strictly construed.\[73\] Proprietors of drug stores are liable for the authorized unlawful sales by their clerks.\[74\] The indictment or information must usually state the exact offense and show that the act does not come within one of the exceptions to the statute.\[75\] Particulars which do not constitute the gist of the offense need not be alleged in such information,\[76\] and exceptions must be negatived only where it is so closely interwoven with the section defining the criminal act as to be a material part thereof.\[77\] Complaints of sales of drugs not of standard strength and purity according to the United States pharmacopoeia must also allege that it was not compounded according to the formula therein given.\[78\] Actual sale of drugs is not essential to the offense of operating a pharmacy without a license.\[79\] Evidence of previous sales is admissible to show clerk's authority,\[80\] and to increase the penalty,\[81\] but inadmissible where not shown to be unlawful, or to show intent.\[82\] Where the contents of 74. People v. Zito, 237 Ill. 434, 86 NE 1041, aff any compound alleged to be illegally sold is in question and sought to be proved by chemical analysis, the chemist is an expert witness and should be rigidly cross-examined.\[83\] When the statute makes no exception in favor of proprietary medicines, it is not permissible to show that the drug sold was such medicine in the original package.\[84\]

SS 6. _Tort liability of drugists.\[85\] See 10 C. L. 884_--Where a druggist sells a drug to be used for a particular purpose, he impliedly represents it to be suitable for that purpose,\[85\] and becomes liable for any injury sustained through its use for that purpose.\[86\] His failure to label the drug is no defense to action for damages, where it was declared to be suitable for the purpose used.\[87\]

## MERCAUTILE AGENCIES.\[83\]

Merger in Judgment; Merger of Coutract; Merger of Estates, see latest topical index.

MILTARY AND NAVAL LAW.

SS 1. Milliary and Naval Organizaton, Main- $ 3. Milliary and Naval Truthunals, $4$,tenance and Enlistment, $47. $ 4. Civil Status, Rights and LIabilities of A. Regular Army and Navy and Marine, Corps, $47. $ 4. Tury and Naval Reservations, $49. B. Millita, $48. $ 5. Selders' Heomes and Indigent Solders, $50. $ 6. Marmiel Law, $51. $ 6. _The scope of this topic is noted below.\[86\]_

SS 1. _Military and naval organization, maintenance, and enlistment. A. Regular army and navy and marine corps.\[86\] See 10 C. L. 884_--The contract of a soldier of the United States made by his enlistment and oath to serve for a definite term "unless sooner discharged by proper authority" is one terminable by the government at will.\[86\] As the enlistment in the army by a minor without his parent's consent is valid as to the minor,\[87\] although voidable under statute on the application of the parent,\[88\] any military offense committed by such minor after, or in connection with, his enlistment may be punished,\[89\] and a proceeding brought by his parents to pro-cure his discharge will not bar his prosecution and punishment by military law.\[86\] The crime of fraudulent enlistment is exclusively a military or naval offense triple and punishable only by court martial,"\* and civil courts should not interfere by has-bess corpus to discharge a minor under eighteen years of age who has been enlisted in either the military or naval service without the consent of his parents, if at the time of presentation of the petition for the writ such minor is under arrest and held under any charge cognizable by either a military or naval court."

(SS 1) \_B. Militia."--\_See 10 C. L. \*\*\*.To fasten liability upon a city for expenditures in the maintenance of an armory building, the provisions of the Military Code which imposes it must be strictly complied with." Where the legislature has delegated to the state military board, acting as an armory board, the power and duty to regulate and control the use of armory buildings, courts will not assume to exercise such duties unless the necessity therefor is clearly apparent," for the courts will not assume that the uses to which they are put are inconsistent with the general purposes for which they were intended," and although the purposes for which armories are primarily intended are military purposes, yet the term "military purposes" comprehends all such uses as may be said to be incidental to the general purpose to conserve the military needs of the regimental organization.1 Such buildings cannot properly be devoted to a purely commercial use in disregard of military needs.2 The use of an armory building for amusement purposes is lawful when it can reasonably be said that the amusements are essential to the esprit de corps of the regiment and not injurious to the property itself,3 and where the uses come within the contemplated uses for which the building was erected,4 equity will not interfere.5

SS 2. \_Orders, regulations, and discipline; promotion and discharge.\_See 10 C. L. \***.**\_Authority to discharge a soldier upon discretionary terms \*a is conferred and recognized by statute as existing in the president of the United States.7 A discharge is not reviewable in the courts.8

SS 3. \_Military and naval tribunals.\_See 10 C. L. \***.**\_A court martial has neither original nor general jurisdiction and whatever authority it possesses is derived solely

95. Dillingham v. Booker \[C. C. A.\] 163 F 656.

01. Description and fraudulent enlistment by minor. Dillingham v. Booker \[C. C. A.\] 163 F 656.

01. Search Note: See notes in 14 L. R. A. roller skating. McCarter v. Dungan \[N. J. 476; 1 Ann. Cas. 128.

See, also, Militia, Cent. Dig.; Dec. Dig.; 27 Cyc. 490; 20 A. & E. Enc. L. (2ed.) 688.

97n. Evidence insulficient to show that repairs to armories were ordered in manner required by Military Code even where it is assumed that repairs were of an emergent character which could have been ordered without competition. Morizitvity v. New York, 59 Misc. 204. 110 NYS 842.

98. Power delegated to board by militia act. P. L. 1906, p. 842, 114. Hamill v. Dungan \[N. J. Eq.\] 68 A 1096.

01. Under militavits, use for lawful purpose being assumed temporary, injunction to restraint use of armory for dancing and roller skating denied. Hamill v. Dungan \[N. J. Eq.\] 68 A 1096.

01. Hamill v. Dungan \[N. J. Eq.\] 68 A 1096.

01. Daneling and roller skating held not commercial use. McCarter v. Dungan \[N. J. Eq.\] 71 A 537. B11 held to state cause of action, same charging that officers were conducting private business in armory for commercial purposes, etc. Hamill v. Dungan \[N. J. Eq.\] 68 A 1096.

01. McCarter v. Dungan \[N. J. Eq.\] 71 A 537.

01. Dillingham v. Booker \[C. C. A.\] 163 F 656.

01. Description and fraudulent enlistment by minor. Dillingham v. Booker \[C. C. A.\] 163 F 656.

01. Search Note: See notes in 14 L. R. A. roller skating. McCarter v. Dungan \[N. J. Eq.\] 71 A 537.

01. Search Note: See note in 4 C. L. \***.**_A_ court martial has neither original nor general jurisdiction and whatever authority it possesses is derived solely from the lawmaking power as expressed in the military code.\[94\] In the absence of statute, the proceedings of courts martial are controlled by the usages and customs of the military service and not by the common-law rules applicable to civil proceedings,\[10\] and by such practice and army regulations sentences to imprisonment imposed upon a "soldier"\[11\] are cumulative and to be executed consecutively, one upon the expiration of the other in the order of their imposition.\[12\]

SS 4. \_Civil status, rights and liabilities of the military and navy, and of military and naval reservation.\[13\]\_Boo 1C C. L. 883--A milliataman may without the intervention of a grand jury be held to answer for a felony by the tribunal having jurisdiction to try him for the grade of crime he has committed,\[14\] but a citizen who becomes a citizen soldier is not thereby relieved from liability to the people for violation of their laws even though in his military capacity he assumes additional liability for the same violation.\[14\] While inferior officers and soldiers bound to obey orders are protected in so doing both against civil and criminal prosecutions, except where such orders show on their face their own illegality or want of authority,\[15\] superior officers are answerable for all acts within their fair scope of the orders given by him.\[16\] A commanding officer of a camp may not act arbitrarily and suppress a lawful and harmless business carried on by a citizen on his own land outside of the encampment where the same kind of business is authorized within the limits of the camp grounds.\[17\] The line referred to by act of congres as the east line of the Presido military reservation "as established by the United States authorities" is the line of the old fence,\[18\] and, as the legal line of the reservation was some distance east of the line of the fence, the commandant of the reservation could fix the line of his occupation at any point within the limits of the reservation,\[19\] and, although his superior officers might countermand his orders and compel him to change his line, no private individual occupying lands within the legal lines of the reservation could dispute his authority in establishing the line where the_fence was located.\[20\] Milliat districts may be abolished, or their limits changed in the manner prescribed by statute,\[21\] and in reaching conclusions as to the necessity and expediency of a pro-

ertimes against society; grand lareeny, Peo-

ple v. Wendel, 59 Misc. 354, 112 NYS 301.

10. Kirkman v. McClaughry \[C. C. A.\] 160 F 436.

01. In Army Regulations, par, 981, "soldier" used in popular sense embraces officers as well as enlisted men. Klimran v. McLaughry \[C. C. A.\] 160 F 436.

01. Shorter term not served by having served the longer. Kirkman v. McClaughry \[C. C. A.\] 160 F 436. Army Regulations, pars, 971, 978, held not relate to different sentences against same defender, nor intended to regulate dates from which con-

finement under a second sentence should be computed. Id. Theory of construction confirmed by par. 981, declaring in terms that second sentence will be executed upon expiration of the first. Id.

13. Search Neter See note in 10 C. L. 883.

01. Selectn M5R: Amony and Navy, Cent. Dis. 13 764-78; Dec. Dis. 32-34; 3 Cyc. 812; 20 A. & E. Enc. L (2ed.) 661, 672.

13a. Const. $ 4, art, 1, and Cr. Code Proc. 13a, 4, sub. 3 held not to prohibit same. People v. Wendel, 59 Misc. 354, 112 NYS 301.

14. Conviction by court martial of a com-

misstened officer of conduct unbecoming an officer and gentleman, of conduct to prejudice

13. Selectn M5R: Amony and Navy, Cent. Dis. 13 764-78; Dec. Dis. 32-34; 3 Cyc. 812; 20 A. & E. Enc. L (2ed.) 661, 672.

13a. Const. $ 4, art, 1, and Cr. Code Proc. 13a, 4, sub. 3 held not to prohibit same. People v. Wendel, 59 Misc. 354, 112 NYS 301.

14. Conviction by court martial of a com-

13a. Soon l'C C. L. 883--A milliataman may without the intervention of a grand jury be held to answer for a felony by the tribunal having jurisdiction to try him for the grade of crime he has committed,\[14\] but a citizen who becomes a citizen soldier is not thereby relieved from liability to the people for violation of their laws even though in his military capacity he assumes additional liability for the same violation.\[14\] While inferior officers and soldiers bound to obey orders are protected in so doing both against civil and criminal prosecutions, except where such orders show on their face their own illegality or want of authority,\[15\] superior officers are answerable for all acts within their fair scope of the orders given by him.\[16\] A commanding officer of a camp may not act arbitrarily and suppress a lawful and harmless business carried on by a citizen on his own land outside of the encampment where the same kind of business is authorized within the limits of the camp grounds.\[17\] The line referred to by act of congres as the east line of the Presido military reservation "as established by the United States authorities" is the line of the old fence,\[18\] and, as the legal line of the reservation was some distance east of the line of the fence,\[19\] and, as the commanding of the reservation could fix the line of his occupation at any posed change, a county board of commissioners may act on the report of a special commissioner appointed by them under statute,\[22\] and the approval of such report is a matter entirely in the discretion of the board unless there has been fraud or a willful abuse of discretion its action is final.\[23\] When territory is added to a district, it becomes part of the district and subject to all local laws in force in such district.\[24\]

SS 5. Soldiers' homes and indigent soldiers.\[25\] See 10 C. L. 538--Under statute making all persons admitted to the Soldiers' Home subject to the same rules and articles of war in the same manner as soldiers in the army, the governor of the home has charge of the inmates in like manner as an officer of the army has charge of the men in his command.\[25\] It is his duty to maintain such discipline as will secure and preserve good order and promote the well being of those under his control and in so doing he may make such special orders as are deemed proper to secure such ends,\[26\] and the making and enforcement of such orders by the governor is not actionable unless the orders are false in substance and promulgated and enforced with knowledge of their falsity and with malice.\[27\] In Nebraska the board of public lands has authority to establish such rules and regulations with reference to the conduct of the affairs of the home as are reasonable when considered in connection with the object and purposes of the institution and which are not inconsistent with the laws establishing the same.\[28\] By virtue of statute the Home of the Woman's Relief Corps' Home Association was made a state institution under the exclusive management and control of the state,\[29\] hence an appropriation for the support of the inmates thereof may lawfully be made.\[30\]

ever deemed necessary and expedient. Dew (order was described as a "saloon." Rowan v. Smith, 130 Ga. 564, 61 SE 232. v. Butler \[Ind.\] 85 NE 714.

22, Pol. Code, 1895, $ 333. Dew v. Smith, 130 Ga. 64, 61 SE 232.

23. Acts 1880-81, p. 508. Dew v. Smith, 130 Ga. 564, 61 SE 232. Order making changes in district lines held not void on ground of willful abuse of discretion because applicants for order recited in application that they desired change in order to secure benefits of stock law in force in adjoining district, proceedings being otherwise in conformity with statute and order reciting necessarily for, and expediency of, changes. Id. Only remedy to persons affected by and disatisfied is to appear before successors of present commissioners who can restore lines if they deem same necessary and expedient. Dew v. Smith, 130 Ga. 564, 61 SE 232.

01. Where lines were changed, territory added because subject to system of fences or stock laws which prevailed in district. Dew v. Smith, 130 Ga. 664, 61 SE 232. Not necessary to erect fences along lines of added territory in order to extend stock law prevailing in district. Id.

01. Search Note: See Army and Navy, Cent. Dig. $$ $-102; Dee. Dig. $$ 50-53; 3 A. & E. Enc. (2ed.) 167.

25.= Rev. St. U. S. $$ 4824, 4835 (U. S. Comp. St. 1901, pp. 3333, $$50. Rowan v. Butler \[Ind.\] $$ NE 714.

26. QGovernor of home authorized to promulgate order to forbid inmates to frequent a public house where they are permitted to obtain liquor, afforded degrading amusements or exposed to improper temptations. Rowan v. Butler \[Ind.\] $$ NE 714.

01. Where members were prohibited from entering complainant's restaurant which in order was described as a "saloon." Rowan v. Butler \[Ind.\] 85 NE 714.

01. Howell v. Sheldon \[Neb.\] 117 NW 109.

Under statutes considered enactment of rule which requires all present and future members of Soldiers' and Saliors' Home who receive pensions in excess of $12 per month to pay a percentage of pension money for benefit of home, held within discretionary power of board in management of home and not such abuse of official discretion as warrants judicial interference. Id. Rule made under stating that "board shall prescribe rules of admission to home in accordance with provisions and objects of act." Id. Contention that rule of uniformity of taxation was violated not well made, plaintiff not alliging he was a taxpayer. Id. Legislature held not to have intended that no money should be taken from an inmates voluntarily given. Id.

29. St. 1897, p. 447, c. 274, held to make home a state institution within Conat. Cal. art. 4, $ 22. Board of Directors of Woman's Relief Corps v. Nye \[Cal. App.\] $7 P 208.

01. Appropriation for support of veteran soldiers and their dependent relatives of home held not unconstitutional as special legislation. Const. art. 4, $ 25, subd. 33.

01. Board of Directors of Woman's Relief Corps \[Cal. App.\] $7 P 208. Act making appropriation providing that no immate for whose support there is paid, independent of state aid.

$12.50 per month or more, shall be entitled to aid under act and that where less than that amount is paid state aid may be had to raise amount to that sum, held not a gift in violation of Const. art. 4, $ 31, state being bound to support citizens unable to support themselves. Id.

12 Cur. Law. 311 - See 15 C. L. 232 - So long as arrests are made in good faith and in an honest belief that they are needed to avert an insurrection, the governor is final judge 51a and cannot be subjected to an action after the expiration of his term on the ground that he had not reasonable ground for his belief." Such arrest and imprisonment by the governor in the exercise of his power to call upon the military arm of the government to suppress an insurrection does not deprive the prisoner of his liberty without due process of law," 18 nor is an action against the governor and officers for such an imprisonment within the original jurisdiction of the federal circuit court as a suit authorized by law to be brought to redress the deprivation of any rights secured by the constitution of the United States."

**MIHULs, see latest topical index.**

**MIHULs, see** latest topical index.\*\*

**MIHULs, see** latest topical index.

The scope of this topic is noted below.\[59\]

SS 1. General common-law principles. A. Public ownership.\[60\] See $ C. L. 889 (SS 1) B. Private ownership; rights of freehold tenants of less than fee.\[41\] See $ C. L. 839--A mining right may properly be deemed a right to excavate in the earth for the purpose of obtaining minerals or other useful products.\[41a\] Such a right is property.\[42\] The term "minerals" is not confined to metallic substances.\[42a\] There is no property in natural gas until it is taken.\[43\] The right of surface owners to take natural gas is subject only to the limitation that it must be for a lawful purpose and a reasonable manner.\[44\] The business of mining for the benefit of the miner is a private enterprise and the power of eminent domain cannot be invoked to aid it,\[45\] but owners of gas wells may be given the power of eminent domain for the purpose of piping their product to market.\[46\] In order that a mineral right may be lost \[47\] or acquired by adverse possession or laches, the elements of such method of acquisition must exist.\[48\]

SS 2. Acquisition of mining rights in public lands. A. What lands may be located.\[49\] See $ C. L. 839--Under the federal statutes reserving from sale land valuable for minerals.\[49a\] mineral deposits must exist to such an extent as to justify exploitation.\[50\] Only unappropriated lands are subject to location,\[51\] but lands once located

egin{tabular}{l|l} steam power, such use not being a public & Calor Oil & Gas Co. v. Franyell, $3 Ky. L. R. \\ use. Howard Milli Co. v. Schwartz Lumber & $8, 109 SWY $28. \\ & Coal Co., 77 Kan. $9, 95 P $59. \\ $9. It includes the principles of law applicable to the acquisition and ownership of miners and minerals, including natural gas & $9, 100 SWY $59. \\ \\end{tabular}

47. Where an owner of mineral rights took no steps to quiet title thereto for 21 years after another acquired title by commissioner's deed to the entire property, but he had no notice until within one year that such owner claimed title to the minerals, and delay had not changed the status of the parties, held not barred by lachea. Steinman v. Jessee, 108 Va. 567, 62 SE 275. Where one purchased entire title to land by commissioner's deed with knowledge that another had a right to the minerals, held he could not set up laches against the owner of the mineral rights. Id.

01. Evidence insufficient to show that one acquired title to coal under land with notice of another's rights thereto. Crane's Nest Coal & Cooke Co. v. Virginia Iron, Coal & Cooke Co., 108 Va. 582, 62 SE 954. \\ $13-146; Dec. Dig. $47-52. \\ $14m,People v. Bell, $27 Ill. $32, $6 NE 593. \\ A mrne is an excavation in the earth for the purpose of obtaining minerals; an excavation properly underground for the purpose of taking out some useful product. Id.

01. Right to drill for oil and gas in consideration of a fixed royalty should be taxed. People v. Bell, $27 Ill. $32, $6 NE 593. Right of lessee to mine for oil and gas is a mining right and separately taxable under Hurd's Rev. St. 1905, p. 1399, v. 94, $ 6, 7, 1d.

42a. Ineludes oil and gas. Poe v. Utrey, 238 III. $6, 84 NE 46.

43. Until then it is fugitive and belongs in common to surface owners. Louisville Gas Co. v. Kentucky Heating Co., $3 Ky. L. R. $12, 111 SW SW 874.

01. Louisville Gas Co. v. Kentucky Heating Co., $3 Ky. L. R. $12, 111 SW 374.

01. Sutter County v. Nichols, $2 Cal. $88, $3 P $73. \\ $40, Ky. St. 1903, $ 3766a, is constitutional. \\ \\end{tabular}

01. The second author of this paper is a summary of the results of the paper.

01. Correspondence to the author of this paper is a summary of the results of the paper.

01. The author of this paper is a summary of the may become subject to relocation if the prior location is abandoned.52 If a lode or vein within the limits of a placer claim is excepted from the placer patent, such lode or vein and twenty-five feet on either side thereof is open to location and exploitation.53

Footnote 53: The _Dice_ is a _Dice_.

is essential to rest a right of possession,62 but possession without location is good as against a mere intruder63 but not against a location peaceably made.64 Location need not be made in person but may be made by an agent,65 and this rule applies even though there is no knowledge of the principal, if there is a local rule authorizing it or a subsequent ratification.64 The fact that an agent who located and made discovery on a claim for his principal had previously located and sold the same land does not bring them into privity with him so as to estop them67 nor does the fact that the agent was a stockholder in the company of the principal estop it.68 It is generally required that location be made with reference to natural objects69 either on or off the ground located,70 and that the location be good when made.71 A location must be perfected in the manner prescribed by statute relative to markings of boundaries on the ground,71 posting of notice of location,72 and filing the certificate

Without other agreement, the conveyance \[fact of prior location and sale did not affect \]severs such tract and a discovery thereon \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 856. \[Wyo.\] 95 P 856. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 856. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 856. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 856. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 856. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 856. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 856. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 856. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 856. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 856. \[Wyo.\] 95 P 849. \[Wyo.\] 95 P 856. \[Wyo.

or statement thereof,74 and doing the proper assessment work.75 The location notice or certificate when recorded is prima facie evidence of all the facts which the statutes require it to contain and which are set forth therein,76 and the afflavit of the locator attached to the notice is prima facie evidence of the facts required by the statute to be stated and which are stated therein.77 The object and purpose of location notices is to give notice to subsequent locators,78 and they should be liberally construed to the end of upholding location made in good faith.79 A mistake in such notice may be corrected by oral evidence.80 Amended locations relate back to the date of the original location in the absence of intervening rights,81 but they create no new rights.82 The fact that a placer mining claim exceeds the legal limit in area renders it void only as to the excess,88 and an owner in possession may elect what portion he will relinquish within a reasonable time after he discovers that his claim overruns.84 But he cannot be forced to surrender any particular portion to another, before he knows of the excess.88

(SS 3) \_B. Maintaining location; forfeiture, loss or abandonment,88 See 10 C. L._840_.\_In order to hold a mining claim, the locator must do the required amount of assessment work thereon,88 and such work must be of a character which improves the claim.87 "Improvement" means such an artificial change in the physical condition

Bismark Mountain Gold Min. Co. v. North

for recording of certificates of location, is

Suhbeam Gold Co., 14 Idaho, 516, 95 P 14.

directory only and where doing of acts required to make a valid location is otherwise

amended locations, such amended locations proved, location is not void for failure to

where they do not interfere with existing comply with such statute. Wailes v. Davies,

rights relate back to date of original location. Bismark Mountain Gold Min. Co. v.

75. See, also, post, SS3B, as to nature of

Suhbeam Gold Co., 14 Idaho, 516, 95 P 14.

work required. Afflavits of labor, showing

s2. Filling of amended declaratory state-
annual assessment work, held sufficient to

mant as authorized by Laws 1901, p. 56, does

make prima facie showing on that question.

not create any right claimed under the first

Bismark Mountain Gold Min. Co. v. North

Bunbeam Gold Co., 14 Idaho, 516, 95 P 14.

the amended declaratory statement. Milivan-

76. Bismark Mountain Gold Min. Co. v.

Kee Gold Extraction Co. v. Gordon, 87 Mont.

Suhbeam Gold Co., 14 Idaho, 516, 95 P 14.

77. That the ground was unappropriated

S3, 84, 85, Zimmerman v. Funchion \[C. C.

mineral land. Bismark Mountain Gold Min.

A.) 161 F 859.

Co. v. Sunbeam Gold Co., 14 Idaho, 516, 95 P 14.

87. A. S. R. 403.

01. If such subsequent locator has actual notice, a defect in the notice is immate-

S51-60; Dec. Dig. SS 23-25; 20 A. & E. Enc.

rial. Bismark Mountain Gold Min. Co. v.

L. (2ed.) 733.

Subeam Gold Co., 14 Idaho, 516, 95 P 14.

88a. Evidence insufficient to show that re-

79. Bismark Mountain Gold Min. Co. v.

v. Noth Subbeam Gold Co., 14 Idaho, 516, 95 P 14.

87. It is policy of the law in allowing

Evidence sufficient to show sufficient im-

amended locations not to avoid a location

provement on claim. Fredricks v. Klauser

for defect in notice, but to give the locator

\[Or.\] 85 P 679.

opportunity to correct his notice. Id. One

who has actual possession of a claim and

of work to be done each year, does not spe-

has done assessment work may amend his

cify the kind of labor, and labor expended

location if there are no intervening rights,

Ware v. White, 81 Ark. 220, 108 SWV 831.

Where requisite assessment work has been

done under a defective notice, such notice

may be amended where there are no inter-

wening rights. Id. Where it appears that a

location is made in good faith, the court will

not hold the locator to a strict compliance

with the law relative to the notice. If by

reasonable construction in view of surround-

ing circumstances the notice will impart

the boundaries of the claim that its char-

Bismark Mountain Gold Min. Co. v. North

Suhbeam Gold Co., 14 Idaho, 516, 95 P 14.

80. The fact that work was done being

main question and not its method of proof.

Bismark Mountain Gold Min. Co. v. North

75. See, also, post, SS3B, as to nature of

Suhbeam Gold Co., 14 Idaho, 516, 95 P 14.

work required. Afflavits of labor, showing

annual assessment work, held sufficient to

mant as authorized by Laws 1901, p. 56, does

make prima facie showing on that question.

not create any right claimed under the first

Bismark Mountain Gold Min. Co. v. North

Bunbeam Gold of the earth in, on, or so reasonably near the claim as to evidence a design to discover mineral thereon, or to facilitate its extraction, and the alteration must be reasonably permanent.\[88\] In the development of a claim, the rule that equity regards that as done what was intended does not apply.\[89\] Work may be done outside the limits of a claim if beneficial thereto.\[90\] A stockholder in a mining corporation has such a beneficial interest in the claim that work done by him must be counted as representation work.\[91\] Where several adjacent claims are held by one,\[92\] or are held in common, representation work may be done on one for the benefit of all,\[93\] if done under a general plan or scheme of development,\[94\] but not otherwise.\[85\] Work done by one partner on a claim held individually cannot be counted as work done on a partnership claim.\[96\] Mere failure to do representation work does not determine the rights of the locator in the absence of an intervening location,\[97\] and a temporary suspension in work is not such a break in possession as entities another to enter and locate,\[98\] and one who enters on a claim during the year within which representation work may be done cannot object that the locator has not done his work.\[99\] The fee for recording affidavits of proof of work is prescribed by statute.\[99\]

_A forfeiture.\[89\]_ See 10 C. L.\[81\]\_--One who seeks to establish forfeiture has the burden to show by clear and convincing proof that the owner has failed to comply with the law.\[99\] A co-owner's interest may be forfeited to other co-owners if he refuses to do his share of assessment work.\[99\]

_Abandonment.\[99\]_ See 10 C. L.\[81\]\_--On abandonment of a prior location, conflict territory properly belonging to it reverts to the public domain.\[99\]

portating supplies. Id. Value of fuse, pow- do the work does not terminate the right der, candles, etc., is. Id. Value of rails of the locator, but it only throws the land used on claim held properly estimated. Id. open to relocation and in the absence of another location the original locator may hold be counted but cost of horses is not. Id. Vac Oil Co. \[CaI\] 99 P 176.

an employ expended in an honest effort to discover mineral, but not for services of a watchman when there was no machinery or favitness on the claim. Id.

\*\*88. As used in Rev. St. U. S. & 2324. Fredricks v. Klauser \[Or.\] 96 P 679.

**89. Material taken to a mine but not used**

cannot be counted. Fredricks v. Klauser \[Or.\] 96 P 679.

**90. Though there are several claims for which credit is asked. Hawgood v. Emery \[S. D.\] 119 NW 177.**

**91. Wailes v. Davies, 158 F 667; Id. \[C. C. A.\] 164 F 397.**

**92. Hawgood v. Emery \[S. D.\] 119 NW 177.**

**93. Under the federal statute requiring improvement work to be done on each claim each year, except where claims are held in common, work may be done on any one claim; expenditures may be made on one claim only where contiguous claims are held in common. Rev. St. U. S. & 2324. Fredricks v. Klauser \[Or.\] 96 P 679.**

**94. If done under a general scheme for the development of the several claims. Hawgood v. Emery \[S. D.\] 119 NW 177.**

**95. One of two partners in two claims cannot prevent forfeiture of his right by co- partner by showing work done on adjacent claims not under agreement or general plan of improvement of all claims. Hawgood v. Emery \[S. D.\] 119 NW 177.**

**96. Hawgood v. Emery \[S. D.\] 119 NW 177.**

\*\*97. Under Rev. St. U. S., & 2324, providing that on failure to do location work land shall be open to relocation, etc., mere failure to
(SS 3) \_C.\__Relocation.\*--_ See 10 C. L. 841.--\_For the purpose of relocation, the land must be subject to location.*a One who bases a relocation on the existence of a forfeiture of an original location because of failure to make the required improvement has the burden to establish such forfeiture.*

(SS 3) \_D.\_\_Proceedings to obtain patents; adverse claims.\* See 10 C. L. 842.--_A third locator may show against the second a first location in force at the time of the second location.\*a_

\_Suits to determine adverse claims.\_See 10 C. L. 842.--\_In an adverse suit to determine rights to a mining claim, the parties must stand on their own rights and recover on the strength of their own claims.\* The plaintiff must establish in addition to other requirements of the law that the ground was not covered by a prior location, or, if it was, that it had been forfeited or abandoned.\* While the hearing of defendant's case is ex parte, after plaintiff has failed to establish a prima facie case it is presumed that proceedings were regular and judgment for defendant correct.10 A suit under the federal statute praying ejectment is a law action where no equitable issue is presented.11

SS 4. \_Ownership or estata obtained by claim, location and patent; apex and external rights.12 See 10 C. L. 844.--\_It is provided by federal statutes that a placer claim shall not include a known vein or lode within its limits and not included in the location papers.12 Whether a vein or lode is a known or an unknown one may be a question for the jury,13 and on such question expert testimony14 and evidence as to

ject to relocation. Moorhead v. Erie Min. 1 tion. Ware v. White, 81 Ark. 220, 108 SVW & Milli Co., 43 Colo. 408, 96 P 253. 831. Action held one in ejectment and not in equity. Id. 12 Search Notes See notes in 6 C. L. 655, 11 Ed. 1081; 50 L. R. A. (N. S.) 422; 16 Id. 162; 58 A. S. R. 263, 372; 83 Id. 41. See, also, Mines and Mimerals, Cent. Dis. 15 66-132; Dec. Dig. 15 82-16; 21 Cyc. 549, 555, 558, 659, 61, 663, 570, 580-585, 587, 588, 602-670, 670, 671, 722; 20 A. & E. Enc. L (2ed.) 4, 722, 768. 12a. Under Rev. St. U. S. 1 2320, declaring that claims on "velins or lode" shall be governed by laws in force at date of location and $ 2333 providing that placer claim shall not include known vein or lode not included in application but does include unknown lode or vein, held terms "vein" and "lode" are synonymous. Noyes v. Clifford, 37 Mont. 138, 94 P 842. "Vein or lode" means a body of mineral or mineral bearing rock within defined boundaries in a general mass of the mountain and "known vein or lode" is one clearly ascertained and of such extent as to render the land more valuable and justify its exploitation. Id. 13 Evidence as to whether vein or lode within limits of a placer claim was excepted from the patent, and whether it was a known vein, and subject to location by another, held for the jury. Noyes v. Clifford, 37 Mont. 138, 94 P 842. 14. On Issue as to whether lode or vein within limits of a placer claim was of suffl-cient value to justify its exploitation, so as to except it from placer patent, expert testimony based on observation of local conditions that prospects of the vein were good held admissible. Noyes v. Clifford, 37 Mont. 138, 94 P 842.

the extent or value of the vein or lode is admissible.15 Evidence of development work done is admissible on the question of good faith.16

SS 5. _Right to mine on private land thrown open to the public.17 See 10 C. L. 897_

SS 6. _Privata conveyances or grants of mineral rights in land.18 See 10 C. L. 844_

Mineral rights may be sold separately and apart from the land itself.188 There is a clear distinction between a grant of a right for a term to take minerals from land and an outright grant of the minerals in place.19 A right, of unlimited duration, to occupy land for the purpose of prospecting is a freehold interest but being vested for a specific purpose becomes extinct when the purpose is accomplished or work abandoned.188 A grant of oil and gas on certain land is a grant of so much as the grantee may find there, but vests him with no estate therein until it is found.20 A description in a deed of mineral rights may be rendered sufficiently accurate by reference to other records.21 Technical terms used will be given their usual interpretation.22 The word "minerals" is not confined to metalic substances and where used in a conveyance without qualification it includes gas and oil.22 Terms used to identify the grant will not be construed as a limitation thereon.24 A reservation is to be construed according to the plain meaning of the terms employed.25 An apparent reservation may be construed as a limitation, after a long lapse of time where no rights have been asserted by the grantor.28 Contracts for the sale of mineral rights

15. Where one claimed a lode location within limits of a placer location on ground that it was expected from the placer patent, evidence of the extent and value of the vein at any time before or after patent proceedings for the placer was competent to show whether it was a "known vein." Noyes v. Clifford, $7 Mont. 188, 94 P 842.

01. Where one claimed right to a lode location within limits of a placer claim, as excepted from the placer patent, afflavits of representation work done on the lode claim were admissible to show good faith and belief that same warranted expenditures to develop it. Noyes v. Clifford, $7 Mont. 138, 94 P 842.

01. Search Note: See Mines and Minerals, Cent. Dig. $166-215; Dec. Dig. $6-85; 27 Cry. 689-745.

01. Search Note: See notes in 2 L. R. A. (N. S), 1115; 4 Id. 207; 10 Id. 822; 16 Id. 851; 24 A. S. R. $64; 2 Ann. Cas. 639.

See, also, Mines and Minerals, Cent. Dig. $147-165; 242-247; Dec. Dig. $13 53-55, 120-135; 27 Cry. 671-683, 784-791; 20 A. & E. Enc. L (260). 175.

18n. The owner of a fee may lease or sell the mineral right in the property absolutely while retaining the fee in himself. A court may also exercise this power in settling an estate. Baker V. Royal Lead & Spar Co., $2 Ky. L. R. $92, 107 SV 104.

19. The latter conveys an interest in the land. Board of Suprs of Hancock County v. Imperial Naval Stores Co. \[Miss.\] $7 S 177, 19n. Vufford Oil & Gas Co. v. Shipman, 233 Ill. $, 84 NE 53, citing 1 C. L. 860.

01. On account of its wandering nature, it may escape and be withdrawn on other land and is not subject to absolute ownership. Poe v. Ulrey, 233 Ill. $6, 84 NE 46. Oil and gas while in the earth is not subject to ownership distinct from the soil and a grant thereof is not a grant of oil in the ground but only of so much as the grantee may find and passes nothing which can be made the 12 Cur. Law. MINES AND MINERALS SS 6. 859 and amendments thereto are to be construed as one instrument.27 They are to be construed to convey the estates or rights intended by the parties,28 and are to be given effect according to their terms,29 and conditions will not be held to have been met unless substantially fulfilled.30 The practical construction placed thereon by the parties will be given effect.31 A purchaser is not absolved from his contract duty to promptly make certain improvements, because of a defect in the vendor's title, unknown to him,32 nor because of failure of the vendee to meet a requirement, when in no manner affected the making of the improvement,38 nor by other facts not within the vendor's control.34 Conditions of a contract for the sale of mining rights will not be specifically enforced where there is an adequate remedy at law,38 nor where the right to such remedy does not clearly appear,38 and, where the contract provides the remedy for its breach, such remedy must be resorted to.37 One who claims under a patent is not tor and grantee being dead, such provision \[Pa. 539, 69 A 85. Under contract for sale of would be construed as a limitation and not a reservation of mining rights. Towns v. \[sk\]staments, the purchaser agreeing to do de-Brown \[Ky.\] 114 SW 773. \[sk\]My divided, except that in case of consummma- and amendments thereto must be construed as one instrument, and a provision in an amendment requiring buyer to give seller fault in payment of any instalment it should employment held not without consideration. \[sk\]Mallory v. Globe-Boston Copper Min. Co. \[sk\]Aris.\] 94 P 1116. \[sk\]Contract by which owner agreed to sell mineral rights, and permit purchaser pending delivery of deed to remove minerals and in event of the owner's failure to pro-cure a- release of a mortgage to lease the land, held to confer on the purchaser an interest in the land and not a mere license. \[sk\]National Light & Thorium Co. v. Alexander \[sk\]S. C.\] 61 SB 214. Contract binding owners to sell an interest in mines in consideration of $500 cash and $14,500 within one year, purchaser to pay all taxes during "life of this option," held a contract of purchase and not a mere option. Chenoweth v. Butterfield \[sk\]Ariz.\] 94 P 1131. \[sk\] 94 P 1131. \[sk\] 29. Under a contract giving one the right to explore mineral land, the contractor agreeing, in case of eurose to pay the owner a certain price for the land, ke was not bound to drill for commercial substances but was only bound to buy the land in case of eucess in finding them. Anse La Butte (Le Danois) Oil & Mineral Co. v. Babb \[sk\]L.\] 47 S 7 S 764. Contract for sale of mining claims continued and held not to entitle sellers to exchange stock received by them in purchasing company for stock in a company formed which acquired the claims. Mallory v. Globe-Boston Copper Min. Co. \[sk\] 94 P 1116. \[sk\] 20. Where a contract permitted plain?" assignment to explore oil land and provided for sale to him for specified price if paid within 90 days after success on the land, the finding of oil in less than paying quantities was not a success in finding commercial substances within the contract. Anse La Butte (Le Danois) Oil & Mineral Co. v. Babb \[sk\]L.\] 47 S 754. Contract for sale of coal lands constrained, together with circumstances and construction placed thereon by the parties and held to show that the parties had construed it to mean that a survey was to be made after execution of feed and any deficiency accounted for. Pittsburgh Coal Co. v. Cook, 219 * \[45\] **S60** MINES AND MINERALS SS 7. 12\*\* Cur. Law.\*\*

any obligation creates a mere option which the lessor may terminate at any time before the lessee becomes bound.\[52\] Where a leased mine is flooded by negligence of a third person, the lessee can only recover from him for loss of personal property and isvered coal.\[53\]

\_Interpretation and effect in general.\_See 10 C. L. 846.--As in construing other witten contracts,\[54\] a mining lease is to be construed so as to effectuate the intention of the parties.\[55\] The construction placed on a lease by the parties will be adopted unless at variance with the correct legal interpretation,\[56\] and where it is ambiguous; parol evidence may be resorted to to explain it.\[57\] As a general rule such leases areheld to contain an implied covenant to prosecute work of development with reasonable diligence,\[58\] and to protect the property by sinking as many offset wells as are reasonably necessary.\[59\] A provision for extension though optional in form will not be construed to authorize the lessee to avoid his obligations.\[60\] Where a lessee-participates in partition of the land and recognizes the several ownership, the character of its holding is changed from that of lessee from joint owners to lessee from each owner.\[61\]

\_Essentials and validity.\_See 10 C. L. 845.--A lease by one cotenant is void as to other cotenants,\[52\] but is valid as between the parties so long as the land remains unpartition, etc., is a conveyance of an interest in a homestead and requires a release of home- and last leases could take 20 tons of ore free statute. Poe v. Ulrey, 233 Ill. 56, 84 NE 46.

52. An oil and gas lease granting the right to mine for oil and gas, so long as the same as the water is produced and royalties paid, but not binding the lessee to perform any obligation, is a mere option which the lessee does any thing to bind himself. Cortelyou v. Barns-dall, 236 Ill. 138, 86 NE 200. Revocation of such option by the lesser is withdrawn of an offen which the lessee had not accepted. Id.

01. Ulrey v. Poe, 134 Ill. App. 298.

01. See Contracts, 11 C. L. 729; Deed of Conveyance, 11 C. L. 1051, and like topics.

01. Lease and option construed and held the lessee had an option to purchase during the third year but was not bound to purchase during chase. Pollard v. Sayre \[Colo.\] 98 P 816.

Provision in oil and gas lease requiring completion of test well within specified time and well drilled to completion within 12 months or a certain rental paid held compiled with where well was drilled on adjoining land and gas struck but there was no market for the product, and, on failure to complete a well on the premises within the period prescribed, the lessee paid the rental stipated. Poe v. Ulrey, 233 Ill. 56, 84 NE 46. Lease by which lessee agreed to develop oil land for a certain royalty and subsequent modification thereof providing for limited operation of the only well on the premises because of low market and poor storage facilities con-strued and held the modification applied to entire property though referring to but one well, and lesser wasted her right to have a larger amount of oil produced. J. M. Guffey Petroleum Co. v. Jeff Chalson Townsite Co. \[Tex. Civ. App.\] 107 SV 609.

56. Oil and gas lease as construed by the parties held to show that it has been construed so as to entitle the lessee to 815 per year rental. Scott v. Lafayette Gas Co. \[Ind. App.\] 86 NE 495.

01. Mining lease giving the right to mine homestead and requires a release of home- and last leases could take 20 tons of ore free statute. Poe v. Ulrey, 233 Ill. 56, 84 NE 46.

01. An oil and gas lease granting the right to mine for oil and gas, so long as the same as the water is produced and royalties paid, but not binding the lessee to perform any obligation, is a mere option which the lessee does any thing to bind himself. Cortelyou v. Barns-dall, 236 Ill. 138, 86 NE 200. Revocation of such option by the lesser is withdrawn of an offen which the lessee had not accepted. Id.

01. Usev v. Poe, 134 Ill. App. 298.

01. See Contracts, 11 C. L. 729; Deed of Conveyance, 11 C. L. 1051, and like topics.

01. Lease and option construed and held the lessee had an option to purchase during the third year but was not bound to purchase during chase. Pollard v. Sayre \[Colo.\] 98 P 816.

Provision in oil and gas lease requiring completion of test well within specified time and well drilled to completion within 12 months or a certain rental paid held compiled with where well was drilled on adjoining land and gas struck but there was no market for the product, and, on failure to complete a well as are reasonably necessary to protect the on the premises within the period prescribed, the lessee paid the rental stipated. Poe v. Ulrey, 233 Ill. 56, 84 NE 46. Lease by which lessee agreed to develop oil land for a certain royalty and subsequent modification thereof providing for limited operation to the only well on the premises because of low market and poor storage facilities con-strued and held the modification applied to entire property though referring to but one well, and lesser wasted by a larger amount of oil produced. J. M. Guffey Petroleum Co. v. Jeff Chalson Townsite Co. \[Tex. Civ. App.\] 107 SV 609.

56. Oil and gas lease as construed by the parties held tioned." The false representations which will invalidate a lease must be as to a material matter " and must be relied upon." Nonpayment of the nominal consideration recited does not invalidate a lease." The fact that a lease absolves the lessee from liability does not render it void for want of mutuality."

_Bights, duties and liabilities of the parties_ 888 10 C. L. 847 are generally to be found in the terms of the lease " as construed." Where a lease gives the lessee a right to surrender at any time and avoid all subsequent liability, it cannot be specifically enforced." The damages for breach of a lease being necessarily uncertain, it is competent for the parties to fix a liquidated sum." Where a lease impliedly authorizes removal of buildings and improvements, but gives the lessor a lien thereon for royalty, such lien is the only interest the lessee has." A lease who holds proceeds of ore as trustee for the lessee cannot retain them as offset for breach of the lease."

ant. Zeigler v. Brenneman, 237 Ill. 15, 86 NE 111. 15, 86 NE 111.

12 Cur. Law. Mines and minerals SS 7.

The fact that an assignee of an oil lease knew that' it could not be assigned without the owner's consent does not render him a purchaser at his peril where the assignment contains a covenant of authority to sell.${}^{\\star}$ An assignee who takes the lease subject to all its conditions may be proceeded against directly by the lessor.${}^{\\star}$ The terms of payment for the sale of an interest in a lease are to be found in the contract of sale.${}^{\\star}$ An assignee of a prior lease cannot eject a subsequent lessee,${}^{\\star}$ and a lessee of one cotenant cannot maintain partition against a lessee of all the cotenants.${}^{\\star}$ Lessons are not necessary parties to a suit to partition rights of lessee.${}^{\\star}$

\_Bents and royalties.\_See 10 C. L. #47--Oil and gas leases generally condition the payment of rental or royalties on the production of minerals in paying quantities.${}^{\\star}$ The basis of production on which royalties are compared depends on the terms of the contract.${}^{\\star}$ A provision requiring development of the property or payment of rent does not require payment in advance.${}^{\\star}$ Where a lease provides for the payment of royalties on coal which passes through a certain mesh, the lessee is liable for the royalty though the coal is given a different name.${}^{\\star}$ The gas,pressure basis upon which one semi-annual instalment of rent is paid is presumed to continue until the next instalment falls due.${}^{\\star}$ A disclaimer by one co-owner of an interest in royalty advanced is not a disclaimer as to future royalties.${}^{\\star}$ The sufficiency of a complaint to recover rentals is governed by the general rules of pleadings.${}^{\\star}$

${}^{\\star}$ 74. Shannon v. Mastin \[Mo. App.\] 108 SW 1116.

${}^{\\star}$ 75. Under 'stipulation in assignment of lease that assignee took subject to all conditions therein, assignee took place of lease and lease could proceed against him directly for breach. McGoodwin v. Lustering Min.

as to quantity of coal mined held to sustain & Polishing Co., 38 Ky. L. 621, 110 SW 490.

${}^{\\star}$ 76. Contract by which leasease sold a two-thirdsa Interest in lease to be paid for out of "first net profits" means first excess of current receptions for are above current expenses.

Crocker v. Barteau, 212 Mo. 559, 110 SW 1062.

${}^{\\star}$ 77. Assignee of an oil and gas lease with the right to enter the premises and mine for oil and gas cannot eject the lessee on a subsequent lease. Gillespie v. Fulton Oil & Gas Co., 236 Ill. 188, 86 NE 219.

${}^{\\star}$ 78. Where one cotenant executed an oil and gas lease and thereafter all cotenants gave a like lease to a different person, neither leasese could maintain partition to secure his interest. Zeigler v. Brenneman, 237 ("rice" or "buckwheat" coal. GlICK v. Lehigh III. 15, 85 NE 597. Nor could either operate without consent of the other. Id.

79. Beardsley v. Kansas Natural Gas Co., \[Kan.\] 96 P 859.

01. In an oil and gas lease providing for a certain rental per well, if gas were found in sufficient quantities to market and be piped to market, gas is found in such quantities whenever it exists in wealth to such extent that considering opportunity to sell and cost and expense of selling it could be reasonably sold at a profit to the lessee and a charge to such effect is not bad as leaving out of consideration the required rental if the gas were marketed. Indians Natural Gas & Oil Co. v. Wilhelm \[Ind. App.\] 86 NE 86. In action for rentals under a gas lease providing for rent if gas were produced in sufficient quantities to make it marketable, where wells were in operation and producing oil in marketable quantities, the original cost of drilling was not to be considered in determining whether gas produced could be marketed profitably,

### 864 MINES AND MINERALS $ 7.

12 Cur. Law.

\_Forfeitures, rescission, cancellation and abandonment.\_See 10 C. L. 844.-Alease may be terminated by express surrender or by a surrender in law affected by abandonment by the lessee and resumption of possession by the lessor." Abandonment is the surrender or relinquishment of rights or property by one person to another, and includes both intention to abandon and the act of abandonment." While it it said that mining leases stand upon an entirely different basis from other contracts, and that the rule that forfeiture or abandonment is not looked upon with favor does not apply," yet equity will not cancel a lease for mere delay in paying rent or commutation money," nor for failure to commence operations within the time stipulated, if it appears that the lessee is ready and willing to perform those covenants," or when it appears that there is no market for the product; " and equity will relieve a lessee from a mere technical forfeiture, on his performance of all the covenants of the lease, where rights of third persons have not intervened." But where there is clear failure to perform the conditions, the rights of the lessee may be forfeited," or the lease may be considered as abandoned by him on his failure for a long period of time to prosecute work of development," and it may be canceled where minerals can stem 1.

87. Oil and gas lease. Sult v. Hochstetter 94. Under coal lease requiring operation Oil Co., 63 W. Va. 317, 61 SE 307. Surrender in law held shown where well was abandoned as exhausted and more than three days, held, where it remained idle for 10 months in one year and three or four months in another, it was forfeitable at option of owner. Cherokree Const. Co. v. Bishop \[Ark.J\]

112 SW 189. Where one agreed to transfer a mining lease and property to a company to be organized by another who promised to contribute a certain sum as capital after organization, the agreement being made for the purpose of raising working capital, the promise of the latter to contribute to the stock was a condition subsequent and failure to perform justified the former in resending the transfer. Schneider v. Miller, 113 NYS 399. Where in order to obtain money to conset to set aside the second lease and tender of asphalt land and his interest in the business to a company which was to be organized by another who agreed to contribute a cer-236 Ill. 188, 86 NE 219. Where lesser in oil and gas lease and gas lease when notified that rent had been left at a bank for him but refused to accept it on the ground that the lease was void, he waived any duty of the lessee to make a legal tender of the rent. Id.

91. Pheasant v. Hanna, 63 W. Va. 613, 60 SSE 618. Where lease in oil and gas lease executed June 1sth for five years served notice on September 15th of following year that he intended to comply with requirements to dig a test well within one year, and tendered the $100 rental required if no well was completed within one year. On September 15th no work had been done under a subsequent lease, but on October 14th when the lease went onto the land to drill he found a well in operation dug by a subsequent lessee.

Held his rights were not forfeited. Gillespie v. Fulton Oil & Gas Co., 236 Ill. 188, 86 NE 219.

92. Oil and gas lease will not be forfeited for breach of implied covenant to drill wells where there were no means by which the product of wells could be marketed. The remedy of the lessee is an action for damages. Poe v. Utrey, 233 Ill. 56, 84 NE 46.

01. Pheasant v. Hanna, 63 W. Va. 613, 60 SSE 618.

01. Under coal lease requiring operation Oil Co., 63 W. Va. 317, 61 SE 307. Surrender in law held shown where well was abandoned as exhausted and more than three days, held, where it remained idle for 10 months in one year and three or four months in another, it was forfeitable at option of owner. Cherokree Const. Co. v. Bishop \[Ark.J\]

112 SW 189. Where one agreed to transfer a mining lease and property to a company to be organized by another who promised to contribute a certain sum as capital after organization, the agreement being made for the purpose of raising working capital, the promise of the latter to contribute to the stock was a condition subsequent and failure to perform justified the former in resending the transfer. Schneider v. Miller, 113 NYS 399. Where in order to obtain money to continue business one agreed to convey a lease of asphalt land and his interest in the business to a company which was to be organized by another who agreed to contribute a cer-236 Ill. 188, 86 NE 219. Where lesser in oil and gas lease and gas lease when notified that rent had been left at a bank for him but refused to accept it on the ground that the lease was void, he waived any duty of the lessee to make a legal tender of the rent. Id.

91. Pheasant v. Hanna, 63 W. Va. 613, 60 SSE 618. Where lease in oil and gas lease executed June 1sth for five years served notice on September 15th of following year that he intended to comply with requirements to dig a test well within one year, and tendered the $100 rental required if no well was completed within one year. On September 15th no work had been done under a subsequent lease, but on October 14th when the lease went onto the land to drill he found a well in operation dug by a subsequent lessee.

Held his rights were not forfeited. Gillespie v. Fulton Oil & Gas Co., 236 Ill. 188, 86 NE 219.

be no longer produced in paying quantities." A lease will not be forfeited for reasons not stipulated as grounds for forfeiture," and grounds for forfeiture not stipulated will not be implied." In forfeiting a lease, forfeiture of other property of great value will not be required." Right of the leasor to forfeit may be waived.1

SS 8. Working contracts.2--See 10 C. L. 851.--The rights of parties to contracts for the development of lands rest in the terms of such contracts,2a and whether such contracts have been violated may be a question of fact." Under a contract allowing one to relinquish mining rights on 30 days' written notice the owner may waive such notice." Such a contract is not a grant or a lease, and all rights thereunder are extinguished by abandonment." Under a contract granting the right to take sufficient rock from a quarry to complete a certain dam, sufficient rock to complete the dam may be taken though it exceeds the estimated quantity."

SS 9. Mining partnerships and corporations." See 10 C. L. 851.--A mining partnership is not founded on the delectus personae of the members and the powers of the members are limited to such acts as are necessary to the transaction of its business."

{

tiles, and the leasee after drilling a well and | v. Fuller \[Ark.\] 113 SVW 1021. Complaint finding no oil removes his machinery and appliances and does nothing for 11 years, the gramting of another lease by the owner is a declaration that he regards the first lease as termlnated. Id. Under lease requiring leasee to commence operations within specified time or pay $10 per month rental, with option to at any time surrender, where he failed to commence operations and paid first month's rent, and then ceased to pay for two months, held time was the controlling factor and by failure to commence work or pay the rental a abandoned the lease. Id.

96. Oil lease properly canceled where it appeared that oil could be no longer produced in paying quantities. Dixie Development Co. v. Smith, 77 Kan. $32, 98 F 1132.

01. Oil and gas lease constured and held not to provide forfeiture for nonpayment of royalties. Davis v. Chautauqua Oil & Gas Co. \[Kan.\] 96 F 47.

01. Where oil and gas lease provided for forfeiture in case a test well was not completed by a certain date and also for a stipulated rental in such case, grounds of forfeiture not stipulated would not be implied as the ground stated would imply exclusion of all others and agreement for rental excluded a forfeiture not stipulated for. Poe v. Ulrey, 233 Ill. 56, 84 NE 46.

01. In forfeiting oil and gas lease for breach of conditions. Work v. Fidelity Oil & Gas Co. \[Kan.\] 98 P 801.

01. Where an assignment of a permit to drill an oil well is made at time when the owner has a right to but has not forfeited the permit, it cannot be said that the assignment is without consideration since the owner may waive the forfeiture. Shannon v. Maston \[Mdo.\] 108 SVW 1116.

01. Search Note: See Mines and Minerals. Cent. Dig. $213-215; Dec. Dig. $2-85, 109; 27 Cyc. 748-746.

2a. Under contract for drilling coal land for certain price per foot to a given depth if coal was not reached before, and for same price it it was necessary to go lower, contractor's right to recover was not dependent on striking ooal, payment having been made for work done as though striking coal was not a condition precedent. Western Fuel Co. 19 Curr. L.--55.

A mining partnership may exist, though all the partners may not have an interest in the property if they have an interest in the working of it,8 and it is not essential that there be an express agreement to become partners,9 or an express agreement to share in the profits and losses.10 The distinctions between a mining and a trading partnership are that a member of the former may assign his interest without the consent of his copartner,11 and neither the assignment of one partner's interest nor the death of a partner works a dissolution of the firm,12 and one member of the firm has not power to bind his associates to the same extent as in a trading partnership.13 Mining partners have a lien on the social property for advances or balances due them for payment of debts,14 but having divided the product by division orders, giving each his share, no such lien exists on the divided product but remains on the social property used in operating the mines.18 Claims discovered after dissolution of a partnership belong to the individuals making the discovery.16 The powers of directors of mining corporations are fixed by statute.17

SS 10. \_Public mining regulations.18 See 10 C. L. 852 In the exercise of the police power, laws may be enacted requiring precautions in hydraulic mining to prevent injury to others by the discharge of debris into navigable streams, and to ascertain the best means to be adapted to that end.184 But the law cannot declare that observance of such precautions shall exonerate the mine owner from liability for injuries to the property of third persons.19 In New York statutes have been enacted looking to the preservation of liquid minerals.20 Under a statute making it a crime for a miner 8. Bentley v. Brossard, 33 Utah, 396, 94 P 736. Written agreement between owner and another by the latter was to furnish labor and develop mines, profits to be divided and the latter to have a right to purchase an inter- 8. Bentley v. Brossard, 33 Utah, 396, 94 P 736. A mining partnership exists where several owners of a mine co-operate in working it. Walker v. Bruce \[Colo.\] 97 P 250. Where two parties obtained a lease of a mine and a bond for a conveyance and each paid one-half the consideration and agreed to work the property jointly and each bear one-half the expense, held equal partners. Id. Where stockholders of a mining corporation, after the treasury was depleted and stock solid, without formal action by the company put up operating expenses, held not to constitute a partnership, but voluntary loans to the corporation. Dodge v. Chambers, 43 Colo. 366, 96 P 178. 10. Such being an incident to the prosecution of the business. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 11. The assignee becomes a partner without the consent of the other partners. Bentley v. Brossard, 33 Utah, 386, 94 P 736. Contract between lessee of a mine and others by which the latter agreed to contribute certain sums of money to operate the mine held as between themselves to be an equitable assignment of part of the lessee's interest, and it was immaterial that his agreement with the owner prohibited assignment without notice. Id. 12. Bentley v. Brossard, 33 Utah, 396, 94 P 736. Whether retriing partner is liable for subsequent indebtedness depends on the facts. As to employees who do not know of the change he is liable for wages, but not it they have notice. Kelley v. McNNamee \[C. C. A.\] 164 F 369. 13. Bentley v. Brossard, 33 Utah, 396, 94 P 786. 12. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 14. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 15. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 16. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 17. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 18. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 19. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 19. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 14. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 15. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 16. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 17. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 18. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 19. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 14. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 19. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 14. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 15. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 16. Bentley v. Brossard, 33 Utah, 396, 94 P 736. 17 18 Cur. Law. MINES AND MINERALS SS 13. 867 to enter a mine against caution or disobey orders or do any other act endangering lives or health of persons in a mine, intent to endanger life or property is not an element.21 "Caution" as used in such statute means to give notice of or warn of or against danger.22

SS 11. \_Statutory Isens and charges.29--See 10 C. L. 852--As a general rule any labor expended in developing a mine is entitled to a lien thereon,28a and in Alaska such lien extends to the owner's interest where the work is done with his knowledge,24' and the court may allow an attorney's fee on foreclosure.25 In New Mexico the court determines upon what the lien attaches.24

SS 12. \_Mining torts.27--See 10 C. L. 852--A mine owner is liable in damages for injuries caused by removal of subjacent support,27a or for injuries to lower owners caused by discharge of tailings or debris into a stream.28 The measure of damages for removal of subjacent support is the depreciated value of the property,29 and for knowingly mining coal of another, the value of the coal at the mouth of the pit, less

hibbitting pumping of mineral waters from it did not err in holding that a mechanat's wells drilled into the rock, etc., is not so lien attached to a mine as well as a mill site clearly beyond the police power as to justify where both were inseparably connected. a federal court in enjoining its enforcement.

Klatshley v. Natural carbonic Gas Co., 162 F & Mill Co. (N. M.) 93 P 706.

954. Laws 1908, p. 1221, c. 429, 5, 1, is a valid

001. Search Note: See notes in 10 C. L. 852; exercise of the police power. Kathrum v. 2 Ann. Cas., 864; 16. 351; 8 Id. 43.

Natural Carbonic Gas Co., 112 NYS 374. Not void as depriving the owner of his property $ 136-141, 240-247; Dec. Dig. $ 50, 61, 118-without due process. Id. Nor as an unreasonable invasion of property rights. Id. Nor can be L. (2ed.) 782.

does it denry equal protection of the law. Id.

27a. Lytence that cracks and fissures, occuring in land when water in well disappear that life or property will be endangered, were caused by underlying coal mines is the pit of the offense. Koppala v. State \[Vyv.\] 93 P 662.

27a. Koppala v. State \[Vyv.\] 93 P 662.

Indictment under such statute alleging that a miner went into a specified mine entry in disobelence of the orders of the mining boss and thereby endangered lives of miners and machinery of a corporation held sufficient.

1d.

23. Search Note: See Mines and Minerals.

Cent. Dig. $ 23-239; Dec. Dig. $ 111-117; 27 Cyc. 769-783; 20 A. & E. Enc. L. (2ed.) 790.

23a. Work done in cleaning up and washing gold is "labor done on a mine" for which a lien may be had under Civ, Code Alaska,

$ 262. Cascaden v. Wimbish \[C. C. A.\] 161 F 241. Where men are hired to work at making improvements on a mine, one who devotes his time to cooking is entitled to a lien. Id.

24. Under Civ. Code Alaska, $ 262, 283, 265, the lien given extends to the owner's interest where work is done at the instance of a lessee with the owner's knowledge and he has made no disclaimer of liability. Cascaden v. Wimbish \[C. C. A.\] 161 F 241. In cult against owner to establish a lien for work done at instance of lessee, such lesseees are not necessary parties, and it was not an abuse of discretion for the court to refuse an amendment joining them when case was ready for trial and they had left the jurisdiction. Id.

01. Civ. Code Alaska, $ 270, authorizing court to allow attorney's fee in foreclosing a lien is valid. Cascaden v. Wimbish \[C. C. A.\] 161 F 241.

01. Under the statute of New Mexico making it the duty of the court to determine up-on what amount of land a lien attaches, held the cost of conveying there.40 An owner who has control of a mine and upon whom is imposed the duty of inspection and keeping it safe is liable to one who comes into the mine by invitation.41 The extent of the mine owner's duty relative to inspecting the mine for the benefit of licensees depends on the character of the work required.42

SS 13. \_Remedies and procedure peculiar to mining rights._88_ **See 10 C. L. 483.**

Pleadings in actions relative to mining rights must conform to the general rules,89a and are governed by the general rules of construction,94 and the general rules apply as to parties litigant.95 In a suit to quiet title to mineral rights, the complaint should show excuse for long delay in seeking relief.95 An owner of a gas well may maintain action against the owner of other wells in the same district for illegitimate waste, but not for exhaustion resulting from legitimate use of the gas.97 Equity may enjoin waste and irreparable injury at the suit of an assignee of an oil and gas lease against a subsequent adverse lessee,98 and may also enjoin the taking of coal from the land of another.98 Under the statutes of Alaska, a claim for damages for the unlawful detention of mining property does not affect the right to an injunction to preserve the property from further depletion pendente lite,40 and an application for such injunction need not show the defendants to be insolvent if the injury is irreparable.41 The scope of the restraining order rests in its terms.42 As a general rule mining property is not susceptible of partition in specie,94 but it may be so partitioned if

Footnote 89: Which is the cost of loading and haul-

ganized by another who was to contribute

ing the coal to the foot of the shaft, holating

capital to the company, the former could not

it to the top, and as between owner and

sue the latter on his failure to contribute

wrongdeer general expense of operating the

mine must be charged to mining and not

Sohnelder v. Miller, 113 NYS 399.

to transportation. McGuire v. Boyd Coal &

Soke Co., 236 Ill. 69, 86 NNE 174.

S1. Tennessee Coal, Iron & R. Co. v. Burgess \[Ala.\] 47 S 1029.

S2. Frequency of Inspection is generally

for the jury. Tennessee Coal, Iron & R. Co. v. Burgess \[Ala.\] 47 S 1028. In an action

for Injuries to a licensee caused by negligence in operating the mine, plea setting

up assumed risk held insulficient. Id. Plea

setting up operation by a third person held

insufficient, where it did not show that the owner had parted with control of the mine.

Id.

S3. Search Note: See Mines and Minerals,

Cent. Dig. **SS 87%-113**, 116-119, 132, 136-145;

Dec. Dig. **SS 83**, 41, 45, 46, 50-52; 27 Cya. 604-614, 622, 623, 630-670; 14 A. & El. Enc. P. & P. 16.

S3a. Allegation of breach of contract of

sale of mining claims binding the purchaser to prosecute development work differently

and to an extent consistent with good mining and within its resources, that he had

not prosecuted such work within his means

is, at best, a mere conclusion. Mallory v. Globe Boston Copper Min. Co. \[Ariz.\] 94 P

1116.

0001. Complaint to quiet title alleging that

plaintiff in fixing and marking his boundaries selected same monument that had been

fixed as corners by defendant and that

boundaries of two claims were identical, was

not an admission that defendant had marked

and the monumented his claim and did not

lify a prior allegation that defendant's claim

was never marked or monumented. Phillips

v. Smith \[Ariz.\] 96 P 91.

85. Where one agreed to transfer a mining

lease and property to a company to be or 12 Cur. Law. MISTAKE AND ACCIDENT SS 2. 869

practicable without great injury to the owners.44 In Alaska the mode of partition is prescribed by statute.45 A mining license cannot maintain action for unlawful detainer but may enjoin trespass upon his possession.46

Ministers of State; Minutes; Misjoinder, see latest topical index.

MISTAKE AND ACCIDENT.

# 1. Definition; Elements, seq.

# 2. Effect of Mistake and Relief Against, # 3. Procedure to Obtain Relief or Hake Defense, 877.

See.

_The scope of this topic_ is noted below.47

SS 1. _Definition; elements.48 See 10 C. L. 853_--Mistake has been defined as some intentional act, omission or error arising from unconsciousness, ignorance, forgetfulness, imposition or misplaced confidence.48a A. Accident is an unforeseen occurrence affecting a person injuriously and not due to his own negligence.49 Whether a case falls under the head of accident or mistake is of no practical importance since equity relieves from both.50

SS 2. _Effect of mistake and relief against.51_--Seo 10 C. L. 854\_--Where on account of mistake there is no meeting of the minds as to all the essential elements of a contract, there is no binding obligation.51a In case of mutual mistake, equitable relief is granted by rescission52 or reformation 53 and relief is usually allowed in case

44. Under Alaska Code p. 4, # 404, it must be so partitioned if possible without great prejudice to the owners. Manley v. Boone \[C. C. A.\] 159 F 63. Evidence sufficient to justify partition of unpatated milling claims or nonexistence of a fact past or present material to the contract. Kansas City Packing Box Co. v. Spies \[Tox. Civ. App.\] 100 SWP prescribing how partition shall be affected, the court may not make a division of the property except in the indirect mode of confirming the report of referees appointed to carry out the order of partition. Manley v. Boone \[C. C. A.\] 159 F 633. Personality connected with mining property cannot be subject of partition in action to partition each property unless it constitutes part of the reality and it is improper to appoint a receiver to take obarge of it. Id. \[A\] 46. Integrity Min. & Mill. Co. v. Moore, 130 Mc. App. 627, 109 SWP 1057.

01. It includes the constituents of mistake, its general effect on contracts, and the manner and sufficiency of proof. The remedies by way of cancellation (see Cancellation of \[T. C. L. 493\], or reformation \[T. C. L. 498\], the implied obligation to repay money \[T. C. L. 149\], the implied contracts, \[T. C. L. 1876\] are more fully treated elsewhere. It also excludes accident and surfures as ground for new trial (see New Trial \[T. C. L. 499\]). The related topic of Fraud and Undue Influence, 11 C. L. 1533, should also be consulted.

01. Search Note: See notes in 55 A. S. R. 496.

See, also, Cancellation of Instruments, Cont. Dig. # 1-48; Doc. Dig. # 1-48; Doc. Dig. # 1-31; 6 Cyc. 85-819; Equity, # 11-20; Doc. Dig. # 1-4; 16 Cyc. 84-75; Reformation of Instruments, Cont. Dig. # 1-116; Doc. Dig. # 1-29; Speedline Performance, Cont. Dig. # 11-116; Doc. Dig. # 1-29; Speedline Performance, Cont. Dig. # 155-159; Doc. Dig. # 155-159; Doc. Dig. # 155-159; Doc. Dig. # 1-29; Speedline Performance, Cont. Dig. # 155-159; Doc.

## 87c

MISTAKE and ACCIDENT $ 2.12 Cu. Law.

personal injury action when induced by mutual mistake of fact predicated on physical units.

either way. Isner v. Nydegger, 63 W. Va.

67: 60 SE 793. Where certain defendants can's medical opinion as to employer's condition. St. Louis, etc., R. Co. v. Hambright

person (party defendant), expecting to sell \[Ark.\] 113 SW 803. Equity will grant relief

against shelf's deed on ground of mistake,

senting tract, and plaintiff gave check to

preventing redemption from execution within

contractors to be delivered to third person

stutatory time. Tharp v. Kerr \[Iowa\] 119

on execution of bill of sale, which was ac-

NV 267.

complished, third person retaining his price

**Research allowed:** Where plaintiff paid

and giving conspirators balance, such third

certain amounts as alimony pending suit and

person was not liable to plaintiffs for money

In final settlement erroneously included in-

received as paid by mistake. Deering v.

terst upon amounts previously paid, such

interest recoverable. Hill v. Hill, 121 La.

fendant gave plaintiff option em land forget-

67%, 46 S 67. Mistake must be mutual one

ting previous conveyance of portion of same

of fact. Velsenfeils v. Cable, 208 Mo. 515,

tract to wife, defendant was not excused

106 SW 1028. Extrinsic evidence of mistake

from performance because of mutual

in aligning gunnarity held sufficient to support

take, such mistake on his own part and no

juddement for defendant. First Nat. Bank of

mistake as to Identify or existence of sub-

Redlands v. Bowers, 153 Cal. 95, 94 P 422.

Jet-matter of contract. Boydson v. Hill, 198

Where broker by mistake sold certain stock

Mass. 477, 85 NE 413. Where defendant

of name similar to that ordered to be sold,

gave option on land forgetting previous con-

and gave check for the higher priced stock,

be was entitled to have such check canceled.

of defendants' forgetfulness is no defense.

Thompson v. National Bank of Commerce,

Evidence of impaired memory properly ex-

132 Mo. App. 225, 110 SW 681. Where mort-

caded, there being no issue as to unsound-

gagor's grantee paid off mertgage under

ness of mind. Id. Where husband did not

mistaken belief that it was due and also paid

show that a mistaken belief by him that he

mortgage's attorneys fees, he could recover

would inherit certain property caused him

same, such claims being payable only in case

to make a certain settlement with his wife,

the mortgage was properly collected by suit.

Leksoy v. Collins \[Tex. Civ. App.\] 108 SW

by him on the ground of such mistake. Powe

79%. Evidence held to show mutual mistake

as to quality and value of land in Nebraska

dicient to show mutual mistake, only kind

to be given by plaintiff in exchange for lands

which would justify resignion of Insurance

in Iowa, entitling defendant to resoland. Mc-

policy. Fidelity & Causuality Co. v. Dierks

Donald v. Benge, 138 Iowa, 591, 116 NW 602.

Chancellor granted where grantor believed

55.

eouversance to be 50 acres when in fact 200

strument by mistake of draftsman, either as

len v. Tuckett \[Miss.\] 48 S 186. Where

to fact or law, does not fulfill the intention

fondant agreed to purchase certain land if

of the parties, equity will correct the mis-

plaintiff secured right of way for railroad to

take so as to produce a conformity with the

same and plaintiff secured right of way for

tram road immediately after which plaintiff

Eliastic Pulay Glacier Co., 34 Pa. Super. Ct.

aligned ded and secured one-half of purchase

631. More neglect or omission to read or

been obtained, on defendant then refruing to

pay balance of purchase price, or to condemn

before execution is not necessarily a bar to

for railroad, or to allow its name to be used

for such condemnation, equity would grant

proper if the instrument, through mistake,

the necessary relief. Norton from vorks v.

fails to accomplish the purpose intended.

Marcland \[Ky.\] 113 SW 481. Evidence con-

ficting but held to show mutual mistake in

sale at timber where cruiser erroneously

estimated amount at 300,000 feet but by mis-

faster amount included.

Smith \[N. J. Eq.\] 69 A 533; Coppes v. Keystone

Northarut v. Blumauer, 49 Vash. 588, 96 P

111%. Where vendor represented mime as

containing 50,000 tons of mineral and repre-

sentation based on report of expert inducing

purchaser after which mathematical error in

experts' calculation discovered, so that mine

only contained 5,000 tons, mistake was mutual,

until to be relieved from. Johnson

v. Vibters \[Cal. App.\] 88 P 42.

Rescalsion denied: Evidence insufficient to

show omission of parol stipulations * 12 Cur. Law. MISTAKE AND ACCIDENT $ 2. 871

of unilateral mistake \*4 induced by fraud. \[55\] A prerequisite is freedom from negli-

mation of deed conveying 11 feet of lot

where effect would be to allow insured to

when only 9 feet were intended. Clark v.

receive additional insurance and repudiate

Basso, 152 Michon. 674, 15 Det. Leg. N. 387,

bligation at his convenience. Fidelity &

116 NWP $31. Reformation of deed proper

Causality Co. v. Dierks Lumber & Coal Co.,

where containing different tract of land, if

183 Mo. App. 637, 114 SW 55.

transaction treated as mistake. Morgan v.

54. In case of unilateral mistake, remedy

Combbs, 32 Ky. L. R. 1205, 108 sW 272. Mod.

is by resdiscen. Chelsea Nat. Bank v. Smith

lifed for benefit of bona dide purchaser. Id.

183 Ky. L. R. 817, 111 SW 294. Where plain-

55. Resdiscusion Equity will not relieve ven-

iff entered into contract with receiver of

dor by quittalum deed because estate larger

railroad for delivery of eeson and railroad

than vendor supposed. Faxon v. Baldwin,

was later sold to defendant, evidence held to

136 Iowa, 519, 114 NWW 40. Where defendant

show mutual mistake of fact, parties belve-

with knowledge that certain person was en-

ing themselves to be acting under contract

titled to one-half of land but belvered her-

with receiver and deliveries consequently

self entitled to one-third, secured conveyance

made at inadequate price to defendant. Sloss

from such person based on her mistaken be-

Iron & Steel Co. v. South Carolina & G. R.

let, he was guilty of fraud and conveyance

Co., 162 F 42. Results of mutual mistake

of fact corrected, prices reformed, settle-

ments opened for that purpose and allow-

on misrepresentation unless put on inquiry,

ances made to party injured. Id.

Selby v. Watson, 137 Iowa, 97, 114 NWW 609.

**Reforration denied:** No mistake. Moran

Where oral agreement for purchase of cer-

Bolt & Nut Mfg. Co. v. St. Louis Car Co., 210

tain land and other land substituted in writ-

Mo. 715, 109 SW 47. Mistake as to reservation of land in deed not mutual and relief

lief on ground of mistake without proof of

dented. Hope v. Bourland \[OKL\]. 98 P 580.

knowledge on part of vendor in misrepresent

Where in answer to offer, grantor submitted

tation. Id. Where different land sub-

different deed and offer was accepted. Coppes

v. Keystone Paint & Miller Co., 36 Pa. Super.

ed to resdiscu value immarital. Id. Repre-

Ct. 88. Evidence insufficient to warrant

sentation of fact for purpose of declaring

ing that deed incorrectly described lines intended at execution and reformation dended.

nection with mistake to justify recession.

Happman v. McNael, 48 Wash. 527, 93 P 1076.

Johnson v. Vitherns \[Cal. App.\] 98 P 42.

Reformation of deed unnecessary when con-

retured to effectuate intention of parties and

case of unilateral mistake accompanied by

where words of limitation in habudum

fraud. Western Loan & Savings Co. v. Thil-

clause rather than premises were afterwards

bodeau \[C. C. A.\] 159 P 870; Chelsea Nat.

wrongfully clipped from deed, aiding es-

Bank v. Smith \[N. J. Eq.\] 69 A 533; Sykes v.

tablishment of intent. Condon v. Seerset \[N.\] 116 Ins. Co., 148 N. C. 13, 61 SE 610. Eviv-

C.J 62 SE 921. Evidence insufficient to show

dence held to show signing of lease by mis-

mutual mistake of terms of agreement as to

take and that defendant by silence secured

persons liable thereon. Smith v. Interior

terms less than those agreed upon. Chel-

Warehouse Co. \[Or.\] 95 F 499. No evidence

sea Nat. Bank v. Smith \[N. J. Eq.\] 69 A 533.

of mlstake in giving note for hariff's deed

Where person by mistake induced by

so as to entitle plaintiff to cancellation of

fendant's agent contracted for Insurance pol-

judgment on note and receoveyance. Miller v.

ly believing that they provided for life

Pratt, 33 Pa. Super. Ct. 547. Where there was

surance for term of years and subsequent

a mistake as to the meaning of the contents of

repayment of premiums with interest, where

a deed at the time of its signature but full

in fact no substantial benefits except in case

knowledge was had before acknowledgment,

of death, and contract carried out to extent

the acknowledgment related back to the

of furnishing insurance for stipulated term,

signing and rendered it as effectual as if

policy would be reformed and specifically

full knowledge were had at that time

### 873 MISTAKE AND ACCIDENT SS 2.

12 Cur. Law.

gence 54 and rescission is generally withheld where the parties cannot be placed in statu quo.57 Where a deed misnames a grantee, the error is not corrected by a subsequent deed to the supposed grantee 58 and a suit against the grantor's administrator which is not a proceeding in rem is also ineffectual.59 A mutual mistake in a deed may prevent a subsequent bona fide purchaser to oust the grantee.60 Where one obtains title to land by mistake, he may be treated in equity as a trustee of the legal title for the equitable owner, irrespective of whether the latter ever had the legal title.61 To bind a corporation by ratification of a preliminary agreement omitted by mutual mistake, the corporation must have full knowledge of the facts and that it would be bound by ratification.62 An administrator's suit for damages because of a sale of land by decedent at an inadequate price is defeated by showing a mistake in the deed preventing the passing of title,63 and a grantee in a deed has no standing in equity to have a deed corrected for mistake, though the consideration is paid where the grantor was of unsound mind.64 Relief may be barred by estoppel.65 For a mistake of law there is generally no relief,65 but there are exceptions as where

### 874 Ordinary diligence required. Galley v.

Party claiming equitable relief against shew-New Castle Elastic Pulp Plaster Co., 34 Pa.

17% deed on execution because of mistake Super. Ct. 533. No equitable elements of mligence requiring redemption must give prompt take when due to plaintiff's "neglect and oversight." Id. Evidence insufficient to warrant reformation of deed where answer denes omission, mistake ignored for several years and admitted by plaintiff to be due to carelessness. Id. Party refusing to read instrument, or who, being unable to read neglects to have instrument read or exigmented, faulty of negligence and unprotected. Coppes v. Keystone Paint & Filter Co., 36 Pa. Super. Ct. 38. Reformation of dead by striking building restriction denied where grantee accepted instrument without reading. Coppes v. Keystone Paint & Filter Co., 36 Pa. Super. Ct. 38: Kansas City Packing Box Co., v. Sples \[Tex. Civ. App.\] 109 SVN instrument with full knowledge or opportunity of ascertaining its contents cannot avoid for mistake, in the absence of fraud. No relief for mistake due to plaintiff's negligence, information being available and no fraud practiced. National Union Fire Ins. Co., V. John Spry Lumber Co., 235 Ill. 98, 85 NE 256. Must appear that mistake not due to negligence of plaintiff. Benting v. Bell, 137 Ill. App. 600. No reformation because of mistake where defendants signed contract without reading or having it read and were not misled as to contents. Weltner v. Thurmond \[Vyo.\] 98 P 550. Specific performance cannot be defeated where omission of terms due to negligence. Kraft v. Wassmer \[N. J. Eq.\] 71 A 404. Negligence will not har relief on the ground of mistake if the other party has not been prejudiced. Taylor V. Godfrey, 63 W. Va. 677, 69 SE 631.

57. Galley v. New Castle Elastic Pulp Plaster Co., 34 Pa. Super. Ct. 533. Relief where parties cannot be placed in statu quo, only granted where clearest and strongest equity imperately demands it. Id. No offer to place in statu quo. Hope v. Bourland \[Okl.\] 98 P 550. Under Rev. Civ. Code 3 2354, providing that reselsion cannot be adjudged for mistake unless defendant can be restored to substantially same condition as when contract was made, court may order return of cash value of horse which has been disposed of. Wolfinger v. Thomas \[S. D.\] 115 NVV 100.

19 Cur. Law. MISTAKE AND ACCIDENT SS 873

due influence not recoverable. Scott v. Ford

\[Or.\] 97 P 99. Voluntary payment with full

\[Fauat's Adm'x v. Birner, 30 Mo. 14, so far is

knowledge of facts cannot be recovered if

\[Jurisdictions hold exactly the reverse, giv-

transaction is unaffected by fraud, trust, cons-

\[In relief "where the law is confessedly

dence or like merely because payor is ignoror-

\[Johnforth and " " " \] ignorance may well

ant of legal rights. Thorsten v. Harper, 50

\[Or.\] 98 P 381. Bond to indemmity against

\[P.\] 982: Bligham, Eg. 5th ed., 275. Neither

mechanics's liens. Not rendered ineffectual

\[Michichione seems theoretically intelligible

because entered into by parties under mislake of law. R. Connor C. v. A. Lena

\[P.\] 983: Wmere relief

Norris v. Crowe, 206 Pa. 438, 55 A 1125, 98 Am. St. Rep. 783; Stafford v. Stafford, 1 De Gex. & J. 198, 202; Zollman v. Moore, 21 Grat.

\[Va.\] 313. If, on the other hand, the error is admitted, for arguments sake, as one of fact, the emptiness of the proposed criterion of unilateral error of law becomes manifest.

The reason for the failure of the tests thus for considered to explain the exercise of the relief of determines granted in cases of either type indicated, appears to lie in the assumption that for pure error of law of some sort or another, equity will interfere. The decided weight of authority, however, demonstrates that astute as Chancery is to furnish a remedy where there is error of law (Hemphill v. Moody, 64 Ala. 467), a mere naked error is not relievable (Midland, etc., R. Co. v. Johnson, 4 Jur. N. S. 643); but where relief is granted some other and special equity is also present as a controlling factor (Bank v. Daniel, 12 Pet. \[U. S.\] 32, 9 Law. Ed. 989; Hollingsworth v. Stone, 90 Ind. 244). Thus, any trace of constructive fraud, or of inequitable conduct, as where one party knew and took advantage of an error of law by the other which he did not correct (Haylund v. Willets, supra), will turn the scale. A fortiori, relief is justified by evidence of misrepresentation (The Chestnut-Hill etc. Co. v. Chase, 14 Conn. 123; Hardigree v. Mitchum, 51 Ala. 151), even though innocent (Wilson v. Maryland, etc., Co., 60 Md. 150), undine influence (Sanda v. Sands, 112 Ill. 225), surprise (Evans v. Llewellyn, 1 Cox Eq. Cas. 322), impossibility (Nelson v. Betts, 21 Mo. App. 219), misplaced confidence (Hall v. Otterson, 52 N. J. Eq. 522, 28 A 907), deception (Toland v. Coroy, supra), Ignornace of the facts (Lumber Exch. Bank v. Miller, 18 Miles. \[N. Y.\] 127, 40 NXS 1073), a fiducary relation (Luddington v. Patton, 111 Wks. 208, 88 NW 571), or gross disparity in position (Alabama, etc., Co. v. Jones, supra). A few jurisdictions add the further qualification that if a degree would result in an unconsionable advantage, the hardship plus the error suffices. Wilson v. Ott, 173 Pa. 253, 34 A 23, 51 Am. St. Rep. 767; Griswold v. Hazard (1830) 141 M. S. Rep. 260, 35 Law Ed. 678. Contra, Champin v. Layton, 18 Wend. \[N. Y.\] 407: Wood v. Vved, supra; Lancaster v. Flowers, 208 Pa. 199. The conclusion necessarily follows that the vast majority of decisions relied on to sustain the doctrine of remedy for unilateral error of law falls short of that position. Willard, Eq. Jur. (2d Ed.) 61. A recent Iowa decision is in full harmony with this theory. The plaintiff, though aware of the facts, was ignorant of the quantum of her interest, that is of her ante-cedent rights, the case falling accordingly within the first group above discussed, where relief for naked error of law is said to be allowed. It appeared, however, that although the defendant knew of the plaintiff's mistake, he made no endeavor to rectify it.

Resemission of a conveyance was, therefore, properly granted. Faxon v. Baldwin, 136 Iowa, 519, 114 NW 40. The error of law, combined with the constructive fraud of the defendant, made out a perfect case for equitable relief under the authorities.

Equitable jurisdiction of mutual error of law: Courts are in substantial accord upon two aspects of this subject. First, mutual

## 12 Cur. Law. MISTAKE AND ACCIDENT SS 2.

there is a total failure of consideration " in the case of payments to trustees in bankruptcy or other court officers,"8 and the doctrine has been held not to apply to mistakes of persons as to their own private legal rights,"9 such as a mistake as to ownership,"7 or a mistake in drawing a deed."11 Mistake of law as never a good foun * 876 **MISTAKE AND ACCIDENT $ 2.** , 18 Cur. Law.

dation for acquiring property.77 Money paid under mistake of fact may be recovered,78 unless the other party has so changed his position that a return would be unjust,74 where the facts are such that the payee in goodoscience should retain the sum,78 or the payment is deemed voluntary,78 or a rule of negotiable instruments is involved.77 An account stated may be impeached for mistake.78 A mistake of, fact resulting in the recovery of a judgment may be ground for the interposition of equity in setting aside such judgment.79

title, deed should be cancelled. Lewis v. Mote \[Iowa\] 119 N NVY 152.

71. Where parties in drawing deed to convey life estate placed words of limitation in handendum instead of premises under impression that place was immaterial, error was mistake of law which could be corrected to effectuate intention of parties. Condor v. Scerst \[N. C.\] 62 SE 921. Placing of words of limitation in deed in habendum clause rather than premises held mistake of law of service and parties, rather than mistake of fact of serverner. Id.

01. Doctrine of 10 year prescription inapplicable to acquire certain property which purchaser knew seller had no right to sell except in manner provided by law, and belief of purchase as to validity of title mis-take of law. Leury v. Mayer \[La.\] 47 S $ $3.

01. Scott v. Ford \[Or.\] 97 P $9; Thorsen v. Hooper, 50 Or. 497, $8 P $61. Though neg-ligently made. Trust Company of America.

01. Hamilton Bank, 137 App. Div. 515, 113 NYS 84; Moran v. Brown, 113 NYS 102$. In action to recover excessive commissions paid for selling reality under mistake as to customary commissions, evidence held to sus-tain finding that usual'rate was as claimed by plaintiff. Id. Where express messenger was thought to have lost package of money and father believing same lost paid amount, and subsequently it was discovered that package had been delivered to office, boy neglecting to receive receipt, and it appeared that same had been stolen by another employee, all employees being under bond, the sum paid by the father was recoverable as paid by mistake of fact. Lowe v. Wells Fargo & Co. Exp. \[Kan.\] 86 P 74. Where lost money rebald and company gave receipt agreeing to refund same, the receipt, if construed by acceptance as a contract, could be avoided by mistake of fact under which it was made. Lowe v. Wells Fargo & Co. Exp. \[Kan.\] 96 P 74. Where sheriff notified administrator that he had order from court ordering payment of judgment out of funds of estate, when in fact no such order had been made, and administrator paid claim on advice of his attorney who was, without his knowledge, acting for defendant. Thorsen v. Hooper, 50 Or. 497, $9 P $61. Payment was made on mistake of fact and was recoverable. Where plaintiff be-lieved deed of parents to be inforesable and paid $800 for relief from nonperformance, such sum was recoverable, deed being actually unenforceable and sum recoverable other by mistake or fraud.

01. Moran v. Brown, 113 NYS 1088.

01. Action equitable. Carpenter v. Southworth \[C. C. A.\] 165 F 428.

01. Payment of claim by admInitrator with full knowledge of all surrounding circumstances, including insolvency of estate, was mistake of law which could be corrected deemed voluntary and no recovery. Scott v. Morris, 131 Ill. App. 605. Plaintiff not voluonteer to preclude recovery where sum paid to release parents from conveyance under mistake of fact. Tucker v. Denton, 82 Ky. L. R. 521, 106 SWP 280.

01. Negotiable Instruments, 10 C. L. 962.

01. Projecting language of forceful ill of exchange not responsible. Trust Co. of America v. Hamilton

verable. Trust Co. of America v. Hamilton

Bank, 127 App. Div. 515, 113 NYS 84. Payment of note, held for collection, by mistake

78. Scott v. Ford \[Or.\] 97 P $9; Thorsen v. Hooper, 50 Or. 497, $8 P $61. Though neg-ligently made. Trust Company of America.

01. Boyce v. Walker, 114 NYS 166. Re-

01. Isf denied where account settled with knowli-edge of mistake as to weighing articles and no showing that plaintiff misled. Johnson v. Gallatin Valley Mill. Co. \[Mont.\] 98 P $88. Evidence held not to show grant de-livered as incorrectly weighed or that plaintiff was not credited with full amount de-livered so as to entitle plaintiff to correction of account stated. Id. In action to foreclose mortgage given in settlement of balance claimed by plaintiff as shown by an account stated, it was error to exclude evidence showing no consideration for mortgage, that account was erroneous in that more lum-ber had been furnished plaintiff than cred-lited, that no defective lumber was delivered, and that the mistake in the adequant was not discovered until after the settlement. Boyce v. Walker, 114 NYS 16.

01. Hill v. Helmberger, 235 Ill. 235, 85 NEP 804. Evidence led to show that defendant did not understand that summons was being read to him and that he was not legally served with summons authorizing setting aside of judgment. Id. Procedure lies out of funds of estate, when in fact no procedure direct attack. Engler v. Knob-pald claim on advice of his attorney who was, without his knowledge, acting for defendant. Th 12 Cur. Law. MISTAKE AND ACCIDENT SS 3. 877 SS 3. \_Procedure to obtain relief or make defense.\_80_See 10 C. L. 854--Equitable relief for mistake should be sought within a reasonable time after discovering the error.\_80a\_\_A \_A \_tender of the erroneous instrument as a prerequisite to the action,\_81 \_or a demand for reformation,\_82 \_is not always necessary. Mistake is not cognizable by the courts unless pleaded,\_83 \_but an amendment of a pleading of fraud to conform to the proof of mistake is proper.\_84 \_The pleading should contain the material allegations_85 \_in a direct and specific manner,\_86 \_avoiding conclusions.\_87 \_The petitioner has the burden of proving mistake_88 \_by clear and satisfactory evidence,\_89 _and a mere_ _independent_ _of_ _ded_ _when_ _ordinarily_ _conceded that_ _deforms_ _not_ _of_ _the_ _same_ _and_ _as_ _also_ _minor_ _unable to convey except through_ _representative_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_ _same_ _the_same_ _the_ _same_ _the_same_ _the_ _same_ _the_same_ _the_ _same_ _the_same_ _the_ _same_the_ _same_ _the_same_ _the_ _same_the_ _same_ \_the 878

MORTGAGES SS 1.12 Cur. Law. preponderance is not sufficient.90 But mistake may be proved by circumstances as well as direct proof,91 and competent evidence should not be excluded.92 The parol evidence rule does not exclude proof of that nature.94 Mistake may be a jury question.94

Mistrain1; Money Counts; Money Lent; Money Paid; Money Received; Monopolies; Mortality Tables, see latest topical Index. MORTGAGES.

81. Nature and Elements of Mortgages, S78.

01. General Requisites and Validity, S79.

01. Absolute Deed, S81.

01. Equitable Mortgages, S83.

01. Nature and Inclients of Trust Deceds as Mortgages, S83.

01. Construction and Effect of Mortgages in 13. Redempotu, S89.

01. Title and Rights of the Parties, S84.

01. Llen and Priorities, S86.

_The scope of this topic_ is noted below.91

SS 1. _Natureand elements of mortgages.96 See 10 C. L. S85--A mortgage 96a_ is a conveyance as security 97 for the payment of a debt 98 and defeasible by such pay-

New Castle Elastic Pulp Plaster Co., 34 Pa.

equity to correct and reform instrument. Super. Ct. 533. Account stated. Johnson v.

White Co. v. Carroll, 147 N. C. 330, 61 SE 196. Gallatin Valley Mill Co. \[Mont.\] 98 P 883.

Parol proof admissible. Sykes v. Life Ins. Mere conflict of testimony does not necessarily. Co., 148 N. C. 13, 61 SE 610. Paroil evidence table denial. Home & Farm Co. v. Freitas, admissible to correct judgment. Engler v. 153 Cal. 680, 96 P 308. Acreage as to which Knowblabugh, 131 Mo. App. 481, 110 SWV 16. court directed reformation in erroneous dead

94. Whether married woman thought eiglearly shown by pleadings and evidence.

l. Insmflcient evidence that after-acquired

not for land, a question for jury and instrucc-

goods were omitted in description of mortgages erroneously refused. Johnson Lumbor

age. White Co. v. Carroll, 147 N. C. 330, 61 SE 196. Very clear proof required in seeking to impeach justice's acknowledgment to

as an instrument and the substantive rights land contract in due form and supported by evidence. Johnson Lumbor Co. v. Leonard, 145 N. C. 13, 61 SE 196.

with theory of mistake. Welfare v. Thurmond \[Vy.\] 98 P 590. Evidence net clear and convincing to authorize reformation of

title, 10 C. L. 3015), the application of the contract for failing to limit time of continua

sante of provision entiling plaintiff to proceeds in excess of sale of land. Id. Evidence

involhentic to show contract with corpora-

tion conditional on organization. Kennedy v.

Fulton Mercantile Co., 83 Ky. L. R. 60, 108 SWV 948. Evidence insufficient where wlt-

increase refused to state positively that mistake

in contract occurred, and merely stated what he believed effect to be. Moran Bolt & Mut. Mffx. Co. v. St. Louis Car Co., 210 Mo. 715, 109 SWV 47.

90. Fosler v. Miller, 132 Ill. App. 464. Mistake as to extent of land in deed. Id.

01. Mistake in description of deed. Garard v. Weaver \[Ind. App.\] 84 NE 1092. Relleflef

when mistake proved or implied. Taylor v. Godfrey, 62 W. Va. 677, 59 SE 631.

92. Contradictory evidence showing no

mistake in signing dead and that plaintiff knew same to be for land rather than tim-

ber as contended, erroneously excluded. Johnson Lumbor Co. v. Leonard, 145 N. C. 339, 59 SE 134. Evidence to excuse laches proper.

Iznacka v. Wright \[Tex. Clv. App.\] 110 SWV

97. Evidence as to laches refused where action not barred. Id.

01. Oral evidence incompetent to contra-

dict or vary mortgage but competent in

97. Evidence showed only relation of ten ment.99 The mortgage is an incident to the debt \[1\] and is personal property.2 The reservation of a lien on the face of the deed or notes has the effect of a mortgage and makes the transaction executory.3 It is a maxim of law that an instrument once a mortgage is always a mortgage.4

SS 8. General requisites and validity.5 See 10 C. L. 856...The general requisites of deeds \[88\] and the operation of the statute of frauds \[6\] are elsewhere treated. An oral agreement to make a mortgage is at most in equity a verbal mortgage and void by statute.7 A mortgage stating the amount secured is valid though it does not describe the notes or state their several amounts.8

\_Property subject of mortgage.\_See 10 C. L. 856...As a general rule any property subject to sale or conveyance may also be mortgaged or conveyed in trust to secure a debt.9 Interests in expectancy may be mortgaged,10 in the absence of statute.11 Husband and wife may mortgage a homestead owned by them,12 and a married woman conforming to statute requirements has the right to make a mortgage of her real estate which is not held to her separate use though the debt secured is her husband's.13 Where a feme sole has made a deed of marriage settlement of her property to a trustee for her sole and separate use, her power of disposition is limited and if she and her husband seek to join in a mortgage of her property it is void if without the consent of the trustee and contrary to the trust deed.14

\_Description.\_See 10 C. L. 857...If there be that in the description of property conveyed which is false, without which the description would be sufficient to identify the subject-matter of the deed, the false part will be rejected and effect given to what remains.15

\_Consideration.\_See 10 C. L. 857...A mortgage must be supported by a consideration,16 although the consideration need not move from the payee of the mortgage

ant and landiord not mortgagor and mortgage. Lewis v. Cooley \[S. C.\] 62 SE 868.

68. A debt either pre-existing or created at the time or contracted to be created is an essential requisite to a mortgage. Weltner v. Thurmond \[WF0\]. 98 P 590; Thomas v. A. Bounv v. Robinson \[Tex. Civ. App.\] 107 Livingstone \[Ala.\] 46 S 851.

01. By the performance of the condition, the title of the mortgage is defeated and the mortgagor is in his former estate. Hayhurst v. Morin \[Me.\] 71 A 707.

01. Pettus v. Gault \[Conn.\] 71 A 509. Involidity of the mortgage does not affect the notes secured. Foddrell v. Dooley \[Ga.\] 63 SE 350.

01. Haines v. Perkins \[Mich.\] 15 Det. Leg. N. 1070, 119 N NVV 439. A note and mortgage are personal property in the hands of the transeree of the note and mortgage. Pettus v. Gault \[Conn.\] 71 A 509. A debt by a husband to his wife secured by a mortgage is a personal asset passing to the administrator upon wife's death. Sharpe v. Miller \[Ala.\] 47 S 701. Descends as personally up on death of mortgage. Strou v. Lord, 103 Me. 410, 69 A 694.

01. Notes recited, for purchase money of a livery stable, etc., with two lots of land, etc. Honaker v. Jones \[Tex.\] 113 SWV 748.

01. Jones v. Gillett \[Iowa\] 118 N NVV 314; Conover v. Palmer, 123 App. Div. 817, 108 NYS 480.

01. Search Note: See notes in 4 C. L. 679: 14.1, 683: 21. T. A. 347; 82. St. 134; 38. 305, 6 L. R. A. (N. S.) 834; 12 Id. 1190; 49 A. S. R. 207; 100 J. 610.

See, also, Mortgages, Cent. Dig. **SS 1-207**: Dec. Dig. **SS 1-36**: 37 Cyc, 557-1182, 1155-1161; 20 A. & E. Enc. L. (2ed.) 903.

5a. See Deceds of Conveyance, 11 C. L. 1051.

6. See Frands, Statute of, 11 C. L. 1609.

1. Williams v. Davis \[Ala.\] 45 S 808.

1. Paroil evidence admissible to identity notes. Dunn v. Burke, 139 Ill. App. 12.

1. Thummol \[WF0\]. 98 P 590; Thomas v. A. Bounv v. Robinson \[Tex. Civ. App.\] 107 Livingstone \[Ala.\] 46 S 851.

1. By the performance of the condition, the title of the mortgage is defeated and the mortgage is in his former estate. Hayhurst v. Morin \[Me.\] 71 A 707.

1. Pettus v. Gault \[Conn.\] 71 A 509. Involidity of the mortgage does not affect the notes secured. Foddrell 880 MORTGAGES SS 2.12 Cur. Law. debt to the mortgagor.\[17\] A mortgage given to secure a pre-existing debt of another is invalid unless supported by a new consideration,\[18\] but if the mortgage increases his risk in some manner, this will render the mortgage a purchaser for value.\[19\] Upon failure of consideration for a mortgage, the mortgagor is entitled to cancellation.\[20\] Failure or want of consideration as between the parties to a mortgage, cannot be set up as a defense by a purchaser of the lands subject to the mortgage, which is in fact pfrft of the consideration, whether he has expressly assumed the mortgage as part of the purchase money or not.\[11\] If there was an actual consideration, it need not be stated.\[22\] In New York the seal is only presumptive evidence of consideration, which may be rebutted.\[23\] The burden of proof is on the person seeking to recover payment made on mortgages on the ground of no consideration to show not only lack of consideration but also that payment was not made to a holder of the mortgages who was entitled to rely on them as an admission of indebtedness.\[24\] A mortgage given to secure a note procured by fraud is only valid to the amount of the note above the amount of damages sustained because of fraud.\[28\]

Execution.\[See 10 C. L. 857.\] The informality of a mortgage according to the requirements of statute will not invalidate it between parties in equity,\[26\] and mortgagor having accepted a mortgage ded not complying with statutory requirements is estopped to deny his obligation under the mortgage.\[27\] A mortgage by a married woman in which her husband did not join as grantor is void although signed and acknowledged by him.\[28\] Under the Code requirements for signatures of deeds by one unable to writ, it is not necessary to add the words "this mark" to a mark where a mortgage was executed under the mortgagor's direction and at his request.\[29\] Delivery once made is sufficient although the instrument is subsequently allowed to remain in the possession of the mortgagor.\[30\]

Page is an adequate consideration for an equitable mortgage on another tract. Richtagsg to secure the liability of a third party ardson v. Wren \[Arls.\] 95 P 124. Agreement to pay interest in advance quarterly and the implied consideration that the mortgages Bank v. Keller, 127 App. Div. 435, 111 NYS 129.

729.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
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001.
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001.
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001.
001.

12 Cur. Law. MORTGAGES $ 3. 881

_Recordation_ See 10 C. L.858 is not necessary as between the parties. \[31\] The effect of record as notice is elsewhere treated. \[32\]

SS 3. _Absolute dead_. \[33\] See 10 C. L. 858--A conveyance absolute in form will be deemed a mortgage if intent that it shall operate only as security appears \[88a\] either by a contemporaneous written defeasance \[34\] or by parol, \[35\] but in the latter case the proof must be by clear, positive and convincing evidence. \[88\] Some courts state that

\*\*Evidence insufficient. Thornton v. Pinck-NV 198; Evans v. Claridge, 187 Wis. 218, 118 and \[Ala.\] 47 S 289; Harrison v. Manry NW 803. 32. See Notice and Record of Title, 10 C. L. \[63\]; Graham v. Fischer \[Ky.\] 119 SV 386; 1015. 33. Search Note: See notes in 1 L. R. A. Evidence insufficient to show that the grant (N. S.) 405; 2 Id. 628; 5 Id. 387; 11 Id. 209, 825; 13 Id. 725. 34. 35. See, also, Mortgages, Cent. Dig. # 60-113; 10e. Ng 1023, Dec. Dig. # 31-39; 37 Cyc. 991-1033; 20 A. & E. E. Enc. L. \[26\] .935. 383. Conover v. Palmer, 123 App. Div. 817, 108 NYS 480; Thornton v. Pinckard (La.) 47 S 289; Viswell v. Simmons, 77 Kan. 629, 95 T. 407; Chesny v. Chesny, 83 Utah, 503, 94 P 89. Even where there is no personal obil-gation to repay, the mortgage looking sole-ly to his mortgage, the instrument will be deemed a mortgage if intended as security. \[13\] prove a decade about an intsafe to be a mortgage. \[13\] prove a decade about an intsafe to be a mortgage. \[14\] prove a decade about an intsafe to be a mortgage. \[15\] prove a decade about an intsafe to be a mortgage. \[16\] necessary funds to pay balance of price supporting that granters might remain there-multaneously. Calhoun v. Anderson \[Kan.\] 98 P 274. Qualitail decad and decad to re-convey bearing same date not to be held as mortgage but upon further showing of facts held a mortgage. \[17\] (Ark.) 114 SV 710; Kahn v. Meta (Ark.) Kan. 622, 95 P 407. 33. Equity intention of parties may be shown by parol. \[18\]. \[19\]. \[20\]. \[21\]. \[22\]. \[23\]. \[24\]. \[25\]. \[26\]. \[27\]. \[28\]. \[29\]. \[30\]. \[31\]. \[32\]. \[33\]. \[34\]. \[35\]. \[36\]. \[37\]. \[38\]. \[39\]. \[30\]. \[31\]. \[34\]. \[35\]. \[37\]. \[39\]. \[31\]. \[38\]. \[39\]. \[30\]. \[32\]. \[34\]. \[36\]. \[38\]. \[39\]. \[31\]. \[32\]. \[33\]. \[34\]. \[35\]. \[37\]. \[38\]. \[39\]. \[30\]. \[31\]. \[32\]. \[34\]. \[35\]. \[39\]. \[31\]. \[33\]. \[34\]. \[36\]. \[37\]. \[38\]. \[39\]. \[30\]. \[31\]. \[32\]. \[34\]. \[35\]. \[39\]. \[31\]. \[33\]. \[34\]. \[36\]. \[37\]. \[38\]. \[39\]. \[30\]. \[31\]. \[34\]. \[39\]. \[32\]. \[35\]. \[38\]. \[39\]. \[30\]. \[31\]. \[33\]. \[34\]. \[35\]. \[36\]. \[37\]. \[38\]. \[39\]. \[31\]. \[34\]. \[39\]. \[30\]. \[32\]. \[35\]. \[39\]. \[31\]. \[32\]. \[33\]. \[34\]. \[35\]. \[36\]. \[37\]. \[38\]. \[39\]. \[30\]. \[31\]. \[34\]. \[39\]. \[32\]. \[35\].

### 882 Mortagages $ 3.

12 Cur. Law. in case of doubt, whether an instrument is a deed or mortgage, it will be treated as a mortgage.\[47\] A continuing antecedent or contemporaneous liability is essential to the creation of a mortgage and is a test to determine whether a conveyance is a sale or mortgage.\[38\]

\_Mortgage or conditional sale.\_See 14 C. L. 859--A mortgage is distinguished from a conditional sale by the fact that a mortgage is a security while a conditional sale is a deed accompanied by an agreement to resell upon terms.\[39\] Intention furnishes the only true test to determine if a deed is a mortgage or conditional sale.\[40\] Where the instrument is intended as security for a debt and the relation of debtor and creditor exists between the parties, the legal inference is that a mortgage and not a conditional sale was intended,\[41\] some courts going so far as to hold that the instrument is conclusively presumed to be a mortgage and no stipulation of the parties can make it otherwise.\[42\] To avoid the harshness of a forfeiture for failure to comply strictly with the terms of a contract of conditional sale, the courts incline to treat such transaction as a mortgage, if justified by the evidence,\[43\] and in doubtful cases the court will construe as a mortgage.\[44\]

\_Rights of the parties.\_See 14 C. L. 860--If a mortgage is executed between the parties or their acts construed to constitute a mortgage, no agreement or stipulation between the parties can cut off the mortgagor's right of redemption, the rule being once a mortgage, always a mortgage.\[45\]

_The proceeding to establish a mortgage is equitable_ See 14 C. L. 860 and hence pe

son owning real estate conveyed a half interest to his father to secure a debt. Later both joined in a deed to A who agreed to transfer back to the son upon payment of a specified sum within a specified time, the son to remain in possession of the premises. The purpose of the transfer was to allow a creditor of the son to obtain possession without the expense of a foreclosure. Hold prior to the time for payment the title was in the son. People v. Andre \[Mich.\] 15 Del Leg. Neg. N. 503, 117 NW 85. Where defendant did at plaintiff'e request acquire title to land, paying therefor with the agreement that the amount paid should be considered as a loan to the plaintiff, the legal title being held by defendant as security, the plaintiff is entitled to redeem. Jones v. Gillett \[Iowa\] 118 NW 814. Where a deed of land is made and the transaction is called a loan of money and the grantor remains in possession and further ths grantee at one time offered a deed back upon payment of money, the transaction is a mortgage. Froidevaux v. Jordan \[W. Va.\] 62 SE 686. Where one loans money to another for the purchase of land taking title in his own name, he holds a double relation to the real purchaser, and he is trustee of the legal title and mortgage for the purchase money loaned. Hall v. O'Connell \[Or.\] 95 P 717. Evidences held to show a loan of purchase price secured by taking title. Id. 37. Duerden v. Solomon, 33 Utah, 468, 94 P 978; Elliott v. Bozorth \[Or.\] 97 P 632. 38. Where a note and mortgage deed were turned over to the grantor and no evidence of a continuing liability was given, transaction held not to be a mortgage. Rogers v. Burt \[Ala.\] 47 S 226. The existence and continuance of a debt is the final test. Rushton v. McIlvine \[Ark.\] 114 SW 709; Wiswell v. Simmons, 77 Kan. 622, 95 P 407. Evidence connecting loan with the transfer of land too vague. Bascombe v. Marshall, 113 NYS 981.

titioner must be willing to do equity." By statute in Pennsylvania unless the grantor requires a defeasance or reservation in his favor, no trust can be enforced."

SS 4. _Equitable mortgages._"88e10C. L. 882--It is a well settled principle of equity that where it is the clear intention of parties to give security for a debt, but there is a failure to carry out such intention in the contract, a court of equity will declare an equitable mortgage to exist and by its decree enforce the same as against such property in satisfaction of such debt."8a Thus an equitable mortgage arises where further credit is extended upon the promise to give a mortgage as security." Where security has been advanced but the intended mortgage fails of legal effect because of some defect, equity will impress upon the property intended to be mortgaged a lien in favor of the creditor advancing security."

SS 5. _Nature and incidents of trust deeds as mortgages._"51See10C.L. 882--A trust deed without any power in the trustees to sell in case of a default is under the South Dakota Code, a mortgage constituting only a line."52 The trustee of a trust deed made to secure notes may release the lien created thereby so as to revest title in the grantor even without the consent of the holder of the indebtedness which the trust deed was given to secure."83 In equity, however, an unauthorized release will have no effect upon the trust deed as between the original parties or as to subsequent parties with notice."

SS 6. _Construction and effect of mortgages in general._"85See10C.L. 882--The law of the state, where the mortgaged land is located, the parties reside, and the contract is to be performed, governs."84Paroil evidence is not admissible to vary the plain terms of a mortgage,"85 but is admissible to explain ambiguities,"86 or to show

46. The aid of equity cannot be invoked by a grantor claiming that an absolute grant was only a mortgage unless the grantor recognizes the indebtedness as an exicting llen on the land, though the debt is barred by the statute of limitations. Lake v. Weaver \[N. J. Eq. 70 A 81.

01. Mortgagor upon default of interest transferred to mortgage on the oral understanding that if mortgagor paid mortgage debt and Interest within a year mortgage would transfer back to mortgagor. Wingenroth v. Dellenbach, 219 Pa. 536, 69 A 84.

01. Search Note: See notes in C. L. 687;

16 L. R. A. (N. J.) 1006; A. S. R. 686.

See, also, Mortgages, Cent. Dig. # 43-113;

Dec. Dig. # 28-28; 27 Cyc. 976-1033; 11 A. &

D. Enc. L. (2ed.) 123.

48n. Edwards v. Scruggs \[Ala.\] 46 S 850.

Where one sold, assigned and transferred to another his right, title and interest in land, providing also that the grantor should have six months from a certain date to reimburse the grantee and in case of failure the title to become vested in the grantee, an equitable mortgage was created. Patrono v. Patrono, 127 App. Div. #9, 11NFS 268. In an action to enforce a lien against land purchased from defendant with money advanced by plaintiff under defendants' agreement to give plaintiff a mortgage, which he refused to do, plaintiff was entitled to judgment enforcing an equitable lien. Poole v. Tannis \[VW1a.\] 118 NFV 864. Evidence tended to show that in consideration of money advanced to a husband by a wife there was a verbal agreement to the effect that the land should etan as security for the eums advanced, thereby creating an equitable mortgage. Miller v.

Wroton \[S. C. J. 63 SE 62.

49. More goods furnished on promise to mortgage a certain tract of land. Richard-

01. Mortgage failed of legal effect because of obscurity in the name of the mortgage, Stark v. Kirkley, 129 Mo., App. 853, 108 SWV

01.

01. Search Note: See notes in 14 L. R. A. (N. S.) 678.

55; 10 L. R. A. (N. S.) 678.

See, also, Mortgages, Cent. Dig.; Dec. Dig.;

17 Cyc. 916-1867; 38 A. & E. Enc. L. (2ed.) 957.

757.

001. Driskill v. Rebbe \[S. D.\] 117 NWV 135.

001. Vogel v. Troy, 232 Ill. 481, 83 NE 960.

001. Vogel v. Troy, 232 Ill. 481, 83 NE 960.

001. Search Note: See notes in 4 C. L. 689;

001. R. A. (N. S.) 1036; 1079; 109 A. &. R. 510;

See, also, Mortgages, Cent. Dig. # 208-289;

Dec. Dig. # 97-144; 27 Cyc. 1041-1048, 1066-1077, 1133-1153; 20 A. & E.

that a ded absolute on its face is a mortgage.19 Contemporaneous agreements which are part of the same transaction may be read into the instrument.60

\_Property and interests conveyed.\_See 10 C. L. 863. The question of what property is covered depends on an interpretation of the terms of the mortgage.61 A mortgage on land ordinarily includes emblements and fixtures.62

\_Debt secured.\_See 10 C. L. 863. The debts secured by a particular mortgage are to be determined from its terms.63

SS 7. \_Title and rights of the parties.\_64 See 10 C. L. 863. The relation of mortgagor and mortgage is a trust relation.65 At common law the mortgage was regarded as being the legal owner.66 In equity, however, the rights of the mortgagee passed to his personal representatives, the mortgagor being regarded as the real owner.67 The equitable view granting the equity of redemption grew in favor and was vigorously invoked until finally courts of law came to recognize it,68 and it is now settled in most jurisdictions that the mortgagee has but a lien to secure his debt.69 In a few states, however, the common-law rule obtains.70 Where one takes

59. See ante, SS 3.

01. An agreement bearing same date and referred to in a mortgage whose performance should be credited to such former mortgage and that on payment by mortgage.

18.5 The aggregate of the mortgage is a part of the condition of the mortgage.

19.5 The aggregate of the mortgage is a part of the condition of the mortgage.

## 13 Cur. Law. Mortgages $ 7.

a mortgage upon premises without knowledge or notice of any infirmities in the decree granting the mortgagor title, the mortgage is a valid lien capable of being enforced.\[71\] A mortgage on real estate continues as a lien thereon for only ten years from the maturity of the debt.\[72\]

_Taxes._\[See 10-C. L. 864--A mortgagor cannot by neglecting to discharge taxes which he has covenanted to pay acquire title at a tax sale and set it up thereafter to defeat his mortgage.\[73\] The mortgage may pay taxes and have an additional lien therefor, although no provision as to taxes appears in the mortgage.\[74\] Prior to sale the mortgage may pay the taxes and thereby acquire by a species of sub-rogation a lien for the amount so paid which in respect of priority occupies the same position as the tax lien.\[75\] A grantee of real estate who pays a tax assessed against the interest of the mortgage cannot recover of the mortgage the sum so paid.\[76\]

_Insurance._\[See 10 C. L. 864--Mortgages usually provide that the mortgagor shall insure the premises in a company satisfactory to the mortgage,\[77\] and the mortgage is entitled to be allowed for necessary insurance taken out by him.\[78\] The mortgagor is usually entitled to settle the insurance loss.\[79\]

_Possession, rents and profits._\[See 10 C. L. 865--The mortgagor is entitled to possession until default,\[80\] and in most states until after foreclosure.\[81\] The surrender of possession to the mortgage by the mortgagor confers no title on the mortgage,\[82\] and his subsequent possession is in no sense in hostility to the title of mortgagor.\[83\] A mortgage carries with it in equity a right to accruing rents when there has been a default and the security is inadequate and the debtor insolvent.\[84\] When a mortgagor is allowed to remain in possession after default, he is entitled to the rents and profits,\[85\] but after demand by the mortgagee for possession or rents and profits then the mortgagee is entitled to the same,\[86\] and to an allowance for the enhanced value of the land owing to improvements.\[87\] In ejectment against a mortgage by the mortgagor, rents collected by the mortgage cannot be applied to the payment of the mortgage since such receipts are in the nature of equitable set-off to the amount due and must be settled on an accounting in equity.\[88\] In California a mortgage cannot maintain ejectem against a mortgagee in possession until the debt is paid.\[89\]

dead from mortgagee in possession and

gagor, but the preponderance of evidence in-hence took under color of title and where

diated that the amount allowed was reasonable for seven years acquired title by ad-

able and that the mortgagor did not make verse possession. Stewart V. Lowdermilk,

a bona fide effort to carry out the arbitration,

147 N. C. 583; 61 SE 523. Under Georgia

toe providing for decades to severe indel
The mortgagee in possession is under no obligation to make long term leases as his occupancy is contingent. \[90\] A mortgagee in possession under a deed of the equity of redemption from the mortgagor is not liable as mortgagee in possession to account to junior lien-holders for rents and profits received after the time he took possession under the deed. \[91\] A mortgagee in possession is generally entitled to be reimbursed by the holder of the equity for his reasonable expenses in preserving the property, \[92\] and to such reasonable outlays in making improvements as such holder approves and consents to, \[93\] and where possession is under agreement and the improvements are necessary to the judicious and proper management of the property, \[94\] but is not entitled to compensation for supervision of the property. \[95\] Under an absolute deed intended as a mortgage, the grantee is at law entitled to recover rents to the exclusion of the grantor. \[96\] Ordinarily in equity a mortgage in possession under a formal mortgage is bound to account for what he has, or without fraud or willful default might have received from the time of taking possession; \[97\] but where an absolute deed in fact a mortgage is given, the grantee is made the agent of the grantor, or mortgagor, for the collection of rents and is only chargeable for rents on the grounds as an agent would be. \[98\]

_Rights and liabilities of mortgagor's sureties_. See 10 C. L. \[96\]

S 8. _Lien and priorities_. \[90\] See 10 C. L. \[66\] The priority of liens is ordinarily governed by the dates of acquisition \[9\] in the absence of agreement \[2\] or estoppel \[3\] except as affected by the recording acts. \[9\] A mortgage being a legal contract, lien prevails, however, over an equitable lien prior in time. \[9\] As between a mortgage and a statutory lien, priority in time usually controls. \[9\] If the holder of a mortgage

90. Lessee offered to take a ten year lease on the basis of improvements not justified under a leasing from year to year. Eldredge

the subordination effective. Londner v. Perl-

v. Hoefer \[Or.\] 96 P 1105.

91. Anglo-California Bank v. Field \[Cal.\]

92 P 167.

93. Under the facts judgment creditors were

estopped to claim superiority to the mortgage. Smith v. Munger \[Miss.\] 47 S 676.

93, 94.95. Lynch v. Ryan, 137 WVis. 13, 118

1015.

96, 97. Griffen v. Cooper \[N. J. Eq.\] 68 A

1095.

0001. Where the grantor informed tenants

not to pay rents to grantee, he could not

hold the grantee responsible for rents. Griffen v. Cooper \[N. J. Eq.\] 68 A 1095.

99. Searne Notic: See notes in 15 L. R. A.

(N. S.) 590, 1025; 4 Ann. Cass. 316; 7 Id. 1065.

See, also, Mortgages, Cent. Dig. # 290-455;

Dec. Dig. # 145-186; 27 Cyc. 1161-1229; 20 A.

& E.Enc. L. (2ed.) 859, 1047; 23 Id. 467.

1. The first in time being the first in right.

Hughes v. Mt. Vernon Bank \[Ga. App.\] 60 SE 809.

2. Under the circumstances held a mortgage made under an agreement that it

should be subsequent and subordinate to advances made by A, under a mortgage to secure advances, was subordinate and A was entitled to the surplus after foreclosure of certain mortgages, Velleman v. Rohrig, 127 App. Div. 692, 111 NYS 736. Where one mortgage contained no reference to another executed simultaneously with it while the latter was expressly declared to be not only collateral to the bond secured but to the former mortgage, such former mortgage was the primary security. Abert v. Kornfeld, 128 App. Div. 547, 112 NYB 884. Where there was an agreement to subordinate the purchase money mortgage in case of a de take a new mortgage as a substitute without any knowledge of an intervening lion, equity will restore the lion of the first mortgage and give it its priority.' A purchase-money mortgage whether given back to the grantor or to a third party if all part of the one transaction excludes any claim or lion arising through the mortgagor.' In the absence of his pendens,' a mortgage taken pendente lite is superior to the judgment,10 and a fortiori as to a mortgage taken by one who knows that litigation is probable.11 A mortgage is a privy in estate with the mortgagor as to actions begun before the mortgage is executed, but he is not bound by the judgment against the mortgagor, in a suit begun after the mortgage is given.12 Whether a reserved right of a grantor to forfeit is superior to a mortgage by the grantee before forfeiture depends on the circumstances.13 A lion for taxes paid by the mortgage occupies in respect to priority the same position as the tax lein.14 A mortgage does not lose his lion by suing and recovering judgment or attaching property of the mortgagor in an action on the mortgage debt.15 The effect of a levy by a junior lion is to seize the equity of redemption only.16

SS 9. Assignments of mortgage.17_See 10 C. L. 868--The assignment of the mortgage debt carries with it the mortgage securing the same.18 Mortgages not being assignable in law but only in equity,19 the assignee takes subject to the same rights 20 and subject to the same defenses as between the original parties,21 unless the mortgage placed upon the premises while the |recklessly thereon, prior to a recording of work is going on. Facts did not postpone the lle on for material and labor to the lion of the Cootes, 128 App. Div. 381, 112 NYS 849. mortgage. Soule v. Borelli, 80 Conn. 352, 68 A 979. Where the owner of land deeded it to another taking a second mortgage back, payments were not made, and A took a mortgage from the mortgage took effect the tract, and B took an assignment of the notes mortgage exchanging rights in the property, the dead and second mortgage were not part of a single transaction rendering the mortgage to B, who was assignee of the de-sugar's seismic only instantaneous and preventing a mechanicaly's llem from attaching to the mortgage. Brown v. Taddock, 193 Mass. 480, 85 NE 572. 7. Issue of bonds defaulted a second issue put out to take their place. Bondholders making the exchange protected against an intervening attachment creditor. Giffm w. International Trust Co. (C. C. A.) 161 F 48. 161 F 48. 161 F 48. 161 F 48. 161 F 48. 162 F 48. 163 F 48. 164 F 49. 165 F 586-710; The failure of a mortgage of property in Alaska to ascertain the fact of an attachment lle on an attachment lle on the first mortgage a renewal mortgage was not such laches as to bar it from the right to relief by a reinstatement of the original mortgage as against such lle on where no prejudice resulted to the holder. Id. 166 A 9. 167 A 9. 168 A 9. 169 A 9. 160 A 9. 161 F 48. 162 F 48. 163 F 48. 164 F 50. 165 F 51. 166 A 9. 166 A 9. 167 A 9. 168 A 9. 169 A 9. 160 A 9. 161 F 9. 161 F 9. 162 F 9. 163 F 9. 164 F 9. 165 F 9. 166 A 9. 166 A 9. 167 A 9. 168 A 9. 169 A 9. 160 A 9. 161 F 9. 161 F 9. 162 F 9. 163 F 9. 164 F 9. 165 F 9. 166 A 9. 167 A 9. 168 A 9. 169 A 9. 160 A 9. 161 F 9. 161 F 9. 169 A 9. 161 F 9. 160 A 9. 161 F 9. 162 F 9. 163 F 9. 164 F 9. 165 F 9. 166 A 9. 167 A 9. 168 A 9. 169 A 9. 169 A 9.

gabor is estopped to assert such defense.\[22\] A mortgagee by quit-claiming his interest in land thereby assigns a mortgage thereon to the grantee.\[23\] The assignee of a mortgage for collateral security is a joint owner with the mortgage in equity.\[24\] There is an implied warranty by the assignor to his assignee of the validity of the mortgage,\[25\] despite the fact that the mortgage and note are assigned "without recourse."\[26\] An assignment must describe the mortgage with certainty.\[27\]

SS 10. _Transfer of title of mortgagor and assumption of the debt.\[28\] See 10 C. L._"In some states it is held that when a purchaser with notice of the mortgage acquires an interest in mortgaged property he succeeds to the estate and occupies the position of his grantor,\[28\] and in others that there must be a distinct assumption\[29\] for a consideration,\[30\] and that the mere taking of title by a ded stating that the land is subject to a mortgage does not import a promise to pay on the part of the purchaser.\[31\] One who assumes a mortgage in his ded and goes into possession is under some decisions primarily liable, the grantor becoming his surety,\[32\] and the land being the primary fund out of which payment is to be made,\[43\] and the mortgagor being abrogated to the rights of the mortgage upon payment of the debt,\[34\] while according to others the purchase money reserved by the grantee is the primary fund.\[36\] A valid agreement between the mortgage and the purchaser of the equity to extend the time of payment operates to release the mortgagor only so far as no better position than the mortgage. Bar-

son v. Mulligan, 191 N. Y. 306, 84 NE 75.

zz, Oral statement of mortgagor at time of assignment that he had no defense held

estoppel. Nixon v. Haslett (N. J. Eq. 70 A 87.

87.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.

the security falls short of the indebtedness by reason of such extension.\[96\] If the grantor of mortgaged land is personally liable to pay the debt, the mortgagee or his grantee may maintain an action against the assuming grantee,\[97\] but when the immediate grantor is not liable, and owes no duty or obligation to the owner of the mortgage in respect to the subject-matter, no cause of action arises in favor of the owner of the mortgage.\[88\] One who has assumed and agreed to pay a mortgage incumbrance is estopped to deny the validity of the same,\[98\] but where the grantee takes subject to incumbrances, he is not bound to pay a mortgage thereon which did not constitute part of the consideration of his purchase and which was not made in good faith for a real indebtedness.\[40\] A parol agreement by a grantee at the time of transfer to assume an outstanding mortgage as part of the consideration may be enforced in equity.\[41\] Though the assumption of a mortgage debt by a subsequent purchaser is absolute and unqualified in the deed of conveyance to him, it will be controlled by a collateral contract between him and the grantor not embodied in the original deed and the mortgage cannot enforce the contract of assumption appearing in the deed unless the grantor could.\[42\] Mortgage is an incident to the debt and a grantee taking subject to the mortgage is bound by and may take advantage of prior arrangements as to the debt, but, if the agreement is subsequent, the grantee is bound only by the contract existing at time of purchase.\[43\] A provision in a deed whereby a grantee assumes and agrees to pay an existing mortgage does not create a covenant which runs with the land, although inserted in connection with the covenants of seisin and against incumbrances.\[44\] Where a third party never knew of a mortgage on land transferred to him and the mortgage subsequently discharged the mortgage and declared the third party's title good, he is not liable to the mortgage.\[45\] Where a mortgage note is secured by personalty and realty both and a grantee takes the realty agreeing as part consideration to pay the mortgage note but the same is later satisfied out of the personal property, the mortgage on the reality is discharged and it is immaterial that he has procured the land without payment of the purchase price.\[46\] A mere purchaser of the equity of re-demption of mortgaged lands is given all the protection designed by the Nebraska statute if he is permitted to deal safely with one who appears by the record to be the owner of the mortgage securing a non-negotiable debt.\[47\] The acquiring of a 36. North End Sav. Bank v. Snow, 197 Mass. 339, 83 NE 1099. 37. Clement v. Willett, 105 Minn. 267, 117 NW 491. The mortgage may sue the grantee, covenantor, who has assumed the mortgage on granted premises. Curv v. La Fon, 133 Mo. App. 163, 118 SW 246. 38. Clement v. Willett, 105 Minn. 267, 117 NW 491. A grantee of mortgaged premises whose deed recites that the land is conveyed subject to a mortgage which grantee assumes and agrees to pay as part consideration is not liable for a deficiency on foreclosure in case the grantor was not personally liable for payment of the mortgage. Bonhoff v. Wiehorst, 57 Misc. 456, 108 XYS 437; Clement v. Willett, 105 Minn. 267, 117 NW 491, citing Marble Sav. Bank v. Mesarvey, 101 Iowa, 285, 107 NW 198. 38. Sherman v. Goodwin \[Ariz.\] 95 P 121. One who assumes a mortgage by covenant in the deed of transfer as part of the purchase price cannot defend against the mortgage debt on the ground that it is without consideration (Curry v. La Fon, 133 Mo. App. 163, 113 SWV 246), or invalid for any other reason (Id.).\[40\] Sherman v. Goodwin \[Ariz.\] 95 P 121. 41. It does not come within the statute of frauds for the debt becomes his own debt.\[41\] The mortgage may sue the grantee, covenantor, who has assumed the mortgage on granted premises. Curv v. La Fon, 133 Mo. App. 163, 118 SWV 246. 38. Clement v. Willett, 105 Minn. 267, 117 NW 491. A grantee of mortgaged premises whose deed recites that the land is conveyed subject to a mortgage which grantee assumes and agrees to pay as part consideration is not liable for a deficiency on foreclosure in case the grantor was not personally liable for payment of the mortgage.\[42\] A. Klemmer v. Kerns \[N. J. Err. & App.\] 71 A 33. Agreement for extension of time of payment. Kelssey v. Collins \[Tex. Civ. App.\] 108 SWV 793. 44. Clement v. Willett, 105 Minn. 267, 117 NW 491. 45. Messmore v. Maerz, 149 Mich. 381, 14 Det. Leg. N. 488, 112 NW 980. 46. Priddy v. Miner's & Merchants' Bank, 132 Mo. App. 279, 111 SWV 865. 47. Bettie v. Tiedgen, 77 Neb. 795, 116 NW 959. 48. 49. 50. 51.

tax title by one contemplating the purchase of mortgaged land does not, upon purchase of the land subject to incumbrances, wipe out the mortgage.48

SS 11. _Transfer of premises to mortgage and merger.48_See 10 C. L. 868_--A mortgagor may sell his equity of redemption to the mortgage,50 but the transaction is viewed with distrust and must be free from fraud or inadequacy of consideration.51 But such a transfer the equity ordinarily merges with legal title and the lion is extinguished.52 Merger is essentially a matter of intention,53 and where it is the intent of the parties and justice requires that the interest be kept separate, equity will prevent a merger.54 The purchase of the land by a junior mortgage merges his lion in the superior title,55 but whenever an advantage could accrue to the mortgage by preserving his lion for the purpose of using it as a screen to protect him from an intermediate title, such as a junior mortgage or other subsequent lion, the purchaser is entitled to keep his lion alive for such purpose.50

SS 12. _Renewal, payment, release, or satisfaction.57_--See 10 C. L. 860\_--The question as to what constitutes such a default of payment as will warrant foreclosure is elsewhere treated.58 After a mortgage has become extinct, it may be revived,59 but after actual extinguishment of the debt, the mortgage cannot be revived by an oral agreement to keep it in force to secure a new and independent debt.50 The revival

48. State Mut. Bldg. & Loan Ass'n v. Mill-

(tion of merger is governed by the intention ville Imp. Co. \[N. J. Eq.\] 70 A 300.

(of the parties where the owner of fee pays 49. Search Note: See notes in 6 C. L. 698; 23 L. R. A. 120; 58 Id. 785; 14 L. R. A. (N. 3). 479; 93 A. S. R. 160; 3 Ann. Can. 396. See, also, Mortgages, Cent. Dig. $ 806-

835; Dec. Dig. $ 293-297; 27 Cyc. 1373-1386; 20 A. & B. Enc. L. (ed.) 1050.

50. Thornton v. Pinckard \[Ala.\] 47 S 289.

01. Thornton v. Pinckard \[Ala.\] 47 S 289.

Any subsequent arrangement by which the mortgagor's equity of redemption is sought to be transferred to the mortgage will be viewed wth dstrust and their original relation continued unless it appears that such arrangement was perfectly flat to the debtor and no advantage was taken of him because of his indebtedness. Gassert V. Strong \[Monl.\] 98 P 497. Payment of ee much of the debt as was secured by the mortgage is a good consideration for the surrender of complaint's equity of redemption. Sears v. Gliman, 199 Mass. 384, $ 85 NE 466.

52. When the holder of a mortgage subsequently acquires the property upon which it rests, the lion is thereby extinguished. Kline v. Miller's Adm'r, 107 Va. 453, 59 SE 386. Under ordinary circumstances, the mortgage interest is merged in the free where the mortgage acquires the estate of the mortgagor. Anglo-Californian Bank v. Field \[Cal.\] 98 P 287. One of the conditions under which merger will operate upon estates is that the two estates, the greater and the lesser, are In the same person at the same time (Shreve v. Harvey \[N. J. Eq.\] 70 A 671), without an intervening right operating to prevent a merger (Curry v. La Fon, 133 Mo. App. 163, 113 SW 246). A and B held the equity, the land was incumbered by a mortgage deed of trust by which the legal title was invested in S, hence his title intervened to prevent a merger of estates in A by virtue of his holding the notes given by him. Id.

01. Facts did not show merger. Sheve v. Harvey \[N. J. Eq.\] 70 A 671. The quests of the mortgage are the only one that is not expressly available.

01. Agreement between A and B that B should hold in property for A's benefit at foreclosure did not cut off A's second mortar. Behrend v. Burns, 134 Wis. 479, 115 NW 146. Where the mortgagor's interest is transferred to the mortgage and there is an agreement that the two interests shall not merge, the effect is to make the land a primary fund for the debt as between the parties. Engan v. Ehremann, 115 App. Div. 743. 110 NYS 366. No merger under the facts. Shreve v. Harvey \[N. J. Eq.\] 70 A 671. Where there is an intervening lfen on the property which it is to the interest of the purchaser to keep alive and where it does not expressly appear as the intention to extinguish the first mortgage and hold subject only to the second. Anglo-California Bank v. Flet \[Cal.\] 98 P 267. The legal title and first mortgage lfen will be considered as separate interests whenever necessary for the protection of the rights of the purchaser (Id.), If the court finds it to the interest of the mortgage that a merger should not occur, it will keep both alive (Kline v. Miller's Adm'r, 107 Va. 453, 59 SE 386).

of the debt by the stopping of the statute of limitations revives a mortgage given to secure its payment.\[41\] Payment may be made by a substituted note and mortgage.\[42\] Payment may be showi by proof of facts and circumstances relating to the dealing with the property by the parties.\[83\] The mere fact of possession of the mortgage deed by the mortgagor does not show a presumption of payment,\[64\] but production by the mortgagor of the mortgage note does \[65\] although it is not conclusive,\[66\] nor is the possession of the note by the mortgagor conclusive of payment.\[67\] Evidence of an oral agreement cancelling a mortgage must be clear and convincing.\[68\] Where the party whose duty it is to pay a mortgage and cancel it makes such payment, any writing given is a release even though it purport to be an assignment.\[69\] No mere change in the form of indebtedness without actual payment is deemed sufficient to entitle mortgagor to a release.\[70\] The laws favor settlements and courts will not disturb them except for cogent reason.\[71\] Where a mortgagor without notice of an assignment by the mortgage of his interest makes payments to the mortgage, he is entitled to credit therefor,\[72\] but not where an assignment to a third party has been duly recorded and the original mortgage fails to pay over such money to the record holder.\[73\] Where a mortgage in the form of an absolute deed with a separate bond of defeasance is sought to be made an absolute deed, this can be done by a cancellation of the bond.\[74\] Tender to discharge a mortgage must be of the exact amount due.\[75\] If the mortgage having notice of successive alienation of parts of the premises releases a part primarily liable for the debt, the remaining parts cannot be charged with it without first deducting the value of the part released;\[76\] if the value of the part released equals the entire debt, then all subsequent parcels are entirely released.\[77\] When money is paid to release the mortgage lien from a part of the premises, which part is conveyed in fee to a purchaser, the law applies the papers at death. Clymer v. Groff, 220 Pa. 580, 69 A 1119. 65, Clymer v. Groff, 220 Pa. 580, 69 A 1119. 66, Evidence held sufficient to show payment where mortgage still held note. Parsons v. Ramsey (Fla.) 45 S 991; Clymer v. Groff, 220 Pa. 580, 69 A 1119. 67, Evidence showed purchase of notes by mortgagor's widow and not payment by her, Morrison v. Roehf \[Mo.\] 114 SV 981. 68, Hungerford v. Snow, 114 NYS 127. 69, Mortgage debt paid by A who had an assignment made out to his children which was transferred later to plaintt who sought to foreclose. Lydon v. Campbell, 198 Mass. 29, 84 NB 305. 70, Hayhurst v. Morin \[Me.\] 71 A 707. The mortgage is not discharged by a change in the form of indebtedness. Indorser of a note who is secured by a mortgage in horses a renewal note for the same debt or part thereof and is compelled to pay the renewal note. He is protected by the mortgage. Griest v. Gowdy \[Conn.\] 71 A 556. 71. Kahn v. Metz \[Lark.\] 114 SV 911. 72. People's Trust Co. v. Gomollka, 113 NYS 49; Bensley v. Bartholf, 137 Til. App. 420. 73, Bettle v. Tiedgen, 77 Neb. 795, 116 NYW 955. 74, Sears v. Gulman, 199 Mass. 384, 85 NB 468. 75, Kingsley v. Anderson, 103 Minn. 510, 115 NYW 642. 76,77. Schaad v. Robinson \[Wash.\] 97 R 104. 78,79. 70,79. 71,79. 72,79. 73,79. 74,79. 75,79. 76,79. 77,79. 78,79. 79. 78,79. 79. 70,79. 71,79. 72,79. 74,79. 75,79. 76,79. 77,79. 78,79. 79. 79. 78,79. 79.

payment in the absence of agreement to the reduction of the mortgage debt pro tanto.\[78\] Where under a deed absolute in form there exists an equity in parol, this equity may be discharged by a subsequent parol agreement leaving the title absolute in accordance with the terms of the deed.\[79\] By statute in California the lien of a recorded mortgage may be satisfied by an indorsement upon the margin of the record.\[80\]

_Penalties for failure to release.\[81\]_ See 10 C. L. 871

SS 13. _Redemption.\[81\]_ See 10 C. L. 871\_ .This section treats only of redemption from the mortgage as distinct from redemption from foreclosure.\[82\] The maxim being "once a mortgage always a mortgage" the right of redemption is not cut off by a contemporaneous limitation therein,\[83\] nor by continued default in payments,\[84\] nor by mere expiration of the time for redemption.\[85\] To entitle a judgment creditor to redem mortgaged land, it must appear that he has a lien upon the land described in the bill.\[86\] In redemption proceedings the maxim, he who seeks equity must do equity, applies.\[87\] In an action to redeem where the mortgage has been in possession, there may be an accounting.\[88\] As a general rule in an action against a mortgage in possession to redeem and for an accounting the defendant should recover costs despite the fact that the plaintiff prevails,\[89\] but if the defendant is at fault, rendering expensive litigation necessary to establish plaintiff's right to redeem, the

85. Rion v. Reeves \[La.\] 48 S 138.

ville Imp. Co. \[N. J. Eq.1 70 A 300.

79. Sears v. Gilman, 199 Mass. 384, 85 NE

01.

01. Roberts v. True, 7 Cal. App. 379, 94 P

01.

01. Potter v. Schaffer, 209 Mo. 586, 108 SW

01. If a mortgagor for a new consideration makes an oral agreement that the mortgage shall be continued as security for the new loan and advances are made on the faith thereof, equity will refuse to relieve the mortgago from such agreement in a bull to redeem on the principle of he who seeks equity must do equity. Hayhurst v. Morin \[Me.\] 71 A 707. Such an oral agreement could not be set up against a subsequent mortgage or attaching creditor, nor could it be invoked against the mortgago from himself or his assignee in an action at law by the mortgago to foreclose the mortgago. Id. Mortgag cannot be compelled to rely upon a portion of the mortgaged premises, although ample as security, and hence he is entitled to hold a homestead interest until the entire premises are redeemed. Davis v. Davis \[Vt.\] 69 A 876. In an action to redeem after foreclosure proceedings begun, evidence sufficient to show a tender of interest and expenses of foreclosure proceedings to date. Potter v. Schaffer, 209 Mo. 586, 108 SW 60. An agreement by a mortgago that a mortgage shall stand as against future advances is binding, and equity will not allow redemption after such advances until performance of such agreement made originally to secure a simple money bond made later a security for payment of a loan from and for interest, dues, premiums and fines due to a loan association. State Mut. Bldg. & Loan Ass'n v. Millville Imp. Co. \[N. J. Eq.\] 70 A 300.

01. Lynch v. Ryan, 137 Vbis. 13, 118 NWV

01. Lynch v. Ryan, 137 Vbis. 13, 118 NWV

01. But see Griffin V. Cooper \[N. J. Eq.\] 68 A 1095.

18 Cur. Law. MOTIONS AND ORDERS $ 1. 893 plaintiff may in the court's discretion be allowed costs. \[90\] On redemption by a judgment creditor the title still remains in the mortgagors as owners. \[91\] A mortag-gee seeking to set aside a redemption must tender back the sum paid to redeem. \[92\]

SS 14. _Subrogation._\[98\] See 10 C. L. 872--Subrogation is allowed to enable one secondarily liable who has paid the debt to gain the benefit of the mortgage security. \[94\]

_Second mortgagor_ is subrogated to the rights of the first mortgagor upon payment to him of the amount due. \[95\] It is essential that the payor be under some obligation to pay the debt or have some interest to protect by the payment, \[96\] and an oral promise of the mortgage that one loaning money to the mortgagor may be substituted for the mortgage and have a lien is not sufficient to create a lien. \[97\]

\*\*Motor Vehicles, see latest topical Index. MOTIONS AND ORDERS. \[98\] 1. The Motion, 893. \[98\] 2. The Order, 895. \[98\] 3. The scope of this topic is noted below. \[98\] 4. The motion. Making, submitting, and filing. \[99\] See 10 C. L. 873--A motion is a request to the court to grant the maker some right which he claims. Any written words which convey the idea that the supposed right is insisted on are enough. \[98\] A motion will not be granted on mere unverified assertion; a legal foundation for the order must be laid, \[98\] containing all the facts essential to the relief desired. \[99\] 5. Lynch v. Ryan, 137 Wis. 13, 118 NW \[99\] 6.1. Luken v. Fickle \[Ind. App.\] 84 NE 56L \[99\] 7. Where after a finding that certain con-vayances were mortgages of the tracts of land involved, they were redeemed by payments made and the mortgage subsequent-ly \[99\] discovered an error in the description of some of the tracts in the findings which were, however, properly described in the decree, the trial court properly refused an order to show cause where mortgage did not tender back money paid to redeem. Stitl v. Rat Portage Lumber Co., 102 Minn. 387, 118 NW 90J. \[99\] 83. Search Note: See Subrogation, Cent. Dig.: Dec. Dig.: 20 A. & E. Enc. L. (Zed.) 1047. \[10\] 94. Plaintiff paid $40 to a mortgagor to pay off a bank mortgage and took a deed of land believing mortgagor had title. Later it developed that she did not have and plaintiff was obliged to purchase an outstanding two-thirds interest and was entitled to subrogation to the mortgage's rights as against owners of the two-thirds interest. Patu v. Robinson \[Conn.\] 71 A 730. Furthergageing off a mortgage is entitled to subrogation. Overtur v. Martin, 170 Ind. \[99\] 84 NE 531; Moring v. Privott, 146 N. C. \[99\] 858, 60 SE 509. \[100\] 95. Bocoeck v. Wood, 113 NYS 46. \[101\] 96. Davis v. Davis \[Vt.\] 69 A 876. When the owner of the fee title pays off a prior incumbrance without actual notice of a junior judgment lien, it will be presumed that he paid the same for his own benefit and the protection of his own interests, and equity will treat him as the assignee of the original incumbrance and will revive and enforce it for his benefit. Purchaser paid Where the statute requires a motion to be made in writing, it must be so made.4 Although the court rules provide for a daily motion list and prescribe the manner of placing motions thereon, and the notices to be given, the court is not precluded from hearing motions not on the list.5 Motions must be made seasonally, and in conformity with the rules of pleading,6 although the trial court may at its discretion, entertain them when the limitation of time for filing is but a provision of its rules.7 A statute limiting the time in which a judgment must be entered does not extend to decisions on motions.8 A motion in the cause, as distinguished from one for an ancillary remedy, must be made in the county where the action is pending.9

18 Cur. Law. MOTIONS AND ORDERS SS 2. 895

to find the facts on a motion to set aside a judgment for excusable mistake.17 Where the facts are complicated and it is manifest that the truth cannot be ascertained with reasonable certainty without an examination of the witnesses, the court may, in its discretion, order a reference.18 A hearing on motion for order allowing inspection of documents is not conclusive as to the materiality of the documents.19 As the only mode of judicially determining a motion is by the entry of an order of determination,20 a party is entitled to a formal order on the decision of his motion from which he may appeal.21

_Renewals._\[See 10 C. L. 873--The granting of a motion after the same has once been denied is a matter of discretion, and it will be presumed to have been properly exercised.22

SS 2. _The order._\[See 10 C. L. 874--Objections to the motion should be incorporated in the order allowing it.24 The court may refer to judgment rolls in its custody and insert them in the order where it appears that they were referred to on the argument as having a material bearing on the question to be decided.28 An order for the sale of property in the hands of a receiver must be made in the county where the cause is pending, and at the term of court.29 Orders denying motions to postpone will be made only when the case is actually reached for trial.27

_Operation, effect and conclusiveness._\[See 10 C. L. 874--An order of a court of record in due form imports verity,28 but a mere recital that an order is a court order does not make it so, when signed by the judge as judge.29 A statement in the caption

# 6795, Rev. Codes, allows trial court to

granted, the order did not preclude a later take into consideration entire case in order

application. In re Riviere's Estate \[Cal. to determine motion, and it is not necessary

Am.J. 98 P 46.

that stenographer's notes be transcribed, if

23. Search Note: See note in 51 A. S. R. court can remember the evidence unintently

to decide the motion, since statute contemplates that such a motion shall be made

Dec. Dig. # 46-65; 17 A. & E. Enc. L. (2ed.)

mediately after trial. State v. Second Judil-

24. Where an order allowing an inspection

01. Facts held sufficient to show judgment,

of documents did not recrete defendants' pre-

properly set aside for absence caused by excusable mistake, although court did not

formally find facts, but decided the motion

by exercise of its discretion. Smith v.

Holmes Bros., 148 N. C. 210, 61 SNE 631.

48. Reference not necessary on motion to

01. On question as to whom money In

remove trustees interested in reorganize

bands of receiver should be paid, judgment

then of company whose stock they hold,

where beneficiaries under trust ask for their

a party referred to. Conlon v. Kelley, 126 retention. Warren v. Burnham, 125 App. Div.

App. Div. 624, 110 NYS 107.

169, 109 NYS 202.

13. H. Atchison, etc., R. Co. v. Burks \[Kan.\]

01. P 950.

01. An order staying proceedings until

determination of motion incorporates in an

49. P 950.

01. L. 873--The granting of a motion after the same has once

been denied is a matter of discretion, and it will be presumed to have been properly

exercised.22

SS 2. _The order._\[28--See 10 C. L. 874--Objections to the motion should be incorporated in the order allowing it.24 The court may refer to judgment rolls in its

equstudy and insert them in the order where it appears that they were referred to on the argument as having a material bearing on the question to be decided.28 An order for the sale of property in the hands of a receiver must be made in the county where the cause is pending, and at the term of court.29 Orders denying motions to postpone will be made only when the case is actually reached for trial.27

_Operation, effect and conclusiveness._\[See 10 C. L. 874--An order of a court of record in due form imports verity,28 but a mere recital that an order is a court order does not make it so, when signed by the judge as judge.29 A statement in the caption

# 6795, Rev. Codes, allows trial court to

gmented, the order did not preclude a later

take into consideration entire case in order

application. In re Riviere's Estate \[Cal. to determine motion, and it is not necessary

Am.J. 98 P 46.

that stenographer's notes be transcribed, if

23. Search Note: See note in 51 A. S. R. court can remember the evidence unintently

goc, also. Mottions, Cent. Dig. # 59-91;

gac, Dis. # 46-65; 17 A. & E. Enc. L. (2ed.)

mediately after trial. State v. Second Judil-

761; 15 A. & E. Enc. P. & P. 915.

cial Dist. Ct. \[Mon.\] 99 P 139.

47. Where an order allowing an inspection

of documents did not recrete defendants' pre-

properly set aside for absence caused by excusable mistake, although court did not

formally find facts, but decided the motion

by exercise that it was made at chambers cannot be disproved in a collateral proceeding.\[39\] The validity of a chambers order in a matter properly considered as a court matter will be tested by the power of the judge to act on such matter at chambers, and not by the general powers of the court.\[31\] A party in default, but of whom the court has acquired jurisdiction, is chargeable with notice of all orders made in the cause until the end of the term at which final judgment was rendered against him.\[32\]

\_Nunc pro tunc orders.\_See 10 C. L. 874.-An order may be amended nunc pro tunc to make the record conform to the truth,\[33\] but an order is not a nuno pro tunc order merely because it adds the minutes of the judge to the record.\[34\]

\_Amendment and vacation.\_See 10 C. L. 874.-Orders made and entered during the progress of proceedings are subject to revocation by the court for good cause during term time,\[35\] but not later.\[36\] A void order may be set aside at any time,\[37\] and on the court's own motion when the order is void ab initio.\[38\] A resettled order abrogates the former order,\[39\] but an order vacating an order of _vacatur_ operates as a revival of the original order.\[40\] A judge cannot review orders of another judge of coordinate powers.\[41\]

_Review._\[42\] See 10 C. L. 874

,

**Multiflareussness; Multiplicity; Municipal Alds and Reliefs, see latest topical index.**

by this court, etc.," and was signed by "judge of probate," held to be made by the "judge." Richter v. State \[Ala.\] 47 S 163. 36. 36.

- \[8\]**1. Power to Issue, S97.**
- \[9\]**2. Conditions Precedent; Submission to**
- \[10\]**Vote: Provision for Payment, S99.**
- \[11\]**3. Execution, 902.**
- \[12\]**4. Form and Requisites, 902.**
- \[13\]**5. Issue and Sale, 902.**
- \[14\]**3.**

\_The scope of this topic is noted below.**45**\*\*

- \[15\]**SS 1.**\_Power to issue.**44**\*\*, **56****1****0****C. L. 875****.**

\*\*There must be express legislative authority for the issue of bonds, and the power cannot be implied from the power to borrow money.\*\*45****In granting the power, constitutional requirements as to the title of the act,\*\*46****and the inhibition of special legislation,\*\*47****should be observed. An authorization will not be viewed hypercritically,\*\*48****unless circumstances of unfairness or excessiveness so dictate.\*\*49****A \*\* Legislative grant of power to issue may supersede charter limitations.\*\*50****It is a universal restriction that the bonds be for a public purpose.**51****Bonds may be authorized for purposes for which the revenues of a city are ordinarily expended, such as highways and boulevards,\*\*52****or a county may be auspical term to another.**

- \[16\]**special term to another.**

thorized to issue bonds for like purposes.\[53\] Where county commissioners are authorized and determine that county courthouse be erected, the determination of whether a tax be levied or bonds issued is matter solely for such commissioners.\[54\]_Refunding bonds_ See 10 C. L. 876 may be authorized,\[55\] but an authorization to exchange for bonds does not permit an exchange for promissory notes or other evidences of indebtedness.\[56\]_Raikroad aid bonds.See 10 C. L. 878_--Townships can by observing constitutional requirements issue bonds to aid the construction of railroads.\[57\] The statutory authority to county commissioners to subscribe for railroad stock will not permit a township to be subjected to railroad aid bonds.\[58\]_Limitation of indebtedness_ See 10 C. L. 878 may be based on population,\[59\] or the amount of tax levy.\[60\] Constitutional provisions may also permit an excessive debt where the purchase of public utilities is involved.\[61\] A statutory limitation is in-applicable where an issue of bonds is expressly authorized,\[62\] and a charter limitation has been held not to render an issue illegal where the constitutional limitation was not exceeded.\[63\] Bond proposed to be issued in excess of a tax levy may be en
Jointed,"44 but where an issue conforms to the requirements of law, and there is no proof, it will not be assumed that the tax levy is unconstitutional."55

\_Curative acts.\_See 10 C. L. 871--An issue of bonds in excess of the statutory limitation as to indebtedness may be rendered valid by a curative act."6 Special legislation must be avoided."67

SS 2. \_Conditions precedent; submission to vote; provision for payment.\_68--See 10 C. L. 871--An authorization by voters for bonds may be dependent upon conditions precedent."69 Such conditions precedent are presumed to have been performed when the bonds are issued by the proper officer.70

_Assent of voters or taxpayers_ See 10 C. L. 871 is usually prerequisite,71 though it is often dispensed with in case of refunding bonds,72 and, in some jurisdictions, in case of bonds for necessary municipal expenses,73 though this latter exception is not universal.74 Counties may be classified for legislation as to increase of indebtedness without vote.75 The legislative authorization upon consent of voters may require a new registration,76 or submit the proposition only to legal electors who are

Footnote 74: The author is grateful to the anonymous referees for their comments.

Footnote 75: Financial condition of counties as shown by relation between bonded indebtedness and assessed valuation of property, a proper basis for classification. Wall v. St. Louis County, 105 Minn. 403, 117 NWV 611, Gen. Laws 1907, p. 143, 150, not unconstitutional as special legislation. Id.

Footnote 76: Laws 1907, p. 733, c. 493, providing is 900

**MUNICIPAL BONDS SS 2.**

**12 Cur. Law.**

**also taxpayers.****7**: An election may be ordered by resolution.****\* Polling places,****7**: officers**\*\*\* and forms of ballots,\*\*\*\*\* are prescribed by election laws and charters,\*\*\*\*\* and statutes also determine the majority requisite,\*\*\*\*\* or who may canvass returns.\*\*\*\*\* The ballot should inform the voter of the nature of the improvement and the character of the indebtedness to be assumed.\*\*\*\*\* Where several propositions are submitted,\*\*\*\*\* provision should be made for a separate vote as to each issue.\*\*\*\*\* A bond issue authorized under misapprehension of facts will be held invalid.\*\*\*\*\* An election is not invalid because an unauthorized proposition is submitted,\*\*\*\*\* because an issue of bonds is submitted before a contract for the purchase of a public utility,\*\*\*\*\* where the illegal votes received or the legal votes tendered would not in the aggregate value of county bonds on consent of voters

**include work such as re-equipping and making extensions to existing waterworks system. State v. Millar \[OKL\]. 96 P 147.**

**SG. St. 1901, p. 27, c. 32, held to authorize submission of several propositions at elections. City of San Diego v. Potter, 153 Cal.**

**288, 95 P 146.**

**Submission of question of issuing bonds to cover costs of superintending**

**construction of bridge, as well as contract**

**price for bridge, authorized. Gilbert v. Canvass.**

**v. Tuscaloosa (Ala). 46 S 638.**

**79. Under Rev. 1905, \*\*\*\*\* 2946, poliling places may be fixed by governing authorities where**

**system, valid since Const. 1901, art. 12, \*\*\*\*\* 232, downnolivid into wards. Town of Hen-dersonville v. Jordan \[N. C.\] 63 SE 167.**

**80. Under Rev. 1905, \*\*\*\*\* 2958, as to appointment of judges, only two judges required.**

**Town of Hendersonville v. Jordan \[N. C.\] 63 SE 167.**

**63 SE 167.**

**Though statute required registrar to be freeholder, disregard mere irregularity not affecting result unless prejudicial.**

**87. Canvass.**

**81. Const. 1901, \*\*\*\*\* 222, prescribing form of ballot mandatory; failure to use such form rendered election invalid. Coleman V. Ettaw \[Ala.\] 47 S 703.**

**Wired Coast. 1901, \*\*\*\*\* 223, provided ballot with words "For...**

**bond issue," etc., the character of the bond to be shown in such blank space, a ballot containing caption of general purpose of election on two separate lines, with marginal extension on each line "for bond issue," etc., with description below did not comply with constitution and rendered election invalid. Coleman V. Ettaw \[Ala.\] 47 S 703.**

**election as to incurring indebtedness not invalid where**

**halots printed to left of question voted on and under square words "yes" and "no" instead of placing squares under questions with words "yes" and "no" to left according to Wilson's Rev. & Ann. St. 1903, \*\*\*\*\* 2963.**

**State v. Millar \[OKL\]. 96 P 747.**

**82. Rev. 1905, \*\*\*\*\* 2944-2967, tt. 7, "Elections" etc., and charter of Hendersonville (Priv. Laws, 101, p. 216, 6, 97), when not inconsistent with former general law control elections. Town of Hendersonville v. Jordan \[N. C.\] 63 SE 167.**

**83./Under Charter of Hendersonville (Priv. Laws 1901, p. 216, c. 97), issue of bonds to be determined by majority of voters rather than majority of qualified electors. Town of Hendersonville v. Jordan \[N. C.\] 63 SE 167.**

**84. County school superintendent has over to canvass returns and decide vote on school election for issuance of school bonds. McGinnis v. Bardotown School Truesues, 32 Ky. L. R. 1289, 108 SVP 289.**

\*\*85. Term, "for the construction of waterworks in said city, to be owned and operated by said city," sufficiently comprehensive to

**include work such as re-equipping and making extensions to existing waterworks system. State v. Millar \[OKL\]. 96 P 147.**

**SG. St. 1901, p. 27, c. 32, held to authorize submission of several propositions at elections. City of San Diego v. Potter, 153 Cal.**

**146 N. C. 854, 60 SE 516.**

**77. State v. Millar \[OKL\]. 96 P 146.**

**88. Submission of question of issuing bonds to cover costs of superintending**

**construction of bridge, as well as contract**

**price for bridge, authorized. Gilbert v. Canvass.**

**won County, 14 Idaho, 429, \*\*\*\*\* 1037.**

\*\*submission of whether bonds be issued to purchase or construct, or both, a waterworks system, valid since Const. 1901, art. 12, \*\*\*\*\* 223, and related act, Act. 1903, p.

change the result, \[91\] or because of an error in the appointment of officers. \[92\] An issue of bonds based on an invalid election may be enjoined, \[93\] and the continual submission of a proposition by a school board may be enjoined as an abuse of discretion. \[94\] In an election contest, courts will presume that all electors failing to vote assented to the affirmative vote shown by the returns. \[95\]

_Notice of election_ See 10 C. L. \[87\] required by statute \[90\] should be in substantial compliance therewith, \[91\] and publication \[98\] of notice of time and place \[98\] of the election is ordinarily essential. Error or inadvertence of clerk in improperly designating his official title, \[1\] or the fact that the registrar's books were kept open for a period before the election, \[2\] has been held not to effect the validity of an election.

\_Providing for payment of bonds_See 10 C. L. \[87\]--Constitutional or statutory provisions require provisions as to payment before an indebtedness is incurred such as a sinking fund, \[3\] or that the proposition submitted state the rate of interest, \[4\] or sum to be raised. \[5\] Where the authorizing statute provides the manner of payment, it should be substantially complied with, \[4\] and in such case errors in the proposition submitted are harmful only when the voters are misled. \[5\]

\*\*91. Town of Hendersonville v. Jordan \[N. \[ established and fully advertised. Town of Hendersonville v. Jordan \[N. C.\] 63 SE 167. \[ 1. Signature of city clerk as "city record-issumance of waterworks bonds, not void be-dunning. 180, 117 NWV 341. \[ 2. Bond issue under Priv. Laws, 1907, p. misdemeanor imreported. Ryan v. Tuscaloosa \[Ala.\] 46 & 68 688. \[ 1. State of interest\] 93. Though Acts 1903, p. 59, etc., provides for election contest $ 7 (p. 61). Coleman v. Ettuav \[Ala.\] 47 & 708. \[ 1. State of interest\] 94. Proposition for election of schoolhouse submitted three times and voted down. McAlexander v. Haviland School District, 7 Ohio N. P. (N. S.) 591. \[ 1. State of interest\] 95. Treat v. De Jean \[S. D. J1 118 NWV 709. \[ 1. State of interest\] 96 P. Tata of interest\] 97. Multipanel taxpayer may not show that by registry list or witnesses, certain qualified electors failed to vote, thus seeking to avoid election. Id. Result not subject to collateral attack for insufficiency of majority, th Absence of affirmative showing of insuffiency by admission of parties, or result of vote on other propositions. Id. \[ 96\]. Form of notice for issuance of bonds by school district to erect school prescribed by act of 1889, art IX. $ 4 (Hurd's St. 1905, c. 122, 5 & 128, p. 182. People v. L. Salle County School Directors, 193 Ill. Appl. 620. \[ 97. City of Cheyenne v. State \[Vyyo.\] 96 P 244. Literal compliance not essential. State v. Salt Lake City \[Utah\] 99 P 255. \[ 98. Under Code 1906, $ 383, publication of exact copies of orders of board of supervisors, signed by clerk, sufficient compliance with law as to publication of notice of purpose to issue bonds. Turner v. Lefore County \[Miss.\] 46-8 258. Publication of notice of election authorized by Comp. Laws, 1907, $ 308-310, as to improvement bonds, for four weeks, in newspapers is jurisdictional. State v. Salt Lake City \[Utah\] 99 P 255. \[ 99. State of interest\] 99 P. State v. Salt Lake City \[Utah\] 99 P 255. \[ 99. State of interest\] 99 P.

## 3 Execution

See 4 C. L. 1981.The corporate seal is not required where a statute authorizes bonds by township commissioners "under their hands and seals respectively."

## 4 Form and requisites

See 10 C. L. 879.In a broad sense a bond comprises a negotiable promissory note under seal.\[11\] A bond takes effect from delivery and carries interest from the date of issue.\[12\]

_Validation proceedings_ See 10 C. L. 879 provided in some jurisdictions have been held constitutional,\[13\] and a judgment of validation pursuant to statute is conclusive upon citizens as to the validity of an issue of bonds.\[14\]

## 5 Issue and sale

See 10 C. L. 879.The issuance of bonds may be compelled by mandamus upon a sufficient petition,\[16\] or restrained when unauthorized.\[17\] A

with St. 1901, p. 27, c. 32, where 119 bonds {ture time, bearing interest annually or semi-annually and usually having coupons at-number, three to be paid every year leaving ttwo for 40th year. City of San Diego v. Potter, 153 Cal. 283, 95 P 146. Issuance of bonds under Pol. Code, & 4088, containing provisions like Const. art. 11, $ 18, held to be in substantial compliance with such statutes, bonds and coupons, there was a delivery so providing tax sufficient to pay interest and principal falling due, and to make necessary for the same reason why, there is no need to be accepted and rejected and rejected.\[17\] Where bonds adver-nually. Deferring payment of interest for short time pending collection of tax already lued or that payment of first instalment might be deferred until general tax and collection not guarded by constitution. Johnson v. Williams, 153 Cal. 268, 95 P 656.

7. State v. Salt Lake City \[Utani\] 99 P 255. Question of payment governed by statute and not by taxpayers. Id. Election under Comm. Laws 1987, $ 308-310, containing statement that interest and principal be paid from revenues of water system not invalid since payment a matter of statute, and if misrepresentation at all, taxpayers were chargeable with notice of council's power. Id. Order for election which failed to state term and interest of bonds unobjectionable, since such matter prescribed by statute. McGinnis v. Bardstown School Trustees, 32 KY. L. R. 1289, 108 SW 288.

S. Search Note: See Countries, Cont. Dig. & 281; Dec. Dig. & 183; II Cyc. 563-569: Manamus, Cent. Dig. & 220-282; Dec. Dig. & 103; 26 Cyc. 304; Municipal Corporations, Cent. Dig. & 1940; Dec. Dig. & 927: 28 Cyc. 1599; 1600; Schools and School Districts, Cent. Dig. & 128; Dec. Dig. & 97 (6); Towns, Cent. Dig. & 90; Dec. Dig. & 52(6); II A. & E. Enc. L. (2ed.) 18, 31, 50.

B. Act N. J. Apr. 9, 1868 (P. L. p. 915), authorizing railroad aid bonds. Smythe v. New Providence, 158 F 213.

10. Search Note: See note in 5 Ann. Cas. 858.

See, also, Counties, Cent. Dig. & 275-288; Dec. Dig. & 183, 184; 11 Cyc. 563-569; Municipal Corporations, Cent. Dig. & 1924, 1925; Dec. Dig. & 1936-1935; Dec. Dig. & 928-98; 28 Cyc. 1598, 1599; Schools and School Districts, Cent. Dig. & 228-230; Dec. Dig. & 97(6-8); Towns, Cent. Dig. & 228-230; Dec. Dig. & 97(6-8); Towns, Cent. Dig. & 90-92; Dec. Dig. & 52(6); II A. & E. Enc. L. (2ed.) 18, 51, 53.

11. Promissory note not bond. Muskingum County Com'rs v. State, 78 Ohio St. 287, 85 NE 562.

Definition: By term municipal bonds is meant evidence of indebtedness, issued by cities and other public corporate bodies, negotiable in form, payable at designated fu * 12 Cur. Law. Municipal bonds SS 8.

- 903 money judgment may be rendered in a suit to restrain delivery where delivery was found to have taken place.\[18\]
- 8 6. \_Rights and liabilities arising out of illegal issue.\[10\] See 10 C. L. 879_The validity of bonds issued and negotiated cannot be put in issue in litigation to which the bondholders are not parties.\[20\]
- 8 7. \_Transfer.\[21\] See 10 C. L. 880$A$ purchase of municipal bonds from a prior bona fide purchaser for value before maturity takes the rights and standing of his vendor.\[22\] In the absence of proof the holder of bonds is presumed to be a bona fide purchaser.\[23\]
- \_Recitals.\[See 10 C. L. 880\]\_Where bonds showed on their face as being issued under a legislative enactment and examination of the journals would have disclosed disregard of a constitutional provision, the purchaser was charged with notice.\[24\]
- _Estoppel_,\[See 8 C. L. 1058\] A bona fide purchaser is entitled to accept recitals fairly importing a compliance with the statute authorizing the bond issue as true.\[25\]
- 8. \_Payment.\[26\] See 10 C. L. 880_Only the district benefited may be taxed to provide for payment.\[27\] Where the bonds are valid, taxes to pay the interest as it falls due and the principal at maturity may be levied up to the constitutional limitation,\[28\] and such levy may be compelled by mandamus.\[29\] A tax levied for payment

issue is not authorized. Jordan v. Green-ville, 79 S. C. 436, 60 SE 973.

- 18. In sult by taxpayers versus county commisomers and party to whom bonds deduces.\[27\] Where the bonds are valid, taxes to pay the interest as it falls due and the principal at maturity may be levied up to the constitutional limitation,\[28\] and such levy may be compelled by mandamus.\[29\] A tax levied for payment

issue is not authorized. Jordan v. Green-ville, 79 S. C. 436, 60 SE 973.

- 19. In sult by taxpayers versus county commisomers and party to whom bonds deduces.\[27\] Where the bonds are valid, taxes to pay the interest as it falls due and the principal at maturity may be levied up to the constitutional limitation,\[28\] and such levy may be compelled by mandamus.\[29\] A tax levied for payment

issue is not authorized. Jordan v. Green-ville, 79 S. C. 436, 60 SE 973.

- 20. Const. art. 2, $ 14, disregarded. Whittle-commissioners and party to whom bonds deduces.\[27\] Where the bonds are valid, taxes to pay the interest as it falls due and the principal at maturity may be levied up to the constitutional limitation,\[28\] and such levy may be compelled by mandamus.\[29\] A tax levied for payment

issue is not authorized. Jordan v. Green-ville, 79 S. C. 436, 60 SE 973.

- 21. In sult by taxpayers versus county commisomers and party to whom bonds deduces.\[27\] Where the bonds are valid, taxes to pay the interest as it falls due and the principal at maturity may be levied up to the constitutional limitation,\[28\] and such levy may be compelled by mandamus.\[29\] A tax levied for payment

issue is not authorized. Jordan v. Green-ville, 79 S. C. 436, 60 SE 973.

- 22. In sult by taxpayers versus county commisomers and party to whom bonds deduces.\[27\] Where the bonds are valid, taxes to pay the interest as it falls due and the principal at maturity may be levied up to the constitutional limitation,\[28\] and such levy may be compelled by mandamus.\[29\] A tax levied for payment

issue is not authorized. Jordan v. Green-ville, 79 S. C. 436, 60 SE 973.

- 23. In sult by taxpayers versus county commisomers and party to whom bonds deduces.\[27\] Where the bonds are valid, taxes to pay the interest as it falls due and the principal at maturity may be levied up to the constitutional limitation,\[28\] and such levy may be compelled by mandamus.\[29\] A tax levied for payment

issue is not authorized. Jordan v. Green-ville, 79 S. C. 436, 60 SE 973.

- 24. Const. art. 2, $ 14, disregarded. Whittle-commissioners and party to whom bonds deduces.\[27\] Where the bonds are valid, taxes to pay the interest as it falls due and the principal at maturity may be levied up to the constitutional limitation,\[28\] and such levy may be compelled by mandamus.\[29\] A tax levied for payment

issue is not authorized. Jordan v. Green-ville, 79 S. C. 436, 60 SE 973.

- 25. County cannot allege contrary. County judgment against such party as for money and received, or conversion, it appearing that bonds had already been issued, delivered and transferred to bona fide holder.\[29\] A tax levied for payment

issue is not authorized. Jordan v. Green-ville, 79 S. C. 436, 60 SE 973.

Notice of defects. County of Presidio v. Noel-ville, 79 S. C. 436, 60 SE 973.

- 26. Senech Note: See Counties, Cent. Dig. $ of interest on bonds, in excess of the amount required, cannot be applied to general expenses.\[30\] The place of payment may be outside of the state.\[31\] The statutes contain provisions as to the retirement of bonds from the sinking fund,\[32\] provide for the payment of interest annually,\[33\] or that payment of certificates of indebtedness be subject to a county court.\[34\] A city given statutory authority to borrow money for the erection of public buildings and issue bonds therefor has not the right to use its current revenues for that purpose, as against a judgment creditor whose judgment is payable only from the surplus of such revenues above current expenses.\[35\] The Alabama statute for refunding the indebtedness of Mobile provides for payment by only two methods, sale or rental of certain property, and a tax to be levied by the act.\[36\]

\_Payment from special fund or tax.\_See 8 C. L. 1035--Charter provisions where a public utility is purchased may provide for a special fund to pay such bonds and interest.\[37\] A fund raised from water rents is not a trust fund, and the city may by ordinance provide for payment of taxes raised in this manner into the general fund.\[38\]

SS 9. _Scaling overissue.\[39\] See 6 C. L. 713_

SS 10. Southern R. Co. v. Buncombe County

SS 11. Issue of bonds at 5 per cent payable semi-annually at place out of state proper obligation of city, should be first line on water plant so as to be secured with money derived from sale of water bonds, and also as to place of payment. Town of Lancaster. Town of Lancaster v. First Nat. Bank, 80 S. C. 547. 61 SE 1025.

SS 12. Under Ky. St. 1908, $ 4482, as to sinking fund, trustees of school district were authorized to provide for reemption of bonds at rate of two each year from sinking fund, instead of investing such fund at interest. McGinnis v. Batsotwon School Trustees, 32 Ky. L. R. 1289, 108 SW 289. Under Wis. St. 1898, $ 114, providing for county's assumption of city's delinquent taxes, and credit to city for same, and considering charter of city of Superior $ 129, constituting county treasurer a statutory trustee for holder of improvement certificates, there being no provision relative to improvement bonds, bond-holder must look to sinking fund in hands of city treasurer, upon which bond is line, and bill in equity for accounting against county is not maintainable. Olusted v. Superior, 155 F 172.

SS 13. Under $ 75, charter of Lewiston, city issuing sewer district warrants or bonds at 6 per cent interest could make interest payable annually. McGilvery v. Lewiston, 13 Idaho, 39, 80 P 348.

SS 14. Under Laws 1892, p. 1158, c. 603, $ 11, 13, authorizing commissioners to issue certificates of indebtedness for construction of sever, and Laws 1904, p. 1467, c. 620, $ 2, providing that city treasurer deliver to county treasurer, etc., received from commissioners arising from assessments, $ 4 providing such moneys be deemed county funds as to custody, that statement be filed with county court, etc., county treasurer cannot be compelled by mandamus to pay portion of fund in liquidation of indebtedness until application to county court and order that payment be made. People v. Monroe County Treasurer, 121 App. Div. 84, 105 NYS 576.

SS 15. Cunningham v. Cleveland \[C. C. A.\]

SS 16. Ex parte City of Mobile \[Ala.\] 46 S76.

SS 17. Where Eugene City Charter (Sp. Laws Com'rs, 148 N. C. 248, 61 SE 700.

SS 18. Issue of bonds at 5 per cent payable semi-annually at place out of state proper obligation of city, should be first line on water plant so as to be secured with money derived from sale of water bonds, and also provided for payment out of special fund.

SS 19. Under Ky. St. 1908, $ 4482, as to sinking fund, trustees of school district were authorized to provide for reemption of bonds at rate of two each year from sinking fund, based on the state of interest. McGinnis v. Batsotwon School Trustees, 32 Ky. L. R. 1289, 108 SW 289. Under Wis. St. 1898, $ 114, providing for county's assump-tion of city's delinquent taxes, and credit to city for same, and considering charter of city of Superior $ 129, constituting county treasurer a statutory trustee for holder of improvement certificates, there being no provision relative to improvement bonds, bond-holder must look to sinking fund in hands of city treasurer, upon which bond is line, and bill in equity for accounting against county is not maintainable. Olusted v. Superior, 155 F 172.

SS 10. Under $ 75, charter of Lewiston, city issuing sewer district warrants or bonds at 6 per cent interest could make interest payable annually. McGilvery v. Lewiston, 13 Idaho, 39, 80 P 348.

SS 11. Under Laws 1892, p. 1158, c. 603, $ 11, 13, authorizing commissioners to issue certificates of indebtedness for construction of sever, and Laws 1904, p. 1467, c. 620, $ 2, providing that city treasurer deliver to county treasurer 12 Cur. Law. Municipal proportions. 905

10. \_Enforcement of bonds. In general. \[40\]--See 10 C. L. \[85\]\_Equitable relief will be granted where a city, which is a statutory trustee, diverts the assessments collected. \[41\] The bill should not be multifarious \[42\] and relief may be barred by lachees. \[43\] In a suit on railroad bonds, the declaration may be demurrable if the sealing should not be sufficiently averred. \[44\] The undivided interests of the joint owners and holders of bonds and coupons on which suit is brought may be united for the purpose of securing federal jurisdiction. \[45\]

## 11 Municipal corporations.

### 1. Nature Attributes and Elements, 906.

- \[42\] A Creation and Corporate Existeape, 906. A. Creation and Organization, 906. B. Consolidation, Succession and Dislocation, 907. C. Classes and Classification, 908. D. Attack on Corporate Existence; Quo Warranto, 908.
- \[43\] S. The Charter; Adoption, Amendment, Re-pen and Abrogation, 908.
- \[44\] A. The Territory, 910. Annexations, 911.
- \[45\] S. Omerex and Employees, 912.
- \[46\] S. Municipal Records and Their Custody and Examination, 915.
- \[47\] S. Authority and Powers of Municipality, 915. judicial Control Over Exercise of Powers, 918.
- \[48\] S. Legislative Functions of Municipalities and Their Exercise, 919.
- \[49\] A. Nature and Extent of Legislative Power, 919.
- \[50\] R. Meetings, Votes, Rules, and Procedure, 920. C. Records and Journals, 920. D. Titiles and Ordaining Clauses, 920. E. Passage, Adoption, Amendment, and 916. E. Passage, Adoption, Amendment, and 917. E. Reguel of Ordinances and Resolutions, 921. Publication, 923.

### 1.2 The scope of this topic

- \[51\] and School Districts, Cent. Dig. $\\sharp$ \[25\]; Dec., delay, presents lachees and is denurrable. Dig. $\\lx@sectionsign$ 97; Towns, Cent. Dig. $\\lx@sectionsign$ 90-92; Dec. Dig. $\\lx@sectionsign$ 52; 21 A. $&$ E. Enc. (L. \[26\]) 82.
- \[52\] Ad. Search Note: See Municipal Corporations, Cent. Dig. $\\lx@sectionsign$ 90-91; Dec. Dig. $\\lx@sectionsign$ 950-91; Dec. Dig. $\\lx@sectionsign$ 950-91; 21 A. $&$ E. Enc. (L. \[26\]) 80.
- \[53\] Ad. Bill in equity by holder of improvement bonds alleging that by statute city is trustee to levy and collect special assessments on property benefited by improvement and apply proceeds in payment of bonds, that it has diverted such proceeds and threatens to continue so doing, states cause of action for equitable relief which court of law could not afford. Olmstead v. Superior, 155 IF 172.
- \[54\] Where Supreme court held that state statute created general liability of city for payment of certain issue of bonds in addition to making city statutory trustee for collection of special assessment, bill in equity seeking to make city primary debtor as well as statutory trustee by paying money judges.
- \[55\] A. Bill to charge municipality as voluntary trustee under legislative act for payment of certain bonds, showing refusal of defendant twenty-five years before to perform required acts, showing no payment of interest, that bonds matured eight years before suit and falling to show excuse for

## 1 Nature, attributes and elements

See 10 C. L. 851. The term "municipal corporations" as ordinarily applied includes all corporations created for the local exercise of delegated governmental functions \[48\]. They are auxiliaries or instrumentalities of the general government of the state for the purpose of municipal rule \[49\]. The powers of a municipality are wholly delegated \[50\], but in the exercise of powers so conferred, it is subject only to constitutional restrictions \[51\]. The distinctions between its governmental and private functions are chiefly important in determining liability for tort \[62\].

## 2 Creation and corporate existence

A. Creation and organization \[53\]. See 10 c. L. 852. The creation of municipal corporations by special act is prohibited by the constitutions of most states \[54\]. An enactment authorizing the organization of a municipality at once, though the statute does not become effective until a future date, is not invalid as a delegation of legislative power \[65\]. An enactment as to the time of notice before an election has been held to be merely directory \[66\]. The inclusion of farm lands in an incorporated municipality may operate to render the incorporation void \[67\], or at most a de facto municipality \[68\], but in determining such question

therein and public regulations (see Buildings (State v. Tampa Waterworks Co. \[Fla.\] 47 S and Building Restrictions, 11 C. L. 479), the local taxing power (see Taxes, 10 C. L. 1776), the mentiality of state (Ware v. Fitchburg, 200 local and special assessments (see Public Works and Improvements, 10 C. L. 1307), il-sabselect to state's power (OfAaver v. Mont-sabense and licensing (see Licenses, 10 C. L. 622), the re-ranting of franchises (see Fran-rights, duties and privileges as confirmed chises, 11 C. L. 1560), and the law of public officers generally (see OffCers and Public Employees, 10 C. L. 1043). The particular applications of the general law of municipalities to these several enumerated subjects should be sought in the titles cited. The body of laws relating to each of these large-ly involves powers and duties of counties, towns, and of the public generally, as well as powers of municipalities. All this has been brought together Into titles relating to the subject-matter of such powers and duties.

47. Senrel Note: See notes in S. C. L. 1057; 1 L. R. A. (N. S.) 512; 35 A. S. R. 529. See, also, Municipal Corporations, Cent. Dleg. SS 1, 1%: Dec. Dig. SS 1, 2; 28 Cyc, 124-132; 20 A. & E. Ch. L. (2ed.) 1130; 21 Id. 8, 943; 24 Id. 721. See, also, Abbott, Mun. Corp. SS 1-8.

01. Municipalities governed under the mentiality of the the character of the district as a whole must be considered.\[59\] Though the organization of municipalities including the extent of their territory is exclusively legislative,\[60\] a court or other official body may be authorized to determine the existence of requisites fixed by the legislature.\[61\] The determination is subject to review,\[62\] but judgments of such courts, if within jurisdiction, can only be attacked upon allegations of fraud or excess of jurisdiction.\[63\] The Oklahoma statute as to incorporation of cities of the first class has been held inapplicable to those cities that became cities of the first class upon the admission of the state.\[64\] A town may be recognized as such, though no map showing its subdivisions is recorded.\[65\]

(SS 2) \_B. Consolidation, succession and dissolution.\[66\] See 10 C. L. 852_Consolidation is sometimes provided for by statute.\[67\] Incidental to consolidation, the legislative enactment usually provides for the vesting of property and rights and the

### 3.4. The character

The character of the character is the character of the ments." The legislature in granting a charter to a city of a required population will be presumed to have ascertained the population." The repeal of a provision of a city charter must be effected by express enactment," or charter provisions may be repealed where a city adopts the provisions of a general law." The California constitutional guaranty preventing the repeal of statutes of organization has been held to extend only to municipalities organized before the adoption of the Constitution."

\_Home-rule charters.--\_A provision that a charter be effective if accepted by a majority of the inhabitants is not unconstitutional as a delegation of legislative power." A municipality in framing a charter or organic law has only such power as is delegated by the constitution or legislature." A charter adopted pursuant to an express constitutional grant has the force of a legislative act with respect to municipal matters."

\_Initiative and referendum; commission governments.--\_In Oregon by amendment to the constitution, the power to amend, enact or repeal municipal charters has of cities, prevents grant of special charters as to street improvements repeal of Fond du to cities and requires classification of all cities and for code of laws for government city could assess cost of repaving to abut-of all cities of same class. People v. Earl, the owners. Carstens v. Fond du Lac 42 Colo. 283, 94 P 294. In Const. art. 14, $ 13. \[VWs\] 117. Passage of ordinance by "powers" and "restrictions" are manifestly such powers and restrictions as relate to subjects pertaining to local self-government rather than subjects involving relation of citizens or cities to state. Id. Reasonable classification proper, such as population. \[VWs\] 119 NV 115. Effect of organization and incorporation of Chicago under general law was to substitute such law for city's former special charter and to repeal all provisions inconsistent with the general law, 4, $ 7, par. 11, prohibiting special legislation by violating the internal affairs of cities since office of police justice and city collect- or created by charter, McCarthy v. Queen \[N. J. Law\] 69 A 80. Under Const. art. 3, $ 27, municipal charter cannot be amended by local or special law. McGarvey v. Swan \[Vyo.\] 96 P 697. Laws 1903. p. 5, 7; authorizing cities "hereinbefore" incorporated with less than 10,000 inhabitants, having power to make assessments for sewers, to make assessments in specified manner, not "local" or special law. Id. Act not local or special when limited to city of 10,000 inhabitants as determined by "last preceding United States Census" on theory that phrase 1imits act to cities having required population at last census before act passed, since phrase relates to census last preceding any date material in asceraining of city within statute. Id. Act not local or special because restricted to cities incorporated under special charter having 10,000 inhabitants. Id. Act not local or special because limited to cities "having power to make special assessments to construct sewers" though only one city so situated. Id.

**87. Where Const. art. 11, $ 4, 5, authorized charters to towns of more than 10,000 inhabitants.** McCormick v. Jester \[Tex. Civ. App.\] 115 SW 278.

**88. Not implied. City of Jamsetown v.** Home Tel. Co., 155 App. Div. 1, 109 NYS 297.

**89. Adoption of provisions of general law**

In Oregon by amendment to the constitution, the power to amend, enact or repeal municipal charters has of cities, prevents grant of special charters as to street improvements repeal of Fond du to cities and requires classification of all cities and for code of laws for government city could assess cost of repaving to abut-of all cities of same class. People v. Earl, the owners. Carstens v. Fond du Lac 42 Colo. 283, 94 P 294. In Const. art. 14, $ 13. \[VWs\] 117. Passage of ordinance by city of Fond du Lac pursuant to St. 1892, such powers and restrictions as relate to subjects pertaining to local self-government rather than subjects involving relation of citizens or cities to state. Id. Reasonable classification proper, such as population. \[VWs\] 119 NV 115. Effect of organization and incorporation of Chicago under general law was to substitute such law for city's former special charter and to repeal all provisions inconsistent with the general law, 4, $ 7, par. 11, prohibiting special legislation by violating the internal affairs of cities since office of police justice and city collect- or created by charter, McCarthy v. Queen \[N. J. Law\] 69 A 80. Under Const. art. 3, $ 27, municipal charter cannot be amended by local or special law. McGarvey v. Swan \[Vyo.\] 96 P 697. Laws 1903. p. 5, 7; authorizing cities "hereinbefore" incorporated with less than 10,000 inhabitants, having power to make assessments for sewers, to make assessments in specified manner, not "local" or special law. Id. Act not local or special when limited to city of 10,000 inhabitants as determined by "last preceding United States Census" on theory that phrase 1imits act to cities having required population at last census before act passed, since phrase relates to census last preceding any date material in asceraining of city within statute. Id. Act not local or special because restricted to cities incorporated under special charter having 10,000 inhabitants. Id. Act not local or special because limited to cities "having power to make special assessments to construct sewers" though only one city so situated. Id.

**89.** Whether Const. art. 11, $ 4, 5, authorized charters to towns of more than 10,000 inhabitants. McCormick v. Jester \[Tex. Civ. App.\] 115 SW 278.

\*\*88 been vested in the people " and carried into effect by a legislative enactment whereby amendments might be proposed by a city council with or without initiative petition." The initiative and referendum powers were also reserved to the people with respect to legislation." The power to amend as delegated by the legislature of Washington is subject to the control of general laws." The government of municipalities being a legislative matter," different forms of government may be established, subject only to constitutional restrictions," and different methods of election of officers provided."

**SS 4.**_The territory._"\_See 10 C. L. 884_The legislature may change the boundaries

94. Under amendments to Const. art. 4, 96. See post, $ A.

01. Benton v. Seattle Elec. Co. \[Wash.\] 96 was to take away from legislature and vest in people the power to amend municipal 1903, p. 393, c. 186) cannot override statute characters. Farrell v. Port of Portland \[Or.\] giving legislative authority to grant use of 98 P 145. Under amendment to Const. art. 11, $ 2 (adopted June 4, 1906), legislature 1903, p. 264, c. 175, as amended by Lawe vae deprived of power to amend, enact or repeal charters and such powers conferred on voters of municipalities subject to limitation of improvement of vested rights.

01. Under Const. Amend. art. 2, and con-City of Eugene v. Willamette Valley Co. \[Or.\] 97 P 817. Under Sp. Laws Or. 1905, p. 274 (Eugene City Charter) $ 108, authorizing issuance of improvement bonds, where municipal indebtedness authorized in respect to server bonds was not increased or diminished by amendment, such law was not amendment of charter but re-enactment thereof. Id. Amendment to Const. art. 11, $ 2, (adopted June 4, 1906) empowering voters to amend chatters, etc, not self-ex-ecuting and did not alter charter enacted Feb. 7, 1905 (Sp. L. 1905, p. 889). Hall v. Dunn \[Or.\] 97 P 811. Prior to amendment of Const. art. 11, $ 2 (June 4, 1906), prohiblt-ing amendment or repeal of municipal charters, legislature could alter city's charter and take territory out of local option law (Gen. Laws 1905, p. 41). Id. Medford City Charter (Sp. Laws 1905, p. 986, c. 4) $ 25, subd. 19, authorizing licenses for sanctions, etc., and containing repealing clause, repeals local option law (Gen. Laws 1905, p. 41), in so far as applicable to city. Id.

01. McKenna v. Portland \[Or.\] 96 P 552. Where no legislation by city regulating manner of submitting amendments, con-Alpable to systems of local government indicting with general law, latter applicable. Id. Right of voters to enact or amend charter not necessarily an initiative power, art. 3, $ 1, providing that government of Id. Exists by virtue of Const. art. 11, $ 2, as amended in 1906, and not by liniative and referendum amendments adopted at same election. Contrating Const. art. 11, $ 2, and amendment, art. 4, with new section, $ la, Last as 1907, p. 405, $ 10: Laws 1907, p. 406, $ 12, since no method of submission of amendments is provided Law of 1907 Is applicable. Id. Initiative and referendum law (Laws 1907, p. 393, c. 226), according to Const. art. 4, $ 1, la, and art. 11, $ 2, a general law within Const. art. 4, $ 1a. Applicable to port of Portland not city or town. Farrell v. Port of Portland \[Or.\] 98 P 145. Where original incorporation of port of Portland was "to promote maritime, ship-ping and commercial interests," amendment adopted by voters whereby powers were extended to maintain towage and pilotage service to operate tugboats, etc., and issue bonds theretor, was an extension of powers germane to the original purpose of incorpor-ation and not new legislation. Id.

910 of a city * without apportioning its indebtedness and providing for the enforcement of its liability therefor.\* Boundaries acquiesced in by the public and the legislature cannot be subsequently overthrown without the consent of the legislature, though a departure from the limits specified in the charter is evident.\*

_Annexations_ See 10 c. L. \*\*\* are authorized by legislative enactments * or the power may be conferred upon the voters of a municipality.\* The extent and manner of annexation is a question of legislative discretion * not to be interfered with by the courts * except in equity * pursuant to statute, \[11\] and appeals are also provided by statute. \[12\] If, however, property rights are unduly impaired, the statute is invalid. \[13\]

Cyc. 149-152, 179-232; 4 A. & E. Enc. L. (2ed.)

724; 20 Id. 1148.

See, also, Abbott, Mun. Corp. # 35-51, 55-65.

65.

S. Contention as to invalidity of act because of defective description not considered because not presented at trial court. Adams v. Rome \[Ga.\] 63 SE 289. Acts 1908, p. 310, as to withdrawual of lands of city of Rome, held not to exclude plaintiff's land from corporate limits. Id.

4. Bugieve v. Tracy, 104 Minn. 378, 116 NWW 922.

1. Marshal v Richland County, # S. C. 135, 62 SE 4.

1. Priv. Laws 1907, p. 1292, c. 489, $ 1, enlarging corporate limits and stating boundaries not uncertain and void. Luterich v. Fayetteville \[N. C.\] 62 SE 758. Priv. Laws 1907, p. 1292, c. 489, construed and held to provide that qualified voters in both old and annexed territory were entitled to vote in election ratifying annexing act. Id. Under St. 1889, p. 285, c. 247, as amended by St. 1905, p. 561, c. 411, ballots cast at election when stamped in line bearing phrase "for annexation" were not invalid though not stamped in voting square as required by general election law. Haskell v. Long Beach, and injunction will lie to prevent recording of an annexation thus affected; and especially 1892, # 2926, 3018, 3020, 3748, 371, authorizing tax levy on property acquired before rebruary last, city may not tax territory annexed in April, that year. City of Gulfport. V. Todd \[Aliss.\] 46 S 641.

1. Under Act March 19, 1889 (St. 1889, p. 358, c. 247), power conferred with no limita- tion as to extent or form of territory to be named. People v. Los Angeles \[Cal.\] 97 P 311. Legislative authority to provide for annexation conferred by Const. art. 11, $ 6, unauthorizing provisions by general laws for incorporation of cities. Id. No objection that territory is made contiguous to other cities \[St. 1889, p. 360, c. 247\] (Id.); that nonexed with in future compel consollda- tion with smaller cities since under statute consent of such smaller cities is requisite (Id.); that annexation prevents expansion of another city in that direction (Id.). Disregarding of ordinance as to publication of election immaterial in annexation proceed- ings since Act March 19, 1889 (St. 1885, p. 358, c. 247), providing generally for annexation, is superior to charter provisions except in "muelipal affairs" and annexation is in no sense a municipal affaira within constitution. People v. Los Angeles \[Cal.\] 97 P 311. Notice of annexation election pursuant to act March 19, 1889 (St. 1889, p. 358, c. 247), not void as to provisions of Pol. Code $ 1084 in regard to registration since latter law makes no provision for any particular election. Id.

S. Lutterich v. Fayetteville \[N. C.\] 62 SE 758.

9. Lutterich v. Fayetteville \[N. C.\] 62 SE 758.

1. Lutterich v. Fayetteville \[N. C.\] 62 SE 758; People v. Los Angeles \[Cal.\] 97 P 311. Interference only where substantial provision of law violated or fraud perpetrated. People v. Los Angeles \[Cal.\] 97 P 811. Not open to collateral attack. Pavev v. Braddock, 170 Ind. 178, 84 N18 E. Annexation in effect reorganization. Chaves v. Atchison, 77 Kan. 176, 93 P 624. Can only be questioned by state, by proper officers. Id.

1. Since Act of Apr. 22, 1903, (P. L. 247), remedy of aggired party is bill in equity in common pleas for relief from extension of borough. Clairon Borough, 34 Pa. Super. Ct. 74: Beaver Borough, 34 Pa. Super. Ct. 467. Injunction proper remedy to prevent collection of illegal taxes from annexed territory. Lutterich v. Fayetteville \[N. C.\] 62 SE 758.

1. County
   \_Severances.\_See 10 C. L. 885.--In some states courts are authorized by statute to disconnect territory from cities after judicial investigation upon petition of a majority of the owners 14 and such statutes are generally held constitutional.15 A municipality may be estopped by long acquiescence to question a detachment of territory.16

\_Plats.\_See 8 C. L. 1000.--The sale of land before being properly plated may by statute be a misdemeanor.17

\_SS 5. Officers and employees.\_See 10 C. L. 885.--This subject is fully treated in another topic, only a few holdings of peculiar application to municipalities being retained.19 The state having power to create municipal corporations, it may designate the various municipal officers,20 and fix their compensation.21 The office may

of appeal to quarter sessions. Clairton Borough, 34 Pa. Super. Ct. 74; Beaver Borough, 34 Pa. Super. Ct. 467. Where record of an-reaction proceedings filed in court of quarter sessions pursuant to Act Apr. 22, 1903 (P. L. 247), court may only pass upon irregularity in record itself, and may not question whether council acted on good grounds, after consideration of facts involved, etc. Clarnton Borough, 34 Pa. Super. Ct. 74; Beaverborough, 34 Pa. Super. Ct. 467.

\*\*13. Where annexation of territory pursuant to Huards Rev. St. 1905, p. 322, c. 24, $ 195, included toll road which by Huard's Rev. St. 1905, p. 1389, c. 138, c. 138, could not exist in city. City of Belleville v. St. Clair County Turnpike Co., 234 Ill. 428, 84 NE 1049. Under Law 1907, p. 294, c. 221, providing for separation of unplated agricultural land from cities of 10,000 or less inhabitants, primary use of land must be for agricultural purposes. Eugiere v. Tracy, 104 Minn. 378, 116 NWV 922. Use of portion for purposes incidental to primary use does not exclude. Id. If purpose of retention is revenue, land should be relieved from taxation. Wilson v. Waterloo, 188 Iowa, 628, 116 NWV 734. Under Cobbey's St. 1907, $ 8978, it is no defense that city is indeed upon its bonds or otherwise. Diseus v. Randolph (Neb. 118 NWV 127. Trial of petition to sever territory is by statute less technical than ordinary trials. Wilson v. Waterloo, 138 Iowa, 628, 116 NWV 734. Result not disturbed unless abuse of discretion. Id. Statute provides for jury on demand. Peek v. Waterloo, 138 Iowa, 650, 116 NWV 735. Proceeding for severance govered by ordinary rules as to admission of evidence. Id. Evidence may be submitted by affloxits in support of or against petition. Id. Under Code $ 622-627, evidence of higher rate of assessment by city than township was inadmissible to show depreclation of market value by being included in city. Peek v. Waterloo, 138 Iowa, 650, 116 NWV 735; Wilson v. Waterloo, 188 Iowa, 628, 116 NWV 734. Motive of original annexation immaterial. Id. Presumption that severance granted on other grounds where jury instructed that severance would not be granted from mere increase of taxation. Wilson v. Waterloo, 138 Iowa, 628, 116 NWV 734. No new trial after adjlidation of severance from mere fact that portion of premises because of amusement park would necessarily require police protection, and should therefore be retained. Johnson v. Waterloo (Iowa) 119 NWV 70.

\*\*15. Cobbey's St. 1907, $ 8978, as to severance, not invalid as delegation of legislative authority to courts, and not violative of Const. art. $ 1, o or art. $ 2. Bisenius v. Ran-dolph (Neb. 118 NWV-127. Laws 1907, p. 294, c. 221, providing for separation of unplated Agricultural land from cities of 10,000 or less, is not unconstitutional, as to expression of act in subject of title, though $ 4 excludes home-rule cities because not applying equality to all cities, since exclusion of home-rule cities is proper; as to discrimination in fa-vor of agricultural lands since ordinarily such lands derive no benefit from city, while others may; as to classification in discrim-in-flation against owners of lands of less than forty acres; as to delegation of legislative powers to court since language used though permissive in form is in effect mandatory. Euziere v. Tracy, 104 Minn. 378, 116 NWV 922, Laws 1907, p. 294, c. 221, does not include boroughs. Inapplicable to borough of Belle Planie. Brenke v. Belle Planie, 105 Minn. 84, 117 NWV 157. Laws 1905, p. 408, c. 273, authoring detachment of agricultural land from villages void as attempted delegation of legislative power and discretion to district courts. Id.

**16. City of Minot estopped to question**

method of council in attempting to segregate certain territory. State v. Willis \[N. D.\] 118 NWV 820.

\*\*17. Under St. 1 be filled by election \[22\] or appointment.28 The state's power is manifest in the provisions for the so-called "commission" form of governments \[24\] with "recall" pro-

vide by general laws for incorporation, etc.,

22. Where charter required order for election of officers to be made by quorum ofner of election and duties. Vineyard v. Vineyard v. Vineyard v. Vineyard v. Vineyard, meeting of portion of electors with-Method of appointing official and term of office are part of machinery and structure of government. McCarthy v. Queen \[N. J. Law7\] 69 A 80. Creation of office by legislative branch of city of St. Louis requires action by both houses. State v. Dierkes, 214 Mo. 578, 118 SW 1077. Office of deputy receiver of taxes of Trenton fixed by law and coternino with term of receiver whose deputy he is. Sperry v. Barber \[N. J. Law7\] 71 A 64. Where legislative act providing for police judge was modified by provision that council might provide by ordinance for office to be held ex-offelo by city clerk and ordinance so passed, election of police judge was unnecessary. Vineyard v. Grangville City Council \[1daho\] 98 P 422. Memphis ordinance creating office of payment not invalid as creating new office, duties of register being comprehended by Acta 1905, pp. 115, 116, c. 52, 8 SS 55-60, and payment being in effect assistant. Efenniger v. Memphis \[Tenm\] 111 SWF 1115. Where Municipal Code Act (Act Aug. 13, 1907, Laws 1907, p. 780) was adopted prior to September 1908 (when law became effective) ln accordance with $ 199, governing body was required to elect president of city council who would hold office until Sept. 1908. Ward v. State \[Ala.\] 45 S. 655. 21. Ordinance allowing delimention tax collector 7 per cent of collections construed and in accordance with statute evident intention was allowance of commissions after term, for one year, on proceedings which he instituted. City of Covington v. Zeisz, 32 Ky. L. R. 1820, 108 SW 49. Greater New York Character (Laws 1901, p. 82, c. 468) 56, as to salarles of officers applies only to city officerc. Not applicable to sewerance commission. People v. Metz, 118 NFS 1007. Under Village Law (Laws 1897, p. 838, c. 414, $ 85), and Town Law (Laws 1890, p. 1236, c. 669, $ 178) trustees and clerk of village acting as inspectors of election are entitled only to $2.00 per day compensation until supervisors of county fix higher rate. In re Village of Kenmore, 59 Misc. 388, 110 NFS 1008. Village offerc acting as assensor held under Village Law, $ 85, and Town Law, $ 178, to be entitled to $2.00 per day compensation. I.d. Under General Municipal Corporation Act (Gen. Laws 1906, pp. 895, 896, 910) $ 851, 852, 855, 880, vesting government of cities in trustees and officers including marshal, with power in trustees to determine compensation, such power is not sewervable by courts except where the salary is now as to nullify office since no competent person would accept. De Merritt v. Weldon (Cal.) 98 P 537. Village clerk entitled to compensation for extra service not incident to office. In re Village of Kenmore, 59 Misc. 388, 110 NFS 108. Where city engineer agreed with standing committee of council to do additional work relative to construction of new waterworks upon assurance of future increase of salary and each increase later awarded to take effect at beginning of extra services, mayor was not justified in relating to sign warrant therefor. Mandamus issued. Crane v. Shoenthal \[N. J. Law\] 69 A 872. 19 Curr. L.- 58 visions.28 Where municipalities have a constitutional right of self-government, it is an invasion of that right for the state to appoint officers to perform functions of a local governmental character.29 Upon the admission of Oklahoma as a state, municipal officers held their positions by virtue of the schedule to constitution.27

Footnote 28: The National Bureau of Standards and Technology, which is a joint of the National Bureau of Standards and Technology, is a joint tain the nature and extent of their authority.\[31\] An ultra vires act cannot be ratified,\[32\] but a change of the grade of a street by the officers of a borough may be subsequently ratified.\[33\] A city council may not pronounce contracts void as against public policy.\[34\] The action of a council, in determining a contested election of a councilman, is of a judicial nature.\[88\] Boards or departments may be created and endowed with certain rights, but the recognition of such board by a city does not constitute the same a legal entity.\[88\] A board of public works, though an agent of a city, may be authorized to sue for delinquent light and water rates.\[87\]

SS 6. _Municipal records and their custody and examination.\[88\] See 4 C. L. 725_

SS 7. \_Authority and powers of municipality.\[89\] See 10 C. L. 888_The powers of a municipality being wholly derivative,\[40\] they are only such as are expressly granted or necessarily implied.\[41\] Any fair, reasonable doubt concerning the existence of

association. Long v. Lemoyne Borough \[Pa.\] (trustees of city, but statute authorizes suit. 71 A 211. 31. Implied authority may be shown. Robper. Id. Words "on the common counts" erts v. St. Marys \[Kan.\] 98 F 211. Where municipality's officers" mode of contracting is limited by statute, implied contract cannot be raised. Niland v. Bowron, 193 N. Y. 180, Dis. SS 100; 28 Cyc. 343-85 NE 1012. Can only bind to extent of powers authorized by law. Matthala v. Roehtser \[Ind.\] 86 NE 321; Marth v. Kingsfisher \[Okl.\] 98 F 446; J. Burton Co. v. Chicago, 236, Ill. 338, 86 NE 38, rvs. 140 Ill. App. 344. Mayor has no power to bind municipality unless authorized by governing body or state. Coleman v. Hartford \[Aal.\] 47 F 594. 47 F 594. 481. 481. 482. 483. 484. 485. 486. 487. 488. 489. 490. 491. 492. 493. 494. 495. 496. 497. 498. 499. 500. 510. 511. 521. 531. 540. 541. 551. 561. 571. 581. 591. 592. 501. 502. 512. 503. 513. 514. 515. 516. 517. 518. 519. 520. 521. 531. 541. 542. 543. 544. 555. 561. 571. 581. 581. 592. 503. 515. 593. 516. 594. 504. 505. 517. 518. 519. 521. 522. 531. 542. 543. 544. 555. 562. 571. 581. 595. 596. 597. 598.

power is resolved by the courts against the corporation,\[42\] and this is especially true of the taxing power,\[43\] but this rule does not preclude a grant of power in general terms.\[44\] The power to contract,\[45\] to legislate with reference to street and side-walks,\[46\] and subjects within the police power,\[47\] are hereinafter referred to. Cities are usually authorized to provide for public utilities,\[48\] such as water,\[49\] gas\[50\] and

Birmingham \[Ala.\] 45 S 663; Galindo v. Wal-

\[Cai. App.\] 46 P 505; State v. Lewis \[Fla.\]

\[Fla.\] 47 S 583; In Fe Village of Kenmore, \[Md.\] 47. 57. 583; 630 per year tax not unrea-

\[Fla.\] 47 S 583; In Fe Village of Kenmore, \[Md.\] 47. 57. 5830 per year tax not unrea-

\[Fla.\] 47 S 583; In case of reasonable doubt con-

\[Fla.\] 47 S 583.

## 12 Cur. Law. Municipal Corporations & 7.

Electric lighting,\[61\] for the benefit of the inhabitants,\[62\] and also, to construct sewers.\[53\] In addition a city may be authorized to maintain a public wharf,\[54\] or dry

available to relieve apparent unreasonableness. Id. Tampa municipal ordinance contract construed and elimination of invalid portions held not to effect. Id. Ordinance granting rights to water company for fifty years, not being prohibited by statute or preventing others from receiving the right to supply inhabitants, and at most granting need to include dormitories and commone for monopoly for that period, may not be enviaged by such institution. City of Chicago interests therein. Brummitt v. Ogden Waterv. University of Chicago, 131 - App. 361. works Co., 33 Utah, 285, 97 828. Contract granting right to construct water works not easy to safeguard rights of inhabitants. unreasonable so as to prevent specific performance, because city reserved right of purchase without corresponding right of company to enforce sale. City of Eau Claire v. Eau Claire Water Co. (Vls.12) in NV 855. City of City of Tampa not authorized to grant extaxes privilege of use of streets for water supply. State v. Tampa Watervorks Co. \[Fla.\] 47 S 358. No objection to contract that city gave water company exclusive franchise and was thus precluded from entering into competition with such company for creation and automotive private or in making unreasonable of waterwork. Mercantile Trust & Depoint Co., v. Columbus, 161 F 185. Statutes held to authorize city of Omha to sequire waterworks company, though such property continued into several adjoining municipalities.

Cornha Water Co. v. Omha \[C. C. A.\] 162 F 25. Where city elected to purchase waterworks pursuant to statute, it could not re-repeated by transportation. Wakefield v. quite company to keep outlying distribution systems and sell main system. Id. St. 1892, p. 164, c. 185, provide for taking of water under 1903, p. 730, No. 514, 186, 167, city council power of eminent domain, authorizing additional water supply for city of Pittsfield. 1998 Mass. 530, 85 N2P 739.

Ely than to power to contract to furnish inhabilant outside territory with water. Not conferred. City of Paris v. Sturgeon (Tex., Civ. App.) 110 SWV 459. City may contract resolution of expectancy after letting con- to furnish another city with water. City of Colorado Springs v. Colorado City, 42 Colo. supply preliminary power, Id. Express 75, 94 P 916. Municalities have the power and it is the duty of officers to apply surplus power and use of public utilities for benefit of citizens, provided such application does not materially impair usefulness of such facilities. Id. City furnishing water to an-, as amended by Acta 1830, p. 123, other city after being granted right of way through latter's streets, agreement being acquessed in thirty years, will be estopped to the expenses or implied power to furnish repudicate contract an illegally made. Id. City supplying water may prescribe character of merety to be used. Anderson v. Berwyn, 185 82. Power to own and operate utilities for in contract for water supply to be construed as referring to expressed design for adequate water supply, and to governmental authority when rights affect public. State v. Tampa Waterworks Co. (Fla.) 47 S 358. Regulation of water rates governmental function which cannot be surrendered or suspended by city council. Brummitt v. Ogden Waterworks Co. 33 Utah, 285, 93 P 828. Municipalities cannot enter into binding contract regarding rates for services rendered to the public. Right not to be surrendered in absence of constitutional or statutory authority. Id. Ordinance readjusting rates with water company and providing for payment for water used on school lawns cannot be enjoined by taxpayer, because such water was previously supplied by taxpayer, but it is not possible to use the lawns to be surrendered.

dock,"85 or to subscribe for the stock of a corporation."85 The power of eminent domain may be delegated." Unless restrained by statute, a municipality has discretion in the method of exercising governmental or other public powers,"86 but all acts beyond the scope of the powers granted are void."9 Where the mode of exercise of a conferred power is prescribed, such mode must be pursued." The exercise of assumed and unwarranted corporate powers may be ousted by quo warranto." Public powers conferred upon a municipal coporation and its officers cannot be surrendered or delegated."9

\_Judicial control over exercise of powers.\_See 10 C. L. 891.--The acts of municipal officers in the exercise of administrative or legislative discretion "33 are not subject to judicial review,"94 where there is no abuse of discretion,"95 or fraud,"96 but when authorized the action taken is presumed to be correct."97

bounds of another municipality. Id. Under P. L. 1902, p. 371; Id. 1907, p. 707, municipality need not secure consent of another municipality to creation of sewage disposal works with territorial limits of latter. Id. Ac. 62, Benton v. Seattle Elec. Co. \[Vash\] 96 of sewerage board under P. L. 1902, p. 133. Municipality cannot absolutely alleate and abdicate its power to supply water. tion by governing body of town, and voters at special election. Determination of sewerage board fixing site for disposal works, land on which member interested, not voidable in absence of fraud. Id.

54. State may authorize cities and towns on navigable rivers to build and operate public dwarves. City of Burlington v. Central Vermont R. Co. \[Vt.\] 71 A 826. Acts 1908, p. 356, No. 262, authorizing city of Burlington to construct and maintain public Wharf, and ". State (Ind.) 71 A 457. Removal of trees to borrow money for that purpose, are valid. Id. Acts 1906, p. 356, No. 262, authorizing city of Burlington to condemn land for pubclied by street railway. Wagner v. Bris. lic wharf, with power of council to award damages and allowing appeal, are not unconconstitutional as denying due process of law. Id.

01. Statute of Oregon authorizing Portland (Laws 1901, p. 417) to maintain dry dock not in violation of constitution as to tite of act. The George v. Elder, 159 F 1005. Statute of Oregon as amended by Laws 1901, p. 417, authorizing maintenance of dry dock by city of Portland, not unconsontutional because of levy of taxes, such levy being for public purpose. Id.

01. Water company. Town of Southington v. Southington Water Co., 80 Conn. 646, 69 A. 1023. Corporation accepting town as associate, and accepting substermotion, is chargeable with notice of town's powers, charter and limitations. Id.

01. Legislature has constitutional right to delegate power of eminent domain to cites to condemn property for parks for health and pleasure of people. Brunn v. Kansas City \[Mo.\] 115 SVV 446. Where power of eminent domain delegated, city may, in charter, frame code of procedure for exercising right. Id. Special charter procedure in condemnation proceeding, if not immical to general scope of constitution and laws, governs as against general law, such provisions being exceptions read into general law. Id.

01. Limitations, good faith and reasonableness, not perfection. State v. Tampa Waterworks Co. \[Fla.\] 47 S 385.

01. Posey v. North Birmingham \[Ala.\] 45 S 663. Fourth of July celebration. Marth v. Kingfisher \[Okl.\] 98 P 436.

01. McGillic v. Corby, 37 Mont. 249, 95 P 1063.

01. Legislative functions of municipalities and their exercise. A. Nature and extent of legislative power.68See 10 C. L. 891.--Municipalities may only exercise the legislative powers expressly or impliedly conferred.69In practice the legislative power is confined chiefly to the enactment of police regulation,70the functions of the legislative department in the initiation of public contracts and improvements,71 and in the fiscal management of the municipality,72being largely of an administrative character. The legislative power is usually vested in a mayor and a council.71Legislative functions cannot be delegated;74but an ordinance may be made operative upon the happening of a contingency,75the municipality may delegate authority as to the execution of an ordinance,76and the legislature may provide that popular vote be resorted to in the enactment of municipal ordinances.71

Footnote

## 8 8 8.

### 8.1 20.

The 8.1 20.

the source of power to enact does not affect its validity.93 A title is sufficient where all the provisions of the ordinance are germane to the single subject.94

Footnote 93: http://www.sds.org/

(SS 8) \_E. Passage, adoption, amendment, and repeal of ordinances and resolutions.95 See 10 C. L. 898--The acts of a municipality of a permanent or general character are by ordinance,98 while those temporary or restrictive in their operation may be by resolution.97 A resolution passed by a city council with all the formalities of an ordinance becomes a legislative act.98 Statutory limitations or requirements that a grant be by ordinance must be followed.99 The penal statutes of a state may be incorporated as the ordinances of a city, if within the municipal power.1 Generally, statutory requirements relating merely to form in the passage of ordinances are only directory,9 but where the mayor is an integral part of the law making power, his concurrence in legislative action is essential to the validity of an ordinance.9 Signing:

Yung, 7 Cal. App. 440, 94 P 594. Municipal ordinance or resolu-ordinance adopted without title In violation. Steuenerson v. Fontaine \[MIinn.\] 119 of Code 1906, $ 3406, invalid since require-ment of expression of subject-matter in title mandatory. Sample v. Verona \[Miss.\] 48 S 2.

98. Ex parte Yung, 7 Cal. App. 440, 94 P 594. Not essential to validity of ordinance that it state or indicate power in execution of which it was passed. Id. Where county board authorized to adopt ordinance and formalities incident to passage observed, pursued to County Government Act (Laws 1897, p. 467, c. 277), $ 26, fact that retail stated adoption pursuant to $ 13 (p. 454), which section had been declared uncontroutedinal, would not void such ordinance, but might be treated as surplusage. Id.

01. New Castle v. Cummings, 36 Pa. Super.

Ct. 443. Title "An ordinance prohibiting under penalty the desecration of the Sabbath, or the Lord's day, commonly called Sunday" sufficient indication of prohibition of sale of merchandise, etc., on Sunday. Id.

95. Search Note: See notes in 3 Ann. Cas.

654: 6 Id. 471.

See, also, Municipal Corporations, Cent.

Dlg. $ 221-244, 263-273; Dec. Dig. $ 106-110, 112-119; 28 Cyc. $52-369, 380-888; 21 A & B. Enc. L. (2ed) 946.

96. Long v. Portland \[Or.\] 98 P 1111; Anderson v. Berwyn, 135 Ill. App. $; Potter v. Calumet Elec. St. R. Co., 158 P 521. General ordinances are those of a general nature having an obligatory force on the community and upon the administration of the municipal government. Amending ordinance extending time for furnishing llght and heat by natural gas "general and permanent" within Manaf. Dig. Ark. $ 294 (Ind. T. Ann.).

01. Is Is99, $ 694. Town of Sauppa v. Sauppa p. Onl & Gas Co. \[Ok1\]. 97 P 1007. Under all. Const. 1870, art. 11, $ 4, license for use of streets by railroad must be by ordinance.

Potter v. Calumet Elec. St. R. Co., 158 P 521. General

135, 109 Pkw 674. Ordinance directing street

ing may, however, be a ministerial act.4 The veto power of the mayor, or similar official 5 extends to legislative resolutions as distinguished from administrative." The mayor's approval of an annexation ordinance is invalid, where he has considerable financial interest in the proposed territory.7 Disregard of legal formalities or orderly mode of procedure does not render a resolution illegal.8 The council being a continuous body, a resolution may be passed over the mayor's veto, though an election intervenes.9 The mayor's right to vote in the case of tie vote of the council is dependent upon statute.10 Constitutional provisions as to the reading of bills in the legislature do not apply to proceedings in municipalities,11 but similar rules may be required by statute,12 and by-laws requiring advertisement between readings may be adopted.13 When an ordinance recommended by the board of improvements is passed by the council, the act is that of the latter body.14 A resolution with provisions that the same shall be void unless accepted by a majority of the legal voters does not become operative where a town fails to accept.15 A taxpayer has no beneficial interest to secure a writ of mandate compelling a council to submit to the vote of the people the construction of a pier by a railroad pursuant to grant.16

diate direction of mayor, and authenticated 1

tervened and new members set. People v. by city clerk, under seal sufficient. Porter V. R. J. Boyd Pav. A. Conat Co., 214

der charter of Buffalo, 138 Apr, 141, 108 XYS 331. UnwMo. 1, 112 SVW 235. Under Act May 23, 105, etc.) $ 18, as to passage of ordinance 1893, P. L. 113, requiring approval of chief

after veto of mayor, such ordinance need not burges to every resolution, where resolution authorized borrowing of money and

the second question that returned for revisionation. Id.

giving of judgment note and was not approved, it was invalid and judgment

have right to cast deciding vote in contest

would be stricken off. Long v. Lemoyne Borougin \[Pa.\] 71 A 211. Implied approval

insufficient where signature of chief burges required. Act May 23, 1893, P. L. 112.

14. Act of president of board of trustees

of city of fifth class in signing ordinance

under Act March 13, 1883, (St. 1883, p. 93, c. 49), preliminary to publication, ministerial and subject to mandamus. City of San

Buenaventura v. McGuire \[CaI. App.\] 97 P 556. In mandamus to compel signature to

confinance before publication, though city

and members of board of trustees are not all necessary parties, they are proper parties. City of San Buenaventura v. McGuire

\[CaI. App.\] 97 P 526.

S. General municipal act Mch. 13, 1882, (St. 1883, p. 93, c. 49), and Act Mch. 27, 1897

(St. 1897, p. 190, c. 129), $ 1; $ 4, p. 191, contract, and to prevent absurdity words "mayor" in $ 1, held to mean all executive

officers similarly situated in various classes of cities, thus preventing construction

whereby veto power given to president of trustees in fifth and sixth classes, and denied to mayor of fourth class. City of San Buenaventura v. McGuire \[CaI. App.\] 97 P 526.

6. State v. Duis \[N. D.\] 116 NW 751. Under Rev. Code 1905, 1 2658, as to veto power of mayor, resolution for pavement of certain avenues is of legislative character and sub-

ject to veto. State v. Duis \[N. D.\] 116 NW

751. Decision as to public improvements

legislative in character. Id.

7. Under section 125 of the municipal code

of 1902, clothing mayors with the impartial

and disinterested legislative function of ap-

proving or vetoing ordinances, approval is

clearly against public policy. Shipbugh v. Kimbhal, 7 Ohio N. P. (N. S.) 514.

8. Farley v. Lockport, 113 XYS 702.

1. Resolution for street paving passed by

required vote of council, though election in-

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69

**18** Cur. Law. MUNICIPAL CORPORTATIONS $ 8F. **923**

An ordinance cannot be amended, suspended or repealed by resolution,\[17\] but an amendment to a resolution previously adopted is permissible in any deliberative body.\[18\] Repeals by implication are not favored.\[19\] The repeal of an ordinance will not operate to disturb private rights vested under it,\[20\] and a repeal pending prosecution does not relieve a defendant unless so provided by the repealing act.\[21\]

_Publication_\[see 10 C. L. 884 as a requisite to the validity of ordinances is required by some statutes.\[22\]

(SS 8) \_F. Construction and operation of ordinances.\[28\]\_See 10 C. L. 894_Ordinances must be uniform,\[24\] definite and certain,\[28\] reasonable,\[28\] impartial\[27\] and within the conferred powers.\[28\] They should not conflict with fundamental laws for

**17.** Steenerson v. Fontaine \[Minn.\] 119 NNV \[assment held not within certain statutes 400. Illinois rule. Potter v. Calumer Elec. and consequently to take effect upon passage 8t. R. Co., 158 F 521. Informal resolution \[unless otherwise provided. Expressly pro- \] not restoration of highway vacated by ordinances by repealing. Steenerson v. Fontaine \[Minn.\] 119 NNV 400. Contract whereby rail- \[Minn.\] 119 NNV 4010. \[conduct whereby rail- \]way agreed to pay $50,000 to mayor on behalf of people, for signature to ordinance \[infective as amendment of ordinance. Potter v. Calumer Elec. St. R. Co., 158 F 521. \[conduct by virtue statute required appointment of pol- \]cement to be provided for ordinance, city could not modify such act by resolution. Bullus v. Chicago, 235 IL 478, 55 NE 614. \[conduct by virtue statute required appointment of pol- \]s. Simpson v. Berkowitz, 59 Misc. 160, 110 NYS 485. Inhibition of city code as to amendment or repeal of ordinances inmplicable where action by resolution. Ryan v. Tuscaloosa \[Ala.\] 46 S 638. By reasonable implication Greater New York Charter (Laws 301, p. 81, 4, 466), $ 246, authorizes amendment of resolution at subsequent meeting. Simpson v. Berkowitz, 59 Misc. 160, 110 NYS 485. \[conduct by virtue statute required appointment of pol- \]s. Suell v. Jones, 49 YWash. 582, 96 P 4; City of St. Louis v. Klausmeier, 213 Mo. 119, 112 SW 516. Ordinance requiring vehicles to keep on side of street is not repealed by implication upon passage of ordinance prescribing common rules of road traffic in passing vehicles. Suell v. Jones, 49 Wash. 582, 96 P 4. Ordinance not repealed by implication when another ordinance not incongruent therewith and not covering the same field is subsequently passed. Town of Montelair v. Solca \[N. J. Lawl 69 A 451. Ordinance inconsistent with state law, which was invalid because of title being insuff- \], was not repealed by implication. City of St. Louis v. Wortman, 213 Mo. 131, 112 SW 520. Portion of ordinance repealed when conflicting with statute, but remainder not repealed, though prescribing lower standard of dalry products than statute required. City of St. Louis v. Klausmeier, 213 Mo. 119, 112 SW 516. \[conduct by virtue statute required appointment of pol- \]s.

the protection of rights of person or property,\[28\] with provisions of the federal constitution,\[30\] such as interstate commerce,\[31\] with the general laws of the state,\[32\] or other ordinances.\[38\] An ordinance void in part may be valid as to the remainder,\[34\] unless the void portion is an inducement to the enactment.\[38\] An ordinance void at enactment is void for all time.\[38\] Municipal ordinances are presumptively valid,\[37\] and courts should endeavor to

20. State v. Cederaskt, 80 Conn. 478, 69 A prohibits minors from visiting saloons and 19. Exercise of authority to enact ordinances subject to all limitations placed upon exercise of legislative power. Id.

01. City ordinance exacting whafrage from boats landing at public whafra, to be estimated upon tonnage of such boats and exempting boats when landing on portions of whartyre are mooney expended, does not crack duty on tonnage within U. S. Const.

01. 10, cl. 8, but plainly pertains to whafrage. City of R. Louis v. Eagle Packet Co., 214 Mo. 638, 114 SWV 21.

01. Interstate shipments of dairy products governed by congress and not subject to city ordinance prohibiting foreign substances therein. City of St. Louis v. Wortman, 213 Mo. 131, 112 SWV 520. Where original packages changed, commerce became intrastate, subject to regulation. Id.

01. In re Desanta \[Cai. App.\] 96 P 1027; Hardee v. Brown (F14). 87 S 834; City of St. Louis v. Klausmeier, 213 Mo. 119, 112 SWV 516. Power to enact ordinances limited to those not inconsistent with charter or state laws. People v. Buffalo Assessors, 193 N. X.

248, 86 NE 466, r.g. as to other matter, 127 AD. Div. St.1, 851, 117 NEV 524, 109 NYS 991; McGillic v. Corby, 37 Mont. 249, 85 P 1063. No implied power can authorize by-law connexitions with statuates. McGillic v. Corby, 37 Mont. 249, 85 P 1063. When no conflict, both will be unheld. Ex parte Hoffman \[Cai.\] 99 P 517. Ordinance valid at adoption power to city council to punish members for becomes ipso facto void when identical offense is made crime by statute. Callaway v. Mims \[G. App.\] 62 SE 664. Where an ordinance prohibits placing of any foreign substance in mllk and statute prohibits placing of any foreign substance in mllk and statute prohibits placing of injurious substances in mllk, there is conflict, and ordinance would be invalid provided statute were constitutional (Acts 1905, p. 135, 9 C \[Ann. St. 1906, 4 f74-15\] unconstitution). City of St. Louis v. Wortman, 213 Mo. 181, 112 SWV 620. Rule not applicable unless state law is intended to apply. Robinson v. Galveston \[Tex. App.\] 111 SWV 1076. Laws 1897, 236, c. 163 (Sayles' Ann. City, St. arts, 617n-617n), though general, inapplicable to city of Galveston which may create board of examining plummets. No plumbing board could be created to runsta to shut where Galveston had no health board. Id.

33. Track elevation ordinance and street conditions: Where requirements fell short of requirements of statute. City of St. Louis v. Klausmeier, 213 Mo. 119, 112 SWV 620.

01. Valid portion may be enforced. Commerculty. Jackson, 34 Pa. Super. Ct. 174; les' Ann. City, St. arts, 617n-617n; though general, inapplicable to city of Galveston \[R. Co., C. A.\] 158 F 6. Where ellmina-bens. No plumbing board could be created to runsta not enactly expressed health board. Id.

01. 147 S 858.

01. Additional requirements of ordinances provided for closing of ealoons at certain as to purity of dairy products. Id. Sale

01. 150. City of New York City. v. Gl. Louis v. Klausmeier, 213 Mo. 119, 112 SWV 621.

01. 151. 152 SWV 620. 153. 154. 155. 156. 157. 158. 159. 159. 159. 159. 160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 179. 181. 182. 183. 184. 185. 186. 187. 188. 188. 189. 190. 182.

sustain them, if possible.\* In determining validity, the court will treat the question as one of law,\* and an ordinance must be judged from its purport and effect,\* the motive of enactment being immaterial.\* A court cannot presume that a city adopting an ordinance belonged to the authorized class when the only evidence within judicial knowledge shows the contrary.\* The question of whether an ordinance conflicts with a general law cannot be determined by a fixed rule.\* The words of ordinances are construed the same as statutes.\* The rule that the practical construction of administrative officers will be followed by the court is inapplicable where the case is not doubtful.\* A city ordinance to a street railway granting privileges is to be strictly construed,\* and in a civil action to which a city is not a party, where a breach of ordinance is invoked to avoid a contract, the ordinance will be strictly construed.\* Courts of equity will not interfere or reform ordinances for mutual mistake.\*

Municipal ordinances are necessarily local,\* but an ordinance passed pursuant to legislative authority has the force and effect of a law within the corporate limits.\* An ordinance is affective within the town limits regardless of the regulations of the county.\*

Misc. 401, 111 NYS 759; Pittsburg, etc., R. \[\]Ginance with provision that streets be restored to their former condition manifestly does not require paving. City of Chicago v. Miss. 725, 46 S 161. \[\]Hulbert, 254 Ill. 521, 54 NE 822. Ordinance prohibilating advertising weapons in borough Hills. App. 575; City of Helena v. Miller \[Ark.\] \[\]Held to apply not merely to wagons used exclusively for advertising. FifthAve. Couch adopted. Village of Donovan v. Donovan, Co. v. New York, 194 N. Y. 19, 86 NE 824, 236 Ill. 636, 86 NE 875; City of St. Louis v.

(SS 8) _G. Pleading and proving ordinances and proceedings._\[52\] See 10 C. L. 895\_

Judicial notice cannot be taken of city ordinances._\[53\] Statutes usually provide that the legally issued book of ordinances of a municipality be prima facie proof of the existence, passage or publication of an ordinance,_\[54\] _but such method is not exclusive._\[55\] _The omission of enacting clause in a compilation of ordinances is not fatal,_\[56\] _but an inference of no publication follows from the omission of a note in the ordinance book as required by statute._\[57\] _The record of a village board showing the time of passing an ordinance is sufficient proof._\[58\] _As to whether publication of an ordinance must be proved, there is a conflict of authority._\[59\] _The location of streets in a public improvement ordinance, when misnamed, may be shown by parol._\[60\] _An objection to the manner of proving an ordinance must be specific._\[61\] _(SS 8). H. The remedy against invalid legislation._\[62\] _See 10 C. L. 895_

_While the courts are without power to review the exercise of legislative discretion,_\[63\] _ceriorari will lie for total invalidity,_\[64\] _and injunction is available in the case of an invasion_

- **52. Search Note: See Municipal Corporations, Centi. Dig. SS 281-283; Doc. Dig. SS 122; 28 Cyc. 893-398; 21 A. & E. Enc. L. (2ed.) 1004; 15 A. & E. Enc. P. & P. 409.**
- **53. People v. Ahearn, I24 App. Div. 840, 109 NYES 294. Must be pleaded in negligence action. Robinson v. Denver City Tramway Co. \[C. C. A.1 164 F 174. Not public state, but inerte regulation. Id.\] 54. Under Mills Ann. St. Colo. 1891, SS 443, providing that book of ordinances be prima facie evidence of publication, etc., such pre-sumption may only be overcome by substantial proof of irregularity. Town of Fletcher v. Hickman \[C. C. A.1 165 F 403. Book of ordinances signed by town clerk pursuant to P. L. 1895, p. 228, SS 27, prima facie proof of existence of ordinance. By P. L. 1907, SS 443, SS 1, copy is legal proof of ordinance as ordering, publishing, etc. Town of Monticular v. Socia \[N. J. Lawl 69 A 451. Under Rev. St. 1895, art. 558, and charter of Greenville, art. 10, SS 7, printed book of ordinances purporting to be compiled by authority of city ecunell was proper evidence without further proof. St. Louis S. W. R. Co. V. Garber Uzc, Civ. App.\] 111 SWE 227. Paroul evidence that book contained ordinances, etc, harmless. Id. Book of ordinances kept by municipal corporation containing particular ordinance, prima facie proof of passage. Stone v. Tallual Falls \[Ga. 162 SE 592. Book produced after notice (pursuant to Code 1895, SS 5243), rendered further identification unnecessary Id. Orpliance sufficiently established by being read to tury from legally authorized publication. Ballinger's Ann. Codes & St. SS 1299, 437, 6851. City of Spokane v. Grif. tht, 49 Vash. 298, SS 57 B. Book prima facie proof. City of Earlville v. Radley, 141 Ill. App. 359, jt. vd. 237 Ill. 242, SS 28 CE 624. Other matter. City of Chicago v. Bullis, 188 Ill. App. 297. May be proved by pamphlet published by authority, though such pamphlet contains prima facie proof not overcome by introduction of recorded copy of ordinance. Illinois Cent. R. Co. v. Collison, 134 Ill. App. 443. Words of title page alienging book as published by authority of village fills measure of proof required by statute. Illinois Cent. R. Co. v. Warriner 182 Ill. App. 301.**
- **55. Proof of ordinance by showing record of meeting, and publication, by showing newspaper wherein published, proper since Millis Ann. St. 4443, not sole method of proof.**
- **66. Village of Donovan v. Donovan, 236 Ill.**
- **67. Village of Donovan v. Donovan, 236 Ill.**
- **68. Village of Donovan v. Donovan, 236 Ill.**
- **69. Village of Donovan v. Donovan, 236 Ill.**
- **61. City of Chicago v. Bullis, 138 Ill. App. 297.**
- **60. Search Note: See note in 118 A. S. R.**
- **71. Zee, also, Municipal Corporations, Cent. Dig. SS 257, 266; Dec. Dig. SS 113, 121; 28 Cyc.**
- **737. 382-387; 21 A. & E. Enc. L. (2ed.) 398.**
- \*\*86 of property rights."15 Validity may also be tested in habeas corpus proceedings,"16 and in exceptional cases prohibition is available.67 A taxpayer cannot question the validity of a proposed ordinance granting rights to a gas company on the ground that vested rights of another company will be violated.68

Footnote 15: http://www.cs.ucsd.edu/~c/ pursuant to the two well known maxims " property may be destroyed without compensation." All contracts are subject to the police power," and a corporation must exercise its charter and franchise rights subject to reasonable police regulations." The power is, however, subject to constitutional restrictions " and the general requirement of reasonableness," but the restriction of reasonableness is inapplicable where an ordinance is passed pursuant to a specific power." The reasonableness of an ordinance is for the court," but the exercise of the power is presumed valid " and the burden of showing unreasonableness rests upon the attacking party."

live power, and business necessarily incident to enforcement may be safely Intrusted to one person, ordinance is not invalid as creation of monopoly. Dreystra v. Boone \[Ark\].

not justified by necessity and means arbil-114 SWY 718. Possession and enjoyment of rights subject to regulations of governing power in exercise of police power. Id. Grant of monopoly having no legitimate relation of law. Atlantic City v. France, 75 N. J.

'to purpose to be accomplished by an ordinance is offensive and renders it unreasonable. Landberg v. Chicago, 287 Ill. II2, 86 NIB 688. Ordinance granting exclusive right to ship manure from city from designated stations. Id.

'70. In exercise of police power, command "so use your own property as not to injure others" and maxim "the safety of the people is the supreme law" are to be given effect.

'88. When interfering with others' and maxim "the safety of the people is the supreme law" are to be given effect.

'88. When interfering with others, "Jollet, 237 Ill. 300, 86 NIB 688. Use was to not endanger others. O'Bryan v. Highland Apartment Co., 33 Ky. L. R. 349, 108 SWY 257.

'80. May be summarily declared nuisance without notice to owner. Sing s v. Julief, 237 Ill. 300, 86 NNE 668. Cows killed. City of land Americans, 121 La. 890, 46 NIB 911. Milk leaders deprived of stock of bot-clas on hand by ordinance that same have capacity indicated. City of Chicago v. Bowman Darley Co., 234 Ill. 294, 84 NIB 913.

'81. Where pre-existing private rights are restrained or limited, restraint is damnum absolute injuria. City of Seattle v. Hurst \[Wash\] 97 P 454. Railway company unable to enter into contract granting privilege of entering depot to solicit patronage where ordinance generally prohibited solicting at railway stations by hack drivers. Id.

'82. If contract or charter abridges police power, that portion is vold. City of Carriage v. Garner, 209 Mo. 688, 108 SWY 521.

'83. People v. Murphy, 118 NYS 855, rvg.

'84. Misc. 836, 113 NYS 854. Laws must affect interest of public generally as distinguished from particular class. Id. Ordinance valid if operating equally upon subjects within class for which rule applied. Levi v. Annil-ston \[Ala.\] 46 S 237. Ordinances which unnecessarily restrata trade or operate opres-sively on individuals will not be sustained. Commonwealth v. Jackson, 54 Pa. Super. Ct. 178. Rights of property not to be invaded under guise of police regulation. City of Belville v. St. Clark County Turnpike Co., 234 Ill. 428, 84 NNE 1049. Cannot Infringe liberty of individuals, prevent following of protession or making contracts with reference thereto, or unduly restrict lawful occupations. People v. Murphy, 113 NYS 855, rvg.

'85. Can only declare void if unconsultu-11onal. Id.

'86. Jury to find facts disputed. Small v. Commonwealth v. Jackson, 54 Pa. Super. Ct. 178. Rights of property not to be invaded under guise of police regulation. City of Belville v. St. Clark County Turnpike Co., 234 Ill. 428, 84 NIB 1049. Cannot Infringe liberty of individuals, prevent following of protession or making contracts with reference thereto, or unduly restrict lawful occupations. People v. Murphy, 113 NYS 855, rvg.

'87. Presumption in favor of reasonable-mass. Johnson Exp. Co. v. Chicago, 136 Ill.'s

'88. Ordinances enacted pursuant to-sexing of police power presumed reasonable. Kung v. Oregon R. & Nav. Co. \[Or.\]

'84. Ordinance to be void for unreasonabless must be clearly so, with weight of evidence that it was enacted by mistake or
(Copyright, 1909, by The Keefe-Davidson Company.)

**MUNICIPAL CORPORATIONS--Cent'd.**

(SS 10) \_B. For public protection. \[89\]--See 10 C. L. 897--A municipality in pursuance to its delegated power may enact reasonable ordinances relative to the sale of intoxicating liquors \[90\] or the conduct of billiard and pool rooms, \[91\] and may prohibit the shortage of weights and measures \[92\] as in the sale of milk. \[93\] Also fire limits may be provided, \[94\] and the creation of buildings, \[95\] theaters, \[96\] or other structures, \[97\] regulated.

in spirit of fraud or wantonness. City of Seattle v. Hurst \[\[Wash.\] 97 P 454. Courts \].

Ofchance requiring closing of saloons at will only interfere in clear case. Dreyfus v. Boone (Ark.) 11 587 N18. Ordinance for the president of village council, invalid as public safety. Illinois Cent. R. Co. v. Scheevers, 134 Ill. App. C14. Ordinance of sanitary nature. In re Desanta \[Cal. App.\] 96 P 1027. Wills not sustain abuse of power sets. Commonwealth v. Jackson, 84 Pa. Snper.

V. Beaumont \[Tex. Civ. App.\] 113 SWV 614. Seattle v. Hurst \[\[Wash.\] 97 P 454. Courts \].

Ordinance requiring closing of saloons at will only interfere in clear case. Dreyfus v. Boone (Ark.) 11 45WV 718. Ordinance for the president of village council, invalid as public safety. Illinois Cent. R. Co. v. Scheevers, 134 Ill. App. C14. Ordinance of sanitary nature. In re Desanta \[Cal. App.\] 96 P 1027. Wills not sustain abuse of power sets. Commonwealth v. Jackson, 84 Pa. Snper.

V. Beaumont \[Tex. Civ. App.\] 97 P 199. Properly

V. Beaumont \[Tex. Civ. App.\] 113 SWV 614. Seattle v. Hurst \[\[Wash.\] 97 P 454. Courts \].

Ordinance requiring closing of saloons at will only interfere in clear case. Dreyfus v. Boone (Ark.) 11 45WV 718. Ordinance for the president of village council, invalid as public safety. Illinois Cent. R. Co. v. Scheevers, 134 Ill. App. C14. Ordinance of sanitary nature. In re Desanta \[Cal. App.\] 96 P 1027. Wills not sustain abuse of power sets. Commonwealth v. Jackson, 84 Pa. Snper.

V. Beaumont \[Tex. Civ. App.\] 113 SWV 614. Seattle v. Hurst \[\[Wash.\] 97 P 454. Courts \].

V. Beaumont \[Tex. Civ. App.\] 113 SWV 614. Seattle v. Hurst \[\[Wash.

(SS 10) \_C. Health and sanitation."See 10 C. L. \*\*\*.\_The municipality's power to preserve the public health is often exercised in the regulation of cemeteries," slaughterhouses 1 and livery stables,2 and in provisions relative to the sale of food.3 Also stagnant water may be removed 4 and the emission of dense smoke prohibited.5 The quarantining of persons affected with a contagious disease is proper,5 but an ordinance providing for vaccination as a condition precedent to admission to public schools has been held unreasonable.7 Buildings infected with disease may be de-

Footnote 1: Right to regulate or prohibit rests on consideration of public health, to prevent public nuisance. Zimmerman v. Gritzmacher

Footnote 2: Livery stable ordinance providing for consent of property owners in residence section of city not invalid as delegation of legislative powers, such ordinance being in reality prohibitive. City of Spokane v. Camp

Footnote 3: Ordinance prohibiting sale of stale meat, towls placed in cold storage prior to removal of enterals, etc. People v. Echeler-

Footnote 4: Livery stable ordinance providing for consent of property owners in residence section of city not invalid as delegation of legislative powers, such ordinance being in reality prohibitive. City of Spokane v. Camp

Footnote 5: Livery stable ordinance providing for consent of property owners in residence section of city not invalid as delegation of legislative powers, such ordinance being in reality prohibitive. City of Spokane v. Camp

Footnote 6: Livery stable ordinance providing for consent of property owners in residence section of city not invalid as delegation of legislative powers, such ordinance being in reality prohibitive. City of Spokane v. Camp

Footnote 7: People v. Board of Education, 234 Ill. 422, 84 NE 1046. Bue see note 11 C. L. 1718.

stroyed.\* The regulation of the transportation of garbage is proper,\[9\] and the exclusive right to remove such matter may be granted to one person.\[10\] A municipality which purchased lands outside the city limits has been held to have no power to bring diseased patients into the township unless the township officers consented.\[11\]

(SS 10) \_D. Regulation and inspection of business.\[12\]--See 10 C. L. 899--The exercise of the police power over nonuseful callings is much broader than otherwise,\[18\] and an ordinance restricting a useful occupation will be strictly construed.\[14\] The city's power to regulate will authorize ordinances prohibiting drumming by agents of doctors,\[16\] or forbidding business on Sunday.\[16\] A proper exercise of the police power is by the imposition of reasonable license fees for the better control of certain callings or occupations.\[17\] Licenses for revenue may be authorized.\[18\]

8. Municipality not liable for destruction of private property in interest of public health to prevent spread of contagion. Perry

supressed when nuisance. Johnson v. Phil-v. Oregon, 189 Ill. App. 606. City may declare building public nuisance and have it

by state law evidence that business is law-destroyed, if only method of preventing contagion. Binsg v. Juliet, 287 Ill. 300, 86 NE

1d. Requiring sketing rink to be closed

663. Decision of council not final and ques- tion may be adjulicated in action for damages. Pool and Dhillard rooms; liquor ages. Id.

001. Buffalo Fertilizer Co. V. Checktowaga, 118 NYS 901. Ordinance prohibiting transportation of garbage without consent of

App. 183, 61 SE 27. Business of plumbing

related to public health and subject to reg- to license. Id. Not referred by Laws 1906, p. 714, c. 806. Id. Ordinance void as giving

as inapplicable to apprentices or helpers

commissioner of highways arbitrary power

to consent to license transportation. Id.

10. Ordinance must be reasonable and directed solely to regulation. Dreyfus v. Hope

v. Hope \[Ark.\] 114 SVW 71IS. Ordinance requiring removal of deposits from unsevered privies at

1d. Under act May 23, 1889, art. V, $ 3, cl.

proper intervals, by certain persons at compensation to be fixed by city and paid by

forbidding sale of fruits, merchandise, etc.

owner, proper. Id. Invalid where city became sharer in revenue. Id. Garbage ordinance held reasonable when removal by licensed officer of night soil and other mat-

1d. Sales of soda water and ice cream with-

ter was only limited after same became

unusance, and providing further for removal

in water-tight vessels, e.g. Anderson v.

1f. The subject of licenses is more fully

State, 53 Tex. Crp. 243, 109 SVW 193. Col-

1goton and sale of manure legitimate business, but may be conducted so as to be in-

1h. Landberg v. Chicago, 237

1h. 111, 88 NE 638. Monopoly as to removal

of manure unreasonable when having no

legitimate relation to purpose to be accomplished. Id.

1h. Summit Tp. v. Jackson \[Mich.\] 15 Det. Leg. N. 679, 117 NW 545. Charter of Jackson

3g Pa. Super. Ct. 598. License fee treated as as revised by Act No. 398, Loc. Acts 1985, p. 188, $ 4, tit. 9, authorizing purchase of lands

for hospitals, considered in connection with

general laws as to public health (Comp. Laws $ 448, 4437, 4471, 4459), and estab-

Iished constitutional doctrine of local self-

government. Id. Cities and township

within their respective limits, in execution

of laws relative to public health, exercise

overnmental function or agency. Id.

1g. Search Note: See notes in 32 L. R. A.

116; $ L. R. A. (N. S.) 304; 9 Id. 659; 11 Ann.

Cas. 60.

See, also, Municipal Corporations, Cent.

Dig. # 134-1384; Dec. Dig. # 610-628; 28

Gyo. 720-734, 745-750, 743-760, 762-772.

13. May be prohibited. Ex parte Murphy

\[Cal. App.\] 97 P 199. Where business useful,

http://www.cmu.edu/~goton/
unreasonable. Id. Distribution of adver-tisements, see post, $ 10E. Ordinance void when no distinction as to amount of license free for Hincerant merchant whether business engaged in one or a number of days. City of Dixon v. Messer, 18E Ill. App. 488. Buffalo Charter Laws 1891, p. 137, c. 105, $ 17, subd. 6, as amended, Laws 1904, p. 8, e, 81, authorizing automobile license or tax re-pealed by Motor Vehicle Act, Laws 1904, p. 15 Det. Leg. N. 498, 116 N NW 1070. Regulation of lawbers and pedders by means of Lewis, 122 App. Div. 163, 108 NYS 450. Un-der general welfare clause (Act 1887, art. VII, $ 2, ed. 47; and Act 1888, art. V; $ 3, ed. 46). Unlogesters might be regulated, subject to police powers of city. Titusville v. Ga-han, 34 Pa. Super. Ct. 618. Under Act 1887, art. VII, $ 2, ed. 4, and Act of 1889, art. V, $ 3, ed. 4, municipality may not collect tax from theatres for general revenue, but under ton or. Knoxville \[Tenn.\] 118 SWV 381. Not Act 1887, art. VII, $ 2, ed. 26, and Act 1889, art. V, $ 3, ed. 25, power delegated to municipal-ity is that of regulation by virtue of police power. Id. Ordinance imposing license tax on theatres and billboards construed as rev-enue, not police measure and declared inval-id. Id.

Vehicles: Ordinance Imposing license fee

with intention to reseal at higher price. Id.

Washington: It is a pleasure to pay to the public public, but it is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public public. It is a pleasure to pay to the public. It is a pleasure to pay to the public.

(SS 10) \_E. Control of streets and public places.\_19--See 10 C. L. \*\*\*Paramount authority over municipal streets resides in the state, which may delegate such powers as it sees fit.20 Under its delegated authority a municipality may regulate traffic,21 the speed of vehicles,22 or trains,23 require precaution in the operation of street cars,24 or locomotives,23 prohibit cattle from running at large,26 require the removal of trees,27 or stationary awnings,28 prohibit advertising wagons,29 and prevent the distribution of advertising matter.20 The city's power to regulate the use of streets does not authorize an interference with the personal liberty of citizens.21 In the exercise of its police power, a municipality may supervise and control the introduction and maintenance of the various appliances which subserve the several urban uses of streets,22 such as the placing of telegraph and telephone lines,23 and gas mains,24 and the operation of street railways.28

p. 697, c. 31, authorizing license of business v. Wents \[Kan.\] 98 P 775. Where removal for revenue, when considered in connection asumed to be authorized and question with Const. art. 11, 3, 6, as amended in 1896 therefore not subject to judicial review (St. 1895, p. 450, c. 23), declaring charters of v. Wenthees if determination of city Is clites subject to general law "except in mma" made arbitrarily under circumstances indiclapal affairs." Id. Charter of Baltimore native of bad faith, an abuse of discretion authorizes tax for revenue for use of city is presented. City of Paola v. Wents \[Kan.\] 98 P 775.

lation. Meushaw v. State \[Mzd.\] 71 A 457.

10. Search Notes: See notes in 19 L. R. A. 855; 4 L. R. A. (N. S.) 671; 9 J. Id. 1045; 10 J. Id. 108; 545; 11 M. 1080; 12 M. Id. 146; 15 I. 169; 175; 23 A. S. R. 581; 2 A. Ann. Cas. 897; 5 Id. 423, 97.

See, also Municipal Corporations, Cent. Dix. $ 1419-1544; Dec. Dig. $ 646-722; 28 Cyc. $32-939; 19 A. & E. Enc. L (Jed.) 1147.

20. Economic Power & Const. Co. v. Buffalo, 69 Gisc. 571, 11 NYS 443; Harder's Fireproof Storage & Van Co. v. Chicago, 235 11, 85 NZ 245. No inherent or independant authority. Economic Power & Const. Co. v. Buffalo, 59 Misc. 671, 111 NYS 443.

01. Fifth Ave. Coach Co. v. New York, 128 App. Div. 671, 10 NYS 107. Ordinance prescribing course of stream of travel. State v. Larrkebo, 104 Minn. 37, 115 NWP 948. Presence of vehicles not temporary obstruction exempting defendant from ordinance as to course of stream of travel. Id.

01. Ordinance limiting speed of vehicles to six miles an hour held to apply to fire mma-shal driving to fire. Illinois Cent. R. Co. v. Shreevera, 134 Ill. App. 514.

01. City may regulate speed of trains to reasonable limit. Kunz v. Oregon R. & Nav. Co., \[Or.\] 94 P 504.

01. Regulation requiring warning of appronch of street cars at crossings proper. Denver City Tramway Co. v. Martin \[Colo.\] 98 P 886.

01. Ordinance requiring ringing of bell on locomotive held not applicable to manufac- turer operating such engine in his private yards for his own convenience. Western Steel Car & Foundry Co. v. Nowalanslak, 135 Ill. App. 137.

01. Proper under general welfare clause. Gcer v. Thompson, 4 Ga. App. 756, 62 SE 500.

Hogs. Stone v. Tallualah Falls \[Ga.\] 62 SE 682. Sheep. Southwestern Sheep Co. v. Thompson \[Ga. App.\] 62 SE 1002.

27. Removal of trees authorized though purpose was preservation of city sewerage. Rosenthal v. Goldsboro \[N. C.\] 62 SE 905.

Removal of shade trees to make wake for sidewalk unauthorized, where placing of sidewalk would be in position different from that prescribed by ordinance. City of Paola
(SS 10) _F. Definition of offenses and regulation of criminal procedure. 86- See 16_

c. L. 802--Incident to the power to make police regulations is the power to punish their breach, 37 and in the exercise of such power, acts made penal by statute may be punished, 38 or a municipality may be authorized to impose new and superadded penalties. 39 Power to declare and define what constitutes offenses may be granted by the legislature, 40 though a departure from the settled meaning of words is not permissible. 41 Charter provisions or statutes authorize the extent of punishment. 42

of streets by such company, Id. Electric lighting and heating. Id. 83. Telephone company must comply with 27. Power conferred by Charter of New rassonable regulations and exercise right of 14 Sp. Laws 1905, p. 915, to license entry conferred by state subject to such regulations. Village of Jonesville v. Southern Michigan Tel. Co. \[Mich.\] 16 Del. Leg. N. 968, 118 NW 736. Village held to have 38. Offense against city may be offense business block, unless thereby company was 19. Orlawe v. Mongomery \[Tenn.\] 111 ng customers. Id. Fact that route designated by village involved larger expenditure (14 Sp. Laws 1905, p. 915), to license entry conferred by state subject to such regulations. Village of Jonesville v. Southern Michigan Tel. Co. \[Mich.\] 16 Del. Leg. N. 968, 118 NW 736. Village held to have 38. Offense against city may be offense business block, unless thereby company was 19. Orlawe v. Mongomery \[Tenn.\] 111 ng customers. Id. Fact that route designated by village involved larger expenditure (14 Sp. Laws 1905, p. 915), to license entry conferred by state subject to such regulations. Village of Jonesville v. Southern Michigan Tel. Co. \[Mich.\] 16 Del. Leg. N. 968, 118 NW 736. Village held to have 38. Offense against city may be offense business block, unless thereby company was 19. Orlawe v. Mongomery \[Tenn.\] 111 ng customers. Id. Fact that route designated by village involved larger expenditure (14 Sp. Laws 1905, p. 915), to license entry conferred by state subject to such regulations. Village of Jonesville v. Southern Michigan Tel. Co. \[Mich.\] 16 Del. Leg. N. 968, 118 NW 736. Village held to have 38. Offense against city may be offense business block, unless thereby company was 19. Orlawe v. Mongomery \[Tenn.\] 111 ng customers. Id. Fact that route designated by village involved larger expenditure (14 Sp. Laws 1905, p. 915), to license entry conferred by state subject to such regulations. Village of Jonesville v. Southern Michigan Tel. Co. \[Mich.\] 16 Del. Leg. N. 968, 118 NW 736. Village held to have 38. Offense against city may be offense business block, unless thereby company was 19. Orlawe v. Mongomery \[Tenn.\] 111 ng customers. Id. Fact that route designated by village involved larger expenditure (14 Sp. Laws 1905, p. 915), to license entry conferred by state subject to such regulations. Village of Jonesville v. Southern Michigan Tel. Co. \[Mich.\] 16 Del. Leg. N. 968, 118 NW 736. Village held to have 38. Offense against city may be offense business block, unless thereby company was 19. Orlawe v. Mongomery \[Tenn.\] 111 ng customers. Id. Fact that route designated by village involved larger expenditure (14 Sp. Laws 1905, p. 915), to license entry conferred by state subject to such regulations. Village of Jonesville v. Southern Michigan Tel. Co. \[Mich.\] 16 Del. Leg. N. 968, 118 NW 736. Village held to have 38. Offense against city may be offense business block, unless thereby company was 19. Orlawe v. Mongomery \[Tenn.\] 111 ng customers. Id. Fact that route designated by village involved larger expenditure (14 Sp. Laws 1905, p. 915), to license entry conferred by state subject to such regulations. Village of Jonesville v. Southern Michigan Tel. Co. \[Mich.\] 16 Del. Leg. N. 968, 118 NW 736. Village held to have 38. Offense against city may be offense business block, unless thereby company was 19. Orlawe v. Mongomery \[Tenn.\] 111 ng customers. Id. Fact that route designated by village involved larger expenditure (14 Sp. Laws 1905, p.

The arrest of offenders in adjacent territory may be authorized." Prosecutions for the violation of a city ordinance will not be restrained,44 but a writ of prohibition may issue,45 and habeas corpus will lie to discharge a person convicted under a void ordinance.46

SS 11. \_Property and public places.47--See 10 C. L. 903--The law upon this subject is fully treated elsewhere,48 only a few cases based on the peculiar status of municipalities being here treated. A municipality holding property for the purposes of government is merely a governmental agency,49 and such property is held in trust for the public use and benefit,50 though property may be acquired in a private capacity.51 Whether a municipality in acquiring land exceeds its power is a question between it and the state.51 A corporation may be created by statute to administer a

unlawful for person keeping employment offec to make willful misrepresentation and accept fee for snch employment is invalid, as making act of one particular business criminal, and same act of different business lawful. City of Spokane v. Macho \[Wash.\] 98 P 755.

42. Power to imprison must be expressly conferred. Must be judicial ascertainment of offense. O'Haver v. Montgomery \[Tenn.\] 111 SWV 448. Memphis Charter (Acts 1879, p. 16, p. 11, p. 83; p. 85, p. 84, p. 1, and amendments), confers power to establish workhouses, punish violations of ordinances, etc. Id. Punishment of hard labor authorized by Acts 1894-95, p. 1082, p. 19. Harrison v. Anniston \[Ala.\] 46 S 980. Intoxicating l1-quor ordinance pursuant to Gen. St. 1901.

$ 249, not void for nonuniformity because providing for imprisonment in city jail. City of Victoria v. Murphy \[Kan.\] 99 P 272. Penal al clause of ordinance imposing license not imprisonment for debt, since fine imposed for refusal to obey ordinance as punishment.

Ex parte Diehl \[Cal. App.\] 96 P 88. Where amendment to Macoh chatter (acts 1897, p. 186), punished violation of liquor ordinance with fine of $500, confinement for 60 days, or labor on public works not exceeding three months, or alternative sentence of labor in default of fine, punishments could not be imposed cumulatively. Callaway v. Alims \[Ga. App.\] 62 S 654. Where extent of punishment limited to fine of $100 or imprisonment not to exceed three months and Duluth city charter (Sp. Laws 1887, p. 96, c. 2, subd. 8, p. 8, p. 8, a amended by Sp. Laws 1891, p. 637, c. 5, p. 5, p. 29), authorized ordinance conflicting fine and imprisonment, such ordinance was vold. State v. Bates, 105 Minn. 440, l17 NWV 844. Costs not significant. Jd. Invalid legislation not made affective by home rule charter. Id. Where sentence is imprisonment in default of payment of fine, commitment to carry judgment into effect is proper. Olson v. Hawkins, 138 Wis. 394, 118 NWV 18.

43. Police power delegated over adjoining county, Town of Gower v. Agee, 128 Mo. App. 421, 107 SWV 989.

01. See ante, $ 8H. Bryan v. Birmingham \[Ala.\] 45 S 922; Dreyfus v. Boone \[Ark.\] 114 SWV 118. Injunction will not lie to prevent enforcement of ordinance regulating hack-man, which ordinance is enforceible only by criminal prosecution. Kissinger v. Hay \[Tex. Civ. App.\] 113 SWV 1005.

01. Unauthorized prosecution under void ordinance. Crittenden v. Booneville \[Miss.\] 45 S 728. Pool room ordinance. Id.

01. Ex parte Unger \[Okl.\] 98 P 899.

01. Search Note: See Municipal Corporations. Cent. Dlg. $\\lx@sectionsign$ 609-643, 1419-1544; Dec. Dlg. $\\lx@sectionsign$ 221-225, 646-721; 28 Cyc. $\\lx@sectionsign$ 604-638, 832-839; 19 A. $&$ E. Enc. L (Zed.) 1139, 1145; 20 Id. 1184.

See, also, Abbott, Mun. Corp. $\\lx@sectionsign$ 117, 834.

48. See Parks and Public Grounds, 10 C. L. 1079. See, also, Highways and Streets, 12 C. L. 1172.

01. Potter v. Calmett Elec. St. R. Co., 158 F 521. Legislature may confer agency upon another governmental instrumentality. City of Victoria v. Victoria County, 100 Tex. 438, 18 Tex. Ct. Rep. 16, 101 SWV 180. Various statutes in history of town of Victoria construed and town held to have title to certain lands for benefit of citizens. Id. Title to public square in town of Victoria by Act Dec. 10, 1841 (2 Gammel's Laws, p. 687). City of charitable trust bequeathed to a city."52 Generally adverse possession does not run against property held by the city for the public use.54

Pursuant to its delegated authority a municipality may authorize the use of streets for telephones,55 electric lighting,56 street railways 57 or railroads.58 A portion of ground may be dedicated to a county for a courthouse or jail.59 No use of streets, alleys 59 or public places inconsistent with the public easement therein can be

poses, though outside city limits, cannot be (company having franchise from state, the attacked by defendant who does not claim) city "consented" to such line within Const. portion of such lands. Id. S. D. art. 10, $ 3, and the right of the company was not affected by a ten-year limitation in the granting ordinance. Dakota Mass. 61, 85 NE 951. St. 1890, p. 385, c. 422, valid as to selection of officers who were agents of city. Id. St. 1890, p. 385, c. 422, not invalid after acceptance through operating to deprive city of vested property since such city cannot complain of taking of property to which it has assented. Id. Testa-tor presumed to be familiar with power of city in which he resided when making bequest. Id.

54. See Adverse Possession, 11 C. L. 41.

01. Authority to grant use primarily in state may be delegated to municipality. Southern Bell Tel. & T. Co. v. Moblble, 162 F 523. Power may be implied from grant of general control. Id. Charter of Mobile held to give implied power to authorize telephone company to occupy streets. Id. Streets of city are highways and Code Ala. & 2490, giving right of way to telephone company on highways, authorized construceto of line in city streets. Id. Use of streets by telephone company to be lawful must be consented to by state or municipality pursuant te delegated power. Id. Where III. Const. 1870, art. 11, $ 4, required consent of "local authorities," and 2 Starr. & C. Ann. St. 1896, p. 2110, c. & 3 (street railway act) required consent of "corporate authorities" to construction of street railway, terms were synonymous. Potter v. Calumet Elec. St. R. Co., 158 F 521. "Corporate authorities" of municipality are those representatives who are either directly elected by the people or appointed in some mode to which they have given their assent. Id. Grant to telephone company to construct system not indicative of Const. art. II, 14 or art. TV, $ 22. City of Rock Island v. Central Union Tel. Co., 182 III. App. 248. Council has power to make a grant binding upon successors. City of Rock Island v. Central Union Tel. Co., 182 III. App. 248. Grant not exclusive. Id. Ordinance charging board of public works with duty of advertising and selling telephone franchise provided for within power of council. Louisville Home Tel. Co. v. Louisville (KJ.) 113 SW 855. Const. S. D. art. 10, $ 3, providing for local consent to election of telephone line, limits legislative power but does not grant legislative power to local authorities. City has no power to impose additional conditions or regulations than those permitted by legislative. Missouri River Tel. Co. v. Mitchell \[S. D.\] 116 NWV 67. Where consent given, right to control telephone company results from statute, not action of local authorities by which consent is manifested. Id. Consent of city irrevocable. Id. Where city by ordinance and acquiescence permitted construction of telephone line, by authorized. \[41\] The police power will authorize the summary opening of streets, \[52\] and a city is not estopped \[53\] or barred by limitations \[64\] from removing encroachments. \[11\] the city may not remove lawful structures, \[65\] and the authorization of a court if used only for that purpose, \[64\] an areaway, \[67\] or an encroachment on an alley, \[68\] is proper. An ordinance vacating a street \[69\] to serve a purely private interest is void, \[70\] but the rule is inapplicable when the subscriber of such interest is only incidental. \[71\] A wrongful conveyance \[72\] may be saved by a confirmatory act. \[73\] Where additional burdens were imposed upon streets by the legislature, and the fee remained in the abutting owners, such owners might seek redress, but the city is not a trustee to enforce such rights. \[74\]

SS 12. _Contracts._\[75\] See 10 C. L. 904_Contracts by public governmental bodies are fully treated in a separate article. \[76\] Practically the only questions arising upon such contracts which are peculiar to municipalities and proper to be treated here are those relating to unauthorized contracts and the implications and estoppels resulting therefrom. It results necessarily from the limited and delegated character of mu nicipal authority, that a municipality can only contract to the extent and in the manner expressly authorized," and contracts for an unauthorized purpose 78 or not executed in the prescribed manner 79 are invalid. Unauthorized contracts may, however, be legalized.80 The doctrine of estoppel in pais applies to municipal corporations 81 and has been invoked in behalf of municipalities.82 Persons dealing with municipal-

17. In re Village of Kenmore, 59 Misc. 388, takes to give control of litigation to an 110 NYS 1008. Under Village Law (Laws 1871, p. 282, c. 414, p. 88, subd. 11), board of trustees may employ attorney at reasonable compensation. Trustees may determine re-

01. Publication of notice for public impossation. Trustees may determine re-

conableness of ree. Id. Contract for em-

unauthorized and contract and tax bllns is-

byment of expert accountant to audit va-

view books not authorized under Village

App.J 114 SW 555. Acceptance of new bid

Law (Laws 1897, p. 391, c. 414) $ 85, subd. 1, privately after rejection of public bids

unless where finances could not be managed

ordiance to charter, a private contract which

without assistance. Id. Agreement for

was prohibited. Attorney General v. Pub-

elevation and depression of railroads at

lic Lighting Commission \[McI..\] 15 Dett. Leg.

certain streets with share of cost to be paid

8. 58, 118 NW 385. Acts Pa. March 7, 1901, by city, intra vires under P. L. 1901, D. 116.

29, as to form of contracts, merely direct-

Morris & E. R. Co. v. Newark \[N. J. Err. &

ory, relating to assumption of pecunary liability

Appl.\] 70 A 194. Under charter of city of

D Detroit, considering $ 241, which provides

in public ground, the fact that the form of

that contracts in excess of $200 be let to

contract had not been approved by city

lowest bidder, city had no power to pass or

licitor and signed by head of proper department

dinance limiting hours of labor by employees

of city contractors, etc., which ordinance

ground for enjoining execution by taxpayer.

operated to increase bids. Bird v. Detroit,

153 Mich. 625, 15 Dett. Leg. N. 502, 116 NW

80, Issue of bonds. Wharton v. Greens-

1065. Rev. St. 1893, 8 6759 (Ann. St. 1006,

boro \[N. C.\] 63 SE 740. Where contract for

p. 3327), prohibiting contracts not within

when package of waterworks ultra vires, but

scope of powers or expressly authorized, de-

retrospective legislation permitted such

claratory of common law. Blades v. Hawkins, 138 Mo. App. 228, 112 SW 979. Election

and it appearing that vote of inhabitants

by city pursuant to ordinances and statute,

to exercise option and purchase waterworks,

could not compel appraisal. Phillips Village

which election is accepted by company,

crepr. V. Phillips Water Co. \[Mc.\] 71 A 474.

states binding contract. Cannot be Impaired

81. City of Colorado Springs v, Colorado

subsequently by city or legislature. Omaha

City, 420 C.. 56, 97 p. 316; Headley v. Smyser,

Water Co. v. Omaha \[C. C. A.\] 162 F 226.

29 U. S. 893, 52 Law. Ed. 849. City having

Where city pursuant to implied power grants

diant benefit of contract for street im-

right to telephone company to construct

prevement, estopped from pleading ultra

line, contract is created which cannot be

impalred. Southern Bell Tel. & T. Co. v.

Mobile, 162 F 528. Contract of municipal

accepted benefit and received consideration

corporation for purchase of real estate, as

authorized by Deerings' Gen. Laws 1906, p.

838, 8 62, subd. 2, construed by same laws

as private contracts. Statute of frauds

avoided upon possession and payment

program v. Sebastiod, 152 Cal. 704, 96 p. 863.

execution within five years, where during

city's liability for expenditures in mante-

sench period municipality was carrying out

nance of armory to be imposed only where

Military Code effectively compiled with. Mort

mtys V. New York, 59 Misc. 204, 110 NYS 842.

Maintenance of armory not duty of municipal

liability. Id. Though courts do not favor de-

feint franchise of gas company because of con-

fenses of irregularity, a city is not liable

for a contract in absolute defiance of the

sature. Id. Different question where de-

fense of irregularity goes to power of city.

Id.

78. Contract for purchase of waterworks

held ultra vires. Phillips Village Corp. v.

Phillips Water Co. \[Mc.\] 71 A 474. Under

Villison's Rev. & Ann. St. 1908, ities are charged with notice of the power and authority to contract.\[88\] Money paid by a municipal corporation upon a void contract may be recovered.\[84\]

SS 13. \_Fiscal affairs and management.\[85\] See 10 C. L. 906-- Municipal bonds, including questions relative to the consent of electors to an indebtedness and like matters, are separately treated.\[88\] Municipal funds and revenues are subject to legislative control.\[87\] To safeguard against official improvidence, it is frequently provided that no indebtedness be incurred unless provision for its payment be then made,\[88\] or constitutional provisions may forbid the creation of a debt, except for necessary purposes, without the vote of the people.\[88\] The state may recognize and order payment of moral obligations.\[89\] A legislative act providing for the refunding of unearned license fees in the creation of anti-saloon territory is not invalid as compelling a debt by a municipality.\[91\] In the absence of a statute prescribing the method of adjusting township rights and liabilities, where a new town is organized out of territory of the old, the two corporations may apportion payment of outstanding indebtedness according to their own sense of justice.\[92\] The property of citizens of a de facto corporation which is dissolved may be made liable for corporate debts incurred.\[93\] A municipality authorized to levy a tax to create a judgment fund may agree with the judgment creditors to pay the amounts due in the order of their ren-

85. Martindale v. Rochester \[Ind.\] $8 NE & Elee. Co. v. Bay City \[Mich.\] 15 Det. Leg. 321: Bell v. Krikland, 102 Minn. 213, 113 NW N. 1039, 119 NW 440. Where charter of St. 271. Cannot complain or failure to comply with contract to serve water outside limits. City of Paris v. Sturgeon \[Tox. Civ.\] In certain fund, certificate appended to or-dinance which in effect stated that if council such power. Martindale v. Rochester \[Ind.\] directed transfer from general revenue to $6 NE 321. Lack of power of trustees to delegate authority as to determination of fulfillment of contract does not render same \[Terminal H. Ass'n, 211 Mo. 364, 109 SWP 641. 6\]. Where board of trustees \[Law (Law's 1892, p. 1734, had no power to delegate to town engineer authority to conclusively determine fulfillment of contract, parties interested were bound to take notice that delegation was unknown!. Id. 84. Independent School Dist. No. 52 v. Collins \[Mich.\] 98 P $7. Sess. Laws 1899, p. 105, $ 82, as amended by Sess. Laws 1905, p. 71, prohibiting contract between school di-rtiet and trustees with penalty of forfeiture of action on such contracts does not prevent recovery of money paid by municipality. Id. 85. Sessh Nuclei. See notes in 14 L. R. A. \[N.\] 474: 23 Id. 402: 51 Id. 604: 3 L. R. \[N.\] 684: 12 Id. 433: 44 A. S. R. 299: 2 Ann. Cas. 856: 38. 14. 45; 5 Id. 585: 6 Id. 760: 7 Id. 150; 10 Id. 209: 11 Id. 976. 111. 986. See, also, Municipal Corporations, Cent. Diz. 8183-2172; Dec. Dig. 81858-1000; 28 Cyc. 1532-1748. See, also, Abbott. Munn. Corp. 814-405. 86. See Municipal Bonds, 12 C. L. 897. 87. McSurely v. McGrew \[Towall 118 NW N. 415. Revenues of county may be changed, diverted or taken away by legislature, since no one can complain that interest has been affected or contract rights destroyed. Id. Legislature may permit deposit of county funds in banks, and absolve offlicials from liability, since neither county or inhabitants has vested right in such funds. Id. Legislature may relieve county treasurement of liability under bond. Id. 88. Under Bay City Consolidated Charter (Soc. Acts 1907, p. 860, No. 6368), 8186, 1656, where expenditures for city contract for lighting plant had not been approved by board of estimates and funds provided, action of council was invalid. Bay City Trac. 88. 89. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 81. 83. 84. 88. 89. 80. 81. 84. 89. 82. 85. 86. 88. 89. 80. 81. 85. 87. 89. 81. 88. 81. 89. 82. 83. 84. 88. 89. 80. 81. 82. 84. 89. 83. 85. 86. 87. 88. 89. 81. 88. 82. 84. 89. 84. 88. 89. 80. 81. 85. 88. 89. 81. 86. 89. 82. 8 dition." Money loaned to a borough under an invalid resolution and used by it may be recovered in an action for money had and received." The borrowing of money is allowable only on clear statutory authority," and the preliminaries prescribed by statute must be complied with." A municipality is not liable for the failure of officers to handle the funds of a sewerage district properly when the city is merely an agent," and restrictions are usually thrown around the investment of public moneya." Proceedings for an examination into fiscal affairs are sometimes provided.1

\_Funds and appropriations.\_See 10 C. L. 807--Public funds can be devoted only to public purposes,2 and must be expended and accounted for according to law.3 Where a particular mode of discharging obligations is provided by law, it is exclusive and must be followed,4 but in the absence of express legislation details of expenditure may be regulated by city authorities.6 The mode of expenditure is usually governed by charter,8 and statutory or charter provisions ordinarily require appropriations to

94. Beadles v. Smyser, 209 U. S. 393, 52 Law. Ed. 849.

01. Though note given therefore invalid.

Long v. Lemoyne Borough \[Pa.\] 71 A 211.

96. Comp. Laws, & 2893, does not authorize borrowring of money for maintenance of warworks. Richard v. Bellaire 153 Mich. 560,

16 Det. Leg. N. 534, 116 N NV 1066.

97. Failure to adopt estimate of cost held fatal to borrowing of money for public improvement. Richard v. Bellaire, 153 Mich.

160, 15 Det. Leg. N. 534, 116 N NV 1066.

98. Broad v. Moscow \[Idaho\] 98 P 101.

Where wewerage district created by Laws 1003, p. 26, indebettness is against property of district not an obligation of municipality and latter is not liable. Id.

99. Laws 1905, p. 925, c. 396, # 1, 2, authorizing investment of money s received by towns from city of New York as damages for highway or bridges taken, is permits-sive only, and under Laws 1891, p. 346, c.

164, supervisors of town might devote fund to improvement of highways of town. McConnell v. Allen, 193 N. Y. 318, 85 NE 1082.

1. Proceeding to investigate financial condition of village as authorized by General Municipal Law (Laws 1892, p. 1738, c. 685, # 3), not proceeding against village but in-dividual constitutive board of trustees who must bear expense of defense. In F Village of Kenmore, 59 Misc. 888, 110 XYS 1008. Under General Municipal Law (Laws 1892, p. 1738, c. 385, # 3), as to investigation of financial affairs of village, court will not determine political questions but will merely investigate financial affairs and restrain illegal expenditures. Id.

1. Establishment of training school for teachers, public purpose. Cox v. Pitt County Com's, 146 N. C. 584, 60 SE 516. Board of trustees of village has no power to pay premium on official bonds of officers in absence of legislative authority. In re Village of Kenmore, 69 Misc. 888, 110 XYS 1008. Municipal comparison has no power to devote public funds to public entertainments without express legislative direction. Id. Village Law (Laws 1897, p. 393, c. 414, # 88, # 22, # 30), with a standard of fire department at expense of public does not authorize appropriations for parade outside village limits. Id. Act March 7, 1907 (Laws 1907, p. 94), which requires donation of art museum tax to existing museum, in uncong-situ functional. Const. art. 10, & 3, providing taxes for public purposes only; 10, pro * 12 Cur. Law. MUNICIPAL CORPORATIONS SS 13. 941

- 13 be by ordinance.\* A city may provide for the management of its internal affairs by directing estimates of expenditures by finance committee whereby the city may make appropriations.\* Though a statute authorizes the submission of expenditures of a school board, a city council is not deprived of discretion as to the amount to be appropriated.\* Money in the general fund may be temporarily loaned to other funds.\* Payment for water supply is a legitimate city purpose, for which the general fund may be used in the absence of charter provisions.\[11\] A city council has no authority to divert funds appropriated in the annual budget, until the expenditures provided for are paid.\[12\] The misapplication of city funds may be restrained by a taxpayer.\[13\] The statutory mode of expenditures may render vouchers a condition precedent to an action.\[14\] Where a borough council authorizes the payment of a legal debt due, the borough president may be compelled to sign the order, being a mere ministerial act,\[16\] and mandamus is proper, by the majority of a common council, where the mayor and other officials refused to recognize a valid ordinance as to the payment of water rents into a city's general fund.\[16\] Where city treasurer paid life insurance premiums with city checks the insurance company was chargeable with notice of the receipt of city funds for an individual debt and city might recover such amount.\[17\] An
- 14 merely provides different method of dis-bursement. Henniger v. Memphis \[Tenn.\] NBE 26. Resident taxpayer of village having 111 SW 1115. Ordinance creating paymas- 10 solitector may maintain action for him- 14 self and village. Pierce v. Hagans \[Ohio\] SS 26, prohibiting council from controlling 86 NFE 519. When officers refuse to act. In- 14 dependent School Dist. No. 5 v. Collins name does not control expenditures. Id. \[Idaho\] SS P 857. Taxpayer may use in absence of statute requiring particular officer. (Ann. St. 1906, p. 4839), provided that expenditures be by ordinance, specific and def- 14th, 286, SS P 828. Cannot arrest extrav- 111, an appropriation for "publishing pro- 14th," 15th and 16th," 17th," 18th, appropriation of money to a debt, placed with a proper officer so as to be available to the debtor, is a tender effective to stop interest.18

_Liens_\[25\] C. L. \[26\] to secure moneys due a municipality usually arise in connection with taxes \[27\] or assessments for public improvements.10

_Warrants_\[25\] C. L. \[26\]-A warrant issued by the proper authorities of a city in consideration of a valid indebtedness against it is a written acknowledgment of such indebtedness and promise to pay it.21 Special assessment warrants for local improvements are not obligations of a city.22 Warrants issued in excess of the limitation of indebtedness are void,23 but warrants are not invalidated by a recital of payment from a fund which a city is not authorized to create,24 or from a fund which was authorized but due to negligence was not created.25 Charter provision may require that a claim for an official's compensation be presented and audited before a warrant issue.20 A custodian of municipal warrants is without authority to sell them before funds are raised by the municipality for redemption.27 The warrants of a defactorporation constitute a debt evidenced in writing, in regard to the statute of limitations,28 and the statute does not run against warrants payable from a special fund until such fund is created and contains a sum sufficient to pay the warrants.29 A city is liable in damages for the wrongful diversion of a special assessment fund without paying outstanding warrants.30 Presentation and demand for payment is prerequisite to a suit.21 Where charter provisions as to the issuance of warrants were disregarded, mandamus would not lie to compel such issue.22

_Limitation of indebtedness_\[25\] See 10 C. L. \[26\]-Legislative \[27\] or constitutional limitations of indebtedness are usually based upon a percentage of the assessed valuation.28 It is sometimes provided that the general limit may be extended when the purchase of public utilities is involved.31 Otherwise the limitation is absolute 32 and an excessive tax levy may be enjoined.38 A recent case illustrates the determination of whether the purchase of a waterworks company would necessitate the incurring of an excessive indebtedness.39 An indebtedness existing prior to the first assessment is valid if within the constitutional limitation,40 and the limitation has been held inapplicable where a statue provided for the return of unearned license fees 41 where a city contracted for a water supply,42 or to the pledge of water receipts as a special fund.43 Where a city purchased a park in excess of the limitation, but the taxpayers paid the assessments, the city recorder could not refuse an order for the payment of interest on the ground of illegality.44 A city which purchased an engine in excess of the limitation was not entitled to retain such engine, giving the seller only the option to rescind, but such seller might enforce his lion by sale.45

SS 14. \_Torts and crimes.46 See 10 C. L. 600--A municipality exercises functions of two classes, private and governmental.47 In respect to matters of the former class, it is liable for the negligent acts of its officers and employes in the due course of duty to the same extent as a private corporation.48 In the exercise of its governmental functions, the municipality possesses the attributes of sovereignty and is not liable in tort in the absence of statute imposing such liability.49 Under this rule a municipality is not liable for damage due to the operation of its fire 50 or health departments 41 in maintaining workhouses,52 for the passage and attempted enforcement of void ordinances,53 or the failure to exercise governmental power,54 but a municipality may

88. City of Logansport v. Jordan \[Ind.\] 753; 15 Id. 845; 30 Id. 876; 34 Id. 25; 4 Ann. 85 NE 85. Taxpayer may enjoin without 8 Id. 862; 864; 872; 823; 7 Id. 807; showing special interest or damage. Jordan 8 Id. 465; 31 Id. 851; 11 Id. 185. v. Logansport \[Ind.\] 86 NE 47. Pleadings \[See, also, Municipal Corporations, Cent. held not to show right to restraining order 1016-1181; 1215-1217; Dec. Dig. # 723- for building of bridge whereby indebtedness 857, 1041-1043; 28 Cyc. 1257-1266, 1775-1777; in excess of limitation would be created. 89 Watters v. Mankat \[Minn.\] 118 NW 858. See, also, Abbott Mun. Corp. # 950, 1066. 39. Held not to necessitate. City of Eau Claire v. Eau Claire Water Co. \[Twis.\] 119 NWV 855. Special assessment certificates issued for public improvement ofMex against existing indebtedness in determining limitation. Id. Money in general fund offset against city's indebtedness. Id. Sinking fund offset for bonds to payment of which it is pledged. Id. Improvement bonds in place of assessment certificate in light of charter not indebtedness of city. Id. 840. Indebtedness existing by virtue of organic act (Act May 2, 1890, e. 182, 26 Stat. 81) valid if within 4 per cent limitation as ascertained by such assessment. Ray v. School Dist. No. 9 \[OkL\]. 55 P 480. 41. As creating debt when territory created anti saloon by vote. People v. McBride, 234 III, 146, 84 NW 865. 42. Contract with water company which was granted franchise for use of streets, whereby city agreed to pay for water used for fire purposes held not to create debt in violation of constitution. Mercantile Trust & Deposit Co. v. Columbus, 161 F 135. 43. Special fund by city does not create debt within limitation. Griffin v. Tacoma, 49 Wash. 524, 95 P 1107. 44. State v. Hodapp, 104 Minn. 309, 116 NWV 589. City recorders' duties ministertal. Id. 48. City of Bardwell v. Southern Engine & Bolleer Works \[Key.\] 118 SWP 97. 46. Searek Note: See notes 1 4 C. L. 748; 15 L. R. 781; 783; 19 Id. 452; 24 Id. 592; 27 Id. 724; 44 T. 795; 47 Id. 593; 59 Id. 853; 1 1 1 L. R. A. (N. S.) 124, 127, 665; 952; 2 Id. 95, 147, 910; 41 Id. 829; 5 Id. 584, 100; 6 Id. 101, 100; 6 Id. 101, 102; 103, 1090; 1084; 9 Id. 146; 10 Id. 176, 785; 925; 12 Id. 637, 638, 696; 13 Id. 1190; 12 A. S. R. 646, 61 NE 491. Municipality not liable in be'liable for the destruction of property as a nuisance where in fact not so,55 or for the failure to abate nuisances.56 The liability for property injured by mobs is statutory.57 A municipal corporation is liable for the acts of its officers, servants or agents done within the scope of their authority.58 A city is not liable for the acts of an independent contractor engend in the construction of a public work,59 unless there

tort for mistaken action of city council in \[same as street. Id. Municipality disable for attempting to revoke liquor license. Claus-worngrnful acts of officers expressly authorized or ratified, if not wholly intra vires. Not liability for torts of officers save in defn- \[Faucheux v. St. Martinville, 120 La. 764, 45 S ntiely excepted cases. Exemption based on 600. Municipality disable for wrongful act sovereign character and absence of obliga- \[by street commissioner while improving tion. Id. Not liable for exercise in good \[from\] of discretionary powers of public leg- \[relative to corporate interests. Barre v. Isiative or judicial character. Id. Not generally liable for tresses of officers in en- \[from\] of municipal exemption where in exercise of police powers. Hall v. Dunn \[Or.\] \[see\] of ruffed, if not wholly intra vires. \[from\] of ruffed, if not wholly intra vires.

is a duty owing to the public." Where a permit is given for the storing of a specified quantity of explosives and a much larger amount is stored, the city is not liable for the injury caused by the explosion." With respect to facilities designed for the use and benefit of the public, the municipality is not liable for any matter growing out of the plan of the work," but is liable for failure to keep such facilities in repair," or for negligence in the actual execution or construction of its public works." A city's liability may attach in regard to street lighting," and the maintenance of gutters, drains and sewers." Dangerous places in grounds or ways for public use recovery against city. McGrath v. St. Louis \[Mo.\] 114 SV 611. No negligence in plan version would be lower than foundation, requiring excavation wholly within public such knowledge dispensed with any formal alive, to be carried to lower level than routes by city of work. McGrath v. St. Louis \[Mo.\] 114 SV 611.

of law. Id. City not liable for injury from collapse of building though city buildings. Town of Newcastle ing department approved defective plans. Stubley v. Athlson Reality Co., 124 App. Div. 162, 108 NYS 759. Building department not administrative department. Id.

60. City liable for defect in street though work of repair in hands of independent contractor. Newman v. New York, 57 Misc. 636, 108 NYS 676.

01. New York city not liable for injury caused by explosion of 200 pounds of dyna-mits stored in street by subcontractor in constructing subway, though city fire commissioner gave permit for storage of 50 pounds. Murphy v. New York, 128 App. Div. 453, 112 NYS 807.

01. City in governmental capacity may maintain streets with center elevated and with gutters at side and is not liable for danger inherent in plan adopted. Gallagher v. Tipton, 133 Mo. App. 557, 113 SW 674. City not liable for failure to improve a street. May leave in condition it was. Harney v. Lexington \[Ky.\] 113 SW 115. Ceasing to maintain gutters after grading school lots not cause for city's liability when no duty to maintain on first instance. O'Neill v. St. Paul, 104 Minn. 491, 116 NNT 1114. Trespass not maintainable againstborough for injuries to abutting owner resulting from change of grade, there being no actual takings of property. Deer v. Shenden Borough, 220 Pa. 307, 69 A. 814.

01. City liable for negligent construction or maintenance of plan of streets, as to gutters or cross walks. Gallagher v. Tipton, 133 Mo. App. 557, 113 SW 674. Municipality not Insurer against damage from construction works but obligation measured by exercise of reasonable care and liability only predicted upon neglect. Ettlinger v. New York, 58 Misc. 229, 109 NYS 44. In action for consequential injury to property by city's act in leaving abutment in stream, where indiv-dual could not question authority of city to so do, city was only liable for negligence in construction. Prime v. Yonkar s, 192 N. Y. 105, 84 NNE 571. City liable in damage for faulty construction of street and gutter in front of abutting owner's premises or failing to keep in repair, if notified of defect, and no contributory negligence. Edwards v. Willlamsport, 36 Pa. Super. Ct. 43.

01. Municipality not Insurer for Works under construction but liability measured by reasonable care, based on neglect. Silverberg v. New York, 59 Misc. 492, 110 NYS 992. In lawful improvement of alley whure 19 Curr. L.--60.

# Municipal conformations $ 15.

12 Cur. Law. must be guarded with reasonable prudence. \[67\] Actual or constructive notice is prerequisite to a municipality's liability for the defective condition of public places or facilities. \[68\]

SS 15. \_Claims and demands. \[69\]\_See 10 C. L. #12. \[60\]\_Status usually require that notice be given to municipalities within a limited time of demands for injuries re-

ued as sewer. Levasaewr v. Berlin \[N. H.\] \[ble Co. v. Confer \[Cal.\] 97 P 881. Negit-71 A 628. Liable when in repairing sewer pipe of one who has lawfully connected mewitt is stopped up and bursts. Goggin of Odim v. Nichols, 133 Ill. App. 306. City v. Lewiston, 103 Mc. 119, 68 A 694. Under priv. and Sp. Laws 1903, p. 415, 628. Gy 283. Liability being board of public works are and control of sewers, city is nevertheless liable for defective repairing the same as it council or other municipal agency was charged with duty. Id. City required by charter to promptly repair sewers not liable for ob-aruction not caused by negligence. Kat-zenstein v. Hartford, 80 Conn. 663, 70 A 23. Damages for failure to remove obstruction in sewer only recoverable if negligence in failure to make repairs after notice. Id. No liability for diversion or surface waters when incident to improvement. Contraction of retaining wall in grading school lots. O'Neill v. St. Paul, 104 Minn. 491, 118 NW water resulting solely from grading streets pursuant to legislative authority. Prime v. Yonkera, 192 N N. Y. 106, 84 NE 571. No action for drainage of public road causing diver-sion of surface water. Heape v. Berkeley County, 80 S. C. 32, 61 SE 298. City not liable for injury caused by drain where no allegation that city made drain or acted as to it, and petittion permitted conclusion that drain was natural until filled with debris. Harney v. Lexington \[KY.\] 118 SW 115. Damage district organized pursuant to Laws 1879, p. 120, and amendments is liable for damage resulting from construction of levele where-by flow of river obstructed and water diverted upon other lands. Bradbury v. Van-dalia Levee de Drainage Dist., 286 Ill. 86, 86 NE 163. Public involuntary quasi corporation, being mere political subdivision of state to aid in administration of government, not liable for negligence of agents. Id. Drainage district not created for political purpose or administration of civil government. Id. Where town permitted defect in sidewalk, and abutting owner with knowuledge of edge of such defect collected surface water and discharged same on sidewalk, occasioning an injury, either was liable. Field v. Gowdy, 199 Mass. 568, 85 NE 884.

7. Hungerford v. Waverly, 125 App. Div. 311, 109 NYS 438; Town of Spencer v. May-Held \[Ind. App.\] 18 NE 28. City not insurer. Kawiecka v. Superior, 136 Wis. 613, 118 NW 192; Romanowski v. Tonnwanda, 127 App. Div. 814, 112 NYS 106; Town of Spencer v. May-Held \[Ind. App.\] 18 NE 23. Liability beause of failure to keep streets in repair arises from the fact that a city has exclusive control of streets and power to provide for safe condition. Schighley v. Wasea \[Min.\] 118 NW 259. Liability may be imposed by implication from authority and resources given city as well as by specific terms of statute. Ruth v. Omaha \[Neb.\] 118 NUV 1084. City liable for obstruction in street by contractor where notice to super-intendent and no abatement of nuisance, or means to warn public. Stockton Automo-ceived by reason of defective streets, sidewalks, or otherwise.\[70\] These notices must be sufficient in point of form \[71\] and contents,\[72\] though a substantial compliance is ordinarily sufficient \[78\] and defects may be waived.\[74\] Injunction lies at the instance of a taxpayer to prevent the payment of an illegal claim.\[75\] A city council may exercise reasonable discretion in the settlement of claims,\[79\] but the surrender of a valuable claim when there is no room for substantial controversy is prohibited.\[7\] A

Cyc. 1748-1754; 20 A. & E. Enc. L. (2ed.) -- munity property and verification by husband, alone sufficent. Matthews v. Spokane \[Vash.\] 96 P 827. Claims subject to amend-70. See Highways and Streets, 11 C. L. 1770, for rulings under states relating to wholly to streets. Sess. Laws 1903, p. 457, e. 17%, 8 i, requires notice of time, place and cause of injury due to city's negligence within 90 days. City of Colorado Springs v. Neville, 42 Colo. 21%, 93 P 196. Charter of city of Grand Rapids construed and $1 485, 486, held to provide for two notices, one, as preliminary, to state briefly location of defect and general character, and the other as specific notice in detail of plaintiffs claim. Moulter v. Grand Rapids \[Mich.\] 15 Del. Leg. N. 97%, 118 NW 919. Ray. St. $282, as to filing of claims restricted to subject-matter of legislation, or street improvements, and does not include damages for nuisance created and maintained by city. City of Ironton v. Wiehle, 78 Ohio St. 41, 84 NE 425. Hurd's Key. St. 1905, $ 2, par. 7, requires six month notice in case of personal injury. City of Wnukegan v. Sharafinski, 135 Ill. App. 436. Both notice of injury for which city of second class is liable, as required by Laws of 1898, p. 438, e. 182, $ 461, as amended Laws 1904, p. 127%, 6. 504, and notice of intent to sue as required by Laws 1886, p. 801, e. 572, are prerequisite. Higgins v. Albamy, 114 NYS 516. Statute mandatory. Smith v. Chicago Brights, 14 Ill. App. 588. Nonacction of council not waiver of notice. Ridgeway v. Escansha \[Mich.\] 15 Del. Leg. N. 623, 117 NW 560. Object of notice to enable city to prepare for trial if no settlement. Hase v. Seattle \[Vash.\] 98 P 370. Enable municipal authorities to determine place and time of accident. Purdy v. New York, 193 N. Y. 521, 86 NE 560, r. 126 Ap. Div. 320, 110 NYS 822. Fact that suit brought without statutory notice does not preclude dismissal of suit, giving of required notice, and institution of new suit. Village of Odin v. Nichols, 133 Ill. App. 306. Provisions requiring notice will be uphold only when reasonable dialing in administration of justice. Hase v. Seattle \[Iwash.\] 98 P 370. Provision of distance requiring residence of claimant for one year prior to injury unreasonable, especially where another provision prohibited action on claime after 60 days from present-ation. Id.

71. Under charter of Salem, $ 15 (Laws 1899, p. 92%), itemizing and verification of claim against city is condition precedent to liability. Richardson v. Salem \[Or.\] 94 P 34. Claim for services defective on denmurer. Id. Charter provision requiring claims to be verified and in writing mandatory. Farley v. Lockport, 113 NYS 702. Action barred until required claim verified as required and filed. Id. City council may waiver charter provision as to writing and verifying claim as to investigation, but filling requisite before payment. Id. Claim for personal injury to married woman, comma committee of aldermen- to report as to a city's liability on claims are not agents for the purpose of making admissions.\[78\] A city taking over a waterworks and lighting plant is liable for purchases for maintenance and operation.\[79\] In the absence of statute, claims against municipalities must generally be presented and payment demanded before interest is allowable.\[80\] Cities are not entitled to priority over other creditors of a defaulting public officer in the collection of claims on his bond.\[81\]

SS 16. _Actions by and against_,\[82\] See 10 C. L. \[91\]--A constitutional provision for suits against the state is inapplicable to municipalities,\[83\] but ordinarily a city in exercising its corporate powers may sue and be sued.\[84\] Actions against a municipality must be brought in the county where it is situated.\[85\] A municipality alone may not maintain a bill to abate an obstruction of a city street.\[86\] A person selling goods to a city can only recover the market value of the same.\[87\] A county appropriating a portion of a road tax which should be paid to a city or village is liable for such sum.\[88\] Substantial compliance with the statutes requiring presentation of claims must be alleged,\[89\] and the payment of ciains cannot be enforced by mandamus in some states.\[90\] A bill to charge a municipality as voluntary trustee under a

78. V Walker v. Waterbury \[Conn.\] 69 A. Injunction against city to restrain cutting: 1021. Where order for payment of claim \[off of water supply denied where no irrepensed over mayor's veto by two-thirds vote\] are natively injury. Anderson v. Berwyn, 135' including vote of alderman who was claim- ant and which vote was necessary to pass, such record is not admissible to prove residence in counties. Malsicol v. New York, city's liability on claim. Walker v. Waterbury \[Conn.\] 69 A 1021.

01. Taking authorized by Kirby's Dig. $ 5675. Vynne Improvement Dist. No. 1. v. Brown \[Ark.\] 109 SV 1010.

01. Appleton Waterworks Co. v. Appleton, 135 Wis. 395, 117 NSW 816. Demand necessary in view of provision of city charter requiring presentation of claim before action. Id. 81. United States Fidelity & Guar. Co. v. Rainey \[Tenn.\] 113 SV 397.

01. Search Note See notes in 2 C. L. 957; 4 Id. 753; 4 L. R. A. (N. S.) 182; 5 Id. 187; 10 Id. 478; 13 Id. 157; 14 Id. 298; 2 A. S. R. 92; 3 Ann. Cas. 749; 4. Id. 426.

See, also, Municipal Corporations, Cent. Dig. $ 2189-2214; Dec. Dig. $ 1016-1040; 28 Cyc. 1785-1774; 20 A. & E. Enc. L. (2ed) 1231; 14 A. & E. Enc. P. & P. 221.

See, also, Abbott, Mun. Corp. $ 1107-1168.

83. Goldtree v. San Diego \[Cal. App.\] 97 P 21.

01. Municipality sned for damages resulting from broken sewer, a duty assumed. Cairns v. Chester City, 34 Pa. Super. Ct. 61. Village may enjoin removal of lateral support from street: Village of Havestraw v. Ekerson, 124 App. Div. 18, 108 NYS 506. Village a municipal corporation (Laws 1892, p. 1801; 6.87, 3 & General Corporation Law), and may sue and be sued by Const. Art. 8, $ 3. providing that all corporations shall have the "right to sue and shall be subject to be sued in all courts in like cases as natural persons." Id. "LLike" means "having same or nearly same appearance, qualities, or characteristics; resembling: similar to: equal ip quantity, quality or degree." Id.

Rev. St. (1st ed.) 3. 349, p. 1, 5, 11, it, 4, art. 1, $ 5, as amended by Laws 1866, p. 1146, c. $34, and title 5, $ 1, is repealed by Town Law (Laws 1890, p. 124, p. 568, $ 240), but lata-law by $ 182 a authorizes suit by town against former officers for accounting. Town of Peham v. Shinn, 113 NYS 98. Section 182 rather crude but intention, manifest. Id.

legislative act for the payment of bonds may be barred by laclues.91 In an action or warrants where the petition avers a lien on funds collected and prays judgment for the debt with collections to be applied in payment, the lien on the general fund is not waived.92 Under proper circumstances and where not forbidden by statute, mandamus will lie to compel a levy of taxes to pay a judgment against a county.93 Ordinarily, taxpayers may enjoin acts injurious to property, unauthorized contracts, unlawful disposition of funds and similar acts resulting in the squandering of taxpayers' property.94 The award of an execution against a city 95 or costs 98 may be error. $\\Delta$ mechanics' lien judgment against a city fund may be authorized.97

Municipal Courts; Murder; Mutual Accounts; Mutual Insurance, see latest topical index.

NAMES, SIGNATURES AND SEALS.

$ 1. Names, 950.
$ 2. Signatures, 956.

_The scope of this topic_ is noted below.98

transury cannot be enforced by mandamus -- Duncan v. Combs \[Ky.\] 115 SWV 222. Taxa-and, though city diverted funds, mandamus -- payment? act (Laws 1881, p. 709, c. 631, as will not lie. State v. Kennedy, 121 La. 757, 46 S 796.

to prevent illegal usurration of powers by public officials and to external illegal acts, and taxpayers may enjoin only when acts are without power or when fraud is charged.

92. City of San Antonio v. Alamo Nat.

Bank \[Tex. Civ. App.\] 114 SWV 909. Petition to recover sum due on warrants, though showing uncollected sum on back tax rolls -- sufficient to pay plaintiff's claim, is sufficient without alleging diversion of same or denying plaintiff's right to receive payment of warrants from current fund of that year.

City of San Antonio v. Alamo Nat. Bank \[Tex. Civ. App.\] 114 SWV 909.

93. Lake County Comrs v. Schradsky, 43 Colo. 84, 95 P 312. Funding bond act of 1899 (3 Mills' Ann. St. Rev. Supp. $ 780a, et seq.), provides additional means for payment of judgment against court, but does not forbid.

bid mandamus. Lake County Com'rs v. Schradsky, 43 Colo. 84, 95 P 312. No abuse in grant of mandamus to pay judgment against county though debt large. Id.

94. See, atiso, previous sections. Carstens v. Fond du Lac \[Wis.\] 119 NWV 117; Jordan v. Loganator \[Ind.\] 86 NE 47; Larkin v. Allegheny \[C. C. A.\] 182 F 611. Taxpaying freenan entitled to be heard in euit against city which may involve execution against his property. Nichols v. Ansonia \[Conn.\] 70 A 636. Cannot enjoin acts purely legislative or discretionary. Brunnitt v. Ogden Waterworks Co., 33 Utah, 285, 93 F 828. Taxpayer may sue on behalf of a municipality to recover money paid on void contract where proper officials refuse to act. Independent School Dlst. No. 5 v. Collins \[Idaho\] 98 P 857. Injunction by taxpayer when expenditure in disregard of statutory method. Dunkin v. Blust \[Neb.\] 119 NWV 8.

Where Ky. St. 1903, $ 3175, provided for recovery of taxes collected and expended, under ordinance not specifying purpose of tax, by clty solicitor, or if he failed for six months "any person" might Institute action, petition by citizen without allegations showing him in fact to be taxpayer was sufficient.

950 NAMES, SIGNATURES AND SEALS SS 1.12 Cur. Law.

SS 1. Names."See 10 C. L. 918.-As a general rule the common law recognizes but one Christian name ${}^{st}$ and takes no account of middle names or initials," but this rule is ordinarily applied as excusing only their omission and not their mistatement." While it is a general rule that initials cannot be substituted for Christian names in judicial proceedings," this rule has been greatly relaxed and the use of initials " or contractions " is frequently sanctioned where identity of person is clear."

Parol evidence is admissible to show such identity." Except where it may be cured by amendment," material variance of name is fatal in judicial proceedings," but to be material the variance must be such as to mislead the opposite party to his prejudice." The suffixes "Jr." and "Sr." are not part of a name," but the word "trustee" inserted after the name of the grantee in a decd is not merely descriptio per-

Justices of the Peace, 12 C. L. 496, as to necessity of official seal to process issued by Justice; Municipal Corporations, 10 C. L. 881, as to effect of seal of city as evidence of passage of ordinance; Appeal and Revive, 11 C. L. 113, as to necessity for sealing bill of exceptions.

99 Search Note: See notes in 14 L. R. A. 890; 17 Id. 824; 39 Id. 423; 2 L R. A. (N. S.) 1089; 12 Id. 600; 15 Id. 129; 16 Id. 650; 100 A. S. R. 322; 5 Ann. Cas. 894.

See also, Names, Cent. Dig.; Dec. Dig.; 29 Cyc. 260-278; 21 A. & B. R. Ence. L. (2ed.) 805; 14 A. & E. Enc. P. P. 270.

1. Carney v. Bigham \[Vwash.\] 99 P 21; D'Antromont v. Anderson Iron Co., 104 Minn. 165, 116 NVV 357.

1. Carney v. Bigham \[Wash.\] 99 P 21; D'Antromont v. Anderson Iron Co., 104 Minn. 165, 116 NPV 357.

1. Insertion of wrong initial In service by publication held fatal. D'Antromont v. Anderson Iron Co., 104 Minn. 165, 116 NVV 357.

1. Affluavit on which attachment was based held bad and not amendable, defendant debtor's Christian name not being given In a legal sense, initials being insufficient. McGrew v. Steiner \[N. J. Law\] 171 A 112.

1. In Georgia action may properly be instituted by employing initials instead of full Christian name of defendant, men being frequently known by initials of their Christian names, Mineh w. \[Vwash.\] 99 P 21, Lumber Co. \[Ga. App.\] 62 SE 716; "W. B. Priest" proper In indictment of "Wm. B. Priest." State v. Priest \[Mo.\] 114 SWP 949.

VWhere notice to take a deposition gave Christian names of a witness by initials, witness appeared and gave material testimony in action, fact that he subscribed deposition by full Christian names, first letters thereof being the same as initials given in notice, held not to require extrinsic evidence to show that witness testifying was same person as witness named in notice.

V Batters v. Rock \[N. D.\] 115 NW 511. Indorsement by initials on envelope sufficient to identify party if additional identification were necessary, Id. Evidence, in connection with Rev. St. 1899, $ 156 (Ann St. 1906, p. 1178), held to sustain finding that Lewis named as defendant in tax suit was owner even though first two initials of defendant therein were "J. W." while initials of grantee were "V. J." Id.

6. "Jno." is generally and correctly used as an abbreviation, abridment or contraction of the Christian proper name "John," we here indicate * 12 Cur. Law. NAMES, SIGNATURES AND SEALS 1.

- 13 **A presumption of identity of person arises from identity \[14\] or close similarity in names.\[16\]** One may sue another by the name by which he is known and by which he contacts \[16\] and where a person uses two names proceedings may be instituted against him by either,\[17\] where in fact known by two names it is immaterial that he is not equally known by both.\[18\] At common law a man may change his name at will and sue and be sued in any name in which he is known and recognized.\[19\] So, also, may he adopt any name in which to prosecute his business \[20\] and sue, and be sued, in such name.\[21\] A change in a woman's surname is presumptively brought about by marriage.\[22\] A fictitious name cannot be used for the defendant except where his true name is unknown,\[23\] and where a fictitious name is used, the proceedings must be amended to set forth the true name as soon as such name is discovered.\[24\]\*\* \_Idem sonans.\[See 10 C. L. 116--The rule is that absolute accuracy in spelling names is not required in legal documents or proceedings, and that the name, though incorrectly spelled, if it conveys to the ear when pronounced a sound practically identical with the sound of the correct name, is sufficient.\[25\] NAMES are idem sonans if the attentive ear finds difficulty in distinguishing the names when pronounced, or if common and long-continued usage has by corruption or abbreviation made them identical in pronunciation.\[26\] Whether one name is idem sonans \[27\] with another is a ques "Schutz" and "Schultz": certificate of ac- \[23 Ga. 161; Breatly-Brailey, People v. Gosch, knowledgement of deed toot vitated by haying Improperly inserted letter "I" in grantor's name. Veit v. Schwob, 127 App. Div. 171, 111 NYS 286, "Minnie E. Tiliter" used in summons for true name "Minnie E. Tiliter".
- Kelly V. Kuhnhausen \[Wash.\] 98 P 603. "Holenville" and "Holdenville" held so similar as to give notice under doctrine to telegraph company that telegram addressed to "Holenville" was intended for "Holenville". "Vestern Union Tel. Co. v. Hankins \[Tex. City. App.\] 110 SW 539. "Georgia Holland" and "Georgia Harland" and discrepancy in executive warrant held not to warrant release on habeas corpus. Holland v. State, 53 Tex. Cr. App. 301, 108 SW 1181. "Not idem soans:" "Boulden" with "Bourland". "Accormick v. Jester (Tex. Clv. App.) 115 SW 278. "Stelmann" and "Stiman." Steinman v. Jessee, 108 Va. 567, 628 SB 278. "Philip McArdle" and "Peter Me-Ardle", same person. Berkeley v. Tipton L. H. & P. Co. \[Ind. App.\] 85 NE 724. "NOTE. Alphabetical List of Names Held Idem Seans or The Reverse. Names held Idem seans: Abbotsan-Abbatsan, Cotton's Case, Cro. Elitz. 258; Adamson-Adaison, James V. State, 7 Blackf. \[Ind.\] 327; Adderson's Island-Anderson's Island, held immaterial variance, Van Pelt v. Pugh, 1 Dev. & B. Law (N. C.1) 210; Allen-AlAlaine, Chiniquy v. Catholic Bishop, 41 Ill. 148; Allen-Alain, Guerin v. Momblesau, 144 Ill. 33, 33 NE 49; Alwin-Alvin, Jocikesh v. Hardtke, 50 Ill. App. 204; Amiel-Amiel, People v. Gosch, 82 Mich. 22, 46 NW 101; Anna-Anne, held immaterial variance where party appeared, Kerv. Swallow, 33 Ill. 380; Anne-Anny, State v. Upton, 1 Dev. Law \[N. C.\] 513; Anthon-Anthrum, State v. Scurry, 3 Rich. \[S. C.\] 68; Anthon-Online, Chiniquy v. Catholic Bishop, 41 Ill. 148; Armstead-Almstead, Armstead v. Jones, 71 Kan. 142, 80 P 65; Arnal-Arnold, Arnal v. Newcom, 39 Tex. City, App. 531, 68 SW 92; Augustine-Augustina, Commonwealth v. Desmarteu, 16 Gray \[Mass.\] 15; Bayer-Bagswell, Case V. Bartholow, 21 Kan. 300; Barbara-Barbara, State v. Hustl, 52 Kan. 354 P 453; Barnstein-Burnstein, Springer v. Hutchinson, 67 Ill. App. 80; Battles-Battelle, Leath v. State, 132 Ala. 26, 31 S 108; Beckwith-Beckworth, Stewart v. State, 4 Blackf. \[Ind.\] 171, 29 Am. Dec. 364; Betlon-Beton, Betlon v. Fisher, 44 Ill. 32; Benedetto-Beton, ditto, Ahitbol v. Benidtto, 2 Taint. 401; Beneux-Bennaux, Beneux v. State, 20 Ark. 97; Bernhart-Bannhart, State v. Witt, 34 Kan. 488, 8 P 769 (but there was evidence that the name was distinctly pronounced both ways); Berry-Barry, Racete v. State, 53 Ga. 570; Bert-Burt, State v. Johnson, 70 Kan. 861, 79 P 732; Bert Samrud-Bernt Sannerud, State v. Sannerud, 38 Minn. 22, 36 NW 447: Bettie-Beguite, Grossale, 17 Ill. 248, 52 NE 372; Beulah-Berlan, Lane v. Innes, 43 Minn. 137, 45 NW 4; Biglow v. Bigelow, in Bigelow v. Chatterton, 51 F 614; Blackenship-Blankenship, State v. Blankenship, 21 Mo. 504; Bogeug, Bogue v. Bigelow, 29 Vu. 179; Edmond Bolden-Ed. Bolen, Plitangle v. Comm. 91 Va. 808, 22 SE 351, 50 Am. St. Rep. 867; Booth-Boothe, Jackson v. State, 74 Ala. 26; Boudet-Boredet-Burdet, Aaron v. State, 37 Ala. 108; Braddy-Brady, Dickerson v. Brady, 23 Ga. 161; Breatly-Bradley, * \[13\] Cur. Law. NAMES, SIGNATURES and SEALS **1**.
- \[14\] Keeland-Kneeland, Doe v. Roe, Dudley \[Ga.\]
- \[15\] 220; Forest-Fourai, State v. Timmina, & Minn. \[17\]; Tranch C. C. \[Mass\]; 67; Kennedy McCutchen-
- \[16\] 63, 27 Am. St. Rep. 852, 19 SW 847; Forshee-
- \[17\] 59, 12 NE 661, 27 Am. St. Rep. 782; Kenny-
- \[18\] 495; Foster-Faster, Foster v. State, 1 Tex. App. 582; Foster-Poroster, Bedford v. Forster, Cro. Jac. 77; Gardiner-Gardner, Reactor v. Traylor, 12 Ark. 128; George-Gerox, Hall v. State, 82 Tex. Cr. App. 594, 45 SW 22; Gersman-Gersmann, Gersman v. Levy, 67 Misc. 166, 68 Misc. 174, 108 NYS 1107; Geussler-
- \[19\] 65, 12 NE 661, 27 Am. St. Rep. 782; Kenny-
- \[20\] 66, 27 Am. St. Rep. 852, 19 SW 847; Forshee-
- \[21\] 68, 25 SW 755; Kenny-
- \[22\] 69, 12 NE 661, 27 Am. St. Rep. 782; Kenny-
- \[23\] 69, 12 NE 661, 27 Am. St. Rep. 782; Kenny-
- \[24\] 69, 12 NE 662, 27 Am. St. Rep. 782; Kenny-
- \[25\] 69, 12 NE 661, 27 Am. St. Rep. 782; Kenny-
- \[26\] 70, 8 AB 520, 12 NE 661, 27 Am. St. Rep. 782; Kenny-
- \[27\] 69, 12 NE 662, 27 Am. St. Rep. 782; Kenny-
- \[28\] 69, 12 NE 663, 27 Am. St. Rep. 782; Kenny-
- \[29\] 70, 8 AB 520, 12 NE 664, 27 Am. St. Rep. 782; Kenny-
- \[30\] 69, 12 NE 665, 27 Am. St. Rep. 782; Kenny-
- \[31\] 69, 12 NE 666, 27 Am. St. Rep. 782; Kenny-
- \[32\] 69, 12 NE 667, 27 Am. St. Rep. 782; Kenny-
- \[33\] 69, 12 NE 668, 27 Am. St. Rep. 782; Kenny-
- \[34\] 69, 12 NE 66 954 names, SIGNATURES and SEALS $ 1. 12 Cur. Law.

\[N, Y.\] 147: Penryn-Penryrine, 2011ott!'s 95; Westley-Wesley, Proudfoot v, Lounut, 9 Essese v, Knotti, 14 261. 121. 74 Am. Dec. 519; Grant Ch. 70; Weston-Wason, Symmers v. Peregrame-Peregrine, Dunn v. Clements, 7 Wason, 1 B. & P. 165; Whatson-Watson by Jones \[N. C.\]60; Peter Peterson-Peder Peder- the jury, Toole v. Peterson, 9 1red. \[N. C\]son, Pederson v. Lease, 48 Wash. 253, 93 P. 180; Whitman-Whithm, Henry v. Stato, 7 439; Petris-Pertle, Petrie v. Woodworth, 3 Tex. App. 392; Wilkerson-Wilkinson, Wilkerson-Calines \[N. Y.\] 319: Pettes-Pettis, Hutto v. son v. Stato, 18 Mo. 91, 53 Am. Dec. 187; State, 7 Tex. App. 46; Philip-Pellip, Taylor v. William-Williams, Williams v. Stato, 6 Tex. Rogers, 1 & Minor \[Ala.\]197: Philiby-Pillibyury, App. 231; Wizard-Winnard-Whynard, Rox Pillsbury's Lessee v. Dugan, 9 Ohlo, 117, 34 V. Foster, 1 Russ. & R. C. C. 412; Witt and Am. Dec. 427; Prio-Pryor-Pryor, Page v. Wido, Veal V. State, 116 Gaa. 16; Ray-Wray, Sparks v. Woolley, 12 Ark. Sparks, 51 Kan. 155, 32 P 832; Rayier-Reynolds, Sparks v. Sparks, 51 Kan., 155, 32 P 832; Karber-Reynolds, Sparks v. Sparks, 51 Kan., 155, 32 P 832; Yarbey-Yarbey, Russell v. Riley-Rigky, State v. Pottneet, 117 La. 24, 8 95; 155, 32 P 832; Yarbey-Yarbey, Russell v. Riley-Rigky, State v. Pottneet, 117 La. 14, 87 264; Zermerlah-380, 41 S 68; Roland-Rawlin, Roland v. Zimni, Ames v. Snider, 55 Ill. 498; Zerelday-State, 127 Ga. 401, 56 SE 412; Robinson-Serladis-Serladis-Serladis, held similar names, Cart-Robson by the jury, People v. Cooke, 6 right v., McCowm, 121 Ill. 288, 12 NE 787, Park. Cr. \[N. Y.\] 45: Rooks-Rux, Rooks v. State, 8 Ala. 79, 8 T20; Rosa Lillroy-Rosa Lillroy, Gailinao, V. Kilfroy, 94 Cal. 86, 29 P 416; Sanfle-Saffell, Hoffman v. Bircher, 22 W. Va. 641; Bert Sambrud-Berl Sannervdu, State v. Sannervdu, 38 Minn. 229, 38 NW 474; Samul-Samuel, Fenn v. Alston, 11 Mod. 284; Sarmin-min-Sarmin, Cull v. Sarmin, 1 3 LeV. 66; Sawyer-Sawers, Ex parte Sawvers (Tex. Cr. App.) 48 SV 512; Schmitt & Brother Co., Schmidt, etc., co. V. Mahonenov, 60 New, 20, 8 N9; Seaver-Sea-vers, Seaver v. Fltgerald, 23 Cal. 93; Seden-Soden, Wyatt v. Barwell, 19 Vys., Jt. 435; Seden-grave-Senggrave, Williams v. Ogale, 2 Strange 889; Sella-Cella, Galveston, etc., R. Co. v. Sanchez \[Tex. Cir. App.\] 65 SW38; Shaver-Craft-Shaeroff, Denner v. Sharcraft, I. Cro. Eliz. \[Eng.\] 258; Sibert-Sofent, Green v. Meyers, 93 Mo. App. 418, 72 SW 125; Shaffer-Shaerer, Rove v. Palmer, 32 Sa. 839; Shutter-Shutter, State v. Johnson, 26 Wash. 294, 78 P 903; Sinclair-St. Clair, Rivard v. Gardner, 39 Ill. 126; Steenburg and Greenburg, in Carroll v. State, 53 Neb. 431, 73 N 839; Steven-Stevens, Stevens v. Stebbins, 3 Secam. \[Ill.\] 25; Stirr-Stier, City of New Albany v. Stier, 34 Ind. App.

State \[Tex. Cr. App.\] 31 SWV 642; Edward- \[Jonathan McCarver-John McCarvey, McCaraj Edmund, Flood v. -Randall, 72 Me. 439; \[very v. Cox, 24 Ark.574; McCooksey-McKaskey-Elirere Lowtherliser-Ezra Loutenheliser, McKlaskey-McKlaskey, Blacke v. State, 57 Abbott v. State, 59 Ind. 70; Ellisha-Elljah, Ind. 111; McKee-McRee, McRee v. Brewn, 45 Mead v. State, 26 Ohio St. 505; Craig v. \[Tex. 507; McGian-Glenn, Martin v. State, 16 Brown, Pet. \[C. C. 133, 195, Fed. Cas. No. 3325; \[Tex. 240; Maher-Menter, as a matter of law, Emellne-Evelina, Scott v. Ely, 4 Wend. \[N. \[but held to be a question for the jury: State Y.\] 567; Emma-Empliy, Burge v. Burge, 94 V. Perkins, 70 N. E. 330, 47 A 285; Matthews-Mo, Arp, 15, 61 SWV 703; Fallleck-Falk, Cal. \[Mather, Robson v. Thomas, 55 Mo 61; May-kins v. Falk, 1 Abb. App. Dec. \[N. Y. 291; Mary, Kennedy v. Meriman, 70 Ill. 230; Max-Farro-Farra tion of pronunciation, not of spelling,\[28\] and where letters may be considered interchangeable after hearing the pronunciation of the names, it is a question for the court to determine whether or not the rule applies.\[29\] The doctrine is unavailable to cure variations in the spelling of a name, unless the combination of letters and syllables produce the same sound as the true name.\[30\]

\_Business and corporate names.\[31\]- See 10 C. L. 196--Individuals may adopt or assume as their trade or business name any name they desire, except as prohibited by statute,\[32\] and in such name sue and be sued,\[32\] but in some states it is a penal offense to carry on, conduct or transact business under an assumed name unless a certificate showing the same is filed with the county clerk.\[34\] If the name in which a suit is brought is not in fact the plaintiff's trade name, the question should be raised by a plea in abatement setting up the misnomer.\[35\]

SS 2. \_Signatures.\[38\]- See 10 C. L. 196--No particular form of "signature" 37 is required provided it is adopted as the signature of the person intended.\[38\] Generally, when a document is required by the common law or by statute to be "signed" by any person, a signature of his name in his own proper personal hand writing is not required,\[39\] and, where a sealed instrument is in fact signed by another in one's presence and immediate parol direction,\[40\] it becomes his valid act though the other's authority for executing it is not under seal.\[41\] A signature may be made by a 197, 57 P 698, 77 Am. St. Rep. 255; Wall-Hall,

ness upon filing of certificate nor to be applicable to person engaged in practice of law under an assumed name. Id.

93 Mo. 430, 6 SWP 220; Wilhelm-Minnie,

35. General demurrer or motion to dismisss Grober v. Clements. 71 Ark. 568, 76 SWP 555,

hold to admit being sued by real party plaintiff. Charles v. Valdosta Foundry & Y. State, 28 Tex. App. 65, 11 SWP 1022; Wilam-Willehem,

36. Search Note. See notes in 22 L. R. A. Co., 68 Ill. 412; Willis-Williams, Thornty v. Prentice, 121 Iowa, 89, 85 NW 728, 100 Am. St. Rep. 317; Williston-Willison, Bull v. Franklin, 2 Speers \[S. C.\] 46; Wood-Woods,

Nelderlv v. State, 21 Tex. App. 220, 17 SWP 467; Wortman-Workerman, Lafayette v. Wortman, 107 Ind. 404, 8 NE 277; Ycoet-Joseat,

38. A. Lauer's Appel, 40 Pa. 453, 80 Am. Dec. 590; Zachari-Zenary, Lawrence v. State, 59 Ala. 61. The rules applicable to the determination of Idem sonans are discussed in 100 Am. St. Rep. 322, from which many of the above citations were adapted to this note.--\[Ed.\]

01. Map State Hospital v. Dasso, 153 Cal. 698, 96 P 256.

01. Whether "Dasso" and "Tasso" were Idem sonans for court, "T" and "D" being considered interchangeable. Napa State Hospital v. Dasso, 153 Cal. 698, 96 P 355.

01. "A. J. Steinman" In caption of publish notice "Steinman" and in warning part "Steinman" initials being correct, held not Idem sonans. Steinman v. Jessee, 108 Va. 567, 62 SE 275.

01. For trade names see Trade Marks and Trade Names, 10 C. L. 1865; and for Corporate names, see Corporations, 11 C. L. 810.

01. Civ. Code 1895, 8 2636. Charles v. Valdosta Foundry & Mach. Co., 4 Ga. App. 738, 62 SE 498. May adopt any name in which to prosecute business. Emery v. Kipp \[Cal.\] 97 P 17.

01. Charles v. Valdosta Foundry & Mach. Co., 74 Ga. App. 738, 62 SE 493.

01. In re Kaffenburgh, 115 App. DIV. 346, 101 NYS 607. Pen. Code, 8 368b, held not to authorize any person to carry on any busu rubber stamp \[42\] and be valid though nothing but a mark,\[49\] and though not attested where attestation is not required by statute.\[44\] Under statute requiring that "when the signature is required he must write it or make his mark" where there is no doubt as to the identity of the person having made the mark, it is immaterial that the servener in writing the name makes a mistake in spelling such party's name.\[48\] Addition of words "secretary" "treasurer," etc., to signatures to indicate offices in a voluntary association in no wise affects the individual liability of the members having signed an association note,\[45\] but although the pronoun "we" is used in the body of a note it is prima facie a corporate obligation if signed by the corporation acting by its officer or officers.\[47\]_Evidence and proof._--A standard of hand writing need not be proved by the testimony of a person who saw the signature offered written,\[48\] nor can it be proved by the opinions of witnesses;\[49\] but the same may be proved by any evidence direct or circumstantial independent of opinions,\[50\] and a witness, although not an expert, may state his own knowledge as to whose handwriting a signature is.\[51\] One asserting that a deed is a forgery has the burden to establish the fact by a preponderance of the testimony,\[52\] but where, pending an action to recover land, afflavits alleging, the forgery of the deed under which defendant claims are filed by the plaintiff, the burden of proving genuineness rests on the party asserting the same.\[83\] In trespass to try title involving the identity of a person to whom a patent was granted, evidence that a person with the same name under which plaintiff claimed was within the state at the time the certificate issued is relevant,\[54\] and it is competent to prove the fact by family history.\[55\] A partial identity in name in the absence of controverting evidence is sufficient to show that the person to whom land is devised is the same person as the one who signed a deed of the land,\[56\] and a recital of identity of person 42. Custom of agent to use rubber stamp in nafflaving his signature admissible as going to show authenticity of documents bearing signature affixed in such manner. Union Cent. Life Ins. Co. v. Washburn \[Ala.\] 48 S 612.

01. McGowan v. Collins \[Ala.\] 46 S 228. At common law a note may be signed by mark and person may adopt mark as his signature. Jackson v. Tribble \[Ala.\] 47 S 310. Code 1896, 8 982, providing that if grant is unable to sign his name, name must be written for him with words "his mark" written against name or "over it," does not require that words "his mark" appear where a conveyance is executed under and by grantors or on direction and presence. Code 1896, $ 982. Harwell v. Zimmerman \[Ala.\] 47 S 722.

01. Jackson v. Tribble \[Ala.\] 47 S 310. Note by Hilterta promisor by mark, name of witness who also could not write, written by paye, held valid. McGowan v. Collins \[Ala.\] 48 S 228. Objection to validity of note signed by mark without attesting witness to signature intenable where at time of objection there was no proof that alleged maker could not write. Jackson v. Tribble \[Ala.\] 47 S 810. Civ Code 1896, $ 1, defining "signature" or "subscription" inapplicable to execution of promissors notes. McGowan v. Collins \[Ala.\] 46 S 228; Jackson v. Tribble \[Ala.\] 47 S 310.

01. Divorce decree valid, signature of libelant being Mary Jane Farrar, instead of Mary Jane Mears, identity not being In doubt.

01. Intention regarding liability Immate-ral. Evans v. M. C. Lilly & Co. \[Miss.\] 48 S 612.

01. Note, "We promise to pay to order of," signed Northeastern Coal Company, Commo-More P. Frye, Secretary, Goodman Vailem, President Northeastern Coal Company, held' corporate obligation. Northeastern Coal Co. v. Tyrrell, 133 Ill. App. 472.

48, 49, 50. Newton Centre Trust Co. v. Stuart, 201 Mass. 288, 87 NE 630.

51. "If you know, state in whose handwriting the signatures are," held not objection-able. Parkersburg Nat. Hank v. Hannaman, $ 982. Warwell v. Zimmerman \[Ala.\] 47 S 722.

01. Jackson v. Tribble \[Ala.\] 47 S 310. Note by Hilterta promisor by mark, name of witness who also could not write, written by paye, held valid. McGowan v. Collins \[Ala.\] 48 S 228. Objection to validity of note signed by mark without attesting witness to signature intenable where at time of objection there was no proof that alleged maker could not write. Jackson v. Tribble \[Ala.\] 47 S 810. Civ Code 1896, $ 1, defining "signature" or "subscription" inapplicable to execution of promissors notes. McGowan v. Collins \[Ala.\] 46 S 228; Jackson v. Tribble \[Ala.\] 47 S 310.

01. Divorce decree valid, signature of libelant being Mary Jane Farrar, instead of Mary Jane Mears, identity not being In doubt.

01. Custom of agent to use rubber stamp in nafflaving his signature admissible as going to show authenticity of documents bearing signature affixed in such manner. Union Cent. Life Ins. Co. v. Washburn \[Ala.\] 48 S 612.

in such case is competent evidence on that issue.\[97\] Where undisputed signatures can be procured, it is within the discretionary power of the judge to refuse to receive evidence as to signatures which are in litigation or in dispute,\[56\] but the judge has no such discretion where the case at hand is not an extraordinary one.\[56\] The admission of the genuineness of certain signatures does not estop one from denying similar signatures on other instruments sued on.\[56\] Agency can be proved only by evidence tending to show authority to sign.\[41\] Under statute, where the person against whom an instrument is offered denies his signature, he is barred from every other defense.\[42\]

SS 8. _Seals.\[83\]_ See 10 C. L. #17.--By attaching one's signature to an instrument containing a printed "seal" at the place provided for the signature, the instrument in law becomes sealed.\[44\] Where a contract need not be under seal, the fact that an agent executes such contract under seal does not affect its validity,\[56\] and in Missouri the use of private seals in written or other instruments is abolished, and a seal if used does not affect the force, validity or character of the instrument or in any way change its significance or construction.\[56\] A seal imports consideration,\[57\] but in some states by virtue of statute it is only presumptive evidence thereof.\[58\] Under statute over may be craved of all instruments declared on whether sealed or unsealed.\[59\]

**National Banks; Natural Gas; Naturalization, see latest topical index.**

**Navigable waters.**

**SS 1. What are Navigable, 950.**

**SS 2. Relative, Public and Private Rights, 960.**

**SS 3. Regulation and Control, 963.**

**SS 4. Remedies for Injuries Relating to, 964.**

**SS 57, SS. Haney v. Gartin \[Tex. Civ. App.\]**

**SS 113 SVV 166.**

**SS 69. Signatures could not be refused where they were all disputed and party had used a signature different from her ordinary signature for certain transactions including those in question. Newton Centre Trust Co. v. Stuart, 201 Mass. 288, 87 NB 630.**

**SS 60. Where admission was not Intended by admitting party, to be acted upon by plaintiff in buying notes sued on. Newton Centre Trust Co. v. Stuart, 201 Mass. 288, 87 NB 630.**

**SS 61. Evidence to show that defendant's husband signed notes as agent, properly excluded where it did not tend to show that husband had authority to sign. Newton Centre Trust Co. v. Stuart, 201 Mass. 288, 87 NE 630. Authority in husband cannot be shown by evidence of transactions by husband of which wife had no knowledge. Id.**

**SS 62. Where signature under evidence was proved, held proper to render judgment against party denying it. Code of Practice art. 324, 325, 326. Smith v. Union Savmill Co., 120 La. 599, 45 S 519. Evidence held to prove genuineness of signature. Id.**

**SS 63. Search Note: See notes in SS 5 L. R. A. 605; 11 Ann. Cas. 250, 1110.**

\*\*SS 64. Under Rev. St. 29, 1 1 not necessary that impression be made of wax or that "servah" be actually written by person signing.\[43\]

**SS 65. Presumptive, Code Civ. Proc. 1 840.**

**SS 76. First Nat. Bank v. Keller, 127 App. Div. 435, 113 YES 729. Instrument under seal may be attacked at law for fraud in consideration and execution, seal being only prima facte evidence of consideration. B. & C. Comp., $ 765, 767, 688. Olston v. Oregon Water Power & R. Co., 96 P 1095. Under statute abolishing distinction between sealed and unsealed instruments, fraud is not excluvely an equitable defense. Id.**

**SS 77. Future relating to practice, 1 20, c. 110.**

**SS 78. National Council of the Knights & Ladies of Security, #Hbernian Banking Ass'n, 137 Ill. App. 176.** 12 Cur. Law. Navigable waters SS 1. 959

_The scope of this topic is noted below.70_

SS 1. _What are navigable.71_-_See 10 C. L. 918_-\_Navigable waters 72 are such as in their natural state 73 are navigable in fact 74 either continuously or periodically 75 for the ordinary purposes of commerce.76 Streams not navigable, within the general definition, are in some jurisdictions held navigable for a particular purpose 77 or subject to an easement for navigation 78 not inconsistent with private ownership.79 The navigability of water does not depend upon its actual use for navigation but on its capacity for such use.80 A legislative declaration of navigability 81 or non-naviga-

70. Includes the definition and nature of \[v. Ross, 161 F 398. Instruction, that "such navigable waters, the general rights of navilations as are navigable in fact are navigable \[gation and of access thereto, and the regula-

waters," while not erroneous falls to inform tion and control of such rights. Excludes \[\] jury as to what waters the law considers all matters with regard to riparian rights, navigable in fact. Orange Lumber Co. v. accretion, reliction, subaqueous and tide \[\] Thompson Tex. Civ. App. 111 SW 563. lands (see RIParian Owners, 10 C. L. 1528; \[\] 75. Channel may be navigable in law al-

Waters and Water Supply, 10 C. L. 1996), bridges (see Bridges, 11 C. L. 441), ferrles, \[\] Judson v. Tidewater Lumber Co. \[Wash.\] 98 (see Ferries, 11 C. L. 1467), wharfingers (see Wharves, 10 C. L. 2034), \[\] 76. Held navigable: Rock River to T. 14

fishing rights (see Fish and Game Law, 11 R. 15. In re Horizon Drainage Dist., 136 Wis. C. L. 1471), and rights to consumptive use, 227, 116 NW 12. Wlimetric river. State v. reclamation, pollution and political jurisdicdiction \[\] Portland General Elec. Co. \[\] 98 P 160. tion (see Water and Water Supply, 10 C. L. 1996), except as affecting or affected by

Massachusetts Tel. Co., 133 Mo. App. 452, 113 SW 730. navigability. Excludes, also, methods of

Stream that has been successfully used for navigation and the rights and disabilities in-

20 years for floating logs past point in question is navigable at that point. Trullinger

eral right of navigation (see chipping & V. Howe \[Or.\] 97 P 548. Lake of 905 acres,

Water TrEMc, 10 C. L. 1655), and matters re-

499 of which are 25 feet deep and previously

lating to the jurisdiction of courts of ad-

used for navigation of boats and logs. Brace

milraty and practice and procedure therein (see Admiralty, 11 C. L. 33).

71. Search Note: See notes in 42 L. R. A. \[\] 805: 16 L. R. A. (N. S.) 420; 19 A. S. R. 227.

See, also, Navigable Waters, Cent. Dig.

855-16. Dec. Dig. 1 ; 29 Cyc. 289-293; 21 A. & & **B. Enc. L** (2 ed) 424, 425.

72. Defined: Water has navigable when in

16 ordinary state it forms by itself or by its connection with other waters a continuous

highway over which commerce is or may be carried in customary mode in which such

commente is conducted by water. State v. Columbia Water Power Co. \[S. C.\] 68 SE SE 846. In its natural state, stream must, be

854. In its natural state, stream must, be

navigable for logs. Already v. Mauston Elec, at all times or periodically during the year

for times long enough to make it susceptible

of beneficial use to public for transportation.

Orange Lumber Co. v. Thompson \[Tex. Civ. App.\] 113 SW 563. Navigable stream is one

capable of bearing upon its boom, either

for whole or part of the year, boats loaded

with freight in regular course of trade. Mere

refung of timber or transportation of wood

in small boats does not make stream navigable. Sebaoard Air Line R. Co. v. Sikes, 4

Ga. App. 7, 60 SE 858.

73. The great rivers of the state which

are navigable by nature are public highways by common law. Commonwealth v.

Foster, 36 Pa. Super. Ct. 438. Under present

accepted definition, a stream not naturally

navigable is not legally navigable though

by improvement it is navigable in fact. State v. Columbia Water Power Co. \[S. C.\] 68 SE 846.

74. At English common law only tidal

waters were navigable, but in United States

those which are navigable in fact. McGilvra

959

10. The scope of this topic is noted below.70

01. What are navigable.71\_-_See 10 C. L. 918_-\_Navigable waters 72 are such bility\*\* will control subsequent legislation not unequivocally inconsistent therewith; \*\* but neither legislative declaration \*\* nor meanders \*\* or other government surveys \*\* are conclusive as to the navigability of a stream or other body of water, although the absence of such indicia has been held prima facie evidence of non-navigability.\*\* The modern judicial tendency is to hold water to be navigable which is of general use for pleasure boating though not useful for commercial purposes.\*\* A canal constructed to improve the navigation of navigable rivers is navigable water.\*\*

**SS 2. Relative, public and private rights.**\[80\] See 10 C. L. **\[81\]**-**Navigable water is a public highway of which the public is entitled to make reasonable use for the purposes of travel either for business or pleasure **\[91\] or for any other lawful purpose not inconsistent with the rights of the riparian owners.**\[92\] The title to subaqueous lands is held subject to the public's paramount right of navigation.**\[93\] Between individuals the right is equal and concurrent **\[94\] and the navigator must conduct his operations with due regard to the rights of others.**\[95\] The public has a right to assume that

raises no presumption of non-navigability. Id.

**81. Declaration of public highway is declaratioh of navigability. In re Horizon Drainage Dist., 136 Wins. 227, 116 NW 12.**

**82. Authorizing a dam with no provisions as to navigation is a declaration of non-navigability. Allaby v. Manston Elec. Servlec Co., 138 Wins. 345, 116 NW 4.**

**83. In the absence of express authority in In Drainage Law 1905, $ 18, c. 419, drainage commission cannot impair waters previously declared navigable. In re Horizon Drainage Dist., 136 Wins. 227, 116 NW 12.**

**84. Commonwealth V. Foster, 36 Pa. Super. Ct. 433. Act 1864, p. 180, e. 97, not conclusive. Kregar v. Fogarty \[Kan.\] 96 P 845. Lack-awaxen creek, declared by Act Meh., 26, 1814, 6 Sm. L. 187, to be public highway for passage of rafts, boats and vessels, not in fact navigable for such craft and is not a stream in which public fighting is permitted under Act May 29, 1901, P. L. 302. Commonwealth v. Foster, 36 Pa. Super. Ct. 433.**

**85. Kregar v. Fogarty \[Kan.\] 96 P 845.**

**86. Froration of section lines over navigable**

**legable waters does not change their status. State v. Gerbing \[Fla.\] 47 S 353.**

**87. Affords implication that it was so considered. Kregar v. Fogarty \[Kan.\] 96 P 845. A stream neither meanderd nor declared navigable by the legislature is prima facie non-navigable. Allaby v. Mauston Elec. Service Co., 135 Wins. 345, 116 NW 4.**

**85. State v. Columbia Water Power Co. \[S. C.\] 63 SE 884.**

**89. State v. Columbia Water Power Co. \[S.\] 63 SE 884.**

**80. State v. Columbia Water Power Co. \[S.\] 63 SE 884.**

**81. To be regarded as part of the stream. Id.**

**82. Seareh Note: See notes in 6 C. L. 744; 39 L. R. A. 491: 40 Id. 593; 41 M. 268, 371; 42 Id. 161; 45 Id. 227; 59 Id. 33, 77, 817, 82; 42 L. R. A. (N.) 872; 59 Id. 1047; 53 A. S. R. 289.**

**83. See, also, Navigable Waters, Cent. Dig. 1 1-4, 17-179; Dec. Dig. 2-35; 29 Cyc. 293-822; 21 A. & E. Enc. L (2ed.) 430.**

**91. State v. Columbia Water Power Co. \[S.\] 63 SE 884.**

**92. Reasonable use. Whitman v. Muskelson Log Lifting & Operating Co., 152 Mich. 645, 15 Det. Leg. N. 833; 116 SWV 614.**

**raise sunken logs but cannot use banks for storage. Id. Must use care in driving logs to not injureriran owner, Mandery v. Mississippi & Rum River boom Co., 105 Minn. 3, 116 NW 1027.**

**93. See infra, $ 3, Regulation and Control.**

**94. No damage for delay caused by another-reasonable use, but where other uses the stream for storage, right of action for de-lay arises. Orange Lumber Co. v. Thompson \[Tex. Civ. App.\] 113 SWV 563.**

\*\*95. NOTE. Liability for injuries caused by floating logs: The fact that there exists a common right to run logs in a navigable stream gives no immunity to individuals for injuries committed while using it. United States v. Mississippi & R. R. B. Co., 1 McCarry 601, 3 F 5 12 Cur. Law. Navigable waters SS 2. 961

there are no unlawful obstructions,\*\* however, a navigator is not authorized to unnecessarily and negligently run into an unlawful obstruction to navigation,\*\* although, such obstructions being a public nuisance, proper steps may be taken to abate the same.\*\* The improvement of a navigable stream is sufficient consideration to the public for the exaction of a toll and such exaction is not a violation of the statutory or constitutional promise that all navigable water shall be free,\*\* and collection of such tolls does not affect the legal navigability of the stream.\*\* At common law and in many jurisdictions there exists an easement for public travel over waters not technically navigable,\*\* but the right of the public to use water courses as a public highway is restricted in some states,\*\* although the public may acquire such a right by prescription and lose it by nonuser.\*\* The right of the public acquired by prescription in non-navigable streams is not exclusive but concurrent with that of the owner.\*\* A bridge is subject to a public easement for navigation\*\* even when the stream is non-navigable, if it might reasonably be anticipated that the stream would become navigable through artificial means.\*\* A railroad is not required to

without authority does not excuse Willful or 35 NW 758, 13 Am. St. Rep. 325). The gist meligent injury thereto (Watts v. Norfolk & of an action for injury, consequent upon im-

**V. R. Co., 39 V. Va. 195, 19 SS 621, 45 Am.** Proper use of the stream, he sengineered. St. Rep. 894, 23 L. R. A. 674), but the logger Hunter v. Grande Ronde Lumber Co., 39 Or. may use reasonable means for p-"king the 448, 65 P 588...Adapted from 64 L. R. A. 983. obstruction (Brown v. Chadbourne, 31 Med. 94, Telephone company maintaining a wire 9, 50 Am. Dec. 641; Dwinkel v. Veazle, 44 Me. across navigable stream, while not an in-

**I 167, 69 Am. Dec. 94; Crockston Waterworks,** surcer of travelers therein from injury by

**P. & L. Co., V. Sprague, 91 Minn. 461, 89 NW** fallen wires, owes duty to public to build

**347, 99 NW** 420, 103 Am. St. Rep. 525, 64 L\*\* line at such a height as to permit free pass-

\*\*R. A. 971). While medical delays to con-

**-** stage of boats and to exercise at least reason-

**-** state of boats are not become a menaco

**-** step is liable for unreasonable delay or ob-

**-** stage of boats and to exercise at least reason-

**-** step is liable for unreasonable delay or ob-

**-** stage of boats and to exercise at least reason-
keep the space under its drawbridges free from obstructions which are present without its fault but it has a duty to prevent the accumulation of wreckage around its piers which would obstruct navigation.\* A riparian owner may lawfully maintain a milldam across a navigable stream if it does not unreasonably obstruct navigation.\* The right to maintain an obstruction in a navigable stream may be acquired by prescription as against private persons, although a public nuisance,10 but there must be an assertion of prescriptive right in order to start the running of the period of limitations,11 and the fact that such prescriptive right has been acquired gives no right to increase the obstruction.12 The policy of the courts of Wisconsin is to scrupulously protect the navigable waters of the state from impairment.13

\_Right of access.\_See 10 C. L. #10--Riparian owners have the right of access to the navigable waters opposite their respective holdings 14 whether on surf-beaten shores or other navigable waters,15 subject to state or congressional regulation 16 or withdrawal,17 and it is the duty of navigators to conduct their operations with due regard to such rights.18 At the common law the title of the littoral owner did not extend beyond highwater mark,19 and the public has the right over the beach between high and low water,20 subject to the riparian owner's right of access.21 Although the common law has been, by federal statute, extended to Alaska, this rule does not apply to tide lands claimed by littoral owners at the time the statute went into effect.22 The riparian owner, although not entitled to wharf rights, may maintain action to prevent wharfage interfering with his right of access 23 but there is a presumption that a wharf aids rather than impedes such access.24 The adoption of the common law in this country did not, however, always include the rigid rules as to littoral rights not adaptable to our political and geographical conditions.23 The littoral owner may divest the property of a right of access to the navigable water 24 and does so by dedicating the foreshorse as a public highway,27 but the right 8. Louisville & N. R. Co. v. Yarbrough \[Cess in the exercise of sovereign power. McGilva v. Ross, 161 F 398.

**0.** Trullinger v. Howe \[Or.\] 97 P 548. Although one may be entitled to maintain a dam for purpose of improving navigation, he cannot thereby interfere with rights of others by retarding natural flow or by depositing debris to the injury of another" property. No general rule as to what will constitute injury. Each case must be decided on its merits. Trullinger v. Howe \[Or.\] 99 P 880. Dam so constructed that water must be raised to float logs over is an illegal obstruction. Trullinger v. Howe \[Or.\] 97 P 548. Not unlawful per se but may become so if built too high. Id.

**10.** Right of lower owners to complain of mill dam held extinguished by limitations. Ireland v. Bowman \[Ky.\] 118 SVV 56.

**11.** Trullinger v. Howe \[Or.\] 97 P 548.

**12.** To raise dam Ireland v. Bowman \[Ky.\] 113 SVV 56.

**13.** To **n**e\*\* Horicon Drainage Dlst., 136 Wis.

\*\*227, 116 NW 12.

**14.** Shore owners on great lakes. Stuart v. Greenvae \[Mich.\] 15 Det. Leg. N. 689, 117 NVV 655. Does not extend beyond access to navigable waters. Id.

**15.** Barnes v. Midland R. Terminal Co., 193 N. Y. 378, 85 NE 1093.

**16.** Barnes v. Midland R. Terminal Co., 193 N. Y. 378, 85 NE 1093.

**17.** Littoral owner may be deprived of ac- \[Cess in the exercise of sovereign power. McGilva v. Ross, 161 F 398.

**18.** Johnson v. Johnson, 14 Idaho, 561, 93 P 498.

**19.** Decker v. Pacific Coast S. S. Co. \[C. C. A.\] 164 F 974.

**20.** Barnes v. Midland R. Terminal Co., 193 N. Y. 378, 85 NE 1093.

**21.** McCloskey v. Pacific Coast Co. \[C. C. A.\] 160 F 794.

**22.** McCloskey v. Pacific Coast Co. \[C. C. A.\] 161 F 60.

**23.** McKloskey v. Pacific Coast Co. \[C. C. A.\] 160 F 794.

**24.** Decker v. Pacific Coast S. S. Co. \[C. C A.\] 164 F 974.

**25.** Barnes v. Midland R. Terminal Co., 193 N. Y. 378, 85 NE 1093, rvg. 126 App. Div. 435, 110 NYS 545.

**26.** Actually in use or possession at time of enactment of Act May 17, 1884. McCloskey v. Pacific Coast Co. \[C. C. A.\] 160 F 794.

**27.** Columbia Canning Co. v. Hampton \[C. C. A.\] 161 F 60.

**28.** McKloskey v. Pacific Coast Co. \[C. C. A.\] 160 F 794.

**29.** Decker v. Pacific Coast S. S. Co. \[ of a riparian owner to have the stream flow past his property in a natural way has been held to be inseparably annexed to the soil.\[28\]

_Right of wharfage and reclamation.\[See 10 C. L. 920\]_-A riparian owner may have the right erect wharves, piers and booms in the shoal water opposite his land, in aid of, and not obstructing, navigation.\[28\] This is a riparian right, not dependent upon ownership of the bed of the stream but of the bank.\[80\] It may be prohibited or regulated by the state but in the absence of such qualification is a private right derived from implied license.\[31\] It is an incorporeal hereditament\[28\] and may be the subject of a separate grant,\[83\] and the grantee does not hold adversely to the public, at least until notice of such adverse holding is brought home to the state.\[44\] The general rule is that frontage on navigable waters for wharfage purposes is proportionate to the shore frontage.\[85\] The right of the riparian owner to use the navigable water opposite his land is not exclusive \[44\] and he must use the same with due regard to the concurrent rights of the public; \[45\] but, where the rights of the public are released or extinguished, such rights at once become vested in the riparian owners.\[44\]

SS 3. _Regulation and control.\[80\]_-See 10 C. L. 220\]\_-In the exercise of its supervisory power over the navigable waters of the United States, congress has power to order the removal of obstructions thereto,\[40\] and authority to determine what are unreasonable obstructions and to order their removal may be delegated to an executive department\[41\] which determination by proper authority is conclusive.\[42\] The removal of a structure so condemned is not an exercise of eminent domain.\[43\] The title to lands under navigable waters is in the state or the United States, in trust for the public,\[44\] including lands between high and low-water mark\[45\] and lands underlying navigable fresh water,\[46\] and the state or national government alone has power to regulate, control\[47\] or improve the same.\[48\] Such control, however, can 964 NAVIABLE WATES SS 4.12 Cur. Law. not extend beyond the international boundary." The control " or improvement" of such waters may, however, be delegated as may the right to take toll in consideration of such improvements," and the right of the state to retain a percentage of such tolls is not affected by an illegal legislative disposition of the proceeds." Subaqueous lands held by individuals are subject to a public easement for navigation," and the government may, without compensation, appropriate the same for the purpose of improving navigation," but the appropriation of shore lands in connection with such public works is an act of eminent domain." Although a vested right has been acquired to maintain a fixed bridge over a navigable stream, the state may require that in rebuilding it must be converted into a drawbridge."

SS 4. _Remedies for injuries relating to._" See 10 C. L. #21.--The obstruction of a navigable stream is a public nuisance and remedy is ordinarily by indictment," but injunction will lie, at the suit of the state " or of one specially damaged," to prevent the obstruction " or to restore the status quo;" but, where immediate removal stream for purpose of navigation. State v. \[S6. Laws 1904, p. 1872, c. 734, as amended Portland General Elec. Co. \[Or.\] 98 P 160, Laws 1906, p. 1016, c. 418, must be construed as authorizing granting due compensation portion, acquire right to improve a navigable stream and charge tolls. Id. Severalen alone can confer right. Id. \[S7. City of Buffalo v. Delaware L. & W. R. Waters under a state law. Boom Law 1889, c. 221, as amended Laws 1905, c. 59. Rainy Lake River Boom Corp. v. Rainy River Lumber Co. \[C. C. A.\] 162 F 287.

50. Legislative may confer upon city right \[S83; 21 A. & B. Enc. (2ed.) 43, 742.

authority and conformable to such purpose are valid. Ordinance of Milwaukee prohibiting removal of sand and rock from beach is valid under character. C. Beck Co., V. Milwaukee \[VWs.\] 120 NEV 283. Acts 1841, p. 14, No. 8, # 10 (Comp. Law 1897, # 2448), grant concurrent jurisdiction to certain counties over all waters of lake Michigan within state. People v. Coffey \[Mich.\] 15 Det. Leg. N. 947, 118 NIV 782.

51. State may delegate its authority to improve navigable stream. State v. Portland General Elec. Co. \[Or.\] 98 P 160.

01. Grant of such a franchise is not creation of corporation by general law as forbidden by constitution. State v. Portland General Elec. Co. \[Or.\] 98 P 160.

01. State v. Portland General Elec. Co. \[Or.\] 98 P 160.

01. Jus publicum paramount to jus privatum. Bardes v. Herman, 114 NYS 1098. Royal charter vested jus privatum only in individual. Jus publicum remained in crown and passed to public on revolution. Id. Lewis Blue Point Oyster Cultivation Co. v. Brigga, 129 App. Div. 574, 114 NYS 318, aff. 68 Misc. 55, 110 NYS 37. A. Sale of tide lands by the state is subject to the publ's para-mount right in the navigable waters thereof and confers no right to obstruct navigation. Judson v. Tide Water Lumber Co. \[Twash.\] 98 P 371. State may make limited disposition of lands under navigable waters where the rights of navigation are not impaired but cannot abduicate general control, for such would be inconsistent with ite implied legal duty to control the same for public use. State v. Grughing \[Fla.\] 47 S 385.

01. Dredging channel through oyster bed. Lewis Bluepoint Oyster Cultivation Co. v. Brigga, 88 Misc. 55, 110 NYS 37, aff. In 129 App. Div. 574, 114 NYS 313.

01. Laws 1904, p. 1872, c. 734, as amended Portland General Elec. Co. \[Or.\] 98 P 160.

01. Effects for injuries relating to. \[S83; 21 A. & B. Enc. (2ed.) 43, 742.

01. Dredging channel through oyster bed. Lewis Bluepoint Oyster Cultivation Co. v. Brigga, 88 Misc. 55, 110 NYS 37, aff. In 129 App.

19 Cur. Law. NE EXEAT. 965

would work great hardships, the final order may be deferred pending solution of the engineering problem.\[94\] Nonser by the public is no defense to such an action.\[85\] Failure to comply with an executive order to remove an obstruction is punishable by fine and each month's delay is a new offense.\[98\] Damages by reason of the obstruction of a navigable stream may be recovered against the party maintaining the nuisance " unless barred by limitations," but a party who did not erect the obstruction is liable for its maintenance only after notice to remove.\[99\] Upon the question of damages, a qualified person may testify as to the deterioration of value in consequence thereof.\[98\] Where a milldam is an illegal obstruction, the remedy is by legal proceedings to abate the nuisance and not by damming the river up stream to provide a sudden flow for the passage of logs.\[11\]

NE EXEAT.\[98\]

This topic includes only matters relating to the writs of ne exeat. \[99\] The extraordinary writ of ne exeat will not issue pending an appeal in the absence of a sufficient showing that the appellant is about to leave the jurisdiction, and that the applicant is not otherwise secured; \[99\] but where defendant has expressed an intention of leaving the jurisdiction and the evidence discloses such conditions as would naturally impel him to go away, a writ will not be discharged though the defendant denies even having expressed a purpose to leave the state,\[99\] although if the restraint of the writ should be found to interfere with the freedom of defendant's movements in meeting pressing businesses engagements out of the state, a motion for the substitution of a bond to answer the decree will be entertained.\[99\] The writ is a civil proceeding and the bond required to be given to exempt a defendant from in-carceration and detention in the county jail thereunder is a bail in a civil case,\[99\] and under statute a recovery upon the bond will not be sustained in the absence of the issuance of a capias ad satisfaciedum and a return thereon non est inventus.\[99\] While a bond given to procure the release of one arrested under a writ of ne exeat regno differs from an ordinary bail bond in requiring the constant presence of the principal within the jurisdiction, yet the chief object of the two obligations is to obtain security that the principal shall abide any decree which the court may render

64. Main water-supply pipe of city ob- structating canal, State v. Columbia Water Poomer Co., 105 Minn. 3, 116 NWV 1027. Powner Co. \[LS.\] 63 SE 884. 71. Trillinger v. Howe \[Or.\] 97 P 548. 65. State v. Columbia Water Poomer Co. \[LS.\] 63 SE 884. 88.

against him." The bond to secure the release of a bankrupt when arrested under such writ should receive its grammatical construction " and is broken when the bankrupt goes into parts beyond the jurisdiction without leave of the court of bankruptcy, although he is present to abide the judgment of the court when rendered." Acting either upon the analogy of a court of equity or of the power possessed by courts of the United States in actions at law, a court of bankruptcy has power to cancel the bond." The writ of ne exeat has been abolished in South Carolina."

## Negligence

C. Use of Lands, Buildings and Other Structures, 978. Libability to Tresdenes, 970.

A. Personal Conduct in General, 870.

Act of God and Unavoidable Accident, 976. Joint and Several Lia-

8. Proximate Cause, 985.

dent, 976. Joint and Several Lia-

8. Contributory Negligence, 991. Children,

1. Comparative Negligence, 996.

B. Use of Property In General, 978.

Dangerous Machinery and Substances,978.

8. Liability of Manufactac-

1. Actions, 989.

_The scope of this topic is noted below._"

SS 1. Definitions." See 10 C. L. 922." Broadly speaking, negligence may be said to be a breach " of duty," consisting either of action or nonaction." The definition commonly given, however, is that negligence is the failure to exercise ordinary care,"

**78, 79, S0, S1. In re Appel \[C. C. A.\] 163 F** See; also, Negligence, Cent. Dlg. **SS 1**, 6, 6, 1002.

82. Code CIV. Proc. 1902, $ 199, providing that "no person shall be arrested in a civil

(26d.) 455, 457; 32 10.

85. Applied to parents' duty to their ohll-

Procedure; but the same shall not apply to

proceedings for contempt, etc.," abolishes

writ. Messerv v. Messerv \[S. C.\] $1 SE

445.

001. This article treats the subject of negligence in a general way without attempt-

ing a specific application of principles. Such

application is reserved for the topic devoted

to the particular relation or subject-matter,

as Animals, 11 C. L. 109; Bridges, 11 C. L.

441; Carrlers, 11 C. L. 498; Corporations, 11 C. L. 810; Countries, 11 C. L. 908; Electricity, 11 C. L. 1185; Explosive and Inflammables, 11 C. L. 1450; False Imprisonment, 11 C. L. 1456; Fires, 11 C. L. 1470; Gas, 11 C. L. 146; High-

ways and Streets, 11 C. L. 170; Independent

Contractors, 11 C. L. 1896; Inns, Restaurants

and Lodging Houses, 12 C. L. 201; Intracletating Liquors, 12 C. L. 832; Landford and Tenn

from moving while fireman was under it.

12 C. L. 825; Master and Servant, 12 C. L. 840;

L. 665; Medicine and Surgery, 12 C. L. 841; Mines and Minerals, 12 C. L. 851; Municipal

Corporations, 12 C. L. 805; Nuisance, 10 C. L.

1031; Party Walls, 10 C. L. 1124; Railroads,

10 C. L. 1365; Shibping and Water Traffic,

10 C. L. 1655; Street Railways, 10 C. L. 1730;

Telegrapus and Telephones, 10 C. L. 1841.

84. This section defines negligence, including willlri or wanton negligence, merely in

the abstract and relative sense and discusses

degrees of negligence only where the oomparative negligence of the parties is not questioned. Definitions of the various phases and elements of, and defenses to, negligence, are treated in following sections

deemed appropriate therefor.

Search Note: See note in 100 A. S. R. 192.

Seed; also, Negligence, Cent. Dlg. **SS 1**, 6, 6, 1002.

13, 15; Dec. Dig. **SS 1**, 3, 4, 11, 13; 29 Cyc.

82. Code CIV. Proc. 1902, $ 199, providing

that "no person shall be arrested in a civil

(26d.) 455, 457; 32 10.

85. Applied to parents' duty to their ohll-

dren. Harrington v. Butte A. & P. R. Co.,

proceedings for contempt, etc.," abolishes

writ. Messerv v. Messerv \[S. C.\] $1 SE

445.

001. This article treats the subject of negligence in a general way without attempt-

ing a specific application of principles. Such

application is reserved for the topic devoted

to the particular relation or subject-matter,

as Animals, 11 C. L.

which is such care as an ordinarily prudent person would exercise under the same or similar circumstances." But since the terms negligence "00 and ordinary care "1 or reasonable prudence "2 have only a relative significance, no particular conduct in the abstract can be said to be negligent," but necessarily depends upon the circumstances and dangers surrounding the parties and their situation at the time." To this rule there is the single exception that the violation of a rule of conduct prescribed by law is always negligence." Actionable negligence, like negligence which

the one causing the injury and the one susa-

greater precautions for his own safety than taining it. Wilkinson v. Oregon Short Line

under less threatening circumstances, the R. Co. \[Utah\] 99 P 466.

greater degree of caution would be ordinary

SB. Cleveland, etc., R. Co. v. Kelley, 138

cara. Dickson v. Swift & Co., 238 Ill. 62, 87

III. App. 109; Adkisson's Adm'r v. Louisville,

NE 59. Due care is care according to time

H. & St. L. R. Co., 33 Ky. L. R. 204, 110 SWV

and circumstances, hence, what is due care

24; 110channati, etc., R. Co. v. Evans, 33 Ky.

in one case might be negligence in another,

L. R. 596, 110 SWV 844; Cross v. Illinois Cent.

R. Co., 33 Ky. L. R. 432, 110 SWV 290; Mitchell V. Chicago & A. R. Co., 132 Mo. App. 143, 112 SWV 291; Wilkinson v. Oregon Short Line

S. \[Utah\] 99 P 466. One's conduct is

to be judged by the standard of an ordinarily prudent man. Hebeler v. Metropolitan

facing the direction in which it was going.

St. R. Co., 132 Mo. App. 551, 112 SWV 34; Rob-

inson v. Cowan \[Ala.\] 47 S 1018. Definition

of elmpe negligence as the failure to do

insecure position and riding backwards, such

what an ordinarily prudent person would

have done under the circumstances, or the

his duties. Dosa v. Missouri, X & T. R. Co.

doing of that which an ordinarily prudent

\[Mo. App.\] 116 SWV 458.

person would not have done, preferred over

\[Pa. The terms "ordinary care" and "rea-

the definition that it "is the dolng of an act,

or the omission to act, which results in

conduct and affairs of men, have a relative

damage, but without intent to do wrong or

cause damage," which was said to be in-

ned. What may be ordinary care in one

accurate and too broad. Alabama City G.

& A. R. Co. v. Bullard \[Ala.\] 47 S 578. That

ordinary care is the care which an ordinarily careful and prudent person would

exercise under the same or similar circum-

stances, and that negligence is the failure

to exercise ordinary care, is a "maxim"

needing no proof, argument or discourse.

Felver v. Central Elec. R. Co. \[Mo.\] 115

EVW 980.

\*\*00. Negligence is a relative term, and what

is negligence in one case may not be in

other. Gallagher v. City of Tipton, 133 Mo.

App. 557, 113 SWV 674; Cordray v. Savannah

Elec. Co. \[Ga. App.\] 63 SE 710.

\*\*01. The expression "ordinary care" Is a

relative term rather than a fixed and un-

varying one. What would be ordinary care

under one state of facts would be "cross

negligence" under other conditions; and so

what would amount to the "highest and ut-

modr any care" in one situation would only be

"ordinary care" in another; and therefore

when the term "ordinary care" is used, such

care is meant as is proportionate to the

danger to be avoided or the risk to be in-

curred, judged by the standard of common

prudence and the surrounding facts and cir-

cumstances. Anderson v. Great Northern

R. Co. \[Idaho\] 99 P 91. What is "ordinary

care" must be gauged and determined by the

danger which its exercise requires to be

overcome, for what would be ordinary care

under certain conditions, might, under other

conditionals, be gross negligence. Galveston

H. & T. A. R. Co. v. Thompson \[T-Tex. Civ. App.\] 116 SWV 106. What is ordinary care

depends upon the circumstances of each case,

and when the circumstances are such that

an ordinarily prudent person would take

\[Pa. The terms "ordinary care" and "rea-

enough be made," as applied to the ordinary

or the omission to act, which results in

cannot and affairs of men, have a relative

damage, but without intent to do wrong or

cause damage," which was said to be in-

ned. What may be ordinary care in one

case may, under different surroundings and

extremansense, be gross negligence. SWVIt

& Co. v. Sandy \[C. C. A.\] 165 F 622.

& Co. v. Sandy \[C. C.

is nonactionable, must be predicated upon a breach "# of duty "#" in the commission or omission of an act "# without wrongful intent; "#" but, in addition, such breach of duty, which is merely a failure to exercise ordinary care,1 must proximately " result "# in actual " injury " " to the person to whom the duty is owed.6 Use of the phrases customarily found in the definitions may not be essential " and some have even been criticised as inaccurate " and of but little practical value." The modern tendency and trainmen approaching railroad crossing. Louis & S. F. R. Co., 214 Mo. 615, 113 SSV 1104; 1d. See, also, SS 2, post. 86. Must be breach of duty. City of La-porte v. Osborn \[Ind. App.\] 86 NE 995; Kelly 4. Where recovery is sought for negligent v. Benne \[Mod.\] 116 SW 657; Pullman Co. v. Cavinners \[Tex. Civ. App.\] 116 SW 410; Hern-dou v. Salt Lake City, 34 Utah, 65, 95 P 646; Smalley v. Rio Grande W. R. Co., 34 Utah, 423, 98 P 311. Actionable negligence consists of a failure of duty, the omission of some-thing which ought to have been done, or the doing of something which ought not to have been done. Toppi v. McDonald, 128 App. Div. 143, 112 NYS 821. A person cannot be held like for negligence, unless he owed some duty to the plaintiff and that duty was not performed. McGhee v. Norfolk & S. R. Co., 147 N. C. 142, 60 SE 912. Must be breach of duty. Richmond v. Missouri Pac. R. Co., 133 Mo. App. 463, 118 SW 708. Must be a duty. City of Lagorte v. Osborn \[Ind. App.\] 86 NE 995. Must be duty to use due care. Smalley v. Rio Grande W. R. Co., 34 Utah, 423, 98 P 311; Pullman Co. v. Cavinness \[Tex. Civ. App.\] 116 SW 410. The expression "duty" properly imperots a determinate person to whom the obligation is owing, as well as the one who owes the obligation; there must be two determinate parties before the relationship of obligor and obligee of a duty can exist. McGhee v. Norfolk & S. R. Co., 147 N. C. 142, 60 SE 912. Where plaintiff standing in highway shot into shanty containing dynamite located on defendants' premises, held that there was no duty owed by the latter to the former. Id. Railroad under no duty to use care in handling of cars in its yards in anticipation of unauthorized intrusions. Smalley v. Rio Grande W. R. Co., 84 Utah, 423, 98 P 311. 98. A wrongful omission has actionable as a wrongful commission. Hagerty v. Monfuna Ore purchasing Co. \[Mont.\] 98 P 643. 90. Richmond v. Missouri Pac. R. Co., 113 Mo. App. 463, 113 SSV 708; Pullman Co. v. Cavinness \[Tex. Civ. App.\] 116 SW 410. Van-tonness or willingness are not elements of simple negligence. Helmz v. Metropolitan St. R. Co., 213 Mo. 102, 111 SW 536. 1. Richmond v. Missouri Pac. R. Co., 133 Mo. App. 463, 113 SW 708; Smalley v. Rio Grande W. R. Co., 34 Utah, 423, 98 P 311; Pullman Co. v. Cavinness \[Tex. Civ. App.\] 116 SW 410. The test of actionable negligence is whether the degree of care which persons of ordinary prudence and intelligence commonly exercise under the same circumstances was exercised in the case at bar. Lake v. Shen-ango Furnace Co. \[C. C. A.\] 160 F 887. If the care exercised rises to this standard, there is no right of action; if it does not, there is. Id. 2. See SS 3, post. 3. A failure to do a futile act cannot be made the basis of negligence. Lissel v. St.

- 12 Cur. Law. **NEGLIGENCE & 1.** 969 is to disregard degrees of care and negligence,\[10\] but qualifying adjectives are still frequently used \[11\] though principally for the purpose of showing the variable quantity of the terms negligence and ordinary care.\[12\] Gross negligence, in particular, is recognized \[13\] and has been defined to be the failure to exercise slight care.\[14\] The term "negligence" without any qualification usually means ordinary negligence.\[15\] _Willfulness and wantonness_.\[86e 10 C. L. 922--These terms \[16\] and others of similar import,\[17\] which may \[18\] or may not \[19\] be equivalent, always imply something more than simple negligence.\[20\] To constitute wanton \[21\] negligence there must be

suggests mediocrity of care, if not careless. Gross negligence in running train faster than ness, and held too low when applied to telelemint permitted by ordinance. Nearly v. phone lmemran, Drown v. New England Tel. Northern Pac. R. Co., 37 Mont. 461, 97 P 944. & T. Co. (Vt.) 70 A 599. **14**: Louisville & N. R. Co. v. Roth \[KY.\] **9**: Note: For a dictation discussion of the meaning and value of the terms "ordinarily prudent man", "ordinary care" and like terms \[KA.\] \*\*97 P 1025. **16**: Term "wanton negligence" always imbib the question of the existence or non-existence of negligence in a particular case is **Balley**: V. North Carolina R. Co. \[N. C.\] 62 SE **91**: Proof of simple negligence will not sup- \[Fia.\] 47 S 825.--\[Ed.\] **10**: See, also, **5**, **4**, **9**, **11**, **12**, **13**, **14**, **15**, **16**, **17**, **18**, **19**, **19**, **20**, **21**, **22**, **23**, **24**, **25**, **26**, **27**, **28**, **29**, **21**, **23**, **24**, **26**, **28**, **29**, **22**, **24**, **27**, **28**, **29**, **23**, **25**, **26**, **29**, **24**, **27**, **28**, **29**, **21**, **25**, **26**, **27**, **28**, **29**, **21**, **29**, **23**, **24**, **29**, **25**, **26**, **27**, **28**, **29**, **21**, **29**, **24**, **28**, **29**, **25**, **27**, **28**, **29**, **26**, **29**, **21**, **28**, **29**, **21**, **22**, **23**, **24**, **25**, **26**, **27**, **28**, **29**, **21**, **29**, **22**, **24**, **29**, **25**, **26**, **28**, **29**, **21**, **29**, **23**, **25**, **27**, **28**, **29**, **24**, **29**, **26**, **29**, **27**, **28**, **29**, **21**, **29**, **24**, **29**, **25**, **28**, **29**, **26**, **29**, **27**, **28**, **29**, **21**, **29**, **21**, **22**, **24**, **29**, **25**, **26**, **27**, **28**, **29**, **29**, **21**, **29**, **22**, **23**, **24**, **29**, **25**, **26**, **27**, **28**, **29**, **29**, **21**, **29**, **23**, **25**, **29**, **26**, **28**, **29**, **21**, **29**, **24**, **29**, **25**, **26**, **27**, **28**, **29**, **29**, **21**, **29**, **21**, **29**, **22**, **24**, **29**, **25**, \*\* knowledge,\[22\] actual or constructive,\[23\] of the imminence of danger\[24\] and a failure to use reasonable effort to prevent it.\[25\] To constitute willful negligence\[26\] there must, in addition to the element of knowledge,\[27\] be a design, purpose or intent to do wrong or to cause the injury,\[28\] though recklessness amounting to an utter disregard of consequences will be held to supply the place of specific intent.\[29\] More forgetfulness, however grievous the consequences, does not constitute a willful or wanton neglect of duty.\[30\]

SS 2. \_Acts or omissions constituting negligence. A. Personal conduct in general.\[31\] See 10 C. L. #23--As seen in the preceding section, negligence must be predicated upon a legal duty.\[32\] This duty may be created by statute\[33\] or ordinance,\[34\]

while passenger was alighting. Seima St. & S. R. Co. v. Campbell \[Ala.\] 48 S 378. No. 25: evidence of wantonnees. Birmingham R. L. & 427.

& P. Co. v. Haggard \[Ala.\] 48 S 519. No evidence of wanton misconduct by defendant to Dec. Dig. #1 -15; 29 Cyc. 418-441; 8 A. & E. ence riding on engine. Bailey v. North Carolina. R. Co. \[N. C\] 62 SE 912.

& S2. Evidence held to show physician owed patient duty to remove her from operating the danger apparent in insufficient since it room to lower floor after operation, and constitutes simple negligence. Although, T. & S. F. R. Co. v. Baker \[Kan.\] 98 F 804.

& S. F. R. Co. v. Baker \[Kan.\] 98 F 804;

& S. F. R. Co. v. Kenderik \[Ala.\] 48 S 884. Whereafter discovery of the world is responsible to avoid it, there is no wanton or subsequent negligence. Western Steel Car & Foundry Co. v. Cunningham \[Ala.\] 48 S 109. Failure of motorman to build, the latter owed him do duty to stop ear, if he can, after notice of plaintiff's peril, is wanton negligence. Jackson Eleca, T. L. & P. Co. v. Carnahan \[Miss.\] 48 S 617.

& Z6. Evidence held not to show willful negligence of carrier causing injury to passem.

& Z6. Evidence held on to show willful negligence of carrier causing injury to passem.

12 Cur. Law. NEGLIGENCE SS 2A. 971

though this will not by implication abrogate correlative duties existing at common law.\[36\] Where a duty exists it cannot be delegated.\[38\] Ordinarily, negligence does not arise from a breach of contract,\[37\] but there are cases when it may.\[39\] While a custom \[40\] may not be a test of due care,\[40\] it may be sufficient to refute an inference.\[41\] Negligence cannot be based upon injuries arising from dangers incident to a lawful occupation,\[42\] mere errors of judgment,\[43\] the mere fact that the injury might have been avoided,\[44\] the failure to perform futile acts,\[45\] or knowledge of similar acci dents. \[48\] Among the matters unsuccessfully invoked to refute negligence are concurring acts of third parties, \[49\] contracts with third parties, \[49\] loss of life in an effort to prevent the injury, \[50\] ignorance of physical infinities of the person injured, \[51\] and the fact that such infinities increased the injury. \[52\] The standards of care raised by law, as already defined, is that of ordinary care, or the care of an ordinarily prudent person. \[53\] In the application of this standard, the circumstances \[54\] of each particular case, which may include the relation \[55\] and relative rights \[56\] of the parties, \[57\].

Misourl, K. & T. R. Co. \[Tex. Civ. App.\] 110 (a reasonably prudent man would have exer-SWV 978. Instructions held to impose too high a degree of care. Id.

of question of engineer's negligence in 45. When plaintiff knew of excavation, failure to place lights around it was not neg-Iligence. Slaughter v. Huntington \[W. Va.\] 110 (C. A.1) 163 F 827. Carrier not 61 SE 155. When plaintiff knew that train was approaching, failure to sound warnings was not negligence. Slavel, V. St. Louis & S. F. R. Co., 214 Mo. 515. 113 SWV 1104; Stearns v. Boston & M. R. Co. \[N. H.\] 71 A. 21; Heise v. Chicago Great Western R. Co. \[How\] 119 NW 871.

46. Hence fact that explosion of asphalt tank was so unusual as to be unknown to experienced men no defense, since due care might have been exercised In all other cases. Dulligan v. Barber Asphalt Paving Co., 201 Mass. 227, 87 NE 567.

01. See, also, & post. The concurring act of another will not relieve defendant from liability for his negligence without which the injury would not have happened. Fiana-gan v. Wells Bros. Co., 237 Ill. 82, 86 NE 609. Failure of policemen to uncouple earns across street and thereby permit free department to pass did not excuse railroad company's negligence, in obstructing street. Homer v. Chicago, etc., R. Co., 236 Ill. 620, 86 NE 611. Driver of automobile liable to passengers for colliding with street car when collision would not have occurred in absence of his negligence, though it might also have been avoided but for breaking of brake-rod on automobile owing to latent defect.

Johnson v. Coey, 237 Ill. 88, 86 NE 678. Negligence of motorman would not defeat conductor's right to recover for negligence of wagon driver in colliding with car. Ford v. Hine Bros. Co., 237 Ill. 463, 86 NE 1051.

48. Municipality not excused for negligence of negitimance of interest because traction company has agreed to keep them in proper condition. City of Chicago v. Kubler, \[138 Ill. App. 520.

01. The fact that one loses his own life in accident is no proof that it was not caused by his negligence. Toppl v. McDonald, 128 App. Div. 443, 112 NYS 821.

01. Fact that defendant was ignorant of pregnant condition of woman does not lessen his liability for negligently injuring her. Prescott v. Robinson, 74 N. H. 460, 69 A 522.

01. One is liable for injuries negligently injuring her.

Inflicted, though the result would have been less disastrous had the injured person been in good health at the time of the accident.

Michlike v. Nassassu Elec. R. Co., 129 App. Div. 448, 114 NYS 90.

52. See & 1, ante, for authorities holding this to be the standard, and discussions as to its practical value.

01. Care required of street railways toward pedestrians. Llute v. Denver City Tramway Co., 43 Colo. 58, 95 F 800. Care required of pedestrian crossing street car tracks such as the actions 50 and age 57 of the person injured, knowledge,54 actual or constructive," of the danger, or a duty to acquire it,50 imminence of other dangers,51 appreciation of the work,52 and the duty to anticipate results,53 must necessarily be considered,

Riedel v. Wheeling Trac. Co., 63 W. Va. 522, to remedy the defect, Gay v. MIiwasukeo 61 SE 82L Crossing tracks when danger was obvious. Id. Since pedestrians and Findling merely that defendant had, or ought street ear companies both have a right to to have had, knowledge not finding of intelligence buthe street, each must exercise ordinary care, one to avoid injury and the repairs is no defense when defective condition to avoid inflicting injury. Luity V. Hon le created by defendant. Newman v. Denver City Tramway Co., 43 Colo. 58, 95 F Now York, 57 Misc. 636, 108 NYS 676. Where 600. Rights and duties of railroads and those temporary filling in break in asphalt paveceasing tracks on highways. Nichols, B. & O. R. Co. \[Colo\] 98 P 805: Riedel v. Wheeling Trac. Co., 63 W. Va. 522, 61 SE 821. Persons engaged in the construction of a pairs. Id. building owe to each other the duty of working in such manner as not to negligently cause injury. Flanagan v. Wells Bros. Co., 237 Ill., 82 85 RNE 609. Third parties right- and fully upon premises owes the duty of exercising reasonable care for the safety of the other. Servants of different contractors working on eame building. Langan v. Enos Fire Escape Co., 233 Ill. 308, 84 NE 267.

56. Moeterman not negligently though he might have been had not deceded signaled her intention of boarding. Luitz v. Denver City Tramway Co., 43 Colo. 58, 95 F 600.

01. The fact that children at upon childbirth instincts and impulses is an element to be considered in determining whether due care was exercised toward them. Foreve v. Stankford Silk Co., 160 F 932.

01. Knowledge by defendant: When injury resulted by negligently blasting and defendant knew or should have known that plain-tiff was working nearby, there was a violation by defendant of a duty he owed plain-tiff constituting actionable negligence.

Sloss-Sheffield Steel & Iron Co. v. Saleser \[Ala.\] 48 S 374. Those reparting sidevalks owe a duty to guard all defects occasioned that thereby, since it is a matter of common crafted and that one care required precautionary. Kampmann v. Rothwell \[Tex.\] 109 SW 1089. Owner's knowledge of anmal's disease and negligence in manner of keeping it essential to liability for communication of disease.

Eshleman v. Union Stockyards Co. \[Pa.\] 70 A 89. Railway company not liable in ab- and in attempting an exit where there was scope of knowledge of defect in tracks causing injury, and negligent failure to repair.

Miller v. United Rys. & Elec. Co. \[M.\] 69 A SW 114. Whether injury resulted from 636. In action against engineer by fellow- employe allegation that defendant suddenly have been discovered by reasonable inspection and negligently stopped trail thereby throwing plaintiff from caboose, subject to demur-

110. The reason since ordinary care must be commensurate with the dangers \[54\] which its exercise is not, the former must use ordinary care to enable the latter to avoid injury. Goodale v. Doritailo & v.

18 Cur. Law. NEGLIGENCE SS 2A. 975

required to overcome. It follows that exigent demands of human safety override mere property rights.\[98\]

It may be held that a certain act is not negligence per se,\[96\] since this goes only to the bare act itself and not to its quality as affected by the circumstances which may, or might, surround it; and the existence \[97\] or nonexistence \[98\] of negligence is

Fisk \[C. C. A.\] 159 F 573. Care required in brench in park. Silverman v. New York, highway travelers at railroad crossings, 114 NYS 59. Turning sharply into the left Pittsburgh, etc. R. Co. v. Lynch \[Ind. App.\]. Slide of an intersecting street. Irwin v. Judge 87 NE 40. Duty of one knowingly approach. \[Conn.\] 71 A 572. Where a driver of load in railway crossing. Nichols V. Chicago, R. \[do.\] 87 B 808. Care required so that the "overhang" struck and injured of railroad company to render extraordinary planitiff's horse, he was held negligent \[do.\] (Laham v. David M. Olatrah Iron Works; quiet when runtimes trelas through city de- hined. Pittsburgh, etc. R. Co. v. Lynch \[Ind. App.\]. 87 NE 40. Care required of railroads in cities, towns, and villages. Palmer v. Ore. \[con.\] 71 A 572. Where a driver of load in railway crossing. Nichols V. Chicago, R. \[do.\] 88 T 808. Care required so that the "overhang" struck and injured of railroad company to render extraordinary planitiff's horse, he was held negligent \[do.\] (Laham v. David M. Olatrah Iron Works; quiet when runtimes trelas through city de- hined. Pittsburgh, etc. R. Co. v. Lynch \[Ind. App.\]. 87 NE 40. Care required of railroads in cities, towns, and villages. Palmer v. Ore. \[con.\] 71 A 572. Where a driver of load in railway crossing. Nichols V. Chicago, R. \[do.

often determined as a matter of law," as distinguished from a finding of negligence per se," but here the surrounding circumstances are always considered by the court and hence in neither case is there an exception to the rule that negligence depends upon the circumstances."

\_Act of God and unavoidable accident.\_See 10 C. L. 985--There is, of course, no liability for an act of God ?" or an unavoidable accident 78 since the essential element of legal duty is wanting.74 These elements do not afford immunity, however, unless they proximately cause 78 the injury sought to be redressed.79 The primary question involved in this connection is whether a particular occurrence is in fact an act of God 77 or an unavoidable accident,78 which calls for an application of the various definitions 79 of such elements to the facts of the case in hand. An unforeseeable

condition and ordering another car to fol-

gardless of surrounding circumstances dislow, the only negligence, If any, being the "cussed" generally in $ 1, and specifically in inspection of the crippied car. Welch v. this section, ante, is the only exception to Jackson & B. C. Trac. Co. \[McInt\]. 15 Det.

Lcg. N. 761, 117 NWS 88. Failure to prevent

72. Esagan v. Central Vt. R. Co. \[Vt.\] @9 A railroad accident. Chicago Terminal Trans-

01.

for R. Co. v. Berkowitz, 137 Ill. App. 95.

73. McVeat v. Philadelphia, W. & B. R. Co.

Engineer not negligent in running down

(Del.) 69 A 744.

(Tel.) 69 A 744.

(Tel.) 74. Cannot, therefore, be a case of negli-

Co., 148 N. C. 155, 61 SE 664. Evidence held to

show no negligence on part of defendant in

108 N. 533, 61 SE 385.

regard to injury caused by defective coupler.

75. In this connection see $ 3, post. As to

Southern R. Co. v. Moore, 108 Va. 383, 61 SE 78.

when and where not proximate cause, see $ 3.

741. Evidence held not to show negligence

post.

of motorcyclist in frightening horse. Long

76. Where negligence Is proximate cause

v. Warlick, 148 N. C. 32, 61 SE 617. Where

of injury, fact that act of God occurs ther-

untonomolist run into rear of loaded truck

with to produce result is no defense. City

in attempting to pass, there was no neglig-

of Richmond v. Wood \[Va.\] @3 SE 449. If

gensen on part of truck driver, even though

device condition of culvert was proximate

track was standing still and accident happen

cause of damage, fact that injury would not

pend in the dark. Lorenz v. Tisdale, 127

have occurred but for extraordinary and un-

App. Div. 438, 111 NYS 173. In action to

foreseeable flood, no defense, Id. Where a

cover for frightening plants was burned

over by automobile, evidence held to show

through the negligence of defendant, the re-

due care of driver, the child having run in

sulting injury to the plante by cold and

front of the machine when it was in full

view on proper side of street, and driver

love defendant from liability, Benedict

ing done his best to stop in time after seeing

Pineapple Co. v. Atlantic C. L. R. Co. \[Fla.\]

the danger, Jordan v. American Sightsening

46 S 732.

Coach Co., 129 App. Div. 313, 113 NYS 786.

77. Injury by comling in contact with elec-

No negligence in standing exavavators. Tageage

v. Roslyn \[Wash.\] @8 P 668. Evidence held

not to show negligence in Installation of gma

lating unhulated or unguarded wires.

lights. Torrans v. Texarkana Gas & Elec. Co.

\[Ark.\] 118 SW 388. No negligence of tele-

phone company where employe was injured

by climbling retten telephone pole, is being

ist duty to inspect pole before climbing it.

Eligenbrod v. Cumberland Tel. & T. Co., 121

La. 228, 46 S 219.

60. See post $ 5, subd. Questions of law

and fact.

70. There may be negligence as a matter of law as distinguished from negligence

per se. Cotter v. Chicago City R. Co., 141

III. App. 101. A failure to look, when look-

ing would disclose the danger, is negligence

and in such case, unless there is evidence

of conditions or circumstances which would

exuse looking, a jury is not warranted

finding that such failure to look did not

constitute negligence. Id. Failure of

program who had seen another or approach-

ing his track to look again after starting

his car, in absence of an excuse therfore,

was negligence in fact, though not in law

neglence per se. Id.

71. N07E: That the violation of a rule of

conduq! prescribed by law is negligence re-

82.

12 Cur. Law. NEGLIGENCE SS 2A. 977

injury is ordinarily in the category of unavoidable accidents \[80\] for which there is no liability,\[81\] though the fact that the particular occurrence of the injury was unfree-seeable will not render it such.\[82\] Unusual operations of the forces of nature known to occur with more or less regularity are not acts of God \[83\] and require the exercise of due care to guard against injury. likely to be caused thereby,\[84\] but an occurrence may be an act of God though it is not the first of its nature within the memory of a generation.\[85\]

\_Joint and several liability.\_See 10 C. L. 926.\_Joint negligence gives rise to a joint and several liability \[88\] though, if all are severally sued, the actions will usually be consolidated,\[87\] and the several liability of a tort feasor is not affected by the fact that the negligence of another concurred.\[88\] The liability must rest on breach of duty \[89\] but the authorities are in conflict as to whether a joint duty is prerequisite to a joint liability.\[80\]

caused by an "act of God." Briggs v. Durham Trac. Co., 147 N. C. 389, 61 SE 373. For 130 M. App. 593, 109 SW 1065: Goldstein v. numerous definitions of "Act of God" see \[78\], 59 Males 516, 110 NYS 905. Obstructe-Kuhnls v. Lewis River Boom & Logging Co. \[78\], 98 P 655. \[83\], 98 M 653. Abutting owner, who by reection of it the person by whom it occurs neither has, nor is legally bound to have, sufficient power street by discharge of water thereon, to avoid it, or prevent its injuring another. \[84\], 108 VA. \[85\], 62 SE 385. \[86\], 63 NE 0. Texas & N. O. R. Co. v. Barwick \[Tox. Civ. App.\] 110 SW 953. \[87\], 98 M 653. No liability arises from an accident which defendant could not have foreseen and for which he was not responsible. Donk Bros. Coal & Coke Co. v. DeLaney, 133 III. \[88\], 135. Fall of loose rock which was not due to negligence not to be anticipated. Id. \[89\], 146 VA. \[89\], 151 NW 953. \[89\], 160 SW 953. \[90\], 171 NW 953. \[91\], 172 NW 953. \[92\], 173 NW 953. \[93\], 174 NW 953. \[94\], 175 NW 953. \[95\], 176 NW 953. \[96\], 177 NW 953. \[97\], 177 NW 953. \[98\], 178 NW 953. \[99\], 179 NW 953. \[90\], 179 NW 953. \[91\], 179 NW 953. \[92\], 179 NW 953. \[93\], 179 NW 953. \[94\], 180 NW 953. \[95\], 181 NW 953. \[96\], 182 NW 953. \[97\], 183 NW 953. \[98\], 184 NW 953. \[99\], 185 NW 953. \[90\], 186 NW 953. \[91\], 187 NW 953. \[92\], 188 NW 953. \[93\], 188 NW 953. \[94\], 189 NW 953. \[95\], 189 NW 953. \[96\], 189 NW 953. \[97\], 189 NW 953. \[98\], 190 NW 953. \[99\], 189 NW 953. \[99\], 189 NW 954. \[99\], 189 NW 955. \[90\], 189 NW 955. \[91\], 189 NW 955. \[92\], 189 NW 956. \[93\], 189 NW 957. \[94\], 189 NW 958. \[95\], 190 NW 959. \[96\], 189 NW 959. \[97\], 189 NW 959. \[98\], 189 NW 959. \[99\], 189 NW 959. \[99\], 189 NW 959. \[90\], 189 NW 959. \[91\], 189 NW 959. \[92\], 189 NW 959. \[93\], 189 NW 959. \[94\], 189 NW 959. \[95\], 190 NW 959. \[96\], 189 NW 959. \[97 978 12 Cur. Law.

(SS 2) _B. Use of property in general.91_See 10 C. L. 927_--The owner >>2 of property owes to all persons rightfully thereon >>3 the duty of using reasonable care >>4 to keep the premises in reasonably safe condition >>4 and to obviate known defects >>4 within a reasonable time,>>5 and a like duty is owed as to instrumentalities and appliances furnished for the use of others.>>6

\_Dangerous machinery and substances._See 10 C. L. 927_--In the use of inherently dangerous articles, care commensurate with their dangerous character must be exercised,>>70 and one is bound to anticipate perils resulting therefrom.1 A vendor of dangerous articles who gives a false assurance of safety 2 or fails to give proper warning.

**91. Search Note: See notes in 6 C. L. 752;** one guilty of negligence in not discovering and remedying a common defect in a simple 1d. 818; 21 Id. 255; 1 L. R. A. (N. S.) 1178;\*\* apliance of good material and well constructed, it must appear that such defect had existed for so long that defendant ought to have known or it, and therefore was as responsible, as, knowing the defect, he had failed to remedy it. Loose rung In ladder insignificant proof of negligence. Id. 90. Eagle Hose Co. v. Electric Light Co., regard to it are the same as those of an owner. Everett v. Foley, 132 III. App. 488. 93. See post, # 2C. Fact, that trains of one company, in charge of its own employees run over tracks of another under contract that they shall be subject to orders of train dispatchers of latter, does not relieve former from liability for negligent injuries to third persons. Hramble v. Atchison, etc., R. Co. \[C. A.\] 164 F 410. 94. Owner not bound at his permit to see that,aign in front of building was safe. McNulty v. Ludwig & Co., 125 App. Div. 291, 109 NYS 703. 95. Defendant held negligent toward contract, on premises to supervise work, in falling to give warning that a tank, normally covered, was at the time uncovered when plaintiff had reason to believe it covered and defendant knew that it was not. Ward v. Hill, 125 App. Div. 887, 110 NYS 106. Negligence cannot be predicated upon the mere leaving of a horse unattended for the time being on the street, while it is eating. Corcoran v. Kelly, 61 Misc. 233, 113 NYS 686. 90. Knowledge of violous propensity of horse necessary to a recovery for a bite. Corcoran v. Kelly, 61 Misc. 533, 113 NYS 686. Defendant's knowledge is not essential, where a duty exists to keep in a safe condition. Knowledge of telephone company or proximity of lighting company's wires to its poles unnecessary, it being the former's duty to see that wires were a safe distance from poles. Drown v. New England Tel. & T. Co. \[Vt.\] 70 A 599. Knowledge of an immaterial element of the defect causing the injury is not essential. Sag of lighting wires which 'was not shown to materially increase the danger. Drown v. New England Tel. & T. Co. \[Vt.\] 70 A 599. 97. The owner of property is entitled to a reasonable time to remedy defects after notice thereof. Brown v. Consolidated L. P. & I. Co. \[Mo. App.\] 109 SW 1032. 98. A person undertaking to furnish appliances for the use of others assumes the duty to furnish reasonably safe ones and is liable for negligence in that regard resulting in injury, regardless of any contract relation between the parties. Dougherty v. Weeks, 126 App. Div. 786, 111 NYS 218. Yet to hold

## 12 Cur. Law. Negligence & 2c.

ings * is liable even to one to whom he sustains no contract relation; * a fortiori if the danger results from a known violation of law. \*

\_Liability of manufacturers.\_Sce 10 C. L. 928--A manufacturer, selling a defective article, is liable for resulting injuries * but not for injuries resulting from its being allowed to fall into disrepair by the user. \*

(SS 8) \_C. Use of lands, buildings and other structures.\_See 10 C. L. 930--While negligence cannot be predicated on the lawful and ordinary use by one of his own premises, * he must so use his own property as not to wrongfully injure that of others, \*

would exist had the injuries been to the pur-tarily and without consideration agrees to chaser. One not the purchaser allowed to recover for injuries caused by explosive stove * the rule. McClaren v. United Shoe Mach. blacking. Cunningham v. Peasw House Fur-nishing Co., 74 N. H. 458, 69 A 120.

S. If one sells a dangerous article to a child whom he knows to be, by reason of his * the standard Oil Co. v. was and inexperience, unfit to be trusted with it and who probably might innocently and ignorantly play with it it to his own injury, and injury does in fact result, he is liable in 1 damages therefor. Negligence of storekeeper in selling small quantity of punpow-der to boy of twelve years held for jury. McEldon v. Drew, 138 Iewis, 390, 116 NW 147.

4. A vendor of inherently dangerous articles may be liable to one injured thereby though there is no contract relation between. Explosion of shipp bottles of aerated water. Torgersen v. Schultz, 192 N. Y. 156, 84 NE 956.

A wholesaler is liable for injury sustained by a customer of its vendee by the use of an article sold as coal in the starting of a fire, where the wholesaler, knowing that such article contained gasoline, sold it in violation of statute and where neither the treatiler nor customer knew of the presence of gasoline, and the use of coal oil to start fires was customary. Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 53 Law Ed., \*

5. Saic by company to retain of coal oil, containing gasoline, as pure coal oil in violation of statue and with knowledge of the facts, held proximate cause of injury resulting from explosion caused by use of such article to start fire, since such consequence should have been expected. Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, 53 Law Ed., \*

1. Standard on threshing machine fastened merely by nails driven through the bottom and not clinched. Pierce v. Bidwell \*

ment thereafter. Miller v. Neale, 137 WIs. Thresher C., 153 Mich. 23, 15 Cept. Neg. N. 426, 119 NW 94. One has a right to build a 477, 116 NW 1104. Whether such construct- \*

tion was such as to make machine imminent- \*

ly dangerous properly submitted to jury. Id.

VWhether defendank knew of or appreciated the dangerous character of the machine held properly submitted to the jury under the evidence. Id. A manufacturer, who see negligence.

of wavy is not a public highway, the railroad gently constructs an article for market that may destroy it for its own purposes if it acts it is imminently dangerous to life and llim, in a lawful manner in so doing. Heilbron is liable for injuries resulting from its use for the purpose to which it is adapted r- \*

swf 610.

sardless of any contract relation with the person injured or fraud or deceit in its sale.

48 S 705.

Steam boiler. Statler v. Ray Mfg. Co., 109

11. For jury. Schneider v. Schmidt \[N. J. NFS 172.

12.1704731; Huft v. Wells Fargo & Co., 141

13.11. App. 434. An owner's duty to one upon leases it is not liable for injuries to a servant \*

of the leasee, caused by having fallen into \*

to exercise reasonable prudence and care to disrepair while in the lessee's possession, and the fact that the manufacturer volun- \*

and the fact that the manufacturer volun- * for persons thereon by express or implied invitation,18 and to warn such persons of hidden or latent perils.14 The liability of the owner must be based on actual

151: Ft. Worth & R. C. R. Co. v. Eddleman

vision to guard against those accidents \[Tex. Civ. App.\] 114 SWP 425. The standard

which common knowledge and experience

of care in the use of property is that which

teach are liable to occur. Decatur Amuse-

an ordinarily prudent man would exercise

under the circumstances. Fowbe v. Atlantic

Owner of ammement park held negligent in

Coast Line R. Co., 174 N. C. 491, 61 SE 262.

Permitting ball to be played in an unusual

When plaintiff was on defendant's premises

place by guests at park, the usual grounds

on business and ran into highway to escape danger from a blast of rock on said

ume that dangerous sports will be confined

premises, where he was struck by flying

to places set apart for them. Blakeley v.

stone, complaint was held to state cause of

White Star Line \[Mich.\] 13 Delt. Leg. N. 835,

action for negligence in use of premises

rather than one in trespass for injury to

of watchmen or guards to protect guests at

traveler along highway, and hence evidence

as to the care exercised for plaintiff's safety

guest at ammement park caused by being hit

was admissible. 1d.

W. Delaware River Amusement

Owner of shop liable to customer for injuries

Co. \[ N. J. Law\] 69 A. 790. The mere maintenance of a defective structure is not necessary

Testing from static landing. Roth v. G. A.

sarilly negligence if constructed by competent person, of good material, and not neglig

Fid Co., 59 Misc. 214, 110 NYS 427. Con-

mently permitted to become defective. Fowbe

not free from negligence as matter of law

v. Atlantic Coast Line R. Co., 147 N. C. 491, 61

where it left ears on crossing with no one

8E 262. Applied to customer in store injured

by falling down unsmarded cellarray of

by. Deson Realty & Terminal Imp. Co., 115

which he had no knowledge, where owner

was standing by and had notice of plaintiff's

presence. Montague v. Hanson \[Mont.\] 89 P

twenty-five feet distant from the pole and

1068. The use of an open and unspararded cellarray in a store for business purposes is

railroad station without anything to warn

not negligence per se, though it might be

considered a trap, but requires the exercise

of ordinary care to prevent customers being

injured thereby. Montague v. Hanson

\[Mont.\] 99 P 1063. Refusal of instruction

that maintenance of such starway was not

negligence per se, while it might properly

have been given, was not error where jury

was instructed that only ordinary care was

required to prevent injury therefrom. Id.

Heid negligent in construction of staging

over machinery, Vaisbord v. Nashua Msfg.

Co., 74 N. H. 470, 69 A 520. When plumber

sent to work in defendants building fell

from planks, put up by another workman for

his own use, while using them to get his

ladders, etc., to place of work, no negligence

on defendants' part was shown, plaintiff

neither being invited nor obliged to use such

planks. Hordern v. Salvation Army, 124 App.

Div. 674, 109 NYS 181. Facts held not

constitute negligence, negligence alleged

being misplacement of steps. Stevenson v.

Smith Cont. Co., 220 Pa. 220, 69 A 676. Customer injured by

byeqeqmintly in passenger

of department store. Bloomer v. Snellen-

burg, 221 Pa. 25, 69 A 1124. Customer injured

by falling down hateway which she took for

entrance to department store. Ayers v.

V. Wanamaker, 220 Pa. 313, 69 A 759. An owner

who builds a stone foundation on his land

and thereafter employs one to erect a brick

wall thereon is liable for injuries occasioned

to the latter by reason of defects in

foundation. Hagen v. Lehtenter, 236 Ill. 467, 86

NE 112. Defendant liable for defects in

yards of which it ought to have known, when

plaintiff was injured thereon while in the

pursuit of the business for which the yards

were maintained. Perrine v. Union Stock-

yards Co. of Omna \[Neb.\] 116 NVC 176.

Owner of a swimming pool who invites the

public thereon must make reasonable

28 18 Cur. Law. NEGLIGENCE SS 2C. 981

or imputed notice of the danger,18 and negligence of a third party in the use of property is not to be imputed to the owner merely because of ownership.16 An owner is not responsible for the acts of independent contractors, unless he is guilty of some active negligence.17

\_Liability to trespassers and licensees.\_See 10 C. L. 931.--The only duty owed to trespassers and bare licensees18 is to refrain from wanton injury to them,19 and ao-dangers in stepping on pile of seed covering moving machinery. Brinkman v. St. Landry v. Michel, 137 Ill. App. 221. A. policeman Cotton Oil Co., 118 La. 835, 43 85. Failure who accompanies one going upon the premises of adhere to defective staging over her machine. Valsbord v. Nashua Mfg. Co., 74 N. H. 470, 69 A 520.

15. Fact that owner of premises has no knowledge of defects is no defense if, in the exercise of ordinary care, he ought to have so doing, there being no invitation from the had such knowledge. Roth v. G. A. Feld Co., 59 Misc. 214, 110 NYS 427. Knowledge of defective construction of staging imputed from by public with company's acquuessence was lapse of time and held to amount to a ratification. Valsbord v. Nashua Mfg. Co., 74 N. H. 470, 69 A 520.

01. Owner not liable for acts of driver outside of scope of employment in instructions.

Danforth v. Fisher \[N. H.\] 71 A 535. One cannot be charged with liability for defects in premises over which he has neither possession nor control. Compaint Insufficient to 98 P 489; Holmes v. Delaware & Hudson Co., show possession or control by defendant. Martin v. Louisville & J. Bridge Co., 41 Ind., 404; Briscoe v. Henderson L & P. Co., 148 N. App. 493, 84 NE 380.

17. No inference of such negligence could be drawn from the evidence. Silverman v. Binder, 115 NYS 54.

01. Where one enters upon the premises of another with his consent, but without an invitation, he is a bare licensee. Shults v. Chicago, B. & Q. R. Co. \[Neb.\] 115 NYT 463.

01. One using an apparently public ally as a highway is not a trespasser because he steps over the technical boundary. Everett v. Fouery, 132 Ill. App. 433. Though one is "law-fully" upon premises, he may still be a mere licensee. Stern v. Miller, 111 NYS 65.

01. Evidence held to show that child on railroad track was a trespasser. Palmer v. Oregon Short Line K. Co., 34 Utah, 466, 97 P 689. It being a misdemeanor for a drunken man 100.

01. The only duty a railroad company owes a trespasser is to use ordinary care to avoid trespassers in such condition and for such purpose is not there as an employee but as a trespasser. Seaboard Air Line R. v. Chapman, 4 to avoid injury. Ft. Worth & D. C. R. Co., 74 G. App. 706, 52 SE 488. One entering private adhesive may held trespassers. Briscoe v. Henderson L & P. Co., 148 N. C. 386, 62 SE 600.

One who boarded locomotive in violation of rules was trespasser. Bailey v. North Caro- lina R. Co. \[N. C.\] 62 SE 912. One walking beside street car tracks in street is not a trespasser, since company has no exclusive right to portion of street occupied by its tracks. Birmingham R. L. & P. Co. v. Williams \[Ala.\] 48 S 93. Child carried onto premises by mother to carry lunch to father who was in charge was without free agency and not a trespasser. Poteet v. Blossom Oil & Cotton Co. \[Tex. Civ. App.\] 118 SWT 299.

When a child is carried on to premides by its mother and then left to wander about alone with the knowledge of the owner, the rule relative to the care required toward incapatatated persons received on premises accomodulated by an attendant does not apply. Id Evidence held to show plaintiff a bare licensee, cordingly no negligence,20 even though gross 21 or involving violation of statute,21 will warrant recovery, there being ordinarily no distinction in this respect between trespasers and bare licensees,23 though in some cases a distinction is made based on the probability of the presence of such persons and the resultant duty to anticipate it.24 Where, however, one enters not by sufferance but upon invitation, ex-

Footnote 24: The _Hollowance_ is a _Hollowance_, which is press or implied,25 he is more than a bare licensee and a duty of due care is owing to him,26 but the obligation does not extend to any use beyond the scope of the invitation.27

\_Liability for injuries to children.\_See 10 C. L. 952. There is ordinarily no greater duty owed to a trespassing infant than to an adult under the same circumstances,28

but, when their presence is discovered, greater vigilance is required to avoid injury to them on account of their incapacity for self-preservation,29 and this is particularly true where there is- an implied or permissive invitation.30 Under the rule commonly known as the turntable doctrine, the owner of premises must anticipate the propensity of children to play with attractive and dangerous appliances.31

that such trespasser is a small child does not increase the duty. O'Bannion's Adm'r (r) (r To the application of this doctrine, it is essential that the attractive and dangerous character of the appliance be known to the owner,\[32\] that the injured child be so young as to lack discretion,\[33\] and that the injury result from the appliance in question.\[34\]

SS 3. Proximate cause,\[35\] See 10 C. L. \[34\] Negligence is not actionable unless it is the proximate cause of the injury complained of,\[36\] and this rule applies

Want of judgment, but where with but little:

Where the owner has no knowledge of the tele pecuinary expense such properties may

danger of an instrumentality which causes be made reasonably safe, an obligation rests

injury to trespassing children, he is not upon such companies to take the measures

liable, though he allows them on the premenecessary therefor. Id. Evidence held

less and gives no warning of danger. Corn

sufficient to go to jury on question of

bin in distillery. Kisler's Adm'r v. Ken-

whether ear was peculiarly and especially

tucky Distilerles & Warehouse Co. \[Ky.\]

attractive to children. Gates v. Northern

113 SWP 913. Fact that children occasionion-

Pae. R. Co., 87 Mont. 103, 94 P 751. Docs

they had gone into bin in presence of millet

prime of "turntable cases" applied to injury

did not charge owner with knowledge that

from pushing a car left in place frequented

by children. Cahill v. Stone & Co., 153 Cal.

under different conditions. Id. To bring

4 case within the doctrine of the "turntable

Does the held inapplicable" "Turntable cases" doctrine not applied to injury caused

known of the attractiveness of the intru-

by child's entering private premises to "see into" theater. Briscoe v. Henderson L. &

Northern Pac. R. Co., 87 Mont. 103, 94 P 751.

P. Co., 148 N. C. \[36\], 62 SE 600. A depot is

not a place which allures children of ten-

age and intelligence to exclude him from

der years nor does the company hold out to

them an implied invitation or special attraction to visit it. Ling v. Great Northern

P. Co., 165 F 813. Lumber piles held not an

attractive nuisance as defined in the turn-

table cases. Kelly v. Benas \[Mo.\] 116 SWP

557. Railroad trains are not to be classed

with turntables, and there is no duty to

guard them from the intrusion of children.

S. Louis S. R. Co. V. Davis \[Tex. Civ. App.\]

110 SWP 939. Ekeette wire which can be

reached only by the climbing of the poles

to which it is flattened is not peculiarly at-

tractive to children within turntable cases,

and that children will climb the poles and

come in contact with the wire is not to be

reasonably anticipated. Mayfield Water & Light Co. v. Webb's Adm'r, 33 Ky. L. R.

909, 111 SWP 712. Stringers across canal

held not an attractive place for children.

Blum v. Weatherford, 121 La. 298, 46 S 317.

Not applied to railroad yards, where children were repeatedly ordered out, but

rather to a thing at rest and left un-

guarded. Smalley v. Rio Grande W. R. Co.,

34 Utah, 423, 98 P 811. Hence it is not

generally applied to the conduct of a busl-

meas, for here the implied invitation is

iacking. Id. A railroad track in the open

country is not attractive or air during to children within the doctrine of the "turn-

table cases." Palmer v. Oregon Short Line

R. Co., 34 Utah, 466, 98 P 689.

Decertime repudiated. Conrad v. Balit-

more & O. R. Co. \[W. Va.\] 61 SE 44. Heid

that the law imposes no liability upon rail-

road companies in favor of children for

maintaining unfastened and unguarded

turntable even in thickly setited community. Id.

32, Owner held under no obligation to

anticplate that child would enter private

alley to look into back windows of theater,

and hence owed no duty to guard danger-

ous agencies in such-alley. Briscoe v. Henderson L. & P. Co., 148 N. C. 386, 62 SE 600.

equally where the negligence charged consists in the violation of a statute or ordinance.\[37\] The general rule is that a proximate cause is one from which a result follows as a natural consequence \[38\] without the intervention of any indec-

Car & Foundry Co. v. Cunningham \[Ala.\] \[Ind.\] $1 NE 988. That plaintiff was work-

48 S 109; Torrans v. Texarkana Gas & Elec.

ing without permit as required by ordi-

Co. Lark J.115 SWY 839; Louisville & N. R.

nance not proximate cause of injury as Co. v. Scalt, 33 KS. L. R. 721, 110 SWY 862; matter of law. McCarthy v. Morse, 187

Casper v. New Orleans R. & L. Co., 121 La.

Mass. 322, 83 NE 1109. Failure to comply

603, 46 S 666; Sims v. American free Co.

with Labor Law (Laws 1897, p. 468, c. 415)

\[Mid.\] 71 A 522; Micalr v. Monroe Stone Co.

$20, amended by Laws 1899, p. 350, c. 192, re-

\[Michel.\] 15 Det. Leg. N.71, 117 NWV 939; Parker v. Union Station Ass'n \[Mich.\] 15 course of construction to be enclosed, not

Det. Leg. N. 909, 118 NWY 733; Stumpf v.

cause of injury of employee who was thrown

Delaware, L. & W, R. Co. \[N. J. Law\] #9 A

#10; Coady v. Brooklyn Heights R. Co., 128

#11; N57; U. Rogers, 215 Pa. 614, 69 A 61; Johns v. Ashl \[TWash.\]

#11; P 748. Faets held as consistent with defendants' theory as with plaintiffs and

originates and sets in motion the dom-

hence the cause of the accident being still

n matter of conjecture, a verdict was prop-

trough other as mere instruments or ve-

erly directed for defendant. Tibbits v.

hiles in the natural lines of causation to the

Mason City Ft. D. R. Co., 138 Iowa, 178,

result in controversy. Chicago & E. R. Co.

115 NWV 1021.

v. Dinus, 170 Ind. 22, 84 NE 9. The prox-

37. Because an ordinance is violated does not authorize a recovery when a person is

cause which led to, or might naturally be

injured by acts of his own, which, if known,

could not have been prevented by defendant had it complied with ordinance. King

v. Wuchash R. Co., 211 Mo. 1. 109 SVY 671.

Unlawfnul employment of a minor under 16 years of age in violation of Burn's Ann.

without which it would not have happened.

St. 1908, $ 8021, required defendant to anticipate injury resulting from his exhaustion.

115 SWY 1054. The "proximate cause" of an

tion. Inland Steel Co. v. Yedinak \[Ind.\]

87 NE 229. Railroad's obstruction of street

in violation of law' held proximate cause

of destruction of building by fire, where fire

department was destroyed by such obstruction, since such a result should have been

trough of some distinct wrongful act

anticipated. Houren v. Chicago, etc. R. Co.,

236 ILL, 620, 86 NE 611. Violation of Rev.

strong as the proximate cause. Louisville

St. 1905, $ 3362, prohibitting employment of

children under the age of 12 years in certain cases is negligence per se. Starnes v.

leads to, or produces, or contributes directly

Albion Mfg. Co., 147 N. C. 556, 61 SE 525.

Violation of Rev. St. 1905, $3362, prohibitting

employment of children in certain case, held

proximate cause of injury to child, though

show out of the performance or nonperform-

engaged at the time of the injury in work

outside the scope of his employment. Id.

R. Co. \[Fla.\] 48 S 209. The proximate cause

Sale of impure food to retailer in violation

of statute was proximate cause of sickness

of consumer resulting from its use. Mesheshes

besher v. Channellene Oil & Mfg. Co.

\[Minn.\] 119 NV 428. Evidence sufficient to

go to jury on question whether sale of gun-

worker to child of 12 was proximate cause

of latter's injury by its explosion. McEldon

v. Drew, 138 Iowa, 390, 116 NWY 141. Violation of Act Cong. March 2, 1893, p. 350, c. 192, re-

$12, 8; 27 Stat. 531 (U. S. Comp. St. 1901, p. 3174), requiring automatic couplers, prox-

imate cause of injury to brakeman while

making coupling. York v. St. Louis, etc.

R. Co 18 Cur. Law. NEGLIGENCE SS 3.

session of defendants, testimony of one, that he had turned it on but found no water running but that he was "quite sure" he turned it off, raised presumption of negligence which was not rebutted. Baker v., Shchewartz, 113 NYS T27. Negligence, if any, in leaving horse unattended for the time being on the street while it was eating, was not the proximate cause of its lifting a passerby, but its vicious propensity was. Corcoran v. Kelly, 61 Misc. 323, 113 NYS 686. Negligence having no connection with the injury cannot be the proximate cause thereof. Negligence, if any, in original placement of a box, not proximate cause of injury from its falling after replacement. Williams v. Citizens' Steamboan Co., 128 App. Div. 827, 113 NYS 616. One, who while walking along railroad track picked up torpedo and struck it to open it, was guilty of negligence proximately causing his injury resulting from the torpedo's explosion, even though company was negligent in placing it there. Holmes v. Delaware & Hudson Co., 112 NYS 621. Defect in bridge held proximate cause of injury, though it might not have happened but for breaking of buesgy tongue and irritation of restlessness of horse. Hubbard v. Montgomery County \[Iowa\] 118 NNV 912. Where one switchman, riding in front of engine being run by the engineer at an excessive rate of speed, saw his danger of being crushed because of a probable failure of the engine to couple with the car in front owing to nonalignment of coupling bars, and being unable to jump sought to align said bars and was injured thereby, the negligence of the engineer was the proximate cause. Murphy v. Chicago G. W. R. Co. \[Iowa\] 118 NNV 920. Defect in coupler held proximate cause of injury to brakeman when wet between cars to ascertain why it did not work. Sprague V. Wisconsin Cent. R. Co., 104 Minn. 58, 116 N NV 104.

**Illustrations: Fallure to signal having induced plaintiff to approach so near 'track that his view- was obstructed was held proximate cause of collision at crossing. Klujawa v. Chicago, etc. R. Co., 135 Vris. 562, 118 NYS 249. Failure of train to sound**

**562**, 116 NYS 249. Fallure of train to sound\*\*

**563** \*\*C. O. R. Co., V. Han's **C. O. R. Co., 112 NYS 1024. Adm?**

pendent, efficient cause," the result being such that it ought to have been anticiapendent, efficient cause," the result being such that it ought to have been anticiapendent,

no recovery against municipality under the

gence of company in maintaining uninsu-

statute rendering them liable for injuries

lated wires was not proximate cause of inc

cassed by defective highways. Hinckley v.

Jury. Luehrmann v. Laclede Gaalight Co.,

Danbury \[Conn.\] 70 A 590. Motorman's

127 Mo. App. 213, 104 SWV 1128. In action

failure to warn conductor of obstacle near

for injury to marine railway struck by tug.

track not proximate cause of passenger's

proximate cause of injury was negligence

injury thereby. Id. Failing of hammer

of tug in not proceeding in its course. Ives

which struck plaintiff's umbrella causing

v. Gring \[N. C.\] 63 SE 609. No casual con

her to suddenly twist her body thereby producing

nection between failure to have lookout

doing the injury held proximate cause,

ears and injury, where motorman himself

actual physical impact being unnecessary.

Saw plaintiff near track. Downey v. Baton

Philadelphia, B. & W. R. Co. v. Mitchell, 107

Rouse Elec. & Gas Co. \[La.\] 47 S 837.

Md. 600, 69 A 422. Failure to properly con-

Neginience of engineer, if any, held not to

struct staging over machinery held prox-

proximately contribute to his injury re-

mate cause of servant's injury rather than

eveled in collition, the proximate cause be-

negligence of fellow- servant's running into

horse supporting staging.

Vaisbord v.

& M. V. R. Co. v. Farr \[Miss.\] 48 S 520.

Nashua Mfg. Co., 74 N. H. 470, 69 A 520.

Dextruction of trunk by fire not the natural

and probable result of delay in forwarding

it. French v. Merechants' & Miners' Transp.

Co., 199 Mass. 433, 85 NE 424. Held under

the evidence that court could properly find

defective condition of wagon was due to

defendant's negligence and was proximate

cause of injury rather than act of by

shaker v. Kansas City Elec. L. Co., 130 Mo.

stander pulling out blanket caught between

different parts of wagon. Hollidge v. Dun-

can, 199 Mass. 121, 85 NE 186. Conductor's

pealtion on ear held but the occasion and

not the cause of the injury. Bennett v.

Chicago City R. Co., 141 Ill. App. 560.

Sefileence of elevator boy in leaving elevator

vator alone and in the condition shown held

proximate cause of passenger's injury, since

under the circumstances it was to be

bered that latter would return to car in

former's absence. Toohy v. McLean, 119

Mass. 466, 85 NE 578. Evidence held to warn-

rant finding that defective wheelarrow

was proximate cause of injury. O'Toole v.

Pruyn, 201 Mass. 126, 87 NE 608. Where

plaintiff who had hold of one end of beam

had hand crushed because other workmen

let go of their end, their letting go, and not

foreman's order to plaintiff to raise beam

by his hands rather than by cross-bar, was

proximate cause of injury. Carlsen v. McC-

Kee, 114 NYS 280. Execution of order by

servant held proximate act, but giving of

order by foreman was proximate cause of

injury. Deon v. McClint-Marshall Const.

Co., 114 NYS 28. Decedent's negligence in

stopping on froek in front of approaching

car held proximate cause of her injury.

Lutz v. Denver City Tramway Co., 43 Colo. 58, 95 P 600. Switching of ear held not

proximate cause of injury to child who was

struck by it, but rather the attempt of the

child to ride upon it. Smalley v. Rio Grande

W. R. Co., 34 Utah, 423, 98 P 311. Defective

condition of machinery held proximate cause

of explosion of gasoline engine. Meshiba-

nek V. Seattle Sand and Graver Co. \[Wash.\]

99 P 9. Proximate cause of an explosion was

not defendant's act in storing it on his pre-

less but plaintiff's act in shooting into it.

McGhee v. Norfolk & S. R. Co., 147 N. C.

142, 60 SE 512. Where injury was caused

by trespassing boys throwing hog wire

across electric wires at an uninulated spot,

thereby causing plaintiff who came in con-

tact with hog wire to receive shock, negligiap

spence of company in maintaining uninsu-

lated wires was not proximate cause of in

any. Luehrmann v. Laclede Gaalight Co.,

Danbury \[Conn.\] 70 A 590. Motorman's

127 Mo. App. 213, 104 SWV 1128. In action

failure to warn conductor of pated in the exercise of reasonable foresight.40 Negligence is actionable when the injury resulting therefrom is the probable result thereof, it not being necessary that such result could have been foreseen.41 The test of proximate cause is whether there was an unbroken connection between the wrongful act and the injury.42 It need not be the sole cause 43 or the direct cause 44 or the last in point of time.45

voluntary act and hence conception of the child was not an intervening agency relieving defendant of liability. Sullivan v. Old Colony St. R. Co., 197 Mass. 612, 83 NE 1091.

40. Farrier v. Colorado Springs, etc., R. Co., 42 Colo. 331, 95 P 294; Benedict Pineghip Code v. Atlantic C. L. R. Co. (FIA.) 46 S 732; Brubaker v. Kansas City Elec. L. Co., 130 Mo. App. 459, 110 SWV 12; Luethman v. Landeide Gaslight Co., 127 Mo. App. 213, 104 SWV 112; Cox v. Pennsylvania R. Co. (N. J. Err. & App.) 71 A 250; Muse v. Seaboard Air Line R. Co. (N.J. & SS) 85 NE 102. Held no evilence that defendant ought to have anticipated that removal of boxing from drum would cause brake to be released and bucket to be precipitated down mining shaft. Reino v. Montana Mineral, Land & Development Co. (Montal ) 99 P 853. Foremost should have seen that sudden stopping of hand car would throw off section hand standing thereon in an insecure position. Doss v. Missouri, K. & T. R. Co. (Mo. App.) 116 SWV 458. Though leaving stock yards' gate open In close proximity to passing cars was negligence, there was no liability for injury to stock attendant hanging on side of car unless defendant should have anticipated that the might occupy such position. Crawford v. Kansas City Stockyards Co. (Mo.) 114 SWV 1057. Evidence held to show that defendant bad reason to anticipate that stock attendant in performing his duties might be hanging on the side of a train passing through the yards, this being a common custom, and hence the leaving open of a pen gate so that it swung in close proximity to the tracks was actionable negligence. Id. Held, as a matter of law, that leaky engine, necessitating running of double header, was not proximate cause of an injury resulting from engine running into train from rear while it was standing still to permit the repair of a broken knuckle. Louisville & N. R. Co. v. Keiffer (Ky.) 113 SWV 433. Held that injury caused by negligence in making coupling was not proximate cause of injury to one going to freight depot on business, since his presence at the place of injury was not to be reasonably anticipated. Louthlan v. Ft. Worth & D. C. R. Co. (Tex. Clv. App.) 118 SWV 655. The rebound of a stick of wood, thrown from a car in such a way as to strike the legs of a man sitting on the car, is not such a consequence as ought to have been foreseen to result from permitting wood to be so thrown. Ultima Thule, A. & M. R. Co. v. Benton (Ark.) 110 SWV 1037. W was a consequence which might have been foreseen, and required submission of the question of proximate cause to the jury. Philips v. St. Louis & S. F. R. Co., 111 MO. 419, 111 SWV 109. Failure of defendant to construct its line properly and to repair defect in wires not proximate cause of injury by coming in contact with a wire thrown over the past.

## 12 Cur. Law. Negligence SS 3.

Pated in the exercise of reasonable foresight.40 Negligence is actionable when the injury resulting therefrom is the probable result thereof, it not being necessary that such result could have been foreseen.41 The test of proximate cause is whether there was an unbroken connection between the wrongful act and the injury.42 It need not be the sole cause 43 or the direct cause 44 or the last in point of time.45

Footnote 44: The use of the term "defendant" is not necessary to make the correct was not the nearest cause in the order of time. Id. Electric light company is liable for injuries caused by falling of effectively fastened street lamp, though immediate occasion of its fall is an unavoidable fire with which defendant has no connection, the fire being treated as an intervening agency bringing defendant's negligence into dangerous portions prominence and combining with it to cause the injuries. Id. One who violates a duty imposed by common law is iliable to every person who is injured as a natural and probable consequence. Pitts-burg Reduction Co. v. Horton \[Ark.\] 113 SWP 647.

- 43. San Antonio & A. P. R. Co. v. MeBride \[Tex. Civ. App.\] 116 SWP 638; Missouri, K. & T. R. Co. v. Lasater \[Tex. Civ. App.\] 115 SWP 105. Instruction, erroneous as ignoring defendant's liability of its negligence, was a conourring cause proximately contributing to the injury. St. Louis S. W. R. Co. v. Garber \[Tex. Civ. App.\] 111 SWP 227. The fact that other acts concur with the negligence proximately causing the injury is no defense. Ft. Worth & D. C. R. Co. v. Monell \[Tex. Civ. App.\] 110 SWP 504. One is not relieved of liability for his own negligence which proximately caused an injury because some natural force or the activity of a third person exerted an influence in causing the injury. Fledeterman v. St. Louis Transit \[M. Co. App.\] 113 SWP 1148. Fact that Bras pipes in street were started rolling by children does not relieve gas company of liability for negligently leaving them in the street insufficiently blocked. O'Hara v. Laclede Gaslight Co., 181 Mo. App. 428, 110 SWP 642. One is liable for injuries resulting from his negligence, though they probably would not have happened but for an intervening or conourring cause for which neither party is responsible. Clity liable for defective street though injury probably would not have happened but for fact that horse became infringthened. McLemore v. West End \[Ala.\] 48 S 683. Where a shipper provided a cover for growing plants which was negligently burned by defendant under such circumstances as must have imputed knowledge to him that the cover was necessary for the plants' preservation.
- 45. The fact that the negligence of a third person contributed to the injury does not profit defendant if his negligence was a concurrent cause. Hagerty v. Montana Or Pv 12 Cur. Law. NEGLIGENCE SS 4. 991

**SS 4.**_Contributory negligence,_44_._ \*\*See 10 C. L. 038--The doctrine of contributory negligence is to be distinguished from that of assumption of risk.47 Contributory negligence proximately contributing to the injury 48 bars recovery for negligence,49 though the negligence consists in violation of statute 40 but not for willful injury.\*\*41

result. Negligence in failing to have ticket NNE 444. Negligence on the part of plaintiff office open and negligence in starting train proximately causing the injury is contributory passengers could procure tickettory negligence. Ives v. Gring (N.C.) 63 were concerning causes, constituting the SE 609; Kiedel v. Whneeling Trac. Co., 63 proximate cause, San Antonio & A. P. N. V. Va., 622, 61 SE 821. When the act and go. V. Trigg (Tex. Civ. App.) 108 SV 1133. the injury are not known by common expe-Proximate cause as a rule is for the jury. Fricence to be actually and usually in se-Proximate cause for the jury, though the quence, and the injury does not, according immediate cause was not defendant's neg- to the ordinary course of events and affairs, ligence. Wells Bros. Co. v. Flanagan, 139 follow from the act, whether negligent po-Sition assumed by servant at machine was 46. Search Note: See notes in 4 C. L. 774, Proximate cause of injury, held at least for 777, 778; 6.1d. 767; 8.1d. 1106; 14 L. R. A. 733; 11 d. 16; 12 d. 169; 40 l. 131; 9.1d. 715; 55 physician's directions and discontinued 14. 118; 3 L. R. A. (N. V.) 1092; 7.1d. 182; 15 d. 597; 9.1d. 342, 972; 11 d. 166; 18 d. 461; 8.1d. 462; 8.1d. 471; 41 d. 590; 25 d. 249; 11 d. 291; 14 d. 278; 11 Ann. Sca. 126, 985; 3.1d. 48, 703; 14 L. 704; 21 d. 216, 613, 928; 5; 16 d. 163; 7.1d. 244; 9 1 d. 408, 935; 10 l. 41; 41; 11 d. 686. See, also, Negligence, Cent. Dig. **83** 84-167; Dec. Dig. **85** 86-101; 25 V. 505-561; 6 A. & E. B. Bmc. L. (26d.) 360; 7.1d. 370.

47. Where want of proper care on the part of a person brings about his injury, the doc-prime of "contributory negligence" is applied to his act; when a servant is injured from one of the well known chargers ordinarily incident to his service, then his injury is ascribed to one of the ordinary risks of employment which he assumed in entering upon the service. Louisiana & T. Lumber Co. v. Brown \[Tex. Civ. App.\] 109 SW 950. Contributory negligence is an act omission on plaintiff's part proximately causing his injury, and is a defense notwithstanding defending defendant's negligence while assumed risk rests upon a contract, generally implied, that the servant will assume the ordinary risks of his employment. Johnson V. Mann-moth Vein Coal Co. \[Ark.\] 114 SW 722. See, also, Master and Servant, 12 C. L. 665.

01. Inadvertent omission of word "proximately" before word "cause" held not to re-quire reversal, however, in view of the evil-Mammoth Vein Coal Co. \[Ark.\] 114 SW 722; defence. Texas Cent. R. Co., V. Johnson (Tex., City. App.) 111 SW 1098. Instruction ignor-SW 1404. Speed of trains. Holland v. Mising the necessity of plaintiff's negligence sought Pact. R. Co., 210 Mo. 328, 109 SW 19. Being proximate cause in order to bar recovery erroneous. Bivis v. Vaneburg Tel. Co. \[Ark.\] 113 SW 811; St. Louis S. B. Co. v. Shelton \[Tex. Civ. App.\] 115 SW 877; Ver-trees v. Gage County \[Neb.\] 115 NW 863; duct contributed to his injury. Mulaine v. Fitzgerald v. International Flax Twuhe Co., 114 Mnin. 138, 116 NW 475; Zelenka v. 354. Whether such conduct contributed to Union Stockyards Co. \[Neb.\] 118 NW 103; Al Atlanta & B. Air Line R. V. Wheeler \[Ala.\] 11 - Ann. St. 1906, 1120, reinfursing trains to 46 S 262. "Proximately contributing" distinguished from 992 NEGILIGENCE $ 4. 12 Cur. Law. Plaintiff's duty is measured by the same standards as that of defendant,"2 he being required to exercise ordinary care \[83\] under the circumstances \[64\] commensurate with the danger to be apprehended,"58 and his condition \[56\] and capacity."7 Among the common cases of contributory negligence are failure to exercise due care after crossing accident which happened before event shows to have been the real danger. Its passage. Clemons v. Chicago, etc., R. Co., 137 WIs, 387, 119 N NV 102. Employed: 1109. If what is done in an emergency is ment of minor under 14 years of age no more than might have been expected in violation of Laws 1897, p. 90, 1 (Third's) from an ordinarily prudent person placed Rev. St. 1908, c. 48, $ 33). Strafford v. under like circumstances, then due care is not wanting. Burger v. Omaha, etc., R. Co. 87 NEE 358, Employment of minor un- der 16 years of age for more than certain number of hours per day and week in violation of Acts 1899, p. 231, c. 142 (Burnst Ann. St. 1908, $ 8021). Inland Steel Co. v. Yedimak \[Ind.\], 87 NEE 229. 51. Cunningham v. Pease House Furnish-lng Co., 74 N. H. 435, 69 A 120; Birmingham R. L & P. Co. v. Haggard \[Ala.\] 46 S 519; Central of Georgia R. Co. v. Moore \[Ga.\] 68 AS E642. Held that evidence tended to show misconduct of such nature, hence question was for jury regardless of plaintiff's conceded negligence, Jackson Elec. R. L & P. Co. v. Carnahan \[Miss.\] 48 S 617. Hence, where certain counts allege wanton negligence, pleas of contributory negligence are insufflect answers thereto. Kelly v. Louisville & N. R. Co. \[Ala.\] 45 S 806. 52. There is no distinction between neg-ligence on the plaintiff's part and negligence on defendants part, except that the former is called "contributory negligence." Smith's Adm'r v. Norfolk & P. Trac. Co. \[Va.\] 68 AS E100S. Contributory negligence is no more than a case of negligence, and not dependent upon any different rule of law, though presupposing the limitation of the Issue of negligence to an inquiry as to which of two persons its final impulsion is to be attributed. Fitzgerald v. International Flax Tvine Co., 104 Minn. 138, 116 NW 475. 53. Louisville & N. R. Co. v. Roth \[Ky.\] 114 SWV 264; Goodale v. York, 74 N: H. 454, 69 A 525. Instruction that if conductor could have performed his duties and still have avoided being struck by car imposed too high a degree of care since it required more than an exercise of reasonable care. Smith's Adm'r v. Norfolk & P. Trac. Co. \[Va.\] 68 AS E100S. Unless it can be said that the danger was so apparent that no prudent man would incur it, plaintiff cannot be held guilty of contributory negligence. Goodale v. York, 74 N. H. 454, 69 A 525. Plaintiff held not negligent. Id. Instruction that "ordinary care is such care as a prudent man of the requisite skill will take under the circumstances of the particular case," and "such care as ordinarily prudent men exercise in matters affecting their own interests," held erroneous. Reffke v. Patten Paper Co., 136 Wis. 545, 117 NW 1004. "Ordinary care" is that care which ordinary prudent persons use in their bus-iness or such care as the great mass of man-kind observe in the transactions of human life. Grimm v. Milwaukee Elec. R. & Light Co. \[Wis.\] 119 NWV 833. 54. The care required depends to a considerable degree upon the exigency in which one acts and what ought them to have been foreseen and not so much upon what the \[L'a.\] 47 S 825.

discovery of peri," failure to use one's senses to ascertain danger," failure to use safeguards provided," commission of obviously dangerous acts," and needless exposure to a known danger."22 Contributory negligence ordinarily involves some knowledge of the peri,"33 one being ordinarily entitled to anticipate that reasonable care will be exercised by others;"4 but lack of vigilance or a negligi-

58. Waddell v. Metropolitan St. R. Co., 213

wagon whose view was obscured by, its Mo. 8, 111 SVV 542.

cover was not negligent in failing to avoid

59. One driving along the track of an

ecentric car line, with the expectation that

v. Sine, 33 Ky. L. R. 792, 111 SVV 356. Stock

a car will come behind him, and an opportunity to turn off the track, and in the full

in failing to see open gate to stock pen in

possession of his faculties, is without excuse if he is overtaken by a car and his

was unusual and due to negligence. Crawwagon is wrecked and he is himself

jured. Cincinnati Trac. Co. v. Kroeger, 11

014 SVV 1057. One going from lighted station

Ohlo C. C. (N. S.) 123.

onto dark platform where she stepped off

60. Failure to keep hold of hand rail

In descending key steps with a knowledge of

danger and means of protection held negligence,

Atiantic Coast Line R. Co., 4 Ga. App. 353,

gence, reasons for not using rail being insufficient, Stevenson v. Pittsburg, etc., R. Co., 219 Pa. 626, 69 A 45.

61. Entering elevator with no one, In

charge held negligence, though door was

open. Kaplan v. Lyons B. & Operating Co.,

of Lazsafety v. West \[Ind.\] 87 NE 556. De-

these circumstances, it was plaintiff's duty

to stop and investigate conditions before

nirby received while operating machinery

entering elevator held for jury. Beal-Doyle

Dry Goods Co. v. Carr, 85 Ark. 47%, 108 SW

ate the machinery, was not a machinist,

1052. Passenger on freight train not negligent as a matter of law in seating himself

Creevy v. Union Roofing & Mfg. Co. \[Iowa\]

on trunk near door, though he knew there

was some danger in such a position.

Mitch-

chl v. Chicago & A. R. Co., 132 Mo. App. 143,

a mere knowledge of some danger. McCar-

112 SVV 291. Position of sectionman on

thward car. Doss v. Missouri, & T. R. Co.

\[Mo. App.\] 116 SVV 458. Contributory negligence to walk on deck of ship when vision

his head no knowledge was not guilty

is obscured, knowing of existence of a

hatchway, but not knowing whether it was

shock caused by the metal coming into con-

open or closed. The Lehigh Valley Transp.

Co v. Cook, 181 Th. App. 405. Placing one's

River Tel. Co., 127 App. Div. 450, 112 NYS

self dangerously near tracks on which

trains are liable to pass without keeping

appreciated risk, he was not negligent in

careful watch held negligence. McDoel v.

Atevermann, 141 Ill. App. 113. Contributory negligence of plaintiff in

Iadder and staging were above him. Davis

while on the pulleys for the jury where he

was injured by a wrongful starting of the

machinery, there being evidence that he was

doing the work in the ordinary manner, and

that it was practicably impossible to do

it in any other way. Silverman v. Carr, 200

Mass. 396, 88 NE 898. Failure to equip tight

Rinaley v. Boston El. Co., 201 Mass. 55,

and loose pulleys in such case not con-

st NE 197. Plaintiff was not negligent in

clusive evidence of contributory negligence.

running into guy wire stretched from tele-

Id. Child who ran in front of plainly vis-

blue automobile to get ball in street held

ravel, when he had no knowledge or warn-

guilty of contributory negligence. Fay v.

grooklyn Heights R. Co., 129 App. Div. 875,

113 NYS 689.

e2. Going from station onto dark platform

where injury was caused by falling into a

hole. Tuten v. Atlantic Coast Line R. Co.,

4 Ga. App. 853, 61 SE 511. It is one's duty

to avoid knowingly placing himself in danger. United States Exp. Co. v. Kraft \[C. C. A.\] 161 P 300.

63. Pedestrian ignorant of defect in street

until injured thereby held not negligent.

City of San Antonio v. WIDenstein \[Tex.

Civ. App.\] 109 SVV 231. Rear man on ice

for dangers because he may assume that the

19 Curr. L - 63.

### 994 Negligence & 4.

gent failure to act may constitute contributory negligence as well as negligent action. \[65\] More inattention or temporary forgetfulness is not necessarily negligence, \[66\] but carelessness resulting from long familiarity with the danger is. \[67\] Neither has nor mental preoccupation will excuse the exercise of due care. \[68\] While failure to use one's senses, when such use would have rendered an injury avoidable, is ordinarily contributory negligence, \[69\] errors of judgment by one in a position of peril are not, \[70\] though one in such situation must act as an ordinarily prudent man would under like conditions, \[71\] and one who unnecessarily and negligently places himself in a position of danger cannot invoke the benefit of the doctrine of sudden peril. \[72\] Some relaxation of the rules of care is also made in owner has performed his duty to keep them \[67\] Negligence in unnecessarily incurring safe. Montague v. Hanson \[Mont.\] 99 P \[68\] Care required dependent upon implied assurance of safety, Though tenant \[69\] P. Pedestrian crossing street car tracks, walked through door to elevator without looking to see whether or not elevator was there, fact that door was open and that elevator boy to it as was customary when waiting for passengers held such an assurance of safety as to make the question of contributory negligence one for the jury. Jolliffe v. Miller, 128 Apr. Dtv. 763, 111 NYS 406. Not negligence per se for guest at hotel to assume such position in elevator as its construction invites. Fraser V. Harper House Co., 141 Ill. App. 390. Contributory negligence cannot be imputed to one for failure to anticipate a violation of law. Volation of speed ordinance by railroad company, Dukeman v. Cleveland, etc., R. Co., 327 Ill. 104, 86 NE 712. No contributory negligence under the circumstances in passengers re-entering elevator in absence of operator, Tcohy v. McLean, 129 Mass. 466, 85 NE 678. One is justified in relying on the presumption that others will act lawfully. One crossing tracks in front of approaching street car justified in believing that car will not run faster than the rate of speed fixed by ordinance. Kern v. Des Moines City R. Co. \[Iowa\] 118 Nvy 451. One rightfully sitting on bench in park notnegligent in falling to maintain lookout for weapons which might run over his feet. S11-verman v. New York, 114 NYS 59.

65. Instruction held not misleading. Douglass v. Southern R. Co. \[S. C.\] 63 SE 6.

Mere passive negligence may be the proximate cause of an injury, if it directly contributed thereto. Not necessary to show active, affirmative negligence in all cases. McLean v. Atlantic Coast Line R. Co., 81 S. C. 100, 61 SE 900.

66. Plainiff not negligent as matter of law In falling over cake of ice on walk, though the could and would have seen it had his attention not been diverted. Merchant'e & Cold Storage Co. v. Barbright, 33 Ky. L. R. 488, 110 SW 364. Fact that one knows of defect in newer under walk does not of itself show that the failed to exercise that care which a reasonably prudent man would have exercised in passing along the sidewalk. City Council of Montgomery v. Comer \[Ala.\] 46 87 I. Montemarty forgetfulness of a known danger is no excuse where, under the circumstances, one ought to use due care to remember it. Miller v. White Bronze Monument Co. \[Iowa\] 118 Nvy 618.

case of persons endeavoring to save life 73 or property.74 The fact that plaintiff was engaged in the performance of an unlawful act when injured is not negligence per se.75

to children above a certain age,78 and below such age the presumption is of incapacity,79 and as to infants below the age of seven this presumption is sometimes absolute,80 though in some states this presumption is not recognized.81

Footnote 81: The _Hubble_ is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, is a _Hubble_, which is a _Hubble_, which is a _Hubble_, which is a _Hubble_, is a _Hubble_, which is a _Hubble_, which is a _Hubble_, is a _Hubble_, which is a _Hubble_, which is a _Hubble_, is a _Hubble_, which is a _Hubble_, which is a _Hubble_, is a _Hubble_, which is a _Hubble_, which is a _Hubble_, is a _Hubble_, which in most states this doctrine is repudiated,"86 degrees of negligence being ordinarily measured only by the exigencies of each particular case.84

_The last clear chance doctrine_ See 10 C. L. 948 is merely a phase of proximate cause 88 in which the negligence of him who fails to avail himself of a last clear chance to avoid an injury by the exercise of ordinary care is deemed the proximate cause of the injury,88 the most frequent application being to charge with negligence one who, having discovered the peril in which another has negligently placed himself, fails to exercise ordinary care to avert injury,87 knowledge of the peril or

obscured, did not absolve railroad company

exercise of due care, observe. Fact that one

from liability for its negligence. Southern

was on street car track when killed did not

R. Co. v. Fisk (C. C. A.) 159 F 873. Where

of itself render him contributorly negligent,

both the parties are at fault, damages are to

Pilmer v. Bolse Trac. Co., 14 Idaho, 327, 94

be apportioned according to the degree.

P 432. Fact that plaintiff attempted to

Florida R. Co. v. Sturkey (Fla. 148 S 84.

cross street car tracks in city without look-

83. Weir v. Haverford Elec. L. Co., 221 Pa.

ing or listening did not bar recovery for

611, 70 A 874; Missouri Pac. R. Co. v. Valtera

notman's subsequent negligence. Id.

\[Kan.\] 96 P 346; Atlanta & B. Air Line R.

Refusal to charge that negligence of deced-

Co. v. Wheeler \[Ala.\] 46 S 262; McLean v.

ent in going on track barred recovery unless

Atlantic Coast Line R. Co., 81 S. C. 100, 61

SE 890; Miller v. Chicago, etc., R. Co., 135 WIs.

ing him after seeing his peril held error.

247, 115 NW 794; Atchison, etc., R. Co. v.

Gregg V. Northern Pac. R. Co., 49 Wash. 183,

Mills (Tex. Civ. App.) 108 SW 480; Felver v.

94 P 911. Applied to railroad company after

Central Elec. R. Co. \[Mo.\] 115 SW 980. Neg Neglecting or plaintiff contributing proximality

Achison, etc., R. Co. v. Baker (Okl.) 95 P

to his injury will bar recovery, though de-

433. The foundation of the humanitarian

fendants' negligence was much greater.

doctrine is that no person has a right know-

Memphis, Consol. Gas & Elice. Co. v. Simpson

(Tenn.) 109 SW 1155. At common law, if

plaintiff's negligence materially contributed

to the injury, his action is absolutely barred,

frespective of the defendants' negligence.

Tuten v. Atlantic Coast Line R. Co., 4 Ga. App.

363, 61 SE 611. The doctrine of comparative

negligence and consequent apportionment

of damages was adopted from admixtures law,

and is embodied in Civ. Code 1895, # 2322,

seging the danger thereof, notwithstanding

SS30, but injury having been received in a

common-law state, common-law rule pre-

value, Id.

84. Even degrees of care are now abolished, the question always being, has the

care demanded by the peculiar circumstance

been exercised in the particular case: if so

there is no negligence, if not there is negligence. Missouri Pac. R. Co. v. Walters

\[Kan.\] 96 P 346.

SS. See ante, $ 3.

SS6. Where, by the exercise of ordinary

care, defendant might have avoided the

injury notwithstanding plaintiff's precedent

negligence, such negligence does not excul-

pate the defendant from liability. Child of

four years injured by train on railroad track.

Anderson v. Great Northern R. Co. \[Idaho\]

99 P 91. Contributory negligence is no defense against a case of discovered peril. St. Louis, B. & M. R. Co. v. Droddy (Tex. Civ. App.) 114 SW 903; International & G. N. R.

Co. v. Alleman \[Tex. Civ. App.\] 118 SW 73.

By basing his action upon the humanitarian

doctrine, plaintiff admits contributory negligence.

gence. The humanitarian theory raises the question whether defendant could, by the ex-

ercise of ordinary care, have seen plaintiff

in time to have avoided injury to him, re-

gardless of contributory negligence. Felt

ver v. Central Elec. R. Co. \[Mo.\] 115 SW 980,

Negligence which is not the proximate cause

of the injury will not bar a recovery, since it

is not contributory negligence but merely a

condition which the other party must, in the

in that case, the possibility of a failure is not

997 reasonable ground to apprehend it being necessary to charge one with such subsequent negligence.\[88\] The doctrine applies to exclude contributory negligence only when defendant's negligence is subsequent to plaintiff's " or at least where no subsequent negligence of plaintiff precluded defendant's opportunity to avert the injury."

_Imputed negligence_, See 10 C. L. 844. Except where the relation of master and servant exists,\[91\] the negligence of the driver of a vehicle cannot be imputed to pass-

drawing from the danger, motorman who saw her danger should have used every reason to apprehend the existence of each neighbor. Nichols v. Chicago, B. & Q. R. sonable effort to avoid collision. Bladecka Co. \[Colo.\] 98 P 808. The doctrine is not v. Bay City Trace. & Elec. Co. \[Mich.\] 15 Det. I limited to those cases where plaintiff's peril Leg. N. 965, 118 NNV 963. Evidence held to show that motorman was negligent in run-

ascribes of ordinary care, it should have nine plaintiff. Id. The rule that one won. Id. Last clear chance doctrine

who, through his own negligence, places himself in a position of danger, is precluded

assume that one would not attempt to cross from recovery for injuries inflicted by an-

tracks in front of rapidly approaching train, and where peril was realized it was

his peril and inability or lack of effort to

to late to avoid it. Chesapeake & O. R. Co. escape therefrom are discovered, or should

v. Hall's Adm? \[Va.\] 63 SE 1007.

be discovered, by defendant, the duty becomes imperative for the defendant to use

has created the danger by his own negil-

reasonable care to avoid the injury, and if

since cannot be held a failure to save the

this is not done he becomes liable notwithstanding the negligence of the injured party,

v. Boston & M. R. Co. \[N. H.\] 71 A 21. One

whether engineer could have avoided injury

who drives across car tracks immediately in

held for the jury. Netary v. Northern Pac.

front of car with full realization of danger

R. Co., 37 Mon. 461, 97 P 944. Where defendant, after becoming aware of the peril in

cannot invoke the doctrine. Knlein v. Met-

which plaintiff has negligently placed him-

set, fails to use ordinary care to avoid injury

track in front of approaching train held

img him and such failure is the proximate cause of injury even though train-

cause of the injury, plaintiff's negligence is

no defense. Nichols v. Chicago, B. & Q. K. Co. \[Colo.\] 98 P 808. Contributory negligence is

where the negligence of both parties con-

no bar to an action where the party injured

is, or by the exercise of ordinary care could

have been, found in a place of danger in

time to have prevented the accident by the

exercise of ordinary care. King v. Wabash

R. Co., 211 Mo., 109 SWV 671. Contributory negligence in placing oneself in a position

of peril is no defense to charge of failure on

defendant's part to use ordinary care to

avoid injury after discovery of the peril. St. Louis & S. E. R. Co. v. Summers \[Tex. Civ. App.\] 111 SWV 211. Facts held to establish

discovered peril. Id. Contributory negligence in

since in incurring danger does not bar

copy for an injury where the peril is dis-

covored by defendant in time to avoid injury

by the exercise of ordinary care. Morgan v. Missouri, K. & T. R. Co. \[Tex. Civ. App.\] 110

show 978.

S8. Complaint insufficient to bring case

within the "last clear chance" doctrine,

where it did not show that defendant knew

of plaintiff's danger in time to avoid accident. Lake Erie & W. R. Co. v. Bray \[Ind. App.\] 84 NE 1004. Peril which is "apparent"

or "reasonably apparent" is known peril.

As related to discovery of trainmen of peril

of one on track. Missouri, K. & T. R. Co. v. Reynolds \[Tex. Civ. App.\] 115 SWV 340.

where the plaintiff is guilty of contributory

negligence, he must, in order to recover,

show that defendant saw, or by the exercise

of ordinary care could have seen, his danger

and avoided injury to him. Trigg v. Water,

might be explained here.

Arises where the circumstances are such that

an ordinarily prudent person would have

rather than a person 12 Cur. Law. NEGLIGENCE SS 5. 999

sengers therein,99 though one may be negligent in entrusting his safety to the driver if he have equal opportunity to observe the peril.99 In most jurisdictions the negligence of a parent is not imputed to a child in an action for the latter's benefit,94 nor is the negligence of a husband imputable to his wife.95 In an action for the parent's benefit, his negligence may be imputed to a child.96 Negligence of a bailee cannot ordinarily be imputed to the owner.97 The question of imputed negligence is ordinarily one of fact, 98, 99 unless there has been a voluntary noncontractual surrender of all care by one party to the other. The doctrine of contributory negligence of a fellow-servant cannot be invoked by a stranger against an injured party.1

SS 5. _Actions._\*\*2-See 10 C. L. 945\_ _Pleading._--The declaration or complaint See 10 C. L. 945\_ \_must state all facts constituting the cause of action,_3 _including defend- tion caused by negligence of company was_ _Berry v. St. Louis, etc., R. Co., 214 Mo. 693, not imputable to owner since neither the relation of master and servant nor principal_ _curs with that of a third person to cause her Co. of Liverpool v. Vicksburg S. & P. R. Co._ _Injury does not bar her recovery. Louisville_ _\[C. C. A.\]_ 159 F 676. Negligence of bailee_ _Injured to bailor where relation of_ 1000 NEGligENCE SS 5. **13** Cur. Law.

ant's duty," his violation thereof," and injury proximately resulting therefrom." When the action is based upon the violation of an ordinance, the complaint should set out its due enactment, present effect and substance." Though it is often said that negligence may be pleaded generally," specific averment of facts is ordinarily cycle rider's running off stage into audience, which aveve a duty to provide "protection" for the audience, is not demurrrab on the "ground that no duty existed to "erect barriers which would prevent the audience from seeing the performance," since such means were not necessary to afford protection. Brown v. Batchellor \[R. I.\] 68 A 225. Where the gravamen of an action is the alleged nonfeasance or misfeasance of another, as a general rule it is sufficient if the complaint avevers the facts out of which the duty arises, and the failure in its performance. It is not necessary to specify the particular acts of diligence which should have been exercised in the performance of such duty. Louisville & N. R. Co. v. Church \[Ala.\] 48 S 457. It must in every case show the existence of a duty, a failure in its performance, and re-sulting injury to plaintiff. Wabash R. Co. v. Reynolds, 41 Ind. App. 678, 84 NE 982. Certain counts sufficiently charged negligence in failure to provide suitable protection against drowning in swimming pool kept by defendant, while other counts were defective. Decatur Amusement Park Co. v. Porter, 137 Ill. App. 448. **4**. Home v. Presque Isle Water Co: \[Me.\] 71 A 769; Flannagan v. Wells Bros. Co., 237 Ill. 82, 86 NE 609. The complaint must allege facts sufficient to fix responsibility upon defendant. In action for injuries occasioned by defective premises, allegation that defendant had leased a "portion or all" thereof held merely an averment that it had leased a portion, and the accident not being shown to have occurred on such portion was insuffment. Martin v. Louisville & J. Bridge Co., 41 Ind. App. 493, 84 NE 360. Averment of lack of due carre sufficient, it being construed to mean no carre or slight care and not the highest degree of care, since it does not import the latter. Lay v. Elk Ridge Coal & Coke Co \[W. Va.\] 61 SE 166. Averment that place of injury was a public street and that plaintiff was a traveler thereon sufficiently showed city's duty to plaintiff. City of Laporte v. Osborn \[Ind. App.\] 86 NE 995. Where negligence is based upon defendant's knowledge of a dangerous defect in his premises and a failure to repair them, starts showing a knowledge of the need of repairs or facts from which such knowledge may be inferred must be alleged. Cumberland Tel. & T. Co. v. Pierson, 170 Ind. 543, 84 NE 1085. Compilation good as against objection that it failed to allege defendants' knowledge of plaintiff's presence near blasting operations, where it alleged failure to give notice of the setting off of a blast. Sloss Sheffield Steel & Iron Co. v. Salzer \[Ala.\] 48 S 374. Failure to negative fact that plaintiff was trespasser normali, since negligent injury even to trespasser would render defendant liable. Louisville & N. R. Co. v. Dalton \[Ky.\] 113 SW 842. If injury to pedestrian on railroad track occurred where no lookout was required and trainmen did not discover plaintiff's perill time to avoid injuring him, this was a matter of defense which plaintiff was requisite,9 and specific averments following general will be taken as specifications thereon.10 It is sometimes said that the acts relied on must be specifically characterized as negligence.11 The pleading must clearly show whether it seeks to recover for negligence or willful injury.12 As in other cases, neither evidentiary facts 13 nor conclusions 14 should be pleaded. Several distinct acts of negligence

115 SWW 821; Chicago City R. Co. v. Ratner, necessary inference. Baltimore & O. S. W. 183 Ill. App. 628; Birmingham, R. L. & P. Co. v. Abegglen, 41 Ind. App. 603, 84 NE Co. v. Haggard \[Ala.\] 46 S 519; Crane v. Conjecton \[Ky.\] 116 SWW 341. The specific acts constituting the negligence need not be aligned. Louisville & N. R. Co. v. Dalton \[Ky.\] 118 SWW 842. In pleading negligence, it is still blocked by specifications of particular set/Client as against a demurrer for want of facts to characterize the act which caused the injury as having been negligently done. Lake Erie & W. R. Co. v. Bray \[Ind. App.\] 84 NE 1004. But it is necessary to directly and plainly allege facts showing a legal duty owning by the alleged wrongden to the party injured. Id. The violation of that duty is that act which may be characterized as negligently performed or omitted. Id.: Lexington R. Co. v. Britton \[Ky.\] 114 SWW 295. A general allegation of negligence is suffB-cient to withstand a demurrer for want of facts. Asperson v. Lazore (Ind. App.\] 87 NE 97. As a rule negligence may be pleaded generally, it being an ultimate fact and not a conclusion of law. Allegation of negligence in constructing, putting in, operating and maintaining defective system of wires limited to such acts. Missouri Valley Bridge admitted proof of negligent operation consisting of specific acts, in absence of a special demurrer. Younie v. Blackfoot Light & Water Co. \[Idaho\] 86 P 193. Where the mere happening of an accident calls for an explanation, specific allocations of its cause are not required. As where bicycle rider in theatre rode off the stage into audience, Brown v. Batchelller \[R. L.\] 63 A 295. A. Complaint by parents for loss of services of child through injuries held to suffB-cienty itemaire injuries. Birmingham R. L. & P. Co. v. Chastain \[Ala.\] 48 S 85. In common-law actions the negligence relied on must be averred in direct and positive terms, or such facts must be stated as to compel the presumption that the injury used for was caused by defendants' negligence. Complaint insufficient in action against carrier. Pittsburgh, etc., R. Co. v. Schepman \[Ind.\] 84 NE 98. Necessary to aver specific acts of negligence. Inman & Co. v. Seaboard Air Line R. Co., 159 F 960. The negligence relied on must be directly and specifically charged, or facts must be alleged which force an inference of negligence proximately causing the injury. Cleveland, etc., R. Co. v. Perkins \[Ind.\] 86 NE 405. Positive and direct averment that night was dark unnecessary when the facts show that the accident occurred in the night time. City of Laporte v. Osborn \[Ind. App.\] 86 NE 995. The manner in which the injury was received must be stated with sufficient accuracy. Allegation that belt broke and a piece thereof flew off and struck plaintiff in the right eye held sufficient. Dittman v. Edison Elec. Illuminating Co., 125 App. Div. 691, 110 XYS 87. The complaint must aver in direct terms the acts or omissions of the defendant that are relied on as constituting negligence. It is not sufficient that they appear by way of recital or un may be counted on " if not repugnant." An action for common-law negligence and an action for breach of a city ordinance cannot be joined." Contributory negligence need not ordinarily be negatively," and allegations to that end are surplusage," but if the facts alleged show that plaintiff was negligent, the declaration is demurable," and statutes sometimes provide for a general denial by plaintiff of his negligence." An ambiguous complaint will be construed in the light most favorable to plaintiff." Defects in pleading may be cured as in other cases by verdict and judgment."

\_Answer.\_See 10 C. L. 947--While contributory negligence may be availed of without plea if it appears by plaintiff's evidence 24 or was proved without objection,"

Allegations as to duty of telephone com- of showing contributory negligence being pany under ordinance held conclusive. Cum- on defendant by Burns' Ann. St. 1908, p 362.

beriand Tel. & T. Co. v. Pierson, 170 Ind. 543, 84 NE 1088. Averment that plaintiff was thrown from car platform because trins were not vesutibted as advertised held conclusive. Pittsburgh, etc., R. Co. v. 187 NE 550. Compilaint held Lehepean \[Ind.\] 84 NE 888.

15. Plaintiff is not limited as to the acts of negligence, but may pleald in the same count several acts not inconsistent with each other, either of which, or all of which together, might have produced the result complained of. This is not stating more than one cause of action. Thompson v. 20, Smith v. Southern R. Co., 80 S. C. 1, Keyes-Marshall Bros. Livery Co., 214 Mo., 61 SE 205. Petition held to negative fact 487, 113 SWV 1128. It is therefore competent to include in one count an act or acts con- withting negligence at common law, and an act or acts of negligence arising under a button of showing by other facts that he was statute or ordinance, all politing to the same result. Id. As many acts of negligence may be charged as relate to the Inj- jury complained of. Master and servant case. Crane V. Congleton \[IX.\] 116 SWV 841.

01. Acts specified held consistent. Heinzie v. Metropolitan St. R. Co., 213 Mo. 102, 111 SWV 536. Allegations that injury was caused by sudden starting of cars, and also that it was caused by sudden stopping of car after starting, held consistent. Alten v. Metro-politan St. R. Co., 133 Mo. App. 425, 113 SWV 691. Repugnancy between counts is not fatal to the declaration, it being good practice to vary the statements in different counts to meet the various phases of the testmony. Seal v. Virginia Portland Cement Co., 108 Va. 86, 62 SE 175. Declaration

01. Averments of contributory negligence, he was so drunk that he was unable to care for himself, bad for repugnancy. Keeshan v. Elgin, A. & S. Trac. Co., 132 III. App. 416.

01. Advantage of such misjoinder should be taken by demurrer. Wills v. Atchison, T. & S. F. R. Co., 133 Mo. App. 625, 113 SWV 113. Baltimore, etc., R. Co. v. Abegglen, 41 Ind. App. 603, 84 NE 566; Simeoll v. Derby Rubber Co. \[Conn.\] 71 A 846: Smith v. Dela- ware Hivert Arnusement Co. \[N. J. Law\] 69 A 970; Louisiana & T. Lumber Co. v. Brown \[Tex. Cliv. App.\] 109 SWV 950; Davis Adm't V. Ohio Valley Banking & Trust Co., 32 KY. L. R. 627, 106 SWV 843; Inland Steel Co., Yedinak \[Ind.\] 81 NE 229; Murray v. Chesa- peake & O. R. Co. \[IX.\] 115 SWV 821. Mere failure to explain plaintiff's purpose in leaving seat in car and going upon platform does not show negligence as a matter of law. Kansas City, M. & O. R. Co., V. Young \[Tex. Cliv. App.\] 111 SWV 764. The burden 18 Cur. Law. NEGLIGENCE SS 5.

it cannot be affirmatively shown unless pleaded." The plea is in the nature of a plea of confession and avoidance," but, when joined with the general issue, does not admit defendant's negligence.28 It is subject to the same rules as the pleading of actionable negligence.29

\_Reply.--\_The plea of contributory negligence must be traversed.30

\_Issues and variance.See 10 C. L. 840.--\_Where negligence is specifically alleged, material variance is fatal,31 but where it is alleged generally, any specific acts within

of contributory negligence. Webster v. At-

Worth \[Tex. Cly. App.\] 20 Tex. Ct. Rep. 772, lantic Coast Line R. Co., 81 S. C. 46, 61 SB

107 SV 958.

1080. Otherwise a verdict for defendant

0001. American Bolt Co. v. Fennell \[Ala.\] 48

should be directed on the pleadings. Smith S 97: Collins v. Fillingham, 129 Mo. App. v. Louisville & N. R. Co. \[KY.\] 112 SV 874.

340, 108 SW 616; Hebeler v. Metropolitan St. R. Co., 132 Mo. App. 561, 112 SW 34; Knight

31. Recovery must be had, of it all, upon

R. Co., 132 Mo. App. 561, 112 SW 34; Knight

v. Donnelly Bros., 131 Mo. App. 162, 110 SW

Gass & Klee. Co. v. Ambre \[Ind.\] 87 NE 246;

687; Sissell v. St. Louis & S. F. R. Co., 214

Jones v. St. Louis, etc., R. Co. \[Mob. App.\]

Mo. 515, 113 SW 1104; Von Trebra v. Lacelete

GaslIght Co., 209 Mo. 648, 108 SW 559. Hence

a general denial to a complaint which aligns specific acts of negligence is equivalent

leges an absence of contributory negligence

does not put that allegation in issue. Atchison, etc., R. Co. v. Peck \[Kan.\] 100 P 54;

tributed to the injury. Beave v. St. Louis

Kenny v. Kennedy \[Ca.\] App.\] 99 P 834;

O'Brien Co. v. Omaha Water Co. \[Neb.\] 118

118 NW 110, Disapproving Chicago, B. & Q. R.

C. v. Kellogg, 55 Neb. 148, 76 NW 469, and Chicago, etc., R. Co. V. Laserkran, 65 Neb.

66, 91 NW 358, 95 NW 2; Meuly v. St. Louis

68 & S. F. R. Co. \[Mob.\] 114 SW 1013; Longpre

v. Big Blackfoot Mill. Co. \[Mont.\] 99 P 131.

Evidence of contributory negligence is admissible under a general denial. Pittsburgh,

112; St. Jean v. Lippitt Woolen Co. \[R. I\]

etc., R. Co., Rogers \[Ind. App.\] 87 NE 28.

27. Answer held to directly negative the cause of action where it alleged that plain-

117#'s negligence was sole cause of injury,

and hence did not plead contributory negligence. Ramp v. Metropolitan St. R. Co., 133

Mo. App. 700, 114 SW 59. The question of

negligence is not in issue, where defendant

rays for a directed verdict because of plain-

tiff's contributory negligence. Booth v., McLean Const. Co. \[Mob.\] 70 A 104.

28. Birmingham R. L. P. Co. v. Haggard

\[Ala.\] 46 S 519. Contributory negligence is not inconsistent with general denial. Litten

tension v. Hudepohl Brew. Co., 11 Ohio C.

C. (N. S.) 441.

29. Answer held to sufficiently plead contributory negligence as against objection

that it set forth merely a legal conclusion.

Sissell v. St. Louis & S. F. R. Co., 214 Mo. 515,

113 SW 1104. Afailure to averat plaintiff's knowledge or means of knowledge of danger was equal to that of defendant is not

Sans Antonio Trac. Co. \[Tex. Cly. App.\] 115

necessarily fatal. Absence of such averment

immaterial, when inexperienced employ

was working on dangerous machinery without adequate instructions. Simmi V. Derby

Rubber Co. \[Conn.\] 71 A 546. An answer in

personal injury case, which sets forth an act

or 'omission of plaintiff, characterizes it as

negligent, and alleges that it caused or con-

tributed to injury complained of, is sufficient to render affirmative issue of contributory negligence. Lincoln Trac. Co. v. Ambre \[Ind.\] 87 NE 246;

Brookovev, 77 Neb. 217, 111 NW 867. Plea

held 1004 NEGligENCE SS 5. 13 Cur. Law.

the averment will suffice,\[12\] and where several acts of negligence are averred, proof of one will support a recovery.\[33\] Immaterial allegations need not be proved.\[34\]

\_Admissibility of evidence.See 10 C. L. 941.\_The admissibility of expert and opinion evidence frequently arises in negligence cases, but is governed by general rules.\[35\]

The general character of a party as to care \*\* or his habits as to intoxication \[37\] are not admissible. Evidence of plaintiff's intoxication at the time of the injury is admissible on the issues of contributory negligence.\[38\] Evidence of prior and subsequent conditions is admissible if not too remote,\[39\] particularly to show notice,\[40\] and conduct of defendant immediately after the accident is usually admissible \[41\] as are other matters part of the res gestae.\[41\] Evidence of prior similar occurrences is sometimes admitted.\[43\] Evidence of the surrounding circumstances and conditions is admissible.\[44\] Evidence of subsequent repairs is usually excluded.\[45\] Custom

a different theory. Marcheck v. Klute, 133

\[ing accident immediately after its occurrence. App. 280, 113 SVV 654.

\[32\] Louisville & N. R. Co. v. Lowe \[Ala.\]

\[time thereof or just prior thereto, where 48 s 99. Where negligence is alleged gen. there has been no intervening change. Chi-

\[cagag G. W. R. Co. v. McDenough \[C. C. A\]

put in issue. Texarkana, etc. R. C. w. \[161\] 657.

\[cerson \[Tex. Civ. App.\] 111 SVV 173. The \[40\] 40. Evidence of prior knowledge of dan-

rule that plaintiff shall not state one cause

\[radius\] reports conditions is competent to prove ac-

\[radius\] knowledge at the time of the injury.

\[radius\] where the specific negligence
may be admissible in evidence on the issue of negligence," but is usually deemed irrelevant." Violation of rules may be some evidence of negligence.48 The parent's circumstances in life may be admissible on the issue of their negligence in permitting their children to go outdoors unaccompanled by grown attendants.40 Ordinances which are alleged to have been violated may be admissible.50

_The sufficiency of evidence_ either involves the consideration of the province of court and jury 51 or the sufficiency of facts to constitute negligence, in which latter case it is treated with the substantive holdings thereon.

\_Presumptions and burden of proof.\_58e 10 C. L. '58e--By the doctrine of res ipsa loquitur, negligence will be presumed from an occurrence which in the ordinary course of affairs could not otherwise have happened.52 The doctrine cannot be ap-

46. To raise an implication of knowledge on defendant's part of the situation and danger, where knowledge is an element of negligence. American Car & Foundry Co. \[Colo.\] 98 P 808. Requiring street car op-

erators to give warning of approach to v. Draper, 136 Ill. App. 12. May be admissible as bearing upon plainity negligence in following the custom. Id. The practice of others though not prevailing in general

52. Western Steel Car & Foundry Co. v. is some evidence of what should have been done Chicago Q. W. R. Co. v. McDon-

rule of circumstantial evidence. Cochrell v.

ongh \[C. C. A.\] 161 F 657. While admis-

angle to show due care of railroad company

The mere happening of an accident is, of

in maintaining post near track, it is not

t itself, no evidence of negligence. Southern

conclusive and witnesses may be cross-ex-

R. Co. v. Moore, 108 Va. 388, 61 SE 747;

amined to show the safety of customs es-

kolinson v. Cowan \[Ala.\] 47 S 1018; Fein-

tablished by their testimony. Wilson v.

Fold v. Ocean S. S. Co., 61 Misc. 638, 113 NYS

New York, etc., R. Co. \[R. I.\] 69 A. 364.

1018; Union Vire Mattress Co. v. Wiegref,

Custom of not exploding charges until after

138 Ill. App. 506. Under the doctrine of res

men have left nine admissible, though not

pagloquitur, the plaintiff may ordinarily

pagloed. Donk Bros. Coal & Coke Co. v.

go to the jury upon evidence of injury and

Thill, 128 Ill. App. 249. Where the act re-

sulting in injury is not negligence per se,

cause of the injury, where such cause is not

it is competent to show that other persons

experienced in the same business, under

Trac Co. v. Baker \[Ky.\] 113 SVW 449. Where

is as probable that the injury resulted

course. Nearly v. Northern Pac. R. Co., 37

proximately from some other cause as that

Mont. 461, 97 P 944. Evidence of precautions taken in daytime admissible to show

the doctrine does not apply. Moriarty v.

precounts which might reasonably be expected in night time. City of Chicago v.

Chamsa, 141 Ill. App. 122.

47. Evidence which goes only to the custom of defendant, which may be either neg-

ligent or careful, is inadmissible. Mary-

land, D. & V. R. Co. v. Brown \[McJ.\] 11 A

1005. Evidence as to the degree of care

commonly exercised by ordinarily prudent

men under circumstances like those in the

case at bar is ordinarily admissible to show

whether the standard of care required was

experienced. Lake v. Shenango Furnace Co.

\[C. C. A.\] 160 F 887. The fact that the act

complained of was done in the usual and

customary way does not disprove negligence, since such way may be negligent.

Admission of evidence as to custom held erroneous. Union Vire Mattress Co. v. Wiegref, 133 Ill. App. 506.

48. Rule forbidding operation of two cars

at same time on double tracked narrow

bridge. Chadbourne v. Springfield St. R.

Ce, 199 Mass. 574, 85 NE 787.

49. To show their ability or inability to

pocure such attendants. Distasic v. United

Trac. Co., 35 Pa. Super. Ct. 406. Situation

of parents, manner of living, health of children and all attendant circumstances may

be considered by the jury. Murray v. Scran-

ton R. Co., 36 Pa. Super. Ct. 576.

40. To raise an implication of knowledge

01. Safety ordinances directed at ranl-

roads. Nichols v. Chicago, etc., R. Co.

danger, where knowledge is an element of

\[Colo.\] 98 P 808. Requiring street car op-

negligence. American Car & Foundry Co.

erators to give warning of approach to

v. Draper, 136 Ill. App. 12. May be admissible. Denver City Tramway Co. v. Mar

dible as bearing upon plainity negligence

in \[Colo.\] 98 P 836.

in following the custom. Id. The practice

51. See post this section.

of others though not prevailing
NEGLIGENCE SS 5.12 Cur. Law.

direct cause. Minneapolis General Elec. Co. with due care, a presumption arises, in the v. Cronon \[C, C. A.\] 166 F 681. Under such absence of explanation by the defendant, circumstances it is for the jury to find whether the accident was owing to neglig. Drake Standard Mach. Works V. Brogsman, genone on the part of the defendant, or to 135 Ill. App. 209; Whitehouse V. Pittsburgh some cause for which the defendant was not responding. Robinson V. Consolidated Gas Co., 194 N. Y. 37, 86 NNE 805. If, how, over, proof of the occurrence shows that the accident might have happened from some cause other than negligence of the defendant, the presumption does not arise and the doctrine cannot be applied. Id. If, the res, or the entire occurrence as proved, could not have happened without negligence of some kind, negligence is presumed when it does not happen without negligence. Both of the explanation is thrown upon the defendant. Id. It is applied when the inference of negligence is required by the nature of the occurrence, Id. If proof of the occurrence shows that the accident was such as could not have happened in the ordinary course of events, the doctrine is applied, even if the precise omission or act of negligence is not specified, and even when it does not appear whether the accident was owing to some ad done or to some ad of some ad not done. Id. The doctrine does not permit a recovery without some proof of negligence, but it regulates the degree of proof required. Id. The "res" in the maxim regusa logquitr is not simply an accident resulting in injury, but the accident and surrounding circumstances necess.

Mogila v. Nassau Elec. R. acquired by proving how the accident occurred. Id. Proof of an injury occur- ring as the proximate result of an act which, under ordinary circumstances, would den of proving the nonexistence of an ad-not, If done with due care, have injured anyone, he enough to make out a presumption of negligence. Drake Standard Mach. (Works v. Brogsman, 135 Ill. App. 209. The presumption of negligence does not arise except out of the fact that there is no other way to account for the occurrence in the absence of explanation, in which case such negligence arising from leakage in its wa-explanation must be given by defendant. Elliott v. Brooklyn Helght R. Co., 127 App. 209. The div. 800, 111 NYS 858. The doctrine of res 1941. No. 111 NYS 858. The doctrine of res 1958. Itsquitr is simply because it is unusual and unex-pliable, the burden is on defendant to planned. Yet circumstances need to warrant inference of negligence. Dittman v. Edison v. New York Cent., etc. R. Co., 156 App. Elec. Illuminating Co., 125 App. Div., 691. Div. 84, 101 NYS 87. Under the doctrine of res 1958. Itsquitr, negligence may be inferred, not killed by being run over by train. Ellen-

from the accident alone but from the accident and the attending circumstances (Eaton v. 240. Do. Define applicable where "tie-scale" New York Cent., etc., R. Co., 125 App. Div., 54, 109 NYS 419), and the question whether such accident and circumstances are suffi-cient to authorise such inference for the determination of the court in each particle.

Missouri & Kan. Tel. Co., 133 Mo. App. 452, 118 SW7 730. Doctime applied where server-ant was injured by basic of cotton failures on him from a loaded ear when he opened car door, Chamberlain v. Southern R. Co. \[Ala.\] 48 S 703. Doctime applicable where passenger was injured by explosion of drum connected with heating apparatus of car, and instruction predicated on the rule was proper. Houston, etc., Ry. Co. v. Roach \[Tex. Civ. App.\] 114 SW 418. Proof of the explosion of street car controller estab-lishe phrma facte negligence (Gay, V. Milwaukee Elec. R. & L. Co. \[TW1a.\] 120 NW NW 283), but this is met by proof that controllers may explode without negligence (Id.). Applies to deratment accident. Houston & T. C. R. Co. v. Cheatham \[Tex. Civ. App.\] 113 SW7 174, Galveston, etc., R. Co. v. Thompson \[Tex. Civ. App.\] 116 SW 106.

Doctime applied when section hand was killed by deratment of first train over newly-ballasted track, the speed of which much exceeded that scheduled. Mobile, etc., R. Co. v. Hicks, 91 Mies. 273, 46 S 80. Res signs.

112. The fact that a team was away raises caused by train running off its regular track and colliding with engine, throwing it over on to plainfilt. Van Innwegen v. Erle R. Co., 126 App. Div. 297, 110 NYS 859. Did not apply to cause deratment and overturning of freight car. Henson v. Lehigh Valley R. Co. \[N. Y.\] 87 NE 85. Applied to explosion of controllers in street car where there was nothing to show that it might have been expected to happen if proper car was used. Beattie v. Boston El. R. Co., 201 Mass. 3, 86 NE 920. Applied to injury caused by improper insulation of electric lighting appliances. Shawnee L. & P. Co. v. Sears \[OkL.\] 95 P 449. Applied to injury from contact with live wire. Walter V. Baltimore Blec. Co. \[Md.\] 71 A 958. Applied where person not a servant of defendant was injured by unsafe appliances used in moving timbers. Jeffreys v. Nebraska Bridge Supply & Lumber Co., 157 F 932.

Would not have applied had the relation of master and servant existed. Id. The presumption of negligence does not arise against a railway company for damages done to person or property until it appears that a proximate cause of the injury was occasioned through the operation of its "lo-comotives, ears or other machinery," or by the act or mirefeasance of some person in its service. Smith v. Atlantic Coast Line R. Co. \[Ga. App.\] 62 SE 1020. Falling of awnz-ing raises presumption of negligence. McCrory v. Thomas \[Va.\] 63 SE 1011. In passenger and carrier case, influence of negligence overcome by defendant's test-mony, there being no direct proof of negligence. Christensen v. Oregon Short Line R. Co. \[Utah\] 99 P 676. Res ipsa. loqulur 116 help to apply where passenger was injured while carefully leaving car because right-ened by explosion of controllers. Louis-ville & S. I. Trac. Co. v. Worrell \[Ind. App.\] 86 NE 78. Burden upon carrier to show care where passenger sues for injury by deratment of train. Chicago, etc., R. Co. v. Brandon, 77 Kan. 612, 95 P 578. Applied to injury of passenger by deratment of train. Id. Proof that colliding awagn bore defendants, together with admission in answer that defendant operated wayons in and 1008 NEGLIGENCE SS 5. 12 Cur. Law.

plied when specific acts of negligence are charged, and in such case plaintiff can make out a case only by proof by direct or circumstantial evidence that the negligence charged was the proximate cause of the injury,\[83\] but an unsuccessful attempt to prove by direct evidence the precise cause of an action does not bar the application of the doctrine of res ipsa loquitur.\[84\] The presumption raised by the application of the doctrine of res ipsa loquitur is rebuttable.\[85\] Since due care and proper performance of duty are presumed,\[86\] except as rule of res ipsa loquitur is applicable, plaintiff must prove the negligence charged \[87\] and that it was the proximate cause of the injury

Peters v. Lynchburg, L. & Trac. Co. \[Va.\] 61 SE 745. Has no application to action for **recent** of warranting that rope was strong enough for purpose for which it was purchased \[Ind. App.\] 86 NE 78.

Chased. Oregon Auto-Dispatch v. Portland Cordage Co. \[Or.\] 95 P 498. Not applicable **SW** 449. The doctrine of res ipsa loquitur when place where injury occurred was in **recursive** of another than defendant and where defect in instrumentality causing injury was not due to defendants' fault.

Minneapolis General Elec. Co., V. Cronon C. C. A.\] 166 F 651.

**Rule applied to plaintiff's negligence:** Applies to crossing accident when the facts indicate that had deceased used due care the accident would not have happened. Clemons v. Chicago, etc., R. Co., 137 Wis. 387, 119 Nw 102. Docerting of res ipsa loquitur inapplicable where horse fell into treend and cause thereof was alleged to be its negligant filling. Nederman v. People's daslight **&** Cooke Co., 140 Ill. App. 524. No presumption of negligence from mere fact of **colust** the prescription by showing that **fusion of bewins**, where plaintiff shows several acts of defendant, all of which might have tended to the result without requiring an inference of negligence. Denty V. Penn- sylvania R. Co., 75 N. J. Law, 893, 70 A 164.

Held not apply where a child standing on **platform** while car was in motion \*\*prepara-\*\*tory to alighting was thrown off by reason from injury held not to have been overcome.

of the cars turning into a turn-out while running at a moderate rate of speed. Pass- cell v. North Jersey St. R. Co., 75 N. J. Law, 893, 61 SE 376. A 171. Does not apply in the case of injury from falling objects where the source and place from which the object came and the cause of its precipitation are left in doubt, but where these matters are **clear** it does apply. Stumpt v. Delaware, L. & W. R. Co. \[N. J. Law\] 69 A 207. Explosion caused by fire alleged to be due to defendants' negligence, where origin of fire was unexplained. Stewart v. De Noon, 220 Pa. 154, 69 A 857. Inapplicable where **viseful** * 12 Cur. Law. Negligence $\\lx@sectionsign$5. 1009

complained of." Proof of a violation of an ordinance may constitute prima facie negligence," but leaves the burden upon plaintiff to show that such negligence was the proximate cause of the injury." The rule that the burden of proving specific acts of negligence is assumed by alleging them does not apply where all specific acts are embraced in a general allegation, and in such case plaintiff is not precluded from invoking presumption of negligence arising from the accident." The burden is usually held to be on defendant to prove contributory negligence " by a

show the duty owed, its nonperformance, man Land & Iron Co. \[Ky.\] 114 SW 311, and that such dereliction of duty was the Where the cause of the injury is left in proximate cause of the injury. Cook v. U. doubt, verdict should be directed for defendant. S. Smelting Co., 34 Utah 190, 97 P 28, Plaintiff must show the particular negligence which caused the injury. Where showed Vehle. Hartle v. Moxley, 285 III. 164, 85 them to run away, he failed to make out a case. Lane v. Nave York Cont. Co., 126 App. Div. 808, 110 NYS 91. Existence of negligence cannot be left to conjecture. Id. The burden is upon plaintiff to show the particular act or omission which constitutes the negligence charged. Toppl v. McDonald, 128 App. Div. 44, 113 NYS 821. 164, 85 NE 216. 58. Moscarello v. Haines, 114 NYS 619; Baltimore Refrigerating & Heating Co. v. Krele. mer \[Md.\] 71 A 1066; Morse v. Consolidated R. Co. \[Conn.\] 71 A 553. Casual connection between excessive speed of train and fall-ure to keep lookout and the killing of an animal on track was left wholly to conjecture. Chicago, etc., R. Co. v. Latham \[Tex. Civ.\] 115 SW 890. Evidence that Injury was caused by coming in contact with elec-tric wires Insufficient to go to the jury, where it was equally probable that it was caused otherwise. Byerly v. Consolidated L. P. & I. Co., 130 Mo. App. 589, 109 SSV 1065. Plaintiff must show by direct or circumstantial evidence that the neg-ligence complained of caused the In-Linecide Gaslight Co., 209 Mo. 648, 108 SW 550; jury. McGee v. Vrabash R. Co., 214 Mo. McKenzie v. United R. Co. \[Md.\] 115 SW 13; SS30, 114 SW 33. Evidence Insufficient that Limitmore v. Union Elec. L. & P. Co., 128 Mo. where it failed to show how death was caused or to connect it with dangerous con- & P. R. Co., 27 Mout. 169, 85 P 5: Vertices v. dilution charged. Steele's Adm'r v. Hillman & Gage County \[Neb.\] 115 NW 863; Smith v. Land.& Iron Co. \[Ky.\] 114 SW 311. Burden of proving that negligence complained of & was proximate cause of injury on plaintiff. Whee negligence alleged was defect in side- & P. R. Co., 127 N. C., 815 N. C., 815 N.

1010

NEGLIGENCE SS 5. 12 Cur. Law.

preponderane of the evidence,\[93\] except where the evidence adduced by plaintiff makes out a prima facie case of contributory negligence,\[64\] though the contrary is held in a few states.\[65\] The burden of disproving contributory negligence is on children as well as adults, varying only in degree, which depends upon natural capacity, physical capacity, training, habits of life, surroundings, and the like.\[66\] A child under fourteen years of age is presumed to be unable to appreciate dangers,\[67\] and this presumption must be conclusively overcome to justify the court in holding as a matter of law that he is guilty of contributory negligence.\[68\] The unexplained presence of a child non sui juris in a place of danger and unattended is prima facie

1899, p. 58, c. 41 (Cleveland, etc., R. Co. v. (by defendant's evidence alone. General Lynn \[Ind.\] 85 NE 999), and such negligence charge placing burden upon defendant er-must be established by evidence and not by renoues as pretermitting jury from consider-presumption (1d.). The presumption which arises from the known instincts of self-preservation may constitute a prima facie infer-sure against contributory negligence. Garman-American Lumber Co. v. Brock \[FI4.\] App. 433: Casey v. Adams, 137 Ill. App. 404: 46 S 740. (G3. Where the evidence is evenly balanced, contributory negligence is not established, and upon this issue the verdict must be for plaintiff. Hainlin v. Budge \[FI4.\] 47 S 825. Presumptions may be overcome by counter presumptions. Failure of travel on high-way to look and listen raises a presumption of negligence which overtrows the presumption of due care, Clemons v. Chicago, etc., R. Co., 137 WIs. 387, 119 NW 102. (G4. Braaly v. Fressin City R. Co. \[Cal. App.\] 9 P 400: Harrington v. Butte, A. & P. R. Co., 37 Mont. 169, 95 P 8. Where defendant pleads contributory negligence and adduces evidence in support thereof, it cannot complain of an instruction that it has the burden of proving such issue, though such negligence appears from plaintiff's own evidence. Til-kie v. St. Louis & S. F. R. Co., 212 Mo. 445, 110 SWV 1086. It is only in cases where plaintiff's allegations or evidence show prima facie negligence on his part that it devoles upon him to show facts from which the jury upon the whole case may find him free from negligence. Case at bar not within this exception to rule that burden of showing contributory negligence is on defendant. Gal-veston, etc., R. Co. v. Couteston 17Ex. Civ. App.\] 111 SWV 187. A bare admission by a passenger that he was standing up when injured does not show prima facie negligence on his part. St. Louis, etc., R. Co. v. Glue breath \[Ark.\] 118 SW 200. Although plaintiff is not required to show want of contributory negligence, yet it such negligence be disclosed by his case it will defeat recovery, since the burden resting upon defendant is thus disguessed with. Instruction embodying the above rule held proper where there was no other testmony than that contained in "plaintiff's case." Pereira v. Star Sand Co. \[Or.\] 94 P 835. Plaintiff's failure to explain her actions does not show contributory negligence where the circumstances are such that she could not be expected to act with deliberation. Beatite v. Boston El. R. Co., 201 Mass. 3, 88 NC 920. Presumption of due care in the absence of eye-witnesses not applicable where evidence shows what plaintiff did and how the accident happened. Casey v. Adams, 137 Ill. App. 404. Though defendant has the burden of showing contributory negligence, this burden need not be discharged evidence, though not conclusive, of contributory negligence on the parent's part."9 While plaintiff has the burden and must at least introduce evidence from which negligence may be inferred, he need not prove the specific acts of negligence." If the plaintiff makes out a prima facie case, and the defendant, instead of introducing evidence to negative the facts which plaintiff's evidence tends to establish, proposes to show a distinct proposition which avoids the effect of the plaintiff's evidence, there the burden is said to shift \[71\] and rests upon defendant; if evidence is adduced to prove this proposition, then the onus is again cast upon the plaintiff to show that the defendant is nevertheless liable because his proof does not excuse him,\[12\] but the burden of proof proper never shifts but rests upon plaintiff to the end,\[73\] even where the doctrine of res ipsa loquitur applies.\[74\]

_Questions of law and fact._\[58\] to C. L. #52--Negligence is ordinarily a mixed question of law and fact,\[75\] and unless the evidence is such that reasonable men could not differ in the inference to be drawn therefrom \[76\] and particularly where it is

69. Presence held unexplained and prima facie case made out. Harrington v. Butte, \[Ind. App.\] 85 NE 368.

A. & P. R. Co., 37 Month. 169, 95 P 8.

70. Action against warehouseman for neg- \[Colo.\] 88 P 808; Swift & Co. v. Sandy IC. C.

Agent injury to stored poultry. Baltimore

A.165 F #22; Chicago, B. & Q. R. Co. v. Sack,

Refrigerating & Heating Co, v. Kreiner 186 Ill. App. 425; Casev & Adams, 137 Ill.

\[Id.\] 71 A 1066.

71. Whether there is sufficient evidence to Co., 137 Ill. App. 163; Cloninnati, etc., R. Co.

shift the burden. of proof is ordinarily a \[TKY.\] 115 SW 899; Combs question for the jury, Baltimore Refriger - \[Md.\] 11 A 1068; Nature 1152; Newary

atins & Heating Co. v. Kreiner \[Md.\] 71 A 1068; Nature 1152; Newary

1068. After establishment of prima facie state, 944; Toppl V. McDonald, 128 App. DIV. 448,

case, defendant must rebut the presumption 112 NFS 821; Wagner V. Atlantic Coast Line

of negligence. Walter V. Baltimore Elec. Co.

R. Co., 147 N. C. 816, 61 SE 171; Missouri K.

\[Id.\] 71 A 953.

72. Baltimore Refrigerating & Heating Co.

Sans Bois Coal Co. v. Janeway \[Okl.\] 99 P v. Kreiner \[Md.\] 71 A 1066.

153. Gerding v. Standard Presned Steel Co.,

001. Everett v. Foley, 132 Ill. App. 438.

001. The burden of establishing the ultimate latent 220 Pa. 611, 70 A 874; Lone Star

fact of negligence abides with the plaintiff 166 The end of the case, and the sole func- 186; Miscgourik & T. R. Co. v.

187. City. App.\] 110 SW 453; Texas & P. R. Co. v.

to raise a prima facie presumption of neg- \[Tex. Civil. App.\] 115 SW 8919; Palmer

ligence from a given state of facts which will become conclusive if not rebutted. Where

P 689; Roanoke R. & Elec. Co. v. Young,

the evidence of both parties disproves the \[Os Va.\] 783, 82 SE 981; Gregers V. Northern

allegation of negligence, the court should do.

Pae. R. Co., 49 Wash. 183, 84 P 811; Grimm v.

clare as a matter of law that plaintiff's bur- \[Glowwamy, Consolidated\]

Murshavee Elec. R. & Light Co. \[VWs.\] 119

den is not sustained (Brown v. Consolidated)

Murshaveo, R. & Light Co. \[VWs.\] 119

L. P. & L. Co. \[Mo. App.\] 109 SW 1032, and

dough, and no deduction or influence other

the burden of proof is not shifted by raising

a presumption in favor of plaintiff on the

from the evidence, that the court can say,

evidence which is submitted to the jury for

the purpose of allowing 1t to draw an in- \[Lished. Johnson v. Southern Pac. R. Co.

ference antagonistic thereto (Dennis v. Penn-)

\[Call.\] 97 P 520. Even where the facts are

sylvania R. Co., 75 N. J. Law, 839, 70 A 164.

whispted, if reasonable minds might draw

Where the doctrine of res ipsa loquitur is

different conclusions upon the question of applicable, the burden of explaining the neg- \[Ingence, the question is one of fact for the

ligence is upon defendant, yet this does not

numer that the burden shifts to defendant

whether

## 1018 NEGIGENCE SS 5.

### Conflicting,"1 negligence 7" and contributory negligence 7" are questions of fact, as

F 800. But the rule generally applicable is

13 Cur. Law. NEGLIGENCE SS 5.

are the particular shares thereof such as proximate cause,\* knowledge and means of knowledge,81 the application of the last clear chance doctrine,82 invitation of plaintiff to the premises,83 the capacity and care of children * and the imputed neg-tomer in store was injured by falling down but, where there is no room for a difference of opinion, the question where the facts \[Montal.\] 99 F 1083. Cannot be said as a matter of law that one was not negligent in & N. R. Co. v. Kriffer \[Kz\]. 113 SW 433; making assurances as to the safety of using a certain stove polish, thereby inducing \[Montal.\] A.165 F 869. Proximate cause need not be established beyond a reasonable doubt and may be shown by circumstantial evidence, though such evidence must establish a logi-submersed telephone wire, negligence of defendant was for the jury. Helberger v. Mosse v. Consolidated R. Co. \[Conn.\] 71 A Missouri & Kansas Tel. Co., 133 Mo. App. 452, 113 SW 730.

81. Knowledge of plaintiff of proximity of lighting company's wires to those of telephone company for which he was wofK-ling held for jury. Drown v. New England Tel. & T. Co. \[Yt\] 70 A 599. What should have been reasonably anticipated a question of fact. Illinois Cent. R. Co. v. Siler, 133 \[All. App. 2. Whether injury should have been expected and provided against held for jury. Baltimore Refrigating & Heating Co. v. Kretner \[Md.\] 71 A 1066. Evidence Insulin-client to show that one working in between cars in factory knew of approach of engine. Shall v. Detroit & M. R. Co., 152 Mich. 463, 15 Del. Leg. N. 295, 115 NW 432.

01. Whether motorman could, by the exercise of ordinary care, have discovered plaintiffs perl and avoided accident, held for jury. Felver v. Central Elec. R. Co. \[Mo.\] 11 SW 980.

01. Evidence held sufficient to support the verdict for plaintiff, whether he was a tres-passer or licensee, or guilty of such con-tributory negligence as was sufficient to reduce the damages, though not sufficient, in connection with the greater negligence of defendant, to defeat his recovery. Central of Georgia R. Co. v. Barfield \[Ga. App.\] 63 SE 514. Finding that plaintiff was person-ally invited upon premises held against the weight of the evidence. Silverman v. Blinder, 115 NYS 54. Evidence insufficient to show an implied invitation to child of mil1 hand to use a path from the mill to tenement houses for employees. Davis v. Joslin Mfg. Co. \[R.\] 69 A 85. Evidence sufficient to sustain finding of implied invitation to enter premises where child was injured by explosion of dynamic. Hobbs v. Blanchard & Sons Co. IN. H.\] 70 A 1082.

01. McGee v. Wabash R. Co., 214 Mo. 530, 114 SW 33. But he may have arrived at such a degree of maturity in age and judg-

sent that the court might say as a matter of law he could be guilty of contributory negligence. Berry v. St. Louis, etc., R. Co., 214 Mo. 538, 114 SW 27. And, on the other hand, he may be so tender in age and judg-

ment that the court, as a matter of law, might rule be could not be guilty thereof under the circumstances of a given case.

Chiid four years old injured on turntable

85. Whether he was taken by other children

01. Whether he was taken by other children

01. Whether he was taken by other children

01. Whether he was taken by other children

01. Whether he was taken by other children

01.

01.

01. Our. Law. NEGLIGENCE SS 5.

1013 are the particular shares thereof such as proximate cause,\* knowledge and means of knowledge,81 the application of the last clear chance doctrine,82 invitation of plaintiff to the premises,83 the capacity and care of children * and the imputed neg-tomer in store was injured by falling down but, where there is no room for a difference of opinion, the question where the facts \[Montal.\] 99 F 1083. Cannot be said as a matter of law that one was not negligent in & N. R. Co. v. Kriffer \[Kz\]. 113 SW 433; making assurances as to the safety of using a certain stove polish, thereby inducing \[Montal.\] A.165 F 869. Proximate cause need not be established beyond a reasonable doubt and may be shown by circumstantial evidence, though such evidence must establish a logi-submersed telephone wire, negligence of defendant was for the jury. Helberger v. Mosse v. Consolidated R. Co. \[Conn.\] 71 A Missouri & Kansas Tel. Co., 133 Mo. App. 452, 113 SW 730.

84. Knowledge of plaintiff of proximity of lighting company's wires to those of telephone company for which he was wofK-ling held for jury. Drown v. New England Tel. & T. Co. \[Yt\] 70 A 599. What should have been reasonably anticipated a question of fact. Illinois Cent. R. Co. v. Siler, 133 \[All. App. 2. Whether injury should have been expected and provided against held for jury. Baltimore Refrigating & Heating Co. v. Kretner \[Md.\] 71 A 1066. Evidence Insulin-client to show that one working in between cars in factory knew of 1014 NEGLIGENCE $ 5. 12 Cur. Law.

ligence of parents." Inferences of fact from proven facts and circumstances are peculiarly within the province of the jury."

_Instructions._ See 10 C. L. 988.--The questions most frequently arising as to instructions in negligence cases are the definition of negligence 87 and contributory negligu.

SWV 33. Whether or not a child has exer-

before crossing track was negligence held

cised due care should in every case be left

error, though train came from unusual dilution the jury to determine with regard to the

rection, and though instructions of general

child's age, maturity and intelligence.

chatcher as to due care were given. Fow-

Batchelor v. Degnon Reality & Terminal Im-

per V. Chicago & E. I. R. Co., 234 Ill. 619, 85

provement Co., 118 NFS 33. Contributory

NE 298. Instructions that jury must deter-

neglience for jury where boy of interest

mine whether defendant was exercising the

was injured by fall of machine at which he

gorge of care required, "and if you find he

was working. Gerding. Standard Tressed

was not, then you will find that he was in

Steel Co., 220 PA. 229, 69 A 672. Contribu-

the exercise of ordinary care," held not

tory negligence of child for the jury under

leading though handervent insertion of the

the evidence. McGuire v. Richard Gutte

word "not" changed the intended meaning.

mann Transfer Co., 234 Ill. 125, 84 NE 728.

Chiroux v. Baum, 137 Wis. 197, 118 NW 533. Contributory negligence of child of six, who

In action for injuries sustained in collision

feil and was injured on street ear track

while attempting to climb snowbank in its

with automobile, charge held good, when

immediate neighborhood, held for jury.

that it singled out plaintiff as an object

Fogarty v. Jersey City, etc., R. Co. (N. J.

Law) 69 A 964. Where boy of fifteen was

Instruction held not to authorize the jury

injured by falling of machine at which he

to find for plaintiff in the absence of defend

was at work, truth of testimony establish

Gants negligence. Marding v., Tory, 135 Ill.

ing negligence held for jury. Gerding v.

App. 458. Instructions as to automobiliats's

Standard Tressed Steel Co., 220 PA. 225, 69

duty in regard to avoiding collision, use of

A 672. Where child entered premises upon

highway and burden of proof held good un

implied invitation, his contributory neglig

der this rule. Irwin v. Judge \[Conn.\] 71 A

gence in exploding dramatic held for jury.

572. Instruction on duty or train operators

Hobbs v. Blanchard & Sons Co. \[N., H.\] 10

when approaching crossing good when con-

A 1082. As a general rule the question of

stured in connection with other instructions.

a child's contributory negligence is for the

Pittsburgh, etc., R. Co. v. Lynch \[Ind. App.\]

jury. Berry y, St. Louis, etc., R. Co., 214 Mo.

87 NE 40. Where the duty varies with con-

692, I14 SWV 27.

ditions, a general statement of the law in

SG. The question of parent's negligence in

regard to the duty is sufficient. Herndon v.

permitting young children to play out doors

Salt Lake City, 34 Utah, 65, 95 P 646. Where

unattended by grown people is ordimarily

the degree of care is correctly charged, there

one of fact for the jury. This may depend,

is no error in failing to define such degree

however, upon parent's circumstances in

in the absence of timely written requests

life," Murray v. Sorentnton R. Co., 36 Pa.

Inferferor. Savannah Elec. Co. v. Bennett,

Supc. Ct. 616; Distalsio v. United Trade Co.,

130 Ga. 597, 61 SE 529. Instruction that the

35 Pa. Super. Ct. 406. Where evidence

carre required was that which a discreet

showed that child twenty-five months old

and cautious individual would or ought to

was obedient and bright for its age and had

have used held in effect to state the cor-

been intrusted to the care of a boy of

even years, the issue of its mother's negligence

which an ordimarily prudent man would

lignence was not raised. Galveston, etc., R.

have exercised under all the circumstances

Co. v. Olds \[Tex. Civ. App.\] 112 SW 787.

**86.** In arriving at a verdict, the jury, from

the facts proven and sometimes from the

absence of counter evidence, may infer the

existence of other facts reasonably and

logically consequent upon those proved.

Cochrell v. Langley Mfg. Co. \[Ga. App.\] 68

way unsafe, in instructing that if defend-

SE 244. Heid that from facts proved jury

would have been authorized to infer one or

more of the specific acts of negligence

leged, hence nonsuit was improper. Id. The

jury may

## 12 Cur. Law.

Negligence,"s the relation of the parties,"s burden of proof,"s and proximate cause."

\[Iowa\] 118 NW 459. Definitions of negil-gence are to be considered with what the court says upon those subjects in other portions of the charge. Smith V. Detroit United

verdict for plaintiff it failed in such proof. R. Co. (Mich.) 15 Det. Leg. N. 1055, 118 NW

640. An instruction defining "ordinary care" as that degree of care, precaution, or difference which may properly be expected or required, having regard to the nature of the act or duty, and to the attending circumstances, was not such error as called for reversal yet the usual definition would have been preferable. Houston & T. C. R. Co. v. (Roberts \[Tex. Civ. App.\] 109 SW 982. Where the court defined negligence of a railroad company to be a failure to use such care

Crawford v. Kansas City Stockyards Co. as an ordinarily prudent person would have

verdict by the exercise of ordinary care he could have seen the danger," is not error,

exercised under the circumstances, a retusal

to qualify it by instructing the jury to take

realization of danger alone was misleading

into consideration all the circumstances and

and an instruction that jury should con

not to view the accident from a retrospective

gider all the facts and circumstances bearing

point of view was not erroneous. Galveston

on such Issue was proper. Ft. Worth & D. H. & N. R. Co. v. Olds \[Tex. Civ. App.\] 112

C. R. Co. v. Poteet \[Tex. Civ. App.\] 115 SW

882. Where contributory negligence is de-

nary care and the effect of its exercise held

babent upon plaintiff's knowledge of the

substantially covered. Bohlen v. Chicago

Gity R. Co. 141 III. App. 261. Instruction on

jury not only the question of actual knowledge, but also the duty to know. Where un

correct, though permitting a finding of neg-

ligence even though conduct was in accord-

mereed. Place v. Grand Trunk R. Co. (Vt.)

ance with prevailing practice

Chicago G.

W. R. Co. v. McDonough \[C. C. A.\] 161 F 657.

Instruction on wannot and willer assistance

hence held not erroneous in view of other

Instructions correctly stating the degree of

care required, though those elements were not in the case. Wheeler v. Milner, 137 Wks.

26, 118 NW 187,

SS. Instruction as to contributory negligence of one riding on running board of

street car who was hit by standing wagon

hold fair. United States Exp. Co. v. Kratt \[C. C. A.\] 161 F 200. Instruction on due

care of one killed by live wire not errone-

ous as a whole. Prince v. Lowdell Blec. L. Corp., 201 Mass. 276, 87 NE 558. Where court

instructed that to be a bar plaintiff's neg-

ligence must have contributed to his

jury, the omission of this qualification in

other parts of the charge was not error. Buchman v. Jeffery, 135 Wks. 448, 115 NW

872. An instruction that to find for plaintiff

tiff the jury must find that the accident

occurred without any fault on his part is

sufficiently favorable to defendant in the

absence of a request for a correct instruction on contributory negligence. Carseallen

v. Coeur D'Aleme, etc., Transp. Co. (Ldao)

98 P 622. Instruction on relative negligence

of plaintiff and defendant fully and accu-

rately submitted to jury. Central of Georgia R. Co. v. Barfield \[Ga. App.\] 63 SE 514.

Where contributor negligence is in issue,

a retusal to define It and apply the doctrine

to the facts may be error. Northern Texas

Trac. Co. v. Molyber \[Tex. Civ. App.\] 109

SW 483. Definition of contributory negligence as "where the plaintiff does some

negligent act or or imits to perform some act

which, co-operating with some negligent act

or omission on the part of the defendant,

contributes to, and is the proximate cause

of the injury," held proper. Texas Cent. R. Co. v. Johnson \[Tex. Civ. App.\] 111 SW 1098.

Co. v. Johnson \[Tex. Civ. App.\] 111 SW 1098.

The induction of the court is

118 NW 459. Definitions of negil-

Where instruction authorized verdict for

gence are to be considered with what the

defendant if it proved contributory negligence alleged, it should also have authorized

verdict for plaintiff if it failed in such proof.

Chicago, etc., R. Co. v. Johnson \[Tex. Civ. App.\] 111 SW 758. There is no material difference between the words "apparent" and

"reasonably apparent" peril and "realized

his peril" as used in a charge on discovered

peril. Missouri, K. & T. R. Co. v. Reynolds

\[Tex. Civ. App.\] 115 SW 340. To modify an

instruction that "if plaintiff could have seen

the danger" he could not recover, by saying

that "if by the exercise of ordinary care he

could have seen the danger," is not
All issues, theories and defenses must be submitted \[92\] and no material evidence eliminated, \[93\] and the charge must be restricted to the issues and evidence. \[94\] The

held confusing. Hainlin v. Budge \[Fla.\] 47 S 107 SVW 958. That injury was caused by de-
825\. Repetition of instructions that burden

defective construction of sidewalk, or from

of proving negligence is on plaintiff not

a defect therein which defend should

ground for reversal. Beatty v. Metropolitan,

have discovered. City of Covington v. Web-

etc., R. Co., 141 Ill. App. 92. An Instruction

to find for defendant "If you are in doubt

of contributors negligence of sectionman

as to the preponderance of the evidence" is

strucve by train held sufficiently presented,

erroneous and is correctly charged to "if you

International & G. N. R. Co. v. Alleman

are unable to determine as to its preponderance." Illinois Steel Co. v. Koshinski, 135

garad of contract requiring stock attendants

Ill. App. 587. Instruction placing burden of

proving contributory negligence on defend-

tendants to climb 1n and out of cars. Craw

ant under his plea thereof not ground for

for V. Kansas City Stokkards Co. \[Mo.\]

reversal where jury was also instructed

that question was to be determined from

to consider them. Id. Where contributory

the whole evidence. Missouri K. & T. R. Co.

negligence is pleaded generally, defendant

v. Willhoit \[C. C. A.\] 150 F 440.

is entitled to have any facts in evidence

93. Instruction that, "in order for plain-

tiff" injuries to be direct and proximate

set of protruding tie, if any there was

remaining in track, evidence must show that

plaintiff caught foot under or against same

ration in street In night time, but might go

in crossing track in performance of duty,

and was thereby caused to fall," does not

as assume existence of silver on tie. St. Louis

S. W. R. Co. v. Cleland \[Tex. Civ. App.\]

113. Instruction stating elements to be

110 SVW 122. Instruction held to sufficiently

charge that contributory negligence, to bar

recovery, must have directly and proximately contributed to the injury. Morgan

Co., 234 Ill. 619. 85 NE 298. Instruction

v. Missouri, K. & T. R. Co. \[Tex. Civ. App.\]

110 SVW 978.

92. Any instruction conditioning plain-

tiff's right to recover upon his exercise of

due care, and leaving the jury to determine

whether such care was exercised, submits

the issue of contributory negligence. Clin

Ban v. Dixon County \[Neb.\] 118 NWV 1082.

Instruction held to erroneously submit such

issue, there being no evidence from which

contributory negligence could be inferred.

Id. Where a general instruction on

trlubtory negligence is given, it is unneeces

ary to refer to every item of evidence

tending to show specific acts of contribu-

tory negligence. Hubbard v. Montgomery

County \[Iowa\] 118 NWV 912. Where injury

was caused by falling down open and un

guarded elevator shaft, the requirement of

St. 1898, 8 1683, that all elevators be

acutely guard, was sufficient by charging that the burden was on plaintiff to show

the failure to guard the entrance and sub-

emitting to the jury the question whether defendant negligently failed to reasonably

guard it at the time of the accident. Ander-

gen. V. Norfolk's Mailed Mille Co. 137 VW,

569, 119 NW 342. When the case turns solely

upon the question of willfult or wanton

jury, such issue should be presented to the

jury unconfused with any other question.

Central of Georgia R. Co. v. Moore \[Ga. App.\] 63 SE 642. Instruction remitting the

jury to the pleas to determine what neglig

hence was alleged held confusing. Atlanta

& B. Air Line R. Co. v. Wheeler \[Ala.\] 46

IS 262. Defendant is entitled to an instruction

grouping the facts relied on to show

contributory negligence, even though the

plea is not as specific as the sectionny

relative to the issue,

future (Tex. Civ. App.) 20 Tex. Ct. Rep. 772,

1016

12 Cu. Law.

All issues, theories and defenses must be submitted \[92\] and no material evidence

eliminated, \[93\] and the charge must be restricted to the issues and evidence. \[94\] The

held confusing. Hainlin v. Budge \[Fla.\] 47 S 107 SVW 958. That injury was caused by de-

825. Repetition of instructions that burden

defective construction of sidewalk, or from

of proving negligence is on plaintiff not

a defect therein which defendant should

favour for reversal. Beatty v. Metropolitan,

have discovered. City of Covington v. Web-

etc., R. Co., 141 Ill. App. 92. An Instruction

step, 33 Ky. L. R. 849, 110 SW 878. Defense

to find for defendant "If you are in doubt

of contributory negligence of sectionman

as to the preponderance of the evidence" is

strucve by train held sufficiently presented,

erroneous and is correctly charged province of the jury " must not be invaded," nor should disputed facts be assumed."

\_Verdicts and findings.\_See 16 C. L. 961--Separate verdicts for different amounts may be awarded against joint tort fessors." Interrogatories should not be in the alternative." Verdicts will be construed in accordance with the instructions given," and must be responsive to the issues."

Where several grounds of negligence are

charge specifically and in the abstract on

III. 136, SS NE 545. Where the facts are

"wanton injury" was proper. Weitzmann v.

disputed, it is error to. instruct that a cer-

Barber Asphalt Co., 129 App. Dlv. 443, 114

tain state of facts would constitute negligl-

NYS 158. Instruction as a whole held

poperiy submit the issues, where action de-

Moberly \[Tex. Civ. App.\] 109 SWY 483. The

pended on whether defendant owned and

controled premises where injury was in-

sion arising from the facts. Ft. Worth &

flicted. Id. Instruction should not submit

Iissues not raised. Ramp v. Metropolitan St.

114 SWY 425. Instruction that there is no

R. Co., 133 Mo. App. 700, 114 SWY 59. Hence,

evidence that plaintiff was or is perma-

under a general charge of negligence, jury

need not be told what facts, which the

dry Co. v. Cunningham \[Ala.\] 48 S 109.

dence tends to prove, would constitute the

negligence complained of. Moore v. Mis-

claimed to assume that failure to construct

eouri Pac. R. Co. \[Mo. App.\] 116 SWY 440.

harriers was negligence, thus taking ques-

Instruction that. willful negligence on

defendant's part would render it liable re-

although argumentative and disjointed,

sardless of contributory negligence errone-

us where there was no allegation of will-

133 Ill. App. 306. The term "If he did so"

ful negligence. Atchison, etc., R. Co. v.

can have no other effect than to leave to

Baker \[Ok.\] 95 P 438. Where there is no

vidence of contributory negligence, such

Frankfort & V. Trac. Co. v. Flulette, 32 Ky.

issue should not be submitted to the jury.

L. R. 732, 106 SWY 1193. Charge that if

D. J. O'Brien Co. v. Omaha Vater Co. \[Neb.\]

plaintiff's negligence proximately contrib-

118 NWY 110; Climagn v. Dixon County

\[Neb.\] 118 NWY 1082. Issues raised by the

pleadings alone and insupported by the

evidence should not be submitted to the

jury. Brown v. Consolidated L. P. & L. Co.

\[Mo. App.\] 109 SWY 1032.

95. See ante this section.

01. Instruction properly refused as invading

ing province of jury to determine what certain

evidence did or did not establish.

Louisville & S. I. Trac. Co. v. Worrell \[Ind. App.\] 86 NE 78. Instruction as to plaintiff's

knowledge of danger and effect thereof

held properly refused as invading province

of jury. Town of Newcastle v. Grubbs \[Ind.\]

86 NE 757. By statute the trial judge is

prohibited from expressing or intimating

abs opinion that certain facts do or do not

constitute negligence. Instruction held to

violate statute. Lay v. Nashville, etc., R.

Co. \[Ga.\] 63 SE 189. Refusal to charge that

certain facts would constitute the proximate

cause held proper. Ives v. Gring \[N. C\]

68 SE 603. May assume negligence in fall-

ure to keep watchman at a crossing in a

populous neighborhood. St. Louis S. W. R.

Co. v. Moore \[Tex. Civ. App.\] 107 SWY 685.

It is error to assume that it is contributory

negligence for plaintiff to look in another

direction than that in which he was walk-

ing. Lattimore v. Union Elec. L. & P. Co.,

128 Mo. App. 37, 106 SWY 44. Cannot as-

sume negligence in running train at rate

of fifty or sixty miles per hour, unless, per-

haps, undisputed evidence shows it so.

Galveston, etc., R. Co. v. Worth \[Tex. Civ. App.\] 20 Tex. Ct. Rep. 772, 107 SWY 958.

In the last paragraph, the

struction that if jury believe, from evidence,

that plaintiff was injured by negligence of

defendant, as charged in declaration, does

spikes was failure to use best method of

not assume that defendant was negligent.

Pronskevitch V. Chicago & A. R. Co., 322

ported allegation of negligence in action by 1018 Negotiable Instruments. 12 Cur. Law. charged and a certain defense is available to some, but not to others, a special verdict for plaintiff which fails to state the grounds on which it is based is fatally defective.3 If a general verdict is inconsistent with the answers to interrogatories, the latter must prevail.4 Inconsistent answers to interrogatories annual each other.5

## 1. Defitation and Indelictions, 1019.

8 2. Contractual Elements, Requisites and Validity, 1020.

A. Of the Instrument itself, 1020. Instruments Expected in Blank, 1024.

Restural, 1044. Defitations Payable to Maiker or Drawer, 1024. Accommodation Paper, 1035. Collateral Stipinulations and Agreements,1026.

B. Of Acceptance, 1026.

C. Of Negotiation or Transfer and Contracts Incidental Thereto, 1028.

C. Reissue of Instruments After Dis-Authority and Capacity to Nego-State Transfer or Indocas, 1028.

State Transfer or Indocas, 1028. Necessary of Indocasment, 1028. Form and Sufficiency of Indocasment, 1020. Delivery, 1030. Consideration, 1030.

B. Of Acceptance, 1026.

C. Of Negotiation or Transfer and Contracts Incidental Thereto, 1028.

C. Reissue of Instruments After Dis-Authority and Capacity to Nego-State Transfer or Indocas, 1045.

State Transfer or Indocas, 1028. Necessary of Indocasment, 1028. Form and Sufficiency of Indocasment, 1020. Delivery, 1030. Consideration, 1030.

C. Contracts of Particular Parties, 1034.

C. Reissue of Indocasment, 1035.

C.

12 Cur. Law. Negotiable instruments SS 1. 1019 SS 1. _Definition and indicia. Definition._--See 10 C. L. 1062--Written evidence of a debt, though in the form of a promise, is not necessarily a promissory note,8 and even when it constitutes a promissory note it is not necessarily negotiable.9 The negotiability of an instrument depends upon its terms,10 with reference to certain elements fixed by law as the indicia of negotiability.11 When a negotiable instrument is defined by statute, negotiability must, of course, be determined with reference to such definition,11 and sometimes it becomes necessary to determine negotiability with reference to some particular statute not dealing primarily with negotiable instruments.13 A bank check is an instrument by which a depositor seeks to withdraw funds from a bank, and as between the drawer and the payee it is not only evidence of indebtedness,14 but is also, legally and commercially, equivalent to the drawer's promise to pay.15 It is, furthermore, a bill of exchange payable on demand 16 and is negotiable.17 A bill of exchange or draft is distinguished from a note 18 and also from a chattel.19 Non-negotiable paper does not become a bill of exchange merely negotiable instruments as collateral, see (eemetary association, by its terms "trans-Pledges, 10 C. L. 1253. As to transfer of bills of lading as transfer of goods, see (eemetary, "Is on its face non-negotiable. Amerementments as a medium of payment, see (eem Exch. Nat. Bank v. Woodlawn Cemetery \[N. X.\] 87 NE 107. BHI of finding is law of sureership and guaranty are herein negotiable. Acts 1898, No. 150, p. 193. Scheenmann v. Monarch Fruit Co. (L.A) 48 8 647. Accepted sight draft with bill of sending attached, indorsed and negotiated by the payee is by commercial law, Bank of Gunterville v. Jones Cotton Co. \[Ala.\] 46 SS 971. Special assessment vouches or bonds are not negotiable instruments, as to the general principles thereof, see (eem H.). First Nat. Bank of Chicago v. Elgin, 136 Ill. App. 453. Receiver's certificate is neither negotiable nor quasi negotiable. McCarthy v. Crawford, 141 Ill. App. 276. Receiver's certificate is not a negotiable instrument, though issued under an order in terms authorizing issue of negotiable certificates. Bernard v. Union Trust Co. \[C. C. A.\] 159 F 620.

11. See post, this section, subdivision elements of Negotiability. 12. "A negotiable promissory note * * * * is an unconditional promise in writing made by one person to another signed by the maker engaging to pay on demand or at a fixed or determinable future time, a sum certain in money to order or to bearer." Laws 1897, p. 755, e. 612, SS 320. Edelman v. Rams, 68 Misc. 561, 109 XYS 816.

01. Within meaning of garnishment state, overdue promissory note held "negotiable." Caldale Mfg. Co. v. Clarke \[R. I.\] 63 A 681.

14.5: Camas Prairie State Bank v. Newman \[Lfdah\] 99 P 833.

15.4: Laws 1897, p. 756, c. 612, SS 321. Cassel v. Regierier, 114 NYS 601. Rev. St. SS 3177z. Blake v. Hamilton Dime Sav. Bank co. \[Ohio\] 87 NE 73.

17. At common law. Purcell v. Armour Packing Co., 4 Ga. App. 253, 61 SE 188.

01. Instrument directing certain party to pay to maker or drawer, at certain time, certain sum, to be charged to account of maker or drawer, is bull of exchange and not note. Johnson County Sav. Bank v. Kramer \[Ind. Appl. 86 NE 84.

01. Express order upon foreign bank to note when it contains the necessary ele-

01. Packing co., 4 Ga. App. 253, 61 SE 188.

01. Instrument directing certain party to pay to maker or drawer, at certain time, certain sum, to be charged to account of maker or drawer, is bull of exchange and not note. Johnson County Sav. Bank v. Kramer \[Ind. Appl. 86 NE 84.

01. Express order upon foreign bank to note when it contains the necessary ele-

01. Packing co., 4 Ga. App. 253, 61 SE 188.

01. Instrument directing certain party to pay to maker or drawer, at certain time, certain sum, to be charged to account of maker or drawer, is bull of exchange and not note. Johnson County Sav. Bank v. Kramer \[Ind. Appl. 86 NE 84.

01. Express order upon foreign bank to note when it contains the necessary ele-

01. Packing co., 4 Ga. App. 253, 61 SE 188.

01. Instrument directing certain party to pay to maker or drawer, at certain time, certain sum, to be charged to account of maker or drawer, is bull of exchange and not note. Johnson County Sav.

1020 NEGOTIABLE INSTRUMENTS SS 2A. 18 Cur. Law.

by endorsement by the payee,20 but such an indorser will be held liable as the maker of a bill where the evidence shows that the indorsement was made with such intention.21

\_Elements of negotiability.\_See 10 C. L. #92--The promise constituting the obligation of the maker of a negotiable instrument must be unconditional.22 The promise must usually be for the payment of money,23 though this rule is not of universal application.24 A recital will not destroy negotiability unless it in some way qualifies the promise or renders it uncertain,25 and so also with regard to collateral stipulations.26

authority in the premises, \[34\] and must be delivered \[35\] by proper authority. \[36\] Paper executed and delivered conditionally becomes effective as between the parties thereto only upon the performance of the conditions, \[37\] and where a note intended to be delivered in escrow is wrongfully delivered to the payee, the delivery is ineffectual. \[38\]

A negotiable instrument imports a consideration, \[39\] except, of course, where a contrary rule is prescribed by statute, \[40\] especially where value received is recited, \[41\] or where the instrument is under seal. \[42\] The actual consideration, however, may be inquired into, \[43\] and aside from the effect of negotiation, \[44\] it is no less essential than in the case of other contracts that there be a consideration \[45\] that is legal \[46\] and \[47\].

both signed by mark; the payee writing in \[\]hof v. Rockey, 58 Misc. 559, I09 NYS 818, their names. Clv. Code 1896, $ 1, held inapplicable to notes. McGowan v. Collins \[Ala.\] 46 S 228.

- \[3\] **33.** Bade v. Feay, 63 W. Va. 166, 61 SE 348.
- \[4\] **34.** Note in name of corporation. Schwartz v. Horn Michaels Co., 113 NYS 611.
- \[5\] **35.** Growier Copper Co. v. Teti, 221 Pa.
- \[6\] **36.** 69 A 1124. Note does not become operative until delivered. Mse v. Carlson \[S. D.\] 117 NPV 1033.
- \[7\] **36.** Vife's note delivered by husband. Swearingen's Executor & Trustee v. Tyler \[Ky.\] 116 SW 331.
- \[8\] **37.** Zimbleman v. Finnegan \[Iowa\] 118 NPV 312. Conditions of delivery may be abrown, sside from effect of negotiation. Great Northern Moulding Co. v. Bonewur, 128 App. Div. 831, 113 NYS 60. It is competent to prove that a note was not delivered with the intent that it should not become a complete contract in prascent, but that it was to take effect only upon certain conditions. Paulson v. Boyd, 137 Wis. 241, 118 NPV 841. As where note was delivered under agreement that it was to be renewed for eighteen monothe, at expiration of which time maker was to have election to take certain mining stock or, on other hand, to have note canceled. Id. Oral agreement to such effect did not contradict written agreement evidenced by note. Id. Where defendant gave piintiff check as deposit on conditional contract for purchase ofxtures from plaintiff, with distinct understanding that if certain brewing company furnished fixtures to defendant there was to be no contract with plaintiff and check was to be returned, and thereafter defendant notified plaintiff that brewing company had furnished fixtures, plaintiff could not recover on check. Shulman v. Damilco, 115 NYS 90. Understanding as to securing ether signatures must be based upon an agreement of the parties. Zimbleman v. Finnegan \[Iowa\] 118 NPV 312. Persons signing note as suretles on condition that signature of another would be procured, failure to procure such other signature absolves such persons from liability. Bank of Benson v. Jones, 147 N. C. 419, 61 SE 183.
- \[9\] **38.** Where note delivered to treasurer of corporation payee to be delivered to third person in escrow was delivered to corporation. Growier Copper Co. v. Teti, 221 Pa.
- \[10\] **36.** Culbertson v. Salinger \[Iowa\] 117 NPV 6; Arnett v. Pinson, 33 Ky. L. R. 36, 108 SW 852. Laws 1897, p. 727, c. 612, $ 50. Joves: 1023 Negotiable Instruments SS 2A. 12 Cur. Law. sufficient.47 Lack or failure of consideration is distinguished from breach of the contract evidenced by the note,48 or of the contract pursuant to which the note is given,49 but it is held that failure of consideration may consist in a breach of condition-legality of $400 of consideration for prom-visory note of $1,000 held fatal to whole. Id. Note given in part for pre-existing debt and part to secure discontinuance of crim-mal prosecution held invalid. Standard v. Sampson \[Ok.1\] 99 P T96.

47. In sult between maker and payee, on purchase-money note, maker may defeat or lmmid amount of recovery thereon by proving In one case a total unexpected nonperformance on the part of the vendor of his contract to deliver the property, or loss, on part of vendee of the benefit of the contract, occasioned by want of title in vendor and in other case refusal of vendee to accept property and notice of his intention not to do so given before title passed; all on the theory of failure of consideration in whole or in part. Acme Food Co. v. Older \[IV. Va.\] 61 SE 235.

Held insam@neicati Where agent of seller receives commission of latter, a note exneted by buyer representing additional bonus or commission on sales is, unless express expressly agreed to, without consideration and voidable. Shelton Implement Co. v. Schleck \[Neb.\] 115 NWV 951. Subscription to stock before company is incorporated is not a valid consideration. Avon Springs Sanitarium Co. Kellegg 126 Appl. Div. 61, 109 NYS 153. Indefbtedness of maker to serpayer principal held no consideration for not payable to agent personally, principal not having directed making of note in such manner and the indebtedness to principal not having been satisfied by the note. Roberts v. Perlinger \[Tex. Civ. App.\] 113 SWV 951. Subscription to stock before company is incorporated not a valid consideration. Avon Springs Sanitarium Co. Kellegg 126 Appl. Div. 61, 109 NYS 153. Indefbtedness of maker to serpayer principal held no consideration for note personally, principal not having directed making of note in such manner and the indebtedness to principal not having been satisfied by the note. Roberts v. Perlinger \[Tex. Civ. App.\] 113 SWV 149. Note given in consideration of assigra-ment of mortgage held without consideration in that mortgage was comparatively valueless. Mussey v. Dempsey, 113 NYS 271.

Held sufficient: Evidence held to show consideration for note executed by depositor to bank, such note being held not mere vuncher for deposit withdrawn. Boothe v. Farmers' & Traders' Nat. Bank \[Or.\] 83 P 509. Note given by one of several purchasers of interest in patent right to copurchaser held given in consideration of money advanced by latter to pay former. per's part of purchase price and not merely as evidence of interest of parties in prospective proceeds of sale of interest purchased. Mann v. Urquhart \[Ark.\] 116 SWV 219. Where deed is ineffectual to pmsse title, legal or equitable title, because witnessed by interested party, yet grantee sued on note for deferred payment does not show total failure of consideration by showing such facts, it being presumed that warranty deed was sufficient memorandum of sale to satisfy statute of frauds, so that specific performance could be had, no right of innocent third parties appearing. Andersen v. Young, 74 N. H. 428, 69 A 122. Obligation within statute of frauds held sulfheient to support note given in settle-ment thereof. Mohr v. Rickgrauer \[Neb.\] 117 NWV 950. Difference between solvent and insolvent signer of note constitutes value consideration to another who signs, relying on financial responsibility of those 12 Cur. Law. NEGOTIABLE INSTHUMENTS SS 2A. 1033

tions.\*0 A promissory note cannot operate as a gift, for, as such, it would be unexecuted and incomplete, amounting only to a promise to give,\[61\] but a note in the nature of a testamentary disposition of property will not be declared invalid by reason of disparity between the amount thereof and the value of the consideration.\[62\] Where the maker seeks to avoid liability on the ground of failure of consideration, he must return the consideration if possible,\[63\] unless such consideration is totally worthless.\[64\] The defense of lack or failure of consideration is available to sureties,\[65\] but defenses based upon the legality or sufficiency of the consideration between the maker and the payee are not available to an indorser as against an indorsee.\[66\]

As in the case of other contracts, a negotiable instrument is vitiated by fraud " or duress " in its inception, the distinction between negotiable instruments and other contracts in this'connection being of peculiar importance only with reference to the effect of negotiation,\[67\] and in the latter connection the distinction between fraud and in the inducement and fraud in the factum also becomes important.\[67\] Fraud may be perpetrated in connection with the execution of a negotiable instrument with reference to the signatures of coparties,\[61\] the nature of the instrument executed,\[61\] or the consideration.\[62\] As in other cases, the elements of fraud legally cognizable must exist, and one who signs a note cannot set up a defense that he did not read the fine print on its face,\[63\] nor can fraud generally be predicated upon a promise inducing the money of property, the contract constitutes \[64\]. See post, this section, subsection C, valuable consideration for note, and action \[55\] subdivlation Consideration.

may be maintained on note, even though \[56\], Iowa Nat. Bank of Ottumwa v. Sher-property was never delivered and title \[57\] than \[57\], 119 NTW 1010; City Nat. Bank thereof never passed. Acme Food Co. v. \[57\] of Columbus v. Jordan \[100a\] 117 NW 758. Older \[Vv. Va.\] 61 SE 285.

Fraud Indium giving of check for note. \[57\]. Consideration of note given to unl-variety in consideration of certain scholar-ship held not to have failed by reason of consideration of nilready. Cooper v. Ft. Miller v. Central University \[Ky.\] 112 SW SW 68. Where payee of note given for patent-right territory procured it to be executed by stipulating with maker that he, the payer, would furnish experienced men to \[57\].

Fraud Indium giving of check for note. \[57\]. Consideration of note given to unl-variety in consideration of certain scholar-ship held not to have failed by reason of consideration of nilready. Cooper v. Ft. Miller v. Central University \[Ky.\] 112 SW 68. Where payee of note given for patent-right territory procured it to be executed by stipulating with maker that he, the payer, would furnish experienced men to \[57\].

Fraud Indium giving of check for note. \[57\].

execution of a note,94 though it may be considered upon an issue of fraud,95 and the promise itself may be fraudulent by reason of a coexisting intent not to fulfill it.96 An instrument having its inception in fraud may be validated by ratification, waiver or estoppel.97 So, also, infirmities arising out of fraud in the inception of a note are cured by a reissue of the note by the maker for a valid consideration, before maturity and with knowledge of the facts.68 Return of the consideration, if possible, is usually essential to a rescission for fraud.69 The defense of fraud is available to a surety as well as to the principal,70 but fraud in the inception of the paper is not available to an indorser as against his indorsee.71

A note is not necessarily invalid because its execution involves a penal offense,72 or because a mortgage given to secure it is invalid.73

\_Instruments executed in blank.\_See 10 C. L. 968--At common law,.where one signs a blank note and delivers it to another for the purpose of enabling the latter to raise money thereon, the latter may insert whatever sum he pleases in the note,74 but implied authority to fill in blanks goes no further than to authorize the insertion of that which is necessary to make the obligation speak according to its intended purpose and use,75 and where the maker of a check does not designate a payee no one else has authority to complete the instrument by writing in the name of a payee, unless it is issued by the payee in such incomplete form.76 By statute in some states the blank instrument must be filled up in conformity with the authority given by the signer.77

\_Instruments payable to maker or.\_Gewe 10 C. L. 964--An instrument payable

64. That officer of plaintiff bank told de-

01. Iowa Nat. Bank of Ottumwa v. Sherfendant to buy certain land, and that the bank would buy the purchase-money notes

01. City Nat. Bank of Columbus v. Jordan and allow him to pay same from proceeds

1(w0a) 117 NW7 758.

of reasale of land. State Bank of Iowa

71. See post, this section, subsection C. Falls v. Brown \[Iowa\] 119 NW7 81.

01. State Bank of Iowa Falls v. Brown

01. Note executed in assumed corporate

name is valid, notwithstanding Cr. Code,

66. Note secured by promise which payee

01. See penalizing such an assumption. First

01. Nat. Bank of Litchfield v. Cox, 140 Ill. App.

01. Renewal note given to collection

01. Mertage invalid because description

of property was insufficient. Foddrell v.

60. Deploy \[Ga.\] 68 SE350.

01. Hermann's Ex? v. Gregory \[Ky.\] 115 SW789.

01.

01. First Nat. Bank of Wilkes-Barre v.

01. Burnum, 160 F 245. Does not authorize

under same influences which induced execution of paper does not operate as waiver,

setoppel or ratification of note so as to

speculate defense of fraud and lack of

83. Mertage invalid because description

of property was insufficient. Foddrell v.

84. Mertage invalid because description

of property was insufficient. Fodrell v.

85. Mertage invalid because description

of property was insufficient. Fodrell v.

86. Mertage invalid because description

of property was insufficient. Fodrell v.

87. See post, this section, subsection C.,

01. Mertage invalid because description

of belief \[Arl.\] 112 SW7 188. Payement without

89. Mertage invalid. Bank of Wilkes-Barre v.

01. Mertage invalid. Bank of Wilkes-Barre v.

01. Mertage invalid. Bank of Wilkes-Barre v.
    12 Cur. Law. NEGOTIABLE INSTRuments SS 2A. 1025 to the maker or.drawer has no legal existence until indorsed by him 78 and negotiated.79

_Accommodation paper._\[88e 10 C. L. #79\]--With reference to its requisites and validity, accommodation paper is in most respects within the category of ordinary commercial paper,80 but ex vi termini no consideration to the accommodation party is necessary,81 and hence the holder's knowledge of the accommodation character of the paper does not affect the liability of the accommodation party.83 On the other hand it follows from the absence of consideration to the accommodation party that no contract is created by his mere execution of the paper and its delivery to the party accommodated,84 and the accommodation party may cancel his socalled obligation at any time before value has been parted with on the credit of his name 84 or may avail himself of the absence of consideration in any action brought by the party accommodated,85 and as between such parties the same rule applies to renewals of such a note.85 There must, however, be a consideration between the party accommodated and the party receiving the paper.87 Where there is such a consideration, the accommodation party is bound.88 Aside from the effect of negotiation, accommodation paper becomes effective to bind the accommodation party only where used for the purpose intended by the accommodation party.89 An accommodation indorsement

security. Hermann's Ex'r v. Gregory \[KyJ\] \[ston of the paper. Weiss v. Rieser, 114 NYS 115 SW 809. 83. **78**. Murphy v. Schock, 135 Ill. App. 550. **88**. Credit given maker of note is sufficient consideration to bind accommodation in- 354, 115 NIV 1102. Instrument in form of Roger. Bank of Morgan City, Hervwig, 121 11. **813**, 46 S 611. If one elects to make and does not come into existence as such until it is delivered, as well as indorsed, by payee, be used to paye debts of latter, and they are so used, former cannot defend on ground accepted by payee to secure debt. Bank of Morgan City v. Herwig, 121 La. 513, 46 S 611. **81**. Consideration between the person accomodated and the person taking the note is sufficient. Marling v. Jones \[Wis.\] 119 NW 931. **82**. Hamiter v. Brown \[Ark.\] 113 SW 1014. **83**. Macaulay v. Holsten, 114 NYS 611. See post, 4. **84**. Queen City Sav. Bank & Trust Co. V. Reverbn, 168 F 597. **85**. Conrad v. Clarke, 106 Minn. 430, 119 NW 214, rehearing denied, 106 Minn. 430, 119 NW 482. Accommodation maker is not liable to the party accommodated. Asher v. Hloward, 33 Ky. L. R. 696, 110 SW 895. **86**. Conrad v. Clarke, 106 Minn. 430, 119 NW 214, rehearing denied, 106 Minn. 430, 119 NW 482. **87**. Osborne v. Fridrich \[Mo. App.\] 114 SW 1045. Accommodation paper has no legal inception until it is negotiated for value, Macaulev v. Holsten, 114 NYS 611. Consideration between maker and payee essential to bind accommodation indorser. Osborne v. Fridrich \[Mo. App.\] 114 SW 1045. Under Laws 1897, p. 727, 612, 5 612, making absence of consideration a defense as against one not a bona fide holder for value without notice, answer, alleging that paper sued on was made for accommodation of payee, and that plaintiffs indorser secured it from payee by fraud and duress, and that plaintiff received it from such indorser after disconnect, without consideration and with full notice of all the facts, held sufficient as against a motion to strike for priority, though it appeared that there was no divergment. L 63. **87**. L 64. **88**.

secured by the fraud of the payee creates no liability in favor of parties not bona fide purchasers,"99 and so, also, where the consideration for the indorsement is illegal,"1 and the latter defect is not cured by a subsequent waiver of defenses upon giving a renewal.92 The right of the indorser to defend on the ground of fraud by which the indorsement was induced is not dependent upon a rescission of the contract between the principal parties or upon a return of the consideration therefor."

\_Collateral stipulations and agreements.\_See 10 C. L. 964--Aside from the question of nsury, stipulations for attorney's fees are sustained in some states and held invalid in others.94 An agreement to extend the time of payment must be based upon a sufficient consideration,95 and in this connection the rule that reciprocal promises are a sufficient consideration, the one for the other, applies.98 Such an agreement may be oral.97 In some instances, a collateral agreement and the note in connection with which it is made are so inseparably connected in their execution that one cannot be impeached without impeaching the other.98

(SS 2) \_B. Of acceptance.\_99 See 10 C. L. 978--A draft may be presented by the holder's agent,1 and even when presented by one not authorized, an acceptance inures to the benefit of the holder.2 Though when a bill is made payable at a fixed time

99. Failure of payee to disclose insolv-

ency of prior indorser in reliance upon whose

sums. Very interesting discussions touchner the endorsement in question was

made. In re Lawrence \[C. C. A.\] 166 F 239.

Indorser of note, given for price of goods

anderson's Law. Seyler, 14 F

selfier where indorsement was induced by

fraud of latter. Roesse v. Lancaster, 114

1434, 16 A 64, 9 Am. St. Rep. 438, 1 L. R. A.

NYS 387.

91. Compounding felony. In re Lawrence

\[C. C. A.\] 166 F 239.

92. In re Lawrence \[C. C. A.\] 166 F 239.

01. Roesse v. Lancaster, 114 NYS 387.

01. See Chestertown Bank of Maryland v.

Walker \[C. C. A.\] 163 F 510. Vaild in Mingsingsippl. Bank of Duncan v. Brittan \[Miss.\]

46 S 163. Valid in Maryland. Chestertown Bank of Maryland v. Walker \[C. C. A.\] 163 F 510.

Note: "It is undoubtedly true that in a

number of states it is held legal for creditor

and debtor to contract that In case the debtor fail to pay upon maturity that then

the creditor may recover, in addition to his

debt, interest and costs, a reasonable sum

for attorney's fees for collection, and this

has been held to be the law in Maryland.

Bowie v. Hall, 69 M. 434, 16 A 64, 9 Am. St. Rep. 433, 1 L. R. A. 454; Gaither v. Tolson,

84 Md. 638, 36 A 449. It is also true that in

other states such contracts are held void,

and In no state where nsury laws are in

effect are they permitted to be enforced, if

such charges are either unreasonable or

made a subterfuge, for lawtous exactions.

A creditor would not, for instance, under

the law of Maryland, under such a contract,

be permitted to exact a commission of $500

for collecting a $100 debt. Nor would it be

permitted to collect a commission of $1,400

"for collecting" a debt of $28,000 which the

debot came forward, an hour after it was

due, to pay and before any attorney had been

employed to collect it, for, as said in Bowie

v. Hall, supra, the purpose of such a provil-

son "is clearly not to put money above the

legal rate of interest into the pocket of the

lender, but merely to enable him to get back

his money with legal interest, and nothing more." And this statement of the law is

99.

## 12 Cur. Law. Negotiable Instruments SS 2B.

after its date, presentment for acceptance before that time is not necessary in order to charge the drawer or indorsers, it may be presented for acceptance at any time.\[3\]

Mere delivery to the drawer is not equivalent to an acceptance, though he has sufficient funds of the drawer to pay the bill; \[4\] but no particular form of acceptance is necessary, and where the holder is assured by the acts and words of the drawer that the paper is good, there is an acceptance.\[6\]

A verbal acceptance is sufficient \[8\] even though it is made without consideration,\[7\] but in some states a written acceptance may be required.\[8\] An acceptance imports consideration to the acceptor \[9\] and is not dependent upon the acceptor having funds of the drawee,\[10\] even though the holder knows that the acceptor has no such funds.\[11\]

As against remote parties, such as the payee or indorsee, a failure of consideration involves not merely what the defendant received for his liability but also what plaintiff gave for his title.\[12\]

No consideration from the holder to the acceptor is necessary.\[13\]

The certification of a check operates as an acceptance.\[14\]

An acceptance may be conditional so as to become operative only upon certain contingencies.\[18\]

A promise to accept made by the drawer to the drawer does not amount to an acceptance where it is not acted upon by the holder,\[18\]

even though the promise is in writing,\[17\]

unless the writing is upon the paper itself.\[18\]

An agreement to honor the drafts of a partnership is binding upon the acceptor even after dissolution of the partnership as against persons purchasing or discounting such drafts upon the faith of such promise and without notice of such dissolution,\[19\]

especially where the acceptor knows of the dissolution and fails to notify the party to whom the promise to honor was made.\[20\]

Money paid upon a mistaken acceptance may usually be recovered,\[21\]

but it is incumbent upon the drawer of a bill to be satisfied that the signature of the drawer is genuine, as he is presumed to know the drawer's handwriting, and if the drawee accepts or pays the bill to which the drawer's name has been forged he can neither repudiate the acceptance nor re-

## 13 National Park Bank v. Satita, 127 App. Div. 624, 111 NYS 927.

4. Austin v. Papanti, 197 Mass. 684, 83 NE 1088.

1. Where bank stamped draft as paid when presented by payee's agent, and delivered it to such agent to be indorged by payee, and when such agent inquired as to meaning of draft being stamped as paid bank's officer assured him that it had been credited to payee, it was held that there was an acceptance both verbal and written. Milmo Nat. Bank v. Cobbs \[Tex. Civ. App.\] 115 SW 345.

1. Hines Lumber Co. v. Anderson, 141 Ill. App. 527; Milmo Nat. Bank v. Cobbs \[Tex. Civ. App.\] 115 SW 345.

1. Hines Lumber Co. v. Anderson, 141 Ill. App. 527. Not within statute of frauds. Id. S. Laws 1897, p. 727, c. 6, 12, $ 231, authorizing holder to require drawee to accept in writing on bill, is not confined to eight bills, but seems to be applicable to all bills of exchange. National Park Bank v. Sailta, 127 App. Div. 624, 111 NYS 927.

1. See Laws 1897, p. 727, c. 612, $ 50. National Park Bank v. Salta, 127 App. Div. 634, 111 NYS 927.

1. Huston v. Newgasa, 234 Ill. 285, 84 NE 910, rve. 135 Ill. App. 117.

1. Milmo Nat. Bank v. Cobbs \[Tex. Civ. App.\] 115 SWy 345.

1. There is no failure of consideration unless there is a failure in both of these respects. National Park Bank v. Sailta, 127 App. Div. 624, 111 NYS 927.

1. National Park Bank v. Saltta, 127 App. Div. 624, 111 NYS 927.

1. Blake v. Hamilton Dime Sav. Bank Co. \[Ohlo\] 87 NE 73.

1. Fisher v. Frank \[Cal. App.\] 97 P 95.

1. Milmo Nat. Bank v. Cobbs \[Tex. Civ. App.\] 115 SWy 345.

1. Milmo Nat. Bank v. Cobbs \[Tex. Civ. App.\] 115 SWy 346.

1. Not within statute of frauds. Id. S. Laws 1897, p. 727, c. 6, 12, $ 231, authorizing holder to require drawee to accept in writing on bill, is not confined to eight bills, but seems to be applicable to all bills of exchange. National Park Bank v. Sailta, 127 App. Div. 624, 111 NYS 927.

1. See Laws 1897, p. 727, c. 612, $ 50. National Park Bank v. Saltta, 127 App. Div. 634, 111 NYS 927.

1. Huston v. Newgasa, 234 Ill. 285,1088 NEGOTIABLE INSTRUMENTS SS 3C. 12 Cur. Law. cover the money paid \[22\] even from the person to whom it was paid,\[23\] and even though the position of the parties has not been changed.\[24\] In such case drawe can acquire no rights as against the person to whom payment was made or any person interested in sustaining the payment as valid,\[25\] nor be abrogated to the right of any such party.\[26\] (SS 2) \_C. Of negotiation or transfer and contracts incidental thereto.\[27\] See 10 C. L. #73, #74_Authority and capacity to negotiate, transfer or indorse.\[See 10 C. L. #73, #74_The agency of the person accommodated to negotiate the paper does not necessarily expire at the maturity of the paper.\[28\] A valid transfer or indorsement can be made only by one duly authorized in the premises,\[29\] but an unauthorized indorsement may become effective by reason of ratification.\[30\] The maker by executing the instrument admits the capacity of the payee to endorse and is estopped to deny it.\[31\] \_Intent of parties.\[See 10 C. L. #73, #74_There must be a concensus of the minds of the transfer and the transferee to effect a transfer,\[32\] but the expressed intent of the transfer to sell is not essential.\[33\] \_Necessity of indorsement.\[See 10 C. L. #73_The payee's indorsement is usually essential to a transfer,\[34\] unless, of course, it is otherwise provided by statute.\[35\] Indorsement is not essential, however, to the negotiation of an instrument payable to bearer,\[36\] and within this rule paper indorsed in blank becomes payable to bearer,\[37\] and so, also, where the name of the payee is left blank, the instrument passes by de-

1. See Banking and Finance, 11 C. L. #70, by one partner of name of copartner where Title, Guarantee & Trust Co. v. Haven, 126 Apr. Div. App. Div. 802, 111 NYS 805; Trust Company partnership name and negotiates it. Richards v. Threat, 31 Apr. D. C. 427. Under neg. 151, 112 NYS 84. 23, 24, 25, 26. Title, Guarantee & Trust Co. v. Haven, 126 Apr. Div. 802, 111 NYS 805. 86 \[Ann. St. 1906, $463-601\], maker is es-

1. Search Note: See notes in 27 L. R. A. 404; 29 A. S. R. 297; 72 Id. #76; 1 Ann. Cas. 275. See, also, Bills and Notes, Cent. Dig. # 422-434, 437-493, 495-505, 510, 512, 513, 515-523; Dec. Dig. # 176-222; 7 Cyc. 783; 4 A. & E. Enc. L. (26.) 246.

1. Hence purchaser for value after maturity may enforce note against maker in absence of restrictions upon authority of person accommodated to use the paper after maturity. Marling v. Jones \[VWs.\] 119 NWF 931.

1. Treasure held to have had authority to make indorsement in question for corporation. Van Norden Trust Co. v. Rosenberg, 114 NYS 1025. Bank authorized to deal in commercial paper is bound by its indorsement or guaranty by their executive officers. State v. Corning State Sav. Bank \[Iowa\] 115 NWF 937. Assistant cashier held to have had authority to transfer bank's title to note in settlement of balance due another bank on the day's clearing, though settlement was made after banking hours and was contrary to usual method of making such settlements in that payment was made in bills of exchange owned by bank instead of by draft upon a correspondent. Forbes v. First Nat. Bank \[Cdl.\] 95 P 785.

1. Commercial L. & T. Co. v. Mallers, 141 III. App. 460. Vhere corporation ratifies endorsement made by officer, It cannot thereafter repudiate same. Van Norden Trust Co. v. Rosenberg, 114 NYS 1025. Sorgery cannot be predicated upon indorsement

#### 12 Cur. Law. Negotiable Instruments $ 2C.

livery,\[38\] and any bona fide purchaser has authority to fill in his own name.\[39\] When an instrument is knowingly made payable to a fictitious person, it is payable to bearer and passes by delivery without indorsement,\[40\] and within this rule a person whose name is used as a mere pretense, without any intention that he shall receive either the paper or the proceeds thereof, is a fictitious person.\[41\] The rule at common law and under the statutes of the various states is that the maker's or drawer's knowledge of the fiction is essential to render the paper payable to the bearer as such,\[42\] and in this respect it differs from the rule under the English Bills of Exchange Act, under which the sole test is the fictitiousness of the payee, though the test as to what constitutes a fictitious payee is the same under both rules.\[48\] Where the instrument passes by delivery, the sufficiency of an indorsement to pass title is immaterial.\[44\]

38, 39. People v. Gorham \[Cal. App.\] 98 P \[NE 481; Trust Co. of America v. Hamilton Bank, 127 App. Div. 515, 112 NYS 84. But even under this act which for most intents and purposes makes maker's or drawer's intention immaterial an instrument made to remain such person whose name is used as a mere pretense and without any intention that he shall receive either the paper or the proceeds thereof is payable to bearer and passes by delivery without indorsement. Bank of England v. Vagliano Bros. \[1891\] App. Cas. 107; Culten v. Altenborough \[1897\] App. Cas. 90; Boles v. Harding, 201 Mass. 103, 87 NE 481; Snyder v. Corn Exch. Bank, 221 Pa. 599, 70 A 876; Trust Co. v. Hamilton Bank, 127 App. Div. 515, 112 NYS 84; Coggill v. American Exch. Bank, 1 N. Y. 131 SEN 829, Such paper is not payable to bearer where it is payable to real person whom maker or drawer intends to be real as well as the formal payee, though person receiving paper as purported representative of payee does not intend that latter shall receive paper or proceeds thereof, as where one purporting to act as agent for firm secured with forged check of such firm a bank draft payable to another firm, indorsed name of latter on draft and had it collected to his own credit. Seaboard Nat. Bank v. Bank of America \[N. Y.\] 85 NE 829, 43. Boles v. Harding, 201 Mass. 103, 87 NE 481.

NOTE: At common law and under the statutes of the various states the maker's or drawer's knowledge of the fiction's essential to authorize a recovery by the bearer as such. Boles v. Harding, 201 Mass. 103, 87 NE 481; Seaboard Nat. Bank v. Bank of America \[N. Y.\] 85 NE 829; Gibson v. Hutter, 2 H. Bl. 187; Phillips v. Mercantile \[N. Y.\] 87 NE 87; Boles v. Harding, 201 Mass. 103, 87 NE 481.

NOTE: At common law and under the statutes of the various states the maker's or drawer's knowledge of the fiction's essential to authorize a recovery by the bearer as such. Boles v. Harding, 201 Mass. 103, 87 NE 481; Seaboard Nat. Bank v. Bank of America \[N. Y.\] 85 NE 829; Gibson v. Hutter, 2 H. Bl. 187; Phillips v. Mercantile \[N. Y.\] 85 NE 829; Gibson v. Hutter, 2 H. Bl. 187; Phillips v. Mercantile \[N. Y.\] 85 NE 829; Gibson v. Hutter, 2 H. Bl. 188; Phillips v. Mercantile \[N. Y.\] 85 NE 829; Gibson v. Hutter, 201 Mass. 103, 87 NE 481.

NOTE: At common law and under the statutes of the various states the maker's or drawer's knowledge of the fiction's essential to authorize a recovery by the bearer as such. Boles Form and sufficiency of indorsement.See 10 C. L. 078, 974.-An indorsement may be sufficient to pass title though containing no formal words of transfer 48 or expressed intent to sell.46 The fact that an endorser enlarges his liability by a guaranty does not prevent the instrument from passing as a negotiable one,47 nor will such an indorsement nullify a prior blank indorsement.48 Actual ownership of paper payable to another party is essential to sustain an indorsement of the payee's name by the holder.49 The form of an indorsement is immaterial where it is apparent that the indorser intended to be bound thereby,50 especially where the indorser receives the benefit thereof with full knowledge.51 Whether an indorsement is that of a corpora-tion or individuals depends upon both form and intent.52 Delivery.See 10 C. L. 873, 974.-An indorsement by the holder is ineffective to pass the title, from him so long as he retains the paper in his own right.53

Consideration.See 10 C. L. 873, 974.-A consideration is not essential to the transfer of legal title.54 Ordinarily a failure of the consideration subsequently to the purchase does not constitute in legal conception a failure of the consideration.55 An indorser's liability is not dependent upon the consideration between the maker and the payee 55 except where the indorsement is for accommodation, which has already been considered.57

Fraud and forgery.See 10 C. L. 973, 974.-As between the immediate parties and all parties with notice, negotiation fraudulently effected is ineffective to put a note into circulation 55 and where, therefore, fraud is shown a prior indorser may show that his indorsement was merely for accommodation.56 The validity and effect of accommodation indorsements secured by fraud have already been considered.57 The maker cannot plead fraud or duress whereby the payee was induced to transfer the ,

dorsement is not affected by subsequent (keeper In letter written by him and stating indorsement whereby subsequent indorsee that S. and S. indorsed individually, held in-enlarges his liability. Elgin City Banking Colle, Weid \[Tenn.\] 108 SWV 1068.

Co., V. Hall \[Tenn.\] 108 SWV 1068.

45. Indorsement of guaranty accompanied by physical delivery of paper pledged by payee as collateral held sufficient. Lowner Nat. Bank v. Maddox, 4 G. App. 829, 61 SE 296.

01. Prather v. Hairgrove, 214 Mo. 142, 112 SVW 552.

47, 48. Elgin City Banking Co. v. Hall \[Tenn.\] 108 SWV 1068.

49. Person purporting to act for another in securing issue of draft to latter could not pass title thereto by indorsing latter's name, his real intention being fraudulent. Seasonar Nat. Bank v. Bank of America \[N. Y.\] 85 NE 829.

01. Indorsement of corporation. Van Norden Trust Co. v. Rosenberg, 114 NYS 1025.

That name of corporate agent or officer making the indorsement is not added thereto is immaterial. Id. Where agent or officer does add his name, the indorsement is not invalidated by failure to give his official designation, provided he is in fact authorized to make the indorsement. Id. Varfunce ns to name in that indorsement was "Lous Rosenberg, Inc." whereas name was "L. Rosenberg, Incorporated," held immaterial. Id.

51. Van Norden Trust Co. v. Rosenberg, 114 NYS 1025.

01. Where S. and S. owned corporation named S. & S. the mere facts that a note of the corporation was indorsed S-S., and was sent to plaintiff by corporation's book- paper to the holder.\[91\] On the other hand an indorser for value, as distinguished from an accommodation indorser,\[92\] cannot plead fraud between the maker and the payee.\[68\] A forged indorsement passes no title,\[64\] and no rights can be acquired thereunder,\[68\] except as between parties guilty of negligence and innocent parties suffering therefrom.\[69\] Where, however, an indorser guarantees a prior forged indorsement he thereby becomes liable to anyone thereafter purchasing the paper upon the strength of such indorsement.\[67\] Where the instrument passes by delivery a forged indorsement may be disregarded, since in such case the holder does not derive his claim of title through the forgery.\[69\] The validity of an indorsement and the contract thereby created is not affected by the fact that the note itself is a forgery,\[69\] the reason being that the indorser's contract is separate and distinct from that of the maker.\[70\]

SS 3. _Interpretation, nature and scope of contracts. A. In general.\[71\] See 10 c. L._

--A note ordinarily takes effect on delivery,\[72\] but the contrary may be shown.\[73\] So, also, an undated indorsement is presumptively of the same or about the same date as the execution of the note,\[74\] or at least of a date prior to maturity.\[75\] A note payable at once is payable within reasonable time.\[76\] A memorandumor:indorsement written on the back of a promissory note at the time of its execution which limits its consideration, affects its operation and is intended to be a part of the contract, must be regarded as a substantive part of the note.\[77\] A check is presumptively given in payment of an existing debt or for money paid for it at the time.\[78\]

The extent of liability for expenses of collection under a stipulation therefor is,

61. Weiss v. Rieser, 114 NYS 983. 62. See ante this section, subsection A, 71. Search Note: See notes in 2 L. R. A. subdivision Accommodation Paper. (N. S.) 83; 15 L. 612; 5 Ann. Cas. 149. 63. Elliott v. Brady, 192 N. X. 221, 85 NE 66. Indorsing renewal notes after notice of fraud is wavier of fraud. Id. 64. Laws 1897, p. 727, c. 612, $ 42. Seaboard Nat. Bank v. Bank of America (N. Y.) 85 NE 839. Acceptor may depend on erround of forgery of payee's name. Trust Co. of America v. Hamilton Bank, 127 App. Div. 515, 112 NYS 84. Hence bank that has collected draft to which payee's indorsement has been forged cannot retain money. Seaboard Nat. Bank v. Bank of America (N. Y.) 85 NE 829. 65. Seaboard Nat. Bank v. Bank of America (N. Y.) America (N. Y.) 85 NE 829. 66. See aboard Nat. Bank v. Bank of America (N. Y.) 85 NE 829. Trust Co. of America v. Hamilton Bank, 127 App. Div. 515, 112 NYS 84. 66. See post, $ 5B1. 67. Bank discounted for holder a note payable to order of maker, giving holder check payable to maker of note. Holder forged payee's indorsement to check, and delivered it to defendant bank which indorsed it, expressly guaranteeing prior indorsement, and presented it to first bank, which paid it. Held that as first bank could not claim to be bona fide holder for value of note by reason of payment of its own check upon forged indorsement, it had suffered loss to extent of amount of such check, and could recover such amount from bank upon the strength of whose guarantee check had been paid. Boardman v. Hanna, 164 F 627. 68. See ante, $ 2C1, subd. Necessity of Indorsement, 60. Jennings v. Law, 199 Mass. 124, 85 NE 157; State v. Corning State Sav. Bank \[Iowa\] 115 NW 987. 70. See post, $ 6C, subd. Indorser, 71. Search Note: See notes in 2 L. R. A. (N. S.) 83; 15 L. 612; 5 Ann. Cas. 149. 63. Elliott v. Brady, 192 N. Y. 221, 85 NE 66. Indorsing renewal notes after notice of fraud is wavier of fraud. Id. 64. Laws 1897, p. 727, c. 612, $ 42. Seaboard Nat. Bank v. Bank of America (N. Y.) 85 NE 839. Acceptor may depend on erround of forgery of payee's name. Trust Co. of America v. Hamilton Bank, 127 App. Div. 515, 112 NYS 84. Hence bank that has collected draft to which payee's indorsement has been forged cannot retain money. Seaboard Nat. Bank v. Bank of America (N. Y.) 85 NE 829. 65. Seaboard Nat. Bank v. Bank of America (N. Y.) America (N. Y.) 85 NE 829. 68. A forged indorsement passes no title,\[64\] and no rights can be acquired thereunder,\[68\] except as between parties guilty of negligence and innocent parties suffering therefrom.\[69\] Where, however, an indorser guarantees a prior forged indorsement he thereby becomes liable to anyone thereafter purchasing the of course, a matter of interpretation of the particular stipulation," but it is very generally held that under a stipulation for attorney's fees only such fees can be recovered as have actually been paid or for which the party claiming the recovery has actually obligated himself.${}^{ ext{ iny extregistered}}$ In other words, while attorney's fees stipulated for become a part of the principal debt when the contingency specified in the stipulation occurs,${}^{ ext{ iny extregistered}}$ such a stipulation is a contract for indemnity and not a liquidation of damages,${}^{ ext{ iny extregistered}}$ and hence liability thereunder cannot exceed the liability of the holder to the attorney in connection with the collection of the paper,${}^{ ext{ iny extregistered}}$ and the stipulated amount operates as a maximum limit of such indemnity.${}^{ ext{ iny extregistered}}$ It follows also that a recovery can be had only for fees necessarily incurred.${}^{ ext{ iny extregistered}}$ The fact that notes held as collateral are not due is not conclusive of the necessity of placing them in the hands of an attorney for collection,${}^{ ext{ iny extregistered}}$ nor is the liability for attorney's fees in such case affected by the fact that the debt secured is evidenced by a note which also stipulates for attorney's fees;${}^{ ext{ iny extregistered}}$ but fees cannot be allowed for collection the expense of which has otherwise been paid.${}^{ ext{ iny extregistered}}$ Where the contingency contemplated by the stipulation for fees is postponed upon certain conditions, such conditions must be substantially complied with in order to prevent accrual of liability for fees.${}^{ ext{ iny extregistered}}$

(SS 3) _B. Contracts created by particular signatures and acts.${}^{ ext{ iny extregistered}}$ See 10 C. L. 964, 968. Signature as maker See 10 C. L. 964, 968._ Presumptively creates a primary contract, that is, the party so signing is presumed to be a maker and liable as such,${}^{ ext{ iny extregistered}}$ but the presumption is only prima facie.${}^{ ext{ iny extregistered}}$ So, also, the person whose name first appears on a **70.** Where executor executed collateral corporation held properly placed in hands lateral should be applied to payment of notre "and all necessary expenses and charges," and the thereafter such executor was discharged and an administrator d. b. n. appointed, expense of defending unsuccessful suit by latter to enjoin sale of collateral on ground that executor had no authority to execute note could not be deducted from proceeds of collateral. Allen v. Williamsport Nat. Bank, 38 Pa. Super. Ct. 73. **50.** Chestertown Bank v. Walker \[C. C. A.\] 163 F 510. **51.** If placed in hands of attorney. First Nat. Bank v. J. T. Campbell Co. \[Tex. Civ. App.\] 114 SW SW 887. Tender not including attores fees held insufficient. Honaker v. Jones \[Tex. Civ. App.\] 115 SW 649. **52,** 83,\*\* 84.\*\* First Nat. Bank v. J. T. Campbell Co. \[Tex. Civ. App.\] 114 SW 887. **53.** Where hotel is secured by trust deed, attorney's fees are allowable in collections made by attorney and through his efforts, but not on sums collected by trustee for which trustee charges are made. Turber-Appl.\] 115 SW 849. **54**. 55.\*\* Where payee agreed not t5 place note in hands of attorney if maker notified him by certain hour that money to pay: note was ready, personal notice was necessary to put the payee in default of such agreement, mere effort to reach him by telephone being sufficient. Honaker v. Jones \[Tex. Civ. App.\] 115 SW 649. Payee not put in default upon such agreement by notice at twelve of 'clock when he agreed to wait only until eleven o'clock. Id. **90.** Search Note: See notes in 14 L. R. A. (N. S.) 842. **55.** 58.\*\* also, Bills and Notes, Cent. Dig. **59.** 565-267; Dec. Dig. **59.** 118-123; 7 Cyc. 642; **4.** & E. Enc. L. (2ed.) 81. **91.** All coworkers are presumptively prima-cipals. Terophyta v. Schade, 131 Mo. App.\] 119 SW 629. **92.** Swearingen's Executor & Trustee v. Tyyler \[KY.\] 111 SW 331; Reynolds v. Schade, 131 Mo. App.\] 1109 SW 629.\*\* Signers may show as against payee that they signed merely as sureties. Duggan v. Monk \[Ga. App.\] 62 SE 1017.

12 Cur. Law. Negotiable Instruments $ 3B. 1033 note is presumed to be a principal,"\* but the order of arrangement is not conclusive, and the first signer may show that he signed only as surety," unless the payee in accepting the paper relied upon the credit of such person as a principal."

_Signature as indorser_ See 10 C. L. 983, 974 is ordinarily unaffected by the belief of the person so signing as to the capacity in which he signs, where such belief is not shared by or communicated to the payee,"\* nor is the contract created by a signature as indorser affected by the secret purpose of the party so signing," but a signature as indorser may be characterized by the circumstances under which it is made." There is so much conflict, however, as to the presumption that arises from particular circumstances attending indorsement that no rule of universal application can be stated. Thus, in Missouri, one indorsing otherwise than as payee or indorsee is presumptively a maker,"9 and this presumption continues until overthrown by clear and convincing proof,1 but where the indorsement appears to have been made before delivery, the indorser is liable as such in the absence of a contrary intention clearly indicated." In Michigan it seems that an indorsement by one not the payee on the back of a note prima facie imports suretyship," but if the indorsement is made before delivery, the indorser becomes prima facie liable as a maker." In Wisconsin a person not the payee signing a note on the back thereof before delivery is deemed an indorser.3 In North Carolina one indorsing a note in blank before delivery is deemed an indorser unless he clearly indicates in appropriate words a contrary intent." In West Virginia a stranger who indorses negotiable paper at the time it is made is prima facie an original promiser or a guarantor, as the payee at any time may elect." In Tennessee a person indorsing before delivery is deemed an indorser," but this presumption, though statutory, may, as between the original parties, be rebutted." In New York, prior to the enactment of the negotiable instrument law, a person who placed his name on the back of a bill or note before delivery was presumptively a second indorser and not liable to the payee,10 but this rule was changed by the negotiable instrument law, and now the presumptive capacity in which such a signature is made is controlled by the express language of the statute.11 The presump 1034 NEGOTIABLE INSTRUMENTS SS 3C. 12 Cur. Law.

tion arising from indorsement after delivery \[19\] may be rebutted by showing that the paper did not become operative until after delivery, \[13\] and the payee is not necessarily estopped to make such showing by erroneous book entries dealing with the note as operative from its date, \[14\] or by entries referring to such indorser as an indorser instead of as a maker. \[15\]

\_Indorsement with guaranty.--\_Adding a guaranty subsequent to one's indorsement does not change or affect the character of the latter. \[16\]

\_Reissue of drafts, bills or checks.\_See 10 C. L. 1964.--\_Where the holder of a check has it certified and negotiates it, he becomes a new drawer and is liable as such to subsequent holders. \[17\]

(SS 3) _C. Contracts of particular parties._\[10\] See 10 C. L. 104, 1060.--\_Maker.\_See 10 C. L. 104, 1060.--\_What constitutes a person a maker has already been considered. \[10\] The maker by executing the instrument admits the existence and capacity of the payee. \[20\] Joint makers are equally liable in all respects. \[21\] The liability of the maker to an indorser who has paid the note is upon the note and not for money paid to the maker's use, \[22\] and where a debt is extinguished by a note, \[23\] the maker's liability to an indorser who has paid the note is upon the note and not upon the original debt. \[24\] In other words the maker's failure to pay and the indorser's payment merely restores the note to the indorser as the holder and owner thereof. \[25\] The contract of an accommodation maker is considered elsewhere. \[26\]

\_Indorser.\_See 10 C. L. 104.--\_What constitutes a contract of indorsement has already been considered, \[27\] as has also the contractual elements and validity thereof. \[28\] A contract of indorsement is neither primary nor absolute but is secondary and conditional, \[29\] liability thereon being dependent upon certain contingencies inherent ex

price of such furniture which lessor had agreed to purchase and sell to lessee held an indorser as distinguished from a prin-cai 100. \[26\] See, also, Bills and Notes, Gent. Dig. made in order to comply with an express condition in the arrangement between the lesser and the owner of the furniture that latter would not accept note unless so indorsed. Roeslie v. Lancaster, 114 NYS 387. \[20\] In. Indorsement after delivery presumptively creates contract of indorsement only, see International Bank v. Enderle, 133 Mo. App. 232, 113 SW 262. \[21\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 262. Fact that note was not discounted by bank to which it was payable until date subsequent to date of delivery and after note had been indorsed by third party held evidence that note was not to take effect until after such Indorsement. Id. \[21\] Bank held not estopped by entries of clerk calculating interest from date of note. International Bank v. Enderle, 133 Mo. App. 222, 118 SW 262. \[22\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 262. \[23\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 263. \[24\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 263. \[25\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 262. \[26\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 263. \[27\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 264. \[28\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 265. \[29\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 266. \[30\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 262. \[31\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 263. \[32\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 264. \[33\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 265. \[34\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 266. \[35\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 263. \[36\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 265. \[37\] The material Bank v. Enderle, 133 Mo. App. 222, 118 SW 266. \[38\] The material Bank v. Enderle, 133 Mo. App. 22 12 Cur. Law. NEGOTIABLE INSTRUMENTS SS 3C. 1035

lege in the instrument, though not expressed therein; \[30\] but though secondary and conditional it is otherwise entirely independent, \[51\], the indorser being bound not by way of assumption of the maker's undertakings but by operation of law whereby the indorser's obligations are clearly defined. \[32\] Such obligations cannot be extended beyond the limits fixed by law, \[38\] and do not include collateral undertakings and stipulations of the maker forming no part of the obligation of the instrument as such. \[41\] The indorser warrants the genuineness of the signature of all prior parties, \[38\] that the instrument is a valid and subsisting obligation, \[38\] that payment will be made by the primary party upon presentment at maturity, \[39\] and that the indorser has title to the paper and the right to transfer it. \[40\] Indorsement "without recourse" does not avoid the warranty of genuineness and title. \[41\] An unrestricted indorsement is presumptively a guarantee of payment, \[41\] but the presumption is only prima facie, \[42\] and express guaranty of previous indorsements does not necessarily guarantee the payment of the note but only the genuineness of previous indorsements. \[43\] In the absence of an agreement to the contrary, successive indorsers are liable as between themselves in the order of their indorsement. \[44\] An agreement between indorsers as to who shall be liable is not binding upon strangers. \[45\]

The conditions upon which an indorser's liability depends, being likewise the conditions of other kinds of secondary and conditional liability, are treated in a separate subsection. \[46\] Rights and liabilities under a contract of accommodation indorsement are treated in a subsequent subdivision of this subsection. \[47\]

_Drawer._ See 10 C. L. 988.--The drawer's liability is not terminated by the delivery of a draft as would be the case upon delivery of a chattel. \[48\] He becomes seconda-

held IMBble by maker on note executed for \[35\], Scarborough v. City Nat. Bank \[Ala.\]

Indorser"s accommodation, though latter is \[48\] S 62. Maker's signature. Jennings v. also the holder. Abramowitz v. Abramo- Law. 199 Mass. 124, 58 NE 107; State v. witz, 113 NYS 798. A blank Iadorsement

Corning State Sav. Bank \[Iowa\] 115 NWV cannot be filled out so as to make the in- \[93\].

Morse Primarily Table. Cymer v. Terry \[38\], Horowitz v. Vollowwitz, 59 Misc. 520,

\[Tex. Civ. App.\] 109 SVW 1129.

110 NYS 972; Scarborough v. City Nat. Bank

So Link V. Bergold, 35 Pa, Super. Ct. \[Ala.\] 48 S 62. Indorsement warrants makers signature as against defense of fraud

SWV 138. By this conditional character in- \[93\] Government is distinguished from guaranty.

Bragy, 192 N. Y. 221, 85 NE 69. Competeery

Elgin City Banking Co. v. Hall \[Ton.\] 1988

SWV 1068. Whether guaranty of note stipu-

lates that maker will pay, or whether it

Vulidity of consideration is warranted as stipulates that guarantor will pay, the ind

dertaking is absolute, whether maker is

witz v. Vollowwitz, 59 Misc. 520, 110 NYS

solvent or not, and guarantor must pay of

see that it is paid. Ide See Guaranty, 11

C. L. 1683.

M. Keys v. Keys' Estate \[Mo.\] 116 SVW

\[Ala.\] 48 S 62.

SS7: Scarborough v. City Nat. Bank \[Ala.\]

48 S 62; Horowitz v. Vollowwitz, 59 Misc.

Corning State Sav. Bank \[Iowa\] 115 NWV 520, 110 NYS 972. Action on Indorsement

937.

is not brought on instrument itself. State

v. Corning State Sav. Bank \[Iowa\] 115 NWV

109 SVW 1163.

937. By its independent character the con-

tract of indorsement is distinguished from

counterset of suretyship. Keys v. Keys' Es-

late \[Mo.\] 116 SVW 537.

32. Scarborough v. City Nat. Bank \[Ala.\]

48 S 62.

33. Abramowitz v. Abramowitz, 113 NYS

01.

01. Scarborough v. City Nat. Bank \[Ala.\]

48 S 62. Vwaier of exemption in note.

though expressly purporting to be made by

maker and indorsers, held not a waiver in

writing by one who indorsed note in blank.

Id.

12 NYS 927.

rily liable upon acceptance by the drawee,\[48\] but is not discharged thereby.\[49\] Where the drawer of a check delivers it to a person representing himself to be the payee, he impliedly represents that such person is the payee.\[50\]

_Acceptor_,\[See 10 C. L. 973, 009\]. Acceptance of a bill or draft is not a collateral but an original and direct undertaking on the part of the acceptor,\[51\] whereby he guarantees or admits the genuineness of the drawer's signature,\[52\] admits the possession of funds of the drawer with which to pay the bill or draft,\[88\] and becomes primarily liable thereon.\[54\] The acceptor does not guarantee the payee's indorsement.\[55\] A conditional acceptance becomes absolute upon performance of the conditions.\[66\] Acceptance for accommodation is considered in the next subdivision of this subsection.

_Accommodation parties_,\[See 10 C. L. 979\]. On account of the absence of consideration, the accommodation party is under no contractual obligation to the party accommodated.\[57\] As between such parties the accommodation party is in effect a surety,\[58\] and his right of recourse against the party accommodated is, aside from any collateral agreement, that of a surety against his principal,\[59\] though, of course, the party accommodated may enter into a special agreement to save the accommodation party harmless,\[60\] but, as an indorser's liability is secondary to that of the maker, when an accommodation maker acquires the paper as a holder he cannot hold the indorser whom he has accommodated liable thereon.\[61\] As to holders other than the accommodated party, the accommodation party's liability is generally that of a similar party, that is a maker, acceptor or indorser, who receives value.\[62\] As to parties with notice, an accommodation party is not bound where the paper is diverted from the use for which it was intended.\[63\] In the absence of an agreement 12 Cur. Law. Negotiable Instruments SS 3D. 1037 to the contrary, where several persons indorse for the accommodation of the maker, they are liable as between themselves as successive indorsers and not as joint sureties.64

(SS 3) _D. Conditions of secondary liability._58_--See 10 C. L. 975, 976, 978_

\_In general._8ee 10 C. L. 975, 976, 978_--The conditions inherent ex lege in the contract of an indorser or drawer apply only where such contract is confined to the limits fixed by law, and not where the contract is extended by special stipulation or guaranty,69 nor do they apply where the contract, though secondary in form, is primary in fact.67

\_Presentment and demand._See 10 C. L. 976_--Demand or exhaustion of the principal debtor is not essential to fix liability under a contract of absolute guaranty,69 but presentment for and demand of payment are ex lege a condition precedent, inherent in the contract itself, to liability under a contract of indorsement as such.69. Presentment and demand are always prima facie necessary to bind the secondary party,70 and absolutely necessary when so required by statute,71 unless waived, and when not required by statute as an absolute condition the circumstances may be such as to dispense with the necessity of presentment and demand.72 Unreasonable delay in presenting a check will operate as a discharge when it causes injury,72 but not otherwise.74 The considerations upon which the holder of a check may excuse failure to forward in due course, as against the drawer, are not applicable as against an indorser.75

A demand note must be presented within a reasonable time,76 and the same rule applies to a check.77 Where the drawer and the payee of a check both reside

64. Liable in order of indorserment. Bam- bind indorser of check unless it appears

ford v. Boynton, 200 Mass. 560, 86 NE 900. 68

65. Search Note: See notes in 4 C. L. 800; 88

8 Id. 1138; 36 L R. A. 703; 61 Id. 300; 68

Id. 482; 3 L R. A. (N. S.) 1079; 4 Id. 132; 13 Id. 303; 14 Id. 616; 30 A. S. R. 158; 5 Ann. 478; 6 Id. 281; 10 Id. 1121. 72

See, also, BHs and Notes, Cent. Dig. 8 996-1232, 1276-1285; Dec. Dig. 8 385-424; 7 Cyc. 959, 1051; 4 A. & E. Enc. L. (2ed.) 348.

66. Where guaranty of note is absolute, no demand or exhaustion of the maker is required nor any notice required of acceptance or default. Elgin City Banking Co. v. Hall \[Tenn.\] 108 SW 1068.

01. Indorser before delivery held a comaker and not entitled to notice. Mercantile Bank of Memphile v. Busby \[Tenn.\] 113 SW 390. Stockholder who indorsed note of corporation in order to raise money for himself and other stockholders held under Laws 1899, p. 159, c. 94, 8 115, dispensing with necessity of notice to endorsers of instruments made for their own accommodation, not entitled to notice. Id. Presentment and notice of dishoner is dispensed with by statute so far as concerns a party accommodated who has no right to expect payment upon presentment. P. L. Pa. 1901, 206, 98 80, 115. Luckenbach v. McDonald, 164 F 296.

01. Elgin City Banking Co. v. Hall \[Tenn.\] 108 SW 1068.

01. Guttman v. Abbott, 110 NYS 376; Link v. Bergdoll, 35 Pa. Super. Ct. 155: Kennedy v. Groves \[Tex. Civ. App.\]. 110 SW 128.

01. Y. W. O'Bannon Co. v. Curran, 113 NYS 359. Presentment and demand essential to

01. L. 975, 976, 978, 978, 9 in the place where the drawee bank is located, the general rule is that a reasonable time for the presentment of the check expires with the expiration of the next day after the date of the check." Under this rule where the check is not received on the day of its date, the time for presentation is extended only to the expiration of the next day after its receipt." As between the drawer and payee, the time is not extended by the latter's indorsement of the check to a third party."

Presentation and demand must be made at the place designated by the parties or the law for that purpose," but the weight of authority seems to be that the law is not over-exacting as to the mode or method of presentation, so long as an opportunity is given to pay or refuse to pay." So far as relates to the necessity of making a personal demand, presentment may be made over the telephone," and such a demand also constitutes presentment at the place where the person upon whom such demand is made receives the telephone message." When a note is made payable at a branch bank located at a certain place, presentment at the office of the principle bank located at another place is insufficient." Actual exhibition of the

78, 79, 80. Deboust v. Lewis, 113 NYS 559. \[ place of the presentment, informing him that the note was held for collection. The maker, admitting his liability, refused to NYS 802. \[\]. Notice of non payment was given the indorser. Held, this was a sufficient pre-sentment for payment, exhibition of the instrument being waived and the indorser was liable. Glipin v. Savage, 60 Misc. 605, 112 NYS 802.

13 Cur, Law. **NEGGITABLE INSTRUMENTS SS 3D. 1039**

paper is for the benefit of the party primarily bound, and may be waived by him." Such exhibition is waived by failure to demand it and refusal to pay on other grounds."

\_Default of primary party.\_See 10 C. L. 876--Liability under a contract of indorsement is conditional upon the default of the party primarily bound," and hence an indorser for whose accommodation the paper is executed cannot be held liable thereon to the accommodation maker, though the latter is also the holder."

\_Protest.\_See 10 C. L. 978--Protest is essential to bind an indorser as such." The term "protest" includes in a popular sense all steps necessary to fix the liability of a drawer or indorser upon the dishonor of commercial paper, and to which he is a party, or accurately speaking, it is the solemn declaration on the part of the holder against any loss to be sustained by him by reason of the nonacceptance or even nonpayment as the case may be, of the bill in question." At common law no formal protest was necessary 92 and this rule still obtains in some of the states,"

it being sufficient if proper presentment and demand be made and the party secondarily bound be notified of the dishonor." Hence, where such facts are shown, a certificate of formal protest is not essential."

\_Notice.\_See 10 C. L. 978--As a general rule notice of dishonor and protest is essential to bind an indorser or drawer." In the absence of an express waiver," such notice is always prima facie necessary," and is absolutely necessary where it is made by statute an absolute condition of secondary liability." Otherwise it is not necessary under some circumstances."

Verbal notice of dishonor is sufficient,2 though given to agent of the indorser instead of to the latter himself." The owner of a note who has placed it with another for collection is not obliged either himself to notify the indorser of dishonor of the note or to make inquires as to whether the indorser receives his mail,4 but having the right to employ an agent for this purpose, he may leave to the agent the execution of the duty thus delegated to the latter, and, aside from the duty of communicating to the agent any information he may have in regard to the matter, he

locality. Ironclad Mfg. Co. v. Sackin, 129--Iowance of amendments thereto. Demelman App. Div. 555, 114 NYS 42, rvg. 59 Misc, 281, v. Brazler, 198 Mass. 458, 84 NE 856.

110 NYS 161.

86. Glimin v. Savage, 60 Misc. 605, 112 NYS

Super. Ct. 155; J. W. Perry Co. v. Taylor

802. Though required by statute, Laws 1897, p. 736, c. 612, $ 134. Id.

001. Glimin v. Savage, 60 Misc. 605, 112 NYS

001. Where party upon whom demand was made by telephone refused to pay on ground

that he had agreement for renewal. Id.

88. Link v. Bergeoll, 35 Pa. Super, Ct. 155; Vogel v. Starr, 132 Mo. App. 430, 112 SV 27; Guttman v. Abbott, 110 NYS 376.

01. Abramowitz s. Abramewitz, 113 NYS

01. See post, 1 &, Remeelles.

01. Guttman v. Abbott, 110 NYS 876; Kennedy v. Groves \[Tex. Civ. App.\] 110 SW 136.

01. Sherman v. Ecker, 59 Misc. 216, 110 NYS 265, rvg. 58 Misc. 456, 109 NYS 678.

01. Demelman v. Brazier, 198 Mass. 458, 84 NE 856.

01. Searchrough v. City Nat. Bank \[Ala.\]

48 8 62. Rev. Laws, 73, 83 SS 88, 87. Demelman v. Brazier, 198 Mass. 458, 84 NE 856.

94. Demelman v. Brazier, 198 Mass. 458, 84 NE 856. Sufficient if party sought to be charged is apprised of dishonor and that he is looked to for payment. Searchrough v. City Nat. Bank \[Ala.\] 48 SS 62.

01. Hence no error can be predicated upon its admission in evidence or upon the al 1040 NEGOTIABLE INSTRUMENTS SS 3D. 13 Cur. Law. is bound himself to perform none of the delegated duties.\* Personal service on an indorser of notice of dishonor is not required, but constructive service will suffice where reasonable diligence is exercised to make it in the manner best adapted to convey actual notice.\* Notice properly addressed and deposited in post-office is deemed due notice.\* When the indorser lives in the country and his post-office address is not known to the holder, it is the duty of the latter to make reasonable inquiries, in town or city where the bill is payable, and, in default of more specific information, to address the notice to the nearest post-office.\* The holder is not justified in, all cases, however, in sending the notice to the nearest post-office,' but must act in good faith always and with reasonable diligence to learn the place where the indorser receives his mail, and learning it must send the notice there, regardless of whether it be the nearest post-office.10 The usual rules as to notice to partnerships apply.11

\_Waiver and excuse for nonperformance of conditions.\_See 10 C. L. 170_Present, demand, protest and notice may be waived by the express provisions of the instrument,12 or the indorsement thereof,13 or by subsequent conduct.14 Where not absolutely required by statute, performance of such conditions will not be required when it would be useless,15 and in some states the necessity thereof is by statute, dispensed with in certain cases.16 Insolvency of the maker is not alone an excuse for failure to give notice of dishonor to an indorser.17 It seems that a waiver or excuse may be predicaved upon the secondary party's receipt of security or indentity,18 but a several waiver cannot be predicated upon the receipt.of such security

4, 5, 6. Vogel v. Starr, 132 Mo. App. 430, withstanding failure to perform such conditions, where such failure could not possorbly operate injuriously. Id.

16. Not essential to bind party accommodo-, dated. P. L. Pa. 1901, 206, 209, **SS 80**, 115. Luckenbach v. McDonald, 164 F 296. Officers' and stockholders of corporation which, toj their knowledge, had no liquidatable assets, held not entitled to benefit of presentment as to note executed by them in behalf of corporation and indorsored by them individuality in order to enable corporation to complete certain contracts. Id.

01. Grimes v. Tait \[Ok.J\] 99 P 810, 18. See Jordan v. Reed \[N. J. Err. & App.\] 71 A 280.

01. Vogel v. Starr, 132 Mo. App. 430, 112

01. Vogel v. Starr, 132 Mo. App. 430, 112

01. Vogel v. Starr, 132 Mo. App. 430, 112

01. Where noty made inquiries of several persons, etc., and sent notice to wrong town, held notice was sufficient. Id.

01. Under Rev. Laws 1902, c. 73, **SS 116**, providing that notice to partner is notice to firm firm, notice to partner is notice to firm though partnership has been dissolved and defendant has not been informed by his co-partner of the protest. Feigenspan v. McDonnell, 201 Mass. 341, 87 NE 624.

01. First National Bank v. Buttery \[N. D.\] 116 NWP 341.

01. Telegraphed authority "to indorse," what might be termed a renewal note, held to include authority to waive demand, etc., the indorsement on the first note containing such a waiver, State Bank & Trust Co., of Los Angeles v. Evans, 198 Mass. 11, 84 NE 829.

01. President of corporation who indorsored corporation's note and thereafter took part in having corporation adjudicated a bankrupt held to have waived presentment, demand, protest and notice, notwithstanding, requirement of Laws 1897, p. 736, c. 612, **SS 130**, 160, that presentment shall be made and notice given in order to charge indorser. J. W. O'Bannon Co. v. Curran, 113 NYS 359.

01. J. W. O'Bannon Co. v. Curran, 113 NYS 359.

01. Prior to Laws 1897, p. 719, c. 612, Ingerser or drawer could be held liable not-withstanding failure to perform such conditions, where such failure could not possorbly operate injuriously. Id.

01. Not essential to bind party accommodo-, dated. P. L. Pa. 1901, 206, 209, **SS 80**, 115. Luckenbach v. McDonald, 164 F 296. Officers' and stockholders of corporation which, toj their knowledge, had no liquidatable assets, held not entitled to benefit of presentment as to note executed by them in behalf of corporation and indorsored by them individuality in order to enable corporation to complete certain contracts. Id.

01. Grimes v. Tait \[Ok.J\] 99 P 810, 18. See Jordan v. Reed \[N. J. Err. & App.\] 71 A 280.

01. A. 280.

01. Note Defendant in error rested his case upon the doctrine that when an indorser has received full security or indentity for the amount of a note or bill, or has received money or property for 12 Cur. Law. Negotiable Instruments SS 4B. 1041 or indemnity jointly by several secondary parties and their joint assumption of primary liability.19

SS 4. \_Discharge. A. In general. 20_See 10 C. L. 960, 972.\_This section is confined to discharge of the obligation of the instrument itself and of contracts growing out of its indorsement, acceptance, etc., as distinguished from discharge of the obligation for which the instrument was given,21 and to the discharge of the obligations of valid, subsisting contracts, as distinguished from so-called contracts, which are invalid or incomplete,22 it being a matter of course that a party may cancel an obligation which has not become binding.23 Discharge as here used must, furthermore, not be confused with release from secondary liability by reason of non-performance of the conditions prerequisite thereto.24

Matters of discharge or abeyance of the original note may be pleaded against the enforcement of a renewal note.25 An accommodation party is so far a surety as to holders with notice of his accommodation character that he will be discharged by arrangements to his prejudice and without his knowledge with the principal debtor.26 The fact that a bona fide holder of negotiable paper did not know at the time he took it that one of the apparent makers was merely a surety will not prevent a discharge by acts prejudicial to the surety committed by the holder after he acquires such knowledge.27

(SS 4) \_B. Particular matters of discharge. Payment.28_See 10 C. L. 960, 972, 974_On the maturity of a note the maker has an absolute right to pay and thus relieve himself from the payment of further interest, and if, without further agreement, he neglects to pay it when due, he still has the right to pay it at any subsequent time.29 Payment as such operates as a discharge,20 though it is made by a stranger by mistake.21 It is essential in this connection, however,

meeting the obligations which he has in-curred on behalf of the latter. Corney v., (N. S.) 1043.

DacCosta, 1 Esp. N. P. 302, 803, approved,

arguendo, in Brown v. Maffey, 15 East, 216,

SS 1276-1285; Dec. Dig. $ 425; 7 Cyc. 1005,

223; Bond v. Farnham, 5 Mass. 170, 171, 173.

4 Am. Dec. 47; Barton v. Baker, 1 Serg. & R.

\[Pa.\] 334, 336, 7 Am. Dec. 620; Mechanics'

\[Pa.\] 335, 7 Am. Dec. 620; Mechanics'

Bank v. Griswold, 7 Wend. \[N. Y.\] 165, 166,

167, 170. * * Acts, admissions or prom-

23. Accommodation maker may cancel his

ses after maturity, in order to be evidential

of a waiver of presentment and notice, or

of an excuse for the want of presentment

Queen City Saw, Bank & Trust Co. v. Rey-

and notice, must be done or made with full

knowledge of the discharge from liability

\[Pa.\] 24. See ante, $ 3D, Conditions of Second-

upon the contract of indorsement and must,

\[Pa.\] 25. Holder of note taken by him in re-

conditional. Barkalow v. Johnson, 16 N. Y.

Law, 397, 398, 400: Sussex Bank v. Baldwin,

17 N. Y. Law, 487, 495, 496; Harrison v.

declee of foreclosure of such mortgage and

Balley, 93 Mass. 620, 621, 97 Am. Dec. 63;

Thornton v. Wynn, 25 U. S. 183, 187, 189, 6

Law, 605: 55: Sigregoron v. Mathews, 61 U. S.

196, 499, 500; 15 Law. Ed. 898; Woods v. Dean,

32 L. J. K. B. 1, 3, a case better reported

here than in 3 Best & Smith, Adapted from

\[Pa.\] 28. Search Note: See notes in 22 L. R. A.

Jordan v. Reed \[N. J. Err. & App.\] 71 A 280.

\[Pa.\] 10. Jordan v. Reed \[N. J. Err. & App.\] 71 A 280.

71 A 280. Evidence that defendant and others received property of maker on agreement to take care of note at maturity, or

when to take care of note at maturity, or

evidence that after maturity a defendant

admitted responsibility upon note in com-

mon with others, will not support action

against such defendant alone as indorser as

to whom presentment and notice of dis-

honor was not necessary. Id.

19 Curr. L. -66.

20. Search Note: See notes in 16 L. R. A.

(N. S.) 1043.

25. Be also, Bills and Notes, Cent. Dig.

\[Pa.\] 1044; 4 A. & E. Enc. L. (2ed.) 495.

21. See Payment and Tender, 10 C. L. 1147.

01. See ante, $ 2, Contractual Elements,

Requisites and Validity.

23. Accommod to bear in mind the distinction between payment as such, as when the instrument is paid by a party primarily bound, in which case the obligation of the instrument and all obligations dependent thereon are discharged as a matter of law\[32\], and payment so-called, which does not discharge the obligation of the instrument unless it is so intended\[33\], as when the so-called payment is made by a stranger, in which case the transaction is presumptively a purchase\[34\], or where the so-called payment is made by a party secondarily bound, in which case the transaction operates merely to restore to such party the title to the note and the right to the possession thereof\[35\], or where the so-called payment is made by a surety\[36\]. Payment by the drawer of a dishonored draft extinguishes the instruments\[37\]. Payment to an agent is the same as payment to the principal and any loss resulting from the agent's fraud must be borne by the principal\[38\]; but the holder is not bound by a payment to which he is not a privy either originally or by ratification\[39\], and as in other cases knowledge is essential to ratification\[40\]. The protection of a law exonerating the draweep upon payment to the wrong person in good faith and in due course of business can be invoked by the drawer only when the payment was in fact in good faith and in due course\[41\]. Payment may be made without the payee's indorsement\[42\]. Arrangements for the security of one discounting commercial paper are directly available only to the parties to such arrangement\[43\].

Ordinarily payment must be made in money\[44\], but payment may be effected otherwise by agreement of the parties\[43\].

The indorsement of a note as paid and the delivery thereof to the maker does not discharge the obligation where the maker fails to perform a condition upon

who thought note was his own obligation. as against intervener. Hannan v. Hannan Charnock v. Jones \[S. D.\] 115 NW 1072. \[Colo.\] 96 P 780. 32. Jacobs v. Pierce, 122 Ill. App. 547; Bank of Latham v. Milligan \[Iowa\] 118 NW 404. Payment by eemaker extinguishes such banks gave its notes to payee to co-debt. Reynolds v. Schade, 181 Mo. App. 1, 109 SW 629. Obligation is discharged by payment by one who has assumed maker's acceptance by other bank, together with contract. Sutherland v. Palilster \[Vwash.\] 87 P 745. Accommodation marker discharged by payment by payee, who was one accommodated. Jacobs v. Pierce, 122 Ill. App. 547. 33. Obligation extinguished by payment only when made by person primarily bound. Prather v. Hairgrove, 214 Mo. 142, 112 SW 552. 34. Johnston v. Schnabanum \[Ark.\] 109 SW 1168. Transaction whereby attorney for owner of property covered by mortrage given to secure note took up note from agent of owner of note, held purchase by attorney and not payment made in behalf of his client. Prather v. Hairgrove, 214 Mo. 142, 112 SW 552. 35. Jacobs v. Pierce, 132 Ill. App. 547. 36. No discharge where the party making the payment is in reality a surety, though in form maker. Reynolds v. Schade, 181 Mo. App., 1, 109 SW 629. 37. Scheuermann v. Monarch Fruit Co. \[LA.\] 48 S 647. 38. Jolly v. Huebler, 122 Mo. App. 675, 112 SW 1018. 39. Citizens' Sav. Bank v. Marr, 129 Mo. App. 26, 107 SW 1009. In suit on note in which payments were voluntary as between ownership, evidence of payments of costs and attorney's fees in the main action, which payments were voluntary as between defendant and intervener, held inadmissible 18 Cur. Law. Negotiable Instruments SS 4B. 1043

which such indorsement and delivery was predicated." The payee of a bank cheek may look to the drawer thereof for its payment, and is not required to apply thereto money in his hands on deposit in the name of an indorser.47

Failure to pay a note at maturity and its production by the holder raises a presumption of continuous nonpayment.

Payment of renewals is treated in a subsequent subdivision of this subsection.48

\_Counterclaim and set-off.\_See 10 C. L. 1050, 172, 975--Counterclaims and set-offs in favor of a comaker may be set off in full against the amount he might have to pay on the judgment.49 and a counterclaim allowed in favor of the maker as a set-off against the note operates as a discharge pro tanto of the obligation of the note-regardless of the findings as to counterclaims pleaded by other defendants.50

\_Renewal.\_See 10 C. L. 1050, 172, 975--Renewal does not per se discharge the obligation of the paper renewed,51 even when the security is given with the new note,52 but the old note will be discharged when such is the intention of the parties.53 A fortiori, the old note is not discharged where such is not the intent of the parties and the renewal is invalid for any reason not chargeable to the holder.54 In such case the renewal does not operate to discharge either indorsers 55 or sureties,54 and where the indorser of an original note repudiates his indorsement of a renewal, his liability upon his original indorsement is revived,57 unless he has surrendered valuable security upon faith of the cancellation of the original note.58 A renewal may, however, in certain cases, operate to discharge sureties and secondary parties.59 Where the renewal refers to the paper renewed, liability for attorney's fees under a stipulation in the latter is not discharged by failure to include any such stipulation in the renewal,50 especially where the action is upon the original.51 Payment of a renewal cancels both the renewal and the original,52 and payments made on

46. Where bank having note for collection informsements as security was renewed by as payee's agent accepted check from maker for amount of not, indorsed notes as paid and delivered it to maker, and then delvived to maker a draft to be applied by him by 672.

by 672.

an invalid renewal must be credited on the original.\[63\] Acceptance of the note of a third party will operate as a discharge when so intended.\[64\]

\_Release.\_See 10 C. L. 669, 075, 975.--In South Dakota a release of one joint obligor does not release the others or affect the right of contribution.\[65\] A verbal promise to release, without consideration, does not discharge a comaker.\[66\]

\_Collateral stipulations and agreements.\_See 10 C. L. 669, 072, 975.--Whether there has been a discharge by virtue of a collateral agreement is often merely a matter of construction of such agreement.\[67\] Breach of warranty operates as a discharge of liability upon a purchase-money note.\[68\] Such defense is available to the maker of a note executed as collateral security for the purchase-money note,\[69\] but such maker is not necessarily released by exchange of property purchased for other property covered by a new warranty,\[70\] though where the collateral note is retained as security for the payment of the price of such other property, he may avail himself of a breach of the new warranty.\[71\]

\_Laches.\_See 10 C. L. 669, 072, 075.--The liability of the acceptor, being original and primary,\[72\] is not affected by delay, short of the statutory period of limitation, in presenting the draft for payment.\[73\] Failure to sue on a note is not ground for release of the maker on the indorser who are not prejudiced by delay.\[74\] An accommodation comaker is not discharged by his urgent request that the payee proceed against principal maker who is solvent, but should pay the note and bring suit himself.\[75\]

\_Extension of time of payment.\_See 10 C. L. 872, 075.--Right to extend the time of payment may be reserved by the terms of the note.\[76\] Extension of time by virtue of an invalid renewal does not discharge parties secondarily liable.\[77\] It is held that an accommodation maker is so far a surety as to be discharged by an extension without his consent,\[78\] but it is also held that where such a maker is declared by statute to be primarily liable, he comes within the rule applicable to primary parties generally, and is not discharged by an extension without his consent.\[70\]

63. State v. Allen, 132 Mo. App. 98, 111 SVW

01.

01. See ante, this subsection, subdivision,

103 Minn. 276, 115 NW 159.

65. Rev. Civ. Code, $ 1187. Central Banking & Trust Co. v. Pusey \[S. D.\] 118 NW 1126.

01. Edmondston v. Ascough, 43 Colo. 55, 95 P 813.

01. Where it was agreed that maker of note given for license fees advanced should have to pay a certain sum per week so long as he continued in business and purchased beer from plaintiff, and plaintiff's collector, with whom the arrangement was made, informed the maker, prior to execution of the note, that if he discontinued business he would not have to pay any more license, this did not amount to an agreement that upon the maker's discontinuance of business the note should be deemed paid. Ferdinand Munch Brewery v. D. Dotetis, 128 App. Div. 830, 112 NYS 1042.

68, 69, Northwest Therasher Co. v. Hulburt, 103 Minn. 276, 115 NW 159.

70. Under evidence, maker of note executed as collateral security for payment of note executed by purchaser of engine in payment thereford held not released by exchange of engine for another engine and execution of new note by purchaser for difference in price of two machines, the collateral note being retained by seller as security for price

**12** Cur. Law.\*\* **NEGOITABLE INSTRUMENTS SS 5B1.** **1045**

_Acceptance of draft's and certification of checks.See 10 C. L. 973--An acceptance of a draft or check, as distinguished from a certification,80 does not discharge the drawer,81 but where the holder of a check has it certified by the drawer, the drawer and the indorsers are thereby discharged.82_

_Alterations.See 10 C. L. \*\*\*_--A material alteration,83 if unauthorized, invalidates the instrument 84 even in the hands of an innocent purchaser, unless it is otherwise provided by statute,85 but it seems that authority to alter may be implied.88 An indorser is not discharged by an alteration made prior to delivery of the paper and with his consent.87\_

_(SS 4) C. Reissue of instruments after discharge.88--When a note has been paid the maker may reissue it before maturity for a valid consideration,89 but a discharged note is not revived merely by indorsement and reissue by the party who effected the discharge,89 nor is such party paying entitled to subrogation to the rights of the payee.91 The holder of a check may have it certified, thus discharging the drawer and indorsers,92 and may then reissue it, thus constituting himself a new drawer.83_

_SS 5. Effect of negotiation or transfer. A. As to transfer of title.94--See 10 C. L. \*\*\*_--A transfer by indorsement vests the legal title in the indorsee,85 and in such case the equitable title is material only as affecting the right to assert defenses against the owner thereof.98 A pledge of a note as collateral vests the legal title in the pledge.97\_

_(SS 5) B. As to equities and defenses. 1. Doctrine stated.89--See 10 C. L. \*\*\*_--Except as to persons who come within the definition of bona fide holders here.\_

**So. Where holder of bank draft unindorsed part of joint notes given for purchase money by payee was assured by drawer that it of land were secretly transferred by vendor would be paid when properly indorsed by to one of makers, the subsequent assumption payee, but nothing was received by holder of payment of the purchase-money notes by in lieu of payment, the transaction was an acceptance and not a certification. Milmo maker to his interest in land and as part Nat. Bank v. Cobbs \[Tex. Civ. App.\] 115 SVW 345.**

_S1. Milmo Nat. Bank v. Cobbs \[Tex. Civ. App.\] 115 SVW 345._

_S2. Same as if check were cashed and money deposited with drawer. Blake v. Hamilton Dime Sav. Bank Co. \[Ohlo\] 87 NE 73._

_S8. Erasure of name of one of joint makers of note is a material alteration. CITIES' Sav. Bank v. Halstead \[Ind. App.\] 84 NE 1098._

_S1. Milmo Nat. Bank v. Cobbs \[Tex. Civ. App.\] 115 SVW 345._

_S2. Same as if check were cashed and money deposited with drawer. Blake v. Hamilton Dime Sav. Bank Co. \[Ohlo\] 87 NE 73._

_S3. Erasure of name of one of joint makers of note is a material alteration. CITIES' Sav. Bank v. Halstead \[Ind. App.\] 84 NE 1098._

_S4. First Nat. Bank v. Barnum, 160 F 245._

_S5. Repeat, 510 F 245._

_S6. First Nat. Bank v. Barnum, 160 F 245._

_S7. Luckenbach v. McDonald, 164 F 296._

_S8. Search Note: See Bills and Notes, Cent. Dig. $ 1223-1232; Dec. Dig. $ 440; 4 A. & E._

_S9. In such case he will be bound as effect._

_S8. In such case he will be bound as effect._

_S9. In such case he will be bound as effect._

_S9. Research Note: See notes in 16 L. R. A. Laton, 133 Mo. App. 163, 113 SVW 246._

after given,99 the negotiation or transfer of a negotiable instrument does not cut off or affect defenses thereto.1 As against such bona fide holders, the general rule is that defenses which do not negative the existence or legality of the contract sued on or the title to the instrument are cut off,2 but not defenses of the latter character.3 This rule, however, is not without exceptions and modifications, for the defense of lack or failure of consideration is cut off, regardless of any question of the effect of such defect as between the original parties,4 and the rule that fraud in the factum

Id. 434; 54 Id. 451, 678; 2 L. R. A. (N. S) 767; 4 | NWF 726. Fraud between drawer and drawero

Id. 1042; 5 Id. 628; 10 Id. 842; 13 Id. 426, 490. See, also, Bills and Notes, Cent. Dig. # 751, 792, 794-804, 937-943, 944-995; Dec. Dig. # 624, 111 NYS 927. Where drawer of check

8 314-330, 842-384; 7 Cyc. 816, 924; 4 A. & E. Enc. L. (2ed.) 282, 996, See post, this subsection, subdivision 2. Who are Bona Fide Holders. 1 L. Dewey V. Babbitt (Kan.) 100 P 77; Wilson V. Carter, 4 Ga. App. 349, 61 SE 494. Laws 1897, p. 732, 6, 612, 8, 97. Weiss V. Rieser, 114

NYS 983. Equitable set-offs and counter-claims available under St. 1898, 8 2656, subd. 31, in action by nonrefeliator. Piotrowski v. Czewinski \[Wys.\] 120 NWF 268. That note was indorsed to bank merely for collection. Johnston v. Schnabam \[Ark.\] 109 SVU 1163. Duress in inception of note. Siegel v. Oehl 110 NYS 916. Note executed in name of partnership by one partner not acting within scope of authority. King v. Meckelenburg, 43 Colo. 316, 95 P 951. Fraud and failure of consideration. Iowa Nat. Bank of Outmwa v. Sherman IS. D.\] 119 NWF 1010. Back of consideration. Tucker v. Michaels, 112 NYS 1044. 2. Howeli v. Merchants' Trust & Security Co., 134 Ill. App. 467; Hall v. First Nat. Bank \[Tex.\] 116 SVV 47, ag. \[Tex. Civ. App.\] 115 SWP 293; Bill v. Pate, 138 Ill. App. 428. Rev. Laws, c. 78, 69. Buzzell v. Tobin, 201 Mass. 1, 86 NE 923. Defenses between drawer and acceptor of draft not available against bona fide holder. Stouffer v. Erwin, 81 S. C. 541, 62 SE 843. Payment before transfer. Farmer v. First Nat. Bank \[Ark.\] 115 SWP 1141; Lander v. Meekler \[Tex. Civ. App.\] 111 SWP 752. Seems that where administrator of payee of accommodation note pays note and takes it from bank which has discountal it, and then negotiates it, purchaser gets good title and may enforce note against maker. Klein v. Runk, 114 NYS 1062. Where subtenant pays rent to principal tenant in notes, he takes risk of negotiation of notes and consequent liability both on notes and to owner in event of principal tenant's failure to pay rent. Simmons v. Council \[Ga. App.\] 63 SE 238. Composition between drawer and payee. Robertson v. Fowler, 136 Ill. App. 320. That payee, who was creditor of maker, failed to surrender notes of maker pursuant to agreement for composition with creditors pursuant to which note in suit was given. Mindlin v. Applebaum, 114 NYS 908. Collateral claim against bank cannot be set off against note in hands of bank's transference. Powers v. Wolfolk, 132 Mo. App. 354, 111 SWP 1187. Fraud in inducement. Sinnickson v. Riehter, 140 Ill. App. 212. Alleged fraud of attorney in securing notes for fees for services rendered to maker. Hames v. Stroud \[Tex. Civ. App.\] 112 SWP 775. Fraud inducing payee to indorse and transfer note. Graham v. Smith \[Mich.\] 15 Det. Leg. N. 933, 118 invalidates the contract even as against a bona fide holder' is subject to the qualification that as against an innocent party one guilty of negligence must suffer the consequences thereof, notwithstanding that fraud may have been practiced upon him,4 but this qualification is itself subject to the qualification that the innocent party is not entitled to protection unless he was induced to act by the negligence complained of.7 A fortiori the maker cannot set up his own fraud or wrong in executing the note as against an innocent holder.8 Where paper is payable to bearer, title thereto may be acquired even from one having no title,9 and it is held in Georgia that a purchaser for value of commercial paper from the apparent owner acquires a good title 10 even as against the true owner.11 A rule often applied in deciding a controversy between a holder of negotiable paper and a party who has given it apparent validity in the hands of one transferring it without right is that, when one of two innocent persons must suffer by reason of the wrongful act of a third party, the one must bear the loss who made it possible for the third party to

acceptor. Stouffer v. Erwin, SS1 S. C. 541, 62 SE 843; National Park Bank v. Saitta, 127 App. Div. 624, 111 NYS 921. Indrose of draft, having abundant chance to have paper read drawn by seller of goods to self or order and to him. First Nat. Bank v. Hall, 129 Mo. App. accepted by purchaser of such goods, held not 286, 108 SW 633. Where bank issued check affected by failure of consideration as beon savings deposit payable to its own relief, and later delivered it to person claiming to

Sav. Bank v. Kramer \[Ind. App.\] 86 NE 84. Where drawer authorized to draw for price

of car of oranges included other fruit in

and did not answer test questions, the bank

shipment but billed whole car as oranges,

was liable to one who cashed the check after

an innocent purchaser of draft with bill of

having used due diligence to ascertain his

lading attached took same free from defense

identity and who thereafter was compiled

of fraud or excess of authority on part of

drawer. First Nat. Bank v. Nigro & Co.

cherek having originally been delivered to

(Tax. Civ. App.) 130 SW 538.

S. Where maker did not intend to execute

instrument actually executed, is not cut off,

Sinnickson v. Hkicker, 140 Ill. App. 212. See

Rey. Laws 1905, & 2747, relative to signature

under erroneous belief or to nature of instru-

ment. Sibley County Bank v. Schaus, 104 Minn.

438, 116 NIV 928. Signature and Inforsement

of paye was either forged or obtained by fraud whereby paye was led to believe that

she was signing a paper other than note in

sult. Murphy v. Schoen, 135 Ill. App. 550. Acceptor of bill may take advantage of forgery as against holder claiming thereunder,

forged paye's indosement thereto and sold

Trust Co. of America v. Hamilton Bank, 127 App. Div. 515, 112 NYS 84.

**6.** To render fraud or circumvention a good

defense as against a holder in due course, the maker must have exercised reasonable

diligence and due care on his part, and this

is not done where he relles solely upon the

reading, explanation or statements of the

party procuring the execution of the note,

unless reasonable excuse be shown. Commercial State Bank v. Judy, 131 Ill. App. 35. Negligence in signing instrument under erroneous belief as to its nature. See First

State Bank of Pleasant Dale v. Borehers

\[Neb.\] 120 NNV 142; Sibley County Bank v.

Schaus, 104 MInn. 488, 116 NIV 928. Negligence In Indosing Instrument under erroneous belief as to its nature, Murphy v. Schoen, 135 Ill. App. 550. As between drawer

and innocent purchaser, former must suffer

any loss resulting from his own negligence

in issuing the bill issued to an imposter

check. Central Nat. Bank of Washington

City v. National Metropolitan Bank, 31 App.

D. C. 391. Maker held guilty of negligence

v. Poe \[Ga. App.\] 62 SE 826.

commit the wrong.\[12\] In Pennsylvania the defense of material alteration is unavailable against a bona fide holder,\[13\] and in Massachusetts delivery of the instrument is conclusively presumed in his favor.\[14\] Defects cured by way of ratification and defenses rendered unavailable by estoppel as between the original parties are, of course, unavailable against subsequent parties.\[15\]

The fact that a note is secured by a mortgage does not affect the rights of a bona fide purchaser,\[16\] though the existence of the mortgage is recited by the note,\[17\] but a transfer of assets in consideration of the assumption of liabilities saves all defenses against a note thus acquired by the transferee.\[18\] One purchasing from a bona fide holder stands in the shoes of the latter, regardless of his own independent status.\[19\] As against a holder, a guarantor's liability is coextensive with that of his principal.\[20\]

Defenses arising between the maker and payee after assignment and notice thereof to the maker are unavailable against the assignee,\[21\] nor are payments to the payee after the assignment binding upon the assignee,\[22\] even though the transfer is after maturity.\[23\] So, also, one making payments without requiring the production of the paper or other evidence that the party receiving payment still holds the paper does so at his own risk,\[24\] and the place of payment does not affect the maker's duty to see that the person to whom he makes payment has possession of the paper.\[25\] (SS 5B) 2. _Who are bona fide holders.\[26\] -See 10 C. L. \[81\]_

_In general.\[26\]_ to C. L. \[81\]\_

In order to invoke the doctrine applicable to bona fide holders,\[27\] the holder must have received the paper before its maturity,\[28\] in due course of business,\[29\] in exchange for a valuable consideration,\[30\] and in good faith,\[31\] without notice of defenses.\[32\]

12. Voss v. Chamberlain \[lowa\] 117 NW 269.

01. See P. L. Pa. 1901, p. 211, SS 125. First Nat. Bank of Wilkes-Barre v. Barnum, 160 F 245.

01. Rev. Laws, c. 73, SS 33. Buzzell v. Tobin, 201 Mass. 1, 86 NE 923.

01. See ante, SS 2. Contractual Elements, Requisites and Validity.

01. Rights upon note and upon mortgage are independent. Zollman v. Jackson Trust & Sav. Bank, 238 Ill. 290, 87 NE 297, aff. 141 Ill. App. 265.

01. Zollman v. Jackson Trust & Sav. Bank, 238 Ill. 290, 87 NE 297, aff. 141 Ill. App. 265.

01. Where incorporated bank assumed liabilities of private bank in consideration of transfer of assets of latter, note thus acquired by incorporated bank was subject to defense that it was delivered subject to condition which was never performed. Paulson v. Boyd, 137 WIs, 241, 118 NW 841.

01. Town of Fletcher v. Hickman \[C. C. A.\] 165 F 43; Rodriguez v. Merriman, 133 Ill. App. 373.

01. Guarantor of payment of draft held liable to innocent purchaser regardless of defenses between drawer and drawer. First Nat. Bank v. Nigro & Co. \[Tex. Civ. App.\] 110 SW 536.

01. Carlton v. Smith, 38 Ky. L. R. 647, 110 SW 873.

01. Powers v. Woolfolk, 132 Mo. App. 354, 111 SW 1187.

01. Powers v. Woolfolk, 132 Mo. App. 354, 111 SW 1187. Rev. St. 1899, SS 4488 (Ann. St. 1906, p. 2459), is inapplicable to negotiable paper even where past due. Id.

01. Becker v. Hart, 129 App. Div. 511, 113 NYS 1053.

01. Fact that note was payable at certain bank did not render payment to the bank effective as against transferee of note. Powers v. Woolfolk, 132 Mo. App. 354, 111 SWV 1187.

01. Search Note: See notes in 6 C. L. 792; 10 Id. 85; 46 L. R. A. 751; 11 A. S. R. 309; 37 Id. 458; 4 Ann. Cas. 353; 5 Id. 583; 8 Id. 186, 626; 9 Id. 340; 11 Id. 197, 206, 1151.

See, also, Bills and Notes, Cent. Dig. 85 793, SS 859-386; Dec. Dig. 85 831-361; 7 Cyc.

924.4 A. & E. En. L. (24), 283.

27. See ante, this subsection, subdivision I. Doctrine Stated.

01. King v. Mecklenburg, 43 Colo. 316, 95 P 951; Buzzell v. Tobin, 201 Mass. I, 86 NE 923.

Sajies' Ann. Cir. St 12 Cur. Law. Negotiable INSTRUMENTS SS 5B2. 1049

The holder is prima facie presumed to be a bona fide holder within the definition given above.\[33\] This presumption, however, may be overcome by the circumstances under which the instrument was executed or indorsed,\[34\] as where the instrument has its inception in fraud \[ss\] or dures,\[ss\] or where it is executed without due authority,\[37\] or where its negotiation or transfer is tainted with fraud,\[ss\] but such is not the effect of mere lack of consideration,\[ss\] or of defects of indorsements subsequent to the indorsement by which title is vested in the holder.\[ss\]

\_Title and possession.\_See 10 C. L. 851.--Formal indorsement of a note payable to order is essential to constitute the purchaser such a holder as to protect him from defenses already accrued to the maker against the payee.\[41\] Where the action is by the holder of the legal but not the equitable title, all defenses against the latter are available.\[42\] Delivery of the paper to an agent for a specific purpose does not

obtaining note available as defense against

11. App. 472; County of Prestdio v. Noel-one not receiving paper in due course. Siegl v. Oehl, 110 NYS 916. 20. - Comp. Laws 1907, $ 1611. Cole

01. Wuzzell v. Tobin, 201 Mass. 1, $8 NE

923; Iowa Nat. Bank of Ottumwa v. Sherman

11; Bank of Morehead v. Hermig, 220 Pa. \[S, D.\] 119 NW 1010. Only purchasers for full

224, 69 A 679.

value protected against defense of dures in

34. Custand v. Hodges \[Mich.\] 15 Det. Leg.

obtaining note available as defense against

107, 119 NWS 885.

13. Peffield Inv. Co. v. Bruce, 132 Mo. App.

01. Bellivered to third party as a loan, such

257, 111 SWS 885; City Nat. Bank of Column-party is not a holder in due course. Rosen-thal v. Parsont, 110 NYS 223.

31. Dures in obtaining note available as

269, 115 NWS 883;

270, 201 Mass. 1, $6 NE

282; Iowa Nat. Bank of Ottumwa v. Sherman

294, 69 A 679.

295, 111 SWS 1010. Only purchasers for full

304. Custand v. Hodges \[Mich.\] 15 Det. Leg.

obtaining note available as defense against

257, 111 SWS 885.

296, 111 SWS 885.

297, 111 SWS 885.

308, 111 SWS 883; City Nat. Bank of Column-party is not a holder in due course. Rosen-thal v. Parsont, 110 NYS 223.

31. Dures in obtaining note available as

322, 111 SWS 111.

333, 111 SWS 883;

344; Buse v. First State Bank of Red Lake

350, 62 SE 738; Forbes v. First Nat. Bank

362. Buzzell v. Tobin, 201 Mass. 1, $6 NE 928.

001. Puzzell v. Tobin, 201 Mass. 1, $6 NE 928.

001. Notice of defense before transfer of note rean-

390, 62 SE 738; Forbes v. First Nat. Bank

391. Buzzell v. Tobin, 201 Mass. 1, $6 NE 928.

001. Buzzell v. Tobin, 201 Mass. 1, $6 NE 928.

001. Notice of defense before transfer of note rean-

394, 69 A 679.

409, 69 A 679.

410, 69 A 679.

42, 69 A 679.

50, 62 SE 738; Forbes v. First Nat. Bank

510, 62 SE 738; Forbes v. First Nat. Bank

52, 111 SWS 978; Royal Bank of New York

52, 111 SWS 883;

539, 62 SE 738; Forbes v. First Nat. Bank * 1050 NEGOTIABLE INSTRUMENTS SS 5B2. **12** Cur. Law.

- 1060 ordinarily constitute surrender of possession as a holder.\[43\] The holder of paper showing no defect in its negotiation as transfer is presumptively the owner,\[44\] but such presumption is rebuttable,\[45\] and is overcome by proof that the instrument was stolen or otherwise appropriated in fraud of the owner's rights.\[46\] Possession of unindorsed paper payable to another raises no presumption of ownership.\[47\] Nor does such presumption dispense with the necessity of proving the genuineness of an indorsement when the same is properly put in issue.\[46\]
- 1070 10 C. L. **683**--An undated indorsement **49** is presumptively of a date prior to the maturity of the instrument,\[50\] and while such presumption is rebuttable,\[51\] it is not rebutted by any presumption of continuance of ownership by the payee.\[52\] Where paper is payable in instalments, a purchase after some of the instalments have become due is a purchase after maturity.\[53\]
- 1080 10 C. L. **683**--Due course is sometimes defined as including all the other elements of bona fide holdership **54** as defined above.\[55\] More narrowly defined, it means usual course of business.\[56\]
- 1090 10 C. L. **683**--Value is any consideration sufficient to support a simple contract.\[57\] In other words the purchaser is deemed to pay value where he gives money, goods or credit at the time of receiving the instrument, or on account thereof sustains loss or incurs liability.\[58\] Where a purchaser of a negotiable instrument gives the holder an ordinary bank draft therefor, payment is complete as soon as the draft passes beyond the buyer's control.\[59\] It is sometimes broadly held that receipt of commercial paper as collateral security for an antecedent debt is a taking for value.\[60\] Holdings to such effect, however, are usually expressly based upon statutory provisions,\[61\] and the general rule seems to be otherwise in the absence of such provision.\[62\] Under this rule there must be some further consideration, such as a cancellation of the previous debt,\[58\] or an extension of the time of payment thereof.\[54\] It is generally held that there is a taking for value where the paper
- 1080 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 NW 117 117 NW 117 117 NW 117 117 NW 117 11 12 Cur. Law. Negotiable instruments SS 5B2.1051

is received in payment of or as a payment upon an antecedent debt," or when the time of payment of such debt is extended," or when other security is surrendered upon receipt of the paper." Merely crediting a depositor with the proceeds of a note discounted does not constitute the bank a holder for value," but it is otherwise where the proceeds so credited are subsequently actually paid to the depositor or his order," or where the credit to the depositor of the note is given by the purchaser, not on its own books but in a different, solvent bank," or where a bank receives a certified check for deposit." It is held that where a bank discounts a draft for the drawer and credits him with the face value thereof the bank acquires the paper by purchase."

The holder is prima facie presumed to be a holder for value."

\_In good faith and without notice.\_See 10 C. L. 981--A distinction is sometimes made between notice which makes the purchaser a party to fraud and notice which merely brings home to him knowledge of prior equities and defenses." Failure to regard this distinction has led to considerable confusion in the past," and may be responsible for the present lack of unanimity on the subject of bad faith and notice, which is almost as pronounced as it was under the early English and American cases." The tendency to disregard such distinction is so universal, however, that it is now of small practical value, and the cases must be grouped under two more or less conflicting doctrines. Under the minority doctrine a purchaser having knowledge of facts sufficient to put an ordinarily prudent man upon inquiry is charged with knowledge of all the facts which an inquiry would have revealed," and it is even held

after date is not such an extension of time being that proceeds of discount may be by creditor as will constitute consideration credited to bank by making change of enforces pager delivered as collateral to secure Co. v. Hall \[Tenn.\] 108 SW 1068.

being in practical effect payable presently. V. Street, $1 App. D. C. 437.

Walker v. Harris' Extra \[KY.\] 114 SW 775.

Bank is purchased for value to extent that 65. Hamilton v. Brown \[Ark.\] 113 SW 1014;

Second Nat. Bank of Monmouth, Ill. v. Sno-qualmic Trust Co. \[Neb.\] 120 NW 182. See

Lew 1897, T. 727. 612, $ 51. Mindlin v. Applebaum, 114 NYS 908.

66. Where note is assigned to bank as security for debt in excess of amount of note, in consideration of extension of time on such debt. Farmer v. First Nat. Bank \[Ark.\] 115 SW 1141.

01. Zollman v. Jackson Trust & Sav, Bank, 238 Ill. 290, 87 NB 297, afg. 141 Ill. App. 265.

Transference taking collateral by way of substitution for other collateral surrendered become holder for value. Voss v. Chamberlain \[Iowa\] 117 NW 295. Where holder of note accepts curtailment and takes new note with indorsement thereon, he is holder for value. Van Norden Trust Co. v. Rosenberg, 114 NYS 1025. Where creditor had already in effect released one of two joint debtors and was looking to one alone for payment, the formal release of the former did not consitute consideration for paper delivered as collateral for the joint debt. Walker v. Harris' Extra \[KY.\] 114 SW 775. Under Rev., 73, $ 42, providing that antecedent debt constitutes value, release of indorserer on a forged instrument constitutes "value."

70. F.

by very respectable authority that failure to make inquiry in such case is a badge of fraud \[78\] and itself constitutes bad faith where an inquiry would have discovered the real situation. \[79\] A fortiori a purchaser cannot successfully claim to be an innocent purchaser where he purposely refrains from making an inquiry suggested by the circumstances. \[80\] The object of the inquiry, however, is not to discover negative facts, or such as would arouse suspicion, but positive facts which would allay the suspicion already aroused, \[81\] and if no inquiry is in fact made to dispel the presumption raised by circumstances, but reasonable inquiry would have led to the discovery of facts which have dispelled it, the purchaser of the paper is entitled to the benefit thereof the same as if he had learned them by proper investigation, \[82\] the correlative of this benefit being the burden of responsibility for such unfavorable facts as reasonable inquiry would have discovered in relation to the defect that made inquiry necessary. \[83\] On the other hand, the majority doctrine, which prevails in many of the states and into the statutes of some of which it has been carried, is that notice or bad faith cannot be predicated upon suspicious circumstances, \[84\] negligence, \[85\] or even gross negligence \[86\] actual knowledge or circumstance so cogent as to make the taking itself an act of bad faith being essential to defeat the holder's claim of bona fide holdership without notice, \[87\] and circumstances short of this being merely evidence to be considered in the determination of the issue. \[88\] Under this rule, ordinarily, where commercial paper is offered in the usual course of business, the purchaser need not make inquiry as to its ownership when the transac tion appears on its face to be regular," but if the purchaser knows or has reasonable cause to believe that the apparent owner is not the true owner, and enters into privity or participation in the fraud upon the true owner, the purchaser's title is defeasible." No imputation of notice or bad faith can be predicated upon facts consistent with regularity of the paper and the transfer thereof.\[91\] The purchaser is charged with notice of matters appearing upon the paper itself,\[92\] but the inference to be drawn from the fact of such notice depends, of course, upon the nature of the matter upon which the inference is sought to be based.\[98\] Paper showing on its face that it is issued pursuant to a certain statute carries with it notice as to the invalidity of such statute so far as such invalidity will be disclosed by examination of the legislative records,\[94\] but the purchaser need not ordinarily inquire as to whether general, statutory limitations as to amount have been exceeded in the issue of the paper." Notice to an agent is notice to the principal." Notice to a corporation is not notice to a stockholder personally," but notice to officers as such is notice to the corporation.\[98\]

**89.** Third Nat. Bank of Columbus v. Poe \[ face of paper does not carry with it notice of failure of the consideration, nor does it ipso-facto put purchaser upon inquiry. Simmons \[Ga. App.\] 62 SE 826.

**90.** Third Nat. Bank of Columbus v. Poe \[ facte put purchaser upon inquiry. Simmons \[Ga. App.\] 62 SE 826.

**Reasonable cause to believe is not, how-ever, synonymous with reasonable cause to suspect. Third Nat. Bank of Columbus v. Poe \[Ga. App.\] 62 SE 826.**

**91.** Fact that note was executed by partners individually and indorsed by him first individually and then in partnership name raised no conclusive presumption that in-dorsement was for accommodation of maker or that money received was for his private use. Feigenspan v. McDonnell, 201 Mass 441.

**87 NE 624.** Notice that note was given for building loan on building in course of construction held not notice that money had not been transferred in settlement of part-been or would not be paid over. Zollman v. Jackson Trust & Sav. Bank, 141 Ill. App. 285, afd. 238 Ill. 290, 87 NE 297. Fact that purchaser of notes given for corporate stock purchased from agent of corporation's presl-dent was director of corporation and member of its executive committee which placed matter of stock sales in hands of president held not inconsistent with purchaser's ignor-matter of fraudulent representations inducing irregularities in this regard. Hunter v. Al-purchase of stock. Reilly v. McKinnon \[C. C. L.\] 159 F 78. Bank purchasing from the president of another bank acting in his off-clal capacity notes drawn to the president in his individual capacity as payee, and in-dorsed by both bank and president, had a right to assume that title to notes was in bank, since president acted within the scope of his duties, and fact that notes were drawn in his name was consistent with bank's ownership. State v. Corning State Sav. Bank \[Iowa\] 115 NW 937. Irregularity in numbers and similarity in signatures or notes held not sufficient to put purchaser on inquiry. Id.

**92.** One taking a note on which place of payment has been changed cannot avoid defense that change was unauthorized. First Nat. Bank of Wilkes-Barre v. Barnum, 160 F 245. It is no defense to material alterations in printed portions of the notes to say that they are in the handwriting of the maker, the same as the rest of the written parts, dispelling suspicion and thereby doing away with the necessity of inquiry. Id.

**93.** Fact that consideration is set forth on The notice which defeats a claim of bona fide holdership is notice prior to or at the time of the purchase," but within this rule the purchase is not deemed complete until payment for the note has been made.1 Notice to an indorser will not be imputed to his indorsee," but the indorsee succeeds to the title and rights of the indorser regardless of his own knowledge."

A purchase is presumed to be in good faith and without notice,4 but the presumption is merely prima facie * and may be rebutted," but no presumption of notice prior to purchase can be indulged from the mere fact of notice without reference to the time when such notice was had," and the fact that the purchaser does not expressly state that he purchased in good faith does not necessarily negative good faith," but is a fact to be considered in connection with other circumstances." Where the paper is shown to have had its inception in fraud, the presumption of lack of notice fails.10

(SS 5B) 3. _Rights of holder of accommodation paper.11-See 10 C. L. 979, 884_

Where the instrument is valid between the maker and the holder, it is binding on accommodation indorser,12 and an accommodation party is liable to the holder regardless of the latter's knowledge that the former is merely an accommodation party.13 Ignorance of the accommodation character of the paper cuts off any defense based upon the nature of the paper,14 and where a note is indorsed in blank for accommodation and delivered to the party accommodated, as between the indorser and a bona fide purchaser the former is liable upon the note as filled out by the party accommodated, regardless of any excess of authority upon the part of such person,14 but this rule does not apply where the paper has been materially altered.16 As in other cases, the holder must pay value for the paper 17 and acquire the same before maturity.18

Footnote 18: The author is indebted to the author.

97. Where stockholder purchased note pay-

Institution of the suit, and it did not appear able to corporation, he is not charged with notlee of payment to corporation. Landa v.

could be no presumption of knowledge of Mechler \[Tex. Civ. App.\] 111 SVW 752.

98. Notice to cashler of bank notice to bank notice to bank. Hunter v. Allen, 127 App. Dlv, 572, 111 NYS 820. Where corporation organized to succeed to business of another corporation has same officers as old corporation, 11.

01. Search Note: See notes in 2 L. R. A. (N. Knowledge of such officers, acquired in con- duct of business of old corporation, as to note acquired from such corporation, is imputable to new corporation. Knowledge that defunct bank had received payments on note and had not credited there. Wave v. First State Bank, 106 Minn. 323, 117 NW 490.

01. Purchaser not affected by subsequent notice of fraud of seller in securing check. Blake v. Hamilton Dime Sav. Bank Co. \[Ohio\] 87 NE 73.

01. Knowledge of defense before payment for note will defeat claim of good faith, though note indorsed and delivered before such knowledge is acquired. Walters v. Rock \[N. D.\] 115 NWV 511.

01. Heinbach v. Doubleday, Page & Co., 114 NYS 278: Lasechninsky v. Margolls, 129 App. Div. 529, 114 NYS 296.

01. See ante, this subsection and subdivision, In General.

01. Johnson County Sav. Bank v. Kemp Mercantile Co. \[Tex. Civ. App.\] 114 SVW 402. See ante, this subsection and subdivision, In General.

5, 6. Walters v. Rock \[N. D.\] 115 NWV 511.

7. Where it appeared that plaintiff had no knowledge of other suits upon acceptances similar to the one sued on until after the 12 Cur. Law. Negotiable Instruments SS 6A. 1055 (SS 5B) 4. \_Exent of recovery by holder. \[10\]\_See 10 C. L. 884--The fact that the purchaser pays full value for the note does not entitle him to collect the full value where he purchased with notice of payments not credited. \[10\] An innocent purchaser who has suffered by reason of the negligence of the maker in issuing the paper cannot recover the expense of an unjustifiable defense of a suit against him by a subsequent indorsee. \[21\] The extent of recovery by the holder is sometimes limited by statute in certain cases. \[22\]

SS 6. \_Remedies and procedure. A. Remedies. \[23\]\_See 10 C. L. 887_What remedies are available. \[88\]\_See 10 C. L. 887--Where a debt is extinguished by a note, \[24\] the remedy of a payee, who has been compelled to take up the note from an indorsee thereof, against the maker, is on the note and not on the original debt. \[25\] Since an indorser is liable only in the event of default of the maker, etc, \[29\] a holder who is also a maker cannot maintain an action on the note against an indorser, \[21\] although the note was made for the accommodation of the indorser. \[28\] The remedy of an accommodation party who has paid the note is by action for money paid to the use of the party accommodated. \[29\] An action will lie for the wrongful negotiation of negotiable paper. \[30\] Aside from the rights of bona fide holders, the drawer of a check may stop payment thereon. \[31\] The payee of a check may sue the drawer thereon as upon a promissory note, \[32\] or he may sue upon the debt evidenced by the check \[33\] where the drawer refuses to honor the check. The jurisdiction of equity to establish test instruments may be invoked with reference to negotiable instruments. \[34\]

\_Statutory limitations. \[88\]\_See 10 C. L. 888--Limitation begins to run against the remedy of an accommodation indorser against the maker from the time of payment by the indorser, and not from the date of maturity of the note. \[88\] Special limitations are imposed in some states. \[39\]

\_Indemnification in suit on lost instrument. \[88\]\_See 10 C. L. 888--In a suit on a lost instrument, indemnity will be required unless it appears with certainty that no loss can result. \[37\]

against the maker. \[30\]\_Zs. Malex's remedy is by action for money paid. \[31\]\_Zs. Malex's remedy is by action for money paid. \[32\]\_Zs. Malex's remedy is by action for money paid. \[33\]\_Zs. Malex's remedy is by action for money paid. \[34\]\_Zs. Malex's remedy is by action for money paid. \[35\]\_Zs. Malex's remedy is by action for money paid. \[36\]\_Zs. Malex's remedy is by action for money paid. \[37\]\_Zs. Malex's remedy is by action for money paid. \[38\]\_Zs. Malex's remedy is by action for money paid. \[39\]\_Zs. Malex's remedy is by action for money paid. \[39\]\_Zs. Malex's remedy is by action for money paid. \[39\]\_Zs. Malex's remedy is by action for money paid. \[39\]\_Zs. Malex's remedy is by action for money paid. \[39\]\_Zs. Malex's remedy is by action for money paid. \[40\]\_Zs. Malex's remedy is by action for money paid. \[41\]\_Zs. Malex's remedy is by action for money paid. \[42\]\_Zs. Malex's remedy is by action for money paid. \[43\]\_Zs. Malex's remedy is by action for money paid. \[44\]\_Zs. Malex's remedy is by action for money paid. \[45\]\_Zs. Malex's remedy is by action for money paid. \[46\]\_Zs. Malex's remedy is by action for money paid. \[47\]\_Zs. Malex's remedy is by action for money paid. \[48\]\_Zs. Malex's remedy is by action for money paid. \[49\]\_Zs. Malex's remedy is by action for money paid. \[40\]\_Zs. Malex's remedy is by action for money paid. \[41\]\_Zs. Malex's remedy is by action for money paid. \[42\]\_Zs. Malex's remedy is by action for money paid. \[43\]\_Zs. Malex's remedy is by action for money paid. \[44\]\_Zs. Malex's remedy is by action for money paid. \[45\]\_Zs. Malex's remedy is by action for money paid. \[46\]\_Zs. Malex's remedy is by action for money paid. \[47\]\_Zs. Malex's remedy is by action for money paid. \[48\]\_Zs. Malex's remedy is by action for money paid. \[49\]\_Zs. Malex's remedy is by action for money paid. \[40\]\_Zs. Malex's remedy is by action for money paid. \[41\]\_Zs. Malex's remedy is by action for money paid. \[40\]\_Zs. Malex's remedy is by action for money paid. \[41\]\_Zs. Malex's remedy is by action for money paid. \[42\]_Zs. Malex's remedy is by action for money paid. \[43\]_
1056 Negotiable Instruments $ 6B. 12 Cur. Law.

(SS 6) B. Parties. 38 See 10 C. L. 088

PlaintiffSee 10 C. L. 088

At common law a chose in action could not be transferred or assigned so that the transferee or assignee could maintain an action thereon in his own name, but by the law merchant or the customs of merchants a transferee of negotiable paper may sue thereon in his own name. 39 Accordingly, where the instrument shows an assignment by indorsement, it is improper to sue in the name of the payee for the use of the assignee. 40 The holder of the legal title may sue in his own name 41 without regard to the equitable title exept as affecting the right to assert defenses against the owner thereof, 42 and without regard to indorsenents through which he does not derive title. 43 By statute in some states the real party in interest may sue, 44 but such statutes do not, it seems, preclude a suit by the holder of the legal title. 45

Defendant. See 10 C. L. 088

Parties primarily liable may be sued contemporaneously with parties secondarily liable, 48 but, in the absence of statutory authority, not jointly, 47 even though the secondary party is sought to be held as a principal party. 48 A joint suit may, of course, be authorized by statute, 49 or such a joinder may even be required. 50 The holder cannot join the maker and one who received payment from the maker after the assignment to the holder. 51 In an action by an assignee of a note against the maker, the defendant cannot recover on a counterclaim against the plaintiff's assignor any sum greater than the amount of the notes sued on with interest, the plaintiff's assignee not being a party. 52 In an action on a negotiable instrument by a trustee, the beneficiaries are necessary parties. 53 The nonjoinder of the de 12 Cur. Law. Negotiable Instruments SS 6C. 1057

fendant's copromisor in a suit on a contract of indorsement can be taken advantage of only by an answer in abatement.\[54\]

(SS 6) _C. Pleading._ \[56\] See 10 C. L. 1988

_In general._ See 10 C. L. 1988\_--Nonconformity of a note to the agreement of the parties as to what it should contain is properly pleaded by setting out the note in haec verba and then pleading the real intent.\[56\]

_Declaration or complaint._ \[56\] 10 C. L. 1989\_--The instrument sued on must be properly alleged or described,\[57\] and a recovery can be had only upon the instrument alleged,\[58\] though the defendant admits liability on some other instrument.\[59\] Where the paper is alleged according to its substance and effect, a verbal variance is not necessarily fatal.\[60\] A negotiable note may be declared on as a promissory note where it is fully described so as to show its negotiability.\[61\] Where a declaration is on the common counts and does not refer to the note, the latter is no part of the declaration though a copy thereof is annexed as a bill of particulars.\[62\] The plain-tiff may declare in one count upon a renewal note, and in another count upon the original note,\[63\] and where but one recovery is sought no election is required.\[64\] Considerable discretion is vested in the court with reference to amendments as to the description of the instrument.\[65\]

A certain amount due from the defendant to the plaintiff must be alleged,\[66\] but a promise to pay need not be alleged specifically.\[67\] The allegation of the promise may follow the allegation of the instrument and be connected therewith by the word "whereby." \[68\] Nonpayment need not be alleged specifically.\[69\] The consideration of the paper need not be alleged.\[60\] In an action by the payee of a note, the plaintiff's

54. Not available as defense at trial on meridits. Feigenspan v. McDonnell, 201 Mass. \[62\], Mayer v. Roche \[N. J. Law\] 69 A 246. \[63\], S8. Search Note: See Bills and Notes, Cent. \[64\], G4. Farmers' Sav. Bank v. Arispe Mer-Dlg. \[65\] 1444-1642; Dec. Dig. \[66\] 461-489; \[67\], Cye. \[68\], 14 A. & E. Enc. P. & P. 462-686. \[69\], S6. Note was set out in full, and then it was alleged that certain stipulations should have been erased. Drake v. Pueblo Nat. \[60\], V. Puesy \[68\], D. 116 NW 1126. \[60\], S7. In action on note, a copy thereof must be etated. Keys v. Keys' Estate \[Mo.\] 116 SWV 537. \[60\], S8. Cleveland v. Taylor \[Tex. Civ. App.\] \[61\], S8. Cleveland v. Taylor \[62\], Civ. App.\] \[63\], S8. Event \[64\], S8. Event \[65\], S8. Event \[66\], S8. Event \[67\], S8. Event \[68\], S8. Event \[69\], S8. Event \[69\], S8. Event \[69\], S8. Event \[69\], S8. Event \[69\], S8. Event \[69\], S8. Event \[69\], S8. Event \[70\], S8. Event \[71\], S8. Event \[72\], S8. Event \[73\], S8. Event \[74\], S8. Event \[75\], S8. Event \[76\], S8. Event \[77\], S8. Event \[78\], S8. Event \[79\], S8. Event \[80\], S8. Event \[70\], S8. Event \[71\], S8. Event \[72\], S8. Event \[73\], S8. Event \[74\], S8. Event \[75\], S8. Event \[76\], S8. Event \[77\], S8. Event \[78\], S8. Event \[79\], S8. Event \[70\], S8. Event \[71\], S8. Event \[70\], S8. Event \[71\], S8. Event \[72\], S8. Event \[73\], S8. Event \[74\], S8. Event \[75\], S8. Event \[76\], S8. Event \[77\], S8. Event \[78\], S8. Event \[79\], S8. Event \[70\], S8. Event \[71\], S8. Event \[72\], S8. Event \[73\], S8. Event \[74\], S8. Event \[75\], S8. Event \[76\], S8. Event \[77\], S8. Event \[78\], S8. Event \[79\], S8. Event \[70\], S8. Event \[71\], S8. Event \[70\], S8. Event \[71\], S8. Event \[72\], S8. Event \[73\], S8. Event \[74\], S8. Event \[75\], S8. Event \[76\] ownership of the paper need not be alleged specifically,"11 and so, also, in any action against the maker, the character of the indorsement is immaterial, provided it be sufficient to transfer title to the plaintiff."12 In suing on an accepted draft, it is unnecessary to allege that the acceptor had funds belonging to the drawer 78 or that the holder was induced to buy the draft from the drawer by any act of the drawe.79

One sued in a secondary capacity cannot be held liable in a primary capacity," or in any capacity other than that alleged." In such an action the contract sued on must be sufficiently alleged,"13 and also performance of the conditions of secondary liability,"14 or facts excusing such performance." Protest fees are recoverable in a suit on a promissory note on the common counts.80 In an action upon a contract of indorsement, the indorsement must be alleged.81 It is not necessary in a suit by the holder or payee against the maker and an irregular indorser to render the latter liable as a maker, to allege either that such indorsement was prior to delivery of the paper,"15 or that the plaintiff has elected to treat the indorser as a maker.82 In declaring against indorsers, whose names are found on the back of the paper upon its delivery to the payee, as original promisors, a promise to pay must be alleged.84

No recovery can be had upon a collateral agreement unless the same is specifically alleged,85 and in order to recover upon a stipulation for the payment of attorney's fees upon certain contingencies, the happening of such contingencies must be alleged.86

Footnote 85: This is not the case for the case of a _not_ reason why the payment is not allowed.

71. Suffices, as to title, to aver that defendant by the note promised to pay plaintiff amount named in note, no indorsement thereof being disclosed, Duty v. Sprinkle \[W. Va.\] 60 SE 882; Boyd v. Beebe \[W. Va.\] 61 SE 304; Quesenberry v. Wood \[W. Va.\] 60 SE 881.

01. Under Practice Book 1908, p. 245, $ 149, providing that immaterial variances must be disregarded. E. L. Cleveland Co. v. Chittenen den \[Conn.\] 71 A 935. Allegation of transfer does not necessarily import special indorsement by transferred, especially where not, indorsed in blank, is annexed to and made part of complaint. Id.

73, 74. Milmo Nat. Bank v. Cobbs \[Tex. City. App.\] 115 SW 345.

75. Indorser sued as such cannot be held primarily liable by reason of assumption of debt. Jordan v. Reed \[N. J. Err & App.\] 71 A 280. Complaint upon a contract of Horsement excludes all issues as to liability of defendant as maker. Roessle v. Lancaster, 114 NYS 837.

01. Where plaintiff declares upon contract of indorsement expressly rendering defendant liable to pay note on demand, defendant cannot be held as guarantor. Clymer v. Terry \[Tex. Civ. App.\] 109 SW 119.

01. Mitake in declaration as to order of indorsements held cured by particulars of demand which showed defendant to be first indorser. Richards v. Street, 31 App. D. C. 427.

01. One seeking to recover upon contract of indorsement must aver the facts upon which the indorser' liability depends. Link v. Bergdoll, 35 Pa. Super. Ct. 155. Must allege protest and notice. Grimes v. Tait \[Okl.\] 99 P 810. Allegation that notice of \[Okl.\] 99 P 810. Allegation that notice of dishor was served on endorser's employe at former's place of business, held sufficient allegation of service upon agent authorized to receive service. Searchorship v. City Nat. Bank \[Ala.\] 48 S 62. Complaint against in-between-

## 12 Cur. Law. Negotiable Instruments $ 6C.

In view of the presumption in favor of the holder," allegation that the plaintiff is a bona fide holder would seem to be unnecessary, but the practice seems to be otherwise.\[88\] A complaint against the drawer showing that the bill was paid by the drawee to the wrong person, after the expiration of a period which ordinarily would constitute due course, and under circumstances calculated to excite suspicion, sufficiently presents an issue of fact as to payment in good faith and in due course."

\_Plea or answer.\_See 10 C. L. 000.--As a general rule statutory defenses must be specially pleaded," as must also all collateral agreements or stipulations not sued on,"1 fraud,"2 mistake,"9 or payment." Failure of consideration must usually be pleaded specially," but this rule is not of universal application." and is subject to more or less restricted exceptions in some states." The consideration is not put in issue by a mere denial of indebtedness upon the instrument sued on " or by an allegation of incapacity to execute the paper." A plea of total failure of consideration or total want of consideration fails where the evidence shows any consideration

should be placed in hands of attorneys. 62 SE 198. Plea that paper is not what it Smith v. Chlida \[Tex. Civ. App.\] I15 SW 598.

Palimly purports to be will be stricken. Id.

## 13 Set. See ante $ 5B2, Who are Bona Fide Holders.

**ss. Uniform practice in suts by indorace**

**ss.** Uniform practice in suts by indorace\*\*

**against maker to aver that plaintiff took**

**note before maturity and is bona fide holder for value. Bank of Morehead v. Nerning, 220 Pa. 24, 69 A 679. In absence of such allegation, an answer averting that note**

**being stated and it being also alleged that was taken after notice of the payee's defective title, and that little or no consideration passed, is sufficient to put plaintiff on proof of bona fide transaction. Id. This is common-law rule and obtains under act. Id.**

**ss.** Allegation that express company in New York Issued money order to Tong Sins\*\*

**wo Kee on bank at Hong Kong, that same was sent by registered mail to him but did not reach him, and that payment was made to another person upon indoragement of Tong Sing Wo Kee, sixty days after date of instrument and when same was in battered condition, held sufficient on demurrer for insufflecency. Moy Sie Tighe v. Fargo, 61 Misc. 181, 11XYS 927.**

**ss.** Failure to list note for taxation under Revisal 1905, $ 5219, subd. 11, and Acts 1907, p. 339. 0, 258, 3 2. Martin v. Knight, 147 N. C. 564, 61 SE 447.

**ss.** Where defendant, maker of note sued on, pleaded that he was not bound, either as principal or surety, and there was nothing to show that he was married or possessed of community property, he could not invoke the laws applicable to community property and suretyships in order to let in evidence of a fraud, collateral agreement limiting his liability. Anderson v. Mitchell \[Vwash.\] 98 F 751. Answer alleging agreement to extend time of payment until such time as defendant could pay out of his business must allege facts showing that such time has not arrived. First State Bank v. Schatz, 104 I Minn. 425, 116 NIV 927. Division of accommodation paper must be pleaded. Macauley v. Holsten, 114 NYS 611.

**ss.** No issue of fraudulent representations raised by allegation of misapprehension of terms of note. Winn v. Neville \[Kan.\] 98 F 272.

**ss.** Dolvin v. American Harrow Co. \[Ga.\] 62 SE 198. Plea that paper is not what it plainly purports to be will be stricken. Id.

**ss.** Plan allegation that note sued on was given as se-equity for performance of obligation by third person and that such person had always been ready and willing to perform such obligation states a good defense as against a general demurrer, notwithstanding.

**ss.** Failure to allege expressly plaintiff's removal to accept performance by person whose obligation was secured by note sued on. Landrum v. Stewart \[Tex. Civ. App.\] I11 SW 169. Plea alleging that defendant is an accommodation maker and that paper has been paid by party accommodated states only one defense, that of payment, and is not open to objection that it pleada inconsistent defenses of lack of consideration and payment. Jacobs v. Pierce, 132 III. App. 547.

**ss.** Dalfwin v. Self \[Tex. Civ. App.\] I14 V 471. Sout v. Rawla \[Lai.\] 48 S 710. Plea held sufficient. Baldwin v. Self \[Tex. Civ. App.\] I114 NYS 427.

**ss.** Where a note is introduced under commu counts, defendant may show lack of consideration without any special plea to that effect. Clarke v. Newton, 235 III. 530, 85 NE 747. Where note is pleaded as set off, and its execution to defendant is alleged, thus giving rise under B. & C. Comp. $ 788, subd. 21 to a rebuttable presumption of consideration, a general denial of consideration raises issue of lack of consideration. Bocthe v. Farmers' & Traders' Nat. Bank \[Or.\] 98 P 509.

**ss.** Under plea of general issue only completeat all,1 and there is a fatal variance where a plea alleges failure of a common consideration for several notes sued on and the proof shows that the consideration for one of the notes was other than that so alleged.2 The maturity of a debt assumed by the payee in consideration of the note need not be alleged in order to render his failure to pay such debt available as a defense.8 A plea of lack of consideration is insufficient to present an issue of diversion.4 Set-offs and counterclaims are pleaable according to statutory authority,5 but must be specifically pleaded.6

form in which it is pleaded." Where an allegation is denied of record by virtue of statute, no pleaded denial is necessary.20

Reference in a plea to an exhibit as being referred to in the declaration is unavailing where the declaration makes no such reference.21 Matters relating to amendment of the defendant's pleadings are, as in other cases, largely within the discretion of the court.22

Affidavits of defense partake of the nature of pleadings and are interpreted as such.23

\_Reply.--\_A plea of payment needs no reply.24 In response to a plea of no consideration, the plaintiff is not bound to allege the consideration.25 Where the plaintiff declares as the payee of a bill of exchange, a replication alleging purchase after acceptance constitutes a departure.26 Where a negotiable instrument is pleaded by the defendant as set-off, the plaintiff's reply is in the nature of a plea or answer.27

(SS 6) _D. Province of court and jury.28_-See 10 C. L. 800--As in other cases,29 questions of law are for the court and questions of fact for the jury,30 and within this rule a question of law only is presented where the facts are established beyond dispute and only one reasonable inference can be drawn therefrom,31 but where there is a conflict in the evidence or in the inferences deducible from the facts proved, a question of fact is presented to be determined by the jury.32

Footnote 28: See 10 C. L. 800--As in other cases,29 questions of law are for the court and questions of fact for the jury,30 and within this rule a question of law only is presented where the facts are established beyond dispute and only one reasonable inference can be drawn therefrom,31 but where there is a conflict in the evidence or in the inferences deducible from the facts proved, a question of fact is presented to be determined by the jury.32

Footnote 29: See 10 C. L. 800--As in other cases,29 questions of law are for the court and questions of fact for the jury,30 and within this rule a question of law only is presented where the facts are established beyond dispute and only one reasonable inference can be drawn therefrom,31 but where there is a conflict in the evidence or in the inferences deducible from the facts proved, a question of fact is presented to be determined by the jury.32

Footnote 30: What constitutes bona fide holdership is question of law, but the sufficiency of evidence to show facts upon which court's conclusion is predicated is for jury. And v. Heckert \[Md.\] 70 A 416. What constitutes due diligence in giving notice to indorser is question of law. Vogel v. Starr, 132 Mo. App. 430, 112 SW 27.

Footnote 31: There being nothing to discredit or contradict plaintiff's evidence showing it to be a bona fide purchaser for value without notice, directed verdict for it was proper. Second Nat. Bank v. Snoqualime Trust Co. \[Neb.\] 120 NW 182. Direction of verdict for plaintiff on issue of notice of defenses at time of purchase held proper, evidence adduced by defendant to show such notice being insufficient. Hall v. First Nat. Bank tefl, 221 Pa. 36, 69 A 1124. Allegation that defendant delivered note to plaintiff corroboration?'s treasurer to be delivered by him in escrow to third person, and that such treasurer delivered it to plaintiff, held sufficient allegation of nondeivery. Id. Allegation that "no notice of the dishonor or protest of said note was given to this deponent by the plaintiff in this case, or the notary who is alleged to have protested the same or any one on the occurrence of such dishonor or protest or at any time until the bringing of this suit," held sufficient to raise an issue of fact for jury. Link v, Bergdoll, 35 Pa. Super. Ct. 155.

Footnote 32: See 10 C. L. 800--As in other cases,29 questions of law are for the court and questions of fact for the jury,30 and within this rule a question of law only is presented where the facts are established beyond dispute and only one reasonable inference can be drawn therefrom,31 but where there is a conflict in the evidence or in the inferences deducible from the facts proved, a question of fact is presented to be determined by the jury.32

Footnote 33: See 10 C. L. 800--As in other cases,29 questions of law are for the court and questions of fact for the jury,30 and within this rule a question of law only is presented where the facts are established beyond dispute and only one reasonable inference can be drawn therefrom,31 but where there is a conflict in the evidence or in the inferences deducible from the facts proved, a question of fact is presented to be determined by the jury.32

Footnote 34: See 10 C. L. 800--As in other cases,29 questions of law are for the court and questions of fact for the jury,30 and within this rule a question of law only is presented where the facts are established beyond dispute and only one reasonable inference can be drawn therefrom,31 but where there is a conflict in the 1069 NEGOTIABLE INSTRUMENTS $ 6E. 12 Cur. Law.

(SS 6) _E. Evidence,_\[85\] _See 10 C. L. 886, 994_

_Burden of proof_\[86\] See 10 C. L. 886, 994\_\[87\] The burden of sustaining affirmative allegations is usually upon the party making them.\[34\] Accordingly, where such matters are properly put in issue,\[35\] the plaintiff usually has the burden of proving the execution of the instrument\[36\] by one authorized in the premises,\[37\] or its ratification by the signature with reference to whether one of

http://bank. Oleson v. Houston Nat. Bank two joint makers in form was really surety \[Kan.\] 96 P 853. On Issue of good faith, for other. Cotton v. Cotton's Exr \[KY.\] 115 court should instruct for defendant only

SWV 783. Whether defendant was accomo-

where the uncontradicted evidence shows

dation maker. Asher v. Howard, 383 Ky. L.

that plaintiff had notice of the defect in note

R. 636, 110 SWV 885. Whether there had been

or establishes facts from which the only

alteration of note by erasure of one of joint

maker's names. Citizens' Sav. Bank v. Haha's

had such notice or took paper under such

stead \[Ind. App.\] 84 NE 1098. Notice is usually a question of fact for jury. Demelman

purpose on his part. Glybon v. Gutru \[Neb.\]

v. Brasier, 198 Mass. 458, 84 NE 856. Neg Negience in missing note without reading it,

ing evidence of notice of bad faith, where

or having it read to him, held question of

fact for jury where defendant could not

good or bad faith should be submitted to

read English. First State Bank v. Borders

\[Neb.\] 120 NWV 142. Finding for plaintiff on

Leg. N. 1067, 119 NWV 582. Evidence that

issue of payment held sustained by evidence.

plaintiff had considerable knowledge of the

McAdoo v. Connor & Co. \[Ark.\] 111 SWV 810.

business of the original payee and of the

Evidence of payment held sufficient to take

circumstances under which the note was

the case to the jury. Bailey v. Robinson,

given held sufficient to take case to jury on

233 Ill. 614, 84 NE 660. Held error under

question whether plaintiff was holder in due

the evidence not to submit to jury question

course. Kipp v. Smith, 137 Wis. 234,-118 NWV

whether plaintiff had accepted note of

and

848. For jury to say whether grant of

other party in lieu of note used on which

was guaranteed by defendants. Polk Print.

C. v. Smedley \[Mich.\] 15 Del. Leg. N. 988,

118 NWV 881. Good faith of degree in making

23. Search Note: See Billas and Notes, Cent.

payment is for jury. Moy Sie Tighe v. Fargo,

61 Mise. 181, 112 NYS 827. Character of de-

137 view with reference to whether bank

ceived paper for collection or by way of

discount or purchase. Bank of Latham v.

Milling \[Iowa\] 118 NWV 404. Whether

fendant indorsed note merely to pasa title.

Dye v. Peacock \[Ga. App.\]. 63 SE 520.

Whether irregular endorsement prior to

geotlabe instrument act was for accommodo-

tion of maker. Bowler V. Oaborne, 75 N. J. Law, 902, 70 A 149. Fraud in inception of

Instrument. Cox v. Cline \[Iowa\] 117 NWV

48; Johnson County Sav. Bank v. Kemp Mer-

cantu Co. \[Tex. Civ. App.\] 118 NWV 402;

Sibley County Bank v. Schaus, 104 Minn.

483, 116 NWV 928. Fraud of agent employed

to discounte note, in turning note to

other party without authority, held for the

jury. Demelman v. Brasier, 198 Mass. 458,

84 NE 856. Negience of maker in execution

ing note in such manner as to facilitate per-

petration of fraud. Sibley County Bank v.

Schaus, 104 Minn. 488, 116 NWV 928. Bena

fde hoddership without notice of fraud in

meeption. Penfield Inv. Co. v. Bruce, 132

Mo. App. 257, 111 SWV 888. Good faith.

American Nat. Bank v. Fountain, 148 N. C.

590, 62 SE 783; Walters v. Rockt \[N. D.\]

115 NWV 511. Whether holder was purchaser

for value without notice. Landsinsky v.

Margolii, 129 App. Div. S 529, 114 NYS 284.

Whether holder was bona fde purchaser.

Arnd v. Heckert \[Md.\] 70 A 416. Whether

not was purchased after maturity party sought to be charged,**\[**38**\]** **and so also the plaintiff must prove an indorsement upon which his right to recover depends** **\[**39**\]** **and all the facts upon which the indorser's liability depends.**\[**40**\]\*\* **Under the same rule the defendant has the burden of proving affirmative defenses, such as payment or discharge,**\[**41**\]\*\* **lack or failure of consideration,**\[**42**\]\*\* **fraud** **\[**43**\]** **or undue influence.**\[**44**\]\*\* **So, also, by reason of the presumption in favor of the holder,**\[**45**\]\*\* **the defendant usually has the burden of proving bad faith and notice on the part of the holder,**\[**44**\]\*\* **or transfer after maturity,**\[**47**\]\*\* **but according to the great weight of authority, influenced to a considerable extent by statutory enactments, where fraud is shown the plaintiff has the burden of proving bona fide holdership,**\[**48**\]\*\* **in all of its elements,**\[**49**\]\*\* **as defined in a previous section.**\[**40**\]\*\* **A distinction**\[**42**\]\*\* **shows** **where both are relied upon.**\[**45**\]\*\* **shows** **the** **b** 1064 NEGOTIABLE INSTRUMENTS SS 6E. 12 Cur. Law. is sometimes made, however, as to the burden of proving notice or lack thereof." A distinction is also sometimes seemingly made between the burden of proof and the burden of adducing evidence." The title of a bona fide holder of an instrument indorsed in blank does not depend on the title of the transferor," and hence the defendant cannot overcome the presumption that the holder is ever in due course by showing such a subsequent defect, but the burden still remains on him to show that the holder is not a holder in due course." In an action on a check not presented in due time, the burden is upon the plaintiff to negative any loss to the defendant by reason of the delay," as distinguished from the case where the action is upon the original obligation for which the check was given such a case being predicated upon matter of discharge of the original debt " as distinguished from: the performance of a condition precedent to the drawee's liability upon the check.

\_Admissibility.\_See 10 C. L. 992, 978--The admissibility of evidence in an action on a negotiable instrument is tested by the usual rules as to relevancy and materiality," and competency of evidence " and of witnesses." Fraud may be proved by the con-

fraud in placing note in circulation, subse-
116 NPV 536. Since Revial 1905, %% 5216-quent holder has burden of proving his own
5219, require listing of credits only to ex-good faith. Demelman v. Brazier, 198 Mass.

tent that they exceed debts, that taxpayer
458, 84 NE 856; Cox v. Cline \[Iowa\] 117 NPV

listed no solvent credits is Inadmissible in an action by him on a note and due bill, on

tion, the burden is on the holder to show

lsswe of title and ownership. Martin v.

that he is a holder in due course, the question being for the jury. Demelman v. Brazier, 198 Mass. 458, 84 NE 856.

49 Where fraud In inception of instrument is shown. Penfield Inv. Co. v. Bruce,

132 Mo. App. 257, 111 SW 888. Revisal 1905,

51 2201, 2208. American Nat. Bank v. Founstam, 148 N. C. 590, 62 SE 738. Where note

is fraudently put into circulation. Id.

50. See ante, $ 5B2, Who Are Bona Fide

Tidders.

51. Where maker or indorser proves that

execution or indorsement of paper was pro-

cured by fraud, he prima facie establishes

defense which must be overcome by evidence by evidence of holder that he is a bona fide pur-

chaser for value, and when he has done this

borden of proving notice of fraud is upon

defendant. Forbes v. First Nat. Bank \[OkL\]

95 P 785.

52. In Vaiden v. Downing Co., 4 Ga. App.

534, 61 SE 1127, It is held that when security

is proved to have been stolen or otherwise

appropriated in fraud of rights of owner,

jons is upon possessor to show that he took

it 'bona fide and for value, and upon such

showing being made, owner must show bad

failu, that is, that possessor had notice of title of true owner.

53. See ante, $ 2C, subd. Necessity of In-

dorsement.

54. Voss v. Chamberlain \[Iowa\] 117 NW

01.

01. Dehout v. Lewis, 112 NYS 559.

01. See Payment and Tender, 10 C. L. 1147.

01. There being no issue of forgery, held

error to admit evidence of other signatures

of indorser. Flavum v. Sturtz, 110 NYS 377.

Especially where plaintiff was not allowed

an opportunity to cross-examine the indorser

as to the alleged signature. Id. On an Ismave of forgery of note used on, evidence of

prior suit by plaintiff in which he was defeated on ground of payment held inadmissible as introducing collateral issue. Hyman

v. Kitt, 153 Mich. 113, 15 Det. Leg. N. 357,

1064 NEGOTIABLE INSTRUMENTS SS 6E. 12 Cur. Law. is sometimes made, however, as to the burden of proving notice or lack thereof." A distinction is also sometimes seemingly made between the burden of proof and the burden of adducing evidence." The title of a bona fide holder of an instrument indorsed in blank does not depend on the title of the transferor," and

hence the defendant cannot overcome the presumption that the holder is ever in

due course by showing such a subsequent defect, but the burden still remains on

him to show that the holder is not a holder in due course." In an action on a check not presented in due time, the burden is upon the plaintiff to negative any loss

to the defendant by reason of the delay," as distinguished from the case where the

action is upon the original obligation for which the check was given such a case being

predicted upon matter of discharge of the original debt " as distinguished from: the

performance of a condition precedent to the drawee's liability upon the check.

\_Admissibility.\_See 10 C. L. 992, 978--The admissibility of evidence in an action on a

negotiable instrument is tested by the usual rules as to relevancy and materiality," and competency of evidence " and of witnesses." Fraud may be proved by the con- duct of the parties and the circumstances attending the execution of the instrument.\*0 Where the plaintiff's title is in issue, evidence tending to impeach the same is admissible, though he does not claim the rights of a bona fide holder.**11** Evidence of transactions between the maker and an indorser is inadmissible as against a subsequent purchaser without notice.**22** Evidence of defenses between the original parties is not admissible against a holder until evidence impeaching his status has been adduced.**33** While a signature or indorsement may be characterized by the circumstances under which it is made and must be interpreted in the light of such circumstances, thus rendering them admissible in evidence,**34** such circumstances do not include statements of the parties before or at the time of the signature or indorsement,**35** or the secret purpose of the party in making his signature or indorsement.**36** This is but an application of the parol evidence rule, which applies to negotiable instruments as well as to other contracts.**47** This rule does not, however, exclude parol evidence of fraud in the inception of the instrument,**37** or to show lack or failure of consideration.**48** Parol evidence is also admissible as between the immediate parties to determine their relative liability.**49** As against bona fide holders, the nature of the obligation cannot be contradicted by parol for the purpose of invalidating it,"11 but the character of the obligation may be shown by parol in order to lay a foundation for a discharge by prejudicial acts committed after notice of the real character of the obligation."22

A note and a written agreement as to the mode in which it shall be paid must be construed together."13

\_Sufficiency._See 10 C. L. 992, 888_--With reference to the sufficiency of the evidence upon particular issues, each case must necessarily be determined upon its own evidence."4 Proof of delivery of the instrument as an independent obligation makes a

Id. Admissible to show that party indors- \[ ton v. Cotton's Ex'x \[Ky.\] 115 SW 783. Eviing draft payable to drawer did so for acceptance held to sustain finding that defendant commendation of acceptor. Id. Laws 1897, 0. 612, $ 114, subd. 3, making one indorsing for accommodation of payee liable to all parties subsequent to payee, renders parol evidence necessary to show whether indorsement was for accommodation of payee. Id. Fact that $ 114 does not expressly state that if Indorsement was made in his presence by indorsee, eeptor the indorser is liable to all parties subsequent to acceptor does not prevent application of rule where parcel evidence is admissible to show liability of parties inter se. Id. As between maker and payee, former may show that he made the note for accommodation of latter. Conrad v. Clarke, 106 Minn. 430, 119 NW 214, rehearing denied, 106 Minn. 430, 119 NW 482. Accommodation character of signer may be shown by parol. Lebanon Nat. Bank v. Long, 220 Pa. 556, 69 A 1033.

71. Cannot show that principal was surety in order to defeat obligation under Civ. Code, $ 2488, prohibiting married women from binding separate estate by contract of suretyship. Smith v. First Nat. Bank \[Ga. App.\] $ 2E 8E 8E26.

01. Smith v. First Nat. Bank \[Ga. App.\] $ 2E 8E 8E6. In an action for the wrongful negotiation of negotiable paper, parol evidence is admissible to show a collateral agreement limiting the right to negotiate. Agreement that transaction in which notes for patent rights were given should remain incomplete until defendant had trained plaintiff's sons in selling the patented articles. Hughes v. Crooker, 148 N. C. 318, 62 SE 429.

01. Toledo Computing Scale Co. v. Tyden, 141 Ill. App. 21.

01. Evidence held insufficient to sustain defense of nonexcetion. Fishburne v. Robleson, 49 Wash. 271, $ 5P 80. More infirmity of mind and body is insufficient to overcome legal presumption of mental capacity in one who has executed a note. Bade v. Fey, 63 N. Va. 166, 61 SE 348. Where only evidence on issue of delivery was uncontradicted testimony of the holder, delivery was proved. Flaum v. Sturtz, 110 NYS 877. Evidence held not to show delivery of instrument payable to order of drawer. Sturtz v. Chorts, 198 Mass. 560, $ 8E 180. Evidence held to show that husband was agent for wife in delivering note executed by her and in receiving consideration there.

Swearingen's Executor & Trustee v. Tyler \[Ky.\] 116 SW 831. On issue as to character of signature, evidence held sufficient to sustain finding that one of two joint makers in form was really a surety for the other, Cot- \[on v. Cotton's Ex'x \[Ky.\] 115 SW 783. Eviing draft payable to drawer did so for acceptance held to sustain finding that defendant was accommodation maker for accommodation maker for accommodation maker for accommodation maker for accommodation maker. Asher v. Howard, 33 KY. L. R. 694, 110 SW 895. Married woman held to have signed as surety for husband. McConrad v. Akridge \[Ga. App.\] $ 2E 1010. Where only evidence on issue of indorsement was holder's testimony that indorsement was made in his presence by indorsee, fact of indorsement by such indorsee was proved. Flaum v. Sturtz, 110 NYS 377. Ver- \[G\] for plaintiff on issue as to whether defendant indorsed merely to pass title to plaintiff held sustained by evidence. Dye v. Peacock \[Ga. App.\] $ 3E 520. Evidence held to sustain finding that irregular inconsistent prior to negotiable instrument act was for accommodation of maker. Bowler v. Osborne, 76 N. J. Law, 903, 70 A 149. Evidence held to tend to sustain finding of brand in inception of instrument. Cox v. Clinne \[Iowa\] 117 NW 48; Johnson County Sav. Bank v. Crepp Mercantile Co. (Tex. Civ. App.\] 114 SW 402. Evidence held to show that note was fraudently prepared from maker by agent of payee. Mee v. Carlson \[S. D.\] 117 NW 1033. Evidence held sufficient to sustain finding of brand, Sthley County Bank v. Schaus, 104 Minn. 438, 116 N NV 928. Evidence held insufficient to show fraud in inception. In re Hopper-Morgan Co., 158 F 8E 8E. Evidence held sufficient to sustain defense of fraud inducing indorsement. Roesale v. Lancaster, 114 NYS 387.

Evidence held to show that holder of ne- \[ prima facie case,\[18\] and where the plaintiff has possession of the instrument, produces it upon the trial, and it is received in evidence, such facts make a prima facie case of delivery thereof and title thereto.\[18\] Accordingly, the production of an instrument negotiable by delivery makes a prima facie case against parties primarily bound,\[7\],\[18\] and proof of the execution of the instrument, taken together with the prima facie presumption of ownership arising from possession, is sufficient to authorize entry of judgment.\[19\] A certificate of protest is prima facie evidence of dishonor, protest and notice,\[80\] but the mere fact of protest is not conclusive of dishonor and notice.\[81\] Duplicate drafts are in law regarded as one, and when the plaintiff produces the duplicates duly protested, with notice of demand given, he makes out a prima facie case.\[82\] In any case where parol evidence is admitted to change the prima facie contract evidenced by the written instrument, it must be clear and convincing.\[83\]

(SS 6) _F. Instructions.\[84\] See 10 C. L. \[87\] Instructions must conform to the general rules \[85\] relative to the submission of issues,\[86\] conformity to evidence,\[87\] and province of court and jury,\[88\] and as in other cases must be construed together.\[88\]_

\[Tenn.\] 108 SVV 1068. Evidence held not to \[Valley Dew Distilling Co. v. Ritzmann, 110 show extinguishment of debt upon receipt of \[NYS 917, accommodation paper, and hence holder was \[75\]. Zimbleman v. Finnegan \[Towa\] 118 Nvw not for value, Harris v. Fowler, 59 Misc, 523, 312.

110 NYS 987. Insulficient to show bona fide \[76\]. Delivery. Gandv v. Blissell's Estate holkership, Moc v. Carlson \[S D.\] 117 NSV 917. Prima facie proof of de- \[103\]; Royal Bank v. German-American Ins. \[Nivery to holder and his ownership thereof. Co., 58 Misc, 563, 109 NYS 822. Evidence held \[Nothasatern Coal Co. v. Tyrrell, 133 Ill. App. to sustain finding for plaintiff on issue of pay- \[42\]. Possession alone of security negotiablement. McAdo v. Conner & Co. Lark, 111 SWV by delivery is presumptive evidence of title \[510\]. Insulficient to show payment as distinguished from purchaser. Prather v. Harik \[54\], 61 SE 1127.

67. Note \[indressed in blank. Norlin v.\] to show that certain payment was in discharge of obligations other than that of note \[75\]. Clarke v. Newton, 235 Ill. 580, 85 NE:

747, aff. 138 Ill. App. 106: Gillespie v. First \[Nat. Bank, 20 Okl. 768, 95 P 220.

68. Note \[N. D.\] 118 Nvw 705.

01. Corson v. Smith \[S. D.\] 118 Nvw 705.

01. See \[N. D.\] 118 Nvw 705.

01. See \[N. D.\] 118. N. Dessesspan v. McDonnell, 201 Mass, 341,

81 N. Estate led to show payment by \[7\]. N N 824.

98.8 Amesum under \[198\]. Damelman v. Brazier, 198 Mass. 458, 84

98.8 Amesum under \[198\]. N 856.

82. Need not account for originals. Kessler Evidence held sufficient to show payment. \[V. Armstrong Cork Co. \[C. C. A.\] 158 F 744.\]

01. Accommodation character of signer demeble hellusment to show payment in \[N. D.\] 118 Nvw 877. Evidence held insufficient to show payment. First Nat. Bank v. Brown \[Neb.\]

116 Nvw 885. Evidence held to sustain finding for plaintiff on issue of \[Neb.\]

119 Mer for plaintiff on issue as to whether \[Neb.\]

120.0 1068 NEWSPAPERS. 12 Cur. Law. (SS 6) G. Trial and judgment."See 10 C. L. 1998.-In Illinois, where the maker and an indorser are sued jointly, and the indorser defaults, but no judgment is entered against him, the jury should be sworn not only to try the issues against the maker but also to assess damages against the indorser." Protest fees cannot be recovered where the note sued on is held void." The payee is not concluded as against the drawer of a bill by a judgment in a suit between the drawee and an indorsee to which neither the payee nor the drawer was a party."

**Neutrality; New Premise, see latest topical index.**

**NEWSPAPERS."**

_The scope of this topic is noted below."_

**A "newspaper," in the popular acceptance of the word, is a publication issued**

**commodation, held properly presented by**

**v. Bante, 130 Ill. 498, 22 NE 594, 6 L. R. A. 62. instructions given. Asher v. Howard, 35**

**They proceed largely on the theory that It**

**Ky. L. R. 696, 110 SW SW 895. Defense held**

\*\*will efficiently presented by Instruction. Zim-

**principal debtor after he had been disbleman v. Finnegan \[Iowa\] 118 NW 312.**

**87. Instruction ignoring evidence of intent**

**suits by all prior holders on the same grounds, which might result in different judgments in different actions. However,**

**fused in action seeking to hold indorser as**

**maker. International Bank v. Enderle, 133 no. App. 222, 113 SW 262.**

**88. Instruction leaving question as to what constitutes due course to jury held erroneous. Arnd v. Heckert \[IMd\] 70 A 416.**

**In-struction in action seeking to hold indorser as maker held properly refused as commenting on evidence. International Bank v. Enderle, 133 Mo. App. 262, 113 SW 262.**

**function held to invade jury's province in matter of deciding on conflicting evidence whether husband acted as special or as general agent of wife in disposing of notes payable to and indorsed by her or whether he was authorized**

**under the facts to dispose of the notes as his own. Garbutt Lumber Co. v. Prescott \[GA\] 62 SE 228.**

\*\*89. Instructions relative to defense of conditional execution of note sued on held not misleading when taken together. Key v.

**Usher, 83 Ky. L. R. 575, 110 SW 415.**

**requested instruction as to effect of payee treating defendant as indorser as distinguished from maker held covered by instruction given. International Bank v. Enderle, 133 Mo. App. 222, 113 SW 262.**

**90. Search Note: See Bills and Notes, Cent. Dlg. 15 1856-1913, 1518-1934; Dec. Dlg. 15 855, 554, 550; S Cyc. 285, 296; 14 A. & E. Enc. P. & P. 699.**

**91. See Hurd's Rev. St. 1905, p. 1407, C. 98. 1 70. First Nat. Bank of El Paso v. Miller, 235 Ill. 135, 85 NE 312, afg. 139 Ill. App. 608.**

**92. First Nat. Bank v. Miller, 189 Ill. App. 608, afg. 235 Ill. 138, 85 NE 312.**

**93. Kessler v. Armstrong Cork Co. \[C. C. A.\] 158 F 744.**

\*\*Note: "Defense of payment cannot be proved by the judgment in favor of the drawee in the action between it and Hijos de G. Matas, because neither Kessler & Co. nor the Cork Company were parties or prives to the judgment. There are a number of authorities to the contrary as may be seen cited in 23 Cyc. 1266; Levi v. McCrancy, Morris \[Iowa\] 124; Durham v. Gllea, 52 Me. 206; Hackleman v. Harrison, 60 Ind. 156; Leslie 12 Cur. Law. NEWSPapers. 1069 at regular intervals, containing, among other things, the current news, or the news of the day."

\_Definition."--\_The term "daily," as applied to the publication of newspapers, is relative and does not have the exclusive meaning of every day of the week, month or year," and the word "general," as applied to the circulation of a paper, is equivalent to extensive and its meaning must be determined by a process of inclusion and exclusion." Since under the constitution every citizen may publish his sentiments on all subjects, being answerable for the abuse of such rights, the fact that a newspaper publishes reckless and scurrilous matter consisting of unjustifiable criticisms does not warrant the suppression of its future publication,1 and equity will interfere against a suppression which is in its nature a continuous trespasas.2

\_Designation of official papers.\_See 10 C. L. 990--Such papers as the statute calls for must be designated " and designated in the manner prescribed by statute,4 but under statute requiring the board of supervisors to select newspapers, having the largest number of subscribers within the county for county printing, the filed list of subscribers is not conclusive when the circulation of a paper is contested, and the paper found from other evidence to have the largest number of bona fide subscribers, is entitled to selection is one of the official papers,5 and where a statute does not require publication in a daily newspaper publication in a weekly newspaper is as valid as in a daily one.6 Where the statute prescribes that one publication shall be made in a daily edition and two in a weekly edition, where the resolution names the daily, no further direction on that subject is necessary in a resolution.7 Where an improper.

Contracts, 11 C. L. 729) and liability for im-proper publication (see Contempt, 11 C. L. 715; Libel and Slander, 12 C. L. 576).

90. Times Printing Co. v. Star Pub. Co. \[Vwash.\] 99 P 1040.

01. Daily noon publication, an 8-page paper, 18 by 23 inches in size with 8 columns to page, containing telegraphic, sporting, political and theatrical news, and ad-vertisements, and an editorial column, having no regular subscription list but about I,000 copies were sold daily on streets by newsby and at time of trial had sub-scripttion list of 360 and an average daily circulation of 1,083, held a "newspaper" within Seattle City Charter, art, 4, $ 31, though it sometimes contained news pub-Iished day before in evening issue. Times Print, Co. v. Star Pub. Co. \[Wash.\] 99 P 1040.

01. Morning Reveille published every day of week except Sundays and Mondays held a "daily paper" within city charter, requiring legal advertising in a daily paper. Fair-haven Pub, Co. v. Bellingham \[Vwash.\] 98 P 97.

01. Where 1,000 copies were sold on street when bfd was accepted, city had population of 275,000, paper had no subscription list, no circulation in residence districts and was rarely seen in business houses or offices of professional men, held Noon Star was not one of a "general circulation" under Seattle City Charter, at 4, $ 31. Times Print. Co. v. Star Pub. Co. \[Vwash.\] 99 P 1040.

01. Const. art. 1, $ 8. Cluster Square Dealer v. Fowler, 58 Misc. 325, 111 NYS 16.

01. Injunction restraining defendants from entering upon premises for purpose of selfing and carrying away future issues, etc. Cluster Square Dealer v. Fowler, 58 Misc. 825, 111 NYS 16.

01. "Bismark Weekly Tribune," published by same parties as published daily "Bismark Daily Tribune," composed of matter printed in daily edition and set out from day to day for weekly edition, held a weekly edition of the Bismark Daily edition under Rev. Codes 1859, 8 1255 (3 1574 Rev. Codes, 1905). Griffin V. Denison Land Co. \[N. D.\] 118 NPV 1041. Const., art. 19, $ 2, requires that notices of proposed amendments to constitution shall be published in not more than one newspaper of general circulation in newsby and at time of trial had sub-scripttion list of 360 and an average daily circulation of 1,083, held a "newspaper" within Seattle City Charter, art, 4, $ 31, though it sometimes contained news pub-Iished day before in evening issue. Times Print, Co. v. Star Pub. Co. \[Wash.\] 99 P 1040.

01. Morning Reveille published every day of week except Sundays and Mondays held a "daily paper" within city charter, requiring legal advertising in a daily paper. Fair-haven Pub, Co. v. Bellingham \[Vwash.\] 98 P 97.

01. Under County Laws (Laws 1892, p. 1749, c. 868, $ 19) amended Laws 1898, p. 1013, c. 345 (Laws 1890, p. 332, c. 400), and Lished day before in evening issue. Times

01. 1156, c. 436, one paper cannot be designated to publish Session Laws and another to publish resolutions: "paper or papers" in sentence making provision in case of failure "to make a designation of a paper or papers," etc., having in view power of each political party to designate a paper.

People v. Ford, 127 App. Div. 44, 112 NYS 130.

95. Stone v. Quigley designation is made, the propriators of a paper eligible for designation have a sufficient interest as citizens to review the void designation even though their paper is not entitled to make the publications.\* The refusal, by the sheriff, of a request of the judgment creditor to insert the notice of sale in a particular newspaper is not a ground for the appointment of a special master commissioner to make the sale.\* In the absence of language evincing a contrary intent, publications required by state must be made in the English language.\[10\]

_Compensation for official publications_ See 10 C. L. \*\*\* fixed by statute for legal advertising,\[11\] or for publishing legal notices governs where no express rate is agreed upon.\[12\]

## 8 New Trial and Arrest of Judgment.

- 1. Nature of the Remedy by New Trial and Right to It In General, 1071.
- 2. Grounds, 1072.
- 3. In General, 1072.

12 Cur. Law. NEW TRIAL AND AREST OF JUDGMENT SS 1. 1071 SS 1. _Nature of the remedy by new trial and right to it in general._\[14\]See 10 C. L. \*\*\*--A new trial has been defined as a re-examination of an issue of fact in the court of first trial,\[15\] and has been held to include any motion to set aside a verdict based on matters not appearing on the face of the record.\[14\] In states where a distinction lies between a venire de novo and a new trial, the former does not apply to special verdicts or findings unless so uncertain, ambiguous, or otherwise defective that no judgment can be rendered thereon.\[17\] The power of the court to award a new trial is as much an incident of the trial as the admission and exclusion of evidence,\[18\] and the allowance rests in the sound discretion of the trial court,\[19\] particularly where allowed for the first time,\[20\] though allowances after the first are sometimes limited\[21\] or prohibited.\[22\] The court may also in its discretion ordinarily impose the payment of costs as a condition to the allowance of a new trial,\[38\] or require a reduction of the (see Appeal and Review, 11 C. L. 118), the modification and vacation of judgments with-out resort to a new trial (see Judgments, 12 C. L. 408), the erroneous (see such topics as Argument and Conduct of Counsel, 11 C. L. 268; Evidence, 11 C. L. 1346; Examination of Vileness, 11 C. L. 1420; Instructions, 12 C. L. 215; Trial, 10 C. L. 1389; or prejudicial error, 11 C. L. 1690, character of particular rulipres, the necessity of objections and exceptions to save rulings for motion for new trial and the necessity of motion for new trial to save questions for the reviewing court (see Saving Questions for Review, 10 C. L. 1572), are elsewhere treated.

14 Search Note: See notes in 68 L. R. A. 126. See, also, New Trial, Cent. Dig. SS 1-17; De. Dig. SS 1-12; 29 Cyc. 720-734; 21 A. & E. Enc. L. (2ed.) 534; 14 A. & E. Enc. P. & P. 1707. 15. California Code. Quist v. Hill \[Cal.\] 99 P 204. 16. Georgia R. & Elec. Co. v. Hamer, 1 Ga. App. 673, 58 SE 54. 17. Leimgruber v. Leimgruber \[Ind.\] 86 NE 73. Omissluu to find certain facts in terms being equivalent to finding against party having burden of proof, motion for venture de novo seasonably made should be overruled. Divore proceeding where there had been adjudication on same pleadings and facts in another court gave neither party right to derece in this court. Teager v. Yeager \[Ind.\] 87 NE 144. 18. Ingalls v. Oliver, 198 Mass. 345, 84 NE 462. Judge of superior court has power to set aside verdict of jury and order new trial in regard to issues framed in supreme court and sent to superior court to be tried. Id. 19. Wirsing v. Smith \[Pa.\] 70 A 905; Wood- roof v. Hall \[Ala.\] 47 S 570; Jones v. Jacksonville Elec. Co. \[Fla.\] 47 S 1; Lebane v. Butte Elec. R. Co., 37 Mon. C64, 97 R 1038; Missouri K. & T. R. Co. v. Bailey \[Tex. Civ. App.\] 115 SWV 601. Denial of motion for new trial presents no question which appellate court can consider. Reader v. Haggin \[C. C. A.\] 160 F 909. Judge who did not sit at trial is not so free to use his discretion as if he had been sitting. Ford v. Harris, 4 Ga. App. 467, 61 SE 881. Jury case. Magness v. Modern Woodmen of America \[Iowa\] 118 NW 386. Great latitude of discretion is allowed trial court. Joseph v. New York City R. Co. 61 101 amount of the verdict as a condition to its denial.24 The trial"court, however, is without authority to reduce a verdict and render judgment for the reduced amount unless plaintiff consents,28 nor can it require defendant to forego his appeal by the terms of an order for new trial.28 A new trial is authorized only in the class of cases contemplated by the statute.27

SS 2. _Grounds. A. In general.28-Sec 10 C. L. 1001_-Statutory grounds for a new trial are usually exclusive,29 and ordinarily include, among other grounds,30 that a full," fair and impartial trial was not had,22 that justice was not done,38 and that the complaint fails to state a cause of action,34 and excludes such grounds as misjoinder or excess of parties,35 conduct of the reporter,36 rejection of amendments,37 un * 12 Cur. Law. NEW TRIAL AND ARREST OF JUDGMENT SS 2C. 1073

paredness for trial,"\* negligent failure to be represented by counsel,"\* unexcused failure to appear at the time set for trial,"\* exceptions to a decree,"41 and questions raised or which might have been raised before a verdict,"42 review of such questions being ordinarily provided for by other means.

(SS 2) \_B. Misconduct of parties, counsel, or witnesses,"43_See 10 C. L. 1002_Mis-

- conduct of plaintiff in the presence of the jury,"44 and fraud and sharp practice on the part of counsel, are grounds for new trial "8 when prejudicial;"46 but failure of defendant's counsel to disclose his defense under a general plea is not such misconduct as will justify a new trial."47

(SS 2) \_C. Rulings and instructions at the trial.\_48_See 10 C. L. 1002_Rulings upon the pleadings,"\* evidence,"50 and other matters of trial,"51 are grounds for new trial when erroneous and prejudicial, and not otherwise cured."52

- 37. Turner v. Barber \[Ga.\] 62 SE SS87. 48. Search Note: See New Trial, Centl Dig. SS 48-71; Dec. Dig. SS 33-41; 29 Cyc. 778-Hannan v. Caproni \[R. I.\] 71 A 593. 39. Balfour v. Tuck \[Tex. Civ. App.\] 115 \[Cal.\] 89 P 172. Proper to allow amendment to pleadings after evidence 18 In but before pretenses. Cannon v. Dean, 80 S. C. 557, 61 SE 1012. 41. Darsey v. Darsey \[Ga.\] 63 SE 20, Claim that findings do not support judgment is not available on motion for new trial. Black v. Harrington Home Co. \[Cal.\] 99 P 494. 42. Loveland v. Rand, 200 Mass. 142, 85 NE 948. Motion for change of venue filed after foreclosure trial and while cause was under advisement could not be applicable to that trial, and denial of application could not be a ground for new trial of issues there des- eldcd. Luken v. Fickle \[Ind. App.\] 84 NE 561. 43. Search Note: See New Trial, Centl Dig. SS 48-71; Dec. Dig. SS 33-41; 29 Cyc. 778-Hannan v. Caproni \[R. I.\] 71 A 593. 39. Balfour v. Tuck \[Tex. Civ. App.\] 115 \[Cal.\] 89 P 172. Proper to allow amendment to pleadings after evidence 18 In but before pretenses. Cannon v. Dean, 80 S. C. 557, 61 SE 1012. 41. Darsey v. Darsey \[Ga.\] 63 SE 20, Claim that findings do not support judgment is not available on motion for new trial. Black v. Harrington Home Co. \[Cal.\] 99 P 494. 42. Loveland v. Rand, 200 Mass. 142, 85 NE 948. Motion for change of venue filed after foreclosure trial and while cause was under advisement could not be applicable to that trial, and denial of application could not be a ground for new trial of issues there des- eldcd. Luken v. Fickle \[Ind. App.\] 84 NE 561. 43. Search Note: See notes in 9 A. S. R. 559, 100 Id. 689, 690; 4 Ann. Cas. 1023; 6 Id. Admission held not error. Lee v. Winkles \[Ga.\] 62 SE 820: Green v. Terminal R. Ass'n. 211 Mo. 18, 109 SW7 115; Cooley v. Bergstrom, 47; Dec. Dig. SS 28-32; 29 Cyc. 773-777; 14 3 Ga. 496, 68 SE 220; Chandler v. Mutual Life & Industrial Ass'n of Ga. \[Ga.\] 61 SE 1036: Eastwood v. Klamm \[The.\] 120 NW 149; At. Lauric C. L. R. Co. v. Williams \[Ga. App.\] 63 SE 671: Daugherty v. Templeton \[Tex. Civ. App.\] 110 SWP 563. 43. Search Note: See notes in 9 A. S. R. 559; 100 Id. 689, 690; 4 Ann. Cas. 1023; 6 Id. Admission held not error. Lee v. Winkles \[Ga.\] 62 SE 820: Green v. Terminal R. Ass'n. 211 Mo. 18, 109 SW7 115; Cooley v. Bergstrom, 47; Dec. Dig. SS 28-32; 29 Cyc. 773-777; 14 3 Ga. 496, 68 SE 220; Chandler v. Mutual Life & Industrial Ass'n of Ga. \[Ga.\] 61 SE 1036: Eastwood v. Klamm \[The.\] 120 NW 149; At. Lauric C. L. R. Co. v. Williams \[Ga. App.\] 63 SE 671:
      \_Instructions.--\_The refusal of the court to submit the cause,\[85\] or particular questions of fact to the jury,\[54\] rulings on peremptory instructions,\[85\] and the prejudicial giving or refusing of instructions,\[84\] may be ground for new trial.

(SS 2) \_D. Misconduct of or affecting jury.\[57\]\_See 10 C. L. 1002--Misconduct of party,\[85\] counsel,\[89\] court,\[90\] or others toward the jury, may be ground for new trial if that he might ask if stockholder, or inter- 138 Iowa, 638, 116 NWP 706; Lynch v. Sneadested in accident company, but matter was not pursued, defendant is not entitled to 693; Smith V. Brigham, 106 Minn. 91, 118 NWW new trial. Banner v. O'Meara, 110 NYS 947.

**Sustaining challenges to competent javors**

601; Flowers v. Smith, 214 Mo. 98, 112 SWW is not ground for new trial as a party is not entitled to a trial by any particular jury.

Held not to be error to sustain challenge to competent javors.\[57\]\_See 10 C. L. 1002--Misconduct of paremptory where party objections had 115 NWP 846.

Ov, 51 N. C. 114, 61 SE 108; Lane v. Delta not exhausted all his challenges. Johnson v.

Oventiy Tex. (Civ. App.) 109 SW 866; San Vaterloo \[Iowa\] 118 NWP 70. Refusal to

Antonio Mach. & Supply Co. v. Campbell

grant a continuous index not ground. Reed v.

**Light. 170** In 560, 85 NE 9. Conduct of

contr in requiring case to be continued after

regular time for adjuarment for day with-

out witness or with limited number, including those named in morning, is not such de-

mal of impartial trial as entities party to

new trial. Court and Practice Act 1905, 472.

of Rhode Island. Campbell v. Campbell \[R. I.\] 71 A 1058.

\*\*52. Where second ruling falls to counter-

act effects of former erroneous ruling, court

may in its discretion grant new trial. Ad-

mitting advertisement of mineral water

which is said to cure rheumatism, etc., was

not cured by ruling it out. King v. Chicago,

etc., R. Co., 188 Iowa, 625, 118 NWY 719.

**53.** Watt v. Barnes, 41 Ind. App. 466, 84 NE

158. Where cause has count in law and one

in equity, it is not ground for new trial that

court refused to submit it to jury. Id.

**54.** Court refused to submit a number of

questions as to the contract between the

parties. Refusal not error. Prye v. Kal-

bough, 84 Utah, 806, 97 P 381. Where title

to certain property has been decided in pre-

vious trial and there is no evidence in second

trial to change such title, it is not prejva-

dicial to instruct to leave it out of consider-

tion in deciding title of other property. Young v. Chandler \[Me.\] 71 A 652.

**55.** Ruising held not erroneous: It is not

ground for new trial where court in its dis-

cretion refused to direct verdict. Ewing v.

Lunn \[S. D.\] 115 NW 627.

**Runing held erroneous.** Lynch v. Snead

Architectural Iron Works \[KY.\] 116 SW 693:

San Antonio Mach. & Supply Co. v. Campbell

\[Tex. Civ. App.\] 110 SW 770. Where peremptory Instruction for plaintiff 18 given in absence of counsel for defense and before opportunity to present additional proof

given, new trial will be granted if evidence

presented in support of motion is material

and likely to change result. Evans v. Lilly

& Co. \[Mas.\] 48 612.

56. Hensley v. Davidson Bros, \[Iowa\] 120

NWP 95: State v. Robb-Lawrence Co. \[N. D.\]

115 NW 846.

Held prejudicial. Wilson v. Wilson, 130

Ga. 677, 61 SE 630; Lay v. Nashville, etc., R.

Co. \[Ga.\] 62 SE 189; Livingston v. Taylor

\[Ga.\] 63 SE 694; Decatur Amusement Park

Co. v. Porter, 137 Ill. App. 448; Schwitters v.

Springer, 236 Ill. 271, 86 NE 102; Hamml v.

Schlitz Brew. Co., 138 Iowa, 138, 115 NWW

943; International Harvester Co. v. Walker,

Held v. Davidson v. Walker,

Held v. Davidson v.

12 Cur. Law. New Trial and Arrest of Judgment $ 2D. 1078

prejudicial. \[41\] The misconduct, however, must have reached the jury or some of them and probably have affected their action, \[42\] and the proof of misconduct should be clear and convincing and not merely conjectural. \[43\] Similarly, false statements by the juror during examination, \[54\] or misconduct of the jury itself, such as independent investigation by jurymen, \[65\] the rendition of a gambling, \[66\] or otherwise improper verf

affected thereby. Scott v. Tubbs, 48 Colo. before sealed verdict is read is ground for new trial. After verdict had been sealed foreman communicated with court and then demination proceedings after inspection of refused to ratify one part of verdict. Held to be ground for new trial. Dralic v. Reeds-apart from officer into saloon and treated them, though they made afflavit that verdict was unaffected thereby. Scott v. Tubbs, 43

set aside verdict when union is prop-Colo. 221, 96 P 540. Where defendant's claim and other agents treated jurors to liquor and theatre during trial though nothing was said about case. Callahan v. Chicago, M. & St. P. R. Co., 158 F 988. Improper for litl-gant to supply jury with meals and luxury not taxable as costs. State v. Reid, 120 La. 200, 45 S 103. Acceptance of favors and refreshments from either of parties by jury in misconduct justifying new trial. Jury to pass on drain had cigars and dinner from members on Jurles had given verdict's against one of petitioners and woman said in their presence: "Way to man's heart is through stomach," and inquired whether any one wanted stagnant water near their homes. City R. Co., 84 Utah, 1. 95 P 363. Held misconduct. Harrington v. Hamm, 158

63. Dittman v. New York, 58 Mise. 52, 110 Mich. 650, 1% Det. Leg. N. 556, 117 NV 62. NYS 40. More fact that jury noticed Any gratuity to jurors by either party is misconduct for which new trial will be granted. Where jurors were legally en-

that are not the same, but in his discretion may do so. Kelley v. and attorney for petitioner paid them daily

$1 and did so for twelve days, jurors know-ing whence the fee came, held to be miscon-

the had no bias or prejudice in cases of this duct for which new trial should be granted. In re Vanderbilt, 127 App. DIV, 408, 111 NYS 558. Plaintiff's attorney treated to peanuts

such cases. Was not considered sufficient to and defendant treated to cigar to jurors

vittate former verdict. Lunde v. Cudahy at their request when going to view some

Packing Co. \[Towow\] 117 NV 1083. Evidence land. Had held not prejudical. Oakwood

Drainage Com'rs v. Knox, 237 Ill. 148, 86 NE 638. Fact that counsel walked to court

concerning the merits of case is ground for house with one of jury during trial of case

new trial. Appellant learned after juror

is not ground for new trial. Alpena Tp. v. Mathinville, 153 Mieh. 732, 15 Det. Leg. N. 605, 117 NVP 338. Least intermediding with jurors by attorneys conducting trial is

with the juror, but in his definition of jurors on grounds for granting new trial. Attorney

\[Ky.\] 116 SWY 733. had played cards with several of jurors on evening after cloiling evidence and argu-

juror that another had investigated for him-ments begun. Held ground for new trial. Alpena

Austin v. Langlotis \[Vt.\] 69 A 739.

60. Comment on nature of case is no ground for new trial based on comment upon

estimony. "This is action to recover money lost at gambling" was held not to be comment on evidence assuming that money was

Held not cause for new trial. City of Em-

lost. Crowley v. Taylor, 49 Wash. 511, 96 P

101%. Court on overvilling motion to direct

vydet said he was inclined to favor plaintiff

but still had some doubts. This was reported

in paper but defendant stopped court from

giving instruction to jury not to read papers,

saying they would take their chances. Jury

was instructed to disregard such statements and articles in paper. Held that defendant could not ask for new trial on account of misconduct affecting jury. Spreck

else v. Brown, 212 U. S. 208, 53 Law. Ed. -

Acte of court in communicating with jury

byby the author. "The author is a member of 1076 NEW TRIAL AND ARREST OF JUDGMENT $ 2E. 12 Cur. Law. diet, is also ground for new trial, if prejudicial; " but incompetency of a juror which was not discovered at the time of impanelling is not such ground." That the conduct of the jury may be cause for a new trial, it must affirmatively appear that neither the complaining party nor his counsel knew of such misconduct before verdict," but the fact that counsel of the respondent did not object to the conduct does not amount to a waiver, if he in no way sanctioned it." Under Texas statute, on motion for new trial on ground of misconduct of jury, it is competent for juryman to testify in open court as to conduct in jury room," but Texas seems to stand alone in this respect." In Illinois allegations of misconduct on part of defendant and one of the jurors are sufficiently negatived by affidavits of both that they had no acquaintance and did not talk about the case."

(SS 2) \_E. Irregularities or defects in verdict or findings."\_Sae 10 C. L. 1002_Failure of a general verdict to specify the plea upon which it rests is not ground for new trial where it has been returned, published and recorded without objection." Entering judgment before the time set therefor is ground for new trial."

(SS 2) \_F. Verdict or findings contrary to law or evidence."_See 10 C. L. 1004_

damages, to add them together and divide by

**@g. No ground where jury took state re-twelve and that to be verdict, it must be**

**@**, but where such sum was to serve\*\*

**when jury was discharged. Brooks v. Ca-simply as basis to work from and verdict not**

**mak, 130 Ga. 213, 60 SE 456. One Juryman agreed to until later, it will be sustained.**

**was intoxated to knowledge of appellant's Missouri K. & T. R. Co. v. Hawkins \[Tex.**

**@**, **Civ. App.J 109 SV 221. Where evidence**

**@**, **Civ. App.J 111 SVW 761. Evidence by one juror**

**@**, **Civ.**
The court may grant a new trial in its discretion, when the verdict is the result of mistake," passion or prejudice," or contrary to the evidence,"9 particularly where the

78. Schleifenbaum v. Rundbaken \[Conn.\] \[Ind. App.\] $4 NE 355; Peterson v. Chicago
    71 A $99. Where jury seems to have la- bored under mistaken impression, new trial

G. W. R. Co., 106 Minn. 245, 118 NPV 1016;

should be granted. In injury by electricity

\[Mo.\] 114 SW 1057; Quaglina v. Jersey City,

jury thought defendant owed duty to give

etc. R. Co., N. J. Lawf 71 $4; Schuster

notice of current in its wires, while there

v. Arscott, 110 NYS 1107; Lynch v. Rhode

is no such duty shown. Heldt to be ground

\[Island Co., \[R. I\] $9 A 765; Austin v. Lan.

for new trial. South Shore Gas & Ellec Co.

glois \[V.\] $9 A 783. Discretion of trial

v. Ambre \[Ind.\] $7 NE 246.

judge upon first grant of new trial will not

79. Schleifenbaum v. Rundbaken \[Conn.\]

be interfered with where it is manifest that

71 A $93; Choctaw O. & G. R. Co. W. Burgess

new trial was granted because trial judge

\[OKl.\] $9 T 271. Where there has been such

plain disregard of instructions of court or

evidence in case by jury as to satisfy court

\[Low Co. v. Teasley & Co., 4 Ga. App. 156,

that verdict was rendered under misappre-

60 SE 1077. State of facts held not sufficient

hension of such instructions, or under in-

ground for new trial. Karl v. Diamond \[N.

fluence of passion or prejudice, new trial

J. Lawf 71 A 46. Evidence held such as to

should be ordered. Where tenant was in

warrant order of new trial though there

default for rent and, after three days' no-

no-

to pay or vacate, action was brought

North Jersey St. R. Co. \[N. J. Lawf\] 71 A

and verdict was rendered for defendant,

1120. Where evidence tends to show that

court held justified in ordering new trial.

plaintiff was guilty of contributory negili-

Oedental Realiste Co. v. Gantner, 7

gence and same is not negative, new trial

Cal. App. 727, 95 T 1042. In action by wife

and children against three palaekeepers for

NYS 947. Where the jury has passed on eval-

damages for loss of support occasioned by

sale of intoxicating liquor to husband and

less against preponderance of evidence.

father of plaintiffs, that jury returns verdict

dict against two of defendants and not

fold. Convey v. Finn, 114 NYS 864. Pre-

against third is not proof of partiality or

ppedrance of evidence against verdict is no

prejudice such as to be ground for setting

ground for new trial. In action for injury

aside verdict if evidence is sufficient to sus-

tain verdict rendered. Eastwood v. Klamma

\[Neb.\] 120 NPV 149.

80. Verdict is not against evidence when

projudicial error, either in admission of eval-

dence or in rulings of court, was not com-

mented during progress of trial. Lynch v.

Snead Architectural Iron Works \[Ky.\] 116

support it, court being required to weigh

SWW 693. Whether evidence sustains verdict

is within sound discretion of court. Hamill

v. Schliffe Brew. Co., 133 Iowa, 138, 115 NPV

v. Tennessee Cent. R. Co. \[Tenn.\] 108 SWP

943; Stetzler v. Metropolitan St. R. Co., 210

no. 704, 109 SWP 666. Where court is

in motion for new trial shows defendant not

doubt as to weight of evidence, it is no

\[hide, court should grant new trial. Var-

ground for new trial. Kursheedt v. Stan-

\[N. J. Lawf\] 71 A 39.

\[Va.\] $6 SE 203.

Where there is some doubt as to preponderance, coupled with afflavid of newly-dis-

covered evidence, court should grant new

trial. Clark v. Hemmingson, 132 Ill. App.

\[G. W. R. Co., 106 Minn. 245, 118 NPV 1016;

619. V Whenever it appears to trial court that

Grawford v. Kansas City Stockyards Co.

jury have failed to respond truly to real

\[Mo.\] 114 SW 1057; Quaglina v. Jersey City,

jury thought defendant owed duty to give

etc. R. Co., N. J. Lawf 71 $4; Schuster

notice of current in its wires, while there

v. Arscott, 110 NYS 1107; Lynch v. Rhode

is no such duty shown evidence is conflicting." This rule applies to directed verdicts \[23\] and findings of trial granted, neither that decision is con- tray to law as that can only be raised on appeal. Quist v. Hill \[Ca1.\] 99 P 204. Power of trial court to set aside verdict which is against evidence and to grant new trial is not limited to cases where entire verdict is against evidence. In replying case, part of property held to belong to plaintiff and part to defendant. Dunning v. Croutt \[Conn.\] 70 A 630. Trial court should not grant new trial on ground that verdict is not supported by evidence, unless weight of testimony so clearly preponderates against verdict found as to require its annulment in order to meet demands of justice. Jones v. Jacksonville Ellee. Co. \[Fla.\] 47 S 1. Held that verdict giving value of furniture could not be said to be against evidence where evidence of purchase price of value of "forced sales" and amount it would take to replace was before jury upon whom devolved duty of placing value. Morris Storage & Transfer Co. v. Wilkes, 1 Ga. App. 751, 58 SB 232. New trial should be granted where there is no evidence tending to show liability of any but one of three joint defendants. Sutt for personal injuries against receivers of lesser street railway, lessce street railway, and receivers of latter who were operating car causing injury and v. Williams \[Ga.\] 63 SB 671; Clamas who alone were liable there. Ekelks v. Henning, 139 III, App. 660. Verdict on insurance policy where evidence would indicate that insured was working fraud on company, knowing himself in poor physical condition. Iowa Life Ins. Co. v. Haughton \[Ind. App.\] 85 NE 127. Motion for new trial because evidence does not support verdict but not lie where there is sufficient evidence to go to jury. Field in action for commission for sale of real estate that there was enough evidence of contract to go to jury. Robbins v. Bosserman, 133 Iowa, 318, 110 NW 587. Where in action against two defendants in which court instructed that if jury found against one defendant they must also find against other, verdict against first was not supported by evidence, verdict against second defendant would be set aside, Irrespective of whether or not jury could find against him on any proper ground. Davis v. Whiting & Son Co., 201 Mass. 91, 87 NE 199. Where denmurrer to evidence should have been sustained, new trial will lie. Evidence showed plaintiff to be servant of contractor only and not of defendant, hence no action could lie. Kipp v. Oyster, 183 Mo. App. 711, 114 SW 638. In personal injury case against city, where plaintiff's case was supported only by one witness who materially contradicted himself, court right- fully granted new trial. Mullen v. Bute, 37 Mont.183, 87 P 697. Evidence of father's demand for wages of infant son was supported by evidence. Kraus v. Clark \[Neb.\] 116 NW 164. To be ground for new trial on grounds of insufficiency of evidence, contention of losing party should be supported by preponderance of evidence determined by weight of testimony and credibility of witnesses. Bowell v. Public Service Corp. \[N. J. Law\] 71 A 119. Where evidence which in all probability is false has been admitted to prejudice defendant, new trial should be granted even though defendant was not in court. Exaggerating injury. Zettel v. Taylor, 114 NYS 467. Where verdict was formed on handmissible evidence, new trial should be granted. Evidence of misconduct of defendants' manager tending to show that defendant was innocent victim of rascality of his agents; hence prejudicial to the plaintiff. MassIIson Sign & Poster Co. v. Buffalo Lick Springs Co., 81 S. C. 114, 61 SB 1098, Where evidence authorized verdict. Schlierenbaum v. Rundbaken \[Conn.\] 71 A 899; Cooley v. Bergstrom, 8 Ga. 496, 60 SB 220; Hutcherson v. Ladson, 130 Ga. 427, 60 SB 1000; Meinhard, Schaul de Co. v. Bedling- Held Mercantile Co., 4 Ga. App. 176, 61 SB 34; Maxwell v. Hood, 130 Ga. 542, 61 SE 116; Macon R. & Le Co., Lewis, 4 Ga. App. 318, 61 SE 290; Taylor v. Path, 4 Ga. App. 322, 61 SE 292; McHaun v. Malaby & Co., 130 Ga. 765, 61 SE 731; Ford v. Harris, 4 Ga. App. 467, 61 SE 811; Merchant z & Miner's Transp. Co. v. Corcoran, 4 Ga. App. 654, 62 SE 130; Mr. Strange & Transfer Co. v. Wilkes, 1 Ga. 77, 51, 58 SB 232. New trial should be granted where there is no evidence tending to show liability of any but one of three joint defendants. Sutt for personal injuries against receivers of lesser street railway, lessce street railway, and receivers of latter who were operating car causing injury and v. Williams \[Ga.\] 63 SB 671; Kelly v. Malione \[Ga.\] 63 SE 639; Atlantic Coast Line R. Co. who alone were liable there. Ekelks v. Henning, 139 III, App. 660. Verdict on insurance policy where evidence would indicate that insured was working fraud on company, knowing himself in poor physical condition. Iowa Life Ins. Co. v. Haughton \[Ind. App.\] 85 NE 127. Motion for new 18 Cur. Law. NEW TRIAL AND ARREST OF JUDGMENT SS 2F. 1079

the court upon the facts,\*\* but does not warrant the court in setting aside the verdicts until one happens to agree with its opinion,\*\* nor should the verdict be set aside where the issues are peculiarly within the province of the jury,\*\* or for the admission of evidence giving the movant a new line of defense or raising an objection for the first time which according to former defense it could not logically raise.\*\* Similarly, the trial court may set aside a verdict where it is inadequate,\*\* excessive,\*\*

evidence and compromise verdict will not appears to be result of prejudice, partiality, be disturbed, even though afladavit upon or misapprehension (Macon R. & L. Co. v. ground of newly-discovered evidence does ) Lewis, 4 Ga. App. 313, 61 SE 290; Merchantar' not come up to rule. Chancey v. Williams & :Mizers' Transp. Co. v. Corcoran, 4 Ga. App. \[Fla. 147 S 81L. Discretion of trial court as 654, 62 SE 130; 'Waechter v. Walters, 41 to mere matters of fact, where evidence in \]. Ind. App. 408, 84 NE 22; Nolan's Adm'r v. case would fully authorize finding for elf. Standard Sanitary Mfg. Co., 38 KY, L. R. \[Th party, is limited to first grant of new 745, 111 SW 290; Louisville & K. R. Co. v. trial. E. E. Lowe Co. v. Teasley & Co., 4 Dantel \[Ky.\] 115 SW 804; Chlanda v. St. Ga. App. 155, 60 SE 1077. Where jury un- ) Louis Transit Co., 213 MO. 244, 112 SW 249; dor instructions and evidence can find either \]. Ogilvie V. Conway Lumber Co., 80 S. C. 7, for plaintiff or defendant, it cannot be said \]. SE 200; Missouri & T. R. Co. v. Bailey that verdict is contrary to law and is ground \]. Tex. Cyt. App. 115 SW 601). New trial for new trial. Fearon v. Mullins \[Mont.\] should not be granted merely because judge would have found less amount than that honesty of plaintiffs in making false state, found by jury, unless opinion of judge amounts to clear and fixed conviction that bureau. Galvin v. Tibbs, Hutchins & Co. \[Thin.\] insbene has been done by excessive verdict. D.\] l19 NNW 39. Rule that apellate contorts \]. Will not grant new trial on conflicting evidence \]. SE 848. Where by actual computation verdence does not bind trial court which should \]. claim made of value of property, new trial do substantial justice. Wilcox v. Rhode Is- \]. Should be granted. Verdict #100 higher than \]. Lo. \[R. L.\] 70 A 913. More conflicting \]. Garli v. Tibbs, Hutchins or contradictory statements of witnesses for plaintiffs in not sufficient ground for setting new trial, excessiveness of damages must be \]. \[Thin.\] \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \]. \] . \]. \]. \] . \]. \] . \]. \] . \] .

or contrary to law," but in the latter case it is not a matter of absolute discretion of the trial court whether or not it shall be granted."

(SS 2) _G. Surprise, accident or mistake."_See 10 C. L. 1005_Accident,"_"_ fraud,"\_

not excessive. Ogilvie v. Conway Lumber P 698. In replevin case jury found three Co., 80 S. C. 7, 61 SE 200. Verdict of $11,490 held not excessive for death of man 63 years ended on 6 years end mistake," and surprise, may be ground for new trial," where due diligence was exercised by the surprised party before " and after the act constituting the surprise."

Iterated promises for several years and \[Schinnstock, 77 Kan. 663, 96 P 143. Under joined promises with acts and conduct aparentiy in line with promise, but that husbands bliss limbs have been permanently weakened and their strength impaired, it is not such 94. Hoewel mistake of law may in some cases be ground for new trial. Varney \[tessifies that he has "flatfoot", especially so v. Hutchinson Lumber & Mfg. Co. \[W. Va.\] 83 SE 203. Where counsel intend- did not ask for continuance. Lorts & Frey ing to make defense and appearing to have good defense found that under 1906 status \[Fact that principal witness for defendant term of court was in October but failed to work in 1907 statute not yet published to trial, especially so where counsel was per-learn that term had been changed. Id. Neil-ther ignorance, misapprehension nor blanners on be favorable to plainiff. Cun-party are grounds for new trial. Plainiff's attorney in suit for commission for selling \[App. Div. 688, 109 NYS 1070, Where defend-land failed to put in evidence amount land \[sold for, hence failed to give basis for commision. Court held new trial should not be granted. Parker v. Britton, 133 Mo. App. 270, 113 SVV 259, Where attorners for defendant failed to put into the answer cer-tain valid defenses under mistaken belief that it was not necessary nor good DIead-ing, their act did not constitute such ac-action or mistake as are made grounds for now rational. In answer to suit on insurance policy, attorney fails to pleal use of gasco-line torch contrary to terms of policy. Held \[Kahan \[Wash.\] 97 P 109.\]

not to entitle to new trial on ground of accident or mistake. Sun Ins. Office of Lon-don v. Heiderer \[Colo.\] 99 P 29. If que be led into misunderstanding such as clearly evidenced excusable neglect and thereby is in default, court may on reasonable terms \[grant new trial. Sheriff in serving sum-mons in two cases handed them copies of one summons only, whereby they defaulted. Held excusable and case opened and new trial granted. Hilt v. Heimberger, 140 Ill. App. 129.

85. Held to constitute surprise. Verdict in personal injury action will be set aside on ground of surprise where evidence as to cer-tain injury was introduced after under-standing that it would not be introduced and defendant was unprepared to answer it. Clarkson v. Rhode Island Co. \[R. L\] 67 A 448.

Held not to constitute surprise: Doctrine of surprise as ground for new trial does not apply to testimony of witnesses of opposite party nor to the evidence introduced by such party, where same tends to support issues joined, and is such as might reasonably have been anticipated. Plumlee v. St. Louis S. W. R. Co., 85 Ark. 488, 109 SW 516. Being mis-led by rulings of court as to admissibility of evidence is not such surprise as to en-title to new trial. Held admission of testi-mony, with statement that equivalent article was not necessarily same thing, could not be construed into meaning that would justify buyer in believing that court regarded evidence as other than one link in chain of proof of value of that ordered by contract. Conneil v. Harron, 7 Cal. App. 745, 95 P 916. Willfully false testimony by defendant does not necessarily amount to surprise, which in a ground for new trial. Action against surety on note where defendant pleads action of payee in extending time, Horner v.

(SS 2) _H. Newly-discovered evidence._\[98\] See 10 C. L. 1008--The granting of a new trial on the ground of newly-discovered evidence.\_\[99\] is discretionary with the court.\[1\] It will not ordinarily be granted, if the evidence is merely cumulative \[2\] or impeach-

where plat was in evidence locating land \[\] cannot be newly-discovered evidence encla- and plaintiff made no effort to meet evidence. Moore v. Logging (Tex. Civ. App.) \] that had filed statement on whom process 114 SVV 183. 97. Request for continuumee: Where evidence is introduced at trial which is surprise to either party, he should move for continuance to obtain evidence to meet it. If such continuance is not asked, it cannot be made ground for new trial. It was surprise that permanent injury was claimed as not in pleadings until court allowed comma-

126 App. Div. 74, 111 NYS 291. 91. 114 SVV 183. 117 NW 441; Stern v. Volz \[Or.\] 98 P 148; Keek \[Ark.\] 118 SVV 183. Failure to ask continuance on ground of surprise cannot be excused by belief that judge would visit disputed territory. Miller v. Scobie \[Cal.\] \]. 97 P 93. New trial will not be granted on grounds of surprise on account of legitimony given by witness unless party

153 Cal. 652, 96 P 266. Within discretion of granted on grounds of surprise on account

154

of section 1.1.1, 114 SVV 183. 117 NW 441. 117 NWS 291. 114 SWV 291. 114. 114.

ing," except where it would be likely to change the result," or where it merely goes to

ban R. Co. v. Fogelsong, 42 Colo. 341, 94

mother that he was trying to walk plank

P 356; Witt v. Latimer \[Iowa\] 117 NW 680;

when he fell, in impeachment of testimony

Barnes v. Loomis, 199 Mass. 578, 85 NE 862;

of only eyewitness that child stumbled over

Parker-Washington Co. v. St. Louis Transit

end of plank and fell from walk, held no

Co., 131 Mo. App. 508, 109 SWV 1073; Myatt v.

For now trial, City of Chicago v.

Myatt \[N. C.\] 62 SE 887; Kursheedt v. Stan-

Redd, 141 11L App. 514, Affdavit stating

dard Bleachery Co. \[N. J. Law\] 71 A 39;

facts of occurrence, which plaintiff denied

Texza & N. O. R. Co. v. Scarbrough \[Tex.\]

by affdavit, held not ground for new trial,

108 SWV 804. Evidence discovered since trial

Pace v. Webster City, 138 Iowa, 107, 115 NWV

tending to show that claim of injury was

888. Alleged newly-discovered evidence

false and fraudulent held to be cumulative

which would tend only to impeachment testimony

and not ground for new trial, Fiannelly

of witness at former trial and which counsel

v. Delaware & H. Co., 165 F 350. Where

had failed to bring out by cross-examina-

newly-discovered evidence is cumulative and

not of such nature as to satisfy trial judge

a new trial would likely further ends of

11 SWV 1139. Motion for new trial on

justice, new trial will not be granted. De

grounds of newly-discovered evidence based

Vane v. Atlanta, B. & A. R. Co., 46 Ap.

on fact that witness introduced by him, tes-

136, 60 SE 1079. Where newly-discovered

evidence could only be effective in reducing

vendor after purchaer had rejected title,

evidence and is cumulative, it is no ground

for new trial. Settles v. Threlkeld, 140 Ill.

Soomom v. Alexander, 128 App. DIV. 441, 112

App. 275, Where flood after trial showed

MYS 779. Evidence offered in support of

damages as contended at trial in throwing

motion for new trial which is inconsistent

rublish upon land. Cassidy v. Johnson, 41

with former evidence and seems improbable

Ind. App. 696, 84 NE 835. Plaintiff sues de-

and unworthy of credence is not ground for

endant on promissory note on which he

nev trial. Casseri v. Wogelong, 114 NYS

was surety, pleading as defense extension

882. Where write saucolezper in dam-

of time. Stranger hearing conversation can

age for death of husband who committed

give only cumulative evidence, hence new

suleide, evidence tending to show hard feel-

trial denied. Horner v. Schlenstock, 77 Kan.

ing between deceased and plaintiff is not

663, 96 F 143. Evidence as to a breach of

sufficient for new trial. Palmer v. Schurs

warranty. Mitchell v. Emmons \[Me.\] 71 A

\[S. D.\] 117 NWV 150.

231. In suit on insurance policy, question

a Colorado Springs & Interurban R. Co.

was as to value of stock just before fire.

v. Fogelsong, 42 Co. 341, 94 P 365; Kenny

A commercial agent at store estimated it

v. Kennedy \[Cal. App.\] 99 P 84; Kraus v.

at $4,000. Held to be cumulative, hence

Clark \[Neb.\] 116 NWV 164; Keck v. Wood-

within discretion of court to refuse new

ward \[Tex. Civ. App.\] 116 SWV 75. Whether

trial. Blake v. Royal Ins. Co., 133 Mo. App.

afflavite of cumulative newly-discovered

16, 112 SWV 1000. Witness corroborating ey-

evidence were of such character as to change

dence of conversation. Kraus v. Clark

result is within sound discretion of trial

\[Neb.\] 116 NWV 164. Affdavit showing two

court. Kenney v. Kennedy \[Cal. App.\] 99 P

witnesses that would testify to defendants

834. Such nature as to satisfy judge that

presence in a certain place oh May 14, where

new trial would further ends of justice.

be already had had witness to that effect,

De Vane v. Atlanta, B. & A. R. Co., 4 Ga.

held cumulative. Stern v. Volz \[Or.\] 98 F

App. 136, 60 SE 1079. Newly-discovered ey-

dence, on motion for new trial, must be

dence, which contribute rather to volume of

clearly conclusive in its character to re-

testimony than add to weight, change the issues,8 or unless due diligence has been shown,9 and the evidence is ma terial to the Issues 7 and likely to change the result.8 A new trial will not be

Fischer v. Missouri Pac. R. Co. \[Mo. App.\] shortly before explosion of engine. All these

116 SWV 477. Party knowing of facets which

witnesses had been at trial and interviewed

were not communicated to counsel until after

by the claim agent. Held that with proper

trial is not excuse and new trial should not

diligence evidence could have been obtained

be granted, Blair v. Paterson, 131 Mo. App.

before trial, hence new trial denied. Hous-

112, 110 SWV 615. Impeaching testimony not

ton & T. C. R. Co. v. Davenport \[Tex. Civ.

brought out by cross-examination when

App.\] 110 SWV 150. Plaintiff had failed to

forewarned. Nert v. Cameron, 213 Mo. 369,111

interview his grantor living in county to

SWV 1139. Party forgot presence of third

learn everything regarding question of

party when conversation was had, and now

title. Held to elbow lack of diligence.

moved for new trial. Denied. Kraus v. Daugebrty v. Templeton \[Tex. Civ. App.\]

Clark \[Neb.\] 116 NWV 164. Architectects clerk

116 SWV 553. Party injured causing paraly-

now willing to testify that "architects left

sls of lower limbs. Verdict for plaintiff

more or less to inspection of assistants."

Defendant now offers to show that plaintiff

Held not ground for new trial. Nedlinger

5 legars back has suffered from cerebro

v. Onword Const. Co., 124 App. Div. 26, 109

spinal meningitis, had been confined in

NYS 117. Telegram sent to associate in busl-

sane asylum. Held that in face of testimony

ness is not ground for new trial for newly-

showing complete recovery thus not affect-

discovered evidence, where action has been

ing this case, defendant was negligent in

dismissed and time for appeal has expired.

not getting this evidence before. Missouri

Action for alleged breach of contract to buy

K. & T. R. Co. v. Bailey \[Tex. Civ. App.\] 115

railroad stock. Lynch v. McCabe, 126 App.

BVW 601. In suit for architect't see, affidavits

Div. 744, 111 NYS 291. Expert testimony as

to genuiness of signature held to have

newly-discovered evidence since these ex-

been available before trial. Reilly v. Haxel

were witnesses at former trial. Ken-

time, 127 App. Div. 64, 111 NYS 457. After

trail evidence that hotel belongs to wife

will not be granted on newly-discovered

stead of defendant shows negligence in case

and inexcusable delay in offering defense

examined at previous trial and no reason

and inconsistent with former defense. Caser

is shown why they were not questioned at

v. Wogelson, 114 NYS 882. Witnesses preset

ent at time incident happened but not called

at trial. Id. Newly-discovered evidence

11

not ground for new trial where plaintiff

has newly-discovered desirability of producing it. Boyd v. Boyd, 114 NYS 861. Affidavits

davit shows no particular acts of diligence.

statement that "the made every effort" held

not to be sufficient. Stern v. Volz \[Or.\] 98

P 148. Defendant asserts that he went to

trial unprepared and made no move of con-

tinance. Hannan v. Caproni \[R. I.\] 71 A

593. Plaintiff in personal injury action

learned name of eyewitness on January 2nd.

went to trial in month without asking for

confluance. Held not to be entitled to new

trial to make use of such witness. De Hoyos

v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 115

allowed by 75. Newly-discovered evidence offered

from ambulance driver as to admissions of

injured boy. Claim agent had interviewed

him before and there is nothing to show that

defendant did not know of this witness and

what he could testify to before the trial.

Motion for new trial was denied without

error. Texas & P. R. Co. v. Crump \[Tex.\]

115 SWV 26. Defense of forgery to dead was

offered by by Afflavit in April. 1903. Trial took

place in September, 1907. Motion for newly-

discovered evidence filed on October 8 and

armed on October 24 stating that witness

had been searched for but not found until

after trial. Term ended October 25th. Held

that it was not error to denny motion for new

trial. Houston Oil Co. v. Kimball \[Tex. Civ.

App.\] 114 SWV 662. Party should not only

be diligent in discovering testmony, but also

diligent in making use of it when discover-

ered. Party did not file amendment to motion showing his evidence until last day

title. Held

to show that her condition was not

of term and ten days after trial, when evidence was discovered immediately after trial.

for new trial. Georgia Southern & F. R. Co.

Texas & N. O. R. Co. v. S granted, however, where the newly-discovered evidence depended on occurred subsequent to the trial."

(SS 2) \_I. As a matter of right in ejicentent._10_--See 10 C. L. 1006--The allowance of a new trial as a matter of right in ejecentent is purely statutory.11 The Minnesota statute does not apply to suits over waterpower,12 and under that statute the second trial extends to all issues pertinent to title, and if successful entities the winning event to the trial."

greatly, or have a decisive influence upon the evidence to be overturned by it. Monarch v. 105 Minn. 393, 117 NWF 465. Three years evidence to be overturned by it. Monarch v. 105 Minn. 393, 117 NWF 465. Three years evidence to be overturned by it. Monarch v. 114 SWF 276. Action for lum-her cut by defendant. Plaintiff took mortar, architecte vadis incompetent, he he he-gage on land, defendant stating he had decided same to F. He denied deed and two witnesses were found who swore to deed and also that one of them was asked to stay out of state by defendant. Held ground for a new trial. Held v. Wilson \[Ky.\] 116 SWY 244.

Where newly-discovered evidence taken together with evidence in case will probably change result, new trial should be granted. 113 SWY 315. Where the newly-discovered evidence does not meet evidence which in nine into it, defendants discover that roller is not the property of plaintiff. Held ground for new trial should not be granted. 114 S. Louis Transit Co., 121 Mo. App. 508, 109 SWY 1073. Action on contract for def-evidence can apply, there is no ground on nite time, where newly-discovered evidence shows that plaintiff was otherwise employed during time than contrary to his testimony. Held to be ground for a new trial. Chae v. Goldberg, 110 NYS 817. Motion for new trial on grounds of newly-discovered evidence, where it is shown that successful party endeavored to evade re-aponsibility for goods sold to them, should be granted. Costello v. 116 Schoenberg, 110 NYS 926. Discovery of letters which if genuine show that there had been im-proper relations between plaintiff and man named held to be ground for new trial where defense depended on unchastity and bad repute of plaintiff. Raymond v. King, 112 NYS 1. On appeal from decree allowing administrator's account, appellant claimed that because of omission from account of statements of gain or loss on inventory and of investments made. admins-trator was not entitled to compensation; evidence as to loans made by administrator discovered after hearing of appeal and not discoverable before is material as affecting appellant's right to new trial. Stillman v. Moore, 28 R. I. 548, 63 A 726. New trial dented: Four afflavits introduced that plaintiff had "flat foot" before injury complained of. This opposed by four afflavits. No abuse of discretion to deny motion for new trial. Sorts & Frey Planing Mill Co. v. Weil \[Ky.\] 113 SWY 474. Where newly-discovered evidence cannot affect rights of plaintiff and defendant in case no new trial should be granted. Defendant as agent would not be affected by padding of scale, where that question is in adjolication between principal and pur-chaser. Graves v. Bonness, 104 Minn., 135, 116 NWF 209. Conductor missing his train called to brakeman to signal to stop. Brakeman fell from train and it is alleged conductor was careless in obtaining treatment for him. Sult for damages against against company. Newly-discovered evidence in-sufficient. Shaw v. Chicago, etc. R. Co., 135, 118 NWF 564.

12 Cur. Law. NEW TRIAL AND ARREST OF JUDGMENT SS 3. 1087

party to a restitution of property, damages, and costs paid.13 In Oklahoma the fact that other counts are joined is no bar to second trial as to the title; 14 and under the South Dakota statute the court may extend the time beyond the statutory period for the motion for a new trial when an appeal has been taken and evidence has been discovered.15

SS 3. Proceedings to procure new trial.16--See 10 C. L. 1008

\_Motion.\_500 10 C. L. 1008.--In the absence of fraud or collusion between the parties,17 the court has no power to order a new trial of its own motion,18 but the application for a new trial must be made by motion 19 or petition 20 addressed to the proper court.31 The application must be in writing when required,32 must be made within the time limited by statute,33 unless further time is granted by the court,34 except in the

13. Simmons v. Pike, 105 Minn. 106, 117

newly-discovered evidence could be enter-NVP 244.

14. Counts for rents, profits, etc. Hammar v. Rogers \[Okl.\] 86 P 611.

01. A quickilam dead affecting the propperty was found after the appeal had been file written motion unless required so to do taken and the statutory period expired by opposing counsel. Illinois Valley R. Co. Fuller & Johnson Mfg. Co. v. Child \[B. V. Harenzaki, 132 Ill. App. 423. All grounds D.\] 117 NWP 523.

01. Search Note: See notes in $ C. L. 1165.

See, also, Cent. Dig. # 230-335; Dec. Dig. # 230-335; Dec. Dig. # 109-168; 29 Cyg. # 21-1030; 14 A. & E. Emc. p. & P. 716, 837.

17. Court found for defendant, who then died motion for judgment. Court granted

their trial to be in writing are directory, unless new trial on its own motion, which was held erroneous. Scott v. Ford \[Or.\] # P # P # case of newly-discovered evidence found pending an appeal from the judgment." It should be granted only after due and proper notice," unless such notice be waived " or otherwise obviated," must sufficiently specify the errors for which a new trial is demanded," should either be complete in itself or rendered so by exhibit to motion,"

evidence would be, held filed fied too late. Texasa Appellant failed to state grounds he in & N. O. R. Co. v. Scarborough \[Texa.\] 108 tended to base motion on. State v. Robb SVV 804. Motion for new trial will not be entertained after adjournment of term at that motion for new trial will be given on which case was tried, unless original pro-ceeding is instituted for that purpose and sufficient cause is shown. Carter v. Kieran \[Texa. City. App.\] 115 SWV 272. In justice court motions for new trial must be made and acted upon during term in which case is tried. Motion not filed until four days after term adjournment could not be acted upon. Gait, etc., R. Co. v. Scott \[Texa. City. App.\] 115 SWV 870. Under United States and whether it will be made upon afflavits statute, giving new trial on motion in behalf of United States within two years of final disposition of case, refers to time of filing of motion and not decision of court on said motion. Indian depredation claim decided against United States on October 11, 1892. On August 23, 1894, attorney general filed motion for new trial and same acted on April 13, 1895. Contended that deletion should have been made before October 11, 1894. Field that if motion filed within two years of routine, Second v. U. S., 210 U. S. 168, 52 Law Ed. 1007.

24. Statutes relating to time when motion for new trial must be made and passed upon are directory so far as judge is concerned and mandatory applied to movant, unless further time is granted by order of court. Held that where order of court had extended time beyond 10 days for hearing of motion, it was error to dismiss on account of 10 days' limit in statute. Hudson v. Williams \[Ga. App.\] 62 SE 1011.

01. Motion in such case may be deferred until after appeal is determined. Raymond v. Ring, 112 NYS 1.

01. Where party intending to move for new trial must serve notice of such intention within 10 days of notice of decision, adverse party must serve on attorney for such party written notice of decision in order to start 10 days' running. In re-thanks' Estate \[Cal.\] 85 PS 528. Under state requiring notice to be given of motion for new trial within 10 days after entry of judgment, giving notice of intention ie premature and of no effect if given before entry of judgment. Power v. Turner \[Mont.\] 87 PS 960. Unless contrary appears it will be presumed that notice of motion for new trial was filed within 10 days after receipt if notice of entry of judgment and burden . upon adverse party to show that it was not so filed. State v. Second Judicial Dist. Ct. \[Mont.\] 89 PS 139. Under code giving 10 days after notice of entry of judgment in which to file notice of motion for new trial, must serve such notice in legal way, even if adverse party should happen to know or learn of such entry by other means. Serving such notice of entry of judgment by mail where not so authorized not considered each notice, even if attorney admitted receiving such letter. Id. Motion for new trial is properly denied where notice of such motion required by statute is insufficient.

## 12 Cur. Law. NEW TRIAL AND ARREST OF JUDGMENT SS 3. 1089

not lie where even one of instructions ia, fled, false description by clerical error will bad. Stowers Furniture Co. v. Drake (Ala.) \[8\] be rejected as surplusages. At trial four instructions 1-2-"A"-"K" given the defendant ions will not lie where error is not specified. \[1\] Exception to rulings and motion for new trial, in excluding Exx-"K". \[1\] Add that court from arguments, knowing defendant objected to "K," would excluded was admission by plainfill which could not be withdrawn and became part of the evidence of case when filed," was gut.

\[1\] See refected as surplusages. At trial four instructions 1-2-"A"-"K" given the defendant offering "A." Defendant excepts to instructions 1-2-"A" when 'in fact objecting and motion for new trial, in excluding Exx-"K". \[1\] Add that court from arguments, knowing defendant objected to "K," would not consider clerical error in such way as to injure defendant, plainfill not being prejudiced thereby. Warden v. Addington \[1\] Add that court is ground so that edguration \[1\] Add that edgand state grounds sufficient to constitute a defense.\[31\] The motion must in some cases be based upon a proper and sufficient bill of exceptions,\[32\] or a properly settled case and exceptions,\[13\] and in others a sufficient brief of the evidence must be filed " within due time," unless such time has been properly extended.\[38\] Whether or not a party

excessive damages, it not being specifically should be submitted for settlement to trial stated. Duffy v. Radke \[VWs.\] 119 NVV 811.

30. Assignment of error, "three law books" Court has no authority to entertain appil-purporting to be reports of supreme court cation for newly-discovered evidence, based of Alabama, and to introduce in evidence solely on afflavits, until after case and extreme cases reported therein, to wit, " * 12 Cur. Law. NEW TRIAL AND ARREST OF JUDGMENT SS 3. 1091 has complied with the conditions for obtaining a new trial is a question for the court." The motion must be diligently prosecuted or the court may dismiss it," but the mere failure to argue a motion for a new trial does not constitute abandonment of it." A motion for a new trial on the grounds of newly-discovered evidence may be made after a motion on other grounds has been denied.40 The withdrawal of the motion for a new trial in order to interpose the motion for a judgment non obstante veredicto is no bar to a second motion for a new trial.41 A motion before the supreme court for a new trial on the ground of newly-discovered evidence is a matter for the full court, like other motions.42 The order must be set for hearing in term time.48

\_Affidavits.\_Sce 10 C. L. 1012--A petition for a new trial on the grounds of surprise and newly-discovered evidence must be accompanied by the affidavit of the petitioner, his attorney,44 and the proposed witness, or its absence accounted for,45 must show what new evidence consists of,44 why the evidence could not be secured in time for the final hearing,47 and due diligence.48 An affidavit alleging misconduct of the

brief of evidence, it was proper to overrule

trial within reasonable time without just-motion to dismiss motion for new trial be-fable excuse, motion should be dismissed.

cause brief of evidence was not filed with Smith v. American Falls Canal & Power Co. motion for new trial. United States Fidel-\[Idaho\] 95 P 1059. Under Idaho code, where it & Guar. Co. v. Thaggard, 130 Ga. 701, 61

appeal has been taken from order denying SB 726. Stipulations in writting by attor-new trial, after expiration of one year from neys for parties with consent of court may date of judgment and proper diligence is be made to allow filing of brief of evidence

not shown in prosecuting such appeal, same after time limit fixed by statute. Statute

will be dismissed upon proper motion. Id. allowed 30 days after filing of motion in which to file brief of evidence, After 30

39. City of Chicago v. Sullivan, 139 Ill.

days had elapsed attorneys agreed on a date for hearing of motion and that brief

App. 675. If motion for new trial was otherwise properly made and its denial excepted to, fact that it was submitted with-of evidence could then be filed. Held error

to dismiss motion because not filed within

135.

statory time as he had waived his rights.

Clty of Brunswick v. Davenport \[Ga.\] 62

SE 584. Court may 1n its discretion by order in term or in vacation extend time

for presenting brief of evidence and set 72.

new date for hearing of motion for new trial. Hearing set for December 7th in vacation. On December 5th court granted an author extension until December 21. Plaintiff insists that motion be dismissed because

139I of evidence not presented in time.

Held that defendant had until the last date set in which to file brief of evidence. Owens v. Hansen \[Ga.\] 63 SB 346.

37. Writ of mandamus to compel the entry of judgment for plaintiff because he alleges that defendant has not paid costs necessary to entitle to new trial. Held mandamus will not lie. Rogers v. Walsh, 129 App. Div. 506, 114 NYES 185.

01. Under power to dismiss motion on grounds that it has not been prosecuted, determination as to whether there has been due diligence is largely within discretion

of trial court. Movant had done nothing in four months to bring matter to hearing, so motion was dismissed. Dorcy v. Brodia, 153 Cal. 673, 96 P 278. Where by reason of delay party has right to move to dismiss motion, fact that court of its own motion

fixed day in which to settle settlement, or that mover, by ex parte application, secured

fixing of such date, cannot affect right to dismiss. Id. Where there is nothing in record to show that consent had been given to delay, statement of movant denied by re-spondent is no ground to refuse dismissal.

Id. Where movant falls to bring motion to

13.

- 1092 NEW TRIAL AND ARREST OF JUDGMENT SS 3. 12 Cur. Law.
- jury must set up the information regarding the misconduct alleged in full and whence it came.\[49\]
- _Evidence in support of motion._ See 10 C. L. 1012--The affidavit of a juror is ordinarily inadmissible to impeach a verdict,\[50\] but may be read to sustain it\[51\] and to show communications with jurymen in committee room.\[52\] A motion to dismiss a petition because of insufficient affidavit is in the nature of a plea in abatement, after which petitioner is not entitled to leave to amend the petition.\[53\] A motion for a new trial should not be considered and determined on the strength of a verbal stipulation claimed by respondent and denied by appellant,\[54\] nor should the motion on the ground of newly-discovered evidence be denied because plaintiff denies that the evidence if material and admissible should go to jury.\[55\] Witnesses on the question of diligence should be called in some cases.\[56\] On motions for new trials on the grounds that the findings are not supported by the evidence, where it does not appear to the contrary, it will be presumed that they are fully supported by the evidence.\[57\] Under the Michigan statute where the party moving for a new trial desires to raise issues, he must make application to frame issues of fact to be tried by the court, as the adverse party is entitled to have them defined, so as to prepare to meet them.\[58\]
- _Order granting or refusing new trial._ See 10 C. L. 1013--In some states the order granting or refusing a new trial must specify the grounds upon which the motion was made and the ground upon which it was granted,\[59\] while in others the reasons for granting the new trial need not be stated,\[60\] the order being good if supported by any of the grounds assigned in the motion.\[61\] If the order is properly awarded on any ground appearing in the record, it will not be disturbed because an incorrect reason was assigned,\[62\] but the reasons assigned should be consistent.\[63\] A new trial may also be awarded on grounds not assigned therefor.\[44\] A general verdict must be reversed in its entirety and not in part only.\[45\] A court cannot vacate a previous order granting or refusing a new trial for mere error of law, but may relieve a party against an order taken against him through mistake, inadvertence, surprise, or excusable neglect.\[69\] An order setting aside the verdict as contrary to the evidence must set down the case for trial at a specified time.\[70\] Proper "" conditions may be imposed upon the granting of the order,\[69\] and where conditions are not imposed, it must be presumed that it was granted for errors not requiring the imposition of terms.\[70\] Costs need not be imposed where not required by statute.\[71\]

The granting of a motion for a new hearing, filed at the term at which a judgment was rendered, ipso facto vacates the judgment, prevents the decree from becoming final on the adjournment for that term, and opens the cause for a rehearing,\[71\] but it is the order and not the reasons stated therein which vacates the verdict.\[70\] An order granting a new trial given after case has been remanded for a reform of a previous order for new trial renders the previous order not binding.\[74\] A clerical court. Wendling Lumber Co. v. Glenwood Lumber Co., 153 Cal. 411, 95 P 1029.

\*\*63.\*\*Grounds, specified in an order granting a new trial, that a denurnter to the evil-dence should have been sustained, and that the verdict was not supported by the evil-dence, are contradictory if the second condition that defendant shall pay within ground meant that the evidence was not specified time specified sum, is erroneous and must be modified so as to give defend-port the verdict, since a denurnter to the evilence is sustained only where there is not evidence tending to support the action.

Crawford v. Kansas City Stockyards Co.

\*\*64.\*\*Parker v. Britton, 133 Mo. App. 270,

\*\*65.\*\*Order granting new trial because of excessiveness of verdict, which imposes dence, are contradictory if the second condition that defendant shall pay within ground meant that the evidence was not specified time specified sum, is erroneous and must be modified so as to give defend-port the verdict, since a denurnter to the anew trial unless plaintiff will remitt evidence is sustained only where there is not evidence tending to support the action.

\*\*76.\*\*Grounds, specified in an order granting a new trial, that a denurnter to the evil-dence should have been sustained, and that the verdict was not supported by the evil-dence, are contradictory if the second condition that defendant shall pay within ground meant that the evidence was not specified time specified sum, is erroneous and must be modified so as to give defend-port the verdict, since a denurnter to the evilence is sustained only where there is not evidence tending to support the action.

\*\*77.\*\*Grounds, specified in an order granting a new trial, that a denurnter to the evil-dence should have been sustained, and that the verdict was not supported by the evil-dence, are contradictory if the second condition that defendant shall pay within ground meant that the evidence was not specified time specified sum, is erroneous and must be modified so as to give defend-port the verdict, since a denurnter to the evilence is sustained only where there is not evidence tending to support the action.

1094 NEW TRIAL AND ARREST OF JUDGMENT SS 4. 12 Cur. Law. error in the entry of an order for a new trial may be corrected at a subsequent term or an omission inserted." Under the New York statutes an order on a motion is not required to be rendered within the time required in case of judgments," and an order entered upon the record which is not correct upon its face should not be granted and will be reversed." In Utah a copy of the remitittur need not be served on losing party in meeting condition of court in refusing new trial."

_Appeal.--In Illinois the order granting a new trial is not reviewable;" while in California, on an appeal from an order denying a new trial, the appellate court may consider only such matters as are made grounds upon which the superior court is authorized to grant or deny the motion."_ Where party files written motion for new trial, specifying therein the grounds or reasons for such motion, he will be restricted in a court of review to the grounds or reasons specified in such written motion, and will be deemed to have waived all other grounds for a new trial."\_ Where the court on appeal decides that the granting of a new trial on the ground stated by the trial court was proper, no appeal lies from the refusal of the court to sustain other grounds for a new trial."\_ On writ of error, where the only question arises on denial of motion to set aside the verdict as contrary to the evidence, the evidence is to be regarded as on demurrer thereto."\_

SS 4. _Proceedings at new trial."_ See 10 C. L. 3013\_--When a motion for a new trial has been granted, the issues stand as though they had never been tried and it is the duty of the court to proceed as in the first instance."\_ Thus, where a motion for a change of venue has been made before the case is set for retrial, it is incumbent upon the judge to grant the change."\_ A witness who did not testify on first trial may do so on second,"\_ and the court should refuse to allow the testimony given at the former trial to be read to the jury where the witness is present at the trial,"\_ but where the right to contest the validity of an order has been waived, the party is bound thereby whether right or wrong, and the following trial may be confined to the one question involved in the exception."\_ While the admission of evidence which is wholly immaterial would not necessarily require the granting of a new trial, such

75. In entering order "and a new trial is granted herein" was omitted by clerk and in-sented in subsequent term and upheld. Frost 132 III. App. 598. 76. Motion for new trial was not decided before 14 days' limit in case of judgment had expired. Held that motion not governed by statute. Rogers v. Walsh, 129 App. Div. 506, 114 NYB 185. 77. Order entered that motion was made at "trial term" when in fact not made until term had been terminated. Held should be reversed. Hattendorf v. New York City R. Co., 114 NYB 1112. 78. Motion to have original order for new trial made absolute because copy of remitittur not served on defendant was properly defined. Frye v. Kalbaugh, 34 Utah, 35, 97 P 331. 78. Yarber v. Chicago & A. R. Co., 235 III. 589, 85 NE 928. Under the common law no exception to overruling of motion for new trial was authorized. Id. 80. Bone v. Hayes \[Cal.\] 99 P 172. Court on appeal from order ordering new trial" on ground that motion for nonsubul should have been granted and order denied on all other grounds" is not limited to consideration of question whether motion for nonsubul should have been granted. Brett v. Frank & Co., 183 Cal. 267, 94 P 1051. 183 Cal. 267, 94 P 1051. 184. 185. In entering order "and a new trial is granted herein" was omitted by clerk and in- 12 Cur. Law. NEW TRIAL AND ARREST OF JUDGMENT SS 5A. 1095 evidence should be excluded upon the next trial of the case, a new trial having been granted on other grounds." The verdict obtained in the former trial cannot be substituted for that obtained in latter."

SS 5. \_Arrest of judgment. A. Nature and grounds.92_See 10 C. L. 1019--A motion for arrest of judgment is not a motion for a rehearing," but on the contrary its office is said to be to call the court's attention to error patent in the record. The error must be intrinsic to the record and not dehors the record, and must be matter of substance as distinguished from matter of form." The motion reaches illegal verdicts " and raises the question whether the petition states a cause of action on its face, but not whether the judgment is correct on the merits." It does not reach errors reached by motion " or exception," or which may be cured by amendment," verdict 1 or proof.2 Neither does the motion lie to the question of the liability of the party if not raised by the pleadings or at the trial," nor to the amount of damages assessed by the jury where the amount within the amounts laid in both the writ and the declaration," nor to matters which have been waived." There is a 90. Introduction of a memorandum which is immaterial and could not injure plaintiff is no ground for new trial. Dyson v. Knight, 130 Ga. 573, 61 SE 468. sufficient to withstand motion to arrest judgment. Id.

91. New trial granted on newly-discovered evidence involving liability alone. Second verdict smaller than first. First could not be substituted. More-Jonas Glass Co. v, West Jersey & S. S. R. Co. \[N. J. Law\] 69 A 491.

01. Search Note: See Cent. Dig. # 457-500: Dec. Dig. # 259-269: 23 Cyc. 824-835: 2 A. & E. Enc. P. & P. 793.

01. Stdiv v. Missouri Pac. R. Co., 211 Mo. 411, 109 SVW 663.

01. Stdiv v. Missouri Pac. R. Co., 211 Mo. 411, 109 SVW 663. Motion in arrest of judgment, like general demurrer, reaches only matters of substance. Default on action on contract for benefit of third party. Snow v. Merrram, 133 Ill. App. 641.

01. Malicious prosecution against two defendants, verdict for $300 "to be equally divided between them," was held illegal and this not cured by writing off one-half of finding and entering judgment for other jointly against both. Giore v. Atkin \[Ga.\] 62 SE 580.

01. Shearer v. Guardian Trust Co. \[Mo.\]. App.\] 116 SVW 456. Motion in arrest of judgment after verdict reaches declaration stating defective cause of action or none at all, 2Eckes v. Henning, 181 Ill. App. 660. Reaches declarations so defective that they will not sustain a judgment. Henning v. Sampesell, 236 Ill. 375, 86 NE 274. Held that complaint against railroad company, its leasee and against two receivers, could not be against all. Id. Allegations in complaint that plaintiff was in store of defendant to seek employment, entered elevator on invitation which was in general use for all who came to store, sufficiently established relation of passenger and carrier to resist motion in arrest of judgment. Steiskal v. Marshall Field & Co., 238 Ill. 92, 87 NE 117. Where all facts necessary to support were proved at trial, it was only necessary that general terms and scope of complaint were sufficient to admit proof to withstand motion in arrest of judgment. City of Lafayette v. West \[Ind.\] 87 NE 550. In case of action for injuries on account of defective walk, omission conflict of holdings as to whether misjoinder of parties is ground for the motion,\* and as to the effect of a general verdict upon several counts or causes of action, one or more of which is bad.\*

(SS 5) \_B. Motions and proceedings thereon,_8-See s C. L. 1187_-A motion in arrest of judgment is based on the record proper and in its consideration the court does not look into the evidence.\*

Next Friends; Next of KIn, see latest topical index.

## Non-negotiable paper.

_The scope of this topic_ is noted below.\[12\]

Non-negotiable paper must, like other contracts, be supported by a consideration,\[18\] and a statement of consideration may be contradicted.\[14\] Where the instru 12 Cur. Law. NON-NEOGIABLE PAPER. 1097 ment imports a consideration,13 the burden of proving lack thereof is upon the person alleging such defect,14 and parol evidence of the circumstances attending the execution of the instrument are admissible in this connection.17 The term "writing obligatory," does not include an unsealed note.18 Where the time of payment is not definitely fixed, the paper is usually construed as being payable within a reasonable time.19 A promise to pay under restriction that note shall not be payable to any other person executor, trustee or assignee, will be discharged by the payee's death.20 The maker may show that he was induced to sign by certain representatives of the payee's agent, and that pursuant to such representations he subsequently rescinded the note.21 So, also, a note and a collateral memorandum made contemporaneously therewith must be construed together,22 but the maker is not bound by memorandum which he neither signs nor agrees to,23 but the maker is not bound by stipulations and agreements to which he is not a party.24 One who notes sued on held not to give rise to con- | V. Patterson, 5 Humb. \[Tenn.\] 133, 42 Am. elusive presumption of settlement of trust alleged by defendant to have been held by MccIintock, 29 Mo. 464; Goff v. Miller, 41 .W. him in favor of plaintiff so as to negative allegation of lack of consideration for note., 12 my U. S. \[A Cranch\] 219, 2 Law. Benton v. Benton \[Kan.\] 97 P 378. 15. By virtue of statute, a note imports a consideration. South Dakota Cent. R. Co., 15, 16 .W. \[S.\] 16 .W. \[S.\] 16 .W. \[S.\] 170 .W. \[S.\] 1710. 171. South Dakota Cent. R. Co. v. Smith \[S.\] 172 .W. \[S.\] 173 .W. \[S.\] 174 .W. \[S.\] 175 .W. \[S.\] 176 .W. \[S.\] 177 .W. \[S.\] 178 .W. \[S.\] 179 .W. \[S.\] 170 .W. \[S.\] 171 .W. \[S.\] 172 .W. \[S.\] 173 .W. \[S.\] 174 .W. \[S.\] 175 .W. \[S.\] 176 .W. \[S.\] 177 .W. \[S.\] 178 .W. \[S.\] 179 .W. \[S.\] 170 .W. \[S.\] 171 .W. \[S.\] 172 .W. \[S.\] 173 .W. \[S.\] 174 .W. \[S.\] 175 .W. \[S.\] 176 .W. \[S.\] 177 .W. \[S.\] 178 .W. \[S.\] 179 .W. \[S.\] 170 .W. \[S.\] 171 .W. \[S.\] 179 .W. \[S.\] 170 .W. \[S.\] 171 .W. \[S.\] 172 .W. \[S.\] 173 .W. \[S.\] 174 .W. \[S.\] 175 .W. \[S.\] 176 .W. \[S.\] 177 .W. \[S.\] 178 .W. \[S.\] 179 .W. \[S.\] 170 .W. \[S.\] 171 .W. \[S.\] 177 .W. \[S.\] 179 .W. \[S.\] 170 .W. \[S.\] 171 .W. \[S.\] 172 .W. \[S.\] 173 .W. \[S.\] 174 .W. \[S.\] 175 .

writes his name upon the back of a non-negotiable note to give it credit is a guarantor,${}^{28}$ and is prima facie liable upon the default of his principal without any previous notice or demand.${}^{20}$ The presumption that a bill outstanding in the hands of the original payee is a subsisting undischarged obligation, while very strong, is not conclusive,${}^{27}$ and, where it is met by opposing presumptions arising out of the facts of the case, the question of payment becomes one of fact.${}^{28}$

Non-negotiable paper is assignable,${}^{29}$ and by such assignment the assignee is substituted to the rights of the assignor,${}^{30}$ and is entitled to invoke appropriate remedies to enforce such rights,${}^{31}$ but the assignment does not cut off any of the equities or defenses which may exist between the original parties,${}^{32}$ unless, of course, it is otherwise provided by statute.${}^{33}$ At common law non-negotiable paper was not assignable by indorsement,${}^{34}$ but under the rule now prevailing in many states, indorsement and delivery passes title,${}^{35}$ but mere possession of non-negotiable paper

are governed by the rule applicable to bonds rather than that applicable to negotiable instruments," but the cases cited seem to apply a different rule. There is no good reason, however, for such distinction, and the rule applicable to bonds and other non-negotiable instruments should apply to non-negotiable notes, one of such rules being that no understanding between the parties making or indorsing a note that the indorsement shall be liable in a different capacity or upon same contingency to be fulfilled, will avail against the payee, unless before delivery he knows of such understanding. See Joyce v. Cockill, 85 C. C. A. 38, 92 F 838; Jordan v. Jordan, 78 Tenn. 124, 43 Am. Rep. 294,${}\_{-}$Adopted from Kidd v. Beckley \[V. Va.1\] 68 NE 1088.

25. Tilden v. Gody Mach. Co. \[Cal. App.\]

98 P 39.

26. Tilden v. Gody Mach. Co. \[Cal. App.\]

98 P 39. Corporation held estopped to re-padlate Indorsement where it received bene-nt of loan secured thereby. Id.

27. In re McMichan's Estate, 220 Pa. 187, 69 A 596. Presumption held rebutted where subsequent to its date the payee had in his hands the means of payment which he paid over without deduction. Id.

01. In re McMichan's Estate, 220 Pa. 187, 69 A 596.

01. Receiver's certificates of indebtedness. McCarthy v. Crawford, 238 Ill. 38, 86 NE 750.

In absence of defenses, maker of non-negotiable paper is bound to equitable assignee thereof Shock v. Colorado County \[Tex. Civ. App.\] 115 SW 61. Instrument acknowledging receipt of certain personal property and containing promise by maker to pay certain sum in stated Instalments, but reserving title in vendor until payments were fully made, held assignable under Cliv. Code 1895, $ 8682, though it contained no words of negotiability. Walker v. Carpenter \[Ga. App.\] 63 SE 576.

30. Assignee of certificate of indebtedness issued by receiver of corporation succeeds to assignor's right to share in distribution of corporate assets. McCarthy v. Crawford, 238 Ill. 38, 86 NE 750.

01. Assignee of certificate of indebtedness issued by receiver of corporation may complel registration of the assignment. McCarthy v. Crawford, 238 Ill. 38, 86 NE 750.

01. Harvey v. Dimon, 36 Pa. Super. Ct.

82; Rieck v. Daigle \[N. D.\] 117 NW 346; Citi-struments," but the cases cited seem to zens' Bank of Wakita v. Garnett \[Okl.\] 95

apply a different rule. There is no good reason, however, for such distinction, and the rule applicable to bonds and other non-negotiable instruments should apply to non-negotiable notes, one of such rules being that no understanding between the parties making or indorsing a note that the indorsement is able in a different capacity or upon same contingency to be fulfilled, will avail against the payee, unless before delivery he knows of such understanding. See Joyce v. Cockill, 85 C. C. A. 38, 92 F 838; Jordan v. Jordan, 78 Tenn. 124, 43 Am. Rep. 294,${}\_{-}$Adopted from Kidd v. Beckley \[V. Va.1\] 68 NE 1088.

25. Tilden v. Gody Mach. Co. \[Cal. App.\]

98 P 39.

26. Tilden v. Gody Mach. Co. \[Cal. App.\]

98 P 39. Corporation held estopped to re-padlate Indorsement where it received bene-nt of loan secured thereby. Id.

27. In re McMichan's Estate, 220 Pa. 187, 69 A 596. Presumption held rebutted where subsequent to its date the payee had in his hands the means of payment which he paid over without deduction. Id.

01. In re McMichan's Estate, 220 Pa. 187, 69 A

## 12 Cur. Law. Notaries and Commissioners of Deeds.

1099 does not carry with it any presumption of ownership.\[46\] Where the paper is assignable by indorsement, the assignee may fill in a blank indorsement with words of formal assignments.\[37\] The words "without recourse' to the assignor" have no fixed legal significance in connection with an assignment of non-negotiable instruments,\[38\] and must be interpreted in the light of all the circumstances.\[39\]

In the absence of statutory authority, the assignee of non-negotiable paper cannot use thereon in his own name,\[46\] but he is quite commonly authorized by statute so to do.\[41\] The effect of some of the statutes is to render an assignor by indorsement liable to suit in the same action with the maker.\[42\] The payee of a non-negotiable draft may sue thereon in his own name.\[48\] The fulfillment of all conditions upon which the promise to pay is predicated must be alleged,\[44\] provided, of course, the conditions are recognized as such by the law in its interpretation of the contract.\[45\] Where promissory notes given in payment for property sold under contract of warranty have passed out of the control of the payee, the maker may elect to treat them as valid obligations, though they are non-negotiable \[46\] and his failure to interpose his defense in a suit by the holder of such notes will not preclude him from maintaining an action for breach of the warranty against the payee,\[47\] and where the payee makes no offer to return the paper, the maker may, in such a suit, recover the value of the paper.\[48\] Equity will not enforce security given to secure an invalid note.\[49\]

Nonresidence; Nonsuit, see latest topical index.

NOTARIES AND COMISSIONERS OF DEEDS.\[47\]

_The scope of this topic_ is noted below.\[51\]

A notary public is not a commissioner.\[52\] Under statute "no notary" is authorized to take acknowledgments, administer oaths, certify papers, or perform any official acts in connection with matters in which he is employed as counsel, attorney or agent, or in which he may be in any way interested before the department of the United States government.\[53\] In Nebraska the seal of a notary which contains the

86. In re Perry, 114 NYS 246.

01. Larson v. Glos, 235 Ill. 584, 85 NE 926.

38, 89. Koeh v. Hinkle, 35 Pa. Super. Ct.

421.

001. National Council K. & L of S. v. Hinkle

bernian Banking Ass'n, 137 Ill. App. 175.

41. Rev. Laws, c. 178, & 4. MacKeown v.

Lacey, 200 Mass. 437, 85 NE 789.

42. Payee of instrument assignable under Rev. Code 185, 8 3682, who made indorsement on back thereof which the "transfers, cells and assigns" the same and the property for the purchase price of which it was given, held liable as indorser in same action with maker. Walker v. Carpenter \[Eq. App.\] 63 SE 576.

01. Though he has no beneficial interest therein. See Comp. Laws 1897, & 2685, sub-secs. 2, 3. Eagle Min. & Imp. Co. v. Lund

\[N. M.\] 94 P 949.

44. Guardian's note providing that amount therein promised is to be paid out of ward's estate in hands of guardian when available. Teasley v. Brenau Ass'n, 4 Ga. App. 243, 81 SE 141.

01. In suing on paper whereby maker promises to pay as soon as he can, It is not necessary to allege maker's ability to pay, such paper being construed to be payable

withn reasonable time. Benton v. Benton

\[Kan.\] 97 P 378.

48, 47. Delaney v. Great Bend Implement

Co. \[Kan.\] 98 P 781.

48. Burgess v. Aleorn, 75 Kan. 735, 90 P

01.

01. Note invalld for lack of consideration.

Bradshaw v. Farnsworth \[W. Va.\] 63 SE 755.

See Pledges, 10 C. L. 1253.

50. See 10 C. L. 1014.

Search Note: See notes in 83 L. R. A. 92:

36 Id. 822; 38 Id. 214; 5 L. R. A. (N. S.) 415;

52. A. S. R. 380; 1 Ann. Cas. 644; 6 Id. 37, 285.

See, also, Acknowledgement, Cent. Dlg.; Dec. Dig.; 1 Cyc. 364, 506-629; A.M.A.M.S.

Cent. Dlg.; Dec. Dlg.; 2 Cyc. 1-37; Notaries,

Cent. Dlg.; Dec. Dlg.; 29 Cyc. 1068, 1107;

21 A. & E. Einc. L (2ed.) 552.

51. As to particular duties and powers, see Acknowledgements, 11 C. L. 106, and Negotiable Instruments, 12 C. L. 1018.

01. Improper to tax commissioner's fees for taking depositions, testim words "notarial seal," the name of the county for which the notary was appointed, and the word "Nebraska," is sufficient, for the authentication of his official acts," and the notary's failure to write under his official signature the date when his commission will expire as directed by statute does not render his certificate void where in fact he had power to act." In Illinois it is only where a notary certifies under his official seal that he has authority to administer oaths under the statute of the state under which he holds his commission that the certificate is prima facie evidence of his statutory authority to do so." Under statute making a notary liable for his official misconduct to those injured thereby, a notary is liable to one sustaining loss through his violation of a statute prohibiting the taking of acknowledgments unless the acknowledging person is identified to him as prescribed." No-taries are entitled to reasonable compensation for the services performed."

Notes of Issue; Notice, see latest topical index.

NOTICE AND RECORD OF TITLE.

1. Boan Flide Purchaser and Doctrine of

D. Sufficiency, Operation, and Effect of

Notice, 1100. Requisites of a Bona

Fide Purchaser, 1103. A. Valuable

E. Possession Under Chattel Mortgages;

Confacitation, 1103. Good Faith,

1103. Notice or Knowledge, 1103.

F. Willis and Their Probate and Admin-

2. Statutory Records or Filings as Constructive Proceedings, 1116.

G. Recording Officers and Administration

A. In General, 1107.

H. Discharge of Record, 1117.

C. Necessity and Effect of Recording,

1108.

Tiles Under the Torrens System,

1117.

_The scope of this topic is noted below."_

1. _Bona fide purchaser and doctrine of notice,"_ See 10 C. L. 1015.\_It is the policy of the law to protect one who acquires an interest in property in good faith for value and without notice of outstanding interests," but the doctrine of bona

at L. 1279, c. 854, not confined in its appli-

unreasonable for administering oaths to

cation to notaries public of the District of

witnesses, even though notary be considered

Columbia. Hall's Safe Co. v. Herring-Hall:

a commissioner. Valk Y. Eric R. Co., 128

Marvin Safe Co., 31 Apr. D. C. 498. Under

App. Div. 470, 112 NYS 192.

proviso, notary appointed in one state not

59. It includes all matter relating to no-

authorized to certify in official capacity to

tice actual or constructive to purchasers and

instrument filed by him as attorney for

incumbraers as to previous claims and

party to whom he administered oath, and

qutiles except the doctrines of bona fide

which was to be used before patent

under occupying claimants acts (see Acces-

partment. 1d.

sion and Convention of Property, 11 C. L. 11),

54. Under Comp. St. $ 5, c. 61, name or

initials of name of notary is permissive

Sales, 12 C. L. 462), notice from judgment

only. Sheridan County v. McKinney, 79 Neb.

dockets (see Jougments, 12 C. L. 468), his

220, 115 NWV 548.

55. Comp. St. 1903, $ 5, c. 61, as amended

bona fide purchaser of negotiable paper (see

in 1893. Sheridan County v. McKinney, 79

Negotiable Instruments, 12 C. L. 1018). The

Neb. 230, 115 NWV 548.

56. Rev. St. $ 6, c. 101. No evidence in

tion includes the filing or recording of chat-

record that notary was officer authorized to

tol mortgages and conditional sales and

administer oath in place where affiduation of land titles under the Torrens

was made as required by Chancey Act, $ 14.

Wellington v. Wellington, 137 Ill. App. 394.

60. Search Note: See notes in 7 L. R. A.

01. Notary liable under Pol. Code, $ 801,

for violation of City, Code 1185, person ac-

knowledge not being personally known

82 Id. 513; 104 Id. 331.

nor identified by witness known to notary.

See, also, Chattel Mortgages, Cent. Dig.

Homan v. Wayer (Cal. App.) $ 87 80. No

83 27-711; Dec. Dig. $ 139-156; 8 Cyc. 1070-

privity between the parties is necessary to

1079; 7 Id. 41; Mortgages, Cent. Dig. $ 344-

recovery, Id. Liability for making false

876; Dec. Dig. $ 152-157; 27 Cyc. 1183-1192;

certificate to an acknowledgment not de

Sales, Cent. Dig. $ 657-703, 136-1402; Dec.

pendent upon whether acts of others con-

tributed to injury where party defrauded

cancel upon notary's fade 12 Cur. Law. NOTICE AND RECOARD OF Tittle SS 1.101 1101

fide purchase is inapplicable in cases where a grantor either does not have the title

lariy subd., Notice or Knowledge, and SS 2.

Berna fide purchaser takes free from secret

equities and good title descends to his heirs.

Hendricks v. Calloway, 211 Mo. 636, 111 SW

60. Where purchaser paid full value, took

fide purchaser and protected. Allen West warranty deed, went into possession, and

Commission Co. v. Milstead \[Miss.\] 46 S 256, made improvements without notice of facts

Judigment held not correctable as to him.

cxciting inquiry, he took free from unredreded equity. Id. Real Property Law,

$ 160, giving to purchasers for valuable condieration claiming under defective execution of a power same relief as purchasers

claiming under defective conveyance, held

applicable for protection of bona fide purchasers. Doscher v. Wyckoff, 113 NYS 655,

Evidence held to sustain finding that purfichened

with notice of outstanding equity. Eu-

no notice of prior administrator's sale. Holand v. Nance \[Tex.\] 114 SW 346. Question

of bona fide purchase held not involved, it

not appearing subsequent deed embraced

land conveyed by prior unrecorded deed.

Davidson v. Jenkins \[Ky.\] 113 SW 901.

Prior agreements in general: purchaser

without knowledge of agreement string

boundary time at variance with original sur

vey held protected. Louisiana & T. Lumber

provisions. Pegay v. Pure \[Ga.\] 62 SE 47.

Co. v. Dupuy \[Tex. Civ. App.\] 113 SW 978.

Innocent purchasers held protected as

against claims of attorers for services in

and mortgage, though not against an in-

litigation involving the land. Hdonett v.

Stewart \[Ga.\] 61 SB 1124; Lewright v. Da-

vls \[Tex. Civ. App.\] 115 SW 599; Bendhelm

v. Pickford, 31 App. D. C. 488. Trustee and

bondholders if bona fide purchasers for

gase had notice of defects in mortgage's

value held prior in rights to one claiming

title by reason of fraud practiced in obtain-

under prior agreement by mortgage's rights were superior to

manner of parsing for property. Ingram v.

chincinnati, etc., R. Co., 32 Ky. L. R. 844, 107

Wren \[Ariz.\] 95 P 124. Complaint to set

SWW 239. Where land sold under execution

was purchased by sureties on stay bond of

against subsequent grantees not alleged to

owner, who also took outtailum from owner,

have had knowledge or to have participated

survties' grantee held not subject to secret

in the fraud. Denike v. Santa Clara Valley

equities of owner based on agreement that

land should be reconveyed by sureties, such

grantee being without notice. Brown v.

Nelms \[Ark.\] 112 SW 378.

Empirical everoneases: Bona fide purchaser

held protected as against prior parabaser of

turner. Ohio Pail Co. v. Cook & Co. \[Pa.\] 498. Bona fide purchaser not affected by

71 A 1051. Where purchaser had neither

account nor constructive notice of prior con-

tax tittile while acting as agent of original

tract of sale, prior purchaser had no lien on

owner. St. Louis & Arkansas Lumber &

the land. Fowiles v. Bentley \[Mo. App.\] 118 Mgr. Co. v. Godwin, 58 Ark. 372, 108 SW 516.

SWW 1090. That mortgages without notice

of prior unrecorded deed would be protected

in their Items held not to affect grantee's

brank as to grantee with instructions to

right to retain her tittic as against grator's

post in escrow. Crevelling v. Banta, 138

legates and executor. Maxwell v. Harper

\[Vash.\] 98 P 756.

**Debts, mortgages and other Hens: Bona**

fide purchasers from a corporation may account

quire its assets free of corporate debts.

ment was made for a different purpose. Ra-

Luedecke v. Des Moines Cabinet Co. \[Iowa\]

118 NPV 456. Crediitors without actual no-

tice held protected as against holder of Chat-

tel mortgage of future earnings of threshing

machine, men and teams, within certain

townships, no contracts for threshing hay-

ing been made when mortgage was given.

Dyer v. Schnieder, 106 Minn. 271, 118 NW

101L. Innocent purchasers held to take free

from outstanding note and entitled to rely

on recfali in deed that Iien to secure same

had been discharged. Templeman v. McC-

- 1108 Notice and Record of Title $ 1.12 Cur. Law.

he assumes to convey " or is totally incapacitated," and a purchaser of only an equitable interest takes subject to such equities as existed against it in the hands of his vendor."

The authorities are inharmonious on the burden of proof." A claimant of a mere equity must show that the taker of the legal title was not a bona fide pur.

only lack of consideration but that defendants were not entitled to rely on mortgages as admissions of indebtednes. Id. Pur-chaer without notice or knowledge of prior recovery against railroad company of all damages present and future due to company's maintenance of an embankment which did not create a permanent nuisance in law, and without notice of prior owner's full release of all future damages, held not precluded from recovering against company for subsequent overflows of water due to insufficient culverta and squeeways. St. Louis S. W. R. Co. v. Long \[Tex. Civ. App.\] 113 SW7 816.

**Held not bona fide purchasersi:** Purchaser with knowledge that others than grantors were in possession and exercised acts of ownership and who gave no consideration except a mortgage on the property. Morris v. Blunt \[Utah\] 99 P 686. Corporation purchasing assets of another corporation and issuing its stock to owner of all stock of selling corporation held not bona fide purchaser as against creditors of selling corporation. Luedecke v. Des Moines Cabinet Co. \[Iowa\] 118 NW 456. Where conveyance from husband to wife was bona fide and valid, husband's judgment creditor purchasing at execution sale held not innocent purchaser though by mistake deed from husband to wife stated consideration to be love and affection. Jones v. Anderson \[Ky.\] 116 SSV 253. Where verbal pledging land was made before enactment of stat- note requiring record of certain instruments within 40 days after execution in order to affect subsequent creditors, and plaintiffs were either only simple contract creditors or holders of judgments recovered after noticeable of head given pursuant to such agreement, plaintiffs were not subsequent creditors of mortgagor for value and without notice. Miller v. Wroton \[S. C.\] 63 SE 62. Trustees and executors loaning large sum of trust funds and taking mortgage either reclessly without knowledge of title of mortgagor which had been donated to him on condition, or else improvrolently relying on mortgagor's ability to carry out condition, held without equity as against sub-acribers to fund for purchase and donation who used for re-entry and removal of mortgage as a cloud. Fowler v. Coates, 128 App. Dlv. 381, 112 NYS 849.

\*\*62. Lack of notice of rights of remainder-men held not to affect assertion of such rights, after death of life tenaut, against grantees who had made improvements and paid taxes. Willittle v. Berry, 322 Ill. 381, 83 NE 852. One who held property under a mere contract for purchase could not confer title on subsequent purchaser, though latter was without notice of rights of title holder. Taylor v. Applebaum \[Mich.\] 15 Dot. Leg. N. 928, 118 NW 492. Good faith or notice of subsequent grantee held immaterial where earlier deed was forced. Sapp chaser,"" and where fraudulent intent on the part of a grantor is shown, the purchaser must establish good faith on his part."

\_Requisites of a bona fide purchaser.\_See **C. L. 1170**

\_A valuable consideration_See **10 C. L. 1017**

is essential," but a consideration to be valuable need not be adequate in point of fact." A pre-existing debt, is not sufficient."

\_Good faith.\_See **10 C. L. 1018**

_Inadequacy of consideration is evidence on the issue of good faith."_

\_Notice or knowledge.\_See **10 C. L. 1018**

One must not have had actual or constructive notice of outstanding equities," except where he takes from a bona fide purament of purchase price before notice of tion of rights of children held not innocent prior deed. Bugs v. Seay, 107 Va. 648, 60 SPEENES. Burel v. Baker \[Ark.\] 116 SWSE 89. Middleton v. Johnston \[Tex. Civ. App.\] 110 SWV 789; Thomason v. Berwick \[Tex. Civ. App.\] 113 SWV 567. One holding equitable v. Hunter \[Tex. Civ. App.\] 109 SWV 237. Intitle derived from hears of wife of holder of sufficient to show that plaintiff in ejectment legal title. Davidson v. Renfto \[Tex. Civ. App.\] 114 SWV 449, Burden on land owner to show that purchaser from adjoining consideration for the land. Bugs v. Seay, owner had notice of agreement fixing boun-107 Va. 648, 60 SPEENES. Insufficient to show diary line where such line was not same as original line. Louisiana & T. Lumber Co. notice of prior unrecorded conveyance. v. Dupuy \[Tex. Civ. App.\] 113 SWV 973. Where under bill charging purchaser with 114 SWV 662.

notice of outstanding equities and participation in fraud on plaintiff, and under answer denying these charges and pleading good faith, plaintiff introduced no evidence of notice and defendants produced as much evidence in support of answer as nature of case permitted, finding of bona fide purchase was proper. Hendricks v. Calloway, 211 Mo. 536, 111 SWV 60.

**67.** Prehrasen from vendor who intended to defend creditors has burden of proving good faith. Crawford v. Lininger & Metcalf Co. \[Kan.\] 95 P 1148. Vhere a conveyance is fraudulent, person attacking same need only show fraudulent intent on part of grantor, and grantor who pleads bona fide purchase has burden of proof. Barnhart v. Anderson \[S. D.\] 118 NWV 31; Brooks v. Garner \[Colk.\] 97 P 985, and cases cited.

**68.** To protection of second grantee as against prior deed. Conway v. Rock \[Iowa\] 117 NWV 273. Creditor allowing debtors to sell goods to pay other creditors and agreeing to furnish additional stock in consideration of a mortgage on farm belonging to some of debtors held equitable mortgage for value. Richardson v. Wren \[Ariz.\] 95 P 124. Also mortgage for value of land taken in exchange for that mortgaged purament to agreement letting other land go free of incumbrance. Id. Rule that aven-dee is not bona fide purchaser until he has actually paid purchase price or become irrevocably bound therefor cannot be invoked against one who has promised to give a consideration, unless transfer will hinder or delay creditors. Everitt v. Farmers' & Merchants' Bank \[Xeb.\] 117 NWV 401. Extension of time for payment of overdue paper on condition makers would pay interest in advance held sufficient consideration for mortgage. First Nat. Bank v. Farmers' & Merchants' Nat. Bank \[Ind.\] 86 NE 417. Mere v. Hixson \[Or.\] 98 P 515. Evidence held to show that purchaser of personality had aco-homesetad property in defendant in violation of mortgages so as to put them

### 1104 Notic and Record of Title $ 1.12 Cur. Law.

on inquiry. Id. Where mortgagor commingled mortgaged chattels with chattels not mortgaged, purchaser with notice of mortgage was in same position as mortgage and mortgage could take all property necessary to satisfy the debt. Id. Assignee of trust deed held without actual or constructive notice of prior outstanding, eguntable mortgage. Rohde v. Rohn, 232 IL 180, 83 NE 465. Deed recling existence of a mortgage held not notice of unrecorded mortgage for different amount and dated after date from which mortgage excited bore interest, where reited mortgage appeared to perchaser's rights thereunder stands in of record. Volk v. Eaton, 219 Pa. 649, 69 A 91. Where grantee knew land had been pad for party with money of a lunate of whom grantor was committee, she took sub-jet to Item in favor of lunate. Haring v. Murphy, 113 NYS 452. Mortgage truste's statement, "Yes, and when we took our trust deed we thought we were getting a good title and would only be subject to judgments of record," made in answer to suggestion as to his knowledge of attachment proceedings, held insufficient to show notice of attachment lien. First Nat. Bank of Peeria v. Farmers' & Merchants' Nat. Bank \[Ind.\] $6 NE 417. A party to litiga- tion is charged with notice that attorney for opposite party will have attorney"s lien on property recovered for professional services (Hodenett v. Stewart \[Ga.\] $1 SE 1124), but is not charged with notice of agreement that attorney is to have part of the property (Id.).

**Frand:** Instructions Ignoring tendency of testimony to show notice to defendant of fraud of his transformer in acquiring file to goods purchased held properly refused. Pohlam v. Chattabochece Grocery Co. \[Ala.\]

47 S 172. Evidence held to sustain finding that after a certain date one dealing with another who had certain deeds in his possession had notice that deeds had been obtained by **frand**. Crevelling v. Banta, 138 Iowa, 47, 115 NW 598. One acquiring property from a fraudulent purchaser, under circumstances preventing him from being purchaser in good faith for valuable consideration, is in no better position than fraudulent vende. Wendling Lumber Co., v. Glenwood Lumber Co., 153 Cal. 411, 95 P 1029. Subject to same remedies as de-frauded party might exercise against fraud- undivent vende. Id. Notice to an agent or trustee of a prior unrecorded mortgage is notice to the principal. Schoolfield v. Cogdell \[Tenn.\] 113 SW 375.

**Prior sales:** Deed taken subject to pre-vious deeds held inferior to a previous deed recorded when made. Raley v. Magende might be taken to satisfy a vendors' Item.

\*\*T(Tex. Civ. App.J 116 SWV 174. Purchaser from one who held bond for deed held to take subject to rights of assignee of part interest in bond of which rights he had ac- and constructive notice. Wolfe v. Chidas, 42 Colo. 121, 94 P 292. Second deed after grantees had knowledge of prior convenience to plaintiffs' grantor held to add nothing to grantees' rights as alleged In-noeent purchasers. Cunningham v. Buck-Ingham \[Tex. Civ. App.J 111 SWV 766. Pro-vision in deed of junior grantee binding grantor to return purchase money if record112 SWV 255. Vende's title held volatile) but had was in any way incurred to prejudice of sale held not evl- or trustee of a prior unrecorded mortgage.

**Gence that grantor knew when he took his model that his contract had already conveyed to another. Houston Oil Co. v. Kimball**

**T(Tex. Civ. App.J 114 SWV 662. Subsequent mortgage held without notice of prior unrecorded conveyance. Hibernia Say, & Loan**

\*\*Soc. v. Farnam, 163 Cal. 578, 96 P 9. By-standard's declaration to purchasers: "Re-member, even though I haven't it now, I have a hold there yet," held not notice that declarant held dec. Hits v. Stroh, 113 NYS 30. Persons taking deced with full knowled edge of prior contract of sale and subject to purchased's rights thereunder stands in shoes of vendor and will be compelled to perform accordingly. Van Dyke v. Cole \[Vt.\] 70 A 698. Vendees with knowledge that vendor's agent had contracted to sell to plaintiff held not in position to complain of specific performance of plaintiff's contract. Jasper v. Wilson \[N. M.\] 94 P 951.

**Subsequent purchasers with knowledge of previous attempted purchase by plaintiff**

**Frand:** Evidence held to have subject to plaintiff's lien for amount paid. Lowe v. Maynard \[Ky.\] 115 SWV 214. Evidence held to show that de-frauded item acquired title to really with actual notice of plaintiff's rights therein under agreement by which land should have been conveyed to plaintiff. Chadwick v. Arnold, 34 Utah, 48, 95 P 527. Purchaser with no-frauded item to their vendor held title in trust held in no better position than vendor to assert title. Id. Purchasers held bound to respect existing contract of sale of timber of which they had knowledge. Arcev v. Rozzell, 32 Ky. L. R. 1342, 108 SWV 846. Evidence held to justify finding of actual notice to purchaser of prior sale of trees, though de

## 12 Cur. Law. Notice and Record of Title 1.

**ABSTRACT**

Hence possession " or visible user " is notice, and one who acquires an interest in property is bound to take notice of all facts disclosed by the direct chain of conveyances terminating with himself." One may also have notice by reason of some

pany. Illinois Cent. R. Co. v. Sanders \[Miss.\]

when unrecorded deed was given will not 46 S 241. That one had used wall on land \[and\] constitute notice of grantee's rights. Foin-of adjoining proprietary for support of his \[Fla.\] # S 197. Possessionis building prior to destruction by fire held not \[by one who is not life meant is not notice \] sufficient to charge purchaser of land on \[which wall was situated with knowledge of\] interest, the life tenant being still living. Unrecorded contract giving right to continued support. Bowbury v. Richards \[Neb.\] and record of a certain mortrage executed \[like NVV 677. Where subsequent mortrage\] was told by mortgagor of existence of mortgage to plaintiff, he was not relieved by \[and\] merely searching reexend but should have \[that\] aquired of plaintiff. Wattles v. Slater \[Mich.\] # S 19C. Leg. N 864. 118 NWV 486. Where IEE \[and\] had been drawn through record of acknowledgment of a deed, but subsequent purchaser \[and\] has a signant grantee's creditors \[though not seeing record relied on abstract\] containing facts calling for examination of \[and\] occuped except for pasture mid hay. Id. title, which examination would have re- \[operation on land under timber agreement\] \[and\] noted notice of rights under subsequent notice thereof. Williams v. Butterfield, 214 \[and\] # S 19C. 19C.

relation in which he may stand."1 There is a conflict as to whether a quitclaim grantee is a bona fide purchaser."2 If one is a bona fide purchaser, he will not be affected by the fact that his grantor had notice,"3 and if he conveys to another, the fact that he takes a reconveyance after the appearance of record of a deed executed before he took his first deed cannot affect his rights."4 While notice to a purchaser for value may be inferred from circumstances,"5 the proof must be such as to affect his conscience and show mala fides,"5

SS 2. _Statutory records or. filings as constructive notice. A. In general."7...8"_

- C. L. 1174

(SS 2) \_B. Eligibility to record.\_8 See 10 C. L. 1022_That its record may give constructive notice, an instrument must be properly executed and acknowledged,"4

of a mortgage for $594 bearing interest from

an interest or estate to convey. Id. Quit-July 12 held not notice of another mortgage

claim deed held superior to prior unrecorded for different amount and dated after July 12,

conveyances. Id. Quitclaim grantee for where $594 mortgage appeared released of

value without notice holds fee of prior un-record. Volk. v. Eaton, 219 Pa. 649, 68 A. 91.

recorded and recordable equitites (Hen-)

Recitals in chain of title held notice to defendants of existence of an early deed. Mc-Donald v. Eranks (Tex. Civ. App.) 113 SVF 604.

S1. Purchaser as successor to option holder

who had notice held to stand in latter's

S5. Clark v. Hoover \[Tex. Civ. App.\] 110

shose so that he could not be innocent. Sel-

S6. Clark v. Hoover \[Tex. Civ. App.\] 110

bel v. Higham \[Mo.\] 115 SVF 987. Wife taking ded pending action concerning property

s5, 86. Crane's Nest Coal & Coke Co. v.

held not bona fide purchaser within his pen-

G2 SE 954.

purchaser had notice of the facts. City of

Middelsboro v. Coal & Iron Bank, 33 Ky. L.

S43; T. L. A. (N. S.) 415; 6 Ann. Cas. 258.

K. 49, 110 SVF 355. Where a mortgage is

taken with notice of a trust in favor of one

who contributed to consideration for con-

vearance to mortgagor, mortgage is subject

to trust so that any title to contributor's

interest acquired by mortgage's adminis-

matrix under foreclosure will be held in

trust for contributor or his grantee, though

administatrix had no notice of the trust

(Moultrie v. Wright \[CaL\] 98 P 257), but if

both mortgage and personal representative

are without notice, latter takes as innocent

purchaser free from trust (Id.).

82. Quitclaim deed by its terms puts

grantee upon notice he is getting a doubtful title. Abernathy v. South & W. R. Co.

\[N. C.\] 68 SE 180. Quitclaim in chain of title

held insignificant as notice of defects or

equities. Brown v. Nelms \[Ark.\] 112 SVF 378.

No implication of defect in title can be

drawn from use of quitclaim deed so as to

make grantee in chain of title thereunder

purchaser with notice. Coomb v. Aborn \[R. L\] 68 A 817. Quitclaim grantee takes

subject to record notice and, in addition, to

such interest and equitites as he could have

discovered by exercise of reasonable diligence. Ennis v. Tucker \[Kan.\] 96 P 140.

Held not to take subject to prior unrecorded

quitclaim deed so concealed that it was not

discoverable by exercise of reasonable diligence. Id. If quitclaim grantee acts in

good faith, pays a valuable consideration,

and has no actual notice of outstanding

equities or unrecorded instruments, he takes

subject to only those rights which are dis-

overable through investigation of records

and by exercise of reasonable inquiries.

Eger v. Brown, 77 Kan. 510, 94 P 803. Not

necessary he should catchies vendor

specting latter's estate in the land when

vendor on face of record appears to have

and and the record of instruments of a class not recordable is ineffective. \[90\] Under some statutes, chattel mortgages must be accompanied by a sufficient affidavit of consideration. \[91\] Probate for registration is required in some jurisdictions. \[92\] (SS 2) _C. Necessity and effect of recording. \[93\]_ See 10 C. L. \[102\]--As to such instruments or claims as the law requires to be recorded or filed, \[94\] record or filing is

client for record. Stark v. Kirkley, 129 Mo. \[95\] \[96\] \[97\] \[98\] \[99 essential for the protection of the holders against the claims of subsequent creditors or bona fide purchasers 96 whose deeds or other instruments are first duly recorded;96

Footnote 96: The _Lav_ is a \_Lav but recording does not affect the validity of an instrument as such,97 and hence an unfiled or unrecorded instrument is valid as between the parties98 and as against

ture sales. Scherl v. Flam, 129 App. Div. 561, 114 NYE 86. Unrecorded reservation of title Wash. 357, 93 P 438. held invalid against purchaser of an inter- 60. Of contracts for sale of land, that "et in property without notice, though en- "which is first registered is superior under "feited to priority over subsequent unrecorded "feited 1905, $ 880. Combes v. Adams \[N. C.\] chattel metergase. Code Ga. 1895, $ 2777. In "6S 8E 186. Priority between purchasers' der- "memorstage held superior to unrecorded conditional sale contract of which mortgage hed "porthaser. McDonald v. Sullivan, 136 Wis. no notice though mortgage might be vold- 361, 118 NPV 10. Subsequent record will not able by trustee in bankrupters as a pre- "exec. In re Hager, 166 F 972. Not superior "as to property sold after mortgage was "execeded" 12 Cur. Law. NOTICE AND RECRORD OF TITLE $ 3C. 1111

prior creditors and persons who have notice thereof " either actual or constructive,1 or who for any other reason are not bona fide purchasers.2 To be a purchaser one

valth as between parties and as to persons

sequent mortgage, though subsequent mortgage was recorded. Id. Actual notice to

119 NWW 136. Good as between vendor and

creitors of existence of unrecorded deced in

vende\* trustee in bankruptcy. In re Harer,

as effective as record notice. Clark v. Lewis

166 F 972. Reservation of title to sawed timper to secure monthly payments as cut held

regular 200 foot strip railways companies

governed by Code Ga. 1895, # 2716, 2771, un-

Our which reservation is good as between

company's unrecorded deced embracing land

parties and general creditors of purchaser un-

outside of such strip. Chicago, etc., R. Co.

less they extended credit after possession

v. Welch \[Neb.\] 118 NWW 1116; Id., 118 NWW

taken by purchaser and in reliance on apparparties.

1117. Recital "subject to easement of said

ent ownership (Im re Pickens Mfg. Co., 166 F

railway" held insufficient as notice. Chicago,

585), but invalid as against interviewing items

etc., R. Co. v. Welch \[Neb.\] 118 NWW 1117.

or conveyances (Id.), and therefore good as

Tille under subsequent deced first recorded

against purchaser's trustee in bankruptcy,

in absence of showing there were creditors

prior dead on ground of notice of

of such preferred classes (Id.). Vende's re-

leave no reasonable doubt that subsequent

ever in insolvenary cannot attack condi-

ded was an act of bad faith toward first

tional sale under P. L. 1898, p. 670, rendering

purchaser. Lowden v. Wilson, 238 Ill. 340,

such sales void against judgment creditors,

subsequent purchasers and mortgages with

subw bad faith and want of consideration.

out notice unless conditions are expressed

in recorded writing, where he does not rep-

prior unrecorded deced. Id. That second

resent judgment creditors. Faleneau v. Re-

liance Steel Foundry R. Co. \[N. J. Eq. 6\] 6 A

in memorbase held evidence of good faith

1098.

0001. On issue of priority unrecorded

edge of enjoyment of party wall easement

mortgage, held necessary in bankruptcy to

before destruction of buildings by fire held

ascertain when claims of other creditors

not to charge purchaser of land on which

arose. Teague v. Anderson Hardware Co., 161

wall was situated with notice of existence of

F 765, Under Code # 2906, invalidating as

unrecorded party wall agreement. Bowshay

against existing creditors without notice

v. Richards \[Neb.\] 116 NWW 677.

sales where vendor retains possession unless

Notice held immaterial: Notice to snbse-

in instrument of conveyance is filed for rec-

ourchatel mortgage will not supply.

ord, burden is on defendants to show that

judgment creditor had notice of the transfer,

v. Sprill \[N. C.\] 68 SE 728. Recital in mortg

where latter uses to subject property to

gage showing an incumbrance held not

payment of his claim. Rankin v. Schultz

waviver of registration of incumbrance. Id.

\[Iowa\] 118 NWW 383. In suit to subject prop-

where defendants grantor was record

erty to payment of a judgment, fact that

owner, fact that defendant knew that his

no execution was leveld on property before

grantor's father had devised the land to

plaintiff had notice of Fraudulent transfer

another son before decoding to defendants's

thereof held immaterial since suit itself was

equivalent to equitable levy rendering apparties.

being held that no notice however full can

pileable Code # 2906. Id. Selber or assignee

sapply place of registration. Harris v. Dud-

held entitled to recover against subsequent

vendee having notice of nonpayment of bal-

1. Failure to record a senior ded will not

ance under unrecorded conditional sale

in all cases protect a junior purchaser with

tract. Hogan v. Detroit United R. Co.

\[Mich.\] 15 Det. Leg. N. $30, 118 NWW 140. Un

recorded conditional sale contract is valid

between parties and as against persons with

notice. Zacharia v. Cohen Co. \[Iowa\] 119

or Knowledge.

NWW 136. Selber's line held prior to mortgage

taken with notice of unrecorded conditional

sale and nonpayment of price. Id. Evidence

held to show notice. Id. Recital in deced

hold insufficient to charge grantee with no-

tioc of unrecorded mortgage at variance

with recital, where record showed release of

mortgage corresponding to recital. Volk v.

Haton, 219 Pa. 649, 69 A 91. Subsequent

chatel mortgage by conversation at time

mortgage was given and recital in mortgage

held chargeable with knowledge of prior

outstanding, unrecorded mortgage, and not must have acquired some apparent or real interest in the property involved." Statutes requiring mortgages to be recorded contemplate the recording of assignments thereof also though they do not expressly so provide." Of two unrecorded conveyances, the older prevails." A purchaser from an heir may avail himself of the benefits of the recording " laws.

Recording is usually timely if it precedes subsequent purchasers or liens," but sometimes only a reasonable time is allowed " or a statutory period." An instrument duly filed in the proper office is presumed to have remained there until such time as it may be elsewhere found."

(SS 2) \_D. Sufficiency, operation, and effect of record." See 30 C. L. 1025--Statutory provisions. relative to recording or filing must be at least substantially comparises and as to all the world except subsequent purchasers or mortgages in good faith and for value. Claridge v. Evans, 137

7. Mortgage recorded before prior crediquent purchasers or mortgages in good faith and for value. Claridge v. Evans, 137

138

139

137

138

139

137

139

138
13 Cur. Law. Notice and Record of Title SS 21. 1118

plied with \[12\] including provisions making indexing a part of the recording,\[13\] and the instrument must be recorded in the proper office \[14\] and county \[15\]; but one who has duly deposited a valid recordable instrument with the proper officer for record will be protected notwithstanding failure of duty on the part of the officer,\[16\] and curative acts are common.\[17\] Unauthorized or careless destruction or mutilation of a record leaves it still constructive notice.\[18\]

12. Filing and indexing of chatted mort- - It is ordinarily the duty of a purchaser or incumbrancer to examine the records as to instruments in his chain of title, \[19\] and whether one does so or not he is affected with notice of every fact the knowledge of which might have been obtained from the record, \[20\] or to which the facts there appearing would have led him; \[21\] but

ing reality records thereof made one year before the act took effect should be notice, and that thereafter when any "such instrument" shall have been recorded one year same should be notice, held, record of unacknowil-edged contract executed after act took effect was not notice. Fowler v. Bentley \[Mo. App.\], 115 SVP 1090.

18. Line drawn through acknowledgment on record. Williams v. Butterfield, 214 Mo. 412, 114 SVP 13. That deed was duly acknowledged and recorded may be established by parol. Id.

01. Purchaser is charged with notice of all facts disclosed by any recorded deed or other instrument in chain of title. Thompson v. Bowen \[Ark.\] 113 SVP 26; Williams v. Butterfield, 214 Mo. 412, 114 SWP 13; Teague v. Sowder \[Tenn.\] 114 SVP 44. If record disclosed clerical error by recorder, purchaser would be put on inquiry. Teague v. Sowder \[Tenn.\] 114 SVP 484. Redetails in recorded chain of title held notice of early deed. McDonald v. Hanks \[Tex. Civ. App.\] 113 SVP 604.

Trust deed outside chain of title held not constructive notice to subsequent mortgage. Rohde v. Rohn, 232 Ill. 180, 83 NE 465. Civ. Code, SS 1213, making recorded conveyances constructive notice, has no application to deeds by strangers to record title. Bothin v. California Title Ins. Trust Co., 163 CAI. 718, 96 P 500. Certificate of entry issued prior to grant of patent to another person is not in line of title of persons holding under patent, Thompson v. Bowen \[Ark.\] 113 SWP 26. A grantee who takes a deed directly from his grantor's grantor is ebsrageable with notice from the record of incumbrances placed on the property by his grantor, he being warned of the necessity of examining the records for such incumbrances, by his grantors' relation to the property. Masters v. Clark \[Ark.\] 116 SWP 186. Under Rev. Pol. Code, SS 868-871, requiring register of deeds to keep numerical indexes of deeds, mortgages, etc., in addition to grantors' and grantes' indexes, purchaser is charged with constructive notice of recorded mortgage given by one not in chain of title and exciting inquiry as to mortgagor's interest. Fullerton Lumber Co. v. Tinker \[S. D.\] 118 NW 700. Presumed register kept statutory indexes. 20. Where record showed that maker of note and trust deed had no title to land and that prior trust deed was of record unreleased. Rohde v. Rohn, 232 Ill. 186, 83 NE 465. One cannot plead ignorance of public records to which he has access and which affords all means of information necessary to obtain positive knowledge. Sumpter v. Burnham \[Twash.\] 99 P 762. Charge that record binds if party sought to be bound "has actual notice of record" held properly refused, record being notice without actual knowledge. McElwaney v. McDlamrd \[Ga.\] 62 SE 20. Purchaser at sale by husband's administrator held not purchaser in good faith. Records showing land was part of wife's estate. Vivion v. Nicholson \[Tex. Civ.\] 114 SVP 114.

It is ordinarily the duty of a purchaser or incumbrancer to examine the records as to instruments in his chain of title, \[19\] and whether one does so or not he is affected with notice of every fact the knowledge of which might have been obtained from the record, \[20\] or to which the facts there appearing would have led him; \[21\] but

ing reality records thereof made one year before the act took effect should be notice, and that thereafter when any "such instrument" shall have been recorded one year same should be notice, held, record of unacknowil-edged contract executed after act took effect was not notice. Fowler v. Bentley \[Mo. App.\] 115 SVP 1090.

18. Line drawn through acknowledgment on record. Williams v. Butterfield, 214 Mo. 412, 114 Nov 13. That deed was duly acknowledged and recorded may be established by parol. Id.

01. Purchaser is charged with notice of all facts disclosed by any recorded deed or other instrument in chain of title. Thompson v. Bowen \[Ark.\] 113 SVP 26; Williams v. Butterfield, 214 Mo. 412, 114 SWP 13; Teague v. Sowder \[Tenn.\] 114 SVP 484. If record disclosed clerical error by recorder, purchaser would be put on inquiry. Teague v. Sowder \[Tenn.\] 114 SVP 484. Redetails in recorded chain of title held notice of early deed. McDonald v. Hanks \[Tex. Civ. App.\] 113 SWP 604.

Trust deed outside chain of title held not constructive notice to subsequent mortgage. Rohde v. Rohn, 232 Ill. 180, 83 NE 465. Civ. Code, SS 1213, making recorded conveyances constructive notice, has no application to deeds by strangers to record title. Bothin v. California Title Ins. Trust Co., 16 18 Cur. Law. NOTICE AND RECRORD OF TITLE SS 2E. 1115

as between a principal and his agent, the former need not search the records for evidence of fraud on the part of the latter,\[22\] and record of a deed is not constructive notice to a prior vendee in possession subject to whose rights the deed was made.\[23\] Registration is notice alike to residents and nonresidents,\[24\] and a chattel mortgage recorded in the proper county is notice to persons dealing in the property any where in the state.\[25\] A duly filed lease with chattel mortgage clause continues constructive notice after assignment thereof by the lessee, as against third persons dealing with the assignee.\[26\]

Subsequent vendees or lientakers may ordinarily rely on the record,\[27\] but the record of a deed, though constructive notice of the existence and contents of the conveyance, does not supersede adverse possession or other extrinsic matter on the land suggesting notice of facts inconsistent with the record.\[28\]

(SS 2) E. Possession under. chattel mortgages; refining and renewal.\[29\] See 10 C. L.\[29\] Timely taking of possession will ordinarily protect a chattel mortgage though his mortgage be not registered,\[30\] if the possession is open and unequivocal.\[31\]

tons to defendant who purchased from |as trustee for M. P. and W. W. in another grantee, though deed to him did not mention |ded," held notice to judgment creditor that them. Semple v. Schwarts, 130 Mo. App. 65, W. s. was not owner. H. B. Clafin Co. v. 109 SW 632. Purchaser held endargeable with |King |Fla.| 48 S 27. Person examining recotice of reservation by earlier grantor of |ord of lease which showed |missho of werds right to use for damages from construction |rendering other language meaningless held of elevated railway, Maurer v. Friedman, charged with notice that record was not correct. |Z. Edserer v. Edgar Zinc Co. |Kan.| 99 P |Z1. Where record would have led to knowl- |Z2. Record of deeds to promoters of a corpora who assigned a second trust deed. Rodhe v. Kohn, |Z25 |I1.| 80, |Z18 |Z46. Purc paid by promoters so as to preclude chaser of |land subject to mortgage, record of |knowl- |Z25 |I1.| 80, |Z25 |I1.| 81, |Z26 |I27 |I28 |I29 |I30 |Z46 |I31 |I32 |I33 |I34 |I35 |I36 |I37 |I38 |I39 |I40 |Z47 |I48 |I49 |I50 |Z49 |I51 |I52 |I53 |I54 |I55 |I56 |I57 |I58 |I59 |I60 |Z50 |Z51 |I54 |I56 |I57 |I58 |I59 |I61 |I62 |I63 |I64 |I65 |I66 |I67 |I68 |I69 |I61 |I67 |I68 |I69 |I62 |I64 |I66 |I67 |I68 |I69 |I60 |Z61 |I68 |I69 |I60 |Z62 |I61 |I69 |I61 |I62 |I63 |I64 |I65 |I66 |I67 |I68 |I69 |I60 |Z63 |I65 |I67 |I68 |I69 |I61 |I69 |I62 |I64 |I67 |I68 |I69 |I60 |Z67 |I69 |I61 |I60 |Z68 |I69 |I61 |I62 |I63 |I64 |I65 |I66 |I67 |I68 |I69 |I60 |Z69 |I61 |I62 |I64 |I67 |I68 |I69 |I60 |Z69 |I61 |I63 |I64 |I65 |I67 |I68 |I69 |I61 |I67 |I69 |I62 |I68 |I69 |I60 |Z69 |I61 |I60 |Z69 |I62 |I63 |I64 |I65 |I66 |I67 |I68 |I69 |I61 |I69 |I62 |I67 |I68 |I69 |I60 |Z69 |I60 |Z61 |I61 |I62 |I63 |I64 |I65 |I66 |I67 |I68 |I69 |I61 |I69 |I60 |Z69 |I62 |I61 |I63 |I64 | 1116 Notice and record of title SS 2F. 12 Cur. Law. Failure to take possession is not excused by the fact that the mortgage cannot be recorded. \[32\]

Renewal affidavits are required to be filed in some jurisdictions. \[33\]

(SS 2) _F. Wills and their probate and administrative proceedings. \[34\] See 10 C. L. \[1028\]_

(SS 2) _G. Recording officers and administration of the acts. \[35\] See 10 C. L. \[1028\]_

The duties of a recording officer are ministerial rather than judicial. \[30\] Compensation is statutory. \[37\] Recorder's offices are usually maintained at public expense, \[38\] and the recorder should be reimbursed for necessary outlays in connection therewith. \[89\] A conveyancer who takes a ded under instructions to immediately place it on record cannot refuse to do so as a means of enforcing payment for his services respecting the land. \[40\]

rior to mortgages recorded after he took

requiring filing of renewal affdavit before possession, but inferior to those of bona fide

expiration of one year, stating mortgage's purchaser before he took possession, and

interest and amount yet due and unpald.

those of mortgages under mortgages regis-

Fritz v. Brown, 20 Okl. 263, 5 P 437. Affl-

tered after first mortgage was given but

davit not appearing to have been made by

before possession was taken thereunder. mortgage or his agent and merely stating

First Nat. Bank v. McElroy \[Tex. Civ. App.\] that mortgage was to secure #191 "and all

112 SW 801. Subsequent taking of possess-

other indebtedness," mortgage in fact secur-

sion by mortgage for condition broken, and

ing no other indebtedness, and further stating

before levy of execution by another creditor,

ing there was yet due #81, held insufficient

held to protect mortgage as against such

under Mansfield's Dig. $ 4751. Id. Not necc-

creiditor, though Wilson's St. 1903, $ 3578,

easy that affdavit be endorsed "to be filed

does not mention possession. Frick Co. v.

out not recorded," Mansfield's Dig. c. 110,

Oats, 20 Okl. 478, 94 P 682, overturning Green. \[

$ 4750, merely requiring that mortgage be

ville Nat. Bank v. Evans-Snyder-Buel Co., 9

Okl. 353, 60 P 249. Chatel mortgage good

only as between parties because not filed is,

sacured condition broken and delivery of

(SS 2) \_H. Discharge of record. \[43\] See 10 C. L. \[1020\]\_Pensities are provided in some states for failure of a lienor to discharge the lien of record or enter partial payments. \[42\]

SS 3. \_Registration and certification of land titles under the Torrens system. \[43\]\_See 10 C. L. \[1020\]\_Failure to appear or assist in the registration of particular land does not work an estoppel as against another and subsequent petitioner for the registration of other land. \[44\] A prima facie title having been established by applicant, the burden is on defendants to establish their claims. \[45\] General principles and the particular statute involved determine other questions relating to pleading, \[40\] evidence, \[47\] the examiner's report, \[48\] the decree of the court, \[49\] and the right of review. \[50\]

**Notice of Claim or Demand; Notices, see latest topical index.**

**NOVATION.**

\_Definition and elements.\_See 10 C. L. \[1030\]\_A novation is the making of a new contract, and its elements are essentially the same as in the first contract, which are

41. Search Note: See Chattel Mortgages, c. 30, # 61-154) does not require examiner Cent. Dig. # 508-514; Dec. Dig. # 245-247: Motgages, Cent. Dig. # 913-961; Dec. Dig. # 11; Vendor of some party to proceeding. McMahon v. and Purchaser, Dec. Dig. # 238 Ill. 31, # 87 NE 66, Defendants could not complain on appeal of examiner's for mortgage's failure to enter partial payments and date thereof on mortgage record "after written request by mortgage," is penal and must be strictly construed. Ayers v. Butler \[Ala.\] # 18 INS. Request signed "Clark Ruller" and "M. E. Ruller," respecting mortgage by "Clark Butler" and "Mary E. Ruller," and "Mary E. Butler," held insufficient. Id. \[43\]. Search Note: See notes in 4 C. L. \[837\]. See, also, Records, Dec. Dig. # 9; # 28 A. & E. Enc. L. (2ed.) \[251\]. \[44\]. That one's engineers refused to furnish data for location of a boulevard in first proceeding did not estop him in subsequent proceeding from insisting on its establishment at true location. Pollard v. Burchard, 198 Mass. 376, # 85 NE 444.

01. Applicant not required in first instance to prove invality of tax deeds held by defendants. McMahon v. Rowley, 238 Ill. 31, # 87 NE 66.

01. Under Rev. Laws 1902, c. 128, land court cannot allow amendment by which petitioner becomes respondent and vice versa. Respondent must file petition of his own or cross petition if he desires to become petitioner. Foss v. Atkins, 201 Mass. 158, # 17 NE 189.

01. Portion of Registration Act, # 18, as amended May 24, 1907, authorizing the introduction of abstracts, not having been in force when evidence was taken in a certain proceeding in which abstracts were introduced, and it not being contended evidence outside of such abstracts was insufficient to establish petitioner's title, defendants could not question constitutionality of the section, especially where abstracts were not used until after proof of loss or destruction of original documents. McMahon v. Rowley, 238 Ill. 31, 87 NE 66. Presumption is that examiner considered only competent evidence in making his findings, if his report contains sufficient competent testimony to support such findings. Id.

01. Registration act (Hurd's Rev. St. 1898, parties, a meeting of the minds," and a sufficient consideration."10 To constitute a complete novation, the original debtor must be discharged from his liability to his original creditor by contracting a new obligation in favor of a new creditor by order of original creditor,"11 with the ascent of the parties either express or implied,"12 that the new obligation shall be accepted in discharge of the old one."13 Its requisites are, a valid prior obligation to be displaced, the consent of all the parties to the substitution, the extinction of the old obligation, and the creation of a valid new one."14

\_Novation by change of parties or agreement.\_See 10 C. L. 1010--It may arise where one obligation is substituted for another by either change of parties or of agreement."15

\_Pleading and proof.\_See 10 C. L. 1030--The extinction of the old debt being a question of intention, it is a question of fact to be determined from the entire contract "16 upon either inferential or direct evidence."17

**NUISAANCE.**

**SS 1. Distinction Between Private and Public**

**SS 2. What Constitutes a Nuisance, 1119.**

**SS 3. Right to Maintain; Defenses, 1121.**

**SS 4. Remediens Against Nuisance, 1123.**

**SS 1.**_Distinction between private and public nuisance._"11 - See 10 C. L. 1081--A\*\*

\*\*SS 1.

12 Cur. Law. NUISAANCE SS 2. 1119 SS 2. _What constitutes a nuisance._${}^{65}$\_See 10 C. L. 1081.\_Anything creating physical discomfort to persons of ordinary sensibilities,${}^{66}$ or the natural tendency of which is to create danger and inflict injury upon person or property, is a nuisance.${}^{67}$ Except in cases of nuisances per se, the law is usually one of degree and depends on the question of fact whether the use is reasonable under all the circumstances.${}^{68}$ The nature of the locality,${}^{69}$ priority of occupancy,${}^{70}$ degree,${}^{71}$ and manner of operation, are to be considered.${}^{71}$_Illustrations._${}^{65}$\_See 10 C. L. 1082.\_The discharge of impure air or air charged with offensive smells,${}^{18}$ noxious gases, smoke and fumes,${}^{74}$ percolation of sewage,${}^{75}$ collecc-

App. 294. Telephone pole in street. Mer-

rendering vicinity unhealthy, held an unchants' Mut. Tel. Co. v. Hirschman \[Ind. \], reasonable use. Boyd v. Schreiner \[Tex. Ayp.\] 87 NE 283. Unsafe building, Pearson Civ. App.\] 116 SW 100.

v. Birmingham \[Ala.\] 47 80. Accumula-

60. Maintaining large stable in close proximity to ice on sidewalk. Smith V. Preston

\[Me.\] 71 A 683; Duffy v. New York, 128 App.

Triet. Oehler v. Levy, 234 Ill. 698, 85 NE 371. Div. 887, 113 NYS 118. Drainage into public

Smetering emitting destructive fumes located stream. Barrow v. Gallardanne \[La.\] 47 IS 891. Mill dam causing water to stagnate & Refining Co. v. Godfrey \[C. C. A.\] 158 F and emit offensives odors. Boyd v. Schreiner

\[Tex. Civ. App.\] 116 SW 100. Base ball park

neighborhood ceasing to be strictly resel-

so operated as to attract large number of

Gnede district. Siegel v. Donevan \[Mich.\] 13 Oxfordly persons. Alexander v. Tcheau

\[Ky.\] 116 SW 356. Gambling house and

76. Principle allowing injunction in favor pool room. Rensens w. Comm. \[Ky.\] 115 SW 70.

of one who came with a confidence to nu-

111. Bawdy house is a public nuisance al-

a since in locality where highest and most

though situated in restricted district and

profitable use of land was for residences

\[A.\] 119 NW 686. Indecom exposure.

of one who undertook to build residence and

\[A.\] 97 R 46. Giermais

gleans on public coaches held not to be pub-

highest and most profitable economic use

tie nuisance. Fifth Avc. Coach Co. v. New

for the land was for trades and callings

York, 83 Mrs. 401, 111 NYS 153.

Nulsen which were necessarily nuisances. Oehler v.

may be both public and private. Barrow v. Levy, 139 Ill. App. 294. Right of landowner

Gallardanne \[La.\] 47 IS 891.

to restrain adjoining property owner from

65. Search Note Bootes into In 11 C. L. 111;

using his property as Bawdy house is a right

59 L. R. A. 90; 62 Id. 133: 65 14. 28; 20: 2 L.

belonging to the land, and fact that pre-

A. M. S.\] 92 17. 1349; 91. 69. 10: 935; 10: 935; 10: 935; 11: 945; 11: 94; tion of explosive substances,76 noise,77 vibrations,78 blasting,79 interference with light,80 obstructing or rendering unsafe street,81 sidewalk,83 navigable stream,83 the

ing operations, lime dust from crusher and vibration and noise from use of dynamite, Mo. App. 167, 112 SVW 287. held a nuisance. Blackford v. Heman Const. Co., 132 Mo. App. 167, 112 SVW 287.

To operate a stave factory equipped with a 7 inch stream exhaust pipe standing upright is feet

from highway, so as to frighten horses. FT.

beld question for jury. Miller v. Twiname, Wayne Cooperage Co. v. Page, 170 Ind. 855, 84 NB 145. Smelters emitting fumes of arsenic and sulphur dioxide destructive to vegetation and a menance to health. American Smelting & Refining Co. v. Godfrey \[C. C. A.\] 168 F 225. \*\*Brick factory so operated as to allow escape of smoke and fumes in-

juring fruit trees and garden. Hinmon v. Somers Brick Co., 75 N. J. Law, 889, 70 A 166. Smoke, soot and noise from electric light plant. Sherman Gas & Elec. Co. v. Belden \[Tex. Civ. App.\] 115 SWW 897. Emission of dense smoke from gas plant in quantitites eo great as so necessitate keeping windows closed in neighboring residences. McGMill v. Pittsburgh Compressing Co. \[Iowa\] 118 NW 786.

\*\*Heid not to be unstannee: Dust created by removal of building, it not being possible to prevent all dust, and defendant having used all means to lessen it. Sommers Mercantile Co. v. Rheinfrank House Wrecking Co., 118 NYS 402. Operation of cotton gain discharging small quantities of dust. Hamm v. Gunn \[Tex. Civ. App.\] 118 SW 304. Evidence held to show that noise, smoke and cinders from planing mill in close proximity to dwelling houses was insufficient to contribute nuisance. Terrell v. Wright \[Ark.\] 112 SVW 211. Grange using alleyway for passage of automobiles, causing noise and smoke, evidence held not to show such misuse. Dicesce of Trenton v. Toman \[N. J. Eq.\] 70 A 606.

**75. Sewage percolating through wall into plaintiff's cellar from tolets on defendants's premises and making plaintiff's premises**

v. Wolf, 115 NYS 158.

158. Storage of large quantities of dynamic liable to explode, on an island in a public waterway, is a nuisance. Henderson v. Sullivan \[C. C. A.\] 159 F 46. Dynamite stored by railway company in shanty on its right of way, with open doors, so that sign on boxes could easily be seen, held not to constitute nuisance as against trespasser in-

jured by explosion resulting from shooting into shanty. Fanning v. White & Co., 148 N. C. 541, 62 SE 784.

\*\*77. Noise alone from operation of engine and cable in unloading stone so great as to make conversation in adjacent houses Impossible. Reilly v. Curley \[N. J. Eq.\] 71 A 700. Unavoidable noise resulting from operation of ice plant not a nuisance. Le Blame v. Orleans Ice Mfg. Co., 121 La. 249, 46 S 226. Increase in number of trains with heavier engines and more smoke and noise is incident to use of road and not nuisance. Staton v. Atlantic Coast Line R. Co., 147 N.

**78.** Injunction granted restraining defendant from causing vibrations of plaintiff's

dwelling house by blasting operations in neighboring quarry shaking down brick and 12 Cur. Law. **NUISAANCE SS 3.**

obstruction or pollution of a watercourse,"41 unlocked turntable," combinations in restraint of trade,"80 billiard hall,"87 and acts which openly outrage public decency and are injurious to goods morals,"88 have been held to be public nuisances. A lawful business or erection properly operated is never a nuisance per se.89 The legislature may impress certain property with the character of a nuisance and authorize its summary seizure and forfeiture,"90 but a town board of health cannot, without giving the notice provided for by statute, declare a nuisance upon private property so as to charge the expense of its abatement upon the community.91 The power to declare what shall constitute a nuisance is legislative in nature,"92 but where a business is not a nuisance per se, no ordinance declaring it to be a nuisance, without reference to fact whether it is or not, can make it so.93

SS 3. \_Right to maintain; defenses.\_94 See 10 C. L. 1035. That the acts complained

the bay, is not a nuisance. Barnes v. Mid- \*\*P 913.\*\*Billard hall. Ex parte Murphy land R. Terminal Co., 128 App. Div. 435, 110 \[Cal. App.\] 97 P 199. Skatzing r rink. John-NYS 545.

84. To allow slops from sugar mill to drain into private canal open to public navy. App.\] 85 NE 82. Village jail. Dunkin v. ligation rendering water unft for use in bolters and causing levee board to threaten to close canal held a private nuisance. Bar- row v. Gallhardanne \[La.\] 47 S 891.

01. Unlocked turntable unguarded in place

miles of any place of religious worship durnt easily accessible to children constitute an "attractive nuisance" as to them. Berry v.

tional in falling to provide for hearing be- "St. Louis, etc. R. Co., 214 M.C. 593, 114 SW

86. Monopoly of lumber, fuel and grain

supply of entire community. Territory v. Long Bell Lumber Co. \[Okl.\] 99 P 911.

87. Billard hall not a nuisance per se but

maya, by reason of its environment or con- "ditions existing in some communities, be- "come a menace to morals and well being of audit, that abatement was not authorized. People v. Painter, 112 NYS 473.

ject of municipal regulation. Ex parte **Murnphy** \[Cal. App.\] 97 P 199.

88. Where defendants laid plot to get prosecuting witness into indecent and compromising situation with one defendants in a public place and to direct attention

300, 86 NE 663. An ordinance providing of a number of citizens to them, thereby making a public exposure of indecent and compromising attitude, held within statute

penes of owners of property within providing for punishment of indictable nuisance at common law. State v. W$\\ddot{ ext{a}}$ymrire \[Or.\] 97 P 46. Gambling house attracting large numbers of dissolute persons. Res- pass v. Com. \[Ky.\] 115 SW 1131. Bawdy house a nuisance per se, Barnett v. Te-dascel \[La.\] 45 S 894. Dancing and drink- ing accompanied by swearing, drunkenness, making loud noises and other milsondeud,

hel nuisance. Commonwealth v. Cincinnati,

nat, etc., R. Co., 33 Ky. L. R. 1056, 112 SW

613. Evidence held to show that breeding

stable in village was not conducted in man- "ner to create nuisance. Thatcher v. Dueser

\[Neb.\] 118 NW 45. No nuisance established

663. Under statute giving city council power by mere showing of repeated trespasses on

complainants land and use of offensive and

absolute the same, house contaminated by insulting language to him and his wife.

Randall v. Freed \[Cal.\] 97 P 669.

89. Cotton gim. Hamm v. Gunn \[Tex. Civ. App.\] 115 SW 304. Auetton store. GIIly v.

Hirsh \[La.\] 48 S 422. Emnssten of smoke

of contagion. Id.

from smoke stack or chimney. McGill v.

94. Search Note: See 36 L. R. A. 609; 58

Pintsch Compressing Co. \[Iowa\] 118 NW

786. Liverpool stable. Coon v. San Francisco

A. S. R. 556; 84 Id. 916; 1 Ann. Cas. 625.

Board of Public Works, 7 Cal. App. 760, 95

See, also, Nuisance, Cent. Dig. **j 2**, 6-S, 12 Cur. L.-T14.

of are done under governmental authorization is usually a defense." That which is authorized by the legislature within the strict scope of its constitutional powers cannot be a public nuisance," but it may be a private nuisance, and as against damages resulting therefrom the grant is no defense." A legislative grant to do that which is not of itself a nuisance is no protection where the authority or thing so granted is so used as to constitute a public nuisance, since it will not be presumed that the creation of a nuisance was intended, unless it be a natural and necessary result." The mere fact that the defendant is exercising a government function delegated to it by the state is not a defense as against unreasonable use." The defense of legislative sanction must be pleaded.1 A binding agreement that a private nuisance may be maintained is a complete defense as between the parties.2 It is no defense that a business constituting a nuisance is located at a place convenient for carrying on the business, that it is properly conducted and employs the latest devices where it still results in damage to property and injury to health,3 that it is temporary,4 or necessary to the business of the owner,5 that injunction would work larger damage to defendant than is sustained by plaintiff by reason of the nuisance,6

35-48, 137-162, 170, 171; Dec. Dis. SS 2, 5-10, noise and vibration from its power plant in 60, 63-70; 29 Cyc. 1154, 1155, 1159-1163, 1179, 1180, 1181, 1197, 1201-1203, 1207; 21 A. & E. Enc. L (2ed.) 733.

12 Cur. Law. **NUISANCE SS 4A.**

that it was not a nuisance when erected," nor that it was conferred by devise to trustees." Acquiescence in the nuisance for a long period of time may be a defense." The right to maintain public nuisance cannot be acquired by prescription or user," but in Kentucky, as between two individuals, the right to maintain a public nuisance may be so acquired.11 In Louisiana the prescription of one year is not a defense in a suit for abatement where the nuisance is a continuing one.12

SS 4. \_Remedies against nuisances. A. Abatement and injunction.13_See 10 C. L. 1028--Where there is a plain, speedy and adequate remedy at law, equity will not enjoin a nuisance.14 Where the complainant's legal right, and the unlawful use by defendant of his property to complainant's actual damage are established, equity will give relief 15 without requiring the issues to be first passed upon in an action at law,16 but otherwise if the facts are disputed.17 Injunction will be granted to protect established rights, although the injury be small and the interests to be ef-

7. Stable for large number of horses ex-

163-218; Dec. Dig. SS 18-57, 71-96; 29 Cye. listing before district became residence section. Oehler v. Levy, 139 IL. App. 294. **14**. **A**. \*\*& E. Enc. P. & P. 1091.

8. Trustees under will are answerable for

1. Where only nuisance alleged was re-

damages resulting from maintenance of nu-

sance. Ireland v. Bowman \[Ky.\] 113 SWV 56.

9. Acquiescence in use of track and spur

law. Randall v. Freed \[Call.\] 97 P 699. Un-

in street by abutting owner for 17 years

santry conditions of stable in close prox-

precludes him from relief. Staton v. Atlan-

lity to apartment house will not be re-

tic Coast Line R. Co., 147 N. C. 428, 61 SE

strained by injunction where it appears that

455. Toleration of operation of quarty in

city ordinances and police regulations

close proximity to plaintiff's dwelling for

are ample to remedy conditions. Bonsparte

10 years held not such acquiescence as would

v. Dennenenel \[Md.\] 69 A 697. Indictment for

preclude relief. Blackford v. Herman Const.

criminal offense not an adequate remedy for

Co., 132 Mo. App. 157, 112 SWV 287. Plain-

gambling house constituting nuisance where

tiff who bought premises, doorway of which

continued in spite of repeated fines. Respass

was obstructed by telephone pole in street

v. Com. \[Ky.\] 115 SWV 1131.

rected prior to purchase, held to have

15. Injunction properly granted to re-

waived his rights by acquiescence, it not

strain defendant from draining oil and sew-

having continued for 20 years. Merchants

age into plaintiff's artificial lake, causing

Mut. Tel. Co. v. Hirschman \[Ind. App.\] 87

hfs to be killed and ruining fee. Fisher v. NE 238. Prescription held not to run against

misouri Pac. R. Co. \[Mo. App.\] 115 SWV 477. right of one specially damaged to restrain

Injunction to restrain village from draining

house of prostitution by injunction. Seifert

two steam passing over plaintiff's land re-

v. Dillon \[Neb.\] 119 NWV 686.

fused where it appeared that drains only

10. Continued occupation of public street

carried surface water which by natural con-

by plaintiff's house was but continuance of

formation of land would flow into stream

a nuisance, which might be abated by board

if drains had not been constructed. Crane

of public works under state law. Nerlo v.

V. Hoselle, 236 Ill. 97, 86 NE 181.

Masetretti \[Call.\] 98 P 860. Hed that while

16. Operation of coal hopper throwing coal

right to maintain mill dam might be ac-

quired by prescription, it did not follow that

Wente v. Com., Fuel Co., 232 Ill. 626, 83 NE

right to maintain it in such manner as to

1048. Injunction granted to restrain

constitute a nuisance was thereby acquired,

fensive use of stable close to dwelling house.

Boyd v. Schreiner \[Tex. Civ. App.\] 116 SWV 234 Ill. 595, 85 NE 271. Evi-

100. That railway station extending into

dence as to nuisance and injury resulting

street on which the company had no tran-

from operation of stable held to bring case

chise has been maintained for more than

within rule. Oehler v. Levy, 139 Ill. App. 20 Veers held no justification even as against

294.

a private person. Bremer v. Manhattan R. Co., 191 N. Y. 323, 84 NE 59.

11. Where defendants had maintained dam

in navigable stream continuously for over

15 years, they had acquired a right to do so

by prescription as against plaintiff, although

unisance was public, Ireland v. Bowman

\[Ky.\] 113 SWV 56.

12. B * 1134 **NUISAANCE $\\lx@sectionsign$ 4a.**: **13** Cur. Law.

fected by the injunction are large.\[18\] Equity will grant injunction to restrain a nuisance where proceedings at law would lead to multiplicity of suits,\[19\] or where it appears that damages cannot be accurately estimated.\[20\] Injunction may issue to prevent the establishment of a business which may be so conducted as to become injurious to the health of adjoining propriators,\[21\] but where such business can be lawfully operated without affecting the rights of others, it will not be restrained because of a mere possibility that it might become a nuisance.\[22\] A business lawful in itself which is a nuisance because of the manner in which conducted may be enjoined so as to prevent its being a nuisance but not so as to prevent its existence.\[23\] Where nuisance is created by neglect of defendant to comply with a duty imposed by law, no injunction will issue unless such law is valid.\[24\] In abatement, notice to

- 18. Where tract of land containing 9,000 acres was damaged by poisonous fumes from inserting plants, fact that damage of each owner of land was small in comparison to damages which would result to defendants on enjoining operation of smelters held not to be defense. American smelting & Refining Co. v. Godfrey \[C. C. A.\] 158 F 226. Evidence properly excluded as to expense of constructing coal hopper sought to be enjoined. Wente v. Com. Fuel Co., 232 Ill. 526, 83 NE 1049. 18. Where 400 complaints sought to enjoin four independent companies each operating smelters, comminged fumes from which caused damage to compliantants' property, held that remedy at law was impracticable because of impossibility of determining proportion of damages against each of defendants. American smelting & Refining Co. v. Godfrey \[C. C. A.\] 158 F 225. **19** Where 400 complaints sought to enjoin four independent companies each operating smelters, comminged fumes from which caused damage to compliantants' property,\*\* \*\* strains compliance of objectionable features. Blackford v. Heman Const. Co., 132 Mo. App. 157, 112 SW 287. **20**. \*\*State had authority in relation of attorney general to grant injunction restraining construction of aqueduct across navigable canal which would result in obstruction of navigation. State v. Columbia Water Power Co. \[S. C.\] 83 SE 834. **21**. \*\*Rule that equity will not interfere with establishment of business which may or may not become a nuisance, according to the manner in which conducted, applies only where apprehended injury is threatened by reason of some industrial enterprise affecting comfort and convenience rather than health of adjacent residents. Cherry v. Williams, 147 N. C. 452, 61 SE 267. **Flection of sanitarian for treatment of tuberculosis and other contagious diseases in close proximity to dwelling houses restrained to final hearing. Id.** **22**. \*\*Erection of automobile garage will not be enjoined. Slegel v. Donovan \[Mich.\] 15 Det. Leg. N. 1035, 119 NW 645. **23**. \*\*Decree enjoining owner of feed yard from keeping large numbers of cattle and hogs, or for a long time, was erroneous in absence of showing that feed yard could not be used without becoming nuisance. Francisco v. Furry \[Neb.\] 118 NW 1102. Although liver stable next door to plaintiff residence was held not to be such a nuisance as would be abated, owner was enjoined to make wall next to plaintiff, win-dows in which were merely sealed, as solid as the other wall. Durfey v. Mailheimer, 85 Ark. 544, 109 SW 519. **Stable in residence district will not be absolutely enjoined but injunction was granted restraining stabling.** **24**. **25** Cur. Law.

18 Cur. Law. NUISAANCE SS 4B. 1185

grance or lessee coming into possession of land with existing nuisance is not necessary.\[25\] A nuisance on a public street may be abated on a bill filed by the municipality 20 or by the state.\[47\] An injured party may himself abate a nuisance,\[23\] and where danger is imminent a city may declare and destroy a nuisance without notice or hearing.\[29\] The right to relief may be lost by acquiescence.\[30\] An injunction should be definite, clear and precise in terms.\[31\] The bill must set out the essential facts,\[32\] and any doubt as to its sufficiency will be resolved against it.\[33\]

(SS 4) \_B. Criminal prosecution.\[34\] See 10 C. L. 1084--Indictment is the proper remedy to abate a public nuisance.\[35\] In prosecution for maintaining a nuisance, criminal intent must be shown.\[36\] An indictment for permitting a nuisance must charge a duty broken, or facts from which such duty would necessarily flow.\[37\] The

fendant's part to abate nuisance. City of Owensboro v. Hope, 33 Ky. L. R. 426, 110 SW 272.

25. One having dominant heritage may abate levee on lands of another occupied by lassee, being servient heritage which results in flooding, without notice or demand. Buck v. McIntosh, 140 Ill. App. 8.

01. Unsafe building, Iiable to fall and dangerous to passers only a sidewalk, abated. Pape v. Pratt Institute, 127 App. Div. 147, Pearson v. Birmingham \[Ala.\] 47 80 S. In 111 NYS 354. Averment that defendants are abating nuisances the public does not exercise power of eminent domain but police power. Louisiana County v. Yancey's Truvalee \[Va.\] 63 SE 452.

01. Where town refused to compel defendant to remove his barn from highway which it was obstructing, the state may properly exercise its vistorial powers and compel defendant to abate. State v. Franklin, 133

01. Handling house

01. Any be enjoined on suit brought by attorney general. Responses v. Com. \[Ky.\] 115 SW SW 1131. Right of munleipality not exclusive. Alabama Western R. Co. v. State \[Ala.\] 46

01. One whose lands were flooded by re-

01. Bill held sufficiently to avert that pro-

01. House contaminated by smalloz. Sings v. Jollet, 237 Ill. 300, 86 NB 668. A

01. Search Note: See Nuisance, Cent. Dig.

01. Doleg. # 88-96; 29 Cyc. 1278-

01. Is 4. K. E. Enc. (2ed.); 63; 21 Id. 711;

01. K. E. Enc. P. & P. 1096.

Inches to negroces to be a nuisance and re-

50. So 85. College, 112 SIE 1020. For obstructing of 20,000 or more, jurisdiction to abate

01. What is the only one of the two?

01. Doleg. # 88-96; 29 Cyc. 1278-

01. Doleg. # 88-96; 29 Cyc. 1278-

01. Doleg. # 88-96; 29 Cyc. 1278-

01. Is there any be a violation of the two?

01. Doleg. # 88-96; 29 Cyc. 1278-

01. Doleg. # 88-96; 29 Cyc. 1278-

01. What is the only one?

01. Doleg. # 88-96; 29 Cyc. 1278-

01. Doleg. # 88-96; 29 Cyc. 1278-

01. Doleg. # 88-96; 29 Cyc.

1126 NUISAANCE $ 4C. 12 Cur. Law.

indietment should describe premises where nuisance is located with sufficient particularity to enable the sheriff to find the place.\[88\]

(SS 4) \_C. Action for damages.\[89\] See 10 C. L. 1089_The court having acquired jurisdiction for the purpose of abating a nuisance will extend such jurisdiction to the ascertainment and determination of damages.\[40\] One responsible for the creation or maintenance of a nuisance is liable in damages to the injured party,\[41\] but the damage must be the proximate result of such nuisance.\[42\] He who creates obstruction in public street is not relieved from liability to travelers for injuries resulting therefrom, notwithstanding some other person has neglected his duty to remove such obstruction.\[43\] If the duty to abate a nuisance be judicial in its nature, as calling for the exercise of judgment, no liability rests upon the municipality for nonperformance, but if it be of a ministerial nature, neglect to perform it will render the municipality responsible to one injured thereby.\[44\] There can be no recovery against a county for property destroyed as a nuisance by board of health.\[45\] One who acquires title to land upon which there is a nuisance created by the former owner, and continues it, is liable for damages resulting from its maintenance from the time of purchase,\[40\] or after notice to abate, but not for its construction.\[47\] One

Co. v. Com. \[Ky.\] 113 SW 517. Indictment

held not proximate result of nuisance where charging defendant with permitting a com-

explosion was caused by shooting at house mon nuisance merely states a conclusion of

with bistol. McGhee v. Norfolk & S. R. Co., law and is insufficient if not supported by

147 N. C. 142, 60 SE 912. One injured by allegation of fact. Id. Indictment charg-

workman falling upon him from ladder set

ing corporation with bringing together

on sidewalk cannot recover on theory that large number of people and quartering them

his injury resulted from the creation of a near public highway when they engaged in

nuisance on public street, where such ob-

dancing, drinking, swearing and other dis-

erately conduct held sufficient to charge a nuisance. Commonwealth v. Cincinnati, etc.,

and where injury was not caused by collision

R. Co., 83 Ky. L. R. 1056, 112 SW 613.

in-

dittment charging maintenance of a com-

mon nuisance by suffering sale of liquors in

defendant's house contrary to provisions of

coased by accumulated ice on sidewalk from

local option law, and by permitting persons to

sens to congregate there and become bosis-

theories and disorder, is sufficient without

a charge that there was such disorder as to

bany allowed truckers to occupy sidewalk

disturb peace of neighborhood. M$
m\\ddot{I}$ller v. Com. \[Ky.\] 113 SW 518.

**38.** Indictment for maintaining public nuisance by running poloroom held to sufficiently

describe location. Ehrlick v. Com., 83 Ky. L. R. 978, 112 SW 565.

**39.** Search Note: See notes in 15 L. R. A. 685; 15 R. A. (N. S.) 106, 1119; 15 A. S. R. 45; 30 L. R. A. (N. S.) 106, 1119; 15 A. S. R. 845; 30 L. 395; 76 L. 399; 86 L. 508; 118 L. 868; 1 Ann. Cas. 964; 6 L. 150; 111 Id. 134.

See, also, Nuisance, Cent. Dig. # 98-134; Dec. Dig. # 41-58; 29 Cyc. 1254-1278; 21 A. & E. Enc. L (2ed.) 712; 14 A. & E. Enc. P. & P. 1105.

**40.** Barnett v. Tedescki \[Ala.\] 45 S 904.

**41.** Where plaintiff's lands were over-

flowed by reason of construction of levee by

defendant, he may recover damages for its maintenance if it appears that levee was un

lawful. Beauchamp v. Taylor, 132 Mo. App. 92, 111 SVV 409. Where spur track in street

in front of abutting owner's residence was allowed to become littered with rubbish and

materials, cars and engines, evidence held to

shew that such use was unreasonable and

unnecessary and that plaintiff was entitled to

damages. Staton v. Atlantic C. L. R. Co., 147

N. C. 428, 61 SE 455.

**46.** Indury to trespasser from explosion of

dynamite stored in house close to highway

**47.** Instruction holding defendant liable 12 Cur. Law. **Nuisance $\\lx@sectionsign$ 4C.**

who buys land subject to damage by reason of a nuisance cannot recover for its construction but may recover for its unlawful maintenance.\[48\] Where the nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage may be fully compensated at once, and the statute of limitations begins to run upon the construction of the nuisance,\[49\] but where the nuisance is not, from its very nature, permanent, successive actions may be brought for the injuries as they occur.\[49\] A cause of action for abatement by several plain-lifts jointly affected cannot be joined to cause of action for damages where the several plaintiffs have no joint or common interest in the damages sustained.\[41\] In a complaint for damage to property by vapors and gases, it is not necessary to allege that such vapors and gases were noxious, when they were so in fact,\[52\] and this may be shown under an allegation of negligence.\[53\] Damages must be specifically alleged,\[54\] and those accruing subsequently to the commencement of the action may be set out in a supplemental complaint,\[55\] but where injury is of a temporary character, the diminution of rental value is recoverable without special allegation thereof.\[56\] The court may instruct the jury that they may return a verdict for damages caused by the operation of the nuisance without defining the exact manner in which it arises.\[57\]

\_Damages.\_See 10 C. L. 1041.--If the improvement or structure that produces the injury or nuisance complained of is permanent, the measure of damage is the depreciation in the market value of the property;\[58\] if the nuisance is temporary in character

for both construction and maintenance of \*\*S2. Use of word "noxious" in Instruction, **pools of stagnant water held error where de-**

where not alleged in complaint for damages \*\*fendant's predecessor had constructed nuisance, **f**

to property by vapors, not error, where such **a**

ance. Graves v. St. Louis, etc., R. Co., 133 Mo. **d**

damage actually shown. Johnson v. North-\*\*

App. 81, 112 SWV 738. **P**

until **S**
and may be readily abated, the measure of damage is the depreciation of the rental value, if rented, or damage to use and occupation if occupied by the owner.\[99\] The depreciation in rental value must be caused by interference with the comfortable enjoyment of the premises and not from the mere prejudice against the property on account of its proximity to the alleged nuisance.\[99\] The measure of damage for injury to residence must be based upon use of premises as residence and not upon market value for other purposes.\[61\] In assessing damages, personal discomfort \[93\] and actual loss and expense resulting from the nuisance are elements properly considered.\[93\] Where the entire claim of damages is predicated upon anticipated injuries, no cause of action arises.\[64\] A court of equity will not award punitive damages for the maintenance of a nuisance.\[65\] Where the nuisance is a continuing one, damages occurring within the period covered by the statute of limitation only can be recovered.\[99\] Damages resulting from a nuisance need not be itemized, but may be stated in general terms.\[97\] In Alabama allowance of attorney's fees is not authorized in a proceeding for the abatement of a public nuisance.\[98\] Recovery may be had for damages occurring up to time of trial.\[99\] The award must not be excessive.\[99\]

(SS 4) _D. Rights of private persons in respect to public nuisances.\[71\] See 10 C. L._

of construction, regardless of whether flooding is continuous or occasional. 59. Measure of damage to property by reason of accumulated flush, odors and flies from feeding yard is diminution in value of use. Kentucky Distileries & Warehouse Co. v. Barrett \[Ky.\] 112 SVW 643. Pool for holding surface water and which it was alleged would breed mosquitoes was abata. \[99\] Where dam in navigable river obstructed passage of logs, recovery could be had for v. Miller \[Tex. Civ. App.\] 113 SVW 996. \[99\] Where emission of smoke and soot did not diminish rental value, only nominal damages were allowed. McGill v. Pintsch \[99\] After that plaintiff's land had depreciated in value on account of location of pool on defendants land not sufficient basis for damages in absence of proof of substantial inclusion of plaintiff's legal rights. Sanders v. Miller \[Tex. Civ. App.\] 113 SVW 996. \[99\] In suit for damages on account of operation of power plant, instruction that measure of damages was difference between market value of property for use as rest- done just before erection of plant and market value for such purposes after its erection held correct. Sherman Gas & Elec. Co. v. Belden \[Tex. Civ. App.\] 115 SVW 897. \[99\] Personal discomfort from operation of tailow plant held primary consideration in allowing damages, although not susceptable of arithmetical computation. Labasse v. Plat, 131 La. 601, 46 S 65. \[99\] Where timber was destroyed by flooding, damages may be recovered, although ownership is in another and plaintiff only has a right to cut it under stipulated rent for term of years. VWoodstock Harwood & Spool Mfg. Co. v. Charleston & W. Co. \[99\] In assessing damages, personal discomfort \[99\] The actual loss and expense resulting from the nuisance are elements properly considered.\[99\] Where the entire claim of damages is predicated upon anticipated injuries, no cause of action arises.\[99\] A court of equity will not award punitive damages for the maintenance of a nuisance.\[99\] Where the nuisance is a continuing one, damages occurring within the period covered by the statute of limitation only can be recovered.\[99\] Damages resulting from a nuisance need not be itemized, but may be stated in general terms.\[99\] In Alabama allowance of attorney's fees is not authorized in a proceeding for the abatement of a public nuisance.\[99\] Recovery may be had for damages occurring up to time of trial.\[99\] The award must not be excessive.\[99\]

(SS 4) _D. Rights of private persons in respect to public nuisances.\[71\] See 10 C. L._

of construction, regardless of whether flooding is continuous or occasional. 59. Measure of damage to property by reason of accumulated flush, odors and flies from feeding yard is diminution in value of use. Kentucky Distileries & Warehouse Co. v. Barrett \[Ky.\] 112 SVW 643. VWhere defendant caused flooding is continuous or occasional. 59. Measure of damage to property by reason of accumulated flush, odors and flies from feeding yard is diminution in value of use. Kentucky Distileries & Warehouse Co. v. Barrett \[Ky.\] 112 SVW 643. Pool for holding surface water and which it was accepted by the manufacturer.\[99\] Where dam in navigable river obstructed passage of logs, recovery could be had for their deterioration and for any expense incurred in getting logs through.\[99\] Demand \[Ky.\] 114 SVW 338. Where dam had existed for 15 years but raised in height during that time, no damage could be recovered for deterioration of detained logs or labor necessary to get them over dam, that would have been necessary if dam had been maintained at original height, but recovery might be had for diminution in value of use of property by reason of raising of dam.\[99\] Empty pool for holding surface water which it was alleged would breed mosquitoes. Sanders v. Miller \[Tex. Civ. App.\] 113 SVW 996. \[99\] By electing to sue in equity, complaint survived his right to exemplary damages. \[99\] Karns v. Alien, 135 VWs. 48, 115 NVC 367. \[99\] Unlawful dam in navigable river a basis of action for damages occurring within 5 years preceeding commencement of suit.\[99\] Ireland V. Bowman \[Ky.\] 114 SVW 383. \[99\] D. Damages by flooding. Woodstock Hardwood & Spool Mfg. Co. v. Charleston L. & W.

12 Cur. Law. **NUISANCE SS 4D.** 1129

1042--To entitle a private person to redress against a public nuisance, he must show that he sustained damages of a personal and peculiar nature, such as are not sustained by the rest of the community.12 An individual suffering peculiar injury may abate a public nuisance in cases of urgency requiring a more speedy remedy than can be had by ordinary judicial proceedings.73 Mandamus will issue at the suit of one who has not been specially damaged to compel public officials to perform their duty of abating a public nuisance.74

A. 301; 8 L. R. A. (N. S.) 448, 1126; 8 Id. tion against maintenance of bawdy house in 227; 11 Id. 1060; 1 Ann. Cas. 38; 11 Id. 287.

See, also, Nuisance, Cent. Dlg. # 1163-188;

house was situated held to show special Dec. Dlg. # 17-16; 29 Cyc. 1208-1213.

damages distinct from those suffered by general public and sufficient to entitle him 8W 100.

Lial. 45 $ 804.

**Held specially damaged:** That obstruation of highway deprived plaintiff of his 4D games shown to plaintiff by fact that deduce held to be special injury. Stricker v. \*\*Hil

**Abstract**

The scope of this topic is noted below.\[82\]

In the absence of statute an officer cannot administer an oath to himself.\[71\] Election managers may take a valid official oath by signing it in the presence of each other, although only one purports to attest it, its legal effect being that each administers the oath to the other and that not any one of them administers it to himself.\[82\] An affirmation is binding if made as required by statute.\[82\] An oath of office, if taken with reference to a particular office and properly filed, is sufficient although it does not designate the particular office with reference to which it is taken.\[82\]

**Obscenity, see latest topical index.**

\*\*Obscenity, see latest topical index.

## 13 Cur. Law. **OFFICERS AND PUBLIC EMPLOYES SS 1.** 1131

### 1 Definition and distinctions, 1131. A De

B. Abandonment, 1143.

Facto Officer, 1132. Officer and Employe Distinguished, 1133. Office

and Government Contract Distin-

guished, 1138.

15 2. Creation and Change of Offeces, 1134.

### 3. Eligibility and Qualifications, 1134.

A. In General, 1134.

B. Civil Service, 1136.

16 4. Choice or Employment, 1137.

A. How Chosen or Employed, 1137.

B. Filling Vacancies and Promotions,

1138.

### 5. Right to Office and Remectides to Em-

force Same, 1139.

A. Indicia and Evidence of Right, 1139.

B. What Remedy, 1139.

C. Procedure and Practice in Particular

Remedies, 1141.

### 6. Induction Into Office, 1141.

### 7. Nature of Tenure and Duration of Term,

### 8. Resination, Abandenment, Removal

and Reinstatement, 1142.

### 8. Discussion, 1142.

_The scope of this topic is noted below. \[89\]_

SS 1. _Definition and distinctions._\[90\]\_ See 10 C. L. 1044.\_ An office is a public charge or employment, the right to exercise a private or public employment and to take the fees and enduments belonging thereto, \[91\] and he who performs the duties of an office is an officer. \[92\] A usurper is one who intrudes himself into an office which is vacant, or ousts the incumbent without any color of title. \[93\] A deputy is one who acts officially for another. \[94\] Officers may be classified with reference to the public

### 89. This topic deals with the general law

of officers, excluding the law of elections (see Directions, 11 C. L. 1169), of quo warranto, 10 C. L. 1156), and that pertaining to particular officers (see Sheriffs and Constables, 10 C. L. 1648; Judges, 12 C. L. 386, and like top-

Supra, 115 NYS. Supervisors. Id. Beard

(ca) or particularly applicable to particular governmental bodies (see United States, 10 C. L. 1935; States, 10 C. L. 1702; Counties, 11 C. L. 908, and Municipal Corporation, 12 C. L. 905).

### 90. Search Note Sets in 15 L. R. A.

(N. S.) 93; 63 A. S. R. 181.

See, also, Officers, Cent. Dig. **SS 1**, 2, 4, 61-68%; Dec. Dig. **SS 1**, 2, 28-43, 29 Cyc. 1361-1364, 1368, 1389-1393, 1395; 2 A. & E.

Enc. L. (2ed.) 810; 8 Id. 781; 14 Id. 1095; 23 Id. 322.

Implies authority to exercise portion of sovereign powers of state either in making, administering or executing laws. Commonwealth v. Bush \[KY.\] 115 SWV 249. Power and jurisdiction of office inseparable and constitute office. Id. True test of public office seems to be that it is part of administration of government, civil or military. Id. An office has been defined as a special trust or charge created by competent authority, the oath, bond, liability to account, and tenure being indicta of office. Grace v. St. Louis, 213 Mo. 384, 111 SWV 1159.

Commonwealth v. Bush \[KSy.\] 115 SWV 249. A public officer is one who has some duty to perform concerning the public. Server v. State, 91 Miss. 802, 45 S 849. Officers elected under city charters to perform duties of surveyor of highways are in legal contemplation such officers whatever their

The scope of this topic is noted below. \[89\]\_

SS 1. _Definition and distinctions._\[90\]\_ See 10 C. L. 1044.\_ An office is a public charge or employment, the right to exercise a private or public employment and to take the fees and enduments belonging thereto, \[91\] and he who performs the duties of an office is an officer. \[92\] A usurper is one who intrudes himself into an office which is vacant, or ousts the incumbent without any color of title. \[93\] A deputy is one who acts officially for another. \[94\] Officers may be classified with reference to the public

### 89. This topic deals with the general law

designation. Smith v. Gloucester, 201 Mass.

of officers, excluding the law of elections (see Directions, 11 C. L. 1169), of quo warranto, 10 C. L. 1156), and that pertaining to particular officers (see Directions, 11 C. L. 1169, 117, 118, 119, 120, 121, 122, 123, 12 body for which their services are performed as federal," state,"\* county," or municipal," or with reference to their duties as executive, legislative, judicial or ministerial."

\_A de facto officer_Sce 10 C. L. 1044 is one who is in possession of an office discharging his duties under color of authority.1 The rule that there cannot be a de facto officer where there is no de jure office 2 is not always adhered to.3 A insurer cannot be a de facto officer,' but may become such if his assumption of office is acquired in.5 That a person is an officer de facto cannot be proved by the statement of a witness that it was generally known that he was acting as an officer.6

State of Ohio v. Houck, 11 Ohio C. C. (N. (dinance. People v. Board of Education, S.) 414. Substitute of officer, usually minis. 234 Ill. 422, 84 NE 1044.

terial. State of Ohio v. Houck, 11 Ohio C. (N. S.) 414. Use of word "deputy" in

dicate not necessarily controlling. Id. from an election or appointment however

Deputy coroncer appointed under Rev. St. (Irregular or informal. In re Krickbaum's $ 1209a, not an officer. Id. Under Balling-

Centested Election, 221 Pa. 521, 70 A 852.

er?s Ann. Codec8 & St. 1564 (Pierre's Code), 175 E-Codec

## 12 Cur. Law. OFFICERS AND PUBLIC EMPLOYS SS 2.

\_Officer and employee distinguished.\_See 10 C. L. 1044--Officers are distinguished from employees, chiefly by the nature of their duties.7

\_Office and government contract distinguished.\_See 10 C. L. 1044

SS 2. Creation and change of offices.\_See 10 C. L. 1045--Unless provided by the constitution,9 the legislature may create and provide for the filling of offices10 or abolish the same.11 Certain offices may be created by municipalities, pursuant to delegated authority.12 Where a city organizes under the general law, its offices are abolished.13 The power of selection of officers of a commonwealth resides orig-

**E. Johnson v. Sanders \[Ky.\] 115 SWY 712.** \[ to elect such office. Id. Sess. Laws 1907, 6. Williams v. Finch \[Ala.\] 46 S 645.\*\* \[ p. 170, c. 36, with cognate acts c. 38, 85, evidence legislative plan to create office of control, not mere employees. Combs v. Ron-

**Laws 1907, not inducement for enacting c.** \[ toman of Chicago, office, not employee. City of Chicago, v. Bullis, 138 Ill. App. 297.\*\* \[ toman of Chicago, office, not employee. Not special legislation. Id. Validity or in-

**Clerk of penitentiary board public officer, validity of c. 37, not bearing upon c. 36.** \[ toh heading of chapter creating officer

**L. May abolish nonconstitutional office.** \[ toh. \] 87 NE 138. Com-

**S 849.** \[ toh. \] \*\*Held employees: Visiting chapalin in department of public charities with duty of

**(Gen. Laws 1906, p. 910) 880, trustees** \[ toh. \] \*\*Held employees: Visiting chapalin in department of public charities with duty of

**(Gen. Laws 1907, p. 910) 880, trustees** \[ toh. \] \*\*Held employees: Visiting chapalin in department of public charities with duty of
Finally in the people,14 and the election of nonconstitutional officers, in certain contingencies by a senate in conjunction with the governor, may be authhorized.15 A board of freeholders elected pursuant to a constitution to frame a charter have no authority to adopt an ordinance for the nomination and election of officers prescribed by such charter.16

Footnote 1189: The author bility of offices does not depend upon the physical ability of one person to discharge the duties of both offices,\[25\] but the test is the character and relation of the offices; whether the functions of both are inherently inconsistent and repugnant.\[20\] Incompatible offices are determined by the various statutes and constitutions,\[27\] and the usual effect is to render the election to the second office void.\[28\] Removal from office does not disqualify a person from holding such office again unless clearly expressed by the statute.\[29\] The duty of determining qualifications may be imposed upon the appointing power,\[30\] and mandatory statutes in some states require a qualified veteran to be accepted in preference to others.\[31\] The receipt of a majority of

Action in allowing name to go on ballot a \[tee incompatible. Johnson v. Sanders fraud on people. Id. Cannot qualify where \[KJS\] 118 SW 772. Persons holding state duties, by laws of state, consist chiefly in office, except justees of peace or millita appearing in courts. Id. Fact that duties might be done by deputy does not qualify. \[Cote\] 1859, & 5745.\] McWilliams v. Neal, legal ethics not "learned in the law" with-in constitutional qualification of state's attorney. Violation presumed from ignorance term for which elected, etc., does not pre-offically is the custodian of the public treasury. Dorlan v. Walters \[KJS\] 116 SW 318. City treasure, as created by Ky. St. Lodge v. Farrell \[Mich\]. 15 Det. Leg. N. 160, not eligible to 'succeed himself. Id. 1036, 119 NW 578. Const. art. 4, & 6, provid-Phrase "elected under Constitution" in 160 applies to all fiscal officers of first and second states, state or county, except notaries end class cities, whether offices created by constitution or statute. Id. City officer does not preclude one chosen to legislature from being candidate to county office. Id. does not hold it, is fiscal officer within Const. $ 160. Id. Requirement as to decligating funds in designated depositary does not change character of officer. Id. Where Laws 1907, p. 449, fixes term of county treasury at four years commencing with election of 1908 and makes one ineligible to succeed himself, which act amends Rev. St. 1899, & 6764 (Ann. St. 1905, p. 3330), making terms two years and providing that one is ineligible after four years, an incumbent at the time of act of 1907 is eligible for re-election in 1908. State v. Cloud, 212 Mo. 481, 111 SW 8. Under Const. art. 182, sheerth and ex officc tax collector is not eligible for office to which he is re-elected until he secures a discharge for collections made. State v. Reid \[La.\] 47 S 912. Tax collector having been acquainted of embezement and having discharged sureties held eligible on re-election. Id. Where tax collector had disclosed state and sureties, receipts were binding and he was eligible to the office to which he was re-elected. Discharge not to be attacked collaterally. Id. Discharge not void because portion of sureties accepted less than full amount due. Id.

**School officers:** Under statutes of Indiana it is essential to eligibility of county super-intendent of schools at election that he hold at least one of four prescribed "licenses" to teach. State v. Bradt, 170 Ind. 480, 84 NE 1084. Post-graduate diploma granted purvant to act McN. 5, 1873 (Acts 1873, p. 199, c. 86; Burn's Ann. St. 1906, & 6049) to state normal graduate not life license with-in act McN. 7, 1905 (Acts 1905, p. 492, c. 183, 1 ; Burn's Ann. St. 1905, & 5902a). Id. 25, 26. State v. Hays, 105 Minn. 399, 117 NW 615.

**27. Omcles of postmaster and school trus-**

\*\*38.

Votes confers no right to a person ineligible to an office.\[32\] Disqualification is ordinarily a judicial question,\[33\] though constitutional provisions may render a state senate the sole judge of qualifications of its members.\[34\] Though a city council be the exclusive judge of the qualifications of its members,\[35\] the determination of whether in law the facts constitute disqualification is proper on quo warranto.\[36\]

(SS 3) \_B. Civil service.\[37\]--See 10 C. L. 1047--The primary purpose of civil service laws is to promote the good of the public service,\[38\] and such acts must be strictly complied with as to appointments,\[39\] the legislature having power to legislate on the subject.\[40\] The classification of positions, as to whether examinations are to be held, involves a construction of the civil service statutes.\[41\] A civil service examination cannot be restrained as an unlawful use of public moneys, where it appears that no additional expense is imposed.\[42\]

Id. Appointment of city physician final, though perhaps higher standard of effl-ciency adopted than previously required. Id. Under Comm. Laws, 1897, SS 2990, giving appointment of city attorney to mayor, mayor has duty of determining qualifications and might refuse to appoint honorably discharged union soldier, since Pub. Acts 1907, J. G. 476, No. 329, SS 1, only prevented refusal to disability such union soldiers who were incapacitated by loss of limb, etc, and required that they possess other requisite qualifications. Patterson v. Boron.\[15\] Mich. 315, I Oct. Leg. N. 395, 116 NW 1083. In quo warranting for denying an appointment under the veter's preference act, charges of fraud, bad faith or disregard of law must be proved by evidence of facts inconsistent with official probity. Presrump-p. 802, C. 370, SS 12, exempts certain position of duty in good faith. Ray v. Miller \[Kan.\] 98 P 239. Suspicion and innuendo insufficient to overcome presumption. Id. Evidence insufficient to show fraud in violation of veter's preference act in applying county assessor. Id. 32. Incumbent ineligible for re-election. Dorian v. Walters \[Ky.\] 118 SW 313. Officer with duty to administer the soath of office and accept official bond has no 468, i.e., 117 SW 313. jurisdiction to inquire into the eligibility of person presenting himself for qualification. Dorian v. Walters \[Ky.\] 116 SW 313. Possession of certificate of election does not raise any presumption as to eligibility of person elected. As canvassing board merely tabulates returns and cannot pass on eligiblellity. Id. Right of county auditor to office does not depend upon issuance of commission to him. Russell v. State \[Ind.\] 87 NE 13. 34. Under Const. art. 4, SS 9, supreme court can neither determine basis for senate decision or review It. Attorney General Seventh Senatorial Dist. Bd. of Canvassers \[Mich.\] 15 Det. Leg. N. 923, 118 NW 584. Under Const. art. 4, SS 9, board of canvassers cannot reject majority of votes cast for senator on ground that such person is ineligible. Id. 35. Holbrook v. Smedley \[Ohio\] 87 NE 269. Provisions of Rev. St. 1908, SS 1536-205, that councilmen have no interest in expenditure of corporation moneys, not qualification of which council was judge by Rev. St. 1908, SS 1536-212. Id. 36. Holbrook v. Smedley \[Ohio\] 87 NE 269. 37. Search Note: See Offiecs, Cent. Dig. $ 31: Dec. Dig. $ 26: 29 Cyc. 1378-1380; 6 L. & E. Enc. L (2ed.) 88. 38. Not to be construed technically. Dalton v. Darlington, 123 App. Div. 855, 108 NYS 626. Produinary periods to determine if permanent appointment desirable. Id. Id. 39. Civil service act Mch. 5, 1906 (P. L. 83), must be strictly complied with as to appointments. Truitt v. Philadelphia, 221 Pa. 331, 70 A 757. 406. Truitt v. Philadelphia, 221 Pa. 331, 70 A 757. Laws as to appointment subject to amendment or repeal; within constitutional limitations. People v. Bingham, 114 NYS 702. 41. Where civil service law, Laws 1899, R. 802, c. 370, SS 12, exempts certain positions from competitive class, such as "deputies of principal officers authorized to act generally in place of principals," and Laws 1901, p. 1745, C. 705, $ 2, providing assistants for sheriff's office in Kings county, permitted eight deputy sheriffs and eight assistant deputy sheriffs, latter class were not exempt but to be appointed under civil servc-ie law. People v. Milliken, 127 App. Div. 468, 111 NYS 551. Cashier of county clerk's office entrusted with collection of taxes and personally responsible to clerk is properly classified by civil service commission as "eashier mortgase tax bureau" in exempt class. Position confidential and competitive examination impactable to Hill. In r.e Gilm. 58 Misc. 273, 109 NYS 376, af.

- 12 Cur. Law. OFFICERS AND PUBLIC EMPLOYES SS 4A. 1137

## 4 Choice or employment. A. How chosen or employed.43

See 10 C. L. 1047

Public offices are conferred either by appointment or election.44 Appointments 45 are intrinsically executive acts.46 The authority of the legislature to provide for public offices is often limited by constitutional provisions,47 noticeable among which is the restriction that local officers be elected by local residents.48 Providing by what body of local magistracy the power of appointment is to be exercised is proper,49 but conferring the power of appointment of nonjudicial officers upon a court has been held unconstitutional.50 The power of appointment may involve the construction of statutes,51 especially in regard to municipalities,52 and the same is true of the mode

of appointment.54 Statutory provisions as to the time of appointment have been held merely directory,54 and generally an appointment by the proper authorities is not affected by mere irregularity of procedure.55 The appointing power may properly make appointments prior to the expiration of the term of an appointee.56 A constitutional provision prohibiting the extension of a term of office does not prevent the reappointment of officers as original applicants.57

(SS 4) \_B. Filling vacancies and promotions.58 See 10 C. L. 1048 The power of appointment may be exercised pursuant to statute in filling vacancies,59 as where an elected officer proves to be ineligible,59 in the case of resignation, abandonment or removal of an incumbent,61 upon the termination of a term,62 or the death of an elected

Under Laws 1907, p. 1521, c. 661, $ 1, providing of appointment paramount object of provi- that board of public works be "appointed"

sions and may be exercised subsequently. In by mayor subject to vote of aldermerm, word re Bogaskie, 58 Misc. 243, 109 NYS 588.

"appointed" is used in sense of "nominated."

People v. Raymond, 129 App. Div. 477, 114 NYS 365. President and board of trustees of villages organized under general act have

132 Ill. App. 376.

13333. Under the 13333.

12 Cur. Law. OFFICERS AND PUBLIC EMPLOYES SS 5B. 1139

officer before entering into office,68 and like circumstances. The legislature may specify what constitutes a vacancy.64 Where a town authorized to fill vacancies voted not to fill the office of assessor, the acts of the remaining assessors were valid.65

Civil service laws as to promotions are subject to amendment or repeal within constitutional limitations.66 Discretionary power may be vested in a commission as to when to provide promotional examinations.67 The amount of salary incident to an office is an appropriate test in determining the respective ranks of offices.68 Officers are also often classified according to the length of service.69 Civil service regulations as to promotions have the force of statutes and are subject to same rules of construction.70 Detailing an officer to perform the duties of a higher salaried office is not a promotion.71

SS 5. _Right to office and remedies to enforce same. A. Indicia and evidence of right.72 See 10 C. L. 1060_-Evidence of performance of duties by a public officer raises the presumption that he is an occupant de jure, not de facto.73

(SS 5) B. What remedy.74 See 10 C. L. 1050\_-Quo warranto 75 and not certiorari,76

cancy existed and successor might be ap- to fill vacancies and to hold otherwise would pointed. In re Bogaskle, 58 Misc. 243, 109 NYS 598.

68. By apparent weight of authority, where person elected to office dies after he has qualified and before commencement of his term, vacancy is created in new term to be filled as provided by law, and previous In-umbent is not entitled to hold over (Ballana-type, 131 Chl. App. 568.

type, 8ower \[Vyco.\] 98 P 899, but question may involve a consideration of constitutional or statutory provisions (Id.). Under Rev. St. 1899, $ 381, subd. 1, providing that elective office becomes vacant on death of incumbent, where elected justice of peace qualified, which act did not take effect until term commenced, and then died, person holding office was "incumbent" within meaning of statute, and death did not create vacancy. Id. "In-umbent" is person last elected to office with duty of qualifying and giving bond. $ 381, subd. 1. Id. Approval of bond after commencement of term not operative to ef-fect qualification before death so as to cause vacancy. Rev. St. 1889, $ 4183, construed. Id. Under Pol. Code, $ 996, 1001, as to fill-Ing vacancies, where controller elected for succeeding term dies before expiration of first terfIn, a vacancy is created at beginning of succeeding term which governor must fill.

70. By default injunction " or mandamus,"\* is the proper remedy to try title to public office; and the right cannot be determined on petition to place an appointee's commission on record " in an action for salary " or where the title would be questioned collaterally." Quo warranto will only lie to determine the title of a public office as distinguished from an employment." The title of de facto officers is not to be questioned collaterally," and injunction is the proper remedy by a de facto officer to prevent his being disturbed in the performance of the duties of the office until the legal title has been determined." Since a judgment of quo warranto compels admission to office, mandamus will lie to compel consideration of the official bond tendered." A contestant for office cannot maintain certiorari to review the discharge of a prisoner guilty of contempt in refusing to produce ballots before justices appointed to take depositions in the \_contestant's behalf." The Seneca Indians are a corporation and may maintain injunction to restrain one from usurping the functions of office of president of the nation."

See, also, Mandamus, Cent. Dig. $ 161- bent is party. Walden v. Headland \[Ala\_\] 47 169; Dec. Dig. $ 77; 26 Cyc. 251; Officers, Sent. Dig. $ 111-129; Dec. Dig. $ 80-89, 29 Cyc. 1416-1422; Quo Warranto, Cent. Dig.; Dec. Dig. 123 A. & E. Enc. L. (zed.) 351.

75. In re Newark School Board \[N. J. Law\] 70 A 881; School Dist. No. 116 v. Wolf \[Kan.\] 392, 95 P 287; State v. Patton, 131 M. Mob. App. 628, 110 SWV 636. Action under Code c. 27 to try title to public office in nature of quo warranto at common law is exclusive method of investigating usurpations. State Railroad Commission v. People \[Colo.\] 98 P 7; People v. Sheehan, 128 App. Div. 743, 118 NYES 280. Only remedy where one in possession of office under color of right. Id. Title to public office can only be determined in action under Code City, Proc. $ 1948. Seneca Nation of Indians v. Jimeson, 114 NYES 401.

01. Where real interest of applicants for certiorari to review proceedings under which school board was appointed is their individual interest to retain their offices, the reasons must be cogent to induce court to exercise its discretion in their favor. In re Newark School Board \[N. J. Law\] 70 A 881.

01. School Dist. No. 116 v. Wolf \[Kan.\] 98 P 237; Holbrock v. Smedley \[Ohio\] 87 NB 269. Where council by statute judge of election and qualifications of members, person elected, but refused recognition on ground of disqualification, is not in possession of office. Not entitled to injunction to exercise functions. Holbrock v. Smedley \[Ohio\] 87 NE 269.

01. State v. Bessemer City Com'rs, 148 N. C. 46, 61 SE 609; McKean v. Gauthier, 132 Ill. App. 376. Title of office not object of mandamus where petition by occupant performing duties to compel issuance of warrant for salary. McKean v. Gauthier, 132 Ill. App. 376. One wrongfully removed from position in fire department cannot by mandamus compel board of fire commissioners to restore him to position or one of similar grade unless he shows such position to be vacant. People v. Sheehan, 128 App. Div. 743, 113 NYES 230.

01. Ex parte Denham, 33 Ky. L. R. 592, 110 SWV 822. Should institute proper action and create issues of law and faet so that court may judicially pass upon legal rights. Id. 80, To be determined only where incumum-injunction " or mandamus,"\* is the proper remedy to try title to public office; and the right cannot be determined on petition to place an appointee's commission on record " in an action for salary " or where the title would be questioned collaterally."

You warranto will only lie to determine the title of a public office as distinguished from an employment." The title of de facto officers is not to be questioned collaterally," and injunction is the proper remedy by a de facto officer to prevent his being disturbed in the performance of the duties of the office until the legal title has been determined." Since a judgment of quo warranto compels admission to office, mandamus will lie to compel consideration of the official bond tendered." A contestant for office cannot maintain certiorari to review the discharge of a prisoner guilty of contempt in refusing to produce ballots before justices appointed to take depositions in the \_contestant's behalf." The Seneca Indians are a corporation and may maintain injunction to restrain one from usurping the functions of office of president of the nation."

See, also, Mandamus, Cent. Dig. $ 161- bent is party. Walden v. Headland \[Ala\_\] 47 169; Dec. Dig. $ 77; 26 Cyc. 251; Officers, Sent. Dig. $ 111-129; Dec. Dig. $ 80-89, 29 S1. Title of deputy county engineer not to be collaterally questioned. Action to invalidate proceedings establishing county road.

75. In re Newark School Board \[N. J. Law\] 392, 95 P 488. Defect of title to office of city-98 P 237 12 Cur. Law. OFFICERS AND PUBLIC EMPICES SS 7. 1141 (SS 5) _C. Procedure and practice in particular remedies._\[88\]See 10 C. L. 1051.\_The procedure and practice in particular remedies is fully treated in the specific topics dealing therewith.\*\* One who sues to recover a public office must show the right in himself and has the burden of proving every fact essential to the right.\*\* In a proceeding under the New York statute to require the surrender of books,\*\* the application must show a prima facie right to the office.\*\*

SS 6. _Induction into office._\[92\]See 10 C. L. 1052.\_In addition to other qualifications,\*\* an officer may be required to take oath **5** and give a bond **9** within a specified period,**97** and the failure of an officer to qualify within such period may be deemed a refusal to accept the office.\*\*

SS 7. _Nature of tenure and duration of term._\[99\]See 10 C. L. 1053.\_The words "term of office" may indicate the statutory period for which an officer is elected.\*\*1 A term of office need not be fixed and definite,\*\*2 **and within constitutional limitations, the**

\*\*SS.

legislature may fix," alter," or abolish " a term. The duration of a deputy's term is limited by that of the officer whose deputy he is." When fixed by statute, a term begins from that date," and where the duration, but not the commencement or ending, is fixed by statute, a term commences from the date of appointment." The commencement of a term may involve a construction of constitutional provisions." A statute firing a time for making appointments necessarily implies a fixed tenure for the appointee.10 A term fixed by statute is not shortened where an appointment omitted defining a term, and the bond recited a shorter period.11 Usually it is provided that an incumbent may hold office until the successor qualifies.12

Footnote 10: http://www.math.wisc.edu/~staff/

SS 8. _Regination, abandonment, removal and reinstatement. A. Resignation.13_ See 10 C. L. 1054.\_To constitute a complete and operative resignation of a public office, there must be an intention to relinquish a part of the term, accompanied by the act of relinquishment.14 In the absence of statute,15 a resignation is not complete until

12 Cur. Law. OFFICERS AND PUBLIC EMPLOYES SS 8C. 1143 accepted,16 and hence subject to withdrawal.17 A conditional resignation cannot be accepted except on the terms made by it.18 An officer may attach as a condition the appointment of a certain other person.19 A resignation obtained by coercion and duress is at least voidable and may be repudiated.20

(SS 8) \_B. Abandonment.21 See a C. L. 1203--To constitute an abandonment of an office, it must be total and under such circumstances as to clearly indicate an absolute relinquishment.22 The failure of an illegally removed public officer to bring mandamus, quo warranto, or to sne successor for salary, does not constitute an abandonment of office.23

(SS 8) \_C. Removal.24--The power to remove See 10 C. L. 1054 or discharge officials or employees is usually conferred by statute upon superior officers or official boards 26 such as the mayor,26 but is not always incident to the power of appointment.27 The right does not inhere in the chief executive of a state,28 but a municipality may have inherent power to remove city officials for just cause.29 An employer may be deprived

\[Nev.\] 91 P 391. Public officer should not be permitted to vacate an office and assume it again at will. Id.

16. State v. Stickley, 80 S. C. 64, 61 SE 211.

140S-141; 2 A. & E. Enc. L (2ed. 310; 8 Alg. 23; 15 Id. 1061; 28 Id. 428; 17 A. & E. Enc. P. 209.

25. Power of suspension or removal of policemen as held by mayor (Pol. Code 1895, v. Stickley, 80 S. C. 64, 61 SE 211. Resignation withdrawn before acceptance, vallab, though officer did not secure possession of resignation paper. State v. Stickley, 80 S. C. 64, 61 SE 211. Where portion of electors of a town had no authority to accept resignation of warden, officer might subsequently withdraw and continue to hold office, though successor elected. Id.

01. State v. Huff \[Ind.\] 87 NE 141. Sher-18's resignation to take effect at future day subject to withdrawual though accepted being conditional and hence no vacancy until contingency happened. State v. Murphy \[Nev.\] 91 P 391.

01. In absence of corrupt bargain. State v. Huff \[Ind.\] 87 NE 141. Under Burn's Ann. St. 1908, $ 9141, subd. 4, 5, requiring resignations to be to appointing power, or power authorized to call elections, and by $ 10, 251, making auditor appointing power, where assessor resigned on condition that certain person be successor, addressing communication to county commissioners, who did as requested, and such person being ineligible, auditor appointed another, resignation was conditional and not being addressed to appointing power, was void. Id.

01. State v. Ladeen, 104 Minn. 252, 116 NWV 486. Evidence held to show resignation procured by coercion. Id. Where resignation vodable, conduct of defendant in insisting upon retaining office, refusing to turn over books, etc., sufficient repudiation. Id.

01. Search Note: See notes in 113 A. & E. 616.

See, also, Offeners, Cent. Dig. $ 94; Dec. Dlig. $ 63: 29 Cyc. 1404, 1405; 23 A. & E. Enc. L (2ed.) 424.

22. State v. Huff \[Ind.\] 87 NE 141. Evl-dence insufficient to show abandonment of township assessor's office. Id. Ex parte judgment of auditor that vacancy existed does not create vacancy. Id.

01. To prevent recovery of salary. Greey v. St. Louis, 213 Mo. 384, 111 SWV 1159.

of a position where it is in good faith abolished, due to motives of economy,\[30\] but in such cases statutory provisions often provide positions for veterans \[31\] or veteran voluntaeter firemen.\[32\]

\_What constitutes a removal,\_See 10 C. L. 1055

\_Grounds of removal,_See 10 C. L. 1055_--\_Officers with a fixed tenure are ordinarily not subject to removal except for just cause.\[33\] The grounds of removal may be briefly stated as nonperformance of duties,\[34\] malfeasance,\[35\] or some misconduct in-mond, 129 App. Div. 477, 114 NYS 855. Can- $ 82), relators, who were gas meter inspectors, were deprived of their office by stat-power. Id. Members of board of public ute, and were only entitled to preference \[in employment under civil service law and subject to removal as such. Duties defined by Laws 1907, p. 1521, c. 661. Id. Under Laws 1907, p. 1521, c. 661, creating board of public works, etc., common council does not appoint members of such board within meaning of charter provision as to removal of "appointed" officers. Id.

30. City of Chicago v. People, 136 Ill. App. 296. Evidence held to show good faith in laying off employe, not evasion of civil service act. Id.

01. Where civil service position abolished, and incumbent not to be discharged, being veteran of war and also ineligible to position in competitive class, only recourse under Civil Service Law (Laws 1899, p. 795, c. 37) was that appointing office furnish name to commission to be placed on list of suspended employees as provided by $ 21, charges insufficient. Id.

01. Yerger v. State, 91 Miss. 802, 45 S 849. NYS 376, afd. 127 App. Div. 846, 111 NYS 808. Where Civil Service Law, Laws 1895, p. 809, c. 370, $ 21, provides that veteran of Spann-ish War be not removed except for misconduct, etc., but that section does not apply to certain positions as deputy of any official or department, and $ 12 (p. 801) provides that deputy in exempt class be deputy of principal executive officer authorized to act generally in place of principal, a veteran holding the position of mortgage tax deputy authorized by Laws 1906, p. 2080, c. 729, $ 311, allowing country clerk assistants, which position was classified by civil service commission, is not deputy within $ 12, but clerk within $ 21 entitled to preference. In re Gill

## 12 Cur. Law. Officers and Public Employees 8c.

volving the duties of an office.\* Another ground for removal is disability, where an officer is allowed a pension,\*7 and in some states an incumbent may be ousted for the quality of crime but necessary that act of off- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- orr- or orr- orr- orr- or orr- orr- orr- or orr- orr- or orr- orr- or orr- orr- or orr- or orr- or orr- or orr- or orr- ordisregard of a statute preventing the secret hire of a newspaper to advocate a candidate.\[88\] An officer cannot be removed for mere defect of title,\[49\] or because he has been guilty of misconduct in another office.\[40\]

_Defenses.\[See 10 C. L. 1056--A removing officer has no power to dismiss a civil servicce employe who can satisfactorily answer the charges preferred.\[41\]_

\_Mode of proceeding.\[See 10 C. L. 1056--Usually an officer cannot be removed except after notice and an opportunity to defend,\[42\] and written charges are generally required.\[43\] Such prerequisites apply to de facto officers,\[44\] or to the reduction of an

less than one-fourth or more than one-L. R. 219, 109 SWP 898. Discharge of entire half salary, and commissioner cannot be compelled to increase pension of $336 to $500 or one-half. Beal v. Bingham, 60 Misc. 539, 112 NYS 465. Under $35, where police-man voluntarily retries, he is entitled to one-half of salary as pension. Beal v. Bingham, 60 Misc. 539, 112 NYS 465. $M$.

\_3S. Publication of photograph by candid-date in newspaper under words "Paid Advertisment," and followed by announcement "Candidate for nomination for Lieutenant Governor," not violation of Laws 1907, p. 472, c. 209, $ 28, so that officer be ousted. State v. Har \[Vwsh.\] 99 T 748. $M$.

\_3S. State v. Patton, 131 Mo. App. 638, 110 SWP 636. Intelligibility at time of promotion not warrant for reduction in rank. Hansen v. Van Wink \[N. J. Law\] 69 A 1011. $R$.

\_4R. 1899, $ 5775 (Ann. St. 1906, p. 2934), providing that person in arrears in city office be disqualified from other offices, involves right to office and is not cause for removal under Rev. St. 1899, $ 5761 (Ann. St. 1906, p. 2931), providing for removal on just cause. State v. Patton, 131 Mo. App. 638, 110 SWP 636. $M$.

\_4R. In absence of statute, misconduct as ground for removal must be with respect to particular office from which incumbent is sought to be ousted. Must constitute legal cause for removal and affect admins-tration of such office. State v. Patton, 131 Mo. App. 628, 110 SWP 626. Under Rev. St. 1899, $ 5761 (Ann. St. 1906, p. 2931), providing for removal of officer for just cause, a defalaction in the office of collector was not sufficient to oust incumbent who was elected and occupied office of city treasurer. State v. Patton, 131 Mo. App. 628, 110 SWP 636. $M$.

\_4R. Under Civil Service Act, Mch. 5, 1906 (P. L. 83). Truit v. Philadelphia, 221 Pa. 381, 70 A 757. $M$.

\_4R. Officer with fixed term. Yerger v. State, 91 Miss. 802, 45 S 849; Gracey v. St. Louis, 213 Mo. 384, 111 SWP 1159. Appointed officer removable without cause at will. State v. Jenkins, 148 N. C. 25, 61 S 608. Relator appointed head of bureau of highways entitled to protection of charter, $ 1543, of New York, as to removal, allowing opportunity of explanation. People v. Ahearn, 193 N. Y. 441, 86 NE 474. Writ of mandamus held to contain sufficient averments as to appointment of relator to head of bureau of highways, and his removal in violation of charter of New York, $ 1543. People v. Ahearn, 193 N. Y. 441, 86 NE 474. $M$.

_5R. 1902, $ 3138, gives board of police and fire commissioners control over fire departments, and under rules pursuant_

_5R. 1910, $ 5761 (Ann. St. 1906, p. 2931), providing for removal of police and fire commissioners control over fire departments, and under rules pursuant_

\_6R. 2010, $ 5761 (Ann. St. 1906, p. 2931), providing for removal on just cause. State v. Patton, 131 Mo. App. 638, 110 SWP 636. $M$.

\_6R. 2011, $ 5761 (Ann. St. 1906, p. 2931), providing for removal on just cause. State v. Patton, 131 Mo. App. 638, 110 SWP 636. $M$.

\_4R. 2012, $ 5761 (Ann. St. 1906, p. 2931), providing for removal on just cause. State v. Patton, 131 Mo. App 18 Cur. Law. OFFICERS AND PUBLIC EMPLOYES SS 8C. 1147

officer who was ineligible to promotion at the time of appointment.\[45\] A probationary appointee is not entitled to trial before discharge,\[46\] though he may be entitled to notice of discharge at the expiration of the probationary period.\[47\] A suspension with or without pay pending an investigation is sometimes proper.\[48\] Statutory provisions determine before whom the hearing shall be had,\[49\] by whom,\[50\] and to whom the discharge shall be certified,\[51\] authority as to witnesses,\[52\] and the like. Questions of fact are presented on charges of malfeasance\[53\] or misconduct in office,\[54\] though

breach of peace. Larue v. Davies \[Cal. App.\] report of deputy without passing on evl- $7 p 903. Under Pen Code, $, subd. 4, "ma- "Iliciously" imports an intent to do wrongful App. Div, $73, 110 NYES 140. Evidence at act, whereforeverment sufficiently indi- "trial need not be read by commission be- "acted intent. Larue v. Davies \[Cal. App.\] for acting on recommendation of board. Not required to review evidence, etc., and presumption of investigation as required by facto officer promoted without recommendation- "law unless contrary shown. People v. Chiction of superior for merit as required by capo, 234 Ill. 416, $4 NE 1044.

P. L. 1902, p. 186. Hansen v. Van Vinkle \[N. J. Law\] $9 A 101L.

65. Under tenure of office act (P. L. 1899, p. 27, $) as to removal of officers upon "mission was properly certified to the board" just cause after trial, etc., a patrolman could not be reduced in rank without no- "slt. 1905, e. 24, $ 405," creating board, and title and his pay reduced, though he was in "slt. 12 (Hurd's Rev. St. 1905, e. 24, $ 457)," deligible to the first position. Hansen v. Van Vinkle \[N. J. Law\] $9 A 101L, by appointing officer). Sullivan v. Lower, 48. Prochonary appointee under civil 234 Ill. 84 NE 622.

service act not entitled to trial before discharge. Kenyon v. Chicago, 135 Ill. App. 1895, p. 1534, $ 5, 9, board may compel 227. Informality In discharge sustained "spareance of witnesses without confines of where serious derefiction of duty. Kenyon v. Chicago, 135 Ill. App. 227.

74. Where probationary period expired on "16th of month and whereabouts of proba- "matter of law that particular act is wrong- "tioner unknown, service of notice on "18th" was reasonable compliance with rule 11 of unauthorized by law. Law v. Smith, 34 ctl service commission as to notice of discharge. Dalton v. Darlington, 123 App. Div. 855, 108 NYES 626. Notice of discharge to probationer delayed because whereabouts "unknown, not construed as permanent ap- "pointment Dalton v. Darlington, 123 App. Div. 855, 108 NYES 626. If appointment permanent because of failure to give probationer notice of discharge, he could be re- "moved by formal charges and hearing. Dalton v. Darlington, 123 App. Div. 855, 108 NYES 626. Notice of discharge to probationer delayed because whereabouts "unknown, not construed as permanent ap- "pointment Dalton v. Darlington, 123 App. Div. 855, 108 NYES 626. Notice of discharge to probationer delayed because whereabouts "unknown, not construed as permanent ap- "pointment Dalton v. Darlington, 123 App. Div. 855, 108 NYES 626. Notice of discharge to probationer delayed because whereabouts "unknown, not construed as permanent ap- "pointment Dalton v. Darlington, 123 App. Div. 855, 108 NYES 626. Notice of discharge to probationer delayed because whereabouts "unknown, not construed as permanent ap- "pointment Dalton v. Darlington, 123 App. Div. 855, 108 NYES 626. If appointment permanent because of failure to give probationer notice of discharge, he could be re- "moved by formal charges and hearing. Dalton v. Darlington, 123 App. Div. 855, 108 NYES 626. Note of discharge to probationer delayed because whereabouts "unknown, not construed as permanent ap- "pointment Dalton v. Darlington, 123 App. Div. 855, 108 NYES 626.

it is also held that trial by jury is not necessary in amotion from office.\[58\] The rule requiring proof beyond a reasonable doubt is not applicable to sustain a conviction for malfeasance.\[86\] In investigating the duties of a park commissioner, a council might examine the work to better understand the evidence.\[87\] A record that an employee has been discharged for motives of economy is not conclusive.\[88\] An appointee under a civil service act cannot collaterally attack a discharge,\[89\] and a delay of two years in disputing the validity of a discharge constitutes laches.\[90\] A removal is not invalid because a mayor acted as prosecutor and judge.\[91\]

_. Nature of proceeding.\[See 10 C. L. 1058\]_--The removal of an officer is considered a quasi judicial function,\[62\] and statutes authorizing removals are not unconstitutional as delegating judicial power.\[63\]

_Appeal and review of proceeding.\[See 10 C. L. 1068\]_--The action of a tribunal as to removal may be considered final\[64\] as not open to review, unless in the case of an arbitrary exercise of power.\[86\] Where the proceedings are of a judicial or quasi judicial nature, they may be reviewed by certiorari,\[90\] mandamus,\[87\] or quo warranto.\[68\] To be reviewable by certiorari,\[91\] the judgment must be final,\[90\] and the review is necces-Gross neglect of duty though commissioner\[1905\], c. 24, $ 457\], as to removal, not unintended to make final inspection, since duty to compression. People v. Chicago, 234 Ill. Detroit Common Council, 183 Mich. 540, 15 Dett Leg. N. 516, 117 NWV 171. Fact that are to removal of officers (St. Louis Charminucipality protected by bond of commissioner not inconsistent with finding of gross neglect of duty, since bond merely provided additional remedy. Bolger v. Detroit Common Council, 153 Mich 540, 15 Det Leg. N. 516, 117 NWV 171. Contractor's agreement to remedy defects not inconsistent, since additional remedy. Bolger v. Detroit Common Council, 153 Mich. 540, 15 Det. Neg. N. 516, 117 NWV 171.

55. State v. Jenkins, 148 N. C. 46, 61 SE 608.

01. Law v. Smith, 34 Utah, 394, $ P 300.

01. Especially since examination in presence of commissioner's counsel and without objection. Bolger v. Detroit Common Council, 153 Mich. 540, 15 Dett Leg. N. 516, 117 NWV 171.

01. St. 1904, p. 265, c. 314, 1, as to removal from office for just cause, etc., cannot be avoided by health board. Evidence admissible to show discharge of employe in violation of statute, though false recital in record stated reason for discharge as economy. Garvey v. Lowell, 199 Mass. 47, 85 NE 182.

01. Right must be settled in direct proceeding as mandamus or certiorari. Kenyon v. Chicago, 135 Ill. App. 227. Assumpsi for salary. Kenyon v. Chicago, 135 Ill. App. 227.

01. Kenyon v. Chicago, 135 Ill. App. 227.

01. Charges preferred by secretary of mayor. State v. Wells, 210 Mo. 601, 109 SWV 758. Charter imposed duty on mayor to enforce laws and presumption of performance of duty. State v. Wells, 210 Mo. 601, 109 SWV 758.

01. People v. Raymond, 129 App. Div. 477, 114 NYS 365; State v. Wells, 210 Mo. 601, 109 SWV 758. Not exercise of judicial power as there is no such thing as title or property in public office. People v. Chicago, 234 Ill. 416, 84 NE 1044.

01. Civil Service Act, $ 12 (Hurd's Rev. St.)

01. Action of civil service commission after trial by board final and not reviewable. Mandamus will not lie as to discretionary acts. People v. Chicago, 234 Ill. 416, 84 NE 1044. Errors as to rulings of law, or in application of law to facts by civil service commission acting within jurisdiction, not open to review on territorial. Sullivan v. Lower, 234 Ill. 21, 84 NE 622.

01. Removal of severe commissioners under St. 1895, p. 222, 219, $ 4, re-cancated in St. 1904, p. 339, $ 84, $ 9, not open to review on facts unless arbitrary exercise of power and cause of removal unreasonable and illegally sufficient. Dunn v. Crossman, 200 Mass. 252, 86 NE 313.

01. Determination of removal of city off-cers subject to review by certiorari. People v. Raymond, 129 App. Div. 477, 114 NYS 365.

01. Civil service law (Laws 1899, p. 809, c. 370, am'd by Laws 1904, p. 1694, c. 697),

01. J1, provides for mandamus where rights prejudiced by removal, and certiorari where trial required and had. People v.

13 Cur. Law. OFFICERS AND PUBLIC EMPLOYES $ 8D. 1149

sarily limited." A proceeding by certiorari to review the dismissal of a patrolman is instituted when the petition is presented to the court, not when the writ is served,\[11\] and amendments are proper.\[72\] A trial will not be reversed for errors which prove to be harmless,\[73\] but in proceedings for removal for malfeasance, a new trial may be granted for errors in instructions.\[74\] To be reviewable, an objection should be properly saved.\[75\] Where a council on resolution declared certain charges true, whereby a commissioner was removed, it will be presumed on appeal that the councilmen passed on each of the charges and the question of removal.\[76\]

\_Effect of illegal removal.\_See 10 C. L. 1050--The unlawful discharge of an employee in disregard of veteran acts may subject the official to liability for damages.\[77\] An illegal removal does not prevent the recovery of compensation during the period of nonperformance of duties.\[78\]

(SS 8) \_D. Reinstatement.\[79\]\_See 10 C. L. 1050--In an appropriate case an officer may be restored to his position by mandamus,\[80\] but the remedy may be lost by laches.\[81\] Reinstatement will not be denied where an answer enumerates sufficient causes for removal, but is demurred to.\[82\]

were not final judgment reviewable by cer- 74. Under Comp. Laws 1907, $ 4565. Law: torari, State v. Selby, 133 Mo. App. 553, v. Smith, 34 Utah, 394, 98 P 300.

113 SWY 682. 75. Where no objection to sufficiency of specifications on trial before civil service can't match of county jail by sheriff under commission, objection could not be raised on writ of error to review order quashing 1904, p. 1694, c. 697, were on their face sufferment to review. Sullivan v. Lower, 234

ficient, court cannot go beyond that and germline whether reasons had existence as matter of fact or consider explanation of person removed as sufficient on certiorari. People v. Harvey, 127 App. Div. 211, 111 NYS 167. Removal not disturbed on certiorari under Code Civ. Proc. $ 2140, where determination sustained by competent proof and no such preponderance of proof that determination is considered as based on ver-dict of jury could be set aside as against weight of evidence. People v. Heins, 112 NYS 139. 71. Under Greater New York Charter, Laws 1901, p. 129, c. 466, $ 302, requiring Institution of proceedings to review within four months. People v. McAdoo, 125 App. Div. 673, 110 NYS 140. 72. Amendment to certiorari allowed two years and three months after original writ, which states in detail particulars on which averments based, does not change cause of action, and being made before respondent's return was proper. People v. McAdoo, 125 App. Div. 673, 110 NYS 140. Objection to amendment by motion to quash. Not by averments in return. People v. McAdoo, 125 App. Div. 673, 110 NYS 140. 73. Statement in order of discharge that defendar was found guilty on two charges and dismissed harmless where one charge dismissed and defendant found guilty as to other. People v. O'Brien, 125 App. Div. 202, 109 NYS 64. Trial conducted with formalities requiring for tribunal to observe and supplement to secure far trial. Winters v. Jersey City Com'r \[N. J. Law\] 71 A 50. Evidence held to support charges of gross neglect of duty by commissioner of parks as found by council, especially since circuit court of county on certiorari had unanim- mously reached same conclusion. Bolger v. Detroit Common Council, 163 Mich. 540, 15 Det. Leg. N. 516, 117 NW 171. 71. 72. Amendment to certiorari allowed two years and three months after original writ, which states in detail particulars on which averments based, does not change cause of action, and being made before respondent's return was proper. People v. McAdoo, 125 App. Div. 673, 110 NYS 140. Objection to amendment by motion to quash. Not by averments in return. People v. McAdoo, 125 App. Div. 673, 110 NYS 140. 73. Statement in order of discharge that defendar was found guilty on two charges and dismissed harmless where one charge dismissed and defendant found guilty as to other. People v. O'Brien, 125 App. Div. 202, 109 NYS 64. Trial conducted with formalities requiring for tribunal to observe and supplement to secure far trial. Winters v. Jersey City Com'r \[N. J. Law\] 71 A 50. Evidence held to support charges of gross neglect of duty by commissioner of parks as found by council, especially since circuit court of county on certiorari had unanim- mously reached same conclusion. Bolger v. Detroit Common Council, 163 Mich. 540, 15 Det. Leg. N. 516, 117 NW 171. 72. 73. 74. Under Comp. Laws 1907, $ 4565. Law: torari, State v. Selby, 133 Mo. App. 553, v. Smith, 34 Utah, 394, 98 P 300. 75. Where no objection to sufficiency of specifications on trial before

## 9 Powers and duties 8a

See 10 C. L. 1080 of public officers are generally prescribed by constitutional or statutory provisions.8a A person performing a statutory duty which does not involve the exercise of any judicial functions is a ministerial officer.8a The acceptance of every office is upon an implied contract that the acceptor will perform its duties with integrity, diligence and skill,8a and the presumption is that official duties are properly performed.8a When the judgment or discretion of official

- 8a. Search Note: See notes in 6 C. L. 863; or as individual. Id. Approval of official
- 3 L. R. A. (N. S.) 849; 106 A. S. R. 825; 2 Ann. Cas. 81; 3 Id. 391; 7 Id. 1114; 11 Id. 620.
- 8a. Allow Officers, Cent. Dig. **SS 163-184**; 111 Ohio C. C. (N. S.) 209. In absence of
- 1431-1437; 8 A. & L. E. Enc. L (2ed.) 806; 14
- 1438; 1439; 8 A. & L. E. Enc. L (2ed.) 806; 14
- 16409; 82 Id. 863.
- 8a. Power that creates office and defines
- 8a. Allow Officers may also fix terms upon
- 8a. Allow Officers who studies shall be exercised. Harrison Tp. Advisory Board v. State, 170 Ind.
- 439, 85 NE 18. Officer accepts office with
- 8a. Allow Officers who studies affixed and subject to additional duties which may be imposed.

an executive officer has been completely exercised in the performance of a specific duty, the act is beyond his review or recall, unless power to that extent has been conferred.\[88\] Statutes relating to the manner in which power or jurisdiction of an officer is to be exercised are construed to be directory.\[88\] A public officer in performing an act within the general scope of his authority, who commits an error or even abuses the confidence which the law reposes in him, is still acting virtue officii.\[90\] A public officer or agent of the state who receives money belonging to it, cannot refuse to pay it over because illegally exacted.\[91\] An unauthorized contract by a city official cannot be ratified by the mayor.\[92\]

\_Effect of personal interest.\_See 10 C. L. 1001--Contracts by municipalities or other public institutions, in which public officials are directly or indirectly interested, are forbidden.\[88\]

\_Acts of a de facto officer_See 10 C. L. 1001 are valid as to the public and third persons,\[94\] but the acts of a mere usurper are absolutely void for all purposes.\[95\]

\_Delegation of powers.\_See 10 C. L. 1002--Acts requiring the exercise of discretion and judgment must be performed by the officer himself.\[96\]

of conformity with statute as to claims Long v. Lernoyre Borough \[Pa.\] 71 A 211. paid by auditor In absence of contrary Act March 31, 1860 (P. L. 400) $ 66, penal showing. Barron v. Kaufman \[Ky.\] 115 and strictly construed. Id. Contract for SW 787. Selzure of intoxicating liquors by mavshal. Hines v. Stahl \[Kan.\] 99 P 278. In action for fees of corporation, paid under not vold. In re Village of Kenmore, 59 protest where no allegation to whom fees Malic. 388, 110 NYES 1008. Treasurer of village paid, presumption is payment according to not officer within Village Law (Laws 1897, law to secretary of state, and thence to be state treasury as provided by Kirby's Dig. in which officer is interested. Id. Under $ 3447, 3449. London & Lancashire Fire \[N.S.\] (p. 388) village treasurer Ins. Co. v. Ludwig \[Ark.\] 112 SW 197. Of- radical certificate of reward for apprehension authorized to contract on behalf of village. of criminal primin facte valid. Hager v. Id. Under Cobby's Ann. St. 1907, $ 4489, disebottom \[Ky.\] 113 SW 870.

88. Garfield v. U. S. 30 App. D. C. 177.

01. Designation of time directory unless nature of act or phrasology of statute be limitation on officers' power. Hudson v. Williams \[Ga. App.\] 62 SE 1011.

01. Conley v. Carney, 126 App. Div. 337, 110 NYES 528.

01. Yamhill County v. Foster \[Or.\] 99 P. 286. Where park purchased in excess of constitutional limitation of indebtedness but money paid by taxpayers voluartially into treasury, city recorder could not set up defense of such illegality when refusing to pay Interest after order by council. State v. Hodapap, 104 Minn, 309, 116 NYES 89. Recorder's duties ministerl Id.

01. Purchas of material by superintendent of streets unauthorized by charter. Bartlett v. Lowell, 201 Mass., 151, 87 NE 195.

01. Charter of San Diego prohibits contracts in which members directly or indirectly interested. Woods v. Potter \[Cal. App.\] 95 P 115. Presumption of self-in-test preventing protection of public rights. Id. Councilman acting as such in connection with matter in which he is interested vitiates transaction. Id. Evidence held to show contract by county tax assessor for certified copy of assessment roll not to be for benefit of city, but that assessor was personally interested in same. Ala-meda County v. Dalton \[Cal. App.\] 98 P 58. Act March 31, 1860 (P. L. 400) $ 66, preventing contract where member of borough council profits, held inapplicable where loan from bank authorized and member of council, also member of banking association, * _Mode of official action_,See 10 C. L. 1062.--Action by a majority of officials is usually valid,97 and has been upheld where the majority of a board consisted of a de facto and a de jure officer.98

- _Judicial control or review_.See 10 C. L. 1062.--Generally, courts will not interfere with the discretion vested by statute in administrative officials.99 The performance of existing duties may be compelled by mandamus,1 but the writ will not issue to control discretion

- and the applicant must show a clear legal right to the performance of the

- 870. Reward for apprehension of criminal discretionary, not to be delegated to governor's secretary. Id. Duty of board of supersiors of county to pass upon and audit claims and order payment not subject to delegation to county auditor. People v. Neft, 191 N. Y. 210, 83 NE 970. Under Country Government Act 1897 (St. 1897, P. 604, c. 277), $ 160, subd. 7, as to preparing copies of assessment rolls, such work is part of official duty of assessor and not subject to delegation. Alameda County v. Dalton \[Cal. App.\] 98 P. S5.

- 97. Where St. 1898, c. 548, $ 331, provides for three or more assessors, $ 351 authorizes town to fill vacancies, Pub. St. 1882, c. 3, $ 3, cl. $ (Rev. Laws 1902, c. 8, $ 4, c.), provides for exercise of joint authority of public officers by majority; where a town voted not to fill a vacancy caused by death, the remaining two assessors could make a valid assessment. Cooke v. Setiuate, 201 Mass. 107, 87 NE 207.

- 98. Contract of employment with school teacher. Johnson v. Sanders \[Ky.\] 115 SW 772.

- 99. In absence of convincing proof of improper conduct, or unless powers conferred are clearly transgressed. Holy v. New York, 128 App. Div. 499, 112 NYS 197: DeMerritt v. Weldon \[Cal.\] 98 P S47; Board of Education v. Cherokee County Com's \[N. C.\] 63 SE 724. Rebuilding of school house and changing of school site discretionary. Venable v. Pilot Mountain School Committee \[N. C.\] 62 SE 902.

- 11. Ministerial duties. People v. Busse, 141 Ill. App. 218; Adams v. Clarksdale \[Miss.\] 4$ S 242; Board of Trustees of Tierem's Pension Fund v. McCrory \[Ky.\] 116 SWV 326. Issueance of license. Griffin v. U. S., 30 App. D. C. 291. Pedder's license. Butler v. Moberly, 131 Mo. App. 172, 110 SWV 682. Promotion to higher class of police service after specified length of time. McFarland v. U. S., 31 App. D. C. 381. Payment of interest on bonds for park by city recorder. State v. Hodap, 104 Minn. 309, 116 NWP 589. Mandamus proper where duty is preemptory and explicit. Board of Education v. Cherokee County Com's \[N. C.\] 63 SE 724; Trinity Life & Annuity Soc. v. Love \[Tex.\] 115 SWV 26. Duty resulting from office. State v. Holgate \[Min.\] 118 NWV 792. Proper to require county treasuret to pay draft properly drawn by state auditor for taxes collected for state. Id. No objection that respondents' predecessor and not respondent was one who failed in performance of duty. Id. Will not lie to compel act which officer has no legal power to perform. McGill v. Osborne \[Ga.\] 62 SE 811. Under Act 1907, p. 467, incorporating town of Boynton, county school commissioner not required to pay portion of school

### 12 Cur. Law. Offisters and Public Employees $ 10a.

#### duties.8

Where mandamus is authorized by statute against state officers, except the governor, the writ will not issue against a board of which he is a member.4

Illegal official acts may be enjoined by taxpayers,5 and courts are astute to impeach and invalidate transactions where officials have any personal interest in the matter decided.6 An attorney general of a state may be enjoined by a federal court from enforcing a statute violating the federal constitution.7 A mayor who disregards his duties and obligations may properly be ousted from office on quo warrant.8

Footnote 8: The author is grateful to the anonymous referees for their comments.

SS 10. _Liabilities of public officers. A. Civil liability 9--See 10 C. L. 1988_ cannot be predicated upon the lawful discharge of duties, in good faith by public officials; 10 but

Footnote 8: The author is grateful to the anonymous referees for their comments.

###### Contents

- 12 Cur. Law. Offisters and Public Employees $ 10a.
- 13 Where mandamus is authorized by statute against state officers, except the governor, the writ will not issue against a board of which he is a member.4
- 14 The author is grateful to the anonymous referees for their comments.
- 15 Long v. Shepherd \[Ala.\] 48 S 675. Contracts to defraud the public or for the personal interest of the contracting officials or third parties may be enjoined. Id. More mistake of judgment or negligence of off-clatating proceeding. Since statute violates condition, act in attempting to enforce authorize an injunchen. Id. County commissioners having authority to contract for proceeding does not affect state in governmental energying out same, though perhaps inexpedient or not so good as others might make. Id. Taxpayers could not enjoin payment of claims under contract with county commissioners providing that no change be made-in contract except on order of commissioners' court. Provision for benefit of contracting parties. Id. Mis-appropriate of county funds by county officers. Kumpe v. Bryunn \[Ala.\] 48 S 65. Taxpayers' act (Laws 1881, p. 709, c. 531, as am/d Laws 1892, p. 620, c. 301) to prevent illegal official action not designed to authorize restraint of every wrongful action irrespective of waste of property or violation of rights of public. Farley v. Lock-port, 61 Misc., 417, 113 NYES 702. Object to prevent insurption of powers and restrain illegal acts productive of public mischler. Id. Disregard of formalities in enactment of resolution not illegal within statute. Id. Abstract books and records not property of county which taxpayer may by injunchen. Curr. L.--73.

an officer who performs an unlawful or tortious act under the pretense of performing a duty,11 who performs a ministerial duty in a wrongful or negligent manner,12 or who corruptly, willfully or negligently fails to perform a mandatory duty,13 is liable. Thus liability results from the misappropriation of county funds,14 or the unauthorized investment of public monews,15 and a custodian of municipal warrants,

civil action for damages arising out of act in establishing quarantine, when acting in good faith. Valentine v. Engelwood \[N. J. Err. & App.\] 71 A 344. Board of health Act, $ 15 (Gen. St. 1895, p. 1638), gives action against board in effect upon facts as set forth, but question of reasonable cause of board to act in such suits is for court. Id. Board of Health Act (Gen. St. 1895, p. 1838), $ 15, forbidding suits unless board acted without reasonable and proper cause, does not infringe constitutional provisions protecting private property and individual liberty. Id. Under Ky. St. 1903, $ 3127-$130, prescribing duties of city auditors, he is not liable for allowing and directing payment of warrants for claims for compensation of council members when claims are not illegal upon their face, have been properly audited and certified and appropriations made. Barron v. Kaufman \[Ky.\] 99 P 410. No penalty for neglect of duty 115 SWV 787. County trensurer paying just claims in good faith will not be required to and removal from office for palpable omis. repay sums because orders were irregular. Harrison v. Logan County, 33 Ky. L. R. 465, 110 SWV 377. Where trensurer ministerial officer with duty of paying out funds on orders of fiscal court, he is not liable to county for payments made. If money paid to persons not entitled to it, remedy is against such persons. Id. Where fiscal court in its discretionary power as to payments for road work (Ky. St. 1908, $ 431) places sum in hands of treasure, subject to vouchers of clerk of court, trensurer was not liable for payments made on such orders, since presumption that court did duty. Id. Ky. St. 1903, $ 3175, requiring ordinance levying taxes to specify purpose, etc., construed, and no liability imposed on officials for applying taxes collected under valid ordinance to governmental purpose. Purpose of act to prevent collection under void ordinance. Duncan v. Combe \[Ky.\] 115 SWV 222.

11. Lienemann v. Costa, 140 Ill. App. 167. In action against officer for money taken from prisoner arrested for lareeny, it was error to sustain demurrer to such officer's answer which alleged ownership in a co-defendant. Common defense. Gunnells v. Latta \[Ark.\] 111 SWV 273.

01. Lienemann v. Costa, 140 Ill. App. 167. Not liable for discretionary act. Taylor v. Manson \[Cal. App.\] 99 P 410. Llable for plain duty negligently performed. Id. Payne v. Baehr, 153 Cal. 441, 95 P 895. Pol. Code, $ 4332 (County Government Act, St. 1897, p. 574, c. 277, $ 222), providing for liable on official bond of officer refusing to perform duty when fees tendered, gives injured party remedy independent of mann- damus. Payne v. Baehr, 153 Cal. 441, 95 P 895.

01. Lienemann v. Costa, 140 Ill. App. 167. Taylor v. Manson \[Cal. App.\] 99 P 410. Llable for plain duty negligently performed. Id. Payne v. Baehr, 153 Cal. 441, 95 P 895. Pol. Code, $ 4332 (County Government Act, St. 1897, p. 574, c. 277, $ 222), providing for liable on official bond of officer refusing to perform duty when fees tendered, gives injured party remedy independent of mann- damus. Payne v. Baehr, 153 Cal. 441, 95 P 895.

01. Lienemann v. Costa, 140 Ill. App. 167. Taylor v. Manson \[Cal. App.\] 99 P 410. Auditor liable to creditor for damages in refusing to perform official ministerial duty negligently performed. Id. Payne v. Manson \[Cal. App.\] 99 P 410. No penalty for neglect of duty by alderm 13 Cur. Law. OFFICERS AND PUBLIC EMPLOYES SS 10B. 1155

who sells them without authority before the municipality raises funds for redemption, is liable for conversion.18 The nonperformance of a duty may be excused by lack of funds,17 and an officer should not be held liable for the wrongful act of a deputy.18 Public state officials engaged in governmental duties are not liable for the wrongdoing of one acting under them who by negligence inflicts injury on another,19 and public officers are not individually responsible on official contracts, unless such liability was clearly intended.20 The rule that a public officer is not responsible for a judicial determination, however erroneous and malicious, is applicable only where the judge had jurisdiction.21 Though contracts between third persons may depend upon the act of a public officer, such officer would not be liable in damages to such third persons.22 Where a public officer is involved in litigation in his official capacity, the expiration of his term does not require a substitution of his successor.18 A federal enactment provides relief for funds lost by disbursing officers without negligence.24

Footnote 18: The author is grateful to the anonymous referee for the anonymous referee

acts of officers, and a city is not liable for the acts of a board of health created by statute for the public benefit.\[34\] Neither is a public body bound by contracts beyond an officer's authority.\[35\] No estoppel can grow out of dealings with public officers of limited powers.\[36\] Where a city treasurer paid life insurance premiums with city checks, the insurance company was chargeable with notice of receiving city funds for an individual debt and the same were recoverable.\[37\]

SS 18. \_Official bonds and liabilities thereon.\[38\]_See 10 C. L. 1064_--An official bond failing to conform to the statute may be valid as a common-law bond.\[39\] The board of

les and injurrying land outside district. may be presumed by course of conduct in-Wenck v. Carroll County \[Iowa\] 118 NWV \[Kan.\] 98 P 211. Employment of individualvisors or other officers. Remedy against public Contracts, 10 C. L. 1856; Municipal

**33.** Municipality bound by acts of officers only when within charter or scope of powers and acts outside powers are void and corporation is not liable. Martin v. Kingfisher

\[OK\]. 98 P 476. Wronsful refusal to issue peddier's license. Butler v. Muberly, 131

Mo. App. 172, 110 SWV 682. Threats of repeated prosecutions by officers. Compaint

held insinficient. Id. Negligence of super-intendent of highways falling to keep ditch

free from obstructions. Smith v. Gloueset, 201 Massa, 239, 87 NEC 626. Where regularly appointed city bridge tender employed others to do work with city's knowledge, negligence of such others was that of regu-larly appointed tender. Cathman v. Chicago, 236 Ill. 9, 86 NE 152. Llabe for acts of street commissioner while improving a street. Barre v. Cape Girardeau, 132 Mo. App. 182, 112 SWV 724.

34. Not agents of city, though appointed by municipal authorities. Valentine v. Englewood \[N. J. Err. & App.\] 71 A 344.

01. J. Burton Co. v. Chicago, 236 Ill. 383.

86 NE 93. Person dealing with public of-fecr must take notice of scope and limitation of authority. Burgard v. State, 61 Misc. 23, 114 NYS 550; Nilan V. Boyron, 183 N. Y. 180, 85 NE 1012; Bartlett v. Lowell, 201 Massa. 151, 87 NE 195. County officer cannot in absence of legislative authority make contract binding on county. Powers defined by law. Pol. Code 1895, $ 268. Ross v. Blob County, 130 Ga. 585, 61 SE 465. Tax collector has no authority to agree with taxpayer to substitute responsibility. Graves v. Bullen \[Tex. Civ. App.\] 115 SWV 1177. Highway commissioners have no general authority to bind towns by their contracts or undertakings. Can only bind for construction of roads when direct statutory authority. Nilan v. Bowron, 193 N. Y. 180, 85 NE 1012. City not liable for reasonable value of gravel sold to city officer with no power to contract for same where gravel used to repair streets. Bartlett v. Lowell, 201 Massa. 151, 87 NE 195. Subordinate employee cannot bind state by variation of contract. Division engineer of road cannot reject material and accept higher grade, thus binding state. Burgard v. State, 61 Misc. 23, 114 NYS 550. Person contracting to collect taxes, which contract void, pre-sumed to know Illegality and that performance of services is against public policy, wherefore recovery on quantum merit barred. State v. Dickinson County Corn's, 77 Kan, 540, 98 P 392. Existence of authority

12 Cur. Law. OFFICERS AND PUBLIC EMPLOYES SS 13.

1157 acts of officers, and a city is not liable for the acts of a board of health created by statute for the public benefit.\[34\] Neither is a public body bound by contracts beyond an officer's authority.\[35\] No estoppel can grow out of dealings with public officers of limited powers.\[36\] Where a city treasurer paid life insurance premiums with city checks, the insurance company was chargeable with notice of receiving city funds for charity. Nilan v. Bowron, 193 N. Y. 180, 85 NE 1012. City not liable for reasonable value of gravel sold to city officer with no power to contract for same where gravel used to repair streets. Bartlett v. Lowell, 201 Massa. 151, 87 NE 195. Subordinate employee cannot bind state by variation of contract. Division engineer of road cannot reject material and accept higher grade, thus binding state. Burgard v. State, 61 Misc. 23, 114 NYS 550. Person contracting to collect taxes, which contract void, pre-sumed to know Illegality and that performance of services is against public policy, wherefore recovery on quantum merit barred. State v. Dickinson County Corn's, 77 Kan, 540, 98 P 392. Existence of authority

135 Senech Note: See notes in 21 L. R. A. 783; 22 L. 449; 35 L. 88; 11 L. R. A. (N. S.)

785; 3 A. S. R. 749; 10 L. 84

### 1158 Officers and Public Employees $ 12. 13 Cur. Law.

trustees of a village has no power to pay the premiums on official bonds of officers in absence of legislative authority.40 Where an ordinance did not specify who should approve a bond, it was presumed that the council had reserved such power to itself.41 The liability to the public or other persons 42 depends upon the conditions of the bond,43 including the statutory conditions which are a part thereof.44 A bond is not a lien on the promissor's property unless made so by statute.45 No liability is imposed on an official bond of county commissioners where a report surcharging them contained merely expressions of opinion.46 A surety upon an official bond is only

bond of clerk of court oncommon-law bond. Id. Where banker executed bond as county $ 1457, anticle-papia, state v. Collins, 8 Ohio N, P, (N. S.)

pating appointment, but was not so appointed, and county treasurer deposited funds which were stolen, bond could not be construed as common-law bond, since liability: Yes. St. 1903, $ 4397, requiring bond for $1,000 for unlawful conduct or assault by police-kubl v. Chamberlain \[Iowa\] 118 NW 776, man, and $ 8752, providing that recovery on bond be not limited by penalty, judgment against sureties on bond for amount in excess of penalty authorized. Id. County treasurer's bond, while contract, is entered into between dependent government and an officer thereof whose duties are prescribed by statute, not by bond. McSurely v. McSurely v. McSurely $ 5951, 710. National Suarety Co. v. State

sauthor procured spurious refund orders on county treasurer to fictitious payee, caused orders to be authenticated and raged assignments, selling to bank, proximate cause of loss by bank was individual acts in foring, not official misconduct in issuing same, Id. Pol. Code Mont. 1895, $ 1064 (Rev. Codes, $ 391), providing that bonds be for use and benefit of persons aggrived, must be read in connection with conditions of bond, and refers only to liabilities as arise within fair intemment and meaning of obligation. McPhee v. U. S. Fidelity & Guaranty Co. \[Vash.\] 100 P 174.

43. Cannot be charged except for breach of specific condition. Kubl v. Chamberlain \[Iowa\] 118 NW 776. Liability cannot be enlarged beyond specific conditions. Id.: McPhee v. U. S. Fidelity & Guaranty Co. \[Vash.\] 100 P 174. Condition of bond as to faithful performance of duty furnishes guaranty of personal honesty of officer and provides indemnification against deflations. United States Fidelity & Guaranty Co. v. Rainey \[Tenn.\] 118 SWV 897. Bond of marshal in penal sum for faithful performance of duties broad enough to cover unlawful arrest or illegal punishment by him. Special demurrer improperly sustained. Common-wealth v. Teel, $ 3 Ky. L. R. 741, 111 SWV 840. Collection and disbursement of street assessments not statutory duty of village clerk or duty pertaining to his office, and where smch service is performed by him under authority of an ordinance his sureties are not liable for his failure to account for such collections, when condition of bond is that he will "faithfully perform the duties of the office of clerk of" said village during his continuance in said office for said term," Sauer v. Madisonville, 11 Ohio C. C. (N. S.)

$ 69. County commissioner, in absence of bad faith or corrupt motives, not liable individuals or upon official bond for failure ofliable for the loss of money received in the official capacity,\[47\] and the legislature may relieve an officer from liability\[48\] or delegate power to release such officer\[49\] within constitutional limits.\[50\] The sureties of a re-elected officer are concluded by a report showing certain funds on hand and may not seek equitable relief on the theory that such report was false and that defalactions occurred in the previous term.\[51\] A defense of death of a surety before an officer's default is not well taken where the liability was binding on the sureties and personal representatives.\[52\] The surety may be entitled to subrogation,\[53\] and in an action on the bond of a police officer for the negligent shooting of a third person in making an arrest, the sureties are only liable for compensatory damages.\[54\] The state is entitled to priority over other creditors of a defaulting officer in the collection of its delinquent revenue on his bond.\[55\] The action on a bond may be barred by limitations.\[56\] The penal part of a bond alone constitutes, prima facie, a right of action.\[57\] The allegations may depend upon statutory provisions,\[58\] and a petition on a bond has been held not defective for failing to al-conventy, where county commissioners are _jurisdiction_, went into effect after citizen overseers of poor, a certificate of county _auditors_ that they audited county commissioners' accounts, with no reference to poor _cigar_. Id. \_district except that commissioners had made illegal payments, and surcharging them, is insufficient to impose liability on surety of commslaeners for amount of surcharge. Id. \_Liquidity resulting from report of county auditors is statutory and requirements must be followed. Id. Commissioners and surety were entitled to know extent of illegal items. Id. _47_. Constable's bond. Title Guaranty & Trust Co. of Seranton V. People, 139 III. App. 642. Evidence insufficient to show receipt of money in official capacity. Id. Where banker gave bond as depositary anticipating appointment which was never made and county treasurer deposited funds which banker absconded with, sureties were not liable since bond only contemplated official acts and could not be enlarged. Knhl v. Chamberlain \[lowa\] 118 NW 776. _48_. Liability of county treasurer for loss of funds deposited in bank without his fault \_is created by legislature, not common law, and legislature may relieve from such liability. McSurely v. McGrew \[lowa\] 118 NW 415. Plenary power of legislature may permit deposit of county funds in banks and absolve county officers from liability from such deposits. Id. _49_. County treasurer. McSurely v. McGrew \[lowa\] 118 NW 415. _50_. Curative act legalizing release of _contry_ treasurer for loss of funds by supervisors not invalid as special legislation. Not invalid as appropriation to private in-dividual. McSurely v. McGrew \[lowa\] 118 NW 415. Acts 32d Gen. Assem. (Laws 1907, p. 257, c. 255), & 1, legalizing release of treasurer, not repeal of Code, & 1457, providing that treasurer shall not be relieved of _liability_ for deposit of funds in approved bank so as to require general law. Id. Increase of burden on taxpayers not control-ling as to validity of act. Id. Act not grant of special immunity within constitutional prohibition. Id. Where Acts 32d Gen. Assem. (Laws 1907, p. 257, c. 255), & 2, providing that action by citizen of county penalty named, petition need not allege that 1160 OFFICERS AND PUBLIC EMPLOYES SS 13. 12 Cur. Law.

lege approval of the bond by the city council. \[89\] A pleading should not contain two causes of action. \[90\] Demand is not a condition precedent to an action on a bond to recover fees of a county auditor not accounted for, \[61\] and the receipt of such fees may be established by circumstantial evidence as any other fact. \[62\] The books of a banker receiving county funds have been held admissible against sureties to make a prima facie case, \[63\] and in.an action where a county assessor disregarded a statute and contracted with a deputy for making an assessment roll, the county might prove the cost and amount paid for such services. \[64\] A verdict unsupported by the evidence will be set aside. \[65\]

SS 13. \_Compensation. \[96\] See 10 C. L. 1064--Fees are compensation for particular services rendered at irregular periods, payable when such services are rendered. \[97\] A salary is a fixed compensation for regular work. \[98\] There is no implied obligaton to pay an officer for services rendered, \[99\] and where no compensation is provided by law, the services are gratuitous. \[90\] Salary is a personal compensation \[71\] but does not prevent an allowance for clerk hire. \[72\] Since a public officer with fixed compensation is bound to perform his duties for the compensation provided by law, \[98\] compensation in addition to salary must be expressly provided for, \[99\] and an agreement to pay for services imposed by law is invalid as against public policy." The legislature may compensate an officer by salary and require the fees to be collected for the state's benefit." Fees allowed by law to an officer as compensation for services rendered are the officer's property," and if collected without authority may be recovered by the person from whom they are exacted." The compensation of public officers and employes is usually fixed by law," but may also involve a construction of the contract of employment."

- \[noitemsep\]
- entitled to additional compensation for serv- \[noitemsep\]
- Freeholders v. Lee \[N. J. Law\] 70 A 925. ices in furnishing blanks to assessors. State of Ohio v. Tini'In, 11 Ohio C. C. (N. S.) 305.
- v. Tini'In, 11 Ohio C. C. (N. S.) 305.
- v. Tini'In, and other statutes as to fees quivers dittier attorney to incur on public account expenses of office rent, clerical or viding for collecttion of fees for state's benefit, state could not recover fees unlawfully expenses from fees received. Board of collectted. State v. Dunbar \[Or.\] 87 P 878.
- v. Toni's of Teller County v. Trowbridge, 42
- v. Toni's of Teller v. Trowbridge, 42

The assignment of a police officer to perform the services of a higher rank does not entitle him to the pay of that rank. \[81\] Statutes as to compensation must comply with constitutional provisions, \[82\] and a city in pursuance to its delegated power may not person employed by chief clerk of senate to copy bills is not entitled on voucher of chief clerk to payment from state treasury as conference, though services neceses-sary. James v. Cromwell, 33 Xg. L. R. 1024, p. 685, c 344, $ 3, allowed clerk same compensation when attending meetings of board as other members, in addition to other compensation, in towns of 20,000 or over, the latter law did not make it duty of clerk to attend other boards than town board, and clerk could not charge for attending board of assessors, auditors and highway commis-sioners. Wilson v. Bleloch, 125 App. Div. by commissioners' court without authority and ineffective. Lane v. Delta County (Tex). Civ. App.\] 108 SV 866. County Government Act 1897 (St. 1897, p. 504, e 277), 1 & 160, Laws 1904, p. 836, c 312, for services to stub. 7, as to copies of assessment rolls, does not contribute extra work by assessors in preparing such rolls at his own expense. Alameda County v. Dalton \[Cali. App.\] 89 P 85, Greater New York Charter (Laws 1901, p. 32, c 466), $ 56, requiring salaries to be paid out of city treasury, with certain exceptions to be fixed by aldemen, includes only city officers. Metropolitan sewerage commission a state commission and salaries of employees not governed by charter. People v. Metz, 61 Misc. 363, 113 NYS 1007. Where Comp. St. 1887, div, 5, c 22, $ 368, authorized salary to be paid to acting marmor occupying position over 60 days, an ordinance in pursuance to Act which omitted limitation as to length of service was void. McGillic v. Cerby, 37 Mont, 249, 95 P 1063. Ordinances vold though later statute (Pol. Code 1895, $ 4783) changed law, even if such statute be considered curative. Id. Allowance by council for services rendered mere gift without authority. Id. Ky. St. 1903, $ 3043, construeded, and held to entitle member of council to $ 3 for meeting, but if absent without statutory excuse to be liable to forfeit of double pay. Barron v. Kaufman \[IXg.\] 115 SW 787. Freeholder's Charter of San Diego conatured (St. 1889, pp. 643-729, c 22), and council held to have no power to create salaries for his members. Wood's v. Potter \[Cali. App.\] 95 P 1125. Councilmen of municipality are not entitled to receive compensation for services until same is authorized by ordinance, and money received by them prior to passage of such ordinance may be recovered by Zucker, $ 88, back in a proper action. Walker v. Dillon-ville, 11 Ohio C. C. (N. S.) 385. Where no statute providing for recovering back money so paid, suit in equity may be prosecuted for that purpose by taxpayer on behalf of municipality or on behalf of himself and other taxpayers, and in such suit all coununcilmen so illegally receiving money may be joined in one action to prevent multiplicity of suits. Id. Under General Incorporation Act (Gen. Laws 1906, pp. 895, 896, 910), $ 851, $52, 855, $80, vesting government of cities of sixth clasa in board of trustees, etc., power of trustees to fix salary of marshal is absolute and free from judicial interference. Unless so low that competent person cannot be found to perform duties. De Merritt v. Weldon \[Cali.\] 88 P 537. Where Town Law. (Laws 1890, p. 1236, c 568, $ 178, as am'd 18 Cur. Law. OFFICERS AND PUBLIC EMPLOYES SS 13. 1163

fix compensation at such a small amount as to render competent officials unavailable.88 Constitutional or statutory enactments often provide that compensation be not increased or decreased during an official's term of office.84 Sums paid pursuant to an unauthorized increase may be recovered.85 The legal right to a public office carries the right to salary,88 and a person wrongfully discharged from an office is entitled to

for contingent expense of state officer is

Superintendent of schools not "contractor" valid. Warrant properly drawn against

within Const. art. 4, $ 21, prohibiting extra

such contingent fund for clerical assistance

compensation. Bird v. Detroit Board of Ed-

is valid. Id. An appropriation to cover

location \[Mich.\] 15 Det. Leg. N. 902, 118 NW

compensation of estate employees not prior to

60%. Increase of salary of superintendent

that time authorized by law, and compensa-

of schools looked to future, not past, and

tion fixed, can only be enacted as separate

therefore did not violate Const. art. 4, $ 21,

appropriation bill with one subject. Const.

prohibiting extra compensation for services

art. 5, $ 56. Id.

rendered. Id. Charter construed and pro-

83. Ordinance fixing salary of marshal at

vision prohibiting increase of salaries held

$10 per month not invalid on ground that

to apply to officers appointed for definite

salary was so small that competent official

term, and where policemen held offices un-

could not be found to fill place, since city

til removed for cause, salaries could be in-

only of 1,800 inhabitants, and no statutory

creased during continuance of their appointment

requirement to device. Sullivan v. Bridgerport

to warrant inference that official duties

\[Conn.\] 71 A 90%. Ordinance increasing

would interfere with other business. De

salary of patrolmen effective the succeed-

Merrit v. Weldon \[Call.\] 98 P 537.

ing fiscal year not within Const. amend. art.

84. Amendment to Const. 1879, art. 5, 19, 24, prohibiting gratuitous compensation to

ratified in 1908, providing that certain state

public officers. Id. Loc. Acts 1903, p. 266,

offers receive specified salary, that com-

No. 29, $ 7, as am/d by Loc. Acts 1907, p.

pensation be not increased or diminished

127, No. 406, construed and amendment held

during term of office, and that legislature

new grant of power removing limitation

may diminish after term of office, operative

as to salary, and under provision making

from date or ratification and officer elected

same effective at once, board of education

in 1906 for four years entitled to salary as

could increase salary of superintendent

fixed in amendment. Kingsbury v. Nye \[Call.\]

though appointed under previous statute

App.\] 99 P 985. Laws 1907, p. 329, interas-

limiting compensation. Bird v. Detroit

ing fees of state's attorney to $15 on

Board of Education \[Mich.\] 15 Det. Leg. N.

count of indicmentment for which conviction

90%. 218 NW 606. "Term of office" in Const.

had, cannot operate to increase fees of at-

art. 11, $ 9, prohibiting increase of salaries,

torney who at time of entering office was

applies only to officers having fixed and def-

only entitled to $5. People v. Pullin, 323

line term. Harrold v. Barnum \[Call.\] 96 P 111. 519, $ NEE 1047. Const. art. 10, $ 10,

104. Not applicable to appoitive officers

prohibiting increase of compensation during

holding office at will of appointing power.

term of office, and art. 5, $ 11, applying

to $107, p. 447, c. 10, amending Pol. Code,

municipal officers, held applicable. Id.

County board without jurisdiction to in-

p. 436 et seq., e. 344, par. 12), and increas-

crease salary of officer after commencement

ing salary of deputy surveyor, not violative

of term. Moffett v. People, 148 Ill. App.

of constitution (Const. art. 11, $ 9), since

560. Where compensation of country offered holds at pleasure of appointing

fixed at one sum and office expenses, clerk

power. Id. Const. art. 7, creating office of

hire, etc., separate, latter may be changed

justice of supreme court, fixing term and

during term. People v. Puller, 141 Ill.

providing for filling same, is a unit, includ-

App. 874. Where compensation of county

ing, so far as article is concerned perlode

officer and his clerk hire and expenses fixed

within full term of incunbency by appoint-

in one gross sum before he takes office, al-

ment or election to fill vacancy. State v.

lowance cannot be changed during term of

Prear \[Wis.\] 120 NW 216. Generally a

such officer. Id. Compensation of statutory

constitutional prohibition as to increase or

offers not specially protected by the con- 1164 OFFICES AND PUBLIC EMPLOYES SS 13. 12 Cur. Law.

compensation," regardless of sums earned otherwise while illegally suspended." An exception to the rule is generally recognized, where a de facto officer acted and received the compensation," but a de jure officer may recover fees received by a de facto officer intruding into his office." An officer's compensation ends at the expiration of his term." An assignment or sale of a public officer's salary is contrary to public policy and void," but an officer of a municipality may compel the payment of his salary by mandamus though he has assigned the same." In order to recover compensation an officer must show his right to the office." The refusal of a board of apportionment and taxation of a city to appropriate sufficient funds to pay salaries of policemen as increased by an ordinance would not prevent the recovery of such increased salary," and the acceptance of salary until the time of removal by an illegally

Corby, 37 Mont. 249, 95 P 1063. Comminsins or feas incident to office of tax collector. Graves v. Bullet \[Tex. Civ. App.\] 115 SW 1177.

87. Officer having passed necessary compeltive civil service examination and appointed to position is entitled on summary removal to salary lost thereby. Suiliffe v. New York, 61 Misc. 514, 115 NYS 186. Where Osc. N. 210, 118 NW 181; Cooley Credit Gscharge qaushed in certioriar. City Chicago v. Fitzmaurice, 128 Ill. App. 239.

Notwithstanding pending of new charges on basis of original discharge, since original discharge quashed for error in proceedings. City of Chicago v. Bullis, 138 Ill. App. 297. Patronman improperly suspended entitled to entire salary where duties not performed by another. Bullis v. Chicago, 235 Ill. 472, 85 NTE 614. Attempted removal without hearing does not deprive officer of salary for balance of term. Gracey V. St. Louis, 213 Mo. 384, 111 SW 1159. Where employee unlawfully discharged, compensation ceases. O'Donnell v. New York, 112 NYS 760. Distinction between office and employment as to compensation is that, under former, recovery of compensation may be had, regardless of earnings when illegally deprived of office. City of Chicago v. Bullis, 138 Ill. App. 297.

88. Patronman. Bullis v. Chicago, 235 Ill. 472, 85 NTE 614. Acceptance of temporary position by illegally removed officer not in-compostible with office of deputy inspector of boilers so as to bar recovery of salary for balance of official term. Gracey v. St. Louis, 213 Mo. 384, 111 SW 1159.

01. Doctrine that right to compensation is incident to title to office not always recrossigned. Hansen v. Jersey City \[N. J. Law\] 11 A 1116. Officer de jure need not be paid for period when officer de facto acted and name on pay rolls by civil service com- E1 Paso County v. Rohde, 41 Colo. 258, 95 P 651. Town officer cannot recover salary office. Bullis v. Chicago, 235 Ill. 472, 85 NTE 614. Only competent evidence of rules of successor, a de facto officer. Walden v. Headland \[Ala.\] 47 S 79. Disbursing officer of town has right to act on one's apparent authority to office in payment of salaries. Need not determine rights of contestants.

01. Where a member of a police force serves in a position to which he has been assigned and accepts the compensation incident to the new position, he is, if illegally transferred, at least only entitled to so much compensation incident to the office from which he has been removed as would equal the difference between the respective 12 Cur. Law. PARDONS AND PAROLES. 1165 removed officer does not constitute a settlement to bar recovery. 99 An action for salary was not premature when not brought until the quashal of charges and reinstatement. 99 In an action for compensation of an employee unlawfully discharged, reinstatement is immaterial. 99 Mandamus lies to enforce the payment by municipal corporations of a fixed salary of an official. 99 Compensation illegally paid by a county may be recovered. 1 To recover fees illegally retained by an officer, the petition should allege the receipt of sums in excess of what such officer was entitled to retain. 2

\_Pensions, reliefs and benefits.--\_According to the public or private nature of these funds, they may be regarded as pensions 8 or fraternal mutual benefit insurance, 4 and consequently are treated elsewhere.

Official Bonds; Opening and Cloening; Opening Judgments; Opinions of Contr; Options; Order of Proof; Orders for Payment; Orders of Court; Ordinances; Oysters and Clums, see latest topical Index. Open Lewdness, see 11 C. L. 1891, n. 6.

## 7 PARDONS AND PAROLES?

To be valid a pardon must be delivered and accepted. 9 It may be conditional. 9 A condition that upon a subsequent conviction for felony the person pardoned shall serve the remainder of the unexpired sentence is binding, although the time when such sentence would expire by law has passed. 9 Violation of a condition subsequent renders a pardon void, 9 and a court of competent jurisdiction may so declare it, although the pardon recites that the governor of the pardoning board has the power to avoid it in an ex parte showing. 10 A discharge from imprisonment is not the equivalent of a pardon. 11 To avail in mitigation for a second offense, a conditional pardon

was left unexpended to pay increased sal. 2. Petition under Act of 1877, (Laws 1877, ). Id. Funds might be made available by reducing other expenses. Id. City 1164 1166 PARENT AND CHILD $ 1. 12 Cur. Law. must be proved at the trial.12 A pardon granted an attorney convicted of forgery is no defense to disabrment proceedings against him brought on account of the conviction.13 A pardon does not release the liability for damages imposed for an unsuccessful appeal in a suit wherein the state is a party, where there exists a constitutional provision confining the power of the governor to the remission of fines and forfeitures.14

**PARENT AND CHILD.**

8 1. Custody and Control of Child, 1166. 8 4. Property Rights and Denilings Between 8 2. Support and Necessaries, 1169. 9 3. Services, Earnings, and Injuries to $ 5. Liability for Child's Torts, 1172. 1170. 1170. 1182. 1183. 1184. 1185. 1186. 1187. 1188. 1189. 1188. 1189. 1189. 119. 120. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 121. 123. 124. 125. 126. 127. 128. 129. 121. 129. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 129. 121. 121. 123. 124. 125. 126. 127. 128. 129. 129. 121. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 129. 121. 121. 123. 124. 125. 127. 128. 129. 129. 121. 129. 121. 121. 123. 124. 125. 126. 127. 128. 129. 129. 121. 129. 121. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 129. 121. 129. 121. 121. 121. 122. 123. 124. 125. 127. 128. 129. 121. 129. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 121. 129. 121. 121. 122. 123. 124. 125. 127. 129. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 121. 129. 121. 121. 122. 123. 124. 125. 127. 129. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 121. 129. 121. 129. 121. 122. 123. 124. 125. 127. 129. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 121. 129. 121. 129. 121. 122. 123. 124. 125. 127. 129. 121. 121. 122. 123. 124. 125. 127. 129. 121. 121. 122. 123. 124. 125. 127. 129. 121. 121. 122. 123. 124. 125. 127. 129. 121. 122. 123. 124. 125. 127.

right of the parent, as natural guardian, to the custody of the child is before that of all others.\[22\] The parent, however, may forfeit his natural right by his misconduct, unfitness, neglect, or abandonment,\[23\] or relinquish it by contract clear and definite

terfere with child's present and future wel-death such right ceases to be affected by fare, and court will not give custody of which cederee. Ex parte Clarke \[Neb.\] 118 chid even to parent if change is likely to NWV 412, Under Domestic Relations Law, be to disadvantage of child. People v. 8 51 (Laws 1896, p. 223, c. 272), providing Phelps, 58 Misc. 625, 109 NYS 943. Best interests of child held to require that she be left wth foster parents who cared for her over ten of her eleven years, where mother for last six years neither visited her nor contributed anything to her support, and during first five years visited her but three times, contributed only $50, and child with much feeling, on hearing, insists on being left with foster parents. Id. Where, by reason of mother's death, child is too young to be properly cared for by father and it is entrusted to others to be reared, still notwithstanding fact that father cannot delete his authority to control child as general rule, yet if best interests of child require that it remain either permanently or for certain time with its foster parents, father will be denied custody of child. Peese v. Gellerman \[Tex. Civ. App.\] 110 SWV 196. Held proper to allege and consider, in determining custody of child, that father after eight years of failure to show any great affection for child married woman of twenty who had illegitimate child and had lived with father several months before marriage, since allegations were pertinent to question whether child's interest would be subserved by change. Id.

22. Prima friee before that of all others. Steele v. Hohenad, 141 Ill. App. 201, add. 237 Ill. 229, 86 NE 717. Entitled to care, custody, and control of their minor children. Smith v. Benenga \[Towad\] 118 NWV 439. Hurd's Rev. St. 1905, 6, 84 5, 4, provides that parents of minor if living, and in case of death of either, surviving parent, they being competent to transact their own business and fit persons, shall be entitled to custody and direction of minor's education. Wohlford v. Burckhardt, 141 Ill. App. 321. Law regards surviving parent as rightful custoddian of his child as against claims of all others, and rights of parents must be considered in any dispute concerning custody of children. Swarens v. Swarens \[Kan.\] 97 P 988. Child may not be taken from its parent merely because home superior in some particulars is offered by another. Id. Where father and second wife were well to do, educated and without had habits, they are entitled to custody of former's eight year old daughter, although she had lived with grandparents for seven years and strong mutual attachment had sprung up. Id. Fact that child of seven is happy where placed, shows greater presentation affection for grandmother than for mother, does not warrant refusal to recognize mother's rights where this is the only reason advanced. State v. Steel, 121 La. 215, 46 S 215. Where court granting divorce, without finding father unttt, temporarily awards custody of minor children to mother, such decree does not deprive father of natural rights to custody against any person except mother, and upon her in its terms,\[24\] but he may not dispose of it by will in some states.\[25\] The unfitness which deprives a parent of the right to the custody of his children must be positive and not comparative,\[26\] and the degree of fitness must be considered in relation to the attending circumstances,\[27\] which home is best for the child being a question of fact to be determined primarily by the trial court.\[28\]

**A** decree respecting the custody of a child is exceptional in that it is always regarded as temporary and subject to change upon the occurrence of any material change affecting the child's welfare,\[29\] and is not conclusive against the parent's right unless he had notice of the proceedings and his competency and suitability were adjudicated,\[30\] The parent's power extends to their children only during their minority;\[31\] they may recover damages for a physical invasion of the possession of the child,\[32\] the measure of damages recoverable in the latter case being treated elsewhere,\[33\] but they cannot sue to annul the marriage of a minor child.\[34\]

To sustain a conviction for assault and battery inflicted while a parent was punishing his child, it is sufficient to show that the punishment was cruel and unreasonably severe.\[35\]

gaining possession of child. Peese v. Gel-\[118 NVE 472. Unless evidence 1s clear that lerman \[Tex. Civ. App.\] 110 SSV 196. Where parent is unfit, he should have child's cusparent voluntarily surrendered control of child for first seven or eight years of its mind they cannot do or child.\[36\]

and money on child.\[37\]

and made no demand for it until it reached hardt, 141 Ill. App. 321. Evidence held in-age when it might become useful, parent will be required to show that child's In-terest will be subserved by the change. Id. No basis for presumption that promptings of parental affecting will cause father to tenderly care for his child in future when he has failed to so act in past. Id.

24. Custody of child in grandfather will not be disturbed where grandfather is suitable and fit, child had been with him six years and father had originally relinquished child to grandfather by contract clear and definite in its terms. Gay v. Thompson \[Ga.\] 63 SE 133. Evidence on subject of releasing parental control of child by father to grandmother held not to require ruling by judge that such contract had been made, and considering evidence in its entirety, child held properly awarded to father. Perkins v. Moon \[Ga.\] 63 SE 133. Parent cannot absolve himself from parental duties by agreement, but he may by agreement surrender portion of his rights as parent. Hohenadel v. Steele, 237 Ill. 229, 86 NE 717. Consent decree whereby parent and grandparent were to share care and custody of child held, in effect, to be agreement by parent to relinquish portion of his rights. Id. Parents may deprive themselves of natural right by contract. Smidt v. Benensa \[Iowa\] 118 NVE 439.

01. Under Domestic Relations Law, $ 51 (Laws 1896, p. 228, c. 272), providing that mother is joint grandian of children with father, with equal powers, rights and duties with respect to them, and that upon death of either survivor may dispose of custody of unmarted minor during minority or any less time, dying parent cannot dispose of child contrary to rights of survivor under statute. People v. Beaudon, 124 App. Dlv. 505, 110 NYS 592.

01. Mere fact that children would be better nurtured or cared for by stranger is not sufficient to deprive parent of his right to their custody. Ex parte Clarke \[Neb.\] 12 Cur. Law. PARENT AND CHILD SS 2. 1169 SS 2. \_Support and necessaries.\_30 See 10 C. L. 1074.--This section deals only with the liability for each other's support of parent and child as such, the liability in all other cases being treated elsewhere.\[87\] The parent is obliged to maintain his child,38 educate it to an extent consistent with its station in life,39 and cannot by contract relieve himself of this obligation.40 This duty and obligation of a parent does not necessarily terminate when the child arrives at age or becomes an adult, nor is it limited to infants or children of tender years.41 But while the parent is presumably so bound permanently injured or disfigured, People Am. Dec. 118. An Insane person, how-v. Green, \[Mich.\] 119 NNV 1087. Evil-dence held to sustain conviction for as-after majority (Brown v. Ramsau, 5 sault where father compelled adopted daughter to dIsrobe, tied her hands behind itants, 2 Barn. & Adol. 811); and Kentucky reorder back and whipped her with small rid-recognizes the duty to support (Hedges v., Ing whip, covering her body with cuts. Hedeges, 24 Ky. L. R. 2220, 73 SW 1112). People v. Green \[Mich.\] 15 Det. Leg. N. = From 9 Columbia L. R. 185. 38. In F Putney, 61 Miss. 1, 114 NYS 556. 38. Semen Note: See notes in 6 C, L. 830; 40. Parents cannot forfei or abandon 11 Id. 1124; 57 L. R. A. 128; 4 L. R. A. 1N. S. J. 1159; 5 Id. 411; 47 A. S. R. 34. 114; 14 Id. 70; 117 Id. 125; 4 Ann. Cas. 1188; 71 Id. 903; 9 Id. 1019. See also, Parent and Child, Cent. Dig. they may be forfeited by his conduct, mod-s18 33-69; 141-144, 165-181; Dec. Dig. SS 3, 11d or suspended against his will by ac-4, 12, 16, 17; 29 Cyc, 1605-1622, 1664, 1665, 1672-1679; 21 A. & E. Em. L. (2ed. 1048). 37. See Infants, 12 C. L. 140, and Guard-inashingly, 11 C. L. 1671. 38. In re Putney, 61 Miss. 1, 114 NYS 556; First Nat. Bank of Owent v. Greene \[Ky.\] (Cun.) 70 A 458. Parents cannot by contact entered into between themselves put 114 SW 222. \*\*NOTES.\*\*Parent's duty to support adult helpfules child: In an action to distribute the parent's estate, an attempt was made Children have rights which parents must to charge idiot with the value of his support since majority. Heid the parent's legal duty to support a helpless adult child pressure is provided by prevented such a charge. Crain v. Mal-lone \[Ky.\] 113 SW 67. Whether a parent is under a common-law obligation to validate or conflicts to to durce action providing for American jurisdictions have held that such a duty exists. Dennis V. Clark, 2 Cush. 1Mas. 347, 48 Am. Dec. 671; Pretzinger v., 610. Ifretinger, 45 Ohio St. 452, 4 Am. St. Rep. 642; Van Valkenburg v. Watson, 13 Johns. 2ndings. 3rdings.

1170 PARENT AND CHILD SS 3. 12 Cur. Law. to support his infant children yet if the estate of the children is more able to justly bear the expense of their maintenance and education the parent may recover from their estate for supporting them.\[42\] In the case of the parent on the other hand, the common law does not require a child to maintain an infirm, aged, and destitute parent.\[43\] To support a warrant of seizure under the New York practice, the parent must have received notice of the proceeding,\[44\] and the offense with which he is charged must have occurred in the state.\[45\] One of two persons, each of whom sus, tains the relation of parent to a child, cannot assert the liability of the other for the maintenance of the child unless there is an express promise to pay.\[46\]

The liability for his child's necessaries attaches primarily to the father,\[47\] but he is not liable for necessaries furnished his minor child without his consent in the absence of proof that he neglected to supply the child with such necessaries as were proper for his condition in life.\[48\]

SS 3. \_Services, earnings, and injuries to child.\[49\]\_See 10 C. L. 1078_An unemanci-pated minor can make no contract with a third person which will bar his parent to the right to his wages,\[50\] but the parent may be estopped to assert his right.\[51\] The law never implies that either parent or child 'contemplated payment to each other for support or services,\[52\] and consequently, to support a cause of action for such services,\[53\]

lone \[Ky.\] 113 SVW 67. Estate inherited by child from parent not chargeable with sum expended by parent for its support after majority as advancement, where child was all clothing necessary, Loucks v. Dutcher, of unsound mind and unable to care for h himself. Id.

42. Where mother was of very limited means and scarcely able to sustain herself, remaining in school, is not enforcible where Funk's Osradiran v. Funk \[Ky.\] 113 SVW 419. Parents are legally bound to provide for support of their children during their infancy, and this liability also continues even though children have estates of their own. There are, however, some exceptions to this rule when parents have no means or their estate is limited and when children have estate, income of which is ample for their support. First Nat. Bank of Owen-ton v. Green \[Ky.\] 114 SVW 322. 114. App. 43. Schwerdt v. Schwerdt, 141 Ill. App. 43. 235 Ill. 388, 85 NZ 613. Under Hurd's Rev. St. 1956, 1. 107, 8, requiring children to support infirm and indigent parents, right of action does not accrete to parent but only to country to indeminity it for maintenance of such parent. Id.

01. Warrant of seizure under Code Cr. Proc. $ 921, cannot be supported where father charged with abandoning children received no notice of proceedings, did not voluntarily appear, and no process was ever issued to bring him into court. People v. Calirmont, $ 83 Disc. 517, 111 NYS 613.

01. Under Code Cr. Proc. $ 921, warrant of seizure against parent abandoning children cannot be issued where abandonment occurred in another state and he is not resident of New York. People v. Calirmont, $ 83 Disc. 517, 111 NYS 613.

01. Natural father cannot recover from adopted father for care and support of child while in former's own home after adoption, McNemar, 137 Ill. App. 504.

erly payable to mother. Royal v. Grant mother authorized daughter to buy neces-137 Ill. App. 504. Services rendered aged by authoring to support his infant children yet if the estate of the children is more able to just bear the expense of their maintenance and education the parent may recover from their estate for supporting them.\[42\] In the case of the parent on the other hand, the common law does not require a child to maintain an infirm, aged, and destitute parent.\[43\] To support a warrant of seizure under the New York practice, the parent must have received notice of the proceeding,\[44\] and the offense with which he is charged must have occurred in the state.\[45\] One of two persons, each of whom sus, tains the relation of parent to a child, cannot assert the liability of the other for the maintenance of the child unless there is an express promise to pay.\[46\]

The liability for his child's necessaries attaches primarily to the father,\[47\] but he is not liable for necessaries furnished his minor child without his consent in the absence of proof that he neglected to supply the child with such necessaries as were proper for his condition in life.\[48\]

SS 3. \_Services, earnings, and injuries to child.\[49\]\_See 10 C. L. 1078_An unemanci-pated minor can make no contract with a third person which will bar his parent to the right to his wages,\[50\] but the parent may be estopped to assert his right.\[51\] The law never implies that either parent or child 'contemplated payment to each other for support or services,\[52\] and consequently, to support a cause of action for such services,\[53\]

lone \[Ky.\] 113 SVW 67. Estate inherited by child from parent not chargeable with sum expended by parent for its support after majority as advancement, where child was all clothing necessary, Loucks v. Dutcher, of unsound mind and unable to care for goods furnished son, already sufficiently provided therewith, conditional upon son means and scarcely able to sustain herself, remaining in school, is not enforcible where exon does not so remain. Id.\[49\] For infant's rights to his own services and earnings and his general contract rights, sine Infants, 12 C. L. 140.

Searneh 12 Cur. Law. PARENT AND CHILD SS 3. 1171 it must be alleged and proved that there was a direct, positive, and unequivocal promise to pay therefor.\[53\]

A parent, or one standing in loco parents,\[54\] suing in the proper manner,\[55\] may, upon a proper showing of injury,\[58\] recover for the injuries sustained by him as the result of the injury of his child,\[57\] provided he has not been guilty of contributory negligence,\[58\] such as by consenting to the employment of the child at the work \[58\] or otherwise consenting to the doing of the act whereby the child is injured.\[60\] In Virshttp

stepmother presumed gratutous. Satterly v. Dewick, 114 NYS 354. 53. Recovery for value of services to aged father during declining years refused. Baugh v. Baugh's Adm'r, 83 Ky. L. R. 148, 109 SVW 346. Burden is on child to make out prima facie case that services rendered by her for parent were not gratuitous. Cole v. Fitzgerald, 132 Mo. App. 17, 111 SVW 628. It is not incumbent upon child seeking to collect for services rendered parent, to establish contract to pay her by direct evidence, such as some writing or test-money of witnesses who heard parties come to agreement, but it is sufficient for her to adduce evidence from which jury might find that parties understood that services were to be paid for. Id. When courts say express contract must be shown, they only mean the law will not imply contract if family relation existed and do not mean contract must be proved by direct test-money. Id. Evidence held sufficient to show arrangement between parent and child to pay latter for services to former where child left home of her own and went to care for parent and attend to drudgery of boarding house, and where parent was amply able to pay for same and frequently expressed to third persons his intention to do so. Id.

54. One standing in loco parents may sue under statute for injuries occasioned by sale of intoxicating liquor to child toward whom relation of parent is had. Person standing in loco parents is one aggreved under Sayle's Ann. Civ. St. art. 338. Saunders. Alvido \[Tex. Civ. App.\] 113 SW 98. 55. Since, in Texas, damages sustained by parent as result of injuries to children are community property, and since husband during marriage is sole manager of that property, he alone may sue for it unless wife shows herself to be within some exception to rule, Married woman held to have no right to sue for injuries to child without joining husband. Hillishop Cotton Millis v. King \[Tex. Civ. App.\] 113 SW 132. 56. Mere relationship of parent to child held sufficient, without allegation or evidence, to show parent was aggreved by one permitting child to enter and remain in saloon. Markus v. Thompson \[Tex. Civ. App.\] 113 SW 1074. 57. Unememciapated infant cannot recover for loss of time during his minority occasioned by injury. Broesch v. Michigan Steve Co., 153 Mich. 652, 15 Det. Leg. N. 748, 118 NWP 366. Parent is entitled to recover value of his own services necessarily re-dered in care of his injured child. Gorman v. New York, etc., R. Co., 128 App. Div. 144, 113 NYS 219. 58. Contributory negligence of parent ginia it has been held that the statute does not give the parent any right to recover for loss of services resulting from the child's death except such as were lost between the child's injury and death." The child's right to recover for his injuries as distinct from the parent's right to recover for loss of services is treated elsewhere.\[62\]

_Emanipation._ See 10 C. L. 1071.--The general rights and liabilities of emancipated infants are treated elsewhere.\[63\] The emancipation of a child by his parents may be proved by competent circumstantial evidence \[64\] or inferred from the circumstances.\[65\] An emancipated minor may recover for time lost as the result of injuries.\[66\]

SS 4. _Property rights and dealings between parent and child.\[67\] See 10 C. L. 1078._

Although a donation from parent to child raises no presumption of undue influence, the contrary may be shown to be the case.\[68\] One lending money to a parent on the security of the child's property must use reasonable care to ascertain whether the father acted bona fide and whether the child was actuated only by her own free will.\[69\]

SS 5. \_Liability for child's torts.\[70\] See 10 C. L. 1078.--The parent is not liable for his son's torts merely because of the relationship,\[71\] nor for such torts committed without his knowledge or consent, and not in the course of his employment nor under his directions.\[72\] The liability for the torts of an infant in other cases is treated elsewhere.\[73\]

dealers is no defense to one to which consent it was not given. Markus v. Thompson \[Tex. Civ. App.\] 111 SVW 1074.

@1. Code 1904, SS 2902, giving right of action for death where deceased might have recovered had he not died, does not give parent right to recover for loss of services of minor child between death and majority, nor does it affect parent's common-law right to recover for loss of services between date of injury and death. Stevenson v. Ritter \[Lump Cov., 108 Va. 576, SS 2 SE 3E1.

@2, @3. See Infant's, 12 C. L. 140.

@4. Adams & Burke Co. v. Cook \[Neb.\] 118 NWV 662. Fact of emancipation must be proved by competent evidence and it is insufficient for the witness to testify to the conclusion. Id. Evidence held insufficient where only factsending to show emancipation were in answer to leading question, properly objected to and were insufficient in any case. Id.

@5. Fact that minor did not live at home, contracted for his services, and was nearly of age, held smificent to warrant instruction that minor was emancipated. Donk Bros. Coal & Coke Co. v. Retaloff, 133 Ill. App. 277. Finding of trial court held conclusive on question of emancipation where evidence was conflicting. Grieder v. Chicago & E. Ill. R. Co., 140 Ill. App. 346,

@6. Donk Bros. Coal & Coke Co. v. Retzloff, 133 Ill. App. 277. For contract liability of infants in general, see Infants, 12 C. L. 140.

Search Note: See notes in 3 Ann. Cas. 3, See, also, Parent and Child, Cent. Dig. #S 100-144: Dec. Dig. #S 8-12; 29 Cyc. 1580, 1654-1683, 1663-1665; 31 A. & E. Enc. L. (2ed.) 1043, 1059.

@8. Vidow of 65, who had trusted son for twenty years, doing what he requested with-out inquiry or hesitancy, and who signed dead at son's request making son grantee for insignificant consideration but without knowledge that she had done so, which dead son withheld from record for 16 years, 12 Cur. Law. PARKS AND PUBLIC GROUNDS. 1178 PARKS AND PUBLIC GROUNDS.74 PARKS AND PUBLIC GROUNDS.74 PARKS AND PUBLIC GROUNDS.74_The scope of this topic is noted below.78 A park is a piece of ground set apart to be used by the public as a place for rest, recreation, exercise, pleasure, amusement and enjoyment.79 A park boulevard is not a street but forms a part of the park proper.80 _Acquisition and creation._80 _C. L. 1070__--A city may frame its own code of procedure with regard to condemning land for park purposes free from legislative interference,78 and may incorporate into its charter a provision that, pending appeal on the condemnation proceedings, no interest shall be allowed on the judgment of condemnation.79 The doctrine of dedication is applicable to public parks and squares, and the fact of dedication may be established in the same manner as in the case of streets and highways.80 The extent of the ground dedicated is a question of fact.81 Where a city charter authorizes the formation of park districts, each to contain at least one park, and the assessment of real estate for the maintenance of such parks, a tax levied by special assessment is valid although the parks in such district have not been completed.82 The public title.80 _C. L. 1070__--A municipality may maintain a suit to settle the title of the general public in a public square dedicated to its use.83 A city taking land for park purposes acquires the same rights as to easements and water rights as a private purchaser.84 A mere stranger cannot attack the right of a city to acquire and

74. Search Note: See notes in 11 Ann. Cas. 468. 468. 468. 468. 468. 478. 479. 480. 481. 482. 483. 484. 485. 486. 487. 488. 488. 489. 480. 481. 482. 483. 484. 485. 486. 487. 488. 489. 481. 482. 483. 484. 486. 487. 488. 489. 480. 481. 482. 484. 485. 486. 487. 488. 489. 481. 483. 484. 486. 487. 488. 489. 480. 481. 482. 483. 484. 485. 486. 487. 488. 489. 481. 488. 489. 480. 481. 482. 483. 484. 485. 486. 487. 488. 489. 481. 488. 489. 480. 481. 482. 483. 484. 485. 486. 487. 488. 489. 481. 488. 489. 481. 482. 483. 484. 486. 487. 488. 489. 481. 482. 483. 484. 485. 486. 487. 488. 489. 488. 489. 480. 481. 482. 483. 484. 486. 488. 489. 481. 482. 484. 485. 487. 488. 489. 481. 482. 483. 484. 486. 488. 489. 481. 483. 484. 485. 487. 488. 489. 481. 482. 483. 484. 486. 488. 489. 481. 482. 483. 484. 485. 486. 487. 488. 489. 489. 481. 482. 483. 484. 486. 488. 489. 489. 481. 482. 483. 484. 486. 488. 489. 489. 481. 482. 483. 484. 486. 489. 489. 481. 483. 484. 486. 489. 489. 481. 482. 483. 484. 486. 489. 489. 481. 483. 484. 486.

1174 PARLIAMENTARY LAW. 12 Cur. Law.

hold lands for park purposes. \[88\] Lands acquired by a county park commission for use as a county park are the property of the county for purposes of taxation within the meaning of the law providing for taxation of property belonging to one taxing district but situated in another. \[86\]

\_Government_control, and officers of parks.\_See 10 C. L. 1080. Commissioners appointed for the purpose of constructing, adorning and supervising public parks have wide discretion as to the exercise of their functions. \[87\] They may by law be empowered to make rules and regulations concerning the speed of automobiles driving in parks under their jurisdiction, \[88\] but they have no power to open a public highway through a public park. \[89\] A city has no implied authority to sell or to divert to other uses property held in trust by it for park purposes, \[90\] but may do so under legislative authority, \[88\] or if the right is reserved in the grant. \[92\] A city may issue bonds for the purpose of improving a public park by the construction of driveways and pavements. \[93\] Adjacent property owners have no vested right in the use of lands held in trust by the city for park purposes. \[94\] An adjoining lot owner has the right to cut the grass upon a lot dedicated for use as a public park for the sole purpose of improving it. \[95\]

\_Injuries in parks.\_See 10 C. L. 1080. The city owes to those who are rightfully using a park maintained by it and open to the public the duty not to injure them by the negligence of its servants engaged in maintaining such park in proper condition. \[96\] The owners of a park to which they invite the public are responsible for damages occasioned by allowing dangerous games to be played therein. \[97\]

## 5 Parliamentary Law. \[98\]

_The scope of this topic is noted below. \[99\]_

attempted appropriation. City of Pocatello \[98\]. Mandamus held to lie against mayor \[98\]. Bass \[Idaho\] 96 P 120. \[98\]. S5. City of Pocatello \[98\]. Bass \[Idaho\] 96 P \[98\]. to contract according to contract made \[98\]. \[99\].

12 Cur. Law. PARTIES SS 1. 1175

The power is inherent in every deliberative body to amend a resolution previously adopted.${}^{1}$ An indefinite postponement of a question by a deliberative body means the suppression of the question and is equivalent to a negative vote.${}^{2}$ A "committee of the whole" exists where a legislative body considers business under suspended rules.${}^{3}$

Parol Evidence, see latest topical index. PARTIES. $ 1. Definition and Classes, 1175. $ 5. Additional and Substituted Parties, $ 2. Who May or Must Suc, 1176. $ 3. Who May or Must Be Sned, 1179. $ 4. Designating and Describing Parties, 1190. $ 1183. _The scope of this topic_ is noted below.${}^{4}$ SS 1. _Definition and classes.${}^{5}$--See 4 C. L. SS8--In general, proper parties are all persons having an interest in the subject matter or result of the action and whose rights can be adjudicated therein.${}^{6}$ Necessary or indispensable parties are persons having an interest in the controversy such that no final decree can be made without either affecting that interest or leaving the controversy in such condition that its_

\_1. Simpson v. Berkowitz, 59 Misc. 160, 110 NYS 485. 2. Wvood v. Milton, 197 Mass. 531, 84 NNE 332. 3. Same body transacting business in informal manner. Acord v. Booth, 33 Utah. 279, 93 P 734. Where legislative body re-solves itself into committee of the whole, debate and discussion is freer, clerk is freer-lieved from recording motions, and such committee in modern times is almost a necessity. Id. 4. This topic is devoted to a general treatment of parties to civil actions, at common law and under the codes. As to parties in criminal prosecutions, see Indident and Prosecution, 12 C. L. 1, as to parties in equity, see Equity, 11 C. L. 1235; as to parties in admirarily, see Admiralty, 11 C. L. 1235; as to parties in admirily, see Admiralty, 11 C. L. 1235. It excludes parties to participate actions (see Specific Performance, 10 C. L. 1674; Repelvin, 10 C. L. 1514; Mandamus, 12 C. L. 642; Injunction, 12 C. L. 152; Foroplek Pantry and UUnawful Detainer, 11 C. L. 1484; Ejectment, (and Writ of Entry), 11 C. L. 1153; Divore, 11 C. L. 1111; Decetit, 11 C. L. 1038; Creiditors' Suit, 11 C. L. 936; Accounting, Action for, 11 C. L. 937; Ac-to-A, and similar titles dealing with particular forms and causes of action) and pro-ceedings (see Appeeal and Review, 11 C. L. 118; Arbitration and Award, 11 C. L. 262; Attachment, 11 C. L. 315; Bankruptcy, 11 C. L. 338; Certiorari, 11 C. L. 591; Extradiction, 11 C. L. 1452; Garishments, 11 C. L. 1637; Habes Corpus (and Rendipeland, 11 C. L. 1682; Insolvency, 11 C. L. 217; Interpleader, 11 C. L. 339; License, 12 C. L. 593; Paurers, 10 C. L. 1145; Sterealcia, 10 C. L. 1618; Supplementary Proceedings, 10 C. L. 1765), parties as dependent on the subject-matter of the action, (see such titles as copystitis, 11 C. L. 808; Death by Wrongful Act, 11 C. L. 1019; L'ibel and Slander, 12 C. L. 576; Negre, 110 C. L. 922; Railroad, 10 C. L. 1365; Subscriptions, 10 C. L. 1762; Torts, 10 C. L. 1857, the relief sought (see such titles as Elections, 11 C. L. 1169; Emment Domain, 11 C. L. 1198; Liens, 12 C. L. 606; Mechanics' L. 12 C. L. 815; Nuisance, 12 C. L. 1118; Patents, 10 C. L. 1137; Receivers, 10 C. L. 1465; Reformation of Instruments, 10 C. L. 1497; Cancellation of Instruments, 11 C. L. 1498; Restoring Instruments and Records, 10 C. L. 1526; Wills, 10 C. L. 2035) or the relations of the parties (see such titles as Carriers, 11 C. L. 499; Contracts, 11 C. L. 179; Forecleus of Mortgages on Land, 11 C. L. 1497; Chattel Mortgages, 11 C. L. 611; Guard-Lanship, 11 1176 PARTIES SS 2.18 Cur. Law.

final determination is inconsistent with equity and justice." In some courts a distinction is made between necessary and indispensable parties.8

Persons cannot obtain relief in an_action without becoming parties thereto." Persons are not parties to litigation solely by reason of the fact that they are stockholders in a corporation which is a party.10

SS 2. \_Who may or must sue.11--\_See 10 C. L. 1081--\_Generally, any person of sound mind, of lawful age, and under no restraint or legal disability, has the legal capacity to sue.12

\_Proper parties.\_See 10 C. L. 1081--\_Some interest in the subject-matter is essential to the right to maintain an action,13 and, ordinarily, the real party in interest is the proper person to sue.14 Thus, one for whose benefit a contract is made may sue thereon though the contract is made in another's name.18 with or without joining

7. Disbrow v. Creamery Package Co., 104 ceeds of sale becoming property of principal, 104 Minn. 17, 115 NY 751; Caylor v. Cooper, 165 F 757. In chanery proceedings, all persons who are legally and equitably interest in subject-matter and result must be clam nor truste of express trust. Chap. mado parties, but this does not include those who have mere future contingent interest. Collins V. Crawford, 214 Mo. 167, 112 SWV 538.

1. Persons whose presence in a suit as parties is essential to the granting of the relief sought, and whose absence would render impossible or nignatory any degree for such relief, are indispensable, in contradistinction to necessary parties. Distinction recognized in order to ascertain whether in some cases "necessary" parties may not be dispensed with, in order that relief may not wholly fall. Mathieson v. Craven, 164 F 471.

1. Where receiver of corporation has been appointed on petition, persons not parties to such petition may not file petition for removal of receiver, injunction, and appointment of another, without becoming parties to the litigation. Hearn v. Clare \[Ga.\] 62 SE 187. In suit against individual, proper for judge to refuse to recieve plea offered by firm of which individual was member, when neither firm nor other member thereof was declared against or otherwise appropriately made a party. Bray v. Peace \[Ga.\] 62 SE 1025.

1. Hearn v. Clare \[Ga.\] 62 SE 187.

1. Search Note: See notes in 4 C. L. 889, 891; 64 L. R. A. 581; 1 L. R. A. (N. S.) 303; 2 Id. 961; 4 Id. 863; 13 Id. 209; 14 Id. 298.

See, also, Parties, Cent. Dig. SS 1-27; Dec. Dig. SS 1-20%; 30 Cyc. 21-98, 105-119; 15 A. & E. Enc. P. & P. & P. 467.

12. Hunt v. Monroe, 32 Utah, 428, 91 P 269.

01. After assignment of note payee cannot sue thereon for use of assignee. King v. Taylor \[Del.\] 69 A 1065. Defendants gave plaintiff check in payment of debt, which was taken by bank, marked paid, and when presented to bank on which drawn refused for lack of funds. Held, in action on debt, bank which paid check was not proper or necessary party plaintiff. De Bahr v. Thompson \[Mo.\]. J114 SWV 657. Where one who brought suit as taxpayer of country and representative of his class removed to another county pending appeal from judges that against him, appeal was dismissed on motion, appellant having no further interest. Harney v. Fayette County Fiscal Ct. \[KF.\] 113 SWV 108. Agents authorized merely to sell goods for principal, all pro The base of the base is the base of the base.

tion in the nhame of and for the benefit of a church, lodge, society, or other unincorporated association, may be brought by one or more members acting with the consent or under direction of the other members or a majority of them.\[81\] In action by the owners of property, insured against loss by fire, against defendant, whose negligence caused the fire, for the loss, defendant's cannot object that plaintiffs are not the real parties in interest,\[82\] since a judgment against defendant will be a bar to an action by the insurer for the same cause,\[83\] and defendant has no concern with equities between owners and insurer.\[84\] The receiver of an insolvent corporation cannot, in the absence of statutory authority, maintain an action to enforce stockholders' liability for benefit of creditors.\[85\]

_Necessary parties_ usually include all joint obligees in the contract or covenant sued on,\[86\] and all those having a joint or common interest in the subject-matter and the relief demanded.\[87\] After the death of one of several joint obligees, all surviving obligees must join in a suit to enforce the obligation,\[88\] but the representative of the deceased obligee is not a necessary or proper party.\[89\] When two or more trustees hold property jointly, both or all are necessary and indispensable parties in any action concerning it.\[40\] If litigation is necessary, and one refuses to be a complainant, he may be made a party defendant and the action may proceed.\[41\] In suits by or against the trustee for the recovery of trust property, the beneficiary or cestui que trust is a necessary party.\[42\] Bondholders are not necessary parties to an action by a trustee to foreclose a corporation mortgage, being represented by the trustee.\[43\] One cotenant cannot in a separate action recover his share of the surplus of proceeds of a foreclosure sale under a mortgage given by both cotenants.\[44\] The general doctrine that all parties having an interest in the subject-matter of the litigation must be made parties does not have full application to suits for specific performance of contracts.\[45\] In such suits only parties to the contract are, as a rule, necessary.\[46\]

withholding same. Beyers v. Grande, 58 Denson v. Jerome, 43 Colo. 456, 96 P 166. In Misc. 398, 109 NYS 447. Receiver of insolvent for injunctive relief against collection ent corporation may not as representative of judgment against railway company and creditors enforce statutory liability of stockholders, under Burn's Ann. St. 1901, $ 270, authorizing one of many persons U. S. 26, $3 Law. Ed. 74. In a suit by minor united in Interest to sue for benefit of all. Hammond v. Cline, 170 Ind. 452, $4 NE 827. S1. Payne v. McClure Lodge No. 539 \[KY.\] 115 SW 764.

32, $3, $4. Illinois Cent. R. Co. v. Hicklin \[KY.\] 115 SW 752.

35. Hammond v. Cline, 170 Ind. 452, $4 NE 827.

01. One of two joint obligees cannot sue on contract alone. Weinfield v. Fr. Bergner & Co., 114, NYS 284. Write who joined in ded to railway company was necessary party plaintiff in action for breach of covenant to build passway under track. Ellis v. Springfield S. W. R. Co., 130 Mo. App. 221, 109 SWV 74.

01. Where reformation of contract was sought and damages for fraud, parties to the contract, who would be affected by relief asked, were necessary parties plaintiff, DIsbrow v. Creamery Package Co., 104 Minn. 17, 115 Nvy 751. Obligors in bond, to indemify themselves, created fund and deposited it with decedent who was to invest it, pay them income, and return balance after obligation was satisfied. In proceeding for allowance of claim for such fund against estate, all obligors were indispensable parties 12 Cur. Law. PARTIES SS 3. 1179

\_Who may join.\_See 10 C. L. 1082--All persons having common interests and demanding the same relief may join;47 those having separate causes of action,48 representing different rights,49 may not join, and complaint is demurrable unless it states a cause of action in favor of all who join as plaintiffs.50 All persons whose property is affected by a nuisance, though they own the property in severality, may unite in an action to abate the nuisance,51 but they cannot join with a cause of action for such relief their several claims for damages in which there is no joint or common interest.52 Owners of property abutting on a public street have no such common pecuniary interest as would authorize them to unite in a suit to relieve the property from an illegal street improvement tax.53 When several parties sue jointly, the petition may be amended by striking the name of one or more of them who are not proper parties.54

SS 3. \_Who may or must be used.55--See 10 C. L. 1082--Persons having or claiming some interest which may properly be adjudicated in the action are proper parties,56

which was obtained, new policy being pay- able to bank, successors and assigns' assign- or were not necessary parties to suit on policy, though they may have had an equity trustee from proceeding with construction of school house, fact that they also joined contract alleged it was joint enterprise. Determain Ins. Bank v. Martin \[Ky.\] 114 SWP 319. Husband or testatrix, interested in personality, and sister interested as heir at law in reality, may maintain suit to test validity of will, under Code City, Proc. SS 2653a. Wood plain its demurrable unless it shows a joint cause of action in favor of all. Vandalia Paritics interested in use and diversion of waters of stream could join as plaintiffs for protection of rights to water similarity affected by acts of defendants. Hough v. \[Or.\] 95 P 732. Husband of testatrix, interested in personality, and sister, inter-ested as heir at law in reality, may join as 63 SE 289. Plaintiffs in suit to test validity of will, both under equity rules of pleading, and under Code City. Proc. SS 446, allowing jolander of persons interested in subject-matter. Wood V. Fagan, 126 App. Div. 581, 110 NYS 938. & E. Enc. P. & P. 367. Several owner of lands assessed for repairs on drain could join in suit to restrain enforcement of assessment, having common interest, seeking same relief, and present-ing only one issue, illegality of assessment. Burn's Ann. St. 1908, SS 270, 263. Quick v. Templin \[Ind.\] 85 NE 121. Stockholders seeking to explain directors from issuing stock to others before allowing them to subscrib in proportion to their present hold-morgage to foreclose, mortgager claimed ings, and from voting or permitting any other to vote stock already issued in violation of their rights, may join in such bill. Snelling v. Richard, 166 P 635. 48. Persons having separate causes of action against the same person cannot join as plaintiffs. Vandalia Coal Co. v. Lawson \[Ind.\] 87 NE 47, Joint owners of patent, one of whom owns another patent, the two patents being used conjointly by both, cannot join in a suit for infringement of two patents by defendants who use them conjointly, but do not infring the two patents in one device. Kaiser v. Bortel, 162 F 902. 40. In action by vendor against vendee who has defaulted, plaintiff cannot join with him the borough and county and recover unpaid assessments and taxes which vendee though, if the desired relief may be had without them, net indispensable parties." All persons having an interest in the subject-matter whose rights will necessarily be affected by the decree are necessary parties."84 Persons having no interest in the

proper though not necessary party defend-

In equitable proceeding by landlord to ea-

ant; issue between city and company could

be settled in same suit. Hartford Fire Ins.

was necessary party, Kean v. Rogers \[Iowa\]

Co. v. Houston \[Tex. Civ. App.\] 119 SV 973.

118 NWV 515. Although one of three defend

In an equitable action, all persons materially

interested in the subject-matter are proper

is brought is indemfilled against loss by

parties to the end that there may be a com-

reason of any judgment that may be ob-

plete decree binding upon all. Where plain-

tained.by another defendant, he is never-

iff in such an action knows that a third

theless a substantial and not merely nominal

person claims an interest in the subject-

or formal party. Choctav, O. g. R. G. Co. v.

matter, but does not know the nature,

Aramiton \[OkL\] 95 P 972. In suit to eaelu

tent, or merits of the claim, these facts

may be stated and the claimant be made a

headstates and diverting water to other

party defendant and thus required to dis-

sames, other consumers were indispensable

close his alleged interest. Mawhinney v.

Biliss, 124 App. Div. 609, 109 NYS 332.

under Mills Ann, Code, & 16. McLean v.

57. In suit by bondholders of corporation

against directors to compel them to make

\[Colo.\] 98 P 16. In courts of equity all

good certain representations made in mort-

gage securing bonds alleged to have been

beneficial interests in the subject-matter of

fraudently authorized, corporation is not

an Indispensable party defendant. Slater

Affected by the decree which may be

Trust Co. v. Randolph-Macon Coal Co., 16

dered should be made parties. Thickson v.

F 171. Suit to enjoin sale of liquor on certain

lan land under contract with lumber com-

party which held timber contract from plain-

type and so scattered that their

IIKs' grantors. Held lumber company not

necessary party, no relief against it being

without great and extraordinary difficulty,

sought, Paint Creek Co. v. Gallego Coal and

and it is impracticable to bring them all

Land Co. \[C. C. A.\] 186 P 62.

BS. Necessary parties are all who have an

interest in the subject and object of the ac-

not within rule in absence of averments

tion, and all persons against whom relief

must be obtained in order to accomplish the

object of the suit. McLean v. Farmers'

flightine Canal & Reservoir Co. \[Colo.\] 98

P 16. Mortagrees necessary parties where

plaintiffs sought relief hostile to their

interests. United Sheet & Tin Plate Co. v.

which, or where parties form a voluntary as-

Hens \[C. C. A.\] 159 F 889. An Incememememe

person is a necessary party to an action for

damages for acts done by him personally.

Camen v. Dolaney, 128 App. Div. 648, 113 NYS

of the whole (Id.). Rule held not

50. In action on joint guarantancy of payment,

all joint guarantators must be joined as par-

pany. Id.

ties. Wood v. Farmer, 200 Mass. 209, 86 NE

59. Complaint in action to foreclose me-

01. All parties to original bill for partition

are necessary parties to suit to reform de-

erec in partition. Wells v. Gay \[Miss.\] 4

that said defendant had any interest in

$ 497. Vife of devise is necessary party to

suff for construction of will when her dower

rights will be affected. Lumpkin v. Lumpkin \[Id.\] 70 A 238. Executors of will

discoping of personal property are neces-

sary parties to bill to ecarnre provisions of

will affecting personal property. Id. Pro-

ceeding to settle estate of deceased person

is in nature of action in rem; all persons

interested, in order to be bound, must be made

parties. In re McNaughton's Will \[VWs.\]

118 NWV 987. In suit to set

framly settlement between mother and

children of first marriage, and title apparently founded thereon, and to avoid collateral

early decrees of Porto Rican courts concerning same, mother's estate and children

of second marriage were necessary parties

defendant. Garzot v. Rios De Rubio, 209

U. S. 283, 52 Law. Ed. 74. Tenant's property was sold and proceeds deposited in bank to satisfy landlord's and other claims.

12 Cur. Law. PARTIES SS 3.1181 controversy or subject-matter and against whom no relief is sought are neither necessary nor proper parties.\[59\] The general rule, in the absence of statute, is that a person whose interest in the subject-matter in litigation, and whose liability to respond to plaintiff's demand, or any part of it, is determinable wholly from his independent relation thereto, unaffected by the rights or interests of defendant named in the action, is not a necessary party and need not be joined either as plaintiff or defendant.\[60\] Unincorporated associations cannot be sued as such.\[61\] Members of such an association having a common interest, and too numerous to be made parties individually, may be brought before the court by joining as parties defendant persons who are alleged to be and are proper representatives of the class, the class to which the members belong being described.\[62\] Where an estate is vested in persons living, subject only to the contingent interest of persons who may be born, the living owners represent the estate for all purposes of litigation concerning it.\[63\] Thus, the rights of contingent remaindermen not in ease may be finally adjudged when the remaindermen in ease are made parties as representatives of the class.\[64\] While as a general rule an injunction will not lie against one not a party to the bill, the rule is subject to some exceptions,\[65\] one of which is that where the parties interested are so numerous that it is impossible to bring them all before the court, but the right involved being common to all, one or more, being made parties, are permitted to represent all, or where those impleaded stand in a representation or trust relation to the others, then the decree is binding upon all parties interested.\[66\] A judgment against the wrong party is, of course, a nullity.\[67\] Persons not parties are not affected by the decree,\[68\] and it is not proper for a decree to purport to grant relief against them.\[69\] The court cannot compel plaintiff to accept as defendant a person against whom no summons has been issued and against whom he may have no cause of action simply because such person was erroneously served with process.\[70\] Where

the had objected to her account as guardian, but did not allege that she had accounted to plaintiff for money so applied on notes. Heid proper to refuse to bring in maker of notes as party, since he made no claim to notes, Gerth v. Gerth, 7 Cal. App. 785, 95 P 904.

60. Town of Kettle River v. Bruno, 106

01. Labor unions. Reynolds v. Davis, 198

Mass. 294, 84 N 457.

62. Reynolds v. Davis, 198 Mass. 294, 84 N 457.

01. Doscher v. Wyckoff, 113 NYS 655. Confingent remaindermen are not necessary parties defendant in an action to enforce a lien against trust property; it is sum-cient if the life tenant is a party. Jailtet v. Bell, 33 Ky. L. R. 159, 110 SWV 298.

Rule same where third person conveyed property to truste upon trust and condition imposed by will to which he was stran-ger; in suit to enforce his vendor's lien, it was sufficient to make truste and lite tenant parties. Id. In suit by life tenant to set aside conveyance of his interest, error to make his children, remaindermen, parties, but error was not cause for reversal; judgment modified so as to make defendant liable for additional costs caused by bringing them in. Barnes v. Johnson, 33 Ky. L. R. 803, 111 SWV 312.

64. Hunt v. Gower, 80 S. C. 80, 61 SE 218,

01. San Francisco Gas & Elec. Co. v. San Francisco, 164 F 884.

01. In suit to enjoin enforcement of or-dinance fixing gas rate, temporary restrain-ing order held binding on all consumers, being represented in suit by city and its off-cars. San Francisco Gas & Elec. Co. v. San Francisco, 164 F 884.

01. Brother of defendant appeared and, answered to merits, plaintiff's attorney accepting answer. Heid judgment rendered should be set aside. Garvey v. Falk, 58 Mass. 294, 84 N 457.

01. Doscher v. Wyckoff, 113 NYS 655. Confingent remaindermen are not necessary parties defendant in an action to enforce a lien against trust property; it is sum-cient if the life tenant is a party. Jailtet v. Bell, 33 Ky. L. R. 159, 110 SWV 298.

Rule same where third person conveyed property to truste upon trust and condition imposed by will to which he was stran-ger; in suit to enforce his vendor's lien, it was sufficient to make truste and lite tenant parties. Id. In suit by life tenant to set aside conveyance of his interest, error to make his children, remaindermen, parties, but error was not cause for reversal; judgment modified so as to make defendant liable for additional costs caused by bringing them in. Barnes v. Johnson, 33 Ky. L. R. 803, 111 SWV 312.

64. Hunt v. Gower, 80 S. C. 80, 61 SE 218,

01. San Francisco Gas & Elec. Co. v. San Francisco, 164 F 884.

1182 PARTIES SS 8. 12 Cur. Law. one or more, but not all, of the defendants are served, the plaintiff may proceed to trial and judgment against those served.11 Defendants not served may be proceeded against by scire facias and made parties to the judgment after judgment is entered against defendants served.12

\_Joinder of parties defendants.\_See 10 C. L. 1082--Persons only jointly liable must be joined.73 Where liability is joint and several, as in the case of joint tort feasors,74 or parties to joint contract made jointly and severally liable by statute,75 all the persons liable may be sued jointly, or an action may be maintained against any one,76 but not against an intermediate number,77 but in actions ex delicto, judgment in a several action bars a subsequent joint action.79 In general, all persons claiming adversely to the right or claim asserted by plaintiff,79 or who are liable upon the cause of action asserted,80 may be joined as defendants; but it is improper to join persons against whom different causes of action are asserted.81 A creditor's bill to set aside fraudulent transfers may join two or more defendants alleged to be fraudulent grantees in different transfers and transactions.82 It is held in Alabama that the maker and indorser of a promissory note cannot be sued jointly by the payee, though simultaneous separate suits may be maintained against them.83 In

71. Failure to bring in principals of bond before proceeding to judgment against sure-ties. Purington v. U. S., 126 Ill. App. 323. 72. Purington v. U. S., 126 Ill. App. 323. 73. Prim debt is Joint, not joint and several obligation. Where in suit on obligation incurred by one it appears by one that it was affirm debt, all members of firm should be brought in and suit should be against firm. Erskine v. Russell, 43 Colo. 449, 96 P 249. 74. Joint tort feasors may be sued jointly. Gawne v. Bicknell, 162 F 587. Two car inspectors acted together in inspecting ear in course of duties owed railroad company. Held injured servant could join as defendants inspectors and company. Ward v. Pullman Car Corporation \[Key.\] 114 SIW 754. Joint tort feasors jointly and severally liable; may be so sued. Fulevider v. Trenton Gas, L. & E. Co. \[Mo.\] 116 SWS 508. Injured servant may sue one of partners who employed him. Gawne v. Bicknell, 162 F 587. Injured person may sue one or any or all of joint wronggdoers and defendant cannot object on ground of defect or misjudence of parties. Tandrup v. Sampsell, & 34 Ill. 526, 85 NE 381. 75. Under Rev. Laws 1905, & 4282, all parties to joint contract are jointly and severally liable and may be sued jointly or severally. Hence, where complaint alleges making of contract by one and proof shows making by more than one, variance is not fatal. Morgan v. Brach, 104 Minn. 247, 116 NW 490. 76. When the liability is Joint and several, any joint defendant who is not necessarily a party may be dismissed. Practice Act, & 24. Kaspar v. People, 182 Ill. App. 1. 77. Under Hurd's Rev. St. , 103, & 13, suit may be brought on a guardian's bond against one of several suties only. Kaspar v. People, 182 Ill. App. 1. At common law on a joint and several obligation executed by more than two persons, one or all of surviving obligors may be sued, but not an in-in-progress. 83 Intermediate number. People v. Jamison, 141 Ill. App. 406. 78. Gawne v. Bicknell, 162 F 587. 79. In suit involving rights to water of stream, all persons claiming rights therein adverse to plaintiff's claims could be joined as defendants, and general allegation that they claimed some right or interest adverse but inferior to plaintiff, the exact nature of which was unknown, was sufficient. Hough v. Porter \[Or.\] 95 P 732. 80. Where cause of action grew out of one transaction in which defendants were jointly interested, they were properly joined in one action. Hanson v. Neal \[Mo.\] 114 SWV 1078. No misjudinder of parties defendant where husband and wife were sued for board and lodging for which wife had expressly agreed to pay, both being liable. Edimiston v. Smith, 18 Idaho, 645, 92 P 842. Suit for recovery of money and for cancelation of feed, based on deceit practiced by defendants in pursuance of conspiracy to defendants, fraud plaintiff, may be maintained against defendants jointly. Opperman v. Petry (Tex. Civ. App.) 115 SWV 300. No misjudinder where partnership, and one partner individually, were sued on alleged sale to such partnership and individual jointly, since all parties to joint sale were necessary parties defendant. Redwood City Salt Co. v. Whitney, 155 Cal. 421, 95 P 885. 81. Demurrer sustained because complaint did not state cause of action against four of defendants, and because of misjudinder of causes against all. Wise v. Tube Bending Mach. Co. \[N. Y.\] 87 NE 430. Persons guilty of separate ports cannot be sued jointly. Except of misjudinder sustained in action for bypass against two defendants where nothing in petition showed that they were joint trespasers. Breaux Bridge Lumber Co. v. Hebert, 121 Lx. 188, 46 S 206. 82. Exchange Nat.

12 Cur. Law. PARTIES SS 4. 1183

Texas it is always proper to join the acceptor of any bill of exchange or any other principal obligor in any contract with any one else liable thereon.\[54\]

The names of parties improperly joined may be stricken,\[85\] and the joiner of an improper party defendant will not defeat recovery against the proper party defendant.\[88\] In an action against joint tort feasors, plaintiff may dismiss or discontinue as to one without affecting his rights against the other.\[87\]

Joinder of parties as affecting the jurisdiction of federal courts is elsewhere treated.\[88\]

SS 4. \_Designating and describing parties.\[89\] See 10 C. L. 1084--\_The parties and the capacities in which they su or are sued should, of course, be designated properly and clearly,\[88\] but amendments are freely allowed to correct mistakes \[81\] or to make the pleading more definite and certain,\[92\] especially where the parties have appeared.\[88\] One sought to be made a party in a representative capacity must be so designated,\[84\] though, in order to determine whether defendants are sued in a representative capacity, the title, allegations, and demand are to be considered as a whole.\[88\] One may sue and be sued in any name by which he is known and recognized.\[88\] A person may adopt any name in which to prosecute a business and sue and be sued in that name.\[88\] One who takes title to real property in a name other than his true name may, in suits affecting the property, be sued in such name.\[88\] A judgment is valid when

84. Rev. St. 1895, art. 1203. Milmo Nat. Bank v. Cobbs \[Ter. Civ. App.\] 115 SW 345. 85. Proper to allow complaint in action by payee against indorer and maker of note to be amended by striking out maker as party, he being improperly joined. Scarborough v. City Nat. Bank \[Ala.\] 48 S 62. 86. Action in assumption for goods sold. Franz v. William Barr Dry Goods Co., 132 Mo. App. 8, 111 SW 636. 87. Vantom v. Miller's Adm'x \[Va.\] 68 SB 458. Discontinuance or dismissal of a suit as to one of two joint tort feasors does not discharge or affect the liability of the other. Equitable Life Asur. Soc. of U. S. v. Lester \[Tex. Civ. App.\] 110 SW 498. 88. See Removal of Causes, 10 C. L. 1508. 88. Seare Note: See, Parties, Cent. Dig. 88 108-114; Dec. Dig. 66-74; 15 A & E. Enc. P. A & P. 478. 90. Plaintiff in action on account should save in his full proper name, "A. L. Patrick" insufficent. Patrick v. Norfolk Lumber Co. \[Neb.\] 115 NW 780. Complaint held to show that defendant was sued (injuries to one engaged in painting house) In individual capacity, though it contained superfluous allegations that defendant was stockholder and president of company that hired plaintiff. Irrgang v. Ott \[Cal. App.\] 9 P 528. 91. Mistake in naming companies as "shoe" company instead of "stationary" and "drug" companies, respectively, curable, mistake appearing from pleading as whole. Orr Stationary Co. v. Dr. Bell & Lee Drug Co., 4 Ga. App.\] 92, 62 SS 471. Where first count set out that plaintiff was partnership, and gave names of members of firm, mistake in second count in allegting it was corporation could be corrected by amendment before trial. Acme Food Co. v. Hoverton \[Iowa\] 119 NW 631. Where action for wrongful death was by mistake brought in name of admlnis-tatririx, allowance of amendment to show action brought by next of kin was proper. Herlihy V. Little, 200 Mass, 284, 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 86 NE 294. 96 NE 305. 86 NE 310. 86 NE 329. 86 NE 331. 86 NE 341. 86 NE 351. 86 NE 361. 86 NE 371. 86 NE 387. 86 NE 398. 86 NE 401. 86 NE 398. 86 NE 399. 86 NE 399. 86 NE 399. 86 NE 411. 86 NE 399. 86 NE 421. 86 NE 43 1184 PARTIES SS 5. 18 Cur. Law.

obtained against a married woman sued as a feme sole and in her maiden name, particularly upon any contract which she has executed in that name.\[99\] If plaintiff is ignorant of the true name of defendant,\[1\] he may bring suit against him in a fictitious name, by alleging that his true name is unknown.\[2\] The true name of defendant should in such case be substituted by amendment when learned,\[3\] though failure to amend by substituting the true name of defendant is not cause for reversal where such defendant has appeared and answered.\[4\] Where a person has been sued by a fictitious name or by a name part of which is designated as fictitious, real name being unknown, and the person fails to appear, a judgment predicated thereon is irregular, unless the summons and judgment contain a description sufficient for the identification of the defendant, for the purpose of having execution against the property of the debtor thus described.\[5\] Where a defendant has been sued by a wrong name, judgment taken by default is a nullity.\[6\] In chancery suits it is sometimes immaterial whether such parties are made plaintiffs or defendants so long as they are before the court.\[7\]

SS 5. \_Additional and substituted parties.\[8\]-\_See 10 C. L. 1084_When it appears that a complete determination of the controversy cannot be had without the presence of other parties, they should be brought in,\[9\] and it is error to proceed without neces.\[1\]

**1. Plaintiff is not allowed to use a fictitious name at his discretion, but only when 736; 3 Ann. Cas. 1091.**

be is ignorant of the true name of defendant. Simon v. Underwood, 61 Misc. 369, 115 NYS 65. 2. Blackburn v. Bucksport & E. R. Co., 7 Cal. App. 649, 95 P 668. 3. Where the proper name of defendant or judgment debtor is known, judgment proceedings must be amended by inserting the proper names before further proceedings can be had, if objection be made. Simon v. Underwood, 61 Misc. 369, 115 NYS 65. 4. Judgment on appeal will direct amendment of complaint below as of date prior to judgment to support judgment. Blackburn v. Bucksport & E. R. Co., 7 Cal. App. 649, 95 P 668. 5. Such judgment is not void but irregular, and will not support execution or or or-der for examination in supplementary proceedings. Simon v. Underwood, 61 Misc. 369, 115 NYS 65. An examination in supplementary proceedings may be had where the name of defendant is given as fictitious, providing there is added a description snft. Bicient to identify the person intended, but where the true name is known, the proceedings must be amended. Id. 6. Simon v. Underwood, 61 Misc. 369, 115 NYS 65. 7. Berger v. Butler \[Ala.\] 48 S 685. Where second assignee of note and mortgage brought suit to foreclose, making first assignee, mortgage and grantee of mortgage defendants, grantee of mortgage could not object that first assignee was not made plaintiff, where all parties were before the court, especially where first assignee subsequently filed cross complaint. Patten v. Pepper Hotel Co., 153 Cal. 460, 96 P 296. In equity, parties one in interest may be arrayed as plaintiffs or defendants nominally, but their true relations are taken into consideration throughout the entire proceeding. Taylor v. Leenitzer, 31 App. D. C. 92. 1184.

sary parties though no obligation is made.10 The power to require interested parties to be brought before the court includes the power essential to make such order effective.11 Thus, where persons ordered to be brought in and served with process fail to appear or plead, judgment may be entered against them in favor of parties who appear.12 Whether parties proper but not necessary should be brought in is a matter resting largely in the trial court's discretion,13 and persons whose presence is not necessary need not be made parties.14 An order to make parties should be definite and not too broad.15

Amendments to the pleadings, bringing in new parties plaintiff 16 or defendant,17 are freely allowed when the additional parties thus brought in are necessary

an appellate court, observing the want of as to make all members individually plainnecessary parties, to order them brought in this. Tyrrel v. Milliken \[Mo. App.\] 115 SWV when complete justice cannot otherwise be $12. Allowing complaint to be amended by done, Talbot v. Curtis \[V. Va.\] 63 SE $77. adding beneficiary as party plaintiff in suit commenced by one in whose name contract was made not prejudial to defendant, troversy in an equitable action cannot be $13.4 without the presence of other parties, $14.61 SE $78. In action for wrongful the court must direct them to be brought in. It is error to proceed without necessary parties though no objection has been made. Mawhinney v. Bliss, 124 App. Div. $609, 109 NYS $32. $11. Hough v. Porter \[Or.\] $P 1083. $2. Controversy over water rights. Hough v. Porter \[Or.\] $P 1083. $13. It is within court's discretion to eliminate one not an original nor a necessary party, though he was proper party. Carder v. Johnson \[Tex. Civ. App.\] 109 SWV 944. Directing that an additional party be brought in is usually discretionary and not apelaable, unless injury done is manifest. State v. McGuire, 147 N. C. $38, 61 SE 196. $14. In suit in federal court to set aside an arbitrator's award, such suit being an- either to suit on a award, court has no power $14.15 to bring in third party, not necessary in adjusting claim which is sought to be avoided. Heeth v. Youghiogheny & Lehigh v.

or proper," but amendment will not be allowed which would work an entire change of parties plaintiff." Upon obtaining leave to add new parties, the declaration should be amended so as to properly connect them with the suit.20 The right to bring in new parties is not barred by limitations when the action was commenced in time.21 One cannot by motion be made plaintiff in an action commenced by another,22 but may be made defendant, and summons and complaint may be ordered amended accordingly.23 As defendant, he may set up in his answer any claim against a codefendant in the manner provided by the code.24 A defendant is not permitted to bring in third parties for the purpose of litigating with them matters in no way connected with the suit,25 but may, in some states, bring in additional parties by filing a cross petition.26 The filing of an amended petition adding a new defendant and omitting one of the original defendants operates as a dismissal of the suit as to such omitted defendant.27 New parties brought in after commencement of the suit are bound by the judgment rendered.28 One brought in by supplemental summons cannot object to delay in making him a party.29 An amendment bringing in new parties plaintiff and alleging a new cause of action requires due service of process on defendant,29 unless defendant waives service by answering the new demand.21 A nonresident cannot be made a party by merely interlining his name in a bill.22 When a judgment defendant appeals from a judgment of a justice to the circuit court where the trial is de novo, the judgment plaintiff can bring a new party into the case in the circuit court by amendment.29

_Intervention._ See 10 C. L. 1084--One is entitled to intervene in a suit between other parties when he has an interest in the subject-matter of litigation of such a direct mit the railway company to make material- | brought in by amendment after the year. Prather Engineering Co. v. Detroit, F & S. the contractor parties to the action for the purpose of distribution. Hazegreen V. Cin Cinnati & I. W. R. Co., 11 Ohio C. C. (N. S.) 367. 18 Not error to refuse to allow, during trial, filing of second amended petition, making truste party, where trust deed was not set out and no facts were shown entitling appellant to judgment against trustee. Globe Bank & Trust Co. v. Rigglesberger, 33 Ky. L. R. 96, 109 SWV 333. 19 Where use plaintiff is by statute made sole plaintiff, amendment striking such use plaintiff Is not allowable. Code Ali. 1907, 3 2490. Southern R. Co. v. Blunt, 165 F 258. Proper to refuse to allow amendment in replevin suit which would have introduced surviving partners for plaintiff: entirely new parties. Anderson v. Stewart \[Md.\] 70 A 28. 20. Mere amendment by inserting names of new parties alone is insufficient where declaration unamended fails to allege their connection with suit. Tompkins v. Diamond, 140 Ill. App. 90. ADatement Act, 8 11, providing for bringing heir into court, does not do away with necessity of connecting new defendants with suit. Id. Declaration held not to connect heirs, etc., with suit. Id. 21. Holmes v. Pennsylvania R. Co., 220 Pa. 189, 69 A 597. Where suit was commenced in time by trustee, proper to allow amendment by adding beneficiary as party after expiration of limitation period. Consar v. Heath, Witherspoon & Co., 80 S. C. 466, 61 SE 973. Where suit to enforce mechanic's lien is brought within year limited by statute, an additional party may be | 12 Cur. Law. PARTIES SS 5. 1187 and immediate character that he will gain or lose by the direct legal operation and effect of the judgment.34 One interested merely in the thing in litigation and not in the rights or remedies involved, and who will not be prejudicially affected by the judgment, may not intervene,35 though it is held that in a suit in rem all persons who have an interest in the res should be allowed to intervene and be heard in behalf of their interests.36 That other issues of fact are presented by a petition in intervention will not defeat the intervention where the ultimate issue between the parties remains the same.37 If a good reason for intervention is otherwise shown, an application will not be denied because the amount in issue is below the jurisdiction of the court.38 Intervention should not be granted except to one who, at the beginning of the action, was competent to be a party thereto.39 An intervention may be allowed in a mandamus proceeding.40 In summary proceedings between landlord and tenant, a claim of right to possession is essential to the right to intervene; " a mere claim of ownership of the land is not enough.41 In proceedings 34. Under Civ. Code (Mills), SS 22, the purpose of which is to allow intervention of dead, could not intervene in suit to set one really interested in order that entire Lau to court as condition precedent to having Poudre Irr. Ditch Co. v. Hawley, 43 Colo. 456. 8X 254. In a suit in personam, a of manifest justice, in cases not provided for in the code, allow one not a party to intervene before or after judgment for the protection or advancement of some right with reference to the subject-matter Gib-mont or. Ferrell, 17 Kam. 464, 94 P 788. One interested in estate should allowed to intervene in action originally between tea-tator and other partners which had been breeding four years; since estate could not be closed up until action was terminated, tels is also made party, Watkins v. Clit-though intervener was theoretically already represented by executor. Schlesinger v. Dep. 115 SWV 804. One who has no judg-Bear, 128 App. Div. 494, 112 NYS 826. In ment or ilen on mortgaged property, but sure claim for damages against mortgagor commissioner to recognize its right to diverttation granted), cannot intervene in fore-pany, a third irrigation company, claiming rights to water of same stream, which would be affected by judgment, had rightment she might recover. Clinton v. South to intervene in order to protect its right. Cache La Poudre Irr. Ditch Co. v. Hawley, 43 Colo. 32, 95 P 317. Write, plaintiff in diamond and whose mortgage is not called vorce suit, may intervene in action by third person against husband on debt, fraud and collusion being alleged, purpose being to self attached property in order to defeat.

vwife's claim for share of community propog-cient to satisfy mortgage. Wells v. Black-erty. Pittock v. Buck \[Ldan\] 96 P 212, man. 121 La. 394, 48 E 437. Vendor or land has sufficient interest to give him standing as intervener in action, purposes of which is to discredit or nullify \[Ga. App.\] title conveyed by him. State v. Capdewdew \[Ga. App.\] \[LLa.\] 48 S 126. Under Comp. Laws 1897, 37. Cache La Poudre Irr. Ditch Co. v. $ 3182, any person claiming an interest in hand sought to be partitioned may inter-vne, whether the interest is claimed under the common title sought to be partitioned or under independent title. Baca V. Anaya \[N. M.\] 94 P 1017. Persons in possession, claiming under Spanish grant made in 1760, may intervene to quiet title in partition \[N. M.\] 94 P 1017. Persons in possession, claiming under Spanish grant made in 1760, 39. Cache La Poudre Irr. Ditch Co. v. $ 3182, any person claiming an interest in hand sought to be partitioned may inter-vne, whether the interest is claimed under the common title sought to be partitioned or under independent title. Baca V. Anaya \[N. M.\] 94 P 1017. Persons in possession, claiming under Spanish grant made in 1760, may intervene to quiet title in partition \[N. M.\] 94 P 1017. Persons in possession, claiming under Spanish grant made in 1760, 39. Cache La Poudre Irr. Ditch Co. v. $ 3182, any person claiming an interest in hand sought to be partitioned may inter-vne, whether the interest is claimed under the common title sought to be partitioned or under independent title. Baca V. Anaya \[N. M.\] 94 P 1017. Persons in possession, claiming under Spanish grant made in 1760, 39. Cache La Poudre Irr. Ditch Co. v. $ 3182, any person claiming an interest in hand sought to be partitioned or under independent title.

## Parties 5

### 12 Cur. Law.

against a solvent partnership in a state court for a receiver, a receiver subsequently appointed in bankruptcy proceedings has no right to intervene.\[43\] A minority stockholder cannot intervene in a suit for an accounting by his company against another merely because he is a stockholder, if he is being properly represented by the officers of the company.\[44\] But if stockholders can show fraud and collusion by which their rights are being sacrificed, they have a right to intervene, not to displace the directors and dominate the litigation, but for the protection of their rights as stockholders.\[44\] Bondholders may not intervene in a suit by the trustee to foreclose the mortgage, unless negligence, incompetency or improper conduct on the part of the trustee is shown,\[44\] but failure of the trustee to contest the validity of a prior mortgage is ground for such intervention.\[47\] The right of a defendant to vouch into court another, who is liable over to him, conferred by statute in Georgia, does not include the right of volunteering to become a defendant when no notice has been given by defendant, and when plaintiff has not requested that such a one be made a party.\[48\] Whether intervention is by petition or by original bill in the nature of a cross-bill, it must be initiated by leave of the court.\[49\] The application for leave to intervene must show diligence on the part of the intervenor to seek the aid of the court \[50\] as the right to intervene may be lost by laches.\[51\] Such application is addressed to the sound discretion of the court,\[52\] except in those cases where intervention is a matter of right.\[43\] In some jurisdictions an application for leave to intervene is first filed and passed upon;\[54\] in others, the application for leave should be accompanied by a proposed complaint in intervention.\[56\] In determining the sufficiency of a petition to intervene, the averments of the petition, so far as well pleaded, are to be taken as true.\[58\] An intervener takes the pleadings as he finds.

One claiming rents under an assignment of lease by landford cannot intervene in summary proceeding in municipal court by landford for nonpayment of rent, since Code Civ. Proc. $ 224, permits intervention in such proceedings only by one having or claiming possession. Erkins v. Tucker, 115 NYS 268. Nor does Municipal Court. $ 187, permitting substitution of claimment in action on contract or for recovery of chattels, apply to such summary proceedings. Id.

Alleged owner of land is not entitled to intervene in action of borehole detainer between landford and tenant, since that action is not to try title but only right to possession. Atkinson v. Stansberry \[KY.\] 114 SWV 1196.

43. Southwell v. Church \[Tex. Civ. App.\] 111 SWV 968.

01. Ex parte Gray \[Ala.\] 47 S 286.

01. Intervention refused; fraud not shown.

Ex parte Gray \[Ala.\] 47 S 286.

46. Bowling Green Trust Co. v. Virginia Passenger & Power Co., 164 T 753.

01. Bowling Green Trust Co. v. Virginia Passenger & Power Co., 164 T 753.

01. No right to intervene under Civ. Code 185, 5 5234. Armour Car Lines v. Summermour \[Ga. App.\] 63 S E67.

01. Ex parte Gray \[Ala.\] 47 S 286.

01. Gibson v. Ferrell, 77 Kan. 454, 94 T 738.

01. Flint v. Chaloupka \[Neb.\] 115 NWV 535. Under Cobbey's Ann. St. 1903, $ 1047, Intervention must be before trial commences.

One who failed to amend a defective petition in intervention, to which a demurrer was sustained, could not, after trial, in-terven under $ 901, since the latter provides remedy only where code fails to provide one, Id.

52. Gibson v. Ferrell, 77 Kan. 454, 94 T 782. A refusal to allow a party to intervene in a suit is discretionary, not final, not a determination of the merits of the claim, and is not appealable. Blaffer v. New Orleans Water Supply Co. \[C. C. A.\] 160-F 389.

01. Right to intervene in partition suit given by Comp. Laws 1897, $ 1812, is a matter of right when seasonally asserted and court has no discretionary power to deny it. Brace v. Anaya \[N. M.\] 94 T 1017.

01. Steps are: (1) Application for leave to intervene, notice of which should be given. parties: (2) refusal or granting of leave, determination being based on face of application; if leave granted, filing of petition and answer; (3) determination from. pleadings, afflavits, etc, whether pertinent shall be allowed to become party, Bx parte Gray \[Ala.\] 47 S 286.

01. Application to allow certain attorney to appear for certain taxpayers not accompanied by any proposed complaint in intervention cannot be construed as petition to intervene, Schouweller v. Allen \[N. D.\] 117 NWV 866.

01. Cache La Poudre Irr. Ditch Co. v. Hawley, 43 Colo. 32, 85 F 317.

12 Cur. Law. PARTIES SS 5. 1189

them, and where there has been a waiver of process by appearance and answer he cannot urge that there is no process or waiver of the same." Application to intervene, after judgment, is too late," and it is irregular to allow new parties to intervene after final judgment on the merits by an appellate court." An intervention will not be permitted to retard the decision of the principal action," and where an intervention is dismissed on exception, and an appeal allowed, such appeal can suspend nothing except the running of the delay within which the judgment appealed from would otherwise become unappealable." An intervener becomes a party and is bound by the decree," unless he withdraws his claim previous to the rendition of judgment." A stockholder, intervening in an action by the corporation to protect individual rights as stockholder, is not entitled to an allowance for attorney's fees."

_Substitution._\[see 10 C. L. 1087--One who has succeeded to the rights of a litigant may be substituted as the real party in interest," and usually such substitution is required in order that judgment may be rendered in accordance with the facts," though provision is made in some jurisdictions for continuing the action in the name of the original party for the benefit of the assignee." Failure to amend so as to show the name of the real party in interest as plaintiff is immaterial where the fact of transfer of interest is shown."

In an action to recover money, in which

57. Booth v. State \[Ga.\] 63 SE 502. 68. Schouweller v. Allen \[N. D.\] 117 NWF 866. After litigation has resulted in final 1011.0 property of the defendant is attached, one to whom the attached property is transferred subsequent to the levy has no right to be substituted for defendant," even though judgment was rendered against the debtor on service by publication, the debtor being a nonresident." The transfer of property attached to secure any judgment which might be recovered is not a transfer of any interest in the action or cause of action warranting substitution," and the subsequent death of the transferor could add nothing to the rights of the transfere." In a suit to enforce liability of stockholders of an insolvent corporation, it has been held proper to allow one creditor, suing for all, to be substituted for the receiver." Where a public officer is involved in litigation in his official capacity, the expiration of his term does not require substitution of his successor." The substitution of a new party plaintiff and the filing of an amended and substituted petition is not the commencement of a new action, and limitations is no defense if the original action was commenced in time."

SS 6. _Objections to capacity, and defects of parties._" See 10 C. L. 1087.\_Defect of parties, apparent on the face of the complaint or petition, must be raised by denurrer; " if not so apparent, it should be raised by answer or plea in abatement," and a demurrer will not raise the objection." The objection must be specific "

69, 70, 71. Anderson v. Schloesser, 153 Cal. 153 Cal. 154, and a plea for want of proper parties is a plea in bar and goes to the whole bill. Moore v. Moore \[N. J. Eq.1 70 A 684. Where 94 P 885.

94 P 885.

73. Receiver of bank commenced suit. Buist v. Williams, 81 S. C. 495, 62 SE 859.

01. Public being real litigant. Hines v. Stahl \[Kan.\] 99 P 273.

01. State Bank of Gothenburg v. Carroll \[Neb.\] 116 NPV 276. Where action on securities was commenced by pledger before expiration of limitation period, action by substituted pledgege to whom securities were absolutely assigned pending sutt was not barred. Merced Bank v. Price \[Cal.\] 98 P 383.

01. Search Note: See Parties, Cent. Dig. SS 115-175; Dec. Dig. SS 175-91; 30 Cyc. 140-144; 15 A & E. Ene P. & P. & P. 475, 654, 681, 747.

01. Defect of parties plaintiff or defendant must be raised by demurrer or it is waived. Budos v. Frey, 104 Minn. 481, 117 NPV 158; Disbrow v. Creamery Package Co., 104 Minn. 17, 115 NPV 751; Bishop v. Hunt \[Neb.\] 116 NPV 665. Right of plaintiff to use individually on joint demand properly raised by demurrer on ground of defect of parties. Weinfold v. Fr. Bergner & Co., 114 NYS 284. If it appears on face oftition that action against individual is for partnership debt, objection may be taken by demurrer. Bray v. Peace \[Ga.\] 62 SE 1025. Both general and special demurrer held to raise question whether too many parties were joined, Cty of Galena v. Galena Walter Co., 182 Ill. App. 332. Want of legal ca., opacity to sue referred to in Rev. St. 1898, & 2962, as ground for demurrer, ordinarily means want of capacity to appear in court and maintain an action regardless of in whom is vested the right of action. Hunt v. Monroe, 32 Utah, 42, 91 P 268.

01. Nonjinder of parties may be raised by plea in abatement. Clark v. Schindler \[Ind. App.\] 87 NE 44. Where a defect of parties is not apparent on the face of the bill, it may be brought before the court by 13 Cur. Law. PARTIES SS 6. 1191

and must show what persons are omitted as parties, if the facts are not otherwise disclosed." If the objection be not properly raised by demurrer or answer, it is waived,"2 and is not available as a defense in a trial on the merits."3 But defect of parties is not so waived, where the situation is such that the court cannot proceed to judgment without the presence of others, who are not before the court."3

whether or not time to redeem had passed, or that heirs or devisees had acquired any interest in land. 1d.

\*\*50. General demurrer does not raise quesemotion of defect of parties; this must be raised by special demurrer or answer or it cannot be raised on appeal. Choctaw, O. & G. R. Co. v. Burgess \[Okl.\] 97 P 271. Where proceeding for writ of mandamus was not brought in name of state on relation of proper party but by such party, and respondent defended by general demurrer, not raising defect of parties by special demurrer or otherwise, by special demurrer or otherwise, by special demurrer or answer. Civ. Code 872. Defect of parties is objection was waived. Davis V. Carruthers \[Okl.\] 97 P 581. An objection that there is a defect of parties should state the names of necesary parties not before the court. Union Trust & Sav. Co. v. Marshall's Adm's \[Ky.\] 113 SW 73. A. Aermurrer for defect of parties plaintiff is good when it specifies and correctly names the omitted parties. Disbrow v. Creamary Package Mfg. Co., 104 Minn. 17, 115 NW 751.

\*\*52. Defect of parties waived by failure to raise objection by demurrer or answer or otherwise. Buddany v. Buddany, 48 Wash.

**53.** In an action at law on contract, decla-645, 94 P 478. Defect of parties waived by failure to demur on that ground as allowed by statute. Bridger's V. Staton \[N. C.\] 63 SE 892. Defect of parties plaintiff waived by failure to raise objection by demurrer or answer. Semon v. Daggett, 114 XYS 63. Defect of parties defendant waived if, not taken advantage of by demurrer or answer. Cousar v. Heath, Wilterspoon & Co., 80 S. C. 466, 61 SE 973. Failure to join trustee in not equitable suit by beneficiary waived by failure to raise nonjolinder by demurrer or answer. Peeples V. Hayley Beine & Co., \[Ark.\] 116 SW 197. Failure to join two judgment debtors in action on judgment waived, where one sued did not raise objection by demurrer or answer. Jordan v. Muse \[Ark.\] 115 SW 162. Failure to join plaintiff' hasband in action for injuries to plaintiff, and waived by failure to raise it by proper plea for several years during which suit was pending. City of San Antonio v. Wildenstein \[Tex. Civ. App.\] 109 SW 231. In action to recover on contract, defendant not having pleaded nonjolinder of another party to the contract, plaintiff was entitled to recover entire amount from defendant. Garvin v. Stone, 152 Mich. 594, 15 Det. Leg. N. 276, 116 parties to petition to enforce mechanic's lien NW 388. Variance between declaration in field v. U. S. Life Ins. Co., 238 Ill. 148, 87 NE ing for writ of mandamus was not brought in name of state on relation of proper party but by such party, and respondent defended by general demurrer or answer. Civ. Code Prac. 6 92. Louis-ville & N. R. Co. v. Herndon's Adm'r, 31 Ky. \[L. R. 1059, 104 SW 732. Defect of parties is objection was waived unless taken advantage of by demurrer or answer. Civ. Code 8 96. Nason v. Nason, 79 Neb. 852, 118 NW 188. Defect of parties is waived by failure to demur on that precise ground or to raise question by answer. St. 1898, 8 2654. Milwaukee Trust Co. v. Van Valkenburg, 132 Ngu. 638, 112 DIINTW 1083. An objection that an action is properly brought against defendant as assignee for the benefit of eeditors must be taken by plea in abatement or demurrer, Mayberry v. Sprague, 190 Mass. 301, 85 NE 440.

**53.** In an action at law on contract, decla-645, 94 P 478. Defect of parties waived by failure to demur on that ground as allowed by statute. Bridger's V. Staton \[N. C.\] 63 SE 892. Defect of parties plaintiff waived by damage shows that defendant and another failure to raise objection by demurrer or amage contract declared on. Beasore v. Stevansor. Semon v. Daggett, 114 XYS 63.

**54.** The defect of parties defendant waived if, not not being waived, is a defect of parties waived by failure to release objection by demurrer or answer. Cousar v. Heath, Wilterspoon & Co., 80 S. C. 466, 61 SE 973. Failure to join trustee in not equitable suit by beneficiary waived by failure.

**55.** The defect of parties waived by failure to release objection by demurrer or amage contract declared on. Beasore v The objection that plaintiff is not the real party in interest or lacks capacity to sue should also be specially raised by demurrer,\[85\] answer or plea, and if not so raised is waived.\[86\] An answer to the merits, after demurrer overruled, is also a waiver of the objection.\[87\] But this rule does not apply where plaintiff has no interest, legal or equitable, in the claim or right to represent it,\[88\] nor does it apply where the complaint fails to state a cause of action in plaintiff.\[89\] Defendants have been held to be estopped by their conduct from objecting to plaintiff's capacity or right to sue.\[90\] There must be a general appearance to raise the objection of want of capacity to sue.\[91\]

Misionider of parties can, in some jurisdictions, be reached only by motion.\[92\]

fendants, and it is apparent from record that answer, the objection was waived, since only they are necessary and indispensable, the supreme court of its own motion will decline to act until such persons have been brought in, though the objection was not urged below. Gates V. Union Naval Stores Co. \[Miss.\] 45 S 979.

\*85 Right of receiver of Insolvent corpora to maintain action to enforce statutory liability of stockholders may be tested by demurrer. Hammond v. Cline, 170 Ind. 452, 84 NE 827. Objection that receiver is made party to petition to enforce mechanic's line without leave of court may be taken by demurrer. Further Engineering Co. v. Detroit F. & S. R. Co., 152 Mich., 582, 15 Det. Leg. N., 280, 116 NW7 376. Where it appears from face of complaint that right to maintain action is not in plaintiff but in another, defect may be raised by demurrer. Hunt v. Monroe, 82 Utah, 428, 91 P 269.
\*86 The proper method of questioning authority to sue is by rule to show authority. Motion to dismiss not proper means to question authority to sue in behalf county. Harigan v. Peoria, 128 Ill. App. 651. Procedure to question the authority to institute and prosecute a suit must be timely. Comes too late after merits have been determined by the court. Id. Objection that party sue is not real party in interest is waived if not raised by demurrer or answer. Cole v. Utah Sugar Co. \[Utah\] 99 P 681. Where persons having substantial rights petitioned for writ of mandamus, and defendants answered to merits without objection, they waived objection that action should have been brought in name of people on relation of petitioner. Town of Scott v. Artman, 287 Ill. 394, 86 NE 595. Objection that executors had no right to sue to enforce trust in land because estate had been distributed waived when not raised by demurrer or answer, under Code Civ. Proc. $ 434. Bollinger v. Bollinger \[Cal.\] 99 P 196.
\*Want of capacity to sue, if shown on face of petition is waived unless taken advantage of by demurrer. Geurty v. Bearas \[Neb.\] 118 NW 1077; Loneks v. Davies, 43 Colo. 490, 96 P 191. Capacity of contestants of local option election to maintain contest waived where no plea in abatement or other objection was made. McCormick v. Jester \[Tex. Civ. App.\] 115 SW 278. Objection to legal capacity of plaintiff to sue waived if not raised by demurrer or answer. Trimmier v. Atlanta, etc., R. Co., 81 S. C. 203, 62 SE 209. Where failure of plaintiff to pay its corporate license fee last due (Laws 1807, a 140, p. 270) was not raised by demurrer or 12 Cur. Law. PARTITION SS 1.1195

In other jurisdictions, the objection may be raised by demurrer, when apparent on the face of the pleading, or by an appropriate plea if it does not so appear."3 The objection is waived by failure to raise it in the proper manner "4 or by a plea to the merits."5

Misnomer of plaintiff should be raised by plea in abatement."6

Objections for the purpose of saving questions for review by appellate courts are elsewhere discussed."7

**PARTITION.**

**4 1. Nature, Right, and Propriety 1193. The Right, and Parties Entitled, 1193.** **8 5. Commissioners or Referees and Their Proceedings, 1202.** **Statutory Sale for Partition, 1195.** **What May be Partitioned, 1195.** **Property or Proceeds, 1203.** **\[**3**\]\*\*\*\*.** **\[**4**\]\*\*\*\*.** **\[**5**\]\*\*\*\*.** **\[**6**\]\*\*\*\*.** **\[**7**\]\*\*\*\*.** **\[**8**\]\*\*\*\*.** **\[**9**\]\*\*\*\*.** **\[**9**\]\*\*\*\*.** **\[**10**\]\*\*\*\*.** **\[**11**\]\*\*\*\*.** **\[**12**\]\*\*\*\*.** **\[**13**\]\*\*\*\*.** **\[**14**\]\*\*\*\*.** **\[**15**\]\*\*\*\*.** **\[**16**\]\*\*\*\*.** **\[**17**\]\*\*\*\*.** **\[**18**\]\*\*\*\*.** **\[**19**\]\*\*\*\*.** **\[**19**\]\*\*\*\*.** **\[**17**\]\*\*\*\*.** **\[**18**\]\*\*\*\*.** **\[**19**\]\*\*\*\*.** **\[**19**\]\*\*\*\*.** **\[**18**\]\*\*\*\*.** **\[**19**\]\*\*\*\*.** \*\*\[**19**\]\*\*\*\*.

scope of the remedy is now largely prescribed by statute,8 but it may be stated generally that joint tenants and tenants in common having a legal estate may have partition,9 but not while holding the common property under an unexpried lease from their ancestor.10 Although since the statute of Henry VIII life tenants may have partition,11 they are entitled to no relief against the remaindermen unless by statute.13 The general rule seems to be that a cotemant cannot enforce partition of a part only of the common lands, leaving the rest undivided, but the entire property must be included in the partition,13 but by the weight of authority this does not apply to severable tracts.14 Assuming that all tracts held in common should be included, it does not follow, that a tract should be included, the legal title to which is in the plaintiff.14 Parties entitled to share in the proceeds of the sale of lands upon the happening of certain contingencies cannot maintain partition.16 Partition cannot be had of lands held adversely or the title to which is in dispute 17 as partition is not the proper proceeding in which to settle a disputed title,18 but constructive possession is sufficient to the statute of Henry VIII life tenants have been allowed to maintain an action to enforce partition of land held jointly. This does not entitle as to relief against the remaindermen.18 Versole v. Combs \[Ky.\] 112 SWV 1132.

Footnote 18: The author is grateful to the anonymous referee for the support of the work of the University of Illinois at Urbana, where he was supported by the National Science Foundation of the United States.

12 Cur. Law. PARTITION SS 1.195

justify a partition, and between cotenants the possession of one is the possession of all,19 except there has been actual ouster or the possession be hostile to the rights of others.20 A trustee with power to sell may not authorize partition,21 but the holder of the legal estate may without interference on the part of his cestiu que trust, or those having a contingent interest, for the better performance of his trust, have partition in order to have the interest set aside in severalty.22 The statutory provisions for partition apply only to real estate in Kansas.28

\_Statutory sale for partition.\_See 16 C. L. 1090.--The jurisdiction to order a sale is purely statutory,24 and the proceedings are governed entirely by the statute.25 In Kentucky parties having a vested interest in possession are entitled to a sale.26 In Tennessee any one of the owners in remainder or reversion is entitled to a sale; 27 but it is not contemplated that the life tenant of the whole premises can maintain a bill against the reversioner or renamiderman to effect a sale in order that the life tenant's estate may be valued and paid to him in money.28

\_What may be partitioned.\_See 10 C. L. 1090.--It is no objection to partition that land is subject to an easement,29 lien,30 or lease.31 Any property of a personal character owned in common may be partitioned where the nature of the property is such that its division in kind is possible and practical.32 Partition will be refused a lessee with merely a right to enter and prospect for oil or gas which gives no title to the same when found; 33 and so a tenant with a revocable lease of lands for purpose of drilling for oil and gas cannot compel partition of the oil and gas apart from the land nor of the land itself,34 and where different parties have different leases of oil and gas from different co-tenants, neither can have partition.35 Mining property is not as a rule susceptible of division and partition thereof must generally result in a sale,34 but in some jurisdictions must be divided unless it appears that it cannot be done without great prejudice to the owners.37 While the homestead is occupied as a home for the family and its character as such is maintained, partition will not lie,38 but it has been

See post, SS 4, as to right to try title to land in partition.

19. Cannon v. Stevens (Ark.) 115 SWV 388.

01. The answer of defendant stating that she was in adverse possession of the land states a good defense which if proved by the evidence defeats the jurisdiction of the court. Cannon v. Stevens (Ark.) 115 SWV 388. At common law a tenant in common who had been dissiased could not have the writ of partition. Roll v. Everitt (N. J. Err. & App.) 11 A 263.

01. Trustee in bankruptcy. Hobbs v. Fraierier (Fla.) 47 S 829.

01. Kenyon v. Davis, 219 Pa. 585, 69 A 62.

01. Beardsley v. Kansas Natural Gas Co. (Iscan.) 96 P 859.

01. McDaniel v. Louisville & N. R. Co. (Ala.) 46 S 981. Sale authorized by Civil Code of Practice, 8 490, sub. $ 2. Adams v. De Dominguez (KJ.) 112 SWV 685. The statutory right of sale in Tennessee is somewhat broader than the right of partition. Holt v. Hamlin (Tenn.) 111 SWV 241.

01. It is unnecessary to give bond to non-resident defendants, Adams v. De Dominguez (KJ.) 112 SWV 663. Tennessee acts 1907, p. 1371, c. 403, permitting a life tenant to sell lands without the consent of the remaindermen, is constitutional. McConnell v. Bell (Tenn.) 114 SWV 203.

01. It is immaterial that one party is a life tenant. Walsh v. Parr's Ex'r, 33 Ky. L. R. 242, 110 SWV 300.

01. Holt v. Hamlin (Tenn.) 111 SWV 241.

01. Holt v. Hamlin (Tenn.) 111 SWV 241.

01. Chl v. Meknight (Tenn.) 115 SWV 134.

01. Thompson v. De Snyder (N. M.) 94 P 1014.

01. One tenant paid taxes and had a lien' therror on the land as against the others.

Roll v. Everitt (N. J. Err. & App.) 71 A 263.

31. Coal lease. McMullen v. Bicker (V. Va.) 60 SE 1093. The lease being material only in determining whether partition should be sale or in kind. Id.

01. Oil and gas lease. Beardsley v. Kansas Natural Gas Co. (Iscan.) 96 P 859.

01. SWrtoff Oil & Gas Co. v. Shipman, 233 III. 9, 84 NE 53.

01. Watford Oil & Gas Co. v. Shipman, 233 III. 9, 84 NE 53.

01. Lessors might have partition and grant their leases to operate in their port- tion. Zeglier v. Brennemann, 237 Ill. 15, 86 NE 597.

01. Manley v. Boone (C. C. A.) 159 F 683.

01. Stat * 39. Smith v. Nelson, 121 La. 170, 46 S 200, \[the result of the partition. Ryan v. Benja-

- 40. A husband owned an undivided half
- 41. Interest in land not subject to partition in kind and the other half interest as unsurfucuary. The owner of the naked title to the half so held cannot force the sale of either the naked or the perfect title to effect partition. Smith v. Nelson, 121 La. 170, 46 S 200, \[the result of the partition. Ryan v. Benja-
- 42. A husband owned an undivided half
- 43. Trustees of Common School Dist. No. kind and the other half interest as unsurfucuary. The owner of the naked title to the half so held cannot force the sale of either the naked or the perfect title to effect partition. Smith v. Nelson, 121 La. 170, 46 S 200, \[the most\] of his children and that bo-
- 44. And a wife cannot have partition of lower cut from such estate by a purchaser of the timber from the husband. Jones v. Smith & Co. \[N. C.\] 62 SE 1092.
- 42. Cabins, dams, sluices, and ditches on mining property. Manley v. Boone \[C. C. A.\] 159 F 683.
- 43. Rivers v. Atlantic Coast Lumber Corp.,
- 41 S. C. 492, 62 SE 855.
- 44. Mehnrt v. Draper, 138 Mo. App. 50, \[112 SW 709.
- 45. By statute. Manley v. Manley, 61 Misc. 183, 112 NYS 771. Administration
- 46. A trustee who is directed by a will to pending upon a father's estate does not cut off the right of his heirs to partition land
- inherited from the mother. Clements v. Marury \[Tex. Civ. App.\] 110 SW 185. The mere fact that a daughter was granted land during the father's lifetime does not prevent her sharing in partition of his estate at his death in the absence of evidence that she took the deed in full of her claim or rights against the estate. Nelson v. Brown \[Tex. Civ. App.\] 111 SW 1106. The issue of deficiency of personal assets to pay
- 47. Decolects debts raised in the surrogate's court is wholly irrelevant to a partition proceeding and will not be stayed to await
- 48. Where all the 19 Cur. Law. PARTITION $ 3.

**SS 2.**\_Jurisdiction and venue.\_54.\_See 10 C. L. 1002.\_The jurisdiction was purely equitable at common law but jurisdiction has now been granted to the law courts by statute in most states,58 but the statutory remedy is usually cumulative to the equitable 58 and law courts and the chancery courts have concurrent jurisdiction for the partition of real estate,57 though where the remedy at law is adequate equity will not assume jurisdiction.58 Where the United States circuit court has possession of the res sought to be partitioned, no other court can take jurisdiction of any action or claim affecting it and the court can determine all matters relating to the parties, regardless of the question of citizenship.59 The power to make partition or division of personality belongs exclusively to courts of equity.60 Jurisdiction existing at the time the action was commenced cannot be lost by a subsequent act of a cotenant.61 Where jurisdiction of partition proceedings is given an orphans' court only after four weeks' notice, the orphans' court acquires no jurisdiction after notice until the petition is presented.62 In Alabama the probate court has no jurisdiction in partition where a bona fide adverse title or claim is asserted by any one.63

\_Service of process.\_See 10 C. L. 1240.\_An absentee who is joint owner of real property may be made a party in partition of the property by substituted service,64 and the Texas statute provides for service by publication on unknown heirs.65

\_Venue.\_See 10 C. L. 906.\_The venue of a statutory proceeding for partition is in the county where the land lies.66

**SS 3.**\_Procedure to obtain partition.\_67.\_See 10 C. L. 1002.\_The suit must be commenced within the period limited by law for the recovery of reality or the possession thereof,68 but laches will not bar a suit unless prejudice has resulted.69

\_Parties.\_See 10 C. L. 1002.\_All the parties in interest must be before the court so as to be bound by its decree,70 and any one so interested is entitled to intervene.71 A

1887, and Sayles' Ann. Civ. Code 1897, arts.

1882, 2198, suit for partition will not lie in held there was no pending cause in the district court where estate is in process of administiration in probate court, which under statutes above has exclusive jurisdiction. Wilkinson or. McCart (Tex. Civ. App.) $ 3176, and 1907, $ 5220, conferring juris-116 SW 400. Rule held to apply although all that remained to be done in probate court was to settle administrator's account. Id.

54. Search Note: See notes in 6 C. L. 900; 69 L. R. A. 692.

See, also, Partition, Cent. Dig. $ 91-110; 65. Dig. $ 37-43; 30 Cyc. 169-174, 312-321; 21 A. & E. Enc. L. (2ed.) 142; 15 A. & E. Enc. P. & P. 774, 824.

55. The district courts have jurisdiction in some states to try partition suits. Richardson v. Ruddy (Idah) 98 P 842; Kazeeb v. Nunnaker \[Nb.\] 118 NW 464; Collins v. Crawford, 214 Mo. 167, 112 SW 538.

01. Dunbar v. Bourland \[Ark.\] 114 SWV 467.

01. Circuit court. Dunbar v. Bourland \[Ark.\] 114 SWV 467.

01. A bill in equity to partition property of tenants in common under a will does not lie. Moseley v. Boister, 201 Mass. 135, 87 NE 606.

01. City of New Orleans v. Howard \[C. C. A.\] 160 F 333.

01. Beardsley v. Kansas Natural Gas Co. \[Kan.\] 86 P 859.

01. Cotenant's holding cannot be converted into an adverse one after action begun. Cannon v. Stevens \[Ark.\] 115 SWV 385.

01. Notice given of partition in orphan's court, but before filing the petition pro 1198 PARTITION SS 3.12 Cur. Law.judgment rendered without all the persons in interest being made parties is void." Whenever it becomes apparent that there are part owners who are not parties, the trial should be suspended until they can be made." An order should only require the joining of those who appear to be necessary, otherwise it is too broad." A trustee may be appointed to represent unaccertained parties," and curator ad hoc may be appointed to represent the interests of an absentee."

\_Pleading and evidence.\_See 10 C. L. 1993--The right to partition must be fully presented in the petition." It is not necessary to pray for a sale in lieu of partition." Either written evidence of the title should be filed or the petition must state facts which show title and these facts must be proved." If property sought to be partitioned is not of a class for which partition is provided for by statute, then the petition must state facts showing sufficient reason for equitable interference." A description of land in a petition which is sufficiently definite when supplemented by parol identification is not limited by a subsequent, more particular description." An allegation

counting between partners and partition of

to a stranger by some of the cotenants but land, one who had sold his partnership in-

not by all, such stranger is a proper party

terests but still held title to the land was

and entitled to intervene in partition pro-

a necessary party. Moses v. Krauss, 80

ceedings. Right to flow part of land granted

Miss. 618, 44 S 162. The Missouri statute

to A by B and C, but D the other owner,

contemplates that those having a present

or future, a vested or contingent interest,

and it was sought to set off the land in

should be made parties. Donaldson v. Allen,

which A had a right to flow to D. Held A

213 Mo. 293, 11 SWV 1128. The trustee is

had a right to intervene. Jeter v. Knight,

the proper party to partition of reality held

in trust. Kenyon v. Davis, 219 Pa. 585, 69

72. Hess v. Webb \[Tex. Civ. App.\] 113 SWV

A 62. In order to sell the interest of re-

618.

malerment they must be made parties.

73. Evidence did not show that the par-

Cramton v. Rutledge \[Ala.\] 47 S 214. It is

proper to join as a party in partition an

abutor claims an easememem or title in a

dead. Hess v. Webb \[Tex. Civ. App.\] 113

part of the land. Johnson v. Aleshire, 114

NYS 388.

Parties held not necessary: In an action

by lessees for a partition of their interests,

the lessons are not necessary parties. Oil

and gas lease. Beardsley v. Krauss Natural

parties. Johnson v. Aleshire, 114 NYS 398.

Gas Co. \[Kan.\] 96 P 859. In a statutory action for a sale it was held that where the

son holding a life estate in the undivided

interest, and his children, and the testark's

other children, were parties, it was unneces-

sary to make the testark's other children?"

76. Code Prac. arts. 983, 964, 47, 62, 65, 68,

Issue parties, their interests being to re-

77. Kakebeer v. Nunemaker \[Neb.\] 118 NYW

242, 110 SWV 300. The trustee is the proper

party to partition proceedings of the real

estate held in trust and it is unnecessary

authorized and void. Davis v. Davis \[Tex.

to join the ecstui qui trust or appoint a

Civ. App.\] 112 SWV 948. Petition which

trustee for subsequent unborn beneficiaries.

failed to allege existing trust held to be

Testator gave a portion of his estate in

rather meagre but still sufficient under the

trust for benefit of one son to be paid over

circumstances. Collins v. Crawford, 214 Mo.

to his son's children. A daughter brought

167, 112 SWV 638.

partition proceedings against entire estate

78. Menard v. MacDonald \[Tex. Civ. App.\]

and it was held that trustee was the proper

115 SWV 63.

party to be joined \_rs a defendant. Kenyon

v. Davis, 219 Pa. 585, 69 A 62. It is prob-

ably not necessary to join an incumberoner,

such as a mortgage or judgment creditor

having a lien on the interest of a cotenant.

Jeter v. Knight, 81 S. C. 285, 62 SE 259.

71. Under the statutes of New Mexico, any

one claiming a right in the land has a right

to intervene in partition. Parties in pos-

session under a Spanish grant in 1760

tilied to intervene in partition between par-

ties holding under a Spanish grant of 1800.

Baca v. Anaya \[N. M.\] 94 P 1017. Where a

right in a part of the land has been granted

limited by a subsequent particular deserip 12 Cur. Law. -- PARITION SS 3. -- 1199 of possession is not necessary by one having an interest in fee. \[82\] Where facts alleged in an answer clearly show a tenancy in common, a plea setting up a title superior to that of the complaint is bad. \[84\] As a general rule a cross bill in a partition suit is neither necessary nor proper. \[85\] The time for answering rests largely in discretion. \[86\] The burden of establishing the fact of failure of title in the plaintiff is on the defendant. \[87\] A cotenant commencing partition proceedings cannot withdraw the same without consent. \[88\] Under North Carolina statutes, where partition proceedings are begun before a clerk who transfers to the judge, the judge must dispose of it on the merits, regardless of any irregularities in the proceedings before the clerk. \[88\] -- _Mods and time of trial. \[89\]_ to C. L. 1994--On a partition bill, if title to land is in dispute and the question must be determined at law, the complainant will be required to establish the title at law before proceeding, but equity will in general retain the bill until this is done. \[88\] The share or interest of each claimant must be determined by court or jury, and thus the partition is made in accordance with such determination and commissioners are appointed to make the partition in compliance with the decree and the law, \[88\] for the jury has no authority to find how lands shall be divided much less to find they are incapable of division and determine what each one shall have in money for his interest. \[91\] The evidence on the question of whether or not the plaintiffs are all the surviving heirs is for the jury. \[89\] The judge need not view the premises before ordering partition. \[88\] -- _Costs and attorney's fees. \[89\]_ to C. L. 1994--Costs in partition are in the court's discretion, \[94\] and the ordinary rule that costs must be taxed in favor of the prevailing party is not necessarily binding on the chancellor. \[88\] Reasonable counsel fees \[89\] necessarily expended \[88\] should be allowed to the prevailing party, \[88\] but no allowance tion consisting of government survey num- \[92\], Hess v. Webb \[Tex. Civ. App.\] 1 can be made to a party setting up no substantial claim,"\* nor can the allowance exceed the amount prayed.1 A demurrer based on the plaintiff's request for counsel fees, but going to the whole bill, is properly overruled.2

Footnote 12: http://www.sds.org/

SS 4. _Scope of relief in partition._"See 10 C. L. 1005.-At common law a suit in partition was merely a possessory proceeding and title could not be tried,4 but many statutes give jurisdiction of all questions of law affecting the legal title which may arise in the proceedings,5 and it has been held proper in bona fide partition proceedings to determine conflicting claims to the property to be partitioned,6 and in many states all matters pertinent to the case may be determined.7 The court if it is practicable should so order partition as to give the benefit of any improvements made on the premises to him who may have made them,8 but there must be no impairment of the rights of cotenants,9 and no allowance will be made for improvements by a ten-ant in possession without deducting the rental value for the period of possession.10 On bills for partition in kind prior to statutes permitting sale, etc., equity could. compensate for an inequality by a pecuniary compensation charged on the land by way of rent for servitude, direct an account of rents and profits, and award compensation for improvements,11 and now under the statutory right of decreeing a salo-in partition the court may allow a party for the value of the lands as enhanced by improvements over and above their value as unimproved in addition to his share of the value as unimproved.12 Where a tenant in common has burdened the common property, justice and equity demand that partition should be, if practicable, so made as to allot to such tenant that part of the land subject to the incumbrance.18 Where one tenant in common conveys a specific portion entire of the whole tract, his vendee should be allowed the portion sold him in its entirety if this can be done without detriment to the rights of others.14 Allowance cannot be made.for increased value of land due to improvements by a tenant in possession, unless claimed in a cross complaint.18 Partition is made subject to existing mortgages 16 and liens,17 and a mortgage is bound by partition proceedings;18 and where in partition by heirs some of the nonresident defendants constructively summoned were not before the court on a cross petition of a mortgagee, this fact did not invalidate the sale, the court properly requiring a bond by the mortgage before distributing the proceeds.19 A judgment in favor of parties who have sold their interest cannot be given for the purchase money.20

\_Operation and effect of decree.\_See 10 C. L. 1009--A decree is not defective because of a failure to make general findings of facts upon which it is based.21 The interlocutory decree determines the right to have partition.22 The only effect of the final decree of the court under the Alaska statute is to confirm the report of the referees appointed to carry out the order of partition.23 Where a partition decree

13. Right granted to flow land by all but -- make partition in such manner as to pre-one tenant. Subsequently partition brought and it was sought to set off this portion to -- cause all equtitles without Impatring the tenant not joining in the grant for purpose of creating grantee. Jeter v. Knight, 81 S. C. 265, 62 SE 259.

01. Moonshine Co. v. Dunman \[Tex. Civ. App.\] 111 SW 161.

01. Overturn v. Martin, 170 Ind. 208, 84 NE 631.

01. In an action for partition of mortgaged property, where it appears that the mortgage covers other property not included in the proceedings, the defendants in the absence of any demand by the mortgage cannot set up by cross bill that the mortgage is a lion on both tracts of land and ask that the rights therein be determined. Dickson v. Dickson, 232 IL 677, 83 NE 1067.

01. Where there is in equity a lien upon property in favor of a third party, it is error to decree partition without Impressing the lien thereon. Father deced land to his children, the agreement being that the should have a certain sum of money secured by a lien on the property. Affell v. Affell, 235 IL 27, 85 NE 206. Under the Massachusetts statute, on partition an attaching creditor's lien remains in full force after judgment of partition on the portion of the debtor, but this does not extend the time of the lien and it is discharged if the land is not seized within thirty days after judgment, and in case of sale the creditor may enforce his lien by a bill in equity brought within 30 days, but mere notice in Insoffien. Whittle-more v. Swain, 198 Mass. 87, 84 NE 807.

01. Tidball v. Schmeltz, 77 Kan. 440, 94 P 79.

01. Adams v. De Dominguez \[Ky.\] 112 SW 662.

01. Kindlea v. Kosub \[Tex. Civ. App.\] 110 SW 78. The court will so far as possible 19 Curr. L--76.

1203 PARTITION $ 5. 12 Cur. Law. had been held to convey only an undivided half interest in a life estate because the deed contained no words of inheritance, a subsequent order modifying the decree declaring that the grantee took an undivided half of the fee subject to dower rights constituted a reformation of the deed entitling the grantee to a share of the proceeds of a sale proportional to a fee interest instead of a life estate.24 By statute in Virginia the decree vests the ancestor's title in the several co-owners without any conveyances,25 and the statute is expressly made retroactive.26 A decree of partition of land held by the decedent in fee passes a fee to the cotenants, although not so stating in terms.27 Where partition of a decedent's land was brought and part of such land lay under water, the referee's deed of land along the water front carried title to the land under water, although not specifically mentioning or describing it.28 Upon partition of land all easements apprutenant thereto pass without being mentioned in the decree in California.29 One who under partition decree holds an enforcible contract for the sale of land is subject to taxation thereon.29

SS 5. \_Commissioners or referees and their proceedings.31--See 10 C. L. 1098--The report of the referee merely presents the question as to whether the referee made the partition in accordance with the interlocutory decree 32 and may be confirmed, set aside or modified by the court.33 Evidence directed to the question of whether the referee made partition in accordance with the decree should be given at the hearing of objections to the referee's report.34 Under the Alaska statutes, the referees must make the division of land for the purpose of carrying out the order of partition.35 In order to overthrow the valuation made by commissioners, it must be shown to be so grossly incorrect and unequal as to justify an inference of unfairness and improper motive.36 A party dissatisfied with the rate at which land is recommended to be assigned to another party may shake the proposed assignment and bring the property to a sale by making and securing a bid materially in advance of that fixed by the commissioners.37 Where there was a separate interest in timber on land in partition and it was deemed best to sell them together, it was proper to order a refer-

33. By statute. Richardson v. Ruddy \[Idaho\] 98 P 842. 34 Richardson v. Ruddy \[Idaho\] 98 P 842. 35 Under the Alaska statute as to partition providing for referees to make the division, the court cannot itself make the wife as heir. Wright v. Johnson, 108 Va. 361 vision of the property between the parties except in the indirect mode of confirming the report of the referees appointed for the purpose of carrying out the order of partition. Manley v. Boone \[C. C. A.\] 159 F 633. 362. 363. 364. 365. 366. 366. 367. 368. 369. 369. 370. 371. 372. 373. 374. 375. 376. 377. 378. 379. 380. 381. 382. 383. 384. 385. 386. 387. 388. 388. 389. 389. 390. 391. 392. 393. 394. 395. 396. 397. 398. 399. 398. 399.

12 Cur. Law.

PARITION SS 7.

1203

ence as to the relative value of land and timber." Statutes usually regulate the fees of commissioners."

SS 6. _Mode of partition and distribution of property or proceeds._" See 10 C. L. 1097 Partition in kind should be made where possible, giving due consideration to all interests," but property which cannot be divided into metes and bounds without manifest injury to same may be sold and proceeds partitioned." It is a mooted question whether in strict equity sale of real estate could be made in partition, but the universal practice has been to follow the statute and allow such sales in equitable partition."

_Distribution._ See 10 C. L. 1097.--If personal property is not susceptible of division in kind, then a distribution will be made which seems to be most nearly equivalent to possession in severalty." This may be done by a sale and division of the proceeds 45 or by an actual division of the property or otherwise, as may be equitable."

\_Owelty.\_See 10 C. L. 1097.--Where a sale is necessary, each cotenant is entitled as of right to have the property offered for sale upon such terms and conditions as will insure as nearly as may be the realization of its full value." It is usually proper for a court to fix a minimum price in an order of sale," but under the New York Code the court has no right to fix the minimum sale price without the consent of the parties." A sale is not affected by the request for a dismissal of the action after sale by one who has acquired the interests of all the tenants." Under the Kansas Code where one or more of the parties in partition elect to take the property at its appraisement the court may order the sheriff to give a deed to such parties upon payment to the others of their share of the appraised value;" or where none of the parties elect to take the property at the valuation, or where several elect to take the property at the valuation in opposition to each other, the court may direct the sheriff to sell as in sales of reality on execution." Partition sale providing for payment of costs out of the proceeds is not a sale to satisfy costs, and void as against nonresident defendants cited by publication only."

**SS. Rivers v. Atlantic Coast Lumber Corp.,**

proper to order the sale of land and timber 11 S. C. 492, 62 SE 555.

**SS. Under Code 1904, $ 3404, providing for compensation of commissioner of sale allow-**

v. Atlantic Coast Lumber Corp., 81 S. C. 492, since of $200 attorneys' fees to commissioners 62 SE 855. If property is incapable of dilations to fees allowed by statute, for dilution, commissioners should report that difficulties he overcame, service he rendered and increased price he obtained through vigilance, etc., held erroneous. Young v. Young \[Va.\] 63 SE 748.

**40. Search note: See note in 8 Ann. Cas.**

405. See, also, Partition, Cent. Dig. **11** 211-225, 265, 273-218; Dec. Dig. **13** 76-79, 92-38; 30 Cyo. 233-235, 287, 238, 247, 248, 250-265, 270-271, 274, 276, 282, 282, 287-289, 301-312; 21 A. & B. Enc. L. (ed.) 1183, 1179, 1212; 15 A. & B. Enc. P. & P. 819.

001. Smith v. Stansel \[MIas.\] 46 S 638; Rivers v. Atlantic Coast Lumber Corp., 81 S. C. 492, 62 SE 855. A sale is only ordered where it will promote the interest of all parties better than a partition in kind. Where only two parties were interested and the land amounted to 100 acres, it was held erroneous to order a sale. Smith v. Stansel \[MIas.\] 46 S 638.

001. McNeeley v. Cincinnati, 7 Ohio N. P. (N. S.) 441. Under the facts it was held
     Partition $ 7.

12 Cur. Law.

Notice.See $ c. L. 1251--Sale must be preceded by a notice required by statute $50 but personal notice is not always required.56

Terms of sale of minor's interests.See $ c. L. 1257--The court may in its discretion appoint a guardian ad litem for a minor party to partition,"7 and where a partition sale is made of land, the share of an infant is not to be paid by the purchaser but remains a lien on the land till majority or until the infant's guardian gives bond to account for his share.58

the same footing as execution sales; the purchaser buys at his peril." If a purchaser refuses to take the property, it may be sold again and the first bidder is liable for any loss by summary proceedings without a jury." Where a sale has been made under a partition judgment, it is not void under provisions of Nebraska Code although the judgment is reversed on appeal." A purchaser cannot repudiate his bid for mere possibility of defect of title," slight encroachment of adjoining buildings "2 nor other small defects susceptible of being adjusted by a pecuniary allowance."

SS 8. \_Appeal and review; vacation of sale.\_14_See 10 C. L. 1098--A final decree in partition proceedings can be impeached only for fraud by the party who obtained it and not in a collateral proceeding." That a better price may be obtained on resale is no ground for vacation," and where a sale is made in accordance with the law properly advertised and regularly conducted, it will not be set aside because of the price realized." Where no exception to a master's report advising sale is made, the report will not be reviewed." Where parties have not been served with notice and are not in court, they waive nothing by failing to except to the report of the commissioners." Where a court had jurisdiction to determine questions of title, it is conclusively presumed to have exercised its right to determine all such questions arising between the parties," and its orders as to discretionary matters will not be interfered with." Where parties consent to the decree upon which partition is made, the court will not set it aside on appeal by a consenting party." The supreme court on appeal from the district court may direct the court as to the partition of lands." A partition decree is not susceptible of correction without jurisdiction of all the parties to it." The statutes of North Carolina provide that any party after con

68. McNamee v. Cole \[Mo. App.\] 114 SVV $ 5583 (Pierce's Code, $ 1228) and Laws 1899, 46. $ 85, $ 6, fact that higher or better bid is submitted after sale is not 46. Amount of liability of a purchaser failing to complete the sale is under the Missing confirmation of execution sale, but there must be some irregularity in the proceedings and the bid at a subsequent sale, regardless concerning the sale itself. Graves v. Graves of the different description of the property. \[Vwash.\] 100 P 164. $ 77. Evidence of the conduct of a sale in contract is not liable under the provisions of the Missouri statute if he was induced by bid by decei on the part of the officer. Id. $ 608. Kazebeer v. Nunemaker \[Neb.\] 118 NWV 846. $ 71. A purchaser at partition sale cannot avoid his bid for land, title to which was derived more than 40 years previous by a feed of hefs, on the ground that there might have been an unknown insane or minority helir. Wanser v. De Nyse, 115 App. Div. 209, 103 NYS 810. $ 72. Removal after sale. Uebelacker v. Uebelacker, 112 NYS 527. $ 73. Land advertised as 102 ft. $ 1 inches deep, actually seven inches of such measures. Uebelacker v. Uebelacker, 112 NYS 527. $ 74. Noet because of a item for taxes upon a part of the land for an allowance can be made for the part to which title fails. Id. $ 74. Search note: See Partition. Cent. Dig. $ 362-374, 424-439; Dec. Dig. $ 107, 113; $ 50 Cyc. 276-381, 324-383; 21 A. & E. Enc. L. (2ed) 1206. $ 75. Cannot be impeached in electent proceeding for alleged failure to show all of hefs interested were before court, etc. Bursey v. Lyon, 30 App. D. C, 597. $ 76. Under Ballinger's Ann. Codes & St., 46 S 497.

# Partnership $ 1.

12 Cur. Law.

firmation of partition shall be allowed to impeach the proceedings and decrees for mistake, fraud or collusion by "petition in the cause." \[84\] In Indiana any person not served with process may obtain a review of the judgment within one year after the confirmation of the judgment, and is not confined to the statutory remedy for the review of judgments generally." \[86\]

_Laches._\[86\] 10 C. L. 1098

_Yacation of sale._\[86\] 10 C. L. 1098

$ 9. _Voluntary partition._\[87\] 10 C. L. 1098

There may be a parol partition of lands provided there is sufficient performance to take the agreement out of the statute of frauds." It is requisite to a valid parol partition that all the cotenants be parties to the agreement and to the act of partition " and the partitions must be clearly proven." \[80\] 11

## Partnership

What Constitutes, 1206. Essential Ele- D. Application of Assets to Liabilities, 1207. Intent as Test, 1217. Intent as Test, 1208. Illustrations, 1208. For- $ 5. Rights of Partners Inter Se, 1217. 8 6. Actions, 1221. 1220. Stockholders & By Firm or Partner, 1221. 1221. 1210. Partners is a Mixed & Test, 1222. 1220. 1220. 1221. 1220. 1221. 1221. 1222. 1223. 1224. 1225. 1226. 1227. 1228. 1228. 1229. 1221. 1221. 1223. 1224. 1225. 1226. 1227. 1228. 1229. 1229. 123. 123. 123. 124. 123. 124. 125. 125. 126. 127. 128. 129. 129. 120. 121. 121. 123. 124. 125. 126. 127. 128. 129. 121. 129. 120. 121. 121. 121. 123. 124. 125. 126. 127. 128. 129. 121. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 121. 129. 121. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 121. 129. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 121. 129. 121. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 121. 129. 121. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 121. 129. 121. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 121. 129. 121. 121. 122. 123. 124. 125. 127. 128. 129. 121. 129. 121. 121. 122. 123. 124. 125. 126. 127. 128. 129. 121. 129. 121. 121. 122. 123. 124. 125. 127. 128. 129. 121. 129. 121.

12 Cur. Law. PARTNERSHIP SS 1.207 exist as to particular transactions although there is no general partnership." A mining partnership may exist between persons although all of them may not have a direct or present interest in and to the properties themselves, if they have an interest in the working of the property or in carrying on the mining operations." Essential elements.See 10 C. L. 1108--The requisites of a partnership are that the parties must have joined together to carry on a trade or adventure for their common benefit," each contributing property or service," and having a community of interest in the profits.1 According to the modern conception of a partnership as a joint enterprise with a view to gain, it is not essential that there be an agreement to share losses, but such an agreement will be inferred from the agreement to share the profits.2 While an agreement to share profits furnishes no test of partnership, the absence of such an agreement is conclusive as to the nonexistence of the relation." Parties may engage in a joint enterprise without becoming partners, although each may receive a share in the profits; * there must be an interest in the profits as such, and not as a mere means of payment for labor or services performed," or of money advanced." Agency is not a test of partnership 7 nor is the fact that one party may bring suit in equity for an accounting.8 No duration as to time need be specified in the agreement.9 Voluntary associations owning property and conducted for the mere 1898 la a distinct entity and may be ad- judged a bankrupt, irrespective of any ad-judcation against its individual members. Itested in manufacture and sale of a fixed. MIIls v. Fisher & Co. (C. C. A.) 159 F 897. A partnership may occupy position of servant or licensee and be barred thereby from partners. Chicago Die & Elec. Co. v. Nathan, maintaining forcible entry and unlawful 141 Ill. App. 171.

Footnote 12: The author is grateful to the author of the 1990s.

Footnote 13: The author is grateful to the author of the 1990s.

Footnote 14: The author is grateful to the author of the 1990s.

Footnote 15: The author is grateful to the author of the 1990s.

Footnote 16: The author is grateful to the author of the 1990s.

Footnote 17: The author is grateful to the author of the 1990s.

Footnote 18: The author is grateful to the author of the 1990s.

Footnote 19: The author is grateful to the author of the 1990s.

purpose of convenience or social relations, but not for the purpose of accumulating or sharing profits, are not partnerships.10

_Intent as test_.See 10 C. L. 1103--The intention of the parties is controlling on the question as to whether partnership exists.11 This means that the parties must have intended to make such stipulations as in law constitute a partnership, and not that they intended the conclusion without regard to its necessary conditions; 12 if they have in fact stipulated for the rights of partners, an express agreement that they shall be partners is not necessary.13 The intention is to be determined by the contract and the surrounding circumstances.14

_Illustrations_ See 10 C. L. 1104 of the foregoing principles are cited in the appended note.18

10. Farmers' telephone company organized for convenience of owners without objects and conduct. Briggs v. Kohl, 132 jed of profit not partnership. Meinhart v. Ill App. 484. Where it was sought by third party to have a certain agreement construed as forming partnership, provision therein for purpose of controlling live stock market, give agents to sell" held entitled to weight and capital embarked in definite business for which path relation. Title Insurance & Trust Co. others, not a partnership. State v. Kansas City Live Stock Exch., 211 Mo. 181, 109 SWP 675.

01. Evidence held to show that parties did not intend partnership in agreement to sell lands. Reed v. Engel, 237 Ill. 628, 86 NE 1110. Partnership is never created by implication or operation of law, apart from express or implied intention to constitute relation. Id. Agreement in form of lease whereby owner of land was to furnish use thereof and halt necessary implements, the other to furnish other half and his services, gross returns to be shared equally, but owners of land retaining no control in management, held no partnership intended or created. Rogers v. Lawton, 162 F 303.

01. Error to permit jury to determine from all the evidence whether parties to agreement to secure and operate mining lease had intended to assume relation of partner. Bentley v. Brossard, 33 Utah. 396, 94 P 736.

01. Bentley v. Brossard, 33 Utah, 396, 94 P 736. Agreement to buy and sell land, whereby one was to furnish most of capital and take title in his name in trust, that before equal division of profits money advanced by each was to be returned with interest, such sums to be secured by lien on property purchased. Such arrangements were for purpose of buying several tracts of land and extended through a number of years. Held to create relation of partners. Boreing v. Wilson, 33 Ky. L. R. 14, 108 SWP 914. Evidence as to participation in management, loss and profit held to show formation of partnership, although not intended and although member advancing money did not suppose himself liable for debts. Roberts v. Adams & Son Co., 33 Ky. L. R. 207, 110 SWP 314. Evidence admissible as to how parties themselves construed agreement whereby one, in consideration of a share in profits, procured credit for others to enable them to undertake a trading expedition to Alaska.

Causen v. Barnote, 49 Wash. 659, 96 P 235. If agreement not in writing, intention of parties must be ascertained from their words and conduct. Briggs v. Kohl, 132 jed of profit not partnership. Meinhart v. Ill App. 484. Where it was sought by third party to have a certain agreement construed as forming partnership, provision therein that one party appointed the other "exclusive agents to sell" held entitled to weight as not showing intention to create partner-ship relation. Title Insurance & Trust Co. others, not a partnership. State v. Kansas City Live Stock Exch., 211 Mo. 181, 109 SWP 675.

14. Evidence held to show that parties did not intend partnership in agreement to sell lands. Reed v. Engel, 237 Ill. 628, 86 NE 1110. Partnership is never created by implication or operation of law, apart from express or implied intention to constitute relation. Id. Agreement in form of lease whereby owner of land was to furnish use thereof and halt necessary implements, the other to furnish other half and his services, gross returns to be shared equally, but owners of land receiving means, each to have equal interest, and if one failed to raise sufficient money within one year he was to assign to the other, held partnership. Whitney v. Dewey \[IC. C. A.\] 158 F 85. Where one deposited a certain sum of money with another to use in his business, and was to receive not below a certain percentage as profit, that principal was to be refunded at a fixed time, but nothing was said about sharing losses, held that a partnership as to profits existed. Clemens v. Crane, 234 Ill. 514, 84 NE 884. Project to collect money due Indians from federal government, whereby one was to obtain contracts, the other to press claims in congress, held a coparrenth. Cowham v. Shipman, 151 Mieh. 673, 15 Det. Leg. N. 150, 115 NWP 991. Agreement whereby one was to manage real estate purchased by the other and to receive for such services one-half of profits held to constitute a partnership agreement. McPherson v. Swift \[S. D.\] 116 NWP 76. Agreement whereby certain persons associated for purpose of securing a patent held to be a partnership agreement. Gilbert v. Howard Automatic Mach. Co., 147 N. C. 308, 61 SE 176. Contract by terms of which defendants were to put Into a dry goods business their services in selling goods and pay expenses, interleader to furnish goods and share equally in profits, held to create partnership, although interleader was to receive back cost of goods and was stated to have title thereto. Swof-ford Bros. Dry Goods Co. v. Dimont, 182 Mo. App. 616, 111 SWP 119. Written contract to

## 12 Cur. Law. Partnership $ 1.

1209

\_Formalities of contract of partnership.\_See 10 C. L. 1104_A mere agreement to form a partnership does not in itself create a partnership; the parties must execute the contract before the relation arises.16 Statutes providing for filing certificate containing the names of members of the partnership are to be strictly construed.17

form partnership in clothing business pend-.

my organization of corporation, one of parties to furnish capital and the others to give entire time for 2 years in consideration of fixed salary and share of profits and to share protected from liability by partner funds. Starkweather v. Dyer, 30 App. mslighting money, held not invalid for lack of consideration or mutuality. Doan v. Rogan (Ohio) $7 NE 268. Agreement that each partner should contribute an equal amount in cash, that net proceeds should be divided equally, that one of partners should be employed at fixed salary as manager, held to constitute partnership agreement. Flitzgerial or Flynn (R. I.) $3 A 321. Where three persons united in an agreement to form a corporation and bought goods before corporation was organized, evidence held to show that they were partners. Meinhard, Schaul & Co., v. Bednfield Mercantile Co., isted. Garbarino v. Howard, 43 Colo. 530, 4 (Ga. App. 176, 61 SB 34. Evidence held to show that partnership was formed for operation of logging and number business. Moc. Alpine v. Millen, 104 Minn. 289, 11w NV $83. No partnership created: That land was purchased by several persons jointly but operated and held as by a partnership does not constitute a partnership as to the land, parties being only tenants in common. Miller v. Ahrens, 163 F $10. Where partner-ship articles were signed by married woman and another already engaged in business with husband, but no contribution made, upon showing that transaction was intended to cover husband's interest, that no partnership of which she was a member was formed, the creditor of husband having knowledge of fact. Morreau Gas Fixture Co. v. Cox, 161 F 381. Where two persons entered into oral agreement to purchase certain real estate and one subsequently purchased it on his own account and took entire title in his own name held no partner-ship relation as to land had been formed. Palenso v. Kosso (Neb.) 116 NW 679. Where two persons entered into oral agreement to purchase a party in which one of the partners did not exist. Hancock v. Tharpe, 129 GA. 121, 60 SE 168. Two persons agreed to purchase shares of stock in turnpike company with view of promoting electric road, each to pay for half the stock. They had themselves elected officers of turnpike company but failed in promotion plan, held that stock was not held as partners, nor did they carry on partnership business, all their acts with respect to stock being as officers of and for benefit of turnpike company. Baum v. Stephenson, 132 Mo. App. 187, 113 SW 225. Arrangement between real estate brokers residing in different countries, whereby brokers in E county were to get share of commissions for lands furnished by broker in E county and sold to E county parties, held not to be partnership as deals made by H county broker with persons proceed by him. Bass v. Tolbert \[Tex.

1210 PARTNERSHIP SS 1.1.12 Cur. Law.

Stockholders in illegal or defective corporations.See 10 C. L. 1105--Officers and stockholders in pretended corporations are liable to third parties dealing with them as partners.18

Evidence.See 10 C. L. 1105--Partnership may be shown from circumstances,19 the conduct of the parties,20 and by the contract.21 Under proper circumstances secondary evidence of the contents of the partnership articles is admissible.22 Admissions of a partner are competent as to the existence of the relation.23 Statements made by one that another is his partner are admissible if made in the latter's presence.24 Declarations of one party that another is his partner do not become admissible for the purpose of establishing the partnership even after prima facie evidence from other sources of its existence has been introduced.25 Testimony by a member of a dissolved partnership as to conversions between the deceased partner and the surety on firm notes is competent in explanation of the partnership relation as against the surety.26 A preponderance of evidence is sufficient to establish the relation.27

Partnership is a mixed question of law and fact.See 10 C. L. 1105--Whether partnership exists is a question of law to be determined from pleadings and proof.20 When the facts are in dispute, the question is for the jury and their finding is conclusive.26

with partnership unenforteible against per- to show joint interest in specified single en-

son dealing with partnership, such contract

terprise and no partnership. Townsend v.

being made while no certificate yet filed.

Gregory, 182 Ill. App. 192. Instruction that led. Sections 1762 and 1764, Rev. Cliv. Code, best evidence of partnership is sharing between alleged partners of all the profits

members, are adopted from California where

it is settled that no certificate is required

182 Ill. App. 484.

where firm name is composed of surnames

22. Where existence of partnership be-

of all partners. Hold that name "Bovee & Moffett" is sufficient notice to all dealing

with firm to easily ascertain identity, hence

no filing necessary. Bovee v. De Jong

\[S. D.\] 116 NVV 83.

18. Mining corporation organized in Arizona for purpose of operating in Colorado

Bertenshaw v. Laney, 77 Kan. 497, 94 P 805.

held fraudulent as to both states, and officers

182. Oral admissions of defendant that

itable as partners to creditors who printed

parparagraphly existed between himself and

prospectous. Journal Co. v. Nelson, 183 Mo.

18. Odavacement of money to be risked in

the business with agreement to share profits

raises presumption of partnership. Roberts

v. Laney, 77 Kan. 497, 94 P 805.

v. Adams & Son Co., 83 Ky. L. R. 207, 110

SWP 814.

20. Evidence that defendant paid money

to enterprise, that he opened mail of the

company, was to receive certain commission on sales, that be endorsed checks in

firm name by himself as treasurer, held

sufficient to sustain finding that defendant

was a member of the partnership. Diamond

Rubber Co. v. Hane, 105 Mlnn. 249, 117 NVV

504. Circumstance, such as making report

to commercial agency in firm name, and entry in city directory as "Pender & Son,"

held sufficient to sustain finding that partnership existed. Brighman, V. Winness, 34

Utah, 383, 98 P 186. On question of existance of partnership, contract of employment

of servant signed by one party alone is

competent evidence. Mansfield v. Mallery

\[Iowa\] 118 NVV 290. That parties themselves have referred to relation existing

between them as being that of partnership

is not decisive of the fact when not infersible from their agreements. Townsend

v. Gregory, 182 Ill. App. 192.

23. Contract for railroad construction held

01. Statement by one sought to be held

as partner that partnership existed between himself and another held under evidence

not to have been made in presence of latter

so as to bind him by acquessence. Bass v.

Tubert \[Tex. Civ. App.\] 113 Sve 1077.

25. Refusal of instruction that declarations of party claiming to be partner could not establish partnership unless jury first

found from other evidence that relation

existed held error. Franklin v. Hoadley,

126 App. Dlv. G87, 111 NYS 800.

26. Culbertson V, Salinger \[Iowa\] 117

NVW 6.

27. Briggs v. Kohl, 123 Ill. App. 484.

01. Alllegation of partnership in stock

speculation held to be merely conclusion of

placator. Baum v. Stephenson, 133 Mo. App.

187, 118 SWP 225.

29. Mansfield v. Mallory \[Iowa\] 118 NVV 12 Cur. Law. PARTNERSHIP SS 8. 1211

Partnerships as to third persons.See 10 C. L. 1105--Where parties hold themselves out as partners, or permit others to do so, the person to whom they so represent themselves, if he is ignorant of their true relations,30 may consider them so and hold them liable, regardless of whether the partnership relation in fact exists,31 or of whether they intended it.32 The rule is one of estoppel and applies only to the party who makes the representation or who benefits thereby.38 A partnership as to third parties may be constituted by sharing in the profits.34 Where a loan is made and is not to be repaid in any event, but is contingent upon the profits of the enterprise, the transaction will be construed as creating a partnership as against creditors.38 One who has represented himself to be a partner under a mistake of fact may, by denying such representations, escape liability as a member of the firm for goods bought after such correction was made.38 One dealing with an agent acting under an exhibited written authority cannot maintain an action against principals on ground of implied partnership.37

SS 2. \_Firm name, trade mark, and good will.38 See 10 C. L. 1106--It is competent for the partners upon dissolution to agree that the firm name shall not be used by any of the members who may resume business for the purpose of identifying them with the former partnership.38 A partner's interest in a trade mark used by the 290. Each case must depend upon its own whereby it was to furnish goods for sale circumstances and particular facts as to whether and to share equally in the profits whether partnership exists or not. Butler but to incur no liability. Held partnership as to creditors of the latter. Townley Bros.

30. Creditor cannot hold one liable on note as surviving partner when he knew that no partnership in fact existed, note being given under firm name but defendant specifically refusing to assume liability. as partnership to one who had furnished Reiniger v. Barrio, 158 P 862.

01. Representation to bank cashier. Walker Bros. v. Skiris, 34 Utah, 355, 98 P 114. Where three persons united for de-clared purpose of forming corporation and though one of their number bought goods before corporation was formed, held that by allowing him to buy goods and accepting them they held him out as a partner and were therefore liable as partners for goods so bought. Meinhard, Schaul & Co. v. Bedingsfeld Mercantile Co., 4 Ga. App. 176, 61 SE 34. Evidence that defendant was not a corporation and that titles of president, secretary and treasurer were merely as-sumed, that stationery and warehouse receipt send on stated that defendant and deceased were propriators, that they participated equally in management of war-house, held prima fade to establish partnership relation as to third parties. Union Nat. Bank v. Griswold, 141 Till. App. 464. Representations made by firm who advanced stock to another that latter was branch store and that they were interested in it held to constitute partnership as to latter's creditors, although there was no participation in profits. Townley Bros. v. Crickenberger \[V. Va.1 68 SE 320.

01. Townley Bros. v. Crickenberger \[V. Va.1 68 SE 320. Agreement that one ad-vancing money should not be considered partner ineffectual. Buford v. Lewis \[Ark.\] A.

112 SEV 968.

33. Statements by one that he is a partner with another, made out of latter's presence, handmissible to charge latter as partner, Chicago Die & Elco. Co. v. Nathan, 141 III. App. 171.

01. One firm made a contract with another 1312 PARTNERSHIP SS 3. 12 Cur. Law.

firm ceases upon his withdrawal and the exclusive right to its use remains in the continuing partner.40 A sale of all the partnership effects by the surviving partner carries with it all rights to trade marks usecu by the firm.41 The sale of the good will of a partnership binds all the members thereof.42 After a sale of the good will, no one but the purchaser can lawfully use the firm name as an indication that his business is a continuance of the old firm.43

SS 3. \_Firm capital and property.44 In general.\_See 10 C. L. 1106_The property of a partnership consists of all that is contributed to the common stock at the formation of the partnership and of all that is subsequently acquired thereby.45 What is partnership property is usually a question of fact 46 and may be shown by competent evidence.47 Although stock in trade of a partnership consists of real estate, it is as to the interest of the partners to be regarded as personal property.48 Partnership rights do not attach to property or funds to be used in a contemplated enterprise until the agreement is executed.49

\_How title is held.\_See 10 C. L. 1107_The holders of the interest in a concern to which an option was executed may take as partners although the contract was made to them as a corporation.50 A partnership may organize a corporation as a holding

agreed that none of parties should use this name in organizing a new business. Held

took accounts on their books "from" a certain date. Held in suit for accounting to use of name "New York Slip Cover Company" not a violation of such agreement.

to" such date. Schlicher v. Whyte \[N. J. Woolt v. Seigenberg, 58 Misc. 322, 110 NYS\]

Err. & App. J11 A 337. Fact that submerged lands could not be used in the wool buslness no evidence that partnership did not own them. In re Strang, 166 F 719. Where of whisky. Blutenthal v. Bighe, 30 App. D. C. 118.

block accounts on their books "from" a cer-name in organizing a new business. Held

then date. Held in suit for accounting to use of name "New York Slip Cover Company" not a violation of such agreement.

to" such date. Schlicher v. Whyte \[N. J. Woolt v. Seigenberg, 58 Misc. 322, 110 NYS\]

Err. & App. J11 A 337. Fact that submerged lands could not be used in the wool buslness no evidence that partnership did not own them. In re Strang, 166 F 719. Where of whisky. Blutenthal v. Bighe, 30 App. D. C. 118.

property and thereafter incorporated and assigned the lease to the corporation, mechanan-118.

42. Where good will of partnership in laundry business was sold, individual partners could not engage in laundry business in laundry business under a new organization within radius

no apparent change of possession, he not covered by contract. Southworth V. Dayu.

sons formed partnership for purpose of son, 106 Minn. 119, 118 NV 363. In action

carrying on lumber business, and purchased after dissolution to recover for good will a tract of land, taking title in one of mem-of business, held that good will for which

pars as trustee but making no attempt to recovery could be had was such good will carry on business, held partners owned land as might have been sold under judicial de-

as tenants in common. Jones v. Way \[Kan.\]

cere if business had been settled by a re-97 P 437.

cover. Moore v. Rawson, 199 Mass. 493.

47. Memorandum in handwriting of de-

85 NE 586. One who voluntarily sells his

teased clerk of creditor of partnership as interest in a business, together with the

to what firm books contained is competent

good will, Implieldy agrees that his relation

evidence as to what was partnership property to the business is ended, and cannot there-

after do anything to. interfere directly with

if 719. Character of ownership may be con-

it as a property having a good will valuable

to the purchaser. Id.

held in partnership. Chappell v. Chappell,

48. Moore v. Rawson, 199 Mass. 493. 85

125 App. Dlv. 127, 109 NYS 648.

NE 586.

44. Search Note: See notes in 27 L. R. A.

340, 449; 28 Id. 86, 129; 4 Ann. Cas. 604; 11

16, 469.

See, also, Partnership, Cent. Dig. **SS 95-138**;

Dec. Dig. **SS 67-91**; 30 Cyc. 424-453; 22 A. &

E. Enc. L. (26d.) 84.

45. McPherson v. Swift \[S. D.\] 116 N 76.

Trust deeds executed by firm to secure its

indebtedness, conveying deeds and lease-

holds owned by partnership during continua-

ance of contract, held to cover only partner-

ship property and not property owned by individual members. Wade v. Martin \[Ala.\]

47 S 340.

48. On formation of partnership by entry

of new member, old firm was to contribute

book accounts on their books "from" a cer-

name in organizing a new business. Held

being date. Held company for the partnership ventures.\[51\] Possession of one partner is the possession of all.\[52\] Payment to one partner for work done by the partnership is payment to the other partner.\[53\] Where partnership property is purchased in the name of one of the partners, he takes the title clothed with a trust for the partners.\[54\] The statute of limitations does not run against the recovery of funds held in trust by one partner for the firm until the trust is performed or is repudiated.\[55\] Money or property advanced to one in contemplation of the formation of a future partnership is held as a bailment and not as partnership property.\[56\]

_Partner's interest._\[56\] C. L. 1107--The interest of each member of a partnership in the property is his share of the surplus after payment of partnership debts and settlement of accounts between himself and the other partners.\[57\] A partner is not a creditor of the partnership for money invested by him as capital.\[58\]

\*\*SS 4. \_Rights and liabilities as to third persons.\[59\]\_See 10 C. L. 1107--Each partner is individually liable for all the debts of the firm.\[60\] The general rule is that partnership debts are joint obligations;\[61\] but in Texas all partnership obligations are contemplation.\[61\]

**51.** Held that copartners associated for

**52.** Wheres prosecuting witness advanced purpose of acting as brokers of mining

**53.** On suit brought for services, defense

**54.** Wheres prosecuting witness advanced

**55.** On suit brought for services, defense

**56.** Wheres prosecuting witness advanced

**57.** Wheres prosecuting witness advanced

**58.** On suit brought for services, defense

**59.** Wheres prosecuting witness advanced

**50.** Wheres prosecuting witness advanced

**51.** Held that copartners associated for

**52.** Wheres prosecuting witness advanced

**53.** Wheres prosecuting witness advanced

**54.** Wheres prosecuting witness advanced

**55.** Wheres prosecuting witness advanced

**56.** Wheres prosecuting witness advanced

**57.** Wheres prosecuting witness advanced

**58.** Wheres prosecuting witness advanced

**59.** Wheres prosecuting witness advanced

\*\*59.

- 1214 PARTNERSHIP SS 4A. 12 Cur. Law.

sidered as being joint and several. \[42\] In equity all partnership debts are to be deemed joint and several. \[43\] As to matters in which a member might bind the firm, if he contracts in his individual capacity, he alone is liable. \[64\] Where a partnership assumes a contract previously made by a partner, it cannot thereby affect the rights of the other party thereto. \[65\]

(SS 4) A. Power of partner to bind firm. \[66\] In general; contracts. \[50\] 10 C. L. 1107 The act of one partner binds the partnership if within the actual or apparent scope of his authority. \[67\] A partner may bind the firm by giving a warranty, \[68\] or by making an assignment of an account due the firm. \[69\] One holding partnership property as trustee for the partnership may bind the partnership by conveyance of the title. \[70\] The limitation that a partner cannot bind a dormant partner by acts outside the scope of the partnership does not apply as to third persons dealing with the ostensible members. \[71\] The power conferred by law on one partner to act as the agent for the firm may be limited by the other members. \[72\]

\_Partnership bills and notes. \[50\] 10 C. L. 1109--One partner may bind the firm by executing a note under seal without authority from the other partners, except such as comes from the relation of partners. \[73\] A firm note given without authority, \[74\] or for

vidually may defend on ground that eo-partner is not joined. Erskine v. Russell, 43 Colo. 449, 96 249.

\[62\] Individual member of dissolved firm was properly sued severally for loss of goods which firm before dissolution agreed to transport. Webb v. Gregory \[Tex. Clv. App.\] 108 SWV 478.

\[63\] Bill charging that firm and individual members wholly failed to perform a contract with complainment alleges good cause of action against administrators of de-ceased partner. United States v. Hughes, 161 F 1021.

\[64\] Evidence held to show that account-ant who balanced partnership bokes was employed by partner individually and not by firm. Konheim v. Mergash, 115 NYS 96.

\[65\] One who had a contract to deliver sand formed a partnership with another to carry it out but continued to deal with vendee as an individual on suit by firm for purchase price. Heid that formation of partnership did not affect vendee's right to recoup for failure to deliver according to contract. Posey & Co. v. West Const. Co. \[Aliss.\] 46 S 402.

\[66\] Search Note See notes in 6 C. L.

\[925\] 41 L. R. A. 650; 51 Id. 465; 3 Z. R. A. (N. S.) 221; 31 A. S. R. 754; 48 Id. 438; 68 Id. 90; 88 Id. 822; 6 Ann. Cas. 129.

See, also, Partnership, Cent. Dig. **SS 190**- 200; Dec. Dig. **SS 125**- 164; 30 Cyc. 477-538; 22 A. & E. Enc. L (2ed.) 135.

\[67\] Evidence held to show that firm was bound for payment of board of both partners and their men by contract between one of partners and hotel keeper. Gessner v. Roemings, 135 VPIs. 535, 116 NNV 171. On suit by firm of osteopaths to recover for services, defendant pleaded set-off for money advanced to one of members to be repaid by professional services of firm. Held act of partner binding on firm. Winchell v. Powell, 43 Colo. 244, 95 F 957. Teatimony that account against partnership was presented to one of members and that he acknowledged its correctness is prima facte proof of correctness of account, and in case of denial of account by partnership

\[68\] is sufficient to make an issue of fact for Jerry. Dolvin & Co. v. Hicks, 4 Ga. App. 653, 62 SE 95. Evidence that defendants were engaged in business of buying up claims against third party warrants conclusion that each partner had authority to bind firm by such purchase. Israel v. Finkelstein, 74 N. H. 604, 69 A 576.

\[69\] In suit on warranty plaintiff alleged that the bought a jack under misrepresentation motions made by one of defendant partners. Held that other partner was equally responsible. Chestnut v. Ohler \[KY.\] 112 SVV 1101.

\[60\] Kieselstein v. Shoebel, 110 NYS 907.

\[70\] Where one partner held title to partnership real estate and authorized another partner to convey as attorney in fact the premises so held, her action was binding upon other partners, they having the right to an accounting for proceeds. Bond Reality

\[60\] C. v. Pounds, 112 NYS 433.

\[71\] Where ostensible partners in lumber firm signed builder's bond as snrety, firm was liable thereon although their net was unauthorized as to dormant partner, the latter being stepped to repudiate their contract. Kneelley Lumber Co. v. Edward B. Stoddard Co., 131 Mo. App. 15, 109 SVV 840.

\[72\] Where alleged partner showed written authority from principals, one dealing with him could not rely upon any other authority than that shown by written instrument. Taylor v. Sartorious, 130 Mo. App. 23, 108 SWV 1089.

purposes outside the scope of the partnership business, is binding on the members of the firm if they ratify its issuance.\[75\] Such a note will not bind the firm where the holder had notice that it was given without authority.\[76\] Even though there be private limitations to the authority of a member of a commercial firm to execute firm's notes, they cannot affect a holder who takes the notes without knowledge of them,\[77\] unless distinct notice is given that the firm will not be liable for such unauthorized acts.\[78\] But a creditor who takes partnership security in discharge of a claim against an individual partner cannot hold the firm liable thereon without showing that the partner had authority to give it.\[79\] When a partnership conducts business in the name of one partner, paper signed by such partner is equivocal, and prima facie is the individual obligation of the signer but may be proved to have been a partnership transaction.\[80\] A partnership note executed by one partner and not ratified by the other will not furnish the basis for an action as against the latter partner where he was induced to enter firm by fraudulent representations as to amount of indebtedness and note was given to secure such indebtedness.\[81\]\_Notice to partner is notice to firm,\[80\]\_S_C. L. 1271--Notice to one partner is notice to the other of any transaction occurring after formation of partnership.\[82\]\_Liability for torts and crimes,\[83\]\_See_10_C. L. 1109--Partners are jointly and severally liable for torts.\[83\] While false statements made by one partner render the other members of the firm pecuniarily liable therefor to third persons dealing with the firm, such false statements when made without the knowledge of a copartner will not

**75. Whether accommodation paper given by partnership to cover overdraft was authorized by defendant held properly a question for jury. Hunter v. Allen, 127 App. Div. 51%, 111 NYS 820.**

**76. Evidence held to show note was accommodation paper and that assignee knew it. King v. Mecklenburg, 43 Col. 316, 95 P 951. Creditor who with knowledge that debt was an individual one took firm notes as security could not maintain an action against the other partner. United States Exch. Bank v. Zimmerman, 113 NYS 33.**

**77. Firn liable for note executed by partner for his individual use without knowledge or authority of other partners, the creditor taking note in due course without notice. Feigenspan v. McDonnell, 201 Mass. 841, 87 NE 624. Money paid on check drawn by partner in firm name and used by him for gambling purposes, payment of which was refused by drawe, may be recovered where bank that cashed check did not know that partner had no authority to draw it or that it was drawn for purposes outside scope of firm business. Comas Prairie State Bank v. Newman \[Idaho\] 99 P 833.**

**78. In an equal partnership wherein one member was to furnish the funds, the other to carry on the business, and the latter so informed bank upon which firm drew, he was liable for firm notes drawn by partner without his knowledge to cover overdrafts, since notice not sufficient to notify bank that firm would not be liable therefore. Dodson v. Baskin \[Ark.\] 114 SW 925.**

**79. One partner pledged note as security for his individual debt and endorsed firm name thereto after dissolution. He did that ordinary was estipped to recover against other partner by failure to make inquiry as**

\*\*79. The author was entitled to thank the author.

prevent the latter from obtaining a discharge in bankruptcy as against the objection of a third party who became a creditor through such statement.84

(SS 4) \_B. Effect of note given by partner for firm debt,85_See 10 C. L. 1110

(SS 4) \_C. Commencement and termination of liability,80_See 10 C. L. 1110--A re-tiring partner remains liable to creditors for debts incurred by the continuing partner after dissolution, unless proper notice of dissolution is given.87 Creditors existing at the time of dissolution,88 and former customers of the firm, must have actual notice.89 Constructive notice is sufficient as to subsequent creditors 80 and customers who have had no previous dealings with the firm.91 A firm cannot avoid liability as a firm for goods bought because they have become incorporated under state law, when seller had no actual notice of the change into a corporation and when there is no constructive notice by recordation of the charter.92 A retiring member of a mining partnership remains liable for wages due miners while he was a member, and for wages accruing after his retirement where miner had no notice of change in partnership.93 Whether the creditor has had notice of dissolution is a question of fact.94 Actual notice of dissolution and that the business will continue in the name of one of the former partners is sufficient to put a creditor of the firm upon inquiry as to the party's assumption of firm debts without further notice of the exact terms of dissolution.95

\_Novation.\_See 10 C. L. 1111--An assumption of firm liabilities by the continuing partner will release the retiring partner only when the creditor accepts the former as his sole debtor.96 If after notice of dissolution a third party extends credit, a conclusive in itself. Batson v. Thompson Land & Lumber Co. \[Miss.\] 45 S 985.

85. Search Note: See notes In 4 L. R. A. 800; 14 L. R. A. (N. S.) 1231; 1 Ann. Cas. 401.

80.5. Search Note: See notes In 4 L. R. A. 800; 14 L. R. A. (N. S.) 1231; 1 Ann. Cas. 401.

85. Search Note: See notes In 4 L. R. A. 800; 14 L. R. A. (N. S.) 1231; 1 Ann. Cas. 401.

01. Search Note: See notes In 4 L. R. A. 800; 14 L. R. A. (N. S.) 151; 23 L. R. A. (N. S.) 161; 29 L.

01. Where persons saved as members of partnership for goods bought, they were liable as partners up to time when notice of change into corporation was given to creditor. Rice v. Patterson \[Miss.\] 46 S 255.

01. Where retled partner in mining partnership was used for wages assigned to laint/hell, held there could be no recovery as against him on claims of men who had commenced work after partner had retired from firm, but recovery allowed to men continuing work without notice of retirement. Kelley v. McNamee \[C. C. A.\] 164 F 369.

01. Where creditor sold logs to corpora operating sawmill, supposing that for-mer partnership still existed, when in fact latter had conveyed its interest to corporation, held question for jury whether creditor had knowledge of conveyance. Batson v. Thompson Land & Lumber Co. \[Miss.\] 45 S 985.

01. Creciditor of dissolved firm had notice that business would be continued in name of former partner, and thereupon gave him further credit as an individual. Held the other partner was liable as surety for amount owing before dissolution only. Bryant v. Settel, 113 NYS 947. Evidence held insufficient to show dissolution by agreement as against creditor where partners continued to carry on business without apparent change. Kelley v. Hanes, 238 III. 168, 87 NE 828.

01. Where continuing partner assumed firm debts in consideration of conveyance to him of partnership property, an action brought by a creditor on this agreement is 18 Cur. Law. PARTNERSHIP SS 5.

tract of assumption of the firm debts is binding as to him although without consideration."

(SS 4) _D. Application of assets to liabilities._"See 10 C. L. 111.\_The primary fund for the payment of firm debts is the firm property." Partnership debts must be satisfied before a creditor of one of the partners can claim any part of the assets of the firm.' There is no lien in favor of partnership creditors as against individual creditors before the partnership property is placed in administration." But where the partnership is secret, a creditor of the ostensible owner may satisfy his debt out of the firm property, regardless of the interest of the secret partner." Partnership funds in the hands of a special partner are subject to the firm debts only when the firm creditors have exhausted the remedies against the general partners." The equity of partnership creditors to partnership property must be worked out through the equity of the partners."

SS 5. \_Rights of partners inter se. Duty to observe good faith.\_See 10 C. L. 111.\_The first duty of one partner to the other is the exercise of perfect good faith." The

sufficient to show acceptance. Mueller Lum-

S. Secret contract of partnership by which ber Co. v. McCaffrey \[Iowa\] 118 NW 903.

silent partner furnished goods to defendant Agreement subsequent to dissolution where was to sell them and share in profits by partner who had issued unauthorized

find not to be a defense on attachment of firm note agreed to pay the same not bind-

goods by creditor of ostensible owner.

ing on creditor who was not a party

shovford Bros. Dry Goods Co. v. Diment, 132

therto and had no knowledge of it. Fel-

fenspan v. McDonnell, 201 Mass. 341, 87

NE 624.

4. Where it was sought to hold both general and special partners for firm debt and special partner had after expiration of part-

super. Ct. 170.

98. Search Note: See notes in 1 A. S. R.

action would not lie against special partner

593; 7 Id. 377; 43 Id. 364; 57 Id. 436; 3 Ann.

in absence of showing that remedies had

cas. 151.

See, also, Partnership, Cent. Dig. \*\*SS 308-

347; Dec. Dig. \*\*SS 176-190; 30 Cyc. 536-565; 111 NYR 34.

22 A. & E. Enc. L. (2ed.) 186.

90. Member of partnership gave $250 to third person for use in paying firm debts.

He also assigned his individual mortgage

for same purpose. Held the $250 should

first have been applied to firm debts and only after that was exhausted should mortgage

gage have been applied, and that balance belonged to partner and not to firm. Rosenberg v. Schraer, 200 Mass. 218, 86 NE 316.

Creditor of partnership could follow partnership property converted by a partner, although as between the partners the latter would be entitled to the property so converted. Capital Food Co. v. Globe Coal Co.

\[Iowa\] 118 NW 803.

1. Judgment against one member of firm

could not be set off against judgment in

favor of firm where such latter judgment

had been assigned to third party in payment of partnership indebtedness. McManus

v. Cash \[Tex.\] 108 SW 800; Sargent v. Blake

\[C. C. A.\] 160 F 57. Individual creditors of members of an insolvent partnership

ceived land taken in exchange for partner-

ship stock. Held fraud on other creditors,

transfer being made to pay personal instead

of partnership debts. Clark-Jewell-Wells

Co. v. Tolsma, 151 Mich. 561, 15 Det. Leg. N.

1000, 115 NW 688.

2. Insolvent partner assumed partnership

debits in consideration of conveyance to

him of all partnership property, and

ther-upon paid his individual creditors. Held

such conveyance created no lien in favor of

partnership creditors. Sargent v. Blake

\[C. C. A.\] 160 F 57.

19 Curr. L. 77.

191 Curr. L. -77.

192 duty to oberve good faith between the partners applies as well to their negotiations in the formation of the partnership as to any subsequent transaction between them." A settlement obtained by deception practiced by one partner upon his copartner does not bind the latter." Coperntners cannot, by manipulation, so change partnership deals as to deprive one member of his rights as a participant therein.\[10\] During the continuance of the relation one partner cannot engage in a competing business,\[11\] but in the absence of an agreement to the contrary one partner is not precluded from operating individually the same kind of business as that in which the firm is engaged and in the same territory.\[12\] A member of a partnership may avail himself of information obtained in the course of the partnership business without liability to account to the partnership, if he uses this information for purposes wholly without the scope of the partnership business.\[18\] A retiring partner cannot use trade secrets of which he acquired knowledge during his connection with the firm, for the purposes of competition.\[14\] Where both the firm and one of the partners are creditors of the same person, the partner must apply a general payment made to him upon the firm account.\[15\]

funds to close the deal, they to share \[ operation was organized as holding company in the land. He represented to them that there were only 850 acres and 1000 buying the land had vendor make two \[ needed to cust his copartners from participants, one for 845 acres to the firm, the other to himself individually. Held on suit \[\] 12 Cur. Law. PARTNERSHIP SS 5. 1819

Participation in management.See 10 C. L. 1112. Each partner has the right to share in the management of the business \[16\] although he has not paid in all of his share of the capital, \[17\] and may, without consulting his copartner, bind him in all matters within its scope. \[18\] What is within the scope of the partnership business is usually a question of fact. \[19\] Because a mining partnership is not founded on the delectus personae, the powers of members of such a partnership are limited to the performance of such acts in the name of the partnership as may be necessary to the transaction of its business. \[20\] If a partner bind his copartner in matters not authorized by the partnership agreement, the remedy of the latter is in an action for an accounting. \[21\] Although one partner may be vested with the actual management of the business, where the other partners actively participate therein, they are equally responsible for results and in absence of fraud cannot hold the managing partner liable as trustee. \[22\] In the absence of express agreement, it is the duty of each partner to devote his time and ability to the firm so far as is reasonably necessary. \[23\] A partner may make a binding contract for the sale of his interest, \[24\] but he cannot thereby introduce a new \[24\]

owned by him individually, his estate was required to apply partial payments first to \[\[Mich.\] 15 Det. Leg. N. 1067, 119 New 583. 20 Employment of engineer by one member of mining partnership held within 1m-pinterhe has the right to buy and sell goods by \[Bens.\] Bentley v. Brossard, 23 Utah, 836, 94 P 736. 21. On action for specific performance of ingredient Mercantile Co., 4 Ga. App. 176, 61 SB 34. 21. Partnership agreement for securing patent provided that firm should be dis-solved when patent was granted or refused. Certain of the partners sold the devise and refused to account for proceeds on ground that partners whose duty it was to construct model had failed to do so. Heid that as they had paid in part of their share which had been used in the business, their partnership rights were not lost by their failure to construct model. \[Gilbert v. How-ard Automobile Mach. Co., 147 N. C. 308, 61 SSE 176. 18. Signing builder's bond by member of partnership not an act within objects of firm formed for purpose of dealing in 1m-bar and was unauthorized as to member not ratifying it. Knisely Lumber Co., 101 No. App. 15, 109 SWP 840. Partner in charge of plantation held to have implied authority to contract and pay for plantation supplies although such transactions were unknown to co-partner. Lowenberg v. Lewis-Herman Co. \[Miss.\] 48 S 517. A partner has implied authority to effect insurance on firm property and in case of loss to assign the adjusted claim therefor. Wassem v. Gray, 43 Colo. 140, 95 P 557. 19. Where one member of partnership engaged in hotel business purchased goods in firm name for her individual use, she being authorized to buy goods for firm use in firm name, it was a question for jury whether she was authorized to use goods for her individual benefit. Hommaster Sons Co. v. Hodges \[Mich.\] 15 Det. Leg. N. 926, 118 NWP 484. Coparthers signed note with others and had payment of their share endorsed thereon. Indorsement being found defective, one of copartners changed form of such endorsement without his partner's knowledge. Heid such act not binding member into the firm without the consent of the other members.25 The partners may stipulate for damages in case of sale of partner's interest.26 A partner has no implied authority to sell any part of the partnership property,27 and if he does so he is liable to the coppartners in an action at law 28 although as to them it does not constitute conversion.29 A member of a partnership as an individual may unite with the partnership in the purchase of property for the joint benefit of the partnership and himself personally,29 and he may agree with his partners that services in the scope of the business shall not be partnership assets.31 Partners with the consent of each of the others may transform the partnership property into the individual property of one of the partners or apply it or its proceeds to the payment of their individual debts in preference to those of the partnership.32 On dissolution every partner is entitled to have the partnership property applied in payment of the firm debts 33 and to have the surplus applied in payment of what may be due the partners respectively.34 A partner has a lien on the firm's assets for the repayment of his advances to the firm.35 Where one partner furnishes all or more than his share of the capital in the business, he may contract for any rate of interest on the surplus so furnished, to be paid out of the

finding that sale was conditioned upon consent of his coppartners to the sale. Gondolfo v. Garbarino \[Cal. App.\] 97 P 203.

25. In equity such purchaser acquires right to accounting and settlement. Jones v. Way \[Kam.\] 97 P 437.

01. Where partnership agreement provided for a certain sum as liquidated damages to be paid by any member who should sever his connection with firm within 3 years, held enforceible since damages were difficult to estimate and since evident and reasonable intent was that such amount of damages should follow breach. Doan v. Rogan \[Oh10\] 87 NE 263.

01. Officer of limited partnership could not sell stock in trade for services rendered by third person in negotiating transfer of patent rights to firm. Dickinson v. Matheson Motor Car Co., 161 F 874.

01. Where a partnership was formed for purposes of securing a patent, and certain members of partnership sold the device, they were liable to the other members in action at law. Gilbert v. Howard Automatic Mach. Co., 147 N. C. 308, 61 SE 176.

01. Sale of firm property and receipt of proceeds, not conversion as to coppartner, Gross v. Gross, 128 App. Div. 429, 112 NYS

01.

01. Complaint for goods sold and delv-ered to a partnership and one of members thereof not denurrable on ground of improper jonder of causes of action or mis-jonomer of parties. Redwood City Salt Co. v. Whitney, 163 Cal. 421, 95 P 885.

01. One member of brokerage firm brought suit for services against client, and defend-ant objected on ground that claim was part-nership one. Evidence held not to sustain defendants' contention. Weilech v. Clarke, 38 Ky. L. R. 290, 109 SVW 834.

01. Sargent v. Blake \[C. C. A.\] 160 F 57.

By mutual consent members of partnership may withdraw funds and give them away to their wives where such transactions are not fraudulent as to creditors. Eckhart v. Burrell Mfg. Co., 236 Ill. 134, 86 NE 132.

1920

1921

1922

1923

1924

1925

1926

1927

1928

1929

204

205

206

207

208

209

210

2112

220

221

222

230

240

241

252

262

270

281

292
12 Cur. Law. PARTNERSHIP SS 6A. 1231 profits as preferred profits." Where a partner claims his share of the fruits of a partnership venture, he must also bear his share of the losses." The law presumes an equal division of profits although contributions to firm capital are unequal." A partner who furnishes no capital, but contributes merely his skill, time and services, is not entitled on dissolution to any part of the firm capital." One partner may use attachment to enforce his right to an amount due from his partner on a settlement."

SS 6. \_Actions. A. By firm or partner." Right of action.\_See 10 C. L. 1112--The partners may sue either jointly or severally for damages to the partnership by publication of a libel charging dishonesty in the conduct of the partnership business." A copartnership may bring an action for specific performance of a contract to convey land," or for the renewal of a lease, although its membership may have been changed since the contract was executed."

\_Parties.\_See 10 C. L. 1112--At common law, a firm must sue in the names of the persons composing it," but by statute in some states a partnership may sue in the firm name." Coperntners are not necessary parties to an action for fraud by one of them." A judgment in favor of a partnership which sued in the firm name only, is valid as against collateral attack where objection is not taken at the trial, and where the defendants are personally served."

\_Statutory prerequisites to suit.\_See 10 C. L. 1113--Statutory requirements as to filing partnership certificates must be complied with before the partnership can sue " but such statutes are penal and will be strictly construed."

36, Ruggles v. Buckley \[C. C. A.\] 158 F asked for in accordance with contract. Landlor refused to grant same on ground that partnership had been dissolved by cerl-tain assignments and reassignments, since contract was executed, and that partnership asking for renewal was not the same as the one with which contract was made. Field that evidence showed membership to be the same as at time of execution of contract, that landlor's security was therefore the same as that contemplated by original contract, that intermediate changes did not affect him, and that action to enforce contract was therefore maintainable. Gorder thus making an intelligent accounting im-v. Pankonin \[Neb.l 118 NW 449.

45. But objection to suit brought in firm name alone must be raised by plea in abatement or otherwise before judgment. Ives V. Muhlenburg, 135 III. App. 617.

01. Where title of case in petition was in dissolved saloon business, who had not contributed to capital, was not entitled to contractingly enough of certain enumeratorism. Johnson v. Jackson \[Ky.\]

50, 1232 PARTNERSHIP SS 6B. 12 Cur. Law.

_Pleading._\[See 10 C. L. 1113\]. It is permissible to amend a complaint in a suit brought by a partnership so as to bring in additional copartners as individual parties plaintiff.\[See 11 Where a partnership brings suit, the names of the members composing it must be set out.\[See 11.

(SS 6) _B. Against firm or partner._\[See 11.13\]_Service of process._\[See 10 C. L. 1118\]. Service of process on one partner alone is sufficient to authorize entry of judgment in form against the firm,\[See 11.13\] and gives the court jurisdiction over each member served and over the firm property.\[See 11.13\]

_Parties._\[See 10 C. L. 1134\]. No decree affecting partnership matters can be made without making all partners parties to the suit.\[See 11.135\]

_Pleading._\[See 10 C. L. 1114\]. The objection of nonjoinder can only be raised by de-murrer or a plea in abatement.\[See 11.136\] A direct allegation of partnership is sufficient.\[See 11.137\] The firm cannot plead in an action against an individual member.\[See 11.138\] The defense of nonliability as a partnership must be specifically set forth.\[See 11.139\]

_Burden of proof, evidence and instructions._\[See 10 C. L. 1134\]. The burden of proving

so as to remove disability to sue or be sued on both prior and subsequent transactions. Bovee v. De Jong \[S. D.J 116 NW 83.

50. Where statute provides for filing of afdlavit of copartnership (Sess. Laws 1897, p. 248, c. 65), and that for failure to file affl-davit so provided for partnership should not be permitted to prosecute suits for collection of debts until statute compiled with, plaintiff partner against other partner's it was held that such statute was pension, be strictly construed, and would not embrace action of unlawful detainer. 'Wall-brecht v. Blush, 43 Colo. 329, 95 P 927.

01. Since such amendment merely cures defect in description of parties. Tyrell v. Milliken \[Mo. App.\] 115 SVV 512. Where a partner succeeds to the interest of the co-partnership by assignment, it was not error to allow petition to be amended so as to make assignee a party in his individual capacity. Heesman v. Parmele, 80 Neb. 509, 11$ NNV 324.

01. In a suit wherein a partnership was plaintiff, the names of the partners sufficently appeared when given in full In the summons, and the complaint reited that plaintiff was "the partnership as aforesaid." Greer v. Lipfert-Scales Co. \[Ala.\] 47 S 307.

01. Search Note: See notes in C. L. 290.

See, also, Partnership, Cent. Dis. **5** 349-470; Dec. Dis. **5** 191-223; 30 Cyc. 566-603; 15 A. & E. Eno. P. & P. 854.

54. Lutz V. Kalmus, 115 NYS 230. Return of service of summons recting delivery of copy thereof to "within-named D. defendant" sufficient, it appearing that he was a member of firm and only person of that name mentioned in summons. Barnes v. Colorado Springs, etc., R. Co., 42 Colo. 461, 94 P 570.

01. Under $ 14, Code Civ. Proc., providing that associates may be used under common name and summons shall be served upon partnership is upon the party asserting its existence.61 Defendants must call for proof of partnership when the issue is joined and cannot do so later.62 As between parties to the action, partnership may be established by admission.63 Variance as to

**61. Plaintiff** used on express contract for dissolution (Hackley v. Patrick, 3 Johns. \[N. feeding stock; defendant claimed feeding \[Y.\] \[$%\], in broad terms holding them incommens done under partnership agreement. \[The latter view may fairly be Held burden to prove partnership was on defendant. \[Briggs v. Kohl, 132 Ill. App. 484. \[Vhere two partnerships existed with Idemical names and it was sought to hold member of one l liable for partnership debt, burden of proving him member of firm that had bought goods was not shifted upon defendant. \[The L.\] 115 NWF 841. \[N.\] 118, private 746, Ann. St. 1906, p. 731, provides that unless allegation of partnership be denied under oath, when names of partners are given same shall be taken as confessed, held general denial unverified, admitted partnership. \[The L. App.\] 115 NWF 512. \[G2. Stable v., Poth, 220 Pa. 35, 69 A 864. \[G3. Where three railway companies were used as partners in handling stock shipments, failure on their part to deny partnership. \[The L. App.\] 114 SWF 885. \[Where rule of court provides that partnership should be considered admitted unless denied by afladavit, it was error to require proof of partnership on substitution of surviving partner as defendant where the action had been tried four times previously without requiring such proof. Stable v., Poth, 220 Pa. 356, 69 A 864. \[On suit against a partnership\] answer derried allegation of partnership but made no formal pie of no partnership. Court instructed that on failure by plaintiff to prove allegation of partnership verdict should be for defendant. Held error. \[The L. App.\] 115 Ekc. \[The L.

the members composing the firm is immaterial when not objected to," Instructions must conform to the pleadings and the evidence."

In New York, admissions of one party in

Jim credit (Kirk v. Hlatt, 2 Ind. 322 \[sem-

joint-interest are receivable against another

only when there exists mutual authority, ex-

Press or Implied. Walls v. Randall, 81 N. Y.

Tested by the foregoing principles, a recent West Virginia decision seems question-

164. But even from the standpoint of agency

able. Burdett v. Groer, 63 V. Va. 515, 60 SB

--the sole aspect considered in the second

group, supra--the New York rule, supra, it

497. In an action against A and B, partners

is submitted, is too broad. It wrongly assumes the agency of the partners totally

formed before dissolution. A's acknowledg-

ended by dissolution. Abundant authority

is not wanting, even in New York, that no

sottlement after dissolution, was held inad-

complete revocation occurs. Gates v.

Bececher, 60 N. Y. 518, 524, 19 Am. Dec. 207.

Disregarding situations peculiar to dissolution caused otherwise than by agreement,

though, broadly speaking, partners may after dissolution no longer bind the firm by

new contracts, rights and obligations previously

that, in the absence of contrary agreement, every member retains implied power to execute outstanding

engagements (Western Stage Co. v. Walker,

Z Iowa, 504, 65 Am. Dec. 789), to adjust

claims against the firm (Tutt v. Cloney, 62

Mo. 116), and to collect and receipt for money due (Gillillan v. Ins. Co., 41 N. Y. 376).

So far are the partners from becoming mere

strangers that a demand on one member of a

dissolved firm of makers suffices to charge

the indorser of a note, Gates v. Becher,

supra. Even, therefore, if partners be considered without power to bind each other

unless as agents, the true rule, it is submitted, requires that such admissions, made after dissolution, be received against the firm

as amount to words and acts fairly within

the scope of the authority retained, and in

the ordinary course of the windings-up. See

Burdick, supra, 248; Parsons, supra, & 128.

Since the partners' agency after dissolution

is confined to operations normally essential

to final settlement (Hill v. Lanning, 91 U. S.

160, 23 Law Ed. 271), the scope of admissible

Itv under this rule would of course be narrow. Thus, there would still be excluded as

against the partner not making the admin-

sion a disposition that a contract sued on

by the firm had been satisfactorily performed (Iron Co. v. Cohen, 113 Ill. App. 30):

admissions converting an account current

into an account stated (Hart v. Woodruf,

supra), since staffing an account gives a new

cause of action (see Bates, supra, 737, Justly

orticlising Buxton v. Edwards, 134 Mass.

567); loose declarations, years after dissolution,

that certain goods had been delivered

to the firm (Chardon v. Oliphant, & Brev, \[S.

C.\] 183, 6 Am. Dec. 572); and acknowledg-

ments of firm debts barred by the statute of

Imitations, since under the modern view of

that statute, see Van Keure v. Parmalee, 2

N. Y. 523, 61 Am. Dec. 322, the promise of

payment implied, though based on the old

consideration, is a new contract. Wilson v.

Torbert, 3 Stew. \[Ala.\] 296, 21 Am. Dec. 632.

Nevertheless, the rule would at least cover,

for example, an acknowledgment of debt

while engaged in adjusting the unsetted

busines (Felgley v. Whitaker, 22 Ohio St.

606, 10 Am. Rep. 778), and declarations

contrapee with receiving payment of a

Iones, 31 App. D. C. 348.

12 Cur. Law. PARTNERSHIP SS 6C. 1235

\_Judgment and execution,\_See 10 C. L. 1115.-Although only one member be served with process, judgment may be entered against the entire partnership, and is enforceible against the partner served and against the firm property.60 Where partners are defendants, judgment may be entered against one and not the other.61 If a partner has not been served with process a dismissal as to him is unnecessary,62 but if he has been served, a dismissal releases both his individual and his partnership liability.63 In Missouri no right of exemption is recognized in partnership property, either as to a firm creditor or as to a creditor of an individual partner.74 Partnership property cannot be attached on the ground of nonresidence of the firm where one of the partners resides within the jurisdiction.71 The judgment creditor of one partner for an individual debt may attach the latter's interest in the firm money.72 An appeal from a judgment against the partnership alone must be taken by the firm and not by the members.73

(SS 6) \_C. Between partners,\_74_See 10 C. L. 1115.-A partner cannot sue the firm of which he is a member.75 A partner cannot maintain an action against his copartner for demands growing out of partnership business unless there has been a settlement and accounting 76 but where the cause of action is distinct from the partnership busi-

66. Gessner v. Roeming, 135 WIs. 535, 116

as far as exemption therein was concerned. NWF 171. Partner not served cannot question

State v. U. S. Fidelity & Guaranty Co. \[Mo. validity of judgment against the property of the partnership. Capital Food Co. v. Globe Coal Co. \[Iowa\] 116 NWF 803. Title of action did not refer to defendants as copartner

71. Where property of partnership was at-

tached on ground of nonresidence and evl-

ners, but compliant contained usual allega-

dence showed that one of partners resided in

tions in actions against copartnerships, and

tached from improper. Barney v. Moore-

copartnership in fact was established by evl-

Haggerty Lumber Co. \[Mils\]. 48 S 232.

67. Evidence held to sustain finding that

partner not served to vacate judgment was

proper. Granult v. Abramowitz, 112 NYS 1081.

If judgment be obtained against partner-

by partner's creditor. Speth v. Larrimore

ship for debt owed by it, judgment creditor

is not first obliged to exhaust partnership

assets before he can levy upon separate

property of member of firm; he can elect

which to levy upon. Webb v. Gregory \[Tex. Civ. App.\] 108 SV 478.

67. Woods-Evertz Stove Co. v. Grubbs & Co. \[Mo. App.\] 116 SWV 6. Compalint for goods sold and delivered improperly dis

missed where one partner admitted liability

for amount sued for, although partnership

not established by proof (Laplinsky v. Col. \[sh., 61 Mils. 3113 NYS 783), or against

the firm alone (Id.). Where defendant was

T. W. H., described as a firm composed of

T. W. H. and J. H. B. H., and Judgment was

against them as a firm while prayer was

against them as individuals, the judgment

was against firm and a denial of relief

against them as individuals. House v. Wells

\[Tex. Civ. App.\] 112 SW 114.

68. Judgment may be entered against

partner served without entering dismissal

against another partner joined but not

served, since it is not necessary to enter or

der of discontinueance against party not

erved. Greer v. Lipfert-Scales Co. \[Ala.\]

47 S 807.

69. As he was no longer in court, judgment

against him in any capacity would be judgment

ment without service and consequently void

both as to him and as to the firm. McManus

v. Cash \[Tex.\] 108 SW 800.

70. Partner's interest in firm property held

subject to attachment for his individual debt 69 A SSS.

ness,77 or is founded on a breach of a contract to convey a partner's interest," or in fraud,79 one partner may maintain an action at law against the other. The principle on which partners after dissolution can sue each other in relation to what has been partnership property is that, the joint interest as partners having ceased, a new contract had been made between the parties as individuals.80 One partner cannot sue his copartner for conversion of firm property.\*\*71 Partition will not lie as to partnership property.\*\*72 An infant partner cannot be sued by his copartner without the appointment of a guardian ad litem.\*\*72

**SS 7.**_Dissolution, settlement, and accounting.84 See 10 C. L. 1118 A suit for dissolution is properly brought in equity, and the court having acquired jurisdiction may proceed to wind up the partnership affairs and subject its property to the payment of the firm debts.85 But where the partnership has already been dissolved, and the rights of the former partners are settled or easily ascertained, a member may recover his share of the profits in an action at law.86 Suit for dissolution may be brought in 77. Whether defendant had expressly contracted with copartner to pay for feeding stock corn, under partnership agreement for merely pasturing, held question of fact._

merchandise upon his express promises to pay Briggs v. Kohl, 132 III. App. 484. One party sold two-thirds of his interest in a mine for a specified amount to be paid him out of first net profits under contemplated partnership arrangement. Upon suit brought by askingee of this claim, held that liability for payment of the two-thirds interest to assignor did not grow out of partnership arrangement and action at law would lle taken into payment and held stock as collateral. He then entered into partnership his interest in firm, without warranty, does not esto btm, on subsequently acquiring a patient covering articles of kind manufacture, 4,50 shares equally. Plaintiff turned by firm, to maintain suit against former partner for infringement not committed during partnership term. Dell V. Rey-Held that partnership property consisted nolds Elec. Flaisher Mfg. Co., 161 F 129.

78. Where one partner agreed to buy partnership property consisting of timber at price stated from his copartner, held latter could maintain action for price, although as to this particular property no accounting had been had. Simpson v. Miller \[Or.\] 94 F 67. Where plaintiff and defendant entered into a contract whereby plaintiff was to have a one-third interest in the partner's ship, but defendant refused to carry out this agreement and to admit him to the partnership, held, in an action by plaintiff for money advanced, that defendant was stopped to allege the partnership. Blodgett v. Miller, 33 Ey. L. R. 682. 110 SWV 864.

01. Courts appear to isolate a transaction in which gross fraud or other wrongs is perpetrated by one partner on his associates, and regard it as so far detached from general partnership affairs that it may be treated as if all partnership affairs, except a single item, had been adjusted. Gilliam v. Loeb, 131 Mo. App. 70, 109 SWV 855. A number of persons formed partnership for purpose of buying a jack, delegating one of their number to negotiate purchase. He fraudulently misstated price paid, collecting for his own benefit excess over real price. Hebl that action for proportionate share of amount fraudulently obtained would lie by members. Id.

12 Cur. Law. PARTNERSHIP SS 7D1. 1227 the county where the partnership property is located, or in which one of the partners is found, although the parties may both be nonresidents. \[87\] A state circuit court has jurisdiction in winding up partnership to adjudicate a claim arising out of a maritime contract. \[88\]

(SS 7) \_A. Dissolution by operation of law. \[89\] See 10 C. L. 1116--The partnership relation is dissolved by the death \[90\] or by the voluntary bankruptcy of a member, \[91\] but seizure of a partner's interest under executory process does not work a dissolution. \[92\]

(SS 7) \_B. Dissolution by act of partners. \[93\] See 10 C. L. 1116--A partnership may be dissolved by mutual consent \[94\] or by one partner exercising his right to terminate the relation in accordance with the partnership agreement. \[95\] The retirement of a member, \[96\] or a sale of his interest to his partners, works a dissolution of the firm. \[97\] The admission of a new partner with the consent of all the members does not work a dissolution of the partnership where business is carried on under the original agreement. \[98\] A mining partnership is not dissolved by the retirement of a member, \[99\] nor by a sale of his interest without his copartner's consent. \[1\]

(SS 7) \_C. Dissolution by order of court. \[2\] See 10 C. L. 1116 (SS 7) \_D. Effect of dissolution. 1. In general. \[3\] See 10 C. L. 1110--Although a partnership is dissolved, if assets remain partnership creditors may consider the firm

SS7. Court acquired jurisdiction to wind up partnership. Adams v. Addison \[Ala.\] 48 S partnership operating steamboat In inter-sided. Partnership agreement held not superseded by later agreement whereby employees and one or partners were found. Hulings v. were to deposit certain sums of money with Jones, 63 V. Va. 696, 68 SB74. \[7\] partnership, and were to be paid by percent-age of net profits. Kaufmann v. Kaufmann 874. \[Pa.\] 70 A. 95. \[Pa.\] Partnership agreement, providing that if progress not satisfactory at end of year (N. S.) 654. \[89\], the allo, Partnership, Cent. Dig. % 593--delinement partner should assign all his rights to continuing partner, held dis-solved after 19 months by express verbal announcement by continuing partner that relation was terminated. Whilev V. Dewey \[C. C. A.\] 168 F 385. \[96\]. Where partnership articles provided that member might retire at times specified, or executory process at instance of another upon 10 days' notice to remaining partners member to enforce payment of an individual debt and auspensive appeal is taken from yet, held that such retirement worked discode-order of seizure, such appeal operates to va. \[97\], the work of the author, and the seizure does not of itself dissolve the partnership. \[98\], the work of the author, and as subsisting until their claims are satisfied.\* As between the members, one partner cannot bind another after dissolution,\* but if he attempts to do so and his act be ratified, it is binding.\* After dissolution a firm debt cannot be set off against a debt owing to an individual member.\*

(SS 7D) 2. _As to surviving partner and estate of deceased partner.\*_ See 10 C. L. 1117 Upon the death of a partner, the legal title to the firm property rests in the surviving member * in trust for the purpose of liquidating * and winding up the partnership affairs.11 He is vested with the exclusive management of the partnership property and affairs * free from interference by the probate court * or the personal representatives of the deceased partner.14 Firm property in the hands of a dormant partner who is the administrator of the deceased partner's estate may be liable for the widow's award and debts of the estate.18 The surviving partner may continue the business so far as existing transactions are concerned * and use his best judgment in winding it up.17 At common law he is individually liable for the firm debts,18

$22; Dec. Dig. SS 313-348; 30 Cyc. 710-751; 22 A. & E. Enc. L. (2ed.)208.

S. Search Note: See notes in 10 C. L. 1117; 40 A. S. R. 561, 66 L. R. A. 821; 1 L. R. A. (N. S). 643.

See, also, Partnership, Cent. Dig. SS 624-678; Dec. Dig. SS 277-296; 22 A. & E. Enc. L. (2ed.) 211.

4. In bankruptcy. Holmes v. Baker \[C. C. A.\] 160 F 922.

S. Where creditor of former copartnership brought suit to recover in severality against members, one of them could not enter an appearance for the others so as to bring them before the court. Ballon v. Skidmore \[KY.\] 118 SVV 441.

6. After dissolution one of partners execute contract in partnership name for adjustment of losses under indemmity policy. Partner who did not join was bound thereby where he ratified the terms of the instrument by participating in the negotiations leading to its execution. Trututut-Silvey-Ent Co. v. Callaway, 130 Ga. 637, 61 SE 481.

1. Member of dissolved law firm eued for services performed by him individually after dissolution. Defendant sought to offset claims against firm acerning prior to its dissolution. Held such set-off not allowable even though defendant was ignorant of dissolution. Cahill v. Dellenback, 139 Ill. App. 820.

S. Search Note: See notes in 4 C. L. 923, 924; 79 A. S. R. 709; 112 Id. 843; 4 Ann. Cas. 180, 472; 61 Id. 864; 61 Id. 85; 10 Id. 856.

See, also, Partnership, Cent. Dig. SS 509-698; Dec. Dig. SS 243-258; 22 A. & E. Enc. L. (2ed.) 220, 224; 15 A. & E. Enc. P. & P. 100.

9. In re WF WF, 59 Males. 810, 112 NVS 778; Clark v. Fleischmann \[Neb.\] 116 NW 290.

Administrative of deceased partner had no right as against surviving partner to possession of funds deposited In firm name. WWilson v. International Bank, 125 App. Div. 868, 109 XYS 102T.

10. On death of one partner surviving partner succeeds to all partnership property, whether real or personal, in trust for purpose of liquidation, even though deceased partner was appointed by agreement sole liquidator. McPhereon v. Swift \[S. D.\] 116 NWV 76.

01. Tillery v. Tillery \[Ala.\] 46 S 582. It becomes duty of survivor to collect assets, 12 Cur. Law. PARTNERSHIP SS 7D3. 1289

and in some states additional statutory liabilities are imposed upon him as administrator of the partnership estate.19 He holds subject to an accounting to the personal representatives of the deceased partner,20 but neither they nor the heirs are entitled to any part of the firm assets until the partnership debts are paid,21 since the share of the deceased partner cannot be ascertained until the partnership affairs are finally wound up.22 A creditor must exhaust his remedy against the surviving partner before he can proceed against the estate of the deceased partner, unless the former be insolvent.23 Lapse of time without inquiry will not defeat action by surviving partner to recover funds entrusted to deceased partner.24

(SS 7D) 3. \_As to continuing or liquidating partner,25 See 10 C. L. 1119 Upon dissolution one partner may assume the firm liabilities 26 by a contract supported by adequate consideration.27 A retiring partner who sells his interest and agrees to pay

of partner and when hope of success was needed to administer estate and sold deced-ended. Cowham v. Shipman, 151 Mich. 678, ent's interest to surviving partner. Held 15 Det. Leg. N. 150, 115 NUV 991. 18. Burgess V. American Bond & Trust Co., 103 Me. 678, 69 A S73. 19. Where.it was sought to hold surviving partner Ilable on his bond for proper administration of partnership estate, declaration of complaint by creditors held not to aver with sufficient clearness that suit against him in statutory capacity was intended. Burgess V. American Bond & Trust Co., 103 Me. 378, 69 A S73. Judgment against surviving partner Ilable as an individual at common law and as administrator of partner-ship estate under statute, which omits to re-cite in which capacity he was found Ilable for firm debts, where record implies individual liability, could not be amended so as to meet statutory requirements without setting out a different cause of action. Id. 20. Before the liquidation of a partner-ship its effects are considered presumably, although tested in land, and the personal representative and not the heirs of a deceased partner succeeds to his unliquidated interest therein. Clark v. Fleischmann \[Neb.\] 116 NUV 290. Heldr of deceased partner not entitled to bill requiring surviving partner to make return and settlement of partnership affairs, this being a right of the personal representative alone. Tillery v. Tillery \[Ala.\] 46 S 582. Where It was agreed that upon death of one partner his widow should assume all benefits belonging to her husband, held that title passed to surviving partner subject to accounting to representative of deceased partner and that estate was not entitled to share in firm assets in specie. In re Weir, 59 Mice. 320, 112 NYS 278. Surviving partner who assumed entire partnership property as his own through unauthorized sale by deceased partner's administration held guilty of conversation as to deceased partner's heirs. Goldstein v. Susholtz \[Tex. Civ. App.\] 19 Tex. Ct. Rep. 804, 105 SWV 219. Where partnership secured contracts from certain Indians to collect money due them from the federal government, upon dissolution of partnership by death of one of partners his estate had a right to share in whatever value these concontracts had. Cowham v. Shipman, 151 Mich. 673, 15 Det. Leg. N. 150, 115 NUV 991. 21. In re Dobert, 165 F 749. 22. Upon death of partner his widow pro- 125 WHERE 125. 23. 24. 25. 26. 27. 28. 29. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 21. 23. 28. 29. 20. 22. 24. 25. 26. 28. 29. 21. 22. 23. 24. 26. 27. 28. 29. 22. 23. 28. 29. 20. 23. 24. 25. 26. 28. 29. 21. 24. 27. 29. 22. 23. 25. 26. 28. 29. 20. 23. 24. 27. 28. 29. 21. 22. 24. 28. 29. 22. 23. 25. 26. 29. 23. 27. 28. 29. 24. 28. 29. 20. 24. 29. 25. 26. 29. 27. 28. 29. 28. 29. 20. 29. 21. 22. 23. 29. 22. 24. 29. 23. 24. 25. 26. 27. 28. 29. 28. 29. 29. 20. 21. 22. 23. 29. 23. 24. 25. 26. 27. 28. 29. 29. 21. 22. 24. 29. 23. 25. 26. 28. 29. 21. 22. 24. 29. 23. 25. 27. 28. 29. 21. 22. 24. 29. 25. 26. 29 the firm indebtedness is liable to the buyer upon failure to pay such debts.2\* A retiring partner is surety for the payment of firm debts although the continuing partner has assumed them to the knowledge of the creditors.29 A creditor suing upon contract of assumption of partnership debt is subject to equities between the original parties.20 Upon the dissolution of a partnership it is competent for the parties to agree that the selling partner shall not engage in a competing business.21

(SS 7) \_E. Accounting.32--See 10 C. L. 1120--Upon the dissolution of a partnership a partner, or the personal representative of a deceased partner, is entitled to an accounting,33 as is also the purchaser of a partner's interest, although his rights in the firm have not been recognized.34 An action for accounting will lie at the instance of a partner against a copartner for mismanagement 88 or for fraud.35 The right of action may be barred by the statute of limitations,87 by laches,34 by a prior sale of the partner's interest,39 or because the partnership accounts are so incomplete that a correct accounting is impracticable.40

judgment of dissolution entered on a cross bill improvidently allowed will be sustained in the absence of objection.\[44\] On accounting between partners, the partnership ledgers kept by bookkeepers are competent original evidence.\[45\] The books of a partnership to which all the partners have access are equally binding on all the partners and as between them they are presumed to be correct.\[48\] Equities between partners are properly settled on an accounting and the amount due from one partner to the other is to be determined by the final judgment, which may be enforced by execution.\[47\] The court may exercise its discretion as to whether the sale of partnership property after the debts are paid shall be ordered.\[48\] An injunction restraining interference with the partnership funds may properly be granted in a suit for an accounting.\[49\] In a suit for settlement of a partnership, the partner from whom the balance is found to be due pays the costs.\[50\]

\_Receivers.\_See 10 C. L. 1120--An ex parte order granting a receiver and an injunction dispossessing the managing member in a partnership of his property is an absolute nullity.\[51\] An order appointing a receiver may be amended nunc pro tune to permit him to pay debts.\[52\] Such an order is appealable by the aggrived party,\[53\] but is not subject to collateral attack.\[54\] A receiver of a partnership in a suit for an accounting should not be appointed unless the necessity therefor is clear,\[55\] and unless there is a amendment was properly refused. Teipner upon, but referee might be authorized to v. Teipner, 135 WIs. 380, 115 NW 1092.

44. Bill and cross bill on same issues will summed burden of proving that claims so paid be treated as in one cause. Clinton v. Winnard, 135 Ill. App. 274, aff., 233 Ill. 320, 84

01. On appeal from interlocutory order appointing receiver in dissolution suit, held that defendant was an "aggrived party" within meaning of $ 1289, Burns Ann. St. 1908, when complaint charged him as partner it was charged. Schilcher v. Whyte \[N. J. 41\] although he had not signed articles of partnership. Marshall v. Matson \[Ind.\] 86 NE 339.

01. Rule held not apply to loose sheets found in firm books which were not shown to be have been made during existence of partnership, Donaldson v. Donaldson, 237 Ill. 318, 86 NE 604. In an action for an accounting by one partner against another, exhibitst taken from partnership day book and sales book were admissible against the partner who had made entries in question as written declarations. Alexander v. Wellington \[Colo.\] 88 F 631. Account drawn up by one partner on basis of book value only conclusive as to capital contributed but not as to items open to shrinkage. Adams v. Hubbard, 221 Ea. 511, 70 A 855.

01. Gross v. Gross, 128 App. Dlv. 429, 112 NYS 780.

01. Where property consisted of shares of stock of equal value, no abuse of discretion to order an equal division instead of a sale. Ruggies v. Buckley \[C. C. A.\] 158 F 950.

01. Circumstances held to sustain granting of injunction. Causter v. Barnette, 49 Wash. 659, 96 P 225.

01. Boyd v. O'Neill, 121 La. 733, 46 S 788.

01. Goldman v. Manistee Circuit Judge \[Mich.\] 15 Det. Eng. N. 907, 118 NVR 600.

01. Receiver appointed to collect partner-ship assets paid partnership debts without authority. Heid interlocutory decree apointing him might be amended nunc pro tune permitting payment of such debts. Kliger v. Rosenfeld, 114 NYS 1006. On motion for an order nunc pro tune allowing payment of claims already made by receiver, validity of such claims could not be passed through a set of rules.\[53\]

01. In an action by receiver against third party, order of appointment may be at-tacked on ground of lack of jurisdiction. Title Insurance & Trust Co. v. Grider, 152 Cl. 476, 84 P 601.

01. Receiver of copartnership engaged in publication of book held improperly appointed where publication would stop because of lack of funds if appointment was made permanent. Smith v. Brown \[Vash.\]

96 P 1077. An allegation that one partner allowed a creditor to obtain a judgment against the firm by default on service of summmons on himself alone, of which he gave no notice to his partner, establishes a prima, face case for appointment of receiver to prevent waste and mismanagement of firm property. Whillem v. Chapman, 80 B. C. 84, 61 SE 249. Appointment of receiver by firm creditor without notice and without showing Involves of firm or partners or of firm creditor secured by beds of trust of partner-ship property, who took charge of firm property held by creditor under trust deed, held Improvident and Improvence Lumber Co. v. Lyon \[Miss.\] 47 S 849. Where partners operating steamabout rented from a third party were unable to pay rent and interest whereby owner threatened to resume possession and one partner sent out dissolution notices, held a receiver was properly appointed to take charge of property.

Hulimas v. Jones, 63 W. Va. 696, 60 SE 874.

Ex parte appointment of receiver for partnership operating switchboard and telephone lines held not authorized on mere allegation no adequate remedy at law.56 A receiver of the property of a copartnership pending an accounting is entitled to all the firm property,57 and payment to him affords full protection against any subsequent claim by the partners.58 Defenses based upon partnership relation to an action between partners are not avoidable in a suit by the receiver appointed in such action against a third party.59

\_Credits and charges.\_See 10 C. L. 1121--.By agreement the parties may except specified property from division and sell it jointly.60 In determining the credits to which a partner is entitled and the charges for which he is liable, the partnership agreement and the surrounding circumstances must be considered.61

that property 1s deteriorating through mis-management. Marshall v. Matson \[Ind.\] 86 was price fixed by decedent in letter to other members. Boreing v. Wilson, 33 Ky. L. R. 14, 108 SVW 914. In suit by executrix of deners as individuals must be alleged and proven. Whilden v. Chapman, 80 S. C. 84, 61 SE 249.

57. An order providing for turning over property to receiver on pain of punishment client, held evidence showed partners so for contempt was improperly granted where there was no evidence that partner against winner equal division of such fees; conse-whon order was issued had possession thereof. Gross v. Gross, 128 App. Div. 429, 112 NYS 780. Fact that one partner has received and disposed of firm assets held App. 112 SVW 826. On accounting of partnership to receiver before final judgment in action United States, where both partners died for accounting. Id.

01. Title Insurance & Trust Co. v. Grider, 152 Cal. 746, 94 P 601.

01. In suit by receiver of partnership against third party, the latter could not set up that action between partners could not be maintained on ground that assets had not been exhausted. Title Insurance & Trust Co. v. Grider, 152 Cal. 746, 94 P 601.

01. Although no reference there in petition in petition. Meeve v. Eberhardt \[Tex. Civ: App.\] 108 SVW 1013.

01. Held allowable: A retiring partner who has not withdrawn all his capital from the business may elect to take the income of such capital instead of the interest, and in that case he is chargeable with an allowance for skill and services of the other members. Moore v. Rawson, 193 Mass.

493, 85 NE 586. In suit to wind up partner-ship formed to deal in real estate, by terms of which one was to furnish money, the other time and skill, latter to be recom-pensed by equal share of profits after de-ducting expenses, Including compensation for his services, held that latter was entitled to reasonable value of his services when the other partner repudiated partnership relation, and having broken contract so that rule of compensation provided for by contract could not be applied. Harrison v. OrNeill, 121 La. 733, 46 S 788. Clarke \[C. C. A.\] 164 F 838. Where one part-ner agreed with copartner to take care of partnership property, in absence of stipulation as to amount of compensation, held to be entitled to compensation usual for such services. Costen v. Price, 33 Ky. L. R. 553, 111 SVW 390. Breach of obligation to construct machine and make certain advancements according to partnership agreement. Gilbert v. Howard Automatic Mach. Co., 147 N. C.

308, 61 SE 176. Evidence held to sustainership agreement provided that defendant finding that deceased partner's estate was changed for land sold together with part- and agreed with the 12 Chr. Law. PARTNERSHIP SS 7E. 1233

\_Interest.\_See 10 C. L. 1122.--In the absence of agreement, interest will not be allowed on advances made, by a partner,92 nor on funds held by him pending settlement.93 Interest may be allowed on the balance due on a contested settlement.94 Where the accounts between a deceased partner and the firm are mutual and of equal rank, it is proper to allow the same rate of interest on each.95

\_Reference.\_See 10 C. L. 1123.--An order of reference is presumptively regular.96 Where the accounts of an alleged partnership are voluminous and complicated, extending over many years, some of the items, being contested, a reference is proper.97 The referee need not state a formal, itemized account,98 and his report is conclusive where the true state of the accounts cannot be gathered from the record.99

\_Judgment and decree.\_See 10 C. L. 1123.--A judgment in an action for accounting is conclusive as to defenses which are not pleaded.90 Where both partners participated in an accounting made upon motion of one of them without objection from the other, the account cannot subsequently be questioned as being made without jurisdiction.91 A judgment given for an excessive amount and creating a lion therefor may be corrected by reformation.91 It is within the discretion of the court to reopen a case of accounting for purpose of taking additional testimony.93

\_Opening and correcting settlement.\_See 10 C. L. 1123.--A partnership settlement and accounting may be set aside for fraud 94 or for error and mistake.95 The right

would sell half interest to complainant, the contract being construed not to intend any Wellington \[Colo.\] 98 P 631. deduction from gross profits. Winnard v. Clinton, 233 III. 320, 84 NE 261. On account- ing of partnership to prosecute claims remained held sufficient compliance with de-eagian federal government, held that es-eagian Federal government to bring action for the correction of a partnership settlement may be barred by laches.\[78\] The statute of limitations does not begin to run against an action to set aside a partnership accounting on the ground of fraud until discovery of the fraud.\[77\]

(SS 7) \_F. Contribution and indeminity.\[78\]\_See 8 C. L. 1284--A partner is entitled to indemnity from his copartners forts committed by them if he has not himself been personally guilty.\[79\]

SS 8. \_Limited partnerships.\[80\]_See 10 C. L. 1128_

**PARITY WALLS.\[81\]**

_The scope of this topic is noted below.\[82\]_

A party wall is ordinarily one built partly on the land of one and partly on that of another for the common benefit of both,\[83\] but the wall if between two properties need not necessarily rest equally on both;\[84\] and since there is nothing to prevent the owner of a lot from erecting a wall upon his own premises, whether a wall so built is a party wall conferring upon the owner of the adjacent premises the right to use it as such is a question of fact largely dependent upon the intention of the builder.\[85\] While the presence or absence of windows is not an infallible test, their presence is a good indication that it is not a party wall.\[88\] and where there is no necessity for a

amount much smaller than was due, held \[16 Id. 434; 82 A. S. R. 679; 89 Id. 924, 925; settlement set aside and estate of such partner Haible, Johnston v. Johnston \[Minn.\] 119 N NW 652.

75. Stiller v. Ehrman \[Ky.\] 114 SVW 280.

Settlement.corrected as to error in interest on bills payable \[Stitzel v. Ehrman \[IKy.\] 114 SVW 280\], as to error in understanding loss allowance on bills payable \[Id.\], as to error in statement of rents and expenses unpaid \[Id.\], for error in understanding upon accounts \[Id.\], for error in understanding storage and taxes \[Id.\], for error in charging firm both with goods sold and proceeds thereof \[Id.\].

76. Evidence held not to show plaintiff guilty of laches in bringing suit to correct settlement. Stitzel v. Ehrman \[Ky.\] 114 SVW 280. In suit for injunction to restrain disclosure of trade secrets by former partner, held that latter could not claim Ignrance of his rights as partner under dissolution of partnership or that he was unjustly forced out of same where he acquaused in dissolution for 18 years. Leslie E. Keeley Co. v. Hargreaves, 236 IL 816, 86 NE 132.

01. Lapse of 15 years after fraud until discovery, Johnston v. Johnston \[Minn.\] 119 NW 652.

01. Search Note: See Partnership, Cent. Dlg. # 183, 171, 783; Dec. Dig. # 84, 85, 109; 30 Cyc. 450, 451, 464.

01. Held that where no negligence was proven as to one of three railway companies forming partnership, but negligence was found against firm, member without fault was entitled to judgment over against code-fendants. Texas Cent. R. Co. v. Pool \[Tex. Civ. App.\] 114 SVW 685.

01. Search Note: See Partnership, Cent. Dlg. # 823-865; Dec. Dig. # 348-376; 30 Cyc. 751-767; 15 A. & B. Enc. P. & P. 1114.

01. See 10 C. L. 1124.

Search Note: See notes in 4 C. L. 957; 6 Id. 952; 10 Id. 1125; 66 Id. R. A. #73; 2 L. R. A. (N. S.) 87; 10 Id. 1191; 11 Id. 924; 111 Id. 924; 111 Id. 925; 111 Id. 926; 111 Id. 927; 111 Id. 928; 111 Id. 929; 111 Id. 929; 111 Id. 930; 111 Id. 931; 111 Id. 932; 111 Id. 933; 111 Id. 934; 111 Id. 935; 111 Id. 936; 111 Id. 937; 111 Id. 938; 111 Id. 939; 111 Id. 939; 111 Id. 930; 111 Id. 931; 111 Id. 934; 111 Id. 935; 111 Id. 936; 111 Id. 937; 111 Id. 938; 111 Id. 939; 111 Id. 939; 111 Id. 939; 111 Id. 931; 111 Id. 930; 111 Id. 931; 111 Id. 932; 111 Id. 934; 111 Id. 935; 111 Id. 936; 111 Id. 937; 1 party wall and apparently there will be none in the future, the presumption is strong that a party erecting a wall on his own premises did so with no intention that it should be a party wall." Party walls may be created by contract, express or implied, between the parties, by prescription or by statute," and under the common law the right to use and the manner of use of a party wall depends either on an agreement between the adjoining owners or by prescription." Where two owners build a party wall for their common use, their rights in the wall do not depend upon prescription," and where it is built on the dividing line of adjoining owners and is permitted to remain for time immemorial, it is presumed that the wall was constructed by agreement," and in the absence of an express agreement the parties' rights will be dependent upon an implied agreement " that the wall shall be and remain a party wall for each of the lots,--that its use shall be as a wall to each of the buildings constituting a part and acting as a support thereof, and if one of the owners desires to remodel or reconstruct his building he may do so, being careful not to injure the other's building or unnecessarily interfere with its use." Such implied agreement is not strictly in derogation of title, and when executed is not within the inhibition of the statutes of frauds and perjuries." It will be construed according to the presumed intent." The first builder is he who first elects to make a party wall and his right cannot be defeated by the act of another." If a builder lay a foundation wall extending, as a party wall on his neighbor's lot, he cannot erect therein a wall wholly within his own line and prevent the erection from being a party wall." That one sees fit to extend a party wall does not warrant a finding that the new wall is anything but a private wall." After a party wall has been erected under a contract providing that the adjoining owner can use the same by paying the builder one-half of the value, at the time of the use, of the whole thickness of the part used, and appropriated and paid for by the person whose land adjoins that of the builder, each party is the owner in severalty of that part which is on his land, subject to easements both in the wall and the land in favor of the other party," but until it is appropriated by the adjacent owner under the contract it is the property of builder, and so far as it stands on the land of his neighbor it is lawfully maintained there under a license which preserves to the builder all his rights of the property therein,1 and a use of that property or any interference with it without the owner's consent is a violation of his right giving a cause of action in damages." Where a wall is a strict party wall, neither of the adjoining owners has a right to maintain windows therein,4 and equity will enjoin such maintenance and require the restoration of the wall to a solid wall.4 Where a party wall is situated on both sides of a division line, each party has title to the soil to the line but his title is qualified by the easement which the other owner has of supporting his building by the common wall,5 but one may acquire an easement in an adjacent wall by deed or by prescription which presumes a deed,6 and such easement includes the right to repair or rebuild,7 but a new or an additional servitude cannot be imposed 8 unless the owner upon whose land the wall is erected by his conduct is estopped from denying such right.9 Where the wall is situated upon the property of one party, the right of the other to have support therefrom is in the nature of an easement only,10 and the right ceases upon the destruction of the building by fire.11 While prescription gives a right measured by the use actually made,12 yet a right under an implied agreement implies the right to make alterations and changes in the use,13 and each party has a right to build the wall higher so as to increase the height of the building but at his own cost.14 An owner on whose boundary line is erected a party wall has an easement in so much of the adjacent lot as is occupied by the wall,15 but this easement involves no more than the right to have the party wall maintained with all its uses as a party wall,16 and when he alters his house by building another story, using the whole thickness of the party wall, the other owner if he desires to extend his house and use the wall as extended must contribute to the value of the extension.17 Where one of the owners determines to build a new house or alter his own by adding a story or more to it, he does not abandon his easement in part of the wall nor the title to his own part,18 Each party to a party wall agreement is entitled to the use of the whole of the party wall as a means of support of their respective buildings, having: a fee to the center of the wall and an easement in the remaining part.19 One using a party wall renders himself liable to contribution toward the cost of the same,20 unless he is otherwise shown to be relieved therefrom.21 A party wall to the construction of which the owner of premises has not consented is not an incumbrance on such premises but a burden imposed by law for the general public benefit and incident to the ownership of property.22 Hence where an adjoining owner makes such use of a 5, 4, Kiefer v. Dickson, 41 Ind. App. 543, 84 NE 523. 5.

12 Cur. Law. **PATENTS.**

party wall as to become bound to pay a share of the expense thereof, his liability to the owner's meeting the wall is not a charge which his lessee would be bound to meet in the absence of notice of nonpayment of adjoining owner's share of wall.28 Although one may by purchase have acquired the absolute title to a division wall, yet he may by his conduct and attitude toward the use of the wall by the grantor be estopped from denying the grantor's right to such use until the owner in good faith -elets to destroy or alter the wall.24 One who negligently uses a party wall is liable, not only for the damage done or accrued during such negligent use but also for damages that directly or proximately result from the injuries inflicted,25 and the latter damages may be recovered even though they accrue after the institution of the suit.28 Where a party wall is erected by agreement resting in part on the lands of two adjoining owners with a covenant that the owner's meeting the wall shall have compensation for a portion of the expense from the other owner when the latter shall make use of the wall, the obligation to pay arises only when such use is made.27 Such covenant runs with the land as against a grantee of the adjoining owner, and the grantee who first avail's himself of the benefits of the wall becomes bound to pay his share under his grantor's covenant to the owner who has erected such wall,28 and there is no liability on the part of the covenanting grantor, who has made no use of the wall, to pay the stipulated share of the expense either to the adjoining owner or to the grantee who first availed himself of the benefits of the wall.29 On the subject of whether covenants in regard to the payment of the expense of construction of a party wall or for the use thereof run with the land, the decisions of the courts are by no means uniform,29 but the weight of authority is to the effect that they can be made to run with the land if the parties so intend,31 and that they do so run where they are binding on the heirs and assigns of the respective parties,32 and where they do, the covenantor's immediate grantee whose conveyance is subject to the covenant and who uses the wall is neither a necessary nor a proper party to a suit on the covenant, after he no longer owns the land.28

Passengers, see latest topical index.

**PATENTS.**

- **1. Necessity and Kinds, 1238.**

- **2. Paternability, 1238.**

- **3. Who May acquire Parents, 1250.**

- **4. Mode of Obtaining and Claiming Facts, 1251.**

- **5. Letters Pattent, 1263.**

- **6. Duration of Patt Right, 1267.**

- **7. Disclaimer and Abandonment, 1269.**

- **7.**

- **8.**

- **9.**

- **10.**

- **11.**

- **12.**

- **13.**

- **14.**

- **15.**

- **16.**

- **17.**

- **18.**

- **19.**

- **18.**

- **19.**
  1238PATENTS $ 1. & 12 Cur. Law.

SS 1. _Necessity and kinds._\[44\] See 10 C. L. 1127--The right of an inventor to a monoply is purely a creature of the statute, not recognized at common law,\[45\] and the exclusive use for the full term is the only substantial property right obtainable under the patent law;\[36\] hence, no cause of action arises at law for infringement before a patent is granted irrespective of how the prior use may have been obtained.\[37\] No absolute right of property is conferred by the grant of a patent,\[38\] but the patentee is merely put in a position to assert his prima facie right in case of an infringement and have the same adjudicated in a court where extrinsic evidence may be heard.\[39\] The monopoly does not extend beyond the jurisdiction of the government granting the same,\[40\] and whatever effect a patent granted by one country has in another depends upon the status given to it by the laws of the latter,\[41\] and the burden of showing that under the law of Cuba, during the period of its military government by the United States, protection had been extended, rests upon the party claiming exemption under the Cuban law.\[42\] There are two classes of patents, one for simple elements, and another for a combination of elements,\[48\] but there is no such classification as simple and complicated inventions.\[44\] Letters patent, when issued, constitute a contract,\[45\] but the mere filing of an application for a patent does not constitute such a contract as would come within the constitutional provision that "no state shall make any law impairing the obligation of contracts,"\[44\] and since the right to a patent is purely statutory it can be modified or taken away before rights under it have become vested.\[47\] Although valid letters patent when issued give the patentee a vested right in the invention for which the patent is issued, no such right is acquired under the preliminary proceedings leading up to its issuance,\[48\] and, since the proceedings requisite to the acquiring of a patent are analogous to the procedure in an action at law before final judgement, they may be changed or abolished unless the statute especially provides for the protection of pending cases.\[48\]

SS 2. _Patentability. Subjects of an invention._\[50\] See 10 C. L. 1128--The patent must involve actual invention\[51\] and disclose something new, practical and useful.\[52\]

ing purchaser of lot using wall Ilable for portion of wall. Sandberg v. Rowland \[Wash.\] 97 P 1087. No presumption that owner of adjacent lot on utilizing wall paid proportion of price to vendor of purchaser, where purchaser took possession and continued same. Id.

SS3. Where there was no express assumption of burden of covenant, and agreement was recorded giving subsequent grantes constructive notice. Morris v. Burr, 59 Misc. 259, 112 NYS 243.

SS4. _Search Note:_ See notes in 20 L, R. A. 605; 28 R. 423; 29 R. 78; 29 Id. 78; 55 Id. 631; 2 L. R. A. (N. S.) 1094, 1173; 8 Id. 1177; 12 Id. 599; 14 Id. 271; 16 Id. 550.

See, also, Patent, Cent. Diz. $ 257-269, 350-356; Dec. Diz. $ 181-19; 220-255; 22 A. & E. Enc. L (2ed.) 260; 21 Id. 270.

SS5. _Avery v. Case Flow Works, 163 F 842._

SS6. _Where patent though delayed issued for full time, inventor not in position to maintain action at law for damages against party causing delay. Avery v. Case Flow Works, 163 F 842._

SS7. _Avery v. Case Flow Works, 163 F 842._

Causing interference proceedings to be prosecented in patent office, delaying issuance of patent to complainant for purpose of obtaining benefit and use of invention though malicious, not actionable at law for damages. Id.

SS8. _Necessity and kinds._\[44\] See 10 C. L. 1127--The right of an inventor to a monoply is purely a creature of the statute, not recognized at common law,\[45\] and the exclusive use for the full term is the only substantial property right obtainable under the patent law;\[36\] hence, no cause of action arises at law for infringement before a patent is granted irrespective of how the prior use may have been obtained.\[37\] No absolute right of property is conferred by the grant of a patent,\[38\] but the patentee is merely put in a position to assert his prima facie right in case of an infringement and have the same adjudicated in a court where extrinsic evidence may be heard.\[39\] The monopoly does not extend beyond the jurisdiction of the government granting the same,\[40\] and whatever effect a patent granted by one country has in another depends upon the status given to it by the laws of the latter,\[41\] and the burden of showing that under the law of Cuba, during the period of its military government by the United States, protection had been extended, rests upon the party claiming exemption under the Cuban law.\[42\] There are two classes of patents, one for simple elements, and another for a combination of elements,\[48\] but there is no such classification as simple and complicated inventions.\[44\] Letters patent, when issued, constitute a contract,\[45\] but the mere filing of an application for a patent does not constitute such a contract as would come within the constitutional provision that "no state shall make any law impairing the obligation of contracts,"\[44\] and since the right to a patent is purely statutory it can be modified or taken away before rights under it have become vested.\[4 of casting ends of crossbars into uprights, \[ber Co. \[C. C. A.\] 162 F 892. Anderson, No. In re Sheldon, 31 App. D. C. 201. Adding to & book additional columns not involving invention. In re Taylor, 31 App. D. C. 529. ILLUSTRATIONS. Patents held to disclosees invention One claim of each patent for improvements in turning fahes. In Sheldon, 31 App. D. C. 201. Truthful, reluse No. 12,487 (original No. 685,508) frictional re- tardoring means for spring vehicles, and No. 12,399 (original No. 743,995) anl-ytytation device for vehicles. Hartford v. Hollander \[C. A.\] 163 F 948. Lichtenstein, No. 8,814,612 (design for hat band. Lichtenstein, V. Straus, 166 F 819. Dyer, No. 483,646, process of making artificial mica sheets for electrical insulation. Mica Insulator Co. v. Commercial Mica Co. \[C. C. A.\] 166 F 440. Stockholm, No. 318,379, process of filtering beer. Loew C Filter Co. v. German-American Filter Co. \[C. C. A.\] 164 F 855. Wightman, No. 411,947 (rheostat for electric cars. Thomson-Houston Wiestman, 164 F 855. Eleco. Vo. Fraction Equipment Co. 164 F 435. Allens, No. 424,944, surgical pump. Turnax V. Chilts Adjustable Parlor Chair Co. 162 F 897. Mallillo, No. 430,868, for regulating system for electric circuit. Electric Storm-age Battery Co. v. Gould Storze Battery Co. v. \[C. C. A.\] 158 F 610. Leach, No. 43,686, loco-motive track sander, Economy Locomotive Sander Co. v. American Locomotive Sander Co. v. American Locomotive Sander Co. v. C. A.\] 162 F 853. Aiken, No. 450,486, and No. 492,951, apparatus for conveying, cooling and straightening metal. Natation Tube Co. v. Alken \[C. C. A.\] 163 F 254. Whongen, Phillips V. Faber Sulky Co., 160 F Rhoades, No. 454,791, Improvement in looms. Dyner Co. v. American Loom Co. \[C. C. A.\] 161 F 728. Short, No. 459,794, rheostat for electric cars in manner of construction of pitch and'tde of making flues through same. Dinner v. American Sheet & Tin Plate Thomson-Houston Elec. Co. v. Traaction Co. 160 F 871. Donner, No. 620,541, mechanism for rolling black plate, claim 4. Id. 493,461, thread controlling device for sewage materials. Malmen v. Union Special material to make miter joints. Smith & Macho, Co. \[C. C. A.\] 165 F 440. Staples, No. Hemenway Co. v. Stearns & Co. \[C. C. A.\] 166 F 760. Wright and Asilborg, No. 633,772, claims 1 and 5, for automatic circuit breaker. V. Staples & Hanford Co. \[C. C. A.\] 167 F 738. Westinghouse Eloc. & Mfg. Co. v. Condit Lovell and Bredenberg, No. 490,877, book- Eleco, Mirg. Co. 159 F 154. Arrott, No. 633-trimming machine. Lovell v. Seybold Mach. 841, for dregor for pulverulent material. Co. 159 F 738. Woodward, No. 434,461, Mott Iron Worts v. Standard Sanftray Mfg, thread-controlling device for sewage mao. Co. C. A.\] 159 F 135. Walker, No. 635,619, chines. Union Special Mach. Co. v. Malmen, and 788,803, soil pipe drainage and venting 161 F 748. Moran, No. 500,149, air lock for fittings. Morton v. Llewelly \[C. C. A.\] 164 coalsons. O'Rourke Engineering Const. Co. \[C. C. A.\] 165 F 938. Yornell, final pad and hose supporter. O'Brien v. Fos-No. 514,705, improvement in can labelling ter Hose Support Co. \[C. C. A.\] 165 F 710. machine. Knapp v. Atlantic Mach. Works, 162 F 391. Hall g (catalog, No. 522,938, special) stating of so placing in novel combination valve movement in pump. Warren Steam one brass and two iron pieces that a ruesues pump Co. v. Blake & Knowles Steam pump combination was perfected. Rainer V. WestWorks \[C. C. A.\] 163 F 263. Whiting & Stern Tube Co. \[C. C. A.\] 159 F 431. Rich-Wheeler, No. 526,913, pumping machine. Id. \[mod and Zeller, No.

PATENTS SS 2.

**12 Cur. Law.**

**wasit belt. Tubelt Co. w. Friedman, 158 F**

**sarcophagus monument. Crier v. Innes, 160**

**430. Farrell, No. 663,069, process for bleaching nuts.**

**ing nuts.**

**Filtration Walnut Grovers Ass'n v. Anderson-Barn-Grover Mfg. Co. \[C. C. A.\]**

**166 F 443. Claude & Hess, No. 664,838, apparatus for storing acetylene gas.**

**Petersubitzo doubtful: Tombkins design**

**pants for storing acetylene gas.**

**Cial Acetylene Co. v. Avery Portable Lighting Co.**

12 Cur. Law. PATENTS SS 2. 1241

The mere "function,"988 principle or operations of a machine,"84 separate from the means or mechanical devices by which the result is accomplished,"85 as distinguished from a "process,"984 is not patentable; nor is an anticipated invention,"87 or process,"88 an invention once abandoned,"89 a mere operative idea or principle,"90 an idea or conception amounting to nothing more than a mere abstraction,"61 the coupling without modification of a motor that will run any kind of machine to a machine that will run with any kind of motor,"2 the aggregation of old parts to make the structure of a new design,"63 or the aggregation of old parts acting independently and simultaneously without having any effect on each other or producing a new result,"84 although the combination may cheapen the cost of production."85 But a combination if useful,

Eickemeyer, No. 671,808, alternating current

54. American Steel & Wire Co. v. Denning

motor. General Elec. Co. v. Corliss \[C. C. A.J 160 F 672. Pieper, No. 104,099, electric mo-

55, Palmer, Denmead & Baughman, No.

tor regulator and No. 721,229, motor. Pieper

538,553, claims 1, 3, 4, 23, 26 and 30,

v. Electro Dental Mfg. Co. \[C. C. A.J 160 F 46\] not merely for functions but for specific

930. Force, No. 705,228, printing die. Kuhn

means to accomplish defined functions or re-

v. Lock-Stub Chek Co. \[C. C. A.J 165 F 44\],

sanke, hence valid. Union Mach. Co. v. Dia-

Searle, No. 707,861, railway car beating app-

mond Match Co. C. C. A.J 163 F 148. Bates,

paratus. Safety Car Heating & Lightning

No. 577,639, machine for making fence of

Co. v. Consolidated Car Heating Co. I.C.

v. Wire or mesh type not invalid as for

A.J. 160 F 476. Benjamin, No. 721,774, claim

mode of operation, principle or function of a

32, and No. 721,777, claims 5 and 13, Ben-

machine. American Steel & Wire Co. v. Den-

jamm Elle. Mfg. Co. v. Dale Co. \[C. C. A.J 158 F 617. Tysnowski, No. 727,034, for pyro-

No. 527,424, held not invalid because merely

graphic tool "comprising combined pyrro-

for function of machine. Expanded Metal

graphic point and ascorbicer." Tysnowski V.

Co. v. General Fireproofing Co. \[C. C. A.J 164 Thayer, 159 F 165. Merrell, No. 721,173, for

F 849.

mask with interlocking devices. Merrell,

56. Putting previously invented combina-

Soule Co. v. Stat Co. \[C. C. A.J 159 F 142\],

froming no an ordinary type-writing machine,

Browning, No. 730,870, magazine firearm,

primiting it there and then removing same,

claims, 37, 38, 39. Browning v. Funke, 164 F nder

not a process but a function and not patentable.

197. Eggers, No. 737,55, amusement app-

rats. Consolidated Loops Co. v. Barnum,

161 F 915. Claims 1 and 10 held invalid on

typewritten work, held void. Id.

rehearing. Id. Arrowsmith, No. 748,555, in-

step-support, claim 3. Arrowsmith Mg. Co.

not patentable, being anticipated by Zarling,

v. Gilbert Mfg. Co. \[C. C. A.J 166 118.\]

rvssmth patent, No. 748,553, for instep-

smport, claims 3 and 4 held void for lack

of patentable invention in view of former

air. Arrowsmith Mfg. Co. v. Gilbert Mfg. Co.

158 F 307. Van Westrum, No. 753,487, method

of sprinkling streets. Westrumble Co. v. Lim,

coln Park Com'rs, 164 F 989. Whitmore, No.

791,967, attachment for plano players. Roth

v. Harris, 162 F 160. Eisenstein, No. 791,505,

method for finishing canes by certain coat-

ing. Eisenstein v. Fibliger, 160 F 686. Weiss-

santhanthner, No. 801,281, sheet-metal closure

for bottles, etc. Weissenhammer, V. Dodge

Metallic Cap Co. \[C. C. A.J 161 F 915\],

52. Von Eberstein v. Chambliss, 166 F 483;

Tubelt Co. v. Friedman, 158 F 430. Donner,

No. 620,541, method and mechanism for roll-

64 1242

PATENTS $ 2. 12 Cur. Law. novel and involving invention, is patentable, \[68\] and the one who first assembles old elements in a combination so as to supply a simple, efficient, durable, cheap and easily manipulated machine, is entitled to protection though the result is accomplished by a simple change; \[7\] and, if the adaptation of old elements so as to co-act with each other in an organization involves the exercise of more than the skill of an ordinary mechanic the result may be patentable if a more beneficial result is effected \[68\] or a new or useful product produced or an old product attained in a more efficient and economical way than by the separate operation of the parts, \[69\] and in such case, if a single, practical and beneficial result is produced, it is not necessary to patentability that the final result is produced by the simultaneous or successive action of the combined elements, \[70\] if the action of each is necessary and contributes to the general result. \[71\] That a machine shall produce an original result is not necessary to patentability, \[72\] for, if the new arrangement increases the effectiveness of the old by increased product or by lessening the expense, that fact affords evidence of invention. \[73\] Where an idea is old in art, it gains nothing by a combination. \[74\] In a new combination of old elements there must be not merely an improved result or a new result but a new mode of operation as well, and this must disclose more than the application of mere mechanical skill. \[75\] The law looks not at the elements or factors of an invention as a subject for a patent but only to the combination itself as a unit distinct from its parts, and in such case there can be no comparison of the patented and unpatented parts. \[76\] A mere difference in the proportions of the constituents of an alloy, however useful the result may be, does not entitle the originator to a patent, the difference being one of gradual improvement without there being any break or change per saltum in the artificial qualities of the alloy. \[77\] All improvements in devices or processes or means for producing a given result are not invention, \[78\] and a new 12 Cur. Law. PATENTS $ 2. 1243 and useful product of manufacture to be patentable must be differentiated from all other articles by something that is fundamental and radical 18 and to create them must involve the exercise of invention or discovery beyond what is necessary to construct the apparatus for its manufacture or production.80 The mere novelty 81 and utility 82 or the enhancement of the attractiveness of an article 83 or the change from one to the other of two varieties of resistance which are old and well known equivalents of each other 84 does not involve invention. The mere recognition that a certain belief is erroneous is a mechanical truth and not an inventive act.85 There may be invention in transferring an old element from one place to another if done to meet a new or novel exigency and to serve a new purpose in its new sphere of action,88 but to apply an old device to a new use which involves no new change in the mode of application is not invention,87 nor does simply taking that which is at hand, in general use, and applying it without change of function in place of another common form because of its supposed superiority for the purpose, involve invention,88 but the taking of a device from one industry and its application to an entirely different purpose in another may constitute invention where the original device was not designed, adapted or actually used for the performance of such new functions.89 The contribution to an important industry of a device that is labor-saving, effective, and which to a degree re-lieves labor under fierce heat conditions, constitutes invention.90 .The application of a device to a new use, if the new use is so nearly analogous to the old that the applicability would occur to a person of the ordinary mechanical skill, is only a case of double nse and not invention.91 There is no invention in making two parts of one thing or one of two, when by such change no different result is attained; 92 nor does the mere substitution of one material for another without change in the result, except of a minor character, disclose invention,93 but the rule that substitution of material does not constitute invention is not without exception.94 While at times it may be permissible to claim as an element of a combination "means" otherwise unspecified for effecting certain mechanical results,85 yet, where the attempt is made to monopolize the abstract result sought to be obtained instead of the concrete mechanism devised for so doing, the claims are bad as the patenting of a principle or function." A system of transacting business disconnected from the means for carrying out the system is not an "art,"?" hence not patentable unless the means used are novel and disclose invention." A design to be patentable must possess the quality of attractiveness to the eye." A design patent is void if the article for which it is given is not a proper one for a design patent,1 and the test as to invention, newness, and originality is, "do the two things present to the eyes of the ordinary observer, purchaser and user the same general appearance." A discovery that one highly explosive gas used as a solvent for another makes a solution having none of the explosive properties of either substance singly, and which may be handled when embodied in a device for utilizing the same, is patentable.3 So, also, is the discovery and utilization of a process of nature for a practical purpose.4 Results, found by experimenting as others have previously done, though superior to what others may have produced, is neither invention nor evidence of invention.5 No invention is required to "flange" an article by an ordinary method.6 Invention cannot be claimed in the appropriation of an old device by reason of an unthought of and undisclosed function dormant in the old device,7 nor will a second patent be granted to overlap a former one.8 Except in inventions of the most primary character, new mechanical forms and appliances are not to be looked for, and patentable invention is shown by making use of those at hand in the same or kindred arts by so adapting and using them as to bring about new results,9 and inventors are not held to the devising of new mechanical forms or new adaptation and application of those which are already at hand, but the question is whether having regard to what there has been in the past, new and beneficial results have been produced by means not before employed, amounting to inventive advance.10 Where an 18 Cur. Law. PATENTS SS 3.1245:

inventor is entitled to the benefit of the doctrine of equivalents, it is not essential that the equivalent does the same work in precisely the same way.11 The test of invention is mental conception,11 but a mere conception not in some way demonstrated or communicated does not amount to an invention,13 for an invention resting on a mere theory or a mere intellectual notion, or uncertain experiments, is not an invention under the patent laws.14 A valid patent cannot be issued for an improvement which is simply a new application of knowledge already familiar to that skilled in the art,18 or where the alleged invention is a mere modification of the principle involved in former inventions or discoveries.14 Neither sales, popularity nor effectiveness of itself show patentable invention,17 nor do all combined establish the same,18 but all these are mere evidence of invention,19 although sometimes alone persuasive.20 Where the court has to deal with a device which has achieved undisputed success and accomplishes a result never attained before, which is new, useful and in large demand, it is generally safe to conclude that the man who made it is an inventor,21 but these considerations cannot avail in a case where the court is clearly satisfied that the broad conception underlying the patent does not involve inventive thought.22 Long existing, prior demand for a certain device is strong evidence of patentable invention.23 A new combination of old elements, a new arrangement of parts, and a new and beneficial result, are not per se invention 24 but they are evidence thereof,25 as is also-the fact that the product of the new combination goes into quite general use and displaces others previously used for the same or analogous purposes;26 and one who claims an improved combination producing far better results has the presumption of patentable invention in view of the prior art.27 That a patent was duly and regularly issued and that the seller is the owner thereof is prima facie evidence of utility, to overcome which clear and strong evidence to the contrary is necessary,28 and the burden of proving uselessness after the issuance is shown rests upon the party alleging it. An invention in order to be patentable must be reduced to practice,29 but actual reduction to practice is not essential either before or after the grant of a

11. Sufficient that it accomplishes same | into general use and has superseded prior result in substantially same way. Vesting--devices having the same purpose, it is suffin-house Elge. & Mfg. Co. V. Condit Elge. Mfg. (c)ict evidence of invention in a doubtful Co., 159 F 144. 12 American Laundry Mach. Mfg. Co. V. 163. Commercial success, large sales, benefits conferred on the public, etc., are evident Fire-Proof Door & Sash Co., 158 F 164. 134. 14. 14.

1946 PATENTS $ 2. 12 Cur. Law.

patent, \[30\] for there is a stage when it is presumed as a matter of law that the inventor reduced his invention to practice; \[31\] and where two patents for the same invention have been issued to independent inventors, the dates of their respective inventions are, first, the dates of the patents; second, the dates of the applications, provided the application sufficiently describes the invention; third, the dates of actual reduction to practice; fourth, the dates of conception, with the qualification that, if either patentee seeks to carry the date of his invention back to the date of his conception, he must show reasonable diligence in adapting and perfecting his invention, either by actual reduction to practice or by filing his application. \[32\] On the question of whether one was reasonably diligent in adapting and perfecting his invention, a decision of the patent office tribunals and the court of appeals of the District of Columbia is entitled to great weight, \[33\] but a decision in interference proceedings is not conclusive on the question of priority of invention. \[34\] The date of a patented invention is at least as early as the date of the application, provided it sufficiently describes the invention so as to enable those skilled in the art to understand it the same, \[35\] and the filing of the application is conclusive evidence that the invention was made at least as early as the date thereof. \[36\] Although cases may arise in which the choice of location for a particular magnet would involve the faculty of invention, yet where all locations have been formerly suggested, it requires strong evidence to warrant the issnance of what would in effect be a pioneer patent. \[37\] A court cannot take judicial notice of the prior art on the question of the validity of a patent in suit unless the prior art is in evidence, \[38\] and except in a very clear case a patent will not be adjudged devoid of invention on its face on demurrer to a bill for its infringement. \[39\] It is presumed that the patent office found a patentable difference, \[40\] and where different patents are given on a similar machine, each patent is presumed valid. \[41\] A patent covering generally any and every means or method for producing a given result cannot be upheld, \[42\] but generally a patent is presumptive evidence of its own validity, \[43\] and to overcome the presumption the evidence must be clear and convincing. \[44\] The validity of a patent for a product of structure must be determined apart and separate from the mode or means by which the product of structure is made. \[45\]

_Novelty_ See 10 C. L. 1130 is essential to patentability. \[45\] No one reference to the

some other act, such as actual reduction to practice or filing an application for a patent.

40, 41. Sieber & Trussell Mfg. Co. v. Sau-

42, Bates, No. 577,629, machine for making

30. Filing of allowable application constructive reduction to practice. Automatic

void as being broad enough to include any

Weighing Mach. Co. v. Pneumatic Scale

and every machine for result. American

Corp. \[C. C. A.\] 166 F 283.

31. Stage reached when person has done

01. Leona Garment Co. v. Jenks, 160 F 693;

he has filed complete and allowable application. Automatic Weighing Mach. Co. v. Glibert Mfg. Co.

Preumatic Scale Corp. \[C. C. A.\] 166 F 288.

33, 34, 35, 36. Automatic Weighing Mach. Co. v. Pneumatic Scale Corp. \[C. C. A.\] 166 F 288.

37. Blades, No. 453,022, held not to cover all switch mechanism in which starter magnet is located on an independent shut-

circuit. Cutler-Hammer Mfg. Co. v. Auto-

matic Switch Co. of Baltimore \[C. C. A.\] 159 F 447.

38. Except as to matters of general knowl-

edge. Stafford v. Morton, 161 F 112.

39. Johnson, No. 759,318, round record of

disk type, held not so clearly devoid of invention on face as to justify beling so

adjuded on demurrer. Victor Talking

Mach. Co. v. Leeds & Catlin Co., 165 F 931.

30. Filing of the application of the prior art is sufficient of itself to rebut the presumption of the novelty of the claims of a patent,\[47\] but proof showing that an article when made after a patented design has enhanced the salable value and demand for the trinkets it was intended to adorn is evidence that such article possesses the qualities which renders it patentable.\[48\]

_Anticipation_\[see 10 C. L. 1131 in a prior patent is fatal to the validity of a patent.\[49\]

**Patents possessing novelty:** Leach, No. 158 F 207. Marshall, No. 784,695, Insulating 433,686, locomotive track sander. Economy Locomotive Sander Co. v. American Locomotive Sander Co. \[C. C. A.\] 162 F 683. Hurley, No. 672,679, Improvements in circular knitting machines. Cooper v. Otis Co. \[C. C. A.\] 166 F 861. Bates, No. 677,639, machine for making fence. American Steel & Wire Co. V. Denning Wire & Fence Co., 160 F 108. Bonsall, No. 604,849, claim 3. trunk adapted for hanging therein ladders garments. Bonsall v. Peddie & Co., 161 F 564. Donner, No. 620,541, mechanism for rolling black plate, claim 4. Donner v. American Sheet & Tin Plate Co., 160 F 971. Wiggins, No. 623,94, bowling alley. Brunswick-Baike-Collender Co. v. Rosatto, 159 F 729. Walker, Nos. 635,619, and 788,803, soil pipe drainage and venting fillings. Morton v. Lyewilyn IC. C. A.\] 164 F 693. Clark, No. 674,757, bucking roll for attaching to a saddle. Clark v. George Lawrence Co., 160 F 512. Crittcher, No. 781,656, combination undergarment for women. Leona Garment Co. v. Jenks \[C. C. A.\] 164 F 188. Karafol No. 835,189, process for making lace paper. Karafol v. Rothner, 165 F 923. Patents vold for lack of novelty: Alleged paper "Liber" for boxes. In re Warren, 30 App. D. C. 308. Hicks, No. 500,071, method of and means for cash registering and account checking. Hotel Security Checking Co. v. Lorraine Co. \[C. C. A.\] 160 F 467. Breuchand, No. 663,130, improvements in construction of supports for walls, claims 8 and 4. Breuchand v. Mutual Life Ins. Co. of New York \[C. C. A.\] 166 F 753. Nolan's, No. 682,481, for fastening means for operables of electric machines, claims 1 and 3. Westinghouse Elec. & Mfg. Co. v. Prudential Ins. Co. \[C. C. A.\] 158 F 887. Donner, No. 620,541, method and mechanism for rolling black-plate, claim 4. Donner v. American Sheet & Tin Plate Co. \[C. C. A.\] 165 F 199. Apparatus claim of Cameron, Comm. min and Martin, Martin, No. 684,423. Cameron Septle Tank Co. v. Village of Saratoga Springs \[C. C. A.\] 159 F 453. Leach, No. 656,553, improvements in pneumatic track sanders. American Locomotive Sander Co. v. Economy Locomotive Sander Co. \[C. C. A.\] 162 F 684. Taylor and White, Nos. 668,-269, and 668,270, metal cutting tool and method of making same. Beththen Steel Co. v. Niles-Bennett-Pond Co., 166 F 880. Von Eberstein, No. 726,268, Improvement in pile drivers. Von Eberstein v. Chambliss, 166 F 463. Of Lewis, No. 731,695, No. 731,-596, and No. 746,853, claims 1, 3, 11 to 17 inclusive, 21 and 22 of first patent. Lewis Blind Stitch Mach. Co. v. Premium Mfg. Co. \[C. C. A.\] 163 F 950. Eggers, No. 737,875, amusement apparatus. Consolidated Loops Co. v. Barnum & Bailey, 161 F 915. Claims 1 and 10 held invalid and rehearing. Id. Arrowsinth, patent No. 748,553, for an in-step support, claims 3 and 4, held void for lack of novelty under former act. Arrow-smith Mfg. Co. v. E. T. Gilbert Mfg. Co., 160 F 473.

## 1244 PATENTS SS 2.

A process patent can only be anticipated by showing an earlier similar process,\[50\] and in design patents the test of anticipation is, "do the two things present to the eyes of

**Patents not anticipated: Improvements in 166 F 760. Young, No. 638,540, combined turning latbes. In re Sheldon, 31 App. D. C. 201. Dies, relssue No. 11,832, furniture**

**V. Foster Hose Supporter Co. \[C. C. A.\] 159caster, Universal Caster & Foundury Co. 165 F 344. Dyer, No. 283,646,**

**J. Rineuer V. Western Ttube Co. IC. C. process of making artificial mica sheets**

**A. J 159 F 431. No. 641,546, battery filler. for electrical insulation. Mica Insulator Co. 165 F 44. Carbon Co. 1C. C. A.\] 166 F 1022. Richmond Stockheim, No. 378,379, process of filtering**

**J. Rineuer Co. v. German-American National Carbon Co. v. Nunesesser Elice. Bat-Filter Co. of New York \[C. C. A.\] 164 F 855. Wightman, No. 411,947, rheostat for**

**J. Rineuer Co., 159 F 157. Schoen, No. 647,909,**

**J. Rineuer Co., 165 F 431. Dyer, No. 64,917, for**

VOL. XII. NO. 6. CURRENT LAW, SEPTEMBER, 1909, 1249

(Copyright 1909, by The Keefe-Davidson Company.)

PATENTS--Cont'd.

the ordinary observer, purchaser, and user the same general appearance." \[81\] The fact that the method of a process patent may have been previously used by another by chance and without appreciating its merit or value does not interfere with the patentability or the validity of a patent,\[82\] nor does the fact that a particular composition was found useful for some particular purpose, necessarily anticipate a subsequent use of the same composition for an entirely different use,\[83\] but the fact that the device of a patent never came into commercial use,\[84\] that it was inferior to and produced a poorer result than a later one,\[85\] or that the patentee did not claim a particular device used in a later patent,\[84\] does not prevent such patent from being an anticipation of the later one. It is not essential to anticipation to find the precise process or structure in prior art;\[87\] it is sufficient if the path was open, made so clear that an ordinary mechanic skilled in the art would see, construct and apply.\[88\] To constitute anticipation the prior patent or publication relied upon must by descriptive words or drawings or by both contain and exhibit a substantial representation of the patented improvement in such full, clear and exact terms as to enable any person skilled in the art or science to which it appertains to make, construct and practice, the invention.\[89\] Anticipations of patents must be proven by evidence so cogent as to leave no reasonable doubt in the mind of the court,\[90\] and a very high standard of proof is required to make out the defense of anticipation by prior use after a patent has once been adjudged valid.\[89\] Statements in prior application relied on to prove anticipation must be so clear and explicit that those skilled in the art will have no difficulty in ascertaining their meaning.\[92\] The grant of a patent makes a prima facie case of complete conception by the patentee as of the date of his application \[83\] and the right of the patentee' carries the date back to the actual inventive act as against rival claimants.\[94\] Where, patents are given to different parties and there is no pretense that one saw the other patent before it issued, there is no presumption that the other party had knowledge thereof,\[88\] and the one pleading anticipation is charged not only with the burden of proof upon that issue, but he must also clearly make out by well authenticated evidence priority of conception and reduction to practice,\[96\] but when such proof is made out the burden is shifted and the claimant must establish to the satisfaction of the

Karflol v. Rothner, 165 F 923.

50. Lowe Filter Co. v. German-American

Stitech Co. of New York (C. C. A.1) 164 F 855.

51. Williams v. Syracuse & S. R. Co., 161 F 571.

01. Karflol v. Rothner, 165 F 923.

01. Use of composition as water-proof

01. Ining for reservoir no anticipation of sub-

01. Proof Insufficient to show anticipation,

sequent patent for street pavement of a

7. Underwood Typewriter Co. v. Elliott-Fisher

similar composition. Warren Bros. Co. v.

Co., 165 F 927; Howard v. Grist, 165 F 311.

61. Evidence Insufficient. Queen & Co. v.

01. SS5. Watrous Mfg. Co., 165 F 451.

Hardware Mfg. Co., 161 F 362.

55. Where patentee had produced the

mechanical means whereby result is se-

cured. Watrous Mfg. Co. v. American Hard-

ware Mfg. Co., 161 F 362.

67. Daniel Slote & Co. v. Charles A. Strat-

ton Co., 159 F 485. Invention anticipated

by patent showing same invention, differ-

ence being merely one of an unpatpathetic

design. In re Williams, 80 App. D. C. 117.

58. Daniel Slote & Co. v. Charles A. Strat-

ton Co., 159 F 485.

59. Underwood Typewriter Co. v. Elliott-

Fisher Co., 165 F 927. To overthrow a pat-

12 Curr. L -- 79 court a still earlier invention by the patentee;" or and in an action for the infringement of a design patent where it is shown that the design was in use anterior to the date of the application for the patent, it is incumbent on the plaintiff to show by clear and satisfactory evidence that the invention preceded the date of the use." Although a new function may appear in a machine made under a patent, if that function was accidental, unrecognized by the patentee, and no disclosure was made to the public, it is not an anticipation of a subsequent patent." A publication disclosing devices tending to guide the construction of an instrument but not fully accomplishing a desired end does not anticipate au invention which for the first time effectively meets all the requirements and accomplishes such end," since a publication can be given effect as an anticipation only to the extent that it actually gives information to the public," and since it is not competent to read into a publication information which it does not give, or by expert opinion explain an otherwise uninforming statement by evidence of some apparatus or article not itself competent as an anticipation." Under the patent law he is the first inventor who, by his own thought, makes an article or material and first perfects and adapts his discovery to actual use, although some one may have previously made a similar article without putting it to practical use or giving his discovery to the public," and the fact that a patentee believes himself to be the inventor of the article patented is presumed from his oath to that effect," and this presumption stands until overcome by clear evidence.

\_Prior public use.\_See 10 C. L. 1132\_\_Prior public use for a period exceeding two years renders a patent void;" but the "experimental" use of a machine though for a period of more than two years before the filing of an application for a patent does not invalidate the patent granted for such machine," even though the product of the experimental use was sold."

\_Abandonment.\_See 10 C. L. 1132\_\_Abandonment of an invention in its experimental stage is a question of intention and may be shown by conduct, even within the two years allowed by statute," but the use of an invention by the inventor for the purpose of testing its utility, which is not a public use, may continue indefinitely if for the purpose of perfecting, improving, or testing its utility." Abandonment will not be lightly presumed but must be fully proved."

\*\*G7. Kennedy, No. 740,982, mechanism for driving dynamos on railway trucks held void, invention being conceived and reduced to practice by another before patentee's application was filed, patentee not proving conception at earlier date. Consolidated R. Elec. Lighting & Equipment Co. v. Adams & Vershke Co. I.C. C. A.1 161 F 343. 68. Evidence of invention prior to use insufficient. Corbett Bros. Co. v. Reinhardt-Meding Co. 166 F 767. 69. Hilliard v. Fisher Book Typewriter Co. \[C. C. A.\] 159 F 439. 70. Trux v. George F. Child Adjustable Parlor Chair Co., 162 F 907. 71, 72. Loew Filter Co. v. German-Amerl- can Filter Co. \[C. C. A.\] 164 F 855. 73. That some one had made same composition held not necessary to defeat one's patent on such composition. Warren Bros. Co. v. Owosso \[C. C. A.\] 166 F 309. 74. Warren Bros. Co. v. Owosso \[C. C. A.\] 166 F 309. 75. Scofield v. Browne \[C. C. A.\] 159 F 309. 76. Porior nwse \[C. C. A.\] 158 F 305. 77. Vold for prior nwse \[T. Vapor and White. Nor. 688,269, and 668,270, metal cutting tool and method for making same. Bethlehem Steel Co. v. Niles-Bement-Pond Co., 166 F 850. 78. 89. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 98. 99. 99.

12 Cur. Law. PATENTS SS 4. . .

in awarding priority of invention," but to entitle one to make the claim in issue the claim must be sufficiently broad to cover the issue." The claim of the issue of an interference should be interpreted in the light of the specifications of the party making the same "" and be given the interpretation which it will support, and limitations should not be imported from specifications to meet the exigencies of the particular situation.n in which the claim may stand at a given time.1 If an applicant desires the claims interpreted or limited otherwise than expressed by the plain and usual meaning of the words employed, he should draw his claims so as to convey the meaning intended.2 Two valid patents based upon the same patentable invention cannot be issued to one party," hence an application for a patent will be refused when its subject matter is the same as that of a former application of the same party, which has been finally rejected 4 and a change in the phraseology of the claims or any changes merely broadening the claims that have been once determined do not affect the conclusiveness of the former adjudication." Where two foreign inventors both rely upon the dates of the filing of their respective applications here and abroad, the fact that a patent is issued to one while the application of the other is pending gives the patentee no superior rights but will be regarded purely as an interfering applicant.\* Under a recent act of congress, the application by a foreign inventor relates back to the date of the filing of the foreign application and gives the foreign priority of invention as of that date;' but the act does not operate retrospectively, hence the rights of an applicant whose application was pending when it was enacted are to be governed by a former act, and priority relates only from the date of the filing of the application here," nor does the Act of March 3, 1903, extending the time from seven to twelve months within which an application must be filed after filing of a foreign application for the same invention, operate retrospectively." Where a witness is a party to the proceedings, a wider range of cross-examination is allowable than where he is not," but a party may refuse to answer questions clearly

**97.** Wickers v. McKee, 29 App. D, C. 4; of words save for purpose of saving claim. Lindmark v. Hodgkinson, 81 App. D, C. 612.

**98.** In interference between applicant and patentee where patent was issued to latter define dising of former's application, applicant's claim held sufficiently broad to cover issue as to whether applicant had disclosed invention of issue. Mile v. Young, 29 App. D. C. 481. No merit in contention that one of parties was not entitled to make process claims because he he heats his plate as * step of his treatment while such counts (5 and 6) are silent as to heating of plate, counts in application of other party omitting such step, and it appearing that heating is not more essential to process of one of parties than to that of the other. Wickers v. McKee, 29 App. D. C. 4.

**90.** Viele v. Cummings, 30 App. D. C. 455.

\*\*where resemblance of two devices was accidental rather than real, and each had in mind a different invention and limited claim to such invention, held reversing action of commissioner of patent that C was not entitled to make claim in issue. Id.

**1.** Mile v. Young, 29 App. D. C. 481. Decision of commissioner of patents that "the terms of the claim when given their ordinary meaning clearly read upon structure of both parties" affirmed, and priority awarded to senior applicant. Durkee v. Wilquist, 31 App. D. C. 648. Presumption that inventors intends to protect his invention broadly, hence scope of a claim should not be restrictive beyond fair and ordinary meaning 12 Cur. Law. PATENTS SS 4. 1253 showing an intention to elicit information relating to his business and that of his as-signee, not relevant to the questions at issue.\[11\] Any doubt as to whether a reissue is for the same invention described in the original patent should be resolved in favor of the inventor of a meritorious invention, especially where it is too late to file an independent application for a patent for the same.\[12\] The principle of estoppel by former adjudication is applicable to proceeding of a judicial nature in the patent office,\[18\] although difficulty in its application is increased by the peculiar character of the proceedings in the patent office,\[14\] and the unsuccessful party to an interference cannot, merely by broadening the scope of the former claims to the invention described, bring the subject-matter into litigation again.\[18\] The doctrine is not applicable so to estop an applicant from claiming as against a previously granted patent to an adversary, where the record shows that the patentee had no right to make the particular claims in issue.\[18\] Where the junior applicant after his original application becomes abandoned through oversight of his attorney files a new application with the same drawings and speculations and the same claims with an exception to avoid an objection raised in the patent office, and a patent is inadvertently issued to the senior party while the junior party's second application is pending, and the latter party brings interference proceedings and asserts certain claims of the patent, such junior party is not estopped to embody the claims of the senior party's patent.\[17\] Where an applicant dies pending his application, the authority of his solicitors ceases; and where his administrator carries on the proceeding and amends the specifications by inserting new matter of which there had been no previous suggestion, a supplemental oath to the amendment is essential \[18\] but such oath is not required to an amended application where the amendment is within the scope of the original application.\[18\] Where an invention is involved in several interferences and the evidence shows that one of the parties conceived of-the invention and reduced same to practice prior to the dates alleged by the other parties, and where by abandonment one permits a judgment broad enough to comprehend any and all claims that could be read into the claims originally set forth to be entered in an interference, he is bound by such judgment;\[20\] so, also, where it is involved in several interferences, if the evidence shows that one of the parties conceived and reduced to practice prior to the dates alleged by the other part:es,\[21\] that party is entitled to priority and the controversy between the other parties need not be reviewed.\[22\] Under the rule of the patent office prohibiting a patent to issue for two separate inventions where the invention of the issue was disclosed in a prior application to one of the parties but no specific claim was made until after the issue of a patent to the other party, the claims cannot be inserted by amendment;\[23\]

11. Jansson v. Larsson, 30 App. D. C. 203. Judgment broad enough to comprehend all claims that could have been read into appli-13. Horine v. Wende, 29 App. D. C. 415.

01. Proceedings discussed at length. declare upon an amendment of his claims, where claims in both interferences were based upon same structure. Id.

01. Dedicated party held stepped by former decision and not entitled to bring up subject-matter again by broadening scope three parties had established conception and of claims. Horine v. Wende, 28 App. D. C. 415.

01. Res Judicata not applicable record disclosing patentee had no right to claims.

01. Jansson v. Larsson, 30 App. D. C. 92.

01. Under Rev. St. U. S. Comp. St. 1901.

01. W. Sensenich, 31 App. D. C. 169.

01. Rev. St. U. S. Comp. St. 1901.

01. Carroll v. Halwood, 31 App. D. C. 165.

but, when matter has been previously disclosed although not formally claimed and the making of the claim involves no material alteration of the specification, such matter may be included or a division made in a subsequent formal claim and it will take precedence of previous claims advanced by another applicant.\[24\] Where the subject-matter of an invention is contained in the application for a patent though not followed by a specific claim, the applicant may amend by setting up a new claim to the invention or a part thereof not before claimed,\[25\] and, if the conditions of the original applications require division instead of amendment merely to secure a patent embracing the additional claims, the rule is the same * and the new application dates back to the original one, securing to the applicant the benefit of a constructive reduction to practice as of that date.\[27\] A junior applicant is entitled to priority where he conceives and reduces his invention to practice prior to the filing of his adversary's application; \[28\] but, where it is clearly shown that the senior party conceived and disclosed the invention before a certain conversation with the junior applicant, it is unnecessary to determine whether the junior applicant had an independent conception and disclosed the same in such conversation,\[20\] and, although one may have been first to conceive where he was last to reduce to practice, the burden is on him to show diligence just before and subsequent to the date when his adversary entered the field, unless he is excused because of poverty or other extenuating circumstances.\[30\] Where one party is shown to have conceived the invention prior to the date when his adversary, who is a foreigner, introduced his invention into this country, and to have reduced same to practice a year before foreigner's filing date, he is entitled to the award of priority.\[31\] An allegation in a preliminary statement of one of the parties to an interference, that he had constructed an experimental machine on a given date, where not excepted to, nor followed by an allegation of a later date of actual reduction to practice, will entitle him to show that the making of the machine amounted to an actual reduction to practice as of the date of its construction,\[32\] but he cannot have the benefit of an earlier date than that alleged, irrespective of what the evidence may show.\[33\] The patentee's admissions and his failure to contradict or explain the admission that he was not the inventor often furnish evidence sufficient to overcome his sworn test-mony to the contrary.\[34\] A disclosure to be effectual must\*be shown to have been full and clear as to all the essential elements of the invention,\[38\] but the specification of a patent is addressed to persons skilled in the art and a disclosure therein which is sufficient to enable such persons to make and use the same constitutes a compli ance with the statutory requirements; \[86\] and one having made such specification of the claims in issue may make such claims and, where first to conceive of invention disclosed, claim priority,\[87\] so, also, one who made full and complete drawings for the patent office prior to the earliest date fixed by the other party is entitled to an award of priority.\[88\] The jurisdiction of the commissioner attaches when he directs the declaration of an interference and he retains jurisdiction to award priority to the successful party after his adversary has been eliminated,\[89\] the remedy of the defeated party being by way of appeal and not by a prosecution of the claims of the issue in an ex parte case; \[90\] and, where the erroneous remedy is sought to be invoked, mandamus will lie at the instance of the successful party to compel the commissioner to vacate all proceedings subsequent to the dissolution of the interference,\[41\] and it is no answer to the mandamus proceeding that the commissioner deemed himself possessed of the authority he exercised in authorizing such remedy since he was acting beyond his authority and without warrant of law.\[42\] A party to an interference will not be heard to claim that a stranger to the interference is the real inventor of the issue and entitled to a patent,\[43\] and when the commissioner has declared an invention patentable a mere disinterested party cannot question his judgment.\[44\] The duty of the commissioner to determine whether an interference exists may be delegated to the primary examiner.\[45\] While the question as to whether an interference was properly declared or any interference in fact exists cannot be directly raised in an interference proceeding, it may be by a motion to dissolve the interference.\[46\] Rules of procedure in the patent office when not in conflict with any provision of law have the full force and effect of statutes,\[47\] and, where a rule of procedure is in force, it can only be repealed, modified or suspended by the commissioner with the approval of the secretary of the interior.\[48\] Under these rules the decision of the examiner of interferences on a declared interference is limited to priority of invention in time as between the parties,\[49\] and is not a direct decision that the defeated party is not entitled to a patent; \[60\] hence he may claim such right until the statutory time for an appeal from the final order rejecting the application has expired.\[51\] The rule which permits a divisional application to relate back to the filing date of the original, which also discloses its subject matter as long as it remains open in the patent office will not be extended to cases not clearly within the same,\[52\] and, where by amendment the original application is merged with the patent, the issue of a patent in the original application is not an action on the case within the statute so as to entitle the ap plicant to one year from the date thereof to further prosecute the application.\[53\] Statutory provisions relating to ex parte applications do not apply to inter parties actions, hence, when an appeal from the decision of the primary examiner is abandoned his decision becomes final and binding upon the parties.\[54\] There is no error in refusing to re-open a case for the introduction of newly-discovered evidence where the only effect of admitting the offered testimony would be to show that a third person was in fact the first inventor.\[55\] The question of whether a party is estopped to amend his application does not arise when the amendment was made before the other party filed his application.\[56\] The board of examiners in chief may, to the exclusion of other matters presented, raise and consider the question of res judicata.\[57\]

He who first arrives at a complete conception of the invention thought is entitled to recognition and reward unless and until the interest of the public is compromised by his lack of diligence in demonstrating that his invention is capable of useful operation,\[58\] but the inventor who first reduces his discovery to practical operation is prima facie the true inventor without regard to the date of his conception.\[59\] An earlier inventor may overcome this presumption on showing by competent evidence continuous diligence to perfect and utilize the invention,\[60\] and when one is first to conceive and to reduce to practice within the statutory time he is entitled to priority, although a junior inventor may anticipate him by an earlier application and may have secured letters patent.\[61\] Although one who first conceives an invention may lose his right to a patent therefor by failure to use reasonable diligence in following up his conception,\[62\] yet where he makes known his invention to another and exhibits drawings, such disclosure, when of sufficient fullness to enable one skilled in the art to construct the device, completes the invention under the patent law with the full effect as an anticipation.\[63\] The law encourages such delay as is required to test the thoroughness and utility of supposed inventions;\[64\] but while every presumption will be resolved in favor of the inventor who delays filing an application until he has perfected his invention,\[65\] yet the inventor must show due diligence in reducing his invention to practice,\[66\] and a long delay in making use of an invention

S3. U. S. Rev. St. $ 4894, U. S. Comp. St. 1901, p. 3384. In re Spitteiler, 31 App. D. C. 20; 271.

S4. U. S. Rev. St. $ 4809-4911, U. S. Comp. St. 1901, p. 3393, 3391, held to apply only on to ex parte cases where rejection following first consideration has not afforded appli-cant a hearing. United States v. Moore, 30 App. D. C. 464.

S5. Dunbar v. Sehellenger, 29 App. D. C. 129.

S6. Phillips v. Sensenich, 31 App. D. C. 159.

S7. Carroll v. Hallwood, 31 App. D. C. 165.

S8, 59, 60. Laas v. Scott, 161 F 122.

S6. Laas v. Scott, 161 F 122.

Invention of device covered by Laas & Sponenberg, No. 757,754, fall anchor or anti-creeger adjlated in John M.

claimed to have been reduced to practice and in applying for a patent is a cogent circumstance tending to show that the alleged reduction to practice was nothing but an abandoned experiment." The question of what is due diligence is a question of mixed law and fact," and there is no arbitrary rule or standard by which diligence may be measured but each case must be considered and decided in the light of the circumstances of that case," so that where it conclusively appears that the party against whom the rule of diligence is sought to be enforced was in fact the prior inventor, the facts and circumstances surrounding him at the time of his alleged lack of diligence will be carefuly considered before he will be deprived of the fruits of his discovery." The nature of the invention, the situation of the inventor, the length of time intervening between conception and reduction to practice, the character and reasonableness of the inventor's testimony and that of his witness, are all important factors to be considered; " and where an invention is intended to apply in a business then beginning to develop, the inventor is entitled to a reasonable time to perfect his invention before asking for a patent." Mere business considerations, and not circumstances of a compelling nature, will not excuse a lack of diligence," nor is diligence excited by the knowledge that a rival has entered the field sufficient." After reduction to practice of an invention, the mere delay of the inventor to apply for a patent, in the absence of concealment, abandonment, or suppression, will not prevent him from getting a patent based on priority of invention," but concealment of invention after reduction to practice may subordinate the invention to a later dis-coverer; " and if there is concealment or suppression of an invention the field is open to priority over one filling application before significant. Howell v. Hess, 30 App. D. C. 194.

67. Where machine was used for several weeks, thrown aside and not used for three years, and another machine experimented with, held what was done was in nature of an abandoned experiment emitting later inventor to priority. Gordon v. Wentworth, 31 App. D. C. 150.

01. Mesd v. Davis, 31 App. D. C. 590.

01. Woods v. Poor, 29 App. D. C. 397; Id., 29 App. D. C. 404. Under circumstances, evidence held not to show lack of diligence on part of junior party, only nine months elapsing between first drawing and filling date. Mead v. Davis, 31 App. D. C. 590. Unexocused delay for more than a year from date claimed as time of reduction to practice defeats one's right to priority as against another having in the meantime placed device on the market. Howard v. Bowes, 31 App. D. C. 619. Senior party en-titled to priority, evidence showing that though certain experiments were made by junior party from five to seven years before filing of application, application was not filed until after he had seen a successful exhibition of adversary's invention, and that before filing date numerous other patients for other inventions were taken out. Moore v. Hewitt, 31 App. D. C. 617. Delay of ten years, during which experimente were made with other forms, several patients taken, and thousands of dollars expended in exploiting inventions, held such lack of diligence as to preclude award of priority to such less viglant party as against rival, having in meantime filed application. Kinsman v. Kintner, 31 App. D. C. 293. Failure to use diligence not shown by proving failure to reduce comm for a more diligent though later inventor who, when he has not only put the invention into public use but has also obtained a patent for it, cannot be divested of his right except upon proof, beyond a reasonable doubt that the earlier and more negligent inventor, has not gone back to an abandoned device or a device suppressed or cancelled in order to establish a prior right, \[7\] and the testimony of a witness that he did not see a certain device on given occasions is of less weight than that of another who says that he saw the device on such occasions, \[8\] but the negative testimony tends to lessen the conviction produced by the positive testimony. \[9\] The junior party to an interference has the burden of proving conception and disclosure of the invention in controversy earlier than his adversary's filing date, and either a reduction to practice prior to that date or due diligence in respect thereto at the date of constructive reduction to practice by his adversary, \[8\] and this burden is substantially increased where a patent has been issued to his adversary prior to the filing date of his application \[8\] or where there is successive adverse decisions against him in the patent office, \[9\] but the fact that a patent is granted to one while his adversary's application is pending gives the former no advantage over the latter; \[8\] although where two applications are concurrently pending and a patent is inadvertently granted to the junior party without declaring an interference, the patent office may properly impose upon the patentee the burden of proof, \[8\] and such inadvertent granting of the patent, and erroneous refusal to declare an interference between the patent and the senior party's divisional application, does not constitute a bar to the renewal of such divisional application and prevent an interference between the patent and the renewed application, \[8\] and if the renewed application is filed before the expiration of the statutory two years, and there is no evidence of intention of the applicant to abandon the invention, a delay in renewing the application will not work an abandonment. \[8\] The uncorroborated testi 12 Cur. Law. PATENTS SS 4. 1259

mony of a junior party to an interference is insufficient to overcome the presumption attaching to the prior filling date of the senior party. 97 Where one is shown to have reduced an invention to practice, the burden is on the adversary not only to show conception prior to that date but reasonable diligence in reducing same to practice; 98 and where it appears that a model illustrating the invention of the issue was made by a workman under the direction of the senior party as superintendent, the junior party must overcome the presumption in favor of the senior party by showing that the latter was only carrying out instructions previously given him. 99 Where the application of one of the parties to an interference is a division of an earlier application filed before the filling date of his adversary, the burden of overcoming the earlier date is upon the latter, 99 and where a party whose application is involved in pending interference proceedings presents another application based upon the invention involved in the interference, a patent on the later application will be refused until the interference has terminated. 91

Invention consists of the conception of the idea and of means for putting it in practice and producing the desired result, 92 and until the conception is complete and ready to be put in some practical form there is no available conception of invention within the meaning of the patent law. 98 Complete invention must amount to demonstration, 94 but a device constitutes reduction to practice where it demonstrates the entire practicability of the idea and leaves nothing more for invention, 95 and the one who first conceives a practical invention need not perfect it thereafter to such an extent that it is better than the invention of others who subsequently enter the field. 98 Reduction to practice must produce something of practical use coupled with knowledge, preferably by actual trial that the thing will work practically for the intended purpose. 97 Where the invention belongs to a class requiring actual use or thorough tests to demonstrate its practicability, there can be no reduction to practice until one or the other thing happens and is proved, 98 and the test of successful reduction years under $ 4897, U. S. Rev. St., U. S. Comp. | Kee. 29 App. D. C. 4. When it has not quite passed beyond experiment and has not attained certainty beyond all conjecture, and falls short of demonstration, the invention and reduction to practice held insufficient. Durkee v. Winquist, 31 App. D. C. 248; Duff | Latshaw, 31 App. D. C. 258. He must be conducted of a device intended to be used as corroborated directly on all points necessary to establish priority. Corroborating evidence held to fail to meet requirements. A test of that machine, is insufficient. Goolman v. Hobart, 31 App. D. C. 286. | Kee. 30 App. D. C. 194. | Kee. 31 App. D. C. 478. | Kee. 329 App. D. C. 487. | Kee. 332 Second a set-screw, a mere mechanical addition to device and obvious to any one skilled in art, held not to prevent test from constituting reduction to practice. Howard v. Bowers, 31 App. D. C. 618. | Kee. 333 Now only requires that first conceived shall use reasonable diligence in endeavor-ling to perfect and adapt his invention when his rival enters field. Woods v. Poor, 29 App. D. C. 397; Id., 29 App. D. C. 404. | Kee. 334 Where neither party reduced device to practice, junior party was first to conceives, latter party held entitled to priority, diligence shown, only four months having elapsed between conception and filing of application, device being drawn on blackboard and discussed, and party embarked in business for himself with very little capital. Id. 97. Sherwood v. Drewson, 39 App. D. C. 161. | Kee. 335 Proofs produced held not evidence of printing qualities of plates. Wickers v. McGee, 29 App. D. C. 4 to practice may be operation under actual working conditions." A machine may be crude in construction, but if it contains all the essential elements of the invention of the issue, and in its operation successfully demonstrates its practical efficacy and utility, reduction to practice is accomplished,\[1\] and the mere fact that mechanical improvements may have been suggested and made to a machine in the course of its operation that tended to perfect its operation and increase its practical efficiency, where the machine retains the essential elements of the invention which it puts in practice, does not impair the effect of the original demonstration of utility.\[2\] Satisfactiony evidence of reduction to practice must embrace all the elements of the issue and must leave nothing to inference,\[3\] but the question of the sufficiency of actual reduction to practice by the senior party is immaterial where his conception of the invention and diligence between date of conception and the presentation of the application is shown.\[4\] It is not necessary to prolong the test of a machine until its commercial value has been established, since if it accomplishes the end desired it is a perfect invention, although it may prove of little or no commercial value,\[5\] but a total abandonment of experiments and neglect and loss of the physical things made, together with inaction by the alleged inventor and his assignee for two years, constitutes abandoned experiment and failure to successfully reduce to practice.\[6\] The reduction to practice must have been by the applicant himself or by his authorized agent.\[7\] Where one takes no testimony, the filing date of his application stands for his date of conception and constructive reduction to practice \[8\] of an invention and of every element thereof; \[9\] but where the application does not disclose the invention of the issue and is not the proper foundation for amendment, the patent is not proof of invention at the date of the application upon which it was granted, nor evidence that the invention was made by the patentee at any time, and where the patentee takes no testimony, another applicant takes priority if his application discloses invention.\[10\]\_Appeal and review.\[8\]\_See S. C. L. 1302--On an appeal from the decision of the commissioner of patents, in an interference proceeding, the question at issue is merely one of priority.\[11\] The "reasons of appeal" in a patent appeal are in the nature of the ordinary assignments of error in actions at law or in equity,\[12\] and may in the court of appeals be amended so as to become more specific, or so as to remedy errors in their preparation if the amendment is made in due time and no injury is done to the opposing party.\[18\] Even if the allowance of the amended application without a supplemental oath were error, it does not justify the appellate court in awarding priority to the adversary on that account,\[14\] and where no substantial right of a party has been affected, the appellate court will not review the exercise of discretion by

99. Where object of invention was to produce a particular printing plate, test held relieve applicant of consequence of lack of to be printing test under actual working dilligence reducing to practice. Howell v. conditions. Wickers v. McKee, 29 App. D. C. 194. Reduction to practice by original inventor cannot be taken as a reduction to practice by another merely because the ownership of the claims of both may afterwards become vested in the same person. Robinson v. McCormick, 29 App. D. C. 98.\[8\] & McKnight v. Pohle, 30 App. D. C. 92.\[9\] & Sherwood v. Drewson, 29 App. D. C. 161.\[10\] & McKnight v. Pohle, 30 App. D. C. 92.\[11\] & Sherwood v. Drewson, 29 App. D. C. 161.\[12\] & McKnight v. Pohle, 30 App. D. C. 92.\[13\] & Sherwood v. Drewson, 29 App. D. C. 161.\[14\] & McKnight v. Pohle, 30 App. D. C. 92.\[15\] & McKnight v. Pohle, 30 App. D. C. 92.\[16\] & McKnight v. Pohle, 30 App. D. C. 11.\[17\] & McKnight v. Pohle, 30 App. D. C. 92.\[18\] & McKnight v. Pohle, 30 App. D. C. 92.\[19\] & McKnight v. Pohle, 30 App. D. C. 11.\[20\] & McKnight v. Pohle, 30 App. D. C. 92.\[11\] & McKnight v. Pohle, 30 App. D. C. 92.\[12\] & McKnight v. Pohle, 31 App. D. C. 93.\[13\] & McKnight v. Pohle, 30 App. D. C. 94.\[14\] & McKnight v. Pohle, 31 App. D. C. 95.\[15\] & McKnight v. Pohle, 32 App. D. C. 96.\[16\] & McKnight v. Pohle, 33 App. D. C. 97.\[17\] & McKnight v. Pohle, 34 App. D. C. 98.\[18\] & McKnight v. Pohle, 35 App. D. C. 99.\[19\] & McKnight v. Pohle, 36 App. D. C. 99.\[20\] & McKnight v. Pohle, 37 App. D. C. 99.\[21\] & McKnight v. Pohle, 38 App. D. C. 92.\[22\] & McKnight v. Pohle, 39 App. D. C. 93.\[23\] & McKnight v. Pohle, 39 App. D. C. 94.\[24\] & McKnight v. Pohle, 30 App. D. C. 95.\[25\] & McKnight 12 Cur. Law. PATENTS $ 4. 1261 the commissioner in regulating the practice of the patent office \[15\]. Refusing to suppress or exclude the deposition of a party because of his refusal to answer certain general questions on cross-examination is not reversible error where the relevancy of the testimony was not pointed out and where the case is otherwise plainly made out \[16\]. An assignment of error on an appeal from the examiner of interference to the board of examiners in chief in an interference that assails the decision of the examiner in awarding priority on the whole case to the appellee sufficiently raises the question of res judicate \[17\]. The objection that the adversary's application does not disclose invention of the issue cannot for the first time be raised on appeal \[18\], but since the right of a party to make a claim goes to the foundation of an interference, the judgment of the primary examiner denying that right may be appealed and the appellate court will determine the question as an ancillary question to be considered in awarding priority of invention \[19\]. In the absence of abuse of discretion on the part of the commissioner in overruling a motion to strike the adversary's application from the files because its reinstatement after an abandonment for failure to prosecute was obtained by fraud, his action will not be reviewed on appeal \[20\], but the exercise of discretion by the commissioner of patents, in refusing to reopen a case for the introduction of newly-discovered evidence may be the subject of review and correction when undoubtedly abused and productive of palpable injustice \[21\]. In interference proceedings, on the questions of whether there is an interference in fact \[22\] of priority of invention \[23\], and patentability of the claims \[24\], the appellate court usually follows the decisions of the tribunals of the patent office. The concurrent findings that an invention is a broad one, and infringed by a certain other machine will not be disturbed on certiorari in the federal supreme court unless clearly wrong \[25\], and where the tribunals of the pa 1262 PATENTS SS 4. 12 Cur. Law.

tent office all agree in deciding the same way on questions of fact, the court of appeals will not reverse such a decision unless it clearly appears that the decision was against the weight of the evidence,\[20\] but the decisions will be reversed where under the facts and circumstances in the evidence they appear to be clearly wrong,\[21\] and where the facts are admitted and a mere question of law involved, the court of appeals will not hesitate to reverse the judgment appealed from if convinced that an erroneous conclusion was reached.\[28\] Ordinarily, whether or not the application discloses the subject-matter of the interference, and therefore whether or not the interference is properly declared, is a question to be determined by the patent office,\[29\] but in extreme cases, where palpable error has been committed, the decision of the patent office finding identity of invention between the devices of the parties to the interference may be reversed.\[30\]

\_Suit in equity to secure patent.\_See 10 C. L. 1138.--In a suit against an adjudged priority of invention in interference proceedings to compel the issuance of a patent, a cross bill by the defendant for infringement of his patent is not germane to the original bill,\[31\] In a suit under statute to establish the right to a patent which has been refused by the patent office and granted to defendant after interference proceedings, complainant cannot introduce evidence to prove that the patent is void for anticipation,\[32\] and to obtain the issuance of a patent to complainant, the evidence must be relevant to the issues made by the pleadings, which is such case can relate only to complainant's right to a patent.\[33\] A decision of the patent office and the court of appeals of the District of Columbia in interference proceedings, awarding priority to one of two claimants, is conclusive as to questions of fact between the parties in a subsequent suit to obtain the issuance of a patent, unless a showing to the contrary is such as to carry thorough conviction,\[34\] for such subsequent suit is not a trial de novo, as on appeal in some jurisdictions, nor is it to be removed from the other proceedings so that such other decisions can be cast aside as of no force,\[35\] but when new issues arise or it appears that the patent office has been imposed upon by fraud or perjury, the rule that a final decision rendered by the patent office can be overcome only by evidence so clear and convincing as to exclude every reasonable doubt is not applicable.\[36\]

held not so clearly erroneous as to warrant their disturbance. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 52 Law Ed. 1122.

262 Richards W. Burkholder, 29 App. D. C. 485; Vickers v. McKee, 29 App. D. C. 4. Decisions of expert tribanks of patent office upon inventory's sufficiency of disclosure is conclusive except in extreme cases where culpable error has been committed. Killburn v. Hirner, 29 App. D. C. 54. Unanimous adverse decisions of tribanks of patent office imposes upon the party against whom they are rendered burden of clearly showing error. Orendonk v. Parkes, 31 App. D. C. 214; Dunbar v. Schellenger, 29 App. D. C. 129.

27 Encoursing decisions reversed where question was one of originality in interference proceedings. Duff v. Latshaw, 31 App. D. C. 235.

28 Woods v. Poor, 29 App. D. C. 897; Id., 29 App. D. C. 404.

29 Finding of patent office in favor of senior party held conclusive. MacMulkin v. Bollee, 30 App. D. C. 112.

30 Case held not exceptional one, hence finding of patent office in favor of senior party conclusive on court. MacMulkin v. Bollee, 30 App. D. C. 112.

31. Suit under Rev. St. $ 4915 (U. S. Comp. St. 1901, p. 3392). Kilbourn v. Hirner, 163 F 539.

01. Under Rev. St. $ 4915 (U. S. Comp. St. 1901, p. 3392), such issue could not have been tendered by bill without the la'ter being denormurable. Richards v. Melissner, 162 F 485.

01. In suit under Rev. St. $ 4915 (U. S. Comp. St. 1901, p. 3392), complainant cannot introduce proof to show that neither complaint nor defendant has any right to a patent. Richards v. Melissner, 162 F 957.

34 Subsequent suit under Rev. St. $ 4915 (U. S. Comp. St. 1901, p. 3392). Richards v. Melissner, 163 F 957.

35. Suit under Rev. St. $ 4915 (U. S. Comp. St. 1901, p. 3392). Richards v. Melissner, 163 F 957.

01. Leas v. Scott, 181 F 122. In suit under Rev. St. $ 4915 (U. S. Comp. St. 1901, p. 3392), patent office decision denying patent held only presumptively correct, presumption overcome by proof of false and perfured evidence in patent office. Id.

12 Cur. Law. PATENTS SS 5. 1263 SS 5. _Letters patent. 87_See 10 C. L. 1138_--A patent is a contract 88 between the government and the patentee whereby the latter is granted the exclusive right to make, use, and vend his invention for a specified time, after which such right inures to the public. 89

_Construction and limitation of claims. 900_ 10 C. L. 1138\_--Inventions are to be measured by their claims, 90 and a patentee must claim in his patent the exact invention, 91

for a patent is to be granted and sustained not for what the inventor may have done in fact but only for what he particularly points out and distinctly "claims" in h's open letter. 92 The patent monopoly does not embrace a particular device which is constructed and operated and in which private rights are vested by state laws at the time the patent issues, 93 and a patentee is limited by his declarations in the specifications and the drawings, 94 and if he specifies any element as entering into a combination, he makes such element material thereto, 95 and any disclaimer or limitation of invention is likewise binding. 96 Courts are liberal in construing claims so as to secure to the patentee his real invention, 97 but in doing so they cannot disregard the form and language in which the inventor has chosen to make his claim. 98 The rule for the construction of contracts generally controls in the interpretation of a patent, 99 and when its terms are plain and the intention of the patentee clearly manifest therefrom, they must prevail, 90 but if its expressions are ambiguous, or its validity or any claim thereof is doubtful, that construction which will uphd tile patent will be given. 91 A patent should be construed according to the fair and reasonable intention of the patentee, 94 and claims should be interpreted according to their own terms and not be controlled or limited by argument or representations made in the patent office by the applicant's attorney as to the scope of the invention, etc., where no amendments thereto were required or made,\[83\] but where a device belongs to a crowded art and claims are allowed only after repeated modifications, the language employed by the patentee should not be broadened,\[54\] for a patent when issued is not subject to denunciation because the applicant before the patent would issue trimmed away, modified and otherwise defined his specifications.\[65\] While a patentee is entitled to all the beneficial uses of his invention when the property or function is inherent in the invention or is described or claimed by him,\[56\] yet he cannot cover what was neither inherent in his invention nor specified or illustrated by him,\[57\] and where the change or function is neither described nor claimed, and especially where other changes are described and insisted on as essential and specially claimed, it is significant proof that the change which was not disclosed is not his invention.\[58\] Claims may be explained and illustrated by descriptions but they cannot be enlarged by them,\[59\] nor does the description necessarily limit the claims.\[60\] In interpreting claims of a patent, the natural import of the terms used, the context, and the specifications, should be duly regarded \[61\] and the terms be given their natural meaning,\[62\] and one claiming that they were otherwise intended has the burden of proving the fact,\[63\] but when the terms are defined in the patent they should not be construed altogether by reference to dictionary definitions,\[64\] nor are the words of controlling significance upon the question of what was the primary and leading idea of the inventor.\[65\] Where it is not necessary in order to save an invention to limit a claim to the particular construction shown in the drawings, reference to drawings may be regarded as simply generally descriptive.\[66\] As a general rule where two patents are granted to the same inventor, the patent first numbered takes precedence of the other,\[67\] but where the patentee has an application pending for the allowance of the later numbered patent at the time when the early numbered patent is issued and especially when through no fault of his the original application for a single patent is split up and a plurality of patents issued, an exception is made to the rule.\[68\] Patents which are not pioneer in character are entitled to a construction only as broad as the terms used will reasonably war-scale as nature made mica, but elemental scale into which mica as mined can, considering elements of time and cost, be practically resolved as intended by patentee, Eastern Paper Bag Co., 210 U. S. 405, 52 Mles Insulator Co. v. Commercial Mica Co. \[C. C. A.\] 166 F 440. In case of doubt as to the meaning of a claim, it should be given the evident meaning intended by him who first made same. Viele v. Cummings, 30 App. D. C. 455.

53. Term "coincident immersion" given construction. Fullerton Walnut Growers' Ass'n v. Anderson-Barn-Grover Mfg. Co. \[C. C. A.\] 166 F 448.

01. Sleber & Trussell Mfg. Co. v. Saugeries Mfg. Co. \[C. C. A.\] 166 F 437. Applicant who in struggle to secure a patent trims away, modifies and otherwise defines his specifications and claims to meet the reference made by office will be deemed to have surrendered and disclaimed what he has conceded and to have imposed such definition upon language of patent as he attributed to it in order to secure the grant. American Store Co. v. Cleveland Foundry Co. \[C. C. A.\] 158 F 978.

01. American Store Co. v. Cleveland Foundry Co. \[C. C. A.\] 158 F 978.

56, 57, 58. Electric Storage Battery Co. v. Co. \[C. C. A.\] 158 F 978.

12 Cur. Law. PATENTS SS 5. 1265

rant; **6** they should be strictly limited to the claims 70 interpreted in the light of specifications describing the invention,71 and in view of prior art and self-imposed limitations growing out of the action of the patent office; 72 and in a suit for infringement of a patent for an alleged invention of which no practical use has ever been made, the patent is not entitled to the same breadth of construction as if its usefulness were proved.73 A patent for improvements upon existing machines is not entitled to a broad construction,74 but an invention though not of a primary character, or a slight improvement on the prior art, if it possesses substantial patentable novelty, commands a reasonable range of equivalents,75 and the patentee of an invention of a meritorious character is entitled to the benefits of the doctrine of equivalents,76 for the "doctrine" 77 applies to a patent for a combination of old elements 78 and may be invoked for other than pioneer patents,79 but the range of equivalents depends upon and varies with the degree of invention.80 Whether or not one device is equivalent to another is usually a question of fact.81 A patent of unusual merit, though not generic, is entitled to a liberal construction and a fair range of equivalents,82 but one for a mere improvement is entitled only to a narrow construction and a limited range of equivalents,83 and where an improvement is narrow in its character,

80. Ajax Forge Co. v. Morden Yrog & 76. Bellows v. United Electrical Mfg. Co. Crossing Works \[C. C. A.\] 164 F 843. Bilfors, No. 64.456, adjusted switch-rod, not pioneer, not infringed by Lee and Moore, forge patents comprising the invention covers particular design of patent. Curtis v. Humphrey, 155 F 169. Not a pioneer limited to particular structure shown and described.

Footnote 76: Dellows v. United Electrical Mfg. Co. Crossing Works \[C. C. A.\] 164 F 843. Bilfors, No. 64.456, adjusted switch-rod, not pioneer, not infringed by Lee and Moore, forge patents comprising the invention covers arbitrary design of patent. Curtis v. Humphrey, 155 F 169. Not a pioneer limited to particular structure shown and described.

Footnote 77: Dellows v. United Electrical Mfg. Co. Crossing Works \[C. C. A.\] 164 F 843. Bilfors, No. 64.456, adjusted switch-rod, not in law of patents means that each of ingredients comprising the invention covers arbitrary design of patent. Curtis v. Humphrey, 155 F 169. Not a pioneer limited to particular structure shown and described.

Footnote 78: Dellows v. United Electrical Mfg. Co. Crossing Works \[C. C. A.\] 164 F 843. Bilfors, No. 64.456, adjusted switch-rod, not in law of patents means that each of ingredients comprising the invention covers arbitrary design of patent. Curtis v. Humphrey, 155 F 169. Not a pioneer limited to particular structure shown and described.

Footnote 79: Dellows v. United Electrical Mfg. Co. Crossing Works \[C. C. A.\] 164 F 843. Bilfors, No. 64.456, adjusted switch-rod, not in law of patents means that each of ingredients comprising the invention covers arbitrary design of patent. Curtis v. Humphrey, 155 F 169. Not a pioneer limited to particular structure shown and described.

Footnote 80: Dellows v. United Electrical Mfg. Co. Crossing Works \[C. C. A.\] 164 F 843. Bilfors, No. 64.456, adjusted switch-rod, not in law of patents means that each of ingredients comprising the invention covers arbitrary design of patent. Curtis v. Humphrey, 155 F 169. Not a pioneer limited to particular structure shown and described.

Footnote 81: Dellows v. United Electrical Mfg. Co. Crossing Works \[C. C. A.\] 164 F 843. Bilfors, No. 64.456, adjusted switch-rod, not in law of patents means that each of ingredients comprising the invention covers arbitrary design of patent. Curtis v. Humphrey, 155 F 169. Not a pioneer limited to particular structure shown and described.

Footnote 82: Dellows v. United Electrical Mfg. Co. Crossing Works \[C. C. A.\] 164 F 843. Bilfors, No. 64.456, adjusted switch-rod, not in law of patents means that each of ingredients comprising the invention covers arbitrary design of patent. Curtis v. Humphrey, 155 F 169. Not a pioneer limited to particular structure shown and described.

Footnote 83: Dellows v. United Electrical Mfg. Co. Crossing Works \[C. C. A.\] 164 F 843. Bilfors, No. 64.456, adjusted switch-rod, not in law of patents means that each of ingredients comprising the invention covers arbitrary design of patent. Curtis v. Humphrey, 155 F 169. Not a pioneer limited to particular structure shown and described.

Footnote 84: Dellows v. United Electrical Mfg. Co. Crossing Works \[C. C. A.\] 164 F 843. Bilfors, No. 64.456, adjusted switch-rod, not in law of patents means that each of ingredients comprising the invention covers arbitrary design of patent. Curtis v. Humphrey, 155 F 169. Not a pioneer limited to particular structure shown and described.

Footnote 85: Dellows v. United Electrical Mfg. Co. Crossing Works \[C. C. A.\] 164 F 843. Bilfors, No. 64.456, adjusted switch-rod, not in law of patents means that each of ingredients comprising the invention covers arbitrary design of patent. Curtis v. Humphrey, 155 F 169. Not a pioneer limited to particular structure shown and described.

Footnote the inventor is ordinarily confined to his specific device and receives little aid from the doctrine of equivalents,84 and the court may resort to strict and even harsh construction when the patentee has done nothing more than make a trivial improvement upon a well known structure which produces no new result;85 but is should be correspondingly liberal when convinced that the patentee's improvement is so radical as to put the old methods out of action,85 or where patent discloses invention of great merit and that covers a machine of great value and success in operation.87 Where one claim of a patent specifically names two elements and another claim specifically names these two elements and in addition thereto a third element, it must be presumed that the patentee intended to limit the claims to the elements enumerated.88 The failure of a patent to state certain merits in a patented structure which in fact contains a new mode of operation and produces new results does not prohibit the court from taking them into consideration in determining the question of patentable novelty, nor does it limit the scope of the invention,85 for the patentee is entitled to "11". _benefits_ and advantages which the structure possess over prior structures intended to accomplish a similar purpose.89 A patent for a process is not to be held to the strictness of specification required in a patent for a composition.91 In a combination device consisting in combinations of well known mechanical appliances, no liberality of construction is accorded to create a monopoly,92 but the patent will be limited to the combined apparatus as specified in the application,83 and no great liberality to the doctrine of mechanical equivalents can be indulged in its favor.94 A second patent granted to a patentee for a device for the same purpose, but different in form from

v. Saugerties Mfg. Co., 159 F 472. Lovell v. Excelisor Needle Co., 162 F 486. Jones, and Breedenberg, No. 490,877; an improve-ment merely, narrow construction and equiv-

Arent merit entitled to broad construction. alents limited. Lovell v. Seybold Mach. Co., Underfeed Stoker Co. v. American Shlp 159 F 736.

84. Liberman's Ex'rs v. Ruwell, 165 F 208.

803, concrete mixing machinery not limited Cleveland, No. 727,905, for can opener.

to precise device. Ransome Concrete Manufacturing Bros. & Co. v. Reinhardt \[C. C.\] Chinery Co. v. United Concrete Machinery A.\] 159 F 707. Patent for mere improve-

Co., 165 F 914.

ment in details of construction limited to precise combination shown and described

held not by implication to include another without any range of equivalents. Smith

element, for it so construed two claims

& Hemenway Co. v. Stearns & Co., 160 F

would have been identical. Marshall v.

494. Where no great invention is disclose,

Pettingell-Andrews Co. IC. C. A.\] 164 F 862.

no broad range is given, patent must be

88. That patented pump was designed prit-

taken for what its terms stand. White-

more Bros. & Co. v. World Polish Mfg. Co.,

be used for both air and water held not to

159 F 430. Lovell and Williamson, No. 734.

907, book-trimming machine, claim 11, being for combination, limited to substantially

aim pump. Warren Steam Pump Co. v. means shown and described. Lovell v. Seybold Mach. Co., 159 F 736.

163 F 263.

inventure genius is displayed if at all in

modifying, combining, and adapting old elements for a certain purpose, his patent must

be limited to the particular form of adelta-

tion shown. American Grass Twine Co. v.

Choate \[C. C. A.\] 159 F 429. Where one

depends upon a single limited feature, the doctrine will not ordinarily be supplied so

as to cover a device in which that feature

does not appear. Liberman, No. 663,921.

combined cigar-rolling table and wrapper

cutter not infirlged by a similar combination machine having a different feature.

Liberman's Ex'rs v. Ruwell, 165 F 208.

85, 86. O'Rourke Engineering Const. Co. v.

McMullen \[C. C. A.\] 160 F 933.

87. Campbell, No. 594,457, machine for

forming inples used in wire spoke wheels

entitled to liberal construction and fair

range of equivalents. Manville Mach. Co. v. North Packing & Provision Co.

12 Cur. Law.

PATENTS $ 6.

the one shown in an earlier patent, may be referred to in construing the earlier patent as affording a presumption that it did not broadly cover other than the described forms.\*\* A patent which relates to an article characterized by its physical features and not by the method of its construction, is limited by the language of its claims and the proceedings in the patent office does not cover an article of different physical features;\*\* and when a claimant contesting with others in the same field and at the same time, after repeated rejections, in order to obtain a patent, adopts and specifies as his invention a "peculiar organization of parts" and specifies and specifically names and locates, those several parts, he is held to the peculiar organization so particularized, specified and claimed,\*\*77 and so also a patent for described means or mechanism to accomplish a desired end must be limited to the particular means described in the specification of their clear mechanical equivalents, and does not embrace or cover any other mechanical structure which is substantially different in its construction or operation,\*\*8 and where the claims for a patent specify the elements of a combination but do not specify the means of their operation except by calling for "means" generally, and close with the words of reference "substantially as and for the purpose" described, set forth or specified, these words impart into the claims the specific means described, and the invention is limited accordingly.\*\*99 Various constructions placed upon patents are stated in the notes.\*\*1

\_Pioneer invention.\_See 10 C. L. 1134--Pioneer patents 2 are entitled to a liberal construction,\*\*8 \*\*and when an invention is a primary one and the inventor a pioneer in a given art, he is entitled to a wide range of mechanical equivalents.\*\*4 One who in an improvement brings in a new element is as to such thing something of a pioneer,\*\*9 \*\*and as such not limited to the precise details mentioned by him.\*\*8

Footnote 8: The author is grateful to the referees for the support of the paper.

Footnote 9: The author is grateful to the referees for the support of the paper.

Footnote 10: The author is grateful to the referees for the support of the paper.

Footnote 11: The author is grateful to the referees for the support of the paper.

1268 PATENTS SS 6. 13 Cur. Law:

of the thing patented, the name passes to the public with the cessation of the monopoly which the patent created,\* and the patentee who has had the benefit of a patent during its full life will not be heard to assert its invalidity in support of his claim to a trade mark in which the manufactured article has become generally known.10 Inventors have the right to extend their claims by a reissue when the invention remains the same and there is no material change in the drawings and specifications,11 and where there is no unreasonable delay in making the application,12 but claims in an application for a reissue will not be allowed where they are embraced in a subsequent application in interference, and the purpose of the applicant for reissue is apparently to gain an advantage over his opponent in the interference proceeding,13 nor will claims of an application for a reissue be granted where, in order to give them the meaning claimed, it becomes necessary to give their language a strained, immaterial and improper interpretation, or if when given the construction claimed it covered new matter.14 It is not an invariable rule that a patent for a machine will not sustain a reissue for a process,15 but the deliberate cancellation of claims from an application for a patent precludes their assertion in a reissue.16 After a patent has been declared invalid, one may apply for a reissue or continue the litigation, but he cannot do both,17 and a just regard for the rights of the public demand that, if a patent is to be resuscitated in the form of a reissue, it be done immediately; 18 hence the owner of a patent which has been declared void by the circuit court of appeals cannot thereafter continue litigation thereon for years in other circuits, and when finally defeated apply for and obtain valid reissue,10 and any delay in applying for a reissue of a patent for the purpose of curing the invalidity of the patent for double patenting, as declared by the highest court to which the question could be carried, is at the applicant's peril.20 Aplicants usually act through solicitors or attorneys and their inadvertence, accidents and mistakes, if such is the fact, are remediable under statute permitting the reissue when it is clear that there is no fraudulent or deceptive intent or attempt to destroy an intervening right.21 Applications for reissue filed long after the date of the patent and having for their object the enlargement of its claims will be countenanced only in unusual and exceptional cases.22 A void patent gains nothing by a reissue; 23 likewise, where particular claims of a patent have been declared void, the identical claims contained in a reissue must be affirmatively established to make the reissue valid.24

- Buff-colored strip and name "elastic" \[ patent would cover whatever novelty wasseam." Rice-Stix Dry Goods Co. v. J. A. \] described. Id. \] Science Co. (C. C. A.) 165 F 639. \] 16. Rice-Stix Dry Goods Co. v. J. A. \] In re Lacroix, 30 App. D. C. 298. \] 17, 18, 19. Thomson-Houston Elec. Co. v. \] 18, 19. \] 18, 19. \] 19. \] 18, 19.

**12** Cur. Law. PATENTS SS 8. **1269**

**SS 7.**_Disclaimer and abandonment._\[25\]\_Sec 10 C. L. 1155.--If an invention is perfected and abandoned, it goes to the public; \[26\] hence, when an inventor in compliance with statute particularly points out and distinctly claims a part improvement or combination which he claims as his discovery, he thereby disclaims and dedictates to the public all other improvements and combinations to perform the same function that are apparent from the specification and that are not evasions of the specific combination he claims as his own.\[27\] Delay of two years in filing an application for a reissue of a patent with broader claims will usually be treated as an abandonment to the public of everything not claimed in the original,\[28\] but the abandonment of an application for a product patent upon the finding of an examiner in interference proceedings, that the product had been in use more than two years previous to the application, does not conclusively admit that the process is old,\[29\] nor is it an abandonment within the meaning of the law of his process patent granted on an application simultaneously filed.\[30\] An applicant who, after another party has been adjudged priority as to certain of his claims in interference proceedings, cancels such claims acquires no right in the subject-matter thereof by subsequently defeating the issuance of a patent to the other applicant on the ground of prior public use, invention having been abandoned.\[31\]

**SS 8.**\_Tilles in patent rights and license, conveyance, or transfer thereof.\[32\] In general.\_Sec 10 C. L. 1155.--Where a patent issues to an applicant who has assigned his interest therein, the patent is valid, and by operation of law rests in the ass:gnee,\[23\] and where a patent issues to one of two rival assignees, the title vests in the holder of the superior assignment.\[34\] The patentee has the exclusive monopoly on the right to manufacture, use and sell his patented device,\[35\] and these substantive rights may be granted together or separately and subject to such restrictions in each case as the patentee may see fit to impose,\[36\] but ownership of the physical structure covered by a patent does not necessarily include the incorproeal right to use the same,\[37\] nor can such incorproeal right be foreclosed by the operation of the state statutes.\[38\] The owner of a patent, or sole licensee from the United States, may grant licenses to others,\[39\] and limit the maximum price at which his licensee may sell at retail to the public,\[40\] and the sufficiency of a printed notice of reservation of right to control the price is immaterial in the case of a dealer who has actual notice of the reservation and the established price.\[41\] A sale or license, with a covenant not to compete, made as an ordinary incident to enhance the value of the thing conveyed, is not within the Sherman Anti-Trust Act,\[42\] but where it is the ordinary privilege of the owner of 25. Search Note: See Patents. Cent. Dig.: $2. Seerch Note: See notes in 4 C. L. 941; $105-112, 223-228; Dec. Dig. $1 82-87, 149-156; 22 A. & E. Enc. L. (2ed.) 399. 151; 8 L. 140. 26. Davis & Reeson Temperature Controling Co. V. National Steam Specialor Co., Dec. Dig. $1 811-219; 22 A. & E. Enc. L. 164 F 191. Diss reissue, No. 11,982, furniture (2ed.) 414; 16 A. & E. Enc. P. & P. 155. 33. 17. In & Peerstall, 31 App. D. C. 485. 34. If applicant is real owner of patent, he has his remedy by proceedings in equity. In & Peerstall, 31 App. D. C. 265. 35. 36. New Jersey Patent Co. v. Schaefer, 159 F 171. 37. 38. Federal Const. Co. v. Park Imp. Co., 167 F 128. 39. 18. Lefkovit's v. Foster Hose Supporter One., 161 F 867. 40. New Jersey Patent Co. v. Schaefer, 159 F 171. 41. The Fair v. Dover Mfg. Co. \[C. C. A.\] 166 F 117. 41. The Fair v. Dover Mfg. Co. \[C. C. A.\] 166 F 117. 42. The Fair v. Dover Mfg. Co. \[C. C. A.\] 166 F 117. So held though dealer merely intended to test sufficiency of notice. Id. 42. Act Cong. July 2, 1890, c. 647, 26 Stat.

patent rights to use or not use them " without question of motive,"44 yet the grant of letters patent confers upon the patentee no right not to use his invention, or make an agreement in restraint of trade in that article, save in connection with an assignment of the rights' conferred by the letters patent."45 An act making notes given in payment of patented articles or patent rights void unless showing on their face such consideration is not repugnant to the federal constitution."46

\_Patent rights as between employer and employee.\_See * C. L. 1390--An invention and the patent thereon belongs to the inventor to whom the patent has been issued unless he has made either an assignment of his right or a valid and enforible agreement for such an assignment, even though it was his duty to use his skill and inventive ability to further the interests of his employer by devising improvements, generally in the appliances and machinery used in the employer's business,"47 and to enable an employer to claim the benefit of his employee's skill and achievement, the employer must show that he had an idea of the means to accomplish the particular result which he communicated to the employee in such detail as to enable the latter to embody the same in some practical form,"8 but if the employ in doing the work assigned him goes further than mechanical skill enables him to do and makes an actual invention, he is equally entitled to the benefit of his invention."9 When an employer conceives the principle or plan of an invention and directs his employe to perfect the details and realize his conception, though the latter may make valuable improvements therein, such improved result belongs to the employer,"80 and the same rule applies to principal and assistant though they may be fellow employes,"81 and where one is an assistant and junior applicant, the burden is on him to establish that he possessed knowledge of invention independent of any suggestion from his fellow employe after the former was assigned to assist."82

\_Royalties.\_See * C. L. 1138--A patentee entitled under contract to a royalty on an invention and improvements thereon cannot recover royalties for similar but nonpatented articles sold embodying other and distinct improvements, though

48: Not sufficient that employer had in mind = desired result and employed another to devise means for its accomplishment. Robinson v. McCormick, 29 App. D. C. 98.

49: Employe's construction held more than a mechanical improvement of idea communicated to him by employer; hence, former entitled to award of priority. Robinson v. McCormick, 29 App. D. C. 98.

50: McKillop v. Foster, 31 App. D. C. 586.

Evidence held sufficient to entitle senor party to award of priority, he being shown to have imparted to junior not only broad idea embraced in invention but suggested various modifications and changes, and junior (employe) showing lack of diligence in filing application after issuance of patent to senior party. Id. Robinson v. McCormick, 29 App. D. C. 98; Braunstein v. Holmes, 30 App. D. C. 328. Where one conveys to his employees information and instructions to proceed to manufacture a piece of mechanism which, with the instruction imparted, can be constructed by the application of ordinary skill, instructor is entitled to the benefit of the skill and in-genuity of the employe in successfully completing device. Neth v. Ohmer, 30 App. D. C. 478.

51, 52. Braunstein v. Holmes, 80 App. D. C. 328.

12 Cur. Law. PATENTS SS 8. 1271 the patentee as employee had invented and patented such improvements,\[53\] such distinct improvements made by employe and at employe's expense being the property of the latter.\[54\] One under contract to pay a royalty is relieved of his obligation where neither the invention nor any tool made under it or an improvement of it is ever used or sold by the defendant because the device is worthless and incapable of practical use,\[55\] and in an action to recover royalties, whether the articles sold were made in pursuance of plaintiff's invention and improvements therender is a question of fact,\[56\] to establish which the defendant may prove that the thing made did not contain the device protected by the patent, and for that purpose shows the particular point covered by the patent,\[57\] but if an article embodying in its mechanism plaintiff's invention was sold, it is no defense that the invention was impracticable and of no value, the defendant as licensee being estopped to deny value of invention through his use and sale under the license.\[58\] The terms of the contract govern as to the amount of royalty recoverable,\[59\] and where a royalty contract is not ambiguous,\[59\] there is no necessity for resorting to the acts of the parties to ascertain its meaning.\[60\] One entitled to a royalty, having elected to affirm a transfer of the patent by the grantee to another, cannot hold the former grantee as a guarantor for his grantee's performance of an implied obligation to manufacture the patented article during the patent's life.\[61\] An agreement to pay royalty on a certain article made is not necessarily contingent upon the issuance of a patent,\[53\] but a patentee's misconduct may defeat his right to royalties.\[54\] A plea in a former action averring a payment on account of royalties is not conclusive as between the same parties in an action for the same royalties as an admission of defendant's liability;\[55\] but a verified answer in an infringement suit brought by a third party against the defendant, pleading the contract under which plaintiff claims royalties, as a defense, and that under such contract he had a right to make the implements sold, is admissible, though not conclusive, to show that the defendant thought the product was covered by the contract,\[56\] and in such action, while evidence to prove "the state of the art" is competent, if it will serve to explain anything in the application or tellers patents that would otherwise be obscure, yet it is not competent to impeach the validity of the patents.\[57\] A person entitled to a royalty under a contract for the use of a patent has an adequate remedy at law for its breach \[58\] and 53. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 54. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 55. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 54. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 55. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 55. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 54. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 55. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 56. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 57. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 58. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 59. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 54. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 55. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 56. Meissner v. Standard R. Equipment Co., 211 Mo. 112, 109 SW7 730. 57. Meissner v. Standard R. Equipment Co., 211 Mo.

1272

PATENTS $ 8.

may recover royalties on all articles made and sold by the license shown to be substantially those of the patent, \[99\] but where the suit for a royalty is not based upon a contract but upon the fact that defendant took the patent with actual notice of plaintiff's claim and the nature of it, equity will entertain the suit. \[90\]

_Transfer_, \[85e 10 C. L. 1185\]--By act of congress, patents or interests therein are assignable in law by an instrument in writing, \[11\] and, in the absence of statutory requirements, no particular form of assignment of letters patent is required, any written conveyance duly signed and sufficiently specific to identify the property being sufficient, \[12\] and it has even been held that an oral assignment of an interest in an invention expected to be patented is valid and enforcible, \[73\] and where such an agreement has been entered into, a subsequent wrongful transfer of such interest to another with knowledge of the previously vested rights is void. \[74\] As against others than subsequent purchasers or mortgagees, it is not essential that an assignment be eligible for record under the statute. \[15\] An inventor's personal contract to make inventions for his assignee is not assignable, \[76\] but an equitable interest in letters patent is assignable. \[77\] An assignment to satisfy judgment debts is not invalid because executed by the master as directed by the court instead of by the officer of a corporation debtor. \[78\] Where through an assignment the legal and equitable title to a patent merges, the assignee may make a conveyance of such part of the patent as he is the absolute owner of, \[79\] and an agreement to convey such part may be specifically enforced. \[80\] In an assignment of certain patents, including all "inventions of like nature * * which may hereafter be completed by me," the verb "completed" should be given its ordinary meaning, \[81\] and the assignee of a subsequent invention not conceived by the inventor at the time when the contract was executed, though with actual knowledge of such previous assignment, is not chargeable with notice that its language should receive an extraordinary interpretation. \[82\] A transfer that is in general restraint of trade, unreasonable and against public policy, will not be enforced. \[83\] The sale by one copartner

69. Immaterial that goods purported not inventon useful in business but which cor- to have been made under patent, and claimed not covered thereby by defendant. Id.

Clifford v. Capell \[C. C. A.\] 165 F 193.

76. Barnes v. American Brake-Beam Co.. 238 Ill. 582, 87 NE 291.

01. Evidence held insinventent to assignment by instrument in writing. Moore v. U. S. One Steve Barrel Co.. 141 Ill. App. 104.

01. No particular form prescribed by con- gress, written agreement held sufficient. American Tobacco Co. v. Ascot Tobacco Works, 165 F 207.

01. 74. McRae v. Smart \[Tenn.\] 114 SWF 729.

01. Conveyance of all property, Including "patents," held effective as assignment of patent as against alleged infringer, though assignment was eligible for record under Rev. St. $ 4898 (U. S. Comp. St. 1901, p. 3837). Delaware Seamless Tube Co. v. Shelby Steel Tube Co. \[C. C. A.\] 160 F 928.

01. New York Phonograph Co. v. Davega. 127 App. Div. 222, 11 NYE 843.

01. American Circular Loom Co. v. Wilson, 198 Mass. 182, 84 NE 133. Resolution of corporate stockholders that company assign all its assets to plaintiff and that the corporate officers execute all necessary papers for purpose, and a formal assignment of all assets of company, including "inter- ests in letters patent, * * inventions, * * and choses in action," to plaintiff, held to pass equitable interest in letters in letters and * * * 13 Cur. Law. PATENTS $ 8. 1273 to another does not estop the former on subsequently acquiring a patent on articles of the kind manufactured by the firm to maintain a suit against his former partner for infringement subsequent to the partnership term,\[84\] although it probably will bar a recovery for damages for acts done during the term.\[85\] A lease and royalty contract entered into, based upon a valuable consideration,\[86\] if fairly made,\[87\] cannot be re-scinded except in accordance with their terms.\[88\] More puffing talk of a seller, mainly expressions of opinion in the nature of predictions as to what can be done in the market with an appliance, does not amount to a fraud.\[89\] The assignee of a patent does not, in the absence of express contract, assume any obligation to perform the contract of his assignor with the licensee,\[90\] nor in a purchaser of the assets of the assignee with notice of the license bound to fulfill such executory agreement for the licensee's benefit,\[91\] and incapacity on the part of an assignee of patent rights to perform its obligations to the inventor exonerates the latter as against both the purchaser and its assignees or licensees.\[92\] Persons subsequently contracting with the assignors of patent rights are affected only by such notice and knowledge of a former assignee's prior rights as the assignors had when they made the contract,\[93\] but for the purpose of notice an assignment of a patent is required to be recorded within three months,\[94\] and a certified copy of the record of an assignment of a patent with the acknowledgment thereto, although evidence where the original would be,\[95\] is not proof of the genuineness or due execution of the original assignment,\[96\] nor therefore is a certified copy of such record evidence thereof though it may be resorted to to trace the same.\[97\] No assignment of an unpatented invention being authorized or required to be recorded,--unless it be an assignment on which a patent is to directly issue, an agreement to assign a patent not yet obtained is not within the statute, and a record thereof is not notice to a subsequent assignee of the patent,\[98\] but while constructive notice may be effectively provided, inquiry is by no means excused, nor can the record alone be relied on to make out title.\[99\] The purchaser of a patented article from and unenforcible. Jones Cold Store Door \[equally open to both, neither of which are experienced mechanics. Waymire v. Ship-84. In absence of fraud in nature of warranty. Dull v. Reynolds Elec. Flasher Mfg. 90, **01**. New York Phonograph Co. v. DaCo., 161 F 128. 85. Dull v. Reynolds Elec. Mfg. Co., 161 F 129. 86. Contracts for territorial right for manufacturer and for lease of molds held based on a valuable consideration. Lyons' Durisl. Vault Co. v. Taylor, 198 Mass. 63, 84 NE 820. 87. Evidence held to raise question for jury whether defendants were induced to align contract by fraudulent representations. Lyons' Durisl. Vault Co. v. Taylor, 198 Mass. 63, 84 NE 820. 88. Lyons' Burial Vault Co. v. Taylor, 198 Mass. 63, 84 NE 320. Contract for sale of territorial rights for the manufacture of patent burial vaults held to bind party of the second part absolutely to manufacture 190 vaults before Jan. 1, 1904, and pay royalty on them. Id. In unabiliary agreement whereby molds were leased and delivered by plaintiff, providing that a cash sum be paid on delivery of molds, payment held not affected by subsequent cancellation of agreement on return of molds. Id. 88. Pariharhacks, Morse & Co. v. Guilfoyle, 83 Ky. L. R. 408, 110 SWP 238. Statements held mere opinions, patented article being before parties, and merits one who is authorized to sell becomes possessed of an absolute property therein which he may transfer, with the right of user to others,1 but a sale of the parts of a dismantled machine as scrap iron does not pass title to a machine, nor the right to use it, in disregard of a patent.2 The right to describe an article by the trade mark or patented name passes by implication to the purchaser of the article invented and to the general public after the expiration of the patent,3 but an inventor who disposes of his patents does not lose the right to describe himself in connection with claimed improvements as the inventor of the original device,4 nor does the mere assignment of patents for the manufacture of an article authorize the assignee to use the patentee's name in connection with the articles manufactured.5 Construction of terms "carry" 6 and "all improvements thereon" and "thereon" 7 are shown in the notes.

\_Licensees.\_See 10 C. L. 1186.--A license may be modified at any time by any subsequent arrangement between the licensor and licensee,8 and where a subsequent license-see's arrangement is for the benefit of the owners of the patent, it is based upon a sufficient consideration, amounts to a modification of the license, and is a valid contract,9 but since the right secured to the public by a license is to purchase the articles when manufactured and offered for sale, a modification regulating the sale of the commodity is objectionable as in restraint of trade,10 although a license to manufacture and sell the patented articles which stipulates that it shall not be an exclusive license, but that the patentee may license others, does not create a monopoly nor is it void as against public policy.11 Since a license implies that the licensee shall not be evicted from enjoyment, an eviction is a defense to a suit for royalties acorruing after its occurrence,11 and where a license is coupled with an express covenant on the part of the licensors to protect the exclusive right granted, the breach of such covenant is sufficient to defeat the right to recover stipulated royalties,13 and under the California statutes the licenor's complaint in such case must allege performance or offer to perform such concurrent condition.14 A licensee by rescinding and alleging and proving the necessary facts may recover damages from the patentee who fails to use reasonable means for the protection of the patent,15 but where a license is breached by the

\*\*1, 2.\*\*Tindel-Morris Co. v. Chester (Forg- 8. Arrangement held a written modiacing & Engineering Co.), 163 F 304.

\*\*3.\*\*Use of Edison's name to truly and properly describe machines of his invention.

Edison v. Mills-Edisonia \[N. J. Eq.\] 70 A 191.

4. Dr. A. Reed Cushion Shoe Co. v. Frew \[C. C. A.\] 162 F 887.

1. Assignment of patents for manufacture of shoes having ensibened insoles held not to authorize use of patentee's name in connection with shoes manufactured. Dr. A.

1.

Reed Cushion Shoe Co. v. Frew \[C. C. A.\] 162 F 887.

6. Ordinary meaning of term "carry," when used in a contract by which one of the parties to a contract for purchase of a patent agrees to carry interest of another party who is to have a part interest therein, means "advance" the money to pay his interest. Mann v. Urquhart \[Ark.\] 116 SW 219.

**7.**"All improvements thereon," In an assignment of letters patent for improvement in pulp-beating engines and "all improvements thereon," held to include all improvements on Improvement in engines for which original letters patent were granted. Marshall Engine Co. v. New Marshall Engine Co., 199 Mass. 546, 85 NB 741.

12 Cur. Law. PATENTS $ 9. 1275 licensee, the licensor may terminate the agreement and make a license to a third party.14 A licensee may by agreement estop himself from collaterally attacking the validity of a patent,15 but although estopped to deny the validity he may nevertheless, in an action for royalties, show by a proper plea that he did not manufacture the patented article.16 A licensee agreeing that the patentee shall not be responsible for any damage from an infringement, etc., takes the risk of infringements.17 The grantor of an exclusive license under patents and his successor in privity are estopped as against the licensee to deny the validity of such patents or to assert their expiration before the term for which they were granted.28 The original and subsequent contracts granting right to sell a patented device should be construed in their entirety to ascertain the intent of the parties.29 One enjoined from violating a license agreement by selling articles under the patents will be held in contempt of court.29 A contract for the manufacture and sale of patented structures may be canceled for all purposes without the action of a court of equity when its terms permit thereof,21 and where a patentee in a license reserves the right to license others at his option, a subsequent license for a smaller royalty may be granted to others.29 A contract licensing the use of a particular patent and providing a royalty cannot be forfeited except upon the strict limits of the authority conferred by the same,29 and specific provisions of such contracts may be waived so as not to authorize a forfeiture.29 Notice of forfeiture for breach must not be premature.29

**SS 9.**\_Interference suits.29--See 10 C. L. 1138--To make out a case for the cancellation of alleged interfering claims under statute, there must be actual conflict and not mere infringement,29 and in determining whether there is an interference within the statute, the court cannot go beyond the claims as to which it is charged so as to consider the patent as a whole.29 There is no "interference" between a design patent for a design which is cylindrical in form and a patent for an article claimed useful that is nearly hemispherical in shape and having a rounded bottom.\[31\]

SS 10. _Infringement. A. What is.\[32\]-See 10 C. L. 1136_--A patent may be infringed by the unlawful making, by the unlawful selling, or by the unlawful using of a patented invention.\[33\] One who produces the same result by the use of devices operat-

81. Under Rev. St. # 4918 (U. S. Comp. St., No. 535,465, means for operating washing 1901, p. 8394), no interference between

machines, claim I. Benbow-Brammer Mfg. Perky design patent No. 25,818, and Williams

Co. v. Straus \[C. C. A.\] 166 F 114. Stiefel, patent No. 820,899. Natural Food Co. v. No. 551,340, mechanism for making tubes

Williams \[C. C. A.\] 165 F 255.

**32. Search Note:** See notes in 3 Ann. Cas., 852, 5 Id. 672.

See, also, Patents, Cent. Dig. # 357-625;

wheel. Consolidated Rubber Tire Co. v.

Dec. Dig. # 226-$27;

22. A & E. Enc. L (2ed.)

01.

\*\*33. ILLUSTRATIONS. Patents held in-

Hringed: Lichtenstein v. Straus, 166 F 319.

Diss, reissue No. 11,982, furniture caster,

Empire Cream Separator Co. v. Sears Roe-

claims 1 and 2. Universal Castor & Foundry

Pock Co. (C. C. A.) 160 F 68. Curtis, No.

Co. v. M. B. Schenck Co., 165 F 344. Trufault,

grest/192, device for regulating treatment of

reissue No. 12,437, frictional retarding means

substances chronometrically, claims 1 and

for spring vehicles, and No. 12,399, anti-

4. Curtis V. Humphrey \[C. C. A.\] 164 F 847.

vibration device for vehicles. Hartford v.

Hollander \[C. C. A.\] 163 F 948. French de

in can labeling machines, claims 2 and 3.

sign patent No. 35,922. Scofield v. Browne

\[C. C. A.\] 165 F 305. Lichtenstein, No. 38,-

Hernbrand, No. 563,130, improvements in

412, design for haband. Lichtenstein v.

Phipps, 161 F 678. Dyer, No. 283,646,

process of making artificial mica sheets for

electrical insulation. Mica Insulator Co. v.

Commerical Mica Co. \[C. C. A.\] 166 F 440.

Stockheim, No. 378,379, process of filtering

best, claims 1, 2, and 4. Loeee V Filter Co. v.

German American Filter Co. of New York

\[C. C. A.\] 164 F 856. Leach, No. 38,686,

locomotive track sanders. Economy Locoo-

motive Sander Co. v. American Locomotive

Sander Co. \[C. C. A.\] 167 F 883. Gatheright,

No. 486,916, tabulating attainment for type-

writers. Underwood Tyeprevirter Co. v.

Elliott-Fisher Co., 165 F 927. Aiken, No.

460,360 and No. 492,951, apparatus for con-

veying, cooling and straightening metal

plates. National Tube Co. v. Aiken \[C. C. A.\] 163 F 254. Rhoades, No. 454,791, improve-

ment in looms. Draper Co. v. American

Loom Co. IC. C. A.\] 161 F 728. Anderson,

No. 457,381, claim 1 of Pierce & Poinsett,

No. 623,423 and claim 1 of Holmes No. 538,-

914, by Scott patent, No. 819,605. Slocomb

& Co. v. Turner, 158 F 987. Jones, No. 470,-

652, underfeed furnace claims 6 and 9. Un-

derfeed Stoker Co. of America v. American

Ship Windlass Co., 165 F 66. Woodward,

No. 473,461, thread-controlling device for

sewing machines. Maimen v. Union Special

Mach. Co. \[C. C. A.\] 165 F 440. Stables, No.

474,636, spring supports for chair seats,

claims 1 and 3, by one of two devices.

D'Arcy v. Staples & Hanford 622,190, saw guide for sawing material to make miter joints. Smith v. Hemenway Co. v. Stearns & Co. \[C. C. A.\] 166 F 760. %.

V. Harris, 162 F 160. %.

Owens, No. 628,027, art of making glass articles. Blair v. Jeannette-McKee Glass Owens, No. 628,027, art of making glass articles. Blair v. Jeannette-McKee Glass Owens, No. 618 F 356. %. Wright and Aalborg, Pneumatic Scale Corp. \[C. C. A.\] 166 F 288. %.

Worrs, 161 F 356. %. Wright and Aalborg, No. 633,772, for automatic circuit breaker, claims 2 and 5. Westinghouse Elec. & Mfg.

claims 1 and 2. Martin v. Wall \[C. C. A.\] 166 F 309. %.

C. A.\] 166 F 607. %.

Paipe, No. 774,490, metallic ring

Arrott, No. 633,941, for dredger for pulveru-

lent material. J. L. Mott Iron Works v.

Blake, 161 F 134. %.

Shandard Sanitary Mfg. Co. \[C. C. A.\] 159 F 43. %.

15. Cameron, Commin and Martin, No. 634,423, process of treating sewage. Cam-

eron Septic Tank Co. v. Village of Saratoga Springs \[C. C. A.\] 159 F 453. %. Young, No.

638,540, combined abdominal pad and hose support. O'Brien v. Foster Hose Supporter O'Brien v. Foster Hose Supporter O. Co. \[C. C. A.\] 159 F 710. %.

Heweit, No. 640. %.

197, for pipe coupling. Rainer v. Western Tube Co. \[C. C. A.\] 159 F 481. %.

Richmond Dow, Jones & Co., 166 F 473. %.

Dunn, No. 604,516, for battery filler.

National Carbon Co. v. Nungesser Elec. Satter Co., St.

C. C. A.\] 163 F 521. %.

provements on underfeed stoker of Jones, No. 470,052. %.

Underfeed stoker v. American Ship Windlass Co., 165 F 65. %.

Stoen, No. 647,907, hopper bottom car, claim 1. Morton

Crete mixing machinery.

Ransome Con-

Truset Co. v. American Car & Foundry Co.,

161 F 546. %.

Farrell, No. 663,069, process for

chinery Co., 165 F 914. %.

Cramer & Haak, No.

bleaching nuts. Fullerton Walnut Growers'

Ass'n v. Anderson-Barron-Grower Mrs. Co., 1900 Washser Co., 1906 Washser Co.

159 F 480. Cleveland, No. 727,905, for can 743. Wilson, No. 585,944, memorandum calopener. Whittemore Bros. & Co. v. Rein-endar. Poole Bros. v. Marshall-Jackson Co., hardt \[C. C. A.\] 159 F 707. No. 743,152. 161 F 752. Eggers, No. 737,375, amusement knitting machine needle. Dodge Needle Co. apparatus, claims 1 and 10. Consolidated v. Jones \[C. C. A.\] 159 F 715. Plagrams, Loops Co. v. Barnum, 161 F 915. Palmer, No. 608,220, issued Aug. 2, 1898, improved Denmead & Baughman, No. 538,655, machine mechanical movements by Johnson, No. for boxing matches, claims 1, 2, 3, 4, 23, 24, 74, 9688, issued Oct. 1993. Brammer Mfg. 26 and 30. Union Match Co. v. Diamond Co. v. Witte Hardware Co. \[C. C. A.\] 159 Match Co. \[C. C. A.\] 162 F 148. Finch, No. F 726. Lovell and Williamson, No. 73,947,907, 666,928, improvement in eyeglasses. Jones booktrimming machine, claim 11. Lovell V. Hardy & Co., 162 F 320. Norton, No. 470. v. Seybol Mach. Co., 159 F 736. Lovell and 591, feed mechanism for screw-cutting Bredenberg, No. 490,877, book-trimming ma- lathes, by Newton, No. 787,637. Hendey chine. Id. Conroy, No. 731,667, machine Mach. Co. v. Prentice Bros. Co. \[C. C. A.\] for ornamenting glass. Penn Electrical & 162 F 481. Alinea, No. 42,944, surgical Mfg. Co. v. Conroy \[C. C. A.\] 159 F 943. Pump. Trux v. Childs Adjustable Parlor Knight & Potter, No. 857,441, apparatus and Chair Co., 162 F 907. Hennebique, No. 611, No. 587,44, method for regulating electric driven mechanisms. General Elec. Co. v. Iron rods or bars. Hennebique Const. Co. Morgan-Gardner Elec. Co. 169 F 951. V. Armored Concrete Const. Co., 163 F 300. Stannard, No. 509,334, Improvement in front- Cornell, No. 514,705, Improvement in can tle valves, by Locke, No. 812,279. Consolid- Rlabeling machine. Knapp v. Atlantic Mach. dated Engine Stop Co. v. Landers \[C. C. A.\] 160 F 79. Terman, No. 719,942, apparatus 160 F 736. Pen-ard Elec. v. Duncan, No. 752,048, Gen. for screening, washing and assorting ore, eds. van der Elec. O. v. Duncan Elec. Mfg. Co. \[C. C. A.\] 163 F 839. Richards, No. 665,033, mann \[C. C. A.\] 160 F 91. Hardor, No. 711.- pneumatic tool. Cleveland Pneumatic Tool Co. 426, sectional sheet piling. Hardor v. U. B. Piling Co. C. A.\] 160 F 463. Scott. No. Lewis, No. 746,853, claims 8 and 9. Lewis P10,58, combined bustle and high form. E blind Stift Mach. Co. v. Premum Mfg. Co. claim 1, Scott v. Lazeell \[C. C. A.\] 163 F 950. Lewis, No. 731,66, 472. Dixon, No. 457,706, car heating apapax. claims 1 and 2. Id. Browning, No. 580,925, status. Safety Car Heating & Lighting Co. v. Consolidated Car Heating Co. \[C. C. A.\] 160 F 476. Seavy, No. 622,190, saw-guide for sawing material for forming materials, by Potter, No. 867,927. Smith & Hemenway Co. v. E. C. Stearns & Co. \[C. C. A.\] 160 F 494. Packham, No. 557,868, improvement in grain grills. Superior Drill Co. v. La Crosse Plow Co. 160 F 504. Van Brunt, No. 659,851, improvement in grain drills by Davis, No. 830,644 and 830,645. Id. Coffe, No. 812,183, improvement in telegraph keys, claims 12, 13, 16, 18, 19, 21, 32, 26, 27, and 28. Bellow s. United Electrical Mfg. Co. \[C. C. A.\] 160 F 663. Critcher, No. 781.-6

## 12 Cur. Law.

PATENTS SS 10A. 1279

ing in substantially the same way is an infringer,\[84\] and it matters not that the devices may differ in form, in appearance and in the manner of operation, if they combine to do the same work in substantially the same way;\[85\] and one patented machine is infringed by another which incorporates in its structure and operation the substance of such invention.\[86\] A slight differentiation,\[87\] or mere changes in construction when the same mode of operation is retained and the same result obtained,\[88\] or where there is substantial identity,\[89\] are unavailing to escape infringement. In the field of improvement, each claimant must stand on the specific improvement disclosed in and covered by his claim.\[40\] If the improvements operate in the same way, produce the same results and contain the same elements, they are infringements,\[41\] but improvements subsequently made by another even in the same field of improvement where not described and claimed do not infringe unless they are colorable merely and consist of the substitution of well known equivalents or a mere change of form or interchange of parts.\[42\] A "machine" as distinguished from a "process," which is a mode of treatment of certain materials to produce a given result, is a thing, and the latter may be infringed though different machinery may be used in applying the same.\[43\] The use of a patent or device covered by patents contrary to a contract of assignment,\[44\] or the violation of a license by selling at a price lower than the maximum fixed by the patentee,\[44\] constitutes an infringement. Modifications and additions, though improvements and meritorious enough to secure a patent for them, will not negative infringement if defendant uses the broad invention which a prior patentee has described and covered by his claim.\[45\] Within certain bounds a patented article may be repaired without making the repairer an infringer,\[47\] and one rightfully using a device for a few weeks or months does not become an infringer solely because the machine during such use, and because of it, becomes slightly worn.\[86\] A difference of a mechanical equivalent only will not relieve infringement,\[48\] for the substitution of an equivalent of a thing is the same as the thing itself,\[50\] nor is infringement avoided by adding other elements\[81\] or by discarding nonessentials\[82\] or by mere

## 13 Morrison & Wharton, No. 618,428,

tion where it permitted same movement candy machine. Empire Cream Separator and did same work held an equivalent and Co. v. Elec. Candy Mach. Co. \[C. C. A.\] 166

substitution did not avoid infringement. F 764. White, No. 427,058, brake for comnice machines. Ohl & Co. v. Falsstrom & Torn-

quiet Co., 166 F 898. Ohl. No. 679,031,

power press. 1d.

## 14 Six Eastern Extracting Co. v. Greater

## 15 New York Extracting Co. 110 NYS 738.

\[C. C. A.\] 159 F 439.

1280

PATENTS SS 10A. **12** Cur. Law. changes of form or location of parts,\[89\] or in change of material; \[55\] and the fact that an improvement may be patentable does not relieve it from infringement if it contains the specific device which another has made and patented.\[90\] In design patents the test of sameness and of infringement is, "Do the two things present to the eyes of the ordinary observer, purchaser, and user, the same general appearance."\[91\] A mere inferiority of construction does not avoid infringement,\[92\] but the fact that the structural functions of different articles are the same is not sufficient to constitute an infringement; \[93\] and, since the scope of a patent must be determined from the state of the prior art, the fact that a structure is within the terms of a patent does not establish infringement.\[94\] Where a patentee has chosen to make a particular feature an element of his claim, another device not possessing such element nor its equivalent though it may accomplish the same purpose does not infringe,\[95\] even though such feature is not an essential element; \[55\] and where a patent must necessarily be definite to be valuable, the patentee cannot complain if one by use of different constituents or the same but differing widely in amount substantially differentiates his process from the one patented.\[96\] One may use an element of an invented combination in a combination of his own\[97\] provided it is used in a different combination,\[55\] and the absence from a combination that is alleged to infringe a single essential element of the patented combination is fatal to the claim of infringement; \[98\] but, where it is clear that one has infringed another's patented combination,\[99\] the fact that one element in the combination may be used in combination with articles bearing no resemblance to the other elements of the combination as patented cannot make any difference.\[92\] Articles Electrle Candy Mach. Co. v. Empire Cream Separator Co., 161 F 65E. Leaving off some No. 568,723 electrolyte bath for coating metals and process for galvanically coating metals, construed and held not infringed by avoid infringement. Stafford v. Morris, 161 F 113. **63**. Lovell v. Seybold Mach. Co., 159 F 736. **63**. Lovell v. Seybold Mach. Co., 159 F 736. **64**. Alex Forge Co. v. Morden Prog & Crossing Works \[C. C. A.\] 164 F 843. **65**. Brammer Mfg. Co. v. Witte Hardware Co. \[C. C. A.\] 159 F 726; Union Match Co. v. Diamond Match Co. \[C. C. A.\] 162 F 148; Liberty v. Champion-International Co., 164 F 871; Lewis Blind Method Mech. Co., Vremun Mfg. Co. \[C. C. A.\] 163 F 95; United States Faster Co. v. Caesar \[C. C. A.\] 160 F 943. In examining a question of infringement, the primary inquiry is whether every element of a claim is found in the device complained of. United States Faster Co. v. Caesar \[C. C. A.\] 160 F 943. Combination not infringed unless all elements as they are claimed are used, whether they are essential or not. Portland Gold Min. Co. v. Hermann \[C. C. A.\] 160 F 91. No infringement of a combination claim unless the elements thereof are used in substantially the same mode of co-operation. Id. **66**. Berliner, patent No. 534,543, for improvement in talking machines, claims 5 and 35, held infringed, defendant's machine being used in same way, with same disc, producing same effect by same means, notwithstanding a weak spring in defendant's machine. Victor Talking Mach. Co. v. Hoschka, 158 F 309. **67**. Use of a spring in connection with talking machine. Victor Talking Mach. Co. v. Hoschka, 158 F 309.

12 Cur. Law. PATENTS SS 10B.

manufactured under the terms of a patent are taken out of the limits of the monopoly and become part of the common property of the country,\[68\] and when sold by the patentee, or his licensee the royalty having been previously paid or secured, the patentee having once received his royalty cannot treat the user or seller as an infringer.\[60\] A final decree for the defendant in an infringement suit entitles the defendant to continue to make and sell the alleged infringed article free from all interference.\[60\] So, also, one owning or having legal possession of an invented article may lawfully use the same for the purpose for which it is adapted and advertise it in the name of the patentee.\[71\] One who purchases a patented device or machine or a machine containing patented devices for use from the inventor before he takes a patent in the territory where it is made and sold, or who purchased the same from one having the right to sell it, such right being derived from the patentee, has the right to use it anywhere,\[72\] for the right to the use stands on a different ground from the right to make and sell, and inheres in the nature of the contract of purchase which carries no implied limitation to the right to use within a given locality.\[73\]

\_Contributory infringement.\_See 10 C. L. 1130.--Where an infringement of a patent is brought about by concert of action between others and a licensee, all engaged directly and intentionally in such action become joint infringers;\[74\] and where one without right constructs or disposes of an infringing machine, it affords no protection to another to have merely repaired the machine for the latter becomes to such extent a contributory infringer.\[75\] To charge the president of a corporation personally with liability for an infringement by corporation, it must be affirmatively shown that the officer was at the time cognizant of the charge of infringement against the corporation and that the officer acted beyond the scope of his office;\[76\] and under no principle of law or equity can an officer or stockholder be held liable as a contributory infringer by reason of his being guilty, after the infringement was completed and suit brought, of having aided in disposing of the property of the infringing company.\[77\]

(SS 10) B. Defenses.\[78\] See 10 C. L. 1139.--The infringement of a patent initially by one person gives no sanction to another to repeat or continue the same,\[78\] nor does the fact that one is an employee of an infringer relieve him from the consequences of his act as an infringer.\[60\] A corporation may be an infringer of a process patent though

68, 69. Goshen Rubber Works v. Single Tube Automobile & Bicycle Tire Co. \[C. C. A.\] 161 F 48.

76. To show that one was president of corporation insufferent to bind officer. Tire Wheeler Co., 164 F 869.

01. Use of Ediacon machines for entertainment and advertising same as Ediacon machines and others cannot be enjoined. Ediacon v. Mills-

68, 69. Goshen Rubber Works v. Single

75. Union Special Mach. Co. v. Maimin, Tube Automobile & Bicycle Tire Co. \[C. C. A.\] 161 F 748.

01. To show that one was president of corporation insufferent to bind officer.

01. Vheel Co., 164 F 869.

01. Ediacon machines for entertainment Co., 166 F 867.

ment and advertising same as Ediacon machines and others cannot be enjoined. Ediacon v. Mills-

68. Edisonla \[N. J. Eq. 70 A 191.

01. Doimler Mfg. Co. v. Conklin, 160 F 679.

01. Ediacon of United States who being in for-

01. Ediacon country purchased, for personal use

01. Weston Elec. Instrument Co. v. Em-

01. Ediacon Instrument Co., 166 F 867.

01. Search Note: See Patents, Cent. Dig.

85 406, 448-452; Dec. Dig. SS 264-283; 22 A.

86. E. Enc. (2ed.) 489.

01. Union Special Mach. Co. v. Maimin,

01. In suit for infringement against pat-

01. In suit for infringement against pat-

entee who had assigned patents, plea set-

it, not for commercial purposes or profit.

Had made no change in conduct of corpora-

73. Daimler Mfg. Co. v. Conklin, 160 F

01.

01. New Jersey Patent Co. v. Schaeffer,

159 F 171.

12 Cur. L--81 the commodity treated by the process be the individual property of the stockholders and though the profits derived from the infringement be distributed to them in the form of dividends.\[81\] That a defendant might have avoided infringement by varying his combination is no defense where he actually did infringe.\[82\] Where a design patented and sold is duly marked,\[83\] one who without a license applies the patented design to an article of manufacture for the purpose of sale is not relieved from infringement penalty by the fact that he had no actual knowledge of the patent.\[84\]

(SS 10) \_C. Damages, profits, and penalties.\[85\] See 10 C. L. 1139--In a joint suit by a patent owner and licensee for an infringement interfering with sales and the granting of licenses by the licensee, the license fee established, charged and received by the licensee, may be taken as a basis for estimating damages,\[86\] and if the license fee is uniform for a considerable period of time and accepted and paid by those who take licenses during that time, it is sufficient under the uniformity rules even if during that period for some peculiar reason or special circumstances a lesser fee is accepted from a few persons;\[87\] and where a uniform license fee is charged, an infringer cannot claim the benefit of a subsequent reduction\[88\] except as to infringements committed, after the reduction was actually made.\[88\] In order that a royalty may be accepted as a measure of damages against an infringer who is a stranger to the license establishing the same, it must have been paid or secured before the infringement in the suit,\[89\] and, where the infringement extended both before and after the date of the license contracts, the measure is applicable only to the infringements committed afterward.\[82\] In a proper case a judge may at his discretion grant triple damages under the federal statute,\[82\] and the exercise will not be interfered with unless abuse is clearly shown.\[83\] The statute permits an increase in the damages only and has no application to the profits recoverable.\[94\] The actual damages sustained must be proved,\[85\] and to recover the statutory amount of $250 from an infringer, complainant must show that the infringer had knowledge of the fact that the article was patented.\[89\] In patent nomenclature what an infringer makes is "profits," and what the owner of the patent loses 81. Corporation disable for treating nuts furnished and owned by stockholders. Fullepton Walnut Growers' Asa'n v. Anderson-Baron-Grover Mfg. Co. \[C. C. A.\] 166 F 443. 82. Victor Talking Mach. Co. v. Hoschke, 158 F 309. 83. Notice of design patent for hat band by placing words "Pat. Jan. 15th, 1907." on lining of hats on which bands were used, held sufficient under Rev. St. $ 4900 (U. S. Comp. St. 1901, p. 3388). Lichtenstein v. Phlips, 161 F 578. 84. Liability of $250 under Act Feb. 4, 1887, c. 105, $ 1, 24 Stat. 387 (U. S. Comp. St. 1901, p. 3398). Lichtenstein v. Phipps, 161 F 578. 85. Search Note: See Patents, Cent. Dig. $ 422-431, 566-587; Dec. Dig. $ 275, 318-120; 22 A. & E. Enc. L. (2ed.) 495. 86. Where patent owner granted exclusive license authoring licensee to grant licenses to others on terms deemed nt. Fox v. Knickerbocker Engraving Co., 158 F 422. 87. Held especially true In particular case where license fee charged was uniform at $15 per week except to newspapers, and only two of them. Fox v. Knickerbocker Engraving Co., 158 F 422. Evidence held to show uniform established license fees during time of infringement. Id.

88. Amount charged as license fee at a given time may be changed. Fox v. Knickerbocker Engraving Co., 158 F 422. 89, Fox v. Knickerbocker Engraving Co., 158 F 422. 89, 91, Diamond Stone-Sawing Mach. Co. v. Brown \[C. C. A.\] 166 F 306. 92. Where defendant willfully and knowingly kept on infringing after suit was brought, case held a proper one for awarding treble damages under Rev. St. $ 4921 (U. S. Comp. St. 1901, p. 3395). Fox v. Knickerbocker Engraving Co., 158 F 422. 93. Under Rev. St. $ 4921 (U. S. Comp. St. 1901, p. 3395), no abuse. Fox V. Knickerbocker Engraving Co., 158 F 442. 94. Yesbera v. Hardesty Mfg. Co. \[C. C. A.\] 166 F 120. Where plaint under evidence was entitled to no damages trebling provision of Rev. St. $ 4921 (U. S. Comp. St. 1901, p. 3395), not applicable. McSherry Mfg. Co. v. Dowagiac Mfg. Co. \[C. C. A.\] 160 F 948. 95. Fox v. Knickerbocker Engraving Co., 158 F 422. Evidence considered and held insufficient to show damages sustained. McSherry Mfg. Co. v. Dowagiac Mfg. Co.

by the infringement is "damages." " " The law does not permit duplicating the same elements of recovery upon both profits and damages, and where recovery has been allowed upon one ground, care should be exercised so as not to allow a recovery upon the other," hence damages in addition to the profits made are not recoverable in the absence of a showing that but for the infringement the patentee could have sold his product to the same customers at a price higher than that received for the infringing article; " and to entitle the owner of a patent to recover, as damages, the profits he would have made on the same number of machines, he must prove both that he could have supplied the required number of machines in addition to those supplied and that but for the infringer he would have made the sales that were made by the latter " and on the latter issue there must be evidence tending to some degree at least to persuade." The advantage which the defendant derives from the complainant's invention over what he could derive from using any other process or thing known to prior inventions constitutes the profits recoverable where the amount can be proximately ascertained," and where there are definite figures from which to compute the profits, the law requires no more than a reasonable degree of certainty." Where an infringement is deliberate and intentional, one cannot avoid liability for the entire profits made on the structure by so confusing the profits made on the patented and unpatented parts that the proportions cannot be definitely ascertained," and as to the profits made every reasonable presumption is in favor of a master's report based on oral testimony, and the report will not be set aside or modified unless error or mistake is clearly shown." Officers of a corporation who are made joint defendants with it for infringement are not liable for the profits realized by the corporation alone," and where they are adjudged to have infringed but not otherwise than as corporate officers, they should be charged only with nominal damages;" so also, where a patent is comparatively new when an infringement suit is brought, there is no basis for other than nominal damages." The measure of recovery is the profits actually made by the infringer by the sale of the patented device, irrespective of whether or not such sale would or would not have been made by the complainant; " and where one knowingly infringes the patent of another, makes profits in the business attributable to any construction of his own but mingles the same with the profits due to the owner of the infringed

$388), evidence not showing knowledge of patent by infringer. Lichtenstein v. Straus, 166 F 519.

97. Diamond Stone-Sawing Mach. Co. v. Anderson-Barn-Grover Mfg. Co. \[C. C. A.\] Brown \[C. C. A.\] 166 F 406.

01. Tescheva v. Hardesty Mfg. Co. \[C. C. A.\] 166 F 120.

01. Where infringed article sold at $2, Infringing article at $1.70, no presumption that the $2 article could have been sold to same customers at full price so as to entitle patentee to damages in excess of profits. Yesbera v. Hardesty Mfg. Co. \[C. C. A.\] 166 F 120.

01. McSherry Mfg. Co. v. Downgiale Mfg. Co. \[C. C. A.\] 160 F 948.

01. McSherry Mfg. Co. v. Downgiale Mfg. Co. \[C. C. A.\] 160 F 948.

01. McSherry Mfg. Co. v. Downgiale Mfg. Co. \[C. C. A.\] 160 F 948.

01. Fullerton WAlnut Growers' Ass'n v. Anderson-Barn-Grover Mfg. Co. \[C. C. A.\] 166 F 443.

01. McSherry Mfg. Co. v. Downgiale Mfg. Co. \[C. C. A.\] 166 F 443.

01. McSherry Mfg. Co. v. Downgiale Mfg. Co. \[C. C. A.\] 160 F 948.

01. Cur. Law. PATENTS $ 100.

01. Use of process, total crop being shown patent by infringer. Lichtenstein v. Straus, 166 F 519.

01. Diamond Stone-Sawing Mach. Co. v. Anderson-Barn-Grover Mfg. Co. \[C. C. A.\] Brown \[C. C. A.\] 166 F 443.

01. Tescheva v. Hardesty Mfg. Co. \[C. C. A.\] 166 F 120.

01. Where no other patented structure was shown to have contributed to profits of infringer. Dowgiale Mfg. Co. v. Superior Drill Co. \[C. C. A.\] 162 F 479.

01. Fullerton WAlnut Growers' Ass'n v. Anderson-Barn-Grover Mfg. Co. \[C. C. A.\] 166 F 448.

166 F 443.

patent, he is liable for the entire profits to the patentee.11 The rule that to authorize the recovery of profits, the owner must separate or apportion the profits made by defendant between the patented and unpatented features does not apply to a combination patent,12 hence where the patent is for a combination of elements, some of which are old, to accomplish an improved result, each element being essential to the invention, the liability of the infringer who has appropriated the combination as a whole extends to the profits made on the entire machine.13 Where profits are made by the use of an article patented as an entirety, the infringer is responsible to the patentee for the whole of such profits unless he can show, burden being on him, that a portion of such profits is the result of some other thing used by him,14 but where the patent is for an improvement and not for an entire new article or product the burden is on the patentee to show what portion of the infringer's profits is due to the particular patented feature,15 otherwise "damages"16 are not recoverable except for infringement after the suit is commenced.17 If a patent covers a particular feature of an article sold by an infringer, the burden is on the infringer in a suit against him to recover the profits received from such sale, to show that they were not attributable solely to the patented feature thereof,18 and it is only in case the infringer sustains the first burden that the second burden is on the patentee to apportion the profits, between such feature and the rest of the article.19 In an accounting for profits made by an infringer of a patent for a process of treating a well known marketable commodity, the measure of recovery is the difference between the cost of the product and the price at which it was sold taking the well known commodity at its market value.20

(SS 10) \_D. Remedies and procedure.21_See 10 C. L. 1140_The infringement of a patent is a tort.22 A suit therefore is none the less an infringement suit though it does not involve the validity of a patent,23 and where the identical claims of a reissue have been held invalid in a prior suit between the same parties they cannot be reinvested with validity for any purpose by any change in the form of the suit even though put in issue by the pleadings.24 A suit for infringement may be barred by laches.25 An original bill in the nature of a supplemental bill by a party who has injured plain-

11. Where added improvements did not materially add to sale value. Brennan & Co. v. Dowagiae Mfg. Co. \[C. C. A.\] 162 F 472.

01. Yesbera v. Hardesty Mfg. Co. \[C. C. A.\] 166 F 120.

01. Hoyt, No. 446,230, grain drill held for a combination, infringer liable for profits on entire machine. Brennan & Co. v. Dowagiac Mfg. Co. \[C. C. A.\] 162 F 472.

01. Murray, No. 442,531, store service lad-der held for an entire new article. Orr & Lockett Hardware Co. v. Murray \[C. C. A.\] 163 F 54.

01. Murray, No. 442,531, store service lad-der held for entire new article, shifting burden of proof. Orr & Lockett Hardware Co. v. Murray \[C. C. A.\] 163 F 54.

01. "Damages" in Rev. St. # 4900 (U. S. Comp. St. 1901, p. 3388), means all sums to which plaintiff would be entitled to recover including profits. Westinghouse Elec. & Mfg. Co. v. Condit Elec. Mfg. Co., 159 F 154.

01. Westinghouse Elec. & Mfg Co. v. Condit Elec. Mfg. Co., 159 F 154.

01. 19. McSherry Mfg. Co. v. Dowagiae Mfg. Co. \[C. C. A.\] 160 F 948.

01. Error to take raw material at cost of its manufacture where made by defendant. Hemolin Co. v. Harvey Dyewood & Extract Mfg. Co. \[C. C. A.\] 166 F 434. Immaterial as to measure of damages that defendant made paste or nitrate from which infringing article was manufactured. Id.

01. Search Note: See, Patents, Cent. Dig. # 312-314, 339-349; 403-625; Dec. Dig. # 212, 219, 262-327; 23 A. & E. Enc. L (2ed.) 472; 16 A. & E. Enc. P. & F. 59.

01. Avery v. McClure \[IMis.\] 47 S 901. There can be no recovery upon theory that damages are awarded for breach of an implied contract Id.

01. New York Phonograph Co. v. Davegan, 127 App. Div. 22, 111 NYS 365.

01. Universal Adding Mach. Co. v. Compton Co., 161 F 365.

01. Sult barred, defendant having commenced making, advertising and selling alleged infringing device more than 10 years before suit was commenced and patent issued and continued business. Safety Car Heating & Lighting Co. v. Consolidated Car Heating Co. \[C. C. A.\] 160 F 476.

12 Cur. Law. PATENTS SS 10D.

tiff's title by transfer pendente lite is not the institution of a new suit; "" hence an assignee may file such bill and test the defendant's liability." Where the validity of a patent has once been established by the circuit court of appeals, that court need not examine the question de novo in a second case on the same evidence or on additional and cumulative evidence," and where validity has thus been established and an interlocutory decree entered for an injunction and an accounting, the complainant by supplemental bill or petition may in the same case present the question of infringement by another device, and if the issue of infringement is determined in his favor, have it included in the decree and accounting." Participation in the defense of a test suit makes the participating parties privies to the suit and testimony of their witnesses therein since deceased is admissible against them," and one having taken up the vendee's defense in an infringement suit and conducted the case as his own is concluded by the decree rendered in respect to all questions of law or fact which were necessarily litigated and determine in such suit," but such decree is not conclusive on the question of infringement by other devices than the ones involved when the decree was rendered," nor is a decision of the court of appeals for the District of Columbia in an interference proceeding of controlling force in a subsequent suit for infringement of the successful patent in which its validity is attacked, the issues in each case not being the same." Where a patentee who has assigned his patent establishes a corporation which is charged with infringement the corporation and the stockholders are estopped to deny the validity of the patent " or to invoke the prior art to limit its claim as made and allowed," and extraneous evidence is admissible only to make clear what the applicant meant to claim and the government to allow." One selling machines, guaranteeing that they do not infringe other patents, and who subsequently obtains a patent thereon, cannot maintain a suit in equity for infringement on account of use of a machine similarly constructed by defendant," at least not until he has given actual notice of his patent " and proved violation of it after the notice." That one of the assignors of a patent subsequently became associated with others and with them is jointly charged with infringement does not estop the others from denying the validity of the patent in the absence of a clear showing of identity with him." An infringer is not an outlaw," and where a patent is recently issued and generally infringed, his act should be viewed in the same light as if the patent had been adjudicated valid and a license fee established," and where the court is convinced that the patent is invalid or that the alleged infringer is not infringing, the latter may use the machine subject to the risk of an injunction and an accounting." Where a court has acquired jurisdiction by consent of a defendant.

26, 27. George W. Jackson v. Priesttedt Interlocking Channel Bar Co., 159 F 496.

28. Consolidated Rubber Time Co. v. Diamond Rublever Time Co. v. Diamond Rublever Time Co., 158 F 824. Assignor not 29. Houghton v. Whitin Mach. Works, 161 F 81.

01. Rumford Chemical Works v. Hygelen Chemical Co. \[C. C. A.\] 159 F 436.

01. Decision on validity of claims involved and infringement by device in suit binding on party not of record, having complete charge and control of defense. D'Arcy v. Staples & Hanford Co. \[C. C. A.\] 161 F 733.

01. D'Arcy v. Staples & Hanford Co. \[C. C. A.\] 161 F 738.

01. In former case issue merely that of priority as between two inventors, but in later case broader and involving whether patentee was original inventor as against ant corporation, it may subject the corporation's patent right to the payment of judgment debts \[44\] and order the execution of an assignment.\[45\] Whether a defendant shall be required to defend in a court other than the circuit court for the district of which he is an inhabitant is usually a question of privilege which he may insist upon or waive at pleasure.\[46\] The question of infringement in the district where the suit is brought when against a foreign corporation or resident of another state, though it goes to the jurisdiction, may be raised on a motion to dismiss made at the close of complainant's proofs.\[41\] In Massachusetts no regular fee is fixed as a daily allowance to a master in an accounting, but the normal rate, subject to increase or reduction to suit each particular case, will be allowed.\[48\]

To recover damages for infringements prior to the filing of a bill, the complainant must, where the issue is raised, affirmatively prove that the patented machine was marked as required by statute or that notice of infringement was given to the defendant,\[49\] for without notice, either direct or constructive, an infringement is presumptively innocent.\[60\] Where notice is once attached, due notice is given,\[51\] and the patentee is not required to follow the patented article and see to it that the words "or notice" are kept intact,\[52\] and although no proof is made that patented articles were marked or notice otherwise given, the bill itself is notice and complainants are entitled to an accounting for infringement after the bill was filed.\[53\] Notice being required only as a prerequisite to a recovery of damages,\[54\] it is not necessary where the object of action is merely to secure an injunction to restrain future infringement.\[55\] Under statute where a court in infringement proceedings finds that one claim sued upon is invalid though others may be valid, an infringed complainant is not entitled to a decree except on filing a disclaimer of the valid claim,\[56\] and it is proper to notice the disclaimer in the decree and require its filing before the decree is entered.\[57\] The issues of infringement are limited to infringements within the district where the suit is brought.\[58\] In an infringement suit against a corporation and its officers, objections as to the sufficiency of the proof to hold the officers personally liable should be raised at the hearing,\[59\] and in such case it is competent to reopen an interlocutory decree finding infringment by the corporation only at any time before the entry of a final decree and permit a retrial of the question of the liability of the officer on newly-discovered evidence.\[60\] A patent may be held-infringed on a 44, 45. Underfeed Stoker Co. v. American ship Violulas Co., 165 F 65, 46. American Mattress & Cushion Co. v. Bringfield Mattress Co. \[C. C. A.\] 165 F 191, 47. Underwood Typewriter Co. v. Fox TYPewriter Co., 158 F 476.

48, 835 denied and $25 allowed, latter sum being taken as normal rate. Houghton v. Wighta Mach. Works, 163 F 511, 49. Rev. St. $ 4900 (U. S. Comp. St. 1901, p. 3388). American Carmel Co. v. Thomas Mills & Bro. \[C. C. A.\] 162 F 147; Lichtenstein v. Phipps, 161 F 578, Notice must be alleged and proved. Westinghouse Elec. Mfg. Co. v. Condit Electrical Mfg. Co., 169 F 154. Under Rev. St. $ 4900 (U. S. Comp. St. 1901, St. 3388), allocation that defendant was informed or had knowledge of infringement held Insufficient. Id. Immaterial that complainants neither licensed nor sold their machines but reserved benestness. American Carmel Co. v. Mills \[C. C. A.\] 162 F 147.

50, American Carmel Co. v. Mills \[C. C. A.\] 162 F 147.

51, Notice of design patent for hat band motion for a preliminary injunction where the validity of the patent has been previously adjudged,\[61\] but so serious a claim as that the Selden patent is a pioneer and that all makers of gasoline automobiles of the usual types infringe the patent will not be upheld on a motion to punish for contempt for the violation of pro confesso injunction against infringement, unless the complainants either have established the validity of the patent in a contested litigation or have been ready to do so without delay when appointment has been offered.\[62\]

_Jurisdiction.\[80\]_ \*\*10 C. L. 1141.\*\*The courts of the United States have exclusive jurisdiction of all cases at law or equity arising under the patent laws of the United States,\[68\] and the issues of which depend upon the construction or administration of those statutes,\[68\] irrespective of the citizenship of the parties to the action,\[68\] but in the absence of diversity of citizenship, to come within the federal jurisdiction, the bill must disclose some right, title, or interest under the patent laws, or that some right or privilege will be defeated by one construction or sustained by the opposite construction of those laws.\[68\] If a case arises under the patent laws, the fact that it may also involve the construction of a contract does not give the state courts jurisdiction,\[68\] though if it arises under a contract and is to enforce a covenant, the fact that it may involve a question under the patent law does not give the federal courts exclusive jurisdiction,\[68\] and whenever the rights asserted depend upon contract obligation which courts of general equity jurisdiction may enforce, or for breach of which common-law courts will grant redress, the mere fact that a patent is incidentally or collaterally involved does not oust the state courts of jurisdiction.\[69\] A plea that an invention proved useless and impractical and that no article embodying the invention was ever used or sold does not assail the validity of the patent so as to divest the state court of jurisdiction.\[70\] While state courts have jurisdiction of a suit in equity to determine the ownership of letters patent and to award an accounting \[71\] and to determine what a certain contract is and in whom a patent is thereby vested,\[72\] and to restrain the fraudulent use of a secret process when not covered by any patent,\[72\] they

61. Bradley v. Metal Stamping Co., 166 F of contract, no federal question or diversity 237.

01. Motion denied, patent having been in ing no allegation that patent was invalid existence for 13 years, never litigated on or that decree was obtained by fraud, decetifs, although attacked in numerous suits ceti or duresse. Lefkowitz v. Foster Hose settled before brought to trial. Electric Vehicle Co. v. D. E. Dietrich Import Co., 159 F 492.

01. Wise v. Tube Bending Mach. Co., 194 N. Y. 272, 87 NE 430. Plaintiff's right if 13. Y. 272, 87 NE 430. Suit on an assign-any held to arise under patent laws, hence state court without jurisdiction. New York ment, etc., resulting in a decree directing Phonograph Co. v. Davega, 127 App. Div. 223, 111 NYS 863.

01. Supreme court without jurisdiction of suit to enjoin infringement. Rev. St. U. S. $ 629, subd. 9, and $ 711, subd. 5 (U. S. Comp. St. 1901, pp. 504, 578). Wise v. Tube Bending Mach. Co., 194 N. Y. 272, 87 NE 430.

01. Rev. St. $ 629, 711 (U. S. Comp. St. 1901, pp. 503, 577). St. Louis St. Flushing Mach. Co., V. Santary St. Flushing Mach. Co., 1901, 603, 677). St. Flushing Mach. Co. v. Santary St. Flushing Mach. Co., 1901, 603, 677).

have no right to enjoin one from using a patent or in any way pass upon any question arising as to its infringement.\[44\] Having taken cognizance of a case upon any ground on which jurisdiction is given, a court will proceed to dispose of the whole controversy between the parties, though there be certain phases of it which taken by themselves are outside the court's original jurisdiction.\[75\] An equity court has jurisdiction of a suit for infringement brought by the equitable owner against the legal holder of a patent,\[76\] but an award for profits and damages is usually incidental to some main equity which gives the patentee a standing in court, hence equity will not entertain a bill for a naked account of profits and damages against an infringement \[77\] after the expiration of a patent,\[78\] nor where there are no special circumstances calling for the exercise of equitable jurisdiction, and the time which the patent has to run when the bill is filed is so brief that the prayer for an injunction is a mere form to support the jurisdiction,\[78\] but where plaintiff's right to a preliminary injunction is clearly manifest and there is a clear and unequivocal charge of infringement, the court has jurisdiction to award an accounting for damages and profits, although no motion for a preliminary injunction was in fact made and the patent expired before defendant was required to plead.\[80\]

\_Parties.\_See 8 C. L. 1310.--The owner of the whole or any undivided part of a monopoly is a necessary party to a suit in equity for the infringement of the patent,\[81\] but the patentee is neither a necessary nor a proper party to an action by the licensee against the owner who is not the patentee.\[82\] A mere licensee as distinguished from an assignee \[83\] cannot maintain a suit for infringement, of the patent in his own name except where the infringer is the patentee himself,\[84\] nor is he a necessary party to an infringement,\[85\] but where an objection is seasonally made by the defendant, he is a proper party if his interests are to be affected by the decree and may be made a party at the discretion of the court.\[86\] Joint owners of one patent, one of whom is also sole owner of another patent, cannot join in a suit for the infringement of both patents where the bill does not allege that the defendants make, vend or use any single device which infringes,\[87\] and in such case a demurrer to the bill will be sustained

**74. State court without jurisdiction to re-**:**:**: _Stone-Sawing Mach. Co. of New York v. strain breach by assignor of stipulation in_**:**: _Susus, 159 F 497. contract by using devices covered by patents, infringement being involved. Jones_**:**: \_Sus, 159 F 497.
**:**:**: \_Gold Store Door Co. V. Jones\[M.J. 17 0 A 88. State courts have no jurisdiction of suit,\] _If_ 13 days before expiration of patent, to enjoin unauthorized use of a patented process. Eastern Extracting Co. v. Greater New York v. Seus, 159 F 497. New York Extracting Co., 110 NTS 738. Where decree is unnecessary to terminate nearly three months left to run. Carnegie a license, infringement after notice of can-**:\*\*: _Steel Co. v. Colorado Fuel & Iron Co. \[C. c. A.1\] 165 F 195._
**:**: \_Sus, 159 F 497.

subject to the right to amend.\[88\] Where a bill discloses that complainant had contracted to convey an interest in a patent by way of assignment or license, the court will regard such contract as having been carried out for the purpose of determining whether the assignee or licensee is a necessary complainant.\[89\]

\_Questions of law and fact,\_See S C. L. 12139

_Injunctions.\[88\]_ 20 C. L. 1142--An injunction lies to restrain a licensee from selling a patented device at a lower price than that fixed by the patentee,\[90\] and where a judicial decree is necessary to cancel a license, equity may enjoin the manufacture or sale pendente lite, or until the license has been annulled by a court,\[91\] but if a state court has no jurisdiction to grant a permanent injunction to restrain an infringement in a suit to cancel a license, a temporary injunction pendente lite will issue only on a clear showing that plaintiff is entitled to such relief.\[92\] The nonuser of a patent in order to save the expense of changing or altering the old machines does not justify a court of equity in withholding injunctive relief against infringement,\[93\] nor, to maintain an injunction, is it a prerequisite that the complainant prove that the device invented had gone into commercial use.\[94\] Where by a final decree one is entitled to make and sell an alleged infringed article,\[95\] an injunction in personam lies to prevent the patentee from interfering with such business by bringing suits against customers based on the patent, either in this or in a foreign country,\[96\] and courts will restrain the illicit use of letters patent to maliciously injure the trade of competitors, whether the methods chosen are multiplicity of suits brought against users to inspire terror and divert trade, or circumstances maliciously and persistently distributed among the trade threatening suit against all users of the alleged infringement for the purpose of terrifying the customers of the alleged infringer.\[97\] Injunction lies to restrain infringement of a patent where it is threatened, although no act of infringement has been completed when bill was filed,\[98\] and on a proper showing an injunction may issue in cases of interference pending a decision on the merit.\[99\] To entitle one to a preliminary injunction there must in every instance be an equitable necessity,\[1\] and the injunction will not issue unless the right alleged to be invaded or threatened is clearly shown,\[9\] if there is a reasonable doubt as to the validity of the patent,\[9\] or, except in the case

leged that devices of both were capable of joined and an accounting for damages had. conjoint use, were so used by complainants, and that defendants jointly infringed both patents. Kaiser v. Bortel, 162 F 902.

SSL, Kaiser v. Bortel, 162 F 902.

SSL, Bowers v. Atlantic, Gulf & Pac. Co., 162 F 902.

SSL, Bowers v. Atlantic, Gulf & Pac. Co., 162 F 905.

SSL, Bowers v. Athantic, Gulf & Pac. Co., 162 F 905.

of fraud,\* unless the validity of the patent has not been adjudged,\* but the injunction will be granted where the patent has once been adjudged valid,\* and where validity and title has been adjudge by the United States supreme court and there is a clear and unequivocal change of infringement it will issue on complainant's motion quite as a matter of course.7 The action of the patent office in awarding priority on interference does not ordinarily raise the presumption of validity required to warrant the granting of a preliminary injunction to restrain an infringement against the unsuccessful applicant,\* and a preliminary injunction will not be granted except where the patent is supported by public acquiescence or prior adjudication or some other peculiar condition, unless the complainant's right is free from doubt,\* and where a patent is a very recent one and its validity has never been adjudicated and sufficient time has not elapsed to present proof of general acquiescence and the validity and infringement are vigorously disputed, the injunction will not issue,10 if the alleged infringer stipulates to file a sworn statement of sales of the alleged infringing articles,11 nor will it issue to restrain an infringement where the patent alleged to have been infringed has but few weeks to run, and where on balancing the inconveniences it is plain that very great injustice would be done to the respondent if the application were granted.12 On a bill filed pending an appeal from a decree enjoining the enforcement of the decree on the ground of fraud, the court is without power to set aside such decree upon any other ground.18 In an action to enjoin an alleged infringement by a foreign corporation, the bill must allege the acts of infringement in the district where it is filed and that the defendant had a regular and established place of business there when the suit-was brought,14 but it need not show that the corporation had such business in that particular district when the alleged infringements were committed.18

Barnes, No. 684,776, elothes drier, doubt af- strain infringement of Sayan, No. 594,036, fecting construction and validity of patent as against defense of anticipation. Queen being shown. American Laundry Mach. Mfg. Co., 165 F 453. Co. v. Adams Laundry Mach. Co., 161 F 556.

For 7. In absence of new evidence of control-Infringement of Fisher, No. 793,779, for portable savings bank, not sufficiently shown to warrant grant of preliminary injunction.

National Recording Safe Co. v. International

Co., 164 F 195.

Safe Co., 158 F 824. A preliminary injunction will not be granted without a showing either that the patent charged to have been infringed had been admitted valid by default or reported by public acquiescence fendant or held valid by a court of competent jurisdiction, or its validity generally Jaunciased in by the public. St. Louis St. Flushing Mach. Co. v. Saint Saint's

10. Both questions to be determined at final hearing. Hillreth v. Norton \[C. C. A.\]

01. Upon a sufficient showing of fraud in obtaining from patentence dismembered elements of patented machine, a preliminary injunction restraining use of a machine composed of resassembled parts will be granted, regardless of question of validity of patent.

Tindel-Morris Co. v. Chester Forging & Englineering Co., 163 F 304. Where proof that defendants are guilty of the alleged fraud, and the fraud appears to be actual, palpable and inexensable, absence of adjudication of patent is not a sufficient reason for denying injunction. Chester Forging & Engineering Co. v. Tindel-Morris Co. \[C. C. A.\] 165 F 899.

"Formal defects" cured by amendments, in view of fraud, held insufficient to defeat application for preliminary injunction. Id.

5. Motion denied as to Bradley, No. 634.-549, but granted as to No. 609,928, validity

Co., 158 F 167. Where, if an injunction of artery kind should issue, defendant would suffer loss out of proportion to value of transaction, court may at discretion per-C0. v. Tindel-Morris Co. \[C. C. A.\] 165 F 899.

"Formal defects" cured by amendments, in view of fraud, held insufficient to defeat application for preliminary injunction. Id.

161 F 728.

5. Motion denied as to Bradley, No. 634.-549, but granted as to No. 609,928, validity

Co. 165 C. A.\] 166 F 948.

of latter having previously been adjudged.

14. Underwood Typewritter Co. v. Fox Bradley v. Metal Stamping Co., 166 F 37.

01. Preliminary injunction granted to re-

01. Acts March 3, 1897, c. 395, 29 Stat.

18 Cur. Law. PATENTS SS 10D. 1291

One enjoined generally from infringing a patent must not only cease the infringement then practiced but also avoid other infringements or he will be guilty of contempt.16

\_Pleading.\_See 10 C. L. 114a--Relief can be administered only in accordance with the facts set out in the pleadings,17 and a decree that an infringing machine be delivered up to be destroyed, although not an unwarranted one if the circumstances call for it, is rarely granted in an infringement suit.18 By the weight of authority a bill for infringement must allege the facts which are by statute made essential to the validity of the patent sued on,19 but a bill though somewhat vague and indefinite that makes prefert of the patent is sufficient on demurrer though it gives only a general description of the device,20 and failure to use the usual words "and elsewhere" in a bill will not prevent the consideration of evidence of infringement outside of a particular district where the defendant denies infringement in the district alleged "or elsewhere," and the pleadings are treated as presenting such issue.21 Where profits claimed are based upon the existence of established royalties involving matters of accounting, the bill should be framed accordingly and contain the essential averments authorizing an inquiry for the ascertainment of profits.22 The bill must not be multifarious,23 but where complainants own several patents and defendant infringes all of them by the same act, the bill may properly charge infringement of all the patents by a single infringing machine.24 Mere conclusions as to interference are not admitted by a demurrer.25 The defendant must give notice in his answer of any defense by way of

695 (U. S. Comp. St. 1901, p. 589). Underwood Typewriter Co., v. Fox Typewriter Co., 158 F 476.

16 One pursuing practice in modified form held guilty of contempt. Blair v. Jeannette-McKee Glass Works, 161 F 385.

17 Regardless of the prayer. No facts alleged as basis for ascertainment of profits. Portland Goid Min. Co. v. Hermann \[C. C. A.\] 160 F 91. Cause of action in fraud to recover damages for infringement by proving a patent in defendant's name for invention alleged to have been made by plaintiff held alleged, defendant by denurrer having admitted that changes in invention were immaterial. Le Brocq v. Childs, 168 F 412. Bill held not to state cause of action, though jurisdiction be conceded, failing to allege that defendant agreed as part of contract not to act under reservation in contract. Lefkovits v. Foster Hose Supporter Co., 161 F 367.

18 American Caramel Co. v. Mills \[C. C. A.\] 162 F 147.

19 Bill denurrable, not alleging that no application for a foreign patent for invention was filed more than seven months before filling application in this country. Rev. St. 4887, amended by Act March 3, 1897, c. 391, SS 3, 29 Stat. 692 (U. S. Comp. St. 1901, p. 3382). Victor Talking Mach. Co. v. Leeds & Catlin Co., 165 F 931.

20. Elliott v. De Candy Mfg. Co., 163 F 40.

01. O'Rourke Engineering Const. Co. v. McMullen \[C. C. A.\] 160 F 933.

01. Petition in action at law for infringement not insufficient as counting on recovery of profits instead of damages. Portland Gold Min. Co. v. Hermann \[C. C. A.\] 160 F 91.

01. Bill by equitable owner of a patent against holder of legal title not multifarious where it states two causes of action, one to compel transfer of the patent and another for infringement, equity proceeding as if transfer had actually taken place. Prest-to-Lite Co. v. Avery Portable Lighting Co., 164 F 60. Bill which proceeds at the same time for infringement of a patent and for unfair competition with respect to the article patented not open to charge of multitravious where causes are based on same act. T. B. Woods Sons Co. v. Valley Iron Works, 166 F 770. Bill for infringement and for unfair competition in trade held not multifarious but to allege that defendants were selling devices which infringed patent and were copying complainants's circulars about patented device for unfair purpose. Weed v. Gay, 160 F 695.

Plea stating but one ground, although setting out facts or details of evidence to support the ground, held not multifarious. Underwood Typewriter Co. v. Manning, 165 F 451. Compilation to enjoin interference with contract rights in patents held multifarious, joining matters apparently distinct and independent as against some defendants, and as against all defendants containing matters not legally connected. Vise v. Tube Bending Mach. Co., 194 N. Y. 272, 87 NE 430.

24. American Tobacco Co. v. Ascot Tobacco Works, 165 F 207. Joiner in one suit for infringement of two patents not improper where bill alleges that inventions are capable of conjoint use and are so used by defendant. Southern Flow Co. v. Atlanta-Agricultural Works, 165 F 214.

25, Allegations held mere conclusions and not admitted. Wise v. Tube Bending Mach. Co., 194 N. Y. 272, 87 NE 430.

12992 PATENTS SS 10D. 12 Cur. Law prior patents, publications or public use, if he desires to prove any of such defenses to show want of novelty or invention in the patent sued on,\[28\] otherwise such defenses are receivable in evidence only to show the state of the art and to aid in the proper construction of the patent.\[27\] Pleas should not be allowed unless they reduce the controversy to a single point or issue,\[28\] except in very special cases,\[29\] and the defense of noninfringement cannot properly be presented by a plea where it involves a consideration of evidence extrinsic of the patent itself,\[30\] but the fact that a plea is bad in this respect is not a defect of form, however, to be taken advantage of by motion to strike off but one of substance to be disposed of by setting the plea down for argument.\[31\] Ordinarily the court should not attempt to dispose of a patent on demurrer,\[32\] yet, where in the light of general knowledge a patent appears void on its face,\[33\] that fact may be disposed of on such pleading,\[34\] and it becomes necessary for the complaint to plead and prove its validity,\[35\] but a decision upon such a demurrer upholding a patent is not conclusive on any defense which depends on extraneous proof.\[36\]

\_Evidence.\_See 10 C. L. 1144.-A patent is presumptive evidence of invention,\[37\] novelty \[38\] and of its own validity,\[39\] and when valid on its face the burden is on the one challenging its validity to prove the contrary.\[40\] Presumptively, one having secured a patent is not an infringer,\[41\] but the presumption does not obtain where the alleged infringing acts were done for one who is an infringer.\[41\] An infringement must be clearly shown,\[43\] and the burden of proving it rests upon the complainants \[44\] even though the alleged infringer is a nonresident;\[45\] and when an attack is sought to,be supported by oral testimony to be successful the proof must be clear, satisfactory and beyond a reasonable doubt.\[46\] Where an infringement is admitted in distinct and

26, 27. Morton v. Llewellyn \[C. C. A.\] 164 \[37. American Laundry Mach. Mtg. Co. v. K. G 693. 28. Plea overuled, same tending to widen\] Southem Plow Co. v. Atlanta-Agricultural and scutter the litigation and cause unnecessary delays and expense. American Tobacco Co. v. Ascot Tobacco Works, 165 F 214. 38. American Steel & Vlire Co. of New Jersey v. Denning Wire & Fence Co., 160 F 207. Questions of infringement should not be determined or tried on a plea. Unfwood Typewriter Co. v. Fox Typewriter Co., 168 F 476. 50. 168 F 604; Clark v. George Lawrence Co., 169 F 512; American Steel & Vlire Co., 165 F 476. 30. Should be by answer. American Sulphite Pulp Co. v. Bayless Pulp & Paper Co., 163 F 43. 40. Fox, No. 675,272, photographic nega-tive valid on face. Fox v. Kniekerbocker Pulp & Paper Co., 168 F 843. 28. Westrum Co. v. Lincoln Park Comm's, 164 F 589. 38. Van Westrum, No. 752,487, method of sprinkling streets, void on face, no invention or novelty being shown, nor method known or disclosed of combining "solution" of oil and water. Westrumite Co. v. Lincoln Park Comm's, 164 F 889. Force, No. 705. 28. printing die being void on face, for lack of invention, diminishing bill on demurrer proper. Kuhn v. Lock-Stub Check Co. I.C. C. A.\] 165 F 446. 34. Electric Vehicle Co. v. De Dietrich Import Co., 159 F 493.; Kuhn v. Lock-Stub Check Co. (C. C. A.) 165 F 445. 35. Westrumite Co. v. Lincoln Park Comm's, 164 F 839. 36. Prior decision held not conclusively to determine that patent was pioneer or valid. Electric Vehicle Co. v. De Dietrich Import Co., 159 F 492. 40. 159 F 493. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 59. 51. 53. 54. 56. 58. 59. 51. 54. 59. 52. 54. 57. 59. 52. 53. 55. 56. 58. 59. 51. 54. 59. 53. 57. 59. 54. 58. 59. 50. 51. 54. 59. 52. 55. 57. 59. 53. 58. 59. 51. 59. 52. 53. 59. 54. 59. 55. 56. 57. 58. 59. 59. 51. 59. 52. 59. 53. 59. 54. 59. 55. 5 positive terms by the pleadings, no further proof on that issue is required,"7 and where infringement has been made out as to the style of the infringing device used when the bill was filed, it is immaterial on the hearing whether a substituted style infringes or not;\*\* and to maintain the action complainant need not show commercial use of the patented device if utility or patentability is otherwise established.\*\* The question whether two patents are for the same invention is one of law to be disposed of by a comparison of the two patents,\*\*90 but on demurrer to a bill for infringement of a patent for lack of novelty and invention the court cannot consider prior patents to ascertain the state of art;\*\*91 if, however, the bill is answered and prior patents are set up as a part of the defense, the practice will be different.\*\*92 Before a court will so declare on demurrer, it must clearly appear that the patented device lacks the elements of novelty and invention,\*\*93 but, where an infringer withholds evidence in his control which would most certainly prove the extent of the infringement, every doubt is resolved against him and the court may act on less definite and certain evidence.\*\*94 The province of an expert witness is to instruct,\*\*95 and the practice of introducing a large number of expert witnesses is not to be commended.**95 Identity of result from the operation of two different machines, though some evidence of infringement, does not establish the same**97 \*\*nor is infringement established by the uncontradicted testimony that defendant made and sold an article in all essentials like the one alleged to infringe prior to the filing of an application for a patent.\*\*95,\*\*96 \*\*When a question involving the infringement of a design patent is presented, the court is entitled to have put before it exhibits to which the testimony of, experts may be referred, and by means of which it may make its own comparison and deductions,\*\*96 but the expression of the means of an alleged invention in a drawing or sketch may be accepted as satisfactory proof of the needful "representation in physical form" when fairly authenticated, definite and reasonable under all the circumstances.\*\*91 On a rehearing on the question of the liability of an officer of a corporation on newly-discovered evidence, testimony taken on an accounting by the corporation cannot be considered against the officer except in so far as his own testimony may be treated as an admission out of court, the officer not having been a party 47. Fox v. Knickerbocker Engraving Co. of witnesses to advocate the cause of party who calls him, pass upon the questions of law and facts presented, and to decide questions in issue. Id. C. A.J 161 F 728. 56. Usually testimony of one expert on each side is sufficient. American Stove Co. Thomson-Houston Elice. Co. v. Western Elec. v. Cleveland Foundry Co. \[C. C. A.J 158 F 813. 51. Defendant not permitted to introduce patents antedating patents in suit, having denurred to bill. Southern Flow Co. v. Atlanta Agricultural Works, 165 F 214. 52. In such case complainant can submit evidence and go fully into question of patentability and reasons therefor. Southern Blow Co. v. Atlanta Agricultural Works, 165 F 214. 53. Southern Flow Co. v. Atlanta-Agricultural Works, 165 F 214. 54. Where infringer refuses to produce books, testimony of his employes, who can approximately state number of infringing articles, properly made basis for decree. Yesbera v. Hardesty Mfg. Co. \[C. C. A.J 165 F 120. 55. American Stove Co. v. Cleveland Foundry Co. \[C. C. A.J 158 F 978. Not province to such proceeding and his liability not being then in issue. \[63\] The sufficiency of the evidence to establish contributory infringements is treated in the notes. \[63\]

\_Prior decisions.\_See 3 C. L. 1323.--The doctrine of stare decisis will not be applied where the cases present different questions although the same patent may have been involved in the former case. \[64\] In a protracted litigation the claims of comity should be regarded, \[65\] but, while a former decision in favor of a patent in interference proceedings in the patent office as between the parties is very persuasive, yet, where the public is interested, the question of priority therein established is not res judicata in a suit for infringement of the patent \[66\] nor does it estop one from contesting the validity of the patent upon every question except on the ground of his own priority of invention. \[67\] As to the general topic of patentable invention, it is customary for some circuit courts to follow decisions of the circuit courts of appeals of other circuits, \[68\] but the rule is not a universal one and, as to the validity or construction of a patent, the judge is required to exercise his best judgment and give to such decisions only the weight that their reasoning is entitled to, \[69\] though in all cases he must follow the supreme court of the United States. \[70\] An infringement test case is controlling upon all questions decided, in a subsequent suit in the same court, \[71\] and, if there is doubt as to what those questions were, the court may take judicial notice of the records for the purpose of information; \[72\] but an interlocutory decree adjudging infringement having been appealed from is persuasive only, and not conclusive between the parties in another suit in a different court. \[73\] The obligation to follow the decision of other courts in patent cases increases in proportion to the number of courts which have passed upon the question, and the concurrence of opinion may have been so general as to become a controlling authority; \[74\] so, too, if a prior adjudication has followed a final hearing upon the pleadings and proofs, especially after protracted litigation, greater weight should be given to it than if it were made upon a motion for a preliminary injunction. \[75\]

\_Variance.\_See 4 C. L. 1323

\_Stay.\_See 5 C. L. 1325

\_Saving questions for review.\_See 8 C. L. 1324

\_Accounting.\_See 10 C. L. 1344

\_Costs.\_See 5 C. L. 1324.--Under statute where a court in infringement proceedings finds that one claim sued upon is invalid though others may be valid and infringed, the complainant is not entitled to recover costs. \[60\]

\*\*62.\*\*Weston Electrical Instrument Co. v. courts on printple of comity decisions following Electrical Instrument Co., 166 F

\*\*63.\*\*See, also, 10 C. L. $ 10, "Contributory

\*\*64.\*\*Where public's rights had never been Infringement." In suit against the Hygienic Chemical Company of New York it appear--Controlling Co., v. National Steam Speciality

\*\*65.\*\*In suit for infringement, where questions involved had been subject to protracted litigation between same parties or representatives of same interests, decided adversely to complainants by two federal 12 Cur. Law. PAUPERS. 1295

\_Judgment and decrees.\_See 10 C. L. 1144.--An injunction decree may properly provide that it shall not apply to a sale by defendant of articles made by defendant in another suit brought by complainant in another circuit in which the patent was adjudged void," but it should not anticipate the future and provide for a contingency which may not arise." Where plaintiff is entitled to an assignment of certain letters patent, the decree should show the amount to be paid therefor and order an assignment of each upon the payment of the price found." A judgment for damages for infringement is not a "debt" within a statute making stockholders liable for corporate debts." A final decree and an injunction issued pursuant to it should be effectively enforced," and a decree pro confscso should be enforced just as effectively as any other decree." The decision of the court of appeals of the District of Columbia on an appeal from the commissioner of patents which affirms the latter's decision and directs the clerk of the court to "certify his opinion and proceedings in this court in the premises to the commissioner of patents, according to law," is not "final" within act defining the appellate jurisdiction of the federal supreme court."

_Appeals.--An appeal will be dismissed where, while the appeal from a decree awarding a perpetual injunction against infringement is pending, the infringing patent expires." An order of a circuit court, adjudging a contempt for violation of an injunction against infringement of a patent and imposing of fine to the United States and attorney fees and costs to complainants, is reviewable by the circuit court of appeals on writ of error," but upon the writ only matters of law can be considered." The basis of damages cannot be changed on appeal."_

**PAUPERS."**

**Definition and Status, 1295.**

**Definition and Renewal of Papers, 1296.**

**Remark.** The definition of Renewal of Papers, 1296.

dier and his wife in need of relief may be maintained at a poor farm where they need relief in excess of $2 each per week.91

\_Settlement and removal of paapers.\_See 10 C. L. 1145--In Connecticut no inhabitant of any town within the state can gain a legal settlement in any other town unless he resides for four years continuously in such other town and maintains himself and family during the whole of such period "without becoming chargeable to such town."92 Maine has distinct and separate statutes concerning illegitimate children, one relating to their panper settlement and another relating to their rights of inheritance,93 and the statute declaring that when the parents of such illegitimate children intermarrry, they are deemed legitimate and have the settlement of their father applies to the panper settlement of illegitimate children of parents who lived together in a state of adultery at the time of the birth of such children.94 While a town by the failure of its overseors to return an answer within two months after the receipt of a notice is estopped to deny that the settlement of the pauper is in any other than the plaintiff town,95 for it is not by such fact precluded from showing that the settlement was in fact in the plaintiff town,95 for it is not within the scope of the overseer's authority to create or change the settlement of paapers.96

\_Liability of municipalities for support and aid.\_See 10 C. L. 1145--There is no common-law liability nor are there any equities between towns in respect to caring for and supporting paapers,97 all such liabilities resting wholly in statute,98 and where the purpose of a statute is the relief and support of paapers, it cannot be extended so as to render one town liable to another for the expense of burying one of its paapers.98 A mere expression of opinion by county auditors that the county commissioners had made illegal payments on account of a poor house is insufficient to impose a liability on the surety of the commissioners for the amount of the surcharge,1 and much less is such opinion a judgment against them because not appealed from.2 Statutes must not come within the prohibition of the constitution declaring that the legislature shall not pass any special law regulating the affairs of counties, cities, townships, etc.9 Where a county after notice of the necessity therefor fails to care for poor persons as provided by statute, and a city does so, such city may recover from the county the amount expended by it for that purpose, if reasonable.4 In case of an epidemic the investigation as to the financial status of those already affected need not be more diligent than what is reasonable and possible under the circumstances;' and where the county by acquiescence waives its right and power and permits a city to assume the duty and responsibility of caring for paupers, it will be estopped to deny liability on account of the unwarranted assumption of jurisdiction by the city.6 Notice to one of the members of the board is sufficient,7 and is in compliance with statute if it contains a sufficiently definite description of the persons whose distress has been relieved to enable the overseers receiving the same at least by reasonable inquiry to establish the identity of the person deserted;8 but as the authorized agent of the town, the overseers of the poor may waive any objection arising from an informality or defect in the notice.9 Failure of the record in a pauper matter to show that the overseers of the poor were elected by ballot or major vote is not a fatal defect, presumption being that the town proceeded in the usual and legal manner,10 but even though such credit could not be extended to the record it is sufficient for the plaintiff town to prove that the pauper supplies were furnished by a majority of the acting overseers of the poor of the plaintiff town, and that the notice was given by one of them.11 Payment for support, and admissions and declarations though evidential facts bearing upon the question of liability, are not conclusive.12

\_Liability of relatives.\_See 10 C. L. 1146

\_Repayment by indigent or relatives.\_See 10 C. L. 1146

Although the estate of a poor person is liable for such person's previous maintenance,13 yet where a poor district sends an indigent insane person to a state hospital for the insane and agrees to pay and does pay fixed sum for his maintenance, and the hospital also receives a fixed sum from the state on account 14 of the patient, an action of assumpsit will not lie to recover the difference between what was paid by the poor district and the maximum charge for private cases,15 even though it appears that on the lunatic's death he left an estate.16 In Iowa a county expending any money for the relief of the poor may recover the same from the persons liable, and the fact that the money was expended for the relief or support of the poor farm or elsewhere does not take it out of the statutes,17 nor does the provision that the innates be required to perform work militate against this interpretation though it may have some bearing in ascertaining the amount expended in their behalf;18 and the fact that some difficulty may be ex perienced in ascertaining the portion expended for the support of each person does not justify the denial of relief to the county against the persons primarily liable,\[14\] for the county is presumed to have paid out the reasonable value of maintaining each person at the poor farm, and evidence of such reasonable value is admissible as tending to prove the money expended in their behalf.\[20\] Where the petition alleges the furnishing of food, clothing, medicine and medical attendance, and has attached to it an account for board, washing, care, medical attendance, etc., at a certain price per week, the account should be treated as merely making the averments more specific, and the action treated as for the amount expended rather than for the reasonable value of the support furnished.\[21\] It is not necessary to a recovery that the application for relief be made by the recipients of the public bounty,\[22\] nor is it necessary as against the persons liable for the support that their liability be first fixed.\[22\]

\_Administration of poor laws; officers and districts.\[See 19 C. L. 1147.--In Illinois there is no overseer of the poor, but the duty of caring for the poor is made one of the duties to be performed by the supervisor by virtue of his office as supervisor,\[24\] and the statute providing for the relief of a supervisor, at his request, from the duties of overseer, does not contemplate a resignation of an office, but simply relief from certain duties,\[25\] hence asking to be relieved of the duties as overseer is not a resignation of any office;\[26\] but when he has been relieved for the full term as authorized by statute, the duties again devolve upon him on the expiration of such time,\[27\] and where a new board is organized it cannot upon the request of the old board appoint another person to perform such duties without the request for relief from the supervisor.\[28\] In Massachusetts the overseers of the poor may sue in the name of their town to compel one to contribute to his pauper kinsman's support.\[29\]

## 122 Pawnbrokers and secondhand dealers.\[29\]

_The scope of this topic_ is noted below.\[31\]

Ordinances regulating the business of brokers engaged in making chattel mortgage or salary loans, if reasonable, will be upheld.\[22\] Regulation of junk dealers by ordinances is an exercise of the police power, and the ordinances are enacted because of the likelihood, grounded on experience, that junk may have been stolen or piltered and for protection against such larerenies.\[33\] One who buys junk with the intention of selling it is a "dealer" within the meaning of statute prohibiting dealing in junk 12 Cur. Law. PAYMENT AND TENDER. 1299 without a license; 34 but one having no dealings with pedders, but who deals in old and new metals, buying in large quantities, refines and sells the same to foundries, is not a dealer in junk within the Chicago ordinance.35 In New York a pawnbroker's license is revocable by the mayor "for cause," 36 but it is not held wholly at the mayor's pleasure, nor can it be arbitrarily revoked; 37 and the conviction of a pawnbroker of petty larceny and of violating Greater New York charter by refusal to exhibit to a police officer any pawned property, etc., while seemingly prima facie a good cause for a revocation, does not necessarily and as a matter of law work a revocation.38 The question of the suitableness of the applicant for a junk dealer's license in New Hampshire, is a question of fact for the determination of the selectmen, and their discretion upon the subject, if properly exercised, cannot be reviewed or reversed,39 but the duty to determine the applicant's fitness must be performed by an impartial exercise of a reasonable discretion.40 A pawnbroker who loans money to an unauthorized pledgor acquires no title or lien on the goods pledged but renders himself liable to the true owner for the value of the goods which he refuses to deliver,41 or which he turns over without the true owner's consent.42

PAYMENT AND TENDER.

8 1. Mode and Sufficiency of Payment or Tender and Tender, 1300. To and By Whom, 1800. Time and Place of Payment or Tender, 1300. Sufficiency of Payment or Tender, 1300. Medium; Cheeks, Notes, Drafts, Bills of Exchange, etc., 1301. D. Questions of Law and Fact, 1307.

8 2. Application of payment, 1302.

34. One regularly buying junk in town of "A" and selling it in town of "B", being business in town. Id. licensed in latter place, held a "dealer" in "A" under Pub. SL 1901, c. 124, $ 4. State v. Silverman \[N. H.\] 70 A 1076.

01. Evidence insufficient to show that defendant was a dealer in junk under Rev. Municipal Code of Chicago, 8 2040, prohibiting dealing in junk without a license. West Side Metal Refining Co. v. Chicago, 140 Ill. App. 599.

01. Laws 1883, p. 508, c. 339, $ 2. People v. Rosenberg, 59 MIsc. 342, 112 NYTS 316.

01. People v. Rosenberg, 59 MIsc. 342, 112 NYTS 316.

01. Greater New York Charter, Laws 1901, p. 137, c. 466, $ 1.7 People v. Rosenberg, 59 MIsc. 342, 112 NYTS 316. Since not neces-

59 MIsc. 342, 112 NYTS 316.

satisfy a revocation, prosecution did not involve property rights so as to make reasonable prosecution of offences by indictment. Id. See Indictment and Proscution, 12 C. L. 1.

39. Pub. St. 1901, c. 124, $ 1, as amended by Laws of 1905, p. 484, Silverman v. Gagnon, 74 N. H. 502, 69 A 886.

01. Silverman v. Gagnon, 74 N. H. 502, 69 A 886.

41.0 Silverman v. Gagnon, 74 N. H. 502, 69 A 886.

42.00. 886. Pub. St. 1901, c. 124, $ 1, amended by Laws of 1905, p. 484, c. 76, held intended to protect public by providing facilities for detection of larceny; hence if a person's methods are such as to render such detection difficult it is no abuse to refuse a 11-

43.00. 886. 886. 886. 886. 886. 886. 886. 886. 886. 886. 886. 886. 886. 886. 886. 887. 886. 886.

1300

PAYMENT AND TENDER SS 1.12 Cur. Law.

## 1. Mode and sufficiency of payment or tender

To and by whomSee 10 C. L.

Payment to a duly authorized attorney is binding upon his client.\[45\] So, also, a tender to a duly authorized officer of a corporation is binding upon the corporation.\[46\] Repayment by the government of monoys improperly collected by its officers inures to the benefit of the latter.\[47\]

Time and place of payment or tenderSee 10 C. L. 1149-- Payment must be seasonably made.\[48\] Where no time is fixed for payment of money due and owing, it is payable on demand.\[49\] As a general rule the debtor must find the creditor and pay him,\[50\] especially where both are in the same state,\[51\] and this he must do in person or by agent or check at his own risk.\[52\] A custom of presenting bills through a collector is ex gratia and may be abandoned at will on proper notice,\[53\] and payment thereafter be required to be made to the creditor in person,\[54\]

Sufficiency of payment or tenderSee 10 C. L. 1140-- Payment of less than the full amount of a debt, as distinguished from a compromise or an accord and satisfaction,\[55\] cannot operate as a discharge,\[56\] and so, also, an agreement, unsupported by any independent consideration, is unenforcible,\[57\] unless made in such manner as to dispense with the necessity of a consideration \[58\] or to raise a conclusive presumption thereof.\[59\] When a promise is made to pay a certain number of dollars in specific articles on a certain day, delivery must be made on the day agreed, otherwise the party promising will be bound to pay the amount stated in money.\[60\] An assignment of a claim by a creditor to the debtor is in legal effect a settlement and payment of the claim,\[51\] but an assumption by an agent of a debt due from a third party to the agent's principal, without authority from or ratification by the latter, does

other than payment (see Contracts, 11 C. L.

Praph and telephone companies, and all the trades. Id.

Specific Performance, 10 C. L. 1674).

**44. Search Note:** See notes in 4 C. L. 958:

Co. \[Miss.\] 46 S 404.

33 L. R. A. 824: 35 J. 48: 40 Id. 74: 53 Id.

**53. Telephone company after notice of**

**372:** 2 L. R. A. (N. S) 529: 15 Id. 1019; 30 A.

S. R. 460: 69 Id. 846; 100 Id. 393; 1 Ann.

Cas. 630.

See, also, Payment, Cent. Dig. **SS 1**-98;

Dec. Dig. **SS 1**-35; Tender, Cent. Dig. **SS 1**-58;

Ced. Dig. **SS 1**-18; Banks and Banking, Cent.

Dec. Dig. **SS 1**-35;

Banks and Banking, Cent.

Dig. **SS 34**, 348;

590: Contracts, Cent. Dig.

**SS 1**-\*\*58;

Cournefland Tel. & T. Co. \[Miss.\] 46 S 404.

**SS 1**-**78**-\*\*760;

**SS 2** & E. E. L. (2ed.) 483;

**SS 3**-**16**.

**16. 513, 517; 28 Id. 116.**

**45. Where defendant communicated with**

**plaintiff as to the debt and was informed that plaintiff had placed the matter in the hands of its attorney. Kramer v. Grant, 60 Misc. 109, 111 NYS 709.**

**46. Tender to officer of corporation acting in place of its treasurer. Louisville R. Co. v. Williams, 33 Ky. L. R. 168, 109 SW 874.**

**47. Reayment of customs duties improperly collected. Bilwell v. Preston \[C. C. A.\] 160 F 653.**

**48. Evidence held insufficient to show payment within time required by option.**

**Rude v. Levy, 43 Coio. 482, 96 P 560. Tender of interest on mortgage debt is in time if made prior to exercise by creditor of election to treat principal as due by reason of default as to interest. Cresco Reality Co. v. Clark, 128 App. Div. 144, 12 NYS 550.**

**49. Dame v. Wood \[N. L.\] 170 A. 1081.**

**50. Magnender v. Cumberlind Tel. & T. Co. \[Miss.\] 46 S 404.**

**This rule is without dissent anywhere and includes merchants, lawgers, doctors, landirds, express companies, telegments, and their own own own.**

**49. Dame v. Wood \[N. L.\] 170 A. 1081.**

\*\*49. Dame v. Wood \[N. L.\] 171 M. 171 M. 171 M. 171 M. 171 M. 171 M. 171 M. 171 not constitute payment." To constitute a valid tender there must be a definite offer to pay " the full amount due "unconditionally." Tender at any time on the day of maturity is sufficient as to time." Where a tender is refused it must be kept good."

\_Medium; checks, notes, drafts, bills of exchange, etc.\_See 10 C. L. 1151--In the absence of an agreement to such effect, payment is not effected by the delivery and acceptance of a note," draft," check," order," or warrant." Nor can a valid tender be made by tender of a note " or check." When, however, it is so intended by the parties, the acceptance of such instruments or evidences of debt constitutes payment," and such an intention may be implied from the circumstances." The parties

**62.**: Flano Mfg. Co. v. Doyle \[N. D.\] 116

warding draft, which on being presented within a reasonable time, as was this, is repudiated for want of funds. Brown v. Shelson state Bank \[Iowa\] 117 NUV 289.

paid, etc., held Insuffient to stop run-
70.\*\*: Rumpf v. Schiff, 109 NYS 51.

Tender of check for part of rent due not returned

Land \[Neb.\] 118 NUV 465.

64.\*\*: Wicks v. London & Lancashire Fire

Ins. Co., 111 NYS 65; Campbell v. Abbott, 60

Misc. 93, 111 NYS 782. Tender of 88 where

70a.\*\*: Freidenrich v. Condict, 124 App. Div.

$12 was due for rent on a lease held insuffient. Ebersole v. Addington \[Ala.\] 46 $

$7.\*\*: Issuances of township warrant for

$43. To discharge by record a mortgage,

the tender must be of exact amount due.

Kingsley v. Anderson, 108 Minn. 510, 115 NUV

$42, rehearing and modification defined.

$72.\*\*: Offer to surrender note of third per-

Kingsley v. Anderson \[Minn.\] 116 NUV 112.

$73.\*\*: Rumpf v. Schiff, 109 NYS 51.

Where a tender in acceptance of an offer of

worth tender of amount due upon note.

compromise is refused because of insuffin--

price v. Jester, 1371 All. App. 565.

ciency of amount, subsequent withdrawal

of the offer is a water of further tender.

74.\*\*: Notes. Union Stove Works v. Robin-

Giman v. Cary, 198 Mass, 318, 84 NE 121.

$5. Tender of less than amount due on

llvery stable keeper's lien, with condition

M Stone Renovating Co., 126 App. Div. 15, 110

that it be accepted in full satisfaction there-

NYS 555; Rosenbaum v. Palita, 114 NYS 802;

of, held defective. Campbell v. Abbott, 60

Misc. 93, 111 NYS 782. A tender of $200,

Walker v. Dunham \[Mo. App.\] 116 SSV 1086;

coupled with a demand for a recept or ac-

Knowledment showing payment of $300,

14, 120 NUV 28; Manser v. Slims \[Ala.\] 47 S

held insuffient. Rude v. Levy, 45 Colo. 482,

96 P 560.

68.\*\*: Gilman v. Cary, 198 Mass, 318, 84 NE

812.

$7. Defendants subsequently destroyed

check, treating it as their own, and left

Burgess, 141 Til. App. 373. Acceptance of

money in bank upon which it was drawn,

subject to any other call of their business,

and thus failed to keep tender good, even

608, 69 A 1021. Where during progress of

though the tender of the check was

emfect in the first instance. Rumpf v. Schiff,

108 NYS 51.

68.\*\*: Acme Food Co. v. Older \[W. Va.\] 61

and contractor took it up and surrendered

SE 235; Blautenthal v. Green \[Tex. Civ.

App.\] 108 SVV 1133; Manser v. Slims \[Ala.\]

47 S 270; Lee v. Larkin, 125 App. Div. 302,

109 NYS 480; Attendry v. Edwa, 61 Misc.

524.\*\*: 113 NYS 614; North Penn, Iron Co. v.

New Jersey Bridge Co., 35 Pa. Super Ct. 84.

75.\*\*: Manner v. Slims \[Ala.\] 47 S 270. Where

Promissory note given for purchase price of

rediot indexes and transfers check which

property, Acme Food Co. v. Older \[W. Va.\]

he has received from debtor. Kramer v.

61 SE 235. Note given for initial premium on

finurance policy, Batson v. Fidelity Mut.

Life Ins. Co. \[Ala.\] 46 $ 575 Individual note

note which he has received from debtor.

1302 PAYMENT AND TENDER SS 2. 18 Cur. Law.

ties may also agree that payment may be made in services 76 or property.77 Objection to the medium of a tender is waived by a refusal of the tender upon other grounds,18 or by an absolute refusal to accept anything at all,76

SS 2. \_Application of payment.80_See 10 C. L. 1182.\_The debtor has the right of election as to the application of payments made by him,81 but in the absence of direction by the debtor the creditor has the right to apply payments as he may elect.82 Where neither of the parties exercises his right of election in this regard, the law will apply the payments according to equity and justice83 and in accordance with well established and recognized rules,84 under which rules payments will ordinarily be applied to the oldest items or accounts in preference to later ones,85 to interest rather than to principal,86 and to unsecured claims rather than to those secured; 87

conclusive to show purpose for which given. Tajima v. Mareey \[Yt.\] 71 A 72. T6. Klimpton v. Studebaker Bros. Co., 14 Idaho, 652, 94 P 1039. 77. Payment by conveyance of lots. Wood v. O'Hanlon \[Tex. Civ. App.\] 111 SW 178. 88. Refusal on account of insufficiency of amount. Boothroyd v. Larimer County Comm'rs, 43 Colo, 428, 97 P 255. Where party objects to a tender of interest, that whole amount of mortgage is due for failure to pay interest, he cannot afterwards object to form tender. Weinberg v. Naher \[Vwash.\] 39 P 736. 79. Gillespie v. Fulton Oil & Gas Co., 236 Ill. 188, 86 NS 219. Tender by certified check held sufficient in view of absolute refusal to accept anything. Germania Life Ins. Co. v. Potter, 124 App. Div. 814, 109 NYS 435. 80. Search Note: See notes in 4 C. L. 958; 15 L. R. A. 169; 98 A. S. R. 44. See, also, Landford and Tennant, Cent. Dig. 51 857, 858; Payment, Cent. Dig. 51 99-129; Dec. Dig. 51 83 47-47; 2 A. & L. Enc. L (Zed.) 433. 81. Hobbs v. Crawford, 4 Ga. App. 585, 62 SE 157. County warrant, which designated bridges and amount to be applied in part payment on each, held not applicable by contractor to another bridge account. Sparks v. Jasper County, 213 Mo. 218, 112 SW 265. Where two checks bore words "credit on note" and "on note," it was duty of creditor to credit amount of checks when paid on some note held by him against defendant. Jennings v. Roberts, 130 Mo. App. 493, 109 SW 84. 82. Hobbs v. Crawford, 4 Ga. App. 585, 62 SE 157: Sparks v. Jasper County, 213 Mo. 218, 112 SW 265. So held in action of trover for two diamond rings when creditor applied payments to other items of account. Hall v. Nix \[Ala.\] 47 S 355. In absence of any indication on part of debtor as to whether a payment shall be applied upon claim enforceible by action or upon debt not enforible by actions, creditor may make payment as he chooses. May apply payment by wife on debt of husband which she has assumed. Edmundism v. Smith, 13 Idaho, 645, 92 F 842. Fact that defendant's wife was a surety upon mortgage debt and not upon unsecured debt did not deprive plain-proofed of his right to apply payments received claim rather than to claim se-credit them to former. Cain v. Vogt, 138 Idaho, 631, 116 NW7 188.

12 Cur. Law. PAYMENT AND TENDER SS 4A. 1303 but courts of equity will not so apply these rules as to cause manifest injustice. \[88\] The court will ordinarily follow rules of application indicated by the conduct of the parties. \[89\] Where interest is waived and the principal is accepted as payment in full, the rule as to application to interest rather than to principal does not apply. \[90\]

SS 3. \_Effect of payment or tender and waiver. thereof. \[81\] See 10 C. L. 1153--The acceptance of money due carries with it no obligation beyond that of giving proper credit for it, unless such obligation is made a condition attached to the tender. \[92\] A tender admits the debt to the extent of the amount tendered, \[93\] but no further. \[94\]

\_Recovery back of payment. \[88\] See 10 C. L. 1154 Necessity for tender. \[88\] See 10 C. L. 1154 Payment is not excused. \[88\] See 10 C. L. 1154--A formal tender is unnecessary when it is manifest that it will be refused, \[95\] as where there has been an absolute refusal to accept any tender that might be made, \[96\] or where there has been a repudiation of the obligation dependent in the first instance upon the tender, \[97\] or a declared inability to perform such obligation; \[98\] and it is also held that tender is waived by the refusal of the creditor to receive anything less than an amount which is larger than that to which he is entitled. \[99\]

SS 4. \_Payment or tender as an issue. A. Pleading. \[88\] See 10 C. L. 1154--Payment is an affirmative defense and must be specially pleaded in most jurisdictions, \[2\] though

SSs. Cain v. Voght, 138 Iowa, 631, 116 NWP 786. \[89\]

amount tendered is due thereon. Palmer v. La Rauit \[Wash.\] 99 P 1036. Fact that defendant has made a tender, thereby admitting contract or duty and the right of plainner without objection for nine years, such rule of application of payments will be ad-hered to by court. Bower v. Walker, 220 Pa. \[94\]

plaintiff consistent with an admission of the original contract or cause of action. Heller

90. Where amount of principal of customs \[95\]

dutries improperly collected was repud, but interest was not paid because there was no appropriation there, and it appeared that claimant considered his claim as being made up of principal and interest and not lease. Gillespie v. Fulton Oil & Gas Co., a claim for a lump sum equal to such principal and interest, such payment was held in full, interest being waived. Bidwell v. \[88\]

Preston \[C. C. A.\] 160 F 653. \[91\]

91. Search Note: See notes in 23 L. R. A. \[88\]

120; 33 Id. 231; 13 Id. 624; 15 Id. 243, 116 J. 243, 116 J. 244, 116 J. 245, 117 J. 246, 118 J. 247, 119 J. 248, 119 J. 249, 120 J. 249, 121 J. 249, 122 J. 250, 123 J. 251, 124 J. 252, 125 J. 261, 126 J. 262, 127 J. 263, 128 J. 264, 129 J. 270, 129 J. 281, 129 J. 290, 121 J. 291, 122 J. 292, 123 J. 293, 124 J. 294, 125 J. 295, 126 J. 296, 127 J. 297, 128 J. 298, 129 J. 299, 129 J. 299, 130 J. 290, 131 J. 291, 132 J. 292, 133 J. 294, 134 J. 295, 135 J. 296, 136 J. 297, 137 J. 298, 138 J. 299, 139 J. 300, 139 J. 310, 139 J. 320, 139 J. 331, 139 J. 340, 139 J. 350, 139 J. 360, 139 J. 371, 139 J. 372, 139 J. 381, 139 J. 390, 139 J. 391, 139 J. 392, 139 J. 393, 140 J. 394, 141 J. 395, 142 J. 396, 143 J. 397, 144 J. 398, 145 J. 399, 146 J. 399, 147 J. 399, 148 J. 390, 149 at common law evidence of payment might be given under the general issue either in assumpsit or debt on simple contract,\[3\] and this rule still obtains in New Jersey.\[4\] So, also, in California, payment may be proved under the general issue.\[5\] A plea of payment\[6\] must conform to the general rules of pleading\[7\] and must allege when, how, and to whom the payment was made;\[8\] but it is held that in a complaint to in-join the collection of taxes, a general allegation of payment is sufficient.\[9\] The whole plea is not rendered bad by the fact that some of the payments as alleged, are of a date prior to the making of the contract sued on.\[10\] When an allegation of payment is merely an affirmative denial of the plaintiff's allegation of nonpayment, no reply is necessary to put the question of payment in issue.\[11\] A tender, in order to be available, must be properly alleged,\[12\] unless a waiver is relied on, in which case the facts constituting such waiver must be alleged.\[18\] (SS 4) \_B. Evidence.\[14\] Presumptions.\[See 10 C. L. 1185.--Aside from the facts re-cited by a receipt, no presumption arises therefrom,\[15\] but a presumption of payment may arise from the debtor's possession of the evidence of the debt.\[16\] There is some conflict as to whether the delivery and acceptance of the debtor's note is presumpttively a payment,\[17\] but, even where the presumption of payment is held to arise, it is also held to be only prima facie,\[18\] even though the note be executed to a third person,\[19\] and the presumption of payment will not be indulged where it will deprive the party accepting the note of collateral security or other substantial benefit.\[20\] Another rule obtaining in this connection in some jurisdictions is that the acceptance of the note of a third party for a debt contracted contemporaneously raises a prima

by alleging payment, this, with plaintiff's waiver of tender of smaller amount agreed admission that he had been paid for all this services except those sued for, sum-depth, it must appear that demand was made ciently raised the issue of payment. Wilson

v. Du Vlever, 112 NYS 1108.

and empowered to demand payment and the literal contents of alleged demand must be sufficiently set out to enable court to determine exact nature and effect of demand re- (4 Gen. St. 1895). Axel v. Kraemer, 75 N. J.

lied upon. Jester v. Bainbridge State Bank, Law., 688, 70 A 867.

5. Brooks v. Ardizzone \[Cal. App.\] 98 P

1.

1. Allegation held sufficent to admit proof. Wiener v. Boehm, 126 App. Div. 703, 111 NYS 126. Facts alleged showing limitations have run on a mortgage held not to amount to allegation of payment. House v. Carr, 125 App. Div. 83, 109 NYS 245.

1. Plea held not double. Scott v. Rawls (Ala.) 48 S 710.

1. Groves v. Sexton \[Ga. App.\] 62 SE 731.

1. Held not necessary to allege date of payment of taxes or amount thereof or to whom paid. Keys v. Fink \[Nb.\] 116 NWW

1.

1. Schroeter v. Bowdon \[Tex. Civ. App.\] 115 SWY 381.

1. Carlton v. Smith, 33 Ky. L. R. 647, 110

1. Under Code Civ. Proc. $ 2076, providing in substance that objections to tender must be made at time thereof or be deemed waived, an averment of tender in cash of specific sum in advance for payment of such waters as might be furnished at established rates held sufficient. Star Loan Co., v. 523.

1.

1. Where demand for payment of whole of existing indebtedness is relied upon as 12 Cur. Law. PAYMENT AND TENDER SS 4B. 1305

facie presumption of payment,"1 but where the note is accepted upon a pre-existing debt, a contrary presumption arises.22 No presumption of payment arises from the acceptance of an instrument which of itself neither creates nor evidences any liability.23 A presumption of payment arises at the end of twenty years,24 and increases in strength with each succeeding year,25 but this presumption cannot operate to divest title.26 The presumption is that payments are made on account of existing debts,27 even, it seems, without any showing that there were no other dealings between the parties upon which the payments might have been made,28 but slight evidence is sufficient to rebut such presumption, and while a gift will not ordinarily be presumed,29 such a presumption does sometimes arise by reason of the relationship of the parties 80 and may even overcome the presumption that payments are upon existing debts.31

\_Burden of proof.\_See 10 C. L. 1158.\_The burden of proving payment is upon the party alleging it,22 except where there is a presumption of payment.38 Under this rule the burden is usually upon the defendant,34 but the plaintiff has the burden of proving nonpayment where it constitutes an element of his cause of action,38 and he also has the burden of proving payments upon which his right to recover depends.38 Where the acceptance of a note or bill gives rise to a presumption of payment,37 the burden of rebutting such presumption is necessarily upon the party disputing such presumption,38 but in the absence of such a presumption the burden is upon the party asserting payment to show that a note, bill or check was accepted as a payment,39 or that the paper accepted was itself paid to the party accepting it,40 or loss

21. Lee v. Larkin, 125 App. Div. 302, 109 Hill v. V'ugth \[Iowa\] 118 N NV 877. Defend. NYS 480. See, also, Beach v. Huntsman \[Ind. App.\] 85 NE 523; Taplin v. Marcy \[Vt.\] 71 A 72. 22. Lee v. Larkin, 125 App. Div. 302, 109 NYS 480; Aiterbury v. Edwa, 61 Misc. 234. NYS 614. 113 NYS 614. 23. Township warrant. Mitchelltree \[Towah\] 84 NE School Tp. v. Carnahan \[Ind. App.\] 84 NE Stewart v. Graham \[Miss.\] 46 B 245. 24. Millwee v. Phelps \[Tex. Civ. App.\] 115 SVW 891. 25. Mortgage debt. Richards v. Walp, 221 Pa. 412, 70 A 815. 26. Action of ejectment. Rankin v. Dean \[Ala.\] 47 S 1015 27, 28, 29. Lynch v. Lyons, 115 NYS 227. 30. Where husband has property conveyed to wife or expends money for improvements on her property. Hamby v. Brooks \[Ark.\] 111 SWY 277. See Gifts, 11 C. L. 1649. 31. Where husband has property conveyed to wife or expends money upon her property, the presumption of gift precludes any pre-sumption of payment of debt owed by him to her. Hamby v. Brooks \[Ark.\] 111 SWY 277. 32. Wood v. O'Hanlon \[Tex. Civ. App.\] 111 SWV 178; Carlton v. Smith, 33 Ky. L. R. 647, 110 SW 873; Black v. Robertson \[Ark.\] 112 SWY 402; Plaut v. Straub, 115 NYS 148. See, also, Wilson v. Du Vievier, 112 NYS 1108. 33. See ante, this section and subsection, subd. Presumptions. Partridge v. Moynhian, 56 Misc. 234, 110 NYS 639. 34. Lynch v. Lyons, 115 NYS 227; Jennings v. Roberts, 130 Mo. App. 498, 109 SWV 84; Bank of Benson v. Jones, 147 N. C. 419, 61 SE 193. By a preponderance of evidence, to the debtor by reason of the creditor's default in the collection of the paper.\[41\] The burden of overcoming the presumption of payment arising at the end of twenty years is upon the party seeking to enforce payment.\[42\] The burden of explaining a receipt and showing that that there was a mistake in giving it is upon the receipt.\[43\]\_Admissibility.\_See 10 C. L. 1157--Evidence offered to show payment must, of course, be relevant to the issue.\[44\] The parol evidence rule does not exclude parol evidence 10 show that payments were applied to one contract rather than to another,\[45\] nor does it exclude parol evidence to explain the reci also, as to other issues involving payments.\[52\] A receipt is prima facie evidence of the facts recited therein,\[53\] but though the case thus made is only prima facie,\[54\] it becomes conclusive when not rebutted.\[55\] A recital of payment in a ded is not conclusive.\[56\]

(SS 4) \_C. Limitations.\[57\] See 10 C. L. 1187.\_Where partial payment suspends or tolls the statute of limitations,\[58\] it is usually upon the theory of an acknowledgment of the debt from which a promise to pay the remainder may be implied.\[59\] A tender removes the bar of limitations only to the extent of the amount tendered.\[60\]

(SS 4) \_D. Questions of law and fact.\[61\] See 10 C. L. 1188.\_It is usually the province of the jury to pass upon the ultimate fact of payment,\[62\] and also probative facts involved in the determination of such ultimate fact.\[63\]

## PAYMENT INTO COURT.\[54\]

_The scope of this topic is noted below.\[65\]_

_Money deposited with the clerk in an action of interpleader passes into the custody of the law_ **:** \_giving the court full authority over the same,\[67\] which authority can, however, be properly exercised only through the medium of proceedings in the pending cause,\[68\] and the clerk as officer and depositary of the court can recognize no other authority than that which placed the money in his hands, pending the adjuication and judgment of distribution.\[69\] So where the court in such action has directed a distribution, a resort to an independent action to determine the disposition of the fund is misdirected and irregular.\[70\] The application of money deposited in court must be in compliance with the tender and findings;\[11\] hence, when \[11\]

(SS 4) \_C. Limitations.\[57\] See 10 C. L. 1187.\_Where partial payment suspends or tolls the statute of limitations,\[58\] it is usually upon the theory of an acknowledgment of the debt from which a promise to pay the remainder may be implied.\[60\] A tender removes the bar of limitations only to the extent of the amount tendered.\[60\]

(SS 4) \_D. Questions of law and fact.\[61\] See 10 C. L. 1188.\_It is usually the province of the jury to pass upon the ultimate fact of payment,\[62\] and also probative facts involved in the determination of such ultimate fact.\[63\]

## PAYMENT INTO COURT.\[54\]

_The scope of this topic is noted below.\[65\]_

_Money deposited with the clerk in an action of interpleader passes into the custody of the law_ **:** \_giving the court full authority over the same,\[67\] which authority can, however, be properly exercised only through the medium of proceedings in the pending cause,\[68\] and the clerk as officer and depositary of the court can recognize no other authority than that which placed the money in his hands, pending the adjuication and judgment of distribution.\[69\] So where the court in such action has directed a distribution, a resort to an independent action to determine the disposition of the fund is misdirected and irregular.\[70\] The application of money deposited in court must be in compliance with the tender and findings;\[11\] hence, when \[11\]

(SS 5) _C. Evidence held to show credit for all payments.\[57\]_

_Money's preferred or in controversy.\[58\]_
money in the clerk's hands has been directed paid to a third person, it cannot be made the subject of foreign attachment with the usual consequence that the judgment be followed by scire facias proceedings to appropriate the fund,"2 and, where it has been directed paid to one and denied to another except by force of the former's duty to account to the latter after it is received, the latter acquires only an equitable interest therein."3 A county treasurer has no authority to invest moneys deposited with him by order of court to the credit of infants and lunatics except upon the court's order."4 Payment into court in discharge of a mechanic's lien does not change the nature of an action to foreclose the lien."5 Money that passes into the registry of a federal court can be legally paid out only under the authority of the government by its officers and agents in the manner prescribed by statute and the rules and regulations made in pursuance thereof,"6 and unclaimed money paid into court in receivership proceedings becomes a trust fund for the benefit of the distributees and if not claimed by them subject to redistribution."7 Money deposited in a federal court remaining unclaimed for a long period, if subject to escheat, belongs to the state and not to the federal government as parens patriae,"8 and an act of congress in so far as it requires money thus deposited and unclaimed for 10 years to be turned over to the United States is unconstitutional."9 By virtue of statute where a fund in litigation is admitted by the pleadings to be held in trust, the court may upon motion order it paid into its custody,"9 and, where there is in effect an admission that the whole amount held, less some indefinite portion, belongs to the defendant, the admission is sufficient to give the court jurisdiction to make the order for payment;"1 but, where a judgment fixes the amount due and execution issues if the same is not paid, it is error to refuse payment into court of any sum."10 Where an afflavit of a judgment debtor seeking to redeem from a sale under the judgment shows prima facie that the purchaser is not in the county, the judgment debtor may payment of a personal judgment in favor of contractors on failure of their lien. Los Rivers Co., 159 F 775. Angeles Pressed Brick Co. v. Higgins \[Cal.\] 79. Rev. St. $ 986 (U. S. Comp. St. 1901, p. Appl.\] 97 P 414. Fund held properly applied, 711) as amended by Act of Feb. 19, 1897, first, to payment of the valid liens with c. 265, $ 329, St. 578 (U. S. Comp. St. 1901, costs to such claimants, and, second, to payment of personal judgment obtained by contracts on failure of their lien. Id. 72, Shelton v. Wollhausen, 80 Conn. 599, 69 A 1030. 73. Second party held to have only an equitable interest in fund, hence not an interest subject to a foreign attachment where not made so by statute. Shelton v. Wollhausen, 80 Conn. 599, 69 A 1030. 74. Investment must receive sanction of the court. Eric County v. Diehl, 114 NYS 80. 75. Suit one In equity to enforce a mechanic's lien even after payment into court. Valett v. Baker, 129 App. Div. 514, 114 NYS 214. 76. Action does not lie against clerk of federal court in his official capacity to recover money received by him as such and which has passed into registry of court. Hills v. Valentine \[C. C. A.\] 164 F 828. 77. Unclaimed money held trust fund for benefit of bond holders and, if unclaimed, eubject to redistribution either to bondholders nor paid in full, to creditors if any, or to holders of corporation stock. American Loan & Trust Co. v. Grand Rivers Co., 159 F 775. 78. American Loan & Trust Co. v. Grand Rivers Co., 159 F 775. 78. American Loan & Trust Co. v. Grand Rivers Co., 159 F 775. 79. Rev. St. $ 986 (U. S. Comp. St. 1901, p. Appl.\] 97 P 414. Fund held properly applied, 711) as amended by Act of Feb. 19, 1897, first, to payment of the valid liens with c. 265, $ 329, St. 578 (U. S. Comp. St. 1901, costs to such claimants, and, second, to payment of personal judgment obtained by contracts on failure of their lien. Id. 72, Shelton v. Wollhausen, 80 Conn. 599, 69 A 1030. 75. Second party held to have only an equitable interest in fund, hence not an interest subject to a foreign attachment where not made so by statute. Shelton v. Wollhausen, 80 Conn. 599, 69 A 1030. 74. Investment must receive sanction of the court. Eric County v. Diehl, 114 NYS 80. 75. Suit one In equity to enforce a mechanic's lien even after payment into court. Valett v. Baker, 129 App. Div. 514, 114 NYS 214. 76. Action does not lie against clerk of federal court in his official capacity to recover money received by him as such and which has passed into registry of court. Hills v. Valentine \[C. C. A.\] 164 F 828. 77. Unclaimed money held trust fund for benefit of bond holders and, if unclaimed, eubject to redistribution either to bondholders nor paid in full, to creditors if any, or to holders of corporation stock. American Lo 18 Cur. Law. PEDDLING SS 1.109

pay the redemption money into court," and where the clerk receipts in full it is presumed that the amount paid was the proper amount of the redemption money;" and the fact that the clerk accepts a check which is afterwards paid is immaterial." Where one has sublet leased premises, the subtenant may properly be required to pay the accumulated rent into court under a bond to protect the defendant pending the adjudication of the leases involved," and, where a judgment of cancellation is directed, the money may properly be ordered paid to plaintiffs." Where the terms of a deposit are general, the deposit serves to save the depositor from costs and it must continue to remain in the custody of the court to abide the final judgment in the cause," hence, it cannot be withdrawn pending appeal." Under statute a tender and payment into court of a sum less than the amount claimed in an action upon s contract is a conclusive admission of the indebtedness to the extent of the tender, regardless of the final result of the action;" it vests title to the sum tendered in the plaintiff, although he does not accept or make any effort to secure the money," and the court itself has no power to make an order or render a judgment in the same action which effects a re-transfer of the title;" but the plaintiff by proceeding after a tender and deposit runs the risk of paying defendant's costs if the recovery falls short of the amount tendered." The tender and payment does not prevent the defendant from denying plaintiff's claim beyond the sum tendered upon any ground consistent with the admission of the original cause of action."

PEDDLING.

SS 1. Definition, 1309. $ 3. Who May Become Licenses, 1310. $ 2. Statutory or Municipal Regulation, 1310. $ 4. Offenses and Prescution, 1310.

_The scope of this topic_ is noted below."

SS 1. Definition." See 10 C. L. 1159--"Hawking" or "pedding" refers ordinarily to the business of an itinerant trader who delivers goods at the time of sale," or whose goods are hawked about and offered and sold to any one who will buy," as distinguished from one who sells them in a fixed place of business," or makes periodic delivery pursuant to a previous arrangement." A license to "peddle" gives no right to take, for any considerable length of time, permanent and exclusive possession of any part of the highway."

SS3. Afflavit held to raise prima facte case authorizing payment of redemption money to clerk under Ky. St. 1903, $ 2364. $ 30. Hatcher v. Hackney, 33 Ky. L. R. 661, 110 SSV 888. $ 4. Especially where debt was $110 and amount paid clerk $172. Hatcher v. Hackney, 33 Ky. L. R. 661, 110 SSV 888. $ 5. Flacther v. Hackney, 33 Ky. L. R. 661, 110 SSV 888. $ 66, $ 7. Collins v. Seyfang, 49 Wash, 554, 95 P 1088. $ 1088. Los Angeles pressed Brick Co. v. Higgins \[Cal. App.\] 97 P 414. $ 89. No right to withdraw deducrule from statutory provisions relating to appeals and stay of execution. Los Angeles pressed Brick Co. v. Higgins \[Cal. App.\] 97 P 414. $ 90, 91, 92, 93, 94. Heller v. Katz, 114 NYS 806. $ 95. For the licensing and regulation of analogous occupations, as transient merchants, etc., see Licenses, 12 C. L. 698.

\_Statutory or municipal regulation.\_See 10 C. L. 1139.-It is within the discretionary power of the legislature to classify 4 and to regulate the business of hawking and pedtling within its territory.\[8\] A municipality also has such power provided it does not exceed the limitations of the legislative power,\[9\] and a license regulation by a city is not invalid because it excludes persons licensed by the county.\[1\] The power to provide for the licensing and regulation of peddlers implies the power of prescribing the amount of the license and of enforcing its payment.\[9\] To avoid a regulation it must appear beyond a reasonable doubt that it contravenes the constitution.\[9\] A license is not a tax upon property but is a police regulation.\[10\] A license is no protection as to acts beyond its terms.\[11\]

## 3. \_Who may become licensees.\[12\]\_See 6 C. L. 906

## 4. \_Officenses and prosecution.\[13\]\_See 10 C. L. 1139

\_Officenses and prosecution.\[13\]\_See 10 C. L. 1139.-It is within the discretionary power of the legislature to classify 4 and to regulate the business of hawking and pedtling within its territory.\[8\] A municipality also has such power provided it does not exceed the limitations of the legislative power,\[9\] and a license regulation by a city is not invalid because it excludes persons licensed by the county.\[1\] The power to provide for the licensing and regulation of peddlers implies the power of prescribing the amount of the license and of enforcing its payment.\[9\] To avoid a regulation it must appear beyond a reasonable doubt that it contravenes the constitution.\[9\] A license is not a tax upon property but is a police regulation.\[10\] A license is no protection as to acts beyond its terms.\[11\]

## 6. \_Who may become licensees.\[12\]\_See 6 C. L. 906

\_Officenses and prosecution.\[13\]\_See 10 C. L. 1139.-It is within the discretionary power of the legislature to classify 4 and to regulate the business of hawking and pedtling within its territory.\[8\] A municipality also has such power provided it does not exceed the limitations of the legislative power,\[9\] and a license regulation by a city is not invalid because it excludes persons licensed by the county.\[1\] The power to provide for the licensing and regulation of peddlers implies the power of prescribing the amount of the license and of enforcing its payment.\[9\] To avoid a regulation it must appear beyond a reasonable doubt that it contravenes the constitution.\[9\] A license is not a tax upon property but is a police regulation.\[10\] A license is no protection as to acts beyond its terms.\[11\]

## 8. \_Who may become licensees.\[12\]\_See 6 C. L. 906

\_Officenses and prosecution.\[13\]\_See 10 C. L. 1139.-It is within the discretionary power of the legislature to classify 4 and to regulate the business of hawking and pedtling within its territory.\[8\] A municipality also has such power provided it does not exceed the limitations of the legislative power,\[9\] and a license regulation by a city is not invalid because it excludes persons licensed by the county.\[1\] The power to provide for the licensing and regulation of peddlers implies the power of prescribing the amount of the license and of enforcing its payment.\[9\] To avoid a regulation it must appear beyond a reasonable doubt that it contravenes the constitution.\[9\] A license is not a tax upon property but is a police regulation.

- 8. _Rights and liabilities to penalties and forfeitures, and the policy of the law._\[19\] See 10 C. L. 1160--Forfeitures are not favored by courts of equity.20 Equity will not enforce a forfeiture 21 unless it is clearly contemplated by an existing contract that it shall do so,22 or when it works equity and protects the rights of the parties.23 Liability for a penalty imposed by statute may attach to the master because of the violation of such statute by his servant.24

\_Statutory penalties.\_See 10 C. L. 1160--Penal statutes are to be strictly construed.25 A penalty will not be enforced for a mere technical violation of a penal statute.26 An admitted violation of the public health law by a druggist makes it obligatory upon the court to render judgment for the board of pharmacy for the statutory penalty.27

- 3. _Remedies and procedure._\[28\] See 10 C. L. 1101--There can be no forfeiture of property unless the forfeiture be judicially determined.29 A proceeding to collect a penalty is a civil suit and has all its ordinary incidents,30 but a suit for the recovery of a penalty for violation of state penal laws is in substance a quasi criminal prosecution, although civil in form.31 The action of debt is the appropriate remedy for partnership business was unsatisfactory, 7 days after demand, to show that he had held not an action to enforce a forfeiture, strictly compiled with all requirements of Whitney v. Dewey (C. C. A.) 158 F 385.
- 19. \_Search Note: See notes in 4 C. L. 967: 6 I. 988; 24 C. R. A. 251; 32 I. 469; 3; 4. R. A. (N. S.) 185; 14 C. R. A. (N. S.) 186; 603; 11 M. 667; 12 I. 469; 30 I. 487; 15 I. 646, 738, 983; 14 A. S. K. 352.

See, also, Forfeitures, Cent. Dig. 11 -13: 1 Dec. Dig. 11 -11: 1 Penalties, Cent. Dig. 11 -21: 20. Dig. 11 -25: 20. Simple default in payment of installation of rent held not to constitute wrong justifying forfeiture of tease when payment of amount due would be ample to make aggivered party whole. Patterson v. Northern Trust Co., 132 Ill. App. 208.

- 21. \_Lessee brought suit for specific performance of covenant to furnish light.

- 22. _Right of forfeiture under option to purchase mining lands waived by accept-ance of mortitage. Spedden v. Sykes_

- \[Wash.\] 98 P 752. Forfeiture of lease declared for breach of covenants as to sub-letting and specified use of premises, lease expressly providing thereof. Denceke v. Miller \[Iowa\] 119 N NVV 380.

- 23. _Forfeiture of mining lease decrered for breach of covenants to operate cofinvations,_

- 24. _Right of forfeiture under option to purchase mining lands waived by accept-ance of mortitage. Spedden v. Sykes_

- \[Wash.\] 98 P 752. Forfeiture of lease declared for breach of covenants as to sub-letting and specified use of premises, lease expressly providing thereof. Denceke v. Miller \[Iowa\] 119 N NVV 380.

- 25. _Forfeiture of mining lease decrered for breach of covenants to operate cofinvations,_

- 26. _A penalty will not be enforced for a mere technical violation of a penal statute.26 An admitted violation of the public health law by a druggist makes it obligatory upon the court to render judgment for the board of pharmacy for the statutory penalty.27_

- 3. _Remedies and procedure._\[28\] See 10 C. L. 1101--There can be no forfeiture of property unless the forfeiture be judicially determined.29 A proceeding to collect a penalty is a civil suit and has all its ordinary incidents,30 but a suit for the recovery of a penalty for violation of state penal laws is in substance a quasi criminal prosecution, although civil in form.31 The action of debt is the appropriate remedy for partnership business was unsatisfactory, 7 days after demand, to show that he had held strictly compiled with all requirements of Whitney v. Dewey (C. C. A.) 158 F 385.

- 3. \_Search Note: See notes in 4 C. L. 967: 6 I. 988; 24 C. R. A. 251; 32 I. 469; 3; 4. R. A. (N. S.) 185; 14 C. R. A. (N. S.) 187; 50 C. A. S. R. 557; 86 I. 48.

See, also, Forfeitures, Cent. Dig. 11 -13: 1 Dec. Dig. 11 -25: 11; Penalties, Cent. Dig. 11 -25: 11; 32 I. 469; 33 I. 47; 34 C. R. A. (N. S.) 187; 50 C. A. S. R. 557; 86 I. 48.

See, also, Forfeitures, Cent. Dig. 11 - the collection of penalties prescribed for the violation of statutes \[32\] and must be brought by the aggrived party.\[33\] Any agreement or act leading one to believe that a forfeiture will not be incurred is a waiver of the right to declare such forfeiture.\[34\] It is no defense to an action for a penalty imposed for noncompliance with a statute that prior to the commencement of the action the requirements of the statute had been fulfilled.\[38\] The burden is upon the party setting up forfeiture to show the existence of facts justifying it.\[36\] To recover a penalty for the violation of statute, the plaintiff must prove the facts by a preponderance of evidence; proof beyond a reasonable doubt is not required.\[37\] Where a penal statute provides for a minimum and a maximum penalty, it is within the discretion of the trial court to fix the amount of such penalty.\[38\]

## 10.11 Pensions.

The scope of this topic is noted below.\[40\]

Special examinations as to the merits of pension claims are authorized by federal statute,\[41\] and the subpoenaed witnesses are subject to direct and cross-examination.\[42\] At such proceedings the examiner has no authority to extort confessions of criminal violations of the pension laws from a witness.\[43\]

The federal statute exempting pension money is only for protection until the funds are received by the pensioner, after which it is liable for his debts.\[44\] Land purchased with pension money and occupied by husband and wife as a homestead is not exempt from execution on an indebtedness against both husband and wife antedating the acquisition of the homestead.\[45\]

## 10.2 Peonage\] Performance, see latest topical Index.

and 82B, relating to sale of cocaine without prescription. Zito v. People, 14" III. App. 611. A judgment for a penalty for unlawful sale of cocaine may also provide for imprisonment until paid. Id.

32. United States v. Baltimore, etc., R. Co. 1C. C. A.159 F 83.

01. Attorney who made trp on surface car for sole purpose of having his demand for transfer refused in order to obtain evidence to be used in litigation against company not an "agrived party" within meaning of Railroad Law, Laws 1892, p. 1406. c. 676, $ 104. Bull v. New York City R. Co., 192 N. Y. 861, 85 NE 858.

01. Lesser who authorized his lessee to make journey for purpose of perfecting title to premises held to have waived right to declare forfeiture of lease. Pyle v. Henderson \[Vv. Va.\] 63 SE 762.

01. Violation of statute requiring foreign corporations to file copy of charter with secretary of state not purged by filling before commencement of action. State v. S. P. Pond Co. \[Mo. App.\] 115 SW 505.

01. In action on life insurance policy, payment on which was refused because of nonpayment of assessments, held that deafailed to show that assessment was necessary and properly leveled, which facts were under contract requisite to forfeiture of policy. King v. Hartford Life & Annuity Ins. Co., 138 Mo. App. 612, 114 SW 65.

01. Suit to recover penalty for violation of federal statute relating to time in which livestock may be kept in cars while in transit. United States v. Southern Pac. Co., 162 F 412.

01. For violation of Full Crew Act, March 1997.

01. 1907, Acts 30th Leg. p. 92, c. 41, pro-prescription. Zito v. People, 14" III. App. 611. A judgment for a penalty for unlawful sale of cocaine may also provide for imprisonment until paid. Id.

01. United States v. Baltimore, etc., R. Co. 1C. C. A.159 F 83.

01. Attorney who made trp on surface car for sole purpose of having his demand for transfer refused in order to obtain evidence to be used in litigation against company not an "agrived party" within the legal meaning of Railroad Law, Laws 1892, p. 1406. c. 676, $ 104. Bull v. New York City R. Co., 192 N. Y. 861, 85 NE 858.

01. Lesser who authorized his lessee to make journey for purpose of perfecting title to premises held to have waived right to declare forfeiture.\[34\]

declare forfeiture of lease. Pyle v. Henderson \[Vv. Va.\] 63 SE 762.

35. Violation of statute requiring foreign corporations to file copy of charter with secretary of state not purged by filling before commencement of action. State v. S. P. Pond Co. \[Mo. App.\] 115 SW 505.

01. In action on life insurance policy, payment on which was refused because of nonpayment of assessments, held that deafailed to show that assessment was necessary and properly leveled, which facts were under contract requisite to forfeiture of policy. King v. Hartford Life & Annuity Ins. Co., 138 Mo. App. 612, 114 SW 65.

01. Suit to recover penalty for violation of federal statute relating to time in which livestock may be kept in cars while in transit. United States v. Southern Pac. Co., 162 F 412.

01. For violation of Full Crew Act, March 1997.

01. Suit to recover penalty for violation of federal statute relating to time in which livestock may be kept in cars while in transit. United States v. Southern Pac. Co., 162 F 412.

01. For violation of Full Crew Act, 12 Cur. Law. PERJURY $ 1. PERJURY.

**8 1. Elements of the Offense, 1313. | $ 2. Prescution and Punishment, 1314.**

_The scope of this topic is noted below.46_

SS 1. _Elements of the offense.47_See 10 C. L. 1162_--Perjury may be assigned upon false statements48 willfully and knowingly made,49 under lawful oath 49 as to material matters51 in a tribunal having jurisdiction of the proceedings,52 or before a competent officer on occasions where an oath is required by law.58 It is no defense to a prosecution for perjury alleged to have been committed during an investigation by the grand jury that an unauthorized person was present.54 Perjury may be prodi-

46. Includes all matters common to the (discrefting other evidence. Commonwealth crime of perjury. Excludes matters common to all crimes (see Criminal Law, 11 C. L. $ 940: Indictment and Proscution, 12 C. L. 1). 47. Search Notei See notes in 4 C. L. 975; $ L. R. A. (N. S.) 237; $ L. Ann. 183; $ 14.870, 945; $ 14.881; 11 14.711. See, also, Perjury, Cent. Dig. 18 1-63; $ 163; $ 164; $ 165; $ 166; $ 167; $ 168; $ 169; $ 170; $ 180; $ 181; $ 182; $ 183; $ 184; $ 185; $ 186; $ 187; $ 188; $ 189; $ 190; $ 191; $ 192; $ 193; $ 194; $ 195; $ 196; $ 197; $ 198; $ 199; $ 197; $ 198; $ 199; $ 199; $ 199; $ 190; $ 191; $ 192; $ 193; $ 194; $ 195; $ 196; $ 197; $ 198; $ 199; $ 199; $ 198; cated upon a promissory oath.\[58\] One who knowingly makes a false verification to a complaint is guilty of perjury.\[56\] The authority of the officer to administer the oath is a question of law.\[57\]

_Suboration of perjury.\[58\]_ 10 C. L. 1182--Where the crime of perjury is committed at the instigation or procurement of another, it is termed "subornation of perjury" in the party instigating it, and is an offense at common law.\[58\] It consists of two elements; the commission of perjury by the person suborned, and willfully procuring or inducing him to do so by the suborner.\[59\] An attempt to instigate or persuade a person to commit perjury is an offense at common law notwithstanding that perjury was not actually committed.\[60\]

SS 2. _Prosecution and punishment.\[61\]_ _Indictment.\[58\]_ 10 C. L. 1189--An indictment for perjury is sufficient if it sets forth the substance and effect of the testimony alleged to be false with sufficient clearness to make the meaning apparent.\[62\] The indictment must directly and specifically state wherein the matter in regard to which perjury is alleged was false,\[63\] and if such testimony was given before the grand jury, the matter under investigation must be specified.\[64\] The materiality of the false testimony need not be specifically alleged,\[65\] and the authority of the officer who administered the false oath may be alleged generally.\[66\] In negativing the defendant's present before law authorizing his presence \[form .of Indictment does not change con-steument elements of offense. State v. Cline, Misc. 410, 113 NYS 338.\] 148 N. C. 640, 61 SE 522. 55. Where managers of primary election made false return of number of ballots east for candidates, they were guilty of perjury for violation of their official oath although such oath was taken before any votes cast. Norton v. State \[Ga. App.\] 63 SE 662. 56. State v. Luper \[Or.\] 95 P 811. 57. Whether police judge had power to swear defendant on charge of gambling. Howell v. Com. \[Ky.\] 113 SW SW 881. 58. State v. Sharfner \[Del.\] 69 A 1004. Defendants who entered into conspiracy for purpose of procuring entrymen on public lands to make afflavits that they entered lands for their individual use when in fact they intended immediately to con-vey to defendants under pre-existing contract held guilty of subornation of perjury although they never intended to fulfill such contracts, but simply proposed to defavad endrymen out of their location fees. Nickell v. U. S. \[C. C. A.\] 161 F 702. 55. Bell v. State \[Ga. App.\] 63 SE 860. 66. To establish offense, matter in regard to which false oath was sought to be procured must have been known to be false by both the person attempting to persuade and the one persuaded. State v. Sharfner \[Del.\] 69 A 1004. 61. 56. 56.

12 Cur. Law. PERJURY SS 2.

oath where he was sworn only to his belief; the indictment should aver either that he did not believe what he swore, or that he believed and well knew the statements made by him under oath were false.67 If two or more persons join in the same false affidavit, they may be jointly indicted.68 If an indictment for false swearing charges an offense under any statute, it is sufficient although purporting to be drawn under another.69 Where the indictment contains several distinct charges of perjury, proof of any one of them is sufficient.70 Where several alleged false statements relate to the same subject-matter and are material to the same investigation, they may properly be joined in one count.71 An indictment containing only one count cannot be in part eliminated as to a material portion and the accused tried upon the remainder.72

\_Suboration of perjury.\_See 10 C. L. 1104

\_Variance.\_See 10 C. L. 1164.--If the proof of the testimony alleged to have been given substantially supports the narration of it in the indictment, there is no fatal variance.73 When the state undertakes to particularize the offense, the proof must correspond with the allegation.74

\_Admissibility of evidence.\_See 10 C. L. 1164.--The record of the case in which the alleged perjury was committed is admissible for the purpose of showing the jurisdiction of the court, the regularity of the proceedings, and the materiality of the testimony,75 but it cannot be considered by the jury as proof of perjury.76 Admissions,77 declarations 78 and all facts tending to show that the defendant knew his testimony to be false, are admissible.79 Where the perjury is assigned upon false oath as to belief and recollection, evidence of defendant's mental state and memory

United States commissioner as to test-

certain house on the place of G. Grissom many for proving up homesetaad claim was

v. State \[Ark.\] 113 SW 1011.

sufficient when it alleged general authority of commissioner to administer an oath and

legend death taken before "clerk or judge" to take testimony in that class of cases, al-

and proof showed it was taken before depe-

though it did not allege commissioner's authority in that particular case since court

17. Indictment for submation of perjury would take judicial notice thereof. Barnard v. U. S. \[C. C. A.\] 162 F 618.

01. Indictment averring that defendant swore he did not believe and that he did not recall that he ever approached certain

so is admissible. \[80\] On prosecution for subornation of perjury, it is error to admit in evidence the informtaion, minutes of arraignment and the plea of guilty of the person suborned. \[81\]

_Sufficiency of evidence._ See 10 C. L. 1168. It is not necessary to establish motive for the perjury. \[82\] The falsity of the testimony must be shown affirmatively. \[83\] In order to convict, such falsity must be proved by two witnesses, or by one witness and corroborating evidence. \[84\] To convict upon documentary evidence alone, such evidence must be as strong and convincing as is required in the case of oral testimony. \[85\] The ordinary rule of proof beyond a reasonable doubt prevails. \[86\] The guilt of both the person suborned and the suborner must be proved upon the trial of the latter. \[87\] The fact of subornation may be proved by the uncorroborated testimony of the suborned witness himself, \[88\] but the fact of the perjury must be established by the testimony of two witnesses, or of one witness and corroborating circumstances. \[89\]

**Perpetuation of testimony, see latest topical index.**

**PERPERTUITIES AND ACCUULATIONS.**

**SS 1. The Rule Agnost Perpetuities and Ac-**

**SS 2. Computation of the Period and Remote-**

**enmulations; Its Nutre and Applica-**

**SS 3. Operation and Effect; Complete and Partial Invalidity, 1320.**

\*\*SS 1. The rule against perpetuities and accumulations; its nature and applications. \[91\] See 10 C. L. 1167.\*\*The general policy of the law is against unlimited restrictions on the right of alienation of property, \[92\] and limitations of estates which contravene this policy are denominated perpetuities. \[93\] The application of the rule against perpetuities is not determined by the character of the estate conveyed \[84\] but

**SS 3. State v. Coyne, 214 Mo. 344, 114 SWV 8. \[Ga. 81. Since subornation of perjury and perjury are distinct or offenses, and confession is admissible against none but the person confessing. State v. Justesen \[Utah\] 89 P 466. \[Ga. 82. State v. Hoel, 17 Kan. 334, 94 P 267. \[S3. Mere probability of falsity not sufficent. Baker v. State \[Ark.\] 113 SWV 205. Evidence as to falsity of statement by defendant that he had not engaged in die game held sufficient to support conviction for perjury. Howell v. Com. \[Ky.\] 113 SWV 881. \[S4. Rule as to sufficiency of evidence satinfled by testimony of two witnesses and contradictory statement of defendant. Gris-**

**SS 4. Evidence consisting of answer to question in ship's manifest not sufficient to convict on charge of perjury in proceedings for naturalization. Sullivan v. U. S. \[C. A.\] 161 F 25. \[S6. Charge that jury must be satisfied beyond a reasonable doubt of truth of every fact or circumstance alleged as tending to establish perjury, and it must also be sat-**

\*\*SS 4. On the rule against perpetuities and accumulations; its nature and applications. \[91\] See 10 C. L. 1168.\*\*The rule against perpetuities and accumulations; its nature and applications. \[92\] See 10 C. L. 1167.\*\*The application of the rule against perpetuities is not determined by the character of the estate conveyed \[84\] but

**SS 5. State v. Coyne, 214 Mo. 344, 114 SWV 8. \[Ga. 81. Since subornation of perjury and perjury are distinct or offenses, and confession is admissible against none but the person confessing. State v. Justesen \[Utah\] 89 P 466. \[Ga. 82. State v. Hoel, 17 Kan. 334, 94 P 267. \[S3. Mere probability of falsity not sufficent. Baker v. State \[Ark.\] 113 SWV 205. Evidence as to falsity of statement by defendant that he had not engaged in die game held sufficient to support conviction for perjury. Howell v. Com. \[Ky.\] 113 SWV 881. \[S4. Rule as to sufficiency of evidence satinfled by testimony of two witnesses and contradictory statement of defendant. Gris-**

**SS 6. Evidence consisting of answer to question in ship's manifest not sufficient to convict on charge of perjury in proceedings for naturalization. Sullivan v. U. S. \[C. A.\] 161 F 25. \[S6. Charge that jury must be satisfied beyond a reasonable doubt of truth of every fact or circumstance alleged as tending to establish perjury, and it must also be sat-**

**SS 7. Evidence consisting of answer to question in ship's manifest not sufficient to convict on charge of perjury in proceedings for naturalization. Sullivan v. U. S. \[C. A.\] 161 F 25. \[S6. Charge that jury must be satisfied beyond a reasonable doubt of truth of every fact or circumstance alleged as tending to establish perjury, and it must also be sat-**

\*\* 18 Cur. Law. PERPERTUITIES AND ACCUMULATIONS SS 2. 1317 by the answer to the question whether the estate or interest will necessarily vest within the time fixed thereby."5 At common law there was no limitation on the number of lives in being during which the alienation could be suspended." A limitation depending on two contingencies, one of which must happen if at all, but the other of which may or may not happen within the time allowed, will take effect if the first mentioned contingency actually happens," but it will not take effect by reason of the happening of the second, even within the legal period." Where a testamentary power which must be exercised if at all within the lawful period can be legally exercised, it is not rendered invalid because its unlawful execution would also be within its terms." The validity of a trust which may continue beyond the statutory period depends on the alienability of the estate by joint action of trustee' and beneficiary before the expiration of that period.' The doctrine of perpetuities will not prevent an owner from contracting not to sell his property during his lifetime," or from giving another person an option to take the property at the owner's death at a stipulated price," nor does the rule apply to reversions." A renewal clause in a lease, which does not bind the heirs of the parties, does not create a perpetuity." Too remote vesting as well as undue suspension of the power of alienation is condemned by the New York statute."

SS 2. _Computation of the period and remoteness of particular limitations." See_

19 C. L. 1167.--A limitation for a period not measured by lives is invalid." The remoteness of estates which a special power purports to give must be measured from the time of its creation as respecting the common-law rule against perpetuities."

Trust Co., 112 NYS 370. Illegality of sus-

power to appoint to another for life, and pension is deterministic as of date of testa-

with authority in last apophone to will tor's death. Simpson v. Trust Co., 119 Arp.

principal to whom she might choose, it not Dlv. 260, 113 NYS 370. Under statutes on ab-

being assumed last appointee would so ex-

solute ownership and restraint of aliens-

ercise her power as to render execution

thinon, it is not sufficient that estimates created

mashand's power invalid. In re McClellan's

may by subsequent events be terminated

Flatate, 221 Pa. 261, 70 A 737.

within prescribed period, but to be valid

L. Though ordinarily trusts do not offend

such states must be so limited that in every

againstature of perpetuities where trustee

possible contingency they will absolutely

has power of sale and beneficiary may dis-

terminate within that period. In re Wilcox, 194 N. Y. 288, $7 NE 497. Discretionary

ceeds two lives and 21 years (In re Adel-

power of trustees to hold for 25 years prop-

many's VII \[IVis.\] 119 NWP 929), statute is

ery which veated in residuary legates at

testator's death held valid. Lembeck v.

by poredi prescribed thereby where

Lemheck \[N. J. Err. & App.\] 17 A 240.

alination by trustee and beneficiary is for-

9%. That duration of trust was limited

for llves of over forty persons held not ob-

considered a trust, held invalid, no power

noxious. Fitchie v. Brown, 211 U. S. 821, 53 Law Ed. 202.

20%. fiddling alienation of trust estate

9%. Quinlan v Wickman, 238 Ill. 39, 84 NE

9%. Reminder over in case life (emant died

"leaving no issue which shall attain the

age of 21" held not sustainable as based on

should a trust fall held not to invalidate

two contingencies; one valid, that life ten-

ant should die without issue, and the other

invalid, that no issue should attain 21, so

that fact that life tenant died without issue

did not vest remainder. In re Wilcox, 194 N. Y. 288, 87 NE 497, rvg. 125 App. Dlv. 152,

109 NYS 654.

9%. Quinlan v. Wickman, 238 Ill. 89, 84 NE

9%. Limitation if person in being died

without children or if children, if any, did

before youngest should become 80 years.

Id.

9%. Power of appointment among donee's

"issue." Bartlett v. Sears \[Conn.\] 70 A 83. Where testatrix be

9%. Where testatrix be one of the most

or to husband with power of disposal and

to appoint any remainder at his death, huns-

bands execution of power was valid, though

be willed a life estate to one person with

that is, 211 NYS 370. Illegality of sus-

power to appoint to another for life, and

person is deterministic as of date of testat-
Under a general power giving the donee the power to appoint at his pleasure, the period of suspension was computed at common-law from the time of the exercise of the power.10 Where several trusts are carved out of a fund each will be considered by itself,11 and if each trust is made distinct it is not necessary that testator actually sever the trust fund.12 A corporate annuitant will not be deemed a life in being so as to invalidate a trust.13 Particular limitations are considered below.14

Footnote 12 Cur. Law. PERPERTULTILES AND ACUALUATIONS SS 2.1319

_Charitable gifts See 10 C. L. 1169_ are usually exempted from the operation of the rule.16

\_Accumulations of income._See 10 C. L. 1169_--An accumulation of interest for one life is valid at common law,19 but by statute accumulations for a period exceeding a minority are often prohibited.17 When no valid direction is given for the aco- or other should become of age, when property should be divided between wife and six children, held valid, suspension being for only a minority. In re Mikantowicz's Will, 60 Misc. 273, 113 NYS 278. Trustes for minority of three grandchildren, share of each grandchild to be paid to him when he arrived at 21, and to survivors should he die before that age and should survivors then be of age, and if such survivors were not then of age, to be added to fund held in trust for them, held not invalid at least in so far as pertaining to life of each grandchild. In re Buchner, 60 Misc. 287, 113 NYS 625. To 26 for life, remainders to E9's adult children absolutely, and, as to minor children, their shares to be held until their respective majorities with provision that should any one die in minority his share should be divided between and added to shares of survivors. Held sustainable on theory that testator intended that share of dead infant should at once be paid over to surviving brothers and sisters, regard-less of age. Hardenbergh v. McCarthy, 114 NYS 1078. Will creating trust in favor of two children and heirs and next of kin of such children in case of death of either or both, and providing several ways of terrorinating trust held valid since trust could not extend beyond life of grandchild living at death of testator. Stephens v. Dayton, 220 Pa. 622, 70 A 127. Ninety-nine year lease with evenvant on part of lesser, heirs and assigns, to convey fee to lessee, heirs and assigns on payment of specified amounts. Hollander v. Central Metal & Supply Co. \[Add.\] 71 A 442. Legacy to town council to hold in perpetual trust for ornamentation and repair of testator's burying ground held saved from rule against perpetuities by Gen. Laws 1896, 40, 835, authorizing town councils to receive and execute such trusts. Rhode Island Hospital Trust Co. v. Varwick Town Council (R. L.) 71 A 644. Common-law rule held not violated by will creating trust for "as long a period as is legally possible" to terminate when the law required it "under the statute." to pay annuities therefrom to certain designated annuitants and their helrs, and providing for distribution of trust fund on termination of the trust to those then entitled to the annuities, since testator must have in- tended to measure duration of trust by lives of annuitants named in will and 21 years, and that distribution of entire trust estate should take place at expiration of the trust term. Fitche v. Brown, 211 U. S. 321, 63 Law. Ed. 202.

_Held invalid:_ Income to C for life then found to her "issue" as per her will, if any, and if no will then to be divided equally among such "issue," held void as to remainder in absence of will, "issue" being held to mean "descendants." Bartlett v. Sears \[Conn.\] 70 A 33. To wife for life, then to brother and sister, and, on death of either, to be divided equally among such "issue" as per her will, if any, and if no will then to be divided equally among such "issue", held void as to re-mander in absence of will, "issue" being held to mean "descendants." Bartlett v. Sears \[Conn.\] 70 A 33. To wife for life, then to brother and sister, and, on death of either, to be divided equally among such "issue", held void as to re-mander in absence of will, "issue" being held to mean "descendants." Bartlett v. Sears \[Conn.\] 70 A 33. To wife for life, then to brother and sister, and, on death of either, to be divided equally among such "issue", held void as to re-mander in absence of will, "issue" being held to mean "descendants." Bartlett v. Sears \[Conn.\] 70 A 33. To wife for life, then to brother and sister, and on death of either, to be divided equally among such "issue", held void as to re-mander in absence of will, "issue" being held to mean "descendants." Bartlett v. Sears \[Conn.\] 70 A 33. To wife for life, then to brother and sister, and on death of either, to be divided equally among such "issue", held void as to re-mander in absence of will, "issue" being held to mean "descendants." Bartlett v. Sears \[Conn.\] 70 A 33. To wife for life, then to brother and sister, and on death of either, to be divided between and added to shares of survivors. Held sustainable on the theory that testator intended that share of dead infant should at once be paid over to survive brothers and sisters, regardless of age. Hardenbergh v. McCarthy, 114 NYS 1078. Will creating trust in favor of two children and heirs and next of kin of such children in case of death of either or within the age of 21" held void, non-manding trust held valid since trust could not extend beyond life of grandchild living at death of testator's death. Id., rrg. 125 App. Div. 152, 109 NYS 564. Rule applicable to both reality and person-alty. Id. To daughter and her children for life of daughter, then to surviving children on youngest arriving at 30, held void as to children, their interests not necessarily v. Ventium 21 132

eumulation of rents and profits pending a legal suspension, such rents and profits will go to the persons presumptively entitled to the next eventual estate.\[18\]

SS 3. _Operation and effect; complete and partial invalidity.\[19\]-See 10 C. L. 1171_

Invalid provisions not integral parts of a general scheme may be ignored.\[20\] Where a remainder in trust during the minority of issue is coupled with an absolute gift to them on their arrival at age, the invalidity of the trust entitles the issue to the trust fund on the death of the life tenant.\[21\]

**Personal Injuries; Personal Property; Persons; Petitions, see latest topical index.**

**PETITORY ACTIONS.\[20\]**

**The scope of this topic is noted below.\[23\]**

Plaintiff must recover upon the strength of his own title and not on the weakness of that of a defendant in possession,\[24\] and must show title to the particular property in dispute,\[25\] and a like rule applies to a defendant who by claim of title converts an action into a peitory form.\[26\] Where a succession is accepted by one un der the benefit of inventory and the de cujus dies testate, his heir and universal leg-atee under the will, cannot recover the property as an heir at law ignoring the will, and thereby avoid all accounting to an adjudicatee of property of the succession who is an innocent third person," nor, if the heir is entitled to the property, can he recover the same without first tendering the amount of the purchase price.28 In a petitory action, a defendant possessor in bad faith 29 cannot recover the value of improvements in their nature inseparable from the soil except by way of set off," nor for the value of buildings and constructions separable from the soil unless the plaintiff elects to keep them," but he may recover the necessary expenses incurred in the preservation of the property." Where the plaintiff does not elect to keep the separable buildings and constructions, the rental value of the property should be measured by the rental value of the property without the improvements.23 The owner cannot recover rents anterior to his acquisition of title since such rents belong to the prior owner and do not pass to the vendee unless specially assigned.24

**Pews:** Photographs;\*\* Physical Examination;\*\*Phystelans and Surgeons;\*\*Pilots, see latest topical index.

**PIPE LINES AND SUBWAYS.24**

_The scope of this topic_ is noted below.

The right of a corporation to lay conduits in the public streets must be answered by reference to its articles of incorporation and the acts of the legislature under which they were executed," and the consent of the municipality 38 for which reasonable conditions may be imposed if no contract obligation is violated thereby.39 The fight to construct a separate conduit should be refused where it does not appear that the conduits already constructed are inadequate.40 The purposes for which lessee of ducts in subways may use the ducts depend upon the construction of

\*\*27.\*\*Hibernia Bank & Trust Co. v. Whitney \[La.\] 48 S 314.

\[28. Return of price essential to recovery or water (see Waters and Water Supply, 10 of property sold to pay debts, if sale is vold. Hibernnia Bank & Trust Co. v. Whit-eminent domain is also treated elsewhereney \[La.\] 48 S 314.

\[29. Possessor knowing that he has no title is necessarily one in bad faith. Quaker portion, Incorporated under Laws 1848, p. Really Co. v. Bradbury \[La.\] 48 S 570.

\[30. Set-off to plaintiff's demand for fruits and revenues. Quaker Reality Co. v. Bradbury \[La.\] 48 S 570.

\[31. Quaker Reality Co. v. Bradbury \[La.\] 48 S 570.

\[32. For taxes and repairs on works belonging to owner. Quaker Reality Co. v. Bradbury \[La.\] 48 S 570.

\[33. 34. Quaker Reality Co. v. Bradbury \[La.\] 48 S 570.

\[34. Quaker Reality Co. v. Bradbury \[La.\] 48 S 570.

\[35. See 10 C. L. 1171.

\[36. See 10 C. L. 1171.

\[37. See 10 C. L. 1171.

\[38. See note in 6 Ann. Cas. 390.

See, also, Electricity, Dec. Dig. # 9; Emi-mail: monant Domain, Cent. Dig. # 80, 313; Dec. Dig. # 34, 119 (10); Gas. Cent. Dig. # 2, 3; Dec. Dig. # 17, 9; Municipal Corporation, Cent. Dig. # 56, 563; Dec. Dig. # 207; Ware-housemen, Dec. Dig. # 25(6); Water and Water Courses, Cent. Dig. # 147, 223-228; Dec. Dig. # 1444; 168, 159, 184; 23 A.

\[39. See 1144. 168, 169, 184; 194; 23 A.

the lease made in pursuance with the rapid transit act.\[41\] A special franchise to operate a subway acquired under assignment of a contract with a city is exempt from special franchise tax by the exemption of the tax law of a municipality from such tax.\[42\] A municipality is not liable for an injury caused by the explosion of an inordinate quantity of dynamic stored in a street by a subcontractor in constructing a section of a rapid transit subway.\[43\] The legislature has power to grant owners of gas well the right of eminent domain for the purpose of piping their products to market,\[44\] and provide for the use of the highways in the state as well for through travel as for the through transmission of gas, water or other commodities from one place to another, without regard to the question of whether any municipality through which it may pass or those who own the soil of the ways subject to the public easement therein are served or in any way benefited by such use.\[45\] The laying of pipe lines for the transmission of gas through and under a public street does not impose such additional servitude as entitles the owners of the fee to compensation before a permit can issue,\[46\] nor does the grant of a location for pipe lines under the express term of the statute effect the right or remedy to recover damages for any injury caused to persons or property by the doings of the company,\[47\] nor is it material that part of the location of the proposed line is to run through private land.\[48\] The jurisdiction of a board of aldermen and of the board of gas and electric light commissioners, on appeal, of a petition for a location, is not affected by the fact that part of the location is to run through private land, and that it is unnecessary that the termini at each side of the private land must be stated in the petition,\[49\] as where the alderman neglects for 30 days to act upon a petition, the board of gas and electric light commissioners acquires upon the company's appeal power to grant location to the company.\[50\] In a proper case mandamus will lie to compel the issuance of a permit to lay pipe lines,\[51\] but when a line constitutes but a private use of the highway,\[52\] the mere fact that the public is permitted to use water therefrom and that one is duly authorized to lay such pipe does not entitle one to maintain the same without the consent of the owner or the fee to the land through which it runs.\[58\] A lease granting to a gas company the exclusive right to construct pipe lines across 12 Cur. Law. PLEADING SS 1. 1383

the lessor's land is void as against public policy in so far as it grants an exclusive right.54

Place of Trial; Plank Roads; Plate Glass Insurance, see latest topical index.

PLEADING.

8 1. Principles Common to All Pleadings, & G. Cross Complatats and Answers, 1362. 1323. Interpretation and Construction in General, 1331. Profert and & S. Supplemental Pleadings, 1374. 1334. Exhibits, 1334. 1336. 1337. 1338. 10. Right to Object, and Mode of Asserting & 2. The Declaration, Count, Complaint, or & Defenses and Objections; Whether by 1383. 1338. 1338. 1338. 1338. 1338. 1338. 1338. 1339.

1334 PREADING $ 1. 12 Cur. Law.

Where the court is of limited or special jurisdiction, facts to bring the case within its jurisdiction must be alleged."2 While the allegation of the time a material fact alleged took place is seldom material,"45 yet pleadings in personal actions must allege every traversable fact to have taken place on a particular day.64 One seeking to avail himself of a statute must allege facts sufficient to bring himself within its provisions.65 Foreign statutes must be pleaded if relied upon.66 Defenses need not be anticipated or negatively,67 but where a defense is suggested by averment essential to the cause of action, it must be shown not to exist.68

ez. See jurisdiction, 12 C. L. 458; Justices of the Peace, 12 C. L. 496. Where a complaint states material facts essential to give the court jurisdiction, it is sufficient. McDanule V. Stables (Tex. Civ. App.) 113 SW 596. All jurisdictional facts must be alleged, White v. Atlanta B. & A. R. Co. \[Ga. App.\] 63 SE 234. 64. Gordon v. Journal Pub. Co. \[Vt.\] 69 A. 742. Complaint not denurnable because it shows the cause to be barred. Bulkv v. Norwich & W. R. Co. \[Conn.\] 70 A 1021. An allegation of time originally immaterial may become material by reason of subsb-quent pleading. Such result, however, does not follow from denurning. Id. In pleading a judgment it is proper but not always necessary to allege the date thereof, and failure to do so is immaterial where no Issue was made rendering the date important. United States Fidelity & Quar. Co. v. People \[Colo.\] 88 P 828. 64. Words "on about" are indefinite and uncertain. Gordon v. Journal Pub. Co. \[Vt.\] 65 A 742. The requirement of certainty is not relaxed by the rule that a variance between the time alleged and proved is not fatal. Id. 66. This rule applies to a pleading setting up a homestead right. Gillespie v. Fulton Oil & Gas Co., 236 Ill. 188, 86 NE 219. Where a pleader desires to avail himself of a statutory privilege or right to be granted on particular facts, he must allege such facts. Perkins v. Loux, 14 Idaho, 607, 95 P 694. In order for a plaintiff to avail himself of the protection of the factory act, it is sufficient to plead negligence bringing the case within the statute; specific reference need not be made to the statute. Fowler Packing Co. v. Enzenberger, 77 Kan. 406, 94 P 95. Where a complaint is founded on a statute excepting certain acts, it must show the case without the exception. Chicago goe A E. L. R. Co. v. Hamilton (Ind. App.) 85 NE 1044. In action based on the Act of Feb. 28, 1903, limiting hours of service of Feb. 28, 1903, limiting hours of service of Feb. 28, 1903, limiting hours of service of Julrod employees but providing that it shall not apply to cases of accident, etc., an allegation that no necessity existed for continuous employment held insuMicent. Id. Where an action is brought under a public statute, it is necessary to refer to the section number of the statute. McCenzie v. United R. Co. \[Mo.\] 116 SW 13. Complaint in statutory action must state facts bringing the case within the statute, and any omission cannot be supplied by indemment. Zeller, McClellan & Co. v. Vinograd \[Ind. App.\] 85 NE 378. Under laws of Georgia requiring invalidity of statute to be alleged by special plea and Rev. St. 814 requiring pleadings in federal courts to conform to rules of practice of state courts, 12 Cur. Law. PLEADINU $ 1.

**A** pleading may properly be entitled in the initials of the Christian name of the defendant." In action on account plaintiff should sue in his Christian name." Written pleadings are not always necessary." The paragraphs of a long pleading should be numbered," though in some jurisdictions this practice is not favored."

Whatever circumstances are necessary to constitute a cause of action or ground of defense must be alleged."

Allegations should be definite and certain," direct and in issueable form," and

69. Minchew v. Nahunts Lumber Co. \[Ga. Co. v. Monroe, 79 S. C. 564, 61 SE 92. All App.\] 62 SE 716.

See Parties, 12 C. L. 1175, as to designa-

couched in such plain and concise language

70. Patrick v. Norfolk Lumber Co. \[Neb.\]

115 NWP 780.

71. Where the issues defined by the record

and announced by the court were clearly

understood, it was held not error to require

defecting service and being encouraged by

a trial to proceed without written pleadings to a supplemental answer. Veysey v. Bernard, 49 Wash. 571, 95 P 1096.

72. Plaintiff may be compiled to number

the paragraphs of a five page complaint.

Cobultie s v. Fishman, 115 NYS 102.

73. The numbering of paragraphs in a

peading is not approved for the reason

that it leaves room for doubt and uncertainty as to whether it is intended to slm-

number them would make the complaint of

ply number the paragraphs or to number

the causes of action. Toledo Gaslight &

Cole Co. v. Toledo, 10 Ohio C. C. (N. S.) 490.

The different branches of a contract are

separate causes of action if used on when

occurring, but if no action is brought until

for the term of the entire contract, the

different breaches become one cause of action, and it is error to require plaintiff to

of darkness. Not necessary to allege that

separately state and number the different

breaches as separate causes. Id.

Osborn (Ind. App.) 88 NYS 95.

74. Currier v. Kling \[Yt.\] 69 A 873.

01. Vague allegations are insufficient

Elasticves v. Bayou Terre-Aux-Boufus Drani-

age Dist. Com'rs, 121 La. 991, 46 S 992.

Negligence must be charged in terms or

against it are facts directly averaged, and

facts must be averred sufficient to compel

the inferences of such negligence. Cleve-

born (Ind. App.) 86 NE 995. Complaint

land, etc., R. Co. v. Perkins \[Ind.\] 86 NE

alleging in substance that defendant

catted a sewer in 1839 which emptied onto

cient certainty to enable defendant to de-

plaintiff's land making it bog and quag-

fand to plead the judgment in bar of

more and had continued such sewer though

another action. Kennedy v. McDiarmld in

in 1902t promised to remedy the evil, held

\[Ala.\] 47 S 792. Whether a pleading is

not indefinite and uncertain. Deubert v.

indefinite and uncertain within Code City.

New York, 129 App. Div. 359, 110 NYS 403.

Proc. $ 546, authorizing it to be made

Congpiracy held clearly enough charged.

definite and certain, is to be determined

from the pleading itself and not from am-

Cal. App. 387, 94 P 383. Answer in action

Davit v. New York, 126 App. Div.

on a free policy held sufficiently definite and

359, 110 NYS 403. It is not error to deny a

cerrain. Board of Education v. Alliance

motion to make more definite and certain

Assur. Co., 159 F 94. Complaint against

where matters sought to be made more

strict railway company for failure to per-

specific are within the knowledge of the

movant. Sherman v. Hicks \[N. M.\] 94 P 859.

tion held not demurable for uncertainty.

Amended petition pleading former adj 1326 PLEADING SS 1. & 12 Cur. Law. not left to inference \[71\] or pleaded by way of recital, \[78\] but facts alleged carry with them all necessary inferences. \[70\] Facts, not conclusions, must be alleged; \[80\] mat-

must be alleged with certainty, and the \[ \[VWs.\] 119 NNV $39. Allegation that a corporvisions imposing the obligations sought to be enforced alleged distinctly and posti-

present time." Elmergreen v. Weimer tively and not generally or by inference.

Kennedy v. McDiarmid (Ala.) 47 S 792.

Acends were illegal and unauthorized. Mc-

Amended pleading alleging that proof shows a certain fact to be true and that proof is

van v. Farmers' Highline Canal & Reservation Tact to be true and that proof is

uncontradicted is bad; should positively allege facts. Simpson v. Adams, 32 Ky. L. R. 617, 106 SWV $19. An allegation that one has made no effort to do is not the equiva-

dece of naturalization was fraudulently bent of an allegation that one is able to do.

Lygons v. American Cigar Co., 121 La. 593,

46 S 662. Cannot be supplied by inference

or conjecture either at common law or un-

der Burn's Ann. St. 1991, SS 341. Wabash R.

Vives and void under certain provisions of

Co. v. Reynolds, 41 Ind. App. 678, 84

NE 992. A hypothetical pleading is bad.

Stroock Plush Co. v. Talcott, 129 App. Div.

rate election is void as contrary to the by-

14, 113 NYS 214. A defense or counter

claim which is hypothetically stated is sub-

deiger, 140 Ill. App. 378. Allegations in a

ject to demurrer under Code Civ. Proc. $

494. Stroock Plush Co. v. Talcott, 129 App.

Div. 14, 113 NYS 214.

77. Allegations must be stronger than to

merely suggest an inference; they must be

so strong as to enforce the inference which

ie necessary. Merchants' Mut. Tel. Co. v.

Hirschman (Ind. App.) 87 NE 288. Where

complaint for injuries left the amount of

medical bills blank evidence thereof was

not admissible. Lexington R. Co. v. Britton \[Ky.\] 114 SWV 295. Claims for damages

must be supported by sufficient allegations.

Hilidreth v. Western Union Tel. Co. \[Fla.\]

47 S 820; Currier v. King \[V.t.\] 69 A 878.

78. More recitals or conclusions of law

are of no effect. Not admitted by demurrer. Pein v. Mismerr, 170 Ind. 659, 84 NE

881.

001. Pittsburgh, etc., R. Co. v. Rogers \[Ind. App.\] 87 NE 28. A pleading should

state facts directly but may be aided by inference or presumption. Tate v. Rose \[Utah\] 99 P 1003.

80. Under Burns' Ann. St. 1908, SS 343, a complaint must state facts and not conclu-

spons. Dailey v. State \[Ind.\] 87 NE 4. In

action to impeach judgment of court of

general jurisdiction, facts showing want

of jurisdiction and not conclusions must

be alleged. Del Campo v. Camarillo

\[CaI.\] 98 P 1049. In pleading fraud facts and not conclusions must be alleged. Groves v. Sexton \[Ga. App.\] 62 SE 731. A

bare allegation of legal duty is insufficient.

facts must be alleged. Chicago, & E. I. R. Co. v. Hamilton \[Ind. App.\] 85 NE 1044.

Fraud must be alleged by stating facts con-

stituting it. In re Nelson's Ekate \[Neb.\]

115 NWV 1087; McDonald v. Sullivan, 135 Vis.

361, 116 NWV 10. Plea of failure of consid-

eration of a note which does not set out the

facts is bad. Light v. Henderson \[Ala.\] 48 S 688. More conclusions in a bill in chan-

cery will not be considered. Benning v. Bell, 137 Ill. App. 600.

Averments held to be conclusions: Allegation in petition for mandamus to require a

building inspector to issue a permit to

make repairs "that it is the duty of the

Inspector, under the ordinances of the city

to issue such permit." State v. Koch,

PLEADING SS 1. & 12 Cur. Law. not left to inference \[71\] or pleaded by way of recital, \[78\] but facts alleged carry with

must be alleged with certainty, and the \[ \[VWs.\] 119 NWV $39. Allegation that a corporations imposing the obligations sought

poration has "no legal existence at the

present time." Elmergreen v. Weimer

tively and not generally or by inference.

\[VWs.\] 119 NWV $36. Allegation that certain

Acends were illegal and unauthorized. Mc-

Amented pleading 12 Cur. Law.

PLEADING SS 1.

able namesures to prevent nonlicensees

NE 1044. Allegations in plea of self-de-

from using the patent. Alexander v. Amer-

fense as to defendant's belief. Smith v.

Ican Encustic Tiling Co., SS1 Misc. 190, 113

Wickard \[Ind. App.\] 85 NE 1030. Com-

NYS 261. In action by stockholder to en-

plain for injuries to an employee that it

join corporation from selling property, an

was his duty to perform such work as

answer that it was necessary to sell

might be required of him. Vigo Cooperative

such property at the valuation placed to

Co. v. Kennedy \[Ind. App.\] 85 NE 986. Com-

conserve the interests of the corporation.

Sohwab v. E. H. Potter Co., 129 App.

plint in eminent domain that "the change

Div. 3&, 113 NYS 439. In action by

view to a more easy ascent and descent to

bank against a surety company for losses

sustained on a renewal bond, that the bank

& L Trac. Co. \[Ind. App.\] 85 NE 372. Al-

"warranted" a statement by its cashier at

legation by board of country commissioners

time bond was made that its books were

correct. Stapleton Nat. Bank v. U. S. Fidel-

drainage proceedings is a conclusion where

ity & Quar. Co., 60 Misc. 206, 118 NYS 25.

By statute the county might have been

Allegation that defendant "knowingly and

made a party without being so named.

wrongfully jeopardized lives," etc. Hollis

Karr v. Putnam County Com'rs, 170 Ind. V. Brooklyn Heights R. Co., 128 App. Div. 671, SS1 NE 1. Compilant against a tele-

S21, 113 NYS 4. An allegation in a suit to

phone company for injuries caused by drv-

forclose a mechanic's lien that a payment

due plaintiff had not been made is a con-

crison where no facts to sustain it were

imposed by ordinance to keep its wires up.

alleged. Mitchell v. Dunmore Realty Co.,

Cumberland Tel. & T. Co. v. Pierson, 170

60 Misc. 563, 112 NYS 659. Allegations that

Ind. 543, 84 NE 1088. Statement in com-

a signature was proverted by fraud and that

plain that plaintiff's hand was "inadvert-

contract was executed under duress. Mc-

Cormack v. McCormack, 127 App. Div. 408,

on demurrer. Pelin v. Miznert, 170 Ind. 659,

111 NYS 568. Allegation in suit to fore-

s4 NE 981. Allegation that injured per-

close a mechanic's lien that defendant

failed to pay a certain amount due with-

out allegations of any contract or showing

call attention. Cushman v. Civerland Coal

that any sum was due. Mitchell v. Dunmore Realty Co., 128 App. Div. 829, 111 NYS

more Realty Co., 128 App. Div. 829, 111 NYS

322. Allegation that plaintiff's

wailed any

and all rights which he may have had"

"narrowed" a

Parents must be set forth to show such duty.

der Laws 1903, p. 308, c. 132, prohibiting the

unauthorised use of the name or picture of

101, 84 NE 717. Matters of record are not

any person for advertising purposes.

Wyatt v. Wanamaker, 58 Misc. 429, 110 NYS

theroto should not conclude to the country.

900. Allegations that there was no ad-

quate consideration for a contract and that

its execution was procured by fraud. Ellis

v. Keeler, 128 App. Div. 343, 110 NYS 542.

Allegations that contract was executed un-

464. Answer in action on fire policy that

der influence of pain induced by various

unlawful acts and representations and was

in case of fraud is a conclusion where

not a free act. Id. In suit in equity allegation in answer that plaintiff has an adequate

remedy at law. Schefer v. Freygang, 125

\[Ala.\] 46 S 974. Allegation that land is

App. Div. 498, 109 NYS 848. Charge of om-

subject to a judgment lien. Greenwood v.

sign or commission in action for negligence.

Freople v. Equitable Life Assur. Soc., 124 App.

Div. 714, 109 NYS 453. An allegation that

it is the duty of a street commissioner by virtue

the out of his office to keep streets in repair.

Worthern & So. \[Fla.\] 46 S 178. Allega-

Hungerford v. Waverty, 125 App. Div. 311,

tion that railroad was negligent in piling

19 ters of law should not be alleged."11 Facts may, however, be pleaded according to their legal effect instead of alleging them as they actually exist,"22 though that which is a necessary inference from the facts alleged need not be stated."23 In some states

tion that the agreed to accept for title as shown by the abstract furnished. Lawson v. Sprague \[Vwah.\] 98 P 737. The general allegation of indebtedness in an action for money had and received. Fox v. Monahan work. Chicago, & E. I. R. Co. v. Hamilton \[Cal. App.\] 97 P 766. Allgation in bill by private persons to abate a nuisance that they are particularly and peculiary in-

In this subpiling facilities, that it held itself just 1103. Allgation that consideration for a contract was full and adequate. In re

Averment that sums reetted in a mortrage wickershm's Estate, 153 Cal. 603, 98 P 311.

Alegation that a city is charged with the duty of maintaining its streets in a safe

Statement in action for negligence that condition. Herndon v. Salt Lake City, 34 Utah, 65, P 646. Characterization of an act as having been done "with intent to defend." Gill v. Manhattan Life Ins. Co.

In the prosecution of the company's bustizz \[Ariz\] 95 P 89. Allgation that on a specified date defendant was indebted to plain-

were acting within the scope of the said diff in a certain sum. Chesney v. Chesney, company's authority." Savannah Elec. Co.

32 Utah, 503, 94 P 889. In action to recover v. Moncans to defenses in suit to foreclose a mort-

tance of sale. Allegations in answer that

title to property sold passed to purchasers on date of contract. Provers v. Nowkes, 42 a right of way across defendants' land and

Cole. 442, 94 P 347. Description of one "as

executrix" without any allegation that test-

statement of an ultimate fact. Corea v. tator left a will, which has been admitted

to probate, or, if so, that she has been

appointed and qualified. Brinkerhoff v. set forth might properly be held a con-

Tiernan, 61 Misc. 586, 114 NYS 688. Allgation that a certain sum is now due and

owing plaintiff is insufficient as an allegation of indebtedness, unless preceded by a

Statement of how the indebtedness arose. Chesney v. Chesney, 33 Utah, 603, 94 P 989. In action to enjoin interference with con-

that it was appartiant to his land is

tract rights in patents, allegations of

w wrongful violation of plaintiff's rights by

Glements by co-operating to irreparably

In future plaintiff's business. Vise v. Tube

Bending Mach. Co., 194 N. Y. 212, 87 NE

430. Allegation that obstruction was

New York, 69 Misc. 30, 109 NYS 775. Un-

wrongfully placed in a street and main-

tained there an unreasonable length of

time. Lefkovitz v. Chicago, 238 Ill. 23, 87 NE

88. Allegation in action for injury to

passenger thrown from car platform that

carrier held out its train as vetshuled held

In nature of a conclusion. Pittsburgh, etc.,

R. Co. v. Schepman \[Ind.\] 84 NE 588.

Averments held met to be conelnions:

The exercise of an option given a lesson to

sions of law to be pleaded as for example

grant a renewal of the lesse or pay to

tenant the value of buildings on the premises is properly designated an election and

from many evidators and is in a an allegation that he "elected." Eisner v.

Fringle Memorial Home, 130 App. Div. 559,

115 NYS 58. Answer alleging that dece-

dents' injuries resulted directly from his

negligence and stating the manner in which

he was negligiven is a good plea of contrib-

utory negligence. Sissel v. St. Louis & S.

F. R. Co., 214 Mo. 516, 113 SV 1104. That

present in action for negligence that

v. Guthrle, 148 N. C. 417, 62 SE 552. Com-

plant under oil and gas lease for rentals

that oil and gas were found in paying

quantities, and that there was a good mar-

ket 10 miles distant, states ultimate facts.

Indians Natural Gas & Oil Co. v. Wilhelm

12 Cur. Law.

1328 statutes permit to be alleged generally that which it would otherwise be necessary to particularize,84 and permit judgments to be alleged by a statement that they were duly rendered.85 Alternative relief may be sought in different counts.86 At law only the ultimate facts as distinguished from matters of evidence should be alleged.87 Nonissuable facts need not be alleged.88 Negatives pregnant,89 and irrelevant,80 re-act was "wantonly and willfully" done if the facts alleged clearly lead to that conclusion. Prussner v. Brady, 188 Ill. App. 85.

Footnote 85: The _W.H.S._ was the first author of the _W.H.S._, who was the first author of the \_W.

1530 PLEADING SS 1.1 Cur. Law.

pugnant," inconsistent," redundant," and scandalous\*\* allegations should be avoided, and sham " or frivolous pleadings" should not be interposed. Surplusage will be disregarded." Pleadings must be signed by the pleader " or his attorney."

because of their neglect in management, ad-

gations of the complaint. State v. Sebaoard

mits that defendant received the sums

Air Line R. Co. \[Fla.\] 47 B $98. The doc-

rated. Eldredge v. Hoefer \[Or.\] 94 P 653.

prime of feole ge does not apply where a

Where complaint for loss of goods alleged

complaint alleges that a decedent was neg-

that defendant had agreed to stand good

Ifgently killed if as a fact he was killed

for loss of goods shipped to them and, that

with criminal intent. Applies only where

the goods burned while In defendant's posession, denials that the goods were defuered

on defendants under the contract,

or that they had been destroyed, etc., held

or to raise an issue. Federal Chemical

self is repugnant to averment that he was

Co. v. Green, 33 Ky., L. R. 671, 110 SW 559.

In proceeding by landford to recover

less from a tenant, answer of tenant denying on information and belief that as al

98. Sixteen pages of useless verbiage in a

leged "rent had been demanded from the

tenant by service of a three days' written

demand" is a negative pregnant. Browning

v. Moses, 60 Misc., 111, 111 NYS 651. Where

plaintiff sued for money loaned and defendants admitted receiving the money but

sasserted that a portion only of it was to be

regarded as a loan and claimed a right to

deduct a certain amount thereof on account

of board furnished defendant and the

answer alleged that there "remains due"

on account of board a certain amount, held

an admission that the entire claim of plain-

tiff was advanced as a loan. Hendelman v.

Kahan, 60 Wash. 247, 91 P 109.

90. Order refusing to strike a portion of

an answer as irrelevant and frivolous is not

appealable though such matter might have

been stricken. McCandless v. Mobley, 81

S. C. 303, 62 SE 260. Irrelevant and impar

proper matter or matter which tends to

embarrass a fair trial may be stricken.

Hilderth v. Western Union Tel. Co. \[Fla.\]

47 B $20. Where a complaint states a cause

for at least nominal damages, but contains

claims for damages which have no legal

basis in the allegations, and'are irrelevant

and improper, such claims may be stricken.

Id. Special pleas that present, irrelevant or

immaterial matter, or matter within the

general issue, may be stricken. Poppell v.

Culpepper \[Fla.\] 47 B $31. Clearly irrele-

vant paragraph of an answer may be stricken. De Ajuria v. Berwind, 127 App.

Dlv. 628, 111 NYS 1029.

91. A party may not use on a contract

and allege at the same time that it is void

for fraud. Statham v. Southern States Life

Ins. Co. \[Ga. App.\] 63 SB 250. Complaint

for lylurique caused by blasting alleging that

injuries were caused by negligent use of

explosives or by negligently failing to give

notice of the setting off of the blast held

not repugnant nor to contain alternative

averments. Sloas-Sheffield Steel & Iron Co.

v. Salser \[Ala.\] 48 S $74. A complaint in

one count is bad if its allegations are re-

pugnant to each other. This rule does not

apply, however, where there are several

counts inconsistent with each other. Hoopes

v. Crane \[Fla.\] 47 S $92. Where allegations

of a complaint containning but one count

one cause alleged is destroyed by another.

and the complaint is bad. A like result fol-

lows if the allegations or statements

tained in a cause of action made part of

a complaint are inconsistent with the alleg-

being any, bona flde issue properly stricken as 12 Cur. Law. PLEADING SS 1. 1331

\_Interpretation and construction in general.\_See 10 C. L. 1182--A pleading should be construed as a whole 1 and should be given a reasonable construction rather than a technical one,2 but the court is not authorized to reconstruct a pleading,3 and it is

sham. Furet State Bank v. Schatz, 104 | 1. Complaint with exhibits attached must Minn. 425, 116 NW 917. A verified answer, though false, cannot be stricken as sham | 1. Covergate Lumber Yard v. where it amounts to a general denial or a denial of any material averment. Adame v. Answer in action to recover possession of Western Maryland R. Co., 161 77 | 1.00 | 96. A pleading is not frivolous unless it indicates bad faith in the pleader upon bare inspection. An answer setting up fraud | 1.00 | 1.

presumed that technical terms were advisedly used.4

Footnote 4: The code is available at http://www.cds.org/

Mere clerical errors will be disregarded.6 Specific allegations control general allegations which they contradict.6 Where there is doubt as to whether a complaint is laid in contract or tort, the doubt will be resolved in favor of contract,7 or to uphold the fullest relief, recovery to which plaintiff is entitled under the facts.8

rule is enforced in injunction suits by the requirement that facts precluding relief must be negatively.10 Under the code, however, pleadings are generally to be liberally construed with a view to substantial justice between the parties,11 and every reasonable intendment and presumption will be indulged in their favor.12 In deerals, thereby abandoning the compromIse -- defends as trustee, it is presumed that he agreement. Clinchfield Coal Co. v. Clint- -- acts in such capacity though he describes wood Coal & Timber Co., 168 Va. 438, 62 -- himself as defendant. First Nat. Bank v. SE 329. Lability in solids is not presumed -- Farmers' & Merchents' Nat. Bank (Ind.) and pleadings are construed against pleader. -- 84 NE 1077. Where a complaint manifestly -- Breaux Bridge Lumber Co. v. Herbert, 121 -- pleads an agreed price, an allegation of La. 188, 46 S 206. It is presumed that a value will be treated as surplusage rather party's pleading is as strong in his favor -- than as an attempt to state two causes of as the facts to sustain it will warrant -- action. Rubin v. Cohen, 129 App. Div. 395, Pein v. Miznert, 170 Ind. 659, 84 NE 811. -- 113 NYS 843. In testing sufficiency of a Complaint held not to show judgment upon -- pleading, conclusions will be disregarded. -- termining the sufficiency of pleadings, only inferences necessarily arising from facts alleged will be indulged.\[13\] As a general rule, both at common law and under the codes, pleadings will be liberally construed when first attacked at the trial or after judgment.\[14\] The rule that under the code pleadings should be liberally construed does not apply to applications for extraordinary writs.\[15\]

\_Profert and oyer.\_See 10 C. L. 1185--Oyer being granted and a written instrument being read in evidence may thereby in legal effect become part of the preceding pleading with like effect as if provert had been made of it by the plaintiff in the first instance.\[16\]

\_Exhibits.\_See 10 C. L. 1186--By statute in some states, when a pleading is founded on a written instrument, the original or a copy thereof must be filed.\[17\] The object of the rule requiring the cause of action or copy thereof to be filed with the complaint is to enable defendant to plead thereto with greater certainty,\[18\] but instruments collateral to the issue need not be attached.\[19\]

As a general rule exhibits cannot be looked to in aid of a pleading,\[20\] though they

egin{tabular}{l|l} on general exception, complaint by buyers & be attached to the declaration, is to ap- \\ of an automatic plano to rescind held good & prolase defendant of the nature of the cause \\ against general demurrer. Jesse French & of action. It forms no part of the complaint and cannot be reached by demurrer, \\ Piano & Organ Co. v. Garza & Co. \[Tex. Civ. \\ Appl.11e SWV 150. In construining a complaint every reasonable intendment should & her reached by demurrer. State v. Sasaboard \\ be made in its favor. Phillips v. Smith & Alr Line R. Co. \[Fla.\] 47 S 986; Hoopes v. \\ \[Ariz.\] 95 P 91. Under Burn's Ann. St. 1908, & Crane \[Fla.\] 47 S 992. Rule 14 of the cir- \\ $ 85, authoring liberal construction of & cut court requires the clerk to enter a dis- \\ pleadings, a pleading is to be read in the & minsal when cause of action or copy thereof \\ light of such ultimate facts as must be & is not filed with the complaint, but such \\ necessarily intended from facts pleaded, and & order is subject to review, and, if it is \\ matter of substance may often be shown & found that a copy was served on defendad- \\ by narrative of an occurrence. Town of & ants attorney, vacation of the dismissal \\ Newcastle v. Grubbes (Ind.) 86 NE 757. & will not be disturbed. Poppell v. Culpepper 13. It will not be presumed from allega- & \[Fla.\] 47 S 861. \\ tion that place of business was a restaurant that a saloon was not also conducted & plant so as to make it to supply an essen- \\ on same premises. Rovan v. Butler (Ind.) & dial dialication omitted. Poppell v. Culpepper 85 NE 714; Cleveland, etc., R. Co. v. Perkins \[Ind.\] 86 NE 405. & \[Fla.\] 47 S 851. 14. A complaint sufficient to bar another & warance company to another need not be attached as an exhibit In a suit on the policy, \\ plided by proof is good as against a motion & Mutual Reserve Life Ins. Co. v. Ross \[Ind. \\ in arrest. South Shore Gas & Elec. Co. v. Appl.\] 86 NE 506. & Appl.\] 86 NE 506. \\ Ambre (Ind.) 87 NE 246. In absence of determiner & 20. An exhibit cannot supply lack of \\ murrer the allegations of a complaint are & necessary and material averments. Malheur \\ to be liberally construed in aid of a cause & County v. Carter \[Or.\] 98 P 489. ExhIbits \\ of action. Tucker v. Missouri & K. Tel. Co., \\ of action. City of Bowling Green v. Bow- \\ liberally construed for the purpose of sustaining a verdict. Kansas City B. R. Co. v. & An exhibit referred to will not aid a defec- \\ Roebrock-Josey Grain Co. (Tex. Civ. App.) & live pleadings. Summer v. Griffin \[IX.\] 113 \\ l14 SWV 436. In absence of a demurrer, after verdict the allegations of a complaint & of the pleading and is not to be considered \\ are to be liberally construed in favor of & as before the court until introduced, but \\ the pleader. Cole v. Metropolitan St. R. Co., & it may be looked to as a matter of \\ 183 Mo. App. 440, 113 SWV 684. In determin- & ventence for statement of the terms of the \\ tag the sufficiency of a pleading where attacked for the first time on appeal, or & contract. Tate v. Wakash R. Co., 181 Mo. \\ tocked for the first time on appeal, or & App. 107, 110 SWV 622. Suit for dissolution \\ where the parties go to trial without objection, it will be given a liberal construction. Allen v. Allen's Estimate \[Neb.\] 116 & partnership and accounting and sale of \\ tocked for the first time on appeal, or & partnership property is not founded on \\ tocked for the first time on appeal, or & relticles of partnership, and though filed as an \\ tocked for the second time on appeal, or may be against it,\[21\] and the averments thereof are not imported into the pleading.\[22\] Exhibits attached to a bill control the bill so far as their legal effect is concerned,\[24\] The rule that exhibits control allegation of the pleading cannot be extended so far as to hold a litigant bound by the whole of a written statement furnished by his adversary because he admits part thereof.\[24\] In Iowa it is held that an exhibit is controlled by the allegations of the pleading.\[28\] Failure to indorse on an exhibit the style of the cause is not fatal.\[24\]

\_Bills of particulars.\[85\] 10 C. L. 1184--\_A bill of particulars may ordinarily be demanded in all cases when by reason of the generality of the claim or charge, the adverse party is entitled to know with reasonably certainty what he is required to meet.\[27\] A motion for a bill of particulars is a common-law practice unknown in equity procedure.\[28\] The practice on the motion for the bill is controlled by stat-ute.\[29\] That a demand for a bill of particulars is too broad is no ground for refusing it.\[30\] The rule denying the bill because of laches does not apply where the adverse party is not prejuded.\[31\] In New York a bill of particulars may be required though the cause has been placed on the day calendar.\[32\] A justice of the municipal court has no power to dismiss a bill for failure to furnish a bill of particulars on demand.\[33\]

The purpose and effect of a bill of particulars is to amplify the pleading and limit the issues,\[34\] and reasonably apprise the opposite party of the claim made,\[35\] and 21. An exhbit will not avail to support the pleading of the party who flies it, but an adverse party may use it to supply omics.\[36\] The evidence for a bill of particulars may be required so in his pleadings. Baltimore, etc., R. Co. v. Wood & Co. \[Ky.\] 114 SW 734. In special assumption it is not necessary that the movants' attorney that he has no personal knowledge and "neither has plaintiff, of the bargain, yet, it having been set out, it becomes a part thereof and cannot be re-jected as surplusguas where it shows the particulars is properly denied as to declaration to be bad. Crosby v. Bouchard

\[Vt.\] 11 A 835.

not to suggest defenses." A party will not be required to disclose his evidence" or the names of his witnesses," or give information peculiarly or equally within the knowledge of the party seeking it," but that the moving party knows the facts is not ground for denying the bill." Ordinarily a bill is no part of the pleading and cannot supply necessary averments therein."11

Cases dealing with the right to bills in particular cases,"22 and the sufficiency of

monwealth Trust Co., 124 App. Div. 932, 109

NYS 27; Shaw v. Stone, 124 App. Div. 624,

T. 341, 84 NE 68.

109 NYS 146. The office of a bill of partiuculars under Thornton's Ann. Civ. Code,

not be required but the name of a person $ 135, is to specify more minutely the claim

or defense set up. Fletcher v. Southern, 41

Ind. App. 550, 84 NE 526. Where bill of partiuculars limiting general allegation of

such persons as a witness. Sundheimer v.

the complaint was served after issues

framed, the issues should be confined to allegations of the bill of particulars. Segall v. Segall, 130 App. Div. 895, 114 NYS 1025.

In action on an insurance policy, amendend

ment to a complaint held unnecessary to
render a policy admissible where bill of partiuculars had been filed. Hurd v. Northern

actions between himself and plaintiff is not

Ace. Co., 153 Mich. 474, 15 Det. Leg. N. 493,

116 NNV 977.

35. All that the statute requires of a bill

of particulars in municipal court is that it

be assettained by bill of particulars are

the nature and character of the demand

made against him. Toledo Computing Scale Co. v. Tyden, 141 Ill. App. 21. In a prosecution to recover a penalty for the violation

of a statue, it is sufficient for the bill of

particulars to set forth the offense alleged

to have been committed with sufficient

clearness to enable the defendants to know

with what they are charged. Zito v. People,

140 Ill. App. 611.

SG, Defendant is not entitled to a bill of partiuculars before answer on the ground

that it may suggest defenses of which he

is not aware. Ehrich v. Dessar, 114 NYS

271. Where a claim is sufficiently set forth

to show the nature thereof, a pleader will

not be required to set forth his evidence

in support thereof. Smith v. Anderson, 126

App. Div. 24, 110 NYS 191. By statute,

mulicpal court act, it is provided that in a

bill of partiuculars in an action for tort in

municipal court, it is not required to set forth the cause of action with the partiuculars

fairly required at common law. If it clearly

and sufficiently advies the defendant of the

nature of the action he is called upon to

defend, it is sufficient to admit the introduction of ordinances notwithstanding the

same are not referred to in such bill of partiuculars. Chicago, etc., R. Co. v. Horent,

139 Ill. App. 116. Evidence that could be

obtained by examination of the pleader. Smith v. Anderson, 126 App. Div. 24, 110

NYS 191. On motion for bill of particulars

in action to recover for attorney's services,

plaintiff was not required to itemize each

step taken and charge made in prosecuting

actions, but was required only to state the

amount demanded for each action. Thorp

v. Ramsey \[Vwash\]. 99 P 84. A court will

not require a party to furnish participants

of evidence which it is not within his power

to furnish or preclude him from giving law-

ful evidence at the trial because of his inability to specify in advance what the ev

clause will be. People v. McClellan, 191 N.

Y. 341, 84 NE 68.

38. The name of a witness as such may

not be required but the name of a person

with whom it is claimed a transaction in

volved in the issues was had may be re-

Ind. App. 550, 84 NE 526. Where bill of

just through it is the intention to use

such persons as a witness. Sundheimer v.

the complaint was served after issues

Barron & Co., 62 Misc. 263, 114 NYS 804.

39. A bill of particulars is not necessary

when defendant is sufficiently appraised of

the cause of action. Whitworth v. South

Arkansas Lumber Co., 121 L. 894, 46 S 913.

40. That defendant in conversion by his

answer displays knowledge of certain transactions between himself and plaintiff is not

ground for denying a bill of partiuculars.

Mayer v. Commonwealth Trust Co., 124 App.

Div. 932, 109 NYS 27. That facts sought to

be ascertained by bill of particulars are

within the knowledge of the moving party

is not ground for denial of motion. Bjork

v. Post, 125 App. Div. 813, 110 NYS 206.

41. A bill of particulars is not a pleading

and cannot aid one otherwise denurrable.

Singers-Bisser V. Young \[C. C. A.\] 12 Cur. Law. PLEADING SS 1. 1337

particular bills,\[48\] are illustrated in the footnote. Whether additional particulars should be ordered and whether those furnished are sufficient is within the discretion of the trial court.\[44\] A party who has in good faith attempted to furnish a bill of particulars should be given opportunity to comply with the order.\[45\]

tions of the complaint wThI not be ordered. Allegation that contract sued upon was allowed that the effect of circulation of without consideration. Smith v. Anderson, false rumors was to diminish the power of 126 App. Div. 24, 110 NYS 191. In action on contract where defendant pleads release, he required to set forth names of parties he will not be required to partICUarise it wrong than to state whether it was express, was immaterial. Id. Where pleader aligned it in writing to set forth the general nature of the acts. Id.

Plaintiff entitled to bill: In action for price of stock defendant alleged that plain- with, and what amount of it had accepted a valuable consideration in payment. Heid plaintiff was entitled to a bill of particulars as to nature of the con- and/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or the/or theor the/or the/or the/or the/or theor the/or the/or the/or theor the/or the/or the/or theor the/or the/or the/or theor the/or the/or theor the/or the/or theor the/or the/or theor the/or the/or theor the/or the/or theor the/or the/or theor the/or the/or theor the/or the/or theor the/or the/or theor the/or the/or theor the/or the/or theor the/or the/or theor the/or theor the/or the/or theor the/or the/or theor the/or theor the/or the/or theor the/or theor the/or theor the/or the/or

## 2 The declaration, count, complaint or petition

General rules

See 10 C. L.

The declaration, petition or complaint must allege all the facts necessary to show a cause of action against the defendant \[47\] in ordinary and concise language

unsuccessfully attempted to serve a sufflementlement bill of particulars. Boskowitz v. Sulzleber, 12$ App. Div. 537, 112 NYS 890.

46. Search Note: See notes in 6 C. L. 1023;

13 L. R. A. (N. S.) 529; i. Ann. Cas. 947; 3 A.

Id. 285.

See, also, Pleadings, Cent. Dig. $1 91-155;

Dec. Dig. $1 834-75; 1 A. & E. Enc. P. & P. 234; 4 Id. 587; 5 Id. 302; 16 Id. 774.

47. Plainflit must stand or fall on allega-tions of his complaint. Bryant Lumber & Shingle Mill Co. v. Pacific Iron & Steel Works, 48 Wash. 574, 94 P 110. All the elements of a complete cause of action must be set forth clearly, formality may be dispensed with but not substance. Flunkett v. Hamnett, 26 Pa. Super. Ct. 590. Any breach of contract maturing a debt not due on its face must be pleaded and show that the action is not prematurely brought. Zeller v. V, Wunder, 36 Pa. Super. Ct. L. Where laches is not apparent but complaint shows delay unaccompanied by circumstances derogatory to equity, plainfl need not explain the delay. Willis v. Nehalem Coal Co. \[Or.\] 96 P 528. Complaint must state a present causes of action and show that plainflit is entitled to relief at the time complaint is filed. Melvin v. Melvin \[Cal. App.\] 97 P 696. Where all damages complained resulted from a single wrongful act, based on fraud, all elements going to make up the sum total of the damages should be alleged in a single count. Power v. Turner \[Mont.\] 97 P 950. An allegation in a complaint that "defendant is informed and believes" certain facts without alleging on such information, and belief that such facts exist, is not a sufficient allegation of any seusable fact. Svenak v. Sweetwater Tr. & P. Co. \[Idahol $P 297. A complaint which states a cause of action is not vitilated by the incorporation therein of immaterial matter. Pennington v. Gillaspie, 63 W. Va. 541, 61 SE 416. That one of several counts is defective does not authorize dismissal of the action. Seaul v. Virginia Portland Cement Co., 108 Va. 806, 62 SE 795. Where petition was held deficient in certain particulars which were cured by amendment, it was error to dismiss it. Johnson v. Babcock Broe. Lumber Co. \[Ga.\] 63 SE 621. A complaint should by direct allegations or by fair inference therefrom contain all the essentials of a cause of action. Where negligence is basis of recovery, facts showing negligence, injury, and that it was the proximate cause should be alleged. German-American Lumber Co. v. Brock \[Fla.\] 46 S 740. A complaint should not be held insuffleent on demurrer because one paragraph thereof constituted imperinent surplusage. Arnold v. Kutinsky, Adler & Co., 80 Conn. 549, $9 A $50. A petition defective in substance will support a judgment if the facts upon which the demand is based are intelligently set forth. In re Nelson's Estate \[Neb.\] 115 NW 1087. A complaint whether framed as a bill in equity or otherwise, regardless of the prayer, is good as against demurrer if the facts alleged show

## 12 Cur. Law.

PLEADING SS 2.

clal instance and request of defendant if he accepted it. Merrill v. Worthington

\[LaL.\] 46 S 47. The approved form of a count for money had and received is that offendant is indebted to plaintiff in a certain sum for money had and received by firm for the use of plaintiff. Fox v. Mona-han \[Cal. App.\] 97 P 765. In action on contract plaintiff need not plead whether contract was oral or written. Rubin v. Cohen, 129 App. Dlv. 285, 113 NYS 843. Compilation alleging that plaintiff at the epe-clal instance and request of defendant performed certain work and furnished material for which defendant promised to pay the reasonable sum of $1,000 is sustainable either on the theory of express contract or quantum mermilt. Vakar v. Rechnitz, 126

\[\] 26 Apr. Dlv. 424, 110 NYS 777. Not necessary to allege consideration in action on a promessory note. Zimbelman v. Finnegan \[Lova\] 118 NYS 312. Not necessary to allege on consideration in reply to plea of no consideration. Id. The essential allegations

\[\] 26 Apr. Dlv. 424, 110 NYS 777. Not necessary to allege on consideration in reply to plea of no consideration.

\[\] 26 Apr.

and in such manner as to enable a person of ordinary understanding to know what is intended.48 The performance or happening of all conditions precedent to the right

though it alleges negligenee, shows that the

uncertain as to whether it was based on injury did not proximately result from acts

notes or fraud and was not specific as to specified is subject to dismissal on demur-

certain recepits, held defendant was entered. Ayers v. Louisville & N. R. Co. \[Ga,

titled to have it made more definite and App.\] 68 SE 530. A complaint for injuries

Letlan. Isenburger v. Roxbury Distilling

held subject to special demurrer for failing

Co., 168 F 183. A complaint on a contract

to allege that defects in appliance were not

must show with reasonable certainty facts

latent or might have been discovered by

the exercise of due Alligence by the master.

Eagle & Phenix Mills v. Johnson \[Ga.\] 61

SS 3559, 3630, a pleading, which advises the

SE 930. Complaint for negligence which

obsobsows on its face facts from which con-

withently negligence must necessarily be in-

ferred is demurrable. Smith v. Southern R.

C.., 80 S. C. 1, 61 SE 205.

48. A complaint should clearly and dis-

directly allege every fact essential to the

cause of action and the cause of action at-

tached cannot be resorted to, to supply

sential allegations. Hoopes V. Crane \[Fla.\] 47 S 992. A complaint is sufficiently definite

and certain if it states the cause with sur-

client particularity to enable defendant to

prepare his defense. Hughes v. Orangeburg

Mfg. Co., 81 S. C. 154, 62 SE 404. Facts

constituting a cause of action must be

stated in ordinary and concise language.

Under Code Civ. Proc. $ 49, a complaint alleging that one collected money from a cer-

tain person will not sustain judgment

where proof shows that he collected it

from another. Soden v. Murphy, 42 Col..

352, 94 P 355. Under Code Civ. Proc. $ 671,

requiring cause to be stated in ordinary and

concise language, complaint for recovery of

purchase price paid for corporate stock on

an agreement to repurchase within three

years after the sale held to comply

where. Raiche v. Morrison, 37 Mont. 244, 95

P 1061. Motion to make more specific is

properly denied where complaint is not so

general as to be misleading and where it

can be readily understood. Du Bois v. First

Nat. Bank, 43 Colo. 400, 96 P 169. A de-

murrer will not be sustained to a complaint

which states a cause of action, however

inartificially. Jones v. Henderson, 147 N. C.

120, 60 SE 894. Motion to make complaint

more definite and certain properly over-

ruled, where it alleged injury to an

ploy because of a dangerous and poorly

equipped cotton frame, as defendant could

have examined the machine and prepare to

meet the allegations. Hughes v. Orange-

burg Mfg. Co., 81 S. C. 354, 62 SE 404. A complaint is sufficient if it appraises defendant of the grounds, and states facts

which if proved entity plaintiff to relief.

Chesapeake & O. R. Co. v. Hoffman \[Va.\]

63 SE 432. A bill in equity must contain a

clear statement of the facts upon which

plaintiff relies for relief and this rule is

vlgorously applied where injunctive relief

is sought. Stinson v. Elliott City & Clark-

ville Co. \[Mfd.\] 71 A 527. Complaint based

on negligence in equipment and manage-

ment of a vessel is not bad after verdict

because it alleges ownership of the vessel

by defendant in the present tense only

where it further alleges that negligent

acts were those of defendant. Puget

Sound Nav. Co. v. Laveder \[C. C. A.\] 180 F 851. Where complaint in attachment was

the same as the one in the present tense only

where it further alleges that negligent

acts were those of defendant. Puget

Sound Nav. Co. v. Laveder \[C. C. A.\] 180 F 851. Where complaint in attachment was

and in such manner as to enable a person of ordinary understanding to know what

is intended.

The performance or happening of all conditions precedent to the right

though it alleges negligenee, shows that the

uncertain as to whether it was based on injury did not proximately result from acts

notes or fraud and was not specific as to specified is subject to dismissal on demur-

certain recepits, held defendant was entered. Ayers v. Louisville & N. R. Co. \[Ga,

titled to have it made more definite and

App.\] 68 SE 530. A complaint for injuries

Leftul above it made more definite and
12 Cur. Law. PLEADING SS 2.1341

to sue, or an excuse for nonperformance, must be alleged." Matters of defense need not be alleged." Whether the declaration states a cause of action is determined from inspection thereof without reference to the evidence.\[61\] The complaint must proceed on a definite theory on which plaintiff must recover if at all.\[52\] The nature of the action, whether it is in tort or on contract,\[53\] or at law or in equity,\[54\] and whether more than one cause of action is stated,\[56\] are questions of construction. A complaint

Complaint on attachment bond held sufficently definite to enable defendants to be theory that it is in tort or contract. Complaint stating a cause of action for money backich v. Barich, 37 Mont. 490, 97 P 931. Misdescription of attachment bond shed on isad. Jones v. Winsner \[S. D.\] 118 NW716.

As an "understanding pursuant to law" when it was in fact a common-law bond is immerial where the bond was set out in the complaint. Id. Complaint though some- and received. Id. If a cause is stated on what indefinite. Mechshenber v. Channelle

Uli & Morg. Co. \[Minn.\] 119 NW742. Complaint for injuries to a passenger while

establish his right to recovery on the theory

aighting held not vague, uncertain or in-

adcepted. State, V. Scott \[Ind.\] 88 NE 409.

definit. Birmingham, R. & P. Co. V.

S. Complaint held to state a cause of

McGinty \[Ala.\] 48 S 491. Complaint for specific performance held sufficiently cer-

comversion. Klepner v. Lewis Mercantile Co.

aim as to description as against demurrer. Vilkins v. Hardaway \[Ala.\] 48 S 498. Complaint for injuries caused by fall of a pass-

ment by the general tenor and character

senger elevator held to sufficiently allege

the relation of passenger and carrier as an

and clearly outlined. State v. Scott \[Ind.\]

against a motion in arrest of judgement.

Steiskal v. Marshall Field & Co., 238 Ill. 92,

57 NE 117.

40. See, ante, $ 1. Complaint for injuries

to servant which did not show that danger

58. Where complaint shows that plaintiff

in place of work was not an obvious one

and assumed held demurrable. Grover v.

New York, S. & W. R. Co. \[N. J. Law\] 49

law. Sullivan v. Bitter \[Tex. Civ. App.\] A 1082. Pettition must show full perform-

113 SW7 198.

ance or tender by the plaintiff. Suft on contract. Zeller v. Wunder, 36 Pa. Super. C. L.

of action: Complaint for libel held to state

Plaint must allege full compliance with

terms of contract in the absence of aversion

and number his causes. Also v. China &

tain all averments showing right of recovery

ary suit on building contract. Rosenblum

NYS 100. Complaint by servant against

N. Stolzenberg, 36 Pa. Super. C. 644.

50. In action on appeal bond, a complaint

N. R. Co. \[Miss.\] 48 S 296. Complaint for

alleging recovery of judgment against

primenql on the bond was not denurrable

for failure to allege that it was unpaid,

that is matter of defense. Sweveney v. Met-

ropolitan Surety. Co., 129 App. Div. 22, 113

NYS 126.

51. A declaration is sufficient which

charges that defendant negligently pro-

vided a dangerous and unsafe place of

which the plaintiff had no knowledge or

means of knowledge, and that because of

such negligilance of the defendant the plaintiff

iff was injured without his fault. Complaint

monwealth Elec. Co. v. Roonsy, 188 Ill. App. 276.

52. The rule that a complaint must

ceed upon some definite theory refers to the

facts on which the right of action is

claimed to exist. Pittsburgh, etc., R. Co. V.

Roggers \[Ind.\]. ApJ. 87 NB 28. Under the

Codex system a pleader must recover on the

theory of his pleading. While a pleader

may elect to rely on contract or tort, the

form of action may be material. Wernich

resources, is not multifarious, nor a mis-

V. St. Louis & S. F. R. Co., 131 Mo. App. 37,

jolner of causes. Hathorn v. Natural Car-

109 SWV 1027. Notwithstanding the fact that

forms of action have been abolished, dis-

clined to exist. Pittsburgh, etc., R. Co. V.

131 Mo. App. 395, 111 SWV 839. Complaint

Roggers \[Ind.\]. ApJ. 87 NB 28. Under the

by owners of mineral springs rounded on

Code system a pleader must recover on the

theory of his pleading. While a pleader

law rights, as well as a violation of Laws

may elect to rely on contract or tort, the

1908, p. 121, for the protection of mineral

form of action may be material. Wernich

resources, is not multifarious, nor a mis-

v. St. Louis & S. F. R should show the interest of all parties defendant."66 Where action is discontinued as to one defendant, the declaration is to be read as charging against defendants remaining, only."67

\_Consolidation of suits.\_See 10 C. L. 1192\_\_The court ordinarily has discretionary power to consolidate to or move pending actions brought by the same plaintiff against the same defendant, for causes of action which could be joined."88 Where actions are consolidated, the order of consolidation should require an amendment of titles of the cases and pleadings to conform to the order."89

\_Joinder of causes of action.\_See 10 C. L. 1192\_\_The codes generally specify certain classes of causes of action which may be joined,"60 provided they are consistent 61 and

where defendant refused to permit complete - \[Jester \[Tex. Civ. App.\] 115 SW 278. Actions tion of the contract states but a single cause of action and plaintiff would not be required to separate and number his causes. Lawson \[Ind. App.\] 87 NE 47. Under Rev. Wieser v. Times Reality & Const. Co., 110 STV 983. Complaint on a bond, the obligation of which is joint and several, against wrviving smetries as personal representa- \[Tracter, materialmen, etc. to foreclose mehance's lien, did not change the issues of the respective cases nor render ineffectual separate causes against the survivors and personal representatives. Eric County v. Baltz, 125 App. Div. 144, 109 NYS 304. Complaint examined and held to state a cause of action only for goods sold and de- \[Tracter, materialmen, etc. to forceclose mehance's lien, did not change the issues of the same, and not objectionable as joining a cause of action to forceclose a piece and \[Tracter, materialmen, etc. to forceclose mehance's lien, did not change the issues of the respective cases nor render ineffectual separate causes against the survivors and personal representatives. Eric County v. Baltz, 125 App. Div. 144, 109 NYS 304. Complaint examined and held to state a cause of action only for goods sold and de- \[Tracter, materialmen, etc. to be a bill to enforce a lien and to forceclose the same, and not objectionable as joining a cause of action to forceclose a piece and \[Tracter, materialmen, etc. to forceclose mehance's lien, did not change the issues of the respective cases nor render ineffectual separate causes against the survivors and personal representatives. Eric County v. Baltz, 125 App. Div. 144, 109 NYS 304. Complaint examined and held to state a cause of action only for goods sold and de- \[Tracter, materialmen, etc. to forceclose mehance's lien, did not change the issues of the respective cases nor render ineffectual separate causes against the survivors and personal representatives.

affect all the parties to the action in the same character or capacity." Among the most common of these are causes of action upon claims arising out of the same transaction or transactions connected with the same subject of action " and causes of accreditor answered that it was not her sepa- | cannot join in an action for such relief their rate property but in the event it was so | several claims for damages in which there found to subject other property to the claim, | is no joint interest. Nahate v. Hansen, 106 held not an abuse of discretion to sustain a plea of misjoinder and confine the action | player for himself and others to declare void to the relief demanded by the wife. Texas | grew, Co. v. Bismo \[Tex. Civ. App.\] 109 SW | asSement certificates, held bad as improperly joining causes of action, each plaintiff | vendee in a contract for sale of land to re- | and relieved from the burden. Carstens v. cover deposit and disbursements made in searching title cannot be joined with an action on the contract to recover for defendation for violation of a city ordinance cannot's breach thereof. Reality Transfer Co. v. Cohn, Bear, Myer & Aronson Co., 60 Misc. 623, | Aichison, etc., R. Co., 133 Mo. App. 625, | 113 NYS 994, Under Code Cko. Proc. 484, | $8V 713, providing for Joinder of causes arising out | $8V 713, | $8V 713, | $8V 714, | $8V 715, | $8V 716, | $8V 717, | $8V 718, | $8V 719, | $8V 717, | $8V 718, | $8V 719, | $8V 720, | $8V 721, | $8V 722, | $8V 723, | $8V 724, | $8V 725, | $8V 726, | $8V 727, | $8V 728, | $8V 729, | $8V 720, | $8V 721, | $8V 722, | $8V 723, | $8V 724, | $8V 725, | $8V 726, | $8V 727, | $8V 728, | $8V 729, | $8V 720, | $8V 721, | $8V 722, | $8V 723, | $8V 724, | $8V 725, | $8V 726, | $8V 727, | $8V 728, | $8V 729, | $8V 720, | $8V 721, | $8V 722, | $8V 723, | $8V 724, | $8V 725, | $8V 726, | $8V 727, | $8V 728, | $8V 729, | $8V 720, | $8V 721, | $8V 722, | $8V 723, | $8V 724, | $8V 725, | $8V 726, | $8V 727, | $8V 728, | $8V 729, | $8V 720, | $8V 721, | $8V 722, | $8V 723, | $8V 724, | $8V 725, | $8V 726, | $8V 727, | $8V 728, | $8V 729, | $8V 720, | $8V 721, | $8V 722, | $8V 723, | $8V 724, | $8V 725, | $8V 726, | $8V 727, | $8V 728, | $8V 729, | $8V 720, | $8V 721, | $8V 722, | $8V 723, | $8V 724, | $8V 725, | $8V 726, | $8V 727, | $8V 728, | $8V 729, | $8V 721, | $8V 722, | $8V 723, | $8V 724, | $8V 725, | $8V 726, | $8V 727, | $8V 728, | $8V 729, | $8V 720, | $8V 721, | $8V tion on contract.64 The joinder of legal and equitable causes is usually permissible under the code,65 but not at common law.66 Causes of action on contract and in tort may not be joined.67 Causes should not be joined where the court has no jurisdiction of one of them.68 Several aspects of the same cause may ordinarily be pleaded in the same count 69 or in different counts 70 provided they are not inconsistent.71 Duplicity

where the court could have consolidated the | $ 83. Wilson v. Louisville & N. R. Co., $2 actions if separately brought. Ashford v. Richardson \[Ark.\] 113 SWW 808. A cause of $8. It is improper to join in municipal action on a warranty against incumbrances court an action for breach of contract with may be joined with a cause for decei practice on plaintiff in the transaction in which the ded was executed. Thomas v. Ellison Brooklyn Union El. R. Co., 61 Misc. 59, 113. \[Tex. Civ. App.\] 110 SWW 934. Causes in tort and on contract may be joined when they arise out of the same transaction or transaco. Joined in the same count where parts of the same transaction. Stowes Furniture Co. v. \[Okl.\] 99 P 1088. #4. Under Ball. Ann. Codes & St. $ 4942, versions, etc, but prohibited by its charter contract express or implied, an adminis- | $ 113. \[Tax. Civ. App.\] 110 SWW 934. Causes in tort and on contract may be joined when they arise out of the same transaction or transaco. Joined in the same count where parts of the same transaction. Stowes Furniture Co. v. \[Okl.\] 99 P 1088. #4. Under Ball. Ann. Codes & St. $ 4942, versions, etc, but prohibited by its charter contract express or implied, an adminis- | $ 113. \[Tax. Civ. App.\] 110 SWW 934. Causes in tort and on contract may be joined when they arise out of the same transaction or transaco. Joined in the same count where parts of the same transaction. Stowes Furniture Co. v. \[Okl.\] 99 P 1088. #4. Under Ball. Ann. Codes & St. $ 4942, versions, etc, but prohibited by its charter contract express or implied, an adminis- | $ 113. \[Tax. Civ. App.\] 110 SWW 934. Causes in tort and on contract may be joined when they are not inconsistent.71 Duplicity

with a comment on contract.64 The joinder of legal and equitable causes is usually permissible under the code,65 but not at common law.66 Causes of action on contract and in tort may not be joined.67 Causes should not be joined where the court has no jurisdiction of one of them.68 Several aspects of the same cause may ordinarily be pleaded in the same count 69 or in different counts 70 provided they are not inconsistent.71 Duplicity

where the court could have consolidated the | $ 83. Wilson v. Louisville & N. R. Co., $2 actions if separately brought. Ashford v. Richardson \[Ark.\] 113 SWW 808. A cause of $8. It is improper to join in municipal action on a warranty against incumbrances court an action for breach of contract with may be joined with a cause for decei practice on plaintiff in the transaction in which having jurisdiction of the latter. Tolzer v. \[Tex. Civ. App.\] 110 SWW 934. Causes in tort and on contract may be joined when they arise out of the same transaction or transaco. Joined in the same count where parts of the same transaction. Stowes Furniture Co. v. \[Okl.\] 99 P 1088. #4. Under Ball. Ann. Codes & St. $ 4942, versions, etc, but prohibited by its charter contract express or implied, an adminis- | $ 113. \[Tax. Civ. App.\] 110 SWW 934. Causes in tort and on contract may be joined when they arise out of the same transaction or transaco. Joined in the same count where parts of the same transaction. Joined in the same count where parts of the same transaction. Joined in the same count where parts of the same transaction. Joined in the same count where parts of the same transaction. Joined in the same count where parts of the same transaction. Joined in the same count where parts of the same transaction. Joined in the same count several acts of negligence. Joined in the same count several acts of negligence. Joined in the same count several acts of negligence. Joined in the same count. Joined in the same count several acts of negligence. Joined in the same count. Joined in the same count several acts of negligence. Joined in the same count. Joined in the same count several acts of negligence. Joined in the same count. Joined in the same count. Joined in the same count several acts of negligence. Joined in the same count.

12 Cur. Law. PLEADING SS 2.

should be avoided \[72\] and separate causes of action \[78\] and inconsistent states of fact \[74\] should not be alleged in a single count or paragraph,\[78\] but the rule that a plaintiff may not allege two states of fact upon one of which defendant is liable and upon the other not, does not apply where defendant is liable upon either.\[76\] Separate causes should be stated in separate counts.\[77\] Each count must be complete in itself,\[78\] except that introductory allegations made in a preceding count may be alleged by way of reference.\[79\] There is no misjoinder where one of two causes attempted to be first alleging that defendant negligently started the car and in another count alleging failure to advise or warn plaintiff while alighting, held out inconsistent. HEx2 v. Mo. App. 425, 113 SW 691. Counts in a reply Bay City Trac. & Elec. Co., 162 Mich. 457, 15 Det. Leg. N. 804, 116 NW 864. A count on a nants answer setting up tax title and second renewal note and another in the alternative setting up defects in such title are not contradictory. Mitchell v. Knott, 48 Colo. 185, election is required, but one recovery being sought. Farmer's Sav. Bank v. Arispe Mer-

75. Midginder of counts is cause for gencantile Co. \[Iowa\] 117 NW 672.

01. Complaint by joint plaintiffs cannot embrace counts setting up causes of action in favor of one alone. Southern R. Co. v. Blunt, 165 F 258. Bill by creditor to set aside chatted mortgage as fraudulent and to the corporation's debt for money borrowed on notes of stockholders and used in the property for the same reason is not multi-farious. Lamar & Rankin Drug Co., V. Jones

stockholders, they used the corporate funds \[A1a\] 46 S 763. Declaration In libel in three counts, sending out separate publication, is not deplieticaus. Gordon v. Journal

per Co. V. Carlisse Mfg. Co. \[Ky\] 112 Pub. Co. \[Vt\] 69 A 742.

73. Where cause of action by a stockholder

based on contract with other stockholders

closure is void because of actions preceding as to his rights to participate in management

and attending sale, shows that the pleader of the concern in joined with a cause based

stands on two grounds, on either of which he

on his rights as a stockholder, he is properly

is entitled to relief, and the allegations are required to separately state and number the

out contradictory though the bill does not causes. Carr v. Kimball, 120 App. Div. 107, 114 NYS 300. Petition held to state but one

a fact to be alleged alternatively. Hendricks cause of action. Defendant claimed it contained two distinct causes; the covenant of

77. Where a complaint contains allegations

setism and the covenant, of warranty. Seyfried v. Knoblauch \[Colo.\] 96 P 982.

74. Heid contradictory Allegation on in-

breach of contract, a motion requiring plain-

formation and belief held not to show that

majority stockholders of a new bank effected

causes as required by Code Civ. Proc. $ 483, a consolidation with an old where such con-

should be granted. Astoria Silk Works v. clusion was contradictory to the allegations of the petition generally. Green v. NYS 175. Under Ball. Ann. Codes & St. Bennett \[Tex. Civ. App.\] 118 SW 108. Allegation in complaint for death of a child

tion may be united if separately stated, a

killed by a train that the operatives in the

experies of ordinary care should have disjecovered the peril of the child, etc., held inconsistent with an allegation that because of

their negligence the car got beyond their control and they could not stop it in time to

avoid injury. Gabriel v. Metropolitan St. R. Co., 150 Mo. App. 651, 109 SW 1042. Complaint demanding damages for breach of contract to deliver goods, predicated on the

theory that plaintiffs were purchasers and

which also demands commissions on the

theory that plaintiffs were brokers acting

for defendant, presents inconsistent claims,

and the establishment of either precludes

recovery under the other. Texas Brokergage

Co. v. Barkley & Co. \[Tex. Civ. App.\] 109 SW 1001.

Not inconsistent: Allegations in actions

for injuries while alighting from a street car

that plaintiff was caused to fall by the sudden starting of the car, and also that she

was caused to fall by sudden stopping of the

15 Cur. L--85.

1846 PLEADING SS 4. 12 Cur. Law. ...

stated is insufficient.\* A pleading in the alternative is not bad for duplicity.\*1 Where a count is in the alternative and attempts to present two causes of action therein, both alternatives must present a cause of action.\*22

\_Election.\_See 10 C. L. 1191--An election is required whenever a pleader relies on two different inconsistent conditions of fact.\*3 The doctrine of estoppel arising out of election of defenses (if the rule applies to defenses) requires a necessary inconsistency between the defenses in order to compel a choice.\*4

\_Splitting causes of action.\_See 10 C. L. 1191--One may not split his cause of action, but all damages arising from a single wrong or cause of action must be recovered in one suit.\*35

**80.** Where one cause of action is stated, without any right in defendant to require and an attempt to state another is wholly funtle, there is no misjolnder. Hentig v. Co., 81 S. C. 317, 62 SE 811. Where plaintiff Johnson \[Cal. App.\] 96 P 390. 18 is entitled to recover on both counts of his complaint, he should not be required to elect 182 (II. App.\] 416.

SS2. Since a count can be no stronger than Boston & M. R. Co. (Vr.\] 69 A 124. One who its weakest alternative. Sloss-Binfield Steel & Iron Co. v. Sharp \[Ala.\] 47 S 279.

and on a quantum merit need not elect at 88. If two inconsistent causes of action close of evidence on which cause he will rely are set up for the same act, the trial court should require plaintiff to elect upon which contract, entitled to have all evidence sub- he will stand. Symmes v. Rose \[Lg.\] 113 SSV 91. Where a complaint improperly \[Ind. App.\] 85 NE 719. A complaintant will 100 be required to elect whether to proceed plaintiff to elect upon which he will pro- coed. Flowers v. Smith, 214 Mo. 89, 112 SW quantum merit where the complaint is sus- 499. Where separate counts are inconsistent, plaintiff may be required to elect at close 114% App. Div. 424, 110 NYS 777.

of proof on which she will go to the jury.

**81.** Election properly required: In action on alfaenen v. Bay City Trac, & Elec. Co., 182

**34.** If a plaintiff fail to prove a joint tort as claimed, the trial which plaintiff was made a cer- 499.

**82.** If a plaintiff fail to prove a joint tort as claimed, the trial which plaintiff granted released all claims (ref.)

**83.** If a plaintiff fail to prove a joint tort as claimed, the trial which plaintiff granted released all claims (ref.)

**84.** In action for conversion of timber leged, he may elect at the trial which of de- fendants he will proceed against, and if for timber, a defense on second trial that granted leave to amend proceed against one plaintiff's granted had waived his right to or more. Krebs Hop Co., Taylor \[Or.\] 98

**84.**

**85.** Election not necessary: A plaintiff will not be required to elect upon which of sev- 117 NW 592.

eral consistent counts he will proceed. Landers v. Qulnoy, etc., R. Co. \[Mo. App.\] 114

**86.** When several claims payable at different 843. In action for damages arising from separate actions may be brought, but if no solution is brought until more than one is due, - all claims due must be included. Welch v.

ing decrease in rental value of adjacent land. Buchans Soap Corp., 56 Misc. 658, 107 NYS pastagre destroyed, sickness caused, and 616. Where a plaintiff voluntarily elects to treat his suit as on an express contract, but one cause. Kellogg v. Klriksville, 182

**87.** When a complaint is in two counts for same year?Yes one can contract and the other on quantum merit. Walar tilt, plaintiff will not be compelied to elect, - when he is entitled to recover on either count (ref.)

proved. Rubin v. Cohen, 129 App. Div. 385, 113 NYS 843. A complaint for injuries which shows relation between the parties of passenger and carrier is ex dellect and under (VWs.)

Code Civ. Proc. 1902, 8 1864, all acts of negil- (Fence or other wrong may be set forth pleading which may be set forth ple 12 Cur. Law. * PLEADING SS 3. * 1347

\_Prager.\_See 10 C. L. 1187--A prayer for relief defines the legal right claimed by plaintiff to guide the court and apprise defendant of what is demanded of him.\* It should not go beyond the scheme of the complaint.\* A party will be accorded such relief as the facts alleged and proved entitle him regardless of the demand.\* An inconsistent prayer may be stricken.\* In some states both legal and equitable relief may be prayed for.\* A prayer for alternative relief does not affect a ratification of an illegal act complained of.\* * 3. _The plea or answer._\* See 10 C. L. 1188--Matters relating to set-off and counternality.\* affidavits of defense,\* and the necessity of pleading under oath,\* are treated in separate articles. * \_General principles.\_See 10 C. L. 1188--The codes generally provide that the answer shall consist of a plain, concise statement of the facts constituting defendant's grounds of defense,\* or that it shall contain a denial of each allegation of the com- tory and failure to require defendant filings (der Code $ 3775, under a prayer for general separate answers to set forth all defenses in one pleading is error. National Stamping consistent with the allegations of the petitions & Elec. Works v. Vickka, 129 Mo. App. 382, 108 SW 598. Action on a contract for labor and NWF 600. * S0. Where a partition contains prayers for separate causes, an action by an assignee for the extras in not objectionable as splitting as a splitting causes. Shefnart v. Ritchie, 115 NYS 117. * Cause on contract for commissions on sales in defendants retail departments as compen- tand & Lumber Co. \[Ga.\] 61 SE 1114. * sation for services as superintendent is not the same as a cause for a share of a bonus yielded the same action. Dresser v. a department and a separate action for each Author for each plaint and a statement of any new matter constituting a defense or counterclaim," which must be set forth in the form prescribed by law." The plea or answer must be responsive to the allegations of the complaint " and should not be evasive or ambiguous.1 One made a party by supplemental complaint may answer by adopting the answer of the original defendant.2 Pleas should be single,3 and, except where permitted by the code," inconsistent defenses or pleas cannot be set up in the

some items of payment were charged prior to the execution of the contract and some thereafter is not subject to exception as an entirety but at most is bad only as to items for counterclaims should depend them charged before execution of the contract. SEx. Civ. App.J 115 SWC 33L. In an action on a contract to perform certain work for an agreed price, plainff must prove the contract price, and perform-

Code Clv. Proc. $ 507, providing that each to the execution of the contract and some thereafter is not subject to exception as an entirety but at most is bad only as to items for counterclaims should depend them charged before execution of the contract. SEx. Civ. App.J 115 SWC 33L. In an action on a contract to perform certain work for an agreed price, plainff must prove the contract price, and perform-

Code Clv. Proc. $ 507, providing that each to the execution of the contract and some thereafter is not subject to exception as an entirety but at most is bad only as to items separately separately as "for a first defense," "for a SEx. Civ. App.J 115 SWC 33L. In an action on a contract to perform etc. Id.

Certain work for an agreed price, plainff must prove the contract price, and perform-

Ill resulting trust in land, which are not ance of the work, and defendant could deny connected with the transaction as pleaded and do not arrive out of it, are denururable.

Burling v. Page, 49 Wash. 702, 96 P 155. In him to elect on which defense he would action by a corporation on a note, a plea stand. Benedict v. McMurtry, 115 NYS 87.

that the corporation had not taken out a 97. A plea setting up failure of considera-

License as required by law was bad, it not llon of a contract sued upon should be

appearing that the contract was void or that framed on the theory that originally there was a consideration which has wholly or

Co. v. Turner Supply Co. \[Aa.\] 48 S 510. partially failed because of subsequent occureness and must state facts sufficient to

paid all sums arising from plainff's claims defeat or diminish recovery. Williams v. First Nat. Bank, 20 Okl. 274, 95 P 457. Plea of accord and satisfaction should allege that

did not entitle the defendant to judgment thing delivered or money paid was delivered or paid, and received in full satisfaction of

constituted no denial of the plea. Sund-cause of action alleged. City of Rawlings v. Junequati, 16 VY. 403, 96 P 144. It is not a fatal objection that matter set up as a counterclaim is not expressly defined as such

where it distinctly appears that it was intended as such. Shotiand v. Mulligan, 80 Misc. 58, 111 NYS 642. A defense within Code Civ. Proc. $ 500, requiring answer to contain a statement of new matter constituting a defense, is matter which cannot be proved under a general denial. Stroock

Pluish Co. v. Talcott, 129 App. Div. 14, 113 NYS 214. Plea averring that arbitrators were sworn according to law is not objectionable as not alleging that they were not

a warn according to statute. Tennessee Coal, Iron & R. Co. v. Rousnell \[Ala.\] 46 S 866. Under the rule permitting equitable defenses in actions at law, acts held to constitute an abandonment of a contract precluding recovery of damages for breach there f. Cutright v. Union Sav. & Inv. Co., 33 Utah, 486, 94 P' 984. An answer in equity is insufficient if it does not confess or traverse the material allegations of the bill. Prestridge v. Wallace \[Ala.\] 46 S 970. Breach of warranty is not available as counterclaim to action for the price of the goods. Wilmerling v. Strouse, 112 NYS 1091. Where in an action concerning rights in property the complaint discloses source of plainff's title, defendant must plead all his defenses in avoidance of the title disclosed and cannot, as in a case where source of title is not disclosed, offer evidence of matters not pleaded. Dickson v. St. Paul, 105 Minn. 165, 117 NWV 426.

98. The phrase "by way of counterclaim" in an answer purporting to set up a counterclaim is improper under the code, providing for the pleading of new matter directly

for a counterclaim. Stroock Plus Co. v. Talcott, 129 App. Div. 14, 113 NYS 214. Under

1348

Plleading SS 3.

13 Cur. Law.

plainft and a statement of any new matter constituting a defense or counterclaim," which must be set forth in the form prescribed by law." The plea or answer must be responsive to the allegations of the complaint " and should not be evasive or ambiguous.1 One made a party by supplemental complaint may answer by adopting the answer of the original defendant." Pleas should be single,3 and, except where permitted by the code," inconsistent defenses or pleas cannot be set up in the

some items of payment were charged prior to the execution of the contract and some thereafter is not subject to exception as an entirety but at most is bad only as to items

fenses or counterclaims should depend them charged before execution of the contract. SEx. Civ.

same answer. Though pleas are inconsistent, defendant is entitled to the benefit of one of them.

A pleading denominated an answer will not be treated as both an answer and demurrer,' and a pleading cannot be made to perform the double office of answer and counterclaim * except where filed by different parties.\* A plea in recoupment may be withdrawn pending trial.\*

Each separate defense must be complete in itself,\[11\] except that matters alleged in other defenses may be incorporated therein by reference.\[12\] A plea of defense professing to answer the entire declaration, but which fails to do so is bad,\[13\] but one

835 Ill. 613, 85 NE 940. Civ. Code 1895, $ 5047, * swer and a demurrer, though some of al-expressed provides that pleas, however con-leged defenses are ground for demurrer traidictory, do not oust each other. Albany

only; objectienable allegations are regarded Phosphate Co. v. Husgger Bros., 4 Ga. App. 711, 62 SE 533. Even if defenses are incon-sistent, unless prohibited by statute, they

S. This rule is always applied to plead-may still be united in one answer and the

flaged by the same party, but not where pleader cannot be compelled to elect. Covington v. Fisher \[Okl.\] 97 P 615. While a Defendant has the privilege of filing contra-

87 NE 555.

dictory pleas, yet his defenses may be so

0. In action by A, B and C, for freight

related to one another that a finding in favor of one of them will esto him from asserting others. Southland Knitting Mills v.

Cennile Yarn Mills, 4 Ga. App. 753, 62 SE 582.

5. Inconsistent pleas, which amount to incompatibility, must not be made to the same transaction. People's Sav. Bank v. Hoppe,

132 Mo. App. 449, 111 SWV 1190.

**Held not inconsistent:** In action on a written contract, an answer denying execution of such contract, and a further answer that defendant's signature thereto was pro-

737.

**11.** Each separate defense pleaded must be

Boys Co., 49 Wash. 463, 95 P 490. In action

on warrants payable out of a special fund, specific denial that defendant had on hand

in that fund the sum mentioned is not inconsistent with a general denial of the al-

lengation that it had not applied any part of

such sum to payment of prior indebtedness.

Pauly Jail Bldg. & Mfg. Co. v. Jefferson

County \[C. C. A.\] 160 F 866. A plea of general settlement and payment of all claims is

not an implied admission that any specific

cause of action existed in plaintiff\* favor

and is not inconsistent with a general denial. Fitch v. Martin \[Neb.\] 119 NWV 25.

Adverse possession and prior appropriation

of water rights are not. Hough v. Porter

\[Or.\] 98 P 1082. In suit to restrain use of

water, claims by defendant, as riparian

owner, and by adverse user. Davis v. Cham-

berlain \[Or.\] 98 P 154.

**Held inconsistent:** In an action on a note by a corporation, a plea alleging that the plaintiff did not have a license to do business could not be amended to make it a

good defense without departing from the defense alleged, the contract not being void

under the statute. Sunflower Lumber Co. v. Turner Supply Co. \[Ala.\] 48 S 510,

**6.** In action on notes given for a jack

where defendant pleaded breach of warranty, but admitted that the jack was worth something and also pleaded want of consideration, though the pleas were inconsistent, he

was entitled to the benefit of one of them. Broderick v. Andrews \[Mo. App.\] 115 SWV 519.

7. Where a pleading \[is designated an answer, it will not be treated as both an an may plead to a part of a count if such part is material and severable from the rest and the plea professes to answer that part only.14 An answer purporting to respond to the whole of a bill overrules a plea to the bill or any part thereof.15 The province of a partial defense is to limit or restrict the extent or quality of the relief and not to destroy the complaint.16 A special plea which sets up facts admissible on general issue is demurrable,17 and pleas tendering an immaterial issue will be disregarded although not demurred to.18

Pieas reiterating defenses 19 or setting up a defense available under a general denial already interposed are bad.20 A defense personal to one defendant is not available to his codefendants,21 but a defense to the merits or substance of the complaint may be pleaded by all, or where pleaded by one inures to the benefit of all.23 Where a plea is abandoned the facts therein are no longer available as a defense.23 A rule permitting defendants to abandon a special defense and proceed under a general denial eliminates the special defense from the answer.24

Dilatory pleas,25 or pleas in abatement,26 are not favored and are to be strictly construed, and not aided in construction or by any intendments. They should fully aver what is necessary to be answered.27 Plea of former adjudication must be pleaded as a separate defense, connected by proper allegations with the subject-matter of the action.28 The highest degree of certainty is required in pleas to the jurisdiction.29 A plea in bar goes to the whole bill 29 and must be addressed thereto.21

$ 507, providing that unless defense or counterclaim is alleged as a complete answer it must specify the cause which it is intended to answer, where no such specification is made, the plaintiff can and the court must assume that it is pleaded as a complete defense and will be treated as such on denumrer. Price v. Derbyshire Coffee Co., 128 App. Div. 472, 112 NYS 830.

14. Reed v. Firemen's Ins. Co. \[N. J. Law\] 69 A 724.

01. McDermitt v. Newman \[W. Va.\] 61 SE 300.

01. Admits right of plaintiff to some relief. Vinaen v. Union Bage & Paper Co., 130 App. Div. 313, 114 NYS 220.

01. Hubbard Milling Co. v. Roche, 133 Ill. App. 602.

01. Leave to amend should be given in such case or relepader ordered. Rodrigues v. Merriman, 133 Ill. App. 372.

01. Paragraph of an answer which repeats as a partial defense that which has been previously alleged, and which if true was a perfect defense, is demurrable. Shattuck v. Guardian Trust Co., 125 App. Div. 431, 109 NYS 862.

01. Under plea of "not guilty" in element, any defense is available and striking special pleas of limitation is not erroneous. Leorvix v. Malone \[Ala.\] 47 S 725. A paragraph of an answer which merely pleas in affirmative form matters put in issue by a traverse in a preceding paragraph is properly stricken. Cumberland Te. & T. Co. v. Cartwright Creek Tel. Co., 32 Ky. L. R. 1357, 108 SWP 875.

01. Such as infancy or coverture. City Nat. Bank v. Jordan \[Iowa\] 117 NW 758.

01. City Nat. Bank v. Jor#an \[Iowa\] 117 NWP 758.

01. Where in action on notes, after plea of limitations, plaintiff by amended complaint on which the case was tried sued on the original promise as well as on renewals of the notes and defendants abandoned their 12 Cur. Law. PLEADING SS 3. In Mississippi pleas in abatement and in bar cannot be joined." A plea in bar will be considered as such though styled a plea in abatement.83 A plea of payment is not a plea puis darrein continuance, where it appears that payment was made after suit commenced.84

_A plea of mul tief record_ should conclude with a verification.85 Such a plea is not proper as applied to the proceedings of a court not of record.88

\_Denials and traverses.88e 10 C. L. 1901--\_The truth of a plea may be put in issue by a traverse,87 but if it is desired to set up matter of justification or excuse, it must be done by plea in confession and avoidance.88 Denials should not be in the conjunctive form 89 but are sufficient if in the form prescribed by law.40 Denials on information and belief are generally permitted by the codes 41 except as to matters presumptively within defendant's knowledge.42 Where permitted the form prescribed must be adhered to.45 A general denial followed by a special denial of the

bar and goes to the whole bill, and want of

41. Under Code Civ. Proc. 1805, $ 690, pro-capacity to sue may be taken advantage of.

viding for denial of knowledge or information w. Moore v. Moore \[N. J. Eq. 70 A 684.

31. A plea which professes to answer the

tion that defendants "have not sufficient

whole declaration and prays judgment in

knowledge or information to form a belief

bar of the action is irregular where it con-

as to matters and facts alleged in the com-

tains no answer to the common counts. Haglair's is a denial within the statute. Milli-

ley v. Supreme Court of Honor, 139 S11. App.

wanke Gold Extraction Co. v. Gordon, 37

478. A plea to the "amended declaration and

Mont. 209, 95 P 985. Under Mill's Ann. Code, the additional counts" is a plea to the whole

declaration, although but one count of

not presumptively within defendants' knowl-

was amended at the time the plea was filed.

edge it shall be sufficient to state that

Michigan Cent. R. Co. v. Harville, 136 Ill.

endant has not and cannot obtain information upon which to base a denial, a denial

32. Under Ann. Code 1892, $ 682, $ 684,

"on information and belief" is insufficient.

pleas in abatement and in bar cannot be

Erskine v. Russell, 43 Coalo. 44, 96 P 249.

joined. Rice v. Patterson \[Miss.\], 46 S 255.

33. In action against a firm, pleas styled

"pleas in abatement," setting up that firm

was a corporation, etc., held pleas in bar,

due held insuffient as a denial of the terms

and if valid for any purpose amounted

merely to a general issue. Rice v. Patterson \[Miss.\] 46 S 255.

34. In action for debt where defendant set

up general issue and plea of payment and

it appeared that debt was paid after suit,

held plea of payment was not a plea puis

darrain continuance. Stevens v. Standard

Oil Co. \[Ala.\] 47 S 140.

35. Reed v. Waterbury Nat. Bank, 135 Ill.

App. 185.

36. Feld v. Loftis, 140 Ill. App. 530.

37, 38. Priest v. Dodsworth, 235 Ill. 613, 85

NVE 940.

29. In action by owners in severalty of

lots for cancellation of warrants for street

assessment work, an answer denying that

plaintiff owns or has ever owned two of the

lots does not deny ownership, for a denial

in the conjunctive rales no issue as to ownership of either of the lots. Toomey v.

Knobloch \[CaL App.\] 97 P 529.

40. Code Civ. Proc. $ 533, expressly pro-

vides that a denial that plaintiff had per-

formed all the conditions of a contract by

him to be performed, as alleged, raises a material issue. Hudson Cos. v. Bricmer, 113

NYS 997. Separate denials of paragraphs of

a complaint in compliance with Civ. Code

1895, $ 4861, will be regarded as distinct

pleas only where the particular allegations

denied are such that a simple denial thereof

contains all the essential elements of a com-

plete plea within Civ. Code 1895, $ 5330.

Crockett & Co. v. Gerard & Co., 4 Ga. App.

360, 61 SE 552. In action for breach of con-

stract, denials held not a distinct defense, Id,

d, same fact is improper. \[44\] A general denial may never be included in an affirmative defense of new matter, while a special denial may be so included only when necessary to make such defense complete and available. \[45\]

_Concession and avoidance_,See 10 C. L. 1202--A plea in confession and avoidance must give color to the matter to which it is applied. \[46\] A pleading which attempts to confess and avoid, but fails to do so, is bad. \[47\] A plea of contributory negligence is in the nature of confession and avoidance. \[48\] In an action for libel where defendant pleaded a general denial, a plea of justification was not by way of confession and avoidance. \[40\]

## 4 Replication or reply and subsequent pleadings

\[50\] See 10 C. L. 1202--The code provisions as to the necessity of a reply vary in different jurisdictions. In some states no reply is necessary; \[51\] in others a reply is necessary only when the answer contains a counterclaim, \[52\] or new matter constituting a defense or counterclaim, \[53\] or new and affirmative matter; \[54\] while under the California statute all new matter in

State v. Trask, 185 WIs, 833, 116 NW 828. Al-

47. In action on a judgment for allmony

01. Search Note: See notes in 8 L. R the answer in avoidance or constituting a defense is deemed to be controverted without a pleading to that effect.\[56\]

The reply must be responsive and defensive to the new matter alleged in the answer." It must not be inconsistent with the allegations of the complaint," nor

viding that when an answer contains new

matter the court may require a reply on

complaint. Smart v. Burquoin \[Wash.\] 98

defendant's motion, where an executor used

for fraud of his testator, and having no

formance of all conditions to a right of acap personal knowledge thereof set up orders

and decrees in proceedings in which plain-

taking issue to the performance of a con-

tiff and testator were parties and sealed in

struments signed by plaintiff based on in-

Essex County Park Commission, 164 F 901.

strument attacked for fraud, held entitled

Held to constitute a departureWhere

to a reply. Richards v. Greason, 128 App.

Div. 320, 112 NYS 675, Where vendor in pos-

designed and mortgage executed by her former

session uses to quiet title against a vedee

In default, and the vedee sets up equities

with intent to avoid payment of alimony and

which with tender of amount due would de-

feat the action, any countervailing equities

setting up a cause to redeem from the mortgage. Moss v. Fitch, 212 Mo. 484, 111 SWV

default must be specially pleaded. McCullough v. Rucker \[Tex. Civ. App.\] 118 SWV 323.

Held sufficently alleged by supplemental

claim business, and that plaintiff was em-

tion. Id. A pleading by defendants may, as to

one made a party on their motion, be deemed

gation and statement in the answer admitted

a cross complaint; but as to plaintiff it is an

such facts. Hilli Rick & Tile Co. v. Gibson,

answer setting up matters of defense. By

43 Co. 104, 95 F 293. Where plaintiff

Rev. St. 1901, par. 1357, such matters are

cared on a bill of exchange as payee, a reply

regarded as denied by plaintiff unless ex-

alleging himself as Indorese. Alabama

pressly admitted. Copper Belle Min. Co. v. Fierst Nat. Bank \[Ala.\] 48 S 240.

Cosello \[Ariz.\] 95 F 803. Where plaintiff

Where right of parties has been fixed by

in an action to enjoin trespas claims under

a lease, an allegation in the answer that

inal contract and defendant pleads award,

such lease has been canceled is new matter

which must be taken if true unless denied.

should plead it by amendment and not by

Stanser v. Cather \[Neb.\] 117 NYS 98.

reply. Spies' Adm'x v. Bartley \[Ky.\] 113

58. Allegation of answer of delivery of

Seed under which defendants claimed

deemed controverted under Code Civ. Proc.

$ 462, providing that statement of new matter

ter in answer in avoidance or constituting

defense must be deemed controverted. Drinkwater v. Hollar, 6 Cal. App. 117, 91 P

664.

P

65. Separate defense pleaded in reply to

counterclaim held but a partial defense, but

when considered with denials reiterated

therein to constitute a complete defense and

not demurrab. Browning & New York

Leasing Co., 110 NYS 928. Allgations in

separate defenses in a reply held to con

stitute a complete defense to defendants'

counterclaim. Id. A replication must either

traverse or confeas and avoid the matter

pleaded or present matter of estoppepepe

thereto. McKimmie v. Forbes Piano Co.

\[Ala.\] 46 S 772. Held insufficient. Id. In

action for assault and battery replication to

ple of justification and self-defense held

good, and moreover to constitute but a general

eral traverse to pleas alleging use of no

more force than was necessary. Abney v.

Mize \[Ala.\] 46 S 230.

57. A departure is a desertion of the

ground which the pleader occupied in his

last antecedent pleading and a resort to an

other ground. If a reply asserts some

ground not counted on in the complaint, it

is a departure. Eagle Fire Co. v. Lewallen

\[Fla.\] 47 S 947. Matter in reply inconsistent

with the complaint will be regarded as sur-

plusage. Moss v. Fitch, 212 Mo. 484, 111 SWV

475. The test of a departure is whether evlind

dence of facts alleged in the reply 'could

the answer in avoidance or constituting a defense is deemed to be controverted without a pleading to that effect.\[56\]

The reply must be responsive and defensive to the new matter alleged in the answer." It must not be inconsistent with the allegations of the complaint," nor

viding that when an answer contains new

be received under the allegations of the complaint. Smart v. Burquoin \[Wash.\] 98

defendant's motion, where an executor used

P 666. Where a declaration allegates per

for a fraud of his testator, and having no

personal knowledge thereof set up orders

tion, plaintiff cannot by replication to a plea

and decrees in proceedings in which plain-

taking issue to the performance of 1354 PLEADING SS 5. 12 "Cur. Law. can it, as a rule, be used as a ground for affirmative relief." It must either present matter of estoppel to the plea or must traverse, or confess and avoid, the matter pleaded by the defendant." A replication should not commence with preludi non when matter of estoppel is to be replied." The generally accepted doctrine is that a reply to a set-off or counterclaim is restricted to averment of new matter constituting a defense not inconsistent with the complaint." A replication like a plea must be single," and while duplicity does not render it subject to demurrer, it does under the New Jersey practice to a motion to strike." A plaintiff in one replication may traverse a plea and in another confess and avoid it, but the two defenses cannot be embraced in one replication." A plaintiff cannot file a replication concluding with a verification to a plea which concludes to the country." A reply should specifically point out the new matter in the answer denied." A confession and avoidance is not inconsistent with the allegation of the petition, and where the reply denies nothing in the answer except what is "inconsistent with the petition," a court may properly give judgment for the defendant on the pleadings." A reply setting up adverse possession is no departure from a complaint alleging ownership and possession and that defendant claimed an adverse interest." Replication to a plea of nul tied record should traverse the plea and offer the record." \_Additional pleadings.\_See 10 C. L. 1204

SS 5. _Demurrer._" \_General rules.\_See 10 C. L. 1204--A demurrer reaches only such defects as are apparent on the face of a pleading " to which it is addressed," and

Worthington \[Ala.\] 46 S 477. Reply held up matter of defense and also by way of not to constitute a departure nor to traverse and confees and avoid the allegations of the plea. Webster V. State Mut. Fire Ins. Claim but his statements must be confined to patterns which constitute a defense. Beagleations and deny others. Id. Woman who in good faith married a man who had a wife commission, 184 F 901.

Worthington \[Ala.\] 46 S 477. Reply held up matter of defense and also by way of not to constitute a departure nor to traverse and confees and avoid the allegations of the plea. Webster V. State Mut. Fire Ins. Claim but his statements must be confined to defendant from month to month, notice to quiet, etc., and answer denied tenancy as alleged and set forth rights under a lease from a prior owner and a reply denied a holding under such lease and attacked the validity thereof, held it was proper to deny motion to strike affirmative matter from the reply, since it injected a new issue into the case and gave plaintiff the right to question the validity of the lease on any ground not inconsistent with other defenses. Ryan v. Lambert, 49 Wash. 649, 96 P 232. Where a petition to quiet title states that defendant has no interest in the land but claims an unfounded dover interest, a reply alleging that the claim is unfounded by reason of defendant's nonreflecting does not introduce a new cause. Miner v. Morgan \[Neb.\] 119 NW 781.

S9. Supreme Lodge K. & L. of H. v. Benes, 135 Ill. App. 314. A petition of matter of estoppel to a plea amounts to saying that the party is estoppel by law from setting it up; it is not an assertion of right by the party pleading it but a denial of the right of the defendant to make the defense attempted and to be availed of should be made the subject of a special demurrer. Id.

60. Supreme Lodge K. & L. of H. v. Benes, 135 Ill. App. 314. A petition of matter of estoppel to a plea amounts to saying that the party is estoppel by law from setting it up; it is not an assertion of right by the party pleading it but a denial of the right of the defendant to make the defense attempted and to be availed of should be made the subject of a special demurrer. Id.

01. Supreme Lodge K. & L. of H. v. Benes, 135 Ill. App. 314. A petition of matter of estoppel to a plea amounts to saying that the party is estoppel by law from setting it up; it is not an assertion of right by the party pleading it but a denial of the right of the defendant to make the defense attempted and to be availed of should be made the subject of a special demurrer. Id.

01. Supreme Lodge K. & L. of H. v. Benes, 135 Ill. App. 314. A petition of matter of estoppel to a plea amounts to saying that the party is estoppel by law from setting it up; it is not an assertion of right by the party pleading it but a denial of the right of the defendant to make the defense attempted and to be availed of should be made the subject of a special demurrer. Id.

01. Supreme Lodge K. & L. of H. v. Benes, 135 Ill. App. 314. A petition of matter of estoppel to a plea amounts to saying that the party is estoppel by law from setting it up; it is not an assertion of right by the party pleading it but a denial of the right of the defendant to make the defense attempted and to be availed of should be made the subject of a special demurrer. Id.

01. Supreme Lodge K. & 13" Cur. Law. PLEADING SS 5.

must be considered as directed against the pleading as it stands at the time the de-murrer is interposed." Its office is to test the sufficiency of a pleading 14 and not to determine whether the cause is of equitable cognizance.16

was merely descriptive, it was not sub- Co. v. State \[Ark.\] 116 SV 193. Counter- ject to demurrer on ground that defend- claim not arising from nor legally connected ant was truste for a certain firm co- with the subject-matter of the complaint 18 sliding of himself and another, since the bad on demurrer, though facts set forth objection did not appear on the face of might have been a good defense. State v. \[Erskine v. Russell, 43 Colo.\] Spencer (Ind. App.) 86 NE 492. On demur- 449, 86 P 249. Oral admissions of fact by a party or his attorney are not proper mat- court will not determine from an inspection ter for consideration in passing on a de- murrer or motion to dismiss. Hicka v. Wc Kee" or to "Long Sins Wc Kee." Moy Beacham \[Ga.\] 62 SE 45. A ground of de- 277. In action against a county and its of- gations of the complaint do not present a da bignaway, caused by cutting ditches, the statutory form of demurrer that the com- delimit is bad in substance and is of no avail demurrer by the county alone. Heee v. unless it appears from the complaint that hexkreley County, 80 S. C. S2, 61 SE 203. De- the substance does not state a cause of action. Germma-American Lumber Co. v. Property sustained. Low v. Wilson, 77 Kan. Brock \[Fl.\] 46 S 740. Objection that com- 852, 95 P 1185.

plain by a foreign correlation did not show #2. In passing on a demurrer to an that it had paid the license fee required can. amended edition, objectionable parts of the not be raised by demurrer. Union Trust Co. v. Sickles, 125 App. DIV. 105, 109 XY8 262. Farmington V. Farmington Tel. Co. (Mc. Courts must take judicial notice of general laws of the United States, and defendant's sidered are those alleged in the pleading claim, depending on such law, that complaint dammitted to. Jackson's Adm'v, Richard- does not state a cause of action may be based on Coal Co., 83 L. R. 283, 109 SW 902.

Danurrer should be to bill as amended and 59 Miles. 269, 109 XY8 1119. In action for not to amended bill. Bentley v. Barnes damages for failure to execute a dead pursuant to a decree for specific performance, the tested by demurrer must stand or fall defendant could not avail himself on demurrer to the complaint of any right he may award or another part of the record. Lake have had by reason of the decree, the com- Erie de W. R. Co. v. Moore \[Ind. App.\] 84 plain stating the cause of action. VIII v. NNE 506.

Barnwell, 60 Mine. 458, 112 NYS 462. Where **73.** A demurrer is addressed to the pleading as it stands, Irrespectively of what subse- employment it did not appear from the face of the complaint that defendant company be in not to be considered. Blanks v. Mis- was organized under the insurance laws of the state or was engaged in the business of SW77. The effect of sustaining a demur- life insurance, the invalidity of the con- ter to a plea of stepped is to leave the an- - next because made for more than one year asr if estopoped had not been pleaded. by demurrer. Akers v. Woudley, 81 S. C. 829, 62 SE 203.

Fasled by demurrer. Akers v. Wudlue Lite 405. The fact that a demurrer to a defense has a sustained will not preclude the consideration of facts therein alleged in connection with other defenses as to which they are 'effe part thereof' is bad. Holt v. Hamlin Trenn.) 111 SW 241. It is error to sustain & demurrer to an answer which denies the 'material allegations of the complaint. Gun- offered in response to special demur- melts v. Latin \[Ark.\] 111 SW 273. On denurrer a complaint is tested by its allegation. Spaulding Mfg. Co. v. Chaudon \[Ark.\] 112 SW 1087. Possibility that proof may be introduced of an injury other than v. Clere Clothing Co. \[Ga. App.\] 63 SE 143. that alleged is not ground for overriding a where one ground of a demurrer is sustained and others overrided and plaintiff amends, can Tel. & T. Co., 166 F 820. More confusion and defendant does not demur to the 'futstburgh', etc., R. Co. v. Rogers \[Ind. App.\] damurrer does not apply to the amended 87 NE 28. Under Burns' Ann. St. 1908, $110, it is not error to sustain & demurrer & 1101. A demurrer to a 'paragraphs of an answer provable under "complaint" is addressed to the case 'general denial. Ripley v. Lemcke \[Ind.

1256 PLEADING SS 5. 12 Cur. Law.

A demurrer cannot go to a fragmentary part of a pleading but must go to the whole of the count, plea, or defense to which it is addressed.76 A demurrer for want of facts is bad if the complaint warrants the granting of any relief,77 as is a demurrer addressed to a pleading as a whole if any of the counts or defenses set up therein are good.78

A general demurrer is equivalent to a plea to the merits.79 Due diligence must be exercised in filing a demurrer,80 and it must be interposed by one entitled to demur,81 and whether the right to demur has been waived may depend on statutes.82 A demurrer does not lie to a bill of particulars.83

complaint which supersedes the original, only the substituted complaint will be looked to. Robert V. Hefner \[Neb.\] 116 N NV 86. In proof of the facts alleged plaintiff would be passing on a demurrer to aeption, the omitted to any relief, and not whether he court will consider an exhibit attached thereto and made a part thereof if allega-Guerard v. Jenkins, 80 S. C. 223, 61 SE 258.

tions therein either aid the petition in stating a cause of action or charges facts going to avoid the liability of defendant. Cargon v. Hastings \[Neb.\] 116 N NV 673. A demurrer to a complaint containing but one count must be considered as applying to the complaint as an entirety, v. McAnlton \[Ind. App.\] 86 NEW 1081.

complaint as an entirety, not to fragmentary portions of it or to the attached copy of the cause of action alone, though the same has by apt words been made a part of the complaint. State v. Seaboard Air Line R. Co. \[Aims.\] 48 S \[Fla.\] 47 S 886. That two causes of action are not separately stated and numbered as such does not prevent demurrer for improper joinder. They need not be separated and numbered on motion before demurrer. Edison Elec. Illuminating Co. v. F. H. Kalb-Riesh Co., 127 App. Div. 298, 111 N75 462.

74 The effect of a demurrer is to admit the facts pleaded, but its object is to test the sufficiency of the facts to constitute a cause of action or defense, and unless it is apparent that it was interposed in bad faith, it may be withdrawn on payment of costs. Asphalt Const. Co, v. Bouker, 127 App. Div. 780, 112 NYS 81. Conditions on withdrawal of demurrer stated. Id.

75 Cannot be sustained on the ground that complaint does not state facts justifying in-terposition of a court of equity. Pape v. Pratt Institute, 127 App. Div. 147, 113 NYS 354.

76 The fact that more than one ground of recovery is pleaded or that grounds set up may not be entirely consistent is no reason for sustaining a demurrer challenging only the sufficiency of the facts alleged. Bichel v. Oliver, 77 Kan. 69, 95 P 336. Where a pleading is good in part, a demurrer ret to it as a whole is properly overlended. Leahart v. Deedmeyer \[Ala.\] 48 S 371. De-murrer to a complaint as a whole which contains the common counts is properly overluded. George v. Drawdy \[Fla.\] 47 S 899.

77 No demurrer lies to relief prayed if facts alleged show plaintiff entitled to any substantial relief. Dlsbrow v. Cresmery Package Mfg. Co., 104 Minn. 17, 115 NWV 751. That plaintiff in framing his complaint proceeds on a certain theory does not render the complaint subject to general demurrer, if he states facts entilling him to relief on some other theory. Bell v. Bank of California. 153 Cal. 234, 94 P 889. Under B. & C. Comp. $ 68, provliting for demurrer to a complaint which shows on its face that the cause is barred, a demurrer cannot attack a part of a recovery sought by a complaint stating a good cause of action. State v.

13 Cur. Law. PLEADING SS 5. 1357

Form, requisites and sufficiency.See 10 C. L. 205--A frivolons demurrer is one which raises no serious issue of law.84 Where statutes prescribe the grounds of demurrer, no others are available.85 The office of a demurrer is to specifically point out defects to which it is directed so as to afford the opposite party an opportunity to cure them.88 The demurrer must clearly indicate the part of the pleading as-sailed.87 In some states the precise defect relied upon must be pointed out,88 and only grounds so specified may be considered.89 A general demurrer need not state the grounds of objection except where the benefit of a personal privilege is claimed.90 Where the form of demurrer is prescribed by statute, such form must be adhered to.91 A joint demurrer will be overruled if the pleading attacked is good as to any of the demurrants.92 It may be proper to amend a demurrer under some circum-

84. Where complaint contains much irrele-

NWF 751. Demurrer to complaint based on vant matter and statement of facts is con-

falsure to comply 'with a particular section fused, yet if a cause of action is stated a

of the code, not specifically referred to, is in-

demurrer is frivolons. MacMahon v. Simon,

128 App. Div. pj21, 112 NYS 1110. Demurrer

that trial court may require grounds of deb-

held not frivolons, and, with properly overruled, leave to answer should not have been

& O. R. Co. v. Rowsey's Adm'r, 108 Va. 632, 62

denied. Younce v. Broad Road Lumber Co.,

SE 468. Misjolander of causes in not reached

by a demurrer which does not point out the

SS. Municipal court act (Laws 1902, p. 1525)

does not restrict demurrors to complaints

which are written. Spitz v. New York Taxial

out the substantial matters of law to be ar-

cab Co., 62 Misc, 492, 115 NYS 247. Demurrer

to complaint on the ground that it does not

causale de cause of action does not reach dis-

crepanics between the relief to which the complaint may entitle and the prayer in the

entities plaintiff to relief sought, that

summons. Freeman v. Paulson \[Minn.\] 119

NFW 651. Demurrer not assigning any of the

promises of gift alleged cannot be enforced,

grounds prescribed by Burn's Ann. St. 1908,

are too general. Dareey v. Dareey \[R. L\] $ 344, properly overruled. Conrad v. Hansen

\[Ind.\] $5 NE 110. Held Insulfient where

not presenting any of the grounds for de-

drumrer enumerated in the code, Minnich v. Packard \[Ind. App.\] $5 NE 787. "Defect of

parties" as ground for demurrer means too

few and not too many, and demurrer lies

only for nonjolander and not for misjolander.

Tieman v. Sachs \[Or.\] $ P 163. Limitations

are not specified in Code \[Civ. Proc.\] $ 430, as

$ 40, as a ground of demurrer, and that objection to

a complaint, while required to be stated in

the demurrer, must be deemed to be included

with the ground of want of facts sufficient

to constitute a cause of action. Bell v. Bank

of California, 153 Cal. 234, 94 F 889.

86. Bryant v. Alabama G. S. R. Co. \[Ala.\]

46 S 484. One of two separate and distinct

defenses in an answer may be demurred.

Chargeston & W. C. R. Co. v. Lyons \[Ga. Shelby v. Charlotte Elec. R., L. & P. Co., 147

N. C. 537, 61 SE 377. A demurrer to a reply

is insufficient to raise the question whether

the reply is evasive or argumentative where

the principal objections are not pointed out.

Vwebster v. State Mut. Fire Co. \[Yt.\] $9 A 319.

87. Though a demurrer to a complaint as a

whole and to each paragraph was ambiguous, the court by overruling it as to each par

agraph constructed it as a demurrer to each

paragraph separately. Chicago & E. I. R. Co. v. Hamilton \[Ind. App.\] $5 NE 1044.

where demurrer does not raise question of

misjolander of plaintiff, the objection is not

presented by assignments complaining of

overruling of the demurrer. Hill v. Houk \[Ala.\] 46 S 562.

88. A demurrer for defect of parties plaintiff is good when it specifies and correctly

names the parties necessary. Disbrow v. Creamery Package Mfg. Co., 104 Minn. 17, 115

NFW 751. Demurrer to complaint based on

failure to comply 'with a particular section

of the code, not specifically referred to, is in-

demurrer is frivolons. MacMahon v. Simon,

sufficient under Code 1904, $ 3271, providing

that trial court may require grounds of deb-

hold not frivolons, and, with properly overruled, leave to answer should not have been stances."93 In New York it is not necessary to first have surplusage stricken from a pleading before interposing a demurrer thereto."94 A motion to strike may be equivalent to a demurrer.95

\_Issues raised.\_See 10 C. L. 1207.--A demurrer raises an issue of law 99 which must be determined upon the words employed in the pleading demurred to." It admits, for the purposes of the demurrer, only 98 the truth of all material allegations of fact which are well pleaded,"99 together with such inferences as may be reasonably drawn

93. Where complaint was demurred to generally and for misjofinder of causes, and de-murrer was overruled with leave to answer, demurrer. Shopbell v. Boyd \[Cal. App.\] 98 but before answer dependant moved to com-pel plaintiff to separately state and number 109 SW 418.

01. Allegations are to be taken as true, be obtained by demurrer, it was proper to permit defendant to file an amended demurrer, the effect of which was to overrule order overrule overrule overrule. Dent v. Lo Angeles County Super. Ct., 7 Cal. App. 683, 95 P 672. Where, at appearance term, a general and special demurrer were filed, the latter was not amendable at a later term by adding new grounds of demurrer. Central of Georgia R. Co. v. Motta, 130 Ga. 414, 61 SE 1.

01. Under Code City, Proc. 8 493, authorizing defendant to demur to a reply to a defense or counterclaim for insufficiency on its face, he is not required to first attack such pleading by motion to strike as surplusage facts already in pleadings. Klauder v. C. V. G. Import Co., 61 Misc. 255, 118 NYS 716.

01. A motion to strike a complaint on the ground that it showed on its face to be without merit may be regarded as a demurrer. Delaney v. O'Connor, 234 Hall. 546, 85 NE 226. A motion to strike a paragraph of an answer is an oral demurrer thereto. Kelly v. Malone \[Gm. App.\], 63 SE 638.

01. A demurrer to a complaint by a receiver of an insolvent corporation to recover the statutory liability of stockholders raises the right of plaintiff to maintain the action. Hammond v. Cline, 170 Ind. 452, 84 NE 827. Under Code City. Proc. 8 608 providing for partial defense, the only question on demurrer to such defense is whether it has sufficient for that purpose. Whalen v. Union Bag & Paper Co., 130 App. Div. 313, 114 NYS 220. A ruling thereon can decide questions of law only. Morrow v. Durant \[Lova\] 118 NUV 781. Where the facts relied on as constituting contributory negligence are set out, the sufficiency of such facts, la, on demurrer, a question of law. Southern R. Co. v. Dickens \[Ala.\] 45 S 215.

01. Foote v. Harrison \[TVi.\] 119 NUV 291. A demurrer admits allegations of the complaint to be true, and for the purpose of de-cliding the demurrer the facts alleged must constitute the sole guide in the determination of the propositions of law presented. Richards v. Farmers & Merchants' Bank, 7 Cal. App. 387, 94 Y 93. Whether court may apply doctrine of comparative injury is not before appellate court on appeal from an order overrule demurrer to complaint in an action to abate a legitimate business as a private nuisance. Does not affect question whether cause of action is stated, and hence, cannot be considered on demurrer. Holman v. Mineral Point Zinc Co., 135 Wie. 132, 115 NW 327.

01. Does not admit facts in the sense that the admission can be used on a trial. Dono-Mancy from them,1 but does not admit conclusions," nor mere assumptions incapable of proof,8 but the pleading demurred to is to be liberally construed in favor of its sufficiency.4 At common law a demurrer admits the jurisdiction but attacks the pleadings.4 As a general rule a demurrer, whenever and by whosoever interposed, reaches back through the whole record and condemns the first pleading defective in substance.6

1360 PLEADING SS 5. 12 Cur. Law.

\_Hearing and decision on demurrer.\_See 10 C. L. 1208--Where a demurrer and plea in abatement are both filed, the court may consider either first." A party to whose pleading a demurrer has been sustained should, ordinarily, be given opportunity to plead anew * unless the pleading is incapable of amendment; * and where a demurrer is overruled, the pleader should be given opportunity to plead over 10 or withdraw his demurrer 11 upon compliance with conditions imposed,12 but if the demurrer is frivolous he must show that was interposed in good faith.13 Where a demurrant does not exercise his privilege to plead over, the adverse party is entitled to judgment of dismissal.14 A demurrer cannot be withdrawn without leave of court.15 A demurrer not acted upon is considered waived 16 and is abandoned where leave to answer is asked after it has been overruled.17 A demurrer is properly sustained if some of the grounds are well taken.18 A demurrer is sustained, if sustained on any ground.19 A trial court is not required to state the grounds upon which its ruling

\[R. I.\] 70 A 1043. That a complaint- does not state a cause of action is a complete ruled and they allowed to plead over in reply to a demurrer to a defense. Maner v. payment of $10 costs, it was error for an-Potter, 112 NYS 10A. Where petitioners (other justice to permit them to answer and moved to carry a demurrer to a reply back to the petition, the court did 17,112 NYS 1092. On overruling a demurrer not err in omitting to do so. Town of Scott v. Artman, 287 Ill. 394, $6 NE 598.

7. As the court seems proper. McLaurin v. Fields, 4 Ga. App. 688, 62 SE 114, expressly

1. Municipal Court Act, $ 145, expressly

provides that where demurrer is disallowed, the court must grant leave to plead though the return day has passed. Schlesinger v. Meyer Really Co., 114 NYS 341. Where plaintiff was afforded two opportunities to amend so as to overcome objections raised * by a demurrer and was familiar with defects * of his pleading, it was not error to sustain * a demurrer to a second amended complaint * without leave to amend. Bouri v. Spring ' Valley Water Co. \[Ca1. App.\] 97 P 580, * (Where demurrer containing both general and special grounds was sustained without * affording opportunity to correct defects * pointed out, held error. Buchan v. William-son \[Ga.\] 62 SE 815. On demurrer to a pleading because not signed by counsel, it is disclaim * credianary for the court to permit counsel to sign it. McIntyre v. Smyth, 108 Va. 738, $2 SE 930.

9. Where complaint is defective for failure to allege a condition precedent which it is * conceded has not been compiled with it is proper to sustain a demurrer without leave to amend. San Joaquin & Klings River Canal & Irr Co. v. Stanislaus County \[Ca1.\] 99 P 386. While it may be an abuse of discretion to sustain a demurrer without leave to amend where a cause is stated and the d-murrer is directed to matters of form only, no such abuse can be said to be shown where the facts disclose no right in plaintiff. Bell v. Bank of California, 153 Cal. 234, 94 P 889.

1. Though defendants' demurrer was frivolous, he should be allowed to answer. MacMahon v. Simon, 1&S App. Div. 921, 112 NYS 1110.

1. Interlocutory judgment overruling demurrer that "In case plaintiff falls to pay costs within 20 days defendant may enter final judgment of dismissal" should be modified by allowing plaintiff to withdraw the demurrer and pay costs. Peters v. Needham Piano & Organ Co., 124 App. Div. 748, 109 NYS 572.

1. Where defendant's demurrer was overruled and they allowed to plead over in reply to a demurrer to a defense. Maner v. payment of $10 costs, it was error for an-Potter, 112 NYS 10A. Where petitioners (other justice to permit them to answer and proceed to trial without paying the costs. State Board of Pharmacy v. Lurie, 61 Misc. to carry it back to the petition, the court did 17,112 NYS 1092. On overruling a demurrer not err in omitting to do so. Town of Scott v. Artman, 287 Ill. 394, $6 NE 598.

1. As the court seems proper. McLaurin v. Fields, 4 Ga. App. 688, 62 SE 114, expressly

1. Municipal Court Act, $ 145, expressly

1. Under Code Civ. Proc. $ 497, providing provides that where demurrer is disallowed, the court must grant leave to plead though * to plead anew on such terms as are just Meyer Really Co., 114 NYS 341. Where plaintiff was afforded two opportunities to amend so as to overcome objections raised * by a demurrer and was familiar with defects * of his pleading, it was not error to sustain * a demurrer to a second amended complaint * without leave to amend. Bouri v. Spring ' Valley Water Co. \[Ca1. App.\] 97 P 580, * (Where demurrer containing both general and special grounds was 12 Cur. Law. PLEADING SS 5.

on a demurrer is based.\[20\] A judgment on demurrer is final.\[21\] The sustaining of a demurrer eliminates from the pleading the matter demurred to.\[22\] The result of sustaining a demurrer to a complaint on the ground that it shows liability to defendant is to dismiss the action and not give judgment for defendant.\[33\] Where demurrer is sustained with leave to amend, the action is pending until expiration of the period within which amendment may be made.\[24\] An order overruling a denmurrer with leave to withdraw it and answer, does not make leave to answer dependent on withdrawal of the demurrer.\[28\] An order overruling a demurrer previously sustained has the effect of vacating the prior order.\[28\] In overruling a demurrer to a complaint, the court may permit defendant after answer to renew the demurrer and then sustain it.\[27\] When a demurrer is improperly overruled all that subsequently occurs at the trial is nugatory.\[28\] A decision overruling a demurrer with leave to amend is an order, not a judgment.\[29\] Use of "order" instead of "adjudged" in ruling on demurrer is harmless.\[30\] Any error in sustaining a demurrer is harmless where the facts alleged in the pleading demurred to are proveable under an amendment \[31\] or otherwise.\[32, 88\] Judgment in due form is required in some few states.\[34\] If defendant refuses to plead over, judgment on the merits must enter.\[35\]

20. Hooper's v. Crane \[Fla\_\] 47 S 992.

01. Where a demurrer to a petition is sustained on the general ground that it does not state a cause of action and the pleader stands thereon and judgment is rendered, such judgment is final and the same facts cannot be reiliated. Holderman v. Hood \[Kan\_\] 96 P 71. Where complaint for specific performance alleged a contract claimed to be evidenced by writing set out to which denmurrer was filed asserting it to be within the statute of frauds which was overruled, held while such order stood evidence of such writing was admissible. Hawkins v. Studdard \[Ga.\] 63 SE 852.

01. State v. Portland General Elec. Co. \[Or.\] 95 P 722.

01. The result of sustaining a demurrer to a petition on the ground that it shows that defendant is not indebted to plaintiff but that plaintiff is indebted to defendant should be to dismiss the action and not to render judgment for defendant on the set-off. Held that entering of such judgment was erroneus. Jellico v. Ballie, 130 Ga. 447, 60 SE 998.

01. So that order made therein will warrant contentp proceedings for disloosye it.

Ex parte Joutsen \[Cal.\] 98 P 391.

25. An order overruling demurrer to complaint and providing that plaintiff have judgment but with leave to defendant to withdraw demurrer and answer within 20 days. Kryman v. Susemhlh, 137 W1a. 296, 118 NVW 837.

01. Where after a demurrer was sustained an order overruling it was made, the second order was not void for want of jurisdiction but its effect was to vacate the former. Rogers v. Shawnee Fire Ins. Co., 132 Mo. App. 275, 111 SWW 592.

01. Blalock v. Condon \[Vwash.\] 99 P 733.

01. General Supply & Const. Co. v. Lawton \[Ga.\] 62 SE 293.

01. Decision overruling demurrer with leave to answer is not a judgment but an order subject to vacation under- Code viv. Proc. & 473, authorizing the court to relieve a party from mistake in an order made during progress of the trial. Dent v. Los Angeles \[Tex. Civ. App.\] 112 SWW 345.

12 Cur. L.-- 86

les County Super. Ct., 7 Cal. App. 683, 95 P 672.

672.

001. Use of "order" instead of "adjudged" in overruling a demurrer is not reversible error. Comp. Laws 1897, $ 1027, providing such judgment is final and the same facts that judgment shall not be stayed for any monitor in metering judgment. Prussian \[Kan\_\] 96 P 71. Where complaint for specific performance alleged a contract claimed to be evidenced by writing set out to which denmurrer was filed asserting it to be within the statute of frauds which was overruled, held while such order stood evidence of such writing was admissible. Hawkins v. Studdard \[Ga.\] 63 SE 852.

001. State v. Portland General Elec. Co. \[Or.\] 95 P 722.

001. The result of sustaining a demurrer to a petition on the ground that it shows that defendant is not indebted to plaintiff but that plaintiff is indebted to defendant should be to dismiss the action and not to render judgment, overruling of demurrer to other judgment for defendant on the set-off. Held that entering of such judgment was erroneus. Jellico v. Ballie, 130 Ga. 447, 60 SE 998.

001. So that order made therein will warrant contentp proceedings for disloosye it.

001. An order overruling demurrer to a complaint and providing that plaintiff have judgment but with leave to defendant to withdraw demurrer and answer within 20 days. Kryman v. Susemhlh, 137 W1a. 296, 118 NVW 837.

## 6 Cross complaints and answers

See 10 C. L. 1200.-A cross bill is proper whenever a defendant has equities arising out of the subject matter of the original suit which entitle him to affirmative relief which cannot be had in that suit \[37\], but the cause of action set up in the cross-bill must affect or be affected by the original cause \[28\]. That portion of an answer which seeks affirmative relief must be treated as a cross-petition, and if the facts therein set forth entitle the defendant to any relief, the defense thus set up is good as against a general demurrer \[38\].

## 7 Amendments

See 10 C. L. 1210.-A amendments are, as a rule, freely granted in furtherance of justice \[41\] and in many states this rule is prescribed by statute \[41\].

## 8 Search Note: See notes in 13 L. R. A.

mitted in allowing amendments in furtherance of justice. Havilfe v. Davidsson \[dhahol\] See, also, Pleading, Cent. Dig. 1 286-301; 100 P.l. Under Code practice, greater lib-Dec. Dig. 1 138-150; 5 A. & E. Enc. P. & P.

erality is permitted in allowing amendments to answers than in permitting them to the complaint and this rule is sometimes ex-Co. \[Arliz\] 94 P 1116. In action to cancel a lease containing an agreement to sell, an answer asking specific performance held 96 P 261. Unless a complaint cannot be good as a counterclaim in view of B. & C. Comp. 1 402, notwithstanding 3 931, abolishing crossbillis. Merrill v. Hexter \[Or.\] 94 P 261. New facts which it is proper to introduce into a cross bill are only such as are necessary for the court in deciding the questions raised in the original suit. If a defendant goes beyond this his pleading will not be a cross bill but an original bill. Pat-person v. Northern Trust Co., 132 Ill. App. 63.

Under Civ, Code Proc. 8 96, a cross-petition setting up an independent cause of action against persons not parties to the original suit is bad. Mattingly v. Eversole \[Ky.\] 113 SWV 447. In suit to quiet title to land claimed by plaintiff under a state pat-ent, title to land claimed by defendant not within the patent cannot beiliated by way of cross complaint. Worcester v. Kits \[Cal. Ap.\] 96 P 335. A demand necessarily connected with and incident to the suit brought by the plaintiff is a proper matter of cross-action whether liquidated or un-in liquidated and cannot be defeated by the plaintiff having elected to use for the property in kind instead of for the contract price. Bateman v. Hipp \[Tex. Civ. App.\] 111 SWV 971.

C. L. 1200.-A cross bill is proper whenever a defendant has equities arising out of the subject matter of the original suit which entitle him to affirmative relief which cannot be had in that suit \[37\] but the cause of action set up in the cross-bill must affect or be affected by the original cause \[28\]. That portion of an answer which seeks affirmative relief must be treated as a cross-petition, and if the facts therein set forth entitle the defendant to any relief, the defense thus set up is good as against a general demurrer \[38\].

C. L. 1210.-A amendments are, as a rule, freely granted in furtherance of justice \[41\] and in many states this rule is prescribed by statute \[41\].

An attempt to answer a defendant is to answer a the matter being largely committed to the discretion of the trial court,43 whether

no new issue being made or proof offered. pleaded payment to amend to allege plain-Burke v. Burke \[Iowa\] 119 NW 129. Where

tiff's failure to comply with Laws 1902, p. complaint by assignee of a mortgagor of

1805, requiring foreign corporations to progas against mortgage alleged conversion

pure a certificate to do business in the state. but after it had been held on writ of error

Steiger Trunk & Bag Co. v. Wharnellffe, 114

that facts did not show conversion, an

NYS 442. Under the code, an amendment should

in caring for and selling the logs and acts

always be allowed where fit will promote jus-referred to in amendment were the same

tice, and justice requires it. Young v. McIlIl-

as those pleaded in original complaint, held

henny \[Ky.\] 116 SW 728. Under Code 1897, the amendment was authorized. Croze v.

$ 3600, authorizing amendments in further-

St. Mary's Canal Mineral Land Co. \[Alch.\]

156 Det. Les. N. 58, 117 NW 81. Where plain-

again a city for injuries caused by an ex-

tiff has but one cause of action which he

failed to properly describe, he may amend so

so as to allege that the city had constructive

that he may recover on it. Jones V. Pendle-

notice of the excavation. Pace v. Webster

ton, 151 Mich. 442, 15 Det. Les. N. 49, 115 NW

City, 138 Iowa, 107, 115 NW 888. Under Comp.

468. Failure to verify a bill is an amend-

Laws, $ 11268, authorizing amendments in

able defect. Hall v. McKellar \[Ala.\] 46 456.

furtherance of justice where case made by

Such special demurrers as were merritious

in action for death helc met by amendment.

ing action of trepsas for forople detanner, it

South Georgia R. Co. v. Niles \[Gza.\] 62 SE

was proper to allow an amendment striking

1042. Under Code Civ. Proc. & 194, authorizing court to permit amendments in further-

153 Mich. 342, 15 Det. Les. N. 484, 116 NW 1003.

ance of justice by correcting names, inserting material allegations, etc., it was proper

under evidence of justice, amendments should be

to permit plaintiff to amend to bring him-

allowed whenever rights are not prejudded.

self within Civ. Code & 2310, making con-

racts to deliver cotton vold unless the con-

Munipal Comt Act (Laws 1902, p. 1542,

tractor was owner of the cotton. Knight

c. 580) authorizing amendments to promote

Yancey & Co. v. Aenta Cotton Mills, 80 S. C.

Justice, it was error to refuse an amendment

218, 61 SE 396. In condemnation proceedings

in the county courts of Colorado, the com-

qualit may be amended to set up jurisdicde-

526, 108 NY 755. Under Civ. Code Prac.

tional facts. Goodman v. Ft. Collins \[C. C.\]

$ 14, providing for amendments in further-

A.J. 164 F 970. Complaint held not to un-

eequivocally state a cause of action for death

an amendment in action for divorce setting

after conscious suffering under Rev. Laws,

up acts of apparent infidelity long after the

c. 106, $ 72, and it was not error to allow an

partless had pleaded to the issue, specially

armedment to clearly state a cause under

$ 73. Hertility. Little, 200 Mass. 284, 86 NE 294.

plaintiff was successful. Robards v. Ro-

The fact that action was brought in name of

bards, 83 Ky. L. R. 565, 110 SW 422. Under

decedents' administrators, and that notice of

P. L. 1903, p. 572, authorizing such amendment to sue required by $ 75, alleged death

preceded by conscious suffering was not con-

In the action the real question in contro-

clusive that plaintiff intended to use for

very, it is the question which the parties

death preceded by conscious suffering. Id. intended to try, and not the question at issue

Amendment which merely makes the description of a place where an injury occurred

Vest Jersey & S. R. Co. \[N. J. Law\] 70 A 175.

more certain is permissible. Palmer v. Wael

43. Hirsch v. Beard, 200 Mass. 569, 86 NE

terloo, 138 Iowa, 296, 115 NW 1017. It is

954. McCormick v. Jester (Tex. Civ. App.)

proper to amend a defect in a complaint

which does not show whether defend is

a. corporation or a partnership. Stowers

\[Ala.\] 48

## 1364 PLERADING SS 7.

the proposed amendment be offered before, at,44 or after the trial,45 who may take into consideration the diligence exercised in presenting it,46 and impose such terms as

Footnote 49: Allowance of amendment to make placing conform to proof. Mansfield v. Malidity \[Mob. 19\* 18 Cur. Law. PLEADING SS 7.

- 1365 seem just." Amendments may, on proper leave granted," on proper application and showing," or in some states as a matter of right," be made before trial," at the

it set up a new cause of action or not.

v. Morgan Coal, Coke & Min. Co. \[Ky.\] 114 Stillwagon v. Baltimore & O. R. Co. \[C. C. A.\] 159 F 97. Where complaint for partnership

spondents motion to amend a complaint by accounting asserted existence of the partner-ship and such theory was adhered to until time of trial, it was proper to deny leave

a continuation. Despatch Laundry Co. v. to amend after evidence was in, to allege that the firm had been dissolved at a certain date.

S48, 118 NIV 162. Continuance on ground of Teipner v. Teipner, 135 Wis. 380, 115 NIV 1092. A party should not be permitted to amend

where by reason of his laches, misunder-standing of the rules of pleading or for any other reason, his opponent would be placed at an unfair disadvantage. Calvert v. Thurs-

not state a fause of action, it could be ton, 58 Misc. 347, 109 NYS 567. In action on a life policy where proof of insured showed

v. Townsend, 115 NYS 145. In the absence all his accident insurance, it was proper to deny leave to file a trial amendment to the answer alleging that insured hard just dis-

covered that insured carried more accident insurance than he represented. Continental

smended was served. Lyall v. Wood, 120 Casualty Co. v. Semple \[Ky.\] 112 SWY 1122.

Permitting amendment held not an abuse of discretion: Under Laws 1902, c 580, p. 1542,

a court will not be considered as having

a thing claimed that pleader had any informa-

abused its discretion in permitting amendment of a prayer in a mechanic's lien case to

excuse being given for not then amending, ask for personal judgment without granting

it will be allowed only upon payment of all

an adjournment, where the only objection

made was surprise, supported by no reason.

original pleading was served, with $10 costs

Zide v. Schenberg, 114 NYS 41.

of the motion. Id.

47. The court may permit a plea to be

a amended on payment of costs and thereafter

covert during the progress of the trial, was disregard and reject it. Boswell v. Johnson

properly entered on the notice book, was

\[Ga. App.\] 62 SE 1003. Where trial amendment of complaint did not change the issues

before the court and embodied in instruc-

not require different evidence, it was not

necessary. McGuire v. Chicago, B. & Q. R.

error to deny defendant time to answer.

St. Louis, etc., R. Co. v. State, 85 Ark. 561,

109 SWY 545. Terms of allowing amendment

all amendments except those as of course are discretionary. Rahles v. Thompson &

Bons Mfg. Co., 137 Wis. 506, 118 NIV 250; Lyall

legend that an oral contract was made in

v. Wood, 130 App. Dlv. 294, 114 NYS 272.

March, it was proper to permit an amend-

Where motion is granted to amend a complaint

ment that it was made in October. Miller

planting new issues and defendant

v. State \[Ind. App.\] 88 NE 493. Under Rev.

claims to have been misled and requests a

St. 1895, art. 1188, all amendments filed when

continuance, he cannot be required to dis-

courf; motion in local option election

evidence he desires to produce upon an-

other trial. Despatch Laundry Co. v. NEm-

name other parties, etc., held properly de-

ployer's Liability Assur. Corp., 105 Minn. 384,

117 NIV 506. Order on sustaining a demur-

ter to a complaint allowing plaintiff to

leave should not be stricken if it should have

armed as he may be advised will be con-

strued as meaning within the limitations of

Code Civ. Proc. 1902, $ 194, prescribing

amendments which may be made. Smith v.

Southern R. Co., 80 S. C. 1, 61 SE 205.

Continuous' field not error to deny a con-

thuance on granting leave to amend a com-

plant to change, slightly, the corporate name

of defendant. Sternis Coal Co. v. Evans'

courf; use is very similar to the

admur; use is very similar to the

burns' Ann. St. 1908, $ 403, 404, relative to

delay in filling amendments if an amendment

prejudice as defendant in his defense, he

should ask a continuance. Miller v. State

\[Ind. App.\] 86 NE 493. Under Clv. Code

Prac. SS 136, relative to continuance where

piedings are amended where an' amendment is filed out of the regular order of

pleading, if the adverse party desires a con-

thuance he should inform the court why he

cannot proceed to trial. Trocendle Coal Co.

Sear, 114 NYS 49. Under Code Civ. Proc trial,52 or at the conclusion of the trial to conform the pleadings to the proof,53

$ 542, providing that within 20 days after answer served or at any time before period for answering has expired pleading may be amended as of course, where plaintiff de-murred to paragraph of answer, defendant was entitled within time limited to amend by omitting such paragraph. Ulman v. Tanner, 127 App. Div. 508, 111 NYS 844. Under Code Civ. Proc. $ 542, permitting amendment as of course within 20 days, held not to permit more than one amendment as of course. Town of Hancock v. Delaware & T. F. Co., 128 App. Div. 683, 113 NYS 80. Under Code Civ. Proc. $ 798, providing for double time for doing an act when service is by mail, and 1 $ 542, providing for amendment as of course within the period of answer, where answer is served by mail, a party may amend it, of course, within 40 days. Schleger v. Most Holy Trinity Roman Catholic Church \[N. Y.\] was error to refuse an amendment to cover $7 NE 426. A contention that defendant's original answer by being a general denial could not be demurred to and that no further legadings were necessary would not deprive defendant of his right to double time. Id. **51**, Under Laws 1902, p. 1544, authorizing amendment at any time in furtherance of Justice, defendant should be permitted to amend on day set for trial where motion was made for judgment on pleadings. Miles v. Kuttner, 59 Misc. 224, 110 NYS 235. Where order sustaining demurred with leave to amend within 20 days is affirmed on appeal, amendment filed within 20 days, after filing of remittittur in the triel court is in time. **51**, Under Laws 1902, p. 1544, authorizing amendment at any time in furtherance of Justice, defendant should be permitted to amend on day set for trial where motion was made for judgment on pleadings. Miles v. Kuttner, 59 Misc. 224, 110 NYS 235. Where order sustaining demurred with leave to amend within 20 days is affirmed on appeal, amendment filed within 20 days, after filing of remittittur in the triel court is in time. **52**, Under Laws 1902, p. 154, authorizing amendment at any time in furtherance of Justice, defendant should be permitted to amend on day set for trial where motion was made for judgment on pleadings. Miles v. Kuttner, 59 Misc. 224, 110 NYS 235. Where order sustaining demurred with leave to amend within 20 days is affirmed on appeal, amendment filed within 20 days, after filing of remittittur in the triel court is in time. **53**, Under Laws 1902, p. 154, authorizing amendment at any time in furtherance of Justice, defendant should be impaired to amend on day set for trial where motion was made for judgment on pleadings. Miles v. Kuttner, 59 Misc. 224, 110 NYS 235. Where order sustaining demurred with leave to amend within 20 days is affirmed on appeal, amendment filed within 20 days, after filing of remittittur in the triel court is in time. **51**, Under Laws 1902, p. 154, authorizing amendment at any time in furtherance of Justice, defendant should be impaired to amend on day set for trial where motion was made for judgment on pleadings. Miles v. Kuttner, 59 Misc. 224, 110 NYS 235. Where order sustaining demurred with leave to amend within 20 days is affirmed on appeal, amendment filed within 20 days, after filing of remittittur in the triel court is in time. **51**, Under Laws 1902, p. 154, authorizing amendment at any time in furtherance of Justice, defendant should be impaired to amend on day set for trial where motion was made for judgment on pleadings. Miles v. Kuttner, 59 Misc. 224, 110 NYS 235. Where order sustaining demurred with leave to amend within 20 days is affirmed on appeal, amendment filed within 20 days, after filing of remittittur in the triel court is in time. **51**, Under Laws 1902, p. 154, 110 NYS 235. Where order sustaining demurred with leave to amend within 20 days is affirmed on appeal, amendment filed within 20 days, after filing of remittur in the triel court is in time. **52**, Under Laws 1902, p. 154, 110 NYS 235. Where order sustaining demurred with leave to amend within 20 days is affirmed on appeal, amendment filed within 20 days, after filing of remittur in the triel court is in time. **52**, Under Laws 1902, p. 154, 110 NYS 235. Where order sustaining demurred with leave to amend within 20 days is affirmed on appeal, amendment filed within 20 days, after filing of remittur in the triel court is in time. **52**, Under Laws 1902, p. 154, 110 NYS 235. Where order sustaining demurred with leave to amend within 20 days is affirmed on appeal, and 11 $ 542, providing that within 20 days after filing of remittur in the triel court is in time. **52**, Under Laws 1902, p. 154, 110 NYS 235. Where order sustaining demurred but not after judgment 54 unless authorized by statute.58 In some cases amendments amendment making complaint more definite and certain may be exercised at any time before final judgment. United States Fidelity & Guaranty Co. v. People \[Cole.\] 88 P 828. Where a variance is immaterial, leave to amend to conform to the proof should be granted. Bauman v. Tannenbaum, 125 App. Div. 770, 110 NTS 108. Petition in action against partnership may be amended to conform to proof that the firm was composed of three instead of two partners. Hamburg Disttilling & Distributing Co. v. Price & Co. \[Iowa\] 118 NWV 541. May be made after submission and sometimes after verdict in the court's discretion, Burke v. Burke \[Iowa\] 118 NWV 129. Whether an amendment to demand interest on the value of goods destroyed will be permitted after verdict, where no excuse is shown for delay is discretionary. D. J. O'Brien Co. v. Omaha Water Co. \[Neb.\] 118 NWV 1110. An amendment to an answer to make it conform to the proof may be permitted though not requested until after evidence is all in. Barker v. More \[N. D.\] 118 NWV 828. Properly permitted where the opposing party had ample opportunity to present his defense. Mansfield v. Mallory \[Iowa\] 118 NWV 290. An amendment to make an answer conform to the proof may be made at the close of the trial unless it substantially changes the defense. Barker v. More \[N. D.\] 118 NWV 823. Under statute authorizing amendments at any time before judgment, it is proper to permit amendment of complaint after verdict to conform to proof admitted without objection. Kennedy v. Swift & Co., 234 11. 606, 85 NE 287. May be permitted after evidence is in but before argument. Reed v. Light. 170 Ind. 550, 85 NE 9. Trial court may direct amendment to conform to proof where necessary to prevent a mistrial. Myers v. Holton \[Cal. App.\] 98 P 187. It is proper to permit amendment to conform to proof where cause of action is not substantially changed. Look- abaugh v. Bowmaker \[Ok!\] 96 P 651. Under Code v. Proc., $ 470, amendment to conform to the proof is timely when filed after the court has heard the evidence and argument, but before fildings or judgments. Hedstrom v. Union Trust Co., 7 Cal. App. 278, 94 P 386.

Property allowed: Held proper to allow an amendment to conform to proof by inserting an allegation as to consideration of a contract of shipment. Baltimore, etc. R. Co. v. Wood & Co. \[Ky.\] 114 SWV 134. Where a complaint did not contain proper allegations but defendant had formal notice of the claim and evidence thereof was admitted, it was proper to permit amendment. Coulter v. Independent Order of Forecsters, 168 P 805. In suit for specific performances tried June 27, 1906, plaintiff was properly allowed to amend his complaint on July 24, following, to conform to the proof. Gitles v. Hermosa Beach Land & Water Co. \[Cal. App.\] 97 P 91. Where pending suit on pledged securities by the pledger they were assigned to the pledge, it was proper to permit a supplemental complaint to conform to the proof, merely alleging the assignment, the agreement by which the pledge held them, and how she happened to rediver them to the pledger. Merced Bank v. Price \[Cal.\] 98 P 383. Amendment offered after court had adjonrned for the term and taken the case under advisement held properly allowed, the case being re-opened at next term. United States Fidelity & Guaranty Co. v. People \[Cole.\] 98 P 828. Where one of the issues is as to the value of property, it is proper to permit amendment to conform to proof thereof. Rankin v. Caldwell \[Idaho\] 99 P 108. Electrical amendments which do not change the issues but merely increase the amount demanded may be permitted at any time before verdict. Allen v. Chase \[Conn.\] 71 A 867. Where original complaint and bill of partuclars served all the purposes of a formerly correct complaint, it was proper at close of plaintiff's case to permit an amendment to set forth cause of action indicated by the bill of particulars and to make it conform to the proof. Howland v. Calite, 153 Mich. 349, 15 Det. Leg. N. 460, 116 NWV 1079. Under Stat. 1888, $ 2830, authorizing amendments to conform to the proof, held proper to allow an amendment setting up a contract shown by the answer and a modification thereof as proved by defendant. Brooklyn Creamery Co. v. Friday, 137 Wis. 461, 119 NWV 126. Under Civ. Code Proc. $ 134, authorizing amendment to conform to the proof, it was proper to permit an amendament to allegate that defendant had contracted to reduce temperature in a cold storage room to 40 degrees Fahrenheit to correctors. Paducah Ice Co. v. Hall & Co. \[Ky.\] 113 SWV 104. Where testimony is received without objection on an issue not raised, it is proper to permit an amendment to conform to proof where necessary to prevent a mistrial. Myers v. Holton \[Cal. App.\] 114 SWV 221.

Not an abuse of discretion to an allow: In section for death of a brakeman caused by a derailment, it was not an abuse of discretion to refuse to allow amendment of answer after proof setting up contributory negligence where the proof did not sustain it. Louisville & N. R. Co. v. Stewart's argument, but before fildings or damages v. Holmes \[Ky.\] may be made in the appellate court 59 or after remand therefrom,57 unless the judgment of such court finally disposes of the case.58 A pleading cannot be amended to conform to proof where objection is duly made to admission of evidence thereunder.59 An amendment will not be allowed after trial which will entirely change the theory upon which an action was brought and prosecuted.60 In some states statutes prescribe what amendments may be made;61 and in some jurisdictions amendments which

order sustaining a demurrer and denial of acts previously alleged to be wanton and new trial, the court has no jurisdiction to reckless. Taylor v. Atlantic Coast Line R. permit amendments but it has such jurisdiction. Co., 81 S. C. 574, 62 SE 1113. Where tenants action after the order but before judgment used for damages for collapse of the build-thereon. Dent v. Los Angeles County Super, ing due to failure to above up walls while Ct., 7 Cal. App. 683, 95 P 672. Where case excavating adjacent property, on the theory for vacation of a tax certificate was arfaced on assumption that bill had been amended to allege procurement, of tax deed, such amendment must be actually made before decree. Farmer v. Ward \[N. J. Eq.\] 71 A 401. In action on insurance policy where no issue was raised as to validity of assessment for nonpayment of which it was claimed the policy had lapsed, until after trial, plaintiff could not raise such issue by amendment without moving to set aside the submission. Griffith v. Merchants' Life Ass'n \[Iowa\] 119 NW 694. It is proper to permit plaintiff to amend his complaint by addition of an adammun clause after verdict but before entry of judgment. Florala Sawmill Co. v. Britt-Carson Shoe Co. \[Fla.\] 566. Where judgment for plaintiff is reversed because not sustained by the complaint, plaintiff should be permitted to amend only on payment of costs accruing after service of answer. Woolsey v. Brook-in Dent of a petition to enforce a mechanicury lien to show that items were sold to contract for the owner's house. Meyer v. Schmidt, 130 Mo. App. 333, 109 SW 832. Under Code Civ. Proc. 5 474, providing for judgment by any name of unknown defendant in suit to quiet title and amendment when true name is ascertained, held such amendment may be made on appeal where such defendant answers and asks affirmative relief. Blackburn v. Buckgort & E. R. R. Co., 139 App. Div. 410, 113 7 Cal. App. 649, 95 P 665. Where case was tried in justice court and one amendment allowed it was discretionary with the court on appeal to permit further amendment. McLaughlin v. Bradley \[Iowa\] 118 NW 389. If the identity of the cause of action is preserved, a petition may be amended on appeal to the district court from the country court. Seger v. Westcott \[Neb.\] 120 NW 170. After an appeal from a justice of the peace a new party may be added, and this right is not affected by the fact that such party was a 115 NW 385. Where a party obtains leave party in the justice court and dismissed that the proof, he cannot go farther than therefrom. Merriam v. Martin, 132 III. App. 161.

57. May be amended on remand after re-versal. St. Louis, etc., R. Co. v. Alverson \[Tex. Civ. App.\] 114 SW 673. In action for 39.

Injuries where no objection was made to destinmony of time lost, held plaintiff should be permitted to amend on remand to allege time lost and its value. Louisville & N. R. Co., 135 Wis. 68,

Co. v. Hurst \[Ky.\] 116 SW 391. Where the original complaint was for punitive damages alone, where the supreme court sent by the same lock for new trial, it was proper to permit an amendment as negligent the court.

1368 change the cause of action are permissible."21 In some states provision is made for compulsory amendment."22 The right to add, or eliminate, or substitute parties depends upon the statutes of the various states.23 An amendment substituting one party for another operates as a dismissal as to the latter.24 The amendment may be one of substance or form,25 but amendments changing the cause of action or introducing new issues are not ordinarily permitted,26 particularly after the running of

or defense, held not applicable. Kossuth may be amended as to matter of substance County State Bank v. Richardson \[Iowa\] and to join another party when equity and 118 NYW 906.

62 An amendment may be permitted be- for trial though it changes the cause of action or defense. Driiskil v. Kebbe \[S. D.\] I17 NW 135. Under Code Civ. Proc. 1902, 194, an amendment in furtherance of justice may be permitted though it inserts another cause of action. Taylor v. Atlantic Coast Line R. Co., 31 S. C., 674, 82 SE 1113.

63 A. Allegations in a complaint of loss or damage may not be so wholly irrelevant as to be amenable to motion to strike and yet able. McAfee v. Arnold \[Ala.\] 48 S 870.

64 Even where a static requires an action to be brought on relation in the name of the state, failure to so bring it is not ground for dismissal but an amendment may be made. Robertson v. Atlantic Coast Lane R. Co., 148 N. C. 528, 82 SE 413. It is discretionary to permit a complaint by a receiver, suing on behalf of creditors, to be amended by substituting as plaintiff a credetermining whether an amendment into stung for himself and on behalf of others. Buiut v. Williams, 81 S. C. 456, 82 SE 859. The purpose of Code 1907, 83 S67, permitting amendment by striking parties, is to permit improper parties to be stricken without working a discontinuance. Scararev, brought v. City Nat. Bank \[Ala.\] 48 S 62.

7 Where several plaintiffs are jointly, the pe-tition may be amended by striking the names of such as are not proper parties.

65 C. Code 1895, 8105. Western & A. R.

66 C. v. Blackford \[Ga.\] 63 SE 289. A complaint for wrongful death by an adminis-tration, it does not relate back to the beginning matrix who is not entitled under the stat- to the suit. Kis \[Ga. App.1 63 SE 86.2 The limitation on the

Insurance company against another to re-

power to permit amendments under Code

Civ. Proc. 1902, SS 194, to conform to the

proof that it shall not change the cause of

action, applies only during and not before

trial. Taylor v. Atlantic Coast Line R. Co.,

81 S. C. 574, 62 SE 1113. Where in action to

determine rights to land judgment was en-

terced against plaintiff in October, 1902, an

application to file an amended complaint

presenting a different cause in 1908 was

properly denied. Mannus v. Mannus \[Ky.115\]

115 SW7 115. A corporation was induced by

fraud to issue paid up stock for benefit of

an officer in consideration of forged securities. The stock passed into bona fide hands.

The officer died and his widow qualified as

administrix. The corporation sued the

widow and her surety for the value of the

stock. Held the petition sought recovery

on the theory of a stock subsportion and

an amendment seeking to hold him

liable
on the ground of implied subscription was

improper. Houston Fire & Marine Tns. Co. v. Swain \[Tex. Civ. App.1 114 SW 149.

**Amendments held not to set up a new or**

**different cause of action:** An amendment

which amounts only to a correction of

errors to conform to the evidence. Martin v.

Simon, Gregory & Co. \[Ark.\] 110 SW 1046.

Amendment merely amplifying a complaint

for injuries to a section forenra caused by

explosion of a torpedo. Galveston H. & N.

R. Co. v. Murphy \[Tex. Civ. App.1 114 SW

443. An amendment which relates to the

same matters, is for the same measure of

damages, and may be supported by the same

evidence, is not a departure. City of Farmington v. Farmington Tel. Co. \[Ido. App.\]

116 SW 485. Vhere original complaint for

trexpas alleged that in June, 1901, and on

divers days since, defendant trespassed, an

amendment alleging that the greater part

of the damage was done in 1902 and 1903.

Price v. Greer \[Ark.\] 116 SW 676. Where

original complaint to recover possession of

land and damages was by heirs, widow and

administrator, the withdrawal by the

administrator and filing a substituted

plain by other plaintiffs. Thomas v. Young

\[Conn.\] 71 A 1106. One who seeks to cancel

a mortgage on grounds that it was

obtained by fraud and was fraudulently altered

to include other property does not change

his cause of action by amending to charge

that the mortgage is a forgery and a sub-

sitution for the instrument read to him.

Lookabaush v. Bovnnaker \[Ok1\] 96 P 651.

Where original complaint in action on

a

more alleged that it had matured on the

maker transferring his land, and that he had

transferred "certain of his land," an amendment alleging that he had

"made a transfer

of his real real estate" was not inconsistent

with the original complaint. Loveday v. Parker, 50 VWash. 260, 97 P 62. Where

original complaint against a purchaser by

one who had a prior option prayed for the

difference between the option price and the

price at which defendant purchased, an

amendment asking judgment for a broker's

commission based on the same promise as

the original complaint. Myers v. Holton

\[Cal. App.\] 87 P 197. Complaint for

Inquires caused by being thrown while

ing from a train and amendment metro.

Southern R. Co. v. Clay, 130 Ga. 563, 61 SE

286. Where original complaint was by one

in insurance company against another to re-

form and enforce a contract of circumstance,

a new cause was not added by an amendment

ment setting up a previous contract bind-

ing defendant to reinsure and' stating

method. Delaware Ins. Co. v. Pennsylvania

Fire Ins. Co., 130 Ga. 643, 61 SE 492. Where

determine rights to land judgment was en-

complaint for injuries alleged that servant

fellow into a hole in the floor negligently let

ungwarded and that his foot caught in a

manendment alleging negll-

conveyor, an amendment alleging negl-

genee in leaving the conveyor unguarded.

Jackson v. Southern Cotton Oil Co., 81 S. C.

564, 62 SE 854. Where answer to verified

petition was filed at first term but was not

itself verified, verification permitted was

not an amendment which changed the

dense so as to open it to special demurrer.

Neal v. Davis Foundry & Mach. Works \[Ga.\]

63 SE 221. Where complaint alleged

injury to horses by running locomotive into

them, amendment alleging injury caused by

horses being rrightened onto a trestile by

a locomotive. Nashville, etc., R. v. Garth

\[Ala.\] 46 S 583. Amendment did not change

substance of demand. Schlater v. Le Blanc,

121 La. 919, 46 S 921. Where original complaint

plain changed "unmanageable" to "frightened." \[commandcommand=

\] McLemore v. West End \[Ala.\] 48 8 663. In action on liquor dealer's bond to recover a statutory penalty where husband and wife joined in the original complaint and the wife died, an amendment by the husband. Munoz v. Brassed \[Tex. Civ. App.\] 108 SWV 417. Where original petition alleged a part-nership to purchase and own a jack and that one of the copartners fraudulently represented that the price paid for the jack was double the price paid and sought to re-comver the excess, held an amendment to state that the purchasers were co-owners instead of partners. Gilliam v. Loeb, 181 No. App. 70, 109 SWV 835. Where complaint petition, though founded on the same in-in-in-out to foreclose a mortrage alleged amount due but prayed only for interest and costs, an amendment asking both debt and interest. Highland Land & Bldg. Co. v. Audas, 38 Ky. L. R. 214, 110 SWV 325. An amendment asking damages alleged but for which the original complaint failed to pray. Cincinnati, etc., R. Co. v. Evans, 83 Ky. L. R. 598, 110 SWV 844. Amendment alleging a new reason or ground of recovery. Adams-Burks-Simmons Co. v. Johnson \[Tex. Civ. App.\] 113 SWV 176. An amended declaration does not set up a new cause of action by merely using more specific or comprehensive words, as in negligence case changing "pro-pelling" its car to "conducted and managed" its car. Chicago City R. Co. v. Ratner, 133 No. 111. App. 628. Amended complaint to recover rent under a written lease merely con-reeting the date of the contract and the per acre rental. Clarkson v. Lee, 183 Mo. App. 58, 113 SWV 724. Where identity of demand for work done in the original statement of account, an amendment correcting a mistake in the dates did not add a new cause of action in violation of Ann. St. 196, p. 2223. Magoon v. O'Connor \[Mo. App.\] 114 SWV 83. Amendments held to set up a new or different cause of action: In an action for coal shipped, the coal charged for was shipped in car load lots and was described in the complaint by car number and name and residence of the consignee. Held an amendment changing the number of the cars and names of consignees. Theodore R. Troendle Coal Co. v. R. Morgan Coal & Min. Co. \[Ky.\] 114 SWV 812. Where an action originally against a corporation to recover a debt due in its corporate capacity, an amendment charging defendants as individuals or partners. Dodge v. Chambers, 43 Colo. 86, 96 P 178. In an action of slander where the alleged defamatory words charged plaintiff with having stolen the land of another, the petition is not amendable by striking the subject-matter of the alleged larexy and leaving the spoken words as charging the plaintiff with having stolen. Jones v. Bush \[Ga.\] 62 SE 279. Amendment alleging neg-ligence where original complaint charged wantonness and recklessness. Taylor v. Atlantic Coast Line R. Co., 81 S. C. 574, 62 SE 1113. Amendment offered held to set up a new cause. Statham v. Southern States Life Ins. Co. \[Ga. App.\] 63 SE 250. Original complaint alleged a cause of action at common law for injuries causing death. Held an amendment setting up a cause of action under the statute was a different cause and amendment was properly denied. Anderson v. Wetter, 103 Me. 257, 69 A 105. Amendments in action for injuries. McAndrews v. Chicago, etc., R. Co. \[C. C. A.\] 162 F 856. In action on liquor dealer's bond to recover a statutory penalty where husband and wife joined in the original complaint and the wife died, an amendment by the husband. Munoz v. Brassed \[Tex. Civ. App.\] 108 SWV 417. Where original petition alleged a part-nership to purchase and own a jack and that one of the copartners fraudulently represented that the price paid for the jack was double the price paid and sought to recover the excess, held an amendment to state that the purchasers were co-owners instead of partners. Gilliam v. Loeb, 181 No. App. 70, 109 SWV 835. Where complaint petition, though founded on the same injury as that set up in the original, is a different cause of action if dependent on entry different reasons for holding defendants and litleg. Id. Where, in an action for breach of warranty against incumbrances on horses sold, declarations sounded in tort, etc., and it was admitted that mortgage by vr-Cincinnati, etc., R. Co. v. Evans, 83 Ky. L. R. 598, 110 SWV 844. Amendment setting up promise of defendant made six months after the warranty to make good any loss sustained by plaintiff set up a new cause of action, since it could be used only in assumpst. Arnold v. White, 153 Mich. 607, 15 Det. Leg. N. 864, 117 NWV 164. An amended bill to quiet title to land claimed by defendant under tax deeds void on their face sets up new facts, though the original bill attempted to raise the question whether deeds were permanently issued, where the dates or the substance of the deeds were not set forth in former bill. Fitschen v. Olsen \[Mic.\] 15 Det. Leg. N. 1010, 119 NWV 3. Com-plain on agreement to pay a balance the statutes of limitation." An amendment which is inconsistent with the cause of action alleged in the complaint," or which changes the nature of the action from contract to tort, will not be allowed." Amendments which are insufficient in substance," or which do not cure the defect sought to be remedied," are ordinarily not permissible.

An amended pleading supersedes the original " and relates back to the time of the filing of the latter," except in so far as it introduces a new cause of action." A

egin{tabular}{l l} of action. Michelgan Cent. R. Co. v. Harville & Chicago, 287 Ill. 159, SS 6NE 670. Where a demurrer to a complaint is sustained and plaintiff amends and sets up an inconsistent cause of action, he abandons the cause set up in the original complaint. Symmes v. amended after limitations have run to show abuse of process by excessive seizure. Lane & Rice \[Ky.\] 118 SVW 97. In action by an off- abuse of process by excessive seizure. Lane &cer for fees where original complaint demanded excessive fees, he may recover under an amendment demanding the amount new parties brought in, or new subject-matter presented. Id. Where the original & cohesive fees. Jones & Co. v. Smith \[Tex.\] \\ complaint does not state a cause of action, an amended complaint which does state a cause of action cannot be filed after the cause is by limitations. Bahr v. & Civ. App.\] 109 SW.\] 111 NYS 844. An amended complaint filed after demurrer sustained to the original supersedes the original, and a sub-sequent demurrer, though not denominated as a demurrer to the amended complaint, is addressed thereto. Scott v. Lafayette Gas & Co. \[Ind. App.\] 86 NE 495. An amended pe-dition, neither purporting to be an amendment of the original petition nor containing reference to its allegation, should be refared on demurrer as though no former petition had been filed. City of Ironton v. & Wichichc, 78 Ohio St.\] 41 SN 425. Where original complaint by plaintiff and his wife before her death was for injuries to the wife, and after her death an amended complaint was filed by plaintiff to recover for wrongful death of the wife, the filing of the latter was a new cause of action and the sufficiency of the amendment was to be determined from its own alterations. Groom v. Bangs, 153 Cal.\] 456, 9E P 503. An amended bill may be looked to in determining whether an injunction granted on an original bill should be dissolved. Belzoni Oil Co. v. Yazoo & M. V. R. Co. \[Miss.\] 47 S 468. Where plaintiff voluntarily abandoned his first declaration before appearance by defendant had the cause remanded to rules and issued a new writ and declaration to which defendant demurred, the latter could not be regarded as an amendment to the first. Clinchfeld Coal Co. v. Wheeler\* Adm?, 108 Va. 448, 62 SE 269. By filling with leave of the court an amended count, complete in itself, containing no reference to the original count, such original count was withdrawn and was superseded by such amended count and defendant has a right to plead thereto de novo. Maegeerici v. Chicago, 141 III. App. 414. An amended declaration cannot be aided by the original declaration to which a general demurrer has been sustained. The original bill is presumed to have been abandoned. Joiner v. Fowler, 133 Ill. App. 38. & abandoned. Joiner v. Fowler, 133 Ill. App. 38. & 74. See, also, Limitations of Actions, 12 C. L. 609. Amendment properly allowed relates back so far as a state of limitations to concerned. Clark v. Oregon Short Line & C. L. 610. Amendment properly allowed relates back so far as a state of limitations to concerned. Clark v. Oregon Short Line & relates back so far as a state of limitations to concerned. Clark v. Oregon Short Line & L. 62 SE 269. Amendment not \\ \\end{tabular}

party against whom a degree pro confesso has been entered is entitled to notice of subsequent amendment."6 The effect of the original petition as an admission is treated in a subsequent section."7 The opposite party may ordinarily plead de novo in case of a material amendment,"8 and if an original complaint states no cause of action and is amended, defendant should also be allowed to amend."8

In allowing amendments it is not the practice to inquire critically into the merits of the cause.80

Verification of an amendment is regulated by statute.81

In New York, where an amendment is filed after note of issue served, the order of the case on the calender is changed.82

- Where plaintiff after obtaining leave to amend in open court disclaims and abandons the privilege and declares his intention to abide by his declaration, he is not precluded therefrom by having gotten such leave.83 The action of the court in striking an amendment from the files upon the ground that it was not made in time cannot be complained of where plaintiff elected to stand by his original bill and did not renew his application for leave to amend.84

Where the pleadings may be oral, written amendments are not essential.85 An order specifically requiring and setting out the amendment operates ipso facto as an amendment without the filing of a formal amended pleading.86

A trial amendment made by interlineation is a part of the record.87 Notice of amendments must be given.88

egin{tabular}{l l}
egin{tabular}{l} objected to as stating a new cause of action \\ relates back to the time of filing the original \\ complaint so that an allegation of loss of \\ future earnings was not a waiver of claim \\ for loss of earnings prior to filing the \\ amendment. Smith v. St. Louis Transit Co., 183 Mo. App. 202, 112 SWV 216. 75. Where defendant was in court, judgg- \\ ment against him on an amended petition \\ was not void because he was not served \\ with the amended petition. Irondale Bank \\ v. Terrill \[Mo. App.\] 116 SWV 481. A petition cannot be amended as to matter of substance after publication of notice so as to sustain a judgment by default. Randall v. \\ Snyder, 214 Mo. 23, 112 SWV 529. 76. Howton v. Jordan \[Ala.\] 46 S 234. 77. See post, $ 14. 78. In action against a city on street Im- \\ \\end{tabular} & egin{tabular}{l}
egin{tabular}{l} trial. People v. Buffalo, 62 Misc. 313, 114 \\ NYS 1077. **81.** Code 1897, **8** 3591, expressly provides \\ that an amendment may be made without \\ verification where it does not set up a new \\ cause of action. Keller v. Harrison \[Iowa\] 116 NWV 327. **82.** Under Code Civ. Proc. **,** \*\*, by filing \\ an amended answer after note of issue \\ served, date of issue is changed and the \\ order of the case on the calendar also \\ changed. Yan Norden Trust Co. v. Murphy, 125 App. Div. **369**, 109 NYS 725. **83.** Still V. Burgess, 134 Ill. App. **373**. **84.** Campbell v. Timmerman, 139 Ill. App. 151. **85.** Where written pleadings in municipal \\ court are not required by statute, actual \\ literal amendment of written pleadings is \\ not essential. Siegel, Cooper & Co. v. MetropolitAmusement Ass'n, 141 Ill. App. **89.** **86.** As "that all the papers and proceed- \\ ing herein be and the same are hereby \\ amended by discontinuing, etc." Michigan \\ Cent. R. Co. v. Harville, 136 Ill. App. 243. \\ An order specifically stating that "all papers and proceedings in this cause be \\ amended by," etc., is in itself an amendment and not simply a grant of leave to \\ amend. Boynton v. Alwart, 137 Ill. App. **87.** Where amendment is made by interlineation at the trial, the original pleading, \\ the amendment, and amended pleading, are \\ parts of the record; not necessary to offer \\ the original in evidence to make it a part \\ of the record. Raapke & Kate Co. v. \\ Schmoeller & Mueller Piano Co. \[Neb.\] 118 **88.** Notice need not be given to a party \\ served and in default. Eckels v. Bryant, 137 Ill. App. 234. \\ \\end{tabular} \\ \\end{tabular} \\ \\end{tabular}

8. _Supplemental pleadings._ 89- 88e 10 C. L. 1224--The office of a supplemental complaint is to plead facts material to the cause of action accruing after the filing of the complaint." The scope of a supplemental petitton is limited to strengthening, developing or re-enforcing the original cause of action, or enlarging the extent thereof, or changing the relief sought." A new cause of action may not be alleged but additional or different relief consistent with the original cause may be demanded," and a supplemental petition may not be amended so as to convert it into a new cause of action." Motions for leave to file supplemental pleadings are addressed to the discretion of the court," who may impose such conditions as are just; " but it is almost a matter of course to permit a supplemental complaint to be filed where facts occurring after filing of the original entitle plaintiff to more extensive relief." The time for filing a supplemental petition is regulated by statute."

_Motions upon the pleadings._ 89- 88e 10 C. L. 1226--Motions to strike and to make more definite and certain are addressed to the discretion of the court " and

89. **Search Note:** See notes in **1 L. R. A.** ( marriage was void and praying that it be set aside. Held the alleged supplemental petition could not be regarded as such and Dec. Dig. SS 273-286; 21 A. & E. Enc. P. & Hyland v. Riggs \[Tex. Civ. App.\] 116 SWV 167.

01. **Motivn v. E. B. & A. L. Stone Co.,** 7\*\* \*\*Cal. App. 324, 94 P 838. The special term canl. App. 324, 94 P 838. Where original term to permit services of a supplemental answer pleadings recovery in another action alleged to be on the same cause. Jones v. Ramsey, 121 App. Div. 704, 111 NY8 993. Where answer lies verified and service admitted and afterwards the case is settled, such settlement may be set up by supplemental answer. McRea V. Warehime, 49 Wash. 194, 94 P 924. In action by a married woman where defendant pleaded nonjionized of her husband in abatement, plaintiff properly replied by supplemental petition that she was living apart from him and that since the commencement of the action she had obtained a divorce. City of San Antonio v. Wildenstein \[Tex. Civ. App.\] 109, 89. \*\*Surve 231. That plaintiff in a personal injury action settled with defendant unbewhorn to attorys who had a contingent interest in the recovery is not ground for denial of leave to serve a supplemental answer set-ling up settlement. Buser v. Jacobowsky, 110 NY8 252. A supplemental petition setting up partition proceeding held properly vacated as premature, it appearing that judgment therein had been opened. Knight v. Union Mfg. & Power Co., 81 S. C. 539, 62 SE 789.

01. **Kean v. Rogers \[Iowa\] 118 NWV 515. Where after a landlord had commenced an action to enforce a lion for rent against goods in the building it was agreed that the tenant should sell the goods and deposit the proceeds in a bank to be applied to the rent, the landlord might be allowed to file a supplemental petition to establish his llen and satisfy it out of the deposit. Id.**

Not proper matter to be raised: An incompetent sued through her next friend to vacate a conveyance for undue influence. Pendings suit defendant and plaintiff married, and defendant filed a motion to dismiss to which plaintiff filed a pleading denominated a supplemental petition, but which was in fact a reply alleging that the will not be granted where useless; 1 and while courts have an inherent power to prevent abuse of procedure by striking a wholly irrelevant pleading,2 or one which violates a rule or order of court,3 or if it be a palpable attempt to impose upon or trifle with the court,4 the striking of a pleading is a severe remedy to be resorted to only in cases palpably requiring it in the administration of justice.5 A statute authorizing the striking of redundant matter does not warrant the striking of an entire defense,6 and a statute providing for judgment does not authorize the striking of a defense as frivolous,7 but where a motion is made under a statute the court may make the proper order, though the motion is not entirely appropriate.8 In New York a municipal court has no power to strike pleadings as frivolous.9 A motion to strike an entire pleading is bad if the pleading is good in part,10 and a motion to make more specific, which ought not to be allowed in substantially the form presented, is properly overruled.11

Though a motion to strike is often equivalent to a demurrer,12 the remedies by demurrer and motion to strike should not be indiscriminately applied.13 One goes to the sufficiency of a pleading 14 and the other is to be resorted to when the pleading is wholly irrelevant or improper.15 At common law a motion to dismiss and a demurrer are not interchangeable.16

1376 PLEADING SS 10. 12 'Cur. Law.

A motion to make more definite and certain is not a pleading nor an alternative remedy for demurrer or answer.\[17\] Its object being to enable movant to demur or answer, it should be made on notice before time for answering or demurring has expired.\[18\] Motion in the alternative to make more definite and certain or furnish a bill of particulars is bad form,\[19\] and a party is not entitled to both remedies for the same cause.\[20\]

The office of a special exception is to point out defects in a pleading.\[21\] On an exception of no cause of action, the allegations of the petition are taken as true.\[22\] Such exception is distinct from one of vagueness and insufficiency.\[23\]

Where a pleading assumes to both answer and demur, a motion to elect is the proper remedy.\[24\]

A motion for compulsory amendment should state the reasons upon which it is based.\[25\]

Motions are generally required to be in writing.\[26\]

The merits will not be considered on motion to amend, but where made on defendant's motion to dismiss the court may make it a condition that the motion to dismiss be deemed to have been made to the complaint as amended.\[27\] A count stricken out of a declaration by order of the court may yet remain as a subject of reference and as a basis for the allegations of the additional connts.\[28\]

SS 10. _Right to object, and mode of asserting defenses and objections; whether by demurrer, motion, etc.\[29\]--Want of jurisdiction See 10 C. L.\[27\]_ if not apparent must be taken by plea in abatement \[30\] or answer.\[31\]

Gordon V. Moore, 59 Misc. 151, 110 NYS 874. 18 distinct from an exception of "vagueness Under Code 1907, SS 5322, providing for striking pleadings which are unnecessarily probix, frivolous or irrelevant, motions to strike cannot perform the office of demurrerrer nor be resorted to teat the sufficiency of a pleading. Mann Lumber C. W. Bailey Iron Works Co. \[A1a.\] 47 S 325. Where denurrer have been sustained and bill intended, a motion to strike should be denied where no rule has been violated, and no attempt to trifle with procedure appears. Ray v. Williams \[F1a.\] 46 S 158. A motion to strike cannot fill the office of a demurrer. Ewing v. Vernon County \[Mo.\] 116 NVC 518. 10, Littfield v. Malme Cent. R. Co. \[Me.\] 71 A 657. On appeal to the district from the justice or probate court on questions of law only, the respondent moving to dismiss the appeal, the district court will not determine the sufficiency of the complaint on such motion. Smith v. Clyne \[Idaho\] 97 P 40. 17, Lawrence v. Lawrence, 81 S. C. 126, 62 SE 9. 18, Lawrence v. Lawrence, 81 S. C. 126, 62 SE 9. Plaintiff cannot be required to plead facts not material to the allegations made. In action for slander, Loscher v. Hager, 124 App. Div, 568, 198 NYS 662. 10, Casassa v. A. Cuneo Co., 115 NYS 124. 20. Where defendant's application for a bill of particulers was granted, it was proper to deny motion to make more definite and certain as defendant is not entitled to both remedies for the same cause. Thorp v. Ramsey \[Vwah.\] 99 P 834. 21. Western Union Tel. Co. v. Steele \[Tex. Civ. App.\] 110 SWP 546. 22. Goldsmith v. Virgin \[La.\] 48 S 279. 23. Exception of "no cause of action" * \[12\] Cur. Law. PLEADING SS 10. 1377

_Objection to parties See 10 C. L. 1228_ for misjoinder * \[82\] or defect apparent from the face of the bill * \[83\] may be reached by demurrer, \[34\] and for nonjoinder by answer. \[35\]

_Misjoinder of causes of action See 10 C. L. 1228_ is ordinarily ground for demurrer if apparent from the face of the complaint, \[38\] though in some jurisdictions motion is the proper remedy. \[37\]

_Duplicity_ can only be reached by a special demurrer. \[38\]

_Irrelevant, See 10 C. L. 1228_ redundant, or immaterial matter, is ordinarily reached by motion to strike * \[39\] and not by demurrer * \[40\] or objection to evidence. \[41\]

_Formal defects See 10 C. L. 1229_ can ordinarily be reached only by motion to require their correction * \[42\] or to strike, \[43\] and not by objection to evidence * \[44\] or demurrer, \[45\]

diction, as provided by Civ. Code Proc. $ 118

point out wherein the duplicity consists. Richardson v. Louisville & N. R. Co., 33 Ky. Jacobs V. Pierce, 132 III. App. 547.

L. R. 972, 112 SWV SS28.

**39.** The remedy for irrelevant verbiage in a complaint. Allison v. China & Japan Trading Co., 127 App. Div. **46**, 111 NYS 100. Unglyb not necessary, they are not entitled to demur, Mawhinney v. Bliss, 124 App. Div. 609, 103 NYS 332.

**33.** A demurrer and not a motion to dismiss is the proper method of reaching deflections of parties apparent from the face of a bill. W'Oord v. Wood \[Fla.\] 47 SS 580.

**34.** Under Code Civ. Proc. $ 488, 489, providing for demurrer for misjoinder of parties and/or objection of nonjoinder is a material allegation of the complaint, is not "Irrelevant" within Code, Civ. Proc. raised ls waived. Dickinson v. Tyson, 125

**35.** Objection that petition to enforce mechanile's lien does not implead necessary parties may be taken by answer or at the hearing. Prather Engineering Co. v. Detroit, F. & S. R. Co., 152 Mich. 582, 15 Det. Leg. N. 280, 116 NW 376.

**36.** Where defect that two causes are improperly united appears on the face of the complaint, it must, under Ann. St. 1906,

$ 598, be taken advantage of by demurrer. Robinson v. St. Louis & S. F. R. Co., 133

Mo. 101, 112 SWV 130. Under Code Civ. Proc. 1902, $ 185, misjoinder of causes can be raised only by demurrer and not by motion to vacate an attachment. Subjects v. Northern Cent. R. Co., 80 S. C. 133, 61 SE

485. Where actions at law and in equity which do not affect all the defendants are improperly joined, parties affected by all or a part may demur. People v. Equitable Life Assur. Soc., 124 App. Div. 714, 109 NYS

001. Objection to evidence on a count in a complaint demanding rental value of Mooded. premises for several years, for the reason that several causes of action are stated therein, does not raise the objection that several causes are improperly joined where they are so stated as to be severable. Graves v. St. Louis, etc., R. Co., 133 Mo.

129.\*\* The original address of the complaint is not "Irrelevant" within Code, Civ. Proc. $ 106, 13 except where special demurrers are authorized,44 and surplus usage cannot be reached even by special demurrer.47 Failure to allege a fact should be raised by objection to evidence.48

Footnote 48: In the context of the _L. R. C._, the \_L.

**12** Cur. Law. PLleading SS 10.

\_Inconsistency or departures.\_See 10 C. L. 1252 are ordinarily reached by motion to strike.\[53\] A variance between writ and complaint is to be reached by plea in abatement,\[54\] and a variance between pleading and proof by objection to evidence.\[55\] Even general demurrer may reach the vice of repugancy.\[56\] Departure in a pleading can only be reached by special demurrer.\[57\]

\_Failure to state a cause of action or defense_See 10 C. L. 1252 may be reached by demurrer,\[58\] objection to evidence,\[60\] or motion in arrest,\[60\] but not by request to take the evidence from the jury.\[61\] In the absence of a statute permitting, defects in a pleading which may be reached by demurrer and cured by amendment, cannot be reached by a combined motion to strike the complaint and to vacate the summons.\[52\]

\_Matters of defense_See 10 C. L. 1253 must ordinarily be raised by plea or answer,\[63\]

unless apparent on the face of the complaint, when demurrer will lie.\[64\]

more definite and certain and not by de-muurr. Williams v. Salmond, 79 S. C. 459,

that complaint for libel does not sufficiently plead special damages may be taken by de-clfe statement in the pleading of his ad-unurr that it does not state facts sufficient to constitute a cause of action. Fagan v. by demurrer. Schaad v. Robinson, 50 Wash.

New York

## 11 Waiver of objections and cure of defects

See 10 C. L. 1233.--A defendant may simultaneously demur, answer, file dilatory pleas and pleas to the merits without waiving any of them.\[66\] Objections to pleadings must as a rule be made at the earliest opportunity,\[67\] and, while entire failure to state a cause of action \[68\] or want of juris-

Thornton \[Ga, App.\] 68 SEE 688. Limitations 66. Cox v. Adams & Co. \[Ga. App.\] 68 SE cannot be raised by general demurrer. 69. Under Rev. St. 1885, art. 1263, providing Murphy v. Stelling \[Cal. App.\] 97 P 672. Defense of limitations cannot be raised by dentraver unless the complaint shows the not waived by filling at the same time a plea cause to be barred. Keegin v. Joyce \[Cal. App.\] 98 P 396. Though a special count in a declaration may show that the contract used upon continues executory, and recovery may not be had in the common counts, such is a matter of defense and demurrer cannot be sustained on that ground. Ban-nister v. Victoria Coal & Coke Co., 63 W. Va. 502, 61 SEE 33. The facts attending an offcer's action in serving a writ, though reported to the court in a return and importing verity, are facts allunder the plead-nings and must be pleaded to be availed of. Cannot be raised by demurrer. Bulkley v. Norwich & W. R. Co. \[Conn.\] 70 A 1021. Where plaintiff sued in trespans quare tavasum and defendant appeared adverse possession for ten years and plaintiff de-murred on the ground that alleged trespans was committed prior to commencement of adverse possession set up, held the demurrer was a reassignment of trespasses alleged and should have been pleaded by reply. Pike v. Wilbur \[R. L\] 69 A 849. Where plaintiff sued attorneys for money alleged to have been converted by them which belonged to an estate of which plaintiff was administrator, the objection that plaintiff in his representative capacity was a necessary party could not be raised by demurrer, as to determine such question it was necessary to refer to proceedings in an action by him as administrator. Caution v. Green, 8 S. C. 432, 61 SEE 957. Questions not raised by demurrer: In action by contract to recover on his contract, whether he had complied with his contract was a matter of fact which could not be raised by demurrer. Burton v. Seifert Plastic Relief Co., 108 Va. 338, 61 SEE 933. Not the proper method to assail right to damages improperly claimed. Sparks v. McCrary \[Ala.\] 47 S 332. Measure of damages cannot be raised by demurrer. West v. Johnson \[Idaho\] 99 P 709. 64. If the bar of limitations is apparent from the face of the complaint, the objection may be raised by demurrer. Burrus v. Cook \[Ido.\] 114 SWV 1065; Dees v. Smith \[Fla.\] 46 S 173. Where the statute of limitations affects the right, the defense may be raised by demurrer. Dowell v. Cox., 108 Va. 460, 62 SEE 272. Objection to petition to enforce a mechanic's llem that a receiver is made a party without leave may be made by demurrer. Prather Engineering Co. v. Detroit, F. & L. R. Co., 152 Mich. 582, 15 Det. Leg. N. 280, 116 NW 376. Defense of limitations may be presented by special exceptions where apparent from the face of the complaint. Schultz v. Burges \[Tex. Civ. App.\] 110 SWV 494. 65. Search Note: See Pleading, Cent Dig. $ 1843-1441; Dec. Dig. $ 400-430; 6 A. & E. Enc. P. & P. 245, 460; IS Id. 738; 19 Id. 181; 50 Id. 11; 51 Id. 23; 52.

diction "9" may be availed of at any time, other objections are waived by pleading responsesly,"10 failure to object by motion,"11 demurrer or answer,"12 or going to trial on

not questioned by demurrer, only question

on appeal is its sufficiency to sustain judgment. State v. Duncan, 130 Mo. App. 311,

thereof used the term "willful," such term

109 SWV 73. In determining whether a complaint states a cause of action, all intendments are induliped in favor of its sufficiency. Id. Where warrants were drawn against the "O. S." fund and specified that they were charged to that fund, objection

that letters "O. S." had no legal meaning

and were not explained not made below

comes too late when first made on appeal. McKean v. Gauthier, 132 III. App. 376. In

absence of objections below or presentation

of any propositions of law, defects of pleading which if demurred to would have led

to amendment and corresponding proof will

not be considered above. Id.

App. 114 SWV 584. A cross petition setting

68. Where it appears from the record that

the complaint is insufficient to sustain the

judgment, the error may be reviewed though

not raised. Sandoval v. Randolph \[Ariz.\]

waved by answering. Mattingly v. Everything \[C\] P 119. Under Rev. St. Ohio 1908, $ 5063,

objection that petition does not state a

cause of action is not waived by answering

to merits. Republic Iron & Steel Co. v.

Yanuszka \[C. C. A.\] 166 F 684. If a complaint makes no attempt to allege an

is the subject of demurrer and is waived

sential fact, the objection that it does not

state a cause of action may be raised at

any time even without demurrer. Burke v.

Dittus \[C\], App. \] 96 P 330. If a complaint

fails to allege essential facts, the trial or

applicable court may take notice of it and

102. In action by minors for the penalty

make proper disposition of the cause. Hall

v. Northern & So. Co. \[Fla.\] 46 S 178. Objection that complaint shows on

ks face
that contract sued on

his legal goes to the

substance of the petition and may be made

at any time. Redland Frut Co. v. Sargent

\[Tex. Civ. App.\] 113 SWV 330. Where no objection is made to a pleading before trial

on ground of its insufficiency, the most lib-

eral construction will be adopted to sustain it and

104. In action by minors for the penalty

tain it and objection will not be sustained

unless there is total omission of a material

fact or failure to state a cause of action or

defense. City of Rawlings v. Jungroust, 16

Vyro. 403, 96 P 144.

69. In partition and to determine heirs, a

plea to the jurisdiction because the estate

was in process of administration is not

waved by failure to present it at the first

term; may be made at any time before judging

ment. Wilkinson v. McCart \[Tex. Civ. App.\]

116 SWV 400. In action for death, failure to

object before answering to the merits that

the administrator is not competent to suc

is not a waived of the objection. Crohn v.

Kansas City Home Tel. Co., 131 Mo. App. 313,

109 SWV 1068. Under the New York Practice Act, a defendant does not waived his

right to object to the jurisdiction by set-

ting up every defense upon which he relies.

Leonard v. Merchants' Coal Co. \[C. C. A.\]

162 F 885. An admission of the liability

leged and of every thing except measure of

damages does not cure failure to allege

judgditional facts. Grand Trunk W. R. Co.

v. Reddiek \[C. C. A.\] 160 F 888. Warant of

jurisdiction apparent on the face of the

leading can be taken advantage of at any

time. Civ. Code 1895, $ 5046. Geer v. Cowr-

art \[Ga. App.\] 62 SE 1054.

the merits." Omissions in a pleading are cured when supplied by allegations in the

v. Thompson \[Mo. App.\] 114 SWV 567. A complaint charging negligence generally is good after verdict in the absence of a motion to make more specific. Morgan V. Mul-

When no demurrer was introduced to a ball, 214 M4, 451, 114 SWV 4. Under Gen. St.

\[1906, 8, 1449, and rule 18 So. 8, a cause of action filed with a complaint need not be complete within itself, and if not as full as desired and defendant fails to demand a bill of participants he wavers the defect. State v. Seaboard Air Line R. Co. \[Fla.\] 47 S 986.

In action by a contractor for breach of street improvement contract, the city can-

"not guilty" is not the proper plea in ac-

not insist that evidence of cost of getting

tion on a policy of disability insurance, but ready for work should have been excluded

in absence of demurrer thereto it will be

because the only measure of damages was

constructed a plea of general issue. Pennsylvania-

the difference between the contract price

vania Casualty Co. v. Mitchell \[Ala.\] 48 S and cost, where such expense was alleged;

78. Where plaintiff in action on bond given

motion to strike such allegation should have

on appeal from a judgment of restitution

been made. Blassingame v. Laurens, 80 S.

C. 38, 61 SE 96. In an action on an instrument

a cause against principal and surely with

ment certifying that defendant held money

being to plaintiff's intestine, where

tion is waived under Code Civ. Proc. & 96,

plaintiff did not except to defendant's plea

where not taken by demurrer or answer.

of mistake in such instrument, every reasonable intendment would be indulged in

Piano Co. \[Neb.\] 118 NWV 652. Misjonider

favor of the plea. Landrum v. Stewart

\[Tex. Civ. App.\] 111 SWV 769. Varlance be

failure to demur. Loyon County v. Lien, 105

(tween exhibits and complaint is waived by

failure to demur. or move for judgment on

apparent from face of petition is waived

pleadings. Clark v. Cross \[Wash.\] 98 P 607.

unless oblected to by demurrer. Bishop v.

Where a defendant joined in an issue of

fact upon an imperfect allegation of the ex-

istence of a certain custom without moving

for a more definite statement, he waived the

den v. Wilson, 233 Ill. 84, 84 NE 245. Held

objection of the sufficiency of the petition

to present the issue. Triple Tie Ben. Ass-

v. Wood \[Kan.\] 98 P 219. Allgation of

facts in defective manner is waived by

pleading over, and not moving to make

more definite and certain. Hoskins v. Scott

\[Or.\] 96 P 1112.

\[Or.\] 98 P 1112.

72. Defect of parties apparent from face

of pleading is waived by failure to demur.

Dibrow, v. Creamery Package Mfg. Co., 104

Minn. 17, 115 NWV 751. Under Mills' Ann.

Code # 81 So. 55 objection that plaintiff has

not legal capacity to se must be raised by

demurrer or it is waived. Loucks v. Davies,

43 Colo. 490, 96 P 191. A departure in the

reply from the complaint must be taken

advantage of by motion or demurrer before

trial or it is waived. Id. Misjonider of

parties is waived if not raised by demurrer,

where defect is apparent from the complaint. Ann. St. 1906, p. 624. Fulwilder v.

Trenton Gas, L & P. Co. \[Mo.\] 116 SWV 508.

Where question whether plaintiff corpora-

verver was not as specific as it should have

tion had compiled with statutes so as to

entie it to use was not raised by plea or

demurrer, the objection was waived. Huf

v. Kinolch Paint Co. \[Tex. Civ. App.\] 110

SWV 487. Though under Rev. St. 1856, art.

3027, recovery for medical expenses incurred

cannot be recovered in an action for wrong-

ful death, yet, where such cause is improp-

erly joined, objection thereto is waived if

not made by exception to the complaint.

Gulf, etc., R. Co. v. Farmer \[Tex.\] 115 SWV 266. General allegations of fraud are suff-

for a very high condition to strike the

cient in the absence of special exceptions

to the complaint. Mutual Reserve Life Ins.

Co. v. Seidel \[Tex. Civ. App.\] 118 SWV 946.

Under Ann. St. 1906, & 602, where defendant

does not take advantage by demurrer of

thesis." Omissions in a pleading are cured when supplied by allegations in the

v. Thompson \[Mo. App.\] 114 SWV 567. A complaint charging negligence generally is

the improper joinder of causes, he waives

complaint charging negligence generally is

the objection.

### 12 Cur. Law. PLEADING SS 11.

pleading of the adverse party'\* or by subsequent pleadings.\* After verdict no defects which might have been cured will avail,\* and the appellate court may regard amendendegligence or with criminal intent, alleg- by motion, held suffClient after judgment ing that death was caused negligently and when aided by the answer. Whitewater with criminal intent, though objectionable as stating a cause Inconsistently, is not so contradictory as to be self-destructive and close a mortgage failed to allege an exist- is waived by going to trial. O'Brien v. St. Louis Transit Co., 212 Mo. 59, 110 SW705. Where an account attached to a complaint is defective in not setting forth items with certainty, the objection is waived where defendant participates in the trial on the mer-

Utah, 503, 94 P 989.

its and the pleadings substantially complies with the statute. Whitewater Mercantile

V. Devore, 130 Mo. App. 339, 109 SWV 808.

General objection to evidence on ground of want of facts to constitute a cause of action is not sustainable if a cause is stated on any ground of negligence charged. Re-

Judgment will not be reversed for ruling on public Iron & Steel Co. v. Yanawska IC. C. A.J 166 F 684. Where defendant goes to trial on a complaint charging general negligence in failing to furnish an employ a safe place to work and a bill of particulars showing wherein it was unsafe, he may not object to evidence of such particulars on the ground that it is not within the issues. Devine v. Alphons Custodis Chimney Const. Co., 126 App. Div. 7, 110 NYS 119. Where

of plaintiff's cause of action, only, is defective, such defect is cured by a general verdict in his favor. Allegation that "de-

her his defenses, plaintiff was not en-

said but have broken the same" held suff-

judgment on pleadings. Wexler v. Merco-

vitz, 126 App. Div. 924, 110 NYS 5. Defense

that plaintiff is not the real parity in inter-

that a complaint against a carrier for delay est is waived where not raised before trial. Calvert v. Thurston, 58 Misc. 347, 109 NYS

lege defendant's knowledge of specific facts (from which damage accrued is waived with testing the sufficiency of a pleading by demurrer or otherwise and tries a certain Issue, the objection is waived if by any reasonable construction it can be construed to raise such issue. Frederick v. Buckminster

\[Neb.\] 119 NWV 228. After trial on merite, defects of pleading which could have been raised by demurrer and which did not pre-

statements in the petition of some of the adjalled affects the trial are considered amended. Pittsburg Coal Co. v. Cook, 219 Pa. 539, 69 A 85. Where defendant pleads

general issue or other plea of like effect which requires only a general similmitter to complete johofer of issue and goes through the trial without noting the absence of such similiter, he cannot thereafter avail

himself of tie absence. Knight v. Empire

Land Co. \[Fla.\] 45 S 1025. Where demurrer

to reply did not reach all matters presented for the hearing, right to question ruling

sustating it was not waived by proceeding to trial. Sullivan v. Sullivan \[Iowa\] 117 NWV 1086. That intervening petition should be taken as true, not being answered or de-

murred to, cannot be first raised on appeal.

Gharante Gold Bond Loan & Sav. Co. v. Edwards, 7 Ind. T. 297, 104 SWV 624.

74. Where an amended complaint against

several corporations did not name them, but

referred to them as defendants who had answered and thereafter such corporations

sion of a then existing debt, such allegations answer describing themselves by their corporate names, the defect is cured. St. Louis & S. F. R. Co. v. Wilhelm \[Tex.

Civ. App.\] 108 SWV 1194. Compilation and anexed account though insufficient it assa ments obviating such defects as having been made.71 In the absence of statutory provision to the contrary,72 pleading to the merits or proceedings to trial without objection73 waives a previous demurrer or motion.80 Pleading over81 or amending82 after

115 SWV 13. An essential fact which may not been formally added to the complaint. be fairly implied from a complaint though not directly alleged, is cured by verdict. Where certain counts in action for wrong-Moellman v. Gieze-Henselmeier Lumber Co. \[Mo. App.J 1.4 SWV 1023. A complaint for injuries to a minor alleging that he was in defendants employ operating a machine in violation of Ann. St. 1906, p. 3217, and stating facts from which it can be inferred that defendant operated a manufacturing establishment, is sufficient after judgment though riner, 132 Ill. App. 301. not expressly alleging the nature of the establishment or motive power. Peters v. Gille Mfg. Co., 133 Mo. 412, 113 SWV 706. Defect in a complaint, good as against de-murrer but insufficient as against special exception based on indefiniteness, is cured by verdict. Missouri, K.; & T. R. Co. v. James \[Tex. Civ. App.\], 112 SWV 774. All Inendments are in favor of pleadings when assailed for insufficiency after judgment. Mason v. Dettering, 132 Mo. App. 26, 111 SWV 802. Bill for injunction against creation of a livery stable held sufficient. Id. Not error to allow plaintiff to reply at close of the tes40mony. Reply having been waived by going to trial without demanding judgment for want of it. Gamble v. Harvey-Green-haw Mercentage Co. \[Ark.\] 115 SWV 946, Failure of trustee in bankruptcy in a suit to compel an assignee for the benefit of creditors to settle his account to comply with the statute as to affdavit purging his demand is waived if not raised before judgment. Comingor, Louisville Trust Co., 33 Ky. L. R. 53, 108 SWV 950. After verdict, an answer treated by the court and parties as adequate will not be held bad. Shelley v. Fales \[Neb.\] 116 N NVV 1085. In proceedings to ascertain compensation to be paid for laying a drain across land, any formal defect as to want of certainty as to the land described in the petittion is cured by verdict for defendant. Drainage Com's of Dist. No. 8 v. Knox, 237 Ill. 148, 85 NE 56. Where plaintiff waives right to take default or rule defendant to plead, he is estoped after verdict to urge want of plea. First Nat. Bank v. Miller, 235 Ill. 135, 85 NE 312. In action of assumpst a plea of "not guilty" presents a substantial issue and such misleading and misjonider of issue therein will be cured by verdict under our statute. Bannister v. Victoria Coal & Coke Co., 63 V. Va. 502, 61 SE 338. Where misjoking is due to the fault of defendant, the plea tendered presenting a substantial issue, he will not after verdict be allowed the benefit of his mistake and award a repelader. Id. In determining sufficiency of a pleading on appeal, only a total lack of essential averments will render it insufficient. West v. Johnson \[Idaho\] 99 P 709. Where date of judgment pleaded was proved without objection, failure to allege it was waived. United States Fidelity & Guar. Co. v. People \[Col.\] 98 P 828. Where defendant by filing a stipulation that complaint could be amended by addition to the prayer and had notice of the relief desired, and proceeded to trial without objection, he could not object after judgment that the prayer had 13 Cur. Law. PLEADING SS 12. 1385

ruling on a demurrer or motion,\[83\] ordinarily waives error in the ruling, unless such ruling was made before the answer.\[84\] Asking leave to plead after demurrer overruled does not waive the error where before reply is made plaintiff had order granting leave set aside and elected to stand by his demurrer.\[85\] A demurrer is waived where the case proceeds to judgment without a hearing thereon.\[86\] Objection that answer is not sufficiently verified is waived by moving for judgment on the pleadings on other grounds.\[87\] By procuring leave to reinstate a plea before it is amended, defendant waives any right to assign error on the refusal of the court to permit it to be further amended.\[88\] An objection to misjoinder of parties is waived by withdrawing it from the case.\[89\] An admission of facts which might have been proved is not a waiver of the right to question the sufficiency of the complaint by motion in arrest of judgment.\[90\] Filing a demurrer admits the proper filing of the pleading demurred to.\[91\] The filing of an amended petition may cure defects as to the prematurity of the action.\[92\]

SS 12. _Time and order of pleadings.\[93\] See 10 C. L. 1240_. Pleadings must ordinarily be filed within the time prescribed by statute,\[94\] though the court may in its discretion

Co. v. Cox, 138 Ill. App. 14. By fling a sub-stituted answer, defendant waives the right to correctness of a ruling sustaining a denurrer to the original. Allen v. Chase \[Conn.\] 71 A 867. Order limiting time for filing additional answer held voluntary, and by filing amended answer defendant waived with relay filed before answering to the merts sustaining of demurrer to the original. Pettus v. Gault \[Conn.\] 71 A 609. Where denurrer to a complaint is sustained and plaintiff amend, he waives error in sustaining of demurrer. Symmes v. Rose \[Kg.\] 113 SVW 87. If a plaintiff exercises his privl-lege to amend after demurrer sustained, he cannot object to the sustaining of the denurrer. Tidewater R. Co. v. Hurt \[Va.\] 87 SE 421. A party who submits to a ruling on the sufficiency of his pleading by voluntarilyanding waives the right to except on the ground that amendment was unnecessary. Cowart v. Powell \[Ona.\] 62 SN 644. Asking leave to amend waives any error in sustaining denurrer. National Council K. & L. of S. v. Hibernian Banking Ass"n, 137 Ill. App. 175.

88. Where defendant answers over and does not stand on his motion to require plaintiff to elect which of two causes stated he will rely upon, he cannot raise the question on appeal. Kf v. St. Louis Transit Co., 213 Mo. 445, 111 SVW 1166. A defendant who answers over to an amended complaint after overruling of a motion to strike the same on the ground that it changes the cause of action, waives the objection. Flowers v. Smith, 214 Mo. 98, 112 SWW 495. Error in overruling a motion to elect on the ground of misjoinder of causes is waived by answering to the merits. Hanson v. Neal \[Mo.\] 114 SVW 1073. Rulings on motion to strike and demurrer are waived by answering. Roberts v. Neale \[Mo. App.\] 114 SVW 1120. Error in overruling plea in abatement of another action pending is waived by a stipulation for judgment providing that the other action be dismissed.

V. Smith, 214 Mo. 98, 112 SWW 495. Error in overruling a motion to elect on the ground of misjoinder of causes is waived by answering to the merits. Hanson v. Neal \[Mo.\] 114 SVW 1073. Rulings on motion to strike and demurrer are waived by answering. Roberts v. Neale \[Mo. App.\] 114 SVW 1120. Error in overruling plea in abatement of another action pending is waived by a stipulation for judgment providing that the other action be dismissed.

V. Smith, 214 Mo. 98, 112 SWW 495. Error in overruling a motion to elect on the ground of misjoinder of causes is waived by moving for judgment on the pleadings on other grounds.\[87\] By procuring leave to reinstate a plea before it is amended, defendant waives any right to assign error on the refusal of the court to permit it to be further amended.\[88\] An objection to misjoinder of parties is waived by withdrawing it from the case.\[99\] An admission of facts which might have been proved is not a waiver of the right to question the sufficiency of the complaint by motion in arrest of judgment.\[90\] Filing a demurrer admits the proper filing of the pleading demurred to.\[91\] The filing of an amended petition may cure defects as to the prematurity of the action.\[92\] See 10 C. L. 1240\_. Pleadings must ordinarily be filed within the time prescribed by statute,\[94\] though the court may in its discretion

Co. v. Cox, 138 Ill. App. 14. By fling a sub-stituted answer, defendant waives the right to correctness of a ruling sustaining a denurrer to the original. Allen v. Chase \[Conn.\] 71 A 867. Order limiting time for filing additional answer held voluntary, and\[94\] by filing amended answer defendant waived with relay filed before answering to the merts sustaining of demurrer to the original. Pettus v. Gault \[Conn.\] 71 A and for cause shown extend the time for pleading," or permit a pleading to be filed out of time," especially where no prejudice results and justice requires such procedure." One desiring to file additional plea must conform to the rules of the court as to making a showing," and the court may strike from files pleas filed without permission, though waived by opposing counsel." Plea to the jurisdiction may be interposed at any time.1

**SS 13.**_Filing, service, and withdrawal._**-** See 10 C. L. 1241.**-**Pleadings are generally required to be filed * and copies thereof served on the adverse party or his counsel.**-** If service is admitted it is immaterial by whom made.5 Where there are several

v. Davis Foundry & Mach. Works \[Ga.\] 63 97. In action on note against administra-SE 221. Where defendant failed to comply with an order requiring him to file a state-ministrator did not answer because of re-ment of his grounds of defense, it was error to overrule objection to evidence offered by the same defense, but it was error to refuse him leave to in support of such defense. Code 1904, p. 1709. Colby v. Reans \[Va.\] 63 SE 1009. Under circuit court rule 10, where a declaration is amended after plea, such plea stands as to the amended complaint unless defendant within 10 days pleads to it, and he may not plead to it after such time. The indorsed as surety and that as to him Judge \[Mich.\] 15 Det. Leg. N. 1078, 119 NW 688. Supplemental answer filed after trial and judgement and after appeal perfected is too late. Confied v. Britton \[Tex. Civ. App.\] 109 SWV 493. Order vacating default and granting leave to answer is not sustainable unless copy of proposed answer is annerved to motion papers. Tuska v. Jarvis, 61 Misc. 224, 113 NY 167.

**05.** Under Acts 1900, p. 112, defenses should be filed on first day of the first term, but it is discretionary with the court to permit it to be filed later in the term. Bass v. Dougherty \[Ga. App.\] 63 SE 616. Though plaintiff failed to file johder to defendant's general issue or replication to the plea of set of within proper time, the court should allow the same to be filed out of time on proper application. Peterson v. Pusey, 237 Ill. 204, 86 NE 692. Under Code Civ. Proc. $ 473, authorizing amendments in furtherance of justice and authorizing extension of time for answer where no copy of amended complaint was served until expiration of time for filing, it was not an abuse of discretion to permit it to be served thereafter but before filing of motion to strike it. Klokke v. Raphael \[Cal. App.\] 96 P 592. An answer filed after time is not a nullity and plaintiff is not entitled to have it stricken from the files; the court may retain the answer or permit another to be filed or pursue whatever course justice requires. Lunnun v. Morris, 7 Cal. App. 710, 95 P 907. Where a plea has been filed after expiration of the time allowed but the case has never been marked "In default," it is proper on call of the case to refuse to strike the plea and an amendment because not filed in time. Hodnett v. Stewart \[Ga.\] 61 SE 1124. It is not an abuse of discretion where no linguistic results to permit, imme-diately before the hearing of the cause, the filling of a simlitter to a plea of the general issue and a reply to a plea of set-off, even though the cause has been called for trial and a motion for judgment for failure to do is made and overrule in connection therewith. Peterson v. Pusey, 141 III. App. 878.

**12.**-\*\* The Defenses of 19 Cur. Law.

PLEADING SS 14.

defendants, statutes generally provide how service shall be made."

Statutes generally provide for service by mail of pleading subsequent to the complaint."

The withdrawal of a pleading and replacing it with another is an abandonment of any claim under it."

SS 14. _Issues made, proof and variance."_ See 10 C. L. 1141.--Issues arise on the pleadings,"

and only issues so arising are to be submitted."

It is sufficient if the issues made enable the parties to present every material phase of the case."

No issue can be raised on unnecessary or immaterial allegations of a pleading."

A party is not required to tender an issue where all evidence offered in support of it has been excluded."

One good count sufficiently supported by the evidence is sufficient, regardless of whether there is proof sustaining the other counts."

\_The general issue and general denials.\_See 10 C. L. 1241.--A general denial or plea of the general issue puts in issue all allegations to which it is directed,"

by whom such notice was served. Ray v. Pollock \[Fla.\] 47 S 940.

6. Ann. St. 1906, p. 697, providing for serv-

16e of process on several defendants, does not require that a copy of the petition be served on the first defendant in each county where defendants are in several counties. Collier v. Catherine Lead Co., 208 Mo. 246, 106 SW 97L.

7. Service of answer by mail is complete when it is deposited in the mail. Carlson v. Stuart \[S. D.\] 119 NWV 41.

1. Where upon sustaining of a demurrer to a complaint plaintiff withdraws it and replaces with another, he abandons any claim to favorable judgment on the complaint withdraw. Arnold v. Kulinsky, Adlz & Co., 80 Conn. 549, 69 A 380.

1. Search Note: See notes in 69 L. R. A.

1.

See, also, Pleading, Cent. Dig. SS 1210-

1342; Dec. Dig. SS 370-399; 9 A. & E. Enc. P. & P. 852; 82 1618.

10. Martin v. Knight, 147 N. C. 564, 61 SE

01. A complaint for injuries against a railroad company which shows liability resulting from relation of master and servant is sufficient to submit to the jury and let

plaintiff suas. Henseler v. Wiese Drug Co., in proof of allegations going to establish

133 Ill. App. 689. The plea of general issue

such liability, though plaintiff claims in the

with put in issue the contract of insurance

petition that he was a passenger; his legal status is to be determined from the proof

and not from his conclusion. Southern R.

Co. v. West, 4 Ga. App. 672, 62 SE 141.

11. Martin v. Knight, 147 N. C. 564, 61 SE SE 447. In action against a mine owner

for breach of contract to remove stumps and pillars from a portion of his mine, where complaint alleged readiness and ablility to do the work and defendants refusal to permit it to be done, which the answer did not deny, there was no issue. Sagamore Coal Co. v. Clark, 33 K. Y. L. R. 134, 109 SW 349. In action for wrongful death

where complaint alleged filling of notice of intention to use, as required by Laws 1886, p. 801, which was not denied, it was not in issue. Bogart v. New York, 128 App. Div. 139, 112 NYS 649.

12. Ives v. Newbern Lumber Co., 147 N. C. 806, 61 SE 70,

01. In proceeding to foreclose a mechanic-

1c's lien, on allegation that proceeding had been commenced within 80 days, no issue is raised by denial thereof. Romeo v. City of Yonkers, 128 App. Div. 404, 110 NYS 174.

14. Winselow Bros. & Co. v. Staton \[N. C.\]

63 SE 950.

15. Chicago City R. Co. v. Phillips, 138

01. App. 438.

01. General issue puts in issue not only a wrongful act alleged but also the defend-

where defendants are in several counties. Collier v. Catherine Lead Co., 208 Mo. 246, 106 SW 97L.

10. By 630. As a general rule a general denial requires plaintiff to prove all the allegations of his complaint. Berry v. St. Louis, etc., & Co., 214 Mo. 593, 114 SW 27.

A general denial goes to every material fact of the complaint. Sprague v. Hosse \[Mich.\]

15 Det. Leg. N. 847, 118 NWV 497; Heas v. Doge \[Neb.\] 116 NWV 863. The general is-

sue requires the plaintiff to prove his case.

as laid in the declaration and admits in defense proof of any matter which shows the cause of action has been discharged, or that

11. In equity or food conscience the plaintiff

ought not to recover, but this rule is sub-

ject to some exceptions, such as the state of limitations, justification in actions

for slander by proving the truth of the admissible all evidence which tends to disprove any one or more averments of the complaint,\[17\] or to show that plaintiff never had a cause of action.\[18\] The old and subtle distinction between evidence admissible under a general denial and evidence admissible under a special plea is no longer recognized.\[19\] A qualified denial may be proven under a general denial but defendant should not be restricted to a general denial which will place him in the position of denying matters not open to denial.\[20\] A plea is not bad as a general issue unless it sets up matters of fact merely amounting to a denial of such allegations as on general issue would have to be proved to support the case.\[21\] A plea denying mere matter of inducement does not amount to a general denial.\[22\] A plea of non est factum not verified does not put plaintiff upon proof of the execution of the instrument sued on.\[23\]\_Special issues and special denials.\[See 10 C. L. 1248\] A special denial puts in issue only that to which it is specifically addressed.\[24\] As a general rule matters which lie in the affirmative proof because of presumptions of law to the contrary, such as contributory negligence,\[28\] waiver,\[28\] estoppel,\[27\] payment,\[28\] fraud,\[29\] and the like, must

plea of payment, plaintiff may prove that no payment was made to him nor to any one authorized by him to receive it. Brown v. Kofler, 133 Mo. App., 49, 113 SW7 711. Plea of not guilty puts in issue the credibility of testtimony, even if it is uncontradicted. American Nat. Bank v. Fountain, 148 N. C. N. C.

be specially pleaded,30 though plaintiff by anticipating and setting out matters of defense may obviate the necessity of defendant pleading the same.51 Defenses denominated new matter and required to be specially pleaded are only those which have arisen since the cause of action accrued.32 While a plea of recoupment alone is equivalent, to an admission of plaintiff's cause of action, a plea of recoupment coupled with nonassumpsit which is a denial of liability does not have that effect.33

Footnote 31: The term "defense" is the 1390 PLEADING $ 14. 12 Cur. Law.

pond.39 Where the deficiency of the evidence is as to the entire scope of the plead-

Viguerie v. Burguieres Planting Co., 121 La.

eral plaintiffsue to recover land and allege

97, 46 S 114. Where complaint was on the

bjunt title, they cannot recover unless they

theory that defendant was a guarantor,

plamtiff could not on demurrer claim that

Ga. 764, 61 SE 828. If plaintiff fails to

ns waa printed pdebtor. 3 Merlarine v.

prove the cause alleged but proves another,

Wadhams, 165 P 87. A Judgment is void to

defendant may refuse to litigate the cause

the extent that it gives relief outside the

proven. Loeffler v. West Tampa \[Fla.\] 46

pellings, Charles v. White, 214 Mo. 187,

8 426. Allagenth in petition to enforce a

112 SV 645. Where defendant appears in

mechanic's lien as to implied provision of

an action commenced under the practice act

of Baltimore City and complies with the re-

gifted in determining whether there was

qulements of the statute and the cause in

a variance between contract alleged and

placed on the trial docket, plaintiff is not

confined to cause of action filed and neither

V. Peterson Mfg. Co., 287 Ill. 250, 86 NNE 715.

party is bound by m#davits made. Willard

To entitle one to resend a contract for

v. Nagle \[Md.\] 71 A 427. On appeal plain-

fired is not entitled to recover on a theory

not advanced in his declaration in the lower

private or fraud or mistake. Moehlenpah

court. Weidman v. Willson, 153 Mich. 82,

15 Det. Leg. N. 828, 116 NWW 539.

58. Crane v. Schaerer, 140 Ill. App. 647;

Lovington Dr. v. Adkins, 232 Ill. 510, 83

NE 1043; Padfield v. Frey, 133 Ill. App. 232;

Seebach v. Kuhn \[Cul. App.\] 19 P 723. This

is the rule under Practice Act (P. L. 1993, p. 671), and where the complaint set up a

pancy for injuring a horse where plaintiff

contract growing out of commercial paper,

charged negligence both generally and spe-

proof of a different contract will not author-

ize recovery. Jordan v. Reed \[N. J. Err. & App.\] 71 A 280. It is a fatal variance if com-

plainmat does not prove the tort substan-

tially as pleaded, even though he may have

been needlessly minute in detail. Chicago

City R. Co. v. Carrrick, 133 Ill. App. 832. One

swing for price of goods sold is bound to

prove his cause as pleaded. Gross v. Riv-

kim, 114 NYS 844. This rule, however, applies to proof and not to pleading and is

not available in support of a demurrer.

State v. Senaboard Air Line R. Co. \[Fla.\] 47

S 986. Where a plaintiff apecifies certain

acts of negligence, he cannot recover on

any other. Lexington R. Co. v. Britton

\[Ky.\] 114 SWW 295. Fatal variance where

alleged that plaintiff was injured by the

sudden jerk of a car starting from a stationary position while the was attempting

to alight, and proof was that car was moving at the time it was alleged to be stationary. Chicago City R. Co. v. Gates, 135

ill. App. 180. Where one pleads specific

acts of negligence, he cannot recover on

proof of any other acts. Beave v. St. Louis

Transit Co., 212 Mo. 331, 111 SWW 62. The

rule that plaintiff may not sue on one cause

and recover on another does not apply

where negligence proved is within the scope

of the allegations. Knight v. Donnelly

Broa, 131 Mo. App. 162, 110 SWW 687.

scompliant charges specific acts of negligence,

gence, plaintiff is confined to proof of negligence

ligence specified, but, if it charges negligence may

be proved. Louisville & N. R. Co. v. Lowe

\[Ala.\] 43 S 89. The maker of a note may

not under a plea of no consideration, and

that an endorse knew of such fact and

parted with no consideration for the note,

prove that there was a defense to the note

and that the indorsee was not a bona

holder. Simers v. Halpern, 114 NYS 163.

A variance brought to the attention of the

court in apt time will defeat recovery unless it is within some exception. Loucks v.

Davles, 43 Colo. 490, 96 P 191. Where sev-

pancy for injuring a horse where plaintiff

charged negligence both generally and spe-

effically, held that proof that by the exer

else of ordinary care the motorman could

have avoided the collision was not admissi-

ble under the general averment of 12 Gur. Law. PLEADING SS 14. 1391

ing and not merely to some particular part thereof, there is an entire failure of Dunn \[Neb.\] 119 NW 1127. One suing for plaintiff's bill of particulars showed items cancellation of an instrument where the graveman of the bill is fraud and undue in-fluence, and which does not denominate the transaction as being induced by mistake, the bill of particulars showing take, may recover on proof of mistake on one side and knowledge thereof andavan-fund to plaintiff's credit at a bank, evidence tag taken off to an other. Moehlenpa v. Mayhew \[Twin.\] 119 NW 826. Though a servant suis for injuries did not plead a rule of his employer containing information as to the effect of the sudden application or release of an emergency brake on the engine, such rule was admissible to prove an allegation that the sudden application of the brake caused a violent jerk of the ear on which he was riding. Galveston, etc., R. Co. v. Harper \[Tex. Civ. App.\] 114 SW 1168. In an action on a liquor dealers' bond for selling liquor to plaintiff's husband, where it was alleged that sales were made on certain dates, plaintiff was not required to prove violations on those particular dates. Birk-man v. Fahrenthold \[Tex. Civ. App.\] 114 SW 428. In action for injuries while alighting from a train where it was alleged that defend failed to stop the train a sufficient length of time for plaintiff to alight, held not to alleg that the train was motionless when plaintiff attempted to alight. Ander-san v. Chicago & A. L. Co., 131 Mo. App. 580. 110 SW 650. Under a prayer for general relief, plaintiff held entitled to recover for services under a contract as interpreted by the parties though he proved a different in-interference. Cruel v. Houssiere-Latterille oil Co. \[LLa.\] 48 S 823. Discrepancy between allegation that an injury occurred on a sidewalk 125 feet west of a certain street and proof that it occurred 93 feet west of minutes later and before the horses couldtance alleged was but an estimate. Williams v. Lannsing, 152 Mich. 169, 15 Det. Leg. N. 168, 115 NW 961. In action to set aside a tax deed, plaintiff claimed as joint tenants and not as tenants in common. Heid bill comparing was against a corporation for a averring that they claimed as joint tenants v was not bad for failing to aver that they stockholders thereof agreed to pay the debt did not claim as tenants in common. Birk-son v. Arnold, 236 Ill. 495, 86 NE 254. Proof 86 P 178. The rule that proof of libel and that driver of a vehicle was driving long-stand must conform strictly to the allegation as a tax de la not a variance from an allegation that he was driving "at or near the tracks." Murphy v. Evanston Elec. \[Co., 235 Ill. 278, 85 NE 334. Proof that emmniute particular correspond with the words ployes of a regularly appointed bridge ten-difer were negligent is not a variance from P 1099. \] An allegation that the tender was negligent. Gathman v. Chicago, 236 Ill. 9, 86 NE 152. In action by a servant for injuries, the Isaues are as to the master's negligence and the servant's due care and assumption of risk, and the servant's mental capacity is a circumstance which may bear on such is-sue, and evidence thereof is admissible though it is not plended. Doolan V. Pocasset Mfx. Co., 200 Mass. 200, 85 NE 1055. In action for fraud. Adams v. Collins, 196 Mass. 422, 82 NE 498. Where plaintiff's evidence was confined to his bill of particulars and order for goods put in evidence by plaintiff did not tend to vary in proof the items in the bill of particulars, the extreme of technically is not favored to raise a variance between the proof and the bill. Butler v. Ederheimer \[Fla.\] 47 S 23. Where

## 1393 PLEADING SS 14.

12 Cur. Law.

proof.\* A party is required only to prove the substance of every issue and not every detail of the transaction.\[37\] Immaterial allegations need not be proved.\[38\] Failure to prove all that is alleged does not preclude recovery if a cause of action is made out.\[39\] The parties may enlarge issues by mutually trying out issues not involved in the pleadings.\[40\]

of an indebtedness for goods sold to such person and not received by him as plain-time. Cavannes v. Morgan Lumber Co., 50 till's agent. Sanitas Co. v. Niezawawski \[Wis.\] 120 N NVV 292. Recovery cannot be had under an allegation of performance of a special contract on proof of waiver resulting from acceptance of substantial performance. Allen v. Burns, 201 Mass. 74, 87 NE 87 NE 194. Where a complaint for injuries alleged that injury was caused by being struck by a projection from a passing train, plaintiff could not recover or proof that he was injured by attempting to 2841. The process of each a passing car. De Hoyos v. Galveston, etc., R. Co. \[Tex.\], Civ. App.\] 115 SWV 75. Where complaint declares on an express contract, recovery may not be had on an implied one. Fordman v. Stowers \[Tex.\], Civ. App.\] 118 SWV 681. In an action on a special tax bill for street improvements, held that there was a fatal variance between the deletion. In the bill and in the petition, German-American Bank v. Manning, 133 Mo. App. 294, 113 SWV 251. One used as indorser of a note cannot be held liable as guarantor. Cymper v. Terry \[Tex.\], Civ. App.\] 109 SWV 1129. Where plaintiff sought to recover commissions under a specific contract for hiring for a certain period, he could not recover on evidence of a hold over agreeement. Altimayer v. Lahn, 113 NYS 964. The proof must sustain the allegations of the complaint and a complaint for services by plaintiff on defendant's behalf is not sustained by proof of defendants written guard any.

12 Cur. Law. . PLEADING SS 14. 1398

Immaterial variances will be wholly disregarded.41 By statute in some states no variance is deemed material, unless it actually misled the adverse party to his prejudice in maintaining his action or defense on the merits.42 A variance is waived by

ery as on a joint and several bond. Union Oil Co. v. Mercantile Refining Co. \[Cal. App.\] son v. Welisford \[Tex. Civ. App.\] 116 SVW 917 P 819. Though waiver of forefigure of an insurance policy is pleaded in different ways, it is sufficient if any replication is ent from the alleged, not fatal, negligence established. Union Cent. Life Ins. Co. v. Welinsham \[Ala.\] 48 S 475.

40. Where parties consent to litigate an issue not raised by the pleadings, a judggment on such issue is final. Engel v. Son tag, 110 XYS 938. Where the parties volum-, tarly depart from and litigate issues not made by the pleadings, the question cannot be raised after verdict. Villancourt v. Wabash R. Co., 131 Mo. App. Minneapolis, etc., R. Co., 106 Minn. 348, 119 P 107, 111 SW 138. Where in an action for NWP 53. Where a case is tried on the assumption that a certain ple is made and no objection is made there, the fact that such plea was not filed is not ground for reversal. Webster v. Atlantic Coast Line R. Co., 81 S. C. 46, 61 SE 1080. Consent to try an issue not made by the pleadings will Trac Co., 131 Mo. App. 134, 110 SW 659. In not be inferred from the mere fact that evidence tending to prove the outside issue was received without objection, when such evidence was pertinent and competent on issues actually made. Diamond v. Denni-, non, 102 Minn. 302, 113 NW 696.

01. Price-Nash v. Barton Salt Co. \[Kan.\]

8 P 168. Judgment will not be reversed for an immaterial variance which did not disclaim a fatal variance. Yazoo mislead the adverse party. Caley v. Mills \[Kan.\] 100 P 89. A variance which does not mislead a party is immaterial. Haral-, son v. San Antonio Trac. Co. \[Tex. Civ. App.\] 115 SWW 876. Before a variance is to owned the brideyard, held immaterial where be deemed material, it must be shown to raised close of plaintiff's evidence. Bauman v. cial. Maloney v. Geiser Mfg. Co. \[N. D.\] 115 NW 669.

Immaterial variance: In action for negil-,ence, a variance in respect to specification of mere matters of detail concerning the manner, not the time or place, or the instrumentatilles by which the injury was inflicted. Knisely v. West Virginia M. R. Co. \[W. Va.\] 61 SE 811. Variance between amleation and proof in action for injuries to passenger, injured while alighting, as to whether she was thrown off or jumped off for safety. Saeger v. Wabash R. Co., 131 Mo. App. 288, 110 SW 88. A variance which results from a clerical error in inserting a variant 1894 PLEADING SS 14. , 12 Cur. Law. failure to make timely objection at the trial.\[48\] A variance may be cured by an amendment.\[44\] A variance between the complaint and summons does not entitle defendant to a dismissal of the complaint.\[45\]

\_Admissions in pleadings or by failure to plead.\_See 10 C. L. 1249 -A party is bound by statements and admissions in his pleadings.\[46\] Allegations of a pleading which are

vlding that no variance is material unless prejudicial, held variance between an allegation that an injured person was coming down a ladder on the side of a car and proof that the ladder was on the end of the car. 43 Coo. 366, 98 P 178. Where guardian in Crawford v. Kansas City Stockyards Co. \[Mo.\] 114 SSV 1057. 43. Objection to a variance must be made below or it is wavled. Rubin v. J. C. Gabler Co., 127 App. Div. 375, 111 NYES 124; Donk Bros. Coal & Coke Co. v. Stroeter, 133 Ill. App. 199; City of Chicago v. Wieeland, 139 Ill. App. 197: Helmholtz Forge & Rolling Millis Co. v. Bartels, 133 Ill. App. 22. Variance not preserved for review where no objection to evidence nor motion based on such ground. Hanreddy v. Pallinhans, 139 Ill. App. 148. A variance may be treated as waived where not taken advantage of during a long trial. Tubular Rivet & Stud Co. v. Exeter Boot & Shoe Co. \[C. C. A.\] 159 F 824. In case of variance, a motion to exclude should be made at the time of the alleged variance, and if made at the close of all the evidence comes too late and is waived. Chicago City R. Co. v. Phillips, 138 Ill. App. 438. 44. In action to recover purchasing price of an assignment of a permit to drill a well, where a decree is admitted in evidence as a former adjudication that the assignment was void, the fact that such judgment was not pleaded is cured by an amendment. Shannon v. Mastin \[Mo. App.\] 108 SSV 116. Though there may be a variance between the proof and allegations of the original petition, it ceases to be a variance when fully met by amendment. Macon R. & L. Co. v. Lewis, 4 Ga. App. 313, 61 SE 290. Where a variance could be obviated by amendment, the objection will not be entertained on appeal. Cumberledge v. Brooks, 235 Ill. 249, 85 NE 197. 45. Bragely v. Mueller \[S. D.\] 118 NVV 1035. 46. Where plaintiff attaches a copy of a note send on to the complaint, and defendants admit execution thereof, they cannot thereafter assert that note was altered after its execution. White v. Smith \[Kan.\] 88 P 766. In suit to determine rights of adjacent owners to gangway, admission in answer that plaintiff owned a part of it free and had an easement in the other part ls binding on defendant. McElroy v. McCarrille \[R. L\] 71 A 646. In action for injuries against a street car company, its answer admitting that plaintiff was a passenger on the car is admissible though plaintiff subsequently took the stand that no blame attached to the company. Louisville, etc., R. Co. v. McDonald, 33 Ky. L. R. 762, 111 SSV 289. A portion of a paragraph of an answer containing an admission of a distinct fact is admissible without introducing of explanatory matter which does not alter or modify the admission. Wade v. McLean Cont. Co. \[N. C.\] 62 SE 919. Admissions and allegations made in a verified complaint bind plaintiff through subsequent admitted by the pleadings of the opposite party, \[47\] and matters well pleaded which are not denied or avoided by the allegations of the opposite party, \[48\] are taken as es-

McClure v. Great Western Acc. Ass'n \[Iowa\] on purchases and sales of wheat as brokers, 118 NWP 269. An admission made in a super-seded pleading is not conclusive, and when mited by the answer. Elliott v. McAllister, explained is for the jury. Id. Admissiona 106 Minn. 25, 117 NWP 91. Stipulation that in a pleading adverse to the pleader are admissible against him though the pleadings be subsequently withdrawn. Elliott v. Oregon R. & Nav. Co. (Or.) 99 P 76. Plainff's original complaint verified while he was in the hospital, alleging that the injury happened because of sudden starting of the car, is insufficient to overcome evidence in support of an amended complaint alleging that he was injured by being pushed or dragged from the car by the conductor. McGrath v. Nassau Elec. R. Co. 128 App. Div. 63, 112 NYS 471. Admissions in the form of the pleadings of a former action in element against a party's predecessors in title are not conclusive. Floyd v. Kulp Lumber Co. \[Pa.\] 71 A 13. Where pleadings by defendant in another action contained material admissions on the facts in issue and there was nothing outside such issues of a prejudical nature, such pleadings was ad-missible. Seligmann v. Greif \[Tex. Civ. App.\] 109 SW 214. An answer in an abam-domed action cannot be admitted as an ad-mission against interest in another action. Vrightsman v. Herrick, 130 Mo. App. 266, 109 SW 104. Allegation in a trial amendment in partition setting up claim for rents, that defendant had been in exclusive possession since a specified time, is not evidential to the issue of limitations, which was denied. Hess v. Webb \[Tex. Civ. App.\] 118 SW 618. An answer which has been withdrawn is competent evidence in a suit on the part of the plaintiff as an admission by defendant. Loomie v. Norman Pinterre Supply Co. \[Conn.\] 71 A 358.

47. When issuable allegations are made in the complaint and admitted in the answer, it is not necessary to introduce the pleadings. McCaskill v. Walker, 147 N. C. 195, 61 SE 46. Admission in answer to a bill for infringement of a patent, that defendant had infringed it Is all the proof that is required. Fox V. Kmelkerbocker En-graving Co. I. C. A.J 165 F 442. Matter admitted by the pleadings need not be proved. McKenzie v. United R. Co. \[Mo.\] 115 SW 13. Admission made in the pleadings forming the issues being tried are to be considered without further action. Wood v. Brotherhood of American Yeomen \[Iowa\] 117 NWP 1123. Where general demurrer to complaint was overvended and an answer filed denying all allegations of the complaint and setting up a special defense to which demurrer was sustained and thereafter defendant admitted the allegations of the complaint, the action of the court in sustaining demurrer to the special defense was Immaterial. Cameron v. Hunutch \[Idaho\] 98 P 1080. In a suit to foreclose a vendor's lien, if the vendee seeks enforcement of the contract and pleads tender of the purchase price, he admits that the vendor is entitled to a decree of foreclosure for the amount of the tender. Portmouth Sav. Bank v. Yeiser \[Neb.\] 116 NWP 38. In action to recover money advanced and commissions, the author is aware of a pleadings of the complaint, and the author is tablished and need not be proved, but a party is not bound by a casual admission of what prudence would have required of him," and admission by answer of allegations of an opinion or speculation does not convert matters alleged into positive facts."69 Failure to plead is not an admission where a party is not required to plead."11 An admission in a special paragraph of an answer will not overcome a general denial."52 A

fessed where defendant is not an infant or moment by defendant of all pleadings which nonresident. Wisconsin Nat. Loan & Blds.

operate as a denial of any of the facts al-As'n v. Pride, 136 WFs. 102, 116 NWV 637.

leed in the petition, and restricts matters Under Code Civ. Proc. $ 500, an answer need or defense to such as are specially pleaded not formally admit anything; it is suff-In a avoidance. Meade v. Loan \[Tex. Civ.

cient to refrain from denying. McKane v.

Appl. 110 SWV 188. Where plaintiff in action Dady, 128 App. Div. 190, 112 NYS 650. Where there is no denial in a separate defense of any allegation of the complaint, they stand in infant owners were not made parties, nor admitted for the purpose of determining the 6 un answer of such infants, the allega-sufflenency of the defense. 556 and 558 Fifth Ave. Co. v. Lotus Club, 128 App. Div.

trict of Cilton v. Pfirman, 38 Ky. L. R. 529, 389, 113 NYS 856. Under Code Civ. Proc. $ 500, requiring an answer to contain a general or special denial of allegations of the complaint, every thing not denied stands admitted. Strock Plush Co. v. Talcott, 129

damages, plaintiff was not required to prove App. Div. 14, 113 NYS 214. Allegation of such allegations. Wabash R. Co. v. Newton, an amendment allowed without objection from defendant who fails to amend his answer to deny it is admitted. McCloskey

v. Goldman, 62 Misc. 462, 115 NYS 189. Under Comp. Laws 1897, $ 2984, failure to deny under oath genuineness and execution of a written instrument made part of a com-Pliant is an admission that it was signed as it purports to be, notwithstanding a sworn answer carrying each and every allegation of the complaint. Print Mfg. Co. v. Toti

\[N. M.\] 94 P 1023. This statute was not re-pealed by Comp. Laws 1897, $ 2685. Id. Under Code, $ 3623, providing that allega-sufflenency of amount of damages shall not be deemed true, because of failure to contro-vert it, an answer to action for breach of contract denying nothing but damages raises no issue. Byrne v. Independent School Dist.

\[Iowa\] 117 NWV 893. Though by Civ. Code Proc. $ 126, failure to answer does not go to the extent of admitting the amount of damages claimed, yet, in an action for alien-ation of affections, plaintiff is entitled to have the jury fix the amount from the allega-saflenency of the complaint. Adkins v. Kend-Fick \[KY.\] 115 SW 814. Where material allegations of a verified petition in special proceedings are not denied by some counter affdavit, they stand sufficiently proved for purposes of ultimate order. In re Simmons, 130 App. Div. 350, 114 NYS 571. Where complaint claimed all the waters of a certain Greek and defendant answered and alleged that he had acquired all the water by adverse user, plaintiff by failing to reply admitted defendants right and it was proper to render judgment for defendant on the pleadings. State v. Quantic, 37 Mont. 32, 94 P 491. In sult to foreclose contract to convey, on purchaser's default, where purchaser does not deny the allegation that he agreed to pay specified interest on deferred payments, interest claimed is properly awarded. Vance Redwood Lumber Co. v.

Durphy \[Cal. App.\] 97 P 702. Compliance with court rule No. 31, providing that defendant admitting that plaintiff has a cause of action as set forth, except so far as defeated by the answer, shall have the right to open and close, is In effect an abandon- \[N. M.\] 94 P 1023. This statute was not re-pealed by Comp. Laws 1897, $ 2685. Id. Under Code, $ 3623, providing that allega-sufflenency of amount of damages shall not be deemed true, because of failure to contract denying nothing but damages raises no issue. Byrne v. Independent School Dist.

\[Iowa\] 117 NWV 893. Though by Civ. Code Proc. $ 126, failure to answer does not go to the extent of admitting the amount of damages claimed, yet, in an action for alien-ation of affections, plaintiff is entitled to have the jury fix the amount from the allega-saflenency of the complaint. Adkins v. Kend-Fick \[KY.\] 115 SW 814. Where material allegations of a verified petition in special proceedings are not denied by some counter affdavit, they stand sufficiently proved for purposes of ultimate order. In re Simmons, 130 App. Div. 350, 114 NYS 571. Where complaint claimed all the waters of a certain Greek and defendant answered and alleged that he had acquired all the water by adverse user, plaintiff by failing to reply admitted defendants right and it was proper to render judgment for defendant on the pleadings. State v. Quantic, 3 12 Cur. Law. PLEADING SS 14.

plea in confession and avoidance is not an admission where the general issue is filed." An admission which is not as broad as the allegation does not entitle the opposite party to judgment without proof.54 An admission, in order to be binding, must be made by one with authority.55 Where an intervenor's transaction was subsequent to and independent of that at issue between the other parties, and his rights are not affected therein, no answer or demurrer to his petition is required but it is regarded as traversed by all the parties.56

_Judgment on the pleadings_ See 10 C. L. 1251 should be granted when they present such a case of conceded facts as entitles either party to relief,57 but is improper when there is any material issue of fact,56 or where the court has jurisdiction of the merits of a corporation to recover value of goods \[N. C. 471, 62 SE 599. Where no reply is filed sold by president, claimed by defendant to to matter of defense set up in the answer, have been owned by him, an admission in defendant is entitled to judgment on the pleadings. T. G. Northwall Co. v. Osgood, overcome a general denial in the answer, 80 Neb. 764, 115 NW 308. Where new matter set up in a verified answer would prevent recovery if proved, and reply thereto was not certified as required by Mills Ann.

53. Plea of contributory negligence does not admit negligence of the pleader where general issue is also interposed. Birmingham:

Code, $ 61, defendant was entitled to Judge-

ment on the pleadings. Hill Brick & Tile Co. hann R. L. & P. Co. v. Haggard (Ala.) 146 S. V. Gibson, 43 Colo. 104, 95 P 293. Under Code

519. A plan of set-off does not admit plain. Civ. Proc. $ 47, providing for judgment on

tiff's account where a general issue is filed.

pleadings in favor of a party entitled there-

Oliver V. Noel Const. Co. \[Md.\] 71 A 859.

to at any time after issue joined, where

54. Where answer in action on a note ad-

compliant does not state a cause of action.

mits its execution but denies that it was

defendant is entitled to dismissal on the executed on a week day, the admission not

merits. Abramowitz v. Abramowitz, 113 being as broad as the note. Cammack v.

NYS 798. Code Civ. Proc. $ 547, expressly

Newman \[Ark.\] 110 SWV 802.

provides that if either party is entitled to

55. An answer by one defendant in a judgment on the pleadings, the court may

chancory suit cannot bind nor be used

upon motion at any time after issue joined

against a codefendant, either in a former or

give such judgment. Mitchell v. Dunnmore

the present suit, unless the interest of the

Reality Co., 60 Misec. 563, 112 NYS 659. Where

two parties be joint. Hudkins v. Crim \[Vw.\] 61 SE 166. The act of an attorney for

on, plaintiff was entitled to judgment on the

defendants in making an express admission

pleadings, notwithstanding defendants allegation that he had discharged the obliga-

admission the personal declaration of defendants, and such admission having been

transaction inter alios acta. Kafka v. Ward-

stirken by amendment, to be evidence

well, 112 NYS 114. In action In fire policy

against them, must be shown to have been

where answer alleged that plaintiff was not

made by their direction. McKane v. Dady,

0.7 1398 PLEDGES. 12 Cur. Law. of the controversy," and judgment for defendant is improper where he admits a portion of the claim." It is error to grant a motion for judgment on the pleadings where the answer sets up an affirmative defense." Statutes providing for such judgment are remedial and are to be liberally construed." In New York such judgment may be either interlocutory or final." By moving for judgment on the pleadings, a party admits the truth of allegations of his adversary and the untruth of his own allegations denied by his adversary." The motion cannot be made when the verdict is in force." By statute in some states, where an answer admits a part of plaintiff's claim, he may have judgment for the amount admitted." In New York a municipal court has no power to grant judgment on the pleadings." Where a plea should be verified to be of any effect, court may in an action of assumpsit render judgment without the formality of striking the plea from the files."

**PLEEDGES.**

**8 1. Definition and Nature, 1399.**

**8 2. Right to Make, 1399.**

**8 3. Property Subject to he Piedged, 1399.**

_The scope of this topic is noted below."_

**82, 95 P 317. In action by heirs to recover property transferred by a widow under a void will, defendants may not have judgment on the pleadings on the theory that the will was valid or that title was acquired by adverse possession, where such aberrant of title is denied in the reply. Neal v. Davis \[Or.\] 99 P 69. Where if defendant had not answered plaintiff could not have obtained a judgment, he could not have judgment on the pleadings where the answer was written. Allen v. Allen v. Allen, 129 App. Div. 838, 110 NYS 803. In action to annul a tax deck, as a cloud on title, under Sayales' Ann. Civ. St. 1897, art. 5232, held error to give judgment on the pleadings where its effect was to relieve defendant of proving certain facts. Hill v. Harris \[Tex. Civ. App.\] 108 SW 489. Motion under Code Civ. Proc. $ 547, amended by Laws 1908, p. 462, permitting judgment on the pleadings after issue, is governed by the same rules as when motion is made at the trial, and if plaintiff is entitled to any relief the motion should be denied. Clark v. Levy, 114 NYS 850.**

**89. Where facts stated in an answer show that the court had no jurisdiction to hear the merits of the controversy, and it would be useless to plead a defense. It is error to render judgment on the pleadings. Freight v. Wyandt \[Kan.\] 99 P 611.**

**60. Where answer in action for price of goods admits the claim to a certain amount. Kleinberg v. Deutsch, 115 NYS 91.**

**61. Proof of affirmative defense must be made before allegations of the answer can have any effect except to settle the issues. Erickson v. Elliott \[N. D.\] 117 NW 861.**

**62. Code Civ. Proc. $ 547, authorizing judgment on pleadings after issue joined. White v. Gibson, 61 Misc. 436, 113 NYS 983.**

\*\*Code Civ. Proc. $ 547, expressly provides that the court may at any time after issue joined, render judgment on the pleadings in favor of a party entitled there. Mil 12 Cur. Law. PLEDGES SS 4. 1399

**SS 1.**\_Definition and nature.\_10--See 10 C. L.\_1258--A pledge is a deposit of goods by a debtor with his creditor as security for his debt,11 with implied power of sale on default,12 and is distinct from a mere assignment,13 mortgage 74 or sale.78 Parol evidence is admissible to show a transfer absolute on its face to be a pledge,76 also to clear any ambiguity as to the debt secured 77 or the property pledged,78 and the lex loci contracts 79 is a part of the contract of pledge.80 Although the relation of pledgor and pledge is not per se confidential,81 it may be when involved with other relations.82

**SS 2.**\_Right to make.\_88--See 10 C. L.\_1258--Possession without ownership does not give the right to make an unauthorized pledge,84 but such authority may be implied from relationship 88 or official position.88

**SS 3.**\_Property subject to be pledged.\_87--See 10 C. L.\_1258--The representative of property 88 or money may be pledged by endorsement and delivery.80

**SS 4.**\_The contract and its requisites.\_80--See 10 C. L.\_1258--To constitute a valid pledge there must be delivery of the property,81 either actual or symbolical,82 not merely constructive 88 or a mere promise to deliver,84 where pledgor has possession at time of pledge.85 It is also necessary that there be a good consideration 88 and that the contract be otherwise valid.97

fully treated elsewhere, and pledge by way of mortgage (see Morgages, 10 C. L. 865; 234.

Chatlet Mortgage, 11 C. L. 611) is excluded, see, also, Pledges, Cent. Dig. SS 16, 17; as is the regulation of the business of Dee. Dig. $ 6; 22 A. & E. Enc. L (2ed.) 845, pawnbroking (see Pawmbrokers and Secs.

ondhand Dealers, 12 C. L. 1258). Validity of pledge incident to a gambling contract (see Gambling Contracts, 11 C. L. 1633) and matters common to all contracts (see Contracts, 11 C. L. 729) are also treated in other topics.

**70.**\_Search Note: See notes in 8. C. L.\_1432

**71.**\_Search Note: See notes in 8. C. L.\_1432

**72.**\_L. L.\_877; 50 Id.\_174; 16 L. R. A.\_86. As cashler, statute construed. Powers v. Woolfolk, 132 Mo. App. 354, 111 SWV 1187.

**73.**\_Search Note: See, Pledges, Cent. Dig. SS 14, 15; Dec. Dig. $ 14, 15; Dec. Dig. $ 5; 22 A. & E. Enc. L.\_1445

**74.**\_People v.\_German Bank, 126 App. Div. 331, 110 NYS 291.

**75.**\_Tennent v.\_Union Cent.\_Life Ins. Co., 133 Mo. App. 346, 112 SWV 754.

**76.**\_People v.\_German Bank, 126 App. Div. 231, 110 NYS 291.

**77.**\_Grand Av.\_Bank v.\_St. Louis Union Trust Co. \[Mo. App.\] 115 SWV 1071.

**78.**\_Joline v.\_Metropolitan Sec. Co., 144 F 14.

**79.**\_Sequeira v.\_Collins, 153 Cal. 426, 95 p 876. Corporate stock. Shattuck & Desmond Warehouse Co. v. Gilleten \[Cal.\] 99 P 348.

**77.**\_Contemporaneous conversation, showing pledge secured new contract, not reduced to writing by defendants' fault. Wehner v. Bauer, 160 F 240. Only debts intended are secured. Stokes v. Dimmick \[Ala.\] 48 S 66.

**78.**\_Contemporaneous statements concerning amount.\_Hill v.\_Kerstetter \[Ind. App.\] 86 NE 997.

**79.**\_Local custom as to seed. Dunlap v.\_Berthelot \[LA.\] 47 S 882.

**89.**\_Place where dated, payable and accepted, rather than where signed. Tennet v. Union Cent.\_Life Ins. Co., 133 Mo. App. 346, 112 SWV 154.

**81.**\_Colominal Trust Co. v.\_Hoffstot, 219 Pa. 491, 69 A 52.

**82.**\_Between customer and broker when stock is bought on margin.\_Weir v.\_Dwyer, 114 NYS 528.

**83.**\_Search Note: See notes in 14 L. R. A.\_86. As cashler, statute construed. Powers v.\_Woolfolk, 132 Mo. App. 354, 111 SWV 1187.

**87.**\_Search Note: See, Pled

## 5 Rights, duties, and liabilities under the pledge

See 10 C. L. 1258.-A pledge is liable only for the purpose made,\[99\] and a present liability is presumed where no time of payment is fixed.\[1\] The acceptance of a renewal note does not release the collateral,\[2\] but the acceptance of new and substituted collateral releases the old.\[3\] The prescription of the note pledged does not carry with it the prescription of the principal obligation.\[4\] One holding a note as collateral security for an existing debt is a holder for value to the extent of his lien.\[5\] A corporation may be forced to record the pledging of stock,\[6\] and such stock is taxable against the pledgor in the domicile of the corporation.\[7\]

\_Possession and custody.\_See 10 C. L. 1254.-The pledgor is not entitled to possession of the pledged property until payment of the debt is made * or tendered,\[9\] but when this is done he may recover possession \[10\] by replevin,\[11\] unless the goods have passed out of pledge's possession and control.\[12\] A corporation with which its own stock is pledged may retain the dividends on such stock to be accounted for later,\[13\] but the pledgor by agreement may vote the stock.\[14\] While retention of possession by pledge is essential,\[15\] redelivery of commercial paper to pledgor for collection does not extinguish the lien.\[16\]

\_Title to the property.\_See 10 C. L. 1254.-A pledge does not acquire a general ownership in the thing pledged,\[17\] nor on holding after an invalid sale has he any different rights than before.\[18\]

\_Duty to realize on collaterals and prevent loss.\_See 10 C. L. 1254.-The pledge of a chose in action must use ordinary diligence to collect the same \[19\] or he will be chargeable with the results \[20\] of his delay,\[21\] and any sale of the pledge must be made to best advantage.\[22\]

Also existing debt. Graham v. Smith \[\[Mich.\] 15 Det. Leg. N. 938, 118 NWV 726.\]

Also surrender of old collateral for new, or promise of forebearance (Powers v. Woolfolk, 132 Mo. App. 354, 111 SWV 1187), or previous debt as between themselves (Id.). But not as to other creditors. Walker v. Harris' Ex's \[Ky.\] 114 SWV 775.

97. Security given for large loan under financial distress is not duress. Colonial Trust Co. v. Hoffstedt, 219 Pa. 497, 69 A 62.

01. Search Note: See notes in 4 C. L. 1057; 17 L. R. A. 193; 33 I. B37; 43 I. B37; 44 I. B37; 44 I. B38; 53 I. R. A. (N. S.) 1199; 6 Id. 298, 487; 10 Id. 757; 32 A. S. R. 711; 83 Id. 329; 2 A. Ann. Cas. 271; 8 I. T35; 4 Id. 116; 6 I. 107; 17 Id. 355; 10 Id. 115.

See, also, Pledges, Centi. Dlg. $ 41-194; Dec. Dig. $ 18-60; 22 A. & E. Enc. L. (ed.) 882; 16 A & E. Enc. P. & P. & P. 699.

99. Not liable for breach of another contract. Goettinger v. Donahue \[Vris.\] 119 NWV 823. Statute construed. Bell v. Bank of California, 158 Cal. 234, 94 P 889.

01. Stokes v. Dimmck \[Ala.\] 48 S 66.

01. Morehead v. Citizens' Deposit Bank \[Ky.\] 113 SWV 501. Especially if forged. Wise v. Williams, 162 F 161.

01. Powers v. Woolfolk, 132 Mo. App. 354, 111 SWV 1187.

01. Meyer Bros. v. Colvin \[La.\] 47 S 447.

01. Statute construed. Graham v. Smith \[Mich.\] 15 Det. Leg. N. 938, 118 NWV 726.

01. Goetzinger v. Donahue \[Vris.\] 119 NWV 828.

01. Equitable ownership. right to vote and collect dividends was retained. Central of Georgia R. Co. v. Wright, 166 F 153.

01. Warmington v. Kalliauner \[Mo. App.\] 115 SWV 492. Pledges may hold all till all12 Cur. Law. PLEDGES SS 5. 1401

\_Conversion by the pledgeee. See 5 C. L. 1485--Conversion consists in the unlawful sale,\[23\] transfer or surrender to a third party \[24\] of the thing pledged, or neglect to recover back the same after release from the writ taken under,\[25\] unless the pledgee retain an exact equivalent \[26\] or a right of election as to such disposition of the property,\[27\] irrespective of demand by the pledgor.\[28\] The cashing of a pledged check is not conversion.\[20\] It may occur that the pledgor has more than the one remedy, as, for example, he may take a money judgment where a tardy surrender would be inequitable,\[80\] may sue for damages or in assumpsit, or to enforce his right of redemption;\[31\] but by accepting the benefits of a conversion,\[32\] or by delaying to object,\[33\] he waives his right of recovery. If his suit for conversion becomes barred, it is immaterial that it involves an accounting not barred.\[34\]

\_Redemption and surrender.\_See 8 C. L. 1485--The pledgee surrenders the pledged property to a third party at his own risk.\[35\] In a bill to redeem, one with whom complainant has negotiated a sale is not a necessary party.\[36\] A pledgor may redeem from a broker employed by him to find a purchaser and who buys from pledgee on his own account.\[37\]

\_Default, foreclosure and sale.\_See 10 C. L. 1254--After default the pledgee may sell "" in a public place " the goods pledged, even though exempt property," as authorized in the contract, reasonable notice of sale \[41\] being given and demand being made when required.\[42\] The pledgee may not purchase unless specially authorized by consent or statute,\[43\] but when so authorized has the same rights as any other purchaser.\[44\] Where disagreement prevents the performance of conditions precedent to the enforcement of the pledge, equity will supply a remedy.\[45\] The pledgor may waive his right to object as to time and place of sale, either expressly\[48\] or by unreasonable delay

21. Not alone create liability or release pledge. Loeb v. German Nat. Bank \[Ark.\] 113 SWV 1017. 32. Hinckley v. Colvin, 233 Ill. 139, 84 NE 174. Wase offered double the amount sold for; held liable for actual value. German-American State Bank v. Spokane Columbia River R. & Nav. Co., 49 Wash. 359, 95 P 261. 33. Tennent v. Union Cent. Life Ins. Co., 133 Mo. App. 345, 112 SWV 754. Without notice. Drake v. Pueblo Nat. Bank \[Colo.\] 86 P 99. Stock bought on margin, solid without notice, damages allowed. Clapp v. Taylor, 125 App. Div. 605, 109 NYS 1072. 34. When on invalid writ prior payment of debt did not avail. MacDonnell v. Buffalo Loan, Trust & Safe Deposit Co., 13 N. T. 92, 85 NE 801. Neglect to notify of taking. Id. 25. Attachment dismissed. MacDonnell v. Buffalo Loan, Trust & Safe Deposit Co., 193 N. T. 92, 85 NE 801. 36. As like shares of stock. Bell v. Bank of California, 153 Cal. 34, 94 P 889. 27. Corporate bonds pledged for personal debt, conversion did not date from time pledged or demanded but from the time of transfer by pledgee. MacDonnell v. Buffalo Loan, Trust & Safe Co., 193 N. T. 92, 85 NE 801. 28. Immaterial except as evidence where possession lawful. MacDonnell v. Buffalo Loan, Trust & Safe Co., 193 N. T. 92, 85 NE 801. 29. Janson v. Pottruch, 62 Misc. 459, 115 NYS 111. 30. Treadwell v. Clark, 124 App. Div. 260, 108 NYS 733. 31. Bell v. Bank of California, 153 Cal. 34, 94 P 889. 32. Reynolds Banking Co. v. Neisler, 130 Ga. 789, 61 SE 828. 33. Tennent v. Union Cent. Life Ins. Co., 133 Mo. App. 345, 112 SWV 754. 34. Statute of limitations. Bell v. Bank of California, 153 Cal. 234, 94 P 889. 35. Legal process must be valid. MacDonnell v. Buffalo Loan, Trust & Safe Deposit Co., 193 N. T. 92, 85 NE 801. 36. Hinckley v. Colvin, 233 Ill. 139, 84 NE 174. 37. Broker did not represent adverse interests. Hinckley v. Colvin, 238 Ill. 139, 84 NNE 174. 38. Bush v. Adams, 165 F 802. 39. Stock bought on the curb may be sold there. Weir v. Dwyer, 62 Misc. 7, 114 NYS 528. 40. Kyle v. Sigur, 121 La 1403 PLEDGES $ 5. 12 Cur. Law. with knowledge." All pleadings will be construed most favorable to the enforcement of the pledge,\[48\] and foreclosure will not be restrained except to prevent irreparable injury to pledgor.\[49\]

\_Right of action on the debt.\_See 10 C. L. 1254. The pledge of commercial paper may bring an action\[50\] in his own name\[51\] to realize on the same when due,\[52\] or may join with the pledgor,\[53\] or may join the pledgor as a party defendant.\[54\] The pledgor may bring suit on the debt pledged, subject to the pledge's lien,\[55\] by making the pledgee party to the action.\[56\] A pledgee purchasing at the foreclosure of the pledged mortgage does not become the absolute owner of the property bought.\[57\] A mortgagor may not attack the right of the pledge,\[58\] nor may the pledgor disturb a compromise not prejudicial to his rights, though unauthorized.\[59\] The collateral note and that of the pledgor are distinct.\[60\]

\_Effect of insolvency and bankruptcy.\_See 1 C. L. 1458. The pledgee's possession of the goods,\[61\] the validity of the pledge,\[62\] and the application of the security in accordance therewith,\[63\] or any existing legal relations, are not disturbed by bankruptcy or insolvency of the pledgor.\[64\]

\_Equities and defenses between one of the parties and third persons.\_See 10 C. L. 1255 A pledge has preference \[68\] over other debts or attempted liens on the same property,\[64\] and the pledge of a symbolical representative\[67\] is entitled to secure possession from the custodian,\[68\] since the relation of bailor and bailee exists between them,\[69\] and the pledgee is in the privileged position of a bona fide purchaser for value.\[70\] Notes pledged as collateral will be released under the same circumstances as a surety personally bound.\[71\] A guarantor may with the debtor's consent pay the debt and demand the thing pledged\[72\] to be held by him as collateral.\[73\] Payment to the pledgor\[74\]

47. Value increased meantime. Tennent v. Union Cent. Life Ins. Co., 133 Mo. App. 345, 112 SWV 754.

01. Stokes v. Dimmick \[Ala.\] 48 S 66.

01. Not unless insolvency or nonscertainable value be alleged. Howley v. Charles Francis Press, 127 App. Div. 646, 111 NYS 108.

01. Packard v. Abell, 113 NYS 1005.

01. By statute, common-law rule adverse. Tenent v. Union Cent. Life Ins. Co., 133 Mo. App. 345, 112 SWV 754.

01. Mortgage and note, also corporate div-. 'Idend. Union Trust Co. v. Hasseltine, 2 12 Cur. Law. Possession, Whitt of. 1403

by the maker of the note with knowledge of the pledge is no defense,78 and in the case of negotiable paper it is necessary that the maker have notice or knowledge.76 The assignee of pledged stock 77 transferred without consent of the pledgor is sub-rogated to the pledgee's right 78 only.79 A purchaser of pledged commercial paper is chargeable with all unapplied payments of which he had knowledge,80 but not with secret and undisclosed advances,81 and one who buys pledged stock from the pledgor subject to the lien may, after tender of the debt and refusal sue the pledgee for conversion,82 but where he buys from the pledgee there is no implied warranty of value.83 The pledgee of an insurance policy may enforce an option without the insured being made a party,84 and where the company as pledgee makes an invalid sale, the beneficiary may recover for his loss.85 The pledge of corporation stock will be protected.86

Footnote 83: The term "$\\sim$" refers to the plication for an alias writ, the prior decree is conclusive where the issues are

stantially the same." Execution of the writ will not be restrained at the instance of persons having no interest in the property involved." To constitute a legal execution, delivery of possession must be effectual and not merely formal."

possessory warrant."

This topic treats only of the possessory warrant under the Georgia practice.

The right to the writ is dependent on the manner in which possession of the property was acquired."

postal law.

1. The Federal Postal System and Its Ad-

8 2. Use of the Mails and Mall Matter, 1405.

ministration, 1404.

The scope of this topic is noted below.1

1. The federal postal system and its administration.2 See 10 C. A. 1285. The appointment of a supervisor of delivery requires the approval of the postmaster general,3 and to entitle one to a salary as superintendent, he must be a de jure an officer.4

Footnote 12: The Federal Postal System and Its Ad-

The United States' money order system is not a business in a commercial sense but a branch of the governmental function of carrying mails.5 The act of congress making it a misdemeanor for a postmaster to issue money orders without first having received the money therefor is notice of the postmaster's limitation of authority,6 and one in whose favor a postmaster or postal clerk issues a money order, without first receiving an application and payment therefor, is liable for its value though he may have paid such agent in good faith in other ways.7 A postmaster and his money order superintendent are not "disbursing officers" so as to give the court of claims jurisdiction over an action by them to recover a sum of postal funds alleged to have been stolen,8 but as to losses in post offices by robberies and other casualties, provi 12 Cur. Law. POSTAL LAW SS 2. 1405

sion is made specially as to the manner in which relief to postmasters can be obtained, and this remedy is exclusive.\[10\]

An action for libel against the assistant attorney general for the post office department and an inspector of such department, based on the promulgation by them of a fraud order against plaintiff, does not have such rational connection with official duties under the "revenue law" as to make it removable from a state to a federal court by certiorari.\[11\]

SS 2. \_Use of the mails and mail matter.\[12\]_See 10 C. L. 1256_--Administrative orders of the postmaster general as to mailable matter cannot be judicially reviewed except for error of law;\[18\] hence a bill in equity to enjoin the enforcement of a fraud order made by him is insufficient where it shows.a hearing upon due notice on charges of fraud clearly within the statute, but does not show what proofs were adduced,\[14\] but his authority is neither unbounded, arbitrary, nor discretionary, but limited, and its exercise governed by the acts of congress which confer it and by the laws of the land, and his violation or disregard of either is remediable in the courts.\[18\] Where ground for equitable interference exists, complainant has the burden of showing irreparable injury.\[16\]

That a large majority of the letters that are addressed to one party in its own name alone are in reality intended for another does. not clothe the latter with the right that the postmaster shall be directed to deliver all mail of that character to it in direct opposition to the address upon the letters,\[17\] and a ruling in such case by the post office department will not be interfered with by injunction where the party asking for injunctive relief has no clear legal right to the relief sought.\[18\]

The government in the operation of the post office department is in law regarded as a bailee of the mail matter intrusted to it for transmission,\[19\] and though under no legal obligation to the senders or addresses of ordinary unregistered mail lost or

0. Act of March 17, 1882 (22 Stat. L. 29), 1901, pp. 2686, 2749). Appleby v. Cluss, 160 F amended by Act of May 9, 1888 (Supp. R. S. 91, 585-586), amended by Act of June 11, 1896 (29 Stat. L. 458), to postmasters, but not to clerks or assistants. Henderson v. United States, 42 Ct. Cl. 449.

1. No right of action under Rev. Stat. 115 105, 1062, exclusive remedy being Act of March 17, 1882 (22 Stat. L. 29), with amendments. Henderson v. United States, 42 Ct. Cl. 449.

1. Cause not removable under Rev. Stat. 11 643 (U. S. Comp. St. 1901, p. 521), bill not showing that act had rational connection with duties under a "revenue law" and in same way affected the revenue of the government. People's United States Bank v. Goodwin, 162 F 937.

1. Search Note: See notes in 58 A. S. R. 595; 7 Ann. Cas. 135.

See, also, Post Office, Cont Dis. SS 20-44; Dec. DIf. SS 13-26; 18 A. & E. Enc. L. (2ed.)

829; 32 Id. 1054.

13. Appleby v. Cluss, 160 F 984. Fraud order under Rev. Stat. 8 3929, 4041, as amended by Act Sept. 19, 1890, c. 909, SS 2, 3, 26 Stat. 466, and Act March 1, 1895, c. 191, 1 4, 28 Stat. 984 (U. S. Comp. St. 1901, pp. 2686, 2688, 2749), in absence of fraud or grosa mistake of fact, is conclusive and not reviewable in doubtful case where there is some evidence which is satisfactory to the postmaster to sustain same. People's United States Bank v. Glinson \[C. A. J. 161 F 285.

01. Rev. Stat. 11 3929, 4041 (U. S. Comp. St. 1405, pp. 1405, pp. 1405, pp. 1405, pp. 1415, pp. 1420, pp. 1430, pp. 1445, pp. 1455, pp. 1465, pp. 1475, pp. 1480, pp. 1490, pp. 1491, pp. 1492, pp. 1493, pp. 1505, pp. 1515, pp. 1521, pp. 1535, pp. 1545, pp. 1555, pp. 1565, pp. 1575, pp. 1585, pp. 1591, pp. 1592, pp. 1593, pp. 1594, pp. 1605, pp. 1615, pp. 162, pp. 163, pp. 164, pp. 165, pp. 166, pp. 167, pp. 168, pp. 169, pp. 170, pp. 17 * 1406 Postal Law SS 3. 12 Cur. Law.

- 20. United States v. American Surety Co., 161 F 149. No defense to action for breach of bond by riffling letters that the United States v. States is not liable to senders for losses sustained. United States v. American Surety Co., 161 F 228. 161 F 149. No defense to action for breach of bond by riffling letters that the United States is not liable to senders for losses sustained. United States v. American Surety Co., 161 F 228. 161 F 149. No defense to action for breach of bond by riffling letters that the United States is not liable to senders for losses sustained. United States v. American Surety Co., 161 F 149. No defense to action for breach of bond by riffling letters that the United States is not liable to senders for losses sustained. United States v. American Surety Co., 161 F 228. 161 F 149. No defense to action for breach of bond by riffling letters that the United States is not liable to senders for losses sustained. United States v. American Surety Co., 161 F 149. No defense to action for breach of bond by riffling letters that the United States is not liable to senders for losses sustained. United States v. American Surety Co., 161 F 228. 161 F 149. No defense to action for breach of bond by riffling letters that the United States is not liable to senders for losses sustained. United States v. American Surety Co., 161 F 149. No defense to action for breach of bond by riffling letters that the United States is not liable to senders for losses sustained. United States v. American Surety Co., 161 F 228. 161 F 149.

12 Cur. Law. Postal Law SS 3. than that they were obscene, lewd and lascivious; \[34\] and under such indictment the averment that prohibited matter was deposited in a post office is sustained by proof that it was deposited in letter box and taken therefrom by the United States agents and stamped and sent out. \[35\] An indictment charging one with having deposited in the mails unmailable matter includes the charge that he caused such matter to be deposited, \[36\] but the indictment is not broadened in scope by a further characterization of such matter as of an indecent character. \[37\] An averment that a pamphlet charged to have been mailed was "obscene, lewd and lascivious," is not objectionable as a conclusion of law, \[38\] and, where it states that the matter was too obscene to be spread of record, it sufficiently identifies the pamphlet by describing its size and appearance by setting forth the title page. \[39\] An indictment for mailing a letter giving information where, how, of whom and by what means, articles and "things" designed and intended for the procuring of an abortion might be obtained, must specify the articles or "things" about which defendant's letter is alleged to have given information. \[40\] Instructions must be free from prejudicial error. \[41\] A corporation has capacity to commit the crime of mailing obscene nonmailable matter, \[42\] and to fasten knowledge upon the corporation requires no other or different kind of legal inference than is necessary to justify punative damages in cases of tort against a corporation. \[48\]

_Use of mails to defraud_ See 10 C. L. 1257 involves the use of the mails as an incident to the execution of a fraudulent design, \[44\] but "any scheme or artifice to defraud" when furthered through the mails is within the statute \[45\] and any one participating, assisting or acquiring therein is liable. \[46\] To support an indictment a letter need not in and of itself be effective to execute a scheme to defraud. \[47\] In a prosecud. \[48\]

**34.** In indictment under Rev. St. $ 3894, as amended by U. S. Comp. amended by Act of Sept. 26, 1888, to 1989, $ 2, $ 1901, p. 2658, held applicable to corporation organized for purpose of publishing a newspaper and proof of mailing of news-paper containing obrosious matters sufficient to show knowledge. United States v. New York Herald Co., 159 F 296.

**35.** 36.\*\* Shepard v. United States \[C. C. A.\] 160 F 584.

**37.** United States v. O'Donnell, 165 F 218.

**38.** 39.\*\* Konda v. United States \[C. C. A.\] 166 F 51.

**40.** United States v. Somers, 164 F 259.

**41.** International under Rev. St. $ 3893, as amended by Act of Sept. 26, 1885, to 1989, as amended by Act of Sept. 26, 1885, to 1989, as amended by Act of 26, 1885, to 1989, 254. 496 U.

**5.** Comp. St. 1901 p. 2658), setting out a writ-ten letter inquiring for medicine or means for accomplishing abortion and reply which when read in connection with inquiry offers for a stated consideration to accomplish default.

**6.** As stated in the last paragraph, the United States v. Somers, 164 F 259.

**7.** The 1408

POSTAL LAW SS 3. 18 Cur. Law.

tion for conspiracy to use the malls to carry out a scheme to defraud, the government must allege and prove that the defendant devised a scheme to defraud, used the mails, and either sent or received mail connected with the scheme; \[48\] but in the indictment the names of as many of the persons defendant planned to defraud may be used as the pleader may know, and all mail connected with the scheme shown to have passed through the post office to any person though not named in the indictment is admissible upon the question of the existence of the scheme,\[48\] and it is sufficient to show that written or printed matter about the scheme charged was mailed to one of the persons named as the persons defendant planned to defraud and that copies of the same printed matter were circulated in the mails throughout the United States to a mailing list.\[50\] The indictment though not in the language of the statute is sufficient if the averments bring the charge within the meaning and substance of the statute \[51\] and with reasonable certaintyprises the defendant of the accusation which he will be required to meet,\[52\] not more than three offenses committed within the same six calendar months may be charged in the same indictment,\[53\] but this provision does not prevent the joinder in one indictment of counts charging offenses in different periods of six months,\[54\] nor the imposition of sentences on each of such counts in case of conviction.\[55\] Joinder of more than three offenses in one indictment should be questioned before sentence and can be cured by dismissing the excess counts or by imposing but one sentence.\[56\] Instructions embracing propositions of law not applicable to the correct theory of the case or which have been substantially covered may properly be refused.\[57\]

\_Embezlement and larceny from the mails.\_See 10 C. L. 1250.\_The federal statute as to embezzlement by postmasters does not require intent to convert \[58\] money received and receipted for by a rural letter carrier, from patrons of his route to be used in the purchase and forwarding of money orders while in the possession of such carrier and before surrender at the post office does not constitute "money order funds" under the statute.\[59\] Provision making it a criminal offense for an employee in the postal service to embezzle a letter necessarily implies that the letter must have come into

for that purpose or to assist the same.

Lemon v. United States (C. C. A.1164 F 953, 48. Rev. St. $ 5440 (U. S. Comp. St. 1901, 3676) and $ 5480 (p. 3696). United States v. Marrin, 159 F 767, 49. Rev. St. $ 5440 (U. S. Comp. St. 1901, 3676) and $ 5480 (p. 3696, 50. United States v. McViekar, 164 F 894, 54, 55, 56. United States v. McViekar, 164 F 894, 57. Instructions considered and held properly refused to case or substantially given. Lemon v. United States (C. C. A.) 164 F 953. Requested instruction held properly refused as not embracing entire scheme to defraud as laid down in indictment and as improperly limiting the time in which the devising of scheme took place. Id.

58. U. S. Comp. St. 1901 **SS 4046**, 4053.

Grimm v. Zuber \[Tex. Civ. Appel. 113 SVP 961, 59. United States v. Mann, 160 F 552, 26. Rev. St. $ 4045 defnling, and $ 4046 making penal embezzlement of "money order funds." held not applicable to rural mail carrier who through permission of Postmaster General accepts money from patrons with a view to buy for him a postal money order. Id.

12 Cur. Law. POWERS SS 3. 1409

his possession in his official character,60 hence an indictment thereunder must allege such fact.61, 62

Postponement, see latest topical index.

POWERS.

8 1. Nature and Kinds, 1409.

8 2. Creation, Construction, Validity and Effect, 1409.

Only powers of appointment are here discussed. Powers of attorney,68 and powers of sale in executors,64 trustees,65 grantees or devisees,64 are treated elsewhere.

SS 1. \_Nature and kinds.67--See 10 C. L. 1220--A general power of appointment is equivalent to absolute ownership.68 A power is appendant or appurtenant when the donee has an estate in the property and the power is to take effect wholly or in part out of that estate.69

SS 2. \_Creation, construction, validity and effect.70--See 10 C. L. 1250--No technical language need be used in the creation of a power.71 In the construction of a power the donor's intention must give way to the statutes of the state.72 The character of a power in trust and the donee's right to release it are questions determinable by the laws of the state where the property is located and not the laws of the donee's domicile.73 A power of appointment in default of the exercise of which an estate is given to designated persons does not hold such estate in abeyance but has the effect of only rendering it subject to divestiture by exercise of the power.74 If the power is not exercised, the property remains in the alternative devisees.73

SS 3. \_Execution of powers.76--See 10 C. L. 1260--A power given by will cannot be exercised until after the death of the testator,71 and a power in the survivor of two

60. Shaw v. United States \[C. C. A.\] 165

01. Farmers' L. & T. Co. v. Kip, 192 N. Y. F 174.

61, 62. Indictment under Rev. St. $ 5467

73. Newton v. Hunt, 59 MIsc. 633, 112 NYS (U. S. Comp. St. 1901, p. 3691) held fatally

01.

defective as not alleging that letter came into his hands in his official character.

74. Freeman's Estate (No 1), 35 Pa. Super. Stabw v. United States \[C. C. A.\] 165 F 174.

01. See Agency, 11 C. L. 60.

01. Where widow was given power to devise property received by her under husband's will, but it did not appear that her

01. See Trusts, 10 C. L. 1907.

01. See Real Property, 10 C. L. 1448.

01. Search Note: See notes in 4 Ann. Cas. 58.

01. See also, Powers, Cent. Dig. $ 1; Dec. Dig. $ 11: 2 A. & E. Enc. L. (2ed.) 474; 22 Id. 1088, 1091, 1133.

01. VIII construed in light of Real Propretly Law, Laws 1896, $ 139, 133, held not to transmute life estate into a fee by power of appointment "by will or deed" so as to make it permissible to measure remoteness of estates appointed from time of death of doner. Farmer's L. & T. Co. v. Kip, 192 N. Y. 156, $ 18 NB 59.

01. Where life beneficiary had power of appointment in default of exercise of which property was to go to her heirs. McFaI v. Kirkpatrick, 236 III. 281, 86 NE 139.

01. Search Note: See notes in 4 C. L. 1065; 6 L. R. A. (N. S.) 746, 1186; 22 A. S. R. 726; 4 Ann. Cas. 1191; 7 Id. 138.

See, also, Powers, Cent. Dig. $ 1-31; Dec. Dig. $ 1-15; 22 A. & E. Enc. L. (2ed.) 1093, 1131.

71. Any words disclosing doner and nature and objects of power are sufficient. Powell v. Woodock \[N. C.\] 62 SE 1071.

12 Curr. L.--89 beneficiaries cannot be exercised by either until the death of the other." In determining whether a power has been executed, the intention of the done is the true criterion." When the circumstances are so equivocal as to leave the mind in doubt whether an execution of the power was intended, it will be held that there was no execution." Where one has income for life with power of disposing of the principal by will, a residuary devise or request by him constitutes an execution of the power." Where a power can be lawfully exercised, it is presumed that the done will so exercise it." The validity of the exercise of a power created by will as governed by the same rules as if the donor had himself made the same provision in favor of the same appointee." A power to appoint by will may not be exercised by deed." Limitations and conditions attached to the exercise of a power accompany also the exercise of a power conferred by the donee on his appointee, though not adverted to by the donee." The language of the donee will be given its fair and ordinary construction where it is sought to ascertain the sufficiency of the exercise of the power." Possible beneficiaries in the event of a discretionary power being exercised in their favor have no rights as cestuis que trustent before the exercise of the power." Where a power is exercised only as to a portion of the estate which was subject thereto, a devise over in default of appointment will remain in effect as to the residue." When remainders are devised subject to a power given the life tenant and the life tenant devises to the remainder, the property is in these by virtue of the first and not by virtue of the second will."

her husband. Held, wife had no power to dispose of residue of estate of husband, that he dies intestine as to such residue, and that his heirs at law took same by descent. Thomas v. Hobson, 10 Ohio C. C. (N. S.) 351.

78. Under will giving income to two beneficiaries while both lived, with whole income to survivor and at her death principal to be paid to her appointee by will, patrick, 286 Ill. 281, 85 Rev 139.

power in survivor could be exercised only after death of one of the beneficiaries to take effect at survivor's death and could not be executed by either in favor of the other so as to vest either or both with remainder. Garrett v. Duclos, 128 App. Div. 508, 112 NYS 811.

79. Will held to refer to property other than that set apart by previous deed of trust. In re Neill's Estate \[Pa.\] 70 A 942. Act June 4, 1879 (P. L. 88), providing for execution of powers, held not to affect powers created by ded. Id.

01. Where it did not appear life tenant's partition proceeding was intended as execution of her power to sell and dispose of the property. Cramton v. Rutledge \[Ala.\] 47 S 214.

01. Howland v. Parker, 200 Mass. 204. 85 NE 287. Eighth clause of will confessedly a general residuary clause disposing of all personality "not designated to be held in trust" by seventh clause, which bequated remainder of all monys, securities and deposits in trust, held sufficient to pass a fund from which testrix had had income up to time of her death, even if seventh clause did not pass same, since words "designated to be held in trust" should be construed to mean "given in trust" so as to make eighth clause over all personality not covered by previous provisions. Id.

01. Not presumed second life tenant would create a life estate in one not in being at the same level. This is the 12 Cur. Law. PRISONS, JAILS AND REFORMATORIES SS 3. 1411

Alienation of the estate by the donee extinguishes a power appendant." A power in trust, as distinguished from a general beneficial power, cannot be released or relinquished by the done."

Powers of Attorney; Praeepe; Prayers; Precatory Trusts; Preliminary Examination; Preliminary Sulfate; Prescription; Presumptions; Principal and Agent; Principal and Surety; Prior Appropriation; Priorities Between Crediors, see latest topical index.

PRISONS, JAILS AND REFORMATORIES.

8 1. Nature and Classes, 1411.

8 2. Custody, Discipline, Government and Employment of Inmates, 1411.

_The scope of this topic is noted below."_

SS 1. Nature and classes."_See 4 C. L. 1087_

SS 2. \_Custody, discipline, government and employment of inmates."_See 10 C. L. 1261_--A prisoner sentenced in one county, under a state law, cannot be confined in the workhouse of another county unless the sentence so directs."_Public policy requires that jails should be kept in a clean and sanitary condition."_It is within the discretion of a prison board to require a prisoner to do work without the walls of the prison,"_ regardless of whether he was sentenced to hard labor or not."_

SS 3. \_Administration and fiscal affairs."_See 10 C. L. 1262_--The custodianship of

Estate, 60 Misc. 643, 113 NYS 1112. Where 940), status of convicts and validity and interpretation of convict labor contracts (see go to daughter's issue and daughter ap-

Convicts, 11 C. L. 807), pardon and parole pointed life estate to husband with re-

of convicts (see Pardons and Pardons, 12 C.

malinder to her children, latter took under

L. 1165), and peonage laws (see Slaves, 10

appointment. In re Lowndes' Ekstate, 60 C. L. 1673). The appointment, compensa-

Misc. 506, 113 NYS 1114.

90. Where life cesult que trust had test-

cluded (see Sheriffs and Constables, 10 C. L. 1648).

her exercise of which trust property was

98. Search Note: See notes in 16 L. R. A.

to go to her helfs, her conveyance .601; 86 Id. 283; 2 L. R. A. (N. S.) 95; 120

equitable fee extinguished her power and

A. S. R. 952.

she could not thereafter exercise it in dero-

See, also, Prisons, Cent. Dig. # 1-3, 24;

gsftion of her graft. McFall v. Kirkpatrick,

Dec. Dig. # 1-3; Reformatories, Cent. Dig.

236 Ill. 281, 86 NE 189. Immaterial after

1, 2; Dec. Dig. # 1, 2; 15 A. & E. Enc.

conveyance whether statute of uses would

L. (2ed.) 7717; 22 Id. 129, 1299.

have otherwise executed trust by vesting

94. Search Note: See Prisons, Cent. Dig.

legal title in appointee. Id.

91. Where a trust was settled in favor

Cent. Dig. # 1-3; Dec. Dig. # 4-12; 15 A.

of settler for life with general power of

Appointment in her, and subsequently trust

95. A constable, in a county having no

agreement was modified so as to reserve to

workhouse, but which has made terms, un-

setler power to appoint to children on

der is 1536-738, Revised Statutes, with a city

their issue in unequal shares, power of un-

or district of another county having within

equal appointment was "created," within

its limits a workhouse, cannot commit to

meaning of statute, not when original

sub workhouse a prisoner found guilty of

agreement was made but when it was modi-

violating a state law, unless the sentence

fed, and hence was a special power in trust

so provides, although the writ issued to the

and not a beneficial power as defined by

constable directs such confinement. Young

1 Rev. St. (1st ed.) pt. 2, c., it, # 1, # 9, V. State, 11 Ohio C. C. (N. S.) 466.

and could not be released by covenant

96. Harkreader v. Vernon County \[Mo.\]

donor and some of children in subsequent

116 SW 523.

mortrage on income and corpus whereby

97. Stutative in this regard held discretion-

retutor expressed her intention to execute

ary and not mandatory. State v. Wright

her power by appointment among children

\[Vt.\] 69 A 761.

in equal shares. Newton v. Hunt, 59 Misc.

98. Stutative requiring hard labor from

638, 112 NYS 573.

prisoners regardless of sentence held not

99. H includes only the management and

qutitive but discelinary and reformative.

discipline of prisons and the powers and

State v. Wright \[Vt.\] 1412 PRISONS, JAILS AND REFORMATORIES SS 3. 12 Cur. Law. the county jail is vested in the sheriff by virtue of his office.13 He must conduct the jail in an orderly manner 2 and may remove his subordinates upon the assignment of cause.3 The board of trustees of a state penitentiary has no arbitrary power to dismiss an officer or employee without cause or hearing.4 Where a statute provides that the prison chaplain shall devote his whole time to the intellectual and moral improvement of convicts, he cannot receive extra pay as superintendent of a night school for them.5 It is the duty of the county to furnish gas, water and janitor service for the county jail.6 The unused portion of moneys advanced by the county to the sheriff for the purpose of victualling prisoners must be returned by him to the county,1 and such repayment may be compelled although the advancement was made with full knowledge and without fraud.8 A jailor cannot avail himself of an appropriation made for the purpose of maintaining a county jail where it would result in increasing the compensation for his services.9 Fees received by a city jailer from the state and federal governments for keeping state and federal prisoners cannot be diverted by the city to its owners, nor can the jailer be compelled to account for them.10 The board of state prison commissioners has no power to insist that, as a condition precedent to the award of a contract for the care of the inmates of the prison, the new contractors should furnish the money to enable the state to take over personal property belonging to the former contractors.11

Footnote 10: https://www.hdl.gov/

Privacy, Right of; Private International Law; Private Schools; Private Ways; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlege; Privlegelege; Privlege; Privlegelege; Privlege; Privlegelege; Privlegelege; Privlegelege; Privlegelege; Privlegelege; Privlegelege; Privlegelege; Privlegelege; Privlegelege; Privlegelege; Privlegelege; Privlegelege; Privlegelege; Privlegelege; Privlegelege; Privlegelege; Privlegelegelege; Privlegelegelege; Privlegelegelege; Privlegelegelege; Privlegelegelege; Privlegelegelege; Privlegelegelegelege; Privlegelegelegelegelege; Priv 12 Cur. Law. PROOESS $\\lx@sectionsign$ 1. PROOESS $\\lx@sectionsign$ 1. PROOESS.

41 1. Necessity, Nature and Requisites, 1413. D. The Server, His Qualifications, and Protection, 1421. 6 2. Issuance, 1414. 8 3. Extraterritorial Effect or Validity, 1414. 4. 4. Service, 1421. 8 4. Service, 1415. 8 5. Return and Proof of Service, 1425. 4. In General, 1415. 9 6. Defects, Objections and Amendments, B. Personal Service, 1415. 1427. 10 7. PrivUleges and Exemptions from Server-Ice, 1429. 159: 16 4. $&$ E. Enoc. P. $&$ P.

- \[141\] **PROCESS $\\lx@sectionsign$ 2.** 12 Cur. Law.\*\*

\_Indorsement,\_See $\\lx@sectionsign$ C. L. 1450.-Process is often required to be indorsed with the names of the parties,20 but such requirement does not necessarily preclude the use of abbreviations.20

\_Direction and delivery,\_See $\\lx@sectionsign$ C. L. 1480

\_Description of action,\_See $\\lx@sectionsign$ C. L. 1451.-Under some statutes the file number of the suit must appear,31 and under others a statement of the nature of the demand is necessary,32 but in some jurisdictions it is necessary to state only the amount demanded.33

\_Time and place of appearance,\_See $\\lx@sectionsign$ 10 C. L. 1253.-A time and place for the appearance of the persons served must be named,34 and the return day must be within the statutory limit.38

\_Penalties or consequences of nonappearance,\_See $\\lx@sectionsign$ C. L. 1080

\_Alias, counterpart or supplemental process,\_See $\\lx@sectionsign$ C. L. 1461

\_$\\lx@sectionsign$ 2. Issuance,\_See $\\lx@sectionsign$\_See $\\lx@sectionsign$\_C. L. 1283.-Summons is not "issued" until delivered to the officer charged by law with service thereof.37 The issuance of a summons is usually a purely ministerial act, which may be performed by the clerk.38 Where it is the duty of plaintiff to file a praecipe for a summons, the clerk may refuse to issue summons until he does so,39 but if the clerk issues a summons upon a praecipe filed by a defendant, a co-defendant cannot complain, and jurisdiction is acquired by service of the summons so issued.40 A summons otherwise duly issued and served is not void merely because issued upon a complaint which is wanting in requisite jurisdictional averments, the same being amendable,41 or because a copy of the defective complaint is attached to the summons as issued and served.48

\_$\\lx@sectionsign$ 3. Extraterritorial effect or validity,\_43_See $\\lx@sectionsign$ 10 C. L. 1264.-Process cannot run from the courts of one state into another and summon persons there domiciled to

- \[1503, c. 580, $\\lx@sectionsign$ 37, providing, in action to with printed signature of his attorney to court and procured decree thereon. Id. 30. In New Jersey, in suit to enforce penalty, process must be endorsed with name least 6 days before appearance, controls; of person who prosecutes and title of statute under which action is brought. Ten Eyek v. Mendel (N. J. Law) 72 A. 31. 30. Use of names of some with words "et al." held sufficient indorsement in absence of restrictions to contrary imposed by law or rule of court. Deves $\\lx@sectionsign$ 11, 15-18; Dec. Dig. $\\lx@sectionsign$ 18-23; 20 A. $&$ E. $\\lx@sectionsign$ 173; Saddler v. Smith \[Pla.\] 45 S 718. 31. Citation cannot sustain default judgment untils it states file number of suit as required by Rev. St. 1895, art. 1214. Duke v. Spillter \[Tex. Clv. App.\] 111 SW 787. Endorsement of file number of suit on back of citation by clerk is not necessary part of the author, and cannot be presumed to have been shown on copies served, so as to cure omission of file number from citation. Id. 32.-Warrant issued by justice of peace must contain general statement of nature of demand or cause of action. Shannon's Code, $\\lx@sectionsign$ 5958. Memphals St. R. Co. v. Flood \[Tren.\] 118 SW 384. 33. In New York city municipal court where summons states merely amount demanded, court acquires jurisdiction, and plaintiff may set up any cause of action he chooses. Johnstone v. Weibel, 115 NYES 255. 84. Otherwise no jurisdiction. Cummings v. Landes \[Iowa\] 117 Nvr 22. 35. Municipal Court Act, Laws 1902, p. $\\lx@sectionsign$ 15; Dec. Dig. $\\lx@sectionsign$ 19.

answer proceedings in the foreign court,\[44\] and no personal judgment can be based on such extraterritorial service.\[45\]

Service in another county other than that of the venue is sometimes allowed in certain cases.\[44\] To authorize summons to another county in personal actions for the recovery of money only, there must be an actual right to join the resident and non-resident defendants.\[47\] Service of writs to parties residing outside the district where the action is brought is authorized by the federal statutes.\[48\] This subject is closely allied to that of venue, and the article on that subject should also be consulted.\[49\]

SS 4. \_Service. A. In general.\[50\]\_See 10 C. L. 1264_Unless waived,\[61\] service of process is essential to jurisdiction.\[62\] Statutes providing a method for service of process for the purpose of bringing individuals or corporations into court must be strictly followed, and the court is powerless to declare a service of process valid where there has not been a strict compliance with the provisions of the statute.\[63\]

(SS 4) \_B. Personal service.\[54\] In general.\[50\]\_See 10 C. L. 1264_Persons not served are not bound\[54\] when they do not appear and are not represented by persons duly authorized.\[58\] Service must be upon the proper party\[67\] or upon an authorized

44. Holcomb v. Kelly, 114 NYS 1048.\[\] $ 10, providing for issnance of duplicate Service on nonresident personally and by writs to parties residing in other judicial mall outside state does not confer jurisdiction. Buiowa v. Provident Life & Trust (Texas), is not limited to local actions; ap-Co., 115 App. Div. 545, 109 NYS 1058. Non-relidents cannot be brought in, upon ordinary demands for money, by process issued from state courts and served beyond limits 1965.

01. Po Search Note: See Process, 19 A. & E, 1900, purporting to authorize such service violates 14th Amendment to Federal Constitution. Aikmann v. Sanderson \[La.\] 47 $ 600.

01. Moss v. Fitch, 212 Mo. 484, 111 SWV 475: Johnson v. Tennessee Oil, etc., Co. \[N. J. Eq. 69 A 788.

01. Plaintiff resident of one county may use in the circuit court of such county and clothe it with jurisdiction over defendant by causing its process to be issued, directed to any county in the state, but she may not institute suit in another county, under Proc. Act $ 1, 2, 3 (Hurd's St. 1905), relating to insurance companies. Hartzell v. Maryland Casnulty Co., 139 IL. App. 365.

01. McNeny v. Campbell \[Neb.\] 116 NWV 671. Where jurisdiction of nonresident defendants, in trespans on case, is raised by plea in abstememem, plaintiff must show joint liability of defendants to acquire jurisdiction under Pub. Acts 1901. $54, No. 225.

01. Moss v. Rosenthal, 151 Mich. 493, 14 Let Leg. N. 988, 115 NWV 729. Action to satisfy claim out of money deposited in bank held "personal" action, hence could be maintained in one county against all, though some were nonresidents of that county. Code, 3501. Kean v. Rogers \[Iowa\] 118 NWV 515. In action for damages for breach of contract of employment brought against both corporation and its general agent, service of summons upon the company, in manner provided by statute, does not authorize issue of summons to general agent in another county and service upon him there; and service of summons upon the general agent in such other county of his residence does not give the court jurisdiction over him, and action must be dismissed. Bigger v. State Life Ins. Co., 8 Ohio N. P. (N. S.) 27.

01. Act March 11, 1902 (32 Stat. 68, c. 183).

1416 PROCESS SS 4B. 12 Cur. Law. agent "" before the appearance day named in the writ or process "" and within the time limited by law,"" and should be made upon a day authorized by law for service."

_Upon incomponents._"--Service upon infants "" or insane persons "" must comply with statutory requirements.

_Upon nonresidents or their agents._"See 10 C. L. 1264--Personal service on a nonresident found within the state is valid," unless he has been induced to enter the jurisdiction by means of false representations or deceptive device "" to which plaintiff was privy." To bring in nonresidents by service on an agent, statutory requirements must be complied with," and the agent served must have authority to receive or accept service."

_Upon municipal corporations._"See 4 C. L. 1084--At common law, process was served on a municipal corporation by serving its mayor or other chief officer," and in the absence of statutory provision, this mode of service is still valid." Where there is a statute, its provisions must be followed."

_Upon domestic corporations._"See 10 C. L. 1264--Statutory provision is usually made for service on corporations by service on its agents." To sustain such a service the

proceedings being carried on contradictory with such curator, is nullity. Andrews v.

sheey \[La.\] 47 871.

SF. Where citation issued commanding

sured he was retained, on insane

S. L., S. F. & T. R. Co. to be summoned, and

person in such county, was good. Stuart v.

this was served on one described in return

orter \[Ohi\] 85 NE 1062. Under Civ. Code

as agent of S. L. & S. F. R. Co., a different

corporation, service was vod. St. Louis &

savlum, service on him alone did not give

S. F. R. Co. v. English \[Tex. Civ. App.\] 109

jurisdiction to appoint guardian ad litem:

SWY 424.

s. In action for damages for breach of

factract for chartering and use of steam-

ship, service on parties who represented

onverse in transactions with government

was good, they being authorized agents.

United States v. Bedouin S. S. Co., 167 F

s62. Service on one parter authorizes

judgment against firm. Lutz v. Kalmus, 115

NYS 230.

s. Service after day named is ineffective.

Cummings v. Landes \[Iowa\] 117 NWV 22.

i 60. Query: Whether Gen. St. 1895, p. 410.

s 3, requiring that service of summons is-

sued against board of chosen freeholders

shall be made at least 20 days before session of court to which such process is returable, was not implied repeatedly by

Proc. Act Rev. 1903, SS 52. Palmer v. Easex

County Chosen Freeholders \[N. J. Law\] 71

A 285.

61. Laws 1839, c. 367, invalidating service

on Saturday on persons observing it as holy

day, was repealed by Laws 1847, c. 349.

Service of moving papers for injunction on

Saturday, valid. New York & N. J. Tel. Co.

v. Rosenthal, 128 App. Div. 220, 112 NYES

62. See, also, Infants, 12 C. L. 140; In-

same Person, 12 C. L. 105.

63. Service on minors in mother's presence and hearing ineffective under Code,

$ 3533. Service should be on mother for

them. Cummings v. Landes \[Iowa\] 117 NWV

22. When persons upon whom service might

be had for defendants who are minors under

der 14 are all plaintiffs, and clerk appoints

a guardian ad litem, under Civ. Code Proc.

$ 52. service on guardian is valid without

service on minor. Cornell v. Cornell \[Ky.\] 115 SWY 735.

64. Where action against insane person

was commenced at place of legal residence.

sheey \[La.\] 47 871.

service of summons, directed to sheriff of

S. Wheres citation issued commanding

sounty where he was retained, on insane

S. L., S. F. & T. R. Co. to be summoned, and

person in such county, was good. Stuart v.

this was served on one described in return

orter \[Ohi\] 85 NE 1062. Under Civ. Code

as agent of S. L. & S. F. R. Co., a different

Proc. $ 63, where hunatic was confined in

corporation, service was vod. St. Louis &

savlum, service on him alone did not give

S. F. R. Co. v. English \[Tex. Civ. App.\] 109

jurisdiction to appoint guardian ad litem:

SWY 424.

having no committee or relatives as specid

S. In action for damages for breach of

fact in statute, service should be made on

contract for chartering and use of steam-

ship, service on parties who represented

ton \[Ky.\] 115 SWY 728.

Vords "if residing

owners in transactions with government

was good, they being authorized agents.

person served must have been an agent of the defendant corporation 74 and must have been authorized to accept or receive service 75 or within the class of agents designated by law as those upon whom service might be had.76 Service must also be made at the required place,77 and the agent must be served in his representative capacity and not as an individual.78

Footnote 74: The agent is not a good choice for the agent to be able without the consent of a foreign corporation, constitute as its agent for service a person not otherwise the agent of such corporation.54 Since at common law there is no way in which service can be had on a foreign corporation, and it is only by virtue of statutory provisions that such service can be had,55 the statutory requirements must be strictly followed.56 Actual notice does not aid defective service.57 In some states foreign corporations doing business therein are placed upon same basis as domestic corporations as regards service.58 The meaning of the word "agent" as used in statutes designating person upon whom service may be made must be ascertained with reference to the context.59 Thus, where the other words refer to officers having some general or supervisory authority, a mere subordinate employe cannot be held an "agent.59 Where an agent is not expressly authorized to accept service, to legalize service upon him it must appear that he had such connection with the corporation or with the business out of which the alleged cause of action arose that he should be considered the representative of the corporation for the purpose of service.51 Service upon an agent of a foreign corporation is ineffective unless it is or was at the time of

be shown. The law of the state may desiga- and estopped to deny authority of such person as agent. Carpenter v. Willard Case made if he be one sustaining such relation Luther Co., 158 F 897.

to the company that the state may desiga-

Service held valid: Local storage and nate him for that purpose, exercising legis-

transfer company receiving, storing and disla-

lative power within the lawful bounds of

tributing goods forwarded by carload lots

due process of law. Commercial flut. Acc. made up of goods of several persons by

Co. v. Davis, 213 U. S. 245, 53 Law. Ed.-

83. Nelson v. Deming Inv. Co. \[Okl.\] 96

845 (Pura's Code, SS 332, 333), permitting

742; Zrie R. Co. v. Allen \[N. J. Law\] 89 A 484. Service on captain of boat oper oper-

service on agent of foreign corporation donated by foreign company held "personal"

ing business in state. Lee v. Fidelity Stor-

service authorizing judgment by default.

gg & Transfer Co. \[Vswah.\] 98 F 688. Serv-

Phillips v. Portage Transit Co., 137 Wis.

189, 118 NWV 539.

g4. Limit of state's power in such regard

is to require appointment of certain person,

as, for example, the state auditor, as con-

diton precedent to corporation's right to

Co., 137 Wis. 138, 118 NWV 539. One who is

do business in state, and to refuse to recognize

nice the existence of corporations not con-

forming to such requirements and to pun-

ish them for doing business in state with

out complying with statute. Vance v. Pull-

man Co., 160 F 707, contruring W. Va. Code

1906, SS 232, 3805, 3810.

SS. Nelson v. Deming Inv. Co. \[Okl.\] 96

P 742.

S6. Swarts v. Christie Grain & Stock Co.,

railroad hails cars of another within state

166 F 338.

87. Mere fact that person served with

process sent it to general solitor of com-

many was held not to create agency so as

to make service valid. Erle R. Co. v. Van

Col., 106 Minn. 263, 119 NWV 398. Under

Allen N. J. Lawf 69 A 484.

Vt. St. 1109, relating to service of attach-

SS. Code 1899, c. 50, 8 34, as amended by

Code 1906, SS 1985. Stout v. Baltimore &

Ohio R. Co. \[Vw. Va.\] 63 SE 317.

89. Brie R. Co. v. Van Allen \[N. J. Law\]

190 A 484.

90. Statute authorized service on any

"officer, director, agent, clerk, or engineer."

Erie R. Co. v. Van Allen \[N. J. Lawf\] 69 A

484. Chief clerk of division superintendent

of railroad not "agent" on whom personal

service could be made binding on company.

Hyega Brew. Co. v. Erie R. Co. \[N. J. Lawf\]

69 A 981.

91. Erle R. Co. v. Van Allen \[N. J. Lawf\]

69 A 484. To bring in foreign corporation,

person served must be representative of

company, such that if such person had acc-

cepted service, corporation would be bound

good (Code Pub. Gen. Laws 1904, art. 75,

service could be made binding on company.

Hyega Brew. Co. v. Erie R. Co. \[N. J. Lawf\]

69 A 981.

Fire R. Co. v. Van Allen \[N. J. Lawf\]

69 A 484. To bring in foreign corporation,

person served must be representative of

company, such that if such person had acc-

12 Cur. Law.

1418

process SS 4B.

12 Cur. Law. without the consent of a foreign corporation, constitute as its agent for service a person not otherwise the agent of such 12 Cur. Law. PROCESSSS 4B. 1419

the transaction in question engaged in business in the state.\[92\] The effect of fraud or artifice inducing such a one to come into the state in order that service may be had upon him is, it would seem, the same as in other cases.\[93\] Statutes commonly prohibit

egin{tabular}{l l} ing agent authorized to adjust and settle & service of process on soliciting agent of losses. Commercial Mut. Acc. Co. v. Davis, \\ & & corporation not doing business in state is \\ & 213 U. S. 246, 53 Law. Ed. ... & \\ & Service held invalid: Service of summons & Co. \[Miss\]. 47 S 89, Co. 1906, $19, 920, \\ & upon persons formerly in defendant's employ, but at time of service in employ of \\ & & and Laws 1908, c. 123, p. 133, defining what \\ & & constitutes doing business within state and \\ & & corporation employed by defendant to look \\ & & who are agents of corporations for pur- \\ & after its affairs after defendant's removal & poses of serving process, held not retreform \\ & from district, held insufficient though \\ & & \\ & & \\ & & \\ & \\ & & \\ & \\ & & \\ the revocation of a designation of an agent for service so long as the corporation has outstanding liabilities in the state.\[94\] A mere change of name by a corporation does not require the appointment of another agent for service.\[98\] Usually, service on a corporate agent may be had in a county other than that in which the action is commenced.\[99\] In some states where the corporation has not designated an agent, service may be had on an agent found in the county where the contract in suit was made.\[99\]\_ Upon foreign unincorporated associations.\[99\]\_ See 4 C. L. 1076\_

(SS 4) _C. Substituted.\[99\]_ See 10 C. L. 1260\_--Substituted service cannot be had unless expressly authorized,\[99\] and all statutory requirements, such as necessary preliminary steps,\[1\] must be strictly followed,\[2\] and a departure therefrom cannot be aided or cured by actual notice to the person desired to be served.\[3\] Service at the "late" place of residence is ineffective under a statue providing for service at the "usual" place of residence.\[4\] "Usual place of abode" means the place where defendant is ac tually living at the time when service is made,' the customary and settled place of residence.6

Substituted service on corporate agents is sometimes authorized.7

(SS 4) _D. The server, his qualifications and protection.8- See 8 C. L. 1487_Service should be made by the proper officer,9 but mere irregularities in this regard, as distinguished from a total lack of authority, do not render the service absolutely void.10_

(SS 4) \_E. Constructive service.11 In general.\_See 10 C. L. 1270_Status authorizing service by publication are valid 12 but will be strictly construed, and the statutory requirements must be strictly followed.18 Constructive service cannot, without an appearance, support a personal judgment.14 The court has power to render judgment only as to the res as property within its jurisdiction,18 and such judgment is binding only on those to whom effective constructive or actual notice was given; 16 but service by publication, where authorized and made in the prescribed manner, is as effective as personal service.17

Footnote 18: Cur. Law. PROCESS SS 4E.

5. Berryhill v. Sepp, 106 Minn. 458, 119 NW

1. In case of married man, "house of his usual abode" is prima faee place where wife and family reside. Berryhill v. Sepp, 106 Minn. 458, 119 NW 404. Service on defenant not valid where made by leaving copy with his daughter at home of mother and daughter, where husband and wife were living separate and apart, and husband (defenant) was resident of Montana and had never been on wife's premises. Id.

1. Leaving copy of writ at office of division superintendent, in state, with chief clerk of superintendent, is valid service on foreign railroad corporation, under P. L.

1896, p. 805, which authorizes leaving copy at usual place of business of such corporation. Hygca Brew, Co. v. Erfe R. Co. \[N. J. Lawl 69 A 981. In Oklahoma, service on the duly appointed agent of a foreign corporation may be personal, or by leaving the copy at the usual place of residence of such agent. Statutes construed. State Life Ins. Co. v. Oklahoma City Nat. Bank \[Ok.\] 97 P 574.

8. Search Note: See notes in 44 L. R. A.

1. See, also, Process, Cent. Dis. # 57-66; Dec. Dis. # 50-55; 19 A. & E. Enne, P. & P. 577.

1. Processes emanating from circuit courts should be served by sheriff or deputies, especially in capital cases (service of copy of venire). Bradberry v. State \[Ala.\] 46 8 968.

1. Coroner, being authorized to make service where sheriff is a party, service by former where sheriff is improperly made a party is not vold but only voidable, and court acquires jurisdiction. Clause v. Co. lumbia Savings & Loan Asn', 16 SW9. 450, 95 P 54.

1. Search Note: See notes in 4 L. R. A.

(N. S.) 117; 11 Id. 676; 87 A. S. R. 358.

See, also, Process, Cent. Dis. # 98-189; Dec. Dis. # 84-11.

12. Code Civ. Proc. # 438, authorizing service by publication on foreign corporations does not deny due process of law. Grant v. Greene, 59 Misc. 1, 111 NW 1089.

01. Steinman v. Jessee, 108 Va. 567, 62 SE 276. Statutes authorizing constructive service of process by publication must be strictly pursued in order to give a court 1422

Process SS 4E.

\_When proper.\_See 10 C. L. 1270.--Constructive service is allowed only where the defendants are nonresidents,18 or where they cannot be found in the state, or their whereabouts is unknown,19 and where they have property in the state, subject to the jurisdiction of the court,20 or claim property therein,21 or where the action is one in rem 22 or quasi in rem,23 and the court has jurisdiction of the res.24 Constructive service is also allowed by some statutes against unknown heirs 25 or other unknown claimants of real property where title is in issue.26 It is allowable only in cases covered by the authorizing statute.27

\_Procedure to authorize.\_See 10 C. L. 1270.--The affidavit for publication must state facts showing ground for constructive service,28 or such facts must be alleged in the

\[CaL\] 97 P 17. Nonresident defendants in \[may be obtained by substituted service of proceeding to forfeit lands for failure to \[most\] goes same as in the case of other non-list and pay taxes duly served in statutory \[resident defendants. Proceeding to set manner, bound by judgment. Eastern Ken- \[aside mortgage, McCarter v. Pitman, Glass- \[tucky Coal Lands Corp. v. Com. 33 Ky. L. 23\]. 85, 111 SW 362. 23\]. But to establish and enforce trust in \[real estate held quasi in rem, and court of\] location against resident of state on whom \[urlsdiction in which property was situated\] could render judgment on service by pub- void. Hayes County v. VIIleman \[Neb.\] 118 I know 478. Service by publication sustained, of proceeding in rem, and judgment therein that defendant was only absent from state and intended to return, where evidence \[original suit. Missouri, K. & T. R. Co. v. state where she had gone, and intended to institute proceedings there. Lewis v. Lewis, 138 Iowa, 593, 116 N NVV 698. 25. Where, in partition, names and places of residence of some heirs at deceased person are unknown, resort may be had to state authorizing service by publication on \[unknown heirs. Heas v. Webb \[Tex. Civ. \[App.\] 113 SW 618. 26, In tax foreclosure proceedings, unknown owners constructively served held bound by judgment. Sellers v. Simpson \[Tex. Civ. App.\] 115 SW 88. See, also, Cobb v. Hawyer \[Fla.\] 47 S 484: Indiana & Arkansas Lumber & Mfg, Co. v. Brinkley \[C. C. A.\] 164 F 968. 27. Section 5045, providing for service by publication in certain cases, does not apply to an action in interpleader where brought by the stakeholder. Connecticut Mut. Life \[In. Co. v. Berman, 7 Ohio N. P. (N. S.) 145. 28. Affidavit showing nonresidence of defendant, but not that he could not be found within state, insufficient to support service by publication. Levine v. Gerardo, 60 Misc. and under section 91, court may appoint trustee to convey interests of such defendants. Hollander v. Central Metal & Supply Co. \[Md.\] 71 A 442 Plainiff attached property of defendant, nonresident, and had order for publication of summons, conforming to N. Y. Code & 439. Cause then removed to federal court. Held, service would support judgment to extent of property attached, though plaintiff's papers moving for order of publication did not show (as required in federal courts) that defendant had property in state. Mercantile Nat. Bank v. Barron, 165 F 831. 21. Service by publication on nonresidents sufficient in quit to quiet title. Kieffer v. Victor Land Co. \[Orl.\] 98 F 877. 22. Constructive service sufficent to support judgment in actions in rem. Gassert v. Strong \[Mcont.\] 98 F 457. When the res of a controversy is within the state, jurisdiction over foreign operation interested therein \[that no agent for service had been ap * 12 Cur. Law. **Process SS 4E.**

complaint, where the law so requires; "\* and in some states the order must be based upon a complaint stating a good cause of action." The affladavit for publication need not be verified at the exact time suit is commenced." Errors and defects in proceedings taken to obtain jurisdiction of nonresidents, of a nature tending to mislead and prejudice defendant, are fatal." Immaterial irregularities may be disregarded."

\_How and when made.\_See 10 C. L. 1271.--Publication of process on Sunday is void in some states." Failure to mail papers to the nonresident, when his postoffice address is known, amounts to fraud and invalidates the service by publication."

\_Order of publication; published notice or summons.\_See 10 C. L. 1272.--Issuance of the order is controlled by statutory provisions." The published order, notice or summons.

pointed, and that personal service could not

tion within Code Civ. Proc. SS 439, providole-be made. Nicoll v. Midland Savings & Loan

ing that order for publication of summons Co. \[OKl.\] 86 P 744. Under Rev. St. Ohio

must be based on complaint stating cause 1908, SS 5046, providing that before service

by publication can be made an affladavit that

C., 193 N. Y. 306, 88 NE 84, rvg. 126 App.

summons cannot be served in state upon the

Div., 750,111 NYS 386. Compaint held

-defendant and that the case is one men-

ficient In action between same parties.

tioned by the statute must be filed, affladavit

Grant v. Greene, 59 Misc. 1, 111 NYS 1089.

showing that service could not be made on

To support service by publication, complaint

both of two defendants but failing to state

that it could not be made on the foreign

affladavits showing that fact. Id.

-corporation alone and there was nothing

in context to show that such corporation

that need not be verified precisely at time

was not doing business in state or had no

offline of complaint; verification 3 days

offline nor managing agent upon whom servoc-

ice might not have been made or that the

ford \[Ark.\] 115 SW7 940. Order for pub-

insertion of "and" was by mistake is

in-sufficient to render subsequent service of

forgin corporation by publication valid.

Welch v. Farmers' L. & T. Co. \[C. C. A.\] 165

F 561. Where unknown owners are made

partles defendant and they are nonresident

or, whose addresses are unknown, two affladavits are imperatively required, one for

the purpose of procuring issue of process

and one to authorize the clerk of the court to

cause notice by publication to such defendants to be made as directed by other statutory provisions. Substantial compliance

with those provisions is essential and in-

dispensable. Chamery Act, Rev. St. # 7,

12. Freed v. Baird, 139 Ill. App. 15.

01. Under Rev. Codes 1905. & 6840, requiring as basis for constructive service

that affladavit must state, or complaint show

that defendant has property or debts owing

him in state, constructive service proper

where complaint contained allegations as to

contract for sale of real estate by defendant, facts of ownership being inferred.

Hemml v. Grover \[N. D.\] 120 NW 561. Under

statute \[Mans. Dtg. Ark. # 4889\] issue

and service by publication of warning order to unknown heirs where fact appears

in complaint that names of heirs are un

known to plaintiff, such averment in com-

claim is indispensable, and publication of

warning order without it does not give jurisdiction. Indiana & Arkansas Lumber &

Affg. Co. v. Brinkley \[C. C. A.\] 164 F 963.

To give court jurisdiction of unknown parties, interested in property involved, by

publication, complaint must allege in his

verified bill that he believes there are other

persons interested other than known defendants whose names are unknown to him.

Laws 1905, p. 70, e. 5393. Cobb v. Hawsey

\[Fla.\] 47 S 484. Decree against "unknown heirs" of named person invalid where no

such allegation was in bill. Id.

50. Compaint held to state cause of ac-

complaint, where the law so requires; "\* and in some states the order must be based upon a complaint stating a good cause of action." The affladavit for publication need

not be verified at the exact time suit is commenced." Errors and defects in proceedings taken to obtain jurisdiction of nonresidents, of a nature tending to mislead and prejudice defendant, are fatal." Immaterial irregularities may be disregarded."

\_How and when made.\_See 10 C. L. 1271.--Publication of process on Sunday is void in some states." Failure to mail papers to the nonresident, when his postoffice address

is known, amounts to fraud and invalidates the service by publication."

\_Order of publication; published notice or summons.\_See 10 C. L. 1272.--Issuance of

the order is controlled by statutory provisions." The published order, notice or summons

pointed, and that personal service could not

tion within Code Civ. Proc. SS 439, providole-be made. Nicoll v. Midland Savings & Loan

ing that

**1424**

process $ 4E.

mons must fix a proper day for appearance," which must be within a time prescribed by statute," and must sufficiently designate the defendants sought to be thus served," though in tax foreclosure proceedings an error in the name of the owner," as a designation of owners as "unknown" when their names appear on the roll," has been held not to invalidate the service where the property was properly described. Though failure to insert the middle initial of defendant's name in a summons, where service is by publication, might not be fatal error," the use of a wrong initial will not confer jurisdiction over the real party defendant." Notice to a woman stating her maiden name, in which she took title to real estate, is good, though she has since married." Various statutes require the notice or order to state the nature or object of the action " and the file number of the suit."

_Personal service in lieu of publication._ See 6 C. L. 1461.--Some statutes permit personal service outside the state in lieu of publication and mailing of summons," and when duly authorized and made, such service is equivalent to service by publication," and and gives the court jurisdiction over property of the defendants in the state, but not the power to render a personal judgment." When service in such manner is complete,

87. Notice by publication in equity suits

01. Proceeding to foreclose tax certificate to nonresident defendants need not, under being in rem, published summons decribLaws 1883, p. 60, 4129, be returnable to

mg owner as unknown, property being de-rule day. Smith v. Elliott \[Fla.\] 47 S 387.

scribed, was good, though owner's name appeared on tax roll. Tacoma Gas & Elec. L.

rected defendant to appear within 60 days.

Co. v. Pauley, 49 Wash. 562, 95 P 1103.

after "service" of summons, exclusive of

42. D'Aurment v. Anderson Iron Co.,

day of service, and did not specify return

104 Minn. 165, 118 NW 357.

day; giving date of first publication under

43. Publication of summons to "George H.

attorney's signature did not aid it. Bauer

Lesille" confers no jurisdiction over "George v. Wildholm, 49 Wash. 310, 95 P 277.

Published summons requiring defendant to ap-

Co., 104 Minn. 165, 118 NW 357.

year within 60 days after certain date,

44. In suit to quiet title, brought against and omitting words "after date of first publication,"

marired woman in her maiden name, in

location," etc., is sufficient as substantial

which she had taken title to land in ques-compliance with Ball. Ann. Code, $ 487.

tion, service by publication using maiden

Stubbs v. Continental Timber Co., 49 Wash.

45. Jurisdiction to proceed against absent

01. Jurisdiction to proceed against absent

nonresident proceeded against by warning

order citing defendant to appear on first

upon him of notice of order of publication,

day of term commencing within less than

which must state object of suit. If notice

60 days of date of warning order is void.

46. Highland Land & Bldg. Co. v. Audas, 33

if must state grounds which give court ju-

Ky. L. R. 214, 110 SW 325. But this provi-

risdiction to grant desired relief. P. L.

sion does not apply to a court continuous

1903, p. 122; Rules 58, 61. Brant v. Brant,

session. Ky. St. 1903, $ 1004, controls in

71 N. J. Eq. 64, 71 A 380. Order for publi-

such case, providing that warning order

cation in suit for specific performance of

shall direct defendant to appear within 60

coveant to convey, contained in lease, hold

days after date of order, and that he shall

to sufficiently describe land in question and

be considered as constructively summoned

object of suit, where land was located by

in 30 days. Id.

reference to atterest and alley and order

39. Notice by publication describing cer-

stain defendants by initials only did not give

mand for deed, which had been refused, and

court jurisdiction. Herbage v. McKee

\[Web.\] 117 NW 706. Published summons in

instruments relating to land were recorded:

county tax foreclosure proceeding void as

Hollander v. Central Metal & Supply Co.

to one not named and whose property was

\[MM.\] 71 A 442.

not identified, since he would have no information that he or his property was in-

46. Citation by publication held to show

fornation that he or his property was in-

volved. Ontario Land Co. v. Wilfong, 182

though it was not stated in body of citation.

F 999. Doctrine of idem sonans cannot be

invoked in aid of published notice entitled

"Steelman," body of notice using name

"Stinman," and party sought to be bound

being "Steelman." Steinman v. Jessee, 108

Va. 567, 62 SE 275.

40. In country tax foreclosure proceeding,

immaterial that published summons named

owner as "Aecenle" instead of "Aune" where

property was correctly described. Noble v. Aune,and the time within which defendant must appear, depend upon the language of the statute.\[20\] Such service must be authorized by an order,\[61\] and other statutory requirements should be followed.\[52\]

SS 5. \_Return and proof of service. In general,\[53\]--\[58\]\[59\]\[60\]\[61\]\[62\]\[63\]\[64\]\[65\]\[66\]\[67\]\[68\]\[69\]\[70\]\[71\]\[72\]\[73\]\[74\]\[75\]\[76\]\[77\]\[78\]\[79\]\[80\]\[81\]\[82\]\[83\]\[84\]\[85\]\[86\]\[87\]\[88\]\[89\]\[90\]\[91\]\[92\]\[93\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[91\]\[92\]\[94\]\[95\]\[97\]\[98\]\[99\]\[92\]\[99\]\[93\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[90\]\[91\]\[92\]\[91\]\[93\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[90\]\[91\]\[92\]\[93\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[94\]\[95\]\[97\]\[98\]\[99\]\[99\]\[90\]\[91\]\[92\]\[93\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[94\]\[95\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[94\]\[95\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[94\]\[95\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[94\]\[95\]\[99\]\[91\]\[92\]\[93\]\[95\]\[91\]\[92\]\[93\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[94\]\[95\]\[99\]\[91\]\[92\]\[93\]\[95\]\[91\]\[92\]\[93\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[94\]\[95\]\[99\]\[91\]\[92\]\[93\]\[95\]\[91\]\[92\]\[93\]\[95\]\[91\]\[92\]\[93\]\[94\]\[95\]\[96\]\[97\]\[98\]\[99\]\[99\]\[91\]\[92\]\[93\]\[94\]\[95\]\[99\]\[91\]\[92\] An action lies for damages for false return."49

_Return of service on corporations._\[86e 10 C. L. 1273\] The return of service on a corporation must show that the service was made as required or authorized by the statute.69 A return showing service upon the proper officer is prima facie sufficient.70

_Return on constructive service or service by publication._ See 10 C. L. 1274--Proof without a proper jurat is fatally defective.71 The affidavit of publication should be by one within the class designated by statute,72 and it must appear the publication was in a proper paper.73 The date of the publication must also appear.74 The court may hear proofs of due publication of notice to nonresident, besides certificate of publication.75 Oral proof of publication has been held sufficient.76

_Waiver of irregularities._ See 8 C. L. 1468

though return was not made within 20 days as required by law. Klimmitt v. Deirlich \[S. D.\] 118 NW 986.

67. Webster v. Iowa State Traveling Mens' Ass", 165 F 367.

01. Sheriff assumes responsibility for correct and true service. Miedreich v. Lauenstein \[Ind.\] 86 NE 963.

01. Under Laws of Ark. (Mansf. Dig. # 4979 \[Ind. T. Ann. St. 1899, $ 3184\]) in force in Indian Territory prior to state-hood, return stating service upon N. H. R., Jaerenal Manager, without showing that its president, mayor or chairman of board of trustees was absent from county, held insufficient. Ravia Granite Ballast Co. v. Wilson \[Okl.\] 98 P 948. Return of Sheriff showing that he read and left copy of summons with agent, in absence of finding any other officers, is sufficient where no defect on face of record is shown, no other defect appears, and examination, since if person served as agent was actually not such it was a question of fact for court's determination on proper plea. Workringmen's Mut. Protective Ass"n v. Swanson \[Ind. App.\] 87 NE 668.

Under Prac. Act, pars. 3, 5 (Hurd's Rev. St. 1905, c. 110), Sheriff's return showing service upon M. v. of A. by delivering copy to W. A., venerable consul, and J. D., secretary of branch order No. 1591, located, etc., each being defendant's agents, "president, clerk, secretary, superintendent, general agent, cashler, principal, director, engineer, conductor, and station agent of said company not found, etc.," dated and signed, held prima facie sufficient and valid, though service was not made upon president of defendant at its office in another county of state. Dale v. Modern Woodmen of America, 140 Ill. App. 16. Under Prac. Act, $ 6 (Hurd's St. 1905), return of Sheriff "I have duty served within summons upon within named S. Z. Co. by reading same to C. W. G., superintendent of said S. Z. Co., and at same time delivering to him true copy thereof, president or secretary of said company not found in my county," dated and signed, held prima facie sufficient. Sandoval Zink Co. v. Hall, 133 Ill. App. 196. Under Rev. St. 1895, art. 1222, requiring service to be upon president, secretary, or treasurer or local agent representing company, etc., return reciting service upon "mansager" is insulficient, since it cannot be presumed that "manager" was president, secretary, treasurer or local agent. Latham Co. v. Radford Grocery Co. f\[Tex. Civ. App.\] 117 SW 99. Rev. St. 1895, art. 1222, applies to domestic corporations.

69. Forteign corporation treated as domestic, and return need not show place of residence of person served. See Code 1899, c. 50, $ 34, as amended in Laws 1903, c. 9, p. 75, Code 1906, $ 1985. Stout v. Baltimore & O. R. Co. \[TW. Va.\] 63 SE 317.

01. Not necessary to judicially ascertain relation of person served to corporation, or that truth of return be admitted by appearance of defendant. Sandoval Zink Co. v. Hale, 133 Ill. App. 196.

01. Service held insinfClient where there was no personal service nor notice by publication but mere affidavit of service of notice of commencement of suit together with copy of complaint upon defendant in another state, affidavit being sworn to by notary public and sealed with notarial seal, there being no evidence in record that notary was authorized to administer oaths where affidavit was made. Wellington v. Wellington, 137 Ill. App. 394. No jurisdiction where alleged proof of publication was defective, jurat not being signed by officer. Deputy v. Dollarhide \[Ind. App.\] 86 NE 344.

01. Under Sand. & H. Dig. $ 4685, affdavit of publication of warming order may be made by publisher, though statute names only "editor, proprietor, manager or chief accountant." Cannon v. Lunsford \[Ark.\] 115 SW 940. Under Rev. St. 100, $ 1, where notice was inserted in "National Corporation Reporter," publisher of which is "United States Corporation Bureau," certification signed by secretary of latter held sufficient though not signed by corporation by secretary. Pine Tree Lumber Co. v. Central Grain Exch., 140 Ill. App. 462.

- 12Cur. Law. PROOESS SS 6. 1427

\_Amendment of return.\_See 10 C. L. 1278.--Any amendment of the return which makes it speak the truth can be made,17 and the return, as amended, relates back to the date of service and is to be considered the initial return.78

\_Impeachment and contradiction of return.\_See 10 C. L. 1278.--While an officer's return cannot ordinarily be contradicted,78 especially where third persons have, in good faith, acquired rights in reliance upon the regularity of the proceedings,89 it does not impart absolute verity but is only prima facie evidence of facts recited,81 and as against parties acquiring rights with notice of the facts, it is not conclusive.82 The presumption in favor of its correctness can be overcome only by evidence which is clear, satisfactory and convincing.83 A false return may, in a proper case, be set aside in equity,84 and other modes of impeaching a return are now provided by statute, such as by filing a traverse.85 Where the return of the officer after amendment shows legal service, it can only be attacked by traverse filed thereto, to which the officer making the return is a necessary party.86

\*\*SS 6. \_Defects, objections and amendments. In general.87--See 10 C. L. 1274--Immediate by officer who made service and return.\_Southern Exp. Co. v. National Bank of Tifton, 4 Ga. App. 389, 61 SE 857. Delect in return in calling Baltimore and Ohio Railroad Company "B. & O. K. R. Co," held curable by simple motion. Stout v. Baltimore & O. R. Co. \[V. Va.\] 68 SSE 817. 78. Southern Exp. Co. v. National Bank, 4 Ga. App. 389, 61 SE 857. 79. Ruble is founded on public policy for benefit of innocent persons. Hilt v. Helm-berf, 235 Ill. 235, 85 NTE 804. Sheriff's return imports verity, and court may rely on it. Miderreich v. Lauenstein \[Ind.\] 86 NE 863. 86. Where rights of third persons have been acquired in good faith, return is conclusive. Hilt v. Helmberger, 235 Ill. 235, 85 NE 804. 81. Hilt v. Heimberger, 235 Ill. 235, 85 NE 804. In action on indemnity policy to recover amount of judgment for personal injuries, false return of service in action in which judgment was recovered was not conclusive as between assured and insurer, so that latter could claim that summons was duly served and should have been forwarded to it according to terms of policy. Frank Parmelee Co. v. Atena Life Ins. Co. \[C. C. A.\] 168 F 741. 82. Hilt v. Heimberger, 235 Ill. 235, 85 NE 804. 83. Abraham v. Miller \[Or.\] 95 P 814; Unangst v. Southwick, 80 Neb. 112, 116 NW 864. There is no fixed rule as to quantum of proof required to establish falsality of officer's return. Evidence reasonably and clearly satisfying trior or triors of fact is sufficient, Raulv v. Chicago Fire Erick Co. \[VWs.\] 119 NW 846. Finding not against clear preponderance of evidence not disturbed on appeal. Id. Evidence insufficient to show return of service false. Unangst v. Southwick, 80 material errors or irregularities not resulting in prejudice do not affect the validity of the proceedings.\[85\]

_Objections_ See 10 C. L. 1275, 1276 must be timely.\[89\] A joint plea in abatement by two defendants will be overruled unless it shows service on both to be invalid,\[90\] since a defect in service on one defendant may not affect the validity of service on a co-defendant.\[91\] A motion to dismiss on the ground that service was defective should point out the defect.\[92\] Equitable relief will not ordinarily be granted where there is an adequate remedy at law.\[93\] In New York service of a complaint, without summons, will be set aside on motion.\[94\] All facts well pleaded in the complaint stand admitted by a motion to set aside service by publication on the ground that the complaint does not state a cause of action.\[95\] The procedure where the wrong person is served is indicated in the note.\[96\] A motion to vacate service of process is properly presented to the federal court after removal from the state court, and the only question presented by it is as to the jurisdiction of the federal court over the defendant.\[97\] On such a motion only the record may be looked to.\[98\] Objections to sufficiency of service by publication can be taken only by one so served,\[99\] and must be taken in the lower court.\[1\]

_Amendments_ See 10 C. L. 1275.-A variance or mistake which is not jurisdictional in character may be cured by amendment.\[2\] Amendment for the purpose of bringing

ss. Defect in title on alias summons im- material where original summons was attached and was correctly entitled, as was complaint which was served and filed. Con-roy v. Bigz, 109 NYS 914. Error in stating year as 1907 instead 1908 in summons in justice court held not jurisdictional defect, and judgment by default valid where defendant was not misled by error and would not have appeared in any case. Epstein v. Prosser, 112 NYS 174. Where summons in justice court notified defendant to appear and answer complaint, and stated nature of claim which was for damages for trespass by animals of defendant, that summons stated that plaintiff would on default take judgment for specified sum, instead of stating that he would pray for relief demanded, was immaterial. Bradley v. Mueller \[S. D.\] 118 NW 1085. Proper to refuse to allow return to be amended so as to show due service 5 years after it was claimed to have been made where defendant swore he had not been served and officer testified he had no recollection of facts as to service or return. Stubbs v. McGillis \[Colo.\] 96 P 1005.

90. Plea held not to show defective service on one. Muzroll v. Hetti \[Vl.\] 72 A 323.

01. Service made on one defendant by one deputy who made no return, and service on codefendant by another who made due return. Latter valid. Muzroll v. Hetti \[Vl.\] 72 A 323.

01. Otherwise overruled. Thibault v. Connecticut Valley Lumber Co., 80 Vt. 338, 67 A 819.

01. In Missouri suit to set aside a judgment on ground that defendant was not served and that the sheriff's return of service is false does not lie, there being an adequate remedy at law.\[93\] In New York service of a complaint, without summons, will be set aside on motion.\[94\] All facts well pleaded in the complaint stand admitted by a motion to set aside service by publication on the ground that the complaint does not state a cause of action.\[95\] The procedure where the wrong person is served is indicated in the note.\[96\] A motion to vacate service of process is properly presented to the federal court after removal from the state court, and the only question presented by it is as to the jurisdiction of the federal court over the defendant.\[97\] On such a motion only the record may be looked to.\[98\] Objections to sufficiency of service by publication can be taken only by one so served,\[99\] and must be taken in the lower court.\[1\]

_Amendments_ See 10 C. L. 1275.-A variance or mistake which is not jurisdictional in character may be cured by amendment.\[2\] Amendment for the purpose of bringing

ss. Defect in title on alias summons im- material where original summons was attached and was correctly entitled, as was complaint which was served and filed. Con-roy v. Bigz, 109 NYS 914. Error in stating year as 1907 instead 1908 in summons in justice court held not jurisdictional defect, and judgment by default valid where defendant was not misled by error and would not have appeared in any case. Epstein v. Prosser, 112 NYS 174. Where summons in justice court notified defendant to appear and answer complaint, and stated nature of claim which was for damages for trespass by animals of defendant, that summons stated that plaintiff would on default take judgment for specified sum, instead of stating that he would pray for relief demanded, was immaterial. Bradley v. Mueller \[S. D.\] 118 NW 1085.

ss. Proper to refuse to allow return to be amended so as to show due service 5 years after it was claimed to have been made where defendant swore he had not been served and officer testified he had no recollection of facts as to service or return. Stubbs v. McGillis \[Colo.\] 96 P 1005.

90. Plea held not to show defective service on one. Muzroll v. Hetti \[Vl.\] 72 A 323.

01. Service made on one defendant by one deputy who made no return, and service on codefendant by another who made due return. Latter valid. Muzroll v. Hetti \[Vl.\] 72 A 323.

01. Otherwise overruled. Thibault v. Connecticut Valley Lumber Co., 80 Vt. 338, 67 in new parties is elsewhere discussed.\* Amendment of the return has been discussed in the preceding section.\*

\_Waiver of irregularities or lack of process.\_See 10 C. L. 1276--Service is ordinarily waived and defects therein cured by a general appearance,\* or by going to trial on the merits, except, of course, where it is otherwise provided by statute.\* A warrant of attorney, incorporated in a note to "appear and confess" judgment on the note, is a waiver of notice by service of process.\* One not acting in a representative capacity or in some way authorized so to do may not waive service of notice for another either by appearance in court or by acknowledging timely service after the date fixed for appearance.\* Objection to service of process is not waived by appearance to secure removal from state to federal court.\*

SS 7. \_Privileges and exemptions from service.\_See 10 C. L. 1276--Nonresident witnesses and nonresident parties as witnesses are privileged from arrest or summons upon civil process while in attendance upon, going to, or returning from the trial of a cause \[11\] if within the state solely for that purpose,\[12\] and an action begun by service upon a nonresident while in the state for such purpose is subject to abatement for want of proper service,\[18\] but this exemption does not usually extend to attorneys.\[14\] Service of process may be had in a civil action upon an accused person who is voluntarily seeking a hearing before a grand jury in a county other than that of his residence.\[16\] A federal court has power to protect a litigant from arrest by authorities of a state while he is there for the purpose of attending the trial, his presence being necessary.\[14\] A juror is subject to service though in attendance upon court as a juror at the time.\[17\] The presumption is that service on a nonresident properly allowed summons to be amended $6 NE 1118, aff. 128 App. Div. 911, 112 NYS and reserved. U. S. Rev. St. $ 948. Cara-way v. Kentucky Refining Co. \[C. C. A.\]. Privilege of freedom from service while attending litigation in another jurisdiction, designated Baltimore and Ohio Railroad Company the "B. & O. R. C." held curb-able by simple motion. Stout v. Baltimore & O. R. C. \[V. Va.\] 63 SE 817.

SS, See Parties, to C. L. 1081.

4. See ante, $, Return of Service.

1. See Appearance, 11 C. L. 255.

1. Failure of warrant issued by justice to state nature of demand not waived by going to trial, where there was no consent to waiver, as required by Shannon's Code, $ 4119. Memphis St. R. C. Vo. Flood \[Tenn.\] 113 SW 884. Nor by oral statement before justice court, where appeal was taken to circuit court, where trial is de novo, Id. Nor was omission cured by $ 4583-4600, these provisions relating only to formal defects. Id. Nor was defect waived by going to trial in circuit court without moving to quash warrant. Id.

1. Baggett v. Alabama Chemical Co. \[Ala.\] 47 S 102.

1. Mother could not waive service on children. Cummings v. Landes \[Iowa\] 117 NW 22.

1. Whether appearance is specially llm-lted or not. Webster v. Iowa State Traveling Men's Ass\*'h, 165 F 867.

1. Search Note: See notes in 4 C. L. 1084; SS 12. R. A. 682; SS 14. T21; 46 Id. 706; 14 Id.

683; 17 G. A. S. R. 534; 2 Ann. Cas. 615; 6 Id.

337; 9 Id. 835; 11 Id. 146.

See, also, Process, Cent. Dlg. $ 140-154; Dec. Dig. $ 112-126.

11. Martin v. Whitney, 74 N. H. 505, 69 A 888. Party or witness exempt from service if in state f?or sole purpose of attending court. Fluucane v. Warner, 194 N. X. 160, found within the state is valid, and the burden is upon the defendant to show that he was exempt from service \[18\].

Production of Documents, see latest topical index.

PROFANITY AND BLASPHEMY."

The scope of this topic is noted below \[20\]:

An excessive claim of damages for a tort is not provable provocation \[21\].

Profit; Profis a Prendre, see latest topical index.

PROHIBITION, WRIT OP.

8 1. Nature, Function and Occasion of Reme- | 8 Z. Practice and Procedure, 1432

The scope of this topic is noted below \[22\].

SS 1. Nature, function and occasion of remedy \[23\]. See 10 C. L. 2177--The writ of prohibition is a preventive rather than a corrective remedy \[24\], its office being to prevent usurpation or excess of jurisdiction by judicial tribunals \[25\]. By statute it has been defined as an order which is issued by the circuit court to an inferior court of limited jurisdiction prohibiting it from proceeding in a matter out of its jurisdiction \[26\], and as the counterpart of the writ of mandate \[27\]. It has also been defined as one of the remedial prerogative writs of the common law to prevent an inferior court from assuming jurisdiction of a matter beyond its legal cognizance \[28\]. The writ is not one of right \[29\] but rests in discretion \[30\], and being an extraordinary remedy it is to be allowed only on plain grounds \[31\]. It should never issue except on urgent necessity \[32\], or where the ordinary and usual remedies, such as appeal, writ of error, certiorari or other modes of review or injunction, are available \[33\], since the writ can 13 Cur. Law. PROhibition, WRIT OF SS 1. 1431

not be made to serve the purpose of a writ of error or certiorari; \[84\] but it will issue where there is no other remedy \[35\] and notwithstanding a remedy by appeal where the latter remedy is inadequate. \[86\] There is no general rule by which the adequacy or inadequacy of a remedy can be ascertained, but the question is one to be determined upon the facts of each particular issue, \[87\] but generally prohibition will not lie against a court acting without jurisdiction since the remedy by appeal is both speedy and adequate, \[38\] and the mere fact that an appeal will lie only to a court which has once decided the matter adversely to the petitioner presents no reason for taking a case out of the general rule, \[39\] nor will the writ be issued on account of the inconvenience, expense or delay of the other remedies, \[40\] nor on account of errors or irregularities in the proceedings of a court having jurisdiction, or on account of insufficiency of averment or pleading, or upon matters of defense which may be properly raised in the lower court, \[41\] but it will be granted where the remedy available is insufficient to prevent immediate injury or hardship to the party complaining, \[42\] particularly in criminal cases. \[43\]

The writ usually issues to prevent usurpation or excess of jurisdiction \[44\] where

Civ. Proc. SS 1102, 1103. In re Hatch \[Cal. App.\] 99 P 398. Appeal being adequate, writ will be denied (Josephson v. Powers, 121 La. 190, 46 S 206; State v. Second Juli-)

\[McCellan v. Gasquet \[La.14 47 S 540\]. Appeal Diest. Ct., 37 Mont. 294, 95 P 843; In re Dahlgren, 30 App. D. C. 588), whether court

\[Lahigren, 30 App. D. C. 588), whether court

\[Lahigren, 30\] is acting within or without jurisdiction

\[State v. Pierce County Super. Ct., 50 Wash.\]

\[Lahigren, 30\] is unconstitutional as denying right to speedy trial.

\[Lahigren, 30\] is a court 1432 PRORITION, WRIT OF SS 2. 12 Cur. Law.

jurisdiction is or is about to be exceeded or usurped,\[45\] and is granted whenever judicial functions are assumed not rightfully belonging to the person or court assuming them.\[46\] The exercise of a ministerial or executive function cannot ordinarily be controlled or regulated by prohibition,\[47\] yet, in the absence of any other adequate remedy, it some times issues to prevent unauthorized individuals from usurping judicial power \[48\] and to confine public officers performing statutory duties in the exercise of powers lawfully conferred to the use of the means expressly indicated.\[49\] Since the writ only lies to the court which exceeds the bounds of its jurisdiction,\[50\] and, probably in some exceptional cases, to a judge at chambers,\[51\] it will not run against a receiver, commissioners and master appointed by a chancery court.\[52\]

SS 2. \_Practice and procedure.\[53\]\_See_10 C. L. 127.--An application for a writ of

of jurisdiction of a tribunal, corporation,

board or person in all cases where there is

no plain, speedy and adequate remedy in the

ordinary court of law. Rev. St. 1887, 1 4995.

Cronan v. Kootenal County Dist. Ct. \[Ldaho\]

96 P 768.

Issue where lower court appears to be

without jurisdiction upon the record and ad-

mitted facts (Evans v. Willis \[Okl\] 97 P 1047), where in an action the court has no

jurisdiction (Stephanian v. Sixth Judicial

Dist. Ct. \[R. I.\] 69 A 924) of the subject-

matter Mygers v. Tucker County Circuit Ct.

\[TW. Va.\] 68 SE 201), or where an inferior

eourt acts without or exceeds its jurisdiction

(Cronan v. Kootenal County Dist. Ct. \[Ldaho\] 96 P 768; State v. Fort, 210 Mo. 512,

\[Ldaho\] 96 P 768; State v. Huston \[Okl\] 97 P 982),

and to prevent a justice of the peace or a

police justice from exceeding his jurisdiction

by proceeding with prosecution for digging

up street in violation of ordinance after

simple ownership to street is set up (Moore v. Or \[Nev\] 98 P 398; Martin v. Richmond,

105 Va. 765, 62 SE 800).

45. In re Hatch \[Cal. App.\] 99 P 398. Before writ will issue it must appear that the

court has exceeded or is about to exceed

the jurisdiction with which it is vested.

State v. Twenty First Judicial Dist. Democratic Committee \[La.\] 47 S 405. Where

under Laws 1894, p. 1181, c. 556, commissioner

of education had jurisdiction to hear and

determine appeal from decision of board of

education, writ denied. In re Harris, 58

Misc. 297, 109 NYS 988. Writ to restrain

Judge from vacating or setting aside a eer-

tain judgment dated, defendant having

been mailed by clerk's notice that a new

trial had been ordered, having made no

application for a rehearing nor been given

notice or time to apply for a recall of

emmitmitur to enable him to submit an application for rehearing. Mystrum v. Temple

\[IN. D.\] 117 NW 47S. In action for commissions, long account being involved, where

district court has ordered a reference at

plaintiff\* request and refused to vacate its

order therefor, and defendant, in obedience

to subpoena, of referee, but under protest

has produced books, and plaintiff is proceed-

ing to examine them, books being pertinent

and material, held no case for supervisory

control, plaintiff having with defendant

armed accounts therein and no claim being

made that respondent was reunfired to

close matters not pertinent or material to

Inquiry. State v. Second Judicial Dist. Ct., 37

\[ prohibition will not be considered unless it is shown that relief has been unsuccessfully sought in the lower court,\[54\] but when the writ has been applied for, considered and denied by the court, its decision is final,\[55\] and under statute, after the return from the judge ordered to make a return has answered, the superior court issuing the order must pronounce finally and summarily on the right of jurisdiction.\[56\] The writ will not issue unless the applicant shows himself to be an interested party \[57\] and files a proper petition or complaint,\[58\] for the court will not assume that a court will exceed its jurisdiction.\[59\] That a receiver, commissioner and master appointed by the chancery court proceed in discharge of duties imposed upon them in void proceedings,\[60\] although on an application for a writ of prohibition to prohibit the trial judge from settling a bill of exceptions in a criminal case on the ground that no notice of application for additional time was given, it will be assumed that the court will take such action on the application for relief as will make it competent for it to settle the bill without error, and if necessary grant relief under statute before settling the bill;\[61\] and in an application for a writ to prohibit the state corporation commission from taking jurisdiction in a cause pending before it, where the application states facts sufficient to confer jurisdiction, it will be presumed that the commission will not proceed beyond its jurisdiction even if the complaint prays for relief over which the commission has no control,\[62\] and the assurance of the attorney general, who is the commission's legal adviser, that it will not, is a sufficient guarantee that excessive jurisdiction will not be exercised.\[63\] The supervisory power of a court must be invoked within a reasonable time,\[64\] and where court rules require it, service of a copy of the affidavit and notice of the time of hearing of the application for a writ must be made on the parties in interest,\[65\] but an interested party need not necessarily be named as a party in the original action.\[66\] The writ does not run

E. Enc. L (2ed.) 215; 16 A. & E. Enc. P. & P. 1134. & P. 1134. & P. 1135. & P. 1136. & P. 1137. & P. 1138. & P.

against a party in the trial court nor against the judge of the court, but only against the court, \[87\] but the rule to show cause against the issuance of a writ of prohibition must run against both the tribunal to be prohibited from exercising jurisdiction and the person having adverse interests to be affected by the writ, \[88\] and if the writ is awarded, it likewise should run against both as parties to the same. \[69\] The question of the prematurity of the application for a writ of prohibition is considered at the time the rule nisi issues. \[70\] Where error appears and is duly brought up, the question of time in making the application is not all controlling, \[71\] and the writ will not be lightly dismissed on a plea of prematurity. \[72\] The only question involved in a proceeding to restrain a lower court from proceeding with a criminal trial is whether or not the court has jurisdiction to hear and determine the matter before it and of the person of the petitioner, \[73\] and on an application for a writ of prohibition, a moot question, \[74\] the constitutionality of a statute or a question of practice thereunder \[75\] cannot be considered. The writ will not issue for the accommodation of an intervenor where the effect thereof will be to retard the principal action. \[76\] An appellate court has no original jurisdiction to issue a writ of prohibition, but may issue the same only in aid of its jurisdiction, \[77\] or where the same is necessary to effectuate its superintending control over "inferior courts," \[78\] and in order that such court may issue the writ in aid of its jurisdiction, there must be before the court something on or with regard to which its jurisdiction may be exercised. \[79\] The court of appeals of the District of Columbia has no such inherent superintending or supervisory power over the inferior courts of the District as will warrant the issue of a writ of prohibition to control an inferior court, \[80\] but it has the power to issue such writ in aid of its appellate jurisdiction, \[81\] and it is not necessary that an attempt shall have been made to invoke that jurisdiction before it can be said to attach in order to authorize the issue of the writ. \[88\] In West Virginia, as to writs of prohibition, the original jurisdiction of the circuit courts and of the supreme court is concurrent, \[88\] and it is usual and commendable to apply first to the circuit court for the writ, and if it is there preliminarily refused upon the petition then to apply to the supreme court for the writ, \[88\] but a final judgment of a circuit court in such case, upon the merits, is a bar to a new proceeding in prohibition for the same cause and \[88\]. In re Petition of Starr, 189 Ill. App. 49, pending an appeal from judgment dismisss- \[88, 89\]. Kump v. McDonald \[W. Va.\] 61 12 Cur. Law. PROPERTY SS 1.1435

between the same parties in the supreme court. \[85\] In Kentucky the court of appeals has jurisdiction of an appeal prosecuted by writ of prohibition to test the validity of an ordinance under which a fine is imposed without reference to the amount of the fine. \[85\]

Promoters, see latest topical index,

PROFERTY.

8 1. Definition and Nature, 1435. Reality or Personality, 1435. Formulae, Informa- tion, Processes, Literary and Like Mutual Conditions, 1448.

18 2. Creation, Possession and Ownership, Capital and Income, 1440.

18 3. Estates In Personality, 1437. Life Es- 8 4. Transfer, Loss, and Abandonment, 1441.

_The scope of this title_ is noted below. \[85\]

SS 1. _Definition and nature. \[85\]_ See 10 C. L. 1280--Property is the right to or interest in a thing \[86\] whether of a real, personal, or incorproeal nature. \[90\] The thing may be either movable or immovable. \[91\]

_Reality or personality. \[86\]_ C. L. 1280--Buildings, \[92\] standing timber, \[88\] growing crops, \[94\] water, \[95\] easements, \[88\] and leasehold interests, \[97\] are usually held reality; but matured fruit though still on the trees is personality, \[98\] and sand placed on land

86. Cr. Code Prac. SS 347, and Ky. St. 1809, $ 3835. Chesapeake & Ohio R. Co. V. Com. San Jaouin Land Co. v. Fatijo \[Cal. App.\] \[Kv. 116 SW 323. Validity of ordinance be- ing assailed by writ of prohibition in man- mer provided by Civ. Code Prac. SS 479, appeal dis- missed. Id.

01. Includes general principles pertinent to nature of property and estates in personality. Exeludes real property (see Real Property, 10 C. L. 1448), matters of contract resulting personality (see Balimetrics, 11 C. L. 1543), taxation (see Taxes, 10 C. L. 1543), taxation (see Taxes, 10 C. L. 1776, and the doctrine of fixtures (see Fixtures, 11 C. L. 1477).

01. Search Note: See notes in 6 C. L. 1107, 1108; 1. Ann. Cos. 687.

See, also, Property, Cent. Dig. SS 1-8; Dec. Dig. SS 1-6; 22 A. & E. Enc. L. (2ed.) 746, 747; 28 I. 472.

89. Commonwealth v. Walsh's Trustee \[Ky.\] 117 SW 398.

01. Property" is women generalismism and extends to every species of valuable right and interest, including real and personal property, easements, franchises, and other incorporated heridemments. Equitable & Tire & Marine Ins. Co. V. St. Louis & S. F. R. Co., \[Mo. App.\] 114 SW 546. Property In land is the right of user, disposition and domination over it to exclusion of others. Drainage Com'rs of Dist. No. 8 of Oakwood v. Knox, 287 111, 48, 85 NE 685. An easement is property, Stein & Chesapeake & O. R. Co. \[Ky.\] 116 SW 783. Depeils in savings banks held property for purposes of taxation. Vysat v. State Board of Equalism, 74 N. H. 562, 70 A 387, 91. Movable property is such as may be lifted, carried, drawn, turned or conveyed, or in any way made to change place or position. Monarch Laundry v. Westbrook \[Va.\] 68 SE 1070.

01. House and barn destroyed by fire held reality, and action for destruction held an merely for storage does not thereby become reality."88Land scrip 1 and securities for the payment of money 2 are personally.

18 Cur. Law. PROPERTY SS 3. 1437

SS 2. \_Creation, possession and ownership._18-Sec 10 C. L._ 1281.--Ownership of personality may be either general or special.16 One who is in actual possession of personality and has actual control over it is prima facie owner,17 and ownership once proven is presumed to continue.18 Where property is by consent of its owner invested with a public interest or privilege, the owner can no longer deal with it as his private property only but holds it subject to the rights of the public.19

SS 3. \_Estates in personality._20-Sec 10 C. L._ 1281.--At least in some jurisdictions, any estate may be created in personally which can be created in reality.21 Testamentary gifts based on conditions which are contrary to public policy will not be enforced.22 The courts are not agreed as to the application of the rule in Shelley's case to personality.22

author's common-law rights. Frohman v. Ferrts, 238 111, 430, 87 NE 327. "I5. Searches Note: See notes in 11 C. L.\_ 116; has recently refused to extend the operation of the rule in Shelley's Case as many courts profes to have done, to gifts of perpet06, 109, 111, 144-154, 196, 214, 239, 216, 449, 474%, 759, 788, 822-882, 1033, 1066, 1078, 1095, 1108-1120, 1136, 1178, 1159, 1120, 1276, 1277, 2171, 2171, 2195, 2457; Property, Cent. Dig 18 3 9; The latter proposition, with a few exceptions outside of Delaware, is doubtful; the former seems not to have been closely examined by the courts.

16 General ownership held sufficient to support indictment against one who stole "Foods while they were in custody of law."

People v. Frankenberg, 236 11. 408, 86 NE creation of "estates under a certain form of words, 7 Columbia L. R. 550, was doubtless originally a protective rule of feudal tenure to eliminate one of the many means de-ownership. Black v. Roberson (Ark.) 112 V1 to defend the lord of the incidents SWV 402. Against everybody except true owner. Amundson v. Standard Print. & Mag. Co, 1lowal 118 NW 178. Where a son for its application to personality. More-printing press was sold under agreement title should not pass until a mortgage to the rule might operate strictly by way of secure price had been executed, and thereafter a person other than vende had possession and executed mortgage to seller, his acts and possession were prima facie proof of ownership against everybody except "self" though it did not appear how he acquired possession. Id. More posses: son of non-negotiable instrument does not raise a presumption of ownership in possession. In re Perry, 129 App. Div. 587, 114 NYS 246. "Is In re Perry, 129 App. Div. 587, 114 NYS 246. "Is In re Perry, 129 App. Div. 587, 114 NYS 246. "I0. Property devoted to telephone use. State v. Cadavallader \[Ind.\] 87 NE 644. "26. To save unnecessary duplication, cases in which entire estates or parts of estates are disposed of under principles applicable alike to real and personal property, and without separate consideration of the personality, are treated once only in the article on real property. See Real Property, 10 C. L. 1448. "Searches Note: See notes in 6 C. L. 461. See, also, Life Estates, Cent. Dig.: Dec. Dig.: Rec. Dig.: Remainders, Cent. Dig.: Dec. Dig.: Recursions, Cent. Dig.: Dec. Dig.: Trusts, Cent. Dig.: Dec. Dig.: 22 A. & E. Enc. L. (ed.) 756. "21. Civ. Code 1895, $ 3080. Crossley v. Leslie, 130 Ga. 782 61 SNB 851. "22. Corpus of trust to daughter on husband's death or her permanent and legal separation from him held not invalid. Poe v. Hill, 201 Mass. 15, 86 NNE 949. "3. NOTE. Rule in Shelley's Case applied to personality: The Supreme Court of Delaware has recently refused to extend the operation of the rule in Shelley's Case as many courts profes to have done, to gifts of perpet06, 109, 111, 144-154, 196, 214, 239, 216, 449, 474%, 759, 788, 822-882, 1033, 1066, 1078, 1095, 1108-1120, 1136, 1178, 1159, 1220, 1276, 1277, 2171, 2191, 2457; Property, Cent. Dig 18 3 9; The latter proposition, with a few exceptions outside of Delaware, is doubtful; the former seems not to have been closely examined by the courts.

The rule in 12 Cur. Law. PROPERTY SS 3.1439

refusal of another to accept it will take effect if for any reason the other does not accept.26 Failure of a precedent estate does not necessarily render void the remain-der.27 Remainders are transferrable and subject to seizure for debts.28

\_Interests created in individual cases.\_See 10 C. L. 1280--What kinds of estates or interests are created by the use of particular language is principally a question of intention.29 An unrestricted power of disposal in one's own right is equivalent to

vests immediately if payment is postponed | daughter only life interest in trust proper-merely for convenience of fund or estate or to let in some other interest held not ap-trust. Jones v. Heess \[De1.\] 69 A 785. Will placable where testator gave entire estate to wife for life and "after death of wife I" | intely and two-thirds for life despite use of desire that whole of my property both real | precatory words as to her disposal of two- and personal be sold by executor and after | thirds, such words being held sulfentent to | limit divisces estate though insufficient to my legal heirs." | Barr v. Denney \[Ohio.\] 87 create a trust. Gilchrist v. Corliss \[Mich.\] | NE 867. Direction to pay or distribute to | 15 Del. Leg. N. 911, 118 NWP 938. To wife "legal heirs" held to confer a contingent interest not vesting until period of dis-, and so much of principal as she might deem | trhputation. Id. Bequestest to nice held to take effect only in event daughter should | Hashvock v. Knoblauch. 69 A Misc. 98, 112 dE during widow's lifetime and before | resching 21. Frye's Adm'r v. Frye \[Ky.\] | of all estate real and personal with power | 112 NWP 919. Where nephew was given to use for own use and support of children | state of testatrix I he survived her, and | so much of principal as she might elect. also her interest in her mother's estate on | * \[30\] A gift clearly intended will not be cut down by subsequent indefinite or doubtful provisions.\[31\]

- \[32\]\_Mutual rights of present and future tenants.\_See 10 C. L. 1288--A life tenant is entitled to the full use and enjoyment of the property,\[32\] but sometimes he is required to give security for the forthcoming of the property to the remaindermen.\[33\]
- \[34\]\_Capital and income.\_See 10 C. L. 1284--The validity of accumulations of income is elsewhere treated.\[35\] Stock issued under declaration of a stock dividend principal and not income within a testamentary gift of income of a trust fund invested in stocks to life beneficiaries.\[36\] A person entitled to the income of funds invested in stocks is entitled to only cash dividends excluding dividends declared in liquidation or in reduction of capital.\[37\] Where bonds worth more than par are left by a testator who directs the income therefrom to be paid to a person for his life with remainder over, the life tenant is entitled to the entire interest without deduction to make good the premium,\[38\] but, if the trustee himself makes the investment and pays more than par, provision should be made for keeping the principal intact.\[39\] The time from which income is computable \[40\] as well as the right to possession of the principal \[50\] will depend on the language employed and the circumstances of the case.
- \[35\]_clary so as to exclude participation by great-grandchildren whose mother and grandfather both died before beneficiary. Blair v. Keese, 59 Misc. 102, 112 NYES 162._ \[36\]_T Trust to pay income to daughter for life then to issue during minority, and above- but, if daughter died form of cash or property made to share- without issue who should attain 21, then to in such manner that assets so discluously trust in their favor was invalid. In re Wilcox, 194 N. Y. 288, 87 NE 497._ \[37\]_Gover on failure of daughter to leave issue who should attain majority held contingent. Id. Bonds constituting unlimited obligations and charge on all corporate assets held not cash dividends such as would disposition is equivalent to gift absolute. Widow held to take property absolutely un-der husband's will, her power of disposition covering all methods known to law. In re Velen's Will \[Iowa\] 116 NVP 791._ \[38\]_Gover of sawmill to wife "for her use" also all other personality and over "if there should be any thing left," held to give absolute estate to wife. McCloskey v. Thorpe \[N. Y.\] should be made. Wallantine v. Young \[N. Y.\] Err. & App.\] 69 A 973._ \[39\]_Gover on use and enjoyment during widowhood in such quantities as might be requisite for her hand both erroneously retained and error-comfortable maintenance, held to take absolutely, gift over of what might be uncon-sumed being held void for repugrancy. Rolley v. Rolley's EXX's \[Va.\] 63 SE 988._ \[30\]_Gover on use._ \[31\]_Gover on use._ \[32\]_Gover on use._ \[33\]_Gover on use._ \[34\]_Gover on use._ \[35\]_Gover on use._ \[36\]_Gover on use._ \[37\]_Gover on use._ \[38\]_Gover on use._ \[39\]_Gover on use._ \[30\]_Gover on use._ \[31\]_Gover on use._ \[32\]_Gover on use._ \[33\]_Gover on use._ \[34\]_Gover on use._ \[35\]_Gover on use._ \[36\]_Gover on use._ \[37\]_Gover on use._ \[38\]_Gover on use._ \[39\]_Gover on use._ \[30\]_Gover on use._ \[31\]_Gover on use._ \[32\]_Gover on use._ \[33\]_Gover on use._ \[34\]_Gover on use._ \[35\]_Gover on use._ \[36\]_Gover on use._ \[37\]_Gover on use._ \[38\]_Gover on use._ \[39\]_Gover on use._ \[30\]_Gover on use._ \[31\]_Gover on use._ \[32\]_Gover on use._ \[33\]_Gover on use._ \[34\]_Gover on use._ \[35\]_Gover on use._ \[36\]_Gover on use._ \[37\]\_Gover on use.

12 Cur. Law. PROPERTY SS 4. 1441 SS 4. _Transfer, loss and abandonment._${}^{41}$See 10 C. L. 1285--Transfer is usually by sale,${}^{47}$ gift,${}^{43}$ inheritance ${}^{44}$ or will.${}^{45}$ That one commits trespass by placing personalty on another's land does not deprive him of the property or the right to recover its value.${}^{46}$ The mere fact that property loses its marks of identification does not give it the character of lost property.${}^{47}$

Abandonment is the relinquishment or surrender of rights or property by one person to another ${}^{48}$ and includes both intention to abandon ${}^{49}$ and the external act by which the intention is carried out.${}^{50}$ If one abandons property he who thereafter takes possession becomes owner,${}^{51}$ but the proof as to abandonment must be cogent and decisive.${}^{52}$

Treasure-trove at common law usually denotes any gold or silver in coin, plate or bullion found hidden in the earth or some private place but not lying on the ground, the owner of the treasure being unknown.${}^{58}$ In the absence of statute,${}^{54}$ title to treasure-trove belongs to the finder as against all the world except the true owner,${}^{55}$ the place of finding ordinarily not being material.${}^{56}$ Where several persons are joint finlers of treasure readily divisible, each is entitled to an equal share ${}^{57}$ and may sue for the recovery thereof.${}^{58}$

Presceuting Attorneys; Proscetion; Proxles; Publication; Public Buildings and Pinces, see latest topical index.

Proxmate Cause (defined), see 12 C. L. 986,n. 38.

they be not judicially declared income, which condition failing, transfer was equitably complete so as to entitle beneficiaries to income according since distribution. Id. 40. Life beneficiaries who were to have "Income," "net income and profits," "net amount of 'increase," income profits and Income only," "net," "net," "net," "net," "net and "income"," "net hold no abandonment in absence of terests," etc., held entitled to income only, as distinguished from principal. Bishop v. 50. Phillips v. Hamilton \[Vyo.\] 95 P 846. Bishop \[Conn.\] 71 A 583. Field in view of age of widow and character of property, destarted intended she should have possession and use of specific personality and not merely interest from proceeds of sale. In re Knowles' Estate, 148 N. C. 461, 62 SE 549. 41. Search Note: See notes in 4 C. L. 1089; 103 A. S. R. 979; 1 Ann. Cass. 4; 4 Id. 213; 8 I.d. 558; 11 Id. 706. 58. 51. Graham V. Purcell, 126 App. Dlv. 407. See, also, Abandonment. Cent. Dig.; Dec. 110 NYS 813. One may abandon property by evidencing his intention by an act legally Dis.; Property, Dec. Dig. SS 13-12; 19 A. & E. Enc. L. (2ed.) 579; 28 Id. 473. 42. See Sales, 10 C. L. 1534; Joutical Sales, 12 C. L. 452; Executions, 11 C. L. 1483. 43. See Gifts, 11 C. L. 1649. 44. See Descent and Distribution, 11 C. L. 1078. 45. See Wills, 10 C. L. 1035. 46. Sand. Graham V. Purcell, 126 App. Dlv. 407, 110 NYS 813. 47. Sunken logs. Whitman v. Muskegon Log Lifting A Operating Co., 152 Mich. 645, 15 Det. Leg. N. 383, 116 Ntw 614. 48. Phillips v. Hamilton \[Vyo.\] 95 P 846. 49. Intention is paramount object of inquiry. Phillips v. Hamilton \[Vyo.\] 95 P 846. 546. Evidence insufficient to show intention to abandon mining lease. Id. Where owner of sunken logs made annual efforts to recover them and many were recovered each year, there was no intention to abandon the logs and owners did not lose property therein by abandonment. Whitman v. Muskegon Log Lifting A Operating Co., 152 MUSE. 645, 15 Det. Leg. N. 383, 116 Ntw 614. 12 Curr. L.-- 91. 50. Phillips v. Hamilton \[Vyo.\] 95 P 846. 55. 56. 57. 58. 59. 60. 51. 52. 53. 54. 55. 56. 58. 59. 61. 50. 51. 53. 54. 56. 59.

PUBLIC CONTRracts.

1. Power of Government and Antheity of

Its Officers to Contract, 1442.

2. How Infinited, 1445.

1. How Closed, 1448.

1. Essential Provisions in, and Conditions

Pertaining to, Public Contracts,

1448. Bonds, 1449.

0001. Interpretation and Effect of Public Contracts; Performance and Discharge,

0001.

The scope of this topic is noted below. \[89\]

1. Power of government and authority of its officers to contract. \[90\] See 10 C. L.

1280--Municipal corporations can make only such contracts as are expressly \[61\] or impliedly authorized. \[62\] Statutory or charter provisions as to the method of contracting must be strictly complied with, \[63\] and the doctrine of implied contract does not ordin-

59. Includes principles general to con-

grant use of public grounds for railway tracts whereto the public is a party but

passenger station. Larkin v. Allegheny \[C.

not the general law of contracts (see Con-

C. A.162 7E 611. Cities in Georgia have tracts, 11 C. L. 729), or the law of particular

power to contract for water supply for kinds of public projects, such as Public

their inhabitants and for fire protection un-

Works and Improvements, 10 C. L. 13071;

for "general welfare" clause of charters.

Building and Construction Contracts, 11 C.

Mercantile Trust & Deposit Co. v. Column-

L. 464; Swers and Drains, 10 C. L. 1631;

buse, 161 F 135. City clearly authorized to

Water and Water Supply, 10 C. L. 1986, or the

contract for water supply. State v. Tampa

law of Municipal Bonds, 12 C. L. 897.

60. Search Note: See Counties, Cent. Dig.

01. 174-182, 185, 186; Dec. Dig. 8 111-

files upon public service corporation. Id.

114, 122, 124, 125; Municipal Corporations,

Cent. Dig. # 644-667, 678-687, 697, 853; Dec.

Disc. # 228-235, 244, 246-249; Schools and

School Districts. Cent. Dig. # 187-191, 197,

198; Dec. Dig. # 78, 79, 82; States, Cent.

Disc. # 89-94, 97, 99, 101; Dec. Dig. # 89-90;

97, 100, 102, 103; Towns, Cent. Dig. # 61-97;

73-75; Dec. Dig. # 36, 37, 39, 40; United

states, Cent. Dig. # 15 42-48, 49, 51, 52; Dec. Dig. # 59-83, 66, 68, 69;

61. Phillips Village Corp. v. Phillips Water Co. \[Mc\]. 71 A 474: City of Paris v. Sturgeon

(Tex. Civ. App.) 110 SWV 459; State v. Tampa

Waterworks Co. \[FTa\]. 47 S 358.

62. Phillips Village Corp. v. Phillips Water Co. \[Mc\]. 71 A 474; State v. Tampa Waterworks Co. \[FTa\]. 47 S 358.

01. Phillips Village Corp. v. Phillips Water Co. \[Mc\]. 71 A 474; State v. Tampa Waterworks Co. \[FTa\]. 47 S 355: City of Paris v.

Sturgeon (Tex. Civ. App.) 110 SWV 459. Con-

tracts without scope of powers of corpora

tion are void. Bell v. Kirkland, 102 Minn.

213, 113 Nvv 271. Towns and counties exert-

else only powers conferred by law. United

States Gygvnn Co. v. Gleason, 135 Wt. 539,

was therefore authorized by Sayley\* Ann.

116 Nvv 238. Municipal corporations gov-

St. 1897, art. 418, to furnish inhabitants with

terminal agencies with powers subject to

vater, held defective in falling to state

modification or withdrawal at discretion of

plaintiff as inhabitant or that water was

state. Restriction as to hours of work Im-

posed by labor law valid. Federal consist-

of "legal and binding contract" ineffective.

tation inapplicable. People V. Metz, 193 N.

Id. Gaches of etery property for armery rectil-

Y. 148, 85 NE 107. On motion for re-

ing ordinance and its approval under which

argument. People v. Metz, 194 N. Y. 145,

lease was made held valid under Baltimore

86 NE 986. County unauthorized to borrow

City Charter, art. # 1, 13, authorizing

money. McCur

## 12 Cur. Law. Public contracts SS 1.

narily apply, \[44\] persons dealing with municipalities being bound to take notice of the limitations of their power. \[65\] Usually contracts in excess of a limitation of indebtedness are prohibited. \[66\] The legislature may subsequently legalize a contract not within the statutory powers of a municipality. \[7\] Investments of a municipality in private enterprises are protected by the constitutional guaranties securing private property. \[88\] Unless otherwise provided the power to make municipal contracts resides in the council \[9\] and an accepted ordinance constitutes a contract. \[70\] Public officers \[11\] and

NE 291: Village of Carthage v. Diekmeier

Wharton v. Greensboro \[N. C.\] #2 SE 740. (Ohlo) 87 NE 178. Though governing body

Conveyance of street if unauthorized saved of city havc implies upper to contract,

by confirmatory act (Acts 1905, p. 595).

power must be exercised in pursuance of

Koeoe v. Rourke \[Ga.\] #2 SE 185.

charter and statutory provisions. State v.

68. Town of Southington v. Southington

Dlerkes, 214 MO. 578, 113 SW 107. Village

Vater Co., 80 Conn. 646, 69 A 1022.

varding that street improvements be gov-

granded power must proceed according to

terms of act. Phillips Village Corp. v.

Pulpa Oil & Gas Co. \[Okl.\] #7 P 1007;

Phillips Water Co. \[Mc.\] #1 A 474. Warrants issued by county court where Rev.

113 SW 855. City ordinance to street rail-

St. 1899, e. &4 (Ann. St. 1906, p. 2705) as

letting contracts, appropriations, etc., is

disregarded, do not constitute valid in-

between company a contract and irrevocounty, 210 MO. 582, 109 SW 656.

64. Village of Carthage v. Diekmeier

\[Ohio\] #7 NE 178. Loan by county. McCurdy v. Shiawasser Coum \[Mich.\] #1 Det. Leg. N. 873, 118 NW 625. Lowest bidder for

highway improvement under good roads act

valid as releasing indebtedness contrary to

(Pub. Acts 1905, p. 432, e. 232) cannot avoid

signing contract and giving bond, and by

denoising on work hold town habe on Implied contract, whether selectmen consent

or not. Kelley v. Torrington, 80 Conn. 378, 321; Lawrence v. Toothaker \[N. H.\] #1 A 68 A 855. City liable for water machinery

534. Not authorized to make contract bind-

delivered, retained and used for nearly two

ing on county, Ross v. Bibb County, 130 years, though Kirby's Dis. # 5473, requiring action by city council, was disregarded,

authorized improvement of highway. Kel-

Forrest City v. Orgill Bros. A Co. \[Ark.\] #2 IEV v. Torrington \[Conn.\] #1 A #3. State

112 SW $91. Municipality cannot retain

officer not authorized to extend contract. property purchased in disregard of statute

Burgard v. State, 61 Misc. 23, 114 NTX 550.

which might be purchased in proper manner and defeat recovery of price. Id. Con-

Momente v. Shannon & Co., 135 Ill. App.

tract to purchase water machinery not au-

53. Can only make contracts authorized

thorized by ordinance, resolution or order of

by ordinance. Id. Mayor has no power to

council as required by Kirby's Dis. # 5473,

bind unless authorized by governing body

or state. Coleman v. Hartford \[Ala.\] #1 S

**65. Village of Carthage v. Diekmeier**

59. Where attorney rendered services to

\[Ohlo\] #7 NE 178; Wadsworth v. Livingston

many and marshal and council repudiated

County Sup'rs, 115 NYS 8; Martindale v.

Rochester \[Ind.\] #8 NE 321. Contract with

employed to oversee work of grading and

county. Jones v. Bank of Cumming \[Ga.\]

pairs allev unauthorized to order con-

62 SE 68. Loan by county. McCurdy v. tractor to excavate on land adjoining.

Shiawasser Coumity \[Mich.\] #1 Det. Leg. N. McGrath v. St. Louis \[Mo.\] #11 A #3.11 NW 625. City's failure to comply

of many authorized to make contract for

with unauthorized agreement. City of Paris

v. Sturgeon \[Tex. Civ. App.\] 110 SW 456.

\*\*66. Contract for purchase of park prop-

terty in excess of charter limitation of in-

debtedness, but tax paid without objection.

State v. Hodapp, 104 Minn. 309, 116 NW 589.

Systems & 2, 67, superintendent of streets had no

Mandamus to compel ministerial offer to boards 72 have only such power to contract on behalf of the public as is conferred by law, and one contracting with them is bound to know the scope of their authority.73

Irregular contracts may be ratified if the municipality had the power to make the contract in the first instance,74 but the power to ratify is no greater than the power to contract.78 Ultra vires contracts are void,76 though the ultra vires character of a serts that they were unauthorized to make sealed contract, city has burden of showing that sealed instruments were not usual form of city contracts. Id. No showing that one bound to take notice. Martindale v. contract was detrimental to interests of city or was in unusual form. Id. In con-stuing power conferred, court will imply that power to follow usual and customary conduct of business is bestowed on agents. Id.

72. Board of county commissioners. State v. Dickinson County Com'rs, 77 Kan. 540, 95 P 392. Board of supervisor agent of county with powers defined by law, vrads.worth v. Livingston County Sur'rs, 115 NYS 8 &. Board of education. Perkins v. Newark Board of Education, 161 F 767. Employment of architect to prepare plans for $400,000 building when only $200,000 appropriately, unauthorized. Id. No pre-sumption that additional appropriations would be made. Id. Board of education authorized to erect and repair schoolhouses. Public School Act of Oct. 19, 1983, 65, 83, 72, 76 (P. L. pp. 21, 26, 28). Scola v. Mont-clariv Board of Education \[N. J. Law\] 71 A 295. Authorised to build central heating plant for schools. Id. Nothing in act 1904, p. 469, c. 457, as result of further negotiations when embodying same conditions. (Acts 1871-72 p. 221) or amendment (Acts 1873, p. 221) or road laws of state (Pol. Cote 1895, SS 516-519, inc.) authorizing board to employ counsel at county's expense to defend mandamus brought to compel opening of road. Ross v. Bibb On., 130 Gn. 855, 61 SE 465. Petition for fees properly dismissed on general demurrer. Id. Under Comp. Laws $ 3275, board of public works authorized to contract in their own names as to water and light rates and to bring suit thereon. Board of Public Works v. Pinch, 152 Mich. 517, is Det. Leg. N. 859, 116 NWV 408. Under Oki. St. 1893, $ 395, power to negotiate sale of county refunding bonds conferred exclusively on county treasurer and contract by board of county commissioners with broker void. Theis v. Beaver County Com'rs \[Oki.\] 97 P 973. Board of county commissioners could not allow claims growing out of contracts which were unauthorized. Warrant issued created no liability. Id. No liability against county by services renered, however beneficial. Id. Resolution designating certain paper as one in which certain notices should be published for certain period held not contract between county and proprioter of newspaper. World Pub. Co. v. Douglas County, 79 Neb. 849, 118 NWV 539. More exercise of supervisory power of board over acts of county treasurer. Id.

01. City of Momence v. Shannon & Co., 131 III. App. 532; Burgard v. State, 61 Misc. 23, 114 NYS 550; Martindale v. Rochester \[Ind.\] 86 NE 321. School trustee. Slatter v. School City of South Bend (Ind. App.) $ 8 NE 860. Contract by superintendent of streets for gravel unauthorized. Bartlett v. Lowell, 201 Mass. 151, 87 NE 195. Where board of trustees (Ad. 87, 115 NYS 88, 11 contract may be eliminated where the contract is executed," or a city may be estopped to plead ultra vires." A city cannot by contract deprive itself of any of its legislative powers." Provisions of law applicable to the subject-matter are a part of the contract, whether expressed or not," and a contract for a public service is not objectionable from its exclusive character." A board of elections compelled under mandamus to publish notices in a newspaper cannot avoid the payment of the contract price though the writ is reversed on appeal."

An implied contract arises when the federal government appropriates property as its own which it does not claim." A contract by agents of the United States though omitting the name of the government is not changed in its essential character."

**SS 2.**_How initiated._" See 10 C. L. 1288.-Statutory conditions precedent as to the mode of exercising the power to contract, such as the passage of ordinances and resolutions," authority from voters," provision for funds," and like matters," should be

by concurrent action of lessons and lesseees

\*\*SS2.\*\*Morning Tel. Co. v. New York, 61

**in** renting such armory for entertainments.

Misc. 511, 115 NYS 549.

**Gottileb-Knabe & Co. v. Macklin \[Md.\] 71**

\*\*SS3.\*\*Appropriation of patented invention by

\*\*A 949.

\*\*77.\*\*Moore v. Ramsey County, 104 Minn.

\*\*U. S., 42 Ct. Cl. 365. Knowledge of ap-

**30, 115 NW 750; Morality v. New York, 59**

\*\*propriation by patente at time immaterial,

Misc. 204, 110 NYS 842. Fully performed,

**ultra vires contract unassailable. Bell v.**

**Kirkland, 102 Minn. 213, 113 NW 271.**

\*\*Where only small portion of contract was

\*\*84.\*\*Sept v. U. S., 31 App. D. C. 476. Board

\*\*void in any sense and contract was substantially executed, such facts are strong

\*\*strict of Columbia, in contracting for build-

\*\*longs, is an agent of the United States.\*\*Id.

\*\*Id.\*\*Ultra vires doctrine should be so administered as not to defeat the ends of just

\*\*SS5.\*\*Search Note: See Counties, Cent. Dig.

\*\*ministered as not to defeat the ends of just

**81** 1781-191; Dec. Dig. $ 115-120; Municipal

**of** or work a legal wrong. Id. Contract

**Correlations, Cont. Dig. $ 668-674; Dec.**

\*\*for construction of swew being fully

\*\*thorized is ultra vires only in the second

\*\*dary or restricted sense. Id. Failure to es-

**store right of way through all private lands,**

**the same proof of the same kind.**

**in** contract for construction of swew, does

**not invalidate entire contract. Id.**

\*\*78.\*\*City estopped to plead ultra vires

\*\*where additional improvement of street was

\*\*iflegally included in contractor's bid, but

**work performed and council authorized to contract. Disregard of charter provision as**

**as**

\*\*recovery for contract for school building by to bida. Peterson v. Ionis, 152 Mich. 678,

**15 Det. Leg. N. 389, 116 NW 652. Recatial of**

**bond estoppel of surety's assertion that**

**contract was ultra vires. Bell v. Kirkland,**

**102 Minn. 213, 113 NW 271.**

\*\*79.\*\*Agreement by city engineer that sidere-

**walk be graded only to certain depth would not deprive city of charter power to grade**

**sidewalks, though engineer had authority**

\*\*and made contract for consideration. City

**of Marshall V. Allen \[Tex. Civ. App.\] 11**

**SW 849.**

**So. Law authorizing regulation of public**

**service corporation part of contract for**

**public service. State v. Tampa Waterworks Co. \[Fla.\] 47 $ 358. Contract for public**

\*\*service containing unreasonable, unenforti-

**ble provisions may be relieved by law providing for regulation of service. Id.**

**Terms of contract for public service subject to right of governmental authority under**

\*\*existing laws to regulate rendering of service and charges. State v. Tampa Vva-

**networks Co. \[Fla.\] 48 S 639.**

\*\*81.\*\*No objection that franchise to water

**company was exclusive and precluded competition by city, where city had power to contract for water supply for term of years.**

**Merantile Trust & Deposit Co. v. Columbus, 161 F 135.**

**1445**

**12 Cur. Law.**

**public contracts $ 2.**

**1445**

**contract may be eliminated where the contract is executed," or a city may be estopped to plead ultra vires." A city cannot by contract deprive itself of any of its legislative powers." Provisions of law applicable to the subject-matter are a part of the contract, whether expressed or not," and a contract for a public service is not objectionable from its exclusive character." A board of elections compelled under mandamus to publish notices in a newspaper cannot avoid the payment of the contract price though the writ is reversed on appeal."**

**An implied contract arises when the federal government appropriates property as its own which it does not claim."**
complied with, and a contract in disregard thereof is invalid." In the letting of municipal contracts, it is frequently required that bids be called for "1 by proper published notice of the contemplated contract,"2 and that the contract be awarded to the lowest bidder."3 The object of such provisions is to "prevent favoritism, correfla

SS 6508, 6561; Ann. St. 1906, pp. 2824, 2882), feet higher than existing survey, where contract awarded pursuant to advertisement held void, since such advertisement made 6 days before ordinance became effective. Cushing v. Russell \[Mo. App.\] 11 108, requiring bid when improvement in excess of $100. Peterson v. Tonia, 182 Mich. street railway invalid, where rule as to ad-vertisement prescribed by by-law pursuant to statute suspended to permit passage at same meeting. Eggers v. Newark \[N. J. Law\] 71 A 65.

SS. Under granted power, village could not compel appraisal of waterworks until vote to purchase. Phillips Village Corp. v. Phillips Water Co. \[Me. J. 71 A 474. An-thority from voters required before contract for sewers pursuant to Laws 1907, p. 388, c. 428, by general village law \[Laws\] 1897, p. 440, c. 414). Mead v. Turner, 60 Misc. 145, 112 NYS 127.

SS. Appropriation precedent to letting contract for bridge. Rev. St. 1899, & 5188 (Ann. St. 1906, p. 2705). Trask v. Livingston County, 210 M. 582, 109 SWP 656. Action of council as to purchase of electric lighting plant invalid, where contracts not submitted to and approved by board of estimates, and funds provided. Bay City Trac. & Elec. Co. v. Bay City \[Mich.\] 15 Det. Leg. N. 1039, 119 NWV 440. Breach of contract not basis of suit where excess revenues insufficient to meet contract and no levy of special tax to create sinking fund as required by constitution and statutes. Fund derived from unauthorized tax levy not be looked to. Ault v. Hill County \[Tex. Civ. App.\] 11 SWP 425, add. \[Tex.\] 116 SWP 359. Certificate, under Rev. St. 1838, & 2702 (old number) not in compliance therewith when not certifying that specified sum of money for contract to improve street is in treasury to credit of fund from which to be drawn, and not ap-reported for other purposes. Village of Carthage v. Diekmeler \[Ohio\] 87 NE 178. Where defect in certificate discovered and amended, though in figures before execution of contract, and certificate properly filed and recorded, such certificate is limitation of amount to which corroboration is liable. Id. Claim for extra work on bridge not to be made unless appropriation by common council to county as provided by Burn's Ann. St. 1901, & 5694 p. 1 (Burn's Ann. St. 1908, & 6938). Under statutes, complaint held insufficient as not alleging that appropriation had been made. Talbot v. St. Joseph County Com's \[Ind. App.\] 85 NE 376. Tax levy, or submission of project to people, not precedent to creation of county curthouse where available funds on hand. Spalding County v. Chamberlin & Co., 130 Ga. 649, 61 SE 633.

SS. Village Law, Laws 1897, p. 440, c. 414, $ 260, requiring mmp -of sewer system before contracting for same, does not require every lateral sewer which might become necessary to be shown. Mead v. Turner, 60 Misc. 145, 112 NYS 127.

90. See & 1. ante.

01. Resolution that roadway be built two ruption and extravagance," \*\* and the specifications must be framed so as to secure fair competition on equal terms to all bidders." Generally, the statutes have been held not to exclude the specification of patented articles, though thereby competition is prevented as to such articles." The acceptance or rejection of bids and the letting of the contracts are purely administrative." Under statutory provisions the calling for bids may be discretionary," or discretion may be vested in boards by provisions that the contract be let to the best \*\* or to a "safe" bidder, as where funds are involved."

void as increasing cost of work. Stands-bury v. Polindexter \[Cal.\] 99 P 182. Object-making to specify patented articles which then not obvided though bids were not increased on account of such restriction, since bidder might have been deterred from competing. Id. Under School Act 1903, $ 52, F # 49. Requirements of charter of Detroit $ (P. L. 1903, pp. 5-21), board could not modify specifications after acceptance of bid and award to former bidder, where act in city's electrical plant. Attorney General v. Fool faith and bid reduced. Scola v. Mont-clair Board of Education (N. J. Law) 71 A 299.

94. To be so construed. Attorney General v. Public Lighting Com. \[Mich.\] 15 Det. Leg. N. 958, 118 NWV 925.

01. Conditions of bids held to afford fair and reasonable opportunity for competition in letting contract for steel pipe line. Holly v. New York, 128 App. Div. 499, 112 NYS 1977. City council by adding another make of vtrifted brick to specification of material for street paving did not interfere with competitive bidding, but extended field of competition. Muff v. Cameron \[Mo. App.\] 114 SWV 1125. Requirement that material in paving contract be Ida Portland cement or better, did not improperly restrict bidding. Id. That disregard of rules as to competitive bidding resulted in no harm is immaterial since question is not harm done, but power. Material departure from terms and conditions of bidding renders contract private. City of Independence v. Nagle \[Mo. App.\] 114 SWV 1129. A director of public works in publishing specifications need not decide finally on every item, but may ask for alternative bids on two articles to be furnished having set up good standard in specifications and having prescribed methods of bidding giving equal opportunity to each bidder. Parker v. Philadelphia, 220 Pa. 208, 69 A 670. Where thing to be furnished under municipal contract may be manniate-tured in precise conformity to certain specific requirements or purchased in open market for standard price, there is no valid reason for asking for alternative bids; but where thing is protected by patent, or cannot be bought in open market, and any one of a number of kinds fully complies with established standard, interest of municipality will best be served as asking for bids for any or all. Id. Field open to bidder and power of monopoly broken. Id. No discrimination in accepting bid, though excessively high estimate placed upon efficiency of lock bar joint in steel pipe line, resulting in use of thinner plates, where various styles of pipe strictly in accordance with engineering standards. Holly v. New York, 128 App. Div. 499, 112 NYS #71.

01. Though statutes require competitive (or "safe") to be made with the help of the contract.

01. Depending upon discretion of common

## 3 How closed

See 10 C. L. 1289

The acceptance of a bid pursuant to an advertisement constitutes the contract,"

## 4 Essential provisions in, and conditions pertaining to, public contracts

See 10 C. L. 1289

The contract awarded should substantially conform with the advertisement.6 It should be executed in conformity with charter or statutory provisions,6 by the proper official,7 and, if so required, must be in writing,8 signed by the proper official,9 but the writing is merely a reduction to form,10 and the usual mode of contracting may be dispensed with in the case of an emergency.11

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

Footnote 2: \_Search Note: See notes in 6 C. L. 1113, 1906, p. 3327), prohibiting contracts not within powers or expressly authorized, and See, Also, Counties, Cent. Dig. $ 190, 191, $ 6760 (Ann. St. 1906, p. 3328), requiring 194-196; Dec. Dig. $ 119, 120, 123; Mun. Corp. Cent. Dig. $ 671-673; Dec. Dig. $ 239-242; Schools and School Districts, Cent. Dig. $ 192-196, 340; Dec. Dig. $ 80, 81; States. Cent. Dig. $ 95, 98; Dec. Dig. $ 19, 88; 101; Towns, Cent. Dig. $ 72; Dec. Dig. $ 38; United States, Cent. Dig. $ 47, 50; Dec. Dig. $ 6759 (Ann. St. 1906, p. 3327) required city to make only contracts authorized, and that same be written; and charter provision (Ann. St. 1906, p. 4390, St. Louis Charter, Art. 16, $ 7) required contracts to be written; to be written; to be written.

tracts must conform to principles of public policy, and are rendered void when the officials are personally interested therein.\[12\] The act of a city controller in cancelling his signature after execution has been held not to avoid the contract.\[13\] An assignment of moneys due or to become due under a contract is not an assignment of the contract.\[14\] Parol evidence may be admissible to disclose persons who indemnified a surety and were entitled to share in the moneys assigned to such surety.\[15\]

Agreements for procuring government contracts, where compensation is contingent upon the success of the promisee's efforts, are void as against public policy.\[16\]

\_Bonds_See 10 C. L. 1291 for the performance of the work may be required by statute.\[17\] A city contract properly executed has been held unaffected by the refusal of the mayor to approve the bond.\[18\]

_SS 5. Interpretation and effect of public contracts; performance and discharge._

\_A. Construction and interpretation.\[10\] See 10 C. L. 1291.\_In public contracts, as in others, the severable, invalid portions may be eliminated and the contract enforced as to the remainder,\[20\] and, generally, it may be stated that public contracts are

**12.**: Sess. Laws 1899, p. 105, $ 82, as amended Sess. Laws. 1805, p. T1, clearly pro-hibits contracts of school district with and writing discloses no consideration or trustee in which latter pecuxiarily interested. Independent School Dist. No. 6 * Collins

_(Idaho)_ 98 P 857. Ky. St. 1903, $ 2768, prescribing qualifications of counilmen, and prohibiting contracts where officials inter-ested, not declaration of eligibility, but renders such contracts void. Bradley & Gilbert Co. v. Jacques, 33 Ky. L. R. 618, 110 SSV 836. Term "contract" extends to case of where city buys daily supplies. Consturing statute. Id. Contract by town trustee in violation of Burns Ann. St. 1901, $ 2136, making town trustees who contract with themselves guilty of misdemeanor, void. McNay, V. Lowell, 41 Ind. App. 627, 84 NE

_(Idaho)_ 98 P 857. Ky. St. 1903, $ 2768, prescribing qualifications of counilmen, and prohibiting contracts where officials inter-ested, not declaration of eligibility, but renders such contracts void. Bradley & Gilbert Co. v. Jacques, 33 Ky. L. R. 618, 110 SSV 836. Term "contract" extends to case of where city buys daily supplies. Consturing statute. Id. Contract by town trustee in violation of Burns Ann. St. 1901, $ 2136, making town trustees who contract with themselves guilty of misdemeanor, void.

1450 PUBLIC CONTRACTS $ 5B. 12 Cur. Law.

construed and interpreted as the contracts of private individuals \[21\] with the exception that, where a franchise is granted, the contract should be construed strictly against the grantee and liberally in favor of the people.\[23\]

(SS 5) _B. Performance and discharge._\[23\] See 10 C. L. 1292.\_The deposit securing performance is forfeited by breach.\[24\] Also, public contracts often provide for the completion of the work at the contractor's expense in the case of unnecessary

provement despite invalidity of the other. \[1\] kind from that specified in contract. Profft Ovaide Asphal Pav. Co. V. New York, 128 V. C., 42 Ct. Cl. 248. Change simply add-App. Div. 210, 113 NYS 535. Contract for disposal plant illegal because of failure to \[1\] doingn' being of same kind. Id. Concomply with charter by city\* board of est-tractor required to make additional trips by titmate and apportionment. Id.

**21.** Illustrations: Where contract for grading read referred to bid and proposal so that total milese was decreased, can-containing clause that there would be no no allowance for overhaul of material moved \[1\] days held to settle contractor to compensate. 3,000 feet or less, such terms were incorporated. Id. Contract for transportation ofporated into contract. Moore V. Ramsey County, 104 Minn. 30, 115 NW7 750. Reference to another instrument. Under Pub.

riers bound to transport pursuant to conActs 1905, p. 432, c. 232, providing for highway Improvements at partial expense of \[1\] breach. Ceballos v. U. S., 42 Ct. Cl. 318. state, and Gen. St. 8824, requiring street railway to change tracks to conform to grade, etc., an agreement with a town by a street railway to pay one-half of town's expense in changing grade did not affect \[1\] porting officers" \[1\] rate. Id. Evidence held to show government as not responsible for assignment of \[1\] versus transport to generate grades at intersection with street under statute allowing damages to abutting owners, which damages city agreed to pay, no liability resulted to manufacturer whose land did not abut on street but who was completed to elevate side track to maintain connection. In re Detroit \[ delay \[28\] after notice of annulment,\[29\] and the new contract entered into is entirely independent of the former one.\[27\] Default in monthly payments is no defense against the consequences of annulment when waived by the contractor.\[28\] Performance is not excused by sickness or indisposition.\[29\] A contractor is bound by contractual specifications as to the acceptance of the work as it progresses,\[30\] and to release a builder from contractual liability for delay, the acceptance must be unconditional.\[31\] It has been held that the lack of power to delegate the determination of the fulfillment of a contract did not render the contract void.\[32\] A claim for extra work is properly disallowed when such work is called for by the bid,\[38\] but a contractor may recover for extra work when compelled by the wrongful insistence of the city officer that such work is within the contract.\[34\] It has been held that time is not of the essence of the contract when not specified in the ordinance authorizing the improvement,\[35\] and the work should be completed in a reasonable time.\[36\] Where subsequent events show the contract time as unreasonable, it may be extended by a city ordinance.\[37\] The violation of a statute fixing the hours of labor on municipal contracts may be penalized by a forfeiture of compensation.\[38\] Where a third person was injured by a contractor's negligence and the latter refused to defend the action against the city and acquiesed in appeals, the city was en titled to offset against the claim of the contractor not only the judgment recovered but the moneys expended on the appeals.39

SS 6. \_Remedies and procedure. A. By taxpayer.40--Sco 10 C. L. 1293--The performance of a public contract or the payment of sums due may be properly restrained where an illegal disposition of corporate property is made,41 where the officials are guilty of misconduct,42 or where public money is about to be paid upon a void contract.43 The action can only be maintained upon clear proof that the authorities have acted or are about to act illegally.44 The right of rescission of a bilateral contract can be exercised only by the town,45 and though a municipality in contracting for water acts for the benefit of the inhabitants, the individual owners of property destroyed by fire, through the failure to supply water, have been held unable to maintain an action for such property.46

(SS 6) _B. By bidder.47--See 10 C. L. 1294--Requirements of law as to contracts_

39. Murphy v. Yonkers, 115 NYS 591. commissioner's court. Provision for benefit of contracting parties. Id. Where city and # 308; Dec. Dig. $ 196; Municipal Corpora. Vilage pursuant to legislative authority (Laws 1907, p. 388, c. 428) agreed to con- # 987-1000; Schools and School Districts, # server and sewage disposal works, each paying a portion of expense, Health Law, Laws 1894, p. 1519, c. 661, # 78, pro- # 61. Viding for payment of sewers by one city when ordered for protection of another's water system, was inapplicable, and contract could not be enjoined on theory of "ifed denied. Larkin v. Allegheny \[C. C. A.\] 162 F 611.

01. Discrimination in accepting bid. Holly of voters of village in adopting v. New York, 128 App. Div. 49, 112 NYS 797.

Contract may be enjoined where officials \[Aia.\] 48 S 675. Upon reusal of authorities to recover money paid on void contract, ac- # 11 a.\] 48 S 675. Upon reusal of authorities to recover money paid on void contract, ac- # 11 a.

when refused to be complied with by public officials can be enforced by mandamus,\[48\] but the remedy will not lie to compel an unauthorized act.\[49\] In determining the qualifications of the highest bidder seeking to become a depositary of funds, discretion must be exercised in good faith, and is subject to mandamus,\[50\] but where a contract is to be awarded to the lowest and best bidder, the court will not interfere with discretion except in the case of fraud or collusion.\[51\] A bill by the attorney general on relation of the competitive bidder has been held the proper proceeding where a private proposal is accepted by the city after the sealed bids required by the charter are submitted.\[62\]

(SS 6) \_C. On the contact proper or on a quantum merit.\[53\] See 10 C. L. 1294

A contractor wrongfully prevented from completing his contract may recover for the work done,\[54\] and money loaned to a borough under an invalid resolution and used by it may be recovered in an action for money had and received.\[55\] A contractor is chargeable with notice that an improvement is of no special benefit to abutting property,\[66\] but otherwise a city is generally liable when failing to collect a special fund.\[57\] Where a city by its own act loses its authority to issue bonds to pay a contract entered into, it is liable for such compensation out of the general fund.\[58\] Where a valid contract was executed, but the mayor refused to approve the bond, the contractor might sue for the contract price.\[58\] A city proceeding under statute to remove a collapsed building, with expenses to be paid from a fund established by such statute, is directly liable to a contractor doing the work.\[60\] Where a city accepted an alternative bid for a city hall to be either cement or brick, the bidder had no contract on which he might sue until the city designated the material to be used,\[61\] and where the contractor disregarded such designation, it was held that the contractor 1454 PUBLIC CONTRacts $ 6C. 12 Cur. Law.

city in refusing to allow completion and in using the foundation did not accept the work so as to be liable for the reasonable value.\[92\] The compensation due often involves a construction of the contract.\[88\] A contract is not entitled to the full contract price when the work is inferior,\[94\] and in such case when the compensation is not fixed by statute,\[88\] the contractor is only entitled to the reasonable value of such work.\[96\] Money paid by a municipality upon a void contract may be recovered,\[97\] but the rule does not apply to a contract authorized where the work is accepted and paid for.\[98\]

The constitutional limitation as to the impairment of contracts applies where a more difficult and uncertain remedy for the enforcement of a public contract is enacted,\[99\] or where the power of taxation is limited.\[90\] A petition by a contractor for services rendered should show compliance with statutory regulations as to writing,\[11\] and a disregard of provisions as to the manner of entering into the contract may prevent recovery.\[12\] An acceptance by an officer which merely shows

62. Ketterman v. Ida Grove \[Iowa\] I20

legal claim against plaintiff for difference between amount paid and reasonable value of services. Where supervisor of certain contractor held not entitled to compensate-

county roads appointed by commissioners

for lower left in work, since stipula-

drew 85 per day compensation regardless of whether he worked entire day or not.

etc. City of Richmond v. Barry \[Va.\] 63

Armstrong v. St. Louis County Com'r's, 103

SE 1074. Contract for drawing plans and

Minu. 1, 114 NW 89.

superintending construction of court house

68. County expressly authorized to build

entire not severable. Where petition al.

helges, which accepted same and paid

legged drawing of plans, but stated no

ther, could not recover amount so paid

excause for nonperformance of remainder of

on the ground of illegality. Where con-

work, petition was subject to general de-

tract executed and municipality retains

murrer. Spalding County v. Chamberlin &

benefit and cannot or will not restore prop-

Co., 130 Ga. &49, 61 SE 533.

ety required, can be no recovery of con-

64. Contractor not entitled to full con-

fact price where public printing required

do. 118, 118 SW 265.

according to certain specifications, and contractor pursuant to direction of offered used

City of Cleveland v. U. S. \[C. C. A.\] 166

inferior paper. Commonwealth v. Bacon,

53 Ky. L. R. \[355, 111 SWV 887.

65. Under Ky. St. \[1908, & 3892, providing rates for public printing, saddle stitched

gamphlets bound In card board glued to

back could not be charged for as full binding with spring backs. Commonwealth v.

Bacon, 33 Ky. L. R. \[385, 111 SWV 887. Such

pamphlets not under any clause of statute

fixing price. Id. Blank books used by

counties referred to In Ky. St. \[1908, & 3956, constitute second class of state printing

and are record books. Teachers' registers,

grade books and trustees' records not in-

cluded in second class. Second class more

expensive than first. Id.

66. Where work not called for by con-

traet for public printing was accepted by

board of printing commissioners and stat-

ute did not fix price, contractor was en-

tiled to reasonable value. Commonwealth

v. Bacon, 83 Ky. L. R. \[955, 111 SWV 887.

67. Interested official. Independent School

Dist. No. 5 v. Collins \[Idao\] 98 P 857.

Jet to general demurrer, since compensa-

Rule that neither party to transaction may

retain benefits and question invalidity in-

1895, & 343 requires writing. Spalding

applicable to void contract of municipality.

County v. Chamberlin & Co., 130 Ga. 649, 61

Id. In action under School Laws, $ 2S (Sess.

Esp 533. Petition against county upon al-

Laws 1899, p. 106), as amended Sess. Laws

1805, p. 71, to recover money paid on void

contract, complaint must allege contract

in charge of financial affairs of county.

made with defendant when member of

James v. Douglas County \[Ga.\] 62 SE 181.

board of trustees of school district. Id.

Mere fact that contract price paid exceeded

construction of Code 1868, $ 527. Jones v.

reasonable value of services rendered does

Bank of Cummings \[Ga.\] 62 SE 68.

not render contract invalid, or constitute

72. Where village purchases supplies in compliance with the contract does not preclude a town's reliance upon breach of contract," and a village is not estopped, by issuing paving bonds as advance payment, from showing the failure to complete the work." Whether an alleged contract has been entered into may be a question for the jury," and the plaintiff has been held not to be precluded from proof of the contract, though there was no record of the same in the books of the county commissioners." Jury questions are also presented in reference to acceptance of the work," or as to damages for failure to comply with the contract." Evidence of what a contract owes does not prove the reasonable value of the work done," and that orders had been issued upon a town is incompetent to prove that payment is due." A directed verdict is proper where there is no evidence as to the reasonable value of the work performed." The action may be barred by limitations." A government official, in making a gift to a contract of a tug to tow a vessel containing lumber contracted for, does not render the government liable to the owners of the vessel, which is destroyed."

\_Other remedies.--\_A borough president may be compelled by mandamus to sign an order for the payment of a debt due by the borough on a building contract," but the remedy will not lie where there is no duty 85 or to compel the performance of duties and obligations depending upon the contract." Mandamus will not lie to compel the payment of a paving bond where it appears that such bond was issued as advance payment and the work was not completed."

(SS 6) \_D. On the contractor's bond.\_85_See 10 C. L. 1295--\_Liability to material-

excess of SS600 without advertising for bids

Laws 1895, p. 128, c. S, SS SS 47, is two years.

or entering into contract as required by

Thorton v. East Grand Forks, 106 Minn. law, fact that goods were purchased and

233, 118 NW SS4. In action for work and delivered in good faith does not render vilmeratials furnished by plaintiff's assignor

lage liable therefor because of moral ob-

to defendant city for paving, as evidenced ligation incurred, and upon suit by tax-

by estimates allowed and issued by de-

payer an injunction will lie against pay-

fendant's engineer and common council,

ment of bill. Castner v. Pleasant Ridge,

plaintiff's cause of action held to have ac-

7 Ohio N. P. (N. S.) 174. Failure to aver

crued on 10th of month next after estimate was one of binding force and

mates allowed, when payments due. Id.

effect, and was endorsed by prosecuting attorney in compliance with SS 798, Rev. Stat.

and owner of vessel destroyed could not

and that there has been performance of all

other prerequisites necessary to complete

and valid contract, precludes any recovery

thereon by county. Prerequisites of es-

sentence of contract. State v. Essewelin, 11

Ohio C. C. (N. S.) 225.

78. Where from contract engineer had no

authority to accept work. Town of Sterling v. Hurd \[Colo.\] 98 P 174.

74. Action on bond. Barber Asphalt Pav.

Co. v. Highland Park \[Mich.\] 120 NWV 621.

75. Contract of employment to prepare

plans for county heat and power plant.

Yaochy v. Lehigh County, SS 7a. Super. Ct.

194.

001. Jacoby v. Lehigh County, SS 7a.

Super. Ct. 134.

77. In action for balance due for constructing waterworks, held jury question

whether town's engineer had accepted

work, or that by his action town had waived

right to have alleged defects in work determined. Town of Sterling v. Hurd \[Colo.\] 98 P 174.

78. Town of Sterling v. Hurd \[Colo.\] 98 P 174.

79, 80. Kelley v. Torrington, SS 80 Conn. 878,

68 A. 856.

81. Ketterman v. Ida Grove \[Iowa\] 120 NWV 641.

01. Time limit of statute of limitations, men and subcontractors on bonds given for their benefit is elsewhere treated." The obligors of a bond are liable when given as in pursuance of a statute, though such statute does not in fact require a bond." The liability of the sureties is measured by the contract."1 A surety may be released in the case of unauthorized alterations of the contract,"2 as where time is extended without consent."3 A surety, having received the consideration for a bond, is estopped to assert the same as void because the city was unauthorized to take it,"4 but a surety has been held not estopped from denying liability from actions in securing a public contract or the compensation due."56

(SS 6) \_E. Under lien laws.\_90 See 4 C. L. 1105

**PUBLIC LANDS.**

**SS 1. The Public Domain and Property There-**

**SS 2. Lands Open for Settlement and Lands**

**SS 3. Mode of Locating and Acquiring Title,**

**SS 4. Readers Lands, 1460,**

**SS 5. State Lands, 1464. Resicissions. Can-**

**SS9. See Public Works and Improvements, 10 C. L. 1307.**

**SS0. Though no bond required under 3**

**SS0. Know laws 1897, SS 10,743-10,745, where**

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  the right to deepen and widen the channel.6 Buildings erected upon public domain by mistake or otherwise do not thereby become the property of the government but the owner has a reasonable time in which to remove them.7

SS 2. _Lands open for settlement and lands granted or reserved.8_ **See 10 C. L. 1226** Lands already patented,\* granted,10 confirmed to a grantee,11 or otherwise reserved,12 are not subject to entry. Unoccupied and unimproved lands only are subject to homeseted settlement,13 though the possession of the occupant be wrongful as to the United States.14 General laws authorizing localization or entries on vacant land do not apply to lands that have been previously reserved.15 The test of segregation is the recognition of the claimant's right by the land department.16 Location upon federal authority, held to apply as well to \[tion laws, held conclusive as against a set-those to be constructed as to those already in operation. Green v. Willhite, 160 F 755. **e.** Grant dating from British Crown of land under navigable water used by plain-diff as oyster bed subject to government's right to widen channel. Lewis Blue Point Oyster Cultivation Co. v. Briggs, 129 App. Div. 574, 114 NYS 313. **7**, Wallbrecht v. Blush, 43 Colo. 329, 95 F 927. **8**.\*\* Search Note: See, also, Public Lands, Cent. Dig. SS 29-600; Dec. Dig. SS 22-187; 26 A. & E. Enc. L (ed.) 219. **9**.\*\* 4.\*\* Patent already issued will not be set aside in favor of one who has no equitable title originating in settlement made before patent sought to be set aside was issued. Linebeck v. Voss, 160 F 540. **Where commonwealth In 1872 had issued a patent for a boundary of land, subsequent patents issued to others for land within such boundary were vol. Conley v. Breatht Coal, Iron & Lambert Co. \[IX.\] 112 SWV 604. Patent to land previously patented void. Hamilton v. Steele \[KS.\] 117 SWV 378. Evidence held to sustain finding that area claimed under patent granting large boundary of land from which prior surveys were excepted was not included within such exception. Steele v. Bryant \[KS.\] 116 SWV 755. **10**.** Transferable title to lands already granted to railway company could not be acquired by alien through mere settlement thereon. Call v. Los Angeles-Pacific Co., 162 F 926. **11**.\*\* Plaintiffs claimed title to a tract of land under Spanish grant of 1767, which grant was confirmed in 1852. In 1852 defendant located confectorate sery upon said land by virtue of which it was surveyed and patented. Held patent gave no title as against plaintiffs. Sullivan v. Solis \[Tex. Civ. App.\] 114 SWV 456. **12**. Creation of forest reserve serves the land from the public domain and appropriates it to public use. Shannon v. U. S. \[C. C. A.\] 160 F 870. Lands occupied as a military reservation at time of passage of Act of March 2, 1849, c. 87, 9 Stat. at L. 352, granting swamp lands to Louisiana upon approval of list by secretary of treasury, held already withdrawn from public domain and did not pass under act. Louisiana v. Garfield, 211 U. S. 70, 58 Law. Ed. 92, Act June 5, 1872, c. 308, 17 Stat. 226 providing for survey of 16 townships in Bitter Root Valley, and that none of the lands above the LoLo fork should be open to settlement under homesetad or pre-emp- 12 Cur. Law. PUBLIC LANDS & 2. PUBLIC LANDS & 2. PUBLIC LANDS & 2. PUBLIC LANDS & 2. PUBLIC LANDS & 2. PUBLIC LANDS & 1459

public land segregates it from the public domain," although no patent has been issued.18 Lands embraced within the indemnity limits of a railway grant are open to homestead entry until the list of selections is approved by the secretary of the interior,19 although such list may have been filed prior to homesteader's entry.20 No right can be acquired by an attempt to purchase school lands already covered by a valid and subsisting sale,21 or by one prima facie valid under the law in force at the time of sale,22 nor can a lessee without the consent of the state terminate his lease so as to open the lands for settlement.28 Where a settlement under a donation

17. Where settler located upon public land and had it surveyed in 1838 and sold it the same year, held that such location withdrawn and applied for patent which and survey operated to aggregate land as

was renused. Held that such withdrawal effectsually as a patent would have done in

was unauthorized and void, that land was so far as settler's right to convey was con-

open to settlement until selection as in-

cerned. Slims v. Sealy \[Tex. Civ. App.\] 116 SSVW 680. So long as a homestead entry

had attached prior to such selection he

valid on its face remains uncontested and

was entitled to patent. Brandon v. Ard,

uncanceled, the land covered thereby is

121 U. S. 11, 53 Law. Ed. --

withdrawn from the public domain and

20. Railway company acquired no rights

cannot be granted to a subsequent claim-

for any purpose under Act March 3, 1857 ant Jameson v. James \[Cal.\] 100 P 700.

(11 Stat. 195, c. 89), and March 8, 1865 (13

Lands upon which valid oil claims were

1 located held not to be open to public

1, 1871 (16 Stat. 585, a 144) until list of

try so that a railway company could

claim a right of vavy under Act Cong. May

retary of the interior, although list had

14, 1895, c. 299, 2, 80 Stat. 499 (U. S. Comp. St. 1901, p. 1575). Alaska Pac. Railroad &

1, 1895, c. 140 G. S. Comp.

St. 1901, p. 1575). Alaska Pac. Railroad &

Terminal Co. v. Copper River & N. W. R.

837. Homesteader who settled upon land

Co. \[C. A.\] 160 F 862.

withdrawn from entry pending determination of validity of trustees' selection of in-

disposal of the United States when it is

entered, paid for, and so certified by the

ta Railway Grant" of 1866, and made

lead office, although no patent has been

issued. United States v. Black \[C. C. A.\] 160 F 431. Upon location under soldier's

prior to his entry bewg ineffectual to re-

warrant land ceases to be part of public

domain. though no patent has been issued

and legal title is held in trust for person

who shows himself entitled to benefit of location,

although formal approval of location and issuance of patent suspended bewg ineffectual

cause of apparently conflicting assignments of warrant. Herrick v. Sargent

\[Iowa\] 117 N NV 751. One who occupied

land and enclosed it under state patent, vak

1166.

lidity of which was questioned, could maintain

element against subsequent entry-

\*man under United States homestead law,

regardless of whether he had title from the

state or not. Carmichael v. Campodloc,

7 Cal. App. 597, 95 P 164. A widow entitled as the head of a family to a league

of land made application therefor in

1834. Land was surveyed and she exercised

ownership over it but never obtained

patent. In 1850, by act of legislature, commissioner of general land office issued a

patent to her her hers. Held that act of legislature was simply confirmatory of a right

she already had. Houston Oil Co. v. Gallup

\[Tex. Civ. App.\] 109 SW 957.

19. By Act of March 3. 1863, every alternate odd section of public lands was

granted to Kansas for ald In railway con-

struction. Before state had formally accepted srant commissioner of land office in

Durusance to request by members of

consress from Kansas withdrew public lands

along presumed right of way from settlement. Plaintiff, after such withdrawal but

19. By Act of March 3. 1863, every alternate odd section of public lands was

granted to Kansas for ald In railway con-

struction.

## 8. Mode of locating and acquiring title. A. Federal lands

See 10 C. L. 1997

To acquire a valid right under the homestead law, the setiler must actually occupy the land in absolute good faith with the intention of permanently residing thereon.\[27\] Such occupation must be evidenced by those things which are essential to its beneficial use.\[28\] The physical presence of the setiler upon public lands at all times is, however, not necessary to constitute legal possession;\[29\] nor need the settling himself construct the improvements required by law.\[30\] A valid right to public lands can be initiated only by persons qualified \[31\] after compliance with all legal requirements.\[32\]

Settlement made under Act Cong. don v. Ross-Higgins Co. \[C. C. A.\] 162 F Sept. 27, 1850, c. 76, 9 Stat. 496, but aban-doned before same land was selected by railway company under Act July 2, 1864, e. 217, 18 Stat. 366, did not operate to reserve such lands from selection by company. Northern Pac. R. Co. v. George \[Vwash.\] 98 P 1126.

A. Setiler who actually resides upon public lands in Michigan were withdrawn from sale or entry pending determination whether they would be required for Indians under treaty then being negotiated. Such order was never formally revoked. Treaty was formally accepted by Indians July 31, 1856; June 3, 1856, the United States granted to Michigan in aid of railway company lands included under such withdraw-al, but company did not file map of define location until after treaty had been ratified. Held, that as before filing of map of definite location, land again became public because of designation of other lands under treaty, which lands did not include those in controversy, company's title passed under the grant and became vester in its innocent vendors. United States V. Grand Rapids & I. R. Co. \[C. C. A.\] 165 F 297.

## 11. Proof of the main results

The main result of this section is that the main result of this section is 12 Cur. Law. PUBLIC LANDS SS 3A. 1461

While a right to government land cannot be initiated by trespass,\[83\] every competent locator has the right to initiate a lawful claim by a peaceful adverse entry, although the land be in the possession of those who have no superior right to acquire the title or to hold the possession.\[34\] An occupant of government lands has a preference right to purchase when the land is placed upon the market.\[85\] As against the government, a vested easement in public lands for a canal and reservoir site cannot be acquired until the canal and reservoir have been actually completed * and the map of definite location approved by the secretary of the interior.\[37\] Final proof under a timber culture entry may be made although the statutory time for making such proof has passed.\[85\] The execution of a patent to an entryman under soldier's additional homestead law rests the beneficial title in his assignee.\[86\] Grants of public lands from the United States to a state must be construed according to their terms.\[44\]\_Railroad grants.\[See 10 C. L. 1208--The right of a railroad company to granted land vests upon the filing of the map of definite location properly approved;\[41\] its right to indeminity land vests on the approval of its selection by the secretary of the interior.\[42\] Title so acquired is subject to the condition subsequent of construct- to townsite trustee in trust for occupants from whom title might be obtained. McCo., 104 Minn. 198, 116 NVV 739.

Grath v. Valentine \[C. C. A.\] 167 F 473.

**33.** One who entered by trespass upon unsurveyed island already occupied acquired no right thereby to make home- as of date of grant upon selection only made and of lands are in fact such as were intended to pass by grant. Rejection of selected lands by secretary of interior does not operate to divest title. McKinney v.

Grath v. Valentine \[C. C. A.\] 96

Grath v. Valentine \[C. C. A.\] 167 F 473.

**33.** One who entered by trespass upon unsurveyed island already occupied acquired no right thereby to make home- as of date of grant upon selection only made and of lands are in fact such as were intended to pass by grant. Rejection of selected lands by secretary of interior does not operate to divest title. McKinney v.

Grath v. Valentine \[C. C. A.\] 96

Grath v. Valentine \[C. C. A.\] 167 F 473.

Grath v. Valentine \[C.

ing the road within the time specified by the act under which the grant is made.\[48\] The right to make selections of indemnity lands depends upon the status of the lands at the date of selection and not upon their status at the date of the grant,\[44\] unless the grant specifically provides otherwise.\[45\]

_Swamp land grants.\[See * C. L. 140E-A grant of swamp land to the state, although a grant in prasenti, does not operate to pass the legal title until such lands have been selected by the state and patents thereto delivered.\[46\]_

\_Cancellation and forfeiture.\[See * 10 C. L. 120E-Equity will exercise wide liberality in favor of one who in good faith enters the public lands with a view of making a home thereon.\[47\] A patent will not be canceled for fraud unless the evidence is clear and convincing,\[48\] and in such case only at the suit of the government by regular judicial proceedings taken for that purpose.\[49\] The right to a patent is not affected by failure to file a homesetad application within the time limited by law,\[50\] but failure to make timely entry after contest deprives the successful contestant of his priority.\[51\] Forfeiture of railway land grants for breach of condition subse 18 Cur. Law. PUBLIC LANDS SS 3A. 1463

quent can only be enforced by the United States government through judicial proceedings, or by an act of congress.\[52\] The act itself may, however, be so framed as to ipso facto work a forfeiture on breach of its conditions.\[53\] Upon abandonment of a claim, whatever rights the claimant had are forfeited and the land again becomes subject to entry,\[54\] but a relinquishment of a homestead entry, previously decided by the secretary of the interior to be valid, does not give a railroad company within whose indemnity limits such lands lie a prior right to select the same.\[85\]

\_Jurisdiction of land officers and courts.\[See 16 C. L. 1298--The land department of the United States constitutes a special tribunal vested with the judicial power to hear and determine the claims of all parties to the public land of which it is authorized to dispose, and to execute its judgments by conveyances to the parties entitled tc them.\[66\] Its ultimate decisions\[87\] are final and conclusive upon all questions of priority of entry,\[58\] character of the land,\[59\] and issues of fact,\[60\] but error in the entry when he did not make entry within 80 days, although no notice given. Howell 80 the full set of rules is 14, 1880, c. 89, 21 Stat. 140 (U. S. Comp. St. 1901, p. 1392), providing that after such, it was open to first fees the contestant shall be notified by register of cancellation and shall have 30 210 U. S. 21, 62 Law. Ed. 941.

Sq. A patent to land which the land department has the power to dispose of is stone act (Act June 3, 1878, c. 151, 20 Stat. 59 (U. S. Comp. St. 1901, p. 1545)). Howell 80 the party adjudged entitled v. Sappington, 165 F 944.

S2 Land was granted to defendant rail-vray company under Act June 4, 1893 (30 Stat. 430), and map of definite location ap-proved by secretary of interior but no part of road constructed within time limited by act. Subsequently plaintiff, under Act March 3, 1875, c. 152, 18 Stat. 482 (U. S. Comp. St. 1901, p. 1568), and Act March 2, 1899, c. 374, 30 Stat. 990 (U. S. Comp. St. 1901, p. 1581), located on same tract and had many duty approved. Held in action for injunction that forfeiture of grant by defendant for breach of condition subsequent could not be enforced by plaintiff. Spokane & B. C. R. Co. v. Washington & G. N. R. Co., 49 V.Vash. 280, 95 P 64.

S3 Act of June 66, 1906, c. 3550, 34 Stat. 482 (U. S. Comp. St. Supp. 1907, p. 553), provides that every grant of right of way over public lands to railway company under Act March 3, 1875, c. 152, 18 Stat. 482 (U. S. Comp. St. 1901, p. 1568), shall be forfeited where railroad has not been constructed within 5 years, to the extent of any portion of such road unconstructed, except where construction was progressing in good faith at the time of the approval of the act. Held that the act was in itself a legislative adjudication of forfeiture be-provenants.\[See 16 C. L. 1298--The land department of proceedings. Columbia Val. R. Co. v. Portland & S. R. Co. \[C. C. A.\] 162 F 603.

S4. Evidence that plaintiff left his claim with no one in possession, that he was absent for over 3 years, that during such time he had actual notice that another had taken possession but made no claim against him until he had erected valuable improvements thereon, held to show abandonment. Gordon v. Ross Higgins Co. \[C. C. A.\] 162 F 637.

S5. Since Act May 14, 1880, $ 1 (c. 89, 21 Stat. at L. 140, U. S. Comp. St. 1901, p. 1392), matter of law is open to inquiry. \[61\] In the absence of evidence to indicate that a matter of fact was in dispute before the land department, the rule that its decision is conclusive will not be applied. \[62\] If its decision be erroneous by reason of fraud or mistake, it may be avoided in equity and the legal title charged with a trust in favor of the rightl claimant. \[63\] The issuance of a patent or certificate of entry is an adjudication that the grantee has performed the acts necessary to entitle him to receive the patent or certificate. \[64\] Here clerical errors in its issuance may be corrected by the department provided that the patent has not been delivered. \[65\] While a controversy as to the right to a patent is pending before the land department, the federal courts will not intervene until that department has refused to act or has acted without authority of law. \[66\] (SS 3) \_B. State lands. \[67\]_See 10 C. L. \[180\]_--The state may impose conditions for the disposal of its lands, compliance with which is necessary to vest title. \[68\] It may make special agreements of sale, \[69\] and, as far as its own rights are concerned, may validate what has been irregularly done. \[70\] In Kansas school land cannot, usually be subdivided and sold in less than forty-acre tracts. \[71\] Placing lands upon attacked. Little v. Williams \[Ark.\] 113 - 66. United States v. Reese, 165 F 347. SW 340. \[60\] Finding that claimant had never been 75 A. S. R. 850. \[61\] See, also, Public Lands, Cent. Dig. # 383-turbed possession of another, held conclusive. Linebeck v. Vos, 160 F 540. \[62\] L. (ed.) 261. \[63\] A. Ayres v. U. S., 42 Ct. Cl. 385. \[64\] Other Act No. 74, p. 95, of 1892, and 62. Osborn v. Froyseth, 105 Minn. 16, 116 NUV 111. \[65\] made by state to the board of commissioning. \[66\] Hoyt v. Weyerhaeuser \[C. C. A.\] 161 F 324. Final action of the department will in present, but intended to vest in grantee not be reversed on the ground of newly- discovered evidence upon issue of fraud in \[67\] weyances executed by state auditor and making homestead entry where complain- \[68\] net had ample time in which to discover \[69\] such evidence and where no allegation of \[60\] and party attempting to purchase is \[60\] disclosure such evidence, except general \[61\] allegation of deceit. Greenameyer v. Coate, \[61\] S12 U. S. 434, 53 Law. Ed. --. \[66\] Such adjucitation has the same force as an adjucitation by a tribunal having jurisdiction and is binding as against collateral attack. Jameson v. James \[67\] and prohibltng canal commissengers from acquiring title to lands sold. People v. \[68\] delivering final receipt, and in issuing pat- \[69\]. \[60\] Where a county sold leased lands \[61\] to lessees and others acting under agreement with them, in which agreement it was stipulated that upon failure of any one of purchasers to fulfill his part of contract, option to purchase under lease should revive in favor of lessees, held that, upon default by one of purchasers, title passed nevertheless, and no right remained in \[60\] ventuished with entity it to convey \[61\] defaulting purchaser's share in violation of option agreement to purchasers other than lesees. Ellerred v. Coax \[62\] Tex. City. App. 114 SW 410. \[63\] Patent issued in 1855 calling for a boundary of 140,000 acres, not including prior surveys amounting to about 120,000 acres, held valid under Act March 9, 1863 (Laws 1868, p. 70, c. 1162), legalizing grants therefore made containing more than 200 acres. Steele v. Bryant \[Ky.\] 116 SW 755. \[64\] Gen. St. 1901, # 6346. If sold in less quantities, purchaser has burden of proving that such further subdivision was properly made by county superintendent of pub 12 Cur. Law. PUBLIC LANDS SS 3B. 1465 the market in the manner required by law is an offer by the state, and acceptance by a qualified purchaser completes the sale \[72\] though he may be required to deposit his first payment before the bids are opened.\[78\] If the sale be void, acceptance and retention of the purchase price does not oblige the state to issue a patent.\[74\] Enclosure of unsurveyed state land may give the occupant a preference right to purchase when the land is placed upon the market.\[74\] In some states a settler upon school lands must enter the land after it is opened for settlement with the intention of making it his permanent abode,\[76\] and must evidence his intention by making such improvements as are reasonably necessary for the purpose.\[77\] In Texas a purchaser of additional lands need not reside upon them in order to acquire title if he has proved a three years' occupancy of his original homestead and is then actually residing thereon,\[78\] and such residence need not be set out in the application,\[79\] but a settler upon school lands may transfer his right therein and subsequently complete the statutory period of occupancy necessary to complete title.\[80\] Title to lands to be selected by the state from the public domain vests in the purchaser as of the date of the grant to the state.\[81\] The granting of a land certificate is the granting of evilie Instruction and the appraisers. Hopper v. Nation \[Kan.\] 96 P 77. 77.

dence of a right to acquire public lands such as has always been satisfied out of lands used for locations and surveys,\[82\] and its location, if the certificate be unconditional, gives absolute title to the land.\[83\] While an award of public school lands made by the commissioner of the land office is a mere ministerial act in making sale of such lands,\[84\] such an award raises the presumption that the sale was regular.\[85\]

\_Rescisions, cancellations, forfeitures and reversions.\[See 10 C. L. 1301.--The validity of a grant from the state can then only be attacked in direct proceeding in the name of the attorney general.\[86\] A patent can be vitiated for fraud only where the fraud has been practiced upon the state or its agents.\[87\] That an award of public school lands is void because made to one not an actual settler can be set up only by one who himself has a better right,\[88\] and the burden is upon him to show that such award was invalid.\[89\] A declaration of forfeiture of school lands by the commissioner of the general land office is not conclusive as against the settler.\[90\] A certificate of occupancy of school lands issued by the commissioner of the general land office is conclusive of the question of occupancy \[81\] and settlement.\[82\] More irregularities in the entry \[88\] or mistakes on the part of the state officials will not defeat the grant.\[91\] Nor will the fact that the purchaser is prohibited under penalty from accident.\[92\]

demnation. Brigham City v. Rich, 34 Utah \[90\] 26. Zettlemeyer v. Shuler \[Tex. Civ. App.\] 130, 97 P 220.

82. Certificate granted gave right to locate upon "vacant public lands within or section in suit to try title to additional section purchased, title to which was alleged created by law." Hed that such qualification was not sufficient to entitle certificate to be located upon islands specially re-erved for state purposes. Roberts v. Terlemell \[Tex.\] 110 SW 733.

01. Act of Aug. 30, 1856, 4 Laws of Texas.

01. Publications Dig. art. 4210, requiring holders of unconditional headership certificates to return and file same before Aug. 1, 1857, ln default of which location and survey should be null and void and land again open to settlement, held unconstitution.

al as impairing obligation of contract, and would not operate to divvest title already completed according to laws in force at inception of right under certificate. Keith v. Guedry \[Tex. Civ. App.\] 114 SW 892.

84. Williams v. Barnes \[Tex. Civ. App.\] 111 SW 432.

01. Undisputed fact that state land was awarded to claimant by commissioner of general land office raises presumption that land had been regularly appraised and placed upon market. Smyth v. Saigling \[Tex. Civ. App.\] 110 SW 550. Evidence held to sustain presumption that state of decres in issuing patent examined facts and issued patent in regular course. Osecola Land Co. v. Chicago MIII & Lumber Co., 84 Ark. L, 103 SW 609.

01. Validity of grant of oyster beds could not be attacked in a proceeding for injunction to restrain trespassing. Sooy Oyster Co. v. Gaskill \[N. J. Eq. 1\] 69 A 1084.

01. Fraud upon claimant not sufficient. Hulett v. Platt \[Tex. Civ. App.\] 109 SVW 207.

01. Certificate of occupancy for 3 years precluded settler upon same land from setting up that holder of certificate was not an actual settler, such certificate being conclusive after 8 years. Williams v. Barnes \[Tex. Civ. App.\] 111 SW 432.

01. A junior grantee could not question a prior entry in ejecement on ground that entry was made in wrong county, boundary being disputed, and Shannon's Code, 8 3766, providing that when a grant from a state recites that lands are situated in one countr. when they were in a different county, grant shall be as valid as if locality were predirecting. Stockard v. McGarry \[Tenn.\] 109 SVW 507.

01. Where relator had made deposit of money with state treasurer to purchase certain school lands, application for which purchase was rejected, whereupon relator quiring land defeat a title acquired in violation of the statue." An award of school lands will not be set aside because the purchaser has acquired additional lands where it appears that the total amount acquired does not exceed the legal quantity." Abandonment operates to extinguish all the settler's rights to the land," which thereupon again becomes part of the public domain."

SS 4. _Interest and title of occupants, claimants and patentees. A. Federal lands._"" 88e 10 C. L. 1802.--Occupation and improvement of unsurveyed government land gives a valid right of possession as against every one not showing a better right by connecting himself with the government title.' By entry and payment upon lands open to settlement, the purchaser secures a vested interest in the property and the right to a patent therefor,2 and as between husband and wife, the title, when acquired, relates back to the time of settlement, and takes character from it."

made application to buy another tract for See, also, Public Lands, Cent. Dig. cash directing treasure to make up de- # 29-882; Dec. Dig. # 22-141; 26 A. & licency from money already deposited, held &, E. Enc. L (2ed.) 228, 324, 403; 17 A. & E. that mere fact that commissioner had neg- Enc. P. & P. 11, 132, 156, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 200, 211, 222, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 300, 311, 323, 324, 325, 326, 327, 328, 339, 340, 351, 352, 353, 354, 355, 356, 357, 358, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 388, 389, 390, 391, 392, 393, 394, 395, 396, 397, 398, 399, 400, 401, 402, 403, 404, 405, 406, 407, 408, 409, 410, 411, 412, 413, 414, 415, 416, 417, 418, 419, 420, 421, 422, 423, 424, 425, 426, 427, 428, 429, 430, 441, 442, 431, 443, 444, 445, 446, 447, 448, 450, 451, 452, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466, 467, 468, 469, 470, 471, 472, 473, 474 Title by patent from the United States is title by record, and delivery of the instrument to the patentee is not essential,\* but a patent issued by mistake does not give title * unless it has passed into the hands of an innocent purchaser for value.\* A patent issued on timber and stone cash entry, to one who after entry and before issuance of patent has conveyed his interest, vests title in such grantee by virtue of the deed of conveyance,\* or if the entryman die before the patent is issued, title passes directly to the heirs, who take by purchase and not by descent.\* Title to lands already patented will be declared to be held in trust for another only where he has been fraudulently prevented from establishing his right to them before the land department,\* and he must show that such right acerued by settlement * or purchase before the patent sought to be so charged was issued.11 As soon as an entryman becomes entitled to his patent from the United States, he may sell or convey the land as though the patent had been issued,12 as may an allotree of Indian lands upon selection of his allotment.13 An entryman may sue for injury to the premises,14 and, while he cannot subject the homesetad to the payment of debts contracted prior to the issuance of the patent,15 he may give a valid mortgage

site three years' residence had been com- \[sequent purchaser charged with trust in pleted, and the heirs under setter's mar- \] his favor. Campbell v. Weyerhaeuser \[C. C. raise to a second wife within such period, held that homesetad was community property of setter and first wife, although pat- \] aside in favor of one who has no equitable ent was obtained after marriage with sec- \] and wife, Creamer v. Briscoe \[Tex.\] 109 SWP 911.

4. Title held to pass although patent remained in land office. Rogers v. Clark Iron \] but had his application refused and had Co., 104 Minn. 198, 118 NW7 739.

E. Claimant applied for patent to two tracts of land and paid therefor. Land department canceled application on ground that one tract was unsurveyed. By mistake subsequently obtained by another taxle past was made out for both tracts and recorded. Held, on mandamus to compel delivery of patent, that secretary was not bound to deliver patent on unsurveyed land. Garfield v. U. S., 31 App. D. C. 338.

6. While the United States, or any party who has the equitable title under a patent, may maintain a bill in equity to set aside such patent or to declare it to be held in trust either on account of error of law, fraud or gross mistake, in the hands of an innocent purchaser for value the title under such patent is impregnable, and the United States may not maintain a bill to avoid the patent or to recover the title.

Nef v. U. S., 31 C. C. A.1 165 F 273.

7. Gilbert v. Austen, 135 WIs, 581, 116 NW7 177. One who bought under warranty deed lands entered by another under federal timber and stone cash entry act acquired all the interest the United States had to such land at time of entry, including right to bring action for timber trespass, Id.

1. Field that widow of entryman, under Timber Culture Act June 14, 1878, c. 190, 20 Stat. 113, not being an heir under Iowa laws, there being direct descendants, acquired no transferable interest as widow, no title having passed to entryman to which dower could attach. Braun v. Mathleson \[Towa\] 116 NW7 789.

1. Where complainants themselves had no right to make entry, they were not entitled to have patent declared to be in trust for them. Jameson v. James \[Cal.\] 100 P 700. Denial of application to make entry created no right in applicant to have sub- \[Towa\] 12 Cur, Law.

to cover the expense of proving up and for the purchase price.16 No community interest results to the spouses by reason of settlement on government land.17 Soldiers' additional homesetead scrip is personal property and assignable.18 Upon relinquishment and exchange of lands, the settler acquires no title until the exchange is consumulated,19 until which time his interest is not taxable.20 Land located under assigned soldier's warrant is subject to taxation from the date of entry.21 When a homesetead entry is canceled, a subsequent patentee takes the title subject to water rights which attached prior to the issue of the patent.22 One who pays money to government officials in charge of public lands in excess of that required by law cannot recover such excess in an action against the United States instituted in the court of claims.23 A townsite trustee holding title in trust for the individual inhabitants has no power to dedicate such land for street purposes.24 The general government, in dealing with its public lands, may provide for their transfer as might any other landed propriator, and make such reservations therefrom by grant, dedication or otherwise as it may see fit.24 The terms of the grant are therefore controlling on the question as to its nature and conditions.24

minates the exemption, and the proceeds Stat. 397), held assignable, although no of sale may be garnished. Ritzville Hard- entry made. Clark v. Welch \[Mich.\] 15 ware Co. v. Bennington, 50 Wash. 11, 96 Del. Leg. N. 816, 118 NW 187.

P 826. Since liability as surety on a super- 19 Under Act June 4, 187, c. 2, 30 Stat. sedes bond is a "debt" within the mean- 11-36 (U. S. Comp. St. 1901, p. 3768), auling of that clause of the timber culture law providing that land acquired thereunder of forest reserve lands and agricultural shall not in any event become liable to the settlement lands, no title is vested in the satisfaction of any debt contracted prior to the issuing of the final certificate therefor, the surv's homesetead could not be sub- 20 Lands exchanged under Act ConS. signed before issnance of final certificate.

Leman v. Chipman \[Neb.\] 117 NW 858. St. 1901, p. 1541), held not taxable by the Rev. St. U. S. c. 5, 8296 (U. S. Comp. St. 1901, p. 1398), providing that homesetead lands shall not in any event become liable to satisfaction of any debt contracted prior to issnance of patent, did not apply to execution against homesetead for judgment in action for 'assault and battery rendered subsequent to issnance of final certificate, homesetead not having a family. Shelby v. Ziegler \[Okl.\] 98 P 859.

16. Rev. St. U. S. # 2290-2296 (U. S. Comp. St. 1901, p. 1389-1393) do not pro- 22 Where homesetead permitted plain- 1917 to appropriate water from spring on giving a trust dead or mortgage upon the nnd and to construct pipe line thereofemy.

emelected lands in advance of patent or receiver's receipt, unless such incumbrance is intended as a means of transferring tl- 1917 rights rights which attached upon such 1926. Runyan v. Snyder \[Co.\] 100 P 420.

17. Mere settlement creates in the entry- 1926.

man no other rights than those given by v. Chambers \[Idab\] 98 P 415.

state or departmental rule. Delace v. Commercial Trust Co. \[Wash.\] 99 P 574.

As the government homesetead law was passed without reference to the local laws of the state regulating property rights, these apply only after the title has been vested in the entryman. Id. Where hus- 1926.

Where husband and wife settled upon land within limits of railway grant, and husband was ousted by judgment of court, wife could claim no right in property as community prior to final determination of husband's suit. Id.

18. Evidence held to show valid assignment. Rogers v. Clark Iron Co., 104 Minn.

193, 116 NW 739. Bare right of entry of scldier's additional homesetead evidenced by certificate, under Act Aug. 18, 1894 (28)
Railroad land grants.Soe 10 C. L. 1300--A railroad grant does not include in its primary limits lands occupied by settlers with the bona fide intention of acquiring title under homestead laws.27 A railroad company's right to select indemnity lands to supply deficiencies within the place limits of a government grant vests upon completion of the road, and is assignable.28

Area acquired and boundaries.8ee 10 C. L. 1303--Substantial compliance with the statute as to surveying public lands is essential.29 An individual cannot question the correctness of a United States survey where neither the general government nor the state does so,30 and as between the parties, such survey is conclusive even though incorrect.31 Where lands are granted according to an official plat of the survey,

may be asserted. Id. Under Act Cong. May (title of the town to the 4 leagues, and in 20, 1826, c. 83, 4 Stat. 179, appropriating for each fractional township, for which no land, be issued to town trustees, established title of town, regardless of whether county a certain amount of land for such purposes, the lands so appropriated were not granted directly to the township, but were to be held by the same tenure and on the same terms for the support of schools as section 16 of each township, title to which was held by the state. Black v. Chicago, B. & Q. R. Co., 237 Ill. 500, 86 NE 1045.

26. In an action for damages sustained by territory of Oklahoma against railway company for appropriation of school lands, held that as reservation of said land under Organic Act May 2, 1890, c. 182, 8 18, 26 Stat. 89, would vest title only when territory should become state, territory had no title to said land. Territory V. Choctaw, O. & W. R. Co., 20 Okl. 663, 95 P 420. An entry of public lands under Rev. St. D. S. & SS 2387 (U. S. Comp. St. 1901, p. 1457) by probate judge as townsite in trust for occupants carries title to trustees for occupants who were such at time townsite was entered. City of Globe v. Slack \[Aris.\] 95 P 126. Since the interest of the territory of Oklahoma in school lands reserved by the United States is that of a tenant at will whose term would only extend to time of admission as state, territory could only recover rental value of land appropriated to railway company and for deprecation of rental value of tract not taken for period limited by admission to statehood. Territory v. Choctaw, O. & W. R. Co., 20 Okl. 663, 95 P 420. In suit by state for injunction to restrain defendants from depleting salt beds claimed by state under government grant for school purposes, held that by clause of section 8 of enabling act of Utah (Act July 16, 1894, c. 138, 28 Stat. 109), "and including all saline lands in said state," it was intention of congress to grant 110,000 acres of land, and in addition all saline lands within borders. State v. Monetello Salt Co., 24 Utah, 458, 98 P 548. The county of Liberty, embracing a municipality to which the Republic of Texas had already granted 4 leagues of land, was organized in 1837. The town of Liberty was incorporated in 1837, and act incorporating town authorized it, in conjunction with the county, to alienate any or all of such 4 leagues, proceeds to be used in constructing public buildings. By act of congress of the Republic, commissioners of general land office were required to and did issue patents to town trustees of such 4 leagues. Field that acts of congress in recognizing in act in corporating town the 1837.

12 Cur. Law. PUBLIC LANDS SS 4A.

the plat is controlling as to area and boundaries.\[32\] Course and distance as called for by the survey yield to natural and ascertained objects.\[33\] If a grant to a railway company includes land left unsurveyed by mistake, title passes to the company, notwithstanding its subsequent survey by the government.\[34\] The locator of lands in Alaska bordering upon navigable or tidal waters acquires no title to the soil below high-water mark.\[35\] Where there is nothing in the grant of lands bordering a navigable stream indicating an intention to make any reservation or limit the grant to the water's edge, the grantee takes to the middle of the main channel of the stream \[35\] subject to the easement for the use of the public.\[37\] A meander line according to which lands upon a navigable stream are granted does not determine the boundaries of such land.\[38\] A homesteader residing upon a fractional quarter section need not limit his claim thereto.\[39\]

_Adverse possession.See S C. L. 1500.--The statute of limitations will not run as to a contested claim as long as the litigation is pending.\[40\] In order to defeat title under an older patent, the adverse claim must prove actual adverse and continuous possession within the lap of the patents for the legal period.\[41\]_

persons asserting conflicting claims under \[ not reserved, but passed with grant. John-grants or patents based upon official sur-sow, 14 Idaho, 561, 95 P 499. Title to un-vey, such survey is conclusive, even though incorrect. Barringer v. Davis \[Iowa\] 120 and not government land. Moss v. Ramsey, NW 65.

32. Since plat of survey with notes, lines and descriptions becomes part of deed where grant is made according to official plat, grant from railway company of \[lands, but at low water island formed ter-"northwest quarter and lots 1 and 2 secoding to survey." which survey showed meander line apparently coincident with \[Held in suit to quiet title to such island, shore line, carried title to all land between such meander line and true shore line. Barringer v. Davis \[Iowa\] 120 NW 65.

01. Meander corner designated as being at the intersection of the south line of the intersection of the lake is a fixed, natural mnelement which is controlling in a concurrency growing out of a conveyance according to the survey which it witnesses. Barringer v. Davis \[Iowa\] 120 NW 65.

01. Where a land grant for the benefit of railroad company has been made to the state, and the company has constructed the road according to the terms of the grant, the United States no longer retains any tl-the, and if by mistake any part of a sec-tion so conveyed has been left unsurveyed.

its subsequent survey under an order from the interior department would not have the effect of restoring such land to the public domain. Barringer v. Davis \[Iowa\] 120 NW 65.

35. One who located homestead under "Soldier's Additional Homestead Scrip Act" on bank of navigable river, and proceeded to erect fish trap extending from such claim into deep water, had no right to use shore for such purpose, and could not maintain action for injunction against one who erected another fish trap immediately above his location. Columbia Canning Co. v. Hampton \[C. C. A.\] 161 F 80. Conveyance by a townsite truste of land situated upon the public domain and purporting to extend below high-water mark gives no title to such portion as is below high-water mark, the town having no title thereto. McCloskey v Pacific Coast Co. \[C. C. A.\] 160 F 74.

01. Unsurveyed island formed at highway, not indicated by government plat, held by the United States no longer retains any tl-the

## 1472 Public lands & 4b

### (SS 4) B. State lands.

See 10. S. L. 12002.-A patent regular on its face, in proper form, is conclusive evidence of title,\[48\] and is not subject to collateral attack \[44\] unless void on its face; its invalidity can only be established in a direct proceeding by the state for that purpose.\[48\] A patent does not operate to convey title to lands inserted subsequent to its issuance and delivery.\[48\] Its loss or destruction is immaterial.\[47\] In some states where a patentee also claims adjoining lands not patented to him but having well defined boundaries and has held such lands for many years, a lawful grant will be presumed \[48\] even as against a subsequent patent to another.\[49\] The oldest of several conflicting grants carries the title.\[50\] One in possession under a contract of purchase from the state has a prior right as against the holder of ,a purchase contract not in possession.\[51\] The presumption is in favor of the senior that claimant had treated it as part of his (all land included in the grant, and that other property not sufficient in absence of actual powersion of that identical portion of land. Brown v. Wallace \[Ky.1 116 SVW then affected only to the extent to which the first patentee may be dispossessed by the junior claimant, has no application to Date. $ 383-600: Dec. Dig. $ 142-187: 26 A. & E. Enc. L (2ed.) 403; 13 A. & E. Enc. P. & P. 301.

The heirs of one who assigned certificates of sale of school lands by indorsement in which wife did not join could $ 25 SE 197.

not claim any interest as to the wife's one-third, where assignee's grantee had acquired a patent. Holland v. Netterberg (Minn.) 120 NWV 527. Where an office having authority to issue a patent, does so in the manner prescribed by law, a patent thus issued conveys to the patentee what-ever right the state has, and is good against the state and all parties not having a superior right. Hulett v. Platt (Tex. Civ. App.) 109 SWV 207.

In suit to quiet title to lands in part granted by state as agricultural and unoccupied, held that patent implied a declaration by officers of land department that facts were found in favor of patentee and that such declaration was conclusive as against collateral attack. Worcester v. Altits \[Cal. App.\] 96 P 335. An entry, although vague, is not open to collateral attack by a stranger to the title after survey and issuance of a grant by the state. Call v. Robinett, 147 N. C. 615, 61 SE 578.

Grants to railway company of strip of land under water held valid on its face and not subject to attack by an individual holding a junior patent in a suit in equity. Lally v. New York Cent. & H. R. R. Co., 61 Misc. 199, 113 NYS 177.

### 46. Dequ v. McCullough \[Ala.\] 46 S 472.

Upon delivery of deed, title is complete, and issuance of duplicate deed upon loss of original funder Kirby's Dig. 4732, does not operate as creating new grant, but is simply a substitute for original. Thornton v. Smith \[ArkT.\] 115 SWV 677.

Lands held since 1844 will be pre-sumed to have been granted as against a subsequent patent unaccompanied by entry issued in 1868. Bucker's Exr'v. Kirkland's Ekr, 33 Ky. L. R. 603, 110 SWV 399. The possession of ancestor and heir may be tacked to show 20 years possession so as to presume a grant. Bardin v. Commerical Ins. & Trust Co. \[S. C.\] 64 SE 165. The doctrine, that the effect of a grant from the commonwealth is to invest the senior patentee with constructive selfism of 12 Cur. Law. PUBLIC LANDS SS 4B. 1473 application, and a junior applicant has the burden of showing its invalidity.\[52\] Title obtained by a subsequent grantee may be declared to be held in trust for the first enterer if the latter's entry is sufficiently definite to put the subsequent enterer upon notice.\[53\] A bounty warrant,\[54\] or a land certificate issued under state authority is personal property until located,\[56\] and as such is subject to sale or seizure under execution.\[56\] A mere preference right to file upon lands is not sufficient to make homesetead community property, if wife die before such preference right is exercised.\[57\]_Area acquired and boundaries.See 10 C. L. 1904_--If the patentee intends to convey all the lands covered by the patent, a mistake in the patent as to area or boundaries does not effect the vesting of the title,\[58\] but a claim by reason of overlapping surveys confers no right unless accompanied by occupation of such interference.\[59\] A senior survey takes precedence over junior surveys as to the quantity of land covered.\[60\] It will be presumed that the original survey was made on the ground\[61\] and if the survey as called for by the patent is incorrect, other documents referred to may be - rights thereunder and land was subse- 55. Certificate issued to heirs of citizen of quently contracted to another, he could not Texas for military services passed to wife maintain eigent against latter, since legal title was not vested in him but in the force in Texas, and not according to laws state. Beatty v. Wilson, 161 F 453. One in force in Virginia where wife was doml- 55. Vhatman v. Chariton \[Tex. Civ. through a contract with the state for state's 55. Pop.\] 112 SW7 779. selection of public nonmineral lands under federal grant, which selection has been re- 55. Co. 10 C. C. A. 160 F 303. 57. One who in good faith occupied pub- 55. DoKlinney v. Carson \[Utah\] 99 he had title thereto under deed from his father, but subsequently and after death of wife discovered that he held no title, hence held sufficient to sustain finding finding for high upon land under Acts 1870, p. 68, e. 53. 53. 54. 55. 56. 57. 58. 59.

used to correct the mistake \[62\], but such mistakes cannot be set up by a subsequent enterer with notice \[63\]. Calls for natural objects take precedence over calls for artificial objects \[64\]. Adjacent surveys are admissible to identify the tract in controversy \[65\]. The specialty of an entry may be shown by connecting it with the first of a series admittedly special \[66\]. A patent from the state to lands lying between ordinary high and low water marks gives no title to the patentee \[67\], but his right as a riparian owner vests to lands bordering on a lake although according to the survey such lands are part of the lake \[68\].

_Adverse possession_. See 10 C. L. 1904.--Where the statute of limitations does not run against the state, no rights as against it can be acquired by adverse possession.66 Title by adverse possession may be acquired as against one holding a subsequently acquired patent \[60\]. The statute may commence to run in favor of one holding ad-

ground and measure and mark the lines \[as used in Rev. St. 1895, art. 3498a, declar-

may be shown. Wilkins v. Clawson \[Tex.

ing that "public school, university, asylum

and public lands," shall be open to purchase

62. Lines of survey as called for by pat-

in accordance with Rev. St. art. 34983, does

ent failed to close but lines according to

conteficate of survey did. Held certificate

connecting with gulf, and as to such lands

controlled. Hensley V. Burt & Brabb Lum-

no right of purchase applies. De Meritt v.

ber Co. \[Ky.\] 116 SWY 816.

63. Where survey by mistake made

certain lines longer than entries called and

others fell short, running on course and

distance, subsequent enterer chargeable

by

beyond low-water mark. Thereafter by

with notice ' survey as made and would

not be justified in superimposing subse-

96, c. 88, shore owners of land were granted

quent entry upon prior entries made ap-

by

state right to construct piers for out-

parent by such survey, especially after

lapse of more than 50 years. Breckenlage

such acts followed by filling in the land

Cannel Coal Co. v. Scott \[Tenn.\] 114 SWY 816.

930.

001. In order to determine location of a

certain league of land in dispute, an instruction that jury should be guided in following footsteps of surveyor, "\_first by

natural objects, such as streams and time-

ber; second by artificial objects, such as

the fixed and established line of an adjoining survey about which there is no dispute.

and then by course and distance," and that

jury must consider all the evidence and

follow actual survey as made, held correct.

Wilkins v. Clawson \[Tex. Cliv. App.\] 110

'SWY 108.

65. Tract held sufficiently identified under evidence. Sullivan v. Solis \[Tex. Cliv. App.\] 114 SWY 456.

01. Breckenlage Cannel Coal Co. v. Scott \[Tenn.\] 114 SWY 930.

01. Since on its admission as a state on

an equal footing with the original states,

Florida acquired in trust for the people the

navigable waters of the state including the

land between high and low-water mark,

the Act of 1850 granting swamp and over-

flow lands does not affect title of state to

lands between high and low-water marks,

since such title was already in state held

in trust for the public and not subject to

conveyance. State v. Gerbing \[Pla.\] 47 S

353. One who claimed title to lands lying

between high and low-water marks on a

navigable river through a feed from the

state by the trustees of the internal

movement fund based upon selection of

ewamp and overflow lands granted to state

by
Act Com. Sept. 28, 1850, c. 84, 9 Stat.

70. One who has been in possession of

land for 50 years claiming it as his own

to a well marked boundary under

619, acquired no title there as against the

general public. Id. Term "public lands"

Dean v. Dean \[Cal. App.\] 99 P 380.

versely under color of title against the holder of a land certificate on the date of the completed right to a patent.\[71\]

\_Adjudication of title by the courts.\[See 10 C. L. 1504.--The question as to location of land, entered is properly determinable in a protest proceeding.\[72\] The same rule applied in construing ambiguous language in a deed applies to ambiguous language in a patent.\[73\] The ordinary rules as to relevancy and competency of evidence apply in actions affecting title and priorities in public lands.\[74\] The certificate of the commissioner of a state general land office is admissible in evidence only as facts contained in papers, documents or records of his office, and cannot be used as evidence of any fact otherwise known to him which does not directly appear from the records of the office,\[75\] and a deed from a commissioner of state lands is prima facie evidence of title.\[76\]

SS 5. \_Leases of public lands and rights thereunder.\[77\] See 10 C. L. 1504.--A lease of Mississippi sixteenth section school lands for ninty-nine years carries with it as full complete ownership as though the title was in fee simple for that period.\[78\] In order to acquire preferred rights to lease school lands, the claimant must be a bona fide settler or occupant and must have placed upon the land permanent improvements which have enhanced its value.\[79\] Leased lands are not open to settlement,\[80\]

71. Swamp and overflow land granted by congress to state under Act Sept. 28, 1850, general land office purporting to show that c. 84, 9 Stat. 519, being a grant in present, slacken was a "true and correct copy from passed equitable title to state and issinance of certificate thereafter to appellant's an-escator passed equitable title to him with this office" not admissible as proof of achegal title held in trust by state. Field that when grant to state was subsequently confirmed in 1859, ancestor's right to pATH from face evidence of title only. Allen v. of statute in favor of adverse holder. Hib-Philips \[Ark.\] 112 SWV 403. Deed of commisioner of state lands conveyed no title 72. VMene defendants made entry upon a upon proof by defendant that sale was not oertain island claiming that it was located in New Hanover county, and plaintiffs entered their protest claiming that island was noerchange of title from the state, but such grant thereof as being in that county, the issue as to which county contained the forfeiture of the land or title thereto in the protest proceeding. Ullery v. Guthrie, 148 N. C. 417, 62 SE 552.

01. Hensley v. Burt & Brabb Lumber Co. \[Ky.\] 116 SWV 316.

01. Where plaintiff claimed title to unevaluated lands entered by his grantor in 1857 under certificate of sale from county not reciting payment, and same land was subsequently patented to defendant's remote grantor in 1859, evidence consisting of treasurer's receipt to plaintiffs grantor in payment for lands not described held insufficient to warrant finding that lands sold by county to persons named in receipt were the lands described in certificate to plaintiff's grantor. Phillips v. St. Louis Union Trust Co., 214 Mo. 669, 113 SWV 1065. Payment of taxes for a number of years is evidence that the state has parted with its title. Bardin v. Commercial Ins. & Trust Co. \[S. C.J. 64 SE 166. Paved evidence held proper to locate an entry described as "beginning at R. W's corner and running S. 70 degrees E. 161 chains to S.'s corner, whence N. 20 degrees E. 27 chains to H.'s corner, thence N. 59 degrees W. 152 chains to D. W.'s corner, then S. 32% degrees W. 52 chains to first station." Babb v. Gay Mfg. Co. \[N. C.J. 63 SE 609.

but where the lease is invalid it furnishes no obstacle to an award. \[81\] Whether the lease has been informally canceled is a question for the jury. \[82\]

SS 6. \_Spanish and other grants antedating federal authority. \[83\]_Bee s C. L. 1503_

In order to derive title to land granted under Spanish authority, such grant must be shown to have been perfect and complete. \[84\] A complete grant will be presumed from long continued possession, \[85\] and title thereunder may be registered. \[85\] A confirmation of an entire grant is a confirmation of all its parts. \[87\] Where the United States brings suit in the court of private land claims to try title to lands included in an unconfirmed Mexican grant, lands patented by the United States to others prior to such suit cannot be excepted from the decree of confirmation, \[85\] and the grantee obtains complete title to such lands notwithstanding the prior patent. \[85\]

perform an original act of entry notwithstanding that, with lessee's consent, he has already entered upon land and erected improvements. Clapper v. Skeen \[Kan.\] 99 P Spain as existing before treaty of Paris-590.

81. In suit to try title between lessee of owner. Carino v. Insular Government, 212 public school lands and holder of award of same lands, it appeared that land in-choted lands previously leaseed, which lease would raise the presumption that a Spann-Island grant made in 1728 was confirmed purely canceled for nonpayment of rent \[N. M.\] 98 P 170.

lease. Buchanan v. Barnsley \[Tex. Civ. App.\] 112 SVV 118. Heeld that first lease was valid when 10-year lease was executed and latter consequently void and no ob-stacle to an award made during period of lease. Id. After the existence of facts justifying the cancellation of a lease of public school lands is shown, a stranger to the lease cannot interpose it as a defense to the right of the state to make an award of the land. Trimble v. Burroughs \[Tex. Civ. App.\] 113 SVV 551.

82. Where it appeared that the rent un-der lease of school lands was more than 60 days over due and that one of joint lessee's had relinquished his rights and the other knew that commissioner had again placed land upon market, a finding of informal cancellation was authorized. Trimble v. Burroughs \[Tex. Civ. App.\] 113 SWV 551.

01. Search Note See Public Lands, Cent. Dig. 13 601-730; Dec. Dig. 13 188-229.

01. In suit for ejecment plaintiff traced title to grant made in 1728 by governor and captain general of New Mexico, which grant had not been confirmed by the United States. By the royal regulations of the King of Spain, Oct. 15, 1752, 3 3. it was provided that all persons holding grants made after 1700 A. D. should present such grants for confirmation, a failure to do which would result in eviction. It did not appear that grant under which plaintiff claimed had been so confirmed. Held such grant was imperfect because of lack of confirmation and conveyed no title to plaintiff, since recognition of imperfect grants is forbid-den by 12, Act Cong. March 3, 1891 (c. 539, 26 Stat. 859 \[U. S. Comp. St. 1901, 771\]).

01. A native of province of Banguet, P. I., who was in possession of land held by him and his ancestors for more than 50 years prior to the Treaty of Paris, 1899 (30 Stat. at L. 1754), although his title had not been recognized formally by Spanish Crown, held 12 Cur. Law. PUBLIC LANDS SS 7. 1477 SS 7. \_Regulations and policing, and offenses pertaining to public lands. \[50\]_See_ 10 C. L. \[180\]\_The exercise of the power of the federal government to make all needful regulations concerning the public domain cannot be in any degree restricted by state legislation. \[91\] The government may enjoin unlawful flooding of the public domain. \[92\]\_Cutting timber on public lands. \[56\]_See_ 10 C. L. \[180\]\_The official approval of the board of timber commissioners is a jurisdictional requirement to make valid a permit to sell state timber. \[93\] One who unlawfully cuts state timber is liable to the government for the value thereof. \[94\]\_Crimes and offenses against public lands. \[95\]\_An entryman under the stone and timber act who makes a false affidavit that he has entered into no agreement to acquire title for another is punishable although no such agreement was ever consummated in fact, \[96\] and although the affidavit relates to the land alone and not to the timber, \[97\] but if it is so palpably invalid that it cannot under any circumstances prejudice the government, it will not support a conviction. \[98\] It is no offense against federal law for an entryman who in good faith has made application under the stone and timber act to contract to sell his rights thereunder. \[99\] One who has already made an entry violates the statute if he attempts to acquire additional lands through one not disqualified, although the statute does not in terms forbid it. \[91\] An 1990. Search Note: See Public Lands, Cent. sell his rights to a company, he was guilty Dig. $ 7-25; Dec. Dig. $ 6-21; 26 A. & E. Enc. L. (26d) 452; 17 A. & E. Enc. P. & P. 134. Although the state allows cattle to run at large and requires every landowner to fence his own land, it cannot impose such duty upon the federal government as to St. 1981, $ 1, 20 Stat. 89 U. S. Comp. St. 1901, $ 1451\], making such lands sub-Shannon v. U. S. \[C. C. A.\] 160 F 870. 92. Unauthorized use by private parties of government and as reservoir for irrigation and power purposes enjoined at suit of federal government. United States v. Rickey Land & Cattle Co., 164 F 496. 98. Under Laws 1895, p. 849, c. 168, providing for sale of state timber, held that jurisdictional requisite that majority of board of timber, commissioners officially sign a statement endorsed upon appraisal of timber proposed to be sold, that sale necessary to protect state from loss, was substantially compiled with. State v. Akeley Lumber Co. \[Minn.\] 119 NW 87. Permit to sell state pine timber held to include "dead and down" timber and jack pipe. Id. \[94\] Where the employee of a lumber company made homestended entry with money furnished by the company and thereafter on previous agreement denuded land of timber which was sold to company after which claim was abandoned, held that company was liable to government for full value of the property. United States v. Flint Lumber Co. \[Lark.\] 112 SW 217. 95. See 10 C. L. 1306. See, also, Perfury, S. Ch. 1244. 96. Section 2 of Act June 3, 1878 (20 Stat. 89, c. 151 \[U. S. Comp. St. 1901, p. 1545\]), requires entryman on making application to make death that he has not made any agreement or contract directly or indirectly by which title shall inure to the benefit of any person but himself. Hold that where an entryman made contract prior to his application for timber entry that he would disqualified, such acquisition held in vio indietment need only inform the defendants of the nature and cause of the accusation against them and must allege the facts so as to protect them after verdict against any further prosecution for the same offense.2

_Fencing_,See 10 C. L. 1806--A lease containing a covenant for the unlawful fencing of a part of the public domain is invalid although the statute does not in terms avoid such contract.3 Enclosure of public lands by a bona fide settler is not unlawful.4

Footnote 3: The author is grateful to the anonymous 12 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 2. 1479

validity of provisions peculiar to contracts of this kind are treated herein, matters pertaining to the making and validity of public contracts in general are excluded.\*

Liability for personal injuries resulting from negligence in the construction and maintenance of public works is also excluded.10

SS 2. \_Power, duty and occasion to order: or make improvements.11--See 10 C. L. 1807--Municipalities have only such powers with respect to the ordering or making of improvements as are expressly or impliedly conferred by statute.12 Statutes conferring such powers must conform to constitutional requirements.12 The determination of the necessity, time, place and plan of public improvements is vested exclusively in the legislative body of the municipality,14 and the exercise of such power is discretionary and final15 and will be interfered with by the courts only for an abuse of discretion or fraud.16 Legislative functions delegated to municipalities cannot be delegated by them,17 but mere matter of detail may be delegated.18 A city in proceeding under a statute providing for public improvements is acting under special powers conferred and must comply with the requirements of the statu-

9. See Public Contracts, 10 C. L. 1285; 144. Question of necessity and propriety Building and Construction Contracts, 11 C. L. 1464.

1. See Negligency, 10 C. L. 922; Municipal Corporations, 12 C. L. 905; Independent Contractors, 11 C. L. 1896.

1. Search Note: See notes in 61 L. R. A. 76; 3 Ann. Ca. 676.

Note, also, Municipal Corporations, Cent.

12. Act 1889, authorizing cites of over 100,000 population to construct outlet seven-ers, applies only to such cities, and not to villages. Village of Brookfield v. Pabst, 235

01. S55, 85 NE 618. Memphing city charter (Acts 1879, pp. 16, 98, amended by Acts 1887, p. 394), authorizing the city to comb-pel property owners to build sidewalks, confers power on the city to provids by ordinance for building of gramolith walks by owners. Offaver v. Montgomery (Tenn.)

131 SWV 449. Power of a village under the village law to construct a sewer at its own expense is not abridged by orders of board of health under Laws 1893, p. 1519, a. 661, SS 72. Mead v. Turner, 60 Misc, 145, 112 NYS 127. Under Milwaukee city charter, c. 7, 12, amended by Laws 1898, SS 859-35, the board of public works held authorized to order a street paved without patiition of owners, and to assess costs against abutting owners. Loewenbach v. Milwaukee \[Wis.\] 113 NWV 888. Under such statutes, held also that the board has power to order reguering of street without petition. Id. Key. St. $ 449, providing that a city may order improvement of an entire street, but not less than a block, does not apply to reconstruction of an improvement. Nickels v. Frankfort Coumilment, 33 Ky. L. R. 918, 111 SWV 706. Acts 1908, p. 166, c. 10, providing for grading and paving of streets in cities of the first class, is valid. Oklahoma City v. Shields \[Okl.\] 100 P 559.

Incorporated cities and towns have no power to compel property owners to construct gutters. Brizzolara v. Ft. Smith \[Arlt.\] 112 SWV 181.

13. Local Actu 1907, p. 138, No. 411, creating board for directing local improvements, held void as not indicating its provisions in the title. McDonald v. Spring-wells, 152 Mich. 28, 15 Det. Legs. N. 86, 115 NWV 1064.

01. Question of necessity and propriety of making an improvement is for exclusive determination of city council, Applegate v. Portland \[Or.\] 99 P 89. Until that body has acted, the city has not acted. That abutting owners have constructed sidewalks does not prevent the city from ordering videunks the cost to be taxed against abutting property under statutory authority. Guilloyle's Exr'v v. Mayaville \[Key.\] 112 SWV 66. Under Burns' Ann. St. 1908, 100,000 population to construct outlet seven-ers, applies only to such cities, and not to villages. Village of Brookfield v. Pabst, 235

01. An ordinance for an improvement will be declared void for unreasonableness only when clearly arbitrary, adjust and oppres-sive. City of Chicago v. Hubert, 234 Ill. 321, 84 NE 922. Evidence insufficient to show that a sidewalk was unnecessary. City of Chicago v. Marsh, 238 Ill. 254, 87 NE 319.

01. City of Chicago v. Hubert, 234 Ill. 321, 84 NE 922. In determining what is reasonably necessary in making a public improvement, "necessary" does not mean indispensable, but includes whatever is appropriate or convenient to render improvement effective. Meriwether v. St. Francis Levee Dist. Directors \[IC. C. A.\] 165 F 817.

01. Under Kansas City charter, art. 9, 8 2, providing for construction of sidewalks to such extent, in such manner, and under such regulations as 1480 \[ PUBLIC WORKS AND IMPROVEMENTS SS 3. 12 Cur. Law.

**ute,1* and must exercise powers conferred in such manner as to protect property rights of individual citizens.\[20\] Only such questions as go to the jurisdiction to make improvements can be raised in a suit to enjoin the improvements.\[21\]*\*

SS 3. \_Funds for improvements and provision for cost.\[22\]\_See 10 C. L. 1308_The power of a municipality to provide for the cost of public improvements and the method to be pursued in making a particular improvement, are controlled by fundamental law and legislation pursuant thereto.\[23\] Thus, according to the statute applicable, the cost may be borne by the municipality \[24\] or defrayed by the issue of bonds\[25\] or special assessment against property benefited,\[26\] but the liability of owners

**19. Must pursue with strictness all con-**

Lawe 1905, p. 1821, c. 646, no less county's ditmos precedent. City of Jackson v. WIL-\*\*

obligation because of ultimate reimbursement by assessments. Id.

nicipality relative to compelling owners to

\*\*24. Under Hurd's Rev. St. 1908, c. 42, construct sidewalks should be strictly

SS 116, providing that commissioners of

dranage district shall make all necessary

of the citizen, but the general welfare and

prologes and culverts over highways, etc.,

convenience of the public should also

the expense thereof must be borne by the

be considered. O'Haver v. Montgomery

drainage district. People v. Gungenhauser,

\[T'enn.\] 111 SWV 443. Rev. St. 3786, pro-

237 Ill. 262, 86 NE 669. Laws 1907, p. 124,

viding that no land shall be purchased on

acount of the United States except under

law authorizing purchase, should not be

construed to apply to executed contracts

so as to defeat title of the United States

because of erroneous statement of date of

to land it has paid for and an act authorizing

resolution of estimate authorizing improvement. In re Lochitt, 58 Misc. 5, 110 NYS

money therefor is sufficient authority for

32. Not void as impairing vested rights of

the purchase of the land necessary for the

the city to assessment. Id. Under. St.

improvement. Burns v. U. S. \[C. C. A.\] 180

1898, **SS 905**, 911, 912, held a village board

**F 621**

could authorize street commissioner to hire

men and teams to repair street and defray

a culvert would throw snrface water on

expense thereof from general fund. State

adjacent land, and the municipality, though

v. Vallshaeger, 187 Wis. 136, 118 NNV 643.

favorable to construction of culvert, gave

no assurance of their construction, it was

straction of bridge, record should show

proper to enjoin such construction as a condition to completion of the improvement. DIIV v. Henderson \[Iowa\] 118

NNV 750. On refusing to enjoin a con-

trader from pawling part of a right of way

of a railroad company long used as part of

a public street, held, the order should

vide that the improvement should not give

to the city or the public any title' or interest to the land that will obstruct the

company in the use of its right of way, or

impair its title. Atching, etc., Co. v. O'Leary \[Kan.\] 100 P 628.

21. All questions triable on appeal or by

a particular rrbunnal must be atrted, and

not by injunction. Martinable v. Roche

ter \[Ind.\] 86 NE 321. Irregularities will

not invalidate proceedings for street improvements though they relate to acquiring

of jurisdiction. Id.

22. Search Note: See Municipal Corporation, Cent. Dig. **SS 1758-761**, 818, 1899, 1901,

2039; Dec. Dig. **SS 288**, 306, 911, 962.

23. Laws 1907, p. 124, c. 91, providing for

expense of widening L. street in theborough of Brooklyn, does not embrace more

tflan one subject expressed in its title. In re Lochitt, 58 Miles. 5, 110 NYS 82. Con-

struction of sanitary trunk sewer under

Laws 1905, p. 1621, c. 646, not violative of

Const. art. **SS**, 1 10, prohibiting indebtedness

except for county purpose, where present

facilities inadequate, and majority

of unity's inhabitants benefited. Horton v.

Andras, 191 N. Y. 231, 83 NE 112b. Debt for construction of sanitary sewer under

the balance of knownness. Mead v. Turner,

60 Misc. 145, 112 NYS 127. See, also, Mu-

nicipal Bonds, 12 C. L. 897.

z.e. Under Ann. St. 1906, pp. 2962, 2967,

relative to improvements by cities of the

third class and payment of the cost thereof,

where a resolution declared an intention

to pave between the curbs, and the paving 12 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 3. 1481

for improvement of an adjacent street is strictly statutory. \[27\] Some of the usual statutory limitations as to funds for improvements are that they must be provided before the indebtedness is incurred. \[28\] Submission to popular vote, \[29\] and limitation as to amount of indebtedness \[30\] or value of the property benefited; \[31\] but such limi-

In excess of amount raised for that purpose bllle. Muff v. Cameron \[Mo. App.\] 114

from issue of bonds is not void for want of SVV 1125. Until property once bears the cost of paving done on order of the city

make such contract after having undersecounich, there has not been an original

timated amount of money needed. Id. Orchestration of a payment within a

distance appropriating private property for statute authorizing such cost to be

building of dike is an ordinance for the taxed against abutting property. Guilla

expenditure of money, and is void if no certificate has been previously filed and re-

force when the work was done, and if no

blability then existed the legislature can-

not create one. City of Lexington v. Wal Wal

nicipality from proceeding in probate court

to assess compensation to landowner for

city, pursuant to authority, adopted an

land appropriated. Hurst v. Belle Valley,

dinance for paving of streets with brick,

except that designated portion was to be

paved with crushed rock, and after the

contract was let, the contractor was

authorized to pave the entire street with

not void because in preparing the ballots

brick, and after completion of the work an

ordinance was adopted providing for the

improvement as completed, held, the contractor was not complied with, and abutting

owner's were not liable. Id.

28. Certificate of clerk of municipal corporations given under Rev. St. 1898, & 2702, as to amount of fund on hand to be used

in paying the contract, is a limitation on

the amount to be paid, beyond which the

municipality is not liable. Village of Car

change v. Diekmezer \[Ohi\] 87 NE 178. Certificate of clerk of municipal corporation at

time of execution of a contract for an im-

provement held not to comply with Rev. St. 1898, & 2702, in not stating that a specified sum required from improvement was

in treasury. Id. Under Detroit city charter providing that no contract for public

work shall be let until approved by con-

cl, and no warrant shall be drawn on

transury until money is in the treasury to

pay for work, held mandamus would not

lie to compel issuance of a warrant where

the charter provisions had not been complied with, Garner v. Doermus \[Mich.\] 15

Det. Leg. N. 785, 117 NWV 748. St. Louis

charter (Ann. St. 1906, p. 4889), providing

that every ordinance for public work shall

contain a specific appropriation, does not

apply to emergency work which need not

be ordered by ordinance. Khema v. St.

Louis, 213 Mo. 538, 112 SWV 259. Under

Const. art. 11, & 5, where no provision is

made to pay the contract price of work,

the contract is uneforceable, and a tax

leveled prior to execution of such contract,

but not in contemplation of the improve-

ment, and transferred to the general fun.

cannot be looked to. Ault v. Hill County \[Tex.

Civ. App.\] 11 SWV 425. Failure of auditor or

clerk to first certify that money necessary

to meet obligations assumed under contract

ract is in treasury to credit of fund from

which it is to be drawn, or has been lveld

and is in precesse of collection and has not

been appropriated for any other purpose,

renders the contract vold under Rev. St.

$ 2702 (1526-205). McAlexander v. Havil

land Dist, ? Ohio N. P. (N. S.) 590. Con

tract for buliding of school house at cost

in the excess of amount raised for that purpose

bllle. Muff v. Cameron \[Mo. App.\] 114

from issue of bonds is not void for want of

sVV 1125. Until property once bears the

authority on part of board of education to

cost of paving done on order of the city

make such contract after having undersecounich, there has not been an original

timated amount of money needed. Id. Orchestration of a payment within a

distance appropriating private property for

suitable of dike is an ordinance for the

taxed against abutting property. Guilla

expenditure of money, and is void if no certificate has been previously filed and re-

force when the work was done, and if no

blability then existed the legislature can-

injunction will be granted restraining mu-

not create one. City of Lexington v. Wal

nicipality from proceeding in probate court

to assess compensation to landowner for

land appropriated. Hurst v. Belle Valley,

11 Ohio C. C. (N. S.) 285.

29. Election submitting to voters the

question of incurring indebtedness for the

purpose of constructing public utilities is

not void because in preparing the ballots

the words "Yes" and "No" were placed un

der the square instead of to the left of

them as required by statute. State v. MII tation may be exceeded if owners desire to pay the extra cost.\[32\] Some statutes provide that before money can be borrowed to defray the expense an estimate of the cost should be made.\[33\]

SS 4. _Proceedings to authorise or validate making. A. In general.\[34\]See 10 C. L.\[1209\]_

(SS 4) _B. By whom and how initiated.\[35\]See 10 C. L.\[1309\]_-In some states, certain improvements must be initiated by submission to popular vote.\[38\] Initiatory steps by municipal legislative bodies must be taken in the manner prescribed by statute or charter,\[37\] but where a council acts under authority conferred upon it, it is no objection that in conducting proceedings it failed to conform to by-laws prescribed by itself to carry into effect the powers conferred.\[38\] The ordinance providing for the improvement must be passed in the manner required by law,\[39\] and it

of improvements under Laws 1903, p. 121.

name, and ordinance providing for gradc. 82, authorizing cost of improvements to

ing does not authorize paying. Where be based on last valuation of abutting

paying is done, the benefit thereof cannot property, a contention that there had been

be assessed against abutting property. no valuation held erroneous where the

Burnett. Boonton, 74 N. J. Law, 467, 70 A

property had been taxed for general taxa-

67. Under Buffalo City Charter, $ 288, pro-

tion. Id. Where ordinance authorizing

invorements pursuant to petition was

sidewalk only on direction by resolution of

passed shortly after petition was filed, and

city council, held, construction of new con-

was based on a valuation placed on the

crete walk in place of a plank one was not

property between filing of petition and

the repair of an old walk and the commis-

passing of the ordinance, the last valuation

was held to control in fixing the assess-

ment. Id. Burns' Ann. St. 1908, $ 8710,

prohibiting contracts for street improvevances in cities of first, second or third

of sidewalk as distinguished from reconc-

classes the total cost of which exceeds 50

struction involves neither change of mater

per cent of the value of the property,

piles only to cities named, and not to towns

Id. The words "laying" or relaying" of a

which are governed by Burns' Ann. St. 1908,

$ 8959, Acts 1905, p. 288. Marindale v.

Rochester \[Ind.\] 88 NE 321.

32. Under Milwaukee Charter, c. 7, $ 2,

6, and Laws 1898, $ 959-35, amending the

in chatter, property owners may, after limit of

expense prescribed has been reached, secure

a more expensive payment than that the

city proposes by paying extra cost. Lowen-

bach v. Milwaukee \[Wis.\] 119 NW 888.

\*\*33. Under Comp. Laws, $ 2893, providing

that before money shall be borrowed for

construction of waterworks the council

shall cause to be made an estimate of ex-

pense, held, where an estimate was made

by the city engineer, but no special action

was taken thereon by the council, subse-

quent proceedings, as well as election proceedings, which followed, were

v. Bellaire, 153 Mich. 560, 15 Det.

Leg. N. 584, 116 NWV 1066. Such statute

does not authorize borrowing of money to

maintain water works. Id.

34. Search Note See Municipal Corporations. Cont. Dig. $ 762-849; Dec. Dig. $ 289-325; 13 A. & E. Enc. P. & P. 298.

**35. Search Note:** See notes in 11 L. R. A.

(N. S.) 372.

See, also, Municipal Corporations, Cent. Dig. $ 768-775, 800-849; Dec. Dig. $ 291-293; 299-325.

\*\*36. Under Henderson Town Charter, $ 6,

9 (Laws 1901, p. 220, c. 97), a general

scheme for paving sidewalks and streets of

a town must be submitted to voters. Commissioners of Hendersonville v. Webb & Co., 148 N. C. 120, 61 SE 670.

ST. Where, under a town charter, street improvements can only be made by ordinance

by
ordinance, and ordinance providing for gradc-

, being does not authorize paying. Where

by

passed by municipal legislative bodies must be taken in the manner prescribed by

to
v. Bellaire, 153 Mich. 560, 15 Det.

(SS 4) _B. By whom and how initiated.\[35\]See 10 C. L.\[1309\]_-In some states, certain improvements must be initiated by submission to popular vote.\[38\]Initiatory

steps by municipal legislative bodies must be taken in the manner prescribed by

stutute or charter,\[37\] but where a council acts under authority conferred upon it, it

is no objection that in conducting proceedings it failed to conform to by-laws pre-

scribed by itself to carry into effect the powers conferred.\[38\] The ordinance providing for the improvement must be passed in the manner required by law,\[39\] and it

of improvements 18 Cur. Law. Public Works and Improvements $ 4B. 1483

must conform to charter provisions.40 In some states, where owners petition for an improvement, no legislative action of the council is required.41 An ordinance for paving may establish the grade or change the width of the street.42 An ordinance is not void because of surplusage contained therein,48 and partial invalidity may not render it wholly void.44 An ordinance providing for an improvement is not vitiated, by a subsequent ordinance changing the plan of the improvement.45 In some cities, abutting owners may be required to construct sidewalks.46 Where an ordinance is passed requiring owners to lay walks, failure to comply within the period prescribed amounts to a refusal 47 and authorizes the city to proceed with the improvement 48 and collect the cost thereof from abutting owners.49 Elsewhere, the failure to comply with such mandate subjects the owner to penalty.50

involving a certain amount to be published, etc., where the proceedings were not pub-Iished the ordinance was void. Village of Held not fatally defective because it con-Ishred o v. Lartobe Steel & Coupler Co., aimed no $ 2, as such reference might be stricken and a sufficient description re-man. City of East St. Louis v. Davis, 233. than $100,000, without imposing any penal-II. 553, $4 NE 674.

44. Invalidity of ordinance requiring own-from and after its passage, heid not within erts to construct sidewalks, curbing and Hurd's Rev. St. 1908, 24, $ 517, or $ 64, equiring publication, but within the pro-Islade it as to the other improvements.

vision declaring all other ordinances shallBrizzolara v. Ft. Smith \[Ark.\] 112 SWV take effect from their passage, and a publ-Ishred o that two months after its passage is sufficient. Village of Downers (the city, on his failure to do so any de-An ordinance directing an improvement is valid though passed at only one meeting of I did not affect his liability. Gregg v. the council, where all members voted for it Stuttgart \[Ark.\] 115 SWV 394.

45. Where an ordinance authorized con-SWT 319. Under Rev. Codes 1905, $ 2658, providing that the mayor shall have power for widening it, and subsequently the council passed an ordinance abandoning the council, held, a resolution providing that certain streets should be reaped is of legislative character and subject to veto.

State v. Duis \[N. D.\] 116 NWV 751. See, also, Municipal Corporations, 12 C. L. 905, 109, 94 P 1075.

46. Ordinance requiring owners to construct sidewalks, curbing and gutters held p. 1723, c. 805, providing for ordering of having of sidewalks by resolution of com-mon council, heid, an ordinance in conflict with the charter was void. Morey v. Buffalo, 59 Mixe. 603, 111 NYPs 463.

01. Under Wilson's Rev. & Ann. St. 1903, $ 444, where a majority of property owners on any street petition for paving, no resolution or notice of intention to pave is necessary, and it is not necessary that 10, will not preclude recovery by the city.

such improvement be directed or made un-der ordinance. Paulsen v. Eelen Reno \[OKL.\] 68 SE 363.

98 P 958. Where the council acquired jurisdiction by petition, any irregularity sub-not essential to recovery by the city, such sequently occurring will not be ground for an adjoining the improvement where there is no fraud and the complaining party has sustained no special injury and stood by $ 26 SE 363.

and never protested until the work was partially completed. Id.

42. Ordinance providing for paving is not void because it establishes for the first time, or changes the grade of a street or width of a roadway. City of Chicago v. Hulbert, 234 Ill. $21, $4 NE 922.

01. Ordinance for construction of sewers in one section described the sover drainage district, and in another section declared (Tenn.) 111 SWV 449.

1484 PUBLIC WORKS AND IMPROVEMENTS SS 4B. 18 Cur. Law.

An ordinance providing for an improvement must be consistent with the resolution authorizing it, and, since it forms the basis for the contract, must be more particular than the resolution, and must specify the details of the work and materials to be used. \[31\] The ordinance must properly describe the character and location of the proposed improvement \[82\] and materials to be used, \[83\] and describe the improvements therein proposed \[84\] usually by plans and specifications therein contained \[85\] or referred to, \[86\] but impracticable exactness in specifications is not required. \[87\] In some states it must prescribe the period within which the work must be/completed, \[86\] but this requirement is not universal. \[88\]

51. City of Chicago v. Gage, 237 Ill. 328, 86 NE 638.

01. The ordinance providing for the improvement must specify its locality as well as describe and specify its nature. People v. Willison, 237 Ill. 584, 86 NE 1094. A resolution of intention to make improvements need only be sufficiently specific to inform the public of the general nature of the improvement, and need not give a detailed description thereof. Muff v. Cameron \[M. App.\] 114 SW 1125. An ordinance which requires property owners to lay "granolithic" walk on a street on another portion of which such walk is already laid, and requiring the walk to be of the same width as that already laid, is sufficient to justify recovery of the cost thereof on default of the owner to lay the walk, though it does not specify material used. City of Bluesield v. McClaugherty \[V. Va.\] 68 SE 362. Under Hurd's Rev. St. 1908, c. 24, requiring sidewalk ordinance to define the location with reasonable certainty, describe its width, etc., no more certainty is required as to location than is required and held to furnish sufficient information as to other participants. People v. Willison, 237 Ill. 584, 86 NE 1094. On fixing of an improvement, a surveyor must look not only to the ordinance but also to maps and plans made part of the record, and may also look to monuments, but can-not use them to contradict the ordinance.

Id. On a claim that an ordinance providing for a sidewalk was vold for uncertain-system, with specifications, etc., does not try as to location of the walk, owners held \[M. App.\] 114 SW 394. On fixing of an improvement, a surveyor must look not only to the ordinance but also to maps and plans made part of the record, and may also look to monuments, but can-not use them to contradict the ordinance.

Id. On a claim that an ordinance providing for a sidewalk was vold for uncertain-system, with specifications, etc., does not require that map or plan embrace every material be stored by the final resolution. Marthalae v. Rochester \[M. App.\] 114 SW 1125. Order requiring owners to display blank walks in accordance with plans and specifications to be furnished by the city engineer constructed, as referring to specifications already made and on file, and is sufficient. City of Cluefield v. McClaugherty \[V. Va.\] 63 SE 363. Under Ann. Code 1892, 81 3011, 3012, an ordinance for an improvement must definitely describe it, or to refer to plans on file which will give the information. City of Jackson v. Williams \[Miss.\] 46 S 561. Ordinance for sidewalks held bad for insufficient description of proposed work. Id.

57. Estimate for sewage system descr 12 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 4C. 1485

Where a petition by property owners is required," it must be signed by the required number of owners " or persons authorized to sign." Where a petition is signed by the requisite number of owners, the fact that it contains an illegal condition does not render it void." That a city charter confers power on assessors to determine whether a property owner's petition is a majority one or not does not preclude the council from prescribing the form of petition," and a charter provision whereby the finding of a city council that a proper petition for the public work has been filed is rendered conclusive is not a denial of due process of law, though such finding is made without notice." In some states the determination of the sufficiency of such petition is for certain boards," which have no authority to determine questions of law as to the form of the petition."

(SS 4) C. Notice and hearing." See 10 C. L. 1311.-In the absence of statutory mandate, notice of a proposed improvement to owners of property affected is not es * 1486 PUBLIC WORKS AND IMPROVEMENTS SS 4D. 12 Cur. Law.

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  12 Cur. Law. PUBLIC WORKS AND IMPprovements SS 5. 1487

It is sufficient if it contain the substantial component elements. \[80\] Such estimate must conform to statutory requirements. \[81\]

(SS 4) _F. Approval and acceptance of work._\[82\] See * C. L. 181--Acceptance of the work by city officials is conclusive on the property owners. \[83\]

(SS 4) _G. Curative legislation and ratification._\[84\] See * D. C. L. 1811--A city may validate a contract for the construction of an improvement by ratification after acceptance of the work. \[85\] In Illinois the county court has no power to confirm a void ordinance for an improvement. \[88\]

SS 5. _Proposals, contracts and bonds._\[87\] See * D. C. L. 1811--A contract for a public improvement must be entered into by the duly authorized officials of the municipality, \[88\] and where a city asserts that officials were without authority, it has the burden to prove it. \[89\] Persons dealing with public corporations are charged with notice that officials thereof have only the authority conferred upon them by law. \[80\] In the absence of a charter provision, a city may contract for extra work without first making a specific appropriation. \[81\] A municipal board, in making a contract for the creation of a municipal building, acts as agent of the municipality, and its contract is the contract of the municipality. \[82\]

\_Advertisements for bids and awarding of contract.\_See * D. C. L. 1811--As a general

- 80. An estimate for "constructing one new catch basin at $50," and statement that it included labor and matrials, and also contained an item for "adjusting sewers, catch basins and manholes, $485," held a sufficient compliance with an ordinance re-equiting that the basin be built of brick on a two inch plank, etc., City of Chicago v. Gage, $27 III. 328, $6 NEW 633.
- S1. Under Starr & C. Ann. St. Supp. 1902, p. 160, requiring estimate of cost of public improvement to be signed by the engineer of the board of local improvements, the estimate signed by the engineer is not de-fective because not signed by the president of the board. City of East St. Louis v. Davis, 233 III. 553, $4 NE 674.
- S2. Search Note: See Municipal Corporations, Cent. Dig. $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ Where mayor and counell have passed on the work and accepted it as satisfactory, their action is conclusive on the property owners in the absence of fraud. Ferguson v. Coffeyville, $7 Kan. $91, $4 P 1010.
- S4. Search Note: See Municipal Corporations, Cent. Dig. $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$ $$$$ $$ $$ $$$$ $$ $$$$ $$$$
  rule, contracts for public improvements must be awarded on competitive bids." The fact that no harm was done by letting a contract without competitive bidding is no answer to taxpayers," but a city may be estopped to plead ultra vires where it obtains the benefit of the work." While competitive bidding is not always essential," yet, where it is required, it must be under circumstances which permit of free competition " without discrimination in favor of a particular material." Alternative bids may be asked where a standard as to articles is set up in the specifications." Where a thing to be furnished under specifications for a municipal com 12 Cur. Law. PUBLIC works and improvements SS 5. 1489 tract may be manufactured by anyone in conformity to requirements for purchase in the open market at a standard price there is no reason for asking alternative bids,1 but if the thing is protected by patent and any one of a number of articles complies with the established standard, the best interests of the public require that bids be asked for any or all.2 Where each bidder is given an opportunity for fair competition, the bidders are on equal terms.3 Statutory requirements as to publication for bids must be complied with.4 Failure to comply renders the contract void.5 A rule requiring contracts to be let to the lowest and best bidder does not require them to be awarded to the lowest bidder, and, in the absence of fraud, the discretion of the board which has power to award, in awarding the contract, will not be interfered with.7 A bidder who makes a mistake in his estimate may be entitled to be relieved from his bid.8 But where the successful bidder refuses to enter into a contract, the council, by declaring another the lowest bidder, does not rescind its prior finding, and it may forcit the deposit.10

Footnote 84: https://www.

lie work is not changed in its essential character where made in the name of public officers rather than the real contractor, the government.\[15\]

\_Particular contract provisions.\_See 10 C. L. 1317.--In construing a contract for a public improvement, the general rules of construction are to be applied.\[16\] Where a contract provides that an engineer shall decide certain facts, his determination is conclusive\[17\] unless he acts in bad faith.\[18\] But such determination must be made by the engineer specified.\[19\] Such provision does not preclude judicial construction after performance.\[20\] A contract is not rendered void by a provision requiring the contractor to guarantee the work,\[21\] nor by a provision permitting him to appropriate surplus dirt,\[22\] nor by a provision allowing him compensation for extras furnished.\[23\] A stipulation that damages arising from the nature of the work shall be borne by the contractor renders the contract void.\[24\]

\_Performance of contract.\_See 10 C. L. 1319.--A contractor must acquaint himself at his peril with the nature and extent of the work to be performed,\[25\] and it is often required that the performance of the contract be guaranteed by a deposit.\[26\] In determining whether a contract has been performed, the test is whether the work has been completed.\[27\] Where a contract is awarded, the city should proceed with reasonable speed to confirm it.\[28\] It is presumed that extension of time for completing the work allowed by ordinance is reasonable.\[29\] A city may insert a time limit for completion of the contract though preliminary negotiations, specifications and bids are silent in this respect.\[30\] Such limitation does not apply to excess work performed,\[31\] but is not waived because of the fact that assessments are made without respect thereto.\[32\] Where time limit is specified in the contract but not in the ordinance, it must be completed within a reasonable time.\[28\] A contractor delayed in constructing a street because of the city's default in failing to obtain a complete right of way may abandon the work or claim damages for the delay.\[34\] An assignee stands in no better position than the contractor himself,\[35\] and an assignment of money to become due under the contract is not an assignment of the contract.\[36\]

\_Allowance of claims and recovery by contractor,\[See 10 C. L. 1820.--Whether a contractor is entitled to compensation for materials used,\[37\] and the measure of compensation, rests in the terms of the contract.\[38\] Recovery of compensation may be

power of board of trustees of a town to au-

lays from unforeseen obstructions and diff-

thorize town engineer to conclusively deter-

Inline fulfillment of contract, amount due

35. Where a town issues warrants against

contractor, etc., did not avoid entire

a special fund, and such warrants are as-

tract. Martindale v. Rochester \[Ind.\] 86

signed by the contractor, and the improve-

NE 321.

ment was not of special benefit to abutting

28. If it delays as a result of collusion

owners, the assignee cannot compel pay-

with the contractor so that he may have

ment out of the general fund, as he stands

more than a reasonable time to do the work,

the contract is void, and assessments can-

not be enforced, Brigham v. Hickman

provement was not of special benefit to

\[Mo. App.\] 115 SWV 449.

29. Evidence insufficient to overcome such

518, 95 P 1083.

presumption. Brigham v. Hickman \[Mo. App.\] 116 SWV 449.

30. Whenever a materialman furnished

01. Such power is implied from its general powers and from the fact that the work

essments and bonds, etc., the materialman

must be done during the summer time. Barber Asphalit Pav. Co. v. Wabash \[Ind. App.\] 86 NE 862.

86 NE 1034.

31. Where a contractor was obliged to ex-

cavate many times the amount of rock estimated, a provision for forforture of $10

most careful manner, all trenches shored

per day after expiration of the contractor

riod did not apply to time required to ex-

cavate the excess rock above 25 per cent.

trenches. City of Richmond v. Barry \[Va.\]

of the estimated amount. Gammino v.

58 SE 1074. Where a contract for public

Dedham \[C. C. A.\] 164 F 593.

improvements was terminated before full

32. A provision for forfeiture of a certain sum per day for failure to complete

thus entilling the contractor to compensate-

the work within a certain period is not

wavived by the fact that the improvement

material and tools not kept by the village

is to be paid for by assessments which were

nor for buildings and roads constructed.

made without respect to such damages.

Dadre W. Nyack, 127 App. Div. 158, 111 NYS

33. Where it appears that the contract

time is not reasonable, the city may by ordinance extend it. Brigham v. Hickman

\[Mo. App.\] 116 SWV 449. Where delay caused

by default of lower contractor exceeds one

hundred and twenty days, question whether

it was an unreasonable delay with refer-

ence to the upper contractor is not one for

determination by jury, but is of such char-

acter as in law to abusive upper contractor

from obligations of this contract. Country

Com're v. Carroll, 7 Ohio N. P. (N. S.) 17.

Upper contractor will be allowed time be-

yond that named in his contract, notwithstanding

standing time is of essence of contract. Id.

34. Sheehan v. Pittsburgh, 213 Pa. 133, 62

A 642. Delay clearly not within contract

provision that contractors be liable for de-

interrupted railway service with no express precluded where the work is in violation of an ordinance,\[89\] or by the construction of the contract which is adopted by the parties.\[40\] A contractor who furnishes more expensive material than is called for cannot recover the difference in cost.\[41\] Where a contract provides for payment on the certificate of the building department, liability is contingent on the production of such certificate.\[42\] The duty of the board of public works to grant a contractor an estimate entitling him to partial payment cannot be enforced by mandamus.\[43\] Where a city enters into a new contract after a contractor fails to complete the work, payments acerning thereunder are not subject to claims due under original contract.\[44\] The liability of a municipality for breach of contract depends on the damage sustained by the contractor.\[45\] Whether delay in making payment constitutes a breach may. depend on circumstances.\[46\] An action by a contractor must be brought within the statutory period,\[47\] and recovery can be had only according to the allegations.\[48\] A city may set off against a claim of a contractor the expense of defending an action for injuries sustained on the work.\[49\] No great formality is required in reference to the form in which claims are presented to a municipal corporation,\[50\] though they should not be ambiguous as to ownership.\[51\] A municipality contracting for a public improvement

requirement as to navigability, but in view

mate of amount of work done which will of time specified same was clearly intended by parties. Phoenix Bridge Co., V. U. S.,

amount of the contract price, does not re-

sim1 U. S. 188, $2 Law. Ed. 141. Under contract for payment requiring contractor to

foreced by mandamus. State v. Icke, 136

repair for five years, that no allowance be

Wis. 533, 118 NW 196.

made for unusual difficulties arising, "either

44. Where a contractor falls to complete

affecting the original construction or maintenance of finished work," and that "If for

contract with another to finish it. Ross v.

any reason whatever" pavement prove infen-

zeamonri Brekel Co. \[Tex. Civ. App.\] 116 SWV

rior it must be relaid, contractor must

make repairs when payment is damaged by

seemping gas. Macfarland v. Barber

Sheean v. Pitts-

baht Pav. Co., 29 App. D. C. 566. Where

city under contract might have pavement

make payments provided for, held to render

relaid or repaired, order for latter was not

cause of complaint. Id. Where under

the contract and not for damages caused by

terms of street improvement contract

city could have conclusively settled amount of

work done by measuring and certifying as

provided in the contract but did not do so,

question is for jury. Dispute as to amount

an estimate on amount of work completed

due for grading street. Sheean v. Pitts-

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams

baht, in view of circumstances, not to

white a breach of the contract. Williams
baht, in view of circumstances, not to
agrees to create a special fund and on failure to do so is liable generally.82 In such case the liability is one in rem against the property benefited,83 and it has been held that the municipality being merely an agent to collect and disburse the fund,54 it is not liable if its officials fail to perform their duties relative thereto,55 but that the remedy of the contractor is to compel them to perform their duties.84 A municipality as the trustee or ballee of special assessment fund is directly liable to a contractor for the amount of obligations held by him,87 and the general funds are liable for payment of special assessment vouchers where the special fund is unlawfully diverted.88 Special assessment vouchers or bonds must be issued in conformity with statutory regulations.89 A city is liable where a void tax bill is delivered

187 WIs, 1, 118 NNV 194. Mere ambiguity of officers charged with the duty of opening ownership of a claim is not a jurisdictional defect. Id.

for their acts. Id. Where a city has contracted for an improvement to be paid for yes assessments, it is not liable to the concause of recital of payment out of special fund which city was not authorized to create, but his remedy is by mandamus to comate (Id.), or because city negligently failed collect special fund (Id.). Warrants pay-ely is not liable to him if they cannot be able out of special fund not barred by limitations, since time does not commence to run until funded created. Id.

53. Where sewage district is created under Laws 1903, p. 26, and works to be created are to be paid for by assessment against the property, the debt is one against the property of the district and not of the city or village out of which such district is created. Broad v. Moscow \[Idaho\] 99 P 101.

99 P 101.

54. WWhere a sewerage district is created under Laws 1903, p. 26, and special assessments made to pay for the improvement, the city is merely the agent to collect and disburse the fund and is not liable in damages upon the contract for construction where officers fail to perform their duty.

Momence v. Shannon & Co., 135 Ill. App. Bread v. Moscow \[Idaho\] 99 P 101.

55. Premature payment of rebates unlaw-ful diversion. Barber Asphalat Pav. Co. v. Chicago, 139 Ill. App. 121. Though made in good faith, being equivalent to refund.

the improvement and collecting the money City of Chicago v. Conway, 138 Ill. App. 320.

on assessments. Town of Windfall City v.

City liable though contract provided that city be not liable until money paid Into treasury. Id. Payment of special assessment and the city does not obligate itself, the city is not liable because its officers have failed to do their way, either in collecting such assessments or paying them over to the contractor. Broad v. Moscow \[Idaho\] 99 P 101.

56. Where sewerage district is created under Laws 1903, p. 26, and improvements are to be paid for by assessment, the contractor must look to the property of the district for payment, and if the city fails to deliver the bonds as agreed, the remedy of the contractor is against the officers to compel them to perform their duty, and not against the city for damages. Broad v. Moscow \[Idaho\] 99 P 101.

01. Where sewerage district is created under Laws 1903, p. 26, and improvements are to be paid for by assessment, the contractor must look to the property of the district for payment, and if the city fails to deliver the bonds as agreed, the remedy of the contractor is against the officers to compel them to perform their duty, and not against the city for damages. Broad v. Moscow \[Idaho\] 99 P 101.

01. Where sewerage district is created under Laws 1903, p. 26, and works to be created are to be paid for by assessment, the contractor must look to the property of the district for payment, and if the city fails to deliver the bonds as agreed, the remedy of the contractor is against the officers to compel them to perform their duty, and not against the city for damages. Broad v. Moscow \[Idaho\] 99 P 101.

01. Instrument containing express prom-ise to pay money is not bond within Local Improvement Act of 1897 when not comply-ling with such act, not being issued for sum of $100 or multiple thereof, or conforming to provisions as to stating installment of assessment payable. First Nat. Bank v. Elgin, 136 Ill. App. 453. Vouchers in payment of work are prematurely issued when issued upon condition that contractor perform certain act, which was not performed. Id. County court and not city 'is in disregard of contract,60 or where by virtue of some act it has rendered collection of the assessments impossible,61 and a city which is the purchaser of delinquent property is liable to the contractor for the amount of the bid.62 Liability of a city may be avoided by a contract provision,63 and a city is not liable for unpaid assessments where it has obtained proper tax deeds and tendered them to the contractor.64 A city is chargeable with interest in favor of contractor where there is an express agreement,65 where money is wrongfully obtained,66 and where money is illegally withheld.67

\_Bonds.\_See 8 C. L. 1827--The fact that the penalty of a bond is slightly less than required does not render the contract void.68 Where a final warrant was issued to a contractor in reliance on his promise to complete the work which he failed to do, the village by issuing a bond was not estopped from showing such noncompliance in an action on the bond.69 Where a contract forbids an assignment of money due the contract, an assignment with the consent of the city is not an alteration of the contract as to sureties.70 The surety's right to subrogation to the reserve fund of a contractor in the hands of the government for work done is superior to the rights of subsequent assignees of contract.71

\_Enjoining performance of illegal contract.\_See 10 C. L. 1821--Courts will not interfere with the performance of contracts unless clearly illegal,72 resulting in dam-

proper authority to accept work done pur-

ssum to special assessment. Local Im-

version that it be not liable if special assessment Act of 1897. Id. "Vucher" or-

dismarity means document showing that

Trust Co. v. State \[Cal.\] 9 P 183. A previous have been performed or expenses

vision in a contract that the city shall not

incurred. Covers any acquittance or re-

be liable for the cost precludes recovery

eight discharging person or evidencing pay-

against the city if special assessments fall

ment by him. Id. When used in connection with money implies instrument show-

64. Where a public improvement is to be

ing on what account or by what authority

paid for by assessments, the city is not

particular payment was made, or that serv-

lies have been performed entilting party to

manns on which it has obtained proper tax

payment. Id. Special assessment vouchers

or bonds are not negotiable instruments,

way v. Chicago, 237 Ill. 128, 86 NE 619, rvg.

Id. No presumption that special assess-

188 Ill. App. 320.

ment certificates are rightfully issued. Id.

Holder of special assessment certificates oc-

cupies same position as contractors. Sub-

ject to defenses against contractors. Id.

60. Where city of Westport absorbed by

Kansas City under Rev. St. 1899, # 6399

(Ann. St. 1906, p. 8197), latter city might

issue valid tax bill in Item of void one. Bar-

ber Asphalt Pav. Co. v. Field \[Mo. App.\] 111 SW 807.

61. Where by failure of the city of New

Orleans to give certain notice a contractor,

under 37th section of the charter as

amended by Act 119, p. 217, of 188, and Act

142, p. 179, of 1894, is defeated in his rem-

ready against abutting owners, the city was

held liable though the contract provided

that it should not be liable for bills due by

abutting owners. Bruning v. New Orleans

\[Ln.\] 47 & 624.

62. Estopped to deny recatils of tax cer-

tificate. Barber Asphalt Pav. Co. v. Chicago, 139 Ill. App. 121. Where city in

default of lidders purchases property delinquent for assessments, it becomes liable for

amount bid and Interest. City of Chicago

v. Union Trust Co., 188 Ill. App. 545.

der contract, amount assessed not deemed

collected where property delinquent and

bought by municipality in default of bid-

ders. City of Chicago v. Conway, 138 Ill.

App. 320, rvd. 237 Ill. 128, 86 NE 619.

63. City not liable where there is provision that it be not liable if special assessment. Union

vision that it be not liable if special assessment fail

as assessments fall to discharge cost. Union

rust Co. v. State \[Cal.\] 9 P 183. A previous

in a contract that the city shall not

be liable for the cost precludes recovery

eight discharging person or evidencing pay-

against the city if special assessments fall

ment by him. Id. When used in connection with money implies instrument show-

64. Where a public improvement is to be

ing on what account or by what authority

paid for by assessments, the city is not

particular payment was made, or that serv-

lies have been performed entilting party to

payment. Id. Special assessment vouchers

or bonds are not negotiable instruments,

way v. Chicago, 237 Ill. 128, 86 NE 619, rvg.

Id. No presumption that special assessment assessment

ment certificates are rightfully issued. Id.

Holder of special assessment certificates oc-

cupies same position as contractors. Sub-

Ject to defenses against contractors. Id.

60. Where city of Westport absorbed by

Kansas City under Rev. St. 1899, # 6399

(Ann. St. 1906, p. 819 age to the property owner,78 and injunction will not lie where suit is not commenced within the period prescribed.78

**SS 6.**_Security to subcontractors, laborers and materialmen.78-See 10 C. L. 1321_

Such security, as a contract provision, may be required by charter provisions.78 An order given a materialman and accepted by the city constitutes an assignment of such portion of the fund due the contractor.77 The claim of a materialman for whom the city withheld a certain amount of the contract price is superior to the claim of another materialman.78

\_Bonds._See 10 C. L. 1322_

Public bodies may contract for the payment of materialmen by a provision in the contractor's bond which inures to the benefit of such materialmen.79 The benefits of such bonds do not extend to assignees of the contract.80 A bond for the protection of materialmen is not invalidated, though the contract is void,81 because of the failure of the city to approve the bond,82 or where by mistake it runs to the officers having charge of the work rather than the government.83 Where a judgment is rendered against a contractor for materials

499, 112 NYS 797. In proceedings to re-

- \[ used in the work. Id. Tools, implements strain improvements authorized under Laws

and appliances are not materials though 1903, p. 121, c. 82, conditions in the petition

by owners requiring contractors to regrade

77. Prior to notices of claims of others against the contractor served subsequently under P. L. 1892, p. 369. Somers Brick Co.

the improvements, held not to increase the

- \[ vis. Soder, 71 N. J. Eq. 75, 70 A 158. Prior\]

- \[ vis. Soder, 71 N. J. Eq. 75, 70 A 158.

by default, in an action on the bond, the plaintiff may introduce the contract and judgment to determine the amount of his claim!\* The enforcement of bonds required by the federal government is governed by the federal statutes.**\[85\] The right of action is assignable,**\[86\] and the allowance of attorney's fees therein rests in the discretion of the court.\*\*\[17\]

\_Liens.\_See 10 C L. 1328-Liens for the security of laborers and materialmen are provided for by statute,**\[88\] and, to entitle one to the benefit thereof, statutory requirements must be complied with.**\[88\] Action thereon must be commenced within the statutory period.\*\*\[89\]

1894 (28 Stat. at L. 278, c. 280, U. S. Comp. on is not mandatory, and failure to apply for St. 1901, p. 2523), which by mistake runs to commissioners having charge of building Title Quantity & Trust Co. v. Puget Sound Solders' Home instead of United States, Engine Works (C. C. A.1) 168 F 168.

will not for that reason defeat recovery. $6. The right of laborers and materialmen to enforce their claims against the $4. City of Philadelphia v. Pierson, 217 Pa. 193, 66 A 221. Without independent evidence as to market value of materials. $63 F 168.

Id. Judgment held conclusive in action on $7. In an action on such bond the court bond, undertaking being to protect matermayer's fees in favor of each claimant. Id.

$5. Suit in name of United States on Title Quantity & Trust Co. v. Puget Sound bond of contract for benefit of materialmen is governed by Act March 3, 1887 (24 Stat. at L. 152, c. 378), as corrected Act curings payment for work done or materials March 13, 1888 (25 Stat. at L. 434, c. 866, U. S. Comp. St. 1901, p. 508), providing that not repeal Mechanics Lien Law, $ 3, pro- civil sults be brought where person is in- viding for a lien on public buildings, but habitant. Davidson Bros. Marble Co. v. prescribed a concurrent remedy so far as it U. S., 213 U. S. 10, 53 Law Ed. - Act Feb. 24, 1905 (38 Stat. at L. 811, c. 778, U. S., Comp. St. Supp. 1907, p. 709), amending. Act. Aug. 13, 1894 (28 Stat. at L. 278, c. 280, U. S. Comp. St. 1901, p. 2523), inapplicable when contract and bond antede passage of amendatory act. Id. Under Act. Feb. 24, 1905, 33 Stat. 811, amendatory of Act Aug. 13, 1894, 28 Stat. 278, creditor for labor and material. Varinshed on government work cannot sue on bond until six months before filing of lien notice. Trust Co. v. $47ewicz completion of work. United States v. $57wicker, 182 F 397. Settlement had to define principal contractor, where the contract is termine right of the government on the bond, and abandonment of work by con- derivore who became insolvent is not a per- lien upon the fund arising from the contractance of contract. Id. A steam vessel built for the United States is a "public work" within Act Aug. 13, 1894, as amended by Act Feb. 24, 1905, 33 Stat. 811, requiring the usual bond and providing that laborers or materialmen may not sue thereon until six months from completion of contract and settlement. Title Guaranty & Trust Co. v.

12. Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 9A. 1497

**SS 7.**\_Hours and conditions of labor.\_91_See s C. L. 1852_Laws limiting the hours and conditions of labor cannot be sustained under the police power \[92\] but they are generally held valid,92 and where a legislature has constitutional power to fix the number of hours of a day's work on public works, it has incidental power to impose a penalty for violation of the statute.94 The protection of the law is not waived where rights under it are asserted as soon as violation is discovered.95 Such a law applies only to persons employed on or about the work.96 In New York the two statutes relative to the subject provide concurrent remedies.97

**SS 8.**_Injury to property and compensation to owners. A. In general.98_See_

**10**C. L. 1852--In some states, damages to abutting owners must first be assessed and paid.90 A city which in pursuance to statutory power and without negligence plans a public improvement is not liable for injuries which result to adjacent property,1 but, in the case of liability, relief must be sought in the appropriate tribunal.2

**(SS 8)**\_B. Establishment or change of grade of street.\_3

**SS 9.**\_Local assessments. A. Power and duty to make._4_See_

\*\*power to levy assessments is statutory \[5\] and exists only to the extent that it is con-

months after completion of the work, \[\] ers for more than 8 hours a day and pay-

arises out of the statute and is not given by the statute, so as to exclude operation

Bonnen v. Metts, 126 App. Div. 807, 111

of the general state of limitations. Kan-

sas City Hydraulic Press Brick Co. v. Na-

tional Surety Co. (C. C. A.) 167 F 496.

\*\*91.\*\*Search Note: See notes in & L. R. A.

**(N. S.) 131: $ Ann. Cas. 309.**

See, also, Municipal Corporations, Dec.

in general, 8384, providing * 1498 Public works and improvements SS 9.1.12. Law.

ferred by statute.\* The fundamental fact upon which the validity of assessments rests is an increment of benefit to the property resulting from the improvement,\* and assessment can be made only for actual benefits * which a landowner receives over and above the ordinary benefits which he receives as one of the community.\* The power to levy special assessments is a special one, and the statute conferring it is to be strictly construed.10 While special assessments are not taxes in the general acceptation of that term,11 the levying of assessments is an exercise of the taxing power.12

charter, art. 14, SS 32, levving assessments

owners. Id. Under Acts 1908, p. 166, ex- for maintaining parks, held a special tax

pense of laying drain pipes for purpose of for local improvements, and not a general

macadamizing, crubing, etc., and cost of tax. Corrigan v. Kansas City, 211 Mo. 608,

111 SWV 115. A tax for the purpose of raising

against abutting property. Oklahoma City

ing funds for the construction of a country

v. Shields \[OkL\] 100 P59.

court house may be lawfully leved with-

7. Union Pac. R. Co. v. Abilene \[Kan.\]

out the contract for its construction hav-

98 P 224. Special taxes cannot be levied

ing first been made. Flewelen v. McKenney, 130 Ga. 356, 60 SE 1000. Village

responding benefit. City of Owensboro v.

Laws, Laws 1897, pp. 422, 444, authorizing

Sweenley, 38 Ky. L. R. 823, 930, 111 SV 364.

board of trustees to cause improvements to

spriking streets does not confer a benefit,

be made and to provide for assessments,

and laws of 1906, p. 376, assessing cost

and it is not necessary for the village to

theor by front foot against abutting

again provide for the expense by general

property is void. Id. Whether street

tax. In re Village of Kennerne, 59 Misc. 388,

sprinkling is a benefit for which abutting

110 NYS 1008. Where state board of health

has not ordered construction of newer sys-

Union Pac. R. Co. v. Abilene \[Kan.\] 98 P

tem in a village, Laws 1892, p. 1619, e. 661,

224.

requiring the municipality to stand the cost

&. Assessment for construction of a

thereof, does not apply, and a taxpayer may

drain can be made for actual benefits only.

not enjoin collection of an assessment leveled

In re Johnson drainage Dist. No. 9 \[Iowa\]

for such purpose. Mead v. Turner, 60 Misc.

118 NYS 280. A special assessment which is

145, 115 NYS 127. Bevers draining a lim-

in excess of benefits is as to such extent a

ited portion of the city, constructed after a

taking of property without compensation.

general sewer system had been built, held

Krist v. Street Imp, Dist. No. 120 \[Ark.\]

public sewers, for construction of which

109 SWV 526. In order to sustain an assess-

the whole city could be taxed. State v.ment, it must affirmatively appear that it

Vilder \[Mo.\] 116 SWV 1087. Whether Act

is not in excess of the benefits conferred.

1906, p. 265, authorizing special assessments

Essen v. Cape May Common Council \[N. J.

for improvements already made, be an

carwolf a curvature act, it involves only

g. Durkee v. Barre \[Vt.\] 71 A 819.

principles of taxation, and does not impair

10. The power to levy and collect as spe-

the obligation of contracts, though small

cial assessment for drainage purposes.

of the improvements when made were un-

authorized, the city having afterwards

882.

adopted it. Durkee v. Barre \[Vt.\] 71 A 819.

11. Const. art. 13, SS 1, exempting property

Such act did not take any vested rights.

of University of California from taxation

ld.

6. The sprinkling of streets is not a local

improvement for which special assessment

is authorized by Kalamasoo City Charter,

c. 16, 842; c. 23, SS 9. City of Kalamasoo v.

everything certain classes of property from

Crawford \[Mich.\] 16 Pet. Leg. N. 669, 117

NNV 572. Ann. St. 1906, pp. 275, 280, 282.

Kansas City charter (Ann. St. 1906, pp. 265, 286), held

not to forbid exemptions from

special assessments of church property.

Corrigan v. Kansas City, 211 Mo. 608, 111

SWV 115. Power of the legislative, under

Constr. art. 16, SS 11, to impose special taxes

for construction of capitol building and to

Grain Co. v. University of California

conserve the fund stated. Moore v. Alex- 18 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS $ 9B. 1493 (SS 9) B. Constitutional and statutory limitations. 18-Sec 10 C. L. 1825--Under the rule that property cannot be taken for public use without compensation, a city providing for improvement of a street at the cost of abutting owners cannot collect an assessment for benefits without showing that adequate compensation therefor will be made. 14 Legislative power to levy assessments is limited by the principle that the tax must be laid for a public purpose which must directly pertain to the district taxed. 15 Statutes relating to special assessments must conform to constitutional limitations, 16 and to statutory limitations as to the extent to which property may be assessed 17 if such limitation applies. 16 They must not violate the rule prohibiting special legislation. 18 In Illinois acquisition of land necessary for the improvement is a condition precedent to the levy of an assessment. 20

\_Equality and uniformity.\_See 10 C. L. 1826--A constitutional provision requiring taxes to be uniform does not apply to special assessments. 21 A statute providing

steads from taxation. City of Beaumont v. \[missioners to levy a tax for preliminary Russell \[Tex. Civ. App.\] 112 SVW 950. Laws 1860, p. 56, conferring corporate powers on County \[Vwash.\] 97 P 1089. A tax may be an institution and exempting its property level for widening a street. In re Lockitt, from taxation, held not to exempt it from $8 Misc. 5, 110 NYS $2. Ordinance under assessment for local improvements. "Spe-Causal Tax" does not mean such assessments. \[Eng church property from assessment, held Board of Improvement v. Sisters of Mercy \[Ark.\] 109 SVW 1165. A homestead is not exempt from assessment for local improvement nor from sale on forcehouse thereof. Robinson v. Levy \[Mo.\] 117 SVW 677. 12. Porter v. Boyd Pav. & Const. Co., 214 Mo. 1, 112 SVW 235. In the exercise of the taxing power, special assessments may be leveld against property to defray cost of improvements. McGarvey v. Swan \[Vy.\] 96 P 697. Ann. St. 1906, p. 4854, providing for formation of assessment districts for assessment of cost of improvements against abutting property, is valid. The levy of such assessments is referable to the taxing power and the legislature is authorized to create such districts. Fruin-Bambrick Const. Co. v. St. Louis Shovel Co., 211 Mo. 524, 111 SVW 86: State v. St. Louis, 211 Mo. 591, 111 SVW 89. 13. Sen Serb Note: See notes in $ C. L, 1161; $ Ann. Cas. 890. 18. 18. Code Supp. 1907, $ 792a, providing that assessments shall not exceed 25 per Dlig. $ 1003-1006; Dec. Dig. # 407, 408; 25 A. & E. Enc. L (2ed.) 1171. 14. Showing that contract has been let without showing that it will be performed within a reasonable time is insufficient. City of Austin v. Nalle \[Tex. Civ. App.\] 115 SVW 126. 15. To sustain a statute authorizing assessment according to area of adjacent property, it is not necessary to hold that legislative power is unlimited so as to prevent judicial interference where manifest injustice, Inequality or constitutional violation is shown in enforcement of rule prescribed. McGarvey v. Swan \[Vy.o\] 96 P 697. 16. The constitutional limit of an assessment in proportion to the taxable value of property by petition is the value of benefits conferred. James v. Seattle, 49 Wash. 347, 95 P 273. Though a drainage district is a municipal corporation, Const. art. 11, $ 12, denying the legislature power to impose taxes for municipal purposes, but permitting it to vest in corporate authorities poor to tax for such purposes, is not violated by Laws 1903, p. 87, requiring com-Causal Tax and the taxing power is limited by the taxing power. 18.

## 1500 Public works and improvements SS 9B. 13

Our Law.

for assessment according to the value of the property is not arbitrary.2 An assessment according to benefits is according to value.23 An assessment under the front foot rule is founded on benefits.24 If an assessment is equitably apportioned and does not exceed the benefits, there is no constitutional objection which the supreme court can consider.25

Footnote 23: The 1

## 12 Cur. Law. Public Works and Improvements SS 9C.

A notice which enables an owner to appear before some authorized tribunal and contest the validity and fairness of an assessment before it becomes a fixed charge against his land is sufficient\[29\], and owners are not entitled to notice of each step in the proceeding\[30\]. An owner who will not be affected is not entitled to notice\[31\]. It is not necessarily fatal to a special assessment statute that it does not contain an express provision relative to notice and hearing where terms of the statute permit such provision to be implied\[32\].

(SS 9) C. Persons, property, and districts liable, and extent of liability\[33\]. See

10 C. L. 1828--Local assessments are primarily imposed upon the property rather than the owner thereof\[34\]. The assessment of benefits in the city of Washington for a public improvement is governed by congress\[38\].

608, 111 SV 115. Should it do so, the theory of the law is that the property owner has been given the equivalent of notice and hearing by representation in the legislature. Union Fac. R. Co. v. Abilene \[Kan.\] is invaded by not giving owners notice of proceedings before assessment. People v. Burilao Assessora, 127 App. Dlv. 851, 111 SE 1069. Notice by publication pursuant to statute, sufficient where land described. Buchanan v. MacFarland, 31 App. D. C. 6.

https://www.census.gov/

608, 111 SV 115. Should it do so, the theory of the law is that the property owner has been given the equivalent of notice and hearing by representation in the legislature. Union Fac. R. Co. v. Abilene \[Kan.\] is a 1900, p. 1541, making assessor's center. Union Fac. R. Co. v. Abilene \[Kan.\] is invaded by not giving owners notice of proceedings before assessment. People v. Burilao Assessora, 127 App. Dlv. 851, 111 SE 1069. Notice by publication pursuant to statute, sufficient where land described. Buchanan v. MacFarland, 31 App. D. C. 6.

608, 111 SV 115. Should it do so, the theory of the law is that the property owner has been given the equivalent of notice and hearing by representation in the legislature. Union Fac. R. Co. v. Abilene \[Kan.\] is a 1900, p. 1541, making assessor's center.

As a general rule the basis of local assessments is the benefit accruing to the property from the improvement,26 but this rule is not universal and property is sometimes assessed according to its frontage without regard to benefits 37 or value,38 though an assessment under the frontage rule may be considered as according to benefits.39 If palpable injustice will result from the application of the front foot rule, equity may interfere.40

Under the benefit rule various elements are to be considered, such as value 41 and distance from the improvement.42 Special benefits must be valued in the proper manner and not arbitrarily.43 Under authority to assess abutting property

assessed against land within certain area, assessment by front foot rule, and Code Supp. (Act Cong. March 3, 1899 \[30 Stat. at L. \] & 792a, providing that assessments shall be 1344, c. 431) and.statute extending area to be assessed (Act June 6, 1900 \[31 Stat. at L. \] & 792a, providing that assessments shall be 1344, c. 431) and.statute extending area to be assessed (Act June 6, 1900 \[31 Stat. at L. \] & 665, c. 809, 181) proper exercise of condients

Footnote 43: https://www.cmu.edu/~cmu.

according to benefits, nonabutting property may be assessed.44 Assessment according to area is proper.45

Assessments must be equitably distributed and property should not be assessed more than it is benefited nor more than its proportion of the cost of the improvement,46 but omission to assess certain property does not necessarily invalidate the assessment.47 Whether an assessment amounts to a spoliation depends not upon the value of the lot alone but upon the value of the lot and improvements after construction of the improvement.48 It is sometimes provided by statute that cost of improvements be assessed equally against lands benefited.49

Purchasers of land prior to reapportionment of an assessment may be liable therefor.50 A city can make a general levy for the payment of the cost of improvement of street intersections, against all property owners in the city.51 What property may be assessed may rest in the terms of the statute authorizing the assessment,52 and the question of whether land is exempt is generally determined on pro-

Footnote 47: The use of the _a priori_ to ceedings to enforce the assessment." As a general rule lands owned by the state are not subject to assessment \[54\] unless made so by statute.\[65\] In New York lands used for cemetery purposes are not subject to assessment.\[56\]

The general rule that the proper method of assessing cost of taking land for a street is to assess the cost of each block taken on property fronting thereon does not apply where a portion of the territory was benefited to a greater extent than other portions.\[67\]

Property of a street railroad in a street is not assessable for an improvement of the street,\[88\] but freight depots and spur tracks are assessable though part of the entirety of the company's property,\[50\] and a street railway \[69\] or steam railway company may be assessed.\[61\] Only such items of expense may be included in an assessment as are considered reasonably necessary and incident to the improvement.\[62\]

covery from owners other than those whose lands are intersected by the channel. Laws 1901, p. 405, c. 466, benefits could not Commissioner of Vermillion Special Drain-age Dist. v. Whoecky, 238 Ill. 237, 87 NE 385. Under Laws 1891, p. 422, c. 114, $ 166, amended by Laws 1907, p. 61. 44, providing land used as a cemetery from bear expense of grading any portion of a street not in front of his land, he cannot be assessed for paving a street at the side of his lot where he owned only to the exterior line of the street. O'Leary v., de Clens Falls, 128 App. Div. 683, 112 XYS 932. The provisions of municipal codes as to improvements for which special assessments are made, that "the corporation shall pay the cost of intersections," has reference to parts of street improvements at intersection of streets one with another, and has no application to the crossing of street by sewer for purposes of local san-tary drainage. Close v. Parker, 11 Ohio C. C. (N. S.) 85. In an assessment upon lots to defray cost of local sanitary sewer, municipality is not required to make deduction because of proximity of public park which does not directly abut thereon. Id. SS3. In proceedings for street extension supreme court of District of Columbia site-ting as district court has no power to determine whether certain land is exempt. Act June 6, 1900 (31 Stat. at L 665, c. 809), requires all lands to be assessed. Garfield Memorial Hospital v. McFarland. 31 App. D. C. 447. General expressions of a statute granting a city authority to assess all persons specially benefited by a public im-provement do not authorize assessment of land owned by the state. State v. Kll-burn \[Conn.\] 69 A 1028. 55. "Belonging to" in Hartford City charter, 132, providing that the city in making assessments for benefits may assess land belonging to the state, etc., imports beneficial ownership but contains no impli- cation that land on which the state has a mortgage for the benefit of the school fund may be assessed. State v. Kllburn \[Conn.\] 69 A 1028. 56. Under Laws 1879, p. 397, c. 310, $ 1, lands used for cemetery purposes are not subject to assessment for local improvements. In re Jerome Ave. 192 N. Y. 459, 85 NE 755. In proceedings to acquire property to widen a street, an assessment for benefits and award of damages in excess thereof is an "assessment for local improvements" under the city's power of taxation within such statute. Id. Under Co., 50 Vash. 132, 86 F 958. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 71. 74. 78. 79. 72. 75. 78. 79. 73. 75. 79. 74. 76. 78. 79. 70. 71. 75. 79. 71. 76. 77. 78. 79. 70. 71. 78. 79. 70. 72. 74. 79. 71. 78. 79. 72. 73. 74. 76. 78. 79. 70. 73. 75. 79. 71. 77. 78. 79. 70. 74. 79. 71. 78. 79. 72. 74. 79. 73. 75. 76. 77. 78. 79. 71. 79. 72. 74. 79. 74. 78. 79. 75. 77. 78. 79. 70. 79. 71. 79. 70. 71. 79. 72. 74. 79. 75. 79. 71. 79. 73. 76. 79. 71. 78. 79. 70. 71. 79. 72. 74. 79. 75. 79. 71. 79. 72. 76. 79. 73. 76. 79. 74. 78. 79. 75. 77. 78
VOL. XII. NO. 7. CURRENT LAW, SEPTEMBER, 1909. **1505**

(Copyright, 1909, by The Keefe-Davidson Company.)

PUBLIC WORKS AND IMPROVEMENTS--Cent'd.

(SS 9) \_D. Procedure for authorization, levy, and confirmation of assessments.93_Bee 10 C. L. 1831_The power to levy special assessments is a statutory power \*4 and must be predicated on a valid statute, \*5 and must be exercised in the manner prescribed by statute. \*6 The various steps must be taken in the manner prescribed \*7 and by the officials designated \*6 and persons authorized, \*9 and the

62. Sidewalk Act of 1875, as amended, au-

of. Laws 1905, p. 84 c. 55, providing for

thorling assessments for construction of

adjointment of commissioners to levy as-

sidewalks, does not authorize inclusion in

issessment for cement walk of expense of

berme and sloping bank in addition to

thelock planks supported by

. Peo-

stable v. Seattle & M. R. Co., 50 Wash.

ple v. Klehn, 238 11. 89, 87 NE 119. In

assessing cost of watering streets against

adutting property, value of the water tur-

highest by the city from its aqueded main-

signed at its expense could be included as

part of the cost. Corcoran V. Cambridge

Aldermen, 199 Mass. 5, 85 NE 155. A certain square held properly a part of a

drainage district on a town is not subject

street and cost of paving 14 was properly

charged to shutting owners. Alvey v. Ash-

ville, 146 N. C. 395, 59 SE 999. Cost of

manholes and catch basins for sewers may

be included in assessment against abutting

convert of the town auditors. Spring

property though they also drain the street,

and Code, $ 819, expressly provides that

Creek Drainage Dist. v. Jollet Com., 238

cost of sewers at street intersections may

be taxed against abutting property. Andre

v. Burlington \[Jowai\] 117 NUV 1082. The city has power to impose and collect a

drainage district on a town is not subject

penalty and interest on delinquent assess-

ments beyond the actual necessalities of the

contraordinary purposes and not for oral-

fund, which penalties and interest become

a part of the fund. Miller v. Seattle, 50

vash. 252, 97 p 55.

G3. Search Note: See note in 3 Ann.

Cas. 11.

See, also, Municipal Corporations, Cent.

Dlg. $ 1072-1099, 1125-1182; Dec. Dig.

$ 1449-456, 475-510; 25 A. & E. Einc. L (2ed.)

1204:13 A. & E. Einc. P. & P. 306.

64. Municipal Incorporation Act (St. 1883,

p. 236, c. 49, $ 771), providing a method of

assessing adjoining property for street im-

provements, is repeated so far as inconsins-

tent with St. 1885, p. 147, c. 153. Millasp v.

ployment based on an estimate made

Balfour \[Cal.\] 97 p 668. Municipal Corporo.

ration Act, $ 871, is a general law for cities

of the sixth class enacted pursuant to Const.

art. 11, $ 12, making it the duty of the

for widening a street and changing the

legislature to test in corporate authorities

grade must be collected to pay awards

power to assess for municipal purposes.

City of Esconidlo v. Esconidlo Lumber,

assessments proceed on the assumption that

Hay & Grain Co. \[Cal. App.\] 97 P 197.

So far as concerns cities of the third class,

Third, Fourth & Fifth Ave., 49 Wash. 109,

all prior legislation relative to construve.

tion of sewers and assessments therefor,

Laws 1890, c. 7; Laws 1891, c. 160; Laws

ment as to date of filling delinquent list is

1893, c. 70; Laws 1899, c. 126; Laws 1901,

c. 113: Laws 1903, c. 27 is repealed by Laws

1903 c. 124, as to initiation and enforce.

ment of assessment. Seattle Cedar Lumber

Mfg. Co. V. Ballard, 50 Wash. 123, 96 P 956.

Erroneous construction of a law by city authorities whereby the city paid a portion of the cost of repaving a street which

should have been paid by special assess

ment against abutting owners will not

estop the city from making an assessment

for new paving under a subsequent law.

Carstens v. Fond du Lac, 137 Wis. 45, 119

117 Curr. L--90.

### Public works and improvements SS 9D. 12 Cur. Law.

ordinance or resolution providing for the assessment must conform to statutory requirements.\[70\] Several improvements may be provided for by one ordinance.\[71\] Where one method of procedure is adopted, it must be adhered to.\[72\] Statutory requirements as to notice to owners \[73\] and hearing thereunder must be complied with.\[74\] In some states provision is made for classification of lands for certain assessments,\[75\] and such procedure must conform to statutory requirements,\[76\] and classi-

of the sidewalk in front of it instead of tent of benefits received from the improvement of the cost of the walk \[77\] according to the frontage of the lot, as \[77\] Third, Fourth & Fifth Ave., 49 Wash. 109, provided by Hurd's Rev. St. 1905, v. 24, is 94 P 1075, void. People v. Hennessy, 234 III. 14, 84 NNE 692. Provision in Buffalo City charter movement by unanimous vote of its counment assessment must precede marking of cultural, regardless of petition by owners and contract held not to apply to improvement \[78\] Limitations contained therein, it cannot specified in Laws 1902, p. 136, c. 568, 5 I, subsequently fall back on the petition to imbed an assessment otherwise unanimous and not the taxes constitute the primary fund to pay for the work. People \[79\] Second to deny authority to levy the as-v. Buffalo, 115 NYS 1067. Under Laws 1903, p. 9, c. 7, authorizing a city to apportion sewer assessments according to \[70\] Toe further notice than that provided area of land benefited, hearing may be had by the city without violating the statutory requirements as to total cost to be assessed upon a street, property of ordering improvement, assessment of certain tracks. Gray v. Angravev v. Swan \[79\] Toe P 697. Under Codo, 8 I 1940, and Acts 30th Gen. Assessment or reassessment under Portland owners and declaring that they shall be given notice and opportunity to be hear prior to reassessment, the board of supervisors may make an equitable adjustment of his claims and consider damages to his land. Howard v. \[79\] Third & 1903, p. 831, c. 268, provid-1 that an authority conferred upon three or more persons may be exercised by a majority, held two members of a board to * 12 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 9D. 1507

fication must be made by persons authorized." In some states provision is made for the creation of assessment districts in a manner prescribed." What land is within such district depends on the creation thereof." Where an assessment district is improperly defined, the remedy of the owner is to sue for cancellation of tax bills and the issue of new bills on a district properly defined." Where an assessment district has been fixed by legislative act and apportionment of cost of an improvement has been made, an owner cannot object that his property has not been benefited the amount assessed against it."

In making an assessment the property assessed must be definitely described " and the owner identified." As a general rule, in assessing benefits, each tract or parcel must be considered separately," and the determination of the council or assessing board on the question of benefits is conclusive in the absence of fraud or mistake." In some states the verdict must set off damages against benefits." An

under Hurd's Rev. St. 1908, c. 42, was ex-

tended against lands according to the

130 App. Div. 297, 114 NYS 355.

classification made when the district was

84. A board of public works in assessing organized, no notice need be given land-

benefits and damages is bound to consider owners and no new classification is necessary, but the tax must be extended on the

benefits are equal to cost of doing the classification adopted. People v. Sullivan,

238 Ill. 386, 87 NE 306.

113 NYS 888. Under a statute requiring

77. That commissioners who classified

lands for assessment, under Hurd's Rev. St.

1908, c. 42, $$ 75-153. were owners within

the drainage district did not invalidate the

classification. People v. Hullin, 237 Ill. 122,

86 NE 668.

78. Under Ann. St. 1906, p. 4854, providing that assessment districts shall be made

by drawing a line midway between the

street to be improved and the next parallel

street, held the parallel street need not

parallel the street being improved the

whole district of the improvement but the

line must defect. Fruni-Bambruck Const.

Co. v. St. Louis Shovel Co., 211 Mo. 524,

111 SWV 86. Under such statute held also

that the parallel street is not required to

be at least within 600 feet of the street being improved. Id.

79. Under St. Louis Charter (Laws 1906, p. 4854), providing for assessment districts

where lots fronting on a street being improved run through to the next parallel

street, the whole lot Is in the district.

State v. St. Louis, 211 Mo. 591, 111 SWV 89.

Where an original lot has been subdivided,

each subdivision is a lot within St. Louis

Charter (Ann. St. 1906, p. 4854) relative to

creation of assessment districts. Id.

80. State v. St. Louis, 211 Mo. 591, 111 SWV 88.

01. Fruni-Bambruck Const. Co. v. St. Louis

Shoval Co., 211 Mo. 524, 111 SWV 86.

82. Under Laws 1897, p. 400, c. 414, and

Laws 1896, p. 803, c. 908, amended by Laws

1899, p. 1594, c. 711, $ , an assessment of

property as "N. Division St." without other

location or description did not specify the

property so as to render its Identification

possible and was fatally defective. Aller

v. St. Johnville, 130 App. Div. 297. 114 NYS

855. In assessing property the council may

properly recognise the descriptions of property assessed according to ownership.

M!techul v. Portland \[Or.\] 99 P 881.

88. An assessment describing the owner

as a firm or company is no assessment

Against a member of such firm or company

79. Under St. Louis Charter (Laws 1906, p. 4854), providing for assessment districts

for the assessment board. K!rst v. Street Imp. Dist. No. 120 \[Ark.\] 109 SWV

528. Where a council has determined the

extent to which property is benefited and

is proportionate share of the cost its de-

cision is final in the absence of fraud or

milatake except as appeal is provided by

state, or unless it has proceeded on an

arroneous principle of law. Hughes v.

Portinal \[Or.\] 100 P 942. Under Portland

City Charter, $$ 389, 380, authoring the

countl to establish newer districts and

assess cost of sewers against property benefits

Med, and making its action final, its action

in establishing a district and determining

the question of benefits and making an

assessment is conclusive on collateral at-

tack, unless fraudulent on its face. Beckett

v. Portland \[Or.\] 99 P 659. Under Laws

1903, p. 55, c. 15; Laws 1899, p. 147, c. 12;

amended by Laws 1903, p. 48, c. 15, a find-

ing by the council that a benefit exceeds

an assessment is at least prima 1508 PUBLIC WORKS AND IMPROVEMENTS SS 9D. 12 Cur. Law.

assessment is presumed regularly and properly made,\[87\] and objections of property owners must be presented within the period prescribed.\[88\] The filing of objections is not sufficient to require a reassessment \[89\] or to render the subsequent order of confirmation void.\[90\]

\_Essential prerequisites to assessment.\[See 10 C. L. 1338--Proceedings whereby property is burdened with special assessments are in invitum and must conform strictly to law.\[91\] The assessment must be levied under a valid ordinance \[92\] and must conform thereto.\[93\] An assessment based on a void condemnation judgment is void.\[94\] Failure of the contract to do the work according to' the contract renders tax bills against abutting owners void.\[95\] Under a rule' requiring that an assessment precede the contract, the fact that the contract is void does not invalidate the assessment.\[96\] An assessment for paving is not void because no credit is given for paving taken.\[97\]

789 et seq., providing that when a street is videned compensation shall be paid by not raise the objection on application for special assessment on property benefited.\[11\] In 122, 86 NE 666. Under Laws 1899, p. be found irrespective of benefit, each lot 373, c. 150, amended by Laws 1901, p. 385, must bear tax proportion of the expense ac- c. 107, where property owners appeared and cording to benefits and the verdict must objected to an assessment and improve-offset benefits against damages. In rement after notice of completion of the im-Third, Fourth and Fifth Ave., 49 Vash. 109, procurement and assessment, the lost none of 94 P 1075.

87. One objecting there hads the burden order for the improvement. City of Pueblo of proof. In re Johnson Drasage Dist. No. 9 \[Iowa\] 118 NVV 380. Under Starr & C. 89. Filing of objections insufficient to va-Ann. St. Supp. 1302, p. 182, providing that a new jury under D. C. Rev. St. 8 263, to land necessary to make it has been ac-vaineesees. Buchanan v. MacFarland, 31 App. quired, and 8 y, making recommendation of the board prima facie evidence of compliance with preliminary requirements, ties to original objections. Buchanan v. held where assessments have been levied, MacFarland, 31 App. D. C. 6.

01. Horsnahan v. Pfether, 133 Mo, App. 660, title has not been acquired. City of East 118 SW 1133. An attempt to subject property St. Louis V. Davis, 233 Ill. 553, 84 NE 674.

01. Where order of county court in proceedings vitum to uphold which on direct attack it for confirmation of drainage assessments must appear from the record that statutory did not recite jurisdictional facts, it will requirements have been compiled with. Apple presumed in proceeding to compel plegate v. Portland \[Or.\] 99 P 890.

01. A valid ordinance is essential to the va-ment that the court had jurisdiction to enter judgment of confirmation of the as-Insment. Spring Creek Drainage Dist. v. Vash. 109, 94 P 1075. It is essential to the Jollet Comms, 238 Ill. 512, 87 NE 394. A valid ordinance that is vident. Before a statute will proportion to benefits is not impeached by the fact that the result reached is the same party must show just erivance. McGarvey as would have been reached by using the front foot rule. Hedge v. Des Moines \[Iowa\] 119 NVV 276.

01. Under Code, SS 823, 824, providing that objections to assessments shall be filed by within 20 days after notice and that objections not before the council at the hearing are waived, an amendment to an objection filed after hearing will not be con-sided through notice of the amendment was given at the hearing. Hedge v. Des Moines \[Iowa\] 119 NVV 276. "Hear and determine" in Portland Reincorporation Act, SS 400, prescribing manner of reassessment where original assessment is set aside, means a judicial determination of an issue of fact and was not complied with by reference of objections to committee on streets. Applegate v. Portland \[Or.\] 99 P 890. Owners of lands classified for assesments for drainage, under Hurd's Rev. St. 1908, c. 42, SS 75-153, who are notified of the work, the making of a contract in

## 12 Cur. Law. Public Works and Improvements SS 9D.

### Defective or excessive assessments.

See 10 C. L. 1388.-As a general rule, defects or irregularities which are not jurisdictional will not invalidate an assessment," especially if timely objection thereto is not made," but if jurisdictional requirements have not been complied with, the assessment is void.1 Such defects, however, must clearly appear.2 An assessment will not be held void where the objection involves only a trifling sum.3 It is presumed that a city council did its duty and levied assessments according to benefits accruing to abutting property,4 and even if an assessment is made arbitrarily and without reference to actual benefits, the entire assessment should not be declared void, but the court should correct it.5 Error in apportionment may be corrected in a court by proper apportionment.6 In New York an illegal assessment may be annulled on certiorari and a new one directed to be made.7

## 1510 Public works and improvements SS 9E. 12 Cur. Law.

\_Assessment roll or report.\_See 10 C. L. 1334--A statute making a duly certified assessment roll prima facie evidence of the regularity of the assessment does not apply where it is irregular on its face.\[8\] In special assessment proceedings, the court may, without losing jurisdiction, refer the roll filed by the commissioner back to him, with leave to make a new assessment in accordance with the order for the original assessment.\[9\]

\_Confirmation of assessments.\_See 10 C. L. 1334--Questions going to the authority of the council to make an assessment \[10\] and to the regularity of the proceedings must be raised on application for confirmation thereof.\[11\] On application for confirmation, one objecting has the burden to overcome the presumption in favor of the validity of the assessment.\[12\] He must exercise proper diligence to procure his evidence.\[13\] Judgment of confirmation must be made at the appropriate term.\[14\] Heirs at law of an owner are bound by the confirmation of an award where the owner dies after a verdict assessing benefits and pending an order to show cause why the award should not be confirmed.\[15\] There is no authority for abatement of an assessment which has been properly confirmed.\[16\]

(SS 9) \_E. Reassessments and additional assessments.\_See 10 C. L. 1335--A reassessment supersedes the original assessment.\[18\] It must be authorized by a valid ing for canceling an assessment for illegality and for correcting certain defects, the court may, on certiorari, direct that illegal assessments be annulied and that a new assessment be made on correct principles. People v. Buffalo, 115 NYS 1057.

8. Laws 1857, p. 408. \< 414, making assessment roll property certified prima facie evidence of the assessment, right to levy the tax, etc., applies only where Ir-regularity does not appear on face of assessment roll. Aliter v. St. Johnsville, 130 App. Div. 297, 114 NYS 355. Such section does not apply to matters Improperity interpolated into the roll. Id. Under Laws 1897, p. 403, c. 414, requiring assessment roll to be prepared by assessments and filed with the clerk, and that the board of trustees shall prepare tax levy, held, the village assessment roll including local assessment was fatally defective, as such assessment had no place therein. Id.

1. Village of Donovan v. Donovan, 236 Ill. 836, 86 Ill. 876. Where the court in assessment proceedings referred the roll back to the commissioner with leave to make a new assessment in accordance with the order for the original assessment and no objections were raised to the filing of the new roll, whether the court erred in permitting it to be filed in lieu of the original could not be raised in the supreme court on appeal from confirmation. Id.

1. Questions whether council had authority to establish a grade, or whether grade established injured abutting property, must be presented on application for confirmation of the assessment. Cosgrove v. Chicago, 235 Ill. 358, 85 NB 699.

1. Where existing pavement was of value and was not considered in making assessment of cost of new paving, the objection must be raised on application for confirmation of the assessment. Cosgrove v. Chicago, 235 Ill. 358, 85 NE 599. Objections to proceedings under a subsequent ordinance for an improvement based on a prior ordinance must be made on application for confirmation of the assessment under the subsequent ordinance, and not by bill to enjoin collection of the assessment. Id.

1. One objecting to confirmation of an assessment level under Hurd's Rev. St. 1908, c. 24, $ 507-605, for street improvement, including sidewalk at street intersection, on the ground that the sidewalk at the inter-section was in good repair at the time the ordinance was passed, has the burden to prove such fact, as it is presumed that the assessment was properly spread. City of Chicago v. Vishshire, 238 Ill. 317, 87 NE 383.

That in ordinance for a system of water mains mistakes in designating the streets is not ground for refusing confirmation of assessments, where location of the streets is made certain by parol. Village of Donovan, 236 Ill. 636, 86 NE 675. Record of a village board showing that ordinance for an improvement was passed is sufficient to render the ordinance admissible in proceedings to confirm the assessment. Id.

13. One objecting to confirmation of an assessment on the ground that the sidewalk was in good repair when the ordinance was passed, who failed to show that he had exercised reasonable diligence to procure evl-dence of that fact, was properly denied a continuance to procure such evidence. City of Chicago v. Vishshire, 238 Ill. 317, 87 NE 383.

01. Where the term at which judgment of confirmation of an assessment was entered has expired, the court loses jurisdiction. But where the parties voluntarily appear at a subsequent term, the court may be invested with jurisdiction, except as provided by Hurd's Rev. St. 1908, c. 24, $ 622. People v. Noonan, 238 Ill. 303, 87 NE 367.

01. Buchanan v. MacFarland, 31 App. D. C.

01. City of Chicago v. Hurford, 238 Ill. 552, 87 NE 325.

01. City of Chicago v. Hurford, 238 Ill. 552, 87 NE 325.

01. Event Note: See Municipal Corporations, Cent. Dig. SS 1207-1215; Dec. Dig. $ 514.

01. A reassessment authorized by Portland City Charter, $ 400, where the council ie in doubt as to validity statute,\[10\] made within a reasonable time,\[20\] and for a purpose specified.\[21\] A reassessment is not precluded by the fact that an owner has paid the original assessment.\[22\] Where a landowner's property is not liable for an assessment because the work was not authorized by ordinance, there can be no reassessment.\[23\] Where the purpose of the power to make a reassessment is to provide curative procedure, the power is not exhausted by one attempt.\[24\] In making a reassessment the procedure prescribed by statute must be observed and followed.\[25\] The ordinance need not disclose the method of assessment,\[26\] but it must appear to have been made to the extent of the respective and proportionate shares of the full value of the improvement.\[27\] It must be made by the proper tribunal.\[28\] Objections of landowners must be made in proper time\[29\] and must disclose wherein the assessment is unjust or void.\[29\] A second assess-

other matters, the auditor was not required to include in his writ proceedings culminating in the first assessment. Michell v. Portland \[Or,\] 99 P 881.

10. Burne' Ann. St. 1908, SS 8716, requiring appointment by the court of freeholders to reassess benefits upon a petition of a property holder, and making their finding final, if void as depriving courts of judicial powers, did not render the entire statute void.

atc thereof and hearing of property owners, that the procedure on such hearing and requisites of findings, etc., stated. Id. Under Portland \[Or,\] 99 P 881.

11.0 Burne' Ann. St. 1908, SS 8716, requiring appointment by the court of freeholders to reassess benefits upon a petition of a property holder, and making their finding final, if void as depriving courts of judicial powers, did not render the entire statute void.

as to bar the proceedings at the proper time, Martindale v. Rochester \[Ind.\] 88 No 821.

20. Held invalid where not made within three years. City of Olimpia v. Knox, 49 Wash. 537, SS 1090.

ment that issues raised by objections to the 21. Cobby's Ann. St. 1907, SS 7892, providding for reassessment of property where assessments have been declared void, does not authorize reassessment for benefit of purchaser at a tax sale who fails to recover from the property because of illegality of the assessment. Barkley v. Lincoln \[Neb\].

117 NUV 389. In proceeding for supplemental assessment, evidence held insufficient to show a deficiency in the original assessment, or directly of Chicago v. Hurford, 238 Ill. 552, SS 87 NB 325.

22. Where assessments for benefits in drainage proceedings were held unconstitution, the fact that a landowner had paid his assessment held not prevent reassessment under Acts 30th General Assembly, pp. 60, 65. Howard v. Emmet County \[Iowa\]

118 NUV 882.

23. Under Act March 23, 1881. Burnett v.

01. The purpose of Portland City Charter, 1400, giving the city council power to make a reassessment where a first assessment has been annulted by a court or otherwise, lie to provide curative procedure, and the power of the council is not exhausted by one attempt.\[24\] In making a reassessment the procedure prescribed by statute must be observed and followed.\[25\] The ordinance need not disclose the method of assessment, but it must appear to have been made to the extent of the respective and proportionate shares of the full value of the improvement. Morgan v. Portland \[Or,\] 1400 P 657. Where the land is subject to assessment on account of work done, the board of assessors may be authorized to make a new assessment in proportion to the benefits received, and not in excess thereof.

01. Resolution for reassessment under Portland City Charter, # 400, held sufficient to make reassessment and it must appear Hughes v. Portland \[Or,\] 140 P 942. Under Portland City Charter, # 400, a reassessment must be made in accordance with benefits, and that each parcel shall be assessed only its share of the cost, a reassessment ordinance showing that such assessment had not been made held void. Id. Under Portland City Charter, # 400, relative to reassessments where it appears that a committee to which the council referred objections presenting questions of fact did not report upon them until after the reassessment ordinance had been adopted, the reassessment was preman-

01. That an owner may insist upon his true. Id. Under Portland City Charter, # 400, providing for reassessment and no-

01. Under Portland City Charter, # 400, providing for reassessment and no-

01. Under Portland City Charter, # 400, the city council is the only tribunal authorized to make reassessment and it must appear Hughes v. Portland \[Or,\] 140 P 492. Under Portland City Charter, # 400, a reassessment must be made in accordance with benefits, and that each parcel shall be assessed only its share of the cost, a reassessment ordinance showing that such assessment had not been made held void. Id. Under Portland City Charter, # 400, relative to reassessments where it appears that a committee to which the council referred objections presenting questions of fact did not report upon them until after the reassessment ordinance had been adopted, the reassessment was preman-

01. Under Portland City Charter, # 400, providing for reassessment and no-

01. Under Portland City Charter, # 400, providing for reassessment and no-

01. Under Portland City Charter, # 400, the city council is the only tribunal authorized to make reassessment and it must appear Hughes v. Portland \[Or,\] 140 P 492. Under Portland City Charter, # 400, a reassessment must be made in accordance with benefits, 1512 PUBLIC WORKS AND IMPROVEMENTS SS 9F. 18 Cur. Law.

ment may be made to complete the improvement where the first is inadequate \[31\]. The power of a board of supervisors to increase drainage assessments does not authorize it to do so arbitrarily \[32\]. In Washington, where special benefits are set off against damages a subsequent assessment for the same improvement is unauthorized \[33\], and cannot be sustained on the ground that the proceeding to assess the cost of the improvement is independent of condemnation proceedings \[34\], nor can it be sustained on the ground that conditions have or may have changed since trial of the condemnation proceedings \[35\], nor on the ground that the jury in the condemnation proceedings must have taken into consideration, in awarding damages, the assessment to be thereafter levied against the lots \[36\].

(SS 9) _F. Maturity, obligation and lien of assessments \[37\]._ See 10 C. L. 1326--All private rights in real property in a municipality are subject to the statutory powers of the municipality to levy assessments for local improvements \[38\], and the legislature may by statute create liens for such improvements and make them superior to other liens acquired subsequent to the enactment of the statute \[39\]. The intention of the lawmaking power to give priority to such lien over contract liens of individuals may be implied from the language of the statute \[40\]. Liens for special assessments being purely statutory, the provisions govern the time of commencement \[41\], as well as the time of filing \[42\]. The test of whether property is liable for a lien depends upon conditions at the time the improvement is made \[43\]. A statutory void, so that the council may know the nature of his objection, and a general objection that it is not made in accordance \[SS 157, 1954, 2392, relative to the state school with benefits or that the appointment is un-just is insufficient. Hughes v. Portiand \[Or.\] mortgage in favor of the state on such fund is a superior lien to assessments for public improvements, though to a mortgage in favor of a private individual the lien would be superior. State v. Kilburn \[Conn.\] 69 A money raised by a second assessment can be raised only for the payment of future obligations, and none can be assessed or raised for the purpose of paying obligations already.

1. Under Municipal Corporation Act, 8 871, incurred except incidental expenses necessary for the preliminary work in preparing, or seeking the additional or sec- and assignment. Vandalia Levee & Drainage \[CII.\] 97 P 197. Laws 1908, Dist. v. Hutchins, 234 Ill. 31, 84 NE 715. Under such act, incidental expenses must be incurred in necessary preliminary work before the assessment is spread or leveled, but must be included in the original estimate and paid out of the original assessment. Id.

1. In re Castner \[Iowa\] 119 NVV 889. Increase held not justified. Id.

1. Under Laws 1893, a, 84, 81% 15, 22, where special benefits from regrade of a street are offset against damages, a subsequent assessment of benefits against the property, for the same improvement, is un-authorized. Sehuehard v. Seattle \[Wash.\] 97 P 1105.

34, 35, 36. Schuchard v. Seattle \[Wash.\] \[Howard\] 118 NVV 1066.

37. Search Note: See notes in SS 1. R. A.

387: 6 L. R. A. (N. S.) 694.

See, also, Municipal Corporations, Cent. Dig. 15128-12271, Dec. Dig. 8 518, 519.

38. Lybass v. Ft. Myers \[Ft.\] 47 S 346. The fact that Laws 1888, p. 100, under which an improvement was made, required the contract to look to the property and owners thereof for his pay, did not preclude the city under its subsequent charter from charging the property with a lien for its share of the cost. Hughes v. Portiand \[Or.\] 100 P 942.

12 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 9H. 1513

utory lien of an assessment is in the nature of a governmental tax.44 In California, owners of separate tracts may join in a suit to cancel a lien which is separate

, on each tract.45

(SS 9) \_G. Payment and discharge.46_Sec 10 C. L. 1837_Funds created from the collection of special assessments are trust funds to pay for the improvement.47 Interest upon vouchers issued ceases upon receipt by the city of assessments.48 Whether a valid tender of payment has been made may depend on the terms of the statute 49 or general rules governing payment and tender.50 A contractor cannot make an agreement with the tax collector to set off his own assessment against moneys to become due him.51 Where an assessment is paid by check and discharged of record, the fact that the check was forged does not defeat the payment.52

(SS 9) _H. Enforcement and collection_,53_Sec 10 C. L. 1837_The lien acquired by the confirmation of assessments and the entry on the tax roll for collection is not impaired by the fact that no method of enforcement was provided.54

_Mode of collection_.See 10 C. L. 1837\_-Assemments are enforcible only against the property.55

_Character of action and parties_.See 10 C. L. 1837\_.Though the action provided by statute for the enforcement of special assessments is deemed statutory, when a court obtains jurisdiction it exercises general jurisdiction, and not mere statutory powers,56 but it assumes jurisdiction only for the purposes specified.57 As a general rule, special assessment warrants are not obligations of the city 48 unless it has

Philadelphia v. Manderfield, SS2 Pa. Super. Ct. against amount to become due the owner

$73. Not time when issue founded on lien

under his uncompleted contract to build part

is tried in court. Id.

44. Statutory lien for sidewalk improvements is in nature of governmental tax and

$7. A bank paid a check purporting to be

may be superior to a mortrage given after

drawn by a depositor whose signature was

enactment of the statute but before improvements were made. Lybass v. Fit. Myers \[Fla.\]

the assessment was discharged and the prop-

47. S 346. Such lien held superior. Id.

01. Under Code Civ. Proc. SS 378, owners

Held, the bank, when it charged back the

in severality of different lots may join as

plaintiffs in a suit to cancel warrants for

the lien of the assessment. Title Guarantee

assessments, though the lien on each lot is

$7. Civ. Haven, 126 App. Dlv. 802, 111

separate. Toomey v. Knobloch \[Cal. App.\]

$7. P 529.

58. Search Note: See notes in $6 L. R. A.

$95. 11 Ann. Cas. 811.

tions, Cent. Dig. SS 1228-1231, 1287, 1288, 1299;

Dec. Dig. SS 1240-1307; Dec. Dig. SS 525-588; 25 A.

$47. The city cannot use it for other purposes, and if the city may put of such

fund for expenses and engineering. It cannot

apppropriate more than is necessary for such

purpose. Conway v. Chicago, 237 Ill. 128, 86

$7. Where touches were issued to

tractors in connection with local improvements, upon receipt by the city of portions

of the assessment the interest ceased upon

the vouchers to the payment of which the

sums received were applicable. City of Chicago v. Hurtord, 238 Ill. 552, 87 NEX 325.

$4. A tender of payment of a certificate of

$2. of property under an assessment to the

"purchaser" under assignment of the certificate

date is insufficient under Hurt's Rev. St. 1905,

-c. 120, providing that receipt of redemption

money by a purchaser shall release all claims,

as the word "purchaser" means "assigence."

Ambler v. Glos, 237 Ill. 637, 86 NE 1113.

$5. Tender of payment of certificate of sale

made to assignor of certificate after assignor

ment and in absence of assignee held insuffled

client. Ambler v. Glos, 237 Ill. 637, 86 NE 1113.

$5. Agreement between owner and tax

collector to offset amount of assessment

$7. A bank paid a check purporting to be

$7.

- 1514 PUBLIC WORKS AND IMPROVEMENTS SS 9H. 12 Cur. Law. made enforcement of assessment impossible. \[50\] Where an assessment has been levied and collected by the city, the remedy of the contractor is assumpsit, \[50\] and where a city wrongfully diverts a special assessment fund, it becomes liable ex delicto in damages to the holders of warrants to the extent of such diversion; \[51\] but if a city neglect its duty to levy and collect an assessment, the remedy of the contractor is by mandamus \[62\] if he has performed his contract. \[53\] Suit for collection may be maintained by the officer authorized. \[54\] Owners must be joined in the manner prescribed. \[65\]
- _Pleading and proof. \[55\]_ 10 C. L. 1338--A petition to enforce an assessment must show that it has not been paid, \[66\] and there must be no variance between the description in the petition and tax bill. \[67\] A statute making tax bills prima facie evidence of their own validity does not affect rules of evidence. \[68\] It is presumed that the tax was levied for a lawful purpose and is a legal tax. \[69\] One objecting to an assessment has the burden to establish its invalidity. \[60\] An answer alleging that apportionment is bad must show that proper apportionment would be less. \[71\]

18 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS $ 9H. 1515

DefensesSee 10 C. L. 1889--A proceeding to enforce an assessment must be commenced within the period of limitations prescribed.\[72\] Harmless irregularities are not available as a defense,\[73\] and valid objections may be waived.\[74\] A defense that drainage commissioners were never legally appointed is untenable where the tax is to be paid by the district.\[75\] That the work was defectively performed is a good defense,\[76\] or that there was an illegal departure from the plan of work resulting in special injury.\[77\] A statute providing that the fact that work was improperly done is no defense if it is accepted, does not deprive an owner of the defense that the work done was not the work provided for.\[78\] A plea of set-off must show a legal set-off.\[79\] In action to enforce a special tax bill, failure of the mayor to sign the bill and clerk to attest, omission to file original bills as exhibits, or the fact that the bills are void or statute barred, are matters of defense which cannot be availed of on collateral attack on the judgment.\[80\]

The judgmentSee 10 C. L. 1841 as a general rule is not a personal one.\[81\] Costs should not be imposed against a drainage district on sustaining demurrer to a complaint by it.\[82\]

72 Under Laws 1903, p. 55, a. 15: Laws owners on a quantum merutt though his 1893, p. 147, c. 12; Laws 1893, p. 45, c. 15, limitations do not commence to run against the city. Snowfler v, Grove \[Iowa\] 116 N NVW 1056.

after it is due. City of Beaumont v. Rus-

77. Abutting owner not liable for assessments \[Tex. City. App.\], 112 SWP 950, Under

ment bill where illegal departure from re-

Ann. St. 1906, p. 344, an action to recover

quirements and specifications for construction of street resulting in special injury,

within five years after delinquency. State

Change 'wheerby surface drainage changed,

v. Wilson \[Mk.\], 115 SWP 549. Under Ball.

Philadelphia w. Bilyeu, $6 Pa. Super. Ct. 682.

Ann. Codes & St. 1150, action to enforce

owner not equipped from objecting to as-

assessments must be brought within ten

sessment bill where illegal departure from

years, and one who paid them and became

plan when change might have been certified to the right of the city to the

led to by chief engineer and surveyor, and

lien had no greater rights than the city.

Confics v. Smith \[VNash.\] 19 P 304. Bill to

ratification and waiver of special injury

charge a municipality a truste under an

act which required it to .levy and collect

Id. Act \[W\], 1843, P. L. 342, as to de-

taxes within a certain improvement district

fenses, no bar to objection to assessment

and from the fund pay interest on bonds,

which shows that the municipality has re-

ment. Id.

fused for twenty-five years to do anything,

78. Laws 1901, pp. 110, 114, amending Loc.

and that the bonds matured eight years

Imp. Act, $6, $3 (Hurd's Rev. St. 1899,

before autl brought, shows laches defeating

the suit. Eddy v, San Francisco \[C. C. A.\]

defense that work was improperly done if

162 F 44.

73. Where objections on sale of land for

drainage tax raise questions which can have

no possible effect on the validity of the tax,

the court may properly strike them from

provided for the ordinance where such

the files. People v. Sullivan, 238 Ill. 386,

78. Laws 306.

01. In a proceeding to enforce an assess-

ment, an objection that it was leveld to pay

a debt already incurred without right is

wavived by a stipulation that it was leveld

before any liability or indebtednes was in

curred. People v. Gunzenhauser, 237 Ill. 262,

86 NE 669.

75. In proceedings to collect a drainage

assessment, a contention that drainage com-

missioners were never legally appointed and

are at most merely de facto officers and

have no right to compel payment is untenable

when the tax is to be paid to the

district and not to them personally. Spring

Creek Drainage Dist. v. Joliet Com'rs, 238

III. 521, 87 NE 394.

76. Where a city has been enjoined from

levying an assessment on the ground that

the work was defectively performed, the

contractor cannot recover from abutting

it was improper to award execution, for

## 1516 Public works and improvements SS 9L 12 Cur. Law.

Sale and redemptionSee 10 C. L. 1841.--Proceedings for sale must conform strictly to statutory requirements. \[88\] A tax sale is void where the statute as to assessments failed to provide when each instalment was payable. \[84\] An order of sale may not be void because it fails to provide for redemption. \[85\] A decree of sale is conclusive as to questions which should have been raised during the proceedings. \[88\] Completion of the improvement is not a condition precedent to the sale of property to pay assessments. \[87\] Under some systems the sale for taxes merges all general and special taxes in one proceeding. \[88\] A city may properly appropriate money for the purchase of delinquent property. \[89\] , (SS 9) \_I. Recovery back of assessments paid. \[90\] --See 10 C. L. 1842.--Proceedings to recover back excess assessments paid must be brought within the period prescribed. \[91\] Excess assessments belong to all who have contributed to the fund. \[92\] Purchasers of land who are required to pay additional assessment on reapportionment after purchase have recourse against their vendor on his warranty. \[93\] In Iowa, provision is made for the refunding of assessments to abutting owners when a street railway company pays a portion of the cost of paving. \[94\]

costs against the district. Commissioners \[90\] -- Search Note: See Municipal Corporation--of Vermillion Special Drainage Dist. v. --Shockey, 238 Ill. 237, 87 NE 335. --Making demand in writing that city --Under Seattle City Charter, art. \[91\] --Under Seattle City Charter, art. \[92\] --, treasurement sell lands as subject to lien of street \[93\] -- 17, limiting right to recover excess assess--improvement is, under St. 1833, p. 36, c. 21, $ 5, a condition precedent to the right of a was made for four years, owner held barred bombardment to have the property sold, and the demand must refer to the exact property subject to sale. Where only the fee of \[92\] -- Under City Charter, art. \[93\] -- 17, the less subject to the lien, a demand to sell a fee and eastern its insufficient. Fox v. --Vorkman \[94\] -- 100 P 246. -- 84. Act Feb. 10, 1899 (30 Stat. at L. 834, c. 150), $ 5, defective. Buchanan v. MacFarland, 31 App. D. C. 6. Where act to remedy defect had not been passed at time of sale (Act July 1, 1902 \[32 Stat. at L. 616, c. 1352)\] -- 16, $ 85. Under Ky. St. 1903, $ 283, relative to apportionment warrants and sales therem-der, a judgment foreclisting anch warrant held not void because the order of sale failed to provide for redemption especially where there was no offer to redemption within the two years allowed therefor. Mayother v. Gast, 33 Ky., L. R. 395, 110 SW 808. Own-er held not prejudiced by form of the judge--G. --C. \[93\] -- 113 SW 125. In a suit to set vened. Id. --Decree of sale in suit to sell land for delinquent drainage reassessment precludes obligations on a subsequent bill to enjoin the sale that the owner is entitled to a credit and that reassessment was not properly ordered. Such objections should have been raised in the former suit. Harrington v. Dickinson \[91\] -- 15 Det. Leg. N. 996, 118 NW 931. -- 87. Sale of property for delinquent assessment, assessed by ordinance under Kansas--City Charter, art. \[91\] -- 33, and art. \[93\] -- 10, $ 8, requiring at least one park in each district, will not be enjoined because parks are not entirely completed. Corrigan v. Kansas City, 511 Mo. 608, 111 SW 115. -- 88. See Taxes, 10 C. L. 1776. -- 89. City of Chicago v. Union Trust Co. -- 138 Ill. App. 545. Mandamus proper to complement city to pay amount bid for delinquent property where city had appropriated sum to pay such bid. \[94\] -- 14. -- 1516--Proceedings for sale must conform strictly to statutory requirements. \[95\] -- 16, $ 134.--Proceedings for sale must conform strictly to statutory requirements. \[96\] -- 16, $ 134.--Proceedings for sale must conform strictly to statutory requirements. \[97\] -- 16, $ 134.--Proceedings for sale must conform strictly to statutory requirements. \[98\] -- 17, $ 134.--Proceedings for sale must conform strictly to statutory requirements. \[99\] -- 18, $ 134.--Proceedings for sale must conform strictly to statutory requirements.

12 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 9J. 1517

(SS 9) \_J. Remedies by injunction or other collateral attack, and grounds thereof.95-See 10 C. L. 1342-Defects rendering an assessment void, such as lack of jurisdiction of the proceedings 96 or failure to follow statutory requirements in levying an assessment, are available on collateral attack,97 but the collection of an assessment will not be enjoined for mere irregularities in procedure 98 which do not go to the jurisdiction,99 nor for grounds which have been waived by failure to present them in proper time 1 and manner 2 nor for objections which an owner is to fixing of liability of the company to per-cons entitled to recover. Id.

95. Search Note: See Municipal Corpora-Jurisdiction of the court is collaterality at-tacked. Pieper v. MacLaren, 106 Minn. 20, 815, 516; 25 A. & E. Eno. L (2ed.) 1239; 13 A. & E. Eno. P. & P. 318.

01. If a city council is without jurisdicdiction to levy an assessment, the question property taken of compensation so that may be raised at any time and in any kind of proceedings. Andre v. Burlington

\[Iowa\] 117 N NV 1082.junction will lie to waive irregularities and the injunction suit restraint a city council from proceeding un-deor color of right to reassess special taxes and relevy the same upon property when they have no authority to do so. Barkley

assessment proceedings cannot be attacked v. Lincoln (Neb.) 117 N NV 598. A suit by a taxpayer to enjoin a threatened assessment of the amount of the judgment. ment against the city for a debt exceeding the constitutional limitation is not pream-ture. Jordan v. Logan support \[Ind.\] 86 NEE

60, following Willard V. Froldapp. 89 Minn.

47. Though an answer in a suit to enjoin an assessment denies many of the allega-

purely administrative in character and tions of the complaint, yet, if affirmative

cannot be attacked in a suit to enjoin levy allegations show the assessment to be void, judgment is properly rendered for Menaire v. Greensburg \[Ind. App.\] 85 NEE 484. plaintiff on sustaining a demurrer to the answer and declination of defendant to lateral attack to proceedings for drainage plead further. Seattle Cedar Lumber Mfg.

assessments except such as question the Co. v. Ballard, 50 Wash. 123, 96 P 956.

97. Municipal authorities may be enjoined from doing threatened acts which will re-

87 NEE 394. Acts 1905, p. 406, requires the suit in misappropriation of public funds and entail on taxpayers the expense of contract and give bond to the approval of litigating void claims. Jordan v. Loganis-

the city authorities. The highest bidder port \[Ind.\] 86 NEE 47. The question of notice in inviting proposals for the work is

mitted it with a bond, but the city did not jurisdictional and may be raised. Menaire

authorize any official to execute the con-v. Greensburg \[Ind. App.\] 85 NEE 484.

tract and the bond was not formally ap-

Where assessment for township dich is in

proved. Held the irregularities did not af-

excess of benefits conferred, its collection

fact the jurisdiction and were not available may be enjoined notwithstanding trustees

in a suit to enjoin levy and collection of an

had jurisdiction to order improvement and

assessment to pay for the work. Menaire

all proceedings were regular. Stemen v. Greenstburg \[Ind. App.\] 85 NEE 484. An

Hixey, J Ohio N. P. (N. S.) 601. Where the

action by an owner to enjoin a drainage-

emplaining owner alleges that the assess-

ment laid upon his land is grossly in ex-

not be maintained unless the assessment is

cess of the benefits conferred, injunction

volt. Pumphrey v. Hollits \[Ind. App.\] 87

will lie notwithstanding it is directed

NE 255. A suit to enjoin the levy and collection of an

against the action of a judicial board, and

in such a case a court of equity may do

justee even though no errors found in the

tack on the proceedings of the city related-

proceedings. Stemen v. Hixey, 11 Ohio C.

C. (N. S.) 347.

98. In street opening proceeding where

necessity for opening street and value of

property taken was determined by different

juries and the city and parties whose proper-

and cannot be tried in a suit to enjoin levy

etry was taken did not object, held owners

assessed for benefits could not raise such

ible direction in suit to enjoin enforcement of

assessment. Bousener v. Detroit, 153

Mich. 585, 16 Det. Leg. N. 568, 117 NWP 220.

Judgments in local assessment proceedings

under the Charter of the City of St. Paul

stand upon the same basis as judgments in

1517 1518 PUBLIC WORKS AND IMPROVEMENTS SS 9J. 12 Cur. Law.

estopped to assert.\* Nor will equity entertain a bill for the sole purpose of vacating an assessment and restraining the collection of a tax as unauthorized.\* That others over whom the court had no jurisdiction were assessed, would not entitle one to restrain an assessment against his own land if the court had jurisdiction over him.5 In a suit to enjoin an assessment, all proceedings by which it was levied are presumed regular.6 A tax paper's action to enjoin collection of an assessment can

a judgment holding the original levy void. \[ that an assessment failed to charge the Kansas City v. McGrew \[Kan.\] 96 P 484. \[ they were proceedings under a prior ordinance\] failed to charge property benefited with its ware vacated and contract for the work abandoned and no Irregularity was shown in letting the contract under a subsequent ordinance, the prior ordinance and proceedings under it were not available as grounds for enjoining collection of assessment under the subsequent ordinance. Cosgrove v. Chicago, 255 III. 358, 85 NEC 599. In the absence of special equities, the court of chancery has no jurisdiction over assessments made in the course of municipal improvement and will not interfere by injunction to enjoin collection merely because the complainning party has lost his remedy at law by laches. Goodwin v. Millville \[N. J. EErr. & App.\] 71 A 674. Under Kirby's Dig. $ 568, requiring proceedings attacking an assessment to be commenced 30 days after publication of the ordinance, held owners, who filed cross bills in apt time alleging that assessments are arbitrary and not according to benefits and praying that it be declared void, make an appropriate attack. Klist v. Street Imp. Dist. No. 120 \[Ark.\] 109 SWV 526. Injunction restraining certification of assessments to county auditor, under Rev. St. 8297, operates to suspend power to eco certify only while injunction is in force, and period which may have elapsed in which certification could have been made prior to granting of injunction must enter into the computation in determining whether two years' limitation has expired. Bell v. Cincinnati, 7 Ohio N. P. \[N. S.\] 393. \[N. S.\] 2, Suit to enjoin drainage assessment should be dismissed for laches where plain-tiff signed drainage petition, had notice of all proceedings, was benefited, did not appeal from the assessment and permitted work to be done without objection. Von Cotzhausen v. Dick \[VWs.\] 119 NWV 822. \[Than board of local improvements made asurances that other streets would be improved, and failure to improve them forced additional travel onto the street in question to the injury of abutting property, is not ground for enjoining collection of the assessment since abutting owners had no right to rely on such assurance and fall to object to confirmation of the assessment. Cosgrove v. Chicago, 255 III. 358, 85 NE 599. \[Collection of a special assessment will not be enjoined in favor of one who has had opportunity to defend in the court where assessment proceedings were had and failure to make his defense there affords no ground for his application to equity to relieve him from the results of his neglect. Id. Under Hard's Rev. St. 1905, e. 24, $ 553. authorizing the court on application to re-vise an assessment to modify the distribution of the total cost between the public and the property benefited, etc., objections 12 Cur. Law. PUBLIC WORKS AND IMPROVEMENTS SS 9K. 1519

be maintained only on clear proof that authorities have acted, or are about to act, illegally or fraudulently.' In such suit, the court has nothing to do with the wisdom of the voters in adopting a proposition for construction of the sewer.' A property owner who seeks to enjoin issuance of bonds based on assessment for paying because of an irregularity in the proceedings must show the irregularity and that he was damaged thereby without fault on his part.' A tax payer, as such, may enjoin a threatened assessment for the construction of a sewer on the ground that it is for a debt in excess of the constitutional limitation, without showing special interest or damage.10 The rule that a tax payer cannot enjoin an assessment until a cloud is about to be wrongfully cast on his title, applies to cases involving the legality of a specific assessment.11 In a suit to cancel a tax bill, only issues raised by the pleadings may be proved.11 A charter provision that in actions on tax bills an owner may prove that the work was not done in a workmanlike manner according to contract applies when an owner sues to cancel the tax bill.18 In some states statutes prescribe a remedy in case of unjust assessment.14

(SS 9) K. Appeal and other direct review.15 See 10 C. L. 1344.--The right of appeal is purely statutory.16 Proceedings for review must be instituted within the

recind, the declaratory resolution. A com-plaint to enjoin an assessment alleged that after such hearing the declaratory resolution was not confirmed, etc., but another resolution ordering improvement was adopted. Held that as the latter resolution was as tp the same improvement, it would be presumed to be a final one. Mar. 15 that enviates. Rocusher \[Ind.\] SS 9K NSE SS21. Street paving assessments will not be en-N. 15,117 NWW 220. joined as excessive and inequitable unless so established by a preponderance of proof. 47. Prentice v. Toledo, 11 Ohio C. C. (N. S.) 129. One seeking to enjoin assessment was not claimed that bills were void be-level by city council on ground that a statutory requirement has been omitted has burden of establishing such fact by evil. Murt v. Cameron \[Mo. App.\] 117 SW 116. dence. Close v. Parker, 11 Ohio C. C. (N. S.) SS 85. An assessment for a street im-fraululent delay in the enactment of a com-prvement of $943.59 upon property-estimated after improvement by complaining owner's witnesses at SS2,800, although slightly above $3 1-3 per cent thereof, will not be inteforefed with as being in construction of $ 53 of the municipal code of 1902 (Rev. St. $ 1536-213), where there is other evidence that the assessment is less than $3 1-3 per cent of the value of the prop-perty as enhanced by the improvement. Prentice v. Toledo, 11 Ohio C. C. (N. S.) 299. 7. Mead v. Turner, 60 Misc. 145, 112 NYS 127. The enjoining of a special assessment is properly denied under Gen. St. 1901, SS 8175, 8176, on the ground that members of council were interested in the work where it appears that proceedings of mayor and council were regular, no fraud shown, and it did not appear that any member of the council was interested in the contract. Ferguson v. Coffeyville, 77 Kan. 391, 94 P 1010. S. Mead v. Turner, 60 Misc. 145, 112 NYS 127. 9. Lawton v. Racine \[Vis.\] 119 NWW 331. Bill to enjoin sale of land for drainage assessment because the amount complainant will earn under his contract to construct the drain will cover his assessment, its without equity. Harrington v. Dickinson time and perfected in the manner prescribed.17 Notice of appeal must designate the proceeding appealed from 18 and be served in the manner required by law.19 Findings on questions of fact by tribunals authorized to determine such questions in the first instance are not reviewable.20 Only such questions will be reviewed as were properly saved below 21 by proper objection and exception 22 and presented

Law! 72 A 49. Where a contractor sued a ferred to a board of appraisers, and after-city and an owner for an assessment, an appeal may be maintained in the name of the contractor and the city, from a judge-sessed is to apply to such tribunal for ment against the city, and dismissing the petition against the owner, though after judgment the contractor assigned his right of action to the city. Huseman v., content or appraisement was in any way In-Dersch, 33 Ky. L. R. 77, 109 SW 319. No equitable or unjust, Kerker v. Bocher, 20 provision for appeal by property owner (Oki, 729, 95 P 891. Under Hurd's Rey. St. who complains that assessment is grossly in excess of benefits which he will receive from improvement. Nor will error Ile in such a case, insamuch as there is no provision for a bill of exceptions, and even if transcript of the record of the township trustees was brought up, it would be of no assistance in determining the question whether the assessment exceeds the benefits. Stemen v. HIwey, 11 Ohio C. C. (N. S.)

Failure of commissioners in widening a street to assess a part of the cost to the city or against outside property, and the assessment of some property within the district, for less than Its proportionate share, is not reviewable. In City of Seattle \[Wash. 402, 97 P 444. The board proceedings are necessary parties to applicate proceedings therein. In re Farley Drainage Dist. No. 7 \[Iowa\] 120 NW 83.

18. Where notice of appeal from confirmation by city of an assessment described the proceeding appealed from with great particularly, it was not fatally defective In referring to the wrong condemation or dinance where the city was not misled. Barrett v. Seattle \[Wash. \] 97 P 1109. Application to court to set aside a special assessment referring to the improvement, and describing it in language used in order of the council, and also as one which the council ordered on a certain date, sufficiently designates the improvement. Park City Yacht Club v. Bridgeport \[Conn.\] 70 A 631.

01. Service on city clerk of notice of filing transcript in superior court, as required by Laws 1901, p. 242, c. 118, on appeal by the city council from confirmation of assessment, is not jurisdictional and is waived by general appearance by city attorney. Barrett v. Seattle \[Wash. \] 97 P 1109. Under Code $ 1947, giving an appeal from order of board of supervisors fixing an assessment in drainage proceedings, and $ 1513, 1946, where all petitioners for a drain were affected by the assessment, an appeal upon notice only to the county auditor and not to petitioners was properly dismissed. Poage v. Grant Tp. Ditch & Drainage Dist. No. 6 \[Iowa\] 119 NW 976. An appeal from action of board of supervisors in drainage assessment proceedings is ineffective to confer jurisdiction where notice of appeal was not served on petitioners. nor Acts $2nd Gen. Assem. 1907, p. 100, c. 95, compiled wfth. In re Farley Drainage Dist. No. 7 \[Iowa\] 120 NW 83.

01. When the estimate of benefits is re- by the record," unless the objection is jurisdictional." On a silent record all presumptions are in favor of the regularity of proceedings below." Under the rule that only constitutional questions may be presented to the supreme court on reserved questions, it will not consider a sewer assessment solely on an allegation that it was levied without regard to benefits, where it did not appear that benefits were not considered." A writ of review as applicable to proceedings of a city council in matters of street improvements may be used to bring before the reviewing court questions affecting the jurisdiction of the council to act either as to subject-matter or person, and to determine whether it has acted in the manner prescribed by law." Certiorari lies to determine regularity of petition of property owners for a street improvement and the certificate of the assessors thereto annexed." In certiorari to review an assessment, the city may move to quash the writ in the form presented by an amended petition though at the time of granting the amendments the court refused to quash the writ." The return of city officers is as much a part of the record as the assessment records in certiorari to quash an assessment."

**Puis Darrein Continuance; Purchase-Money Mortagnes; Purchasers for Value; Quarantines**

**Quasi Contract, see latest topical index.**

**QUESTIONS OF LAW AND FACT."**

**Province of Court and Jury in General, 1522. | Particuir Facts or Issues, 1525.**

_The scope of this topic_ is noted below."

are contrary to state laws and city ordinances are too general. Andre v. Burlington \[Iowa\] 117 NUV 1082.

1891, p. 221, c. 105, SS 393, 399, amended by Laws 1900. p. 1641, Code Civ, Proc. & 2140, cript on appeal from confirmation of an assessment is not in the record, its sufficiency cannot be determined. Barret v. Seattle \[Vwash.\] 97 P 1109. An estipped by judgment cannot be pleaded in a petition for a writ of review of an assessment, it not appearing in the record nor having been called to the attention of the council. Michel v. Portland \[Or.\] 99 P 851.

24. In suit by subcontractor against the principal contractor of the municipality to enforce a lien, the objection that the subcontractor had not given notice to the municipality as required by statute may be first raised on appeal. Priba V. W. J. Furnes Co., 238 III. 210, 87 NNE 854.

01. Since Laws 1903, p. 8, c. 7, authorizing a city to levy sewer assessments according to area of adjacent land, leaves it to the city to regulate the procedure, and there being no showing on reserved questions that the act is unconstitutional, it is presumed that proceedings were regular relative to notice and hearing. McGarvey v. Swan \[Vyv.\] 96 P 697.

01. McGarvey v. Swan \[Vyv.\] 98 P 697.

01. Michell v. Portland \[Or.\] 99 P 851.

Where a city erroneously assessed benefits on property in excess of 150 feet in depth, and on appeal the court orders reassessment to the extent of 150 feet in depth, and on further appeal the city does not complain of the decree, the appellate court will confirm the first assessment to the extent of 150 feet in depth and cancel the excess, and the tax as confirmed will draw interest but no penalties. Hedge v. Des Moines \[Iowa\] 119 NUV 276.

19 Curr. L.-- 96.\*\*

by the record," unless the objection is jurisdictional." On a silent record all presumptions are in favor of the regularity of proceedings below." Under the rule that only constitutional questions may be presented to the supreme court on reserved questions, it will not consider a sewer assessment solely on an allegation that it was levied without regard to benefits, where it did not appear that benefits were not considered." A writ of review as applicable to proceedings of a city council in matters of street improvements may be used to bring before the reviewing court questions affecting the jurisdiction of the council to act either as to subject-matter or person, and to determine whether it has acted in the manner prescribed by law." Certiorari lies to determine regularity of petition of property owners for a street improvement and the certificate of the assessors thereto annexed." In certiorari to review an assessment, the city may move to quash the writ in the form presented by an amended petition though at the time of granting the amendments the court refused to quash the writ." The return of city officers is as much a part of the record as the assessment records in certiorari to quash an assessment."

**Puis Darrein Continuance; Purchase-Money Mortagnes; Purchasers for Value; Quarantines**

**Quasi Contract, see latest topical index.**

**QUESTIONS OF LAW AND FACT."**

**Province of Court and Jury in General, 1522. | Particuir Facts or Issues, 1525.**

_The scope of this topic_ is noted below."

are contrary to state laws and city ordinances are too general. Andre v. Burlington \[Iowa\] 117 NUV 1082.

1891, p. 221, c. 105, SS 393, 399, amended by Laws 1900. p. 1641, Code Civ, Proc. & 2140, held that board of assessors' certificate as to signing of petition for paving by own-ciency cannot be determined. Barret v. Seattle \[Vwash.\] 97 P 1109. An estipped by judgment cannot be pleaded in a petition for a writ of review of an assessment, it not appearing in the record nor having been called Province of court and jury in general. See 10 C. L. 1846--Only a few general holdings are here presented, the subject being more fully presented in another topic." It is the province of the jury to decide questions of fact,34 and of the court to decide questions of law.35 In civil cases, issues that present only questions of law cannot be submitted to the jury,36 nor to the court when it sits as a jury.37 Whether there is evidence legally sufficient is for the court,38 and whether the evidence offered to establish a fact has a logical and reasonable tendency to do so is a preliminary question for the court;39 but there being such evidence, its sufficiency to establish the issue is for the jury.40 The jury are the sole judges of the credibility

thereto (see such titles as Contracts, 11 C. 844. In civil case, error to charge jury L. 729: Negligence, 12 C. L. 965; Master that they are the judges of the law and and and Servant, 12 C. L. 665; Railroad, 10 C. L. 1365; Street Railways, 10 C. L. 1730; Highway and Streets, 11 C. L. 1720; Wills, 10 C. L. 1025. The propriety of taking a

function that if jury believed from the

case from the jury is also treated elsewhere (see Directing Verdict and Demurrer)

ent cut any timber upon lands set out in

to Evidence, 11 C. L. 1085; Discontinuance,

petition which the jury believed were the

lands of plaintiff, they should find for plaintiff, otherwise for defendant, held erronee-

province of the jury (see instructions, 12 C. L. 218).

33. See Instruction, 8 2, 12 C. L. 219,

letter could be considered in violation of

-34. Livingston v. Taylor \[Ga.\] 85 RE 694;

obligations to laws of society. St. Louis & S. W. R. Co. v. Thompson \[Tex.\] 113

L. R. 270, 110 SWW 242; Cincinnati, etc., R. SWW 144. Not error to refuse to instruct

Co. v. Ewan, 33 Ky. L. R. 586, 110 SWW 847; Eugengrfield Trac. Co., 131 Mo. App. 134, 110

Coper v. Raitl \[Key.\] 116 SWW 748; Eugengrfield

tric Welding Co. v. Prince, 200 Mass. 386,

86 NE 947; Wilnfrey v. Ragan \[Mo. App.\] 36, 37. Dronenburg v. Harris \[Md.\] 71 A

117 SWW 83; McIntosh v. McNair \[Or.\] 92

74; Craver v. Ragon \[Tex. Civ. App.\] 11

88; Loomis v. Norman Printers' Supply

SWW 489: Condie v. Rio Grande W. R. Co., \[Co.\] 71 A 558; Patty v. Salem Flooring Millis Co. \[Or.\] 98 P 521. Negligence.

v. Rio Grande W. R. Co., & Utah, 287, 97 P

120. Good faith. St. Louis & S. W. R. Co. v. Thompson \[Tex.\] 113 SWW 144. Fact that

theor might have been countervailing test

theory does not destroy one's right to have

the theory of the case, as shown by test-

tracks, or some facts from which it might

mony submitted to jury. King v. Wabab

R. Co., 21 Mo. 1, 109 SWW 671. The decision

of every issue of fact in every case in

Georgia Is exclusively for jury. Davis v.

Insufficient to sustain a verdict for plaintiff, trial court held not bound to submit

a certain mechanical contrivance in form

of a pistol was or was not a pistol within

purview of Penal Code of 1895, $ 344. held a

question for jury. Mathews v. Caldwell

(Ga. App.) 63 SE 250. In action for breach

no evidence tending to show the fact.

of contract where plaintiff introduced test-

timony that skins were of merchantable

quality, question of quality one for jury. Hess v. Kautherr, 128 App. Dlv. 526, 112

NYS 832. Whether defendants' property

upon which assessment was laid was

juriously affected. Philadelphia v. Bilveru

36 Pa. Super. Ct. 562. Whether foreign cor

poration was actually engaged in business

within state in contemplation of the Bush

Law, held a question of fact for jury.

Dempster Mill Mfg. Co. v. Falkenberg

\[Kan.\] 95 P 1045. Rule that so long as a

question of fact exists it is for the jury

and not for the court obtains in will

tests. Scott v. Barker, 129 App. Dlv. 241,

113 NYPS 695.

35. Instruction submitting question of

law and fact to jury, erroneous. Cooper v.

Ratliff \[Key.\] 116 SWW 748; Cincinnati, etc.,

821. Where some evidence, question for

R. Co. v. Ewan, 33 Ky. L. R. 596, of witnesses \[41\] and the weight to be given the evidence." References of fact to be drawn from testimony is for jury, \[43\] but to entitle a case to submission to the jury, there must be substantial evidence to establish the elements of the cause of action." While it is for the jury to determine conflicting evidence \[45\] and to draw conclu 1524QUESTIONS OF LAW AND FACT. 12Our. Law.

sions from established facts where reasonable minds might differ in respect thereto,**4** the court may decide an issue where the evidence is undisputed,**47** or where there is no substantial conflict therein,**48** and where the evidence will permit of but one reasonable inference;**49** but it is not in every case where the test-timony upon a particular issue is uncontradicted, even when sufficient to establish the ultimate facts sought to be proven, that the trial judge can treat the question as one of law and take issue from the jury,**50** and there may be a question of fact when all the witnesses are worthy of belief and no witness contradicts another.**51** An issue of fact, in order to authorize its submission to the jury, must arise both from the pleadings and the evidence,**52** Ordinarily the question as to whether there is sufficient evidence to shift the burden of proof is one for the jury.**53**

**conflict as to the time Interlineation of a** **held improper. Mobile, etc., R. Co. v. Jackson judgment was made, question one for jury** \[Mis.\] 46S 142. Error to frame issue of to determine. Mayhew v. Smith, 42Colo. 534, 85P 549. Where evidence is conflicting, here though the preponderance with one of\*\* **terest, was uncontradicted. State v. Licht-parties, issue is one for jury. Messir v.** **man-Goodman & Co., 131 Mo. App. 65, 109. McLean \[VWash.\] 98 P 106. Where test-smony is positive, unequivocal, and corroborated by circumstances, but impacached by** **A.1 165 F 179.**

**direct and circumstantial evidence, issue** **48. Muskogee Land Co. v. Mullins \[C. C. A.\] one for jury. Scard v. Albenberg Co., 138**

**Wis. 622, 118 N NV 179.**

**46. Toppi v. McDonald, 128 App. Div. 448.**

**47.112 NYS 821. If** **conceded facts are** **man's duties are undisputed and such that** **such that reasonable minds might differ as** **to the conclusion to be drawn, the question** **is for jury. Still v. Sman Francisco & N. W. R.**

**follow-servant relation exists is a question of** **Co. \[Cal.\] 98 P 672; Perrine v. Union Stock-yards Co. \[Neb.\] 116 NV 776; Cauer V. Bal-Co. \[Mo. App.\] 114 SWV 567. Where evidence is** **time & O. R. Co. 311 App. D. C. 139: Sans Sans**

**Bois Coal Co. v. Janeway \[Okl.\] 98 P 153: Sans**

**Galyeston, etc., Co. v. Thompson \[Tex. Civ. for**

**417; Loomis v. Norman Primeters' Supply conclusions from the evidence where reasonable minds might differ as**

**sonable minds might differ in respect**

**theteto. Baltimore Refrigerating & Heat-pell the court in the exercise of sound juling Co. v. Kremer \[Md.\] 71 A 1066; Clemons v. Chlesgo, etc., R. Co., 137 Wis. 387, 119.**

**NVW 102; Cleveland, etc., Co. v. Gosset \[Ind.\] 87 NE 723; Putnam v. Phoenix Pre-ferred Acc. Ins. Co. \[Mich.\] 15 Det. Leg. N. 980, 118 N NV 922. Whether Herman was negligent, Toppi v. McDonald, 128 App. Div. 448, 112 NYS 821. As to existence of fellow-servant relation. Sambos v. Cleveland, etc. R. Co. \[Mo. App.\] 114 SWV 567. Proximate cause.**

**Louisville & N. R. Co. v. Keffer \[Ky.\] 113 SWV 438. Question of negligence. Sambos v. Cleveland, etc., R. Co. \[Mo. App.\] 114 SWV 567. Whether the facts are controverted or not. More-Jonas Glass Co. v. West Jersey & S. R. Co. IN. J. Err. & App.\] 72 A 66. If**

**from the evidence on contested issues, though uniform and uncontested different inferences reasonably may be deduced, a question of fact for jury arises. Moelmans v. Gieze-Henselmeier Lumber Co. \[Mo. App.\] 114 SWV 1023.**

**47. Bell v. Carter \[C. C. A.\] 164 F 417; Cooper v. Ratliff \[Ky.\] 116 SWV 748. Where**

**ded contained a warranty of "a perfect and unincumbered title to the property conveyed," and uncontradicted evidence as to one of the lots showed a paramount, outstanding title, held error to submit questions as an open one for jury. Perkins Co. v. Willeox \[Ga.\] 63 SE 831. Instruction submitting as a doubtful question matter on which there is no conflicting evidence.**

**48.**

**49.**

\*\*4 18 Cur. Law. QUESTIONS OF LAW AND FACT. 1525

Whether a given subject is one concerning which an expert may express an opinion,54 and what are the qualifications necessary to entitle a witness to testify as an expert, are questions of law for the court,55 but whether a certain witness has such qualifications is a question of fact.56

\_Particular facts or issues,58e 10 C. L. 1347--Only a few general holdings are here presented, the question as to whether particular issues are of law or fact being treated in the topic dealing with the particular issue.57 Questions of fact are sometimes, though inaccurately, called questions of law because they are for the court and not for the jury.58 What is a reasonable time when the proofs are conflicting is often a mixed one of law and fact,59 but where the facts are undisputed and different inferences cannot reasonably be drawn from the same facts, it is a question for the court,50 but ordinarily the question of reasonable time,61 motive and intention,62 and acceptance,68 are of fact for the jury, but where there is no controversy as to the facts, the question of probable cause is one of law for the court.64 When the intention of a party is to be ascertained from disputed or ambiguous circumstances, the necessary inferences to be drawn are for the jury,65 and it is for the jury to find the effect of any determination they may reach,68 but this rule does not preclude the court from relieving the jury of the labor of determining a subsidiary question submitted, after reaching a conclusion on a primary one necessarily determining the controversy, as they must unavoidably see without being informed on the subject.69 An admixture of oral and written evidence draws the whole to the jury.66 Where proof of a fact depends upon oral testimony, the proof is for the jury,66 and when the narrative is of oral admissions, made sometime before, although the precise words are important it is seldom that a question of fact is not presented.76 The judge is to construe and interpret contracts and other written instruments that are clear and specific,71 but where their terms are of doubt-

54, 55, 56. Keefe v, Shillivan County R. ence might have been drawn from facts Co. \[N. H.J 71 A 379. 57. See Negligence, 12 C. L. 966, and like Lumber Co. v. Munshaw & Co. \[Neb.\] 118 topics. 58. Whether reasonable time had intervened for owner to make an inspection after taking title to premises held one of fact in particular case. Timlan v. Dilworth \[N. J. Err. & App.\] 71 A 33. 58. Timlan v. Dilworth \[N. J. Err. & App.\] 71 A 33. 60. Timlan v. Dilworth \[N. J. Err. & App.\] 71 A 83; Luhn v. Fordran \[Tex. & App.\] 71 A 83; Luhn v. Fordran \[Tex. & App.\] 115 SW 687. A period of time may be so short or so long that a court would under proper conditions be justified in declaring it unreasonable. Loomis v. Norman Printer's Supply Co. \[Conn.\] 71 A 388. 61. Luhn v. Fordran \[Tex. & App.\] 115 SW 687. What is a reasonable time under circumstances in any given case is for jury. Loomis v. Norman Printer's Supply Co. \[Conn.\] 71 A 358. 62. Cooperative Co.-operative Creamery Co. v. Lemon \[C. C. A.\] 163 F 145. 63. Question as to whether insurance policy had been accepted are of fact for jury. Manson v. Metropolitan Surety Co., 128 App. Div. 571, 112 NY 886. 64. Question of probable cause held one for jury. Slater v. Taylor, 31 App. D. C. 100. 65. Rule particularly applicable where there was some conflict and ambiguity in circumstances and where different infer-

54, 55, 56. Keefe v, Shillivan County R. ence might have been drawn from facts Co. \[N. H.J 71 A 379. 57. See Negligence, 12 C. L. 966, and like Lumber Co. v. Munshaw & Co. \[Neb.\] 118 topics. 66. Sicard v, Albenberg Co., 138 Wis. 622, 118 NW 179. 67. Instruction that if jury answered first question in the negative they need not answer the second not objectionable. Sicard v. Albenberg Co., 136 Wis. 622, 118 NW 179. 68. When matters depending on oral testimony are connected with and necessary to a proper understanding of written evidence, court not bound to consider and give effect to the latter as though it stood alone. Winters v. Schmitz, 36 Pa. Super. Ct. 496. 69. Philadelphiaphia v, Bliveu, 36 Pa. Super. Ct. 562. 70. Toueey v. Hastings, 194 N. Y. 79, 88 NE 831. 71. Queen City Pire Ins. Co. v. First Nat. Bank \[N. D.\] 120 NW 545; Cleveland, etc., R. Co., V. Gossett \[InJ.\] 87 NE 723. Construction of written evidence is exclusively with the court. O'Brien v. Pabst Brew. Co., 51 App. D. C. 56. Where terms of a contract of sale are evidenced by letters and telegrams, it is the duty of the court to construe the contract and declare its terms to the jury, Mann v. Urquhart \[Ark.\] 116 SW 219. In action for con-

59 is in expelling ful or ambiguous meaning, and parol evidence is introduced to show the intention of the parties, their construction becomes one for the jury,\[72\] as is also the existence and effect of foreign laws.\[73\] While the interpretation of a foreign law, if found in a single statute or in a single decision, the construction of the language of which is not in dispute, presents a question of law for the court,\[74\] yet, where the law is to be determined by considering numerous decisions which may be more or less conflicting, or which bear upon the subject collaterally or by way of analogy, and where inferences may be drawn from them, the question to be determined is one of fact for the jury.\[75\] Where a writing is not a depositive instrument but is put in evidence merely to show an extrinsic fact, it is for the jury to say what inference is to be drawn therefrom.\[76\] Whether or not an agent is duly authorized to manage some affairs for his principal is a matter for the court.\[77\]

QUETING TITLE.

- 1. Chancery and Statutory Remedies and $ 2. What is a Cloud or Conflecting Claim, Rights, 1526. Title and Possession, 1531. $ 3. Procedure, 1532. _The scope of this topic_ is noted below.\[78\]
- 1. Chancery and statutory remedies and rights.\[79\] See 10 C. L. 1548--Equity has inherent power independently of statute to entertain suits to quiet title and to remove clouds.\[80\] Statutes conferring jurisdiction upon equity courts for this purpose are merely declaratory of existing powers and do not operate to confer additional ones.\[81\] Where by local statute a bill to remove a cloud will lie independently of possession, the enlarged equitable right thus created may be enforced by a federal equity court where grounds of federal jurisdiction exist.\[82\] Where the plaintiff has an adequate remedy at law, equity will not entertain jurisdiction.\[83\]
- 1. Chancery and Statutory Remedies and $ 2. What is a Cloud or Conflecting Claim, Rights, 1526. Title and Possession, 1531. $ 3. Procedure, 1532. _The scope of this topic_ is noted below.\[78\]
- 1. Chancery and statutory remedies and rights.\[79\] See 10 C. L. 1548--Equity has inherent power independently of statute to entertain suits to quiet title and to remove clouds.\[80\] Statutes conferring jurisdiction upon equity courts for this purpose are merely declaratory of existing powers and do not operate to confer additional ones.\[81\] Where by local statute a bill to remove a cloud will lie independently of possession, the enlarged equitable right thus created may be enforced by a federal equity court where grounds of federal jurisdiction exist.\[82\] Where the plaintiff has an adequate remedy at law, equity will not entertain jurisdiction.\[83\]
- 1. Chancery and Statutory Remedies and $ 2. What is a Cloud or Conflecting Claim, Rights, 1526. Title and Possession, 1531.

12 Cur. Law. QUETING TITLE SS 1. 1587 Equity, however, has jurisdiction to cancel a cloud on title notwithstanding there may be a complete defense to any attempt to enforce the instrument constituting such cloud.\[44\] The test is whether the complainant would be required to resort to extraneous proof to defeat an attempt at law to recover the land.\[85\] Title to easements \[86\] and water rights may be quieted.\[87\] The complainant may be required to do equity as a condition to relief.\[88\]

\_Title and possession.\_See 10 C. L. 1340.-As a general rule and independently of statute,\[89\] both possession \[90\] and legal title \[91\] are necessary to maintain the action.

title flowing from tax sale proceedings were insufficient to render plaintiff's poscould not be reached. Boon v. Root, 137 session disputed, he having consructures WIs. 451, 119 NWP 121. No jurisdiction to possession through tax ded which vwa remove cloud on plaintiff's title caused by subfelect to make his possession "peace-conveyance under ancestors will from which will be was omitted, defendants being in possession, but equity would give re-security does not deprive grantor of poscesion such omitted child. Rowe v. Allison session within St. 1066, p. 78, c. 59, 1, \[Ark.\] 112 SWV 395.

146. No defense to suit to cancel covenant is by himself or his team in actual and in deed by one church to another, re-preceding use of property deeded for church purposes only, that such restrictive cove-etc, 153 Cal. 711, 96 P 807. Placing fish nant is unter noticeable. Reetor of St. Stephen's Church v. Rector of Church of Transfiguration, 114 NYS 623.

001. It is no answer to say that plaintiff could defeat an action of ejectment brought by defendant, true test being wards, 236 Ill. 168, 86 NZE 212. While MIMIs whether he would be put to extraneous evidence to do so. Greene v. Boaz \[Ala.\]

17 S 255. Held that defendants' minimments meet is immaterial where defendant al-of title were such as to make out prima facie case if ejectment were brought, and would put plaintiff to extraneous proof to defend recovery. Parker v. Miller-Brentmuller Co. \[Ala.\] 47 S 580.

86. Title may be quieted as to right to cut timber and as to esements in connection therewith. Gazos Creek Mill & Lumber Co. v. Coburn \[Ca.\] 96 P 359.

01. Action to determine extent and privice ority of a water right partakes of nature of action to quiet title to real estate. Taylor v. Hulett \[Idaho\] 97 P 37.

01. One who seeks to have his title quieted as against an invalid tax sale must, before he is entitled to relief, reimburse defendant for back taxes paid by him with interest. Larson v. Peppard \[Mont.\] 99 P 138. Vendor under conditional deed cannot have title quieted upon nonperformance by vendee where latter has paid a portion of purchase money and makes a good tender of remainder, the right to the premises being then in him. McCullough v. Rucker \[Tex. City. App.\] 115 SWV 233. In action to quiet title as against a recorded unperformed contract of sale, plaintiff as vendor must tender performance on his part as a condition precedent to obtaining relief sought. Kane v. Borthwick, 50 Wash. 8, 96 P 516.

01. Independently of state state, bill to remove cloud upon title will not lie where plaintiff not in actual possession. Amerim-chain was not in actual possession. Amerim-chain was not in actual possession. Amerim-chain was not in actual possession. Amerim-chain was not in actual possession. Amerim-chain was not in actual possession. Amerim-chain was not in actual possession. Amerim-chain was not in actual possession. Amerim-chain was not in actual possession. Amerim-chain was not in actual possession. Amerim-chain was not in actual possession but that defendant's cannot miss a record of the same amount of time. Townsend v. Penrose, 84 Ark. 316, Dupoyster v. Dunn \[Ky.\] 113 SWV 880.

105 SWV 588. Evidence held to show defenders' acts of posting notices and em-hever been in actual possession of over-ploying an attorney to prevent trespasses' helping boundary in dispute and were Such rule has, however, been greatly modified by statute. Thus in some states it is sufficient if the plaintiff have constructive possession.92 In Kentucky, the plain-

therefore not entitled to maintain action under Ky. St. $ 11 (Russell's St. $ 14). Cockrell v. Colson \[Ky.\] 116 SWV 75. Actual possession of a tenant in common, claimming in hostility to complainment, another tenant in common, whose title is, in part only, denied, is not for purpose of the act, the possession of such other tenant. Country Hormes Land Co. v. De Gry, 71 N. J. Elq. 83, 71 A. 340. Action not maintainable where complaint showed that defendants were in possession under claim of title. Generator v. Jenkins, 80 S. C. 223, 61 SE 283.

91. Compainment held to have title: Although a deed of trust had been given as security, grantor still retained an "estate of inheritance" which would enable him, sustain under St. 1906, p. 78, c. 59, $ 1, to bring action, notwithstanding City. Code v. $ 833 provides that every express trust in real estate vests whole estate in trustee. Charles A. Warren Co, v. All Persons, claiming any Interest, etc., 153 Cal. 771, 96 P 807. Qutelam ded which grants, sells, remises, and releases the premises held to constitute sufficient foundation for defendant's counterclaim, praying degree to quiet title. Adams v. Hartzell \[N. D.\] 119 NVV 635. One claiming as riparian owner title to island may maintain action against one who occupied it under claim that it was not patented to plaintiff. Moss eanche him to maintain action. Doty v. Ramey, 14 Idaho, 598, 95 P 513. Conveyance by widow under power to plaintiff who had rendered personal service to testator and wife held to be made for adequate consideration and to convey good title to plaintiff notwithstanding no claim for services had ever been presented to executor. Gogreve v. Day, 10 Ohio C. C. (N. S.) $9. On question of disputed boundaries, evidence held to show that land intended to be conveyed to plaintiff's ancestor was located within plaintiff's grant. Whitaker v. Poston \[Tenn.\] 110 SWV 1019. Where neither husband or wife had any beneficial interest in real estate purchased in name of wife and thereafter conveyed to a third person, title of latter was properly quieted. Dodds v. Dodds \[Wash.\] 85 P 748. Defective location notice when coupled with possession of mining claim under peaceful try sufficient color of title to warrant finding in favor of locator. Protective Min. Co. v. Forest City Min. Co. \[Wash.\] 89 P 1032.

Complainant held not to have title: Evidence held insufficient to show that occupancy of lands under tax certificate gave title, such certificate not being sufficient to give color of title under statute. Towns, end v. Penrose, 84 Ark. 316, 105 SWV 588. Plaintiff, claiming through tax sale, not entitled to judgment where tax ded was void. Chatfield v. Iowa & Arkansas Land Co. \[Ark.\] 114 SWV 473. Holder of mort mortgage, merely, to land as only record evidence of title, had no title sufficient to enable him to maintain suit. Castro v. Adams, 153 Cal. 385. 95 P 1027. Evidence of deed under foresclosure proceedings with sufficient to establish title where assignment to mortgage of mortgage foreclosed 12 Cur. Law. QUETING TITLE $ 1.

to28

tiff must show actual possession at the commencement of the action for quieting his title "" but need not have possession in order to remove a cloud therefrom." In Alabama, peaceable possession without title is sufficient,"5 and in Missouri the plaintiff need only show that his title is better than that of defendant." Possession may be taken for the purpose of the suit if it is not tortious and if it does not disturb a prior possession of another," but possession obtained by unlawful and forcible entry will not support the action." When possession is established, it is prima facie evidence of title sufficient to sustain the action." Where it appears that the title is outstanding in a third party, no action will lie." In certain cases, however, another than the true owner may bring the action." A plaintiff may have his title quieted to so much of the land as he is in possession and owner of, although the persons against whom he asserts title may have a superior title to part of the land." One who has acquired title by adverse possession may go into equity to remove a cloud therefrom." The plaintiff must rely on the strength of his own title

93. Under Ky. St. 1903, $ 11, plaintiff must take for purpose of suit if it is not torti introduce testimony to show that he was intious and if it does not disturb a prior pos-actual possession at time of institution of session of another. Kraus v. Congdon \[C. suit if such possession he denied. Horn v. C. A.\] 161 F 18.

Bates \[Ky.\] 114 SW 768. One not having 98. Possession obtained by unlawful and actual possession at time of institution of forcible entry cannot be availed of to file suit cannot maintain action to quiet title bill to remove cloud or quiet title, but it under Ky. St. 1903, $ 11, authorizing such may be availed of to defeat a bill for that suit by one who owns title in actual pos-purpose by the ousted party, where he had session. Actual possession in defendant.

Dupyster v. Turk, $ 38 Ky. L. R. 320, 110 O'Donnell, 234 Ill. 109, 54 NEE 668.

SWV 260. Evidence of occupation and possession 94. But to remove cloud from title is insufficient to show title. Castro v. Adams, different from a suit to quiet title under 153 Cal. 382, 95 P 1027. Evidence held in-Ky. St. 1908, $ 11, which authorizes one In sufficient to show such possession in plain-ownership of and in possession, to institute iff as would support presumption of title am equitable suit to quiet title, possession from possession. Hebden v. Bina \[N. D.\] not being necessary to maintain suit to re-move cloud. Carwood v. Howard \[Ky.\] 114 NWF 85.

Infeld that defendants had established 113 SWV 109. Dead made and recorded sub-an outstanding title to lands in contro-sequent to defend from same grantor to very by showing that patent from the plaintiff cancelled as cloud in plaintiff's ti- United States was in third party. Rogers tle, although neither party was in posses- Y. Clark Iron Co., 104 Minn. 198, 116 NWF 739.

version of premises. Id. Where relief sought was cancellation of deed made by one claiming to own land under mortgage, plaintiff was entitled to relief regardless of fact that he was not in possession.

Tucker v. Witherbee \[Ky.\] 113 SWV 123.

95. Code 1896, $ 809, Code 1907, $ 544s, provides that a person possession, who cannot bring an action at law. may bring action to quiet title against one supposed to have some claim to premises. Complaint need not have title, peaceable possession alone being necessary. The re-spondent has the burden of proving his claim. VWhitaker v. Van House \[Ala.\] 47

8 741. Evidence held to show that mar-riped woman had by antimptial agreement acquired a right as against her husband to treat property as feme so; consequently her deed to husband, through which complainment claims, passed title to them as against respondents. Id.

89. Under Rev. St. 1899, $ 650 (Ann. St. 1906, p. 667), where both parties claim title through a common source, plaintiff need not establish title against the world but need only show that his title is better than that of defendant. Charles v. White, 214

01. Under Ballinger's Ann. Codes & Wash, St., 5551, immaterial that possession is 124 NWF 85.

01. Under Ky. St. 1903, $ 11, plaintiff must take for purpose of suit if it is not tortiduce testimony to show that he was intious and if it does not disturb a prior possession at time of institution of session of another. Kraus v. Congdon \[C. Suit if such possession he denied. Horn v. C. A.\] 161 F 18.

Bates \[Ky.\] 114 SWV 768. One not having 98. Possession obtained by unlawful and actual possession at time of institution of forceible entry cannot be availed of to file suit cannot maintain action to quiet title bill to remove cloud or quiet title, but it under Ky. St. 1903, $ 11, authorizing such may be availed of to defeat a bill for that suit by one who owns title in actual pos-purpose by the ousted party, where he had session. Actual possession in defendant.

91. Under Ky. St. 1903, $ 11, plaintiff must take for purpose of suit if it is not tortiduce testimony to show that he was intious and if it does not disturb a and not upon the weakness of that of his adversary.5 Suing out writ of possession by defendant is a confession that complainant has sufficient possession to maintain action to remove cloud.6

DefensesSee 19 C. L. 1861.--The right to maintain the action may be lost by laches' or by operation of the statute of limitations.8 The plea of the statute of limitations set up by defendant is an affirmative defense of which he has the burden of proof.9 Title in defendant 10 or in a third party is a complete defense,11 as is a former settlement.12

dead to plaintiff's grantor entitled to have his title to such interference quieted al-though not expressed in deed, it appearing that his grantor had occupied premises by the grantor. Castro v. Adams, adversely to defendants for 30 years. Asher v. Cress \[Ky.\] 115 SWV 252. Surviving trustee who was also beneficiary under will executed trust dead to property in question and for 17 years enjoyed together with other beneficiary the benefits of the conveyance. In suit by one of purchasers under trust, held that trusted was valid and judgment was properly entered barring rights of trustee or her son as beneficiaries and those claiming under them from act- timing up claim to premises conveyed by trustee. Doscher v. Wyckoff, 68 Mise. 414. 113 NYS 655. Evidence held insufficient to establish prescriptive title in plaintiff or his predecessor in suit for cancellation of defendants' title. Wizgins V. Brewster \[Ga.\] 62 SE 40. S. Doty v. Cedar Rapids \[Iowa\] 119 NWV 132. Burden of proof held to be upon plaintiff to show that lands were land and not lakebed at time of government survey, later being prima facie shown by fact that premises were within meander line. Little v. Williams \[Ark.\] 113 SWV 340. Where both plaintiff and defendant claimed under void tax sales, judgment must be for defendant since plaintiff must rely on his own title. Meyer v. Snell \[Ark.\] 116 SWV 208. 6. Collier v. Geessing \[C. C. A.\] 160 F 604. 7. Where land in controversy was wild and unactivated, and neither complainants, the fee owners, nor defendants claiming under tax sale were in possession, and defendants, aside from paying taxes, did nothing with reference to the land from a sense of security caused by complainant's inactivity, complainants were not barred by laches. In -floration aan & Arkansas Lumber & Mfg. Co. v. Milburn \[C. C. A.\] 161 F 581. Uneexcluded delay of fourteen years, during which plaintiff's grantor had exercised no act of ownership over land. precluded plaintiff from maintaining action to quiet title on imitrator, coupled with open and undisfround that a deed regular in form and duly recorded was executed by him in blank and name of grantee inserted without au- and hc ah & Stephenson v. Austin \[Md.\] 116 SWV 1090. mortgage. Butler v. Peterson, 79 Neb, 713, 116 NWV 515. Where heir who was a co-tenant with other heirs allowed latter to preventaser under foreclosure of mortgage given by heirs and widow, and made no claim of title during his life, his heirs remainder to defendants, was not void as claiming under him were barred by laches, agent creditors, and was consequently suteruarse. Likens v. Likens, 136 Wins, 321, sale for grantor's debt, and to deed made provided that price should be paid as soon settlement of claim by execution creditor.

## 8 What is a cloud or conflicting claim

See 10 C. L. 1882.-A cloud on title is a semblance of a title either legal or equitable, or a claim of an interest in land appearing in some legal form, but which is in fact, unfounded, extrinsic facts being required to show it to be invalid.14

Morehead v. Allen \[Ga.\] 63 SE 607. Evl-dence held to sustain finding that defend-ant intended to convey all her right to property in controversy, and that she in fact did so, and that complainant was entitled to have his title quieted. Johnson v. Smith \[Mich.\] 15 Det. Leg. N. 633, 117 NWF 568. In an action, to quiet title against a sheriff's deed on execution Sale, on issue whether execution was so issued on judgements as to preserve their lien after a year from their rendition, or whether directions were given to the officer not to levy the executions, but to let them explore, evidence held to show that no such directions were given. Gouwens v. Gouwens, 237 Ill. 506, 86 NB 1067.

11. Component for defendants who were in adverse possession to defeat action by showing that title was outstanding in a third person without connecting themselves with that title. Rogers v. Clark Iron Co., 104 Minn. 198, 116 NW 739.

01. Where rights of the parties have been fully adjusted by a settlement, and deerees entered in pursuance thereof, no suit to quiet title can be maintained. Armstrong v. Campbell \[Iowa\] 118 NW 898. In suit to remove cloud, evidence held to show that defendant claiming under recorded conveyances from executors of common source of title had no notice of plaintiff's deeds from heirs, such deeds not being reordered, and consequently not valid as against defendant. West Coast Lumber Co. \[W. Va.\] 61 SE 341. Contract allowing dee- v. Griffin \[Fla.\] 48 S 86.

01. Search Note See notes in 4 C. L. 1171; 45 A. S. R. 373; 7 Ann. Cas. 334.

See, also, Quieting Title, Cent. Dig. $ 4, 14-38; Dec. Dig. $ 6, 7; 6 A. & E. Enc. L. (2ed.) 160.

14. Allett v. American Strawboard Co., 337 Ill. 55, 86 NE 685. The clouds upon title which equity will remove are instruments of other proceedings in writing which appar of record and thereby cast doubt upon validity of record title. 1d.

Held to constitute cloud; Deeds never delivered and placed on record by fraud. Bowers v. Cottrell \[Halo\] 69 P 386. Void deceds given by wife to secure husband's debts. Pierce v. Middle Georgia Land & Laumber Co. \[Ga.\] 61 SE 114. Quietlam dated given by heir who only had a continent remainder which never vested. Dickerson v. Dickerson, 211 Mo. 483, 110 SW 700.

Deeds executed by mother to son as gift and placed in escrow, to be delivered at plain-d.

117S death, but fraudulently obtained and placed on record. Baker v. Baker \[Cal. App.\] 100 P 892. Instrument recorded as deed, but ratally defective because of vague description. Dillon v. Hegarty \[Pa.\] 70 A 938. Tax deed obtained by lite tenant's wpfle through fraudulent collusion with him, 100 App. Div. 166, 114 NYES 623. Mort-operating to deprive remadment of their interest. Soon v. Root, 137 Wis. 451, 119 NWF 121. Recorded deed conveying owner's hand to certain persons, to be by them sold and portion of selling price returned to

## 3 Procedure

See s C. L. 1978. An action to quiet title must be brought in the county where the real estate is situated.\[16\] The federal circuit court has jurisdiction of a suit to quiet title within the district where the suit is brought, although neither of the parties are resident in the state where the land lies.\[17\] Where adverse claims are made by the same party, title to several pieces of property may be quieted in the same action.\[18\] Suit may be brought at any time within the term required to perfect title by adverse possession.\[10\] The filing of a notice of his pendens is not necessary to confer jurisdiction.\[20\]

\_Process.\_See 8 C. L. 1977. The subject of process is fully treated elsewhere.\[21\]

\_Parties.\_See 10 C. L. 1952. All parties claiming an interest in the property involved may properly be joined as defendants,\[22\] but parties not asserting an adverse claim need not ordinarily be joined, although the outstanding title may be in them.\[23\] Where all persons interested are joined, the ultimate rights of all the parties may be determined.\[24\] A personal representative cannot maintain the action under statutes providing that suit may be brought only by one claiming ownership.\[25\] The United

interest, such certificate being acquired by plaintiff. Stone v. Marshall \[Wash.\] 100 12 Cur. Law. QUIENTING TITLE SS 8. 1533

States may bring an action to remove cloud in title to lands held by an allottee under a trust patent.20

\_Bill, complaint or petition.\_See 10 C. L. 1883--The ordinary rules of pleading apply," including those as to multifariousness 23 and joinder.20 The construction of the complaint is determined on the question of whether the suit is one to quiet title.20 The plaintiff must allege ownership,21 that he is in possession,22 that defendant claims adverse interest in the real estate,23 and that such claim is unfounded.24 If possession be alleged upon information and belief merely, objection must be made by motion and not by demurrer.25 If the plaintiff claim by default

26. Unauthorized deed given by heir of

caused by sale of such land for taxes, no Indian allottee under trust patent may be

one being made party to suit as purchaser removed as cloud under state law, and pos-

or holder of adverse claim. Turner v. Jack-

session not necessary in such case unless

son Lumber Co. \[C. C. A.\] 159 F 923.

made so by local law. United States v.

31. Tate v. Rose \[Utah\] 99 P 1003. Suff-

Leslie, 167 F 870.

fident to allege and prove that title was

27. Plaintiff has no cause of action if it

vested in a deceased owner at the time of

appears that his petition describes prop-

his death, without alleging ownership, at

erty totally different from that used for

the commencement of action, since such

and evidence tends to show that his au-

ownership will be presumed to continue. Id.

thor intended to convey the property de-

32. Under Code Civ. Proc. $ 1638, requir-

scribed. Barbier v. Nagel, 121 La. 979, 46

ing that plaintiff have been in possession

S 941. Bill deragning title through patient from state, and alleging that defendants claim under tax deed from state to

for one year, held that failure to allege

such possession is fatal. O'Donohue v.

in liquidating leave board, and that they rely

not alleging in whose possession premises

on Laws 1888, p. 40, c. 23, that through ir-

are, insufficient. O'Donohue v. Smith, 180

regularities such tax sale was void, held to

App. Div. 214, 114 NYS 536. Finding that

state cause of action as against demurrer.

complaint was in possession and was the

Clark v. McNell \[Miss.\] 46 S 836.

owner 12 years before filing petition, and

25. Bill to construre trust deed under

wish plaintiff claimed, and to quiet title,

sufficient to show possession where petition

held not demurable for multifariousness

was filed. Lister v. Gies, 286 Ill. 95, 86 NE

because defendants claimed title to several

180. No suit could be maintained to quiet

separate parcels of land in dispute. Berger

v. Butler \[Ala.\] 48 S 685.

had been left out of ded under foreclosure

29. Bill asking that trust deed under

proceedings by mistake, where proof showed

which plaintiff was truste be construed,

that complaints were not in possession

and that title be quoted as against several

when bill was filed. Delaney v. O'Donnell,

subsequent grantees of grantor of trust

234 Ill. 109, 84 NE 688. Bill for queting

deed, not demurrable for misjoinder, as all

title not demurable for failure to allege

parties interested in subject-matter were

ttice and possession, where it waers that

proper parties. Berger v. Butler \[Ala.\] 48

plaintiff was truste under trust deed, that

$ 685. Action to remove a trust deed as

cloud, based on theory that such deed was

forged, is a distinct cause of action from

that he has not disposed of any part

that presented by theory that such trust

ded was valid, but that its foreclosure was

48 S 685. Complaint must allege that plain-

void. Hendricks v. Calloway, 211 Mo. 536,

111 SWP 60.

30. Where complaint in one paragraph

Bill to set aside conveyance of undivided

prayed that title might be quoted, and in

interest in remainder executed during in-
another paragraph prayed that deed which

was alleged to constitute the cloud be de-

int. O'Donohue v. Smith, 110 App. Div.

livered to plaintiff, finding that plaintiff

was owner of premises, that defendant did

33. Plaintiff must not only allege owner-

not have claim thereto, and that plaintiff

why and possession or right of possession,

was entitled to have his title quiet, was

but must set up that some one disputes his

a disposition of the case on theory that it

rights and who the person is that disputes

was one to quiet title. Johnson v. Zimmer-

them. Tate v. Rose \[Utah\] 99 P 1003. Bill

man \[Ind. App.\] $4 NE 541. Complaint al-

filed under Comp. Laws, $ 448, providing for

leging that plaintiff was owner under tax

release to plaintiff if he establishes his

ded, that land was unoccupied by under a contract for the sale of land, he must plead all his equities thereunder.86 Fraud and undue influence may be proven upon complaint and answer, though not pleaded by the plaintiff.87

\_Answer, cross complaint and other pleadings.88e 10 C. L. 1354--An averment of ownership and possession set up by defendant does not require a reply.89 No reply is necessary to a plea of the statute of limitations.90 The cross complaint need not anticipate defenses.40 A bare denial of plaintiff's title is sufficient to raise the issue.41 Title to lands claimed by defendants not included in plaintiff's patents cannot be litigated by way of cross complaint,42 but otherwise where defendant's title rests upon an executed contract.43

_Evidence.88e 10 C. L. 1354--The burden rests upon the plaintiff to establish his title to the premises by sufficient evidence.44 Where the defendant seeks to defeat the action by showing an outstanding title in a third person, the burden rests upon him to establish such outstanding title.45 Cases dealing with the admissibility of particular testimony on questions of title,46 possession,47 and other matters, will be found in the notes.48_

12 Cur. Law. QUISTING TITLE SS 3. 1535

\_Trial.\_See 10 C. L. 1355.--The sole issue to be tried is the right, title or claim of the parties to the action.46 It is within the discretion of the court to allow the bill to be amended so as to include a prayer for the removal of a cloud,50 and where all the parties are before the court, a mistake in the description of a deed to part of the property in question may be corrected, although the suit is one to quiet title to a larger tract embracing it.51 Where the cause of action stated is to reform a deed and the question of quieting title is only incidentally involved, a new trial as of right will not be granted although the quieting of title be included in the prayer.52

\_Findings, decree or judgment.\_See 10 C. L. 1355.--The plea of the statue of limitations, presenting a material issue, requires a finding.53 The actions being an equitable one, the court may, as a condition for relief, require reimbursement to the losing party for taxes paid by him, together with interest,54 and the prevailing party should be given a reasonable time in which to comply with such requirements.55 The court may in a proper case grant affirmative relief, although only general relief is prayed,56 but affirmative relief as against the plaintiff cannot be granted unless warranted by the pleadings.57 The findings and judgment should describe the land with such definiteness that its precise limits will appear from the description itself.58 A judgment quieting title cuts off any lien which the vendor might have for ownership to which land was adapted was sufficient to establish fact of actual possession. Poole v. Lake Forest, 238 Ill. 305, 87 NE 320,

48. In action to quiet title against instrument conferring mining privilege, oral test-clumpy of plaintiff admissible to explain ambiguous nature of instrument. Payne v. Neuval \[Cal.\] 99 P 476. In action to quiet title as against contract allowing mining privileges, evidence that oil was not discovered in vicinity until after contract was executed was admissible. Id. Evidence that amount rendered by vented in default under that land contract, as against which plaintiff sought to have title quated, was furnished by vendee's prospective purchaser, immate-rial. McCullough v. Rucker \[Tex. Civ, App.\] 115 SW 323. In suit by vendor under land contract to quiet title against vende in default, amounts received by defendant as result of contract made by him for sale of premises immaterial. Id. Not error to admit evidence concerning conversation between grantor of mining privileges, which grant was subject of suit to quiet title, and deceased grantee's superintendent respecting abandonment of contract. Payne v. Neuval \[Cal.\] 99 P 476. Llenas against third persons as shown by execution docket not competent in suit to quiet title. Wiggins v. Brewster \[Ga.\] 82 SE 40.

01. Code 1896, 8 89. Defendant claiming undivided interest to land, legal title of which was in corroboration of which he was a member, held to have no title or interest in property as against plaintiff in possession. Dickinson v. Harris \[Ala.\] 47 S 78.

01. Where bill and answer show that action is one for removing cloud on title, but prayer of bill simply asks that instrument be declared a simple obligation for payment of money. Dillon v. Hegarty \[Pa.\] 70 A 998.

01. Daniel v. Middleton \[Ky.\] 118 SW 721.

01. Garrick v. Garrick \[Ind. App.\] 87 NE 649.

01. In absence of evidence to support plea,

## 1536 Quo Warranto $ 1.

This purchase money, \[5\*\] and where the validity of a certain deed is the sole issue, such judgment is no bar to an assertion of title or possession under other deeds. \[6\*\] The title to a mere easement may be quieted only for such period of time as is necessary for the plaintiff to carry out the purpose for which it was granted. \[6\*\] An injunc-tion to maintain the status quo of the property may properly be granted as a remedy incident to the suit. \[6\*\] A master's decree is effective to pass title, regardless of the correctness of the decision. \[6\*\]

## 154 Quo Warranto

Nature, Function, and Occasion of the $ 4. The Information or Compilaint, 1539. Remedy, 1536. $ 5. Answers and Other Plendings and Motions to Quash and Dism 18 Cur. Law. QUO WARranto $ 1. 1537

An information by the state at the instance of the attorney general to forfeit the licenses of foreign corporations and the charter of a domestic corporation for mis-user is a civil and not a criminal proceeding.74 Quo warranto is the general remedy to try title to office 75 but is not always exclusive,76 and the fact that there may be an ample and adequate remedy in equity does not mean that the remedy by quo warranto must fail where both remedies are provided by statute.76 With respect to those rights which the state only may assert, as the questioning of corporate existence, quo warranto is the exclusive remedy,77 and where the ousting of an incumbent of the office claimed is necessary, mandamus cannot be maintained.87 Quo warranto is the proper remedy to exclude an illegally elected school officer from office,78 to try the legality of a removal from office,79 to oust one having forfeited his office,79 to oust a city from the exercise of assumed and unwarranted corporate power,79 to test the validity of an election by which territory was annexed to a municipality,79 to amend a "franchise,79" to oust officers of a private corporation

visions of $ 1208a, held not an officer en-titled to maintain quo warranto. State v. People v. Sheehan, 128 App. DIV. 743, 118 Houck, 11 Ohio C. C. (N. S.) 414. NYS 230.

76. State v. Standard Oil Co. \[Mo.\] 116 SW

01. Quater proper where no ward in city 902.

01. Where there is no statutory provision for contesting the election of an officer of an incorrect proof, the same must be contested in proceedings in the nature of quo warranto. Ham v. State \[Ala.\] 47 S

as against a new board appointed by the mayor: writt of ectortorial denied. In re

78. Rellef in equity to determine rights of parties to action for injunction. Munsel v. Injunction held not proper remedy School Boyd, 10 Ohio C. C. (N. S.) 121.

01. Both remedies provided by Comp. Laws, $ 9755 et seq., and Comp. Laws, $ 9950

01. Quo warranto to recover office of Laws, $ 9755 et seq., and Comp. Laws, $ 9950

et seq. People v. Michigan Sanitarum & Benney. Asa", 151 Mich. 452, 15 Del. Leg. N.

34, 115 New 423. Though remedy in equity under Comp. Laws, $ 9755 et seq., quo warranto may be used to Inquire into right of corporation to exercise powers in excess of its charter, under Comp. Laws, $ 9955 ot seq., especially since, In latter proceeding, corporation may be restrained from exercising any franchise or privilege not conferred upon it by law without necessarily causing a forfeiture of charter. Id. Contention that in quo warranto proceedings donations which corporation had accepted for purposes of its incorporation would be lost to the public in case of ouster held not to de-feat quo warranto proceedings where under information, if true, it would be necessary for court, even in equity to take control of employees not meant the remedy by quo warranto must fail where both remedies are provided by statute.76 With respect to those rights which the state only may assert, as the questioning of corporate existence, quo warranto is the exclusive remedy,77 and where the ousting of an incumbent of the office claimed is necessary, mandamus cannot be maintained.79 Quo warranto is the proper remedy to exclude an illegally elected school officer from office,79 to try the legality of a removal from office,79 to oust one having forfeited his office,79 to oust a city from the exercise of assumed and unwarranted corporate power,79 to test the validity of an election by which territory was annexed to a municipality,79 to amend a "franchise,79" to oust officers of a private corporation

visions of $ 1208a, held not an officer en-titled to maintain quo warranto. State v. People v. Sheehan, 128 App. DIV. 743, 118 Houck, 11 Ohio C. C. (N. S.) 414. NYS 230.

76. State v. Standard Oil Co. \[Mo.\] 116 SW

01. Quater proper where no ward in city 902.

01. Where there is no statutory provision for contesting the election of an officer of an incorrect proof, the same must be contested in proceedings in the nature of quo warranto. Ham v. State \[Ala.\] 47 S

as against a new board appointed by the mayor: writt of ectorial denied. In re

78. Rellef in equity to determine rights of parties to action for injunction. Munsel v. Injunction held not proper remedy School Boyd, 10 Ohio C. C. (N. S.) 121.

01. Both remedies provided by Comp. Laws, $ 9755 et seq., and Comp. Laws, $ 9950

01. Quo warranto to recover office of Laws, $ 9755 et seq.

where the officers are actually in possession of the offices," or to question the right to exercise the franchise of a corporation." Title to a public employment as distinguished from an office cannot be so tried," nor will the writ issue to determine whether there has been an abuse of discretion in letting a public contract." Laches will preclude one from maintaining the action," but the right to proceed by information is open throughout an official's term of office."

SS 2. _Jurisdiction._" _See 10 C. L. 1359_--Power to issue the writ usually exists in courts of both original " and appellate jurisdiction," but the latter will not ordinarily entertain the proceeding if it involves the trial of complicated facts."

SS 3. _Parties and the right to prosecute._" _See 10 C. L. 1359_--In quo warranto proceedings to try title to a public office, the state is a necessary party " unless the statute provides otherwise," and the state's name should appear as part of the title in the action," but the omission thereof from the title is a formal defect which may be remedied by amendment." A city granting the right to operate an interurban railway upon its streets is a proper party in a quo warranto action to amend the

or unlawfully holds or exercises a "fran-chise" within the state (People v. Consoli-dated Gas Co., 115 NYS 383). Action by attorney general not maintainable against gas company to prevent further exercise of rights in streets on ground that municipal grants or consents to use streets have terminated by expiration of period to which they were granted, consents not being "franchises" within $ 1948, or if franchises, matter being local, city could by appropriate proceedings withdraw its consents. Id. Comp. Laws, $ 9950 and succeeding sections, held to cover information to oust a charitable hospital from exercising rights in excess of its charter and from carrying on business for individual profit, and for holding more properly than it was legally entitled to and claiming it exempt from taxation. People v. Michigan Sanitariums & Benev, Ass'n, 151 Mich. 452, 15 Det. Leg. N. 24, 115 NW 423.

SS. Certiorari dended, quo warranto to out or mandamus to compel board to recognize authority of the president being proper remedy. Overman v. Manly Drive Co. \[N. J. Law\] 71 A 1125.

SS9. Proceedings held to question right to exercise franchise or privilege of a corporation as authorized under Civ. Code of 1896, c. 94, and not to Inquire by what right they exercise the prerequisites of the operation. Code of 1896, c. 94, and not to Inquire by what right they exercise the prerequisites of the operation.

12 Cur. Law. QUO WARRANTO SS 4. 1539

franchise,4 but a municipality, though it might be joined as a party defendant, is not a necessary party to a proceeding challenging one's right to hold the mayorality of a town because of the unconstitutionality of the act under which he was elected;' and when in a quo warranto proceeding or one in the nature thereof the existence of a municipality is denied, the proper respondents are the usurping officials who wield municipal powers and not the municipality whose existence is denied.\* Taxpayers within the territory of a village illegally incorporated have a sufficient special interest in having the village incorporation declared illegal to maintain quo warranto to determine the existence of the village against persons assuming to act as village officers,7 but leave to conduct quo warranto proceedings to test the legality of the organization of municipal or quasi-municipal corporations will not be granted at the instance of private relators having no interest in the subject-matter distinct from the public,8 and the fact that the relator is under indictment by the grand jury of the alleged defectively organized county does not vest in him any distinct or special right within the meaning of the law.9 One corporation may be joined with another when charged in quo warranto proceedings with abuse or usurpation of corporate rights.10 A proceeding to try the validity of a corporate organization may be brought either against the corporation or against the individuals comprising it.11 Mandamus lies to compel the district attorney to perform his statutory duty of instituting quo warranto proceedings.12

\_Leave to file an information._See 10 C. L. 1360_--The attorney general or district attorney, as the case may be, is the proper one to determine in the first instance whether an office has been usurped and when the interests of the public justify a resort to quo warranto to try title to a public office or franchise.18

\_Process.\_See 10 C. L. 1361

SS 4. _The information or complaint._14_--See 10 C. L. 1361_--An information in the nature of quo warranto challenging one's right to hold the mayorality of a town because of the unconstitutionality of the act under which he was elected is not necessarily defective for failing to set out the facts which make the act unconstitutional,18 nor is such information objectionable for failure to join the municipality as a party defendant.16 In proceedings to determine the respective rights of the relator and respondent to an elective office, an information is sufficient if facts are alleged from which the conclusion follows that relator received the highest num-

pleading being amendable. Anderson v. \[ing only in degree. State v. Olson \[Minn.\] Myers \[N. J. Law\] 71 A 139. 119 NNV 799. 4. City a proper party under Gen. St. 100. Since charge relates to individual 1901, SS 5150, authorizing action to be contract between corporation and state. brought by a person claiming to an interest adverse to the franchise which is the subject of the action. City of Olathe v. 588. 12. 132. 133. 134. 135. 136. 137. 138. 139. 139. 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. 210. 221. 231. 241. 242. 243. 244. 245. 246. 247. 248. 249. 251. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270. 271. 272. 273. 274. 275. 276. 277. 278. 279. 281. 282. 283. 284. 285. 286. 287. 288. 289. 290. 291. 292. 293. 294. 295. 296. 297. 298. 300. 301. 302. 303. 304. 305. 306. 307. 308. 309. 310. 311. 311. 312. 313. 314. 315. 316. 317. 318. 319. 320. 321. 322. 323. 324. 325. 326.

1540 QUO WARRANTO SS 5. 18 Cur. Law.

ber of votes cast of any candidate for the office; **17** hence it need not allege that the votes were canvassed and returned as required by law,18 nor, where relator's right to the office is grounded upon the proposition that a legislative act is unconstitutional, that the act is unconstitutional where the supreme court has pronounced the act in conflict with the constitution.18 In proceedings to oust certain school district officers because elected under a void act, the petition need not allege that the act was void on the ground that it was a special act concerning a subject to which a general law could have been made applicable,20 nor is it necessary that the state either placd or prove the conditions existing in the territory affected, or in other school districts in the state, in order to question the constitutionality on the ground that a general law could have been made applicable.21 An information in the nature of quo warranto against certain corporations to forfeit their franchises and licenses as authorized by statute, alleging a combination to regulate, control and fix prices,22 and where it charges defendants in general terms with forming a pool, trust or combination constituting usurpation of corporate powers, it is sufficient without specifically charging the facts showing the pool, trust or combination,23 and where it charges respondents with acts which were unlawful per se, the information is not defective for failure to charge the means by which such acts were accomplished.24 In cases of usurpation and ouster, averments that defendant usurps, unlawfully holds over and exercises the office are sufficient against demurrer,25 but not under statute providing for the rendition of judgment determining the party entitled to the office, since in such case the complaint must set out the facts upon which the relator relies to sustain his title to the office, and, so far as practicable, specify the objections intended to be made to the title of the respondent.24

Footnote 18: https://www.statute.com/

SS 5. _Answers and other pleadings and motions to quash and dismiss.27-Sec 10_

c. L. 1858--A demurrer admits the truth of the averments that are well pleaded,28 but a demurrer to an answer in quo warranto proceedings that "neither of said paragraphs of the answer contains facts sufficient to constitute an answer to plaintiff's complaint and information" presents no question for determination.29 A frivolons and irrelevant answer may properly be stricken,29 and, under statute, a replication which in effect denies the averments in the return that the respondent has substantially complied with the terms of the ordinance under which a franchise is used is bad.21

Footnote 37: https://www.stat 12 Cur. Law. QUO WARRANTO SS 6.

**SS 6.**_Trial and judgment._\*\*\*\*See 10 C. L.\_\*\*\*\*In quo warranto proceedings,**${}^{ ttt ss}$** questions not within the issues in the case cannot be considered,**${}^{ t ss}$** nor will evidence which is not in conformity with the theories and the law of the case be admitted in evidence;**${}^{ t ss}$** but in such proceedings to try title to an office, the burden of showing a clear title to the office may be placed upon the respondent by the averments of the information,**${}^{ t ss}$** for where the application shows that the relators were lawfully entitled to the office when a city elects to reorganize, and when respondents were elected, and the return does not show the term and expiration of relator's office, the court may assume that the term had not expired when respondents were elected.**${}^{ t ss}$** The theory upon which a case rests must be determined from the general tenor and character of the pleading, viz., upon the theory that is most apparent and clearly outlined by the leading averments,**${}^{ t ss}$** and in proceedings to oust another from a public office, and to award the relator title thereto, the latter must establish that under the law he was eligible to be elected to the office in controversy,**${}^{ t ss}$** for a recovery can be had only upon the strength of the relator's own title to the office.**${}^{ t ss}$** Where a proceeding is against parties as individuals and not in their official capacity, the cost may properly be adjudged against them in a judgment of ouster,**${}^{ t ss}$** but in proceedings based on unlawful usurpation of franchises not granted, in the absence of mala fides or a stubborn persistence in the usurpation, the corporate existence and legitimate franchises of the company will not be forfeited.**${}^{ t ss}$** Where a person has wrongfully been deprived of his office for an alleged disqualification, the court will not oust the person elected to fill the vacancy and restore the relator to the office when in his petition he admits the fact of such disqualification,**${}^{ t ss}$** and proceed-

ance of conditions precedent. State v. (ents, though applleation did not aver pre-Tampa Waterworks Co. \[FIa.\] 48 S 639.

else date when the members of old board 32. Search Notei Seee Queo Warranto, Cent. were elected, nor show term of their office Dlg. SS 68, 69, 71, 72, 74, 75; Dec. Dlg. # 57.

and date of expiration thereof. State v. 58, 60, 61, 63, 64; 62 3A, & E. Enc. L (zed.)

Waldrop \[Ala.\] 48 S 394.

626; 17 A, & E. Enc. P. & P. 479.

37. Where application showed that re-S3. Action against traction company held

lators were lawfully members of board of 1 in the nature of quo warranto. State v. 54 education on March 3, 1908, when city Lincoln St. R. Co., 80 Neb. 333, 118 NWP 326.

elected to reorganize under Act Aug. 13, 34. Questions whether or not, if law au-1907 (Gen. Laws 1907, p. 790), etc., assump-thories it, city may or may not by proper

tion justified. State v. Waldrop \[Ala.\] 48 proceedings seek to revoke license by

S 394.

stepped held by it, or as to extent or duration of equitable right of railway company

ing from election of July 3d, leading allegations of information, and evidence lead-issues. State v. Lincoln St. R. Co., 80 Neb. 335, 118 NWP 326. Question as to the amount

des and its maturity will not be determined

In quo warranto proceedings to annul a franchise. City of Olathe v. Missouri, etc., R. Co. \[Kan.\] 98 P 42.

88. In proceedings to recover possession of office which relator resigned on condition that a certain other person who was

Inelightble should be appointed his successor, evidence that the latter, after his alleged appointment, proposed, without relator's

Knowledge or authority, to reagin his right for a stipulated sum, held inadmissible under theories and law of case. State v. Huff

\[Ind.\] $7 NE 141.

36. Where application for quo warranto to determine the right to membership in a board of education showed that relators were 'lawfully entitled to hold the office, were in office, with undigputed right, when respondents were elected by the council of city who had adopted Act of Aug. 13, 1907 (Gen. Laws.1907, p. 892), and averred that respondents had usurped and were usurping such office, burden of proof on responda ings by information to try title to an office against usurpers and intruders have reference to conditions at the time the action is brought.\[44\]

SS 7. \_New trial and review.\[45\]\_See 19 C. L. 1865.-Questions of law arising in the determination by the board of canvassers and registration of the result of an election, properly raised in quo warranto proceedings, may be reviewed and finally settled by the supreme court,\[46\] and the court's statement as to the theory of a case is not binding on appeal where it does not appear from the general tenor of the information, or from the character of the evidence introduced in support thereof, that the parties acquiesced in that theory.\[47\] On appeal from a judgment denying a petition for quo warranto, objections and exceptions as to errors which do not appear on the face of the judgment order or pleadings must be preserved by bill of exceptions,\[48\] and affidavits filed in a case do not become a part of the record sent up on appeal, unless made so by being incorporated in the bill of exceptions.\[49\]

Racing.\[40\]

_The scope of this topic is noted below.\[51\]_

A bookmaker ruled off the track by the judges is not entitled to judicial relief until he has exhausted his remedies within the racing association.\[52\]

RAILROADS.

1. Definitions and General Nature of Rail-

Ings with Other Railroads, Street

Rallways and Canals, 1557. Private

Connections, 1557. Cattle Guards,

Like, 1543.

Pences and Stock Gaps, 1558.

Drainags and Disposal of Surfaces

Voter, 1558. Obstruction of Water-

courses, 1559.

the Requirement Thereof, 1545.

Grants in Highways and Streets,

1545. Right of Eminent Domain,

0001. Private Grants, 1547. Adverse Possession and Estoppel, 1548.

Right to Cross Right of Vway of

Other Roads, etc., 1548. Abannon-

ment of Right of Wray, 1549. Establishment of Highway Over

Rights of Wray, 1549.

S. Aids and Bonness, 1549.

S. Taxes, Fees and License Charges, 1550.

S. Public Control and Regulation, 1550.

Control by Railroad Commissions,

1551.

S. Construction and Maintenance, 1552.

Establishment and Maintenance of

Depots and Grounds, 1553. Private

Farm Crossings, 1553. Public Cross-

Ings, 1554. Grade Crossings and

the Abollition Thereof, 1555. Cross-

counell in a case where it was without au-

c. 353, held reviewable by supremms court.

thority to determine the fact of such disqualification. Holbrock v. Smedley \[Ohio\]

87 NE 269.

44. Proceedings under Rev. St. **1** 4612-

01. Toncray v. Budge, 14 Idaho, 621, 95

P 26.

45. Search Note: See Quo Warranto, Cent.

Dlg. **1** 70, 76; Dec. Dig. **1** 59, 62; 17 A. & E. Enc. P. & P. **4** 486.

46. Under Const. art. 12, **1** 1, questions of law, though not raised below, but not of fact, involved in determination of board of canvassers and registration of city of Providence under Pub. Laws 1896, p. **65**, 45.

Railroads,

Ings with Other Railroads, Street

Rallways and Canals, 1557. Private

Connections, 1557. Cattle Guards,

Frances and Stock Gaps, 1558.

Drainags and Disposal of Surfaces

Voter, 1558. Obstruction of Water-

courses, 1559.

the Requirement Thereof, 1559.

Grants in Highways and Streets,

1545. Right of Eminent Domain,

0001. Private Grants, 1547. Adverse Possession and Estoppel, 1548.

Right to Cross Right of Vway of

Other Roads, etc., 1548. Abannon-

ment of Right of Wray, 1549. Establishment of Highway Over

Rights of Wray and Other Lands, and

Rights of Wray, 1549.

S. Aids and Bonness, 1549.

S. Taxes, Fees and License Charges, 1550.

1550. Public Control and Regulation, 1550.

Control by Railroad Commissions,

1551. Construction and Maintenance, 1552.

E Establishment and Maintenance of

Depots and Grounds, 1553. Private

Farm Crossings, 1553. Public Cross-

Hags, 1554. Grade Crossings and

the Abollition Thereof, 1555. Cross-

counell in a case where it was without au-

c. 353, held reviewable by supremms court.

Gainer v. Dunn \[R. L\] \*\*69 A 851.

47. State v. Scott \[Ind.\] **86** NE 409.

87 NE 269.

48, 49. People v. Drainage 12 Cur. Law. RAILROADS $ 3.

B. General Rules of Negligence and Contributory Negligence, 1667.

C. Injuries to Passengers and Freight, 167.

D. Injuries to Employees, 1572.

B. Injuries to Licenses and Trespassers, 1572. Employees of Other Roads and Independent Contractors, 1575.

Persons at Station, 1575.

L Loading and Unloading Cars, 1576.

Children on or Near Tracks, 1576.

Adults Vraking on Tracks, 1577.

Persons Standing, Sitting, or Lying

on Tracks, 1579. Persons in Switch

Yards, 1580. Persons on Trains,

1580. Persons Using Hand Care or

Railroad Ticycles, 1582.

F. Accidents to Trains, 1582.

G. Accidents at Crossings, 1682.

Double Damages and Attorney's

L Care Required on the Part of

the Company, 1582.

S 12. Remivend Corporations, 1611.

I. Contributory Negligence, 1587.

**H. Injuries to Persons on Highways or**

panels, 1613.

Private Premises Near Tracks, 1592.

**S 14. Onenses Relating to Railroads, 1614.**

_The scope of this topic is noted below. \[54\]_

SS 1. Definitions and general nature of railroads. \[54\]\_ See 10 C. L. 1886._A railroad having large property interest in a city may be an "inhabitant" thereof within a statute authorizing the city to maintain waterworks to supply its inhabitants. \[55\]_

SS 2. _Franchises, licenses, permits, and the like. \[56\]_ See 8 C. L. 1891._Franchises granted by a city must be granted in the manner prescribed by statute. \[57\] On the termination of the corporate existence of a railroad organized under the general railroad laws of New York, franchises, rights and privileges granted by a city do not cease. \[58\]_

SS 3. _Route, location, termini, and stations. \[59\]_ See 10 C. L. 1896.\_In the absence of statute, \[60\] a railroad company may ordinarily select its route and may choose between localities for a consideration moving to itself. \[61\] Where the articles of in-

SS3. The duties and liability of railroad \[1892, p. 1811, c. 687\], $ 30, for creditors, companies as common carriers (see Carriers, 11 (C. L. 499), their liabilities to employees (see Master and Servant, 12 C. L. 685, 115 NYY 551.

665), Interurban electric lines (see Street Railways, 10 C. L. 1730), and matters common to all corporations (see Corporations, 11 C. L. 810), are elsewhere treated.

SS4. Search Note: See notes in 66 L. R. A. 33; 4 Ann. Cas. 448.

See, also, Railroads, Cent. Dig. $$ 2-4; Dec. Dig. $$ 2-4; 18 A. & E. Enc. L (2ed.) $60; 29 Id. 138.

55. Within Laws 1870, p. 1161, c. 519.

Delaware, L. & W. R. Co. v. Buffalo, 115 NYYS 657.

56. Search Note: See notes in 2 L. R. A. (N. S.) 138, 887; 12 Id. 326; 4 Ann. Cas. 910; $ 16.

See, also, Railroads, Cent. Dig. $$ 1, 9, 26-30, 39-44, 62-69; Dec. Dig. $$ 1, 8, 13, 14, 18, 19, 31, 32; 18 A. & E. Enc. L (2ed.) $61; 28 Id. 673; 29 Id. 139.

57. Section 23. Charter of Lake Charles, providing that "no franchise" shall be granted except upon competitive bids after publication, held to apply to railroads passing through and to be mandatory. Glll v. Lake Charles, 122 La. 1019, 48 S 440.

01. Where acted upon pass to directors as trustee, under Gen. Corp. Law (Laws 1544 RAILROADS SS 3. 12 Cur. Law.

corporation are only required to designate the proposed termini, a description of the route therein may be treated as surplusage.\[62\] The company must follow the statute as to the manner of locating.\[63\] Where a route has been located and adopted by a railroad company, title thereto passes to it as against other companies,\[64\] and equity will protect its priority for a reasonable time.\[65\] The road as constructed must follow the location.\[66\] A railroad company may, for the purpose of discharging its public duties, change the location of its route,\[67\] unless it is prescribed by law.\[68\]

While the location of stations and depots is usually left to the discretion of the railroad company, the power of location has been conferred on the railroad commission in some states.\[69\] Such power, however, must not be arbitrarily exercised,\[70\] and the enforcement of an unreasonable order will be enjoined.\[71\] While public policy forbids any private contract which may hamper a company in the discharge of its public duties,\[72\] reasonable contracts for the location of stations and depots are valid.\[73\] A distinction must be made between a contract controlling the under facts alleged it must be presumed require railroads to build and maintain that defendants intended to form railroad solution and that options were for bene- louisiana R. & Nav. Co. v. Railroad Commission, 121 La. 848, 46 S 884. Statute au- gz Company will not be confined thereto. Pacific R. & Nav. Co. v. Astoria & C. R. R. Co. \[Or.\] 99 P 1044. Where terminus as described in charter is merely Chicago, reasonably necessary, to execute such order. company may locate any where in city. Chicago & N. V. R. Co. v. Chicago Mechanics Institute, 229 Ill. 197, 87 NE 938.

83. Where record proof of location has been lost or destroyed, secondary evidence of compliance with statutory requirements may be introduced. United States Peg Wood, Shank & Leather Board Co. v. Ban- gz Company for A. R. Co. \[Me.\] 72 A 190, Where road has been maintained and operated for 25 years over land without objection and record proof of location has been destroyed, every presumption in favor of regularity of location will be indulved. Id. Where road is located over land under special agreement, owner cannot attack validity of location for nonfilling of plan with register of deceds, since purpose is to enable owner to get compensation. Id.

01. Dilts v. Plumville R. Co. \[Pa.\] 71 A 1072.

01. Pacific R. & Nav. Co. v. Astoria & C. R. R. Co. \[Or.\] 99 P 1044.

01. Evidence, together with plans, surveys, etc., held to show that road as rebuilt did not trespass beyond original location. United States Peg Wood, Shank & Leather Board Co. v. Bangor & A. R. Co. \[Me.\] 72 A 190.

01. Its officers are sole judges of necessity of change. Whalen v. Baltimore & O. R. Co. \[Md.\] 69 A 390. Construction of a new switch, new sidetrackes, or new track on part of main line, does not constitute relocation. Chicago & N. V. R. Co. v. Chal- cago Mechanics Institute, 239 Ill., 197, 87 NE 933.

01. Where the termini and general route are prescribed by charter, details only being left to company, where once located route or termini cannot be changed without statutory authority. Chicago & N. V. R. Co. v. Chicago Mechanics' Institute, 239 Ill. 197, 87 NE 933.

01. Railroad Commission possesses power under Cron. art. 284, conferring power to be used to determine the 12 Cur. Law. RAILROADS SS 4. 1545

location of a private station and one stipulating for the location of a public one,74 and, also, between a contract merely calling for a station at a particular place and one restricting the location of other stations.18 A valid contract for the location of a depot 78 may be specifically enforced, or resulting damages 77 may be recovered for the breach thereof,78 in an action timely brought.78 A contract with the owner of a farm, "his heirs and assigns," for the maintenance of a private siding thereon, runs with the land.80

SS 4. _Bights of way and other lands, and the acquirement thereof.81-80e 10 C. L. 1388_--The power of a railroad company to acquire a right of way in particular lands,82 and the extent of the rights acquired therein,83 are usually controlled by constitution or statute. Likewise, the right to extend route through public domain and the manner of obtaining the privilege are usually controlled by federal statute.84 A grant of public lands for railroad purposes is not invalid as of time made because not subsequently used for such purpose.85

_Grants in highways and streets.85e 10 C. L. 1388_--The authority to occupy streets or highways is a franchise proceeding from the state and must be expressly conferred,88 and all conditions duly complied with.87 The franchise may be granted

reasonable, which is a question for court

80. Whalen v. Baltimore & O. R. Co. from admitted facts, Whalen v. Baltimore \[Md.\] 69 A 390.

& O. R. Co. \[Md.\] 69 A 390. Complaint for

S1. Search Note: See notes in 25 L. R. A. specific performance of contract to locate station at particular place falling to show

138; 53 Id. 900; 2 L. R. A. (N. S.) 272; 7

14. 991, 1187; 10 Id. 1202; 2 Ann. Cas. 718; that same is fair and reasonable, or that

01. 242, 10 Id. 1001; 11 Id. 769.

01. See also, Railroads, Cent. Dig. 51 137-219; legal right, held insufficient. Herrag v.

01. Dec. Dig. 51 61-82; 8 A. & E. Enc. L. (2ed.)

01. Whalen v. Baltimore & O. R. Co. \[Md.\]

01. Under Railroad Law 1850, SS 25, 49.

69 A 390. Contract to maintain a private

adding and to stop passenger and freight

for its purposes, and state's power to make

18. 53 Id. 900; 2 L. R. A. (N. S.) 272; 7

01. 1187; 10 Id. 1202; 2 Ann. Cas. 718; that same is fair and reasonable, or that

01. 242, 10 Id. 1001; 11 Id. 769.

01. See also, Railroads, Cent. Dig. 51 137-219; legal right, held insufficient. Herrag v.

01. 514-82; 8 A. & E. Enc. L. (2ed.)

01. 238; 23 Id. 695.

01. Whalen v. Baltimore & O. R. Co. \[Md.\]

01. Under Railroad Law 1850, SS 25, 49.

69 A 390. Contract to maintain a private

19. 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 238; 239; 239; 240; 241; 242; 243; 244; 245; 246; 247; 248; 249; 250; 251; 252; 253; 254; 255; 256; 257; 258; 259; 260; 261; 262; 263; 264; 265; 266; 267; 268; 269; 270; 271; 272; 273; 274; 275; 276; 277; 278; 279; 280; 281; 282; 283; 284; 285; 286; 287; 288; 289; 290; 282; 284; 286; 287; 288; 289; 291; 289; 280; 281; 285; 287; 288; 289; 292; 286; 287; 288; 289; 293 through the medium of the courts upon a showing of necessity "\* or municipalities,"" the latter having only such power in respect thereto as is expressly granted." The state may legalize an act of the municipality in excess of its power where it is a power which the state can confer." A municipal grant usually carries merely the right of occupation, and private abutting property owners must be compensated for actual damages." Where a railroad occupies a street in a bona fide belief that it has acquired the right," or where the abutter makes no objection to the construction of its tracks," punitive damages are not recoverable. Franchise to occupy the streets is strictly construed against the grantee," and the grant of the right to construct its line in a street does not give a right to the exclusive use thereof," and is

ever. Commonwealth v. Beaver Valley R. (obstruction of street for depot purposes. Co., \[Pa.\] 71 A 7. One owning property abutting on remote street cannot enjoin S 391. Held that under Act No. 136, p. 224, use thereof to reach new union depot estab-

lished under order of commission, special-

chise without submission of question to

1y where city's consent has been obtained and street was so used at time such per-

etc., R. Co., 122 La. 572, 47 S 906.

gon purchased. Griffin v. Southern R. Co. \[N. C.\] 64 SE 16. Tracks cannot be laid in

289, providing that "all" grants, rights,

street for purpose of convenience to factory or for yard or station purposes. City of Newark v. Eric R. Co. \[N. J. Eq.\] 71 A 620.

87. Under Rev. St. 1895, art. 4426, railroad taking highway and opening new one in lieu must restore to former state or to

such condition as not to unnecessary im-

pde use (Hall v. Houston & T. C. R. Co., \[Tex. Civ. App.\] 114 SW 891) and it cannot

escape liability for failure to put it into

condition required by statute and as re-

quired by contract on ground that contract

was made between a citizen committed and

two of county commissioners, it having accepted benefits of contract (Id.). Where

railroad takes road and agrees to construct

another in same condition, any member of

public injured by failure to do so may recover. Id. Where railroad closes road and

substitutes new road, county authorities

cannot release company from obligation to

construct as required by statute by acceptance in different condition. Id.

88. In application under Railroad Law,

Laws 1890, pp. 1084, 1087, u. 565, $ 4, subd.

4, and $ 11, authorizing construction of

railroads on highways on order of supreme court at special term, evidence held

Inficient to show necessity of constructing

road in street. Hornell & D. R. Co., v.

Truetes of Danville, 127 App. Div. 867, 111

NYS 845. Mere fact that it is more convenient and less expensive to lay route in

street, though properly considered on appli-

cation for authority, is not conclusive. Id.

89. Legislature may authoring city to v.

cate street for depot purposes. State v.

Louisville & N. R. Co. \[Ala.\] 48 S 391.

Under Revusal 1905, $ 2567 (5), authorizing

use of streets with the assent of the city,

determination of particular street to be

used in reaching union depot is for city

and property owner cannot complain that

another street could be used. Griffin v.

Southern R. Co. \[N. C.\] 64 SE 16.

90. Village of Phoenix v. \[Gannon, 122

Ayp. Div. 38, 1087 NYS 255. Railroad Law,

Laws 1890, pp. 1108, 1109, c. 565, art. 4,

## 90, 92, held not to authorize municipality

116 SW 738. Right of railroad over street is

to grant franchise to individuals. Id. City

cannot, unless expressly authorized, permit

Erie R. Co. \[N. J. Eq.\] 71 A 620.

always subject to the right of the city to authorize the construction of a street car line over the same.97

\_Right of eminent domain.98--\_The power of eminent domain is usually conferred on railroad companies,99 and may be exercised to acquire a right of way over the authorized route.1 Unless waived,\* due compensation must be made to the owner for property so taken.

\_Private grants.\_See 10 C. L. 1370--\_A railroad company holding an option to purchase must exercise it in the prescribed manner * within the time limited if time is of the essence of the contract,4 and the fact that it has expended large sums of money does not prevent optionor from taking advantage of its failure so to do.\* Unless limited by statute,\* a railroad company may acquire the fee.7 The land conveyed depends upon the terms of the grant.8 Covenants for the benefit of the adjoining land run therewith,9 but purely personal covenants do not.10 Covenants will not be specifically enforced where an adequate remedy at law exists.11 A ded 15+8 RAILROADS SS 4. 12 Cur. Law.

dent 18 before title passes, and all conditions subsequent 14 to retain the same,18 unless relieved by agreement or otherwise:se.16 Where the company has spent large sums of money under a void grant, ejecitment will not lie if the company offers to do equity.17

\_Adverse possession and estoppel.\_See 10 C. L. 1871--In the absence of statute,18 property may be lost 20 or acquired 20 by adverse possession.

Where railroad company permits an abutter to erect expensive buildings on its right of way, knowing 21 that he claims title thereto, without objection, it is estopped to deny his title.22

\_Right to cross right of way of other roads, etc.\_See 10 C. L. 1871--Unless prohibited by constitution,23 the legislature may grant the right to cross canals or the right of way of other roads,24 and may prescribe the method of determining the place and manner of crossing in case of disagreement.25

**13.** Where deed recited as consideration 18. Under statute making right of way the benefits to accreue from construction of ublic property, title by adverse possession road and maintenance of depot on land cannot be acquired. Powell v. Atchison, conveyed, establishment of depot held con- ict., R. Co. \[Md.\] 114 SSV 1067.

dition precedent. Maxell v. Mississippi 19. For general elements of adverse possession, see Adverse Possession, 11 C. L. 41.

received that in consideration of public Where adjoining owner erects buildings convenience from construction of a road and evinces a fixed resolve to deny com- by a particular town, and the establish- many's claim thereto, it is such interference ment of a depot on land conveyed, eer- as starts limitations running. Columbia N.

tain land was conveyed, held that construc- & L. R. Co. v. Laureens Cotton Mills \[S. C.\]

tion of depot was condition precedent. Id. 61 SE 1089. Where abutter builds houses Where deed recited a consideration of 1 and raises pond on right of way under claim and benefits to grant from construction of ublic thereof, with knowledge of com- of railroad through lands, there was no (condition precedent. Id. Provision, 7t (railroad) will cause the said railroads and pond. Id. Where, in action by com- to be completed within one year, and com- & and - & of track, to compel removal of build- & by the first of January, 1998, and it & has only an easement of 15 feet longer hindling," held to create condition & each side of track, such finding should precedent in which 1 time was an essential element. Adams v. Guyandotte Valley R.

occupied by building or to duration of Co. \[V. Va.\] 61 SE 34. Term "opposite" & 88 so used construed to mean a place or & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & - & & - & - & - & & - & - & - & & - & - & & - & - & & - & - & & - & - & & - & & - & & - & & - & & - & & - & & - & & - & & - & & - & & - & & - & & - & & - & & - & & - & & - & & - & & - & & - & & - & & & - & & - & & & - & & & - & & & - & & & - & & & - & & & & - 19Cur. Law. RAILROADS SS 5. 1549

\_Abandonment of right of way.\_Bee 10 C. L. 1871.--When land is conveyed in fee, extinguishment of right to build the road does not extinguish title thereto.28

\_Establishment of highways over rights of way.\_Bee 10 C. L. 1871.--Where a highway was condemned and ordered opened before the construction of a railroad, it may thereafter be physically opened without further condemnation,27 but ordinarily a way must be condemned and compensation be made before a highway or street can be extended across a right of way.28 In condemning for street extension, company is not entitled to compensation for expense necessary to protect the public or to comply with the statute,29 for possible damage from the negligent construction of the street,29 nor for increased liability to damages that it might incur on account of accidents.21 Where a city extends a street, it must make its grade conform to the track grade and must construct safe approaches.21

SS 5. \_Aids and bonuses.\_Bee 10 C. L. 1872.--A voluntary agreement to pay a specified sum in aid of the construction of a road 24 or a line over a particular route 25 is not against public policy, and is enforcible unless vitiated by fraud.28 An offer of aid must be accepted before it becomes binding,27 and all conditions imposed by its terms must be complied with before it is enforcible.28 In voting municipal aid, the authorizing statute must be followed.28 An assignee of a road cannot enforce

Laws 1907, p. 920, c. 429, held not to super-

sede or repeal Railroad Law. **SSSS 11, 12,**

Laws 1890 relating to crossings and inter-

city will construct street in such negili-

sections. Village of Pt. Edward v. Hudson

Sent manner. Louisville **& N. R. Co. v.**

Valley R. Co., 192 N. Y. 139, 84 N. 592.

Louisville \*\*\[Xy.\] 114 SWY 743.

25. Code W. Va. 1906, $ 234, c. 7, and

$ 2216, held not to give right to cross at will,

\[Ky.\] 114 SWY 743.

but, if companies cannot agree, the place

and manner of crossing must be deter-

$ 32-100; Dec. Dig. **SSSS 34-43; 20 A. & E.**

mined by suit in equity, after which crossing

line may be made by paying compensation

$ 630.

fixed in condemnation. Ellkins Elec. R. Co.

$ 4. Promissory note. Cooper v. Ft. Smith

V. Western Maryland R. Co., 183 F 724.

$ 4. W. R. Co. \[Okl.\] 99 P 785.

Villake trustees authorizing construction

of tracks in street have right to participate

in determination of place and manner of

intersection, under Railroad Laws. **SS 11,**

12, Laws 1890, p. 1087, c. 565. Village of

$ 226, Neyr York, B. & E. R. Co. v. Motil

(Conn.) 71 A 563.

$ 27. St. Louis etc., R. Co. v. State, 85 Ark.

$ 561, 109 SWY 545.

$ 28, Under Const. 1906, art. 3, $ 17, providing that private property shall not be

taken or damaged for public use except

upon due compensation being made, mu-

nicipality has no power to lay out street

over right of way except by exercise of

mennent domain, and proceeding under Code

1906, $ 4400, relating to counline only, in

vold. Illinois Cent. R. Co. v. State \[Miss.\]

$ 35.

$ 561. No defense to city's right to condemn street extension across right of way

that it would entail additional care and ex-

pense to protect public. Louisville & N. R. Co. v. Louisville \[Ky.\] 114 SWY 743.

$ 29. Louisville & N. R. Co. v. Louisville \[Ky.\] 114 SWY 743. Where highway is op-

ended across railroad right of way, company

is not entitled to compensation for cost of

Putting and maintaining same in safe con-

that it did not specify number of years
$ 5153, ed. 5 (Burns Ann. St. 1908, $ 1915,

c.). New York, etc., R. Co. v. Rhodes

\[Ind.\] 85 NX 840.

$ 29. For water which may be -precipitated

Polite Jury, 122 Ln. 755, 48 S 196.

bonuses and aids voted to assignor unless the assignment transfers the same.44 Where part of the subscribers give aid in excess of that called for by the subscription contract, they cannot enforce contribution therefrom the others.41

SS 6. \_Taxes, fees and license charges.42--See 10 C. L. 1874--Under the statutes of most states, railroads are taxed differently than other propertied corporations, the usual method being to tax according to capital stock, earnings, etc.43 Ordinarily, a railroad franchise and property necessary to the operation of the road are not subject to a divisional sale,44 and hence are not usually assessible for local improvements unless made so by statute.45 Where funds in the hands of the receiver of a lessee company belonging to the lessor are assessed as the property of the lessee, a consolidation of the companies does not validate the assessment.46

SS 7. \_Public control and regulation.47--See 10 C. L. 1873--In the exercise of its police power, a state may make reasonable regulations for public safety 45 and convenience,49 and to that end may classify long and short lines, where the classification is not arbitrary.50 Under a statute requiring the station "in" a village to have

40. Plaintiff held not entitled to manda--to maintain switch lights at all main mus to compel extension and collection of switches. Missouri, K. & T. R. Co. v. McIaxes Voted in aid of its assignor where assignment does not transfer same. Louis1905, p. 77, c. 56, requiring railroads to pro-ana R. & Nav. Co. v. Coushatta, 122 La. 1079, 48 S 532. 41. Where it is apparent from subscription contract that purpose was to effect connection with certain lines in A., agreement by subscribers to procreate a right of way, depot grounds, etc., as may be required at A. does not include right of way beyond connection, and no contribution can be enforced by subscribers against rest for money so expended. Boyce v. Strings--fellow \[Tex. Civ. App.\] 114 SW 552. For all general matters relating to subscriptions, see Subscriptions, 10 C. L. 1762. 42. Search Note: See notes in 60 L. R. A. 687. See also, Railroads, Cent. Dig. $ 9, 30; Doc. Dig. $ 8, 14; Taxation, Cent. Dig. $ 250-263, 371-$78, 461-64, 652-666; Dec. Dig. $ 143-148, 231, 283-286, 389-393; 18 A & E. Enc. L. (ed.) 565; 29 I. 141. 48. Words "earnings" and "net earnings," as used in Burns' Ann. St. 1901, $ 3496--$499, 8503, requiring railroads to make statements giving amount of capital stock, annual gross and net earnings, etc., for taxation, signifies money and the sum in excess of operating expenses respectively. Clark v. Vandalia R. Co. \[Ind.\] 86 NE 851. See Taxes, 10 C. L. 1776. 44. May be made subject by special legislation. Chicago, etc., Co. v. Janesville, 137 WIs. 7, 118 NV 182. 45. Under Laws 1903, p. 688, c. 45, expressly making railroad property assessable for local improvements, lands on which spur track and depot are situated on. 46. 47. 48. 49. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 51. 50. 51. 53. 54. 56. 58. 59. 50. 51. 54. 59. 51. 52. 54. 56. 59. 51. 53. 55. 57. 59. 52. 54. 58. 59. 50. 51. 54. 59. 52. 55. 56. 57. 58. 59. 51. 59. 50. 52. 51. 54. 59. 53. 56. 58. 59. 51. 54. 59. 50. 51. 55. 57. 59. 52. 51. 56. 59. 51. 57. 58. 59. 52. 59. 53. 59. 54. 59. 55. 56. 59. 57. 58. 59. 59. 50. 51. 59. 51. 59. 52. 51. 59. 53. 59. 54. 59. 55. 56. 57. 59. 58. 59. 59. 51. 59. 50. 51. 59. 52. 51. 59. 53. 59. 54. 59. 55. 57. 59. 58. 59. 59. 51. 59. 50. 51. 59. 52. 51. 59. 53. 59 the same name as the village the name of a station partly in two villages need not be changed.\[51\] A railroad company may be required to maintain telegraphic service where reasonably necessary to its business as a carrier,\[52\] but not for purely commercial purposes.\[53\] The legislature may, to a reasonable extent, convert general duties into positive, absolute ones.\[54\]

\_Control by railroad commissions.\_See 10 C. L. 1378--Generally, railroad commissions have only such powers as are expressly or impliedly conferred upon them by statute,\[55\] the powers most frequently vested in them being general supervision of stock issues,\[56\] public service,\[67\] and operation.\[58\] Their orders must be reasonable and just\[59\] and subject to judicial review,\[60\] although all orders are presumed reasonable and just,\[61\] and will be interfered with only in a clear case of mistake or

in operating railroads more than 50 miles and & telephone exchange, and an Inland in length freight trains consisting of more than 55 cars shall be equipped with crew change, order requiring road to put in telephone sustained (Id.). Under Sess. Laws ductor and three brakemen, except in case 1907, p. 538, e. 226, & 2, vesting railroad of strikes, etc., held not vold as arbitrary commission with power to make regula- and unreasonable. Id. Laws 1907, p. 295, railroad connections, etc., commission has would be unconstitutional if construed to communicate. State v. Railroad Commission are less than 50 miles in length and owned by company not owning more than 50 miles of lines and to include lines less than 50 miles in length if owned by company having over 50 miles of road although operated separately (Id.), and hence distinction should not be based on ownership, but if short Ime is used as part of system, then it should be regarded as part of longer line (Id.).

51. People v. New York, etc., R. Co., 125 App. Div. 641, 110 NYS 2.

01. Atchison, etc., R. Co. v. State \[OkL\] 100 P 16. Order of corporation commission requiring maintenance of telegraphic facilities based on theory that company owed duty of maintaining same for general benefits of public, reversed, where it could be operated only at loss. Id.

01. Pittsburgh, etc., R. Co. v. Hunt \[Ind.\] 86 NNE 228.

01. Sess. Laws 1907, p. 536, e. 226, amending commission law of 1905, prescribes in & 21, the last section, that there shall be added a section, designated as & 39, providing that "an emergency exists and this act shall take effect immediately." Field that clause applies to amendment of 1907 and not to law of 1905. State v. Railroad

Commission \[Vwash\], 100 P 179.

56. More appointment of the receiver does not oust railroad commission of juris-diction to permit company to issue stock, under Sayer's Ann. Civ. St. 1897, art. 45847.

United States & Mexican Trust Co. v. Del-aware Western Const. Co. (Tex. Civ. App.).

112 SWY 447. Under Sayer's Ann. Civ. St. 1897, art. 45847, giving railroad commissions.

1905, as amended by Sess. Law 1907, p. 536, sign supervision over issuing stock, it is duty of commission to value property of each road and all work done on one being constituted. Id.

57. Telephone held a "public service fac-cliff and convenience" within Const. art.

9, & 18 (Burn's Ed. $ 222), empowering commission to require establishment (here-fed by commissioners. Id.

of (Atchison, etc., R. Co. v. State \[OkL\] 100 P 11), and where town has but one road

prima facle correct and reasonable under

### 8.1 12 Cur. Law.

abuse.\[69\] Final adjudications \[69\] of the commission on questions of fact are conclusive on the courts in some states.\[69\]

SS 8. \_Construction and maintenance.\[69\]\_See 10 C. L. 1874_By statute, state and federal, a railroad is frequently required to construct its road within a prescribed time under pain of forfeiture.\[69\] In the prosecution of its work it is liable for trespasses upon adjoining private lands \[70\] and for actual \[69\] damage thereto from negligent construction,\[69\] but not for damages incident to a proper construction of the road.\[71\] Where a road in the right of way is not a public highway, the company may destroy the same for its own use in lawful manner without liability.\[72\] While both the company and the construction contract are bound to use reasonable care to protect the adjoining owners,\[73\] where the latter constructs the road according to plans and without negligence, at most he is only liable for injuries resulting before turning the road over to the company.\[73\] The successor of the company creating a nuisance is only liable for the continuance of the same,\[74\] and the purchaser at the foreclosure of a mortgage executed before the mortgagor assumed a contract obligation to keep a bridge in repair is not bound thereby in the absence of notice or an express provision in the decree in respect thereto.\[74\] Provisions in a franchise to occupy the streets for the benefit of abutters \[75\] may be enforced by the public or such abutters.\[76\]

Const. art. 9, $ 22 (Burns' Ed. $ 235). At-chison, etc., R. Co. \[Ok1.\] 100 P 11. Orders of railroad commissioners created by Act (Laws 1907, p. 454, p. 241), while not conclusive, are presumptively valid and will be set aside only when a clear case is made. Pittsburgh, etc., R. Co. v. Hunt \[Ind.\] 86 NE 328.

@2. Commissioners' order under Burns' Ann. St. 1908, $ 5553, fixing place of connection, will not be judicially interfered with except in clear case of mistake or abuse. Pittsburgh, etc., R. Co. v. Hunt \[Ind.\] 86 NE 328.

@3. Where commissioners ordering connections to be made retained jurisdiction to enforce order and to settle questions as to expense, interchange of traffic, etc., order was final for purposes of judicial attack. Pittsburgh, etc., R. Co. v. Hunt \[Ind.\] 86 NE 328.

@4. United States v. Mexican Trust Co. v. Delaware Western Const. Co. \[Tex. Civ. App.\] 112 SW 447.

@5. Search Note: See notes in 26 L. R. A. \[92; 86 L. 610; 10 Tol. 850; 12 L. R. A. (N. S.) 680; 16 Tol. 807; 6 A. S. R. 637; 7 Ann. Cas. 831; 9 Id. 1002.

See, also, Railroads, Cent. Dig. $ 220-874; Dec. Dig. $ 383-117; 9 A. & E. Emo. L. (2ed.) 338, 427; 18 Id. 564, 566; 23 Id. 716; 17 A. & E. Enc. P. & P. 501, 502, 626.

@66. Act June 26, 1906, 8550, 3654, 364. 482 (U. S. Comp. St. Supp 1907, p. 653), provides that every grant of right of way over public lands, under Act March 3, 1875, c. 152, 18 Stat. 482 (U. S. Comp. St. 1901, p. 1568), "where such railroad has not been constructed and period of five years next following location \[69\] \[70\] has now ex-pled, shall be and hereby is declared for-fetted," etc., held self-executing (Columbia Valley R. Co. v. Portland & E. R. Co., \[C. C. A.\] 162 F 603), and pendency of cult by railroad company against third person to determine rights does not change effect of act (Id.).

@7. Temporary construction of bridges on bridges on * 12Cur. Law. RAILROADS SS 8. 1553

_Establishment and maintenance of depots and grounds._ See 10 C. L. 1375.-A railroad company must exercise reasonable care to keep its depot and grounds in a safe condition 78 for persons rightfully therein or upon the grounds for mutual advantage 79 or by invitation.80

\_Private farm crossings.\_See 10 C. L. 1375.-It is generally required by statute 81 or charter provision 82 that suitable private crossings shall be constructed and maintained where reasonably necessary,88 and a company failing so to do is liable for the damages proximately resulting therefrom,84 notwithstanding the statute authorizes the abutter to construct the same and recover over.85 The obligation may also arise from contract,86 and is frequently imposed as a condition of a grant of right of way.87 While the statute is usually satisfied by a grade crossing,88 equity may complement the construction of a nongrade crossing in exceptional cases.89

street requiring company to grade and / blank and to keep crossings in repair / for benefit of public and abuters. Sturn v. Chesapeake & O. R. Co. (Ly.) 116 SW 738. 77. Public may prosecute for maintaining nuisance or bringing action to compel observance, and abuters may bring actions for damages. Stein v. Chesapeake & O. R. Co. (Ky.) 116 SW 738.

- 78Evidence held to warrant finding that platform which collapsed was rotten and that reasonable inspection would have revealed fact. Chicago, etc., R. Co. v. Hauber \[C. C. A.\] 162 F 668.
- 79Lowenstein v. Missouri Pac, R. Co. (M. App.) 115 SW 2. Where company constructed crossing to hay barn, knowing that it would be used by farmers in taking hay to barn to be shipped, held that one using for such purpose was using for mutual benefit of road and himself. Id. 80. Where ear to be loaded is placed beside platform, there is implied invitation to use platform in absence of notice that same is unsafe. Chicago, etc., R. Co. v. Hauber \[C. C. A.\] 162 F 668.
- 81St. St. 1898, **SS 1810**, **1813**, requiring railroad operating over incolosed lands to construct crossings and providing that on failure to do so owner or occupant may recover penalty, held not to apply where enclosure was complete only by including barrier including land of another. Miller v. Chicago, & N. W. R. Co., 133 VWs. 183, 113 NW 384. "Inclosure" as used therein held to mean a tract of land surrounded by an actual barrier. Id. Neither execution of unconditional deed for right of way nor receiving of damages for right of way destroys right to compel construction of private crossing. Powell v. Aethison, etc., R. Co. \[M.o.\] 114 SW 1067.
- 82R. Haliroad company created by private act is not relieved of its charter obligations to construct farm crossings by accepting present constitution. Louisville & N. R. Co. v. Robbins, **SS 187**, L. R. 778, 111 SW 838.

Allegation that it was charter duty of defendant to construct private crossings as sufficient though title of private act under which it was incorporated and date of its passage are not averred. Civ. Code Prac. 119, requiring such matters to be pleadef, not applying where private statute is one pecularity within knowledge of adverse party. Louisville & N. R. Co. v. Robbins, **SS 188**, **SS 189**, **SS 189** (Ann. St.) 1906, **SS 189**, \_Public crossings.\_See 10 C. L. 1276--Upon the construction "\* of its road, the company is usually required to construct public crossings at all intersections with public highways, and in Arkansas is liable to a penalty for failure so to do."1 In many states, provision is made for alteration or substitution of highways to avoid unnecessary or dangerous crossings,"2 but the railroad commission of Vermont, having decided that public safety requires a change, has no authority to fix the new location,"3 to take the land necessary to effect the change, nor to appraise damages for such taking."4

The crossings provided and the approaches thereto must be reasonably sufficient to accommodate the public,"5 and the company must exercise reasonable care to keep them in a safe condition "6 for vehicles in common use,"7 and is liable for negligence "8 to one injured thereby while in the exercise of due care on his part."9

it being feasible. Id. In determining whether crossing should be underground or demands, passage must be widened until it at grade, convenience of company and ad-joining owner and safety of public must be considered. Id. Where underground crossing can be constructed more conveniently than a grade crossing, it may be required. Id.

90. Railroad is "constructed" within Kirby's Dig. $ 6681, providing that, when a railroad company has constructed a rail-road across a highway, it shall construct a crossing, when its tracks have been laid and are ready for running of trains. St. Louis, etc., R. Co. v. State \[Ark.\] 114 SW 703.

01. Penalty, under Kirby's Dig. $ 6684, for failure to construct public crossing on notice, being for benefit of county, action is properly brought in name of state for use of county, and not for use of road district in which crossing is located. St. Louis, etc., R. Co. v. State, $5 Ark. 581, 109 SW 546. Not bound to construct crossings except at streets and alleys unless farm crossing. Williams v. Chicago & N. W. R. Co., 123 Ill. App. 274.

01. Under Code 1904, $ 1294b, providing that "many county road may be altered by a railway corporation for the purpose of avoiding or reducing number of crossings whenever it shall have made an equally convenient road in lieu thereof, the company having first obtained consent of " sn-pervisors, it is duty of board to act on petition when presented, and it is not duty of railroad company to first build road. Carolina C. & O. R. Co. v. Scott County Surfres \[V.\] 63 SE 412.

01. Under Acts 1906, $ 134, No. 125, $ 1, it is the duty of selectment. Stimes v. Highgate \[V.\] 63 SE 412.

01. Under Acts 1906, $ 134, No. 125, $ 1, it is the duty of selectment. Stimes v. Highgate \[V.\] 69 A $ 78. Where, however, selectment described particular route in petition which was adopted by commissioners, act of commissioners in excess of authority is immaterial where no person interested objected to location. Id.

01. Under Acts 1906, $ 134, No. 125, $ 1.

Stimets v. Highgate \[V.\] 69 A $78. Which is duty of selectment. Id.

95. Sample v. Chicago, B. & Q. R. Co., 233 Ill. 564, $ 48 NE 111. 564, $ 48 NE 643. P. L. 1832, p. 104, $ 20, providing that it should be duty of certain coupmany to construct and keep in repair bridges or passageways over or under the road where any public road crosses same to that passage of carrings, etc., shall not be impeded, places company under a con- 13 Cur. Law. RAILROADS SS 8.

In the exercise of the police power, the duty to maintain crossings in a safe condition may be prescribed by statute or ordinance,\[1\] and such regulations are not void as taking property without due process of law \[2\] or just compensation,\[3\] nor as impairing the obligation of charter contracts.\[4\] But an ordinance requiring the company to repave the street where the same went under the tracks cannot be sustained as a police regulation.\[5\] By these statutes, the company is frequently required to keep the crossing in a certain condition without regard to due care so to do.\[6\] In constructing a crossing, the company must leave the highway in good condition, and mandamus lies to compel this,\[7\] or the town may restore the crossing at the expense of the railroad.\[8\]

_Grade crossings and the abolition thereof.\[See 10 C. L. 1878...In the absence of statute a railroad company may usually construct a grade crossing at its discretion,\[9\] although a court of equity may require a depression or elevation of tracks where it is the only way that joint user can be properly secured.\[10\]_ The manner of crossing

of crossing held admissible to show condition where taken while condition remained unchanged. Sample v. Chicago, B. & Q. R. Co., 235 Ill. 874, 85 NE 606.

**S.** Hence void where it imposed burdens in addition to those of charter. People v. Illinois Cent. R. Co., 235 Ill. 374, 85 NE 606.

**S.** Under Rev. St. 1895, art. 4426, company must keep crossing in repair, and ordinary care to do so is not sufficient. Texas Cent. R. Co., v. Randall \[Tex. Civ. App.l 118 SVW 180. Under Sayles' Ann. Civ. St. N. 374, art. 4426, requiring companies to restore highways so as not to unnecessarily impair usefulness, the test of negligence is not whether prudent man would have so left, but whether usefulness has been unnecessarily impaired. Missouri, K. & T. R. Co. v. Davis \[Tex. Civ. App.l 116 SVW 423.

**7.** Pettition in mandamus to compel restoration of highway may charge obstruction in language of statute. Commissioners of Highway v. Fenton & Thompson R. Co., 135 Ill. App. 394.

**S.** To entitle a town to recover for expenditures in repairing a crossing, it must appear that the commissioner of highway directed service of the notice to repair. Chicago G. W. R. Co. v. Leaf River, 136 Ill. App. 559. The proof must be by record. Id.

**9.** Grade crossings are not per se illegal. City of Newark v. Erie R. Co. \[N. J. Eq.l 71 A 620.

**10.** City of Newark v. Erie R. Co. \[N. J. Eq.l 71 A 620.

**11.** City of Newark v. Erie R. Co. \[N. J. Eq.l 71 A 620. Facet that more than one

is frequently prescribed by statute \[11\] or is left to the discretion of the railroad commission, \[12\] to be determined upon a hearing of all parties interested \[13\] and subject to statutory review. \[14\] A manufacturing company constructing a lateral road under the Pennsylvania statute cannot cross at grade without municipal consent. \[18\] Where a street is invalidly laid out across the right of way, the company cannot be compelled to construct a viaduct. \[16\] In most states a proceeding is provided whereby grade crossings can be abolished, \[17\] and such procedure must be followed. \[18\] The county commissioners of Massachusetts have no power under the statute relating to repairs, etc., to decree a separation of grades, \[18\] and especially where the road is constructed under the statute authorizing grade crossings unless the railroad commissioners otherwise order. \[20\] Unless waived, \[21\] compensation must usually be made to those abutting upon the portion of the street affected by the change \[22\] for the

**11.** Act June 7, 1901 (P. L. 501), regulate- using crossing of highways by railroads and railroads by highways, applies to lateral railroads (Clifton Heights Bborough v. Kent Mfg. Co., 220 Pa. 585, 69 A 1114), though such a road was authorized under Act May 5th, 1832 (P. L. 501), prior to its enactment (Id.).

**12.** Although city laid out street 'before enactment of railroad law, Laws 1897, p. L. 1894, to meet comply with the 1114 members to open up and construct crossings, New York Cent. & H. R. Co. v. BhatRalog, 128 App. Div. 273, 112 NYS 997.

Held that, under Railroad Law (Laws 1897, p. 794, p. 754, $ 60), railroad commissioners could grant a rehearing as to a crossing order, with due regard to rights of parties of people v. Public Service Commission, 121 App. Div. 335, 114 NYS 686. Affirmance of order of railroad commissioners as to cross-ing does not prevent a rehearing, especially where anfirmed as to power to act. Id. Under Pub. Service Commission Law (Laws 1907, p. 936, c. 429), $ 80, abolishing board of railroad commissioners and conferring their power on Public Service Commission, latter may grant rehearing as to grade crossing where former could have done so. Id.

**13.** Where B road owned by long lease two-thirds of passenger station, C owning other third, both using tracks in common, held, on remand by supreme court of order of commissioners directing C company to abolish grade crossing, C and B to bear expense. B was entitled to be heard on question whether crossing was public, thereby imposing part of costs on state and municipality. Central Vermont R. Co. v. BhatRalog, 172 A 324.

**14.** Act's 1906, p. 138, No. 126, creating board of railroad commissioners and providing for appeal from orders to supreme court, held to repeal Acts 1906, p. 134, No. 125, providing for appeal to chancery court from order of board abolishing grade crossing. Central Vermont R. Co. v. BhatRalog, 172 A 324. Where, on appeal from order of commissioners directing abolition of grade crossing, proceedings are remanded, with liberty to railroads to file petition for modification of order, railroads may flip petition alleging that crossing was a public highway, so as to impose part of cost on state and municipality. Id.

**15.** Constructing railroad under Act May 5, 1832 (P. L. 501). Clifton Heights Bor.

**16.** Commissioners ordering changes un- and 1832, with which they are to be made. Boston & L. R. Corp. v. Middlesex County Corns, 198 Mass. 654, 85 NE 108. Order directing construction of bridge 40 feet wide, but not showing width of street, which in places was only 32 feet wide, making no provision for taking land, and which did not prescribe material of which sidewalk should be constructed, held void (Id.), and where matter involved much detail and necessitated special investigation, supreme court on appeal will not cure indehiniteness under its power under Stat. 1902, p. 486, c. 544, $ 27 (Id.).

**16.** County commissioners have no power under Rev. Laws, c. 11, $ 125, relating to repairs, etc., to decree separation of grades. Boston & L. R. Corp. v. Middlesex County Com'rs, 183 Mass. 654, 85 NE 108.

**20.** Where road is constructed, under St. 1870, p. 297, c. 386. Boston & L. R. Corp. v. Middlesex County Com'rs, 188 Mass. 584, 85 NE 108. In which case proceeding must be instituted under Rev. Laws, c. 11, $ 149, in superior court. Id.

**21.** Waiver by street car company of any and all claim for damages by reason of change of grade of any of the streets from loss of traffic, and to any abutting property, held to cover damages suffered by it on other streets than where it operated lines, in some of which it was interested as abutting property owner. City of Detroit V. Detroit United R. Co. \[Mich.\] 16 Det. Leg. N. 48, 120 NW 600.

**22.** Heeld, under Comp.

actual damage to them as abutting owners.\[33\] One whose access to his property is destroyed may maintain mandamus to compel condemnation under the New York statute.\[24\] The construction of a viaduct over a street as authorized by municipal ordinance cannot be a public nuisance.\[28\]

\_Crossings with other railroads, street railways and canals.\[See 16 C. L. 1379--The manner of crossing is usually a matter of mutual agreement \[26\] or of statutory regulation.\[27\] In Ohio the circuit court determines such matter on application \[28\] and apportions the cost of construction \[29\] and maintenance \[30\] of the proposed crossing. If the junior road desires a lesser grade than that found practical by the court, it must stand the additional cost thereof.\[31\] Under the New York statute, intersecting roads must form connections thereat.\[22\]

_Private connections.\[See 16 C. L. 1880--The right to private connections is governed by statute in some states,\[33\] and a special proceeding is provided in Oklahoma to secure the same.\[34\] Rights and duties under private agreements depend upon the terms thereof,\[35\] but the mere fact that a private track is put in does not obligate the company to continue it.\[36\]_

421, 4244, that upon separation of grades, compensation can be given only for dam-age to property abutting on portion of street where grade is to be changed, and $ 3333--1, to court to have manner of cross-only for damages resulting from change. Damage arising from general public incon-con-venience, etc., cannot be recovered. City of Detroit V. Detroit United R. Co. \[Mich.\] 16 Det. Leg. N. 48, 120 New $ 600.

23. Measure of damages is difference between value before and after change. City of Detroit V. Detroit United R. Co. \[Mich.\] 16 Det. Leg. N. 48, 120 New $ 600. Speculative damage to business carried on on abutting premises cannot be recovered. Id. Evidence as to effect of other separations of grades upon property in vicinity, and test-thmony that on other streets slope of street exceeded new slope, held properly excluded. Id. Testsimony on damages too uncertain to establish a right to compensation under statute cannot be made certain by throwing-ing burden of uncertainty on city as active party in making separation of grades. Id. 24. To compel condemnation under Rall-road Law, Laws 1897, p. 797, c. 754, $ 63. People V. Hamburg Town Board, $ 83 Misc. 443, 109 NYS 913.

01. Crofford V. Atlanta, B. & A. R. Co. \[Ala.\] 48 S 366.

01. Although street car company has right to cross, mutual protection is sufficient to support contract re-operating crossing, although burdens are all on street car company. Evansville & S. I. Trac. Co. V. Evansville Belt R. Co. \[Ind.\] 48 Apr. 87 NE 21.

01. Act April 23, 1904 (97 Ohio Laws, p. 548), held to define policy of not crossing at grade if another crossing is practical (Toledo Railway & Terminal Co. v. Lima & T. Trac. Co. \[Ohio\] 86 NE 515), and junior company cannot defeat purpose of the act by voluntarily selecting place of crossing where grades cannot be separated (Id.).

01. While supreme court cannot consider weight of evidence, it may examine record to see that order of circuit court, in order-ing crossing under Act April 23, 1904 (97 Ohio Laws, p. 548), correctly interpreted law. Toledo Railway & Terminal Co. v. Lima & T. Trac. Co. \[Ohio\] 86 NE 515.

01. Aside from constitutional or statutory requirement, construction and maintenance of private track is purely matter of contract. In re Detroit \[Mich.\] 16 Det. Leg. N. 53, 120 New $ 592. Contract, reciting that milling company desired spur track, provided that company would give ground therefor free, furnish ties, to repair, etc., while railroad operated for its benefit, rail
    RAILROADS SS 8. 12 Cur. Law.

Cattle guards, fences and stock gapsSee 10 C. L. 1380--While a railroad company is under no common-law duty to maintain fences, such duty is imposed by statute in most states,\[37\] and, likewise, where its road passes through inclosed lands,\[38\] it must maintain proper guards. Where the company fails to construct or repair fence or guard after necessary notice 39 to the proper official,\[40\] it is usually subject to a penalty,\[41\] or, as is sometimes provided, the adjoining landowner may construct or repair and recover over.\[42\] It is also liable for damage proximately resulting from its default to stock \[43\] or to property from trespassing stock,\[44\] unless the injured party is guilty of negligence,\[45\]

Drainage and disposal of surface waterSee 10 C. L. 1381--Railroad companies must so construct their roads, especially where it can be done without substantial additional cost and inconvenience,\[46\] as not to interfere with the natural drainage of surface water,\[47\] and must keep their drains and culverts in repair,\[48\] and are liable.

road company to furnish rails, switches, etc, and made binding on heirs and assigns of parties, held not a mere license but a contract binding on purchaser of mill. Illinois Cent. R. Co. v. Sanders \[Misa\] 46 S 241. 36. Mere fact that company puts in private side track does not obligate it to continue same, and hence where company changes grade, manufacturing company cannot recover cost of making side track conform thereto. In re Detroit \[Mich.\] 16 Det. Leg. N. 53, 120 NWV 592. 37. Need not fence depot grounds. Chicago, etc., R. Co. v. Hanken \[Iowa\] 118 NWV 527. 38. To constitute an inclosure, it is not necessary that field be surrounded by a lawful fence, but it is sufficient if inclosed by fence calculated to turn stock. St. Louis S. W. R. Co. v. Warner \[Ark.\] 109 SWV 1013. Under Kirby's Dig. $ 6644, making it the duty of railroad passing through inclosed lands to construct cattle guards, company must construct guard where road enters inclusive, though adjoining field is in-closed and there is a guard where road enters it. Id. 38. Code 1896, $ 3480, requiring company to put in guards and to keep same in repair whenever owner shall make demand, does not require demand for repairs; but when guards are once put in, company must keep in repair. Atlanta & B. Air Line R. Co. v. Brown \[Ala.\] 48 S 73. Compilation based upon Code 1896, $ 3480, requiring company to erect and keep in repair cattle guards whenever owner makes demand on it or its agent and shows that such guards are necessary, need not allege that when demand was made plaintiff showed to company the necessity therefor, that being matter of evidence. Id. 40. Chief clerk in office of station agent doing routine work, is not an "agent" upon whom notice to construct cattle guards can be made, under Civ. Code 1895, $ 2243, making company liable to penalty for failure to construct after notice, etc. Smith v. Southern R. Co. \[Ga.\] 63 SE 801. Code 1896, $ 3480, requiring company to put in guards on demand of adjoining owner, means demand on company, and does not require demand on special agent whose duty it is to construct same. Atlanta & B. Air Line R. Co. v. Brown \[Ala.\] 48 S 73. 41. Where appeal from judgment for penalty for failure to provide and maintain fence guards was dismissed by payment of judgment, suit was pending from time of judgment until payment, so as to prevent carving of other penalties. Yazoo & M. V. R. Co. v. Neal \[Miss.\] 47 S 673. 42. Burns' Ann. St. 1908, $ 5447, 5148, authorizing adjoining owner to build fence at expense of company after statutory notice, is not limited to initial fence, but applies where such fence has been destroyed. Vandalia R. Co. v. McAninch \[Ind. App.\] 86 NE 103. 43. See post, $ 11. 44. Compilation in trespas for damage done . by stock because of failure to keep guards in repair held sufficient without specifying which particular ones were defective. Atlantic & B. Air Line R. Co. v. Brown \[Ala.\] 48 S 73. In action for damages for failure to construct guards, evidence that railroad passing through plaintiff's land was known by the name of defendant and was assessed in that name held to sufficiently connect defendant. Id. Lesser cannot recover for damages to grass due to failure of company to maintain stock gap, but he is limited to injury to land itself. Seaboard Air Line R. Co. v. Brown \[Ala.\] 48 S 48. 45. Owner owes no duty to repair fences to protect against maruading stock. Shankle v. St. Louis S. W. R. Co., 131 Mo. App. 468, 109 SWV 1072. 46. Railroad is liable for interference with natural drainage only when it can prevent injury without substantial additional expense and inconvenience. Alabama & M. R. Co. v. Beard \[Miss.\] 48 S 405. 47. Where road is so constructed as to impede or not permit flow of surface water in its natural course, company is liable under Rev. St. 1895, art. 4436. Missouri, K. & T. Co. v. Macon \[Tex. Civ. App.\] 115 SWV 847. Company must so maintain culverts as not to obstruct flow of surface water. St. Louis, etc., R. Co. v. Hardie \[Ar able for all damages "9" proximately \[50\] resulting from their negligence, \[51\] in the absence of contributory negligence. \[52\] Legal duty may be supplemented by contractual obligation. \[53\] The duty of maintaining the road so as not to unnecessarily injure adjoining property is a continuing one. \[54\] A single recovery for the maintenance of a structure flooding adjacent lands must include future damages if such structure is properly constructed and maintained. \[55\] If negligently constructed or maintained, it is a continuing nuisance, and action will lie for each injury. \[56\]

_Obstruction of watercourses._\[See 10 C. L. 1882--Railroad constructing a road across natural watercourses must provide adequate waterways \[57\] and must anticipate and to motion to make more certain. Hentz v. not to impose absolute duty of preventing southern R. Co. \[S. C.\] 68 SE 743.

48. Allgations that natural drain of surface water, nor to require better protection than face water was across tracks, that dependant constructed ditches but thereafter chronon \[Tex. Civ. App.\] 115 SW 847. Requested held to state a cause of action. St. Louis, active, R. Co. v. Hardie \[Ark.\] 118 SW 81.

course of floodwater was not due to any act where railroad constructs underground passage and drain preventing surface water from running into same becomes defective, charged onto his land. Klopp v. Chicago, v. Pennsylvania R. Co. \[N. J. Err. & App.\] 68 A 465. Company, having adjusted claim for past damages caused by overflow, made alterations in roadbed which included ditch along track, and owner released company company should so maintain culvert as not from all future damages as "now constructed." "Held not to relieve as to damages caused by failure to keep ditch open.

S54. Lessee held liable for damages due to negligent original construction. Morse v. Chicago, B. & Q. R. Co. \[Neb.\] 116 NW 859.

49. Measure of damages for obstructing v. Chicago, B. & Q. R. Co. \[Neb.\] 116 NW 859.

01. Measure of damages for obstructing v. Chicago, etc., R. Co. \[Neb.\] 116 NW 859.

or common-law duty to keep open. St. Louis, etc., R. Co. v. Hardie \[Ark.\] 113 SW 811. App. 431.

50. Where drainage is insufficient to carry off ordinary rain fall, company held charge-able with knowledge that damage is likely to result from excessive rains. Smith v. Chicago, B. & Q. R. Co. \[Neb.\] 119 NW 669.

01. Railroad is not bound to so construct to result from excessive rains. Smith v. Chicago, B. & Q. R. Co. \[Neb.\] 119 NW 669.

Evidence held insulficient to show that construcion of drain caused unusual quantities of water to be carried onto adjacent lant. deMecho v. New York Cent. & H. R. Co., v. Walker \[Ark.\] 117 SW 534. EviL-R. Co., 114 NYES 803. Evidence held to show that backing up of show that proximate cause of flooding was not cutting of way through ridge draining slough, but the digging by another of ditch into slough. Block v. Great Northern R. Co., 106 Minn. 285, 118 NW 1019.

52. It is negligence not to provide sufficient openings in roadbed to permit free flow of water from adjoining land.

provide for periodical floods.\[58\] The duty is sometimes prescribed by statute.\[59\] Ordinarily, it must not interpose any obstruction which will interfere with navigation,\[60\] nor permit wreckage or driftwood to accumulate around its piers so as to do so.\[61\]

SS 9. \_Sales, leases, contracts and consolidation.\[62\] See 10 C. L.\[188\]--The lease is determinative of the property leased\[63\] and of the rights of the parties thereunder.\[64\] Where a lease is terminated in the manner prescribed by its terms,\[65\] and the leoser acquires peaceable possession, an injunction will lie to protect such possession.\[66\] Upon the surrender of a leasehold, the fixtures pass to the leoser.\[67\]

\_Duties and liabilities subsequent to sale or lease.\[See 10 C. L.\[188\]--A purchaser is bound to perform obligations of vendor assumed as a consideration for the right of way,\[68\] especially where the deed is recorded,\[69\] and contract obligations of which it has actual or constructive knowledge,\[70\] but not unknown personal obligations.\[71\] The purchaser at a mortgage foreclosure must perform the obligations imposed by the decree.\[72\] In Arkansas the liabilities assumed by the purchaser must be en-

- 63 SE 942. Where bridge was sufficient except at times of high water, held that injury was not of permanent character, but now cause of action arose at each flooding.\[Rughes v. Chicago, B. & Q. R. Co. \[Iowa\] 65. Evidence of correspondence held to show 60 days' notice of intention to terminate.\[Rughes v. Chicago, B. & Q. R. Co. \[Iowa\] 65. Evidence of correspondence held to show 60 days' notice of intention to terminate and a demand to arbitrate purchase App. Div. 821, 113 NYS 1101. Must econometrica under the terms of lease.\[R. Co. \[A.I.\] 48 S 69.\]
- 64 Where lease provides manner of termination, right of lease to terminate in the way of * 12 Cur. Law. RAILROADS SS 9.
- forced within one year after notice of sale.74 Grantor is not liable for injuries negligently inflicted by the grantee.74
- Unless released by charter or statute,78 a lessor is liable for acts of the lessee done in the performance of the public duties of the lesson,76 and is civilly liable although the lease is void,77 but not criminally unless the lease was made in contemplation of the offense.78 The lessee is not liable for defaults of the lesor,78 but is liable for its own violation of a continuing duty.80
- \_Contracts.\_See 10 C. L. 1384--A railroad cannot so contract as to discriminate in the discharge of its duties as a carrier.81 Contractual rights and obligations are determined by the terms of the controlling contract.82 Where a construction con

did not recite right of grantor of right of

inadequate provisions to carry off water. way to passes, purchaser was not bound to

Smith V. Chicago, B. & Q. R. Co. \[Neb.\] 119 carry out covenant for passes. Munro v.

New 669. Where defendant operated rail-

Syracuse, etc., R. Co., 128 App. Div. 388,

load constructed by another, it is not liable 112 NYS 983. Complaint based on liability

for a nuisance unless it had notice thereof.

attaching as successor of one primarily II-

Nickey v. R. Louis, etc., R. Co. \[Mdo. App.\] able, which did not show that there had

116 SWV 477. That train was being run un-

been a merger or negative fact that de-

fedant had succeeded to property as pur-

th user using does not relieve it from liability

share at judicial sale, held insuflect.

White v. Atlanta, B. & A. R. Co. \[Ga. App.\]

R. Co. v. Stepp \[C. C. A.\] 164 F 785. Com-

68 SE 234.

Pany running trains over track of another

78. Notice required by Kirby's Dig.

company under orders of latter's dispatcher

116 6587, 6588, providing that actions on

11abilites of railroad assumed by a pur-

and no way attributable to orders of dis-

, chasing railroad shall be barred in one

year "after notice" of sale is given by pur-

chaser, held to be actual and not construc-

tive. St. Louis, etc., R. Co. v. Batesville &

Winerva Tel. Co. \[Ark.\] 110 SWV 1047.

74. Murray v. Chespeake & O. R. Co. \[KY.\] 115 SWV 821.

01. Clinger's Adm'x v. Chesapeake & O. R. Co. \[33 Ky. L. R. 86, 109 SWV 315, Ky.

St. 1903, 8 769, authorizing leasing, held

not to relieve lessor from liability for negligently

11gent operation by lessee. Id. Unless

lease is made pursuant to statutory authority.

ity, leaseor is not relieved from franchise

obligations. Johnson v. Southern Pac. R. Co. \[Ca.\] 97 F 520.

76. Offner v. Erie R. Co., 140 III. App. 562;

McCulloch v. Southern R. Co. \[N. C.\] 62 SE

1096. But not for acts outside of lease

and in performance of public duties of lessor. McCulloch v. Southern R. Co. \[N. C.\] 62 SE 1096. Company permitting another

company to use its tracks is liable for neg-

ligent operation of latter's trains. O'Ban-

nion's Adm'r v. Southern R. Co., 33 Ky. L. R. 315, 110 SWV 229. Entry of leasease which

may be justified under charter of lesor,

and which is in furtherance of its business,

terestes no liability at all. McCulloch v. Southern R. Co. \[N. C.\] 62 SE 1096. Lessor

is liable for negligently killing of employee

by lessee. Parker v. North Carolina R. Co.

\[N. C.\] 64 SE 185.

77. Louisville R. Co. v. Com. \[KY.\] 114 SWV 343.

01. Lessor held not liable under Ky. St.

1903, $ 795, for lessee's failure to provide

separate accommodations for white and

black races. Louisville R. Co. v. Com.

\[KY.\] 114 SWV 343.

79. Lessee is not liable for failure of

gatem to close gates where he is under

exclusive control of leaseor. Willis v. Atchi-

sen, etc., R. Co., 133 Mo. App. 625, 113 SWV 713.

80. Lessee held liable for overflow due to

01. Cur. Law. RAILROADS SS 9.

forced within one year after notice of sale.74 Grantor is not liable for injuries negligently inflicted by the grantee.74

Unless released by charter or statute,78 a lessor is liable for acts of the lessee done in the performance of the public duties of the lesor,76 and is civilly liable although the 1569

RALILRUADS $\\sharp$ 10.

12 Cur. Law.

tract calls for completion within a certain time, it is the duty of the company to perform its obligations so as to enable the contractor by reasonable diligence to timely complete the work,\[83\] and, where it makes the decision of its engineer final upon certain matters, such decision must be honestly made.\[84\] Where an assignee assumes a certain contract and agrees to indemnify the assignor against recovery for default, such obligation is not a "debt of the lessor" within a clause exempting the assignee from the debts of a lessor.\[85\] An assignee of a construction contract receiving money due the original contractor does not hold the same in trust for materialmen.\[86\]

_Consolidation._\[See 10 C. L. 1884--While a consolidated corporation is usually regarded as a new corporation,\[87\] where the constituent corporations continue, the laws of the different states under which they are incorporated must be observed.\[88\] States may prohibit consolidation of competing line.\[89\]

SS 10. \_Indebtedness, insolvency, liens and securities.\[90\] Mechanics' and materialmen's liens.\[See 10 C. L. 1885--A lien can be had only where the work performed and the materials furnished\[91\] fall within the terms of the statute\[92\] and all statu tory conditions have been timely "\*" performed." The person claiming a lien must also be within the class designated by the statute." The lien may be expressly waived," and a provision in the contract of the contract to that effect waives the lien as to all subcontractors." The lien need not be claimed upon the entire property " and may be asserted and foreclosed against an interest less than a fee." In an action to foreclose a lien for labor performed under a subcontractor, such subcontractor need not be made a party if the liability has been adjudicated.1 Where the railroad is insolvent, the court must consider the rights of all parties.2

_Bonds and mortgages and priority of claims._\*\*Sao 10 C. L. 1888--The terms of the bonds are determinative of the rights of the parties thereunder." A provision in a bond giving an option to exchange for stock is a separate contract and not negotiable 4 and must be exercised before it expires,5 but, if so exercised, the company is liable in damages for failure to deliver stock." Where construction contractor is the owner of all the stock and therefore the owner of all property rights and franchise, he cannot burden the property and then share with bona fide bond purchasers.' Where an insolvent company is in default and its earnings are being diverted, bondholders may foreclose securities and have receiver appointed.8 While a court in receivers has no general power to displace priorities, operating expenses " may be first paid,10 and, likewise, such expenses have priority where the labor and materials and sum for tools used and 20 per cent, and bill presented is anti-113 SWV 1008.

bondholders assume control.11 A court may, in its discretion, order a sale in advance of a determination of the rights of parties claiming liens where it appears undesirable to continue operation under receivership.12 Where a court decreeing a foreclosure retains jurisdiction to enforce its decree, it may appoint a special receiver where necessary 13 and make such orders as the situation demands.14

**SS 11.**_Duties and liabilities incident to operation of the road. A. Obligation to operate and statutory regulations.15 See 10 C. L. 1857_--Whether a company can be compelled to operate to a particular point depends upon whether its charter requires or merely authorizes it so to do.10 The enactment of statutes and ordinance for public protection does not exclude the common law obligation to exercise due care.17 Statutes regulating the operation of railroads must comply with constitutional requirements as to title,18 and state statutes must not amount to a regulation of interstate commerce.19 Statutes and ordinances sometimes fix the points at which trains shall be stopped.20 Acceptance of privileges under an ordinance binds the railroad to perform its obligations.21 A violation of such regulatory statute 22 usually subjects the company to a penalty 23 and gives rise to a cause of action for any injury intended to be avoided thereby.24

\_Injuries to adjacent owners from smoke, noise, etc._See 10 C. L. 1857_--One whose property does not adjoin the right of way cannot recover for inconvenience arising

\*\*11.\*\*In view of situation, held that man-

egin{tabular}{l|l} & protect the lives and property of traveling \\ & segment by committee appointed by bond-

egin{tabular}{l|l} & public and employees," requiring use of full \\ & crews and defining what shall constitute \\ & full crew, held not violative of Const. art \\ & 3, $5, providing that bills shall contain \\ & priority of mortgage debt. Scott v. \\ & & but one subject shall be expressed \\ & & in title, Missouri, K. & T. R. Co. v. State \\ & 12. Bowling Green Trust Co. v. Virginia \\ & & \\ Passenger Power Co., 164 F 758. In con-

\\end{tabular}

egin{tabular}{l|l} & protect the lives and property of traveling \\ & public and employees," requiring use of full \\ & & \\ & crews and defining what shall constitute \\ & full crew, held not violative of Const. art \\ & 3, $5, providing that bills shall contain \\ & & \\ & & \\ & & \\ & \\ & & \\ & \\ & & \\ & \\ & \\ & & \\ 12 Cur. Law. RAILROADS $ 11A. 1565 from noise 28 but may recover for actual trespass by smoke and einders unless carried by unusual winds.28 It has been said that the injury must be different in kind from that suffered by the public generally.27 Ordinarily, a company is not liable for injuries incident to a careful operation of its road,28 and, where a railroad is lawfully using the street for making up trains, etc.,29 the noise and vibrations caused thereby are not such a nuisance as may be prohibited by injunction 30 but liability therefore may be imposed by statute or constitution.31

\_Equipment of cars.See 10 C. L. 1387--The Federal Safety Appliance Act is valid 32 and prohibits the moving 33 of any interstate car or intrastate car used in connection with other cars carrying interstate commerce,34 unless equipped at both ends 35 with automatic couplers in working order 28 which may be uncoupled without going between the cars.37 The act imposes an absolute duty to equip the cars with the required appliance and to keep them in working order.38 A railroad is under no obliga-

25. Illinois Cent. R. Co. v. Elliott, 38 KY. 1. R. 637, 110 SW 817. 26. Illinois Cent. R. Co. v. Elliott, 38 KY. L. R. 637, 110 SW 817. Evidence held 166 F 997. Mere use in same train unless to sustain verdict for plaintiff. Wabash R. Co. v. Kiley, 137 111, App. 625. 27. Danville, etc., R. Co. v. Tidrick, 137 111. App. 553. 28. Not liable for injuries, such as noise, vibrations and dirt, caused without negill-

F 185. Movement of empty car on own

gence. Wunderlich v. Pennsylvania R. Co. (Pa.) 72 A 247. 29. Legislative may authorize use of streets upon just compensation. Galves-

R. Co. v. U. S. (C. C. A.) 165 F 423. Car

ton, etc., R. Co. v. De Groff \[Tex. Civ. App.\] 110 SVV 1006. Company oc-

30. Galveston, etc., R. Co. v. De Groff \[Tex. Civ. App.\] 110 SVV 1006. Company oc-

01. Galveston, etc., R. Co. v. De Groff \[Tex. Civ. App.\] 110 SVV 1006. Company oc-

01. Not liable for injuries, such as noise, vibrations and dirt, caused without negill-

C. R. Co. v. Elliott, 38 KY. 1. R. 637, 110 SVV 80. 20. Legislative may authorize use of

33. Galveston, etc., R. Co. v. De Groff \[Tex. Civ. App.\] 110 SVV 1006. Company oc-

01. Galveston, etc., R. Co. v. De Groff \[Tex. Civ. App.\] 110 SVV 1006. Company oc-

01. United States v. Philadelphia & R. R. 637, 110 SVV 1006. 110.

tion to receive a car from another in a defective condition,\[39\] and is liable although an employe deliberately puts the car in such condition.\[40\] The federal act does not exclude state statutes on the same subject.\[41\] The Florida statute relative to the equipment of flat cars is inapplicable to cars of another company being temporarily used.\[42\] An action to recover the penalty prescribed for a violation of the Safety Appliance Act is not a criminal procedure,\[43\] and the violation need not be proven beyond a reasonable doubt.\[44\] The complaint need not negative the proviso exceptions to the act.\[45\]

\_Speed regulations.\_See 10 C. L. 1888--A maximum speed limit is prescribed in some towns and cities,\[46\] and a violation of such limit is negligence.\[47\] Under a statute making a company liable for any injury by trains when running in excess of speed limit, the liability depends upon the speed at the time the danger is discovered or would have been discovered had the train been running at a lawful rate, and not upon the speed at the time of impact.\[48\]

\_Obstructions at crossings.\_See 10 C. L. 1888--In many states the blocking of a crossing for a prescribed time is a penal offense,\[49\] rendering the company liable to a penalty \[50\] to be recovered by the traveler\[51\] delayed thereby first bringing suit.\[52\] The

Co. v. Delk \[C. C. A.\] 15S F 911. Where nature, and guilty knowledge and intention carr was at rest in yards for an hour and carrier had opportunity to discover defect, offense. State v. Lake Shore & M. S. R. it is liable if it thereafter moves same whether defect could have been discovered by reasonable care or not. United States v. Philadelphia & R. Co., 160 F 986.

Duty to repair upon discovering defect if means are t hand otherwise at nearest repair point. United States v. Atkinson, etc., R. Co., 167 F 698: United States v. Louisville & N. R. Southeron Pac. Co., 167 F 699. Must establish his reasonable repair points along line and keep suitable means theret to make repairs. Id.

39. It receives at own risk. United States v. Southern Pac. Co., 167 F 699.

01. United States v. Southern Pac. Co., 167 F 699.

01. The state law, requiring that all 10-comotives and cars used in moving intra-state traffic shall be equipped with auto-mate couplers, is not in conflict with the federal act making the same requirement as to locomotives and cars engaged in moving Interstate traffic, but rather the state law is supplementary to the federal law and in harmony with it. Detroit, T. & L. R. Co. v. State, 11 Ohlo C. C. (N. S.), 483: State v. Lake Shore & M. S. R. Co., 7 Ohio N. P. (N. S), 571: State v. Detroit, T. & L. R. Co., 7 Ohio N. P. (N. S), 541. It is not the train, but the car complained of, that is the unit which these statutes seek to control, and the fact that a large proportion of the cars in a train are loaded with interest traffic does not prevent the application of the state statute to a car or cars in the same train which are loaded with state traffic; not its the common use, but rather it is the present use of a car which controls, and an allegation that the car complained of is commonly used in interstate traffic can not save it from the operation of the state statue when at the time alleged it was being used within the state for the transportation of state traffic.

State v. Detroit, T. & L. R. Co., 7 Ohio N. P. (N. S.) 541. Proceedings under the Ohio Automatic Coupler Act are civil in their 12 Cur. Law. RAILROADS $ 11B. 1567

obstructing of a street in violation of statute is per se negligence,\[53\] and renders the company liable for resulting damages.\[54\]

\_Stops at railroad crossings.\[55, 10 C. L. 1399\]\_Trains are frequently required to stop at crossing of the tracks of another road unless safety devices are installed.\[56\]

_Signals at crossings._--Statutes or ordinances usually require crossing signals.\[56\]

A failure to give statutory crossing signals usually renders the company liable to a penalty,\[57\] and to damages in case of injury.\[58\]

_Conveniences at depots.\[55, 10 C. L. 139\]_--Under the statutes of some states, railroads must keep their depots open for a fixed period before and after the arrival and departure of trains,\[59\] and must provide wholesome drinking water thereat.\[60\]

(SS 11) \_B. General rules of negligence and contributory negligence.\[61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 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, 197, 198, 199, 199, 199, 190, 191, 193, 195, 197, 199, 198, 199, 199, 190, 192, 194, 196, 197, 198, 199, 199, 199, 191, 199, 192, 193, 194, 195, 196, 197, 198, 199, 199, 199, 198, 199, Kujawa v. Chicago, etc., R. Co., 135 VWis. | he was just about to step off track when 562, 118 NVW 249. Failure to ring bell or sound whistle. Texas Cent. R. Co., V. Horn | ordinance was proximate cause of injury. |Tex. Civ. App.J| 115 SW 511; Southern R. | St. Louis S. W. R. Co. v. Cockrill |Tex. Civ. Co. v. Daves, 108 Va. 378, 61 SE 174. Un- | Apr.J| 111 SWV 1032. Whether failure to give detrov. St. 1899, $ 1102 (Ann. St. 1006, 938), failure to give statutory crossing signs. | Janas is prima facle proximate cause of injury at crossing. Day v. Missouri, K. & | t. T. R. Co., 132 Mo. App. J07, 112 SWV 1019. Proof of negligence as to speed and as to failure to keep lookout held not to authorize finding for plaintiff in absence of proof that it was proximate cause of injury. Chicago, etc., R. Co. v. Latham | Tex. Civ. App.J| 115 SWV 890. Instruction deny. | Ing recovery if plaintiff failed to look held | rigorous as ignoring proximate cause. St. Louis S. W. R. Co. v. Shelton | Tex. Civ. App.J| 115 SWV 877. Where there is no evidence to show that horses was seriously injured, recovery cannot be had where it appears that he was shot. Denver & R. G. R. | C. v. Brennannan | | 100 P 414. | Helid proximate cause's Failure to give signal at crossing, of injury caused by team becoming righthened at proximity | | 100 P 414. | T Texas & P. R. Co. v. Shokter | Tex. Civ. App.J| 115 SWV 910. Maintenance of de- | Apr.J| 115 SWV 910. Maintenance of de- | Apr.J| 115. | Ed. T. R. Co., 81 S. C. | 100 P 414. | Mar.

nor is it necessary that defendant should have foreseen the particular injury sustained,68 provided it should have reasonably anticipated some injury from its negligence.67 The failure of a third party owing no duty to affirmatively act cannot be relied upon as an intervening cause.68 Where defendant negligently creates a situation of apparent peril, it is liable for injury sustained by plaintiff in attempting to escape therefrom though in fact no danger exists.69 Railroad is not liable for acts of its servants beyond the scope of their authority and not in the performance of their duties,79 and the doctrine of "discovered peril" is inapplicable.71 A rule prohibiting a specific act, however, is no defense if the employ acts in the discharge of his duty.72 A car company engaged with a railroad company in operating fruit cars73 is liable to a brakeman for a negligent 74 latent defect in the car.75

Footnote 73: We have also used the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to refer to the term "discovered peril" to the term "discovered peril" to refer to the term "discovered peril" to the term "discovered peril" to refer to the term "discovered peril" to the term "discovered peril" to refer to the term "discovered peril" to the term "discovered peril" to refer to the term "discovered peril" to the term "discovered peril" to refer to the term "discovered peril" to the term "discovered peril" to the term "discovered peril" to refer to the term " the part of plaintiff proximately contributing to the injury * will defeat recovery * unless the defendant is guilty of willful or wanton negligence,\* or after discovering * and realizing \*2 plaintiff's perilous position,\*3 defendant could, by the means at

between cars standing on adjoining track. | held insufficient charge on wanton negili-Griskell V. Southern R. Co., $1 S. C. 193, 62 | S. C. 193, 62 | S. C. 205. Special finding that accident would presence of person, it is necessary that in-have been averted if plaintiff had stopped * instruction should tell what condition will "instantly" when the saw cars, but that he supply lack of knowledge. Auchison, etc., could not stop instantly, is not inconsistent * R. Co., v. Baker \[Kan.\] $8 P 804. with general verdict for plaintiff, in effect finding that he did not discover train time time * * * discover the peril of to avoid injury. Antonian v. Southern Pac. | plaintiff too late to prevent injury by the |Co. \[Cal. App.\] 100 P 871. Finding for plain-diff based on finding that he did not see * other answers, to mean that he was not train in time to avoid it held consistent * J. Jenkins \[Kan.\] $ P 208. Instruction |ing instantly at any time when train was |In view of him," could have avoided injury, held erroneous him" is construed to mean actual sight of. |G. Where jury find that plaintiff did not see * from in-time to avoid injury, and that he exercised ordinary care in approaching |G.

12 Cur. Law. RAILROADS SS 11B. 1571

hand,84 in the exercise of reasonable care,85 have avoided the injury.86 But the

Louisville & N. R. Co. \[Ala.\] 47 S 323. Ev1-

miles per hour when decedent was discov.

dence that plaintiff approached crossing in

red 60 feet ahead, failure to stop before

manner indicating intention to cross Immere

striking her held not negligence, although

dately as to distance when seen by en-

there is testimony that it could have been

gineer, and as to distance within which

train could be stopped, held to authorize

clapsing between discovery and collision.

submission of last clear chance doctrine.

Achichson, etc., R. Co. v. Baker \[Okl.\] 95 F

App. 116 SW 16. Where collision occurred

438. Negligence of traiman at time they

which would not have happened had train

could properly assume that traveler would

not attempt to cross will not support re-

adbed engineer to stop after discovering

overy that last clear chance doctrine.

danger, no recovery can be had on last clear

Stears v. Boston & M. R. Co. \[N. R.\] 71 A 21.

A 21.

For jury: In not avoiding injuring one

leaning over rail as if to the shoe while

train from 180 to 296 feet at rate of

jury. Nearly V. Northern Pac. R. Co., 37

6 to 12 miles per hour, Arkansas Cent. R.

Mont. 461, 97 P 44. Where fireman dis-

Co. v. Fain, 85 Ark. 832, 109 SW 514.

covered plaintiff walking along side track

82. Where it is admitted that engineer

unconscious of train approaching only a

saw plaintiff In time to stop, but only is-

lite faster than a walk, negligence in

sue is whether he was walking on track or

spelling to engineer and not ringing bell or

beside it and suddenly turned onto it ahead

soounding whistle held for jury. Texas &

of train, held proper to qualify instructions

P. R. Co. v. Crawford \[Tex. Civ. App.\] 117

on contributory negligence with one on dis-

Sew 193.

covered peril. St. Louis S. W. R. Co. v. Thompson

Cockrill \[Tex. Civ. App.\] 111 SW 1092.

\[Ark.\] 117 SW 541; Stears v. Boston & M.

Evidence that employees, on backing engine,

R. Co. \[N. R.\] 71 A 21. Contributory negli-

saw plaintiff on track waiting for another

reasoner is not defense under doctrine of

train to pass, apparently unaware of ap-

discovered peril. Missouri, K. & T. R. Co.

proaching engine, and had time to stop,

v. Reynolds \[Tex. Civ. App.\] 115 SW 340.

etc., held to justify charge on discovered

Where trainmen discovered one's peril in

peril. Missouri, K. & T. R. Co. v. Reynolds

time to avoid injuring him and failed so

\[Tex. Civ. App.\] 115 SW 340. Evidence

to do, their negligence, and not the negli-

held to sustain finding that plaintiff was

gence of such person in getting into peril,

walking in place of danger and to show

is proximate cause of injury. Potter v. St.

that she did not suddenly step into danger

Louis & S. W. R. Co. v.

ahead of engine. St. Louis S. W. R. Co. v.

While initial negligence in going onto track

Thompson \[Ark.\] 117 SW 541.

84. Must use every means within power,

generate of company, it will not prevent re-

consistent with safety of train, to avoid

every for negligence after discovering his

injury. St. Louis & S. W. R. Co. v. Summers

peril, providing there is not concurrent neg-

\[Tex. Civ. App.\] 111 SW 211; Maxfield v.

Tezas & P. R. Co. v. \[Tex. App.\] 117 SW 211; Maxfield v.

Tezas & P. R. Co. v. Crawford \[Tex.

peril of deceased lying on track in time to

Civ. App.\] 117 SW 193. Instruction making

avoid striking him and failed to use due

liability depend upon failure to use means

care. held liable. Southern R. Co. v. Gullatt

at hand only if ordinarily prudent person

\[Ala.\] 48 S 472. Instruction that, after

would have used them held erroneous

discovering plaintiffs peril, reasonable care

Maxfield v. Texas & P. R. Co. \[Tex. Civ. App.\] 117 SW 483. Must use every means

at hand to avoid injury, held to properly

at hand, and not enough that employees at

submit issue of discovered peril. Freed-

tempt to attract his attention without

num v. New York, etc., R. Co. \[Conn.\] 71

attempting to stop engine, which could

A 901.

have been done. Missouri, K. & T. R. Co.

Doerting applicable: Where undisputed

v. Reynolds \[Tex. Civ. App.

"discovered peril" doctrine being based upon the rule of sole proximate cause, it does not authorize a recovery where plaintiff's negligence actually concurs therewith." While actual knowledge of plaintiff's peril is usually required to invoke the doctrine," it has been extended in some states to cases where defendant by the exercise of the care owed to the plaintiff would have discovered his peril." One placed in a position of peril without fault on his part, by the negligence of defendant, is not negligent in acting as it seems prudent at the time, though it was not the best method of escaping therefrom." Contributory negligence is to be determined from all the circumstances," and the negligence of a child is to be tested by the care which one of his age would ordinarily exercise under the circumstances." Negligence of carrying road does not preclude recovery by its passengers against another company for negligent collision."

(SS 11) _C. Injuries to passengers and freight."_

(SS 11) _D. Injuries to employees."_

(SS 11) _E. Injuries to licensees and trespassers."_ General rules.\_See 10 C. L. 1304

While a railroad is liable to a trespasser for negligence, the fact that one injured is a trespasser is material on the duty owed," since as a general rule the only duty owed to

St. Louis & S. F. R. Co., 214 Mo. 54, 112

requiring only about 5% seconds to cover SVW 486. Though precedent and concurrent

distance, discovered peril cannot be predignificance is without dispute, liability un-

cated on failure to discover, since foreman

der last clear chance doctrine is usually for

cannot give entire time to discovering

jury. Wilkinson, V. Oregon Short Line R.

P. McGeev. Wabash R. Co., 214 Mo.

Co. \[Utah\] 99 p 466.

Not applicable: Where one driving along

side of track turned suddenly onto same

\[Tex. Civ. App.\] 114 SVW 425. Doctrine of

ahead of engine, recovery cannot be had on

sudden well held applicable where evidence

last clear chance doctrine. Wilkinson V.

Oregon Short Line R. Co. \[Utah\] 99 p 466.

Collision with lever ear which justified ef-

Evidence held insufficient to show that en-

gineer saw plaintiff's peril in time to stop

where he attempted to pass immediately

in front of engine. Whitney V. Texas Cent.

cured at crossing, where circumstances

F. Co. ITex. Civ. App.\] 110 SVW 70.

ST. Where one on track is conscious of

his perfil and does not get off, no recovery

can be had. Alabama G. S. R. Co. v. Mc-

shout 100 feet away in opposite direction

Whorter \[Ala\] 47 SS 84. Where liability of

board projecting from pile to be struck by

to whether plaintiff was warned, jury

train is equally apparent to nearby licensees

should consider whether such shout ought

and employees, negligence or fault of both

to have been understood as a warning of

continue up to moment of accident, and

last clear chance doctrine cannot apply.

Co. \[Cal. App.\] 100 P 877.

Muse V. Seaboard Air Line R. Co. \[N. C.\]

63 SS 102.

child entrusted by mother to care of 11-

88s, Southern R. Co. v. Gullatt \[Ala\] 48

8472. Evidence that one of crew on switch

engine was looking when engine com-

a boy of his age would ordinarily exercise

meed to back and backed onto plaintiff

held to make case for jury. Louisiana &

A. R. Co. v. Ratcliffe \[Ark\] 115 SWW 396.

Evidence of danger signals some distance

from where decedent was found held suff-

cient to carry question of knowledge to

inry. Southern R. Co. v. Gullatt \[Ala\] 48

P 412.

89. Nichols v. Chicago, B. & Q. R. Co.

\[Colo.\] 98 P 808. Evidence held to authorize finding that if trainmen had exercised

1069. 11 M. 362. 13 M. 364. 16 M. 1103; 30

due care they would have discovered gl

of street car head light as it was about

to enter onto track in time to avoid col-

1131. Wally v. Union Pac. R. Co. \[Neb\].

120 NW 174. Where foreman could not see

decased until within 300 or 400 feet of

him and in fact did not see him, and train

was running at rate of 50 miles per hour,

113 SWW 842. Where company falls in the 12 Cur. Law. RAILROADS SS 11E. 1573

trespassers \[98\] and bare licensees \[99\] is not to willfully or wantonly injure them,\[1\] and there being no duty to discover their presence on the track,\[2\] no duty arises until they are in fact discovered,\[3\] after which reasonable care must be exercised.\[4\] There is,

performance of its duties in operation of 141 III. App. 98; Shults v. Chicago, B. & Q. trains and injures licensees, it is liable un- less licensees, it is liable un- less licensees was guilty of contributor Shorse & M. S. R. Co., 127 App. Div. 838, 111 meigence. Burton's Admr v. Cincinnati, NYS 859; Southern R. Co., v. Fisk \[C. C. A.\] etc., R. Co. \[Ky.\] 113 SW 442. 98. One walking along path in yards not detect trespassers. Stanley v. Rio Grande W. a public highway is a trespasser. St. Louis, R. Co., 34 Utah, 423, 98 P 311. Owes no etc., R. Co. v. Lavendusky \[Ark.\] 113 SWV

304. Evidence held to show that child would owe under same circumstances. killed on tracks was a trespasser. Palmer v. Oregon Short Line R. Co., 34 v. Oregon Short Line R. Co., 34 468, Utah, 446, 98 P 68. Evidence held to show that engineer did not discover child in dent was at crossing when killed. Cincinnati, etc., R. Co. v. Barls' Admr \[Ky.\] 113 SWV 854. Unless track in in ster or public habitually uses same, one walking there is a trespasser. Illinois Cent. R. Co. v.fulness. Bailey v. Lughi Johnson \[Ky.\] 115 SWV 788. Evidence as to Valley \[M.\] 115 SWV

use and recognition held to make question

for jury whether street existed where plain- fendants railroad trains was left standing iff was struck. Id. One engaged in moving yards on to move same at night, reading fire held a mere volunteer and comm- that mill employees were accustomed to pany owed no duty except not to wantonly travel through yards, that plaintiff was in- or recklessly injure him. Springer v. St. Louis S. W. R. Co. \[C. C. A.\] 161 Y 801. 34. 161 Y 801. 34. 161 Y 801. 34. 161 Y 801. 34. 161 Y 801. 34. 161 Y 801. 34. 161 Y 801. 34. 162 Y 801. 34. 163 Y 801. 34. 164 Y 801. 34. 165 Y 801. 34. 166 Y 801. 34. 166 Y 801. 34. 167 Y 801. 34. 168 Y 801. 34. 169 Y 801. 34. 160 Y 801. 34. 161 Y 801. 34. 162 Y 801. 34. 163 Y 801. 34. 164 Y 801. 34. 165 Y 801. 34. 166 Y 801. 34. 167 Y 801. 34. 168 Y 801. 34. 169 Y 801. 34. 160 Y 801. 34. 161 Y 801. 34. 162 Y 801. 34. 163 Y 801. 34. 164 Y 801. 34. 165 Y 801. 34. 166 Y 801. 34. 167 Y 801. 34. 168 Y 801. 34. 169 Y 801. 34. 160 Y 801. 34. 161 Y 801. 34. 162 Y 801.

however, a tendency to exact a higher care where the road runs through a thickly populated locality or place where the presence of people on the track is to be anticipated,4 although the use does not amount to an implied license.6 Where an express or implied license has been given to an individual to use the tracks,7 or the public have openly used the same with the knowledge of 8 and without objection from the company for such a period as to raise an implied license,9 the company must exercise ordinary care 10 in the maintenance of the premises,11 in the selection of its trainmen,11 and in the operation of its trains.13 One exceeding the license becomes a trespasser.14 A company operating in public streets must use commensurate care.18

Footnote 13: https://www.census.com/

Footnote 14: https://www.census.com/

Footnote 15: https://www.census.com/

Footnote 16: https://www.census.com/

Footnote 17: https://www.census.com/

Footnote 18: https://www.census.com/

Footnote 19: https://www.

13 Cur. Law. RAILROADS SS 11E. In some states a lookout for trespassers is required by statute.16 Contributory negligence defeats recovery.17

\_Employes of other roads and independent contractors.\_See 10 C. L. 1894--A railroad must exercise reasonable care for the safety of employees of other roads rightfully on its premises 18 and for servants of independent contractors working on the road,19 but such persons must exercise due care for their own safety.20 Joint protective rules must be observed.21 Where a proprietary road agrees to furnish signalmen for trains of another using its tracks, it owes reasonable care to the employees of the latter.28

\_Persons at station.\_See 10 C. L. 1897--A railroad company must keep its depot and the approaches thereto 23 in a reasonably safe condition for persons rightfully using the same, but owes no duty to trespasser,24 especially where his presence :s unknown.26 A company using the station of another owes to the passengers of the latter the same duty as it owes to its own.24 Persons in and about stations must exercise due care for their own safety.27

**16.** Arkansas state requiring lookout to be kept for trespassers held not to make trabreeman dinky train used by contractor trabremmen liable for resulting injuries.

stepped back, after throwing switch, to al-Lockard v. St. Louis & S. F. R. Co. 167 F low his train to pass onto end of ties and 675. Complaint for injury to trespasser on track held to state only cause of action & O. R. Co. v. McCoy \[KY.\] 112 SWV 1105. for negligence on part of engineer in failing to keep lookout, as required by statute

ing along bridge without looking to see if Arkansas, Id.

**17.** One using track without consent of cargo, etc., R. Co., Waldwin \[C. C. A.\] 164 company is per se negligent. Bailey v. F 826. Where employe of another road

Lohigh Valley R. Co., 220 Pa. 516, 69 A 998. Negligence for jury where evidence tended to show that deceased was not at crossing but was walking on track and stepped in

**18.** Crossing and station signals held not for employees of other roads having common use of switch yards. Cincinnati, etc., R. Co., R.

Persons loading and unloading cars.See 10 C. L. 1397.Persons rightfully loading or unloading cars.See 10 C. L. 1397. --Persons rightfully loading or unloading cars.See 14 are upon the premises by implied invitation,See 15 and the company must exercise reasonable care. 16 to avoid injuring them, but they must also use due care for their own safety. 17 The duty of exercising due care, however, is only co-extensive with the license. 18 Where a car is placed in the usual place for unloading and for that purpose, 19 employees are bound to anticipate the presence of persons therein. 19

Children on or near tracks.See 10 C. L. 1398. --While trainmen need not anticipate trespassing children 19 nor maintain a lookout for them, 16 upon discovering their presence they must exercise reasonable care, 18 and, where they are in a place of peril, while working between cars, by train back-to-end. 19

Cross track to station ahead of rapidly ap-proaching train, held negligent though it was through train on regular's time and be thought it would stop. Louisville & N. 18. Co. v. Towers' Adm't \[Ky.\] 115 8W 719. --High negligent: In stepping onto track knowing that train was approaching, without looking after coming around car. Royster V. Southern R. Co., 174 N. C. 347, 61 SE 179. In attempting to cross track with-in 30 or 40 feet of approaching train with full knowledge thereof, as matter of law. Hermeling v. Chicago, etc., R. Co., 105 Minn. 138, 117 8W 341. --High negligent: In deriving in narrow space between tracks to load car which recrossed side track does not affect duty to one on car, who was trespasser, unless he was on same for purpose of unloading. Louisville & N. R. Co. v. Hurst \[Ky.\] 116 SSV 291. --Notice of arrival of car, with notice to unload within fixed time to avoid departure, is an invitation to enter onto premises to unload. Ackley v. West Jersey & S. R. Co. \[N. J. Err. & App.\] 71 A 273. --High negligent: In driving in narrow space between tracks to load car which could have been loaded with safety from other side, knowing that he had barely time to unload onto car before next train was due.

cannot indulge the assumption that they will appreciate and avoid the danger.\* In the absence of statute,\[39\] there is no duty to fence against children.\[40\] A child must exercise care commensurate with his age and discretion for his own safety.\[41\]

\_Adults walking on tracks.\_See 10 C. L. 1308--Ordinarily a railroad owes no duty to maintain a lookout for persons walking on the track,\[42\] nor to give statutory crossing signals\[48\] or other warning,\[44\] and, where a double track is maintained, it is not negligence to use the left track contrary to custom.\[48\] Where, however, the tracks are in the street,\[48\] or are frequently used by people,\[47\] commensurate care must be exercised. After discovering the presence of a trespasser or licensee, reasonable

sonable probability of injury is known or

in exercise of reasonable care would be

passed held for jury. Gulf, C. & S. F. R.

man \[Tex. Civ. App.\] 118 SWV 198.

Invention imposing duty to watch all children

Invention for defendant on ground of con-

in and about yards and tracks held too se-

rebutory negligence of boy not quite 10

vere. International & G. N. R. Co. v. Varies old, and deaf, killed while walking

Vallejo \[Tex.\] 113 SWV 4. Conflicting evidence as to when child was discovered on

P. R. Co. v. Crump \[Tex. Civ. App.\] 110

track and when it should have been dis-

covered held to support verdict for plain-

iff. Anderson v. Great Northern R. Co.

\[Idaho\] 99 P 91. Where there was nothing

in falling to so look as to see him. Cumm

to show that child was on tracks from time

ming's AdmT v. Illinois Cent. R. Co., 83 Ky.

train came in sight, and fact that her bbn-

L. R. 884, 110 SWV 803. Owes ordinary care

net was found on track some distance from

to discover trespasses. Galveston, H. & N.

where she was struck is insufficient, fact

that track was straight for distance per-

43. Morrov v. Southern R. Co., 147 N. C.

miting train to stop and that engineer

623, 61 SE 681. But may be considered on

was looking held not to show negligence.

general question of negligence where train

O'Bannion's AdmT v. Southern R. Co., 33

Ky. L. R. 315, 110 SWV 329. Where brake-

S. C. 1302, 5 2132, requiring bell to be rung

man on rear car of backing train on side-

stock saw child on main track but he was

going parallel with train and was in no

danger, defendant held not liable where

child, unknown to trainmen, crossed over

to main track and was struck by second

car from engine. International & G. N. R.

Co. v. Vallejo \[Tex.\] 113 SWV 4. Where

evidence was conflicting as to when child

seen walking on either path stepped onto

track, negligence is for jury. Burton's

AdmT v. Cincinnati, etc., R. Co. \[Ky.\] 113

SSV 442.

38. Anderson v. Great Northern R. Co.

\[Idaho\] 99 P 91; Palmer v. Oregon Short

Line R. Co., 24 Utah, 466, 98 P 688. Child

15 months old. Southern R. Co. v. Forristre

\[Lals.\] 48 S 69. Child 25 months old. Gal-

veston, H. & N. R. Co. v. Olds \[Tex. Civ. App.\] 112 SWV 787.

that if

trainmen discovered child on track and

failed to exercise ordinary care, etc., held

not erroneous as failing to distinguish between discovery of child and discovery of

its peril. Id.

39. Fencing statutes have no application.

Bischof v. Illinois S. R. Co., 137 Ill. App. 33.

Following construction of superior court of

Massachusetts, Rev. Laws Mass., c. 111,

$ 120, held to impose duty only for benefit

of adjoining owners and no liability for

failure to fence against children playing
on adjoining premises. New York, etc., R.

Co. v. Price \[C. C. A.\] 159 F 830.

40. New York, etc., R. Co. v. Price \[C. C. A.\] 159 F 330.

01. Child 25 months old is not negligent

as matter of law in going onto and remain-

ing on track in front of approaching train.

Galveston H. & N. R. Co. v. Olds \[Tex. Civ. App.\] 112 SWV 787. Contributory negligence

App.\] 112 SWV 787. Contributory negligence

and

the same thing is not negligent.

42. Engineer is not chargeable with neglig

since in not seeing trespasser on track nor

\[Idaho\] 99 P 91. Where there was nothing

in falling to so look as to see him. Cumm

ming's AdmT v. Illinois Cent. R. Co., 83 Ky.

train came in sight, and fact that her bbn-

L. R. 884, 110 SWV care must be used to avoid injury,48 the trainmen, however, having a right to assume, until the contrary becomes apparent, that they will appreciate their danger and leave the track.49 The duty owed under particular circumstances is sometimes prescribed by statute.80 Where an express license has been given or the public have so used the tracks as to have acquired an implied license,31 the company must exercise reasonable care to avoid injury,52 and cannot claim the advantage of a statute making persons walking thereon trespassers.53 But such implied license does not prevent

Footnote 48: Where person is walking in place of safety and there is nothing to appraise trainmen that he is ignorant of approaching urgent, they need not take extra precautions. Boulden v. Louisville & N. R. Co. \[Ky.\] 112 SSV 986. Negligence to back train along common walkway in night time without end lights. Allen v. North Carolina R. Co. \[N\].

Footnote 49: Where person is walking in place of safety and there is nothing to appraise trainmen that he is ignorant of approaching urgent, they need not take extra precautions. Boulden v. Louisville & N. R. Co. \[Ky.\] 112 SSV 986. Negligence to back train along common walkway in night time without end lights. Allen v. North Carolina R. Co. \[N\].

Footnote 48: Where person is walking in place of safety and there is nothing to appraise trainmen that he is ignorant of approaching urgent, they need not take extra precautions. Boulden v. Louisville & N. R. Co. \[Ky.\] 112 SSV 987. Negligence to back train along common walkway in night time without end lights. Allen v. North Carolina R. Co. \[N\].

Footnote 49: Where person is walking in place of safety and there is nothing to appraise trainmen that he is ignorant of approaching urgent, they need not take extra precautions. Boulden v. Louisville & N. R. Co. \[Ky.\] 112 SSV 988. Negligence to back train along common walkway in night time without end lights. Allen v. North Carolina R. Co. \[N\].

Footnote 49: Where person is walking in place of safety and there is nothing to appraise trainmen that he is ignorant of approaching urgent, they need not take extra precautions.

the company from legitimately using the property,\[54\] nor relieve the persons exercising the license from the duty to exercise due care.\[55\] While the train must be run in a prudent manner with such appliances as are approved and in general use as will enable persons to discover its approach if they exercise due care,\[58\] negligence of the company does not excuse due care on their part,\[57\] and if negligent no recovery can be had.\[58\]

_Persons standing, sitting, or lying on tracks.\[See 10 C. L. 1401--Ordinarily a railroad owes no duty to a trespasser\[59\] standing, sitting, or lying on the tracks, unless his presence is known or is to be anticipated,\[60\] in which case reasonable care must be used,\[61\] although the trainmen may assume that he will appreciate his peril and avoid injury unless the circumstances apprise them to the contrary.\[62\] Such trespaspers must exercise due diligence for their own safety.\[63\]_

54. Permission to the public to use right of way does not prevent company from pll-ing lumber thereon nor render it liable to bare licensee in absence of willful negil-gence. Muse v. Seaboard Air Line R. Co. (N. C.) 116 SV 1140. One stepping onto track the head of approaching engine, know-ing that it was approaching, though not knowing what track it was on. Holland v. Texas Midland R. Co., V. Byrd \[Tex.\] 116 SVW 19. In stepping behind car which knocked him down without looking or looking carelessly. Missouri, K. & T. R. Co., Driscene \[Tex. Civ.\], Appl. 109 SW 453. Trespasser falling to cinity were accustomed to walk was entitled to warning by signal. Morrow v. Southern Co., 148 N. C. 163, 61 SB 64. Where, after signalling train to stop, decedent started down track ahead of train and was struck. Civ. Appl. 110 SVW 199. Failure of company to have lights on end of backing car and to give signals does not relieve pedestrian of the obligation to look and listen for trains. Allen v. North Carolina R. Co., N. C.) 62 SE 1079.

01. Failure to look and listen is not per se negligence. Missouri, K. & T. R. Co., V. Wall \[Tex. Civ. App.\] 110 SW 453. Where liability of board projecting from lumber plle to be struck by train is equally apparent to permissive licensee as to employees, licensee cannot recover for being struck thereby. Muse v. Seaboard Air Line R. Co. \[N. C.\] 63 SE 102.

Negligent as matter of law: In walking along end of ties knowing that train was due and in falling to use senses to discover same. Strickland v. Atlantic Coast Line R. Co. \[N. C.\] 63 SE 161. Trespasser walking on bridge at night. Missouri, K. & T. R. Co. v. Malone \[Tex.\] 115 SVW 1168. Walking over bridge when there were other safe ways of reaching destination. Texas Midland R. Co. v. Byrd \[Tex.\] 115 SVW 1163. VWhere, despite whistles, plaintiff did not look up until reflected light drew his attention to approaching engine and then, although walking on end of ties, the did not step off as did others nearby. St. Louis & S. F. R. Co., V. Buff \[Miss.\] 48 S 184.

Negligence for jury: Evidence as to confusion of trains and the observing of the one doing damage by smoke of another. Everett v. St. Louis & S. F. R. Co., 214 Mo. 54, 112 SVW 456. In jumping from trest to avoid apparent collision. Texas Midland R. Co. v. Byrd \[Tex. Civ. App.\] 110 SVW 199. Negligence in taking route by track instead of safe way. Missouri, K. & T. R. Co. v. Wall \[Tex. Civ. App.\] 110 SW 453.

54. Permission to the public to use right of way does not prevent company from pll-ing lumber thereon nor render it liable to bare licensee in absence of willful negil-gence. Muse v. Seaboard Air Line R. Co. \[N. C.\] 63 SE 102.

01. Fact that use by public has created licensees does not relieve one using bridge in lleu of other safe ways from negligence. Texas Midland R. Co., V. Byrd \[Tex.\] 116 SVW 1163.

01. Where train was run at night without looking or looking carelessly. Missouri, K. & T. R. Co. v. Byrd \[Tex.\] 116 SVW 1140. One stepping onto track ahead of approaching engine, know-ing that it was approaching, though not knowing what track it was on. Holland v. Missouri Pac. R. Co., 210 Mo. 338, 109 SWV 19. In stepping behind car which knocked him down without looking or looking carelessly. Missouri, K. & T. R. Co., Driscene \[Tex. Civ. App.\] 109 SWV 453. Trespasser falling to use sense of sight. Beach v. Southern R. Co., 148 N. C. 163, 61 SB 664. Where, after signalling train to stop, decedent started down track ahead of train and was struck. Ellis v. Southern R. Co. \[C. C.\] 163 F 686.

01. Texas Midland R. Co. v. Byrd \[Tex.\] 110 SVW 199. Failure of company to have lights on end of backing car and to Persons in switch yards. See 10 C. L. 1401.--Ordinarily no duty is owed to one in the switch yards until his presence is discovered,64 unless he is there in discharge of duties 68 or by invitation,69 in which case reasonable care must be exercised.67 Rules governing operation of trains within the yards must be observed.68 Where a child is discovered in the yards, the trainmen cannot assume, as in the case of an adult, that he will keep out of danger.69 While a licensee may assume that the company will not endanger him without warning,70 all persons in switch yards must use due care to avoid injury.71

Persons on trains. See 10 C. L. 1402.--The duty owed to particular classes on trains is sometimes prescribed by statute.72 While a railroad owes no duty to a trespasser 72

& T. R. Co. v. Reynolds \[Tex. Civ. App.J 115 \] keep a lookout for them. Christiansen v. SW 340. Where one is sitting on track with head in hands apparently asleep or unconston, it cannot be said as matter of law (Gerhards v. Chicago Junction R. Co., 138 \], that engineer may assume that he will need warnings. Starett v. Chesapeake & O. R. Co., 33 Ky. L. R. 309, 110 SW 282.

63. One lying down in position calculated to conceal presence is prima facie negligent. Caldwell v. Houston & T. C. R. Co. \[Tex. Civ. App.J 117 \] SW 488. One standing between tracks without looking or giving a thought as to how far she was from either track and likelihood of being struck is negligent as matter of law, Bryne v. Boston El. R. Co., 198 Mass. 444, 85 NE 78. Facet that plaintiff was mistaken as to tracks upon which cars ran held not to authorize her to assume without looking that no car was approaching on one next to which she was standing. Id. A look which Is so careless as to fall to disclose ear approaching in plain view does not relieve from negligence in standing between tracks. Id. Evidence held to sustain finding that decedent was lying on track because of drunken condition and not because of fainting. Caldwell v. Houston & T. C. R. Co. \[Tex. Civ. App.J 117 \] SW 488.

01. Smalley v. Rio Grande W. R. Co., 34 Utah, 428.8 P S11. Where children ordered from yards again entered without being observed and began catching onto cars as they passed, company held not liable as matter of law for injuries to one of them. Id.

01. One employed to look after Pullman ears while standing in yards is entitled protection of employees. Nelson v. Wabash R. Co., 132 Mo. App. 687, 112 SW 1017. A person in charge of stock, who is walking beside the train to inspect the stock, is not a trespasser or bare licensee. Christiansen v. Illinois Cent. R. Co. \[Tow\] 118 NWF 387.

01. Where company knows of use of switch yards, it must exercise ordinary care to avoid injury. Shrader v. Nashville, etc., R. Co. \[Ky.\] 114 SW 788; St. Louis, etc., R. Co. v. Hudson \[Ark.\] 110 SW 590.,

01. Company held negligent in suddenly backing chooses which had been standing without giving warning to one employed to look after Pullman ears. Nelson v. Wabash R. Co., 132 Mo. App. 687, 112 SW 1017. In action for injuries to one walking in switch yards, instruction that defendant should have given notice by bringing Bell or blow- on engine upon invitation of conductor and engineer without intention to pay fare held should have based liability on failure to give adequate notice. Shrader v. Nashville, etc.,

01. One possible way to make sure that the company is not to work with the help of the company.

01. One boarding switch engine without without and in violation of company's rules is a trespasser. Bailey v. North Caro-

11a. R. Co. \[N. C.\] 62 SE 912. One riding on engine upon invitation of conductor and engineer without intention to pay fare held to a trespasser and widow is not entitled to recover for death due to derailment caused by defects in tracks. Morris v. Georgia

88. One possible way to make sure that the company is not to work with the help of the company.

12 except not to willfully or wantonly injure him," a higher degree of care is owed to one upon the train by invitation \[75\] of one authorized to give the same," and to volunteers," although no duty is owed to the latter to keep the equipment in a safe condition." A railroad is not required to guard against the unobserved intrusion of children," to inspect the cars before starting to discover their presence thereon," nor to maintain a lookout thereafter to discover children in the habit of jumping on and off," but after their presence is discovered due care must be used." One rightfully \[83\] occupying camp cars is entitled to reasonable care," and where the family of a foreman is living in camp cars with him with the acquiescence of the company and according to the general custom, ordinary care is owed to them," and they are

**74. Bailey v. North Carolina R. Co. \[N. C.\]**

gineer held not to make him an employee. 62 SE 912. In absence of evidence negativity merc forgetfulness, leaving of switch open for 5 or 15 minutes by one not knowing of train which afterwards came Into yards held not willinfel negligence. Id. Evidence that collision occurred because of failure of brakes to work, etc., held insuffent to show warant negligence. Chicago, etc., R. Co. v. Lacy \[Kan.\]\*\*

gineer held not to make him an employee. 62 SE 912. In absence of evidence negativity merc forgetfulness, leaving of switch open for 5 or 15 minutes by one not knowing of train which afterwards came Into yards held not willinfel negligence. Id. Evidence held insuffent to show warant negligence by one or 15 minutes by one or not precluded from recovering for a negligent injury by a secret rule prohibiting such living." Such persons, however, must exercise due care for their own safety." Where a trainman, acting within the scope of his authority " and in the discharge of his duty," ejects a trespasser from a moving train or uses unnecessary force, the company is liable unless the trainman had become a cotrespasser." Persons upon trains must exercise due care." Persons using hand cars or railroad triccycles.See 10 C. L. 1403--Company is liable for negligent injury to one using a tricycle on the track." (SS 11) _F. Accidents to trains._" See 10 C. L. 1403--A railroad owes ordinary care to the passengers of other roads at intersecting points," but where the apparent danger of collision is not such as to cause experienced trainmen to jump and it has no reason to anticipate the presence of passengers, it is not liable for injuries to a passenger from jumping." Where intersecting roads make joint use of towerman, they are jointly liable for a collision caused by his negligence." A contractor working along a road must not obstruct the same without giving due notice." An employee of another company is not chargeable with the contributory negligence of his fellow-servant." (SS 11) _G. Accidents at crossings._ 1. _Care required on the part of the company. General rules._" See 10 C. L. 1403--Although a railroad ordinarily has the right of

censee. Owens v. Yazoo & M. V. R. Co. was clear held not to show negligence in \[Miss.\] 47 S 518. Negligence held for jury \[Miss.\] 47 S 518. Negligence held for jury \[Miss.\] 487 S 1403. Negligence held for jury \[Miss.\] 487 S 14103. Negligence held for jury \[Miss.\] 487 S 518. Negligence held for jury \[Miss.\] 4887 S 14103. Negligence held for jury \[Miss.\] 4887 S 14104. Negligence held for jury \[Miss.\] 4887 S 141103.

way over a traveler, their obligations are reciprocal,1 and the company must exercise reasonable care 2 to avoid injuring one at a public crossing 3 whether he be a stranger or an employee.4 The care must be commensurate with the danger,5 and, where the crossing is unusually dangerous, extra precautions must be taken,6 it not being sufficient to give merely the statutory signals and warnings.7 A railroad is only liable for negligence,7 and trainmen may assume, until the contrary appears,7 that one approaching a crossing in apparent full possession of all his faculties will not heedlessly place himself in a place of danger,10 unless such person is too young to appreciate danger.11 The company must not negligently do acts likely to frighten a team at the crossing.12 Where a crossing not a public one has been so generally

1090-1104; Dec. Dig. SS 298-522, 327-340; 8 A. (a) aulted by ordinance. Norfolk & W. R. Co. & E. Enc. L. (ed.) 386; 23 I. 728. (b) 1. Nichols v. Chicago, B. & Q. R. Co. (Colo.)

Footnote 27: http://www.

used by the public, with the acquiescence of the company, as to imply a license,\[13\] due care must be used to avoid injury.\[14\]

_Lookout,\[See C. L. 1405\]_-Trainmen must keep a lookout for travelers at all public crossings\[15\] and at crossings used under a license,\[16\] provided the view is such as to make it effective.\[17\]

_Signals,\[See 10 C. L. 1405\]_-A railroad must exercise reasonable care\[18\] to give adequate notice of the approach of trains,\[19\] and must give the same at such time and place as to make it effective.\[20\] The giving of signals at public crossings\[21\] is regulated by statue in most states,\[22\] and the failure to comply therewith is negligence.\[28\]

warrant finding that wiper permitted steam Long Island R. Co., 129 App. Div. 649, 113 to escape just as plaintiff was driving ahead of engine. Id.

13. Evidence as to extent of use as crossing held to make question of knowledge and waves burning before and after accident, acquiescence for jury. El Passe Elbec. R. Co., \[question is for jury, through witnesses tesv. Ryan \[Tex. Civ. App.\] 114 SW 96. Where public customarily used defined pathway across tracks with consent and acquiescence of company, one using same is not a tres-passer. Lamphear v. New York, etc., R. Co., 194 N. Y. 172, 86 NE 1115. Whether license was neither used for jury, where it appeared that music should use only for long time and that objects of company had been to use of jury whether signals were given. Louis-v. Illinois Cent. R. Co. \[Iowa\] 117 NW 1074.

01. Where company concedes such public use of pathway with fits consent as to mal, evidence being conflicting. McGee v. eliminate question of public passageway, only question is use of reasonable care to give suitable warnings. Lamphear v. New York, etc., R. Co., 194 N. Y. 172, 86 NE 1115. Whether license was neither used certain pathway with consent of company, instrucc-596, that deceased had no license to walk on track and took risks incident thereto, and that no duty rested on defendant except not to willfully injure him, held properly refused. Id.

01. Louisiana & A. R. Co., v. Ratcliffe

01. New York, etc., R. Co., 194 N. Y. 172, 86 NE 1115.

Where public had customarily used certain pathway with consent of company, instrucc-596, that deceased had no license to walk on track and took risks incident thereto, and that no duty rested on defendant except not to willfully injure him, held properly refused. Id.

15. Louisiana & A. R. Co., v. Ratcliffe

01. New York, etc., R. Co., 194 N. Y. 172, 86 NE 1115.

01. Where obstructions shut off view of crossing until too close to avoid injury to one threat, court properly refused instrucc-596, provided the view is such as to then that it was duty of trainmen to keep lockout. Adkisson's Adm'r v. Louisville, etc., R. Co., 33 Ky. L. R. 204, 110 SW 284.

01. In absence of statute, company must exercise due care and, if necessary, give signals. Kujawa v. Chicago, etc. R. Co., \[Aa.\] 46 588.

185 Wris. 562, 116 NW 24. Must give warn-ings of approach. Illinois Cent. R. Co., 194 N. Y. 172, 86 NE 1115 NW 292.

19. New York, etc., R. Co., 194 N. Y. 172, 86 NE 1115.

01. New York, etc., R. Co., 194 N.

12 Cur. Law. RAILROADS $ 11G1.

Such statutes are for the benefit of one approaching the crossing \[24\] and are not limited to actual collisions \[25\] at the crossings,\[26\] but are not usually available to one not intending to use the crossing.\[27\] While a statute requiring the blowing of the whistle at a certain distance from the crossing, and the continuous ringing of the bell thereafter, requires the bell to be sounded where the engine starts within the distance to pass over the crossing,\[28\] it has no application where a caboose is accidentally kicked over.\[29\] The "eighty rods" from a crossing at which signals are required is to be measured from the end of the train nearest the crossing.\[30\] No liability attaches, however, unless the failure to give the signals was the proximate cause of the injury,\[31\] and no recovery can be predicated upon the failure to give signals at another crossing where they were properly given at the one where the injury occurred.\[32\]

\_Speed.\_See 10 C. L. 1407.--While ordinarily a railroad may operate its trains at such speed as it may choose through rural districts,\[33\] where running through cities and populous communities it must exercise due care for the safety of persons who may be using the crossings,\[34\] and must observe statutes and ordinances regulating speed.\[35\]

\_Gates.\_See 10 C. L. 1407.--Where gates are constructed and are in use, it is no de fense to a failure to close them that the city did not require gates,\[44\] and a company using the tracks of another company is liable for a negligent failure to lower, though the contract placed the duty on the proprietary road.\[87\] Though a railroad company constructs gates without the sixty day notice required by an ordinance, it is none the less bound by the ordinance as to their operation.\[88\] A railroad must use reasonable care to so operate its gates as not to injure persons passing thereunder,\[89\] and to make them effective as a warning.\[40\]

_Flagmen.\[58\]_ 10 C. L. 1408--Special circumstances of danger may require a flagman,\[41\] but the maintenance of a flagman does not relieve the company of its duty to give reasonable warnings.\[42\]

_Switching and backing train.\[58\]_ 10 C. L. 1408--Reasonable care must be exercised in operating switch engines\[43\] and backing trains\[44\] over public crossings to avoid injury.

_Blocking crossings.\[58\]_ 10 C. L. 1409--The public is entitled to the free and unobstructed use of crossings,\[45\] and the company must not unnecessarily place\[46\] therein or in close proximity-thereto any thing calculated to frighten horses.\[47\]

**36. Perkins v. Wabash R. Co., 233 ILL** (over crossing is insufficient. Norfolk & W. R. Co. v. Holmes' Adm'r \[Va.\] 64 SE 46. 37. Louisville & N. R. Co. v. Roth \[Ky.\] 114 SWF 264. Where ordinance requires "all" railroads to erect safety gates, one utilizing gatemam of another company is liable for his negligence. Record v. Penn-sysylania R. Co. \[N. J. Err. & App.\] T2 A 62. 38. Wabash R. Co. v. Perkins, 187 Ill. App. 614. 39. Not an insurer. Kentucky & I. Bridge & R. Co. v. Singheiser \[Ky.\] 115 SWF 192. Negligence held for jury where plaintiff's evidence tended to show that gates were suddenly lowered onto him, while defendants' evidence tended to show that plaintiff approached at such excessive speed that gates could not be lowered in time to stop him. Id. Negligence to fail to provide light or other signal for lowered gates. Record v. Pennsylvania R. Co. \[N. J. Err. & App.\] T2 A 62. Ordinance requiring erected of gates requires a proper operation thereof although silent in respect thereto. Id.

**40.** Evidence that gates were not lowered and no signals or warnings given held to show negligence. Carice v. Delaware, L. & W. R. Co. \[N. J. Err. & App.\] T2 A 89. 41. Where gates were open and there were many engines on various tracks, held for jury whether situation required regular or special watchman. Delaware & H. Co. v. Larnard \[C. C. A.\] 161 F 520. 42. Must give statutory or other necessary signals. Cross v. Illinois Cent. R. Co., 33 Ky. L. R. 421, 110 SWF 290. 53. Louisiana & O. R. Co. v. Ratcliffe \[Ark.\] 115 SWF 396. 44. Where train of 130 or 150 feet length was backing towards crossing where view of persons approaching was obstructed, held not error to instinct that it was duty of company to have some one on near to give warning. Louisville & N. R. Co. v. Veach's Adm'r \[Ky.\] 115 SWF 869. Irrespective of Act May 28, 1907, (Acts 1907, 1018), relative to headlights, company may be guilty of negligence in backing over crossings with no lights except lanterns. Chicago, etc., R. Co. v. Moon \[Ark.\] 114 SWF 228. Giving of signal before train starts to back 12 Cur. Law. RAILROADs SS 1162.

(SS 11G) & _Contributory negligence._\[48\] General rules.\_\[56\] 10 C. L. 1409--One approaching a crossing is bound to know that it is a place of danger,\[49\] and while he may within reasonable limits assume that the company will not be negligent,\[50\] he must exercise such care as an ordinarily prudent person would exercise under the same or similar circumstances,\[61\] notwithstanding the negligence of the railroad,\[52\] and if he fails so to do no recovery can be had,\[53\] in the absence of special statute.\[54\] The care must be commensurate with the dangers incident to the particular crossing,\[55\] and if it is particularly dangerous additional care must be exercised.\[56\] Negligence is usually a question for the jury \[57\] to be determined from all the circumstances.\[58\] One

thorize finding that company left same negligence. Liabraaten v. Minneapolis, there (Louisville & N. R. Co. v. Blackaby, 33 Ky. L. R. 858, 111 SWV 317), and that

Where plaintiff was injured by horse takleminitff's horse was frightened threat (Id.).

mere fact that he knew that there was

47. Butler v. Easton & A. R. Co. \[N. J. 276. Where evidence

saw horse shying, would not make him

tends to show that defendant unnecessarily

left standing for unreasonable length of

to pass, Texas Cent. R. Co. v. Randall

time a new and freshly painted locomotive

and tender within highway, negligence is

engine which had blocked crossing moved

for jury. Id. Negligence in leaving car at

or near crossing which frightened horse

heled for jury. Texas Cent. R. Co. v. Ranchid

on appearance that it would not return,

dall \[Tex. Civ. App.\] 113 SWV 180.

48. Search Note: See notes in 3 L. R. A. (N. S.), 196, 391; 4 Id. 521; 11 Id. 963; 13 Id. 1066; 6 Ann. Cas. 78; 7 Id. 352, 801; 8 Id. 984; 9 Id. 216; 10 Id. 418.

See, also, Ralfroads, Cent. Dig. SS 1020-1083; Dec. Dig. SS 1323-386; 8 A. & E. Enc. L. (2ed.) 427.

49. And he must use care of ordinarily

prudent man. McFeat v. Philadelphia, W. & B. R. Co. \[Del.\] 69 A 744.

50. Nichols v. Chicago, B. & Q. R. Co. \[Colo.\] 98 P 808; Cleveland, etc., R. Co. v. Lynn \[Ind.\] 85 NE 999. Negligence cannot

be predicated on failure to anticipate that

company would run train in excess of speed

limit. Dukeman v. Cleveland, etc., R. Co. 237 III. 104, 86 NE 712. May assume that

company will obey law as to giving statutory signals and keeping fagman. Henry

v. Cleveland, etc., R. Co., 236 IL1. 219, 86 NE 231. Where one sees approaching train

he cannot assume that it is not running at

excessive speed but must use senses to

avoid injury. Clemens v. Chicago, etc., Co., 137 Wis. 387, 119 NWV 102. Assumption

that train is not approaching at unusual

speed is not conclusive of negligence.

Stearns v. Boston & M. R. Co. \[N. H.\] 71

At a 21.

51. Antonian v. Southern Pac. R. Co. \[Col. App.\] 100 P 877; Winn v. Cleveland, etc., R. Co., 239 III. 132, 87 NE 954; Nichols v. Chicago, B. & Q. R. Co. \[Colo.\] 98 P 808; Chicago, etc., R. Co. v. Assman \[Kan.\] 96

P 843. Instruction that care required is

such as ordinarily prudent person "would

exercise" instead of "should exercise" held

not erroneous. Southern R. Co. v. King

\[C. C. A.\] 160 F 332. In instruction that if

plaintiff saw engine awitching back and

forth and "negligently" attempted to cross

he could not recover qualifying word held

proper, for if reasonably prudent man

would not have considered danger Imminent, plaintiff was not negligent. Louisiana & A. R. Co. v. Ratellffe \[Ark.\] 115 SWV 396. More fact that he could have seen

engine which had blocked crossing moved

on, one waiting has a right to cross unless

he exposed himself to a danger, in acting

on appearance that it would not return,

that ordinarily prudent person would not have assumed. Louisiana & A. R. Co. v. Ratellffe \[Ark.\] 115 SWV 396.

Raelffle \[Ark.\] 115 SWV 396.

52. Antonian v. Southern Pac. R. Co. \[Cal. App.\] 100 P 87 1588

have approached in plain sight on level -- cago G. W. R. Co., 139 Ill. App. 555. track. Clemens v. Chicago, etc., R. Co., 187 Wis. 87, 119 NW 102. Where decedent, knowing of dangerous character of -- cressing and partially deaf, went onto crossing in front of train approaching in plain sight without looking until it was almost on to him. Pople v. New York, etc., Co. \[Conn.\] 71 A 1098. Where one knowing of train approaching in dense fog did not pearing that we was an unusually careful stop to ascertain its proximity. Cleveland, etc., R. Co. v. Houghland \[Ind. App.\] 85 NE 868. Drive onto track in front of train approaching in plain view, notwithstanding ringing of automatic crossing bell and warning of friend which he must have heard. Peck v. Grand Trunk W. R. Co. \[Mich.\] 15 Det. Leg. N. 1072, 119 NW 578. Reading book while approaching crossing. Chicago, etc., R. Co. v. Adler, 18 Ill. App. 559. Driving on track with approaching train in plain sight. Chicago, R. Q. R. Co. v. Sack, 136 Ill. App. 425; Chicago, etc., R. Co. v. Zetsche, 136 Ill. App. 623; Illinois Cent. R. Co. v. Scheevers, 134 Ill. App. 514. Driving on track knowing that train is -- if -- disclable to come along at any time. Chicago, J. Patton R. Co. v. Reinhardt, 189 Ill. App. 58. Pedestrian going on track with unob-structed view of approaching locomotive. Chicago, etc., R. Co. v. Hirsch, 132 Ill. App. 655.

Not neglgent as matter of law: In attempting to drive horse by car standing -- givesed limit, crossing being somewhat partly in street, which shed into dit and throw plaintiff out. Missouri, K. & T. R. Co., 132 Ve. 42. Co. v. Davis \[Tex. Civ. App.\] 116 SW 42. In 132, 87 NE 954. In driving onto track Where combination of circumstances pre- vented plaintiff from seeing train until it was too late. McGrath v. Philadelphia & R. R. Co., 166 F 332. Where plaintiff looked before going upon first track but not thereafter before going onto second track, aligning where lanterns on rear were Insuff-though view was somewhat obstructed at first track. Spannknebebel v. New York, etc., R. Co., 127 App. Div. 345, 111 NY 705. Where vibe was obstructed by cars until where old lady, approaching crossing -- where there was sharp curve in track, stopped and looked when about 3 or 4 feet from track but did not look when on track. Giddings v. Chicago, etc., R. Co., 133 Mo. Co. \[N. C\] 62 SE 878. In going onto track in front of train approaching on straight -- cars. Pittsburgh, etc., R. Co., V. Lynch \[Ind. App.\] 87 NE 40. Failure to stop in face of one looking in direction from which train came. Erie R. Co. v. Weinstein \[C. C. A.\] 166 F 271. Going onto track -- the head of train where evidence tended to Co., 135 Wis. 62, 116 NW 249. In driving show that engine was backing without light and gave no signal. Perkins v. Wa-bash R. Co., 238 Ill. 458, 84 NE 677. Where attention of driver was attracted to switch \[Tex. Civ. App.\], 116 SW 877. Crossing in engine nearby and upon discovering ap-proaching engine he attempted to back off. St. Louis & S. F. R. Co. v. Summers \[Tex.\] 114 SW 311. Drive upon track knowing of approaching train. Stearns v. Boston & M. R. Co. \[N. E.\] 71 A 21. For query where twelve-year old boy was killed. Chicago & E. R. Co. v. Fowler, 138 Ill. App. 852. Not negligence per se to use crossing knowing of defects therein. Chicago, B. & Q. R. Co. v. Sample, 138 Ill. App. 95.

For query where plaintiff looked and saw a -- for -- disclable to come along at any time.

riding as the guest of another \[59\] who has no control of the team is not required to exercise the same diligence as the one driving.\[60\] Whether parents of a child were in the exercise of due care for its safety is a question of fact for the jury.\[61\]

lined to cross ahead of train should devote him. White v. New York, etc., R. Co., 200 his whole attention to team or should have watched train. Stearns v. Boston v. M. R. Co. \[N. H.\] 71 A 21. Where evidence was conflicting as to whether view was observed by darkness and storm or by smoke and steam from another train. Kasarda v. Lehtig Valley R. Co. \[Pa.\] 70 A 84. Where plaintiff looked before crossing and train was hidden by curve, especially where she would have crossed in safety had she not stumbled on raised plaink. Hanlon v. Lehtig Valley R. Co., 221 Pa. 490, 70 A 821. Where plaintiff's evidence shows that night was dark and cloudy, that driver stopped 10 or 15 feet from track to look and listen but did not see train, that train had no headlight and gave no signal, all of which defendants' evidence tended to disprove. Groves v. Baltimore & N. Y. R. Co. \[N. J. Law\] 69 A 971. Although witness testified that defend seemed to be reading soap wrapper, there being evidence that decedent was illiterate and that soap sold had no reading matter on it. Dukeman v. Cleveland, etc., R. Co., 237 Ill. 104, 86 NE 712. Whether conductor on street car was negligent in giving signal to motorman to come on after he had passed over tracks and saw no trains or whether he should have stopped and continued to watch. Cleveland, etc., R. Co., 50 Hillsons \[Ind.\] 85 NE 48. Where train was backing at rate of 30 miles per hour on stormy night without headlight and against wind. Gorton v. Harmon, 152 Mich. 473, 15 Det. Leg. N. 250, 116 NW 443. Heidnegligent: In driving onto track ahead of known approaching train, bellev-ing that it was to stop at station between station and crossing. Cable v. Spokane, etc., R. Co., 50 Wash. 619, 97 P 744. Where plaintiff, who was riding with her father, made no effort to have him stop before driving onto crossing ahead of train. Id. In attempting to pass ahead of rapidly moving train after looking in that direction and presumably appreciative of the situation. O'Brien v. New York, etc., R. Co., 129 App. Div. 288, 113 XYS 229. In going onto track ahead of approaching train where plastictiff had unobstructed view while train going 35 miles per hour ran 450 feet. Strong v. Grand Trunk v. R. Co. \[Mich.\] 16 Det. Leg. N. 39, 120 NW 863. In turning from public road and going diagonally upon track and over embankment which caused wagon to the over onto track where decedent was struck by train, evidence showing that it was a bright moon-light night and that decedent was intoxicated. Smith v. Union Pac. R. Co. \[Neb.\] 119 NWY 230. Evidence held to show that decedent saw train and negligently attempt-ed to beat it. Leun v. St. Louis & S. F. R. Co. \[Mo.\] 116 SWY 553. In crossing in front of train approaching in full sight, although on hearing it she believed that it was coming in opposite direction. Chesapeake & O. R. Co. v. Halli's Adm'r \[Va.\] 63 SE 1007. In standing on track within couple of feet of caboose which was kicked back over Acts required of traveler.See 10 C. L. 1412.--The care exacted of one approaching a crossing requires that he should use his faculties of sight and hearing,\[62\] but the failure so to do is not usually negligence per se \[63\] and may be excused by the peculiar circumstances of the case.\[64\] Ordinarily he need not stop unless it is necessary to effectively look and listen.\[65\] A traveler must exercise reasonable care to look and listen at a time and place to make it effective,\[66\] and must continue to look and listen unless upon the track.\[67\] Where a collision occurs with a train approaching in 62. Louisiana & A. R. Co. v. Ratedliffe \[Ark.\] 116 SW SW 296 Vance v. Atchison, etc., 69. While one falling to look where he R. Co. \[Cal. App.\] 98 P 41; Chicago, etc., R has full opportunity to do so cannot re- Co. v. Jones, 135 III. App. 380; Laun v. St. Louis & S. F. R. Co. \[Mo.\] 116 SWV 553: obstructed or other facts exist which com-OfBrien v. New York, etc., Co., 129 App. Div. 288, 113 NY33 29; Cable v. Spokane, etc., R. Co., 50 Vash. 619, 97 P 744. Generally, it is negligence not to look and listen. Litite Rock d. M. R. Co. v. Russell \[Ark.\] 113 SW 1021. \[Heid negIigent: One approaching crossing with unobstructed view of track with and listening. Sarles v. Chicago, etc., R. R. Co. \[Iw3\] II7 NW 966. Bright boy 13 years old, familiar with crossing dangers, in attempting to pass over without looking and in spite of warnings. McGee, V. Wakab, R. Co., 214 Mo. 530, 114 SW 33. In failing to stop and look, where position in rear of wagon prevented a view of track until horses were almost onto track. Missouri, K. & T. R. Co. v. Jenkins \[Kan.\] 98 P 208. NegIigence for jury: NegIigence in failing to look and listen, where defendant violated law as to speed giving of signals, and maintaining of flagman. Henry v. Cleveland, etc., R. Co., 236 IL 211, 86 NE ;231. Negligence in failing to look and listen. Louisville & N. R. Co. v. Josnlin, 33 KY. L. R. 513, 110 SWV 382. Where train came from direction from which train would not ordinarily be expected, negligence in not looking in that direction. Fowler v. Chicago & E. I. R. Co., 234 Ill. 619, 85 NE 298. Deaf person in approaching. after looking, to track and stopping on track as if to the shoe string without again looking, and remaining there while train ran I80 or 296 feet at rate of 6 to 12 miles per hour, negligent as matter of law. Arkansas Cent. R. Co. v. Fain, 85 Ark., 532, 109 SWV 514. Not negligent: Where plaintiff and decedent stopped and looked twice but view was somewhat obstructed. Johnson v. Southern Pac. R. Co. \[Cal.\] 97 P 520. Where only eye witness did not see decedent until he "Ungged" onto track, evidence held to support finding that the stopped, looked and listened in view of presumption of due care. Atchison, etc., R. Co. v. Hayes \[Kan.\] 99 P 131. \[G3. Winn v. Cleveland, etc., R. Co., 239 III. 132, 87 NE 954; Dukeman v. Cleveland, etc., R. Co., 237 III. 114, 86 NE 712. Where opportunity exists, duty to look is absolute. Hain v. Chicago, etc., R. Co., 135 Wis. 303, 116 NW 20; Clemens v. Chicago, etc., R. Co., 137 IVis. 387, 119 NWV 102. \[64. Failure to look and listen is not negligence in all cases. Henry v. Cleveland, etc., R. Co., 236 IL 219, 86 NE 231. Though train could have been seen. Texas & N. N. 139, 110 SWV 2000. \[Kan.\] 98 P 41. \[Kan.\] 98 P 208.

12 Cur. Law. LAILROADS SS 11G3. 1591 plain view, the doctrine of res ipsa loquitur obtains, \[48\] and displaces the presumption of due care. \[69\]

\_Duty where view of track is obstructed.\_See 10 C. L. 1413.--Where the view of the track is obstructed, one approaching must use commensurate care. \[70\]

\_Parallel tracks.\_See 10 C. L. 1413.--Since danger is correspondingly increased by the number of tracks upon which trains may approach, commensurate care must be used where there are several tracks. \[71\]

\_Right to rely on crossing signals, gates, Hagman, etc.\_See 10 C. L. 1413.--While open gates or signals of flagman may constitute an invitation to cross, \[72\] and must be considered in determining contributory negligence, \[73\] they do not relieve a traveler crossing without looking during last 53

ing with automobile at rate of 5 or 6 miles feet, knowing that train was due though per hour and looked and listened, but did attention was diverted by pranching of not stop, though view was blocked. Pendhorse. Smith v. Chicago, etc., R. Co., 137

roy v. Great Northern R. Co. \[N. D.\] 117

W13, 97, 118 NWP 683.

**68.** Doctrine of res ipsa loquitur applies to accident at crossing where facts indicate that had deceased done what he was bound to do it would not have occurred. Clemons

by noise or nearby mill, although it appears v. Chicago, etc., R. Co., 137 Wis. 387, 119

that there were particular spots where view

NWV 102, Where surroundings are such that if plaintiff had looked he would have

bearing that he knew thereof. Chicago, seen train, it will be presumed from occurence of accident, either that the did not

etc., R. Co. v. Assman \[Kan.\] 96 P 843.

currence of accident, either that he did not beed what he saw.

only 49 feet across, traveler exercises due

Wilkinson v. Oregon Short Line R. Co.

\[Utah\] 99 P 466; Antonian v. Southern

onto first track where he has clear view

Pac. R. Co. \[Cal.\]. 100 P 877.

68. Clemons v. Chicago, etc., R. Co., 137

Co., 121 La. 471, 46 S 596.

Wis. 387, 119 NWP 102.

**Not neglierent as matter of law:** In coliding with engine, where box car on fourth

did not look, or saw train and attempted to track obstructed view until plaintiff passed

pass ahead of it. Hain v. Chicago, etc., R. It, his horses becoming unmanageable on

Co., 135 Wis. 303, 116 NWP 20. Where appraching train was visible for 740 feet,

Robison v. New York, etc., R. Co., 128 App.

notwithstanding plaintiff testified that she

lovoked but did not see same. Walsh v.

train obstructing a. crossing before day-

Pennsylvania R. Co. \[Pa.\] 70 A 1088. Tes.

light, in falling to see train on another

timony of plaintiff and companion that they

clocked and saw no train held insufficient to

nals or other warnings and without lighting

raise issue in view of physical fact that

train was in plain sight. Schaub v. Kansas

City S. R. Co., 133 Mo. App. 444, 118 SWV

1168. Evidence that view was unabstructed

0001. May rely on invitation of flagman to

held to show that plaintiff did not look, or,

recognise train, failed to take proper pre-

cauti. Id. Where circumstances are

such that plaintiff must have seen and

heard train had he looked and listened, his

mere negative testimony that he looked

and listened but did not see or hear train

will not sustain verdict. Stetson v. Baltilmore & N. Y. R. Co. \[N. J. Law\] 71 A 113.

Negligent as matter of law where evidence

is conclusive that train was clearly visible

at point where plaintiff testified he stopped

and looked although he says that he did

not see it. Weiss v. Central R. Co. \[N. J. Law\] 68 A 1087.

70. One approaching crossing where view

is obstructed may expect signals to be given. St. Louis S. W. R. Co. v. Shelton \[Tex. City. App.\] 115 SWV 877.

Negligence for jury Driver of six horse

team who stopped and listened where view

was obstructed, in net leaving team and

going forward. Vance v. Atchison, etc., R. Co. \[Cal. App.\] 98 P 41. In not discovering

train approaching crossing, view being obstructed. Texas & P. R. Co. v. Stoker \[Tex. City. App.\] 115 SWV 910. Approached cross-

12 with automobile at rate of 5 or 6 miles

13 with automobile at 1593 RALIROADS SS 11H. 12 Cur. Law.

from the duty to exercise due care for his own safety.14 He must exercise care also to avoid being injured by the lowering of the gates.75

(SS 11) \_H. Injuries to persons on highways or private premises near tracks.76 See 10 C. L. 141--While a railroad is not liable for injuries caused by horses on nearby highways taking right at the ordinary operations of its trains,77 it is liable for negligence,78 especially after discovering the horses' right.79 Likewise, it must exercise reasonable care not to place anything calculated to frighten an ordinarily gentle horse near the highway.80 Contributory negligence defeats recovery.81

(SS 11) \_I. Injuries to animals on or near tracks. How far liability extends.82 See 10 C. L. 141--While it has been held that at common law a railroad owes no duty to a trespassing animal except to refrain from willful injuring it 82 and, hence, need not maintain a lookout,84 its duty arising only upon actual discovery,85 the more common

74. Louisville & N. R. Co. v. Roth \[Ky.\]

steam coeks, etc.. may be considered. Id. 114 SWY 264; Cross v. Illinois Cent. R. Co. \[Ky.\]

Evidence that steam in engine standing $3 Key. I. R. 432, 110 SWY 290; Willoughby

near crossing could be raised to full head $3 or 4 minutes, yet was allowed to blow $4. Do.v. Larnd \[C. C. A.\] 161 F and $10 or 12 minutes before starting time, $20. Existence of gates does not relieve traveler of duty to use due care. Kenthucky & I. Bridge & R. Co. v. Singhelker

for teams on nearby highways, when they $3 Key. I. R. 666, 110 SWY 29. Absence of watch $4. Do.v. Larnd \[Ga.\]

,

held not to justify plaintiff in assuming that he was at his post and that way was clear without exercising due care for own safety. Schaub v. Kansas City Southern R. Co., 138 Mo. App. 444, 118 SWY 116A. Though flagman was negligent, party in- jured cannot recover if he was also negligent. Cross v. Illinois Cent. R. Co., 33 Ky. L. R. 432, 110 SWY 290.

Negligence for jury: In crossing, where $4. Do.v. Larnd \[Ga.\] $3 EE 501.

states were up and plaintiff saw light but thought that engine was standing. Beacu- erliv v. Michigan Cent. R. Co., 152 Mich.

$45, 15 Det. Leg. N. 290, 116 NWY 424. Where $45, 15 Det. Leg. N. 290, 116 NWY 424. Where $45, 15 Det. Leg. N. 290, 116 NWY 424. Where $45, 15 Det. Leg. N. 291, 116 NWY 424. Where $45, 15 Det. Leg. N. 290, 116 NWY 424. Where $45, 15 Det. Leg. N. 291, 116 NWY 424. Where $45, 15 Det. Leg. N. 292, 116 NWY 424. Where $45, 15 Det. Leg. N. 290, 116 NWY 424. Where $45, 15 Det. Leg. N. 291, 116 NWY 424. Where $45, 15 Det. Leg. N. 292, 116 NWY 424. Where $45, 15 Det. Leg. N. 290, 116 NWY 424. Where $45, 15 Det. Leg. N. 291, 116 NWY 424. Where $45, 15 Det. Leg. N. 292, 116 NWY 424. Where $45, 15 Det. Leg. N. 293, 116 NWY 424. Where $45, 15 Det. Leg. N. 294, 116 NWY 424. Where $45, 15 Det. Leg. N. 295, 116 NWY 424. Where $45, 15 Det. Leg. N. 296, 116 NWY 424. Where $45, 15 Det. Leg. N. 297, 116 NWY 424. Where $45, 15 Det. Leg. N. 298, 116 NWY 424. Where $45, 15 Det. Leg. N. 299, 116 NWY 424. Where $45, 15 Det. Leg. N. 290, 116 NWY 424. Where $45, 15 Det. Leg. N. 291, 116 NWY 424. Where $45, 15 Det. Leg. N. 292, 116 NWY 424. Where $45, 15 Det. Leg. N. 293, 116 NWY 424. Where $45, 15 Det.

rule seems to be that it must exercise ordinary care * and is liable for negligence "" proximately causing injury," especially where the animal is at a crossing." An engineer need not check speed because an animal is near the track unless the situation indicates that it may go upon the track." The duty and liability is sometimes regulated by statute," but the mere violation of stock law does not of itself defeat recovery." In some states a notice of the killing must be served upon the company within a specified time."

\_Place of entry on right of way._See 10 C. L. 1417_.--The place of entry * is often material on the question of liability under the fence laws and where the injury occurs at a private * or public crossing."

**Ss.** "Ordinary care" as used in Rev. St. 1895, art. 4528, making company absolutely liable for killing stock unless it has fenced by bond hammerial. St. Louis S. W. R. only for failure to exercise ordinary care, refers to care in operating trains and not to maintenance of fence. Texas Cent. R. Co. v. Pruitt \[Tex. Civ. App.\] 110 SWP 966. Must equity with headlight sufficient to disclose animal at such distance as to enable train to stop. Wallace V. Oregon Short Line R. Co. \[Idahl0\] 100 P 804. Evidence held to show that train was negiliently run into sheep upon track. Smith V. San Pedro, etc., R. Co. \[Utah\] 100 P 673. Where animals are being driven across tracks at crossing, com. than to find for plaintiff it was only necessary to find that company omitted to ring bell, blow whistle or slack or stop train. St. Louis B. & M. R. Co. v. Drodd \[Tex. Civ. App.\] 114 SWP 902. Negilient Evidence that mules ran on track ahead of engine held to warrant finding that if lookout had been kept they would have been discovered in time to avoid injury. Texas Cent. R. Co. v. Estes \[Tex. Civ. App.\] 113 SWP 647. Negilience for jury: In failing to discover cow approaching track and avoiding strlling her. Rio Grande W. R. Co. v. Boyd \[Colo.\] 96 P 781. Where plaintiff's evidence tended to show that horse crossed track, ran along edge of same and mainly turned back onto track and started down same when struck, while defendant's tended to show that she was struck as she first went upon track immediately ahead of engine. Missouri, K. & T. R. Co. v. Shepherd, 20 Okl. 62%, 95 P 243. Where one witness testified that no whistle was sounded and no attempt made to stop until train struck cattle. Texas & P. R. Co. v. Corn \[Tex. Civ. App.\] 110 SWP 485. Where plaintiff's evidence tended to show that track was straight and level and might not foggy, negligence in running into cattle held for jury, though defendant's evidence tended to show contrary. Chesapeake & O. R. Co. v. Grigsby \[Ky.J 115 SWP 237. It being customary to blow alarm whistle to frighten stock from track, it must be presumed that in some cases at least it is effective, hence evidence of failure to whistle after disappearing cattle makes question of negligence for jury. Texas & P. R. Co. v. Corn \[Tex.\] 114 SWP 103. Evidence held insufficient to show negligence in permitting bushes to grow up and obstruct view and in having insufficient headlight, especially where evidence tends to show that horse suddenly came on track. Milham v. Pine Bluff & W. R. Co. \[Ark.\] 110 SWP 595.

Duty to maintain fences.See 10 C. L. 1417--At common law, railroads owed no duty to fence their tracks,97 but, in the exercise of the police power,98 many states now require them to fence their right of way 99 except in cities,1 at depot grounds,2 switch yards,\* public crossings,4 and at places where it would endanger the lives of their employees.5 An absolute liability 6 is frequently imposed for injuries inflicted by trains 7 upon animals entering * at unfenced places 9 where the statute requires a 96. Testimony of engineer, the only eye- witnesses, that horse was killed at crossing is not conclusive. Bacus V. Chicago, B. & Q. R. Co. \[Lova\] 118 NNV 761. Evidence of position of body 100 feet from crossing and surrounding facts held to warrant finding that horse was not killed at crossing though engineer, the only eyewitness, testified that he was struck threat and body carried on pilot. Id. 97. Prior to enactment of Rev. St. 1895, art. 4528, company need not fence, and were only table for negligence in operating train. Texas Cent. R. Co. v. Prutt (Tex. Civ. App.) 113 SVW 964. Evl- 98. New York, etc., R. Co. v. Price \[C. C. A.\] 159 F 380.
90\. Lessee is an "owner" within Civ. Code, $ 485, giving cause of action to adjoining owners for animals killed through failure to fence. Barbee v. Southern Pac. R. Co. \[Cal. App.\] 99 P 541.

1. Rev. St. 1899, $ 1105 (Ann. St. 1906, p. 945), does not require company to fence track where crossed by streets, but it must fence tracks in towns, etc., where not laid off into streets unless it is essential to transaction of business with public that track be unfenced (Bridges v. Missouri, K. & T. R. Co., 132 Mo. App. 576, 112 SWV 37), and "business" referred to is business with public generally, and with itself in connection with stations, but maintenance of passing track merely does not have any connection with station within rule (Id.).
1. To constitute a "depot" within Ann. St. 1806, $ 1105, requiring railroads to fence except at depots, etc., it is not indispensable that there be a depot building or a station agent. Welch v. St. Louis & S. F. R. Co., 131 Mo. App. 464, 109 SWV 1074. Where company maintained switch track in sparsely settled country but had neither depot building nor station agent thereat, but did handle freight for all who tendered same and stopped for passengers on signal, held for jury whether place was "depot" grounds,\* although mill company was practically only one accommodated. Id.
1. Held for jury whether point of crossing of defendants' tracks with another 30 or 40 feet outside village, at which point cow was killed was within switch yards. Bloomfield v. St. Louis & S. F. R. Co., 130 Mo. App. 373, 109 SWV 824.
1. Only liable for negligence in operation of trains at crossings. Worley v. St. Louis & S. F. R. Co. \[Mio. App.\] 115 SWV 1039.
1. Burnham v. Chicago, B. & Q. R. Co. \[Neb.\] 119 NNV 235. Where it appears that to maintain fences about switch yards and sheep pens, located in country, would greatly increase danger to employees' lives, held duty of court to declare that company was under no obligation to maintain same. Id.
1. Where company fails to maintain witnesses as provided by Gen. St. 1906, $ 2871, it is liable for all damage resulting from such failure. Atlantic Coast Line R. Co. v. Peoples \[F1a\]. 47 S 392. Where animal is killed on unfenced portion of road which should be fenced, company is liable under Rev. St. 1895, art. 4528, regardless of negligence. Rio Grande & E. P. R. Co. v. Garcia \[Tex. Civ. App.\] 117 SWV 204.
1. Instruction construed, and held to require killing by "locomotive or cars" to authorize recovery. Texas & G. R. Co. v. Pate \[Tex. Civ. App.\] 113 SWV 994. Evl- 98. New York, etc., R. Co. v. Price \[C. C. A.\] 159 F 380.
1. Lessee is an "owner" within City. Code, $ 485, giving cause of action to adjoining owners for animals killed through failure to fence. Barbee v. Southern Pac. R. Co. \[Cal. App.\] 99 P 541.
1. Rev. St. 1899, $ 1105 (Ann. St. 1906, p. 945), does not require company to fence track where crossed by streets, but it must fence tracks in towns, etc., where not laid off into streets unless it is essential to transaction of business with public that track be unfenced (Bridges v. Missouri, K. & T. R. Co., 132 Mo. App. 576, 112 SWV 37), and "business" referred to is business with public generally, and with itself in connection with stations, but maintenance of passing track merely does not have any connection with station within rule (Id.).
1. To constitute a "depot" within Ann. St. 1806, $ 1105, requiring railroads to fence except at depots fence,10 and it is no defense that the adjoining owner prevented the creation of a fence outside of the right of way.11 While farm crossing gates are a part of the fence,12 the duty devolves upon the adjoining owner, and not upon the railroad, to keep the same closed 13 unless unneecesary gates have been erected.14 These statutes, however, are usually for the benefit of the adjoining owner 15 and not for the benefit of the general public.16 Where a fence has been properly erected, the company must exercise reasonable care to maintain the same in proper condition,17 and must repair or rebuild in such manner as not to interfere with the efficiency of the fence during the progress of the work.18

\_Gates,\_See 10 C. L. 1419--While a railroad must usually exercise reasonable care to maintain gates in proper repair 19 and is liable for injuries proximately resulting from a failure so to do,20 a recovery is frequently denied where the adjoining owner knew of the defect and could have repaired without substantial cost or trouble.21

\_Catile guards.\_See 10 C. L. 1419--While there is no general common-law duty to maintain guards, special situations may render it negligence not to do,22 and it is quite generally required by statute that sufficient guards shall be maintained at fence terminals 28 unless it will materially interfere with the business of the road 24 or will

10. In pleading liability under Burns' St. Louis, etc., R. Co., 132 Mo. App. 612, 112 Ann. St. 1901 (Sp. Acts 1877, p. 61, c. 30, $ 1), not necessary to negative exceptions relieving company from duty to fence. Central Indiana R. Co. v. Smith \[Ind. App.\] $5 NE 26.

01. Blankenship v. St. Louis & S. F. R. Co., Mo. App.\] 115 SW 1027.

01. Gate at farm crossing is part of "fence" within Rev. St. 1885, art. 4528.

01. Texas Cent. R. Co. v. Pruitt \[Tex. Civ. App.\] 110 SW 1966; Texas Cent. R. Co. v. Willis \[Tex. Civ. App.\] 116 SW 145.

01. Central Indiana R. Co. v. Smith \[Ind. App.\] $5 NE 26. Not bound to keep guard to see that private gate is closed. Texas & P. R. Co. v. Corn \[Tex.\] 114 SWV 103.

01. Under Laws 29th Leg. 1905, p. 226, c. 117, making company liable only for negidently killing stock where it has fenced track in stock law district, where company puts in unnecessary gates it must keep same closed. Texas & P. R. Co., v. Webb \[Tex.\] 114 SWV 1171.

01. Civ. Code, $ 485, making railroad H- able for killing domestic animals belonging to landowners through or "along" whose land the road runs, is inapplicable where land is separated from right of way by public road. Barbee v. Southern Pac. R. Co. \[Cal. App.\] $9 P 541.

01. Civ. Code, $ 485, requiring railroads to fence right of way, and giving cause of action to adjoining owners for animals killed because of lack thereof, unless company has paid owner agreed price for making and maintaining such fence, held for benefit of adjoining owners, and not for benefit of public. Barbee v. Southern Pac. R. Co. \[Cal. App.\] $9 P 541.

01. International & G. N. R. Co. v. Dixon \[Tex. Civ. App.\] 108 SW 978.

01. Toledo, etc., R. Co. v. Varner, 137 LL. App. 563.

01. Evidence held to show negligence in maintaining defective gate. Texas & P. R. Co. v. Webb \[Tex. Civ. App.\] 114 SWV 1170.

Evidence as to insufficiency of gate and of defendants attempts to repair held to authorize judgment for plaintiff. Smith v. \[Tex. Civ. App.\] 118 SW 1171.

19. Evidence as to insufficiency of gate and of defendants attempts to repair held to authorize judgment for plaintiff. Smith v. \[Tex. Civ. App.\] 119 SW 1172.

01. Evidence held to show negligence in maintaining defective gate. Texas & P. R. Co. v. Webb \[Tex. Civ. App.\] 114 SWV 1170.

01. Evidence as to insufficiency of gate and of defendants attempts to repair held to authorize judgment for plaintiff. Smith v. \[Tex. Civ. App.\] 118 SW 1173.

01. Evidence held to show negligence in maintaining defective gate. Texas & P. R. Co. v. Webb \[Tex. Civ. App.\] 114 SWV 1170.

01. Evidence as to insufficiency of gate and of defendants attempts to repair held to authorize judgment for plaintiff. Smith v. \[Tex. Civ. App.\] 119 SW 1174.

01. Evidence held to show negligence in maintaining defective gate. Texas & P. R. Co. v. Webb \[Tex. Civ. App.\] 114 SWV 1170.

01. Evidence as to insufficiency of gate and of defendants attempts to repair held to authorize judgment for plaintiff. Smith v. \[Tex. Civ. App.\] 119 SW 1175.

01. Evidence held to show negligence in maintaining defective gate. Texas & P. R. Co. v. Webb \[Tex. Civ. App.

endanger the lives of employees,28 and, if not so maintained, the company is sometimes made absolutely liable for resulting injury 20 or liable in double damages.27

\_Contributory negligence of owners.\_84e 10 C. L. 1419--No recovery lies where the owner's negligence 28 proximately contributes to the injury,29 but the running at large 29 in violation of stock law does not ordinarily preclude a recovery.31

(SS 11) \_J. Fires.\_32--Soe 10 C. L. 1420--While in a few states a railroad is absolutely liable for fire escaping from its locomotives,33 it is generally only required to exercise reasonable care to prevent fires being communicated to adjoining property,34 and is liable for all injuries proximately resulting from its negligence.35 While an independent way. St. Louis, B. & M. R. Co., 133 Mo. App. 9, 112

v. Kansas City S. R. Co., 133 Mo. App. 9, 112

SVW 933.

25. Whether maintenance of guards would be dangerous to employees must be determined form all the circumstances, which is a question for jury unless reason-able minds could not differ upon undisputed facts. Edle V. Kansas City S. R. Co., 133 Mo. App. 9, 112 SVW 993.

01. Liability under Rev. St. 1899, , 1105 (Ann. St. Louis & S. P. R. Co., 1000, p. 45), is absolute. Adams v. St. Louis & S. P. R. Co. \[Mo. App.\]. 116

SVW 1119. Railroad Law, Laws 1892, p. 1390, c. 676, , 82, requiring railroads to fence track and to maintain sufficient cattle guards and providing that "so long as such fences" are not provided, etc., company shall be liable, re-ancentcent of Laws 1854, c. 288, , 8, except that cattle guards are omitted from second provision, held not to change liability as to cattle straying over defective guards. Bateman v. Rutland R. Co., 128 App. Div. 511, 110 NYS 506. Under Code, 2055, providing that railroad falling to maintain sufficient guards shall be liable for stock killed by reason thored, and, "to recover, it shall only be necessary to prove the loss or injury" to the property, plain-tiff must prove insufficiency of guard as well as injury to make primae face case. O'Mara v. Newton & N. W. R. Co. \[Iowa\] 118 NYW 377. Fact that right of action for injury arises out of violation of statute requiring maintenance of guards and fences does not necessarily make cause of action statutory, but violation of statutory duty may give rise to common-law action. Shell v. Missouri Pac. R. Co., 132 Mo. App. 528, 112 SVW 39.

27. Under Rev. St. 1899, , 1105 (Ann. St. Louis & S. P. R. Co., 1000, p. 45), railroad is liable for double damages where animal strays from cross- ing onto private track beyond through lack of guards. Worley v. St. Louis & S. P. R. Co. \[Mo. App.\]. 118 SVW 1039.

01. Where horse was turned into lane which led across private crossing to horse pasture, owner returning to house and not seeing where horse was on hearing whistle of approaching train, negligence held for jury. St. Louis, B. & M. R. Co., V. Drody

01. Negligence of owner in leaving cow out on highway, where engineer saw her in time to avoid injury but did not slacken dent, intervening cause relieves the company from liability,"4 where it negligently permits inflammable oils "7 to escape and its presence proximately causes the spread of a fire, it is immaterial who ignited the same."8 Likewise, where a railroad company "9 negligently "0 moves a burning ear to a point near another's property and sets the same on fire, it is immaterial whether the owner protested or not,"11 and it is liable unless the loss was inevitable."42 The company must exercise reasonable care to keep its right of way free from combustible material,"43 and where it fails so to do and fire starts because thereof, it is immaterial that due care was used in other respects,"44 and that plaintiff's adjoining property was in the same condition."45 Liaibility in particular instances,"48 and the duties of roads passing through forests,"47 and lands subject to fires,"48 are sometimes prescribed by statute."49 Unless a railroad

65 FIa, 514, 46 S 732. Evidence held to Line R. Co. v. Davis \[Ga. App.\] 62 SE 1022. show that presence of oil in ground which Evidence that defendant cut grass and per-had been negligently allowed to escape was mitigated it to life after drying held to show proximate cause of spread of fire. Texas & N. O. R. Co. v. Bellar \[Tex. Civ. App.\] 112 Co., 61 MIsc. 195, 114 NYS 94Z. Proof that SWP 323. Where fire escaped from engine right of way was overgrown with dry grass and other combustible material, that fire property, negligence in permitting fire to started in grass and spread to plaintiff's cascade from locomotive was proximate cause of plaintiff's loss. St. Louis S. W. K. Co. v. Wibansk R. Co. v. Wibansk \[Tex. Civ. App.\] 113 SWP 318. Death of one endeavoring to save property from fire held proximate result of negilent starting of fire. Illinois Cent. R. Co. v. Slier, 133 III. App. 2.

86. Ordinary wind carrying fire is not an independent, intervening cause. Benedict Pineapple Co. v. Atlantic Coast Line R. Co. v. Wibansk 65 FIa, 514, 46 S 732. Where cover over plants is negligently burned, destruction of plants by ordinary and usual frosts is not such an act of God as to relieve company. Id. Where conditions were not materially changed by flood except that additional oil was carried onto land, such flood did not relieve defendant. Texas & N. O. R. Co. v. Bellar \[Tex. Civ. App.\] 112 SWP 323.

01. Evidence that fuel oil on ground had on several occasions caught fire held to warrant finding that it was inflammable. Texas & N. O. R. Co. v. Bellar \[Tex. Civ. App.\] 112 SWP 323.

01. Texas & N. O. R. Co. v. Bellar \[Tex. Civ. App.\] 112 SWP 323.

01. Question held for jury whether crew was acting for defendant railroad company or for lumber company in moving burning ear to a point near another's property. Valentine v. Minneapolis, etc., R. Co. \[Mich.\] 15 Det. Leg. N. 915, 118 NYW 970.

01. Evidence held to show negligence in moving burning ear to point near plaintiff's property. Valentine v. Minneapolis, etc., R Co. \[Mich.\] 15 Det. Leg. N. 915, 118 NYW 970. Though plaintiff's chance of saving property was small, company has no right to deprive him thereof by pulling burning ear near meter unless necessary to save own. Id.

01. Valentine v. Minneapolis, etc., R. Co. \[Mich.\] 15 Det. Leg. N. 915, 118 NYW 970.

01. Company has burden of showing that property was docome! anyway. Valentine v. Minneapolis, etc., R. Co. \[Mich.\] 15 Det. Leg. N. 915, 118 NYS 94Z. Proof that leg. N. 915, 118 NYW 970. Evidence held for jury whether loss was inevitable, regardless of company's acts. Id.

01. Owes reasonable care. Atlantic Coast sets the fire, its employees are under no obligation to assist in extinguishing the same.\[60\] Contributory negligence of the injured person bars recovery.\[61\]

\_Duty as to equipment and operation of engines.\_See 10 C. L. 1481.--A railroad must exercise reasonable care in equipping its locomotives with proper appliances for the prevention of fire,\[52\] but is liable only for negligence.\[53\] It is usually sufficient, however, if the engines are equipped with the most approved practical appliances in general use.\[54\] Must operate with such care as is consistent with the lawful, reasonable and effective conduct of its business.\[68\]

\_Contractual exemptions from liability.\_See 10 C. L. 1482.--Exemption may ordinarily be imposed as a condition upon the right to place property within the right of way,\[60\] but where such building is a warehouse, the exemption is not binding on third persons placings goods therein without knowledge thereof.\[57\] Where the exemption is drawn by the company, it will be construed most strictly against it,\[58\] and in no case will it be extended beyond the property\[60\] or the losses\[60\] manifestly covered

egin{tabular}{l|l} fires to show that land was subject to fires. & which was in general use, Instruction that Hisgins v. Long Island R. Co., 129 App. Div. 415, 114 NYS 262. & it was incumbent on company to show that it had on its engine the best known and approved appliances held not erroneous as 1900, p. 65, c. 20, art. 13), as amended, and \\ Laws 1900, p. 62, c. 20, p. 822, construed, and \\ held that provision requiring grass, etc., \\ where railroad runs through forest, etc., to \\ be cut twice a year, applies to countries \\ having forests, whether it is a forest reserve or not, but provisions relating to \\ employment of trackmen, devices to prevent escape of fires, etc., only apply to latter counties. People v. Long Island R. Co., 194 N. T. 130, 87 NE 78. & 50. Gulf, etc., R. Co. v. Meentzen Bros. & of way to indentity company against losses to third persons by fire. Morgan v. Missouri, K. & T. R. Co. \[Tex. Civ. App.\] 110 SWV 978. 51. Attempt to save property from fire not contributory negligence barring recovery for personal injuries. Illinois Cent. R. Co. v. Sller, 183 Ill. App. 2. & 52. Sims v. American Ice Co. \[Md.\] 71 A 522. Where jury examined spark arrester and heard testimony as to unusual size of sparks emitted, negligence held for jury although defendant's evidence showed due care. Southern R. Co. v. Darwin \[Ala.\] 47 S 314. & 53. Instruction held to properly charge nonliability if engine was properly equipped, managed, etc. Atlantic Coast Line R. Co. v. Williams \[Ga. App.\] 68 SE 67L Jury need not accept as conclusive statement of tranmen as to care in equipment and operation, but may consider all surrounding facts. St. Louis S. W. R. Co. v. Trotter \[Ark.\] 118 SWV 227. Instruction that proof of proper equipment did not relieve defendant of presumption of negligence, unless it is also shown that engine was operated with reasonable care so as to prevent the escape of sparks, held not to impose absolute duty to prevent escape of sparks. Id. Where defendant submitted evidence that engine was equipped with first class standard spark arrester, was operated in usual manner, and did not emit more sparks than was necessary, while plaintiff offered evidence of two other fires started by the engine and that engine was "Puffing and blowing" more than usual negligence held for jury. Wheeler v. Albany & N. R. Co., 4 G. App. 439, 61 SE 839. 84. Where company showed that engine was equipped with a screen spark arrester \\ \\end{tabular}

egin{tabular}{l|l} & which was in general use, Instruction that Hisgins v. Long Island R. Co., 129 App. Div. 415, 114 NYS 262. & it was incumbent on company to show that it had on its engine the best known and approved appliances held not erroneous as requiring railroad to prove that engine was equipped with appliances which were better than those in more general use. Helverson v. Chicago, etc., & Co. \[Iowa\] 118 NYS 699. \\ & 55. Southern R. Co., v. Darwin \[Ala.\] 47 S 314. & \\ & 56. Loading platform. Southern R. Co. v. \\ & 57. Blunt, 165 F 258. Corporation formed to \\ & erect and maintain compress held to have no power to agree in lease of part of right of way to indentity company against losses to third persons by fire. Morgan v. Missouri, K. & T. R. Co. \[Tex. Civ. App.\] 110 SWV 978. \\ & 58. Morgan v. Missouri, K. & T. R. Co. \[Tex. Civ. App.\] 110 SWV 978. \\ & 59. Wherse lese of part of right of way \\ & agreed to "assume all the risks" of fire to any building, improvements, etc., held that \\ & assumption only related to property of \\ & 18.5ee and did not amount to contract of \\ & indemnity as to property of third persons. \\ & Morgan v. Missouri, K. & T. R. Co. \[Tex. Civ. App.

by it. While negligence of the owner " proximately contributing to the injury " generally defeats recovery, unless the railroad after learning thereof " can by reasonable care prevent loss, in Florida it affects only the amount of recovery." Ordinarily an adjoining owner may use his property as he sees fit," and negligence can be predicated only on a failure to use due care after the fire starts," he owing no duty to remove combustible material " or to keep guard."

\_Pleading.\_See 10 C. L. 1423--While the complaint must allege negligence " and show that it was the proximate cause of the injury complained of," it need not specify with particularity the facts which were the immediate cause of the fire's escape." A general description of the injured premises is sufficient."

\_Evidence, burden of proof, and presumptions.\_See 10 C. L. 1423--Plaintiff has the burden of proving that the fire was started by defendant " and that defendant was

engaged in work connected therewith, such

for burning of canvas (Benedict Pineapple) every destroyed by sparks emitted from locomotive on main track net engaged in work connected with spur track (Thomson v. Kansas City S. R. Co., 122 La. 955, 48 $ 432), and, where it alleged that

for occurred in January, it is not necessary

and, where fire is set by locomotive on main track, company has burden of showing that

pated a frost to allow recovery for free-

it was being used in connection with spur

traek (Id.).

70. Allegation that injury to growing

01. Evidence that owner hurried to fire

and found corner of barn burning but

as result of negligent burning of covering

wholly falling to show what he did held

used to protect them sufficiently connects

insufficient to show due care. Pittsburgh,

n injury with the negligence. Benedict Pine

etc, R. Co. v. German Ins. Co. (Id. App.).

87 NE 995. Owners may cover plants with

canvas, and mere fact that it is within reach

of sparks does not prevent recovery for

(Tex. City. App.). 113 SW 318. Complaint

fire negligently started. Benedict Pineapple

Co. v. Atlantic Coast Line R. Co., 65 Fla.

maintenance of smokestack without speci-

514, 46 S 732.

62. Where undisputed evidence shows that

Davis (Ga. App.). 62 SE 1022. Pleading

plaintiff's agent placed cotton on platform

sharging such negligent operation as to

so close to track as to be in great danger,

cause large and unusual sparks and coals

held not error to submit question of negligence

gence without question as to proximate

cause. Birge-Forbes Co. v. St. Louis S.

Spark arrester held not subject to motion

F. R. Co. (Tex. City. App.) 115 SW 338.

In-
struction that if plaintiff failed to use care

of ordinarily prudent person, and because

of such failure he was guilty of negligence

contributing to the burning, held to swim-

ciently charge on proximate cause. Morgan

v. Missouri, K. & T. R. Co. \[Tex. Civ. App.\]

110 SW 978.

63. Instruction on discovered peril held

erroneous as not requiring actual know-

edge of perilous position of cotton. Morgan

v. Missouri, K. & T. R. Co. \[Tex. Civ. App.\]

110 SW 978.

64. Benedict Pineapple Co. v. Atlantic

Coast Line R. Co., 63 Fla. 514, 46 S 732.

65. Subject always to risk of fire from

proper operation of road, and hence, where

be permits combustible material to be near

track, the risk is increased. Southern R.

Co. v. Darwin \[Ala.\] 47 S 314.

66, 67, Southern R. Co. v. Darwin \[Ala.\] 47 S 314.

68. Southern R. Co. v. Darwin \[Ala.\] 47 S 314.

01. Southern R. Co. v. Darwin \[Ala.\] 47 S 314. Plea alleging proximity of property

to tracks and negligence in failing to keep

watchman held insufficient on demurrer.

Id.

e9. Compilaint alleging that defendant

company "so carelessly and negligently

managed and operated" one of its engines

as to set fire to canvas covering pinery and

burn same held sufficient to allow recovery

release from liability does not cover propo-

for burning of canvas (Benedict Pineapple

Co. v. Atlantic Coast Line R. Co., 55 Fla.

motive on main track net engaged in work

514, 46 S 732), and, where it alleged that

free occurred in January, it is not necessary

to allege that it was during winter season

or that "defendant" ought to have antici-

trad, company has burden of showing that

it was being used in connection with spur

ing of plants (Id.).

70. Allegation that injury to growing

and found corner of barn burning but

as result of negligent burning of covering

wholly falling to show what he did held

used to protect them sufficiently connects

insufficient to show due care. Pittsburgh,

n injury with the negligence. Benedict Pine

etc, R. Co. v. German Ins. Co. (Id. App.).

87 NE 995. Owners may cover plants with

canvas, negligent,74 but proof that the fire was started by defendant's engine though established by circumstantial evidence 76 raises a presumption of negligence 76 which defendant is bound to meet with evidence of due care in the equipment and operation of its engine,71 although it need not show such care by a preponderance of the evidence.78 That defendant started the fire may be shown by circumstantial evidence.78

\_Admissibility of evidence.\_See 10 C. L. 1424--The general rules relating to hearing-say,80 res gestae,81 materiality and relevancy,81a opinion,82 documentary evidence,88

started fire: Evidence that fire started in dry

75. Osborn v. Oregon R. & Nav. Co. grass near track shortly after train passed. Staples v. Boston & M. R. Co., 74 N. H. 499.

69 A 890. Evidence that fire was discovered shortly after engine emitting sparks passed and that wind blew from track towards building burned. Byers v. Bali-more & O. R. Co. \[Pa.\] 72 A 245. Evidence that defendants' locomotives habitually emitted sparks, that train passed shortly before discovery of fire. Higgins v. Long Island R. Co., 129 App. Div. 415, 114 NYS 262. Evidence that fire originated about time local train passed that spark arrester was defective, that it was emitting sparks in unusual quantities, that it was running in excess of scheduled speed. Phillips v. Southern R. Co. \[Va.\] 63 SE 998. Evidence that train passed at speed of 40 miles per hour, going up grade and emitting sparks, and that fire was shortly thereafter dis-covered in nearby cotton seed house. Hutto v. Seaboard Air Line R. Co., 81 S. C. 567, 62 SE 835. Where building sufficiently near track to be set on fire by sparks from locomotive is destroyed by fire occurring shortly after engine emitting sparks passed. Thomasonv, Kansas City Southern R. Co., 122 La. 955, 48 S 432. Evidence that barn near tracks was discovered on fire shortly after train emitting sparks passed. St. Louis S. W. R. Co. v. Trotter \[Ark.\] 116 SWV 227. Evidence that fire was discovered shortly after engine passed held insuffleent in view of fact that engine was equipped with oil burner, etc., to show that fire was set by engine. Gulf, etc., R. Co. v. Meentren Bros. \[Tex. Civ. App.\] 113 SWV 1000. Evidence that bridge was burned shortly after engine passed over same, that witnesses saw live coals falling through bridge, held to make question for jury whether company set fire, notwithstanding negative testimony of trainmen. Police Jury v. Texas & P. R. Co., 122 La. 88, 47 S 692. Whether fire was started by locomotive, there being evidence that one passed shortly before fire was discovered, and there was no other explanation. Muse v. Gulf & S. I. R. Co. \[Miss.\] 48 S 897. Testimony of witnesses that they heard train in vicinity about two hours before fire held to authorize finding that train passed there notwithstanding train sheets to contrary. Staples v. Boston & M. R. Co., 74 N. H. 499.

69 A 890.

74. Where defendant has overcome presumption arising from fire by showing due care in equipping and operating engine, burden of showing negligence rests on plaintiff. Osborn v. Oregon R. & Nav. Co. \[Idaho\] 98 P 627. Setting of three fires by same engine within three quarters of a mile held to authorize inference of negligence. Lillard v. Chicago, etc., R. Co. \[Kan.\] 98 P 213.

01. Osborn v. Oregon R. & Nav. Co. \[Idaho\] 98 P 627.

01. Atlantic Coast Line R. Co. v. Davis \[Ga. App.\] 62 SE 1022; Osborn v. Oregon R. & Nav. Co. \[Idaho\] 98 P 627; Lillard v. Chicago, etc., R. Co. \[Kan.\] 98 P 213; Chen-oweth v. Southern Pac. R. Co. \[Or.\] 99 P 86; Hutto v. Seaboard Air Line R. Co., 81 S. C. 567, 62 SE 835; Gulf, etc., R. Co. v. Meentren Bros. \[Tex. Civ. App.\] 113 SWV 1000; St. Louis S. W. R. Co. v. Alexander \[Elecles & Co. \[Tex. Civ. App.\] 115 SWV 648.

01. Evidence that engine scattered sparks without proof of unusual quantity or unusual size is insufficient to show negilil-sence. Chenoweth v. Southern Pac. R. Co. \[Or.\] 99 P 86. Evidence of emission of sparks held to authorize submission of neg-ligence to jury although defendant's direct evidence tended to show due care. Id. Charge that, if sparks escaped from locomotive and set fire to grass on right of way which fire was communicated to plaintiff's property, prima facie case was made, held proper. St. Louis S. W. R. Co. v. Elecles \[Tex. Civ. App.\] 115 SWV 648.

01. Southern R. Co. v. Darwin \[Ala.\] 47 S 314; Phillips v. Southern R. Co. \[Va.\] 63 S 98; St. Louis S. W. R. Co. v. McLeod \[Tex. Civ. App.\] 115 SWV 85. Prima facie case made by proof of setting of fire al- 12 Cur. Law. RAILROADS SS 11J. 1601

cross-examination,"4 and expert testimony,"5 etc., apply, as do the rules of cross-examination."6

Sha. Admissible: Where it is claimed that

hows that it was no better than the fire was started by trains which passed on

others, evidence of fires set by others. On-particular morning, defendant may identify

burn v. Oregon R. & Nav. Co. \[Idaho\] 98

engines which passed and show that they

P 627.

were properly equipped. Hiltcher Wall

Emission of sparks by same engine: Evi-Paper Co. v. Pennsylvania R. Co., 158 F

dence that engine had emitted sparks

1011. Evidence of apparent repair of spark

shortly before fire in question which had

arrester shortly after fire. Byers v. Bal-

started fires held admissible. Sims v.

tmore & O. R. Co. \[Pa.\] 73 A 245. Where

American Ice Co. \[Mid.\] 71 A 522. Evidence

complaint charged negligence in using

that engine threw out large quantities of

coal instead of fuel oil, he was entitled to

sparks held admissible to show that it was

introduce evidence to show greater danger.

not provided with spark arrester or that

Morgan v. Missouri K. T. R. Co. \[Tex. Civ.\].

appliance was defective. Southern R. Co. App.\] 110 SWW 978. Evidence of infam-

v. Darwin \[Ala.\] 47 S 314.

mable grass and brush along way and

Emission of sparks by other engines:

length of time it is remained. Higgins v.

Where it is not certain which of several

Long Island R. Co., 129 App. Div. 415, 114

NYES 262. Where there is evidence that

graffs are sometimes emitted without neg-

ligence, jury may consider conditions of

gins v. Long Island R. Co., 129 App. Div.

plaintiff premises on issue of cause of fire

415, 114 NYES 262. Where locomotive set-

as bearing on possibility that it was caused

ling fire is identified, evidence is properly

by spark emitted without fault. Hiltcher

limited to construction, condition and

Wall Paper Co. v. Pennsylvania R. Co., 158

earain v. Missouri K. & T. R. Co. \[Tex. Civ. App.\] 110 SWW 978. Evidence that engines

on plaintiff lands with that growing upon

on another road and through another section

other people's lands as opening up too large

a field of collateral inquiry. Chicago, etc.,

v. American Ice Co. \[Mid.\] 71 A 522.

R. Co. v. Manson, 71 Kan. 858, 94 F 118.

82. Testimony of engineer that he oper-

Custom Evidence of custom 10 years

prior to time in question is inadmissible to

discredit testimony that it was custom to

and competent engineer, inadmissible.

let engines drift past place of fire with

steam shut off. Chenoweth v. Southern

Pac. R. Co. \[Or.\] 99 F 88. Practice of

other compress companies in handling of

cotton, how constructed as bearing on

conformulatory negligence, held inadmissible.

through he was unable to say that he had

Morgan v. Missouri K. & T. R. Co. \[Tex. Civ. App.\] 110 SWW 978. Evidence that engineers

smeets sometimes punch holes in spark ar

restrators to make engine steam better is

admissible in absence of showing that such

practice prevailed on defendant road

(Hiltcher Wall Paper Co. v. Pennsylvania R. Co., 158

R. Co., 158 F 1011), and witness who has

only been on two engines of defendant

company for short time is incompetent to

testify as to practice (If.).

Evidence of other fires: Admissible

edence of another fire set out at same time

as showing that fire was caused by locomotive. Missouri, K. & T. R. Co. \[Pa.\] 72 A

per \[Tex. Civ. App.\] 110 SWW 549. Where

defendant offers evidence to show that engine

ing is properly equipped with spark ar

ersers, evidence of other fires set by en-

gine within 10 days is admissible on rebut

tal. St. Louis S. W. R. Co. \[Tex. Civ. App.\] 115 SWW 648. Proof of fires in vl-

clity set by other engines about time of

fire in question strengthens presumption of

neglience in equipping and operating

smeets generally. Chenoweth v. Southern

Pac. R. Co. \[Or.\] 99 P 86. Where engine

setting fire is not fully identified and

fendant introduced evidence that all of

the engines were properly equipped, etc., it is

proper to permit evidence of other fires in

vicinity during fall. Missouri, K. & T. R. Co. \[Pa.\] 71 A 522. Evidence

Co. v. Dawson Brom. \[Tex. Civ. App.\] 109 SWW 1110. Although engine setting fire is

identified, where defendants own evidence

Pennsylvan R. Co., 158 F 1011.

12 Curr. L--10L
_Instructions._ See 10 C. L. 1425.--Instructions must be considered as a whole " and must not be misleading " or on the weight of the evidence," but requested instructions covered by those given may be refused."

_Damages._"--Where the property destroyed is a part of the reality, the measure of damages is the difference in the value of the land before and after the fire."

(SS 11) _K. Actions for injuries._ 13 Cur. Law. RAILROADS SS 11K. 1603

permit a recovery for simple negligence," wanton or willful negligence must be specifically pleaded." Where the averred facts unqualifiedly show a statutory liability they are not rendered insufficient by particular facts alleged to show a common-law liability." The complaint must allege injury 1 and show that it proximately resulted from the negligence complained of." Where a license is relied upon, it must be pleaded." Plaintiff need not aver the giving of notice of the time, place, etc., of the injury," nor need he negative contributory negligence unless the facts averred impute negligence," in which case he must allege facts excusing his apparent negligence " or authorizing recovery notwithstanding such negligence." Where the complaint avers that plaintiff was a "trespasser or a licensee," a compulsory amendment is proper." The answer must plead contributory negligence," and a general denial is insufficient although complaint alleges due care."

_Burden of proof_," See 10 C. L. 148.--Plaintiff has the burden of proving all the essential elements of his cause of action," including defendant's negligence," but in

SVW SS21. While particular duty violated must be alleged, it is not necessary to give in de- tall the particular acts omitted or method of of injury under 11, 1929, $ 1130, is de- taken. Norfolk & W. R. Co. v. Holmes Adm'r \[Cv.1\] 64 SE 46. Complaint merely showing that decedent was killed while on track en- tain, obstructed view, and that plaintiff was whether he was at street crossing, at place where he had license to be, or at some other place, held insufficient, Lynch V. Great North- cern R. Co. \[Mont\] 100 F 616. 97. Everett v. St. Louis & S. F. R. Co., 214

for the sake of this paper. 54. 112 SWW 486. 98. Complaint averring that "the engineer saw, or by reasonable diligence could have aeen, plaintiff in time to stop said train before it ran over plaintiff," etc., held to charge effuple negligence, as distinguished from wanton negligence. Hobby v. Manistree Mill \[Cv. \[Ala. 14\] 85 89. 99. Texas & G. R. Co. v. Pate \[Tex. Clv. App.\] 113 SWW 994. 114. Complaint averring that defendants serrants, by loud and terrifying noises innece- asary to operation of engine, intentionally frightened plaintiff's horse " to such an extent that it died of fright," is not denurnra- bble on ground "that only claim made in said complaint is for alleged fright, innecompanlied by any bodily injury, and therefore states no cause of action." Louisville & N. R. Co. v. Melton \[Ala. 14\] 47 S 1024. 2. Complaint charging that defendant neg- ligently ran one of its locomotures against vehicles in which deceased was riding, that defendant negligently failed to blow whistle, negligently ran at high rate of speed, etc., held to sufficiently allege proximate cause, Cleveland, etc., R. Co. v.roughland \[Tnd. App.\] 85 NE 369. Complaint alleging that horse became frightened at handcar in high-way as to that wheel struck car, causing it make unusual noise, which further frightened horse and caused it to throw plaintiff out, held to anifferently show that fright of these in front of engine, held to sufficiently handle "the engineer's horse and consequent injury was dus to defendants' act in highway. Lon- willfe & N. R. Co. v. Vansant \[Ala.\] 48 S 389.

1604 RAILROADS SS 11K.

many states a presumption 18 of negligence in all the respects alleged 14 arises from proof of injury by a train,18 especially where defendant is also shown to have violated a statutory duty.16 Where defendant owns the road and the rolling stock, it will be presumed that it was operating the particular train causing the injury.17 While the plaintiff has the burden of showing freedom from contributory negligence in a few states,18 a presumption of due care exists in most of the states 19 which casts the burden onto the defendant,20 who must also show that it contributed proximately to the injury.21 Wherever the burden lies, the evidence of the other party may be to authorize finding that he was struck by 1985, making killing by train prima facte train, and because of failure to give signals. evidence of negligence, being identical with Barbee v. Southern Pac. R. Co. \[Cal. App.\] 99 Code 1902, 1808, except that it is extended P 541. General verdict for plaintiff is not overcome by special findings not showing curred prior to passage thereof, where dece- that the rate of speed and that warning might have been given in time to have ena- another road. Combs v. Moblle & O. R. Co. blq plaintiff to avoid injury, since it will not be inferred as against general verdict that sufficient to establish negligence. Starke v. conditions were such that signals could have been heard. Cleveland, etc., R. Co. v. Lynn \[Ind.\] 85 NE 998. Burden is on plaintiff to opt further whoed and hair were found on circumstantial evidence is sufficient. Nelson v. St. Louis & S. F. R. Co. \[Mo. App.\] 118 SV 111S. Evidence that there were hog tracks on track, blood on ties, and appearance that something had rolled down embankment, and hog track from base of embankment to spot where hog was found dead, with body badly cut and brushed, held to sustain finding that it was killed by train. Td. Plaintiff, relying on discovered perfl, has burden of showing that perfl was discovered in time to avoid injury. Caldwell v. Houston & T. C. R. Co. \[Tex. Civ. App.\] 11 SV 488.

12. Notwithstanding Stock Act, $ 5, creating a presumption of negligence from killing, plaintiff has burden of showing negligence. Rio Grande Western R. Co. v. Boyd \[Colo.\] 96 P 781. Burden rests on plaintiff to show that statutory signal was not given. Turner v. St. Louis & T. R. Co. \[Mo. App.\] 11 AV 1026; McGee v. Wabash R. Co., 214 Mo. 530, 114 SW 33. Evidence held to show that lumber company sued and railroad company healing its lumber, which was at fault, were distinct corporations. Stephens v. Louisiana Long Leaf Lumber Co., 122 Kan. 647, 47 S 887.

01. Gen. st. $ 3148, making company liable for injury to persons from running of train unless company makes it affirmatively apparant that their agents used due care, creates a presumption against company, but it does not outweigh proofs. Jones v. Jacksonville Elec. Co. \[Fia.\] 47 S 1. Evidence that horse suddenly ran onto track immediately in front of engine, from behind box cara, held to overcome presumption of negligence arising from killing. St. Lonis S. W. R. Co. v. O'Hare \[Ark.\] 115 SW 942. Presumption of negligence arising from killing of stock, aided by physical facts, held to make question for jury, notwithstanding evidence of defendant of due care. O'Kelly v. Yazoo & M. V. R. Co. \[Miss.\] 47 S 60.

01. Ellenberg v. Southern R. Co. \[Ga. App.\] 63 SE 240. Fact that plaintiff's own evidence shows that defendant was not negligent in one of the alleged respects does not authorize nonsmult. Id.

01. Killing of cattle. Chesapeake & O. R. Co. v. Grigsby \[Key.\] 115 SW 237. Code 1908, 12 Cur. Law. RAILROADS $ 11K.

Outlined.22 While negative evidence may be sufficient to establish an issue in some cases,23 the testimony of one who was not looking that he did not notice a headlight has but little probative force.24

Footnote 23: The author is grateful to the anonymous referee for his comments.

Evidence.See 10 C. L. 1430.

There must be no material variance between the allegations and the proof,25 and plaintiff must recover upon the particular negligence averred.26 Likewise, where defendant avers specific acts of contributory negligence, he is confined thereto.27 The general rules as to admissibility of evidence apply.28 Positive evidence is of greater value than negative as to the giving of signals.29

Footnote 23: The author is grateful to the anonymous referee for his comments.

22. McGee v. Wabash R. Co., 214 Mc. 530,

Schedule of train, as bearing on speed. Illinois Cent. R. Co. v.\_France's Adm'x \[Ky.\]

114 SW 33.

112 SW 92. Evidence that other stock had held sufficient to sustain verdict. Louisville

passed over cattle guard in question, as & N. R. Co. v. Brown \[Key.\]. 113 SW 465.

Vhether positive testimony as to signals is

& N. W. R. Co. \[Towall 118 NW 377. Where stronger than negative depends upon all circumstances, as person's opportunity to hear, whether his attention was directed toward

C., 153 Mich. 108, 15 Det. Leg. N, 374, 116 C. A.\] 164 F 785.

24. Strickland v. Atlantic Coast Line R. Co.

(N. C.) 68 SE 161.

25. Variance between allegation of negligence in keeping lookout and proof of insufficient headlight. Chicago, etc., R. Co. v. Latham \[Tex. Civ. App.\] 115 SW 890.

Daint alleging that defendant approached

crossing at dangerous speed, without signals,

held not supported by evidence of killing at

place not a crossing by train going 7 or 8

miles per hour. Motz v. Central of Georgia

R. Co. \[Ga.\] 64 SE 79.

26. Where negligence alleged is maintenance of ditch, recovery cannot be had an absence of lights. St. Louis & S. F. R. Co. v.

Elrod \[Kan\] 98 P 215. Where reetal of fact

shows that plaintiff relies upon failure to

give statutory signal required by Civ. Cedo

1895, $ 222, previding for signals at public

crossings, court properly instructed that recovery could not be had if road was not a

public one. McCey v. Central of Georgia R. Co. \[Ga.\] 62 SE 297. Where issues were negligence

presence of engineer in discovering child, negligence in stopping train, and negligence of

mother, evidence that if whistle had been

blown mother could have getting child off

track held inadmissible. Galveston, H. & N. R. Co. v. Olds \[Tex. Civ. App.\] 112 SW 787.

Combiant construed, and held that negligent

speed, knowing that sheep were on track,

was gist of action, and not violation of speed

ordinance. Smith v. San Pedro, etc., R. Co.

\[Utah\] 100 F 673. Where negligence alleged

is sudden stopping of engine, causing violent

jerk, recovery cannot be had on proof of negligence in running or switching train. Thinkle

v. St. Louis & S. F. R. Co., 212 Mo. 445, 110 SW

1086.

0001. Where, in action for injuries received

by jumping from trestle to avoid apparent

collision, defendant pleaded agefic acts or

commission as contributory negligence, re-

equested instruction on negligence in not taking

in another route or going under bridge

properly refused where not one of them.

Texas Midland R. Co. v. Byrd \[Tex. Civ. App.\] 110 SW 199.

28. Questions: Did you hear the whistle

blow; did you hear the bell ring; and did you

see a headlight, held not lending. Baltimore

& O. R. Co. v. State, 107 MM. 642, 69 A 489.

Relevancy and materiality admissible

Shedule of train, as bearing on speed. Illinois Cent. R. Co. v. France's Adm'x \[Ky.\]

commission as contributory negligence, re-

quested instruction on negligence in not taking

passed over cattle guard in question, as

being on its sufficiency. O'Mara v. Newton

by whether positive testimony as to signals is

& N. W. R. Co. \[Towall\] 118 NW 377. Where

stronger than negative depends upon all circumstances, as person's opportunity to hear,

evidence is admissible to show change since

whether his attention was directed toward

academic. Woodworth v. Detroit United R.

same, etc. Chicago, etc., R. Co. v. Stepp \[C. C. A.\] 164 F 785.

Nov 549, Evidence that large numbers of sheep

24. Strickland v. Atlantic Coast Line R. Co.

wer, as bearing upon duty required of train-

(N. C.) 68 SE 161.

25. Variance between allegation passing between cars blocking eromsing, evtl-dence that plaintiff and another had passed between cars during the morning as bearing on contrIbutory negligence. Chicago, etc., K. Co. v. Johnson \[Tex. Civ. App.\] 111 SWV 158. Where negligence charged was failure to give signals, plaintiff may show number and character of crossings, etc. Missouri, K. & T. R. Co. v. Malone \[Tex. Civ. App.\] 110 SWV 938. Evidence as to position of engine when backing onto track, as explaining why plaintiff did not see same when he looked. Nichol's v. Chicago, B. & Q. R. Co, \[Co.\] 98 P 808. In action for death of conductor on street car, killed by collision at crossing, contract between companies relieving railroad of duty to give warnings, etc., as bearing on negligence in not doing so. Co. V. Delaware & Hudson Co., 128 App. Div. 388, 112 NY 448.

- Evidence of travel, as imposing higher duty, though party killed was trepasser. Ander-son v. Great Northern R. Co, \[Ldaho\] 99 P 81. Where plaintiff contends that train could have been stopped between time warning whistle was sounded and child was struck, evidence as to distance between two places by one whose attention was attracted by whistle and who noted position of engine. Harrison V. Southern R. Co, \[Miss.\] 45 S 408. Evidence of witnesses and photographs as to use of track as a pathway by public and as to defendants' knowledge thereof, as bearing upon question whether one using same was trepasser or a licensee, although there is evidence that plaintiff had left track to pick berries, which would render him a trepasser. Milsouri, K. & T. R. Co. v. Williams \[Tex. Civ. App.\] 109 SWV 1126. Evidence of general use of water car and manner of drawing water therefrom, as bearing on obligation of defendant to use due care. Louisiana & T. Lumber Co. v. Brown \[Tex. Civ. App.\] 109 SWV 950. Where defendant's evidence shows uniform speed, witness may testify as to speed when passing him to proxy speed at place of accident. King v. Wabash R. Co., 211 Mo. I, 109 SWV 671. Evidence that plaintiff thought that defendant intended that he should use private crossing to reach car that he was unloading, on issue of implied invitation to use same. Cowman v. F. Worth & D. C. R. Co. \[Tex. Civ. App.\] 109 SWV 403. Evidence of frequency of travel on track at point of accident, to fix knowledge of conditions on servants of defendant. Southern R. Co. v. For-rIstr \[Ala.\] 48 S 69.
- Inadmissible: Evidence of amount of travel at other points to show license to be at place of injury. Louisville & N. R. Co. v. Berry, 33 E. K. R. 850, 111 SWV 370. Evidence of interlocking systems at other grade crossings and effect thereof, where it appears that they were impracticable at point of collision because of switching. Cox v. Delaware & H. K. Co., 128 App. Div. 363, 112 NY 443. Where defect in engine is not reliled upon as negligence contributing to collision, evidence thereof is handmissible. Gorman v. New York, etc., R. Co., 194 N. T. 488, 87 NE 682. Evidence of intoxication on other days, to show condition at time of injury. Started v. Chesapeake & O. R. Co., 83 KY. L. R. 309, 110 SWV 282. Evidence as to number of coaches in daily train of same number and schedule as that which struck intestate, upon question of number on the occasion, other evidence being attainable. Southern R. Co. v. Gullatt \[Ala.\] 48 S 472. Where driver of police patrol was injured at place which was not a public crossing, evidence that he had never been told that he did not have a right to use same, or that other streets were blocked, held hand-missable to show right to use. Reinhardt v. Chicago Junction R. Co., 235 III. 576, 85 NE 605. Where petition pleaded violation of speed ordinance, but did not rely thereon as cause of the accident, ordinance is handmissable. Turner v. St. Louis & H. R. Co. \[Mo. App.\] 114 SWV 1026. Evidence that those on handcar were told by foreman to make quick trip is handmissible, as showing excessive speed. Louisville & N. R. Co. v. Berry, 33 Ky. L. R. 850, 111 SWV 370. Where competency of engineer was not in issue, evidence bearing thereon held properly refused. Galveston, H. K. & N. R. Co. v. Olds \[Tex. Civ. App.\] 112 SWV 178.
- Evidence of travel, as imposing higher duty, by engineer, on coming back to body of school or school or school, a couple of minutes after accident. Anderson v. Great Northern R. Co. \[Ldaho\] 99 P 91. Statement of operator of lever car made to plaintiff as he was recovering consciousness. Donglass v. Southern R. Co. \[S. C.\] 62 SE 15. Statements made by plaintiff to first person to reach him held res gestate, although 10 or 12 minutes had elapsed, he hav-ing been suffering great pain in meantime. Missouri, K. & T. R. Co. v. Williams \[Tex. Civ. App.\] 109 SWV 1126.
- Conclusion of Witness. Admissible: State-present of witness as to how far from crossing cow approaching same could be seen. Rio Grande Western R. Co. v 12 Cur. Law. RAILROADS $ 11K.

_Instructions._ See 10 C. L. 1483.--The instructions should clearly state the law applicable 30 and fairly place the issues before the jury, 31 specially submitting particu lar ones where necessary to a clear understanding,\[32\] but should not submit issues not supported by the pleadings \[33\] and the evidence.\[34\] They should be considered as a

cattle guard and fence connecting therewith

handle them removed, use of term "wing fence" in handling train. St. Louis S. W. R. Co. v. in describing fence in instructions held not a misstatement of issues. Bacus v. Chicago, B. & Q. R. Co. \[Iowa\] 118 NW 751. Where there is

listently ran engine against plaintiff held to was no issue as to engineer seeing plaintiff

authorize instruction on discovered peril, in time to stop, but only question was as to

Texas & P. R. Co. v. Crawford \[Tex. Civ. App.\] 117 SWV 319. Allegation that train ap-denly stepped thereon ahead of engine, and

or bell until within 50 feet of crossing held to charge on theory that he was walking between rails. St. Louis S. W. R. Co. v.

give signals 80 rods from crossing. St. Louis

rill \[Tex. Civ. App.\] 111 SWV 1092. Where there was some evidence that plaintiff was

if plaintiff at time of accident was lying on track or asleep, instruction denying recovery

track "and" asleep, instead of in disjunctive,

held responsive to defendant's pleading.

held favorable to defendant Missouri, K. & T. R. Co. v. Malone \[Tex. Civ. App.\] 110 SWV 558.

758. Instructions held to properly submit issues as to license of public to use road as

whistle were in response to signals of con-pathway, plaintiff stumbling as he was leav-

tion track and rendered unconscious, and

warrant instruction that if flagman knew, or whether he was rendered a tresspared by

by the exercise of ordinary care ought to leaving track to pick berries, etc. Missouri,

have known, that blasts were not in response

K. & T. R. Co. v. Williams \[Tex. Civ. App.\]

to his signals, he was not justified in dis-
109 SWV 1126. Where there is no evidence

continuing flagging. Walton v. Miller's

that accident occurred in switchdays, held

Adm'r \[Va.\] 63 SE 458. Where there is

not error to charge that if defendant failed

dence tending to show that deceased sud-

to give statutory crossing signals it was liable, though such statute did not apply to op-

train after safely passing over, Instruction

erations in switchdays. Alabama Great

thero should be given, notwithstanding

Southern R. Co. v. Hardy \[Ga.\] 62 SE 71, In-

other evidence tends to show that he was

struction reciting conditions at crossings

on crossing all the time. Mate v. Missouri

showing unusual dangers, and requiring

Pac. R. Co. \[Mo.\] 117 SWV 584. Evidence that

company to use commensurate care, held not

person on track was in plain sight held to

open to objection of leaving jury to impose

warrant instruction on discovered peril.

fanclifruitrentrentrentrent. Norfolk & W. R. Co. \[Iowa\]

v. Munsel's Adm'r \[Va.\] 64 SE 50.

118 NWV 387. Instruction on acts under

52. Where negligence relied on was failure

emergency held warranted where it appeared

to look in direction from which train would

that bicycle rider, through negligence of

not ordinarily be expected, held error to re-

company, had no notice of approaching train

fuse instruction specifically relating there,

until he was almost on track. Antonian v.

though court gave general instructions as to

Southern Pac. Co. \[Cal. App.\] 100 P 877.

duty. Fowler v. Chicago & E. I. R. Co. 234

Instruction of extra precaution due to dan-

III. 619, 85 NE 298. Where liability is based

gerous character of crossing, evidence show-

solely upon Willful and wanton negligence,

ing that view was cut off, etc. Norfolk & W.

such issue should be presented unconfused

with other issues. Central of Georgia R. Co.

Evidence as to defective latch in gate, and

v. Moore \[Ga. App.\] 63 SE 642. Duties of

of discovery of cattle in time to avoid injury,

traveler and of company at crossing should

be separately charged. Louisiana & A. R. Co.

fect in fence and discovered peril. Texas &

v. Ratcliffe \[Ark.\] 115 SWV 396. In action for

fugly to child catching onto passing car,

though it was undisputed that if plaintiff

question whether he was of sufficient capacity to appreciate danger should be so

cause of injury, instruction that if he was

mitted as to admit of separate considera-

confirmed to injury, to find for defendant,

negligence. St. Louis S. W. R. Co. v. Davis \[Tex. Civ. App.\] 110 SWV 393.

33. Not supported; Instruction submitting

gross or willful negligence. Atchison, etc.,

R. Co. v. Baker \[OKL\] 95 P 433. Where, in

action for injuries to treapsaging child,

hilty was predicated upon child's incapacity

to appreciate danger, charge on concurrent

negligence is Improper. St. Louis S. W. R. Co. v.

Co. v. Davis \[Tex. Civ. App.\]

## 12 Cur. Law.

RAILROADS & 11K.

whole \[85\] and should be consistent \[88\] and not misleading, \[97\] or argumentative. \[89\]

struction on contributory negligence by in-

approach held not erroneous as ignoring construction on discovered peril where there

trubutory negligence where it was fully cov-

was no evidence to sustain It. Louisville &

red by another instruction. Illinois Cent.

N. R. Co. v. Veach's Adm'r \[Ky.\] 112 SW 859.

Inattention in action for death of employ

Instruction as to degree of care held not er-

through negligent manipulation of signals

roneous when all instructions are considered.

by signalman of another road, on decedent's

Anderson v. Great Northern R. Co. \[Idahol\]

assumption of risk If he had observed manin-

99 p 91. Statement in charge that if mem-

ulation for 18 months. Cleveland, etc., R. Co.

v. Gossett \[Ind.\] 87 NE 723. Where it is un-

dignuted that plaintiff was not aware of en-

pened held not reversible error, where court

gine approaching on slide track near which

he was walking and that freman saw him

walling there, instruction that, if plaintiff

unnecessarily moved from safe place to place

Delaware & H. Co. v. Larnard \[C. C. A.\] 161

of danger and engineer did not see him, com-

F 520. Instruction that it was defendant's

pamy was not liable, held properly refused.

D Texas & P. R. Co. v. Crawford \[Tex. Civ. App.\] 117 SW 13. Where undspated evidenc

dence showed that decedent came onto track

without expressly charging that violation of

too close to train to permit stopping thereof,

duty was negligence. Huber v. Texas & P.

Instruction on "discovered peril." Illinois

R. Co. \[Tex. Civ. App.\] 113 SW 984. Where

Cent. R. Co. v. France's Adm'r \[Ky.\] 112 SW

825: Louisville & N. R. Co. v. Oana's Adm'r,

nails and that that was full measure of duty,

83 Ky. L. R. 462, 110 SW 830: Louisville & N. R.

R. Co. v. JoshIn, 33 Ky. L. R. 513, 110 SW

382. Where undspated evidence shows that

detected jumped from freight train at cross-

v. Lynch \[Ind. App.\] 87 NE 40.

ing and onto main track immediately in front

of rapidly approaching passenger train,

in addition by passenger train,

in service approaching train and instruction that,

not stopping held unsupported. Huddleston

v. St. Louis, etc., R. Co. \[Ark.\] 115 SW 381.

There evidence shows that crossing was or-

dinary country crossing, held error to in-

sruct on duty to exercise extra precaution

R. Co. v. Lynn \[Ind.\] 85 NE 999. Instruction

if crossing was unusually dangerous. Louis-

ville & N. R. Co. v. Onan's Adm'r, 38 Ky. L.

L.
considered and held not in conflict with in-

R. 462, 110 SWV 380. Action of train under

arputation of brakes is not such matter of

knowledge as to authorize submission of

question of whether train could have been

stopped after discovery of danger without

evidence upon issue. Steams v. Boston &

M. R. Co. \[N. H.\] 71 A 21. Held improper to

submit issue whether it appeared that plain-

plaintiff on proof of defendant's negligence

tiff would see or hear train in time to avoid

injury where own evidence showed that he

of care by plaintiff. Chicago, etc., R. Co. v. was walking in place of safety until he

GGIN, 132 III. App. 310. Instruction implying

stepped onto track just ahead of engine.

Little Rock & M. R. Co. v. Russell \[Ark.\] 113

ring bell at crossing, erroneous. Chicago,

SWV 1021. Where plagdings and evidence

Peoria & St. Louis R. Co. v. Zetache, 135 III.

r raised issue as to killing of one of five cattle

Apr. 622, Instruction literally requiring

sued for, held error to charge that, if plain-

iff was entitled to recover at all, he could

resource for five. Chesapeake & A. R. Co. v.

Louie & S. F. R. Co. \[M. App.\] 117 SW 593.

Grissby \[Ky.\] 115 SW 237. Where evidence

Mishendes: Instructions on duty of com-

showed that smoke had cleared away before

pany where people frequently use tracks, as

decedent started to cross tracks, Instruction

on duty to wait until smoke clear away

held properly refused. Puelon v. Long Ia-

Pleno & St. Louis R. Co. v. Zetache, 135 III.

land R. Co., 125 App. Dtv. 629, 109 NYES 1076.

Where plaintiff was not misled as to direction in which engine was going because light structions should not be upon the weight of the evidence," argumentative," invade the province of the jury," or assume disputed facts," nor give undue prominence to particular evidence \[43\] or issues." While issues must not be ignored," requested instructions substantially covered by others given may be refused."

tending to limit to certain kinds of evidence, fault was of a negative character and was Pittsburgh, etc., R. Co. v. O'Connor \[Ind.\] 85 of itself caused by primary wrong. Douglas NE 869. Instruction that, if defendant was v. Southern R. Co. \[S. C.\] 62 SE 15. willfully negligent, recovery could be had despite plaintiff's negligence, as leading jury gone held argumentative. Illinois Cent. R. to believe that willful omission to give cross- Ing signals was sufficient. Southern R. Co. \[S.\] 39. On weight: Instruction permitting recovery upon finding that defendant omitted v. Grinzle \[Ga.\] 62 SE 177.

Not misleading: Instruction on reasonable care, when construed with other instructions, held not to mislead Jurons to allow recovery led off steam to search horse from track. St. on negligence not pleaded. Smith v. San Lough, B. & M. R. Co. v. Droddy \[Tex. Clv. Pedro, etc., R. Co. \[Utah\] 100 P 673. In- Arp.\] 114 SW 902.

struction requiring defendant to prove control. Not on weight: Instruction on "wudden tributory negligence by greater weight" "of all the evidence in the case," instead of on \[S.\] 62 SE 15. Instruction that company must the issue. Douglas v. Southern R. Co. \[S.\] 62 SE 15. Instruction that clearly wrote public commonly resort that defendant was negligent, but also find that plaintiff was negligent to find for defendant, as authorizing verdict for defendant only in event both were negligent.

Texas & P. R. Co. v. Crawford \[Tex. Clv. App.\] 117 SW 198. Instruction of "discovered perll," as leading jury to understand that plaintiff could recover for negligence in maintaining lookout, notwithstanding confidence v. Olids \[Tex. Clv. App.\] 112 SW 787.

Where plaintiff's evidence added nothing to defendants instruction that burden rested on defendant to prove contributory negligence, as causing jury to ignore effect of plaintiff's evidence. El Paao Elec. R. Co. v. Ryan \[Tex. Clv. App.\] 114 SW 906. Instruction on negligence. Ilgence in failing to discover child held not to authorize recovery by parents, notwithstanding their negligence. Galveston, H. & N. R. Co. v. Olids \[Tex. Clv. App.\] 112 SW 787.

Instructions on "last clear chance" doctrine. Zelenka v. Union Stockyards Co. \[The.\] 118 NW 103. Instruction on right of engineer to assume that right of way of train would be respected held not, when considered with following statement, to exues him from duty of using every means at hand to avoid injury after discovering perll. Parham v. Ft. Worth & D. C. R. Co. \[Tex. Civ. App.\] 113 SW 154. Instruction that defendant has burden of showing contributory negligence by preponderance of whole evidence, unless shown by plaintiff's evidence. Louisiana & A. R. Co. v. Ratcliffe \[Ark.\] 115 SW 386.

Where only issue is whether plaintiff stepped from place of safety to place of danger too close to train to enable trainmen to stop, instructions on duty where public use tracks held not misleading. Boulden v. Louisville & N. R. Co. \[S.\] 112 SW 986. Instruction that defendant was not liable for injury caused by horse taking fright at statutory signal unless trainmen knew, as reasonable men, that by so doing injury would neces-earily and proximately result, as leading jury to understand that they should have seen horse on nearby highway. Cheoctav, O. & G. R. Co. v. Coker \[Ark.\] 116 SW 216. Instruction that culpable negligence of plaintiff will defeat recovery, but that nature of primary wrong has much to do with the judgment whether or not the contributing
Double damages and attorney's fees See 10 C. L. 1488 are allowed in some statutory actions 47 and where defendant is grossly or willfully negligent.48

SS 12. Railroad corporations.49 See 10 C. L. 1488.-In New York a certificate of public convenience and necessity must be procured,50 which is issuable only upon the filing of an affidavit 51 showing that ten per cent of the minimum capital stock has

mitted that he did not use more force than

engine stopped before reaching crossing.

was necessary. Hubbard v. Louisville, etc.,

Illinois Cent. R. Co. v. Armstrong \[Miss.\]

R. Co., 32 Xy. L. R. 1337, 108 SW 331.

44. Instruction cracking care commensur-

ing punitive damages where, through reck-

ate with extra dangerous character of cross-

less inattention of gateman, gates are left

ing held not objectionable as singiling out

up while train is approaching from direc

one charge of negligence. Norfolk & W. R.

toh where view is obstructed. Louisville

Co. v. Munseil's Adm'r \[Va.\] 64 SE 50.

v. N. R. Co. v. Roth \[Ky.\] 114 SW 264.

45. Instruction on contributory negligence

01. Search Note See Corporations, Cent.

held to ignore discovered peril. Chicago,

Dig. $ 2603-2627, Railroads Cent. Dig.

etc., R. Co. v. Johnson \[Tex. Civ. App.\] 111 $ 26-71; Dec. Dig. $ 13-83; 23 A. & E. Enc.

SWV 758. Instruction directing verdfic for

L. (2ed.) 677; 29 Id. 139.

defendant if company exercised done care

50. Where road was of public necessity to

after discovering child held properly refused

territory along part of way but would not

as ignoring negligence in not sooner discov-

be a paying proposition unless given cer-

ering child. Galveston, H. & N. R. Co. v.

train terminal connections, fact that it par-

Olds \[Tex. Civ. App.\] 112 SWV 787. Instrucu-

alleled another road in making the termination submitting issue of express invitation to

nal connection 1s no ground for refusal of

use private crossing and closing, "But if you

certificate. People v. Railroad Com'rts, 126

do not so find and believe from the evidence,

App. Div. 492, 110 NYS 862. Advantage of

your verdict should be for defendant," held

competition to coal shippers held to a-

erroneous as ignoring implied invitation.

thorize issanance of certificate, especially

Cowans v. F. Worth & D. C. R. Co. (Tex. Civ.

where existing road could not promptly

App.) 109 SWV 403. Instruction to find for

handle all coal offered. Id. Held not pol-

plaintiff unless jury find for defendant un-

der instructions to be given, one of which

portation under state and interstate com-

was contributory negligence, instruction is

missions to do away entirely with compe-

not objectionable as ignoring contributory

tition and to compel existing roads to in-

negligence. St. Louis & S. F. R. Co. v. Shm-

crease facilities. Id. Certificate of public

mers \[Tex. Civ. App.\] 11 SWV 211. Where

measarily held wrongfully issued to locate

company claims that warning was given in

route along river front where there was no

particular way, court may properly instruct

present need therefore and it would great-

that, if signals were not so given, defendant

by interfere with proposed marine improve-

was negligent. Brown v. Long Island R. Co.,

129 App. Div. 649, 113 NYS 109.

139. Copyed: Instruction as to bearing of

001. Covered: Instruction as to bearing of

147.55555. 12. Evidence of conditions and need

invocation on contributory negligence. El

of road to effect exchange of business be-

Paso Elec. R. Co. v. Ryan \[Tex. Civ. App.\]

tween different routes held to warrant

114 SWV 96. Instruction on burden of proof.

Ft. Worth & R. C. R. Co. v. Eddleman \[Tex.

Civ. App.\] 114 SWV 425. Instruction predicated

R. Co., 131 App. Div. 503, 115 NYS 485.

on assumed risk held covered by instruction

where certificate of convenience was

that if plaintiff attempted to draw water

send in 1903 but in 1996 only little prog-

from end of car at time and place dangerous

to her and she knew the fact, or it was open

application was pending to revoke char-

and obvious, she assumed the risk. Louisf-

ana & T. Lumber Co. v. Brown \[Tex. Civ. App.\]

commissioners in ignoring its claim to

App.) 109 SWV 950. Instruction that one ap-

proaching crossing should look and listen at

to work distance as to avoid injury, etc., held

to cover requested instruction that he should

look so near crossing as to 1613 RAILROADS SS 12. 12 Cur. Law.

been subscribed. \[52\] While the commission has power to issue a certificate as to a part of the route where a public necessity is only shown therefore, it must issue certificate as to whole route where found to be of public convenience. \[53\] The determination of the commission is subject to review by the supreme court, \[54\] and where new conditions have arisen \[58\] the matter may be remanded for a reheating. \[56\] In many states the road must be completed within a certain time under pain of forefeiture, \[57\] but time during which it was in the hands of a receiver should be deducted. \[58\] While the repeal of the General Railroad Law of New York did not affect the corporate existence of companies organized thereunder, \[59\] a company may become extinct through a sale of all of its property. \[60\] The powers of a railroad corporation and its officers depends upon the constitution \[61\] and general statutes of the state in which it is incorporated, \[62\] and the terms of its charter. \[63\] A change in capital stock can usually

ing filing of curative afflavit where no afflavit was attached to certificate of Incorporated. \[B. & E. R. Co. v. Motil \[Conn.\] 71 A 563. portion showing that required amount of capital stock had been paid in, etc., held N. Y. 72, 85 NE 1014. designed to place persons who had organ- \[59\]. Repeal of general railroad law by led company in food faith in as good position as if afflavit had been filed. Id. \[B. & E. R. Co. v. Motil \[Conn.\] 71 A 563. But corporation becomes a new one in effect and must procure certificate of pub- \[11\] the convenience and necessity, as required by Railroad Law of 1882, p. 2083, c. 39, 85, though such certificate was not necessary when first organization was made. Id. \[B. & E. R. Co.\] 71 A 563. \[B.

12 Cur. Law. RAILROADS SS 13. 1613

be effected only by amendment of charter.${}^{ ext{#4}}$ Before a foreign railroad corporation can operate in some states, it must file a copy of its charter with the secretary of state and comply with certain conditions.${}^{ ext{#5}}$

SS 13. _Actions by and against railroad companies.${}^{ ext{#6}}$ See 10 C. L. 1489_The jurisdiction of inferior courts,${}^{ ext{#7}}$ the venue of actions,${}^{ ext{#8}}$ and the manner of serving process,${}^{ ext{#9}}$ is largely controlled by statute._

proviations of the act, the stocks or bonds of other corporations, is an affirmative statement of doctrine of ultra vires and determines when company may purchase such stock. Attorney General v. New York, etc., R. Co., 198 Mass. 413, 84 NE 737. Under express provisions of General Corporation Act. $51 (P. L. 1896, p. 294), corporation organized under general railroad law may acquire bonds and controlling interest in stock of corporation organized under street railway law. State v. Atlantic City & S. R. Co. \[N. J. Law\] 69 A 468. Though company acquiring right of vavy and station grounds under act of congress (Act. Feb. 18, 1888, c. 13, 25 Stat. 35) could not acquire other real estate from Choctaw Nation, R. Co. \[M. App.\] 116 SWV 111L. Action power held given by subsequent statutes. Choctaw, O. & G. R. Co. v. Bond \[C. C. A.\] 109 F 403. \[G. Company, incorporated under P. L. 1903, p. 645, for purpose of constructing a line of railway with definite terminal, held without power to hold and own stock of street railroad extending beyond terminal (State v. Atlantic City & S. R. Co. IN. J. Err. & App.) 72 A 111), and exercise of pow- or of control and running of its cars over street car line and making of ostensible (J.) agreement for continuance of such operation constitutes usurtion of franchise (Id.). 64 State v. Railroad Commission, 137 Wis. 80, 117 N NVV 846. Such change under St. 1898, $ 1826, though not called an amendment, is one in fact. Id. St. 1889, $ 1774, relating to amendment of articles of incorporation, does not apply to railroads. Id. 65. Where it is alleged that defendant was operating in New Mexico Territory, it will be presumed that it complied with Laws N. M. 1903, p. 51, c. 33, requiring railroads operating in territory to file copy of charter with secretary, give its principal place of business and designate one for receiving service of process etc. Denver & R. G. R. Co. v. Wagner \[C. C. A.\] 167 F 75. 66. Search Note: See Railroads, Cent. Dig. $$ 45-61; Dec. Dig. $$ 20-29; 17 A. & E. Enc. P. & P. $18, 522. 67. In action before Missouri justice of the peace for mule killed in another state, jurisdiction of justice being prescribed by statute, lawws of state governing where killing occurred are properly excluded from evidence. Both v. St. Louis & S. F. R. Co. \[M. App.\] 116 SWV 111. 68. Must be used in county where it has primed/offee if charter/ under laws of state. White v. Atlanta B. & A. R. Co. \[G. App.\] 63 SE 234. Word "reside" as used in Acts 27th Leg. (Laws 1901, p. 31, c. 27), authorizing bringing of suit in county where injury occurred or where plaintiff reside, means to make abode for considerable time and imports a habitation of some

## 14 Offenses relating to railroads

1 \_Soe 10 C. L. 1488--Where a company habitually runs over a crossing at an unsafe speed,\_11 \_fails to discharge its duty to keep a bridge in a safe condition,\_12 \_or willfully_13 \_blocks_14 \_a crossing for an unreasonable time,\_15 _it may be indicted as for a public nuisance_16_. The violation of a speed ordinance is frequently made a misdemeanor.\_17 \_An indictment for criminal negligence resulting in a collision must show that defendant was in control of the train and knew that the other train was due or coming.\_18 \_The West Virginia statue making it an offense to jump off cars, engines, etc., has no application to any employee.\_18

### 1.1 Nature and Elements, 1615.

A. In General, 1615.

B. Female Under Age of Consent, 1615.

C. Attempts and Assaults With Intent to Commit Rape; and Forcible Detention, 1616.

B. Indictment and Proscention, 1616.

### 1.2 _Indictment and Proscention, 1616._

### 1.3 _The scope of this topic is_ noted below.\_19

1.3 _not preudicial as withdrawing question of_ _Idegr._ _Let._ \_Let.

13 Cur. Law. RAPE SS 1B. 1615 SS 1. _Nature and elements. A. In general._"Sao 10 C. L. 1440--Rape at common law is the carnal knowledge of a female, forcibly and against her consent." Actual penetration "s" by means of force," actual or constructive," sufficient to overcome the will of the female," and nonconsent by the female," are essential elements. Pre-terminiting the question of consent, any unlawful force is sufficient," but from the standpoint of resistence required by the female, there must be sufficient force to overcome her utmost resistance." Some statutes designate grades of the offense, depending upon whether the force was actual " or constructive." A "man" within the meaning of the statutes denocuncing the offense is any male person who has arrived at puberty," and all male persons of the age of fourteen years or more are prima facie capable of committing rape." Neither force " nor actual presence at the time and place of the offense " are essential to the crime of aiding and abetting, and, in jurisdictions which have abolished the destinction between principal and accessory, the accessory is guilty as a principal." Action may be barred by limitations," and, where there is uncertainty as to whether the period has run, time becomes an essential."

(SS 1) _B. Female under age of consent._"Sao 10 C. L. 1441--It is universally provided by statute that unlawful earnal knowledge of a female under a specified age shall be rape regardless of her consent." Neither force," intent " nor knowledge of the age of prosecutri are essential to statutory rape; " nor is time, providing it is within the prohibited age," and it is immaterial that the female is the wife of another." A female attains the age of consent on the day preceding the anniversary of birth."

Proscenton, 12 C. L. 1, and Witnesses, 10 {rape by "man," held to include youth under C. L. 2079} also civil actions for damages (See. Assault and Battery, 11 C. L. 285). A 30. SL. Search Note: See notes in 26 L. R. A. 93. Payne v. Com., 33 Ky. L. R. 229, 110 203, 208, 479; 11 Ann. Cas. 93, 1063. See, also, Rape, Cent. Dig. SS 1-13, 20-22; 94. One who acts as "lookout" is guilty. Dec. Dig. 11-14, 17-19; 23 A. & E. Enc. L. (2ed.) 847. 82. Payne v. Com., 33 Ky. L. R. 229, 110 110 1110. 83. Banton v. State, 53 Tex. Cr. App. 251. 109 SVV 159. Any penetration, however 109 Sepule v. Shellard \[Cal. App.\] 98 P 67. 84. Force essential. Pumphrey v. State \[Ala.\] 47 S 156; Payne v. Com., 33 Ky. L. R. 229, 110 SVV 311; Vickers v. U. S. \[Okl. Cr. App.\] 98 P 467. 85. Payne v. Com., 33 Ky. L. R. 229, 110 SVV 311. 86. State v. WThimpev \[Iowa\] 118 NPV 281; State v. Rhoades \[N. D.\] 118 NPV 233. 87. State v. Rhoades \[N. D.\] 118 NPV 233; Vickers v. U. S. \[Okl. Cr. App.\] 98 P 467; 12 Ex parte Black \[Tex. Cr. App.\] 113 SVV 534. Least consent during act negative offense. State v. WThimpev \[Iowa\] 118 NPV 281. 88. Eveu the least. Payne v. Com., 33 Ky. L. R. 229, 110 SVV 311. 80. State v. Rhoades \[N. D.\] 118 NPV 233. 80. There must be the utmost resistance overcome by actual force to constitute first degree rape. State v. Rhoades \[N. D.\] 118 NPV 283. 81. Rape accomplished through fear and 'threats, accompanied by apparent power of execution, constitutes the second degree. State v. Rhoades \[N. D.\] 118 NPV 233. 82. Pub. St. 1901, & 278, & 16, denocuncing 1616 RAPE $ 10. **12** Cur. Law.

(SS 1) _C. Attempts and assaults with intent to commit rape; and forcible detention._ **See 10 C. L. 1441**--An attempt includes all the ingredients of the offense except its accomplishment.\* Mere solicitation cannot establish the offense.10 Intent to accomplish the crime 11 and to use whatever force is necessary in its accomplishment 12 must be present,13 and an overt act must be shown,14 which need not, however, amount to a technical assault,18 but must at least place the female under a sense of constraint and shame.19 Some jurisdictions distinguished between attempted rape and assault to rape.17

_Forcible detention._ See 10 C. L. 1442

SS 2. _Indictment and prosecution. A. Indictment or information._ **See 10 C. L. 1442**--The indictment must inform the defendant of the full nature of the charge against him,19 and must set forth facts,20 sufficient to charge the crime 21 and all its essential elements, including force 22 and nonconsent.28 Where the punishment is the same, one aiding and abetting may be properly charged as a principal.24 Statutory rape must be sufficiently alleged,28 but time is otherwise an immaterial allegation.28 That the female was under the age of consent need not be alleged in the language of the statute.27 Previous chastity of the prosecutri, if essential, must be alleged,28

S. Search Note: See notes in 10 C. L. 1441. See, also, Rape, Cent. Dig. $$ 23-45; Dec. Dig. $$ 20-35; 17 A. & E. Enc. P. & P. 645. Dig. $$ 15, 16; 23 A. & E. Enc. L. (2ed.) $$ 63. **9**. Payne v. Com., $$ 23 Ky. L. R, 229, 110 * SSV 311. **20**. Not conclusions of law. Daggs v. Ter. \[Ariz.\] 94 F 1106. Indictment charging assault with intent to commit rape by forcibly attempting to have sexual intercourse without consent held faulty as not charging intent to press force to the point of overcoming resistance. Id. **21**. "Did make assault in and upon" prosecutri, and "unlawtfully, forcibly and against her will feloniously did ravish and amally know," held a sufficient allegation. State v. Goodale, 210 Mo. 275, 109 SWP 9. **92**. Such as Is necessary to overcome resistance. Austin v. State \[Miss.\] 48 S 817. **3**. Curtis v. State \[Ark.\] 117 SWP 521. **7**. To accomplish purpose regardless of resistance or nonconsent. Clark v. State \[Yla.\] 47 S 481. **7**. Point of overcoming resistance or dissent. Daggs v. Ter. \[Ariz.\] 94 P 1106. \*\*But see Pumphrey v. State \[Ala.\] 47 S 156. **13**. Beyond reasonable doubt. Clark v. State \[Fla.\] 47 S 48L. **14**. Payne v. Com., $$ 23 Ky. L. R. 229, 110 * SVV 311. **15**. Payne v. Com., $$ 23 Ky. L. R. 229, 110 * SVV 311. **A** demonstration of violence amounts to attempt. High v. Ter. \[Ariz.\] 100 P 448. \*\*Notecessary that defendant laid hands on prosecutri. Payne v. Com. 33 Ky. L. R. 229, 110 SWP 311. \*\*If the acts of defendant were such as to show a purpose on his part to have carnl knowledge of the prosecutri by force or with consent, and that he was prepared to carry such intention into"effect and would have accomplished it but for the flight of his intended victim, he is guilty. Id. But see Williams v. State \[Ark.\] 113 SVV 799. **16**. Halosil v. State, $$ 25 Tex. Cr. App. 510, 110 SWP 441. **17**. Distinction discussed at length. Holloway v. State \[Tex. Cr. App.\] 113 SWP 928. **18**. Search Note: See notes in 5 Ann. Cas. 111; 7 Id. 263. **12** Cur. Law.

(SS 1) _C. Attempts and assaults with intent to commit rape; and forcible detention._ **See 10 C. L. 1441**--An attempt includes all the ingredients of the offense except its accomplishment.\* Mere solicitation cannot establish the offense.10 Intent to accomplish the crime 11 and to use whatever force is necessary in its accomplishment 12 must be present,13 and an overt act must be shown,14 which need not, however, amount to a technical assault,18 but must at least place the female under a sense of constraint and shame.18 Some jurisdictions distinguished between attempted rape and assault to rape.17

_Forcible detention._ See 10 C. L. 1442

SS 2. _Indictment and prosecution. A. Indictment or information._ **See 10 C. L. 1442**--The indictment must inform the defendant of the full nature of the charge against him,19 and must set forth facts,2 but felonious intent is not an essential allegation in such cases.29 A charge of having committed the crime necessarily includes the charge of capacity to commit.30 While it is usually necessary to negative marriage, such allegation need not always be in express terms,31 and in statutory rape it may be wholly unnecessary,32 particularly so as to marriage to another than defendant.38 It is not usually necessary to set forth the offense in the language of the statute,34 but an indictment in the very language of a statute cannot be construed to charge the offense under another statute.35 In charging attempt, the intent must be clearly alleged.38 The usual rules as to duplicity obtain.37 Carnal knowledge and carnal abuse are -synonymous terms.38 (SS 2) \_B. Evidence.\_1. _Admissibility.39_--\_8ee 10 C. L. 1443--At common law, failure to complain promptly raised a strong presumption of bad faith and might bar as hearsay any testimony as to a subsequent complaint.40 By the modern rulings, however, the state may introduce evidence of a delayed complaint by properly explaining the delay,41 and hence may introduce evidence in explanation thereof.42 Similarly, the state may show why no outery was made at the time of the offense.43 Since prompt complaint is an important test of the sincerity of the prosecutrix, testimony as to the fact of such complaint is admissible, but not as to details of the complaint 44 except as res gestae or in corroboration of prosecutrix's testimony when attacked,45 or under extraordinary circumstances,44 although it is within the discretion of the court to admit accusations made by prosecutrix during childbirth.47 The rule which permits the admission of complaints of the victim immediately following is an arbitrary exception to the rule against hearsay evidence and cannot be extended to other offenses.48 In general, acts and statements of the parties subsequent to the offense

29. Howerton v. Com., 33 Ky. L. R. I008, 38. Curtis v. State \[Ark.\] I17 SWV 52I.

112 SWV 606.

30. Unnecessary to allege that defendant is over age of 17, under Burns' Ann. St. 834; 6 Id. 77I; 8 Id. 459; 9 Id. 1218; I1 Id. 1908, $ 2250. Cheek v. State \[Ind.\] 85 NNE 779.

01. Curtis v. State \[Ark.\] I17 SWV 52I. Indictment alleging unlawful and felonious carnal knowledge and abuse need not negative marriage. Id.

01. Under Ky. St. 1903, $ 1155. Commonwealth v. Landis, 33 Ky. L. R. 988, 112 SWV 58I.

01. People v. Sheffield \[Cal. App.\] 98 P 67.

01. Indictment not faulty for falling to allege "and unlawfully" after word "carnaly" as set forth in statute, allegation of unlawfulness appearing elsewhere. State v. Hoskinson \[Kan.\] 96 F 138. Not necessary to set forth the elements of the statutory definition. High v. Ter. \[Ark.\] 100 P 448. "Assault" sufficiently imports force and overt act. Id.

01. Barton v. State \[MIas.\] 47 S 521.

01. Must allege that the attempt was made with intent to rape. Herrick v. Ter. \[Ok.\] 99 P 108. Indictment held sufficient. Western v. State, 53 Tex. Cr. App.\] 109, I11 SWV 655.

01. Indictment held not bad for duplicity as alleging assault and battery and rape. Cheek v. State \[Ind.\] 85 NE 779. No error in joining counts of incest and rape, they both referring to same act. State v. Goodale, 210 Mo. 275, 109 SVV 9. Indictment charging statutory offense on a day certain, "and at various times and occasions subsequent," not bad for duplicity, state having elected to stand upon date first noted. Leedor V. State \[Neb.\] 116 N NV 496. 238 Ill. 313, 87 NE 832.

19 Curr. L. - 102.

are inadmissible \*5 except as a part of the res gestae, \*5 or in corroboration of the prosecutrix, \*6 or as tending to show consciousness of guilt, \*6 but subsequent statements by third parties are uniformly inadmissible. \*6 Circumstantial or other evidence in corroboration of the prosecutrix may be introduced, \*6 such as the appearance and condition of the prosecutrix, \*6 her clothing, \*6 and the scene of the outrage, \*6 if not too remote. \*6 Letters written by defendant \*6 and the conduct of the parties previous to the crime \*6 may also be admissible in corroboration. Where the previous chastity of the prosecutrix is material, evidence bearing upon the same may be introduced, \*6 but is premature where not yet assailed by the defense. \*6 Evidence of other crimes of the same \*6 or a different nature \*6 is usually inadmissible except for purposes of impeachment, \*6 but evidence tending to prove guilt is admissible, \*6 People v. Wreston, 236 Ill. 104, 86 NE \*68: Williams v. State \[Tex, Cr. App.\] 115 State \[Ark.\] 113 SW 346. \*68 Skarggs v. State \[Ark.\] 113 SW 346. \*69 L13. Conversation between the parties before justice of peace. State v. Campbell, 210 Mo. 202, 109 SWV 706. Prosecutrix statement three weeks after crime. People v. Corey \[Cal. App.\] 97 P 807. That defendant was armed half an hour later. State v. Chance, 122 La. 706, 48 S 158. \*60 It is only when declarations accomap- many the transaction so as to be wrought into or emanate from it that they are excepted from the rule against hearsay. Commonwealth v. Howe, 35 Pa. Super. Ct. 564. \*61 under the circumstance, it can reason- ably be said that the declaration is probably true, it may be submitted for consideration of the jury with proper instructions. State v. Alton, 105 Minn. 410, 117 NWV 617. Declarations and statements of victim within half an hour of the crime, she still being nearly erased by supposed loss of her child, held natural and spontaneous reproduction of the facts (Id.), but after restoration of child and time for reflection, her further statements held not part of the res gestae (Id.). \*61 Testimony that after offense prosecutrix repelled friendly advances of defendant is admissible. Warren v. State \[Tex. Cr. App.\] 114 SV 380. \*62 Flight. State v. Ralston \[Iowa\] 116 NIV 1058. Flight of defendant upon seeing prosecutrix' father with gun, though it was not shown that defendant knew of the relationship. Holloway v. State \[Tex. Cr. App.\] 118 SWV 928. That during preliminary hearing defendant changed from clothing similar to that alleged by prosecutrix to have been worn by assallant. Id. \*63 Williams v. State \[Tex. Cr. App.\] 115 SYV 35. Highly improper to permit evidence of statement by third party, "There he is wth the same hat," Holloway v. State \[Tex. Cr. App.\] 113 SWV 928. Declarations by husband of prosecutrix in absence of defendant, although there was some evidence of confluence of act by husband. \*64 Weinberg v. State \[Tex. Cr. App.\] 115 SWV 35. \*65 Pregnancy and miscarriage of female, and her testimony that defendant alone had connection with her, properly admitted, since taken as a whole it tended to prove guilty. State v. Sebastian \[Conn.\] 69 A 1054. \*66 Prosecutrix testmony that defendant left stick with which he knocked her down at certain place, and testimony of others as to finding of stick. Griffin v. State \[Ala.\] 46 S 481. \*66 Discarriage of the defendant, \*67 Discarriage of the defendant, \*68 Discarriage of the defendant, \*69 Discarriage of the defendant, \*60 Discarriage of the defendant, \*61 Discarriage of the defendant, \*61 Discarriage of the defendant, \*62 Discarriage of the defendant, \*63 Discarriage of the defendant, \*64 Discarriage of the defendant, \*65 Discarriage of the defendant, \*6 though tending to prove another crime as well,"# if properly restricted by the court," and, in the case of an accessory, prior offenses may be considered as showing a plan or design." However, it is held in Missouri that previous offenses " and improper acts and solicitations prior to the offense charged " may be shown to establish intent or motive, but that conversations between the parties, neither improper nor importing solicitations, are inadmissible." The usual rules as to incompetency prevail." In statutory rape, evidence of previous undue familiarity between parties is admissible," as is evidence tending to rebut the state's theory as to the age of prosecutrix." Intent, as an essential of attempt, may be shown by proper evidence, and it has been held that social customs founded on race differences may be considered in this connection."

(SS 2B) 2. _Weight and sufficiency._"\*\*560 10 C. L. 1448.\*\*All of the essential elements, such as penetration," resistance," and nonconsent," must be proved;" but in many jurisdictions, if there is any evidence upon which to base a verdict, its sufficiency is for the jury," and on conflicting testimony the verdict is final as to the facts." A confession made at a preliminary hearing is a judicial confession and is alone sufficient to convict." The testimony of the prosecutrix must usually be cor-

**66. Vickers v. U. S. \[Okl. Cr. App.\] 98 P** \[dence insufficient to show utmost resist-467. Letters of defendant and evidence of ance. State v. Thondees \[N. D.\] 118 NWV 233. pregnancy of victim, tending to show other acts of intercourse between parties, administer or proof is applied. Vogel v. State missible as corroborative, although not referring to the particular act charged. Lawson. Vogel v. State \[VWs.\] 119 NWV 190: Lasdem v. State \[Neb.\] 116 NWV 496.

67. It is within the discretion of the court to admit evidence of other acts of intercourse, properly instructing as to its effect. State v. Sebastian \[Conn.\] 99 A. 1054. 118 SWV 534. Should instruct that the testimony should not be taken as proving other offenses than the one charged. Id.

01. Plan of step-father to cause ruin of step-daughter by a boy. People v. Lewis \[Cal. App.\] 98 P 1078.

69, 70, 71. State v. Campbell, 210 Mo. 202.

109 SWV 706.

72. Testimony as to insane delusions and false accusations of mother of prosecutrix not admissible where she was not witness and no connection of prosecutrix with such insane delusions is shown. Battles v. State, 53 Tex. Cr. App. 202. 109 SWV 195.

Proper to exclude question of why witness got into bed with man, it appearing that prosecutrix and witness were in bed with two men at time of alleged offense. People v. Corey \[Cal. App.\] 97 P 907. That witness had heard defendant's reputation discussed does not qualify him to testify as to general repute; must show knowledge of reputation. Commonwealth v. Howe, 35 Pa. Super. Ct. 554.

73. Battles v. State, 53 Tex. Cr. App. 202.

109 SWV 195; State v. Simmons \[Vwash.\] 100 P 269.

74. That prosecutrix had monthly sickness for five years previous to offense. Howwerton v. Com., 38 Ky. L. R. 1008, 112 SWV 606.

01. Pumphrey v. State \[Ala.\] 47 S 156.

01. Search Note: See Rape, Cent. Dig. **11** 71-84; Dec. Dig. **11** 61-54.

01. Must be conclusively shown to warrant death penalty. Vickers v. U. S. \[Okl. Cr. App.\] 98 P 467.

01. Pluson resistance sufficiently shown. State v. Whimpey \[Iowa\] 118 NWV 281. Ev1.

01. Pumphrey
    1680 RAPE $ 2B2. 12 Cur. Law.

roborated,${}^{#}$ except as to corpus delici,${}^{#}$ by independent evidence of the crime,${}^{#}$ but in several jurisdictions a conviction may be had on her uncorroborated testimony,${}^{#}$ although in such cases it should be subjected to careful scrutiny.${}^{#}$ Failure to make outery is a circumstance against the state's case,${}^{#}$ as is failure to make prompt complaint,${}^{#}$ and raises a strong inference that no offense was committed.${}^{#}$ Chastity ${}^{#}$ or repute,${}^{#}$ where material, must be shown by proper evidence. In as-saults and attempts, intent must be clearly shown,${}^{#}$ but is always a question of fact ${}^{#}$ to be inferred from the evidence.${}^{#}$ In statutory rape, the nonage of the prosecutrix must be proved beyond a reasonable doubt, but time is not otherwise a

Verdict sustained on confession of defend-

art and testimony of prosecutrix at pre-

to support conviction in absence of corroboro-

luminary hearing, notwithstanding specific

denial and explanation of both parties on

v. Goodale, 210 Mo. 275, 109 SWV 9.

trial. Id.

84. State v. Hetland \[Iowa\] 119 NWV 961;

01. State v. Goodale, 210 Mo. 275, 109 SWV

Harris v. Neal, 163 Mich. 57, 15 Det. Leg. N.

96. 118 NWV 835; Mout v. State \[Neb.\] 119 NWV 461. Under Pen. Code, 5 283. People

v. Billis, 129 App. Div. 798, 114 NYS 587.

Under Laws 1907, 0. 3B. State v. Stewart

\[Vwash\] 100 P 153. Sufficiency of corroboro-

orative evidence is for jury. State v. Hetland \[Iowa\] 119 NWV 961; State v. Ralston

\[Iowa\] 118 NWV 1058.

S5. Corpus delici may be proved by testimony of victim. State v. Hetland \[Iowa\] 119 NWV 961; Harris v. Neal, 163 Mich. 57, 15 Det. Leg. N.

119 NWV 961; Harris v. Neal, 163 Mich. 57, 15 Det. Leg. N.

96. Not corroborative of testimony but

corroborative of fact. State v. Stewart

\[Vwash\] 100 P 153. Some substantial fact

or circumstance connecting defendant with

Super. Ct. 554. Evidence of good character

the crime, independent of testimony of

prosecutrix. Id. Other facts and circum-

the jury. Id. Instruction, in effect, that

stances than the statements of prosecutrix.

Mott v. State \[Neb.\] 119 NWV 461. Such as

tends to strengthen and corroborate the

prosecutrix in connecting defendant with

the crime. State v. Whimpes \[Iowa\] 118 NWV 281; State v. Ralston \[Iowa\] 118 NWV 281; State v. Ralston \[Iowa\] 118 NWV 1058.

**Held corroborative:** Flight. State v. Hetland \[Iowa\] 119 NWV 961. Admissions of defendant. Id. Confession of sexual inter-

course by defendant. Id. Corpus delict

having been established by declaration of

prosecutrix, confession of sexual inter-

course may be sufficient to connect defendant

ant therewith. Id. Flight and condition

of prosecutrix and admissions of defendant. State v. Ralston \[Iowa\] 118 NWV 1058.

**Held not corroborative:** Opportunity. Mott

v. State \[Neb.\] 119 NWV 461. Immediate complaint. State v. Stewart \[Vwash\] 100 P 153.

\*\*Corroboration held sufficient. State v. Simmons \[Vwash\] 100 P 869. Corroborative evidence sufficient to sustain verdict of

tempt. State v. Hetland \[Iowa\] 119 NWV 961.

**Held not sufficient. Mott v. State \[Neb.\] 119 NWV 461; People v. Billis, 129 App. Div. 198, 114 XYS 687.** People v. Corey \[Cal. App.\] 97 P 907;

State v. Goodale, 210 Mo. 275, 109 SWV 9;

Vogel v. State \[Wis\] 119 NWV 190.

**88.** People v. Corey \[Cal. App.\] 97 P 907;

State v.

material consideration except as regards limitations."Carmal knowledge of a child necessarily implies "abuse," and it is not necessary to prove injury to the genitals." In order to warrant capital punishment, the actual accomplishment of the crime must be clearly proved,"99 and where committed in Indian country, it is necessary to negative the presumption that the offender is an Indian.1

(SS 2) \_C. Instructions_2--See 10 C. L. 1446 are sufficient if they correctly set forth the law of the case when read as a whole," and it is proper to refuse merely cumulative charges * or charges giving undue prominence to particular facts." While the issues should be fairly presented to the jury * and be confined to the case under consideration, an instruction defining the offense more broadly than necessary, if not misleading, may be unobjectionable.7 The language of the statute is sufficient," but it is unnecessary to go into obvious details.9 It is proper to instruct as to the effect of uncorroborated testimony,10 and circumstantial evidence may be charged where necessary 11 but such a charge is unnecessary where there is positive identification.12 Where the testimony is uncontradicted, the court may assume that the prosecutri is under the age of consent,13 and it has been held proper to suggest to the jury that such is the state of the evidence.14 Instructions on included offenses are largely discretionary 15 and may be properly refused 16 or omitted 17 in the absence of evidence supporting such a theory; but where proof of the greater crime is

97. Battles v. State, 53 Tex. Cr. App. 202, 109 SWV 195. Time is not an essential of the offense, and it is sufficient to show the offense at about the time charged, if within the statute of limitations. Instruction not erroneous where defendant's evidence of allib was fully set out allindue. State v. Sterris \[Conn.\] 70 A 587.

01. Curtis v. State \[Ark.\] 11 SWV 521; State v. Sebastian \[Conn.\] 69 A 1054; State v. Ferrris \[Conn.\] 70 A 587.

01. Cannot impose death penalty on conflicting testimony of prosecutri as to penetration. Vickers v. U. S. \[OkL Cr. App.\] 98 P 467.

01. Indians excepted from capital punishment in federal act Jan. 15, 1837. Vickers v. U. S. \[OkL Cr. App.\] 98 P 467.

01. Search Note! See notes ln 69 L. R. A. 204: & Ann. Cas. 813.

See, also, Rape, Cent. Dis. 11 88-100; Dec. Dig. 1 59.

3. Penetration sufficiently charged. Banton v. State, 53 Tex. Cr. App. 251, 109 SWV 159. UTmost resistance properly charged. State v. Whimpey \[Iowa\] 118 NWV 281.

41ibi sufficiently charged. People v. Probst. 237 Ill. 890, 86 NE 588. Instruction on reasonable doubt held sufficient. Banton v. State, 53 Tex. Cr. App. 251, 109 SWV 159; State v. Hethand \[Iowa\] 119 NWV 961. Where previous chasuity was indicated as an essential, it is immaterial that this element was omitted in one portion of the charge. Leedom v. State \[Neb.\] 116 NWV 496.

4. State v. Ralstion \[Iowa\] 116 NWV 1058; Holloway v. State \[Tex. Cr. App.\] 113 SWV 928.

1. People v. Probst, 237 Ill. 390, 86 NE 588: Salazar v. State \[Tex. Cr. App.\] 116 SWV 819.

1. Instructions sufficient. Curtis v. State \[Ark.\] 117 SWV 521. Where it is uncertain if period of limitations has run, should in-struct on reasonable doubt. Battles v. State, 58 Tex. Cr. App. 202, 109 SWV 195. Proper to instruct time immaterial so offense was with-material consideration except as regards limitations."Carmal knowledge of a child necessarily implies "abuse," and it is not necessary to prove injury to the genitals." In order to warrant capital punishment, the actual accomplishment of the crime must be clearly proved,99 and where committed in Indian country, it is necessary to negative the presumption that the offender is an Indian.1

(SS 2) \_C. Instructions_2--See 10 C. L. 1446 are sufficient if they correctly set forth the law of the case when read as a whole," and it is proper to refuse merely cumulative charges * or charges giving undue prominence to particular facts." While the issues should be fairly presented to the jury * and be confined to the case under consideration, an instruction defining the offense more broadly than necessary, if not misleading, may be unobjectionable.7 The language of the statute is sufficient," but it is unnecessary to go into obvious details.9 It is proper to instruct as to the effect of uncorroborated testimony,10 and circumstantial evidence may be charged where necessary 11 but such a charge is unnecessary where there is positive identification.12 Where the testimony is uncontradicted, the court may assume that the prosecutri is under the age of consent,13 and it has been held proper to suggest to the jury that such is the state of the evidence.14 Instructions on included offenses are largely discretionary 15 and may be properly refused 16 or omitted 17 in the absence of evidence supporting such a theory; but where proof of the greater crime is

97. Battles v. State, 53 Tex inconclusive, it may become the duty of the court to instruct on the lesser.\[18\] The court should properly limit the effect of evidence introduced for a particular purpose.\[19\] Where the jury is to assess punishment, the court should so instruct.\[20\] Objections to instructions, to be available on appeal, must be specific.\[21\] (SS 2) \_D. Trial and punishment.\[22\] See 10 C. L. 1448--Venue, in doubtful cases, may be for the jury.\[23\] The right to have the state elect a particular offense is a matter of local practice\[24\] and may be lost by failure to raise the question at the proper time.\[25\] When the state admits the facts to be proved, a continuance to obtain evidence is properly refused.\[26\] The jury may find a lesser offense, although the evidence warranted conviction for the greater,\[27\] and may bring a verdict of "guilty without capital punishment," although there were no mitigating circumstances;\[28\] but where sentence is dependent upon previous chastity of prosecutri, the greater verdict is not authorized in the absence of an allegation of chastity.\[20\] A sentence not strictly conformable to the indeterminate sentence statue may in some instances be read as conforming thereto.\[29\] Twenty years' hard labor is not excessive punishment for premeditated and incestuous rape of an adult.\[31\] \_New trial.\[29\]\_C. L. 1448--The defendant must show diligence in the first instance in order to be entitled to new trial upon the ground of newly-discovered evidence,\[32\] and may properly be refused where the new evidence is inconclusive\[33\] or merely cumulative.\[34\] New trial is primarily within the discretion of the trial court, but it is an abuse of discretion to deny new trial when the court has information as to material facts unknown to the jury.\[35\] The appellate court will not interfere, however, unless the question is properly brought before it.\[36\]

## 10.1 Real Actions."

\[\] 18. Proof of penetration inconclusive. \[\] 19. That testimony could not be taken as proving a different offense. State v. Sebastian \[\] 19. \[\] 20. That jury may find "guilty, without capital punishment." Vickers v. U. S. \[\] 109. \[\] 119. \[\] 21. State v. Expenschied, 213 Mo. 215, 110 SSV 1072. \[\] 22. Search Note: See notes in 35 L. R. A. 576. \[\] 22. See, also, Rape, Cent. Dis. **SS 85-105; Dec.** Dig. **SS 65-64; 23 A. & E.** Enc. L (2ed.) 885; 17 A. & E.\*\* Enc. P. & P. 665. \[\] 23. Where alleged offense took place during a drive through various jurisdictions, venue may be a question for jury. State v. Fishel \[\] 118 NWV 763. \[\] 24. Between count allegating particular date and one allegating offense between certain dates, defendant cannot require election as of right. State v. Sebastian \[\] 69 A 1054. Refusing election at commencement of trial is within court's discretion. Id. State need not elect between counts of Incest and rape, they both referring to same act. State v. Goodale, 210 Mo. 275, 109 SSV 9. \[\] 25. Where the information charges rape in different degrees, the defendant valves right to have state elect by failing to deny-muv or move for election. State v. Rhondes \[\] \[\] 118 NWV 233. Where several offenses were committed within a short space of * \[\] **I. Definitions and Nature of Real Property, 1623.** 1630. The Rule in Shelley's Case, 1638.\*\*

- \[\] **S 2. Present and Future Estates, 1623.** 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1638.\*\* 1639.\*\* 1639.\*\* 1639.\*\* 1639.\*\* 1639.\*\* 1639.\*\* 1639.\*\* 1639.\*\* 1640.\*\* 1639.\*\* 1641.\*\* 1639.\*\* 1642.\*\* 1639.\*\* 1643.\*\* 1644.\*\* 1645.\*\* 1646.\*\* 1651.\*\* 1652.\*\* 1653.\*\* 1654.\*\* 1655.\*\* 1656.\*\* 1657.\*\* 1658.\*\* 1666.\*\* 1667.\*\* 1668.\*\* 1671.\*\* 1672.\*\* 1673.\*\* 1674.\*\* 1675.\*\* 1676.\*\* 1677.\*\* 1678.\*\* 1682.\*\* 1679.\*\* 1683.\*\* 1684.\*\* 1685.\*\* 1686.\*\* 1687.\*\* 1688.\*\* 1688.\*\* 1689.\*\* 1690.\*\* 1691.\*\* 1692.\*\* 1693.\*\* 1694.\*\* 1695.\*\* 1696.\*\* 1697.\*\* 1698.\*\* 1699.\*\* 1699.\*\* 1697.\*\* 1698.\*\* 1699.\*\* 1700.\*\* 1699.\*\* 1710.\*\* 1721.\*\* 1739.\*\* 1740.\*\* 1751.\*\* 1769.\*\* 1776.\*\* 1780.\*\* 1791.\*\* 1792.\*\* 1793.\*\* 1794.\*\* 1795.\*\* 1796.\*\* 1797.\*\* 1798.\*\* 1799.\*\* 1800.\*\* 1810.\*\* 1820.\*\* 1830.\*\* 1841.\*\* 1851.\*\* 1869.\*\* 1870.\*\* 1889.\*\* 1890.\*\* 1891.\*\* 1892.\*\* 1893.\*\* 1894.\*\* 1895.\*\* 1896.\*\* 1897.\*\* 1898.\*\* 1899.\*\* 1990.\*\* 1991.\*\* 1992.\*\* 1993.\*\* 1994.\*\* 1995.\*\* 1996.\*\* 1997.\*\* 1998.\*\* 1999.\*\* 1999.\*\* 1999.\*\* 1990.\*\* 1991.\*\* 1992.\*\* 1993.\*\* 1994.\*\* 1995.\*\* 1996.\*\* 1997.\*\* 1998.\*\* 1999.\*\* 1999.\*\* 1999.\*\* 1999.\*\* 1990.\*\* 1991.\*\* 1999.\*\* 1991.\*\* 1992.\*\* 1993.\*\* 1994.\*\* 1995.\*\* 1996.\*\* 1997.\*\* 1998.\*\* 1999.

and overlying strata of soil.45 Except as illustrative of definitions and principles purtenant to the various divisions of this section, what kinds of estates or interests are created or conferred by the phraseology of particular grants or devises is subsequently shown.46

(SS 2) _B. Freeholds.47--See 10 C. L. 1448--A freehold is an estate equal to or greater than a life estate.48 A freehold estate may be made to commence in the future.49_

(SS 2) \_C. Estates in fee.50--See 10 B. L. 1449--A fee simple is the largest estate and most extensive interest that can be enjoyed in land.51 The right of alienation is an inherent and inseparable quality of vested fee-simple estates,62 though reasonable restraints thereon are valid.68 At common law, a grant or devise without any words of limitation conferred a life estate only,64 but this rule has been abrogated by statute in many states.65 In some jurisdictions estates tail are made fee simple estates by statute.56

Footnote 45: Oll lease held to confer no title to striatum in place. Gracelona Oil Co. v. Santa Barbara County \[Ca1.\] 99 P 483.

46. See, post, $ 3, Estates Created in Particular Cases and Principles of Classification.

01. Search Note: See Estates, Cent. Dig. $ 4; Dec. Dig. $ 4; 11 A. & E. Enc. L (2ed.)

01. Life estate is freehold. Hampten v. Glass \[Ky.\] 116 SVW 243. To grantee "and to the heirs of her body" with reservation of life enjoyment by grantor and with revension to grantor or his estate should grantee die without heirs of body held to create an estate of freehold but not in possession. Robeson v. Duncan \[N. J. Eq.1 70 A 685.

01. Grant with reservation of life estate. Dick v. Miller \[N. C.\] 63 SE 176.

01. Search Note: See notes in 7 A. S. R.

01. See, also, Leeds, Cent. Dig. $ 344-359, 416-455, 459; Dec. Dig. $ 124-126; Estates, Cent. Dig. $ 57-17; Dec. Dig. $ 57-7; Vills, Cent. Dig. $ 1319-1359; Dec. Dig. $ 597-57; Vills, 603; 11 A. & E. Enc. L (2ed.) 366.

01. Additional words in fee simple devise that property should be "possessed absolutely," held ineffectual to qualify or enlarge estate devised. Frank v. Frank \[Tenn.\] 111 SWW 111. A devise or grant to one and his heirs creates a fee. Thomas v. Owens \[Ga.\] 62 SE 218.

01. Hardness v. Lisle \[Ky.\] 117 SWW 264.

01. See, post, $ 4C.

01. Grant. Adams v. Merrill \[Ind. App.\] 87 NE 36. Prior to Laws 1903, $ 5145, 84, word "heirs" was indispensable to creation of an estate of inheritance by deed. Ivey v. Peacock \[Fla.\] 47 S 481.

Habendum in deed "to have and to hold in full right" etc., "as against sald parties of the first part, in fee simple forever," held not of itself sufficient to create estate of inheritance. Id. While "heirs and assigns" are not necessary to fee simple devise in Missouri, they were necessary at common law. Jackson v. Littell, 213 Mo. 689, 112 SWW 53. At common law, deed omitting "heirs" passed only life estate though purporting to convey to grante forever or to him and assigns forever. Teague v. Sowder \[Tenn.\] 124 SVW 484.

55. Under Burns' Ann. St, 1908, $ 3958, 3960, dispensing with words "heirs and as- 12 Cur. Law. REAL PROPERTY SS 2D. 1625

_Entals.See 10 C. L. 1149--Words of procreation are essential to the creation of an estate tail,\[97\] but it is sufficient if it appears from the whole will or deed that "heirs of the body" were intended.\[58\] A life estate jointly to two or more who cannot have a common heir, remainder to the heirs of their bodies, gives each ancestor a several inheritance in fee tail in such part as would be the share of the heirs of his body according to the number of joint tenants to whom the freehold is given." Estates tail are by statute converted into fees simple in many states \[60\] or into life estates with remainders.\[61\]_

_Base or determinable fees.See 10 C. L. 1449--These are estates which, though limited to heirs general, are subject to divestiture on the happening of some future contingent event.\[42\] There is no revester unless the contingency happens,\[64\] and so long as the estate remains the owner in possession has all the rights which he would have if tenant in fee simple.\[64\] A determinable or qualified fee may embrace what is properly a fee upon condition.\[65\] The right to improvements on termination of the estate is considered in a subsequent section.\[66\]_

(SS 2) _D. A life estate "See 10 C. L. 1440 is a freehold \[68\] limited to determine to grant to grantee and heirs of her body by Act April 27, 1855, becomes fee simple. with reversion to grantor should grantee \[Sechler v. Eshleman \[Pa_\] 70 A 910. Under die without heirs of body. Robeson v. Duncan \[N. J. Eq. 170 A 885. Under Shanan-mon-law presumption of indefinite failure non's Code, $ 3672, providing deeds shall of issue one of definite failure, words presumptively pass all estate of grantor, "death without issue" in devise over in fee simple may be conveyed without use of case of death of first taker without issue word "heirs." Teague v. Sowder \[Tem.\] 114 SWV 484. Devise to M. and C. without more held to give fee under Rev. St. 1885, life estate only and not fee tail made fee art, 627, rendering nonessential technical by act of 1855. Lewis v. Link-Delit Co. common-law phraseology. Seay v. Cockrell \[TeX.\] 115 SWV 1160.

56, See next paragraph, Entalis. 57. In addition to word "heirs," such words are necessary to indicate the body from which the heirs are to proceed. VWebe v. Webb, 234 TIL 442, $4 NE 1054.

58. Not necessary that words of procreation be in clause of immediate gift. Webbe v. Webbe, 234 TIL 442, $4 NE 1054. Balance to children "and to their "personal" and lawful heirs" had not equivalent to "heirs of body." but children took fee simple. Id. 59. Wright v. Gaskill \[N. J. Eq. 172 A 108.

01. Shares to daughters and their bodily heirs or the lawful heirs of their bodies, free from debts of their husbands or other persons, held to create fee tall made fee simple by statute. English v. McCreary \[Ala\_\] 48 S 113. To grantee and her bodily heirs after her death, held to create fee tail converted to fee simple by statute. Lawson v. Todd, 33 Ky. L. R. 557, 110 SWV 412. WIII constructed to create estates tall on happening of contingency therein specified, contemplating life estates in grandchildren unborn, so that under statute testaro's children took estate in fee simple. Davenport v. Collins \[Miss.\] 48 S 733. Income of farm to grandchildren after death of widow and on their death farm to descend to their issue, held to create an estate tail entered to fee by act April 27, 1855 (P. L. 368), "issue" meaning prima facie "heirs of body." Stayman v. Paxson, 221 Pa 446, 71 at A 803. To brother for life then to brother's four daughters, each for life, and after death of each piece "into her children and their heirs.and assigns forever," held to create an estate tall in each piece, which with a human life or lives " or at an uncertain time which may be postponed for life." Under some statutes common-law estates tail are made life estates with re-mainders over." A discretionary power of sale in a life tenant cannot be delegated by him," and in case of doubt a power will be held not to have been executed." On the issue of the value of a life estate, annuity or life tables while properly considered are not conclusive," other evidence also being competent."

(SS 2) \_E. Estates upon condition or limitation." See 10 C. L. 1450--An estate may be created which will vest or be divested on the performance or nonperformance of some condition," or on the happening of some contingency." A condition subsequent differs from a limitation in that in order to defeat the estate some affirmative act must be done such as making re-entry," whereas an estate on limitation is terminated ipso facto by the happening of the event." To create a condition subsequent, a right of forfeiture and re-entry must be given, either expressly or by implication." Whether words create a condition precedent or subsequent is generally

69. Where trust was created for life of \[Haywood v. Wachovia L. & T. Co. \[N. C.\] beneficiary with direction to convey to_ben- 62 SE 915.

"spphire" appointer by will or to her hers \[Fes, and post, Future Estates. Gift to conveyed the land in her life time, grantee took at least an estate for life of beneficiary. McFarill v. Kirkpatrick, 236 Ill. 281, 86 NE 139. See, also, post, SS 3.

70. Lease for stipulated monthly rental tenant and his hers and assigns to hold "while he shall wish to live in Albert Lea," created life estate terminale only by death of tenant or his removal from Albert Lea. Thompson v. Baxter \[Mim.\] 118 NW 797.

Lestate during widowhood is life estate subject to divesture by marriage. Harling v. Shelton \[Tex. Civ. App.\] 114 SW SW 389.

71. See ante, Entails.

01. Partition sale, under decree of probe court, at instance of life tenant who was authorized to dispose of such portion of estate as she deemed best, held not an execution of the power. Cramton v. Rutledge \[Ala.\] 47 S 214.

01. Where petition or record in partition did not disclose life tenant's intention to execute power or whether she intended to sell only life estate. Cramton v. Rutledge \[Ala.\] 47 S 214.

01. Holt v. Hammin \[Tenn.\] 111 SWV 241.

01. Nature of property, age and habits of life tenant, taxes, risks, etc. Holt v. Hammin \[Tenn.\] 111 SWV 241.

01. Search Note: See notes in 70 A. S. R. 829; 79 Id. 747.

See, also, Deeds, Cent. Dig. # 448, 449.

469-548: Dec. Dig. # 134, 144-176; Willis.

Cent. Dig. # 1446, 1522-1579; Dec. Dig. # 621, 624, 839-867; 11 A. & E. Enc. L. (2ed.) 382.

77. To grantee for life on condition he makes repairs, pays taxes, etc., and re-serving option in grantor to declare forfeiture of conveyance and represses him-self on default in performance of condition, held to create a valid conditional estate subject to forfeiture by breach and re-entry. Lumsden v. Payne \[Tenn.\] 114 SWV 483. Condition that daughter should leave living issue held applicable only to corpus of property devised to her, and not to income, latter being given absolutely.

## 12 Cur. Law.

REAL PROPERT $ 2E.

a question of intention, \[8\] but courts are averse to construing conditions as precedent when the "vesting of estates under a will is thereby defeated," and they are also inclined toward regarding provisions as mere covenants rather than conditions, \[8\] or as mere executory or contingent limitations. \[8\] Conditions subsequent do not affect the estate conveyed until they are broken," but they must be complied with, \[9\] and nonperformance is not excused by contingencies which the holder of the estate could have provided for. \[8\] If they are not observed, the grantor or his heirs may forfeit the estate by acts sufficient to constitute in law a re-entry," unless, of course, the right of re-entry has been previously lost," but conditions subsequent are not favored, \[9\] and persons seeking a forfeiture must bring themselves clearly within the terms of the condition, \[9\] especially where they were not parties to the instrument containing it. \[9\] The general rule is that the right of re-entry can be exercised only by the grantor or his heirs. \[8\] A grantor who re-enters and takes possession in execution of a forfeiture for breach of condition acquires thereby an estate which he may assign, \[9\] remainders or other interests dependent on the grant being thus cut off. \[8\]

S2. Especially when condition is annexed beneficiaries were not given, and beneficial to a devise or bequest. Ege v. Herring are who were probably intended declined to \[Md.\] 70 A 221. Must be determined from a testator's intent as gathered from whole will rather than from use of particular merely executory or contingent limitations, words. Warren's Adm'r V. Bronson \[Vt.\] 2Ege v. Herring \[Md.\] 70 A 2E1.

$9 A 655. Fulfillment of contract for carrying on farm during widow's life held a condition subsequent, and accordingly title \[8\] The same author is with a "testator's death subject to life estate and payment of legacies. Id that he care for mother, Morrall v. Morrall. There are no technical words determinative of whether estate is on condition precedent or subsequent intention being controlling. De Conick v. De Conick, 154 Mich. 187, 15 Det. Leg. N. 524, 117 NW 579. If language of will shows that act on which estate depends must be performed before vesting, condition is precedent \[Md.\], but if act does not necessarily precede vesting, condition is subsequent \[Md.\]. All surrounding circumstances at time of execution of aded many be considered. Id. Provision for support of grandnee by grantee held conditions locked schoolhouse on premises upon ninetee after mother's death. Id.

S8. Especially as to regulatory bequest. Ege v. Herring \[Md.\] 70 A 221.

84. Unilateral covenant by tenant "to sell no other beer than that manufactured by" a "predeodings against person to whom land certain brewing company held not a condition subsequent, but a mere independent and "unenforfeible covenant. Fortune Bros. Brewer.

Co. v. Shields, 137 Ill. App. 77. Grant "upon the express condition that grantee and assigns shall keep said premises open as private way," etc., held a covenant, and not a condition giving grantor's heirs no reverts.

If they are not observed, the grantor or his heirs may forfeit the estate by acts sufficient to constitute in law a re-entry," unless, of course, the right of re-entry has been previously lost," but conditions subsequent are not favored," and persons seeking a forfeiture must bring themselves clearly within the terms of the condition, \[9\] especially where they were not parties to the instrument containing it. \[9\] The general rule is that the right of re-entry can be exercised only by the grantor or his heirs. \[10\] A grantor who re-enters and takes possession in execution of a forfeiture for breach of condition acquires thereby an estate which he may assign, \[9\] remainders or other interests dependent on the grant being thus cut off. \[8\]

S8. Especially when condition is annexed beneficiaries were not given, and beneficial to a devise or bequest. Ege v. Herring are who were probably intended declined to accept, alternative gifts seated, preceding a testator's intent as gathered from whole will rather than from use of particular rewards. Warren's Adm'r V. Bronson \[Vt.\] 2Ege v. Herring \[Md.\] 70 A 2E1.

S8. Ammiller v. Dash \[Wash.\] 98 P 583.

Flying on farm during widow's life held a condition subsequent, and accordingly title \[8\] The same author is with a "testator's death subject to life estate and payment of legacies. Id.

There are no technical words determinative of whether estate is on condition precedent or subsequent intention being controlling. De Conick v. De Conick, 154 Mich. 187, 15 Det. Leg. N. 524, 117 NW 579. If language of will shows that act on which estate depends must be performed before vesting, condition is precedent \[Md.\], but if act does not necessarily precede vesting, condition is subsequent \[Md.\]. All surrounding circumstances at time of execution of aded many be considered. Id. Provision for support of grandnee by grantee held conditions locked schoolhouse on premises upon ninetee after mother's death. Id.

S8. Especially as to regulatory bequest. Ege v. Herring \[Md.\] 70 A 221.

84. Unilateral covenant by tenant "to sell no other beer than that manufactured by" a "predeodings against person to whom land certain brewing company held not a condition subsequent, but a mere independent and "unenforfeible covenant. Fortune Bros. Brewer.

Co. v. Shields, 137 Ill. App. 77. Grant1628 REAL PROPERTS 2F. 12 Cur. Law.

(SS 2) \_F. Hereditaments and appurtenances.\_97--See 10 C. L. 1450--A franchise to use land is an incorporeal hereditament.\_98 A thing is apprutenant to land when it is by right used with the land for its benefit.\_99

(SS 2) \_G. Future estates_1--See 10 C. L. 1450 are such as are limited to commence in possession or enjoyment in futuro._2 Whether vested or contingent, they are divisible, assignable and transmissable by descent; 3 but a mere possibility of revester is incapable of alienation or devise,4 such an interest not being sufficient to constitute an estate._5__

Footnote 21: https:// 12 Cur. Law. REAL PROPERTTY SS 2G. 1629

bious or uncertain event,\[12\] but may be vested subject to a subsequent condition or contingency.\[13\] If permissible, remainders will be held vested rather than contingent,\[14\] even though subject to divestiture by exercise of a power of appointment.\[15\]

Though a remainder cannot be limited on a fee absolute,\[17\] alternative contingent remainders in fee are valid,\[17\] and a remainder may be limited after what would have been an estate tail at common law.\[18\] So, also, by statute, a contingent remainder in fee may be limited on a prior determinable remainder in fee.\[19\]

Under the old common law rule, which, however, is not now universally adhered to,\[20\] a contingent remainder fails unless it can vest in interest when the particular estate is destroyed or otherwise terminates,\[21\] and a life tenant could take ad-

should end. Carter v. Carter, 234 Ill. 507, 85 NE 292. Whenever remainders in he-ling and is ascertained, and event which will terminate precedent estate is certain to happen, remainder is vested. Id. Where seven children mentioned by name were to take on death of widow. Id. Vesting not prevented by provision that, should widow again marry, rents should be applied for support and education of children. Id. Remainder is vested when a definite interest is created in a certain person and no further condition is imposed than determination of precedent estate. Goliaday v. Knock, 255 Ill. 412, 85 NE 649. Not sufficient that there is a person in being who has present capacity to take should particular estate presently terminate (Id.), but it must also appear that there are no other contingencies which may intervene to defeat the estate before falling in of particular estate (Id.). Where court can point to a person and say to him that by virtue of testamentary grant in remain-der he will have an immediate right to possession of hands devised on termination of precedent estate, remainder is vested under Laws 1896, p. 564, c. 547, $ 30. Doscher v. Wyckoff, 68 Miss. 414, 113 NYS 655. As to estate in particular cases, see post, $ 3.

11. Goliaday v. Knock, 235 Ill. 412, 85 NE 649; Carter v. Carter, 234 Ill. 507, 85 NE 292. In an estate not ready to come into possession at any moment when prior estate may end. Carter v. Carter, 334 Ill. 507, 85 NE 292. Wbree life estate was subject to for-future by breach of conditions, remainder over was contingent, being dependent on continued existence of life estate. Lumsden v. Payne \[Tenn.\] 114 SW 483. Where persons to whom remainders were limited were uncertain. In re Adelman's WHI \[VW.\] 119 NW 829. As to estates in particular cases, see post, $ 3.

**Distinction**. Vested remainders vest at once, and only right of enjoyment is dependent on some future event (Jallette v. Bell, 33 Ky. L. R. 159, 110 SW 288), while contin-gent remainders do not vest immediately but depend on some uncertain future event (Id.). Under Real Property Law, Laws 1896, p. 564, c. 547, $ 30, future estates are vested when there is a person in being who would have an Immediate right to possession on termination of precedent estate, and contingent while person to whom, or event on which they are limited to take effect, remains uncertain. Trowbridge v. Cass, 126 App. Div. 679, 110 NYS 1108. Uncertainty distinguishning contingent from vested remainder is not uncertainty whether remainder will live to enjoy estate, but whether he will ever vantage of this by forfeiting his own estate and taking a reconveyance.21 The doctrine of acceleration of remainders is based on a presumed intention that the remainder shall take from the time of the termination of the preceding estate rather than from the time of the death of the life tenant,22 and hence does not apply where no such intention can be presumed.28 Remainders are transferable.24

\_Executory interests.See 10 C. L. 1452--\_An executory devise is an estate permitted at common law to be created by will, to commence in the future either with or without a precedent estate.25 It can be limited on a fee 26 or to take effect after death without issue,27 but an absolute power of disposition in the first taker is inconsistent.28 If an estate can take effect as a remainder, it will not be held to be an executory devise.29

\_Expectancies.See 10 C. L. 1452--\_Alienations of expectancies by heirs apparent are sustained if made in good faith and for a sufficient consideration; 30 but one has no such interest in the reality of one's living ancestor as to be able to prevent a voluntary alienation to strangers.31

SS 3. \_Estates created in particular cases, and principles of classification.82--_See_

16 C. L. 1453--\_Of primary importance is the intention of the parties to be gathered from the particular language of the entire instrument creating the estate,33 and

31. Owner can convey to strangers without estate, remaindermen were yet unborn. Hayward v. Spaulding \[N. EL\] 71 A 219. Forfeiture of precedent life estate on condition held to destroy remainder. Lumsden v. Payne \[Tenn.\] 114 SWV 485. 21. Might forfeit life estate by tortous conveyance by deed of coeffment with livery of seffin and thus destroy remainders and take free title by reconveyance. Bond v. Moore, 236 Ill. 576, 86 NE 386. 22. "Oldren v. Holdren, 78 Ohio St. 276, 85 NE 837. 23. vhere one-sixth was devised to widow for life, with remainder in fee to a son, and widow elected to take more than value of life estate under law, remainder did not accelerate, but life estate would be sequestered to compensate disappointed leafages. Holdren v. Holdren, 78 Ohio St. 276, 85 NE 537. 24. See ante, Future Estates. 25. To daughter, with remainder in fee to her children, but should she die without children, then to testator's children then living, held in nature of executory devise. Frank v. Frank \[Tenn.\] 111 SWV 1119. 26. Frank v. Frank \[Tenn.\] 111 SWV 1119. 27. Not void for remotences of contingency of indefinite failure of issue. Stisser v. Stisser, 235 Ill. 207, 85 NE 340. Could not be argued devise was dependent on indefinite failure of issue where testator used words "without issue" in sense of "Without children."

01. Absolute fee, but over as to "estate remaining" should son die without issue who attained majority, gave absolute power of disposal, and limitation over could not take effect as executory devise. Galligan v. McDonald, 200 Mass. 299, 86 NP 304. 29. Construction of deed that it created a shifting use held not at variance above rule, even if such rule applies to springing and shifting uses. Slimonds v. Slimonds, 193 Mass. 552, 85 NE 860. 30. Son's conveyance of expectancy and agreement not to contest ancestor's will held not against public policy. In re Wicker-sham's Estate, 158 Cal. 603, 96 P 511. 31. Owner can convey to strangers without consideration as against heirs at law. Schuphor \[N. EL\] 71 A 219. Forfeiture of precedent life estate on condition held to destroy remainder. Lumsden v. Payne \[Tenn.\] 114 SWV 485. 21. Might forfeit life estate by tortous conveyance by deed of coeffment with livery of seffin and thus destroy remainders and take free title by reconveyance. Bond v. Moore, 236 Ill. 576, 86 NE 386. 22. "Oldren v. Holdren, 78 Ohio St. 276, 85 NE 837. 23. vhere one-sixth was devised to widow for life, with remainder in fee to a son, and widow elected to take more than value of life estate under law, remainder did not accelerate, but life estate would be sequestered to compensate disappointed leafages. Holdren v. Holdren, 78 Ohio St. 276, 85 NE 537. 24. See ante, Future Estates. 25. To daughter, with remainder in fee to her children, but should she die without children, then to testator's children then living, held in nature of executory devise. Frank v. Frank \[Tenn.\] 111 SWV 1119. 26. Frank v. Frank \[Tenn.\] 111 SWV 1119. 27. Not void for remotences of contingency of indefinite failure of issue. Stisser v. Stisser, 235 Ill. 207, 85 NE 340. Could not be argued devise was dependent on indefinite failure of issue where testator used words "without issue" in sense of "Without children."

01. Absolute fee, but over as to "estate remaining" should son die without issue who attained majority, gave absolute power of disposal, and limitation over could not take effect as executory devise. Galligan v. McDonald, 200 Mass. 299 erated by wf1 without words of inheritance

of mine and my wife's homesetad or life-shall be deemed a fee simple. Alsip v. Morgan, 38 Ky. L. R. 72, 109 SW 312. Will held

so give fee to daughter on her arrival at 21, widow having renounced will. Frye's Adm't

forver," except homesetad, habendum to v. Frye \[Ky.\] 112 SW 919. Will contured to give husband fee simple title to certain land, subject only to charge for maintenance and education of a nephew, latter taking no interest therein or in surplus proceeds except right to maintenance during minority, and to be educated for a profession should he in good faith desire it. Knight V. Collins \[Ky.\] 118 SV 131. Deed held to convey equitable fee simple estate, though caption stated

grantee as "trustee for C and children," "heirs" and "assigns" being used in all parts of deed conveying or warranting estate.

Wilson v. Shumane \[Ky.\] 113 SV 851. To sister in trust "to nurture, support and educat" grantor's children, with power to sell

and convey "to whomeoser she might think

church held to take determinable or qualified proper, and to manage and control said proper,

fer were deed provided that land should re-

erty or its proceeds as she might deem best

in her discretion for the use of said children,"

be occupied for a meeting house or church.

dren," held to convey fee simple to trustee,

sespecially in view of Ky. St. 1093, $ 2342, making estates fee simple in absence of con-

deed, habendum to her fee, but, if she died

trary intention appearing. Maxwell's Commitree v. Centennial Eprequal Bldg. & Loan

dead then part to Mrs. S's "next" legal heirs,

Ass'n \[Ky.\] 114 SV 324. To daughter, "to her and her heirs forever, without right to

held to create conditional fee, so that husband or her husband to ever sell or transfer

band and write could pass fee absolute. Hamm-

same, yet, should she leave heirs, they may

llllon v. Sidwell \[Ky.\] 115 SW 204. Convey-

call and dispose of It," held to give fee

ance with restriction as to use confers a

guaille fee subject to divective for breach

tion. Disman v. Flippin's Adm'x \[Ky.\] 116

SW 740. Devise to a son "and his children"

p 883. Conveyance with restriction that

held to give son fee and not life estate, in

view of other devises, restraints and charges.

Harkness v. Lisie \[Ky.\] 117 SW 264. To son

Life estates: Will held to vest in deaf

and h hieirs forever, but, in default of sur-

viving issue or if such issue should die in

minority, then over as to "estate remaining"

v. Prior \[Ga.\] 62 SE 77. Codicial held to carve

at son's death, held to create fee. Galligan

life estate for sister out of estates previously

v. McDonald, 200 Mass. 299, $6 NE 304. To

wife, her heirs and assigns forever, with

\[Ga.\] 62 SE 218. Will drawn by ignorant

privilege of selling, and after her death, or at

any time when she might arrange to relin-

with remainder to persons named as heirs,

quish her interest, property should revert to

land being expected from direction for, sale

tesator's son after daughters should have

when youngest child should attain age,

received certain sums, held to give wife fee

though it was the only land testator owned.

simple, with full power to convey. Jackson

Poll v. Cash, 234 Ill. 53, $4 NE 718. Will held

v. Littell, 213 Mo. 589, 112 SW 53. To grantee trust estate at least for life of a

and her heirs "with tlate provision," that in

a daughter. Copeland v. Pruning \[Ind. App.\]

event of death of grantee before that of S,

87 NE 1000. Residue to husband for life,

latter should have life estate, "and after

with full power to sell same or as much

death of parties herein named" property

theod with be needed for his support,

sheuld revert to grantee's heirs, held to create

theo, held to give husband only

ate fee in grantee, she surviving S. Gay-

life estate, with power of alienation for

lord v. Barnes, 128 App. Div. S10, 113 NYS 605. To son, farm and all pertaining thereto, his

helris and assigns forever, excepting what

was devised to his mother for life, "at her

death same to be sold and money divided-

equally 5 shares," held to give fee simple to

son subject to life estate. Hershey v. New

York & Cleveland Gas Coal Co., 220 Pa. 651,

$9 A 1046. Where remainder was given to

life tenants, sisters and brothers mentioned

in will "or their heirs," heirs was word of

Imitation, so that brothers and sisters took

fee. In re Bentz's Estate, 221 Pa. 880, 70 A

788.

### Real Property 8 3.

Deed reserving full control during lives of 409, 113 NYES 37. To wife for life, to have, grantor and wife and providing it should take effect after their death held to create life estates in grantors and vest title in grantors subject thereto. Martin v. Stewart, 33 Ky. L. R. 729, 111 SW 281. Deced to daughter and her heirs as an advancement, grantor to control property in his lifetime, daughter, to have control after his death only to work upon for her lifetime, then to her living children, held to give daughter only a life estate, with remainder to children. Williams v. Grimm \[Ky.\] 112 SW 839, WVIII de- vising testatrix's interest in a lot, with full power in devise to dispose of same by wll or otherwise, but giving daughter a home thereon, held to give daughter home for life only in case lot was not previously disposed of. West v. McDonald \[Ky.\] 113 SW 872. To children for their lives, then to their legal heirs in default of issue of their bodies, without right of disposal, held to give children only life estate, remainder to their children, if any. Trustees of Common School Dist. No. 31 v. Isaacs' Guardian \[Ky.\] 115 SW 724. Speed reserving to grantors all right, title and control as long as either of them should live, and requiring grantee, after their death, to pay certain sums to design- nated persons, held to create life use for grantors, with item for payment of sums specified. Engel v. Ladewig, 153 St. 188, 2073, giving legal estate to grant- Det. Leg. N. 380, 116 NWV 550. That one of grantors was other"s wife and had only an in theoater right to dower held immaterial. Id. Balance of reality and personality to wife, with request that she will two-thirds to charities to be named by her, "amount so will to be payable at her death, as it is my well that she have and use all the income from that portion of my estate will to he as long as she lives," held to give only one-third of estate absolutely, and life estate in remaining two-thirds. Gilchrist v. Correj- liss \[Mich.\] 15 Det. Leg. N. 971, 118 NWV 938. Where widow's attempted disposition to charities failed for indefiniteness, the two-thirds descended to testator's heirs, and not to those of testatrix. Id. Wills construed to give daughter only a life estate, with remainder to her heirs, in view of 60-year restraint on alienation and other devises of life estates. Pratt v. Saline Valley R. Co., 130 Mo. App. 175, 108 SWV 1099. Where ded was to grantee "and to the heirs of her body" with reservation of possession and enjoyment for lives of grantor and wife, and reversion to grantor should grantee die in grantor's lifetime without heirs of body, and to his "estate" should grantee so die after grantor's death, grantee took only a life estate with limitation over by way of contingent remainder. Robeson v. Duncan \[N. J. Eq. 70 A 858. Quitclaim back to grante gave only estate for life of original grantee. Id. To granddaughter for life, then to her issue, and, in default of issue, to her sister for life, then to latter's issue, and to a third person should both grandchildren die without issue, gave granddaughters only life estates, though third person died before testatrix, so that granddaughters could not cause of less density was plainly intended. Id. Deced to grantee "and her heirs forever," to have and hold during life of grantee, with remainder to children, gave grantee life estates only. Triplett v. Williams \[N. C.\] 63 SE 79. To wife, "her heirs and assigns for ever," in fee simple forever "so long as she shall remain a widow," gave widow only life estate, terminable on remarriage, though will contained no limitation over. Haring v. Shelton \[Tex., App.\] 114 SW 389. "Dur- dren only life estate, remainder to their head natural life, then to the heirs of her body, if any; if no children, to her sisters," gave safe estate. Johnson v. Smith, 108 Va. 724, 62 SE 958. To one for life, remainder to his issue, and, in default of issue, then over, she would live, and requiring grantee, after their death, to pay certain sums to design- nated persons, held to create life use for them to use of a third person, no active du- grationors, with item for payment of sums specified. Engel v. Ladewig, 153 St. 188, 2073, giving legal estate to grant- Det. Leg. N. 380, 116 NWV 550. That one of grantors was other"s wife and had only an in theoater right to dower held immaterial. Id. Balance of reality and personality to wife, with request that she will two-thirds to charities to be named by her, "amount so will to be payable at her death, as it is my well that she have and use all the income from that portion of my estate will to their estate will to their estate only time on his arriving at 25. Morton Trust Co. v. Chittenden \[Conn.\] 70 A 648. Will giv- in remaining two-thirds. Gilchrist v. Correj- liss \[Mich.\] 15 Det. Leg. N. 971, 118 NWV 938. Where widow's attempted disposition to charities failed for indefiniteness, the two-thirds descended to testator's heirs, and not to those of testatrix. Id. Wills construed to give daughter only a life estate, with remainder to her heirs, in testator's death and contingent remainders as to grandchildren not then in use. Frank v. Frank \[Tenn.J 111 SVW 1119, Will held to create vested remainders in children, but subject to divvesture as to children dying before life tenant, so that children of any such child, taking under will and not as helr, were entitled to parent's share as against parent's grantee who purchased before death of life tenant. Richards v. Burshanks, 201 Mass. 253, 87 NE 571. To K for life, then to issue, and, in default of issue, to K's appointe by will, and in default of appointment, to C if she should survive K, held to give vested remainder in C subject to divvesture by K's having issue or exercising power of appointment. In re Hagger, 128 App. Div. 479, 112 NYS 917. To vllow for life, and at her death to children "and in case any of my children shall have died" his share to go to his issue, then all not previously disposed of and in case of death of any child without issue his share to vest in surviving brothers and sisters, held to vest property in children and at testator's death, but subject to divvesture by failure to survive life tenant. Schwartz v. Hehtwis, 129 App. Div. 630, 114 NYS 92. "And at her decrease I devise the same to her children same manner as if she died is of it in her own right, to share and share alike," held gift to a class, which class would remain open for new members until he death of life tenant, but members of which, who lived at testator's death, took vested remainders. Clark v. Morehouse \[N. J. Eq.\] 70 A 307. "Contincent remainders: Remainder to "such child or children, they being the heire of her body, as she (life tenant) may leave in life," held to create contingent remainder, vesting in such children only as survived life tenant. Smith v. Smith, 130 Ga. 532, 61 SE 114. To widve, and to children after her death, and, if she should not leave children, then to G and his heirs, held contingent to O and his heirs. Goliaday v. Knock, 255 Ill. 412, 85 NE 649. Where widow's daughter and some of G's heirs predecessor widow, they took no interest. Id. Gift to one for life, with remainder to testator's next of kin, where life tenant is sole next of kin at death of testator, vests remainder in persons who answer description at termination of life estate, and renders remainder contingent. Bond v. Moore, 236 Ill. 576, 86 NE 88. Limitation to testarity's nearest relatives should son who was life devisee die without children. Id. To unmarried daughter, and, on her death, to her Issue if she should leave issue living at her death, created a contingent, not a vested remainder. Jaliette v. Bell, 35 Ky. L. R. 159, 110 SVW 298. To wife, but, "if she marries or ceases to be my widow, the farm then reverts to my children, to be equally divided between them, and at her death such farm to be divided between my surviving children and grandchildren, if any, whose parents are dead," gave contingent, not vested, remainders to children and grandchildren. Dickerson v. Dickerson, 211 Mo. 483, 110 SVW 700. Remainders to son's children held contingent where sons had no children when will took effect. Hayward v. Spaulding \[N. H.\] 71 A 219. Remainder to issue heid contingent, it being provided that, should life tenant die without issue, property should eo over. Staton v. Godard, 148 N. C. 434, 62 SE 519. 12Curr. L - 103. "Estates In common: Residue to children named and any after-born child held not to create joint tenancy so as to give shares of children dying before testator to survivors, but children took as tenants in common. In pc. Krummenacker, 112 NYS 596. See, also, Tenants in Common and Joint Tenants, 10 C. L. 1850. "Trust states: See Trusts, 10 C. L. 1907. "Miscellaneous and plural limitations: Codf-

Elle held to change will which gave nephews land in fee, so that nephews' children took contingent remainders until birth, and vest-

ed remainders as born, subject to divvesture by death before parent, and so as to cut nephews' fee to life estate, and to provide an alternate devise in default of children living at death of nephews. Smith v. Smith

Alia-47 820. To L and A for life of L, remainder to A, but, should both die without issue, then all not previously disposed of by executor, should revert to testator's heirs at law, held to give joint life estate to L and A during life of L, with defeasible vested remainder to A, subject to divvesture on her death without issue during life of L, passing land to testarity is neirs on A's death without issue during life of L and L's death without issue. Satterield v. Tate \[Ga.\] 64 SE 60. To husband, but, if she should not survive testar-

husband, but, if she would not survive testar-

trix, then to her brother, husband in case of his survival to have and hold property for life, then to will it to testarity's brother, held to give husband life estate with remainder to the brother. Rooney v. Hurbut \[Kan.\] 98 P 765. To two granddaughters, with provision that should either die survivor should have all, and reversion to testator's heirs should both this intention will not be defeated by inaccurate expressions,\[34\] such as the misuse of technical terms.\[35\] An estate given in decisive language will not be reduced by subsequent clauses not equally decisive 36 or by repugnant provisions,\[37\] nor will it be so

'''
62SE306. Use of word "assigns" in grant- \[ solute when she gave birth to a child, and \[ existinghlimitation over. Id. Gift over confer on grantee power of disposal. Teague \[ in case of death of any legate held not asp- \[renn.\] 114 SW 484. Will continued to create cross essements in a certain strip of land along rear of lots devised to write and brother, and not undivided interests therein in fee simple. Whitelaw v. Rodney, 212 Mo. 540, 111 SW 560. "Undifold one-third fee simple interest and easement in and to" certain lots held to create both an undivided fee title in soil and easement thereon in favor of adjoining tracts held by parties in sevarality. Thompson v. De Snyder \[N. M.\] 94 P 1014. '''

**34.** To two brothers for life, with remain- \[dera to their children, and in default of children of either, then to "survivor" or "surviving brother," with limitation over both \[dera to be necessarily \[imply cross reminders between strips of life tenants, "surviving" or "surviving brother" being held to mean "other" or "other brother," giving entire estate to sole surviving child of one of the brothers after death of both. Smith v. Smith \[Ala.\] 47 S 220. \[\] 220. \[\] 35. Apparent and lawful intent will control technical terms. Williams v. Grimm \[Ky.\] 112 SW 83. Use of word "remmalder" in habendum clause of decel held not conclusive that technical remainder was meant. Simonds v. Simonds, 193 Mass. 562, 85 NE 850. \[\] 36. In re Carney's Ekate \[In.\] 86 NE 400. Where fee is given in unequivocal language \[ in first clause of a will, it cannot be cut down to a life estate by subsequent clauses without express words or ministakable intention. Pratt v. Saline Valley R. Co., 130 Mo. 176, 108 SW 1099. Not cut down by sub- \[\] 39. Not cut down by sub- \[\] 39.112 sequent of ambiguous words in finentent. Jackson v. Littell, 213 Mo. 583, 112 SW 53. Intention must be clear \[Ault v. Karch, 220 Pa. 366, 69 A 857, first taker being entitled to benefit of every implication \[Robinson v. Jones \[Pa.\] 70 A 948\]. Attempt to create a trust either by positive or precatory words, though unsuccessful, may be sufficient to indicate intention to limit estimate of first taker. Where trust failed for identifiniteness, remainder after devise?'s life use went to intestine and not to devise's heirs, though testator only "requested" that devise will two-thirds to charity. Glindrist v. Corliss \[Mich.\] 15 Det. Leg. Neg. 871, 118 NW 938. Codleil held to cut life estate fee given by will proper to nephews by providing nephews should not sell but cultivate the land, and giving property to nephews' children, if any, at their death, and over should both die and leave no children. Smith v. Smith \[Ala.\] 47 S 220. Provision, after creation of fee, "should any of my younger children die before having or leaving any heir, then their shares to be divided between the remainder or surviving part of said four younger children," If intended to restrict daughter's estate, simply postponed v. McCreray \[Ala.\] 48 S 113. "Heir" held to mean "child," veting estate in daughter ab- \[\] 49.114 SW 673. \[\] 49.115 SW 674. \[\] 50.116 SW 675. \[\] 51.175 SW 676. \[\] 52.1175 SW 676. \[\] 53.112 SW 677. \[\] 54.118 SW 678. \[\] 55.112 SW 679. \[\] 55.112 SW 679. \[\] 55.112 SW 679. \[\] 55.112 SW 679. \[\] 55.112 SW 679. \[\] 55.112 SW 679. \[\] 56.112 SW 679. \[\] 57.113 SW 671. \[\] 58.112 SW 679. \[\] 59.114 SW 679. \[\] 50.112 SW 679. \[\] 51.122 SW 679. \[\] 51.124 SW 679. \[\] 52.115 SW 679. \[\] 53.112 SW 679. \[\] 54.112 SW 679. \[\] 55.112 SW 679. \[\] 55.112 SW 679. \[\] 55.112 SW 680. \[\] 55.112 SW 681. \[\] 56.112 SW 682. \[\] 57.113 12 Cur. Law. REAL PROPERTY SS 3.

enlarged.\* Many authorities hold that an estate is a fee simple if the holder is given an absolute power of disposition * as distinguished from a limited or contingent one, * and that limitations over are void, as repugnant; * ; but there are also jurisdictions in which this rule is rejected, or at least qualified. * \[42\] After an absolute devise in fee, a devise over in case of death of the first taker, or his death without issue, is generally held to refer to his death in the lifetime of the testator * \[48\] except

38. A life estate expressly created will not went to testator's heirs. McKnight v. McChen enlarged to a fee by inference or implea- \[Tenn.\] 115 SW 184. A life estate tion or any language falling short of positive direction. Haskrouck v. Knoblauach, 59 Mice, position which, when regularly exercised, 9%, 112 NYS 165. Life estate to write held not enlarged by subsequent provisions as to "what remains," or by power of sale given widow as execurtic. Bradshaw v. Butler, 33 Ky, L. R. 531, 110 SWV 420.

01. Life estate with absolute power of disposition gives fee. McKnight v. McKnight \[Tenn.\] 115 SWV 184. To write for "her life- \[Tenn.\] 115 SWV 184. To write for "her life- \[Tenn.\] 115 SWV 184. To write for "her life- \[Tenn.\] 115 SWV 184. To write for "her life- \[Tenn.\] 115 SWV 184. To manage and impose of as she may see cause," held to pass fee. Alslip v. Morgan, 23 Ky, L. R. 72, 109 SWV 312. Held, if daughter did not take fee under general provisions of will, power to sell and dispose of land as she saw it carried full property Interest. Tisdale v. Prather, 210 Mo. 402, 109 SWV 41. Suggestion as to investment of proceeds of a sale if desired held not to restrict devices' power of disposal as owner of fee. Id. Devisee held entitled to mort- \[Tol.\] 116 SWV 687, withdraw- \[Tol.\] 114 SWV 379.

01. Life tenants' limited power to appoint the fee does not enlarge his life estate. Applontices held not entitled to crops growing power of disposition and attempt to destroy at time of life tenant's death. Kears v. Blinn, 234 Ill. 121, 84 NE 629, afg. 137 Ill. App. 474. To write for life, with right to use \[Tol.\] 116 SWV 730.

01. Devise giving only life estate may be to sell any of it, held not to confer on wife

coupled with unlimited power of disposal absolute power of disposition so as to give her fee simple, but to give only life estate,

vest remainder over as to property not

disposed of. In re Plerson, 58 Misc. 94, 110

estate (Id.); compare In re Weien's WIII NYS 476. To write for life, with absolute power to dispose of income and so much of principal as she might think necessary for her support, held not absolute gift in fee

property that should remain to be divided simple. Haskrouck v. Knoblauach, 59 Mice, 99, 112 NYS 159. Widow held to take only life estate and power to use principal. In re

David's WIII, 59 Misc. 50, 112 NYS 265. Power

In widow to absolutely control and dispose of income and so much of principal as she

expressively given for life only. Pratt V. Sahine might deem necessary for support held not to give fee. Haskrouck v. Bookstar, 114

only life estate is devised, power to sell and NYS 949. Power of disposal not being absolute, Real Property Law (Laws 1896, p. 579, c. 547), $ 129, enlarging life tenant's estate to a fee for benefit of creditors, purchasers and enchummances where life tenant has absolute power of disposal, but mrakir it subject to future'sstates limited theorem if power is not exercised is inapplicable (Id.). But even if will gives absolute power, sub- \[Tol.\] 115 SWV 1899. If

subject estate takes effect under state if power is not exercised (Id.). Real Property Law (Laws 1896, p. 580, c. 542), $ 133, providing that every power by means of which grantee is enabled in his lifetime to dispose of fee is absolute, only makes power, not grantee's estate, absolute. Id. Widow's power of disposition held not absolute, being only power to dispose of property by will, and, thus not having been exercised, property

with power of disposal during continuous and out of such estate for his benefit. Parker v. Law (Laws 1896, p. 548), $ 133, providing that every power by means of which grantee is enabled in his lifetime to dispose of fee is absolute, only makes power, not grantee's estate, absolute. Id. Widow's power of disposition held not absolute, being only power to dispose of property by will, and, thus not having been exercised, property

with power of disposal during continuous and out of such estate for his benefit. Parker v. Law (Laws 1896, p. 580, c. 542), $ 133, providing that every power by means of which grantee where a different intent is clear,44 as where the estate is preceded by another one for life or years.45 Estates will vest as early as the language of the grant or devise will permit,46 but, under a direction for payment to or division among a class, only

that, should either die without lawful heir, \[Tex.\] 117 SVW 425, rvg. \[Tex. Civ. App.\] his share should fall to last named heir or 111 SVW 443.

helfs held to create fee simple. Robinson, v. 45 Where, after granting of a life estate Jones \[Pa.\] 70 A 948. Limitations over as to children dying without issue held to refer to remainerdine die without children or issue death before testator, but applicable as well

then the property shall go over to another, to remainder interests of children as to their

words "dying without children or issue" re-

immediate gifts. Lumbkin v. Lumbkin \[Md.\],

for to death of remainder before termination of particular estate. Bradashav v.

"In case of his death," to another, "in case of death" refers to death before death of

remainerdarn survived termination of life

testator if context gives no explanation.

Fischer v. Fischer \[N. J. Eq. 71 A 458. Devise

to daughter in terms sufficient to pass fee,

issue, to L and E for their lives and then

volved by proving that in case of her death

over, held not to give M's children vested

property should be sold and divided equally

manander prior to M's death and M leav-

among other surviving heirs, gave daughter

fee where she survived testator. Aneshenen-

le a and E as life tenants, and not to M's

sel v. Twyman \[Ind. App.\] 85 NE 788. In

busband. Staton v. Godard, 148 N. C. 484,

devise to children absolutely and in equal

62 SS 519. To husband, then to plaintiff,

shares, but, by concluding sentence, should

and, should be die without issue, then to

any of testator's sons die without issue, his

or their shares should revert to testator's

not testator's death. St. Paul's Sanitarimum v.

children then living, "die without issue"

Freeman \[Tex. Civ. App.\] 111 SWW 443.

mean death without issue during testator's

46. Early Vesting favored. Webbe v.

life, though stature provided that every con-

tingent limitation made to depend on any

Fiberds, 153 Mich. 667, 15 Del. Leg. N. 565,

person dying without heir should take effect

when such person dies without heir living

at time of death, unless otherwise expressly

and plainly declared. Frank v. Frank v. Frank

\[Ten.\] 111 SVW 113. All property to F. but,

should be die without issue, then to a char-

itable institution, gave toe to F where he

survived testator. St. Paul's Sanitarimum v.

Freeman \[Tex. Civ. App.\] 111 SWW 443.

**44.** Phrase "In case of" and similar

pressions, referring to death of prior legate

in connection with some collateral event,

contemplate happening of contingency after,

as well as before, death of testator. Fischer

v. Fischer \[N. J. Eq. 71 A 488. To son and

wife, and, in case son should die before wife,

then to wife and children, and, if wife re-

married, then to children absolutely, held to

refer to death of son before or after death

of testator. Id. To widow for life, then to

grandchild for life, remainder to heirs of her

body and, in default of such heirs, then to a

nicee, with direction for payment to

child on arrival at 21, or to heirs of her

body, if any, after her decease, but that

property should not be delivered unless she

had heirs, held not to vest fee in grandchild

where she died without issue, though having

in passed 21. Cone v. Kent, 128 App. Div.

149, 113 NYS 37. Rule that in case of devise

in fee, but in case of death to another, refers

to death in testator's lifetime, has no

pplication where a point of time for distri-

bution is mentioned other than death of

restator, or where a life estate intervenes,

or where context indicates contrary intent.

In Fe Salisbury's Wull, 61 Mirsc. 550, 115 NYS

976. "All property, real, personal and mixed,

that I may own and be possessed of at time

of my death," but in \*bsequent paragraph

devise over if first taker should "die with-

out Issue," held to create estate, subject to

be defeated by death without issue at any

time. St. Paul's Sanitarimum v. Freeman

to restator's death, but in \*bsequent paragraph

defuse by death," but in \*bsequent paragraph

devise's children, but, if devise should die

out Issue," held to create estate, subject to

be defeated by death without issue at any

should go to her brothers and sisters, held

time. St. Paul's Sanitarimum v. Freeman

to restator's death, but in \*bsequent paragraph

defuse by death," but in \*bsequent paragraph

out Issue," held to create estate 19 Cur. Law. REAL PROPERTY SS 3. 1637

those who are members of the class at the time fixed for payment or division take, and their interests do not vest until that time 47 except where payment or division is deferred merely for the purpose of giving another person a preceding life use,48 and there is a conflict as to whether words of survivorship in a will devising a life estate and remainder refer to death of testator or to that of the life tenant.49 Unless a contrary intention is expressed, a devise given in default of an appointment vests on the death of the testator, subject to divestiture by exercise of the power,50 and, if the power is exercised as to only a part of the estate which was subject thereto, the residue remains vested.61 The tendency is to construe a grant or devise to a person and his children as creating a life estate in the parent, with remainders to the children,52 but an estate to one for life, remainder to him and his heirs, passes the remainder to him, and not to his heirs by purchase.53 A mere limitation over should the first taker of an estate die without issue or descendants is insufficient to create an estate by implication in the issue or descendants,54 but, if the intention is clear, an estate will arise.56

devisee's marriage and birth of issue. Fisher -

iture in favor of children should widow re-

v. Lott, 33 Ky. L. R. 609, 110 SWV 822. "And

marrry, and to children on widow's death,

on her (wife's) death, I give and, bequeath

held to vest children's interests on death of

capital of said fund unto such of my eml-

testator and not on death of widow. Carter

dren as shall survive me," held not of sub-

v. Carter, 234 Ill. 507, 85 NE 292.

stance as to time, so as to prevent imme-

49 In order to vest remainder early, words

dative vesting. Bergmann v. Lord, 194 N. Y.

of survivorship will be held to refer to test

70, 86 NE 828.

tate's death unless contrary intention is

Vesting postponed: VNH held not to vest

relaxing until property not specifically de-

proceeds divided "between my surviving

vised had been converted into money by

children and children of any of my deceased

excutors and period of distribution had arrived. Barnes v. Johnston, 233 Ill. 620, 84

of testator, Crossley v. Leslie, 130 Ga. 782,

NE 610. One devisee having died before

61 SE 861. Survivorship between devises

time for distribution, his share went to his

never relates to testator's death unless more

daughter under terms of will, and free from

is no other time to which it can be referred

claim of devisee's widow. Id. To vite for

(Smith v. Smith \[Ala.\] 47 S 220), but natural

life, and on her death to children and sur-

ily relates to death on which previous es-

vivor of them, issue of deceased child to

take parents share, but to vite absolutely

limited (Id.).

if neither child survived her or died leaving

50 Power of appointment does not create

lawful issue, held not to vest interests in

state or hold it in abeyance. Freeman's

children until death of wife. In re Salis-

Estate, 35 Pa. Super. Ct. 185. Existence of

bury's Wills, 61 Nisc. 650, 113 NYS 976.

an unexecuted power of appointment in the

47 Children who are mentioned by name

holder of the precedent estate does not pre-

take as individuals and not as a class. Carvent

vest vesting of future estate limited in

ter v. Carter, 234 Ill. 507, 85 NE 292. To

wife, to hold until youngest child should be

128 App. Div. 479, 112 NYS 1017. Trust to

21, then to sell and divide proceeds between

daughter for life, then to her appointes

children and descendants, latter taking par-

and, in default of appointment, to daughter's

ent's share, held not to vest children's shares

issue, held to give vested remainder to

1s-
until youngest child become of age, barring

sne. In re Chapman's Estate, 61 Misc. 593,

any Interest in husband of child who died

115 NYS 981.

before vesting. Rose v. Ware's Adm'r \[Ky.\]

116 SWV 241. To widow for life, with direc-

state, remainder passed to devises under

tion that executor divide remainder among

testator's sisters and brothers or their heirs,

35 Pa. Super. Ct. 185.

and authorization to sell for such purpose,

held to vest remainder at widow's death.

In re Talmadge's Estate, 113 NYS 621. Rule

that bequest in form of direction to pay or

divide in future vests immediately, if payment is postponed for convenience of fund

or estate, or merely to let in some other in-

terest, held not applicable where reality and

personality were given widow for life and

executor was directed after death of widow

to sell and "distribute equally to my legal

heirs." Barr v. Denney, 79 Ohio St. 358, 87 NE 267. Direction held to create only

tingent interests, not vesting until time for

distribution. Id.

1638 REAL PROPERTITY SS 3. 12 Cur. Law. Of course, one cannot in his own right confer upon another a greater estate than he himself has,\[56\] but by statute it is often provided that, where a grantor has assumed to convey a greater interest than he had, the conveyance shall transfer whatever he could convey.\[57\] Where lands are granted or devised to two or more persons as joint tenants, and any one is incapable of taking, the whole estate goes to the others.\[58\]

\_The rule in Shelley's case_See 10 C. L. 1459 gives the ancestor the whole estate when limited to him and his heirs or the heirs of his body,\[59\] provided the two estates are of the same quality; \[60\] but words of progeny will not render it applicable unless used in the sense of heirs or heirs of body generally.\[61\] "Children" is a word of purchase \[62\] except where other words show that it is used in the sense of heirs.\[63\]

descendants, and, in event of descendants, the and exclude heirs. Id. To grantee "for fee became absolute and free from interests in descendants (Id.).

55. Reality and personality in trust to daughter for life, remainder to her brothers and sisters should she die without issue, held to give remainder to issue should she leave any. Close V. Farmers' L & T. Co. \[N. Y.\] 87 NE 1005.

01. Conveyance from life tenant purporting to grant entire estate passes only interest of life tenant. Satterfield v. Tate \[Ga.\] 64 SE 60. Railway company purchasing right of way from a life tenant acquires only title possessed by grantor, notwithstanding payment of full value and deed purporting to convey fee. Turner v. Missouri Pac. R. Co., 130 Mo. 535, 109 SVV 101. Remainder-men held to have cause of action after death of life tenant for damages due to continued occupancy of railroad company. Id. One who takes from holder of defeasible estate takes subject to the contingency. Vested remainder defeasible on holders death without issue during life tenancy. Satterfield v. Tate \[Ga.\] 64 SE 60. Furchasser took subject to contingency that remamlderman should not survive life tenant. Schwartz v. Rehrs, 129 App. Div. 630, 114 XYS 92. Where remainder was to be divested on death of remainderman without issue pending life estate, remainderman's grantee would take title if remainderman survived. Small v. Hockinsmith \[Ala.\] 48 S 541. If remainder-man died without issue before life tenant, remainder went over. Id.

01. Where grantor had previously sold the land to another, his line I can't be moneye money held not "a right or estate in lands," within Am. Code 1892, $ 244, providing that conveyances purporting to convey a greater estate than grantor has shall convey as much as he could lawfully convey. Howell v. Hill \[Miss.\] 48 S 177. Under Rev. St. 1895, art. 626, providing that alleinations purporting to convey greater estates than grantor has shall carry so much as grantor might lawfully convey, conveyance of fee by tenant for life or years operates to transfer his own interest only. Kennedy v. Pearson \[Tex. Civ. App.\] 109 SVV 280.

01. Conveyance by wife direct to husband and daughter passed legal title to entre estate to daughter. McCord v. Bright \[Ind. App.\] 87 NE 654.

01. Held applicable: In trust to A for life then to convey to A's appointee or in default of appointment to her heirs at law. McFall v. Kirkpatrick, 236 Ill. 281, 86 NE 139. Beneficially could convey equitable tri- 12 Cur. Law.REAL PROPEkLY SS 4A. 1639

The rule does not apply where the limitation over is by way of contingent remainder," and a spendthrift trust is not within its operation."65 It is an inflexible rule of property not intended to effectuate the intention of the parties 66 and has therefore been abolished or modified in many states."67

SS 4. _Covenants and restraints. A. Restrictive covenants 68-See 10 C. L. 1400_ are very often building restrictions.69 Conditions restraining the free use or alienation of reality, though viewed unfavorably, are upheld, if not unreasonable or repugnant to plain provisions of law 70 and will be enforced by injunction or other proper procedure.71 To constitute a covenant, a restriction or promise must be based on a consideration 72 and must in some way benefit the party seeking to enforce it.73 Acceptance of a deed poll binds the grantee to the performance of covenants therein contained,74 but a covenant may be of such character as to exclude any presumption of liability on part of covenant after he has parted with title and possession.78 A grantee's covenant may be enforced against a subsequent grantee though it is not one technically running with the land.76

should descend to heirs. Cook v. Council- - sale of intoxants will be enforced by in-man \[Md.\] 72 A 404.

94. Provision for reversion back to grantor

Veyance. Guvers v. Aaters, 132 11, App. 520, or his estate should grantee die without

General demurrer held not to raise question heirs of body. Robeson v. Duncan \[N. J. Esq.\] 70 A 685. Grantee held to take only life

Charging variant fees depending on VISISTate with contingent remainder over. Id.

65. Will held to give brother only an

certain amusements thereon held violeca-

equitable life interest. Nightingale v. Phil-

1ips \[R. I.\] 72 A 220.

96. McFarill v. Kirkpatrick, 236 Ill. 281, 86

01. McFarill v. Councilman \[Md.\] 72 A 404;

App. 72 A 61. Burden is on grantee who

Hopkins v. Hopkins \[Tex. Civ. App.\] 114 SW

Required to establish defense by fair pre-

67. Life estate with remainder to heirs of

body held to vest remainder in children on

ligation of covenant not to build any fence

their birth. Peck v. Ayres \[Exa.\] 100 P 283.

east of a certain line. Beck v. Heckman

Under 1 Glen. St. 1859, p. 1195, 81, an estate

1m fee tall gives ancestor an estate for life

72. Covenant to use property only for

with remainder in free to heirs of body.

Rubeson v. Duncan \[N. J. Esq.\] 70 A 685. Rule

shideration, property not being apprunement

in Shelley's case was abolished by Act 1851-

62, p. 115, e. 91 S (Shannon's Coke, & 8674).

or, and covenant having been inserted merely

providing that heirs or heirs of body of per-

son given life estate with remainder to his

with deduction in price. Rector, etc., of

helirs or heirs of his body shall take as pur-

St. Stephen's Protestant Episopal Church v.

chasers (Tengue v. Sowder \[Tenn.\] 114 SW

484); hence grant of life estate with

reminder to his heirs gives heirs a remainder

117 A 173 623.

interest if grantor so intended (Id.). Rule

was abolished by Gen. Laws 1896, c. 201, 8 6, providing for life estate in first

after with

reminder in free to his heirs and c. 203,

$ 10, providing that devise for life and chil-

dren of issue generally, in fee, shall vest

only life estate, remainder to children or

issue generally agreeably to wIll. Nighting

gale v. Phillips \[R. I.\] 72 A 220. In force

in Maryland. Cook v. Councilman \[Md.\] 72 A 404. Also in Texas. Seaay v. Cockrell

\[Tex.\] 118 SW 1160.

68. Senerk Note: See notes in 15 L. R. A.

231; 19 Id. 262; 21 Id. 58.

See. also, Covenants, Cent. Dig. SS 49-51; Dec. Dig. SS 49-52; Dec. Dig. SS 49-52; Dec. Dig. SS 49-53; 120.

548; Dec. Dig. SS 144-176; Wills, Cent. Dig. SS 1522-1579; Dec. Dig. SS 639-668.

69. See Buildings and Building Restrictions, 11 C. L. 479.

01. Building restrictions held not unreasonable, Highland Reality Co. v. Groves

\[Ky.\] 113 SW 420.

71. Restriction in conveyance precluding

01. Restriction in conveyance precluding

01.

1640 REAL PROPERTS $4B. 12 Cur. Law.

(SS 4) \_B. Covenants running with the land.\_77-See 10 C. L. 1440.-In order that a covenant may run with the land, its performance must touch and concern the land or some right or easement annexed or apprutentent thereto 78 and tend necessarily to enhance its value or render it more convenient or beneficial to the owners or occupants.79 In determining whether a covenant runs with the land, the material inquiries are, first, whether the parties meant to charge the land; 80 and, second, whether the burden is one that can be imposed consistently with policy and principle.81 The use of the technical word "assigns" is not essential,82 for intention to

77. Search Note: See notes in SS2 A. S. R.

necessary repairs, such covenant probably #64.

See, also, Covenants, Cent. Dig. SS 22, 52-92; Dec. Dig. SS 53-84.

will held to run with land, covenant ex- 78. Vhnalen v. Baltimore & O. R. Co. \[Xd.\]

pressly binding his grantees and agreeing #6 A 390. Covenant which does not touch or concern the land is personal, binds only covenant, and can be taken advantage of only by covenantee. Id. Must be in respect to thing granted, and act covenanted must concern land or estate conveyed. Munro v. Syracuse, etc., R. Co., 128 App. Div. 388, 112 NYS #3. Covenant to maintain division fence touches and concerns land itself and, hence, may be subject of covenant running with land. Sexauer v. Wilson, 186 Iowa, 357, 113 NYS #41.

79. Vhnalen v. Baltimore & O. R. Co. \[Xd.\]

01. Vhnalen & O. R. Co. \[Xd.\]

69 A 390. Where railroad company, granted right of way through a farm, covenanted to construct and maintain a sliding, to stop trains for passengers going to and from farm, and to unload freight at sliding for grantor, and agreement was made with own- #and assigns, first two covenants ran with land but not the third. Id. Covenant running with land is annexed to freehold enhancing its value or benefiting it in some way. Munro v. Syracuse, etc., R. Co., 128 App. Div. 388, 112 NYS #98.

80. Sexauer v. Wilson, 186 Iowa, 357, 113 NYS #41. Covenant requiring payment for use of party wall can run with land. Morris v. Burr, 59 Misc. 259, 112 NYS 243.

Held to run: Contract held to create an easement in a ditch with covenants running therewith and with adjoining land binding owners of ditch and their successors. Farmers' High Line Canal & Reservelor Co. v. New Hampshire Real Estate Co., 40 Colo. 467, 92 P 290. Covenants, in warranty dead, against finembranes and for peneable possession. Newman v. Sevier, 134 Ill. App. 544. Covenant of selism. Sturgis v. Slocum \[Iowa\] 118 NYN 128. Building restrictions or covenants. Highland Reality Co. v. Groves \[Ky.\] 113 SWP #20: Hisey v. Eastminster Presbyterian Church, 130 Mo. App. 566, 109 SW 60. Covenants of railroad company, acquiring right of way, to build and maintain fences and eutpasse. Munro v. Syracuse, etc., R. Co., 128 App. Div. 388, 112 NYS #98. Covenant not to obstruct windows and flight to prejudice of adjoining owner. O'Connor V. Bauer, 127 App. Div. 854, 111 NYS #69. A covenant to convey to lessee their helrs and assigns. Hollander v. Central Metal & Supply Co. \[Md.\] 71 A 442. Landford's covenant to repair. Silberberg v. Trachtenberg, 58 Misc. 586, 109 NYS #14. Where one transfers a half interest in a fence and stipulates for himself, his helrs and assigns, to make the 12 Cur. Law. REAL PROPERTY SS 6. 1641

eharge the land may be shown by other language in the ded "\* and is generally to be ascertained from the tenor of the instrument, the thing to be done, the period of continuance, and the like." Where a contract expressly designates which of its covenants shall run with the land all others will be held not to run." A. covenant imposing a burden will run with the land as readily as one conferring a benefit." A covenant which runs with the land is binding on both the burdened land and the person of the owner thereof " and favors both the benefited land and whoever shows priority of estate."

(SS 4) \_C. Restraints."_See 10 C. L. 1460_--The rights of an owner of a specified legal estate are defined by law, and attempts to create repugnant restraints are futile," but a donor may create such equitable interests as he may desire without regard to rights incidental to legal estates."

Restraints on alienation are enforcible if reasonable and consistent with the estate conferred " and provided they do not violate the rule against perpetuities."

SS 5. \_Rents and charges."_See 10 C. L. 1460_--Where by reason of a widow's re-nucleation of her husband's will she becomes the owner in fee of a portion of lands devised to others, she also becomes entitled to a corresponding portion of the rents from such lands falling due after testator's death."

SS 6. \_Mutual and relative rights and remedies of present and future tenants."_See 10 C. L. 1460_--A life tenant is quasi trustee for the remaindermen " and cannot esse. Sexauer v. Wilson, 186 Iowa, 357, 113 NVW 941. That covenant related to building one is void, but conditions against alienation to a s destroy or impair their rights in property not consumed in the using "*" either by unauthorized conveyances," other agreements or partitions to which the remaindermen are not parties,1 waste,3 failure to pay taxes," or otherwise wrongfully acquiring outstanding titles.4 He may, however, acquire an outstanding title subject to the rights of the remaindermen," and the latter cannot have the benefit thereof without offering to contribute their proportionate parts of the price paid.* The life tenant is usually entitled to the immediate possession and enjoyment of the property,7 except in cases of trusts 8 or where the legal representative of a decedent is entitled to possession for administration purposes." In Georgia a life tenant's lessee for years may remain in possession until the end of the current year, notwithstanding death of the life tenant,10 and unless the rent has already been paid,11 it will be apportioned between the remaindermen and the life tenant's estate.12 The rule that personal estate and invested it in reality, re-maindermen could elect to take reality with any enhanced value in lieu of funds invested. Toeding was not governed by Burns' Ann. Id. Held not barred by laches or limitations, Id. 90. Life tenant cannot by conveyance divestremaindermen's vested interests. Mims v. Hair, 80 S. C. 460, 61 SE 968. Life tenant, with remainder to children, held without power to convey fee without children joining or conveying their interests by separate instruments. Litigator v. Lexington Turf Club \[Ly.\] 113 SW 814. Widow who has life estate with power of disposition for her benefit, but subject to diveasure on re-marriage, cannot defeat effect of re-marriage by prior conveyance merely for purpose of cutting of remainder. Parker v. Traverse \[N. J. Err. & App.\] 71 A 612. Unauthorized lease by life tenant giving lessee right to remove sand and gravel from shore of land held not ratilled by subsequent deeds to land by life tenant and remaindermen providing they were subject to the lease and referring to its record. Potomac Dredging Co. v. Smoot \[Id.\] 69 A 507. Evidence insufficient to show that life tenants conveyed lands not for reinvestment, and purchaser had knowledge thereof, so as to entitle remaindermen to recover on ground that lands were conveyed in violation of will giving power: to sell for reinvestment. Whitfield v. Lyon \[Milsa.\] 46 S 545. Though life tenants had power to sell only for purposes of reinvestment, they could mortgage part of land for purposes of paying taxes where they had no other resource, so that title under mortgage held fee. Id.

I. In partition at instance of life tenant, remainder cannot be sold unless remaindermen are made parties. Cramton v. Rutledge \[Ala.\] 47 S 214. Where, under will, children held for life, with remainder to their children if they had any, neither statutory partition nor agreement among life tenants could effect interests of remaindermen not parties. Vukitins v. Gilmore, 130 Ga. 797, 62 SE 32.

Z. One who is only life tenant cannot open new mines for minerals, or wells for oil or gas, or lease to others for such purposes. Shultins v. MacDougal, 162 P 31. Owner of reversion seeking to-compel life tenant by mandatory injunction to keep property in re-mar to-person in re-mar to-person in re-mar to-person in re-mar to-person in re-mar to-person in re-mar to-person in re-mar to-person in re-mar to-person in re-mar to-person in re-mar to-person in re-mar to-person in re-mar to-person in re-mar to-person in re-mar to-person in re-mar to-person in 12 Cur. Law. REAL PROPERTY SS 6. 1643 a devise of the fee of land carries crops growing at testator's death does not apply where advisor is only life tenant and merely exercises a power to appoint the fee.13 After allowing emblements to the life tenant,14 the remaindermen are entitled to the use and occupation of the land on termination of the life tenancy.25 Statutory proceedings are often authorized for partition 16 for the purpose of selling reality in which there are several estates or interests and reinvesting the proceeds in other realty.17

\_Possession is not adverse to remaindermen See 10 C. L. 1462 or reversioners pending the life tenancy,18 and limitations will not ordinarily run against them until death of the life tenant,19 nor can they be barred by laches until that time 20 or by estoppel; 21 but, by statute, remaindermen may have the right pending the life estate to sue to quiet title or to remove a cloud therefrom,22 and in such case limitations will run from the time such right accrues.23

\_Improvements, taxes, incumbrances, etc.\_See 10 C. L. 1463.--As a rule, a life tenant must' pay taxes, insurance and interest on incumbrances 24 and make ordinary re-

underement is entitled to possession to end 221 Pa. 349, 70 A. 838; Webster v. Pittsburgh, of year (Butt v. Story \[Ga. App.\] 68 SE 658), C. & T. R. Co., & T. R.

1644 REAL PROPERTS 87.12 Cur. Law. pairs.25 Improvements made by a life tenant inure to the benefit of the remaindermen.26 A reversion on discontinuance of public or quasi public uses for which land was conveyed does not carry with it permanent improvements made by the grantee for such uses.27

SS 7. _Rights and remedies between third persons and present and future tenants.26 See 10 C. L. 1463_--A life tenant cannot recover for the wrongful cutting of timber on the land 29 except for resulting injury to his use and enjoyment of the property.20 Though remaindermen are not entitled to possession until expiration of the preceding estate,31 they may sue to obtain an adjudication of their rights and interests, where adverse claims are asserted by persons in possession.32 Where an estate is vested, subject only to contingent rights in persons yet unborn, the living owners represent the whole estate for purposes of litigation respecting it.33 The fact that a life tenant dies shortly after a sale by him of his interest does not relieve the purchaser from the obligation of his agreement.34 Questions pertaining to the sale and conveyance of real estate generally,35 the competency of grantors or devistors,36 mistake,37 fraud or undue influence,38 and the right to have conveyances canceled 39 or reformed,40 are fully treated elsewhere and also what interests may be reached by creditors.41

Where lands are conveyed in trust, with directions to pay income to one for life with remainder over, person entitled to income is equitable tenant for life, subject to duties of life tenant, including payment of taxes and interest on incumbrances. In re Morton's Estate \[N. J. Eq.\] 70 A 680, Where trust estate consists in part of improved revenue producing property, and in part of unimproved property, life tenant must pay taxes on unimproved property from income derived from revenue producing property so far as it will go. Id. WIII held not to set apart proceeds of sale of unimproved property for satisfaction of taxes and interest. Id. On accounting under will directing division of real and personal estate and payment of income therefrom to life beneficiaries, succession taxes were properly chargeable to principal account, and ready taxes to income account. Bishop v. Bishop \[Conn.\] 71 A 583. As to duty of life tenant to pay insurance, see 33 L. R. A. 239; 44 L. R. A. 711.

25. It is duty of life tenant to preserve property by making ordinary repairs (Hamilton v. Hamilton \[Iowa\] 116 NWU 1012), and he cannot decide for himself as to necessity of resorting to corpus for purpose of obtaining money for repairs or with which to discharge existing incumbrances (Id.). He did not entitled to sell part of property or encumber same. Id.

01. Remaindermen occupying land with life tenant and under her held not entitled to reimbursement from the other remaindermen for permanent improvements they had placed on the land. Carter v. Carter, 234 Ill. 507, 85 NE 292.

01. Lot conveyed for purpose of erecting and maintaining railroad station. Young v. Oviatt, 55 Pa. Super. Ct. 603. Owner held not entitled to injunction restraining re-moval of building: Id.

01. Search Note: See notes in 4 Ann. Cas. 371; 6 Id. 145.

See, also, Life Estates, Cent. Dig.; Dec. Dig.: Remainders, Cent. Dig.: Dec. Dig.: Reservations, Cent. Dig.; Dec. Dig.

29. Daffin v. Zimmerman Mfg. Co. \[Ala.\] 48 S 109.

01. Held entitled to more than nominal damages, there being evidence that land was cut up and rendered less accessible. Daffin v. Zimmerman Mfg. Co. \[Ala.\] 48 S 109.

01. See ante, $ 6,

01. Bowe v. Richmond, 33 Ey. L. R. 173,

109 SW 359.

33. Proceeding against life tenant and vested remamdermen held to bar defendants and unborn children and next of kin.

Doscher v. Wyckoff, 63 Misc. 414, 113 NYS

65. Contingent remaindermen held not necessary parties to action to enforce lien against trust property. Jaillette v. Bell, 33 Ky. L. R. 159, 110 SWW 298. The rights of contingent remaindermen not in case may be finally adjudged when remaindermen in esse are made parties as representatives of the class. Hunt v. Gower, 80 S. C. 80, 61 SE 218.

01. Life tenant's administrator held entitled to recover price agreed on though life tenant had agreed to give a deed on receipt of price, possession having been de-lived immediately and land having been sold within one year as contemplated. Ferris v. Poucher, 161 Mich. 251, 16 Det. Leg. N. 183, 115 NWV 1054.

01. See Deceds of Conveyance, 11 C. L. 1051; Vendors and Purchasers, 10 C. L. 1942.

01. See Incompetency, 11 C. L. 1885; WIIIs,

10 C. L. 2035.

37. See Mistake and Aceldent, 12 C. L. 869.

01. See Fraud and Undue Influence, 11 C. L. 1583.

01. See Cancellation of Instruments, 11 C. L. 493. Also Vendors and Purchasers, 10 C. L. 1942.

01. See Reformation of Instruments, 10 C. L. 1496.

01. See Predictors' suit 12 Cur. Law. REAL PROPERTY SS 8. 1645 SS 8. Proof of title to reality.42 See 10 C. L. 1444.--The general rules of evidence apply,45 in addition to the principles here given and such as are more or less peculiar to particular actions involving reality.46 Though where the parties claim through a common source of title,47 the one who has the burden must connect himself with that source by a complete chain of transfers,48 he need not trace his title farther back,49 since adverse parties cannot impeach the title of a person under whom they both claim.40 Ancient deeds are admissible without proof of executions,41 but not mere copies or records thereof.51 By statute, records of deeds are admissible in certain cases,52 as where the originals are lost,53 and parol evidence may be resorted to where it appears that deeds or records are lost or destroyed.54 The mere fact that a person is occupying a parcel of land is not evidence of claim under any particular deed,55 but where real estate or an interest therein is acquired by appropriation, and no paper title is in existence, proof of possession and use is prima facie evidence of title,56 and ownership of reality for injury to which an action is brought is .

01. Search Note: See notes in 11 C. L. 1389, 1394. 130 Ga. 689, 61 SE 595. 86, also, Evidence, Cent. Dig. 55 78, 87, 106, 109, 111, 144-154, 196, 214, 239, 316, 449. 4744, 759, 788, 822-882, 1033, 1068, 1078, 1095, 1108-1120, 1136, 1178, 1219, 1220, 1276, 1277, 2171, 2192, 2457: Property, Dec. Dig. 50. Rule admitting in evidence ancient decades without proof of execution does not apply to copies or records. McCleery v. Lewis \[Mc.\] 70 A 540. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 141. 148. 149. 140. 141. 142. 143. 145. 146. 147. 148. 149. 141. 149. 142. 144. 145. 147. 148. 149. 140. 141. 141. 145. 149. 141. 146. 147. 148. 149. 140. 141. 141. 142. 143. 145. 147. 148. 149. 141. 149. 140. 141. 141. 142. 144. 145. 146. 147. 148. 149. 141. 149. 140. 142. 141. 143. 144. 145. 147. 148. 149. 141. 149. 140. 141. 141. 142. 144. 145. 146. 147. 148. 149. 141. 149. 140. 141. 141. 143. 141. 144. 145. 147. 148. 149. 141. 149. 140. 141. 141. 142. 141. 143. 144. 145. 146. 147. 148. 149. 141. 149. 140. 141. 141. 141. 142. 143. 144. 145. 147. 148. 149. 141. 149. 140. 141. 141. 142. 144. 145. 149. 141. 146. 147. 148. 149. 141. 149. 140. 141. 141. 142. 141. 143. 144. 145. 147. 148. 149. 141. 149. 140. 141. 141. 142. 144. 145. 149. 141. 146. 147. 148. 149. 141. 149. 140. 141. 141. 143. 141. 144. 145. 149. 141. 142. 144. 146. 14 prima facie established by proof of plaintiff's possession at the time of the injury and his testimony without objection that he was owner.\[64\] Where a decedent owns and is in possession of land at the time of his death, the title is presumed to continue in his estate.\[67\] A judgment may be admitted as a link in plaintiff's chain of title, though defendant was not party to the action in which it was rendered.\[68\] The views of previous holders of a title as to its validity cannot be considered.\[69\] Every presumption should be indulged against the United States where it claims title to land in the Philippine Islands for which for more than fifty years before the treaty with Spain has been occupied by the present native holder and his ancestors under claim of private ownership.\[60\]

**SS 9. Merger and abandonment.\[61\] See 10 C. L. 1664**-Merger is the annihilation of a lessor estate by union with a greater.\[62\] It can be affected only when the same person acquires both the legal and equitable title,\[69\] When a life estate and the next vested estate in remainder or reversion meet in the same person the particular estate will merge to the destruction of the contingent remainder,\[64\] except where the creation of the particular estate and the remainder or reversion occur at the same time and by the same instrument.\[69\]

_Abandonment_ See 10 C. L. 1465 is a relinquishment without reference to any particular person or purpose.\[60\] Mere nonclaim is insufficient to raise a presumption of divestiture of a fee simple title.\[67\]

**RECEIVERS.**

**SS 1. Nature, Grounds, and Subjects of Re-**

\*\*SS 10.

- 19Cur. Law. RECEIVERS $ 1.
- 1956. Receiver's Certificate, 1657. Counsel Fees, 1658.
- 1968. Accessing by Receivers, 1660.
- 1979. Linkulties and Actions on Receivership 1659.
- 2001. The scope of this topic is noted below."
- 2002. SS 1. Nature, grounds, and subjects of receivers." See 10 C. L. 1408. Relief by way of receivers is equitable in its nature \[70\] and is controlled by and administered upon equitable principles," \[71\] even where it has been extended by statute," \[72\] unless such extension is essentially legal in its nature." \[73\] Receivership proceedings are ancillary in their nature," \[74\] the purpose of a receivers being to preserve the status quo pending litigation," \[76\] or to administer funds or property." \[76\] The exercise of the power to
- 2003. 68. Treats of receivers generally. As granted by equitable practice, and to the extent of such extension the remedies are such topics as Corporations, 11 C. L. 810; legal. Shaw v. Shaw \[Tex. Civ. App.\] 112 Foreign Corporations, 11 C. L. 1508; Railroads, 12 C, L. 1365; Street Railways, 10 C, L. 1730; Bankruptcy, 11 C. L. 1745; Bankruptcy, 11 C. L. 1765; equity jurisdiction is appointment of such Foreclosure of Mortgages on Land, 11 C. L. 1487. As to the writ of sequestration, equiply jurisdiction. Ward v. Hotel Ran Ran-
- 2003. 69. Semen Note: See notes in 4 C. L. 1239; 16 L. R. A. 603; 20 Id. 210; 5 L. R. A. (N. S.) 711; 11 A. S. R. 353; 17 Id. 29; 4 Ann. Cas. 66.
- 2004. See, also, Receivers, Cont. Dig. SS 1-37; Dec. Dig. # 1-28; 23 A. & E. Enc. L (ed.) 992, 24 Id. 1, 4; 17 & A. & B. Enc. P. & P. 675.
- 2005. Right to appoint receiver is inherent in court of equity. Ritchie v. People's Tel. Co. \[S.\] 119 NVF 990. Courts of equity have always had the power to appoint receivers. Cobe v. Guyer, 237 Ill. 516, 86 NE 1071. Proceeding for appointment of receiver for purpose of administering and distributing assets of insolvent partnership, association or corporation is one appealing to equity side of court. Wehr s v. Sullivan \[Mo.\] 116 SWV 1104. General statutes concerning receivers must be construed in the light of the settled doctrine of courts of equity respecting the powers of receivers. Marion Trust Co. v. Blish, 170 Ind. 886, 84 NE 814.
- 2006. 71. Principles in regard to bill for injunction apply also to one for receiver. Baker v. Baker \[M.\] 70 A 418.
- 2007. Homeset and Loan Association Act of Illinois, providing for receivers under certain circumstances, held not to be in derogation of the common law, but an extension thereof to be exercised in usual form of chameery proceeding. Cobe v. Guy-
- 2008. 68. 711. 516. 86 NE 1071. The mere fact that the general assembly may make provisions authorizing certain officials in control of certain departments of the state government to institute proceeding for the appointment of receivers under certain circumstances does not in any way change the equitable nature of the actions, but is simply an aid or supplement to the general jurisdiction, and under Missouri statute, it was not necessary for the supervisor of building and loan associations after the dissolution of a building and loan association to institute an independent suit for appointment as receiver but could secure such relief by a petition for interventions.
- 2009. 72. 73. Rev. St. 1895, art. 1465, extends rights
- 2009. 74. 75. 76. 77. 78. 79. 78. 79.
